K.C. v. D.C. Date:, 2012 BCPC 119

Citation: K.C. v. D.C. Date: 20120403 2012 BCPC 0119 File No: F3630 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: KC APPLICANT AND: DC RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DE COUTO Counsel for the Applicant: G. Liard

Appearing on their own behalf: The Respondent, D. Curtis Place of Hearing: Port Coquitlam , B.C. Date of Hearing: April 3, 2012 Date of Judgment: April 3, 2012 [ 1 ] THE COURT: Mr.

C., this is an application brought on by you to vary or cancel the arrears that have accumulated over a period of time when you were unable to meet your obligations. [ 2 ] You have, today on the stand, described that background history during the course of which the arrears accumulated and you provided a number of documents in support of your position and your views, your approach, your philosophy, and your calculations. [ 3 ] But at the end of it all, you do not disagree that there were moments in time when you did not meet your obligations or the expectation placed on you to pay child support, in the amount agreed upon, by way of a consent order and you do not disagree that, as a result, there is an amount outstanding.

You have, I think throughout, candidly and readily admitted that. [ 4 ] What you do ask for is the Court to take into consideration the circumstances that you explained to the Court today and you seek the Court's indulgence in relieving you of that responsibility in whole or in part. [ 5 ] I think by and large, the amount of the arrears is not that much in dispute. I think you said it was your understanding the amount was $9,100.

The Family Maintenance Enforcement Program's amount came up to I think $9,558, so there really is not that much of a discrepancy as to the amount owing. [ 6 ] The real issue before me is whether or not, based on the circumstances you described, I should find those circumstances meet the standard for either cancelling or varying those arrears. [ 7 ] Counsel who is here on behalf of Ms.

C. does not take issue with your description of yourself as a good and caring father, a hard and dedicated worker unwilling to sit idly by, doing your best to seek and maintain employment at capacity and that during difficult times you actively sought employment. I do not think he takes issue with the fact that it was not easy for you, but that you persisted, and I do not think he takes issue with the fact too that you persisted because you felt there was an obligation to try to meet your commitments, one of them being child support. [ 8 ] Counsel for Ms.

C. says, notwithstanding all of that and the efforts you have put into it, the circumstances which you advanced in seeking the change do not meet the very high standards which have been applied in the past in setting aside or varying arrears. [ 9 ] He argues also, that while it may well be that during those difficult months in the years gone by when you were unable to pay your child support that those may well have been in themselves a material change in circumstance from the other times when you were paying maintenance, and that the situation is vastly different in a positive way today in the sense that the evidence suggests that you are now working, although not for a long period of time, but nonetheless in a relatively "stable employment" at an income of $50,000 and that that should be a consideration. [ 10 ] One of the arguments raised by you and counsel in terms of the calculation of what is owed, is the calculation of your income in a number of years specified, and that was with respect to the declaration or your non-declaration as income of benefits received under Employment Assistance.

I can understand your approach, Mr. C., and say "Look, okay I received it but I had to turn around and pay it right back" so you know it was a debt.

On the other side arguing, in a very technical way I suppose for purposes of calculation, it was income even though it may be even the very next day it went right out of your hands. [ 11 ] I think from my perspective in considering it from a retroactive point of view, the determination of income in terms of ascertaining the arrears and capability to earn what goes in and goes out right away without any significant or real benefit to you, maybe except in passing, is in my view not a real benefit.

For your purposes, in this particular case, I am going to exclude that as an income benefit that ought to have been disclosed, and I say that on the basis that as a result I am satisfied that your charts and your income that you disclosed, you disclosed appropriately. [ 12 ] I think the far more significant question is should I vary or cancel the arrears? [ 13 ] For assistance, I am going to look back at a reference textbook called the "Annotated Family Practice 2010-2011" for guidance in addition to the one that was referred to by counsel.

Some of the cases mentioned under what is called s. 96(2) of the Family Relations Act refers to an application made, much like by yourself, to reduce or cancel arrears under a maintenance order. The

section reads: 96(2) If an application is made to reduce or cancel arrears under a maintenance order, the court may reduce or cancel the arrears but only if it is satisfied that it would be grossly unfair not to do so. [ 14 ] The question then becomes what does "grossly unfair" in that context mean? Subsection (3) says that:

(3) For the purpose of subsection (2) (which I just quoted), the court may take into consideration (

a) the efforts the applicant [that is you] has made to comply with the maintenance order, (

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

(

c) any special circumstances that the court considers relevant. [15] One of the cases that they make reference to in this book that I am referring to is called Tyler v. Tyler (1996), (BC CA), 24 R.F.L. (4th) 51 which is out of our Court of Appeal in British Columbia. The comments from the

summary of whatthe case involves says that the threshold test for determining if there has been a change in circumstances is whether there has been amaterial and unforeseen change in the means, needs, capacities and economic circumstances of the parties since the original order wasmade. [16] Another case referred to is from the Supreme Court of Canada called Willick v. Willick (1994), (SCC), 6R.F.L. (4th) 161 and the

summary of that case is: "… a material change of circumstances, that is, a change that, if known at the time,would likely have resulted in different terms". Consequently, if the matter to be relied on as constituting a change was known at therelevant time, it cannot be relied on as a basis for variation, but in your case in terms of the unemployment you experienced could nothave been known at the time it happened.

You tried to deal with it as best you could and were stuck with it and at that time clearly thosewere material changes from what the situation had been. [17] As I read this then, the threshold test for determining if there has been a change in circumstances is whether there has been amaterial and unforeseen change in the needs, means, capacities, and economic circumstances of the parties since the original order wasmade.

