D.M.P. v. G.E.A. Date:, 2013 BCPC 117

Citation: D.M.P. v. G.E.A. Date: 20130522 2013 BCPC 0117 File No: F34530 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.M.P. APPLICANT AND: G.E.A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Applicant: A.S. Kerslake

Counsel for the Respondent: Y. Leibovitz Place of Hearing: Surrey , B.C. Dates of Hearing: March 27, 28, April 9, May 7, 2013 Date of Judgment: May 22 , 2013 Introduction [ 1 ] The parties to this application were married on October 23, 1993.

They separated on June 6, 1994 and on September 26, 1995 an order was made in the Supreme Court of British Columbia for their divorce, effective October 27, 1995. [ 2 ] The parties had three children together: J.G.A., a son, born (d.o.b.), 1991 (now 21 years of age) J.R.A., a daughter, born (d.o.b.), 1992 (now 20 years of age) J.L.A., a daughter, born May 10, 1995 (now 18 years of age) [ 3 ] Following their separation, the issue of child support was addressed in this court and therefore the order made by the Supreme Court under the Divorce Act did not make any order for that relief.

On August 23, 1994, an order was made in this court by the Honourable Judge Borowicz, ordering that the parties would have joint custody and joint guardianship of the two oldest children (the youngest had not been born yet). The order also set out what was termed a “time sharing pattern.” [ 4 ] On September 20, 1994 a second order of this court was made by the Honourable Judge Burdett. That order required the Respondent G.E.A. to pay the Applicant D.M.P. the sum of $50 per month per child commencing on September 1, 1994 and continuing on the 1 st day of each month thereafter.

That order has never been amended and remains in force. No order for child support for the youngest child has ever been made. [ 5 ] The Respondent has fallen into arrears under that order made by Judge Burdett. The Applicant alleges that no child support has been paid since 1997. (The Respondent says that stopped paying in 2000, but made some payments later.) The Applicant is seeking an order fixing the amount of the arrears. She also seeks an order for retroactive maintenance for the oldest child J.G.A. who, it is alleged, is still a child of the marriage despite being 21 years old.

The Applicant also seeks a retroactive order for child support for the youngest child J.L.A. No order is sought for retroactive support of the middle child J.R.A. because it is acknowledged that J.R.A. is no longer a child of the marriage within the meaning of the Family Law Act. The Applicant asks for an order fixing the amount of ongoing child support for J.G.A. and J.L.A. Finally, the Applicant seeks an order requiring the Respondent to pay

section 7 expenses pursuant to the Federal Child Support Guidelines for J.G.A.’s education expenses, for J.L.A.’s graduation expenses and for J.L.A.’s tutoring expenses. [ 6 ] The Respondent disputes the amount of the arrears claimed. He also opposes a claim for retroactive child support, and takes the position that the grounds for making a retroactive order are not present here. Alternatively, if there is any retroactive child support payable, the Respondent takes the position that such retroactivity should be restricted to three years or less.

He also argues that none of the expenses that the Applicant is claiming are extraordinary. [ 7 ] This case presents a number of compelling circumstances. On the one hand it is unfair that the Applicant was required to feed, clothe and shelter these children for most of their lives with very little support from the Respondent, in spite of the fact that he was earning a reasonable income throughout that time. On the other hand, the law places limits on retroactive orders for valid reasons.

There is the added complication that this application is brought early on in the life of the Family Law Act and some consideration is required of how, if at all, this affects the orders sought. Retroactive Variation of Child Support Orders [ 8 ] The Family Law Act permits the retroactive variation of an order for child support made under the Family Relations Act.

Section 152 of the new Act provides in part as follows: 152

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

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

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

b) evidence of a substantial nature that was not available during the previous hearing has become available;

(

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. (Emphasis added). [9] In the commentary to this

section contained in the publication Family Law Act Transition Guide published by the ContinuingLegal Education Society of British Columbia in August, 2012, the authors write, at page 3-220, that this

section “will not affect the caselaw concerning retroactive variations” and I agree that this is a reasonable

interpretation. Section 152 (2) requires that at least one ofthree pre-requisites be present before retroactively varying a child support order. In this case the circumstances of the parties and of thechildren have changed significantly since the making of Judge Burdett’s order in 1994. Clearly the requirements of section 152(2) (a)have been met in this case. [10] The Supreme Court of Canada set out the law pertaining to applications for retroactive variation of child support orders in itsdecision in D.B.S. v. S.R.G. 2006 SCC 37 , [2006] S.C.J. No. 37.

I will summarize the law as set out in this case as follows: 1. With parenthood comes financial responsibility: When a child is born, that child has a right of child support and that right survivesthe breakdown of the relationship. The level of support will vary depending on the income of the payor parent. (See para. 38). 2. The Federal Child Support Guidelines (the “guidelines”) quantify the level of support: Under the guidelines, only two numbers arerelevant: the number of children and the income of the payor parent.

Except for cases of shared custody (where additional considerationsapply), an increase in the payor parent’s income increases the total amount of child support owed. When a payor parent does not increasethe level of child support when his or her income goes up, it is the child who loses. (See paras. 43 to 45.) 3. A parent’s child support obligation will only be enforceable once an application to court has been made.

