T.R.B. v. J.B-M. Date:, 2017 BCPC 75

Citation: T.R.B. v. J.B-M. Date: 20170306 2017 BCPC 75 File No: F62710 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.R.B. APPLICANT AN D: J.B-M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Applicant: K. Rongve

Counsel for the Respondent: J. Recalma Place of Hearing: Nanaimo , B.C. Date of Hearing: March 1, 2017 Date of Judgment: March 6, 2017 The Issues [ 1 ] Mr. B and Ms. B-M are the parents of D, now 6 years of age. On this application, Mr. B seeks increased parenting time and Ms. B-M seeks a retroactive increase in child support. Background [ 2 ] Mr. B is a police officer. His work

schedule is an eight-day rotation. On days 1 and 2, he works a day shift from 7:00 a.m. to 7:00 p.m. On days 3 and 4, he works a night shift from 3:00 p.m. to 2:00 a.m. Days 5 to 8 are his days off. His salary in 2016 was $87,916. [ 3 ] Ms. B-M is unemployed, and is housed and supported by her parents. She gave birth to a daughter in late 2016. Mr. B is not the father of that child. [ 4 ] Mr. B and Ms. B-M lived together from 2008 to 2011. After they separated, Ms. B-M applied for an order for spousal support and child support for: (

i) D and (ii) her son from a previous relationship (now age 10). On December 12, 2011, His Honour Judge Cowling dismissed the applications for spousal support and child support for the elder child. Judge Cowling’s Reasons for Judgment contain no reference to child support for D. Ms. B-M says that she instructed her counsel to advance that claim on her behalf, but that he did not do so. In the result, no order was made on that subject. Judge Cowling did not make an order in relation to parenting time for Mr. B.

Rather, he encouraged the parties to seek agreement on that issue. [ 5 ] On March 29, 2012, the parties consented to an order for Mr. B to have parenting time with D on his days off. That order was varied by a further consent order dated January 4, 2013. The latter order provided for a gradual increase in Mr. B’s parenting time, culminating in the

schedule now in effect, i.e. from 5:00 p.m. on day 5 of Mr. B’s work rotation to 5:00 p.m. on day 8. [ 6 ] Mr. B was under the impression that, under this parenting time schedule, he would have parenting time for more than 40% of the year, with the result that

section 9 of the Federal Child Support Guidelines SOR/97-175 would apply. Counsel agree that: a. He was mistaken. b. The existing parenting time

schedule gives him parenting time for only 37% of the year. c. As a consequence,

section 9 does not apply: Brougham vs Brougham 2007 BCSC 897 ; [2007] BCJ No. 1325 . In that case, Justice Truscott said @ paragraph 26:

Section 9 of the Guidelines is a code in itself. The 40 percent requirement is the threshold that must be met before there is any discretion as to the amount of child support to be ordered. It may be that in a situation where the time is very close to 40 percent, as in Berry , the court has some flexibility in determining whether the 40 percent threshold has been met, but I do not consider that 37 percent falls into that category. d. if I were to increase Mr. B’s parenting time on day 5 of his work rotation to include the period from 2:30 p.m. (when D gets out of school) to 5:00 p.m. (when Mr.

B’s parenting time begins under the present schedule), Mr. B would have parenting time for 40% of the year. Mr. B asks me to order that increase. Ms. B-M opposes that application. [ 7 ] Mr. B volunteers at D’s school on days 6, 7 and 8 of his work rotation. He does not volunteer on day 5 because it is his day of rest after four long workdays on days 1 – 4. [ 8 ] From the date of separation until 2016, Mr. B voluntarily paid child support for D. From 2011 to 2014, he paid $850 - $900 per month. Mr.

B unilaterally reduced his child support payment to $400 per month in April, 2014, to $300 per month in September, 2014, and to $200 per month in November, 2014. Ms. B-M expressed no objection to those reductions, and made no application for increased child support until January, 2016. Upon being served with that application, Mr. B took legal advice, and learned that he had been mistaken about his proportion of parenting time. In June, 2016, Mr. B filed and served his application for increased parenting time. [ 9 ] Since 2011, Mr.

