M.S.B. v. L.M.B. Date:, 2012 BCPC 520

Citation: M.S.B. v. L.M.B. Date: 20121205 2012 BCPC 0520 File No: F44414 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: M.S.B. APPLICANT AND: L.M.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY

Appearing in person: M.S.B. Counsel for the Respondent: A. Lunny Place of Hearing: Nanaimo , B.C. Date of Judgment: December 5, 2012 [ 1 ] THE COURT (orally): M.S.B. is before me wi th an application that he has brought to deal with his existing payments for maintenance for his spouse and for his children. In particular he wishes to deal with accumulated arrears that have accrued since the making of a Separation Agreement on October 21, 2004, between himself and his wife, L.M.B.

That Separation Agreement is hereinafter referred to as the "Separation Agreement". [ 2 ] The Separation Agreement was entered into between M.S.B. and L.M.B. to deal with a series of matters between them. With respect to matters which are of importance to the proceedings before me, the provisions of ss. 6 and 7 are the relevant provisions.

Section 6 deals with child custody, access, and maintenance.

Section 7 deals with spousal maintenance. [ 3 ] At the time of entering into the Separation Agreement, M.S.B. was the prime breadwinner for his family. He and L.M.B. have three children. They are as follows: J.P.B., born [DOB]; T.J.B., born [DOB], and M.R.B., born [DOB]. [ 4 ] It is common ground that the children of M.S.B., (whom I will refer to hereafter as the husband) and L.M.B., (whom I will hereafter refer to as the wife), have remained with the wife since the time of separation.

The separation was formally evidenced by the Separation Agreement and the parties ceased to live together since October of 2004, having become estranged and then living separate and apart under the same roof from July 19, 2004.

But since that date of separation, the children have continuously resided with the wife. [ 5 ] Under the terms of the Separation Agreement, the husband agreed to pay child support in the amount of $871 per month, commencing on the 1st of October, 2004, continuing each and every month thereafter for so long as the children were defined as children of the marriage pursuant to the Divorce Act . The husband was also required to maintain the children on his medical and/or dental plan available to him through his employment.

There was also an obligation for him to do the same for the wife. [ 6 ] Pursuant to s. 6.8 of the Agreement, there was a specific provision that reads as follows, and I quote: The Husband will pay to the Wife the sum of $94.00 per month for his share of the extraordinary expense incurred for the cost of preschool, commencing on October 1, 2004, and continuing each and every month thereafter, which amount shall be reviewed annually. [ 7 ] Paragraphs 6.9 through 6.12 of the Separation Agreement deal with the annual exchange of financial information by the 31st day of August of each year from the date of making this agreement.

They also deal with a provision for a request notice for the review of child support if there is a material change in circumstances or undue hardship for either party, as defined by the Federal Support Guidelines . [ 8 ] The provision for exchange of financial information by August 31st of each year, includes such things as a photocopy of recent income tax returns, notices of assessment, and information concerning child benefits or other similar benefits, as well as particulars of children's extraordinary expenses. [ 9 ] Under the Separation Agreement, paragraph 7.1 it provides as follows, and I quote: The Husband shall pay to the Wife for her support $306.00 per month commencing the 1st day of October, 2004, and continuing each and every month thereafter until such time as the Wife remarries or commences a cohabitation with another person, in what is generally referred [to] as a common law relationship for a period of at least 90 days, whichever shall occur first. [ 10 ] Paragraph 7.2 of the Separation Agreement is a renunciation and release by the husband in favour of the wife for all claims he may have against the wife for alimony, maintenance, or support. [ 11 ] At the time of the making of the Separation Agreement, the husband was gainfully employed.

He had been trained as a major appliance technician at [deleted for publishing]. He also, prior to becoming a plumber, had worked as a mover. In 1993, he commenced work towards an apprenticeship in plumbing, and that apprenticeship was completed in 1996. From 1996 onwards, he continued to work in the plumbing industry.

He eventually became a member of the Plumbers' Union 324, Victoria, and as a result of that worked in various locations on Vancouver Island, both as a plumber and also as a pipefitter. [ 12 ] At the time of the Separation Agreement dated the 21st of October, 2004, he had annual income estimated to be the approximate amount of $47,600 per year. [ 13 ] At the time the Separation Agreement was entered into, the wife was a stay-at-home mother. She had received some training towards a certified general accounting designation by attending courses at [deleted for publishing].

