J.R. v. J.C.B. Date:, 2011 BCPC 25

Citation: J.R. v. J.C.B. Date: 20110203 2011 BCPC 0025 File No: F5872 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: J.R. APPLICANT AND: J.C.B. RESPONDENT RULING OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Applicant: D. Batist Appearing in person: J.C.B. Place of Hearing: North Vancouver , B.C.

Date of Hearing: December 1, 2010, January 10, 2011 Date of Judgment: February 3, 2011 Addendum [ 1 ] I rendered a decision in this matter on October 7, 2010 holding that the child of the parties, M.W.R., born [DOB], continued to be a child under the Federal Child Support Guidelines despite his having turned 19 on [DOB], 2009. The parties thereafter appeared before me on two occasions seeking clarification of the effect of the Order. Specifically, Mr. B. took the position that my finding was prospective from January 1, 2010, and not retroactive to M.’s 19 th birthday.

There was therefore a dispute as to whether any child support was payable for September to December 2009. Mr. B. relied upon certain wording in my Reasons, and the fact that M. did not attend a program of education during those months. [ 2 ] On the December 1, 2010 appearance, the matter was adjourned for the parties to explore a consent resolution of the issue. On January 11, 2011, they reached a consent, based in part upon my indication to Mr. B. that I was inclined toward Mr. Batist’s submission that the Order was retroactive.

I indicated at that time that I would nonetheless file an Addendum to my Reasons for Judgment of October 2, 2010, to provide the parties with a ruling on the issue. [ 3 ] In the October 7, 2010 Reasons for Judgment I provided the following reasons for my determination that M. remained entitled to child support: Firstly, M. is currently enrolled in what is deemed to be a full-time course of study. Secondly, I agree with Mr. Batist’s submission that

M. has not demonstrated any intention to withdraw from post secondary schooling for any length of time. He has had some false starts, but is entitled to a reasonable transition period after completing high school: C.(C.L.) v . C. (B.T.) , 2006 BCSC 1787 , para. 9 . I agree that the fact that he worked full-time in the fall of 2009 is no different from being out for the summer after the spring term.

Although it has relevance to his ability to contribute to his own support, it does not mean M. becomes an adult for child support purposes. [ 4 ] I have emphasized the portion of those Reasons that I view as relevant to the issue raised at this time. One flaw in Mr. B.’s position is that a child does not automatically cease to be entitled upon turning 19 and then become “reinstated” after a court finds him to be still a child.

The law governing the determination of whether a child remains eligible for child support and to which I referred in the earlier Reasons does not support such a piecemeal approach to the issue: C.(C.L.) v . C. (B.T.) , 2006 BCSC 1787 . [ 5 ] I also observed in my Reasons that earlier Orders in the matter had not dealt with what would occur after M. turned 19, and that Judge Moss had stated that if he did not continue in his education the issue of child support would need to be revisited. Mr. B. points to that wording as suggestive that his obligation ceased automatically when M. turned 19.

To the contrary, however, Judge Moss’s Reasons contemplated that the obligation would continue until it was revisited, and presumed it would continue unless M. discontinued his education. Neither Judge Moss’s Reasons nor the passages in my Reasons that Mr. B. points to support a finding that Mr. B.’s obligation ceased in August of 2009. [ 6 ] Another passage in my October Reasons that may have given rise to the confusion was the following discussion of whether the application before me was properly characterized as one to cancel arrears or to vary an existing order: Based on the comments of Martinson J. in C. v .

C. , Mr. Batist submits that the question is not whether the mother has proven the child’s status, but whether the arrears that have accumulated under the order should be cancelled. He argues that the onus therefore lies on the father to establish that it is grossly unfair not to cancel them. In this case, however, Judge Moss’s order did not establish whether M. would continue to be eligible for child support after completing the orientation program, and turning 19.

While I note the comments of Martinson J. to the effect that child support does not automatically stop where a dependent comes within the definition of child under the legislation, in that case, there had been a prior order that fixed the father with knowledge that he could not unilaterally stop paying. While it would have been preferable for Mr. B. to apply to vary, in this case he apparently relied upon advice in ceasing to pay. [ 7 ] Those remarks however dealt with what test I would apply in considering whether to extend or vary the child support obligation. They did not deal with the issue of retroactivity.

I can appreciate that the wording may have led to Mr. B.’s conclusion that there would be no arrears as a result of my decision, but that was not the intended result. I meant merely to establish that Mr. B. was not saddled with the test of “gross hardship” in challenging the continuation of child support after M.’s birthday. [ 8 ] The other aspect of my Reasons that no doubt caused confusion was the following passage: At the father’s 2009 declared income of $89,058 the Guideline amount would be $815.00 per month.

Considering M.’s ability to contribute to his own support, in my view the father’s obligation should be set at $700.00 per month, effective January 1, 2010. This is just over 86% of the Guideline amount. [ 9 ] That passage was not intended to set January 1, 2010 as a commencement date for the child support obligation. I had earlier observed that Mr. Batist had conceded that the 2009 income figure should be used for 2010, which was to Mr. B.’s advantage, as Judge Moss had used a three year average.

I had also observed that the Order entered as a result of Judge Moss’s decision extended the $990 monthly child care obligation past December 31, 2008 by a consent change to the wording, specifying that amount to be payable on the 1 st of each month “thereafter”. [ 10 ] I must agree therefore with Mr. Batist’s submission that the amount for child support for 2009 continued at $990, absent a variation.

I regret not having specifically addressed this in my Reasons, and having caused the ensuing confusion. [ 11 ] The variation in the child support amount was intended to be prospective from January 1, 2010; however, the finding that M. remained a child for Guideline purposes was retroactive to his 19 th birthday. The amount therefore continued at $990 until varied effective January 1, 2010. [ 12 ] The result is that there were some arrears for the balance of 2009.

As the parties have arrived at a consent resolution of the amount, I need not fix those arrears, and I decline to do so. ________________________________ The Honourable Judge C. Baird Ellan Provincial Court Judge