IPC v. MCL Date:, 2013 BCPC 64

Citation: IPC v. MCL Date: 20130227 2013 BCPC 0064 File No: F6360 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: IPC APPLICANT AND: MCL RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Applicant: No Appearance

Counsel for the Respondent: No Appearance Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: February 12, 2013 Date of Judgment: February 27, 2013 [ 1 ] THE COURT: IPC applied on November 17th, 2011 to retroactively vary a child support order made by my brother Judge Steinberg on August 10th, 2011 and seeks a retroactive order that MCL now pay child support to him for the two children, namely, C, born November 28th, 1997 now age 15, and N, born March 8th, 1999, now almost age 14. [ 2 ] The mother, MCL, did not file a reply to this application so far as I can determine on my review of the file. [ 3 ] These parents commenced cohabitation in 1995, married in 1998, and separated in October of 2005. [ 4 ] On January 17, 2006, Antifaev P.C.J. made an order which remains in effect granting them joint custody and joint guardianship rights with respect to their two children.

For the most part, the children have lived for equal periods of time with each parent on a week- on/week-off regime with the summer being split month-on and month-off. [ 5 ] The father was then also ordered to pay the mother $200.00 in child support. This order was continued by Angelomatis P.C.J. on February 16th, 2010, and on May 4th, 2010 was increased to $497.00 a month by Pothecary P.C.J. who then found IPC's current annual Guidelines income to be $51,000 and MCL's to be $18,000. [ 6 ] On August 10th, 2011, Steinberg P.C.J. ordered IPC to pay MCL $122.00 a month child support commencing September 1st, 2011.

The order makes no reference to the Court's findings with respect to the parents' then annual Guidelines incomes. [ 7 ] The application then considered by the Court was brought by the Minister under the Employment and Assistance for Persons with Disabilities Act who sought an order of child support pursuant to an earlier assignment made by IPC of such rights against MCL by reason of his September 2011 application for and receipt of certain provincial government income assistance benefits which I shall come to. [ 8 ] It appears to be common ground, at least on counsel's review of the transcript of the proceedings before Steinberg P.C.J., that he found IPC's income to be approximately $26,000 and MCL's income to be approximately $15,000. [ 9 ] The basis for IPC's November 17th, 2011 application is that his income had decreased in a material way since the August 10th, 2011 order was made.

The application alleges that on November 17th, IPC was not receiving Employment Insurance and was then unemployed. [ 10 ] At the hearing before me, counsel for the Minister said there were four issues that I was asked to determine as follows: 1. What was the mother's current Guidelines income? 2. Whether income should now be imputed to her under Guidelines s. 19. 3. How the parties' child support obligations should be calculated under Guidelines s. 9 having regard to the fact that the two girls have lived equal times with each parent and this arrangement continues. 4.

Should there be a retroactive variation of the order made by Steinberg P.C.J. on August 10th, 2011 and any arrears outstanding be cancelled? I note his order is said to be a final order. [ 11 ] I will deal with the above issues and related issues in due course. [ 12 ] Pursuant to s. 20 of the Family Relations Act, IPC must demonstrate on the evidence that there is a material change in his circumstances before I can vary the order made by my brother Judge Steinberg.

I am satisfied that he has done so based on all the evidence presented at this hearing, most importantly the material decrease in his income. [ 13 ] The August 10th, 2011 order is presumed to be correct when made. I will deal with the parties' relevant circumstances since August 10th, 2011 each in turn. IPC [ 14 ] He was shown the mother's October 19th, 2012 affidavit when she asserted that N had gone to live with her since April 28th, 2012 to and inclusive of September 30th, 2012, and when questioned said he was unsure of these dates but he thought N had lived full- time with her mom starting in late May.

I prefer her evidence on point and find that for five months, May to September 2012, N lived with her mother full-time and only C moved back and forth between the parents on an equal week-on/week-off basis. [ 15 ] IPC said he was on and off work from 2006 to 2010 and made only one payment of $200.00 child support under the January 17th, 2006 Judge Antifaev order, but in May or June 2010 paid all outstanding arrears fixed on May 4th, 2010 at $7,788. [ 16 ] He testified that prior to August 2010, he was employed as a maintenance electrician at UBC but stopped working in August 2010 on the advice of his doctor and went on medical disability benefits with Employment Insurance benefits in addition.