She completed approximately half of the program before she was required to withdraw due to medical issues. Once the first child of the relationship was born, the mother continued to be a stay-at-home mother from thereon. [ 14 ] The husband and wife lived in a common-law relationship from about April 1, 1996, and they were married on the 7th of September, 1998. I understand from the husband's testimony that they have never proceeded with a divorce.

[ 15 ] At the outset of the hearing of evidence on this matter, it was admitted from the information that is before me and by way of financial statements of the husband, entered as an exhibit, that there is a combined amount owed by way of arrears due under the Separation Agreement as at August 8, 2012, in the amount of $103,119.66. [ 16 ] The total payments that the husband was required to make under the terms of the Separation Agreement for both the spousal maintenance, the child maintenance, and the extraordinary expenses totalled $1,271 per month.

It appears, based on the calculations, that at the outset and following the separation, the husband did make payments for roughly five months towards the amounts that were due.

No payments were made for a period of time thereafter, the reasons for which are material to the application before me and which I will deal with later. [ 17 ] By November 25, 2005, it is common ground that the wife became registered with the Family Maintenance Enforcement Program and that appears to have been as a result of the fact that she had become dependent on assistance from the Province of British Columbia. [ 18 ] At the date of her enrollment in the program, it is common ground that the amount owing at that point was $10,925. [ 19 ] The circumstances following his separation from his spouse and his children, to which the husband has testified, are indeed quite tragic.

Notwithstanding the fact that the husband had a high level of training as a journeyman plumber and was able to work for a number of companies in construction on Vancouver Island and be earning hourly rates between $27 and $33 per hour, and in some cases with union pension benefits being added onto that, he became highly addicted to crack cocaine. That addiction then became the main focus in his life for a period of several years thereafter. [ 20 ] The effect on his ability to work became apparent to him, if not to his employers.

In 2004, the evidence before me indicates that he actually earned more than the amount that had been anticipated to be his earnings under the Separation Agreement. The amount that he earned in 2004 by way of total income was $50,058, which included total earnings on T4 slips of $45,102 and Employment Insurance benefits of $4,956. [ 21 ] The crack cocaine addiction surfaced in 2005. According to his evidence, he started to use crack cocaine in April or May of 2005. The impact of that crack cocaine addiction was dramatic on his income.

His income for that year reduced to $23,599. [ 22 ] By 2006, he describes himself as, and I quote, "a full-blown crack addict". He indicated that year was, in his estimation, a very bad year. His notice of assessment from Canada Revenue Agency certainly confirms that from a financial perspective. His total income for that year was $5,835.

The source of that income was from miscellaneous odd jobs, including working for various friends who owned pressure washing businesses and roofing businesses. [ 23 ] At that point, he was reduced to staying with family members, and at that time he also met his current girlfriend and partner, W.M. [ 24 ] As I understand his testimony, the income that he was earning during 2006 was primarily spent on supporting his crack cocaine addiction. [ 25 ] The year 2007 could be possibly regarded as somewhat of a turning point for the husband. In that year, he took it upon himself to resume work in the plumbing field.

He was able to secure work with two separate employers. He was earning approximately $30 per hour, which he described as top wages. However, he was continuing to be addicted and to consume crack cocaine. He indicated that he was able to hide that addiction from his employers, but did realize that his addiction was having an adverse effect on his work performance.

Rather than being fired from his job and, in his words, "burning his bridges", he left his last employment, such that towards the end of 2007 he was not working and was in the full grip of cocaine addiction. [ 26 ] By October and November, he was essentially being supported not through any government program such as Employment Insurance, but rather through the support of his girlfriend's parents, A.M. and S.M. They essentially permitted him to stay in their residence, during which time he compensated them by doing work around their premises, including some renovation and repair work.

They were aware that he was facing some challenges, but he did not disclose to them nor, so far as he is aware, were they aware or were they knowledgeable about his cocaine addiction. [ 27 ] In 2008, he was still basically being supported by A.M. and S.M. They confronted him and he admitted to his cocaine addiction.