But this does not mean that achild is without a remedy if a parent does not vigilantly pursue the child’s right to support: Once parents are properly before the court,the court has jurisdiction to make retroactive orders so that if a parent does not adequately defend the rights of the child, the court candefend that right. (See paras. 56 and 60.) 4. Orders for retroactive child support may be made in three situations: (

a) where there has already been a court order made - in suchcases, the court order made should reflect the order which should have been made at the time. (See paras. 62, 68 and 69); (

b) where therehas been a previous agreement between the parties; (

c) where there is no court order. In the third situation, it is difficult for the non-paying parent to show that he or she was meeting his or her obligations to the child, in the absence of special circumstances such ashardship. (See para. 80.) 5. Retroactive child support can only be ordered for a child who is a “child” as defined in the legislation at the time of the application: (See para. 89). 6.

Retroactive orders may not be appropriate in certain circumstances: for example, if the child would get no discernable benefit fromthe award, or if a retroactive award causes hardship to the payor parent, it may not be appropriate for a court to enforce the supportobligation retroactively. (See para. 95). 7. Retroactive awards should not be considered as exceptional: retroactive awards are often justified by the fact that the payor parentchose to bring hardship upon him or herself by not meeting the support obligation due to the child. (See para. 97). 8.

If the payor parent is in arrears under the existing order, the factors against making retroactive orders are less likely to apply. (Seepara. 98). 9. Delay in making an application for retroactive child support is a consideration, but delay does not automatically rule out a retroactiveorder: Delay may be excused in the following cases: (

a) if the applicant harboured justifiable fears that the payor parent would reactvindictively to the application to the detriment of the family; (

b) if the applicant lacked the financial ability to bring the application; (

c) ifthe applicant experienced emotional impediments to bringing the application; (

d) if the applicant received inadequate legal advice. (Seepara. 101.) 10. Delay in applying for retroactive child support is less likely to be excused if the applicant knew that higher child support waswarranted, but chose not to apply for it arbitrarily: (See para. 101). 11. There are two main factors against awarding retroactive child support: (

a) the payor parent’s interest in certainty – if the payor parentinforms the applicant of income increases in a timely manner and is not otherwise blameworthy, a retroactive order is less likely (seepara. 102); (

b) the recipient parent should not be encouraged to delay seeking appropriate support for the child (see para. 103). 12. Child support is the right of the child and cannot be waived by the recipient parent: therefore delay does not eliminate the payorparent’s obligation; it is merely a factor for the court to consider in exercising its discretion to make a retroactive order (see para. 104). 13.

Each parent’s behaviour should be considered in balancing the competing factors for and against retroactive orders: courts shouldtake an expansive view of what is blameworthy conduct, which is defined as “anything that privileges the payor parent’s own interestsover his/her children’s right to an appropriate level of support (see para. 106) 14.

A payor parent who does not increase support automatically is not necessarily guilty of blameworthy conduct: the gap between whata parent should be paying and what that parent actually is paying, in a good indicator of whether or not blameworthy conduct exists, witha small gap suggesting no blameworthy conduct and a large gap suggesting blameworthy conduct (see para 108). 15.

The present circumstances of the child must be considered in the exercise of the discretion to award retroactive child support: a childenjoying a high standard of living will benefit less from a retroactive award than a child who is in need (see paras. 111 and 113. 16. A court must also consider any hardship that will result from a retroactive award in exercising its discretion: for example, if a

retroactive award adversely affects a payor parent’s other children, this must be considered. Hardship of a payor parent is less of a concern if it results from his or her blameworthy conduct. (See paras. 115-116). 17. When should a retroactive order commence? : There are four options: (

a) the date when the application was made; (

b) the date when formal notice was given to the payor parent; (

c) the date when effective notice was given to the payor parent; or (

d) the date when the amount of child support should have increased. As a general rule, the proper date is the date of effective notice. (See para. 118). The first two options should not be selected because parents should not be penalized for using an application to court as a last resort. (See para 120). 18. The “effective date” is the date when it was indicated to the payor parent that child support needs to be recalculated : (see para. 121). 19.

The date when child support should have increased is a fairer option when the payor parent has engaged in blameworthy conduct : once a payor parent engages in blameworthy conduct, he or she can no longer assume that the child’s support entitlement is being met (see para 124). 20. Examples of blameworthy conduct : (

a) where the payor parent intimidates the recipient parent; (

b) where the payor lies to the recipient; (

c) where the payor withholds information; (

d) where the payor fails to disclose an increase in income from which one would expect to alter the child support payable (see para. 124). 21. Blameworthy conduct will move the presumptive date of retroactivity to the time when circumstances changed materially : (see para. 124). 22.

In the majority of circumstances, a retroactive order will be limited to three years, provided that the payor parent has acted responsibly and has not engaged in any blameworthy conduct : but if the payor parent has not disclosed any changes in circumstances such as increased in income, the presumptive date of retroactivity should be moved back to the date when circumstances changed materially (see para. 125). 23.

