DB v. RM Date:, 2012 BCPC 418

Citation: DB v. RM Date: 20121024 2012 BCPC 0418 File No: F6534 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: DB APPLICANT AND: RM RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Appearing on their own behalf: The Applicant, D.B.

Appearing on their own behalf: The Respondent, R.M. Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 24, 2012 Date of Judgment: October 24, 2012 [ 1 ] THE COURT: On July 4th, 2000, my sister Judge Pothecary ordered RM to pay child support to DB (now DS) in the amount of $321.00 a month for their child, E, born January 4th, 2000. He is now almost age 13. This was to commence August 1st, 2000. She found he then had a current Guidelines income of some $37,200. The parties were not then cohabiting and E lived full-time with his mother.

These two facts changed almost immediately as I shall shortly outline. [ 2 ] DS says he did not pay these amounts. RM was at the time working as a sales representative for MPH Supply Ltd. in Coquitlam. [ 3 ] On May 30th, 2011, DS filed an application with this Court seeking to vary the July 4th, 2000 child support order made by Judge Pothecary and seeking an increase in the amount he paid thereunder.

She did not expressly seek retroactive child support therein nor did she seek to recover any arrears that might be said to be outstanding on May 30th, 2011 under the July 4th, 2000 order. [ 4 ] I find on the evidence that I heard that this was the first notice that RM had that DS was potentially seeking retroactive child support although I emphasize the documentation does not expressly make that reference. [ 5 ] RM filed a reply on June 29th, 2011 stating that he was currently paying $500.00 per month without being legally forced to, had remarried, and had two other children to provide for as well. [ 6 ] His application at page 2 was for a contribution or compensation for daycare, sports activities, school supplies and activities, et cetera.

He did not state over what period he was making this claim.

His access claim therein is not relevant to this proceeding. [ 7 ] On August 9th, 2011, Judge Pothecary varied her earlier order by consent to an amount of $939.00 a month child support commencing September 1st, 2011 payable by RM to DS, and based on RM having an annual income of some $104,000 at the time this order was made. [ 8 ] She further ordered that the arrears -- and she made no order as to what they were or when they started -- were to be dealt with at a family case conference set for November 22nd, 2011. [ 9 ] This family case conference was held before Judge Stone of this Court who made the following orders and I read these directly from the Court file

Summary of Proceeding sheet: 1. Both parties to do a timeline and map out in the timeline what occurred at what time, where the children were, and what orders were existing at the time, and if there were issues re your incomes comparable to that time and then tell us that and what you should pay, and both swear out an affidavit as to the facts of the timeline and what you were doing and your incomes as you went along. 2. The timeline and affidavit will be filed in support of a timeline with respect to the issue of cancelling arrears and that is all were are dealing with. 3.

The timeline and affidavit are to be filed at least 30 days prior to the hearing date. [ 10 ] No more formal order than these were ever entered in the Court file. [ 11 ] The matter was then adjourned by Judge Stone to a hearing which I conducted on March 28th, 2012.

The parties complied with Judge Stone’s order by filing sworn affidavits on January 20th, 2012 (DS) and February 16th, 2012 (RM). [ 12 ] I should add that at the outset of the hearing before me, DS said that RM had paid the amounts ordered by Judge Pothecary on August 9th, 2011, namely, $939.00 a month, and said the claim she was advancing for arrears was in the three year period August 8th, 2008 to August 9th, 2011.

She said August 8th, 2008 was an arbitrary date, being the year she was married. [ 13 ] Notwithstanding the state of her application filed May 30th, 2011, it appeared at the hearing before me DS was not really relying on the order made by Judge Pothecary on July 4th, 2000 and asserting she wanted to recover arrears under it while her son lived equal times with her and RM. Rather, she was really seeking a retroactive variation of child support.