They were incredibly supportive to him and permitted him to continue to live in their premises, and assisted him in supporting himself until such time as he was able to start dealing on a positive basis with his cocaine addiction. [ 28 ] The husband testifies that in April 2008, he had quit using crack cocaine and was not consuming any other drugs. To characterize it in the common parlance, he was completely “clean” from the use of drugs.

He testifies that he had, during the height of his addiction, tried other drugs such as crystal meth and heroin; however, his drug of choice and addiction was crack cocaine. [ 29 ] He was able to continue to stay with A.M. and S.M. until October of 2008. At that point, to his credit, he sought and obtained a job with [deleted for publishing] in Nanaimo. He describes it as seeking out the lowest paying and hardest job he could. He was successful in meeting those objectives when he obtained a labouring job, working nightshift for [deleted for publishing].

Essentially, it was a physical job which required him to deal with the quarried rock and to move it and to assist in the sorting and processing of it. That job continued through the latter part of 2008. The result was that he earned a total income for 2008 of $4,908. [ 30 ] His relationship continued with W.M. They had become a couple, although they lived separate and apart at various times. However, most of his free time was spent with her. W.M. is a person who receives a government payment as a person with disabilities.

She has a nine-year-old child, and on [DOB], she gave birth to the husband's child, being J.S.B. [ 31 ] Since the end of 2008, the husband has continued to make progress. He continued his work at [deleted for publishing]. He got a wage increase and started earning $12 per hour. By that point he was working eight hours a day on a day shift, five days a week; his

occupation with [deleted for publishing] continued throughout 2009. As a result of that, his total taxable income for that year was $29,762. In 2009, he started to pay rent to A.M. and S.M. at the rate of $500 per month. [ 32 ] In 2010, still free from an active addiction, the husband was granted a transfer within [deleted for publishing]. He started to work at the actual quarry site, which, as I understand it, is at or near [deleted for publishing] on the [deleted for publishing] of Vancouver Island. His job there was a combination of continuing to do manual labour, as well as working with and driving equipment.

His wage rate increased to $16 per hour, on the basis of a 40-hour work week, plus travel time, which as I understand it was four hours per day at straight time rates. In 2010, his wage increased from $16 to $17 per hour. His total income for that year was $37,677. [ 33 ] 2011 was another year in which the husband was able to continue full-time employment with [deleted for publishing]. It was also a year in which he remained free from active addiction. His hourly rate during 2011 was $17 an hour, plus he qualified for benefits for medical and 100 percent extended medical coverage and 80 percent dental coverage.

His wage for that year had increased due to the fact that he had assumed foreman responsibilities at the quarry. His total income for the year, taxable income, was $47,182. [ 34 ] 2012 was again a year of improvement for the husband. His hourly rate had increased to $18 an hour, continued on a 12-hour-per-day basis.

His anticipated income this year will be in the range of about the amount earned in 2011, and therefore estimated to be $47,000 per year. [ 35 ] He testified that there has been less overtime available to him during 2012. [ 36 ] The other good news that he has received is that he has been offered and has accepted an appointment, effective December 20, 2012, as the quarry supervisor for [deleted for publishing].

He will be earning $20 per hour in that job, and anticipates that there will be opportunities for further advancement and wage increases within [deleted for publishing] in the years to come. [ 37 ] He remains free from active addiction at this point. [ 38 ] At the present time, he continues to live in a rental situation. He rents accommodation from his sister. He pays her $500 per month. He admits that he does spend most of his time at W.M.'s residence. [ 39 ] In February 2009, he started payments of $150 per month for the support of his child J.S.B.

Those monies are paid through and collected by the Family Maintenance Enforcement Program. [ 40 ] He also testified that he contributes some money for the household maintained by W.M. for her two children. He makes a payment for telephone of $174 per month and cable TV of $1,824 per annum. He is candid when he says that his annual expense forms which have been filed incorrectly disclose that he has a utility charge of $480 per annum. [ 41 ] His assets are limited. He has a 1996 Dodge Ram 1500 which he values at about $5,000.

He says that he has no other material assets, and there are no assets that are jointly owned or held by him, and by W.M. [ 42 ] In 2009, once he had re-established himself, he made attempts to contact the wife. Those were not successful actions. His purpose was to attempt to try to get back into the lives of his children by his first relationship. He testifies that he did not want to end up with a situation which could be characterized as being highly conflicted.