In fixing the amount of retroactive child support, the guidelines should generally be followed : if the date of retroactivity is not prior to May 1, 1997 (when the guidelines came into force) the guidelines should be followed. However courts ordering retroactive support pursuant to provincial statutes have greater flexibility in tailoring the award to fit the circumstances (see para. 127). The presence of undue hardship can yield a lesser award (see para 128).

A court can also adjust the effective date if there has been unreasonable delay in bringing an application after effective notice was given (see para. 130) 24. The Supreme Court of Canada suggests that a general discretion exists concerning the amount of a retroactive award : at para. 130 the court states “unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case.” 25.

Summary of factors for a court to consider in applications for retroactive child support : in considering these applications, a court should look at all of the relevant circumstances. The payor parent’s interest in certainty must be balanced with fairness to the child. The court should consider if the applicant has supplied a reasonable excuse for any delay, as well as the conduct of the payor parent, the needs and circumstances of the child and any hardship occasioned by the granting of a retroactive order (see para. 133.) [ 11 ] The concluding paragraph (135) of the court’s

summary of the law sums up the difficulty with the problem posed by applications for retroactive child support, and the responsibility of parents to insure that they continue to support their children to the level that the children are entitled: “The question of retroactive child support awards is a challenging one because it only arises when at least one parent has paid insufficient attention to the payments his/her child was owed. Courts must strive to resolve such situations in the fairest way possible, with utmost sensitivity to the situation at hand.

But there is unfortunately little that can be done to remedy the fact that the child in question did not receive the support payments (s)he was due at the time when (s)he was entitled to them. Thus while retroactive child support awards should be available to help correct these situations when they occur, the true responsibility of parents is to ensure that the situation never reaches a point when a retroactive award is needed. (Emphasis added). Application of the Law to These Facts 1.

Should a Retroactive Order Be Made for Child Support? [ 12 ] The parties were married on October 23, 1993 and separated on June 6, 1994. It is the Applicant’s evidence that the relationship was a violent one and that the Respondent was physically abusive towards her. She testified that on the day she was leaving the relationship, an altercation ensued and the Respondent slapped the phone out of her hand and scratched her face, leaving a welt. The Respondent denies this.

He says that he “never laid a hand on her” throughout the time of their cohabitation and was never physically abusive to her or the children. [ 13 ] The Applicant testified about five other incidents in which the Respondent was either threatening, belligerent or behaved bizarrely towards her. The Respondent denied each of these incidents and there is nothing in the way of independent evidence to give any guidance about who is telling the truth about these incidents.

Both parties agree that around Christmas of 1994 the Respondent called the police to enforce his access order and both of the parties concede that communication between the two of them has always been a problem. According to the Respondent, the two of them are “about equal” in their antagonism towards one another. [ 14 ] The Applicant gave this evidence in support of her contention that she delayed in bringing her application for retroactive child support because she harboured justifiable fears for her safety and did not wish to antagonize the Respondent.

This is somewhat at odds with other portions of her evidence in that there were times when she did contact the police, and once, in February of 1995 she brought an

application before this court to change the order of Judge Borowicz from one of joint custody to one of sole custody in favour of herself. This suggests that at that point in time she was not intimidated by the Respondent to a degree that would have prevented her from raising such an emotionally charged issue. [ 15 ] The parties also appeared before the Supreme Court later in 1995. At that time both of them consented to a divorce order (entered on September 29, 1995).

The Respondent swore a “Child Support Fact Sheet” which acknowledged that Judge Burdett’s order was in place, but that there was no order for the support of the youngest child. [ 16 ] The passage of time and the lack of any independent evidence make it difficult to assess whether or not the Applicant was justified in not applying to increase the child support because of fear of violent retaliation. As time progressed, it is clear that the Applicant became a stronger person.

She had been in receipt of social assistance benefits at the time of the divorce, but subsequently she was able to return to school and build a career for herself. She obtained her G.E.D. in 2001, then took was able to become a Registered Nurse and began working in that career in December of 2004. She has remarried and gave birth to another child in April of 2008. [ 17 ] The Applicant testified that, in part, her fear of brining an application for increased child support was that the Respondent would challenge her fitness to parent and she would lose the care of the children.

It is clear from the evidence that over time the Applicant experienced a transformation both in her ability as a parent and in her confidence and strength of character. It is difficult to identify precisely when this took place, but the evidence supports the conclusion that any fear she had of the Respondent which prevented her from applying for an adjustment of the child support order had subsided significantly long before she brought her application for retroactive maintenance.

The evidence in this case does not support a finding that her delay is justified on the grounds of fear of violence. [ 18 ] This does not end the matter however. Delay may also be excused when the payor parent is guilty of blameworthy conduct. There are a couple of glaring areas in which the Respondent has conducted himself in a manner worthy of blame. The first comes from the fact that for over a decade, while his income continued to rise, he did not even pay the Applicant the meagre $100 per month child support payment ordered by Judge Burdett.

The second is that he did not disclose to the Applicant the fact that his income was steadily rising from the $1140 per month ($13,680 for 12 months) that he reported to the Supreme Court in 1995 at the time of the divorce, to $23,069 the following year, and to its current level of over $56,000. [ 19 ] On the first of these instances of blameworthy conduct, the Supreme Court of Canada has said that if the payor parent is in arrears, the factors against the making of a retroactive order are less likely to apply.

