J.L.P. v. S.D.H. Date:, 2015 BCPC 378

Citation: J.L.P. v. S.D.H. Date: 20151023 2015 BCPC 0378 File No: F73470 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.L.P. APPLICANT AND: S.D.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Applicant: A. Mattila, Articled Student

Appearing on their own behalf: S.D.H. Place of Hearing: Nanaimo , B.C. Dates of Hearing: July 17, September 10, 18 and October 23, 2015 Date of Judgment: October 23, 2015 THE COURT (Orally): Introduction [ 1 ] S.D.H. (the "Father") and J.L.P. (the "Mother") are the parents of T.L.H., born [DOB], (the "Child"). [ 2 ] The parties entered their relationship in 2003 and resided together at the time of the birth of their Child. Unhappy differences arose in the relationship; the parties separated.

The Child remained in the care of the Mother. [ 3 ] The Mother sought and obtained an order for child support on September 3rd, 2008 (the "September 3rd, 2008, Order"). [ 4 ] The Father made a limited number of payments for child support, such that by October 10, 2013, the arrears had accrued pursuant to that order and, according to the records of the Family Maintenance Enforcement Program ("FMEP"), totalled $31,344.15. [ 5 ] As will be explained below, the Mother agreed to forgive the arrears effective as at October 3rd, 2013, and instructed FMEP to close their files and to cease collection proceedings. [ 6 ] Again, according to the records of FMEP, the amount of $21,745.65 was collected and sent to the Mother for the period from February 23rd, 2009, to November 18, 2013. [ 7 ] The Father took no steps until he filed an Application Respecting Existing Orders or Agreements on February 10th, 2015, in this court to vary the provisions for child support contained within the September 3rd, 2008, Order. [ 8 ] Arrears once again continued to accrue after October 3, 2013.

It is common ground that the arrears outstanding for child support as at July 17th, 2015, totalled $13,471.39, and as at today's date those arrears total $15,411, including default fees and interest. [ 9 ] In addition to other relief that is being sought with respect to the guardianship and parenting time relating to the child, the Father asked to "reduce arrears and current support amount" that had accrued under the September 3rd, 2008, Order. [ 10 ] The child support issue alone was before me in the hearing for determination.

The issue relating to guardianship and parenting time will be dealt with separately in further proceedings. Background of Court Proceedings [ 11 ] The September 3rd, 2008, Order was made by the Honourable Judge Rounthwaite. The Father failed to attend the hearing at Sechelt, British Columbia.

An order was made imputing the Father's income for the purposes of child support guidelines to be $116,127.44. [ 12 ] The Father was ordered to pay to the Mother child support in the amount of $1,037 per month commencing September 1st, 2008, and payable on the 1st day of each and every month thereafter or so long as the Child remains a child as defined by the Family Relations Act , which was then in force. [ 13 ] On July 30th, 2009, the Mother obtained an interim order from the Honourable Judge Weatherly, (the "July 30th, 2009 Order"), pursuant to the provisions of the Family Relations Act , whereby she was granted sole custody and sole guardianship of the child. [ 14 ] The July 30th, 2009 Order provided that the Father was to have reasonable access to the Child, supervised at the discretion of the Mother, and the Father was directed not to leave the Child at any time without adult supervision and, further, he was directed not to drive the Child anywhere in a vehicle unless he was the holder of a valid driver's licence. [ 15 ] Again, as I understand it, the Father was not in court in Prince George at the time the July 30th, 2009 Order was granted. [ 16 ] On February 23rd, 2015, the Father appeared before me in Nanaimo and was assisted by duty counsel.

The Mother was not present. I made an interim order that a s. 211 full report be prepared by a family justice counsellor, which was to include a views of the child component. [ 17 ] I further ordered that the Father was to provide a letter from his employer confirming his training and the amount of the earnings that were to be received during the training.

The letter was also to confirm that the training he was undergoing was subject to employer review. [ 18 ] I also required the Father to provide his 2014 income tax return by March 23rd, 2015, and his notice of assessment upon receipt. [ 19 ] The matter came back before me on April 27, 2015. At that time, the Father was once again assisted by duty counsel, and the Mother was represented by a lawyer. An interim order was made to provide the Father with contact with the child on a scheduled basis (the "April 27, 2015 Order").

