L.C. v. C.C. Date:, 2015 BCPC 362

Citation: L.C. v. C.C. Date: 20150819 2015 BCPC 0362 File No: F3700 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L. C. APPLICANT AND: C. C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. DYER Appearing on her own behalf: L. C.

Appearing for C.C.: No appearance Place of Hearing: North Vancouver , B.C. Date of Hearing: August 19, 2015 Date of Judgment: August 19, 2015 [ 1 ] THE COURT: On August 8th, 2014, the father, Mr. C., filed an application seeking to have a child support order made on October 1st, 1996, by Judge Burdett varied so as to permit him to pay any child support thereunder required to the child, M., directly and not to the mother as ordered by the court.

To June 2015 and since January 1st, 2009, all monthly payments required by this order were made by him to the mother. [ 2 ] The mother filed a reply on September 12th, 2014, seeking orders for retroactive and prospective child support for M. She claimed that even though M. was residing in Vancouver, that she was then still covering her day-to-day expenses as well as maintaining a home for her.

She also claimed for arrears of Guideline 7 expenses and costs of postsecondary schooling. [ 3 ] During the hearing before me, two main issues emerged: 1. should the mother be able to recover retroactive Guideline 7 expenses commencing in the year, 2001, to date; and 2. should I make an order that certain child support payments the father made to the mother after August 31st, 2013, when M. went to live with her grandparents in Vancouver be repaid by the mother to M.; this would be on the basis that although the mother received the payments, M. received no benefit from them. [ 4 ] The mother met the father when she was 19 and, from November 1994 to March 1995, they had at times an intimate relationship and M. was conceived and later born on [omitted for publication].

The parents never lived together. He was then working with [omitted for publication] in North Vancouver. [ 5 ] She eventually applied for child support. On October 1st, 1996, Judge Burdett made an order that the father pay the mother, as I have said, child support of $250 a month commencing October 1st, 1996.

There was also an order made that they attempt to mediate access through the Family Court Conciliation Service. [ 6 ] On October 29th, 1996, Paradis P.C.J. made an order granting sole custody of M. to the mother and an order that the father have reasonable access to her. [ 7 ] The mother said she only sought the child support order as she wanted to go on social assistance and they insisted she go after the father for child support as a precondition to granting it to her. [ 8 ] The father regularly paid the monthly child support as ordered until December 1999 and then stopped.

He said he did so because after three years of not really seeing M., he decided he wanted to be her father and involved in her life and, when he asked the mother if he might do so, she said she did not want him involved nor did she want any child support from him. He did not involve himself further with her or M. and ceased making child support payments. His counsel admits that even if this version of events, which is denied by the mother, is truthful that he still had a legal obligation to make the child support payments nonetheless ordered by Burdett P.C.J.

I agree. [ 9 ] The mother was then, in 1999, working apparently part-time in a real estate office and going to school. I have been given nothing but the vaguest particulars on point. [ 10 ] When he stopped, she said she made efforts to contact the father or find him without success. They included going to his parents' home twice only to find no one was home. She left no note, but gave evidence she tried to call them by telephone also without success. After several months trying to locate him, she gave up.

She did not seek the assistance of a lawyer or FMEP in finding him so as to have the child support order complied with. She said that, in her view, he had completely disappeared. [ 11 ] He rejects this position. He testified that she knew where he lived immediately after December 1999, that his telephone number was at all material times in the telephone book White Pages under his name, and that he was the only such name in the book.

His parents' business where he has worked since 1999 [omitted for publication] has also been listed in the telephone book with the same business telephone number since the year 1974. [ 12 ] I prefer his evidence to hers on point. I reject the thesis that he went into hiding. I expect the mother did not look very hard for him as she did not want him in M.'s life and was prepared not to pursue him for child support as the quid pro quo for this concession. Again, she only went after him for child support as the welfare authorities insisted she do so as a precondition to her receiving social assistance.

I have no particulars or evidence as to when from M.'s birth to date the mother was receiving social assistance or why. [ 13 ] In November 2001, the mother married one R. M. and, in 2002, she moved to Pemberton. She and he have had three children, now aged 12, seven, and five. She has continued to live in Pemberton to date and, until on or about August 31st, 2013, the parties' child, M., lived with her and her new husband and family. [ 14 ] In September 2008, the father contacted M. via Facebook and M. expressed a desire to have a relationship with her biological father who had not seen her since likely 1999.