Blameworthy conduct is “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate level of support” and here the Respondent did not even make the $100 per month to his children. He applied all of his income to himself while he watched his children grow up in a home subsisting initially on social assistance benefits. [ 20 ] The Applicant testified that the Respondent stopped making child support payments in 1998.The Respondent says that he paid until 2000.

The best evidence to resolve this conflict in evidence is found in the Respondent’s tax returns, which shows that the last time he claimed a deduction for child support was in 1997. But little turns on the exact year, the point is that for many years he paid the Applicant no child support. He was also able to produce cancelled cheques showing that he paid the Applicant $50 from June to December of 2011 for a total of $350. [ 21 ] The Respondent is unable to offer any valid justification for why he did not meet his court-ordered obligation to his children for all of these years.

When the question was put to him, his response was “I agree. I owe her arrears.” The Respondent’s action of paying no child support for over a decade when the Applicant was struggling to support the children on a very modest income, when he was earning a good income, clearly meets the definition of blameworthy conduct. [ 22 ] The Supreme Court of Canada has also said that blameworthy conduct exists where the payor parent fails to disclose an increase in income from which one would expect to alter the child support payable.

The evidence in this case shows that the Respondent has not disclosed any increase in his income to the Applicant since 1995. He testified that this is because he was never asked to do so. This answer ignores his obligation to his children. It is the children who are the ones being cheated and being hurt by the non-disclosure. [ 23 ] The Applicant was able to obtain the Respondent’s income tax information for the years from 1996 to 2012.

According to the “Child Support Fact Sheet” sworn by the Respondent in the Supreme Court at the time of the divorce, his annual income for 1995 was $1140 per month (which translates to $13,680 for a year).

The table below sets out the Respondent’s income in each subsequent year, the guideline amount owing for three children (starting in 1997 when the guidelines came into force), and the amount that the Respondent actually paid for child support. (In the disputed years, the amount of child support credited as paid is taken from what the Respondent declared on his income tax return): YEAR RESPONDENT’S INCOME GUIDELINE FOR THREE CHILDREN AMOUNT PAID BY RESPONDENT 1996 $23,069 n/a $1200 1997 $29,738 $593 x 12=$7,116 $600 1998 $32,692 $629 x 12=$7,548 $0 1999 $27,020 $534 x 12=$6,408 $0 2000 $33,130 $636 x 12=$7,632 $0 2001 $34,014 $650 x 12=$7,800 $0 2002 $35,011 $670 x 12=$8,040 $0 2003 $34,199 $652 x 12=$7,824 $0 2004 $38,795 $726 x 12=$8,712 $0 2005 $38,164 $716 x 12=$8,592 $0 2006 $46,248 $849 x 4=$3,396 $921 x 8=$7,368 $0

2007 $52,588 $1,043 x 12=$12,516 $0 2008 $37,754 $766 x 12=$$9,168 $0 2009 $51,835 $1,028 x 12=$12,336 $0 2010 $58,574 $1,158 x 12=$13,896 $350 2011 $48,472 $964 x 12=$11,580 $0 2012 $56,842 $0 [ 24 ] This table illustrates that the Respondent’s non-disclosure of the increases in his income meant that the children were being denied a level of support available to other children in Canada whose payor parents had a comparable income to that of the Respondent. [ 25 ] The evidence shows that the Respondent is unable to claim hardship as an excuse for failing to support his children.

He has two other children from another relationship, but he was not making any child support payments for either of them. When one of these children was an adult, he chose to pay a significant portion of her post-secondary school expenses, while ignoring his obligation to the children who are the subject of this application. He estimates that this generous act may have cost him between $22-25,000 which he was able to afford by taking out a home equity loan. He purchased three dirt bikes for the children in 2001.

Then in January of 2012 he spent between $13-14,000 to take his three daughters on a vacation to Mexico. He purchased a car for his son J.G.A. All of this was done while he was ignoring his support obligations to his children. He also received two separate inheritances of approximately $10,000 each, and a disability payment of about $8600. None of these lump sum obligations were used to meet any of his child support obligations.

It can not be said that the Respondent’s failure to live up to his child support obligations arise out of any hardship. [ 26 ] Blameworthy conduct has clearly been shown on the part of the Respondent, firstly from his failure to pay any child support for a number of years, in spite of his having the ability to do so and secondly from his failure to disclose increases in his income which would have significantly affected the amount of support owed to his children.

The Supreme Court of Canada has said that if the payor parent has not disclosed any changes in circumstances such as increased in income, the presumptive date of retroactivity should be moved back to the date when circumstances changed materially. In this case that would suggest that the date of retroactivity should commence in 1997.

As the court stated in D.B.S. , this date is a fairer option when the payor parent has engaged in blameworthy conduct. [ 27 ] On a consideration of the evidence, the Applicant’s explanation for her delay in bringing this application offers little excuse for the delay, although some of this can be attributable to her fear of losing care of the children and her transition from someone dependent on the government for support into someone capable of standing up for herself. The Supreme Court of Canada stated in paragraph 99 that no single factor is decisive on the issue of retroactivity.