Issues before the Court [ 20 ] The issues that are presently before the court for determination are as follows: (

a) Whether or not the existing child support arrears should be cancelled; (

b) Whether the existing order of September 3rd, 2008, should be varied prospectively and, if so, what amount of child support should be ordered. The witnesses who provided evidence at the hearing [ 21 ] The Father alone testified on his own behalf, and the Mother testified alone on her behalf. Personal and financial background of the father [ 22 ] The Father is presently 33 years of age and in reasonably good health and is free from disabilities. He has extensive work experience throughout British Columbia following high school and up to present date.

He has held employment as a non-union carpenter, and that work has included experience on large industrial projects as part of an itinerant construction and maintenance crew. He also has experience working general construction, including concrete work, roofing, and also experience in boat recreational vehicle sales, car and truck sales, and has also worked as an assistant sales manager at a dealership. [ 23 ] In 2008, he worked in Northern Alberta as a roughneck on the oilrigs.

It was in the course of working in Northern Alberta that the September 3rd, 2008, Order for child support was made. [ 24 ] As noted above, his income in 2008 was imputed at $116,127.44. According to his evidence and documentation presented by him, his actual Line 150 income for 2008 was $72,423. In 2009, his Line 150 income while he was working construction was $29,009. [ 25 ] In 2010, he conceded that he did not do much to find work that year, and his Line 150 income was $7,661, working as a roofer and living in Prince George. He said he "hit rock bottom that year" when the Mother and the Child moved to Alberta.

He admitted that he lacked motivation and by choice did not work much. He admitted that it was an "immature choice". He moved back to his mother's home in Surrey, B.C., in order to have a place to live. [ 26 ] In 2011, he lived in Prince George for part of the year working as a roofer and then moved to Vancouver, where he worked as a carpenter.

His Line 150 income was $40,224. [ 27 ] In 2012, he worked construction and did concrete work for a commercial-industrial contractor throughout British Columbia, and his Line 150 income was $62,328, which included a tax-free payment from Workers' Compensation of $9,649, arising from a work- related back injury. [ 28 ] In 2013, he moved to Campbell River, and his Line 150 income was $87,999, which similarly included a $2,783 Workers' Compensation payment. [ 29 ] In 2014, he resided mainly in Campbell River, and his Line 150 income was comprised of $25,720 in T4 earnings working construction, commission income (T4) of $8,631 from vehicle sales, EI benefits of $9,766, and Workers' Compensation payments of $2,255, resulting in assessed income in the amount of $37,741. [ 30 ] In August, he went on employment insurance and remained on employment insurance that fall and then moved to Surrey, B.C., and lived with his mother for the balance of the year and into January of 2015. [ 31 ] In 2015, the Father worked at a variety of jobs in Campbell River.

He worked at a car dealership selling vehicles and as an assistant sales manager with a monthly salary of $2,800, plus bonuses and commissions. He worked selling boats and RVs on commission on a seasonal basis. By July 17th, 2015, the Father estimated that he had earned $30,000 for the year. [ 32 ] His evidence on July 17th, 2015, was that he expected to earn between 45 and $50,000 for the year. He stated that he was not working construction in order to "give his body a break". This was suggested by his doctor because of previous back and arm injuries stemming from his period of construction.

His doctor did not recommend or suggest that he not work construction in the future. [ 33 ] In 2009, the Father was engaged in breeding pit bulls, which he said he sold for between 600 to $1,000 each. He described that side business as not being profitable and because of expenses such as veterinarian bills he earned less than $10,000.

I understand that that amount would be over and above his Line 150 income in the year 2009. [ 34 ] The Father also indicated that on occasion he has done some jobs on the side of his regular work, including helping friends with decks and other carpentry work for which he received some remuneration. I understand that this remuneration is not part of his Line 150 income. Recently, he earned $600 helping a friend build a deck. [ 35 ] When he resumed his testimony on September 18th, 2015, he had left his job selling RVs and boats around August 13th, 2015, and he had earned $20,680.60 over a 10-week period.

He testified that he quit because of the seasonal nature of the job and the downturn in sales. He said that he intended on working construction again as a carpenter for a general contractor. That job was supposed to start around August 17th or 18th, 2015. However, the night before he was supposed to start work he was told that the project was not proceeding because of a municipal permitting problem.