He fully understood the response of the wife due to the significant absence from her life and the lives of their children for the large number of years. [ 43 ] Accordingly, he did not pursue that particular relationship. Significantly, he did not make any formal contact with the Family Maintenance Enforcement Program in order to deal with his continuing obligations under the Separation Agreement. [ 44 ] He does indicate that he had contact with the Family Maintenance Enforcement Program, in or around December of 2010.

That was at the time that Family Maintenance Enforcement started garnishment proceedings against his wages in order to deal with his outstanding obligations. According to the information in front of me, the first garnishment proceedings occurred around the 5th of January, 2011. [ 45 ] He indicated that it was difficult for him to contact Family Maintenance Enforcement Program in order to deal with the issue of arrears.

He said part of this was due to the fact that his work took him out of town and he did not have the ability to make direct contact with an official at Family Maintenance Enforcement Program, other than to leave voice messages. Returning messages was difficult, due to the location of his work and the nature of the work he was performing. [ 46 ] At the present time, he continues to enjoy the benefits of full-time employment. He has his qualifications as both a plumber/gasfitter in place. He is qualified to participate as a journeyman in those trades.

He does utilize some of his skills with his present employer. [ 47 ] He testified that he is of the view that the wife is not able to actually work or to support herself and is need of assistance, both from the Province of British Columbia and also is in need of assistance financially from other sources.

I take it from his admission that he includes the payments that she is entitled to under the Separation Agreement to be part of that source of financial support. [ 48 ] In cross-examination, he did admit that he had never sent any communication either to the wife or to Family Maintenance Enforcement Program about his financial circumstances. He took no steps to deal with variations of the amount due by way of child support or spousal support as contemplated by the Agreement.

He took no steps to, during the course of time from separation up until he brought matters to this court, to provide financial disclosure to either the wife or to Family Maintenance Enforcement. [ 49 ] He did not make any payments over and above what amounts were being garnished by Family Maintenance Enforcement Program and, so far as I can see, made no voluntary payments of monies prior to the intervention of Family Maintenance Enforcement, when they proceeded with garnishment proceedings against him.

[ 50 ] He testifies that he is in a position to place his children of his relationship with the wife onto his medical and dental program, and he will take active steps in order to do that. [ 51 ] The submission that has been made on behalf of the wife is that the matter is properly before the court, insofar as s. 121(4)(

b) of the Family Relations Act permits this court to deal with a variation of a separation agreement, and s. 96 of the Family Relations Act permits the variation by way of changes to reduce arrears that may be accruing pursuant to a separation agreement. [ 52 ] It is also conceded on behalf of the wife that there has been a material and unforeseen change in circumstances, as contemplated by s. 96 of the Family Relations Act , insofar as the husband became addicted to crack cocaine, which became a significant aspect of his life and had very adverse effects on his ability to earn a living. [ 53 ] However, reliance is placed by the wife on subsection (3) of s. 96, which indicates that for the purposes of an application to reduce or cancel arrears, that I must be satisfied that the test in subsection (2) is satisfied; that is it would be grossly unfair not to do so, and that for the purposes of assessing that test, that the provisions of subsection (3) have to be taken into consideration.

Those are as follows, and I quote: For the purpose of subsection (2), the court may take into consideration (

a) the efforts the applicant 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. [ 54 ] It is the position taken on behalf of the wife that, although it is acknowledged that the husband, in the words of the wife's counsel, has "come through a journey", and his efforts in rehabilitating himself must be properly acknowledged, that I must also take into account that it was the conduct of the husband that brought on the addiction.

Also that other provisions, as contemplated by subsection (3), have not been properly satisfied, based on the evidence that I have heard. [ 55 ] What is pointed out to me is that there were no voluntary efforts made to comply with the maintenance order for a considerable period of time, notwithstanding the fact that the husband had been able to put his addiction in abeyance and start gainful employment. [ 56 ] There is not a satisfactory answer as to the delay in applying for a variation of the maintenance order.