Here it is the blameworthy conduct of the Respondent, and the injustice arising from his failure to assist in meeting the needs and circumstances of the children when he clearly had the ability to do so, that justify the making of a retroactive order for child support.

Any hardship occasioned by the granting of a retroactive order is offset by the conduct of the Respondent in choosing to prefer his own needs to the needs of these children, and in spending money on many extravagances rather than meeting his basic obligation to the children. [ 28 ] If the Respondent had at least followed Judge Borowicz’s order and paid the modest $100 per month to the Applicant, he would be in a much better position to argue against the making of a retroactive order.

But as was observed by the Supreme Court of Canada, little can be done to remedy the fact that these children did not receive the support payments which were due to them at the time when they were entitled to them. A retroactive child support award is all that is now available to help correct this problem which has arisen because the Respondent chose not to meet his parental responsibility. 2. For Which Children Should a Retroactive Order Be Made? (

a) J.G.A. [ 29 ] The Supreme Court of Canada held that a retroactive order can only be made for a child who is a “child” as defined in the relevant child support legislation at the time of the application. The parties both agree that J.R.A. was not a child according to the legislative definition at the time this application was brought, that this continues to be the case and therefore no order can be made for retroactive support for her. [ 30 ] The parties disagree about J.G.A.’s status. J.G.A. was born on December 10, 1991 and is now 21 years of age. He attends the University of British Columbia.

He had originally planned to work towards a medical degree, but his academic performance failed to meet the required standard. He is working toward completing his Bachelor of Science degree, majoring in chemistry, and is now planning a career in teaching. J.G.A. resides with the Applicant during the months that he is not in school. The Applicant has paid for J.G.A.’s tuition and for a portion of his rent for the time that he lives off campus.

For seven months in 2010 the Respondent paid the applicant $50 per month which was supposed to represent a portion of J.G.A.’s rent. (This sum has been credited against the arrears of maintenance in the table following paragraph [23] above.) [ 31 ] Under the Family Law Act, when it comes to the matter of child support, a “child” is defined in

section 146 as including: “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.” [ 32 ] This definition is virtually the same as the one that existed previously under the Family Relations Act. That definition, contained in

section 87 of that Act, defined a child as including: “a person who is 19 years of age or older and, in relation to the parents of the person, is unable because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”

[33] The new legislation does not appear to have changed the law respecting whether or not a child past the age of majority remainsa child for the purposes of receiving child support. The issue is especially relevant in this case because if the Respondent is correct in hiscontention that J.G.A. was not a child within the meaning of

section 146 of the Family Law Act at the time that this application wasbrought, then the Applicant is not entitled to apply for retroactive child support in respect of J.G.A. [34] In determining whether or not an adult child in attendance at a post-secondary institution or not, the courts of this province havelooked at a number of factors. These have been set out in decisions of British Columbia courts such as Darlington v. Darlington (1997) (BC CA), 32 R.F.L. (4th) 406 (BCCA); Farden v. Farden (1993) (BC SC), 48 R.F.L. 60 (BCSCMaster), and McNulty v. McNulty

(1976) R.F.L. 29 (BCSC). These factors are as follows:

(1) Is the child is enrolled in a course of studies and if so, it is on a full time or part time basis?

(2) Has the child applied for, or is he eligible for student loans or other financial assis​tance?

(3) Are the career plans of the child reasonable and appropriate or is he simply going to university because there is nothing better to do?

(4) Is the child able to contribute to his own support through part-time employment?

(5) What is the age of the child?

(6) What is the child's past academic performance and is he demonstrating success in the chosen course of studies?

(7) What plans did the parents make for the education of their children, particularly during the time of their cohabitation?

(8) Has the child has unilaterally terminated a relationship from the parent from whom support is sought? [35] Counsel for the Respondent raised an objection on the basis that J.G.A. did not give any evidence in the hearing before me. TheBritish Columbia Court of Appeal has held, in Darlington, supra, at paragraphs 13 and 14 that this is not fatal to the application. Onmany of the factors, the evidence is either not in dispute, is supported by records that may be admitted by a relaxation of formal rules ofevidence as permitted by

section 199 of the Family Law Act, or relates to matters and discussions that the children were not privy to. Thefailure to call J.G.A. as a witness is not an impediment to this application. [36] The evidence satisfies me that J.G.A. is embarking on a full-time course of study in pursuance of a reasonable career path.While he has had to change his original plans of attending the college of medicine, his new goal of becoming a teacher is a reasonableone and not frivolous.

The Applicant has provided credible documentary evidence showing the cost of J.G.A.’s tuition and rent duringthe school year, as well as his income tax returns. These demonstrate that the degree to which J.G.A. is able to support himself whileattending school is inadequate to meet the cost of his education. The evidence also supports a reasonable inference that requiring J.G.A.to work longer to support the cost of his education will adversely affect his academic performance. [37] J.G.A. has not applied for student loans to finance his education.

It is his mother who has gone into debt in order to pay for hiseducation. She has done so by incurring credit card debt as well as a Royal Bank of Canada line of credit. While this was taking place,the Respondent was using money that should have been earmarked for child support to pay for the post-secondary education of hisdaughter from a different relationship rather than treating all of his children equally.