He said that he then made extensive efforts to find a job in construction by visiting jobsites in the local community and dropping off his résumé. [ 36 ] He was considering other job opportunities, including moving to Nanaimo to be closer to the Child. He has also learned of a construction job with a major national contractor. It would pay between 40 and $44 per hour with time and a half for overtime. However, the opportunity would necessitate him living in a camp near Fort McMurray with room and board to be provided and on a two-

week on/one-week off rotation. He projected that he could be earning between 80 and $85,000 per annum doing that job. He felt that he had a 60 percent chance of obtaining the job owing to personal contacts with a superintendent. [ 37 ] The Father is presently in a new relationship of approximately five months with L.G., who is a personal trainer. They do not share a house.

However, the Father admits that he assists her and her four-year-old daughter financially with gifts and loans and purchases of groceries. [ 38 ] The evidence discloses that the Father had been in a previous relationship for approximately 19 months with a woman who also had a child who, as I understand it, was approximately five years of age.

He was also providing them with financial support. [ 39 ] During both of these relationships, little, if any, was being done to fulfil his financial obligations to his own Child by making child support payments. [ 40 ] There is also evidence to suggest that the Father in the past has also provided financial assistance and made payments to both his mother and to his sister. In some instances, I understand that these payments were in lieu of rental payments and room and board. Personal and financial background of the Mother [ 41 ] The Mother is aged 28.

At the date of the hearing, she lived in Parksville with an aunt and was scheduled to obtain her own residence in Qualicum Beach, British Columbia, by mid-month of September 2015. [ 42 ] She is presently not employed and receives social assistance. She went on social assistance in November of 2014, having previously worked as an early childhood education assistant. She was so employed at that job in 2014. However, she was required to quit her job at a family centre in Parksville, British Columbia. That job paid her $14.50 per hour.

The reason for terminating her job was that her house was broken into in September of 2014. A significant amount of her personal and family belongings were stolen and the house was vandalized. As a result of this, she was evicted from the premises. This caused her significant emotional distress, and she was unable to continue working. [ 43 ] Her 2014 Line 150 income was $21,505. She also receives the child tax credits. [ 44 ] She is using the Work Search program through social assistance and is now seeking to find a job in the daycare field.

If she finds a job, she may qualify for a rental subsidy. [ 45 ] In late 2012, she took online training in order to obtain her qualifications as an early childhood education assistant. This necessitated her incurring student loan debt of approximately $20,000, which remains completely outstanding, and upon which she has made no payments.

She is contemplating taking further courses to improve her qualifications and her ability to find more remunerative employment. [ 46 ] From two other relationships, she has a daughter aged three, who has just entered full-time playschool, and a son aged five who, I understand, is in full-time kindergarten or elementary school. [ 47 ] She testifies that the child support for her son is inconsistent and she receives no child support for her daughter. [ 48 ] The Mother has credit card debt of approximately $4,300 on two credit cards.

One of the credit cards has been frozen because of default in monthly payments, and she is on a repayment plan with minimum payments on the other. [ 49 ] The Mother has received financial assistance from her aunt, who often purchases groceries for her and loans her money. The Mother also has had to borrow and receive gifts from time to time from a close friend, who is also a young mother.

These borrowings and gifts are received in order for her to meet her monthly expenses and to provide for the Child, as well as her other two children. [ 50 ] Her close family friend has recently also purchased clothing for the Child in preparation for the fall school term. The Mother estimates that total amounts advanced by her close friend to be somewhere in the range of about $4,000 over the past year.

She wishes to repay her friend the amount that has been advanced, but her friend is not pressing her for repayment at present time and has indicated to the Mother that she simply wants the Mother to get back on her feet. [ 51 ] While on social assistance, she receives some medical and dental coverage, but she has exceeded the maximum allowable for the Child's dental expenses because of necessary care for several fillings and for treatment of an overbite and a genetic condition causing the Child to have seven of his adult teeth missing. [ 52 ] The Mother concedes that in recent times while on social assistance she has expended some of her time assisting her own mother in her own mother's business in exchange for her own mother paying for babysitting rather than paying any cash amounts directly to the Mother.