In that regard it is submitted on behalf of the wife that, but for the fact that Family Maintenance Enforcement were being diligent in their collection process, there was no other motivation on the part of the husband in order to seek a variation. [ 57 ] While making those points, it is pointed out by the wife's counsel that there are certainly periods that I can be looking at as being perhaps the areas where there has been a very significant change in circumstances; it therefore bears some examination.

The periods of time in question really are at the height of the drug addiction and the inability to work, which was in the latter part of 2006, part of 2007; by 2008 the evidence supports that recovery was underway, although it is pointed out that the ability to work was not really until the last few months of 2008. [ 58 ] It is also pointed out that more by chance rather than design that the amounts that the present Separation Agreement provide for, for spousal support of $306, are almost to the dollar in accordance with the Advisory Guidelines.

It is pointed out that the child support payments based on the income that was actually earned in 2004 are actually lower than what would be payable based on the Guidelines; the income being the amount of $50,058, and the amount which the Separation Agreement had contemplated the income were set at $47,600.

So in the words of counsel for the wife, he would have been paying a bit more; a bit being approximately $999 per month would have been the resulting figure, rather than the amounts that he was required to pay under the terms of the Separation Agreement, which was the $871 per month plus the additional payment of $94 for extraordinary expenses. [ 59 ] It is acknowledged by the wife's counsel that with respect to spousal support for the years 2006 and 2008, the income was under $8,000.

Accordingly, nothing would be payable for spousal support for those years, had an application been brought in a timely fashion by the husband. [ 60 ] In that regard, it is the overall submission that the husband should bear the responsibility of the lack of timeliness in bringing the application forward, and accordingly that I should be reluctant to be providing him with the benefit of that delay at this stage. [ 61 ] In response, the husband makes absolutely no excuses for his drug addiction. He characterized it, in his words, as a "pitiful excuse".

Notwithstanding that it is a pitiful excuse, it is a real excuse; obviously, if he were able to change what has gone on before, it would be something that he would certainly have done; that is something he would have corrected. [ 62 ] He does indicate that although he was able to become an inactive addict in April of 2008, there was a continuation of the impairment arising from his significant addiction that continued on for a period of a year and a half to two years.

I think that is somewhat borne out by his financial records, if nothing else, insofar as he was not able to go back to his trade and chose a different route, that is a manual labouring job, in order to put himself back on the road to a stable recovery. [ 63 ] Essentially he is seeking some relief from his obligations. Clearly he is not without some argument; in his words, he is not getting anywhere as a result of the financial burden that he bears as a result of having not made any payments under the terms of his Separation Agreement for child support and for spousal maintenance for some years.

[ 64 ] The decision of Justice Martinson in the decision known by two separate names, one being K.M.B. (Guardian Ad Litem of) v. J.Y. , also by the other name of Best v. Young , cited at [1999] B.C.J. No. 280 , sets out a very clear and detailed

summary of the law that governs child support applications, including original orders for child maintenance, applications to change existing orders, and applications to cancel or reduce arrears. [ 65 ] Specifically at paragraph 41 the following principles are set forth, and I quote, under the heading "Maintenance -

Summary": 41 These basic principles can be summarized this way: 1. Maintenance Generally a. Parents have a joint and ongoing legal obligation to support their children. b. It is the child, not the other parent, who has the right to maintenance. c. The payment of maintenance is based on not just what a parent does earn but what a parent can earn. 2. Variation a. There has to be a material change of circumstances, a change that is significant and long lasting. b. A change to the Guideline amount is not automatic. 3. Arrears Basic Principles a.

There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so. b. If arrears are not reduced or cancelled, the court can order a payment plan over time if convinced the arrears cannot be paid right away. Examples a. Arrears will only be cancelled if the person is unable to pay now and will be unable to pay in the future. b.

A reduction or a cancellation requires detailed and full financial disclosure, under oath (usually in the form of an affidavit) that at the time the payments were to be made: i. the change was significant and long lasting and ii. the change was real and not one of choice and iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful. c. Responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family. d.

Delay in enforcement is generally not a legal basis to cancel or reduce child support arrears. e. Judges will not cancel arrears because the other party gets a lot of money at once. Otherwise, people would be encouraged to not pay maintenance and rewarded for not paying maintenance. f. Judges will not cancel arrears because the children were looked after in spite of the non payment. g. Nor will judges cancel arrears because the children no longer need the money. The children should be compensated for what they missed. h.