The mother agreed if she could monitor their communications on Facebook and, in essence, if this was the sole mode of interaction between M. and the father. [ 15 ] The mother also contacted the father through Facebook at about this time and asked him about child support which had by then

been unpaid for eight years. One message, of course, then being sent was if he wanted to be involved with M., he had to pay child support. Ultimately, they reached an agreement that the father would pay her a lump-sum of $23,000 to fully retire all arrears of child support, that there would be no more claims for arrears, and that the Burdett order that I have referred to would recommence with payments of $250 a month which it did on January 1st, 2010.

It has been paid from that date to June 2015 and this is so notwithstanding that since September 1st, 2013, to the father's knowledge, the child, M., did not live with her mother. [ 16 ] The mother testified that, really, the only early access the father had to M. prior to December 1999 was when he would each month drop off the child support cheques. He agrees with this and says that, prior to December 1999, he was not really ready to be a father to M.

She never asked him to disclose copies of his tax returns to her prior to the September 2014 reply which she filed in court, nor did she ask him to agree to or contribute to, for example, daycare costs or any other potential Guideline 7 expenses she now seeks to have him contribute to. She made no effort to track him down from about March 2000 to November 2008. [ 17 ] In November 2009, she enrolled him in FMEP. She said she had not done so earlier as she had no current address to give them as to where he lived. I do not accept this as truthful.

I find if she had no current address to give FMEP, it was because she chose not to obtain one or engage the help of, for example, FMEP or anyone, for that matter, to locate him. [ 18 ] She denied that in December 1999 she had said to him that if he did not pursue having a relationship with M., that she would not seek child support from him. I do not accept this evidence as truthful. All the evidence in this case points to the mother being extremely reluctant to have the father involved with M. M. testified before me and made this point, I think, very clearly.

I prefer his evidence to hers on point and here, of course, I refer to the father's evidence in comparison to the mother's evidence and not to his daughter M.'s evidence. [ 19 ] In September 2008, the father contacted M. through Facebook with his sister's help. M. and the father maintained a Facebook communication from 2009 into early 2013. The majority of their solely electronic contact during this time was by email. The mother insisted on this occurring so she could monitor M.'s contact with her father via her email address and regularly did so proofreading all of M.'s emails to her father before they went out.

She forbade M. from either speaking to her father by telephone or from meeting him in person at this time. [ 20 ] On one occasion, the mother ended M.'s emails to her dad as the two of them had apparently included heart symbols in messages which she judged to be inappropriate. This interruption was without M.'s consent. By 2013, the father was able to re-contact M., I believe, on a new Facebook page.

M. may have initiated this contact indicating she wanted a relationship with him. [ 21 ] He learned in the spring of 2013 she was to graduate in June 2013 and that she did not own a camera and decided to surprise her with one for use in her later graduation by attending at her high school in Pemberton to meet her and provide her with the camera at that time.

The father elected, without notice to anyone, to come to this school and meet M. for the first time. [ 22 ] This created a real problem, as things turned out, and the police were shortly called seemingly when the mother learned, possibly from a school teacher, that the father was present at the school representing himself to be M.'s father and asking to see her. The result was that the father did not meet her, I believe, because she was not at the school or could not be located thereat. [ 23 ] M. was grounded by her mother and stepfather, Mr.

M., for some two months following this event and also denied the use of her laptop and a telephone. M. testified this discipline caused her to smash her cellphone on the floor in her mother's presence as she was scared, I believe, because the mother would access its contents. [ 24 ] Ultimately, with the maternal grandmother's help (Mrs. L.) M. and her dad met in person for the first time in West Vancouver apparently at the Cactus Club Restaurant, he felt in May 2013, however, M. said it was in July 2013.

The father gave her the camera and they got on well and met again at the PNE in August 2013. [ 25 ] In late August or early September 2013, M. moved out of her mother's home in Pemberton and went to live with her grandparents, the Ls, in Vancouver. She did visit briefly at Christmas 2013, but since then or possibly in or about February 2014, her relationship with the mother has been essentially severed and they have remained estranged to date.