B has also paid many of D’s expenses, including some of his clothing, all of his haircuts, most of his preschool and daycare fees, some of his school supplies, and the uninsured portion of his medical and dental expenses. [ 10 ] The first order for child support for D was an interim consent order made on June 13, 2016, under which Mr. B was ordered to pay $500 per month in child support “… without prejudice to further argument being made as to quantum in this matter”.

The Application for Increased Parenting Time [11] As noted, Mr. B consented to the parenting-time order of January 4, 2013 in the mistaken belief that it would afford him 40% ofthe parenting time. If it were shown that Ms. B-M shared that belief, and that the question was fundamental to the agreement, it might benecessary to consider whether the doctrine of mutual mistake would justify setting the order aside: Seppanen vs Seppanen (BC SC), [1991] BCJ No. 2165; 59 BCLR (2d) 26; LeSoleil Hotel & Suites Ltd vs Le Soleil Management Inc 2009 BCSC 1303;[2009] BCJ No. 1900 @ paragraphs 360 – 361.

It is unnecessary to consider the question because there is no evidence that, in January,2013, Ms. B-M was aware of

section 9 of the Guidelines or of the significance of 40% parenting time. As a result, it cannot be said thatthe order of January 4, 2013 was induced by a mutual mistake of fact. [12] Accordingly, I have jurisdiction to vary the existing order for parenting time if and only if “… there has been a change in theneeds or circumstances of the child …”: Family Law Act SBC 2011, c 25,

section 47. [13] Ms. Rongve says that the relevant change in circumstances is that D is now almost 5 years older than he was when the order forparenting time was made. That is a change in circumstances, but not, in my opinion, a sufficient change to meet the requirements ofsection 47. Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in afundamental way ... The question is whether the previous order might have been different had the circumstances now existing prevailedearlier.

Gilmour Herrick, 2013 BCSC 1591 [2013] BCJ No. 1920 @ paragraph 13 I would add that a variation of an existing order for parenting time is justified if and only if the purpose, and probable effect, of thevariation will be to meet an alteration in the child’s needs or the ability of the parents to meet those needs, arising from the change incircumstances. A variation in parenting time should not be ordered for the purpose of changing child support obligations. [14] The consent order made in 2012 included provision for increased parenting time as D matured.

Plainly, the parties understoodthat his needs would evolve over time, and that factor was taken into account in the agreement which they made. There is no suggestionthat D has any different needs than any other child of his age. The evidence discloses no factor which was not in the contemplation ofthe parents when the agreement was made. [15] Even if such a factor existed, it would justify a variation of the parenting time regime only if such a variation would materiallyenhance D’s well-being. An incremental 2½ hours of parenting time biweekly would make little or no difference to the relationshipbetween Mr.

B and his son. The issue matters only because it affects Mr. B’s child support obligation. Retroactive Child Support [16] Mr. B’s annual income has been between $85,000 and $90,000 since D was born. At that income level, the monthly childsupport for one child mandated by the Federal Child Support Guidelines SOR 97/175 is $793 to $836. As noted in Brougham, I have nojurisdiction to order child support in a different amount unless

section 9 applies. Mr. B paid slightly more than the required amount fromDecember, 2011 to April, 2014 and significantly less since then. [17] In DBS vs SRG 2006 SCC 37 , [2006] 2 SCR 231; 2006 SCC 37, Justice Bastarache said that the court must consider aseries of factors in determining whether to make a retroactive order for child support. a. First, it is relevant to consider whether there has been a previous order or agreement on the subject of child support.

If so, thepayor parent may be entitled to assume that his obligations are determined by the existing order or agreement, and to arrange his affairson the assumption that his child support obligation is limited to that set out in the order or agreement. That factor does not assist Mr. Bin this case - there was no previous order or agreement. In arranging his affairs, Mr. B relied on his own assessment of his legalobligations which, as it turned out, was mistaken. b. Second, the court must consider the reasons for the delay by the recipient parent in enforcing the child support obligation.

Ms.B-M said that, until early 2016, she was not aware that she was entitled to apply to the court for increased child support. I find it difficultto reconcile that assertion with: (

i) the fact that she filed an application for child support for D in 2011; and (ii) her evidence that sheinstructed her counsel to proceed with that application, and that he ignored that instruction. c. Third, the court must consider whether there has been “blameworthy conduct” on the part of the payor parent. Justice Bastarachedefined “blameworthy conduct” as “… anything that privileges the payor parent’s own interests over his/her children’s right to anappropriate amount of support”.