She was asserting that from September 1st, 2008 to April 30th, 2011, during this equal shared custody arrangement when he paid her no child support, that he should have paid her something by reason of his substantially increased income and the effect of Guidelines s. 9. [ 14 ] RM said from August 1st, 2008 to June 15th, 2011 he paid no child support to her but did not agree that there were arrears outstanding of some $11,148.83 or that he should pay her anything for this period of time. [ 15 ] It seems DS enrolled RM in the Family Maintenance Enforcement Program ("FMEP") effective August 1st, 2008.

An FMEP account was filed at the hearing before me based on Judge Pothecary’s July 4th, 2000 order amount, namely, $321.00 a month, showing that at June 27th, 2011 his arrears stood at some $11,235. This account was marked as Exhibit 1 at the hearing. The FMEP cover letter of June 28th, 2011 suggests the total arrears were some $12,138.49. I assume the difference in these two amounts is interest and FMEP fees. [ 16 ] Technically, these arrears might be said to be outstanding because neither party has sought to vary or rescind Judge Pothecary’s

earlier order, notwithstanding they lived together for some years after it was made. Indeed, for some years E lived solely with his father, and as well RM’s income increased substantially from what it was in the year 2000. [ 17 ] This said, the first Judge Pothecary order cannot be seen to be a correct child support order that should now be enforced and the usual presumption that an order is valid is displaced by the evidence in this case.

That is so because the premises upon which the order was based changed as I have said above dramatically and very shortly after the order was made. [ 18 ] Both parties before me have filed narratives as ordered by Judge Stone.

In addition, each has provided me with information with respect to their income from the year 2005 forward. [ 19 ] The mother’s income amounts are as follows using line 150 of her tax returns or return summaries: 2005: $12,911; 2006: $14,802; 2007: $15,128; 2008: $20,960; 2009: $21,297; 2010: $19,615; 2011: $19,006. [ 20 ] The father’s income particulars over these years are as follows: 2005: $10,595 (comprising employment income of $4,956 and an amount from Pacific Vocational College of $5,639.26.

I assume these two sources were his sole income in this year); 2006: $76,918.01; 2007: $83,026.52; 2008: $97,668.38; 2009: $108,573; 2010: $104,170; and lastly 2011: $101,479. [ 21 ] Both parties testified before me. Relying on this evidence and their affidavits, the following appears to be the father’s relevant evidence, most of which concerning where E lived from time to time is not disputed by the mother. E as I have said was born January 4th, 2000. The parties were not then cohabiting. They started to do so in October of 2000 and thereafter they shared payment of household bills.

RM moved out in September 2005. E, according to RM, stayed with his mother for approximately two to two-and-a- half years. In November 2005 he says E moved in with his dad full-time, having occasional visits with his mother on weekends. This arrangement was by the parties’ mutual agreement. [ 22 ] DS felt E moved in with his dad as early as September 2005. E lived with his dad from November 2005 to August 2008. His weekend visits with his mother increased over this time period.

DS says in her affidavit timeline that in 2006 that she moved temporarily into a one bedroom basement suite and shared custody with RM and sets out a similar entry in 2007. I do not read this to mean she lived with RM and E in either of these years. [ 23 ] In this period, RM paid 100 percent of his son’s daycare costs with no contribution from DS. [ 24 ] DS remarried in August 2008. She then asked to have her son live with her for half the time and they agreed to this arrangement starting in September 2008. The spring and Christmas school breaks were shared equally. DS suggests E lived with her in August 2008.

This arrangement continued to April 2011. She suggests by June 2009 E was living more with her than RM, was seeing her every second weekend but does not say how long this continued. In about October 2010 RM remarried a woman with two children. [ 25 ] On May 1st, 2011, E commenced living with his mother full-time and has been with her full-time since this date. DS says he returned to her April 27th, 2011 when RM showed up drunk and in essence left E with her. [ 26 ] From September 2008 at the start of the 50-50 sharing arrangement to May 1st, 2011, RM paid no child support to DS, nor she to him.