An agreement between parents that the maintenance for the children does not have to be paid will not be considered. i. Lack of access between a parent and child is not a legal reason to reduce or cancel arrears. j. Judges will not reduce or cancel arrears because other money has been spent to buy things for the children. k. The fact that a person did not have legal advice when the order was made or during the time when the arrears added up, is not, by itself, a reason to reduce or cancel arrears.

[66] In a recent decision of Master McDiarmid of the British Columbia Supreme Court, cited as A.B.M.E. v. D.J.H., [2012] B.C.J.No. 653, Master McDiarmid followed the applicable principles laid out by Madam Justice Martinson in Best v. Young to which I havejust referred. [67] Master McDiarmid also dealt specifically with the question of cancelling or reducing arrears.

At paragraph 31 of his decision,he states as follows, and I quote: [31] In terms of cancelling or reducing arrears, I must be satisfied that it would be grossly unfair not to do so. [32] Carol Huddart & Trudi Brown, British Columbia Family Law Practice 2012, (Markham: LexisNexis Canada Inc., 2011) at 774-775summarize the general principles as follows: The test under s.96 to justify the cancellation of the payor spouse's arrears may be met only by showing that it would be grossly unfairnot to reduce or cancel his arrears, taking into consideration efforts to comply with the order, the explanation for the delay in applying,and any "special circumstances" the court considers relevant.

This is a difficult test to meet and it is not sufficient to show simply achange in circumstances as is required for a variation of maintenance simpliciter. Cases in which arrears have been cancelled are rare,and the bar of "gross unfairness" is generally held at a high level. Obiter: It is very doubtful that a court may reduce support retroactivelyunder s. 96(1) without meeting the standard of gross unfairness that applies under s. 96(2) to the reduction of arrears. Of course, the courtmay order a prospective reduction if the required change in circumstances is shown. ...

Under s. 96(2) of the FRA, an applicant for a reduction or cancellation of arrears carries the burden of persuasion and must satisfy thecourt that it would be grossly unfair not to cancel the arrears. In making the required determination, the court may take into considerationthe matters referred to in s. 96(3), that is, the efforts the applicant has made to comply with the maintenance order, the applicant'sexplanation for any delay in applying for variation of the maintenance order, and any special circumstances that the court considersrelevant. ...

Because cancellation or reduction of arrears is a form of variation, there is a heavy duty on the person asking for a reduction or acancellation of arrears to show that there has been a significant and long lasting change in circumstances. The courts are generallyreluctant to reduce or to cancel arrears. ... Parents have a legal obligation to earn as much as they are capable of earning to meet theirobligations to support their children. An applicant can only get a reduction or a cancellation of arrears if they present detailed and fullfinancial disclosure, under oath... ...

If the payor spouse's unemployment is being relied upon as a circumstance, there should be evidence to show that he attempted to findother employment. [68] A.B.M.E. v. D.J.H. also provides some useful guidance with the issue of the treatment of addiction as a consideration forreduction of or as a change of circumstances. Various authorities have considered that particular issue. In his decision, MasterMcDiarmid points to the decision of my brother Judge Cowling in R.P. v.

M.H.E., 2003 BCPC 407, and I quote as follows, paragraph 20of Master McDiarmid's reasons: Counsel provided to me the Provincial Court decision of Judge Cowling in R.P. v. M.H.E., 2003 BCPC 407, where at paras. 6 and 7Judge Cowling references the decisions of Martinson J. in Earle v. Earle , (BC SC), [1999] B.C.J. No. 383 and X.(R.L.) [R.L.X.] v. X. (J.F.) [J.F.X.], 2002 BCSC 1222.

Judge Cowling writes . . . [69] Then referring to specifically paragraph 7 of Judge Cowling's reasons which followed his analysis, according to the Earledecision, that: . . . the change [must be] significant and long lasting and . . .the change was real and not one of choice and . . .[that] every effort was made to earn money (or more money) during the time in question, and those efforts were not successful. [70] Judge Cowling notes with respect to the case before him as follows: In applying the above principles to the facts of this case I find that the applicant has made sufficient financial disclosure and hasestablished a significant and long lasting change in his financial circumstances.