In this case, then, I take it to mean 1999, and you refer to the change in your circumstances with respect to the certainty andpredictability of employment in 2004, 2005, 2006 or thereabouts. [18] The question now that there were those changes is, is it grossly unfair now to cancel them or vary them? Now, those are thewords used in 1996 in relation to the Court being able to make the change if it is satisfied that it is grossly unfair.

I raised earlier thequestion as to what does that mean, and I referred to subsection (3), and I think it is very important here for the purpose of subsection(2), and I am going to repeat what I just quoted: that the Court may take into consideration (

a) the efforts the applicant has made tocomply with the maintenance order overall; (

b) your delay in applying for it at the time you did it; (

c) any special circumstances that theCourt considers relevant. [19] It seems to me that (

a) and (

c) open the door somewhat wide as to what the Court can consider as relevant and material here inarriving at a determination as to whether or not you ought to or ought not to have the arrears reduced. [20] Your evidence was that during those periods of unemployment you struggled and continued to try to meet your obligationseven to the point of getting the monies and borrowing monies from your parents and paying a portion of your income assistance towardschild support payments. [21] In addition to that, according to the chart, you have at times when circumstances permitted, paid more than what wasnecessary for a particular month, and overall that pattern is consistent with your position that you certainly have made every effortwhenever you could to comply with the maintenance order and that it was when circumstances were really beyond your control thatprecluded you from continuing to pay which resulted, not because of any intent or ill will on your part, in arrears accumulating. [22] I think it relevant in balancing your needs and the current needs of everybody and the previous need of the payee parent andthe children, to consider the special circumstances referred to in subsection (3) as it relates to you. [23] You have described the circumstances at the time the arrears were incurred, the efforts that you made in meeting yourobligations, the efforts you made in continuing to obtain employment and being self-sufficient, that it was very difficult and there weremany obstacles, that many doors were closed, and notwithstanding all of those hurdles that you had to overcome, probably none of themeasy and cumulatively most definitely not so, you continued and persisted.

It was depressing, it was hard, but you kept it up. I thinkthose are special circumstances and despite all of your efforts you did the best you could, and notwithstanding that, the best you couldstill resulted in your inability to maintain fully your obligations. [24] Special circumstances in your current situation are that you have since developed a relationship with another woman and youdescribed her disability and the circumstances that she is under and the difficulty that, as a result, the two of you face on a day-to-daysituation.

I think that constitutes some measure of special circumstances in terms of the overall surrounding circumstances for the Courtto consider in determining if it would be grossly unfair not to reduce or cancel arrears. [25] Certain special circumstances, I think also include in your particular case here, the debt you had to accrue in those times ofneed because of those needs and the fact that you had no other independent source of assistance to enable you to survive.

Those debtsthat you incurred then are only now in the process of being paid off and, as a result, there are still those other obligations that you areunder in addition to child support payments. I think those also may well constitute special circumstances in this particular case. [26] After looking at all of those circumstances, considering all of the evidence, the background, the documents, the records, Ihave to tell you Mr.

C., I am not so persuaded that I should cancel your arrears (completely) because I go on the premise that -- and youheard me say it before -- paying child support is not the right of the parent, it does not belong to the parent, it is not for the parent. It isthe right of the child. It is for the child. It has nothing to do with the parent. Similarly, as a result, it is the responsibility of the parent tomeet that right.

That is the test and I am satisfied that the cancellation of the arrears in total, falls short of the test that was mentioned bythe lawyer with respect to that obligation. [27] However, I think that it is appropriate in considering all of the circumstances today -- this day -- which includes the fact thatboth children right now are self-sufficient, independent, and working full-time, but that does not detract from what -- and notwithstandingwhat you may think or have said about the mother -- there was an element during that period of time when you were not supporting yourchildren that she had to provide that support in some additional way and I think that is important to recognize.

From your perspective itmay not have been much but anything above and beyond that which you did not contribute was extra that she had then to undertake insupport of her two children. [28] I think it is fortunate in terms of both your efforts, but I am going to say today, because I am addressing you as it is your

application, that it was your consistent commitment to being engaged in their lives that they are where they are today. You told me at the very beginning what their aspirations are and I think it is commendable to all of you and I certainly hope that they continue and succeed in those aspirations. With respect to those aspirations, I think you as a parent still have to stay involved. [ 29 ] Going back to the arrears, what I am going to do so that there is a certainty to it, I am going to fix the arrears at $9,100.

I am taking into consideration all of what you have said as well as all of the other things that the lawyer has said. I am going to balance everything out and, as I have said, it is not going to go away completely but what I am going to do is I am going to reduce those arrears by $3,100 from what I have fixed to $6,000. [ 30 ] Now, with respect to paying the arrears, you had entered into an agreement to pay $208.00 until today. Any comments? [ 31 ] MR. LIARD: If they could be paid more expeditiously that would be great to resolve it but -- [ 32 ] THE COURT: What do you say? [ 33 ] MR.

C. : To give an answer on that right now, I would have to say we are struggling to meet what we've got in front of us right now. Although it doesn't sound like a big amount, $208.00, it is a big amount. I've got lots of debts right now. [ 34 ] THE COURT : Well, I tell you what. You have only been there how many months now? [ 35 ] MR . C.: Five. [ 36 ] THE COURT : You know what? I am prepared to review this in maybe four or five months time to see if you are still where you are at, whether things look brighter for you, and see what the situation is.

I will leave it at $208.00, but I am going to suggest -- maybe we can even set it up now, Madam Clerk, for a review date. It shouldn't take very long -- 15 minutes or so. [DISCUSSION BETWEEN THE COURT AND ALL PARTIES CONCERNING SETTING UP REVIEW DATE] [ 37 ] THE COURT: Okay so we will do it September 11th, 2012 at 9:30 a.m. by teleconference. [ORAL REASONS FOR JUDGMENT CONCLUDED]