I believe by

the term “medical disability benefits” he might have been referring to Workers' Compensation ("WCB") partial disability benefits which he said were in the amount of $324.24 a month. The Employment Insurance finished at the end of August 2011 after Judge Steinberg made his above order. [ 17 ] He then applied for income assistance and once he commenced receiving the same, he then applied for the Persons with Disability Allowance ("PWD") in September or October 2011.

These benefits first started in January 2012. [ 18 ] IPC swore an affidavit in this case on September 20th, 2012 which appends his application for PWD benefits. This application outlines at some length his various physiological and psychological conditions including a ruptured disc problem at the level L5-S1 and an injury to his right shoulder at work giving rise to restrictive movement and headaches. [ 19 ] His application is supported by his physician Dr. Edamura who lists in a handwritten report among IPC’s various diagnosed conditions osteoarthritis of his hip and depression.

His impairment was said to be likely permanent. [ 20 ] As well, Dr. Edamura provided to the PWD authority a copy of his earlier correspondence with IPC's lawyer in June of 2007. I have reviewed this correspondence. It describes IPC's motor vehicle accident on July 15th, 2005 and the injuries he then sustained and the course of his return to work in May 2006 on a part-time basis. Therein, this doctor opined (at p. 9) that he predicted IPC would remain totally disabled from his usual occupation for several more months and possibly for years or permanently.

He was then said to be getting worse. [ 21 ] In other evidence before the Court relevant to IPC, there is a Canada Revenue Agency ("CRA") Notice of Assessment for the year 2011 which states his income this year to be $26,388 which in essence is the figure used by Judge Steinberg when he made the August 10th, 2011 order. The sources of same are said to be Employment Insurance, disability benefits to on or about September 30th, 2011, WCB benefits, and income assistance. [ 22 ] His 2010 Notice of Assessment discloses total income of $47,036.

He now receives $267.00 a month for his share of the Child Tax Benefit. [ 23 ] Following the first day of trial on October 29th, 2012, counsel before me on February 12th, 2013 indicated that he believed there had been some incorrect evidence given by IPC on the first day in Court who was then trying to explain his current income for me. [ 24 ] In the result, Mr. Krikke filed an affidavit sworn by a Family Maintenance worker, one David Robinson, on January 30th, 2013 following his review of IPC's Family Maintenance file.

This affidavit states that IPC currently has a total monthly entitlement of $1,517.65 which includes $611.23 attributable to other household members. I understand his two daughters now living with him half- time are these other household members and that $906.42 of the above amount is his personal entitlement. Mr. Robinson also states that the monthly Canada Pension Plan amount he receives and (I think he means WCB amount) of $324.24 is deducted dollar-for-dollar from his total entitlement of $1,517.65.

In the result, counsel submits that IPC's current annual Guidelines income for child support purposes would be $906.42 per month times 12 months or $10,877.04 per year. [ 25 ] MCL did not object to this Court using this figure or argue that IPC could now work at gainful employment and hence was under Guidelines s. 19 either intentionally unemployed or under-employed. [ 26 ] I have no other reliable figure to use for IPC's annual Guidelines income in light of Mr.

Robinson's above analysis and therefore find for purposes of this hearing that this same income figure can be used in this year as well, namely, $10,877.04. [ 27 ] I turn now to MCL's evidence, very little of which was seriously disputed by IPC or counsel for the Minister.

MCL [ 28 ] She said IPC had made no payments under the August 10th, 2011 Steinberg P.C.J. order, but that she had through the Family Maintenance Enforcement Program ("FMEP") received his income tax return and I think she meant his 2011 tax rebate or refund in late August 2012 of approximately $1,500. [ 29 ] Attached to her September 28th, 2012 affidavit sworn in this proceeding is an FMEP statement for the period January 1st, 2011 to September 24th, 2012 showing that on August 23rd, 2012 FMEP received a federal government payment of $1,566.40 and that at September 24th, 2012 the total arrears of child support plus interest were said to be some $1,618.13.

She testified this lump sum was the only child support he had paid from August 23rd, 2011 to October 29th, 2012, the first day of the hearing before me. She admitted she had paid no child support to him in the same period. [ 30 ] She testified that in August 2011 she was working as a certified dental assistant on a permanent part-time basis with one Dr. S where she continued to work in October 2012. At October 2012 she had been working for some six years as a certified dental assistant, more recently at 30 hours per week.