This estrangement seems to have occurred because M. misrepresented the date upon which she first met her father in person to her mother who independently had learned it was earlier in time. [ 26 ] M. later attended [omitted for publication] doing a Hospitality Business and Flight Attendant Preparation Program which concluded July 24th, 2015. In the fall of 2015, she intends to look for a job. [ 27 ] The total cost of the course, as I understand it, is some $27,354 and this has been paid by M. in part with the proceeds of a student loan and with the generous help of her grandparents, Mr. and Mrs. L., and Mr.

L.'s mother, who following her death apparently left some $6,000 in an RESP that has been made available to M. [ 28 ] Mr. L., who testified before me, has said it would be nice if someone reimbursed him for the amounts he has paid, for example, recently $4,600 for the tuition of the Flight Attendant Preparation course, but said he has no agreement with anyone including the mother that they will do so. The only evidence that the mother helped with this expense is that given by Mr.

L. to the effect that when M. was very young, her mother, he recalled, contributed to a savings fund, he estimated, approximately $1,000, and which he had maintained, I believe, for M. [ 29 ] By counterpoint, M. testified that in June 2011, she took a part-time job at [omitted for publication] in Pemberton and agreed with her mother that she would give her half her wages as a form of forced saving. She believed she gave her mother a total of some $1,000. When she left Pemberton in 2013, she asked for this money. However, her mother refused to provide any.

She recalled receiving a sum of $200 potentially to use earlier on a family trip to Hawaii and that her mother used some of this money as well for household expenses. [ 30 ] She had surgery in May of 2012 and thereafter paid without reimbursement from anyone some of her own physiotherapy and

chiropractic costs as well as several prescriptions between September 2013 and February 2014. [ 31 ] In August 2014, her mother or Mr. M. advised her that, as she was 18, she had been removed from his group medical plan.

I understand many plans allow a full-time student over age 18 to be covered, but possibly not if they do not live with the insured employee. [ 32 ] While living with her grandparents and attending school at [omitted for publication], September 2013 to July 2015, according to M., the grandparents have paid for her prescriptions, her clothing, bus passes, and generally all her day-to-day needs and costs or at least a substantial part of them.

The father testified that, after September 2013, he helped her directly by, for example, contributing $400 to the cost of her laptop, buying her a bike and some clothing or shoes, and giving her some cash from time to time.

The total amount in question seems to be in the ballpark of $1,000. [ 33 ] He testified that from September 2013 to June 2015, some 22 months, he had paid the mother $250 a month child support pursuant to the order made by Judge Burdett and that when he learned in August 2014 that neither M. or the Ls were receiving any of this money, $5,500 in total, he decided that he would seek an order that he pay child support to M. directly and filed court papers accordingly.

He seeks to have me make an order that the mother now repay this money to M., the rightful beneficiary. [ 34 ] As will shortly be seen, there is scant evidence in this case the mother, notwithstanding M. living in Vancouver, paid any material expense amounts for her. It is surely nonsense for the mother to claim she was maintaining a home for M. in Pemberton when she was living with her grandparents in Vancouver and estranged from her mother substantially, I find, on the evidence in this case, because of her mother's reaction over the years to M. wanting a relationship with her biological father.

I find that the $5,500 which ought to have been used for M.'s benefit was not so used in whole or in part. [ 35 ] I turn now to the mother's claims. The mother's initial claim for a retroactive sharing of Guideline 7 expenses was set out in Exhibit 1 in the total amount of some $63,988. This Exhibit Number 1, apparently prepared by the mother without input from a lawyer, states that she has receipts for only $15,113 worth of the entire claim amount.

She, for example, has no receipts for her $17,867 daycare cost claim. [ 36 ] The other amounts claimed on Exhibit 1 other than daycare costs are as follows: [omitted for publication] afterschool care, $1,001; dental, $4,929; [omitted for publication] tutoring, $1,120; orthodontics, $7,155; prescriptions, $173; physiotherapy, $750; chiropractic and massage therapy, $360; postsecondary education, $28,544; and under the heading, "Possible Expenses," swim lessons, $360; taekwondo lessons, $639; ski lessons, $450; and piano lessons, $640, totalling some $63,988. [ 37 ] It became clear during the course of the hearing before me that the amounts in Exhibit 1 were not reliable for various reasons.