The more difficult questions flow from the reason for

that change. The recent legal model for consideration of a party with a substance addiction is to treat that problem as a non-culpable health issue. The decision in, [2003] B.C.J. No. 2576, 2003 BCCA 608 Health Employers' Assn. of British Columbia v. British Columbia Nurses' Union appears to be an example of this approach. I have been unable to find a decision directly on point in the family law area. The [decision] of the applicant is not on point with the decision in Heer v. Heer , [1996] B.C.J. No. 2501, B.C.S.C., 1996 D10748, Master Joyce, Chilliwack Reg.

The applicant in this case has no capital assets and his behavior is considered non-culpable particularly where he has taken steps to treat his addiction including hospitalization and attendance at a 6-week recovery program. [ 71 ] Then carrying on a reference to paragraph 10 of Judge Cowling's decision which reads as follows: It appears to me that there are policy reasons to accept that an addiction is a health problem and that health problems which reduce income entitle variance but that there are also policy reasons not to accept addiction in all circumstances and for all claimed periods of time as grounds for a complete exemption from a support obligation. [ 72 ] In A.B.M.E. v.

D.J.H. , Master McDiarmid characterized the issue in his case, which I find also to be the issue that I am having to deal with, as follows, and I quote: That sums up the issue facing the Court in this case. Can a parent avoid support obligations by choosing to use addictive substances, getting addicted, becoming disabled by the addiction, and relying on that disability to excuse some or all obligations he has toward his children? [ 73 ] In the decision of G.K.H. v. H.S.H. , [1996] B.C.J.

No. 2501 , Master Joyce came to the conclusion at paragraph 3 as follows, and I quote: I have come to the conclusion that it would be unjust and contrary to public policy to permit the respondent to use his own criminal act to form the foundation for relieving him of his legal obligation to support his children and their mother, particularly where it appears that the respondent has other means by which he can support the petitioner and children during his incarceration, namely his interest in real property. [ 74 ] In that particular matter, the underlying circumstances which had led to the application before Master Joyce was on the basis of a sexual assault by the respondent upon the applicant spouse. [ 75 ] Master McDiarmid also reviewed the decision in Dorosh v.

Dorosh , 2004 SKQB 379 , and in that analysis he cited the decision of Mr. Justice Sandomirsky. In essence, it was a recognition that alcoholism is a disease and a chronic state and can be debilitating. [ 76 ] The decision in that case, based on the medical evidence, was that the court could not conclude that Mr. Dorosh's general anxiety and depression was beyond his own control. That is that he was incurably or hopelessly addicted. [ 77 ] Citing the authority in the Supreme Court of Canada in the so-called Insite decision cited at Canada (Attorney General) v.

PHS Community Services Society, 2011 SCC 44 , Master McDiarmid comes to the following conclusion, and I quote at paragraph 36: That decision highlights the respondent's main point, which is that despite the fact that he retained some power of choice, he is addicted and addiction is "characterized by impaired control over the use of a psychoactive substance and/or behaviour." [ 78 ] Having regard to the authorities before me, I have come to the conclusion that the crack cocaine addiction to which the husband has testified is indeed, as has been conceded, a significant material change in circumstances, and one which I must take into account.

But having taken that into account, I agree with the thrust of some of the other authorities, which I have cited, that it cannot be held to be a total excuse for or an explanation for the reduction of the maintenance obligations of the husband in this matter. [ 79 ] I am also mindful that there has been a limited effort to comply with the maintenance order by the husband. I am also cognizant of the fact that there was a delay in applying for the variation.

Having taken those matters into account, and noting that some reasonable explanation has been offered by the husband as to his delay in applying for the variation, at least one of the considerations has been met. [ 80 ] The other consideration that has been met is, of course, the addiction issue.

However, the addiction issue does not provide the husband with a total relief from the payments that he is obliged to make under the terms of the Separation Agreement. [ 81 ] I am of the view that the period in question that bears some examination for the purposes of providing relief would be for the years 2005, 2006, 2007, and 2008. I choose those years based on the evidence I have heard from the husband.