From May 1st, 2011 to August 31st, 2011, RM paid in total as best I can decipher the evidence $1,600 in child support, and starting in September 2011 pursuant to Judge Pothecary’s above order, paid the $939.00 per month as required by the order. [ 27 ] He testified that historically in the time period when E was living with him from November 2005 to August 2008 she paid no child support to him. She also contributed very little to any Guidelines s. 7 special or extraordinary expenses. She did buy him some clothes and paid for one soccer registration that he could recall. He paid all these costs.

He said on March 28th, 2012 at the hearing that he was not seeking compensation for her share of Guidelines s. 7 costs incurred from November 2005 to date. Nevertheless, he has provided me with some evidence on point. [ 28 ] Between November 2005 and September 2008 he recalled he paid two soccer registration amounts of $300.00, three lacrosse registration fees of $450.00 in total, and purchased $150.00 worth of equipment in each of these three years. This was his share. He agrees DS shared E’s soccer costs in these years.

He also paid for Tai Kwan Do lessons for 10 months at a cost of $1,000. [ 29 ] Attached to his affidavit is an email from one Sheila which states that starting in January 2007, E attended Funshine Learning Centre and that RM paid all child care fees there of $290.00 per month from January to August 2008 (some 20 months x $290.00 = $5,800). [ 30 ] In the period of the 50-50 sharing, September 2008 to May 1st, 2011, the only Guidelines s. 7 expense he recalled paying was daycare costs at Funshine Learning from September 2008 to August 2009 being four months at $290.00, and eight months at $320.00 or $3,720 in total, and from September 2009 to September 2010, 13 months with one Debbie Badger, he defrayed a cost of $350.00 a month or $4,550 in total.

DS contributed $100.00 towards these costs. She said when E was here, she supplied all his food: breakfast lunches and snacks. [ 31 ] As well, he paid two soccer registration fees in this period for $300.00 and RM paid one for $150.00; he also paid three lacrosse registration fees of $450.00 in total and one field lacrosse registration fee of $150.00 and purchased lacrosse equipment for his son which he estimated cost $150.00 a year or $450.00 in total.

His son’s soccer costs were paid equally by him and DS. [ 32 ] RM also registered E for hockey in this period, September 2008 to May 2011, and paid $500.00 for this registration. DS said her son went once and did not like it. She did not agree with his registration in the first place knowing he would not like it so never refunded her half of this registration cost to RM. [ 33 ] From May 1st, 2011 to date, RM recalled paying half of his son’s soccer registration fees and said that the mother paid one half, approximately $100.00 each.

[ 34 ] In his affidavit he has filed copies of cheques he paid to for example his son’s school or a school photographer in this period totalling some $60.25. [ 35 ] At the hearing before me in March of 2012 I ordered that the parties exchange copies of their tax returns from 2005 to 2011 inclusive and file a copy of same with the Court by April 30th, 2012.

This was done by May 24th, 2012. [ 36 ] On that date, I directed a memorandum to both parties, both of whom were unrepresented, attempting to clarify the issues they wished me to decide following the March 2012 hearing before me, and requesting that RM provide me with his income figure for the tax year 2011 which he later did and I have included it above. Therein, I indicated I understood that DS was seeking retroactive support for the period August 8th, 2008, said to be an arbitrary date when she remarried, to August 9th, 2011.

This is the day Judge Pothecary varied her first order effective September 1st, 2011. [ 37 ] During this three-year period of time, E lived with both parents for some 32 months by my calculation, moving to live exclusively with his mother on or about May 1st, 2011. [ 38 ] As I have said, in actuality, DS seemed really to be seeking a retroactive variation of child support because the July 4th, 2000 order made by Judge Pothecary was then continuing. [ 39 ] In the same memorandum I indicated that RM was taking the position that there should be no arrears of child support and if any existed or were created they should be cancelled.