For example, the $4,929 amount for dental costs neglected to disclose or take into account that M. was covered from 2007 on into the year 2014 under Mr. M.'s Manulife group plan for a portion thereof and that the mother via this plan was reimbursed pursuant to this coverage for some $2,119.90 of the claimed amount. This fact would, in my view, have been known to the mother and, in my view, ought to have been disclosed by her at least as a footnote to Exhibit 1.

This was not done. [ 38 ] Her daycare claim includes some $11,537 of expenses from 1996 to 2000, a period during which the father was in reasonably regular contact with her and paid a monthly table amount of child support to her.

No information or evidence is provided as to whether the mother's analysis included credits for daycare subsidies or not, nor is there really any evidence as to the mother's work history from 1996 to date. [ 39 ] Thus, I am not able to conclude that pursuant to Guideline 7 of the Federal Child Support Guidelines that the $17,867.72 claimed was, for each month claimed by the mother, incurred as a result of her employment, education, or training for employment. This is not admitted by the father.

It is true that I have her tax returns or notices of assessment from Canada Revenue Agency for the years 2009 to 2013, but I should not, I think, conclude from them that because her Line 150 total income never exceeded $3,444, for example, in the year 2011, and including $2,400 for a universal childcare benefit, that daycare was thus required or even that this was her current Guideline income in even these years. [ 40 ] Guideline 7 expenses are very different from table amount child support which is driven almost solely by a payor's total income in a given year.

Under Guideline 7, for an expense to qualify for a contribution from a non-custodial parent (here the father) it must be: (

a) necessary in relation to the child's best interests; (

b) reasonable in relation to the means of the spouses, those of the child, and the family spending pattern prior to separation. [ 41 ] I have precious little evidence as to the means of either parent prior to 2009 when some expenses claimed were said to have been incurred. These are as follows: 1. swim lessons, $360; 2. taekwondo lessons, $639; 3. [omitted for publication] afterschool care, $1,001;

4. ski lessons, $450; 5. [omitted for publication] tutoring, $1,120; 6. piano lessons, $640; and 7. dental, approximately $3,000; and 8. some orthodontic costs. [ 42 ] I repeat the father does not admit that any of the claimed potential Guideline 7 expenses are proper and that he has and had a legal obligation to contribute to the cost of same by way of making a proportionate share payment to the mother. [ 43 ] In my view, it is always a threshold issue where one parent alleges, as here, that she paid a certain amount for a child-related expense said to be a proper Guideline 7 amount to prove at a hearing on the balance of probabilities that: (

a) she, in fact, paid the amount claimed; (

b) that it was both necessary and a reasonable expense when she incurred it as above; and (

c) in the case of childcare and extraordinary school and extracurricular activity expenses that they meet the statutory definition in each case. [ 44 ] The court cannot, in essence, be asked to assume that because a parent incurred a given expense that it thereupon without more became a proper sharable Guideline 7 expense with the other parent. There are many cases where a parent incurs an expense often for an extracurricular activity and courts have found that the non-incurring parent has no legal obligation to contribute a share thereto because: (

a) he or she did not consent to it; (

b) it cannot be seen to be necessary and reasonable having regard to the income of the parent in question; or (

c) it was not required, for example, to allow, in the case of daycare, a mother to work or retrain or attend school. [ 45 ] The fact that this is a retroactive claim does not, in my view, release the claimant mother from having to prove over the time period in question that the given expense claimed is a proper one just as she would if the claim was a prospective one looking forward in time.

Only when that is established can the court then consider what the non-contributing parent's share should be over the retroactive period in question and whether a retroactive award should be made or not. [ 46 ] I am not satisfied that the claimant has proven on the balance of probabilities that her claims for items 1 to 6 above are proper Guideline 7 expenses, nor that her daycare expenses are, either. [ 47 ] In a very recent case, Antrobus , 2015 BCCA 288 , our Court of Appeal, whose judgment was given by Goepel J.A., said this as to the civil onus of proof in a case involving, as in the case at bar, much historical evidence: [1] This case illustrates the difficulty of litigating over events that took place in the far distant past.