Personal background of the Child [ 53 ] The Child is presently nine and soon will be 10 years of age this fall. He attends school. It is agreed that the Child is a happy and healthy child who, other than having a lactose intolerance and dental issues, enjoys good health and does not have any special needs. The Child is active in organized football, which I understand he enjoys immensely. He receives a significant subsidy from community organizations and businesses in order to participate in this sport.

The Father does not make any significant financial contribution to this activity. [ 54 ] The Mother seeks to provide an enriched life for the Child to the extent of her financial circumstances and has taken positive steps to do so. [ 55 ] The Father's contact with the Child has at times been sporadic, although at present time the Father is very much interested in

pursuing a relationship with the Child. The Child is interested in pursuing and maintaining a relationship with the Father. The personal and financial relationships of the Mother and the Father [ 56 ] The personal relationship between the Mother and the Father can be described as strained and has been so for many years. Child support or lack of payment of it on a consistent basis has been a continuing issue between them. [ 57 ] Lack of consistency in the Father's communication and in exercising contact with the Child has been a further issue for the Mother.

The Father is of the view that the Mother does not promote his relationship with the Child. [ 58 ] It is clear that there have been periods of time when the relationship between the Mother and the Father has improved and the Father has had more consistent contact time with the Child. [ 59 ] In October 2013, the Mother and Father were in a more positive space with respect to the relationship which once more involved the Father having increased contact time. The Father was making consistent payments of child support, but not in accordance with the September 3rd, 2008, Order.

The Father approached the Mother concerning the extensive arrears that had accumulated under the September 3rd, 2008, Order. He indicated that his financial circumstances did not allow him to pay off those arrears and that his credit rating was being adversely affected. [ 60 ] I understand that FMEP had been actively enforcing payments against him for several years. [ 61 ] He and the Mother came to an agreement whereby he offered in exchange for cancellation of the arrears formally through FMEP that he would send the Mother and the Child to Disneyland at his expense.

The Mother had extensive credit card debt at that time, amounting to approximately $3,500. Rather than the Disneyland trip offer, she asked and the Father agreed that he would pay her $3,500 so that she could pay off her credit card debt. [ 62 ] On this basis, she notified FMEP that she was forgiving the total arrears of $31,344.15. [ 63 ] The Father never sent the Mother and the Child to Disneyland.

The Father failed to pay her $3,500. [ 64 ] The Mother and the Father also agreed that after all the arrears had been forgiven that he would pay her $700 per month for child support on the basis of payments of $350 every two weeks.

The Father's payments were erratic and unpredictable and continued to be so through the fall of 2013 into 2014. [ 65 ] By way of example, between January 3rd, 2014, and June 20th, 2014, he had only paid $1,450 in child support. [ 66 ] The Mother told the Father that he had three months to sort out and comply with their arrangement and to make continuing payments to her or she would refer the matter once again to FMEP. [ 67 ] The Father failed to do so to the satisfaction of the Mother, and accordingly the matter was once again referred to FMEP in July of 2014.

FMEP has taken enforcement proceedings against the Father, including garnishing his wages. [ 68 ] I reject any suggestion from the Father that any amounts that he has paid for the child's clothing from time to time should in some fashion be regarded as fulfilling his parental responsibility for child support. [ 69 ] I do not accept that any material amount has been paid directly to the Mother in cash or by direct deposits or that the Mother could access the Father's bank account with a bank card and thereby she had funds for child support purposes.

Even if that were the case, it is most likely that it occurred for the most part prior to the Mother forgiving the arrears of child maintenance. The Father concedes that he actually has "no idea" what he paid for child maintenance prior to the forgiveness of the arrears in October of 2013. [ 70 ] The Father contends that the Mother told him about the existence of the September 3rd, 2008, Order sometime in 2009 and that he was not previously aware of its existence.

The Mother says that he was served with a copy of the order when she was required to go on to social assistance while living in Sechelt, British Columbia, in 2008. She does not recall the date of service, but places it earlier than what the Father suggests. The Mother's evidence, given her financial circumstances and the reliance on social assistance, makes more sense. [ 71 ] Until his application before this court, the Father has taken no steps to vary the original September 3rd, 2008, Order for child support.

His excuse is that he was "immature" and he was "scared to go to court" and he was "scared it would cost him money" that he did not have.