I also invited the parties to provide me with their written submissions on the above issues. [ 40 ] On June 25th, 2012 I received a written submission from RM. I did not apparently receive one from DS by July 13th, 2012, the date by which it was requested in my memorandum. [ 41 ] I did receive a letter from RM dated August 31st, 2012. This letter was unsolicited and frankly improper. He said that DS had decided not to pursue her application for child support arrears. Other comments were made in this letter, none of which I rely upon. I asked that a copy of his letter be sent to DS for comment.

This was done as he appeared not to have earlier done so.

On September 11th, 2012 she advised our Court Registry in writing that she would -- contrary to RM’s letter -- like to pursue her application for what she called child support arrears from RM for E. [ 42 ] I repeat I understand her position to be not that he ought to have paid her $321.00 a month over the above time period, but rather that he ought to have paid her an appropriate amount of child support based on the Guidelines having regard to his above income levels in the four years in question, 2008, 2009, 2010, and 2011, significantly increased from what it was in the year 2000 when Judge Pothecary made her first order.

DISCUSSION [ 43 ] There are two relevant time periods I think in issue:

(1) August 8, 2008 to May 1, 2011: Save for the month of August 2008, during this time E lived more or less on a 50-50 basis with each parent, pursuant to a shared custody regime, not in effect when Judge Pothecary made her original order; and

(2) May 1st, 2011 to August 31st, 2011. During this later time, E lived with his mother exclusively. What should the father have paid to DS in these two periods of time? [ 44 ] As to the first, Guidelines s. 9 would apply as E spent more than 40 percent of his time with each parent. The leading case on point as per my above memorandum is Contino v.

Leonelli-Contino , 2005 SCC 63 , a judgment of our Supreme Court of Canada. [ 45 ] I have considered the principles in this case using the simple set-off approach, in other words, determining what each parent would pay to the other in these months if E lived with the other parent full-time. [ 46 ] The calculations would be as follows: from August 8th to December 31st, 2008 there are, say, five months. I find that E lived full-time with his father in the first of these five months, August 2008. The mother’s income in 2008 was some $20,960; the father’s income was $97,668.

He ought to have paid her on the above assumption $887.00 per month for one child and she ought to have paid him $190.00 per month for one child, and the straight set-off amount per month would therefore be $697.00 per month child support payable by him to her or some $2,788 over four months, namely, September through to December 2008. She ought to have paid him $190.00 in August 2008. Deducting this from his obligation to her for the above four months leaves a child support obligation on his part of $2,598.

All following calculations are based on the same above assumption. [ 47 ] In 2009, her income was $21,297 giving rise to a child support obligation of $193.00 per month. His income was $108,573, giving rise to a child support obligation of $976.00. Using the straight set-off approach, he should have paid her $783.00 a month or $9,396 over 12 months. [ 48 ] In 2010, her income was $19,615 requiring a child support payment of $176.00 a month; his income was $104,170, requiring a child support payment of $940.00.

He ought to have paid her $764.00 per month or $9,168 over 12 months. [ 49 ] Finally, in 2011 from January 1st to May 1st, four months, his obligation was as follows: the mother’s income was $19,006 requiring a child support payment of $170.00 a month, and his income was $101,479 requiring a child support payment each month of $943.00. In the result, he ought to have paid her $773.00 a month or some $3,092 for the four months in issue. 2.

May 1st, 2011 to August 2011 [ 50 ] In the second period above of four months, May 1st to August 2011, RM’s share of child support would be $943.00 times four months or $3,772. [ 51 ] All these calculations might suggest on a straight set-off basis under Guidelines s. 9 that a total of some $28,026 of child

support was not paid by the father to the mother in the above period of time covering four years do not take into account the various expenses that the father agreed to take on and paid as outlined above including both daycare costs and extracurricular activity costs. [ 52 ] In these four years, having regard to the above income levels, the mother’s share of such expenses and assuming they are all proper Guidelines s. 7 expenses would be 18 percent in the years 2008, 2009, and 2010, and in the last year, 2011, some 16 percent. DS paid no contribution to any of these expenses. [ 53 ] Assessing his evidence on point in a general and

summary way and dealing with only the three year time period in issue, I find the relevant Guidelines s. 7 expenses referred to above in the evidence were roughly $10,170 in total and that her share would have been some $1,627. Deducting this figure from the above amount of $28,026 leaves an outstanding obligation of some $26,399 on his part, based on all the above assumptions.