While a plaintiff must only prove his or her case on the balance of probabilities, the evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test: F.H. v. McDougall , 2008 SCC 53 at para. 46 . [ 48 ] On August the 11th, in closing argument, counsel for the mother filed a memorandum amending the mother's claim from $63,988 to $12,834.58.

It states as follows, "Definite Expense": 1. daycare, $17,867; 2. [omitted for publication] afterschool care, $1,001; 3. dental, $2,809.15; 4. [omitted for publication] tutoring, $1,120; 5. orthodontics, said to be paid by grandparents now; 6. prescriptions, $173; 7. physiotherapy, $750; 8. chiropractic and massage therapy, $360; 9. postsecondary education now said to be paid by the grandparents, but "as a loan." Subtotal - $24,080.15 . [ 49 ] Then under the heading, "Possible Expenses," four items: swim lessons, $360; taekwondo lessons, $639; [6] ski lessons, $450; and piano lesson, $640, for a total of $26,169.15.

There is then an entry, "Less Reduction, $500, subtotal $25,669.15," and lastly a heading, "Requested amount minimum," and the dollar amount is $12,834.58.

[ 50 ] Counsel for the mother said that the total expense amount, $26,169.15, should be reduced by $500 owing to certain evidence set out above that M. had given as to her payment of claimed expenses.

I think the amount of $500 is really an arbitrary one. [ 51 ] The resultant subtotal was then to be further reduced by 50 percent on the basis that I should assume that each parent had a roughly equal responsibility to pay one-half of each claimed expense which, of course, to be within the Federal Child Support Guidelines principles and, in particular, Guideline 7, would require them each to either have exactly the same Guideline income in each claimed year, from 2001 to date, or for me to impute income to one or other parent so as to produce this same result. [ 52 ] At its highest, this $12,834.58 claim becomes a highly arbitrary one, certainly, based on all the above expenses being proven to be proper Guideline 7 amounts.

I find on the evidence led in this case that they are not, and I find that certain of the above-claimed expenses and, in particular, the following: daycare, [omitted for publication] afterschool care, [omitted for publication] tutoring, swim lessons, taekwondo lessons, ski lessons, and piano lessons are not proper Guideline 7 expenses. They total some $22,077 leaving an amount of $4,092.15 as the total claim as per the document filed by counsel on the last day of argument.

Deducting the $500 credit therefrom leaves a total claim of $3,592.15 relating to costs said to have been incurred for dental treatments for M. now shown to be net of insurance reimbursement and for prescriptions, physiotherapy, chiropractic, and massage costs. [ 53 ] Generally, the courts are far more prone to accept that these classes of expenses are both necessary and reasonable for most children regardless of the actual means of the parents. For example, Guideline 7(

c) in dealing with health-related expenses contains no qualifying adjective such as "extraordinary." It is hard, if not almost impossible, in a given case to argue that the above remaining four expenses are not proper Guideline 7 expenses for most children. [ 54 ] I have reviewed Exhibit 1.

These four expenses, according to the receipts provided for most, but not all, of them, were incurred in the years 2009 to 2014 and are as follows: in 2009, dental expense, $470; in 2010, dental expense, $220; in 2011, a dental expense of $764 and a prescription expense of $180.36; in 2012, a dental expense of $368, physio, $600, and chiropractic and massage of $360; in 2013, a dental expense of $113 and a physio expense of $150; and lastly in 2014, a dental expense of $48.80. These various expenses from 2009 to 2014 that I have referred to total some $3,274.

There are thus some $318.15 worth of expenses not corroborated with a receipt provided by the mother. [ 55 ] The father contributed nothing to these four Guidelines expenses in the years 2009 to 2014, but in fairness to him was not asked to do so, nor told they were being incurred, notwithstanding the mother knew where he was, knew how to communicate with him, via Facebook, and had enrolled him in FMEP, and surely through M. knew where he was working and at what. [ 56 ] The parents' incomes, Line 150 as per their tax returns or notices of assessment, I have been given by the parties disclose the following in each year.