He has also played the role of the Santa Claus parentby buying J.G.A. a car rather than applying that money towards the arrears of child support or J.G.A.’s tuition. [38] The parties disagree about what discussions they had about the children’s education when they were living together. At the timetheir financial means were limited and it is unlikely that they would have been capable of making realistic plays at that time. They didnot have the means to contribute to a Registered Education Savings Plan. This is also not a case where J.G.A. has terminated hisrelationship with his father.

The Respondent’s failure to live up to his court-ordered support obligation does not appear to have adverselyaffected the relationship between father and son. [39] On a review of the considerations set out in the case law, I am satisfied that J.G.A. is a child within the meaning of

section 146of the Family Law Act. He is in the midst of a full-time course of study that is reasonable and appropriate, one which he is unable tofinance through part-time work.

The Respondent has shown an ability to come up with large sums of money for vacations, educationalexpenses for another child and for the purchase of a newer model car which suggests that he can afford to assist J.G.A. with this expense.All of this leads me to conclude that J.G.A. falls within this definition and therefore the Applicant may bring this application for aretroactive variation of J.G.A.’s child support. [40] Just because the Applicant can apply for a retroactive variation, this does not automatically entitle her to do so.

However on aconsideration of the factors set out by the court in D.B.S., I conclude that a retroactive variation of child support for J.G.A. is appropriateand just for the reasons previously set out in paragraphs [27] and [28]. [41] The Respondent argues that he should be credited for money that he gave directly to J.G.A. or for other expenses that he paidfor J.G.A.. This argument is answered in the British Columbia Supreme Court decision of Earle v.

Earle (BC SC),[1999] BCJ No. 383, where Madam Justice Martinson, in response to the suggestion from a non-paying parent that “I spent a lot ofmoney on my children, even though I was not paying all that was required by the court order”, wrote: [42] This does not provide a valid legal excuse for not paying maintenance and does not provide a reason for reducing or cancellingarrears. Maintenance for children is required for many reasons and it is up to the parent who is entitled to receive it, not the person whois required to pay, to decide how it should be spent in the best interests of the children.

(

b) J.R.A. [ 42 ] The Applicant concedes that J.R.A. is no longer a child within the meaning of

section 146 of the Family Law Act. J.R.A. is 20 years of age and is working full time. The issues concerning J.R.A. have to do with fixing a proper amount of arrears of maintenance. There was a period of time when J.R.A. was not living at home with the Applicant and a time when she was living with the Respondent. The Respondent paid the Applicant no child support for J.R.A. for half of 1997 until her she reached the age of majority in December of 2011, a period of fourteen and a half years or 174 months at $50 per month (for a total of $8700).

The question is by what amount should this be reduced in order to properly credit the Respondent? [ 43 ] J.R.A. is living in the Applicant’s home. She holds two part-time jobs, one at a store that sells chocolate and the other at a program that assists at-risk youth. J.R.A. had some personal struggles with addiction and behavioural issues when she was a teen. She left home when she was 15 and for a time was living in the home of a school friend. The Respondent agrees that J.R.A. was 14 or 15 when she left home.

His recollection is that she lived with her friend from between 4 to 6 months, and then lived at his home for between 8 to 10 months. She left again for a number of months and returned to his place. He estimates that J.R.A. lived with him for over two years in total, leaving his home in the fall of 2010. [ 44 ] The Respondent’s brother Philip A. lives with the Respondent and is well-regarded by the children as their Uncle Phil. His recollection is that J.R.A. came to live with the Respondent when she was 15 and that she moved out just before her high school graduation.

He believes that she lived with the Respondent for about two and a half years. This is the Respondent’s recollection as well. While there is no clear record of the time spent, the evidence of Philip A. tips the balance of probabilities in suggesting that the Respondent’s estimate of the time that J.R.A. was in the home is more likely accurate in this case.

The arrears of child maintenance owing by the Respondent to the Applicant will be fixed at $7200 representing 144 months at $50 per month. (From the total period of fourteen and a half years or 174 months, I have subtracted the two and a half years or 30 months that J.R.A. lived with her father.) (

c) J.L.A. [ 45 ] J.L.A. was born on [d.o.b.]. She was born after Judge Burdett’s order was made ordering the Respondent to pay child support for J.G.A. and J.R.A. No court order has ever been made for child support in respect of J.L.A. J.L.A. has just turned 18 years of age. In October of 2011 J.L.A. decided that she wanted to try and live with the Respondent for half of the time and that has been her routine since then. The Respondent’s evidence differs somewhat in that he says that J.L.A. is living under his roof for most of the week. [ 46 ] The Applicant is asking for retroactive child support for J.L.A..

There is no existing order for child support applicable to J.L.A. and this is the third situation referred to in paragraph 80 of the Supreme Court of Canada’s decision in D.B.S. There the court said that it is unreasonable for a non-paying parent such as the Respondent to believe that he was meeting his obligation to support this child by paying noting in the way of child support for the child.