If I deduct the $1,600 paid by him from May 1st to August 31st, 2011 the net amount would be $24,799 or say $24,800. [ 54 ] The situation with respect to actual arrears that might be said to be owing in this period of time: August 1st, 2008 to August 1, 2011, is substantially explained by Exhibit 1 disclosing arrears of $11,235 at June 27th, 2011. If I assume RM made no payments in July and August under the July 4th, 2000 order of Judge Pothecary, I would have to add $642.00 to this amount for a total of arrears at August 31st, 2011 under the first Judge Pothecary order of some $11,877 outstanding.

He of course paid nothing to her in this time period other than the $1,600 referred to above paid between May 1st and August 31st, 2011 and if he received a credit for this, the arrears would be some $10,277. [ 55 ] I might add that the above figure that I have alluded to, $24,800, of course does not take into account the fact that for a considerable period of time E lived with his father and the mother paid no child support to him to assist with his costs. [ 56 ] Arrears of child support and retroactive child support have I suppose some similarities but they are conceptually different.

Arrears really are the amounts a parent ought to have paid under an existing order or I suppose a lawful agreement dealing with child support, but did not. [ 57 ] In the case at bar, any analysis of arrears must take into account that E only lived exclusively with his mother for two months in 2000 and two-and-a-half months in the year 2005 and then again starting May 1st, 2011.

From October 2000 to September 1st, 2005, these parties cohabited and E lived with them both, and from November 1st, 2005 to August 8th, 2008 or indeed I think to the end of August, close to three years, he lived with his dad and his mother, though working, failed to pay any child support, which obligation would have been something in the order of $4,500 by my calculation based on her income levels in these years. [ 58 ] Clearly the income level that is the cornerstone of the 2000 order changed dramatically after the year 2000 as did all other factual underpinnings used by Judge Pothecary in July 2000. [ 59 ] Retroactive child support orders if made create one might say a form of arrears immediately as most often they require a parent to pay to another parent, often the main custodial parent, an amount of child support that is different from and often higher than what the parent was in fact paying originally or was obligated to pay under an existing order.

This is especially so where the payor parent’s income level has increased as here occurred. In truth, the retroactive award in accordance with the leading case D.B.S. v. S.R.G. , 2006 SCC 37 , is not really tantamount to arrears of child support but is rather a quantification of what the payor’s obligation not discharged was over the period in question, that is to say, what he should have paid but did not. [ 60 ] This said, insofar as reference is made to arrears under the first Judge Pothecary order, I will deal with this point first and in a very

summary way. [ 61 ] Section 96(2) and (3) of the Family Relations Act apply are as follows:

(2) If an application is made to reduce or cancel arrears under a maintenance order, the court may reduce or cancel the arrears but only if it is satisfied that it would be grossly unfair not to do so.

(3) 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. [ 62 ] In the unique special circumstances of this case, to use the language of s. 96(3)(c), and particularly because the central factual assumption behind the only court order made in July 2000 was that E was living with his mother as the sole custodial parent and it changed over the lengthy period October 2000 to May 1st, 2011, I am of the view that it would be grossly unfair not to now cancel any arrears, interest and related charges said to be outstanding under the order made by Judge Pothecary on July 4th, 2000. [ 63 ] This application before the Court should in my view be determined solely on the basis that there is an issue as to whether or not RM paid a fair amount of child support after August 2008 to August 2011, and whether I should make a retroactive award or not following the mother’s May 30th, 2011 application. [ 64 ] The relevant legal principles are set out in the case of D.B.S. v.