He summarized this by saying that he "kicks himself" for not bringing an earlier application. [ 72 ] The Mother testified that she would utilize any arrears recovered from the Father to set up a registered educational savings program for the Child, to pay off debts that she has incurred while caring for the Child, and to hire a babysitter for her other children on occasions so that she can spend some quality time with the Child and to attend at some of his activities. [ 73 ] She further testified that when she received her retroactive child tax credit amount in August of 2015, that she utilized it to repay her aunt, her friends, purchase groceries, and to make up on two delinquent vehicle payments.

Position of the Mother [ 74 ] The Mother relies on a decision of Earle v. Earle referred to below as the basis for her position that the Father has failed to take adequate steps in order to provide for the Child and that the excuses that he has raised fall within those canvassed in the Earle v. Earle decision.

In essence, the Mother rejects the various excuses offered by the Father and says that they should not allow the Father to have the amount of the child support arrears varied. [ 75 ] In that regard, the Mother cites and relies upon the test of "grossly unfair" that is set out in s. 174(1) of the Family Law Act .

The Mother also says that the Father has failed to take timely steps in order to bring on an application in order to vary the terms of the September 3rd, 2008, Order. [ 76 ] As a general submission, the suggestion is that the Father has the ability to earn income, but has made choices over the years such that his income has been extremely variable. He has made paying child support a very low priority during the past several years.

He has also demonstrated blameworthy conduct by making an offer to pay $3,500 to the Mother in exchange for cancellation of over $30,000 in child support arrears and then breached the agreement. [ 77 ] The Mother suggests that in order to come up with a determination of proper income level for the Father for application of the Child Support Guidelines that the provisions of s. 17 of the Federal Child Support Guidelines should be applied. [ 78 ] It permits the court where there is significant variation in the pattern of income to use the spouse's income over the last three years and determine an amount that is fair and reasonable in light of income fluctuations.

Position of the Father [ 79 ] The fundamental foundation for the Father's position is lack of affordability to pay towards arrears and also a lack of affordability to pay child support at any significant amount in the future. [ 80 ] The Father indicated that his credit rating has experienced significant damage as a result of the arrears that are accruing under the present child support order. The Father indicates that he is unable to pay off his debts that have been incurred as a result of the actions of Family Maintenance Enforcement Program against him.

The Father provided the excuses referred to above for not bringing his application in a more timely fashion. [ 81 ] He does concede in submissions that he should have gone to court at an earlier time in order to obtain a reduction in the child support payments. He says that he acknowledges that he is financially responsible for his son, but does concede that he has not always made child support payments. [ 82 ] He raises the issue that he was not earning the type of income that was imputed to him when the September 3rd, 2008, Order was made.

However, I understand from his submissions that he may have earned that type of income as early as 2007. [ 83 ] Accordingly, based on his financial circumstances and what I understand to be a plea of hardship, the Father is seeking that there be a full elimination of all arrears of child support payments since the forgiveness act in 2013, at which time the amount of $31,344.15 was forgiven by the Mother in her directions to FMEP. [ 84 ] Now, with respect to ongoing child support, I understand that the Father seeks to have that based on what he projects is his income for 2015, which he estimates to be approximately $45,000.

LAW Statutory Framework Family Law Act [ 85 ] S. 174 of the Family Law Act deals with the question of reducing or cancelling arrears.

Section 174 reads as follows:

(1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.

(2) For the purposes of this section, the court may conside r (

a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support, (

b) the reasons why the person responsible for paying support cannot pay the arrears owing, an d (

c) any circumstances that the court considers relevant.

(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.

(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under

section 11.1 of the Family Maintenance Enforcement Act , on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. Federal Child Support Guidelines [ 86 ] Various sections of the Federal Child Support Guidelines have application to the matter before me. They are as follows starting with the "Presumptive rule" under section 3(1): Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (

a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (

b) the amount, if any, determined under

section 7.