As the court said at paragraph 83, by making an original retroactive order for J.L.A.’s support, the court is not creating a new obligation for the Respondent, it is recognizing one which always existed, but which was ignored by the Respondent. [ 47 ] In order to make a retroactive order for J.L.A.’s support, she must be a child within the meaning of

section 146 of the Family Law Act , which she is because she has not reached the age of 19 yet. As with the other children, the injustice of not making an award for J.L.A. arises from the fact that it is the Applicant who has shouldered the burden of J.L.A.’s care, and who has been responsible for the cost of housing, feeding and clothing J.L.A. for most of her life. For much of that time J.L.A. was forced to live in a household in poverty while the Respondent enjoyed a good standard of living which he kept from his children.

It is unfair to leave the Applicant deeply in debt while excusing the Respondent for failing to meet his parental support obligation for J.L.A. [ 48 ] A retroactive award will also provide a discernable benefit to J.L.A. as contemplated in paragraph 95 of the Supreme Court of Canada’s decision in D.B.S. J.L.A. has goals of pursuing post-secondary education with a view to becoming a veterinarian. The Applicant has already amassed considerable debt in helping J.G.A. and J.R.A. and an award of retroactive maintenance would enable her to do the same for J.L.A. A retroactive order is justified on these facts.

The duration of that order should be from the time of J.L.A.’s birth until the time when she began to divide her time between the two homes. I calculate this to be a period of 16 years and 4 months, or 196 months. However I also take into account that the Federal Child Support Guidelines did not come into effect until May 1, 1997. For the period from J.L.A.’s birth until the time when the guidelines came into effect, I will treat her the same way as the other children and limit the retroactive award to $50 per month. 3.

What amount should be fixed for retroactive and ongoing child maintenance? [ 49 ] In D.B.S. , the Supreme Court of Canada said that in making a retroactive award, the court should do so in accordance with the Federal Child Support Guidelines, but that a discretion exists to adjust the amount because of undue hardship, or because of the discretion legislated in the guidelines in section 3 (2) (adult children),

section 4 (parents with incomes over $150,000, not applicable here) and

section 9 (shared custody). [ 50 ] I have determined that it is appropriate to make a retroactive order respecting J.G.A. and that the appropriate date of commencement of the order is halfway through 1997 when the Respondent stopped making his child support payments under Judge Burdett’s order. This is in keeping with what the Supreme Court of Canada has set out in paragraph 124 of D.B.S. I have also directed that a retroactive order should be made for J.L.A. commencing from the date of her birth.

Calculating the amount of the orders will require considerable mathematical gymnastics because of the ongoing changes in the Respondent’s income, changes in the Guidelines over the years, and the operations of the guidelines themselves. In the case of J.R.A., I have concluded that a retroactive order can not be made concerning her because she is no long a child within the meaning of

section 146 of the Family Law Act. However the Respondent is still responsible for the arrears owing in respect of J.L.A. under Judge Burdett’s order. [ 51 ] In applying the Guidelines for the retroactive period, I have based the retroactive award as if J.R.A. were discounted for the calculation (except to the extent of the $50 per month ordered by Judge Burdett). The Respondent’s obligation to the remaining children

is calculated on the basis of an award limited to that number of children (i.e. one or two depending on whether or not J.L.A. was living at the Respondent’s home). The figure for J.L.A. represents the retroactive order based in the guidelines, only up to the time that she began residing in both residences. In accordance with

section 9 of the guidelines no order for ongoing maintenance is being ordered for J.L.A. after September of 2011.

For the time between J.L.A.’s birth (in May of 1995) and the time that the Guidelines came into force (May 1, 1997) I have fixed the amount of the Respondent’s child support for J.L.A. at $50 per month, (consistent with what was ordered for the other children.) I have assumed the two and a half year period that J.R.A. was living with the Respondent to be 2008, 2009 and the first half of 2010. (This may not be precise, but it approximates the evidence of Philip A., and even if it is imprecise as to the exact months, it will not affect the final calculation). [ 52 ] Accordingly, I calculate the combined amount of retroactive child maintenance and arrears of child maintenance owing by the Respondent to the Applicant as set out in the table below: Year Respondent’s Income Owing for J.G.A.

Owing for J.R.A. Owing for J.L.A. Total Owing 1995 unknown $350 $350 1996 unknown $600 $600 1997 (Jan.