S.R.G. , supra , a judgment of the Supreme Court of Canada. Four main principles can be derived from this case recently well described by Justice Kelleher of our Supreme Court of British Columbia in a case called Morgan reported at 2006 BCSC 1197 at paras. 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 orshe 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 isalready in place. Mr. Justice Bastarache, writing for the majority in D.B.S., explained at para. 68 that "the support obligation of a payorparent, while presumed to be the amount ordered by a court, will not necessarily be frozen to the amount ordered by a court" [emphasisin original].

Therefore, while the parent must pay at least as much as required under the court order, he or she is also obligated to makehigher 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, aretroactive award may not be appropriate. In exercising its discretion to determine whether a retroactive award is appropriate in thecircumstances, 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 considerall 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 casethat retroactive awards are reserved for only exceptional cases: "It cannot only be exceptional that children are returned the support theywere 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 hasincreased, he should disclose this information to the recipient parent and discussion should then occur as to whether child support shouldbe increased or not: (see Dalke v. Dalke, [2012] B.C.J. No. 217 a judgment of the British Columbia Supreme Court at para. 18, ajudgment of Mr.

Justice Powers). This obligation might be seen to flow from the general scheme of child support described in theD.B.S., supra, decision at para. 54 as follows: [54] In

summary, then, parents have an obligation to support their children in a way that is commensurate with their income. Thisparental obligation, like the children's concomitant right to support, exists independently of any statute or court order. To the extent thefederal regime has eschewed a purely need-based analysis, this free-standing obligation has come to imply that the total amount of childsupport owed will generally fluctuate based on the payor parent's income.

Thus, under the federal scheme, a payor parent who does notincrease his/her child support payments to correspond with his/her income will not have fulfilled his/her obligation to his/her children.However, provinces remain free to espouse a different paradigm.

When an application for retroactive support is made, therefore, it willbe incumbent upon the court to analyze the statutory scheme in which the application was brought. [66] Was there any blameworthy conduct on RM’s part prior to May 30th, 2011? [67] I think before dealing with that I will deal with the earlier factors as referred to in the Morgan, supra, decision. [68] The first factor is delay. Was there a reasonable excuse as to why support was not sought sooner?

This is DS’s application; shebears the onus of proof. [69] No evidence is offered as to why she did not seek increased child support sooner than her application dated May 30th, 2011,approximately one month after E commenced to live with her on a full-time basis. One might speculate that it was because she wascontent with the agreement RM says they struck that he would pay for all the child care and extracurricular costs if she did not seek childsupport and he seems to have lived up to his bargain in this regard. [70] However, judges do well not to speculate on things in court cases.

Rather, we are to rely on evidence that we receive. There isno evidence in this case that RM intimidated DS in any way so that due to fear of him, for example, she did not seek greater childsupport. It is also unclear when she knew she had a right to seek higher child support. [71] I now turn to blameworthy conduct and ask if there was any on his part prior to May 30th, 2011. He says not in his writtensubmission. [72] In the D.B.S., supra, case Mr.

Justice Bastarache of the Supreme Court of Canada said this on point in paras. 106 and 107: [106] Courts should not hesitate to take into account a payor parent's blameworthy conduct in considering the propriety of a retroactiveaward. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I wouldcharacterize as blameworthy conduct anything that privileges the payor parent's own interests over his/her children's right to anappropriate amount of support. A similar approach was taken by the Ontario Court of Appeal in Horner v.

Horner (2004), (ON CA), 72 O.R. (3d) 561, at para. 85 where children's broad "interests" -- rather than their "right to an appropriate amount ofsupport" -- were said to require precedence; however, I have used the latter wording to keep the focus specifically on parents' supportobligations. Thus, a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger childsupport payments: see Hess v. Hess (1994), (ON SC), 2 R.F.L. (4th) 22 (Ont. Ct. Gen. Div.))....