[87]

Section 16: Subject to sections 17 to 20, a spouse's annual income is determined using the sources of income set out under the heading "Totalincome" in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with

Schedule III. [88]

Section 17, Pattern of Income, 17: If the court is of the opinion that the determination of a spouse's annual income under

section 16 would not be the fairest determinationof that income, the court may have regard to the spouse's income over the last three years and determine an amount that is fair andreasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [89]

Section 19:

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstancesinclude the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (

b) the spouse is exempt from paying federal or provincial income tax; (

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; Case Authorities [90] The leading case where a payor parent seeks to vary a child support order and cancel arrears is Earle v. Earle, (BC SC), [1999] B.C.J. No. 383. In K.M. v. C.Z., 2012 BCPC 105, Associate Chief Judge Phillips of this court provided a usefulsummary of Earle v. Earle at Paragraph 25 as follows: In Earle v. Earle, (BC SC), [1999] B.C.J. No. 383, Justice Martinson considered an application by the Father forvariation of child support and cancellation of arrears. Justice Martinson reviewed case law on point and provided a

summary of the law(at paragraph 46): 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 longlasting 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 rightaway. 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 thetime 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 paymaintenance 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 theymissed. 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 itselfa reason to reduce or cancel arrears. [91] It is also necessary to consider what amounts to "grossly unfair" as set out in s. 174(1) of the Family Law Act. That test wasconsidered in L.B. v. J.K., 2012 BCPC 231, 2012 B.C.J. No. 1437, by Judge Hamilton of this court.

That decision provides an excellentreview of the law by examining the test set out in the then s. 96 of the Family Relations Act, which was in force at the time of thatdecision and which makes mention of the "grossly unfair" test. [92] Commencing at Paragraph 48 of that decision, the court says as follows: In preparing these Reasons I have read a number of decisions that consider the gross unfairness test: Earle v. Earle, (BC SC), [1999] B.C.J. No. 383 (QL) (S.C.); Luney v. Luney, 2007 BCCA 567 ; Jones v. Anhorn, 2000 BCCA 213 ; Ward v. Ward (1998), (BC CA), 37 R.F.L. (4th) 163 (B.C.C.A.); Longstaff v.

Longstaff (1993), (BCCA), 49 R.F.L. (3d) 1 (B.C.C.A.); and Dubreuil v. Poloway, supra. [49] In addition to those authorities, I reviewed the cases presented by J.K. which included the following: Berekoff v. Sealy, [1995]B.C.J. No. 704 (BCSC); Daniel v. Daniel, [1991] B.C.J. No. 371 (BCCA); Hanssens v. Hanssens, [2008] B.C.J. No. 526 (BCSC);Martin v. Ahhrens, [2011] B.C.J. No. 185 (BCCA); and Misener v. Muir, [2007] B.C.J No. 2029 (BCSC). [50] What is clear from these cases is that a determination of gross unfairness is a factual determination.

As well, it is clear that thegross unfairness test applies to applications to reduce or cancel arrears of both child and spousal support. [51] So, what does "grossly unfair" mean? [52] I was unable to find any helpful authority that sets out what the phrase "grossly unfair" means. Obviously to meet the grossly unfairtest the applicant must establish more than it would be unfair to maintain the maintenance arrears.

Establishing gross unfair is clearly amore onerous test that proving simple unfairness. [53] I am of the view that gross unfairness means more than something that is a significant financial burden. [54] In order to meet the gross unfairness test, I am of the opinion that the applicant must establish that maintaining the maintenancearrears is so unfair that to enforce payment of the arrears would serve an injustice on the payor that the court cannot countenance.

Ifenforcing payment of the arrears leaves a payor in strained financial circumstances, that is not enough. [55] Circumstances in which a court might conclude that an applicant has met the gross unfairness test might include situations wherechild maintenance arrears have accumulated during a time when the child was living with the payor and not the recipient, or where thechild was removed from the recipient's care by child welfare authorities, or was living with other extended family members.

Grossunfairness might be established in circumstances where enforcing the payment of the maintenance arrears would force the payor intobankruptcy. A determination of gross unfairness in these examples would depend on the facts of each individual case. However, what isclear from the authorities is that cases in which maintenance arrears will be reduced or cancelled are rare: see Luney, supra, at para. 43. [56] There is a reason for the test being as onerous as it is. The test is onerous because parents have a duty to their children to financiallysupport those children throughout their childhood.

This duty imposes an obligation on both parents to financially support their childrencommensurate with the parents' financial circumstances – Earle, supra, at para. 16. This duty exists whether or not a court order is inplace. [57] When a parent fails to fulfil their duty, the children are deprived of the financial support they are entitled to receive, but which theycannot enforce. The children cannot go to court to secure the payment of the support they are due.