To April) $200 $200 1997 (May to Dec.) $29,738 $230 x 8= $1,840 $300 $230 x 8= $1,840 $3,980 1998 $32,692 $253 x 12= $3,036 $600 $253 x 12= $3,036 $6,672 1999 $27,020 $210 x 12= $2,520 $600 $210 x 12= $2,520 $5,640 2000 $33,130 $256 x 12= $3,072 $600 $256 x 12= $3,072 $6,744 2001 $34,014 $263 x 12= $3,156 $600 $263 x 12= $3,156 $6,912 2002 $35,011 $269 x 12= $3,228 $600 $269 x 12= $3,228 $7,056 2003 $34,199 $264 x 12= $3,168 $600 $264 x 12= $3,168 $6,936 2004 $38,795 $297 x 12= $3,564 $600 $297 x 12= $3,564 $7,728 2005 $38,164 $292 x 12= $3,504 $600 $292 x 12= $3,504 $7,608 2006 (Jan. to April) $46,248 $354 x 4= $1,416 $200 $354 x 4= $1,416 $3,032 2006 (May to Dec.) $46,248 $331 x 8= $2,648 $400 $331 x 8= $2,648 $5,696 2007 $52,588 $378 x 12= $4,536 $600 $378 x 12= $4,536 $9,672 2008 $37,754 $271 x 12= $3,252 $0 $271 x 12= $3,252 $6,504 2009 $51,835 $373 x 12= $4,476 $0 $373 x 12= $4,476 $8,952 2010 $58,574 $422 x 12= $5,064-$350 =$4,714 $300 $422 x 12= $5,064 $10,078 2011 (Jan. to Sept.) $48,472 $348 x 9= $3,132 $450 $348 x 9= $3,132 $6,714 2011 (Oct. to Dec.) $48,472 $410 x 3= $1,230 $150 $0 $1,380 2012 $56,842 $525 x 12= $6,300 $0 $0 $6,300 2013 (Jan. to May) $56,842 $525 x 5= $2,625 $0 $0 $2,625 Totals $61,417 $7,200 $52,762 $121,379 [ 53 ] Based on the foregoing calculations and the application of the law regarding retroactive child support to these facts, I am retroactively ordering the Respondent to pay for the support of his children.

I fix the amount of the arrears owing at $121,379. [ 54 ] I have found that J.R.A. is no longer a child within the meaning of

section 146 of the Family Law Act and accordingly the Respondent is not under an obligation to provide for her ongoing support at this time. I have also found that, while J.L.A. is dividing her time between each of her parents’ homes, the Respondent is also not required to provide for her ongoing support. As far as J.G.A. is concerned, I have found that he continues to be a child as defined in

section 146 and the Respondent’s support obligations in respect of J.G.A. continue. I will make an order setting the level of support for J.G.A. to correspond to the Respondent’s current income.

[ 55 ] While these orders will present the Respondent with tremendous financial challenges, it must be remembered that this is not something that is being done to him. This is something that he has brought upon himself. For many years he unfairly placed the financial burden of raising these children on the Applicant at a time when he had a good income and she was on social assistance. He spent his money on extravagances such as expensive vacations rather than pay his child support, and even when he came into inheritances, he kept ignoring his obligation to support his children.

This order represents an accounting for past selfish choices made by the Respondent, to the detriment of his children. 4. Special Expenses [ 56 ] The Applicant asks for an order for special expenses pursuant to

section 7 of the Federal Child Support Guidelines. Included in this claim, she seeks reimbursement for the children’s cellular telephone bills and some of J.L.A.’s graduation expenses as well as some of J.G.A.’s expenses for attending school. I am declining to make any order for special expenses for a number of reasons. Firstly, the Respondent will be paying child support for J.G.A. well past his 19 th birthday in order that J.G.A. can continue to attend university. An order that he also pay special expenses would be tantamount to making him pay twice for the same cause. Also, many of the expenses claimed by the Applicant are not special expenses under

section 7. That

section reads as follows: 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: (

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

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

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

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

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities.

(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 the extraordinary expenses can reasonably cover, taking into account that spouse’s income and 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; or (

b) where paragraph (

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

i) the amount of the expense in relation to the income of the spouse requesting 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 extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant. [ 57 ] In this case, considering the means of the parents, I find that it is not reasonable that an order be made, especially in light of the fact that the Respondent must now pay the retroactive order. Cell phone bills and graduation costs do not fall within the definition of extraordinary expenses under these circumstances. There is nothing extraordinary about them, and the needs of the children ought to be able to be met from the remaining orders which have been made. The application for payment of extraordinary expenses is refused. Order [ 58 ] For the foregoing reasons, it is ordered as follows: (

a) The application for retroactive child support for the children J.G.A., born (d.o.b.) 1991 and J.L.A., born (d.o.b.) 1995 is granted. (

b) The total amount owing by the Respondent G.E.A. to the Applicant D.M.P. for retroactive child support as aforesaid and for arrears of maintenance owing under the order of the Honourable Judge Burdett on September 20, 1994 for the children J.G.A. and J.R.A. is fixed at $121,379. This Respondent shall pay this sum to the Applicant on terms as agreed between the parties, or, failing such agreement, by paying the sum of $1200 per month on the 1 st day of each month commencing June 1, 2013, or on such other terms as ordered a Judge of this Court.

(

c) The Respondent having now been found to have an annual income, for the purpose of the Federal Child Support Guidelines in the sum of $56,842, he shall pay to the Applicant for the support of the child J.G.A. the sum of $525 per month payable on the 1 st day of each month commencing June 1, 2013 and continuing on the 1 st day of each month thereafter for so long as J.G.A. remains a child within the meaning of

section 146 of the Family Law Act or until further order of this court; (

d) The application brought by the Applicant for an order requiring the Respondent to pay special or extraordinary expenses pursuant to

section 7 of the Federal Child Support Guidelines is dismissed. Dated at the City of Abbotsford, in the Province of British Columbia this 22 nd day of May, 2013. ________________________________ (The Honourable Judge K. D. Skilnick)