As far as the mother is concerned in 2009, $1,600; 2010, $2,400; 2011, $3,444; 2012, a loss; 2013, a loss; and in 2014, I have no information. The father's income was roughly $30,600 in each one of these years save and except the year 2013 when it was some $32,760. [ 57 ] The mother, as I have said, provided no information for the year 2014 and I have, therefore, assumed that her income was zero. [ 58 ] The father's income figure for 2014, namely, $30,771, I have calculated by annualizing his employee detailed paystubs for nine months in the year 2014 provided in evidence.

His average income with the $3,964 amount of benefits in the six years from 2009 to 2014 is therefore $35,000 per year. [ 59 ] The father's counsel admits that income should be imputed to the father, certainly in the years 2011 to 2014 to take into account: (

a) he has the company he works for pay for certain personal Visa amounts, on average, $2,255 a year; (

b) has the personal use of a company-paid cellphone worth on average $365 a year; and (

c) a percentage of his gas for personal use is paid by the company, on average $1,344 per year.

On average, these three expenses total $3,964 a year and are some 12.7 percent of his average annual income of $31,036 over the six years in question. [ 60 ] His proportionate contribution to a proper Guideline 7 expense in each of the years in question, 2009 to 2014, including the $3,964 annual benefit as part of his Guideline income would be as follows: in 2009, 96 percent; 2010, 94 percent; 2011, 91 percent; 2012, 100 percent; and the same in the year 2013 and 2014. [ 61 ] Assuming I were to make a retroactive award during the six years from 2009 to 2014, the result would be as follows with respect to the four proper Guideline 7 expenses having regard to his annual proportionate share calculated above: 2009, $451; 2010, $207; 2011, $859; 2012, $1,328; 2013, $263; and 2014, $48.80 for a total of $3,156.80. [ 62 ] This analysis assumes that the $3,964 amount of benefits the father received in the years, 2011 to 2014, would have been received by him in the years, 2009 and 2010, in the same amount, and that no income should imputed to the mother in any of the years, 2009 to 2014, inclusive.

Again, I have no evidence at all as to what the mother did by way of earning income in those years or might have done. [ 63 ] The father's average income of $35,000 over the six years from 2009 to 2014 including this benefit would mandate a monthly amount of child support of $318, some $68 more per month than he paid pursuant to the Burdett order. Putting aside the annual benefits, his average income of $31,036 would mandate a monthly child support amount of $280 a month. The Retroactive Claim [ 64 ] The relevant legal principles are set out in the case of D.B.S. v.

S.R.G. , 2006 SCC 37 , a judgment of the Supreme Court of

Canada. There are four main principles that can be derived from this case that were not too long ago well described by a Supreme Court judge, Mr. Justice Kelleher, in a case called Morgan , 2006 BCSC 1197 , at paragraphs 45 to 48 as follows: [45] The basic principle underlying the D.B.S. decision is the same basic principle underlying all awards of child support: parents have an obligation to support their children in a way commensurate with their income. It follows that the payor parent must increase his or her child support payments when his or her income increases: D.B.S. at para. 48 .

If the payor parent fails to meet that obligation, he or she may later be ordered to pay retroactive child support. [46] The obligation to pay more child support when earning more income exists even if, as in this case, a child support order is already in place. Mr. Justice Bastarache, writing for the majority in D.B.S. , explained at para. 68 that "the support obligation of a payor parent, while presumed to be the amount ordered by a court, will not necessarily be frozen to the amount ordered by a court".

Therefore, while the parent must pay at least as much as required under the court order, he or she is also obligated to make higher child support payments when his or her income increases. [47] However, even if a parent has failed to meet his or her obligation to pay the amount of child support that fits his or her income, a retroactive award may not be appropriate. In exercising its discretion to determine whether a retroactive award is appropriate in the circumstances, the court must consider the following four factors discussed at paras. 100 to 116 of D.B.S. :

(1) Is there a reasonable excuse for why support was not sought earlier?

(2) Was there any blameworthy conduct on the part of the payor parent?

(3) Is a retroactive award appropriate in light of the child’s past and present circumstances?