Her total experience as a dental assistant is said to be close to 19 years in duration. [ 31 ] She seemed to agree she worked on average each month from August 2011 to October 2012 on this basis and was paid $23.00 an hour. She got overtime if for example she worked through her lunch hour which she did on average twice per week. She believed it was time and a-half times her hourly rate and then said it was only straight time. She agreed her average work week was 32 hours a week in the above period.

I find that this average work week continues to date. [ 32 ] She testified that she only worked 32 hours a week as she had arthritis in her hands, neck and feet, and got really bad headaches over the last three to four years which condition she said she manages with certain drugs she takes including Robaxacet. [ 33 ] MCL filed a letter from her general practitioner who has treated her over the last two years, one Dr. Colin McNeil, dated October 24th, 2012. This letter states in part that MCL was also involved in a motor vehicle accident in 2007 and then suffered a neck injury.

He then states as follows and I quote his letter verbatim:

She has headaches from stress and neck pain. The headaches are also associated with paresthesia, pins and needles in her left hand. Other complaints are lower back related to position at work. She has been depressed because of the verbal abuse that her husband gives at their encounters. She no longer speaks to him. She works about 30 hours a week. Because of her medical issues, she cannot work any more hours.

If she works more hours, she may have to go on disability again. [ 34 ] The correctness of this opinion is not really challenged by counsel for the Minister or IPC. [ 35 ] I have reviewed MCL's October 19th, 2012 affidavit which includes a June 18th, 2010 Burnaby General Hospital x-ray report of her cervical spine and this x-ray then disclosed mild degenerative changes at the C5-6 and C6-7 levels in her neck. She testified that she now works through her symptoms related to her arthritis. [ 36 ] MCL testified as well with respect to her financial affairs. Her 2009 income was $33,600.

Her income from all sources in 2010 was some $25,520 which included $1,904 Employment Insurance for a period of approximately two months in the fall of this year when she was off work. Her income from all sources in 2011 was $21,802 as per Canada Revenue Agency Notice of Assessment. Her income from all sources in 2012 was agreed to be $33,403 and not the 2011 figure contained in her October 19th, 2012 Financial Statement on file. [ 37 ] She believes her income in 2013 will be closer to $26,000 because Dr. S is dropping Fridays in June 2013 and she will lose two Fridays of work each month.

She said she will also not work any Mondays this year. [ 38 ] She explained that her ability to work 30 to 32 hour weeks is dependent upon the days the dentists for whom she now works elect themselves to work, for example, in 2011 Dr. S spent three weeks on holiday in Hawaii, and one week somewhere else in March. She gave me to believe she did not then work. In certain months her dentist works on Mondays and in others he does not. [ 39 ] There seemed to be no real

schedule she could tell me about for 2013 with respect to when her employer dentists would be off work and when they would be at work. [ 40 ] She testified she had taken no days off in 2011 or 2012 by reason of any medical condition or symptoms from same. There were no days when she could not work for this reason in these two years. She also said several times that she had not received any compensation which she had not declared to Canada Revenue Agency. This would include cash payments for work done. There has been no "under the table work" according to her testimony.

This testimony was not seriously challenged by counsel or IPC on cross- examination. [ 41 ] She receives $288.00 Child Tax Benefit for the two girls at this time as well as a GST rebate three to four times a year of approximately $200.00 each time. [ 42 ] On February 12th, 2013 she testified that she was now capable of working 30 hours a week in part because she takes medications to deal with her medical problems. There is no medical evidence she cannot do her current job going forward on this basis.

She agreed this year she could work for other dentists for example to make up hours not worked simply because her employer dentist, Dr. S, was himself not working for example on Fridays or Mondays. [ 43 ] That said, she testified she was looking at getting a job working in a recreation centre, a position with a pension and a job that would not be affected by her arthritis conditions. She did not outline in any detail her efforts to find such work.

She admitted her circumstances this year are somewhat unclear, I understood largely because of her desire to change jobs and perhaps too because of some uncertainty in the dentist's work schedule.

No evidence was given as to the type of job MCL might wish to take at a recreation centre nor as to what the salary range or hourly rate might be for same compared to her current position, nor as to her qualifications to do such work. [ 44 ] There is no medical evidence before me to support or suggest this type of work is necessary due to her current medical condition, symptoms, or limitations which she has said did not preclude her from working on average 30 to 32 hours a week in the last two years nor as I have said is there currant medical evidence that she cannot now do her current work up to 30 to 32 hours per week on average. [ 45 ] I have considered Guideline s. 19(1)(

a) referred to by Ms. Page, counsel for the Minister on the first day of the trial in this matter. I note that Mr. Krikke, new counsel for the Minister on February 12th, 2013, did not in his closing argument deal with Guideline s. 19 at all. He or IPC bear the onus of proving on the balance of probabilities that MCL is intentionally unemployed or under-employed if they wish to rely on it and assert that some level of income above what she has now reported to CRA should be used in my calculating child support (see Windle , 2010 BCSC 18 ).