The children suffer a deprivation, aninjustice. [58] When the parent's duty is secured by a court order, the failure to fulfil that duty not only serves an injustice to the child, but theparent is disobeying a court order.

Our courts cannot, and will not, tolerate such conduct except in the rarest of cases. [59] So, when a parent comes to court having failed in their duty to their child, deprived the child of that which the child is entitled toreceive but cannot enforce, and disobeyed a court order, our courts will not condone that parent's behaviour unless, and only unless, toinsist that the parent fulfil his or her duty would be grossly unfair.

For these reasons, the grossly unfair test is not an easy test to meet. [93] Judge Hamilton summarizes as follows at Paragraph 63 and 64: [63] For the reasons I stated earlier with respect to child maintenance payments, this failure in the spouse's duty, leading to the

deprivation of a vulnerable spouse which amounts to an injustice, coupled with

an act of disobeying the authority of the court, all justifythe very onerous grossly unfair test which applies to an application to reduce or cancel arrears of spousal maintenance. [64] "Grossly unfair" therefore means that the injustice to the payor spouse in maintaining the maintenance arrears is so unfair that thecourt cannot countenance that unfairness in the face of the payor's failure to obey a court order and the deprivation and injustice visitedupon the child and former spouse flowing from that failure. [94] Our British Columbia Court of Appeal in Semancik v.

Saunders, 2011 BCCA 264, at Paragraph 25 examined the grossly unfairtest and said as follows: [25] In Earle, Madam Justice Martinson reviewed the principles that apply in determining whether arrears of child support should bereduced or cancelled, concluding that there are two requirements for a successful application to reduce or cancel arrears. The applicantmust prove a material (which Martinson J. defined as a "significant and long lasting") change in circumstances and that it would begrossly unfair not to cancel the arrears.

Generally, arrears will only be cancelled if the applicant shows he is unable to pay "now and inthe future". [95] Our Court of Appeal in Van Gool v. Van Gool, (BC CA), 1998 B.C.J. 2513, considered the imputation ofincome under s. 19(1)(

a) of the Federal Child Support Guidelines and said as follows: [28] Counsel did not refer us to any decisions which have specifically considered s. 19 of the Guidelines. In my view, however, theconcept of imputing income to a spouse for the purpose of determining the extent of his or her maintenance obligations is not new. Theanalysis engaged in in imputing income to a spouse under s. 19(1)(

a) is similar to that engaged in prior to the enactment of the Guidelinesunder the former child support provisions of both the Divorce Act and the Family Relations Act, R.S.B.C. 1996, c. 128, (the "FRA").

Section 15(8) of the Divorce Act required the Court to consider, as an objective of child support, that the obligation should beapportioned between the parents "according to their relative abilities to contribute to the performance of the obligation." (A similarprovision is now found in s. 26.1(2) of the Act.) Sections 93(2) and 96(1) of the FRA addressed this concept by reference to the"capacities" of the spouses.

Pursuant to those provisions, in making or varying an order for child support, the courts considered not onlythe amount of income a spouse was actually earning, but the amount of income a spouse could earn if working to capacity. [29] For example, in Garcia v. Rodriguez (1997), (BC CA), 29 R.F.L. (4th) 329 (B.C.C.A.), Mr. Garcia appealedfrom an order made pursuant to the FRA requiring him to pay maintenance in the amount of $100 per month for each of his twochildren. He was an aboriginal person living with his Mother on a reserve and receiving social assistance and other income totalling$307 per month.

The Supreme Court judge, in upholding the award of maintenance by a Provincial Court judge, found as follows: Here we have a healthy, strong man of thirty years of age who says that he has had no employment of any kind whatever since late1988. And the trial judge concluded, I think fairly, that such a man could readily have earned income had he asserted himself. It is notunreasonable to conclude that the Appellant is not an invalid, that he makes no effort to support himself nor to meet his obligations to theinfant children he has Fathered. [30] This Court rejected Mr.

Garcia's argument that the trial judge erred in taking into account his potential earning capacity rather thanjust his actual income. In refusing to vary the amount of maintenance awarded, or to set aside the arrears, Mr. Justice Macfarlane,speaking for the Court, stated at para. 12: The sections [of the FRA] to which I have referred do not limit the scope of the Court's enquiry to a question of present income. It is thefinancial circumstances of each person which is to be considered. What is to be taken into account are the needs, means, capacities andeconomic circumstances of each person.