Those were the periods which he was in the total grip of his addiction. [ 82 ] Accordingly, I am of the view that there is a material change of circumstances that I should look at; it was significant and it was long-lasting during that period of time. [ 83 ] I am also of the view that to enforce the full amount of the Separation Agreement during that period of time would, in itself, due to the high level of the addiction, be grossly unfair.

[ 84 ] Accordingly, I would, for the purposes of this application, have a recalculation done of the amount owed for both child support and for spousal support such that the recalculation would be based on the husband's income, total income of $23,599 for the year 2005; the recalculation would be done for those purposes based on a taxable income for the year 2006 at $5,835; it would be recalculated on the basis of the income for 2007 at $22,135; and for 2008 at $4,908. [ 85 ] I would not provide any variation or cancellation of arrears for the period either preceding that or for the years from 2009 onward, and I would uphold the payments provided for in the Separation Agreement without varying the Separation Agreement in that regard. [ 86 ] For clarity then, the variation is only with respect to the amount of arrears to be recalculated for those years in question. [ 87 ] The amount for child support and for spousal support would be in accordance with the terms of the Separation Agreement from 2009 through to and continuing as at present date. [ 88 ] Given the whole of the circumstances, I would also cancel the default fees for those years that I have stipulated, and I would order that there be a recalculation of the interest amount for the arrears that are being cancelled for the periods in question. [ 89 ] That will leave the husband with still a significant amount of arrears to be discharged.

I am satisfied on the basis of the evidence I have heard that he is not in a position to pay those amounts in full. [ 90 ] Accordingly, I am going to make, in addition to the amounts that he is to pay pursuant to the Separation Agreement, the requirement that effective as at the 15th day of January, 2013, that he make additional payments of $200 per month as against the arrears amount, and that is in addition to his regular maintenance payments; the issue of payment of maintenance arrears will be subject to a review as to his financial circumstances in September 2013. [ 91 ] So that will, I think, be sufficient time for his financial circumstances to be clarified with respect to the job that he has or the new position that he holds with his employer. [ 92 ] Now, Mr.

Lunny -- [ 93 ] MR. LUNNY: Yeah, just going to -- [ 94 ] THE COURT: -- you will be taxed with the order of -- or tasked -- [ 95 ] MR. LUNNY: Yes, I'll do that. [ 96 ] THE COURT: -- I should say, with the order or the obligation of preparing the order. [ 97 ] MR. LUNNY: For the recalculation, did Your Honour wish to use the child support payment that -- that Jack has come up with for M.S.B. for those particular years? I -- so, for example, 2005, $23,599 is his income, so the child support payment they have down is $5,628 for the year.

I'll just divide that by 12 and plug that in? [ 98 ] THE COURT: Okay, let me just find -- just point me to where that is in the materials. I know I have -- [ 99 ] MR. LUNNY: It was in his financial statement. [ 100 ] THE COURT: Right. [ 101 ] MR. LUNNY: I think at the very end. [ 102 ] THE COURT: Very end, you are correct, yes, let me just locate that. All right, so the -- [ 103 ] MR.

LUNNY: I just -- because our Guidelines have changed, we're under the old ones and I was just going to make sure we used the same number. [ 104 ] THE COURT: All right, so you are suggesting if I look at the -- so for -- I think our starting year is two thousand and -- [ 105 ] MR. LUNNY: 2005. [ 106 ] THE COURT: -- five, so that the child support would be 5,628, is that correct? [ 107 ] MR. LUNNY: Divided by 12. [ 108 ] THE COURT: Yes. [ 109 ] MR. LUNNY: Yes, and zero for -- zero for spousal. [ 110 ] THE COURT: Yes. [ 111 ] MR. LUNNY: And 2006 is zero and zero. [ 112 ] THE COURT: Yes. [ 113 ] MR.

LUNNY: 2007 is 5592 divided by 12, and zero. [ 114 ] THE COURT: Yes.

[ 115 ] MR. LUNNY: And 2008 is zero and zero. [ 116 ] THE COURT: Yes. [ 117 ] MR. LUNNY: Excellent. [ 118 ] THE COURT: All right, so that will simplify the calculations. [ 119 ] MR. LUNNY: Absolutely, thank you very much, Your Honour. [ 120 ] THE COURT: All right. (REASONS CONCLUDED)