Such proof has not been offered. [ 46 ] I am also satisfied on the evidence offered by MCL, including her general practitioner's opinion, that her ability to work as a certified dental assistant having regard to her current medical condition is somewhat limited to 30 to 32 hours per week on average. This level of work does not in my view engage the provisions of Guideline s. 19(1)(

a) which deals with intentional unemployment or under- employment. [ 47 ] Not yet strictly relevant in this case are the following principles, sometimes employed by courts in addressing Guideline s. 19(1)(

a) considerations: 1. Income can be imputed to a payor of child support who does not use his/her qualifications and experience to earn the highest level of income possible (see the case of C.M.E. v. J.D.E. , 2009 BCSC 519 ). 2. The payor's earning capacity is a very relevant consideration when the Court assesses what his or her current Guidelines income should be. A payor cannot voluntarily place himself or herself in a position where he or she cannot earn an historical level of income and expect that the Court will set child support based on a new, lower level of income as compared to the historic level (see the case of Lou , 2008 BCSC 490 ).

3. Related to 2, a payor of child support cannot avoid child support obligations by a self-induced reduction of income (see the caseof Watts v. Wille, 2004 BCCA 600). 4. The principles the Court uses in assessing whether or not a payor parent is working up to his or her income earning capacity arediscussed in the Hanson case (BC SC), [1999] B.C.J. No. 2532 (SCBC).

Discussion [48] I find that the Guidelines incomes of both parents for the three years from 2011 to 2013 based on the evidence that I have heardare as follows: Year MCL IPC2011 $21,802 $26,3882012 $33,403 $10,8772013 $33,403 $10,877 [49] I have found the mother's current Guidelines income to be the same amount as I understand she will be reporting to CanadaRevenue Agency for the tax year 2012.

I am satisfied that this amount having regard to (1) her medical condition not having been animpairment or impediment to her work in the last two years and (2) her willingness to look for other similar work if she is unable to workas a dental assistant on the same basis for her current employer due to his own work

schedule would be a fair amount to use for hercurrent Guidelines income and child support calculations going forward. I have found that no additional income should now be imputedto her. [50] It is not argued any additional income should be imputed to him. [51] How should one now calculate the current obligation of each parent to contribute to child support for the two girls? [52] In my view, under Guidelines s. 9 and having regard to the principles in the case of Contino v.

Leonelli-Contino, 2005 SCC 63it would be fair to use the straight set-off approach as each parent has each child more than 40 percent of the time. [53] Currently, IPC's obligation for two children based on a current Guidelines income of $10,877 would be $19.00 per month, andMCL's obligation based on a current Guidelines income of $33,403 would be $501.00 per month, with a net difference of $482.00 permonth payable by her to him. [54] There will be an order that she will pay this sum to IPC on the 1st of March 2013 and on the 1st day of each and every monththereafter as long as the two children are children as defined by our relevant provincial statute, now the Family Relations Act and shortlyto be the Family Law Act, and so long as they live on a 50-50 basis with each parent. [55] This $482.00 amount per month would also be payable by the mother to the father from January 1st, 2012 onward as theirincomes were the same in this year as in the current year, however the Court could only make such an order in the event it was preparedto make a retroactive order for child support. [56] In his closing argument, Mr.

Krikke invites me to make a retroactive variation of the amount of child support Judge Steinbergordered on August 10th, 2011 and he suggests various start dates including: 1. September 2011 the date IPC went on income assistance. 2. November 17th, 2011, the date IPC's application seeking a retroactive variation was filed in Court. 3. January 2012, the date he first went on PWD benefits. [57] He also submitted that in the five months from May 1st to September 30th, 2012 when N lived full-time with her mom but Conly 50 percent of that time, that I do a calculation on this basis.

I will return to this point below. [58] I characterize IPC's application filed November 17th, 2011 as a retroactive claim for child support from MCL. That is what itsays. Hence, the principles in the leading case of S.D.B. v. G.S.R., 2006 SCC 37 apply. The four factors I am to consider in determiningwhether or not to make such an order are as follows: 1. The reason for the recipient parent's delay in seeking the award, and if there has been one, is there a reasonable excuse for same? 2. The blameworthy conduct of the payor parent, if any. 3. The circumstances of the child or children. 4.