A payor parentcannot intimidate a recipient parent in order to dissuade him/her from bringing an application for child support: see Dahl v. Dahl (1955),1995 ABCA 425 , 178 A.R. 119 (C.A.). And a payor parent cannot mislead a recipient parent into believing that his/her childsupport obligations are being met when (s)he knows that they are not. [107] No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to

avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, apayor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such[page279] conduct: see A.(J.) v. A.(P.) (1997), (ON SC), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen.

Div.)), at pp. 208-9;Chrintz. [73] There is no evidence in this case that RM actively did anything that might amount to blameworthy conduct on his part as thisterm is explained by the Supreme Court of Canada. [74] RM must have known, however, as early as the year 2000, that his obligation to pay child support to the mother was incomebased or driven and calculated in that way.

Clearly, Judge Pothecary found in the year 2000 that his income level for child supportpurposes was some $37,200 and set child support of $321.00 based on this income amount. [75] In the years in question, 2008 to 2011, RM’s income had almost tripled.

E did not have the benefit of these substantialincreases, at least as mandated by Guidelines s. 9 to May 1st, 2011 or at all from May 1st to August 31st, 2011 when he lived solely withhis mother. [76] It would seem in the period August 1st, 2008 to August 31st, 2011, RM really knowingly ignored his obligation to E, apparentlyrelying on an oral agreement that he would pay all his childcare and extracurricular expenses which, as I have pointed out above, if trulyappropriate Guidelines s. 7 expenses, were, as to 84 percent of same, his legal responsibility in any event.

In acting as he did, he was notrelying on the first Pothecary P.C.J. order or in compliance with the Guidelines. [77] There is also no evidence RM disclosed his income each year to DS. [78] As well, it is noteworthy that the discrepancy between what he should have paid and did pay is significant in the period inquestion as shown above. I do not think his apparent reliance on fulfilling the above oral agreement in the face of the very significantchanges in his income can be seen to be reasonable in the circumstances of this case.

Certainly in the relevant period under discussion,unlike in D.B.S., supra (see paras. 11 and 12), his and her income were not approximately the same. [79] I turn now to the third issue: is a retroactive award appropriate in light of the child’s past and present circumstances? [80] Often in cases like this there is some evidence led at the hearing by the applicant seeking the retroactive order (here the mother)to show that the child’s standard of living suffered because he or she, over the period the retroactive award sought is to cover, did notreceive the correct amount of child support.

In other words, the child did without things it was entitled to have, for example, clothing oreven a summer holiday. [81] Here, DS offered no such evidence as to E’s standard of living over the relevant time. I can but assume if she had more money,her and his standard of living would have been improved. That is what money generally can do for its recipient. Being given really noevidence on point including as to what E’s current needs now are. I have no way of really assessing whether if I were to make an awardit would necessarily benefit E.

In D.B.S., supra, these two factors substantially led the trial judge to reject the application for retroactivesupport and this decision was upheld by our Supreme Court of Canada. [82] The last issue is: will a retroactive award cause hardship to the payor parent or to his other children? [83] RM asserts that it will, but has given me really very little evidence on point.

I have, for example, no current financial statementsimilar to the one he swore in the year 2000 setting out his net worth, debt levels, periodic debt payments, overall expenses, and he hasdisclosed no facts concerning his current family and their costs, or as to the income if any of his new spouse. What information I haveon his new family is sparse indeed and is found DS’s affidavit where she deposes that in the fall of 2008 he remarried a woman with twoboys. I have not even been given their ages. I do not know if either RM or DS’s new spouses work at gainful employment outside theirhomes.

It is likely that the income RM earned in the three year period in issue is now spent. [84] I am not able to clearly find that for any period of time in the majority of the time E lived with his father and mother for roughlyequal time, RM favoured his new spouse’s boys financially over his own son E. I simply have no evidence on this point. [85] If an award of retroactive child support is to be made, the court should seek to minimize hardship to the payor parent and hisnew family.