(4) Will a retroactive award cause hardship to the payor parent or to his or her other children? [48] None of these factors standing alone is determinative. The court must take a holistic approach. That is, the court must consider all of the facts and determine whether a retroactive award is warranted in the particular case: D.B.S. at para. 99 .

Further, it is not the case that retroactive awards are reserved for only exceptional cases: "It cannot only be exceptional that children are returned the support they were rightly due" ( D.B.S. at para. 97 ). [ 65 ] There is some legal authority which stands for the proposition that when a payor parent becomes aware that his income has increased, he should disclose this information to the recipient parent and discussions should then occur as to whether child support should be increased or not; see Dalke , [2012] B.C.J.

No. 217 , a judgment of the British Columbia Supreme Court at paragraph 18, a judgment of Justice Powers. Failure to comply with this obligation according to a recent Court of Appeal case, namely, Hausmann v. Klukas , 2009 BCCA 32 , can be characterized as blameworthy conduct. [ 66 ] Our Court of Appeal in Hausmann , in discussing when a retroactive award should be made, said this on point in paragraph 18 and 19: 18 In D.B.S. v. S.R.G. , the Supreme Court of Canada comprehensively considered the vexing issue of retroactive child support.

The majority concluded that once the court determines that a retroactive award should be ordered, as a general rule the award should be retroactive to the date on which the recipient parent gives effective notice that support should be paid or increased. "[E]ffective notice does not require the recipient parent to take legal action; all that is required is that the topic be broached" (para. 121).

Furthermore, the majority noted the general rule is that retroactive awards should not exceed more than three years from the date formal notice is given to the payor parent (para. 125). 19 However, the majority also provided for the possibility inherent in the circumstances of the case at bar, at para. 124: The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct.

Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child's support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing a material change in circumstances -- including an increase in income that one would expect to alter the amount of child support payable -- is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of

retroactivity back to the time when circumstances changed materially. A payor parent cannot use her/her informational advantage to justify his/her deficient child support payments. [ 67 ] I have considered all the evidence in this case in light of the four D.B.S. factors and all other relevant factors. I will refer to each in turn. [ 68 ] I find that the recipient mother has offered no reasonable excuse for her delay of some 13 years, in seeking a contribution towards these said-to-be proper Guideline 7 expenses.

I find that the date of her first and only and effective notice to the father that she was seeking same was September 12th, 2014, the date of her claim set out in her reply. Until then, she did not advise him of these expenses or seek a contribution from him, which claim she now advances commencing in the year 2001. [ 69 ] I find that her delay is such that it cannot be said she acted in a responsible fashion in seeking the relief she now asserts. I do not accept that she did not know where he was from 1999 to 2008.

She did from 2009 on and is taken to know what her right was to seek relief from him for Guideline 7 expenses that were proper at least from 2009 on. [ 70 ] There is no evidence in this case that the mother held off making her claim for retroactive Guideline 7 amounts because she was, for example, worried the father would be vindictive if she did so. In 2009, she received a lump sum of $23,000. I find she then had the financial and emotional means to seek a contribution from him for proper Guideline 7 expenses and failed to do so in a timely way.

There is no evidence her delay is due, for example, to faulty legal advice. Her delay which is unreasonable is a form of blameworthy conduct on her part. [ 71 ] In D.B.S. , at paragraph 36 , the Supreme Court of Canada notes that the scheme of the Guidelines is such that there is no obligation on the part of a payor parent to make automatic disclosure to the recipient each time his income increases. The same subject is dealt with in D.B.S. at paragraphs 108 as follows: On the other hand, a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour.

Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct.

In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were being met. Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order.

However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay. [ 72 ] In the year 2009 the father settled arrears of child support then owing and based on all the evidence in this case, I find that he then believed if he paid the $250 monthly amount of child support, he would be fully discharging his obligation.

No mention was made of his contributing to the thousands of dollars of special expenses the mother now asserts she had by then incurred or wanting his help in future on the same issue. His belief was reasonably held, in my view. [ 73 ] I do not find that as a matter of fact or law that the $23,000 lump sum he paid settled her current claim for his contribution to Guideline 7 historical expenses as they were not in the year 1996 ordered by the court and, hence, in 2009, there were no arrears of same owing.