He said that the presence or absence of “blameworthy conduct” is a “subjective question”, and that “…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 thepayor parent is engaging in blameworthy conduct”. I have no doubt that, throughout the period from December, 2011 to January, 2016,Mr. B believed that he was fully discharging his child support obligation. He thought that his obligations were governed by

section 9 ofthe Guidelines, and that he was meeting those obligations by paying most of D’s special and extraordinary expenses. At paragraph 109of DBS vs SRG, Justice Bastarache said: … the conduct of the payor parent could militate against a retroactive award. A court should thus consider whether conduct by the payorparent has had the effect of fulfilling his/her support obligation. For instance, a payor parent who contributes for expenses beyond his/herstatutory obligations may have met his/her increased support obligation indirectly.

I am not suggesting that the payor parent has the rightto choose how the money that should be going to child support is to be spent; it is not for the payor parent to decide that his/her supportobligation can be acquitted by buying his/her child a new bicycle: see Haisman v. Haisman (1994), 1994 ABCA 249 , 22 Alta.L.R. (3d) 56 (C.A.), at paras. 79-80. But having regard to all the circumstances, where it appears to a court that the payor parent has

contributed to his/her child's support in a way that satisfied his/her obligation, no retroactive support award should be ordered. In January, 2016, Ms. B-M brought the present application. At that time, Mr. B was informed by his counsel that

section 9 of the Guidelines did not apply to his case. In June, 2016, he consented to an order to increase his child support payments to $500 per month, and began paying at that rate on July 1, 2016. Applying the Guidelines to his 2016 income, he ought to have been paying $836 per month. While the evidence does not permit precise quantification, when one takes into account the amounts which Mr. B paid for D’s expenses during 2016, it is likely that his total monthly expenditure, since June, 2016 approximated his obligation under the Guidelines. However, that does not resolve the question. If one assumes that Ms.

B-M’s income-earning capacity is zero, Mr. B ought to be paying all of D’s special and extraordinary expenses in addition to the child support mandated by the Guidelines. So, on that assumption, Mr. B ought to have known since January, 2016 that he was underpaying his child support by $336 per month. The assumption may or may not be valid. The evidence on this application is insufficient to assess Ms. B-M’s income-earning capacity. As a result, I cannot determine: (

i) what proportion of special and extraordinary expenses Mr. B ought to have been paying in addition to the basic child support mandated by the Guidelines ; or (ii) the quantum of Mr. B’s underpayment in 2016. d. Fourth, the court must consider the present needs and circumstances of the child. One objective of a child support order is to ensure that the child enjoys roughly the same standard of living in the home of each parent. Another is to ensure that the child’s needs are met.

In a case like this, in which one parent earns a significant income and the other none, a retroactive adjustment of child support may foster both of those objectives. e. Fifth, the court must consider any hardship which a retroactive award may inflict on the payor parent. Mr. B suffers from post- traumatic stress disorder as a result of an assault which he suffered in the course of his duties some years ago. He is assigned to desk duties as a result.

It was apparent to me during his evidence that he suffers from considerable anxiety, and that his ability to manage his financial affairs is adversely affected by his condition. A substantial retroactive award would significantly increase his anxiety level, and might affect his ability to continue to work. Taking all five factors into account, I do not think that a retroactive order should be made in this case. Each spouse was proceeding under a mistaken impression of Mr. B’s child support obligation. Mr. B has made substantial contributions to D’s support, both in cash and by caring for him 37% of the time.

Over all, he has acted in good faith and substantially discharged his obligation. Special & Extraordinary Expenses [ 18 ] No application has been made under

section 7 of the Guidelines. On such an application, it would be necessary to assess Ms. B- M’s income-earning capacity. The evidence on this application is insufficient to support such an assessment. Disposition [ 19 ] Mr. B’s application for increased parenting time is dismissed. [ 20 ] I assess Mr. B’s child support obligation at $817 per month, effective March 1, 2017. [ 21 ] The apportionment of responsibility for special and extraordinary expenses remains an unresolved issue, and I make no order in relation to it. March 6, 2017 ________________________________ T. Gouge, PCJ