As well, the judge should exercise his or her discretion in those cases having regard to all the relevant circumstances of agiven case and especially the above four factors that I have outlined (see para. 133 D.B.S., supra) and the court should not order aretroactive award in an amount that it considers fair having regard to all these circumstances (see para. 130 of D.B.S.). [86] RM asserts no award should be made because he made an agreement with DS when E commenced living with both parentsroughly equal time. I have dealt with this above. It ended in May of 2011 in any event.

He says that between November 2005 andAugust 2008 E was with him full-time and his mother paid him nothing. I have considered this factor and even though it relates toconduct outside the three year period of time in issue, I have given it some weight. [87] He also says DS never demanded child support in the relevant period. He says, "If I had realized child support was required ontop of my existing contributions, I would have provided it". [88] It may be that DS never demanded child support from him after August 2008 because she was unaware of what his income thenwas.

I do not know and I have no evidence on point as to what RM failed to realize. I have as well dealt with this point above. He oughtto have known, and I have in essence found he did know (1) that his obligation to pay child support was income driven and dependent onthe level of his income and (2) that his income had almost tripled from what it was in the year 2000. Child support should have beenreassessed in the relevant period and was not. I have dealt with his other points in argument above.

I have no final submissions from DSto consider. [89] Having considered all the relevant evidence in this case, and particularly the four factors in D.B.S., supra, set out above, and

taking a holistic approach, I am of the opinion that a retroactive award should be made, however, not one that would commence August 1st, 2008 as DS suggests. Rather, in my view it should commence January 1st, 2011 and would be as calculated above being the total of $3,092 and $3,772 or $6,864 less the $1,600 paid by RM prior to the August 2011 Pothecary P.C.J. order or some $5,264.

I am not prepared to take into account any Guidelines s. 7 expenses he may have paid from January 1st, 2011 to August 31st, 2011 in setting this date and award. [ 90 ] I make this award having particular regard to the lack of evidence presented by DS as to her circumstances and those of her son E in the relevant period of time and being unable to say with certainty that if I made a larger retroactive award, it would benefit E, especially in the sense that it would provide something for him that was foregone in the relevant period under discussion.

Had I been given such evidence, the result might have been different in this case. ORDERS : [ 91 ] FMEP will now adjust its records to show that there are now no arrears owing under the first Judge Pothecary order made in the year 2000 and none, save and except those that might be said to flow from these reasons (and again this is a retroactive award and not a finding of arrears). I also make the following Court orders: 1.

RM will, commencing on the 1st day of November, 2012, pay in addition to any monthly child support now in the amount of $939.00 a month for E, an additional sum of $110.00 a month towards the retroactive arrears of $5,264. He may pay more if he wishes. This sum is payable on the first day of each and every month thereafter without exception until the arrears of $5,264 are paid in full. When I use the term arrears I again really mean the retroactive award of child support. 2.

In the event RM is no longer paying child support to DS for E and any amount of this retroactive award that I have now found is still outstanding, he will in the month his child support payments to her cease, immediately increase his payment to her on the retroactive award balance outstanding to $939.00 a month until it is paid in full. 3. On or before May 15th, 2013, the parties will each exchange with one another a complete copy of their tax return as filed for the prior tax year with Canada Revenue Agency.

This they will do on or before May 15 in each year thereafter, so long as E remains a child as defined by the Family Relations Act and either parent has an obligation to pay or contribute child support to the other. 4. Commencing in the year 2013, and each year thereafter so long as either parent pays or has a legal obligation to pay or contribute child support for E, they will also exchange with the other forthwith on receipt a complete copy of all Notices of Assessment or Re- assessment either receives from Canada Revenue Agency with respect to their taxable income in each of those years. 5.

Each year commencing in May 2013, they will review the amount of child support (if any) to be paid for E under the Child Support Guidelines having regard to their total incomes from all sources in the prior tax year. If they cannot agree on an appropriate current monthly amount of child support that might be payable by one to the other, either party may apply to this Court for a determination. I will not be seized of any such application. (ORAL REASONS FOR JUDGMENT CONCLUDED)