Nonetheless, I do find that the father believed that when he paid the $23,000, he had settled all her claims as well as arrears of table child support. [ 74 ] When I compare his obligation under the Guidelines to what in fact he did pay in the years, 2009 to 2014, the result is as set out above. He paid less child support, $68 a month, from say January 1, 2009, to September 1st, 2013, the date M. moved out than he should have, some $3,876 over these 57 months, and failed to contribute his proportionate share of Guideline 7 expenses which are either $3,592.15 or $3,156.80 supported by receipts as above.

No claim is advanced for a retroactive table amount of child support. I do not find that on this analysis his income increments were so substantial or his change in circumstances sufficiently pronounced that he had a duty to disclose the same to the mother.

I do not find that there was blameworthy conduct on his part, especially where, as in Leachman , 2007 BCSC 1166 , at paragraphs 28 to 30 , the father was neither consulted about or informed of the expenses at all prior to the mother's reply. [ 75 ] There is no evidence that M. has suffered in any way by the father not having contributed on average some $63 per month towards Guideline 7 expenses over the months in question assuming they were all incurred prior to September 1st, 2013.

If I were now to order a retroactive lump sum under the circumstances of this case, there would be no discernible benefit to M., in my view.

There is no reasonable prospect she will return to live with the mother now or in future or that there is a likelihood that she would receive any of the money in issue based on the evidence in this case. [ 76 ] As to hardship, there is no evidence to suggest if I made an order, there would be any particular hardship experienced by the father. [ 77 ] As to the mother, there is no evidence that on the dates she incurred the proper Guideline 7 expenses set out above and asserts that he ought to have contributed to them that she suffered any hardship because he did not pay the modest amounts in question.

For example, I have not overlooked the fact that she and her husband, I assume, could afford to travel to China likely for a holiday. [ 78 ] Having considered all the evidence in this case and all these factors, I dismiss the mother's claim for retroactive Guideline 7 expenses.

[ 79 ] I turn now to the father's claim that amounts that he paid from September 1st, 2013, to June 30th, 2015, should be repaid by the mother to M. I have found that M. received no benefit from any of these payments. The facts in this case are that after September 1st, 2013, M., with substantial help from her maternal grandparents and little help from her father and almost none from her mother, was responsible for her own costs and expenses including those associated with her postsecondary schooling. [ 80 ] I have been given no case by either counsel supportive of the order sought by the father.

The Antrobus decision referred to above, however, is helpful and I think on point. It relates to the duty parents owe to their children. Parents owe a fiduciary duty to their children. A breach of this duty occurs when they put their own interests ahead of that of their children. They are said to stand in a relationship of trust to their children.

A breach of this trust occurs where, for example, they put their own interest ahead of their child so as to abuse the child's trust (see paragraph 51). [ 81 ] The simple scheme of child support is that, typically and generally speaking, one parent with respect to table amounts of child support or both parents with respect to Guideline 7 amounts are obliged to contribute money to assist in defraying the child's ongoing expenses.

Based on simple trust principles, child support payments are thus monies that are delivered by the payor akin to the settlor of a trust to the recipient, here the mother, who is akin to a trustee and the money is for the benefit of the child, the beneficiary. The monies are impressed with a trust as to each payment, that they are to be used solely and only for this purpose. [ 82 ] I find in the case at bar all payments made on and after September 1st, 2013, were not so used by the mother qua trustee.

I need not find, in my view, how or for what purpose they were used, in my judgment, but as they were not used solely for M.'s benefit, I find this was in breach of the fiduciary duty owed by the mother to M. In the result, the monies must now be returned, $5,500. [ 83 ] M. is not a party to this litigation. The father essentially advances this claim as her agent and on her behalf. He wants her to have the money. I order the $5,500 is now to be paid by the mother to the father.

I further order that he will receive it when paid as M.'s agent, and in trust for M. and, on receipt, will forthwith pay it to M. as child support. He will provide proof to the mother that he has done so within seven days of his payment of the monies to M. In this way, the application made by the father herein is granted. [REASONS FOR JUDGMENT CONCLUDED]