Any hardship that the retroactive award would cause. [59] Generally courts have held that the date of the retroactive award should be the date the payor parent receives notice of the claimbeing an indication that the amount should be increased. In this case, this date would be on or about November 17th, 2011 when hisapplication was filed and served.

[ 60 ] I have considered the evidence given by both parents that they each made some payments for expenses of benefit to the two daughters that were not strictly child support. For example these are referred to in MCL's October 19th, 2012 affidavit at Exhibit B, pp. 1 to 5. Some of the expenses shown are not strictly for the two girls, for example, the $1,286.18 amount of car payments set out at p. 4.

Nonetheless, I find that notwithstanding there was no court order requiring MCL to pay child support, she did help out historically with certain payments of direct benefit to them, for example, school related costs including for C's grad costs with no contribution apparently from the father, IPC. [ 61 ] Considering all of the above four factors, I am of the view that a retroactive award should be made in this case but effective January 1st, 2012 and that the correct amount would be $482.00 per month payable by MCL to IPC on: 1.

The 1st of January 2012 and the 1st day of each month thereafter to April 1st, 2012, namely, for four months, and 2. On the 1st day of October 2012 and the 1st day of each and every month thereafter to and including February 1st, 2013 or five months. [ 62 ] I turn now to the five month period May 1st to September 30th, 2012. How should child support be calculated in this period? [ 63 ] The approach I have considered and intend to adopt is as follows: what should IPC have paid to MCL for N alone in these five months, assuming his Guidelines income was $10,877. The answer is $6.00 per month. He paid her nothing.

Hence on this simple analysis, he owes her $6.00 times five months or $30.00. [ 64 ] Using the straight set-off approach, what was the obligation of each parent for child support for C who lived 50 percent of the time with each parent in this five month period?

Again, using the straight set-off approach, IPC's obligation for one child is $6.00 per month; MCL's obligation for one child would be $303.00 per month in which case she ought to have paid IPC $303.00 minus $6.00 or $297.00 per month times five months in the above period for a total of $1,485 using the straight set-off approach for one child. [ 65 ] In the result, MCL owes IPC from January 1st, 2012 to and inclusive February 1st, 2013 or over 14 months, (1) nine months of child support at $482.00 per month or $4,338 plus (2) five months in the period May 1st to September 30th, 2012 at $297.00 per month or $1,485 in total which two amounts when added together result in a figure of $5,823, but less the credit of $30.00 referred to above, namely, what IPC should have paid her but did not for N or a net total of $5,793. [ 66 ] I ordered that this sum may be paid in full at any time by MCL to IPC but must be paid in the monthly amount of not less than $100.00 per month commencing March 1st, 2013 and on the 1st day of each and every month thereafter until paid in full. [ 67 ] It follows from my above decision that the order of Steinberg P.C.J. made August 10th, 2011 is varied as herein provided effective January 1st, 2012.

There are no arrears owing thereunder possibly save for the period August 10th, 2011 to December 31st, 2011 when this order requiring IPC to pay her $122.00 was made. [ 68 ] I order that a copy of these reasons be provided to FMEP and that within 60 days of their receipt of same, they do an accounting as to what arrears of child support, if any, are now owing by IPC to MCL and as to what overpayment of child support, if any, IPC made thereunder to date, including by way of funds attached. [ 69 ] I also make the following orders: 1.

On or before May 15th, 2013 and on or before May 15th in every subsequent year that either party is required to pay or contribute to child support to the other for either or both children, the parties will exchange (

a) complete copies of their tax returns for the prior tax year and (

b) a copy of any Notices of Assessment or Re-assessment either receives from Canada Revenue Agency with respect to these tax years within ten days of his or her receipt of same. 2. The parties will now contribute to any agreed upon Guidelines s. 7 special or extraordinary expenses for either child based on the father's Guidelines income at this time of $10,877 and the mother's Guidelines income at this time of $33,403 in the following percentages: the mother 75 percent, and the father 25 percent. 3.

In the event they cannot agree on what is a proper Guidelines s. 7 expense or the amount of same, either may apply to the Court for directions. 4. The Honourable Judge Dyer will not be seized of any further applications in this case including any that might be brought under para. 69 (3) above. (ORAL REASONS FOR JUDGMENT CONCLUDED)