In my view, capacity includes the capacity to work or to be trained to work. It is no answer fora person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is anirrelevant factor.

That, in effect, is the argument of the appellant before us today. [31] It is apparent from this case, and [other similar cases], that the intention of the legislators both before and after the enactment of theGuidelines was to ensure that parties liable for child maintenance were not permitted to avoid their responsibilities simply by virtue ofbeing unemployed or under-employed. Analysis [96] I will deal with the first issue of whether or not the existing child support arrears should be cancelled. The evidence disclosed isthat the Father is entirely capable of earning a good income.

He has a number of skills which he has drawn upon over the past severalyears. He has sought and maintained a variety of jobs in a number of different fields. His evidence suggests that much of his ability toobtain employment is based upon his own personal choices. [97] He has taken the advantage in the past of moving to where the work is located; that includes Northern Alberta and differentlocales within the Province of British Columbia.

His evidence also supports the conclusion that by taking camp jobs he may be able toearn between 80 and $85,000 a year. [98] The Father has faced some minor problems with health, which have resulted in him claiming Workers' Compensation in thepast. However, there is no evidence before me that would suggest that he is unable or incapable of returning to the construction industry. [99] The evidence also demonstrates that the Father has been completely irresponsible when it comes to making payments for thesupport of this child for many years.

Notwithstanding the fact that he had an obligation to pay child support, he made certain choices,including supporting other individuals and their family rather than ensuring that the amounts that were payable by him under theSeptember 3rd, 2008, Order were paid in a prompt and timely fashion. [100] The evidence supports that he considers the court order that binds him with respect to child support to be something in the natureof a suggestion that is inconvenient to him, rather than something that is a firm obligation and an ongoing obligation and duty.

[ 101 ] The Father has clearly not earned the type of income that was imputed to him in the September 3rd, 2008, Order. That being said, he has at times earned a significant amount of income as recited above; based on his Line 150 income, the income amounts have indeed been variable, but again the variation in the income amounts has been to a large extent a matter of his own choice. [ 102 ] The Father has failed to demonstrate that there has been a material longstanding change in circumstances.

I do not consider his poor credit rating to be a matter sufficient in order to meet the tests that have been laid out by Judge Hamilton in L.B. , supra . [ 103 ] As Judge Hamilton correctly notes, the burden placed upon the Father to demonstrate that there is gross unfairness is a very high burden. The Father has demonstrated in his evidence that there is some financial burden, which may amount to a significant financial burden at this time.

However, he has not met the test of unfairness, being sufficiently high to amount to such a significant financial burden that would amount to satisfying the gross unfairness test. [ 104 ] As noted by Judge Hamilton, the test is an onerous one, because parents have a duty to their children to financially support those children. The Father has for a long time consistently failed to meet his duty to his Child.

Therefore, I am of the view that the Father has failed to meet the test of grossly unfair as contemplated in s. 174 of the Family Law Act . [ 105 ] It is also noteworthy that many of the excuses upon which the Father has relied are directly identified and countered in Earle v. Earle .

Specifically, I note that the Father suggests that his income will only amount to some $45,000 in 2015, but at the same time provides confirmation that if he makes the appropriate effort and is prepared to undergo some sacrifice he can find a job outside of the local communities which can pay him a significant amount more money than he has been able to earn in the last couple of years. [ 106 ] One of the inferences that I drew from the Father's testimony was that he was not making payments because of unhappy differences between himself and the Mother regarding his parenting contact time with the child.

Again, that is a matter directly refuted by Earle and cannot form the basis of permitting the Father to seek cancellation of the arrears. [ 107 ] The evidence is also quite clear that the Mother is in a very precarious financial position. Although the Father has no responsibility for two of her children, he does have a responsibility for his own Child. The Mother has used significant efforts both in terms of upgrading her own skills and in order to find remunerative employment. Certain situations have arisen which have placed her in a temporary position of not being able to gain employment.

That, however, is something that she is seeking to change and thus be able to fulfill her duty of providing support for the Child and her other two children. [ 108 ] I do not find any support in the evidence for any suggestion by the Father that she is not making sincere efforts in that regard. [ 109 ] It is also important to observe that the Father may be financially stretched at the present time. However, there is no evidence before me as to what he has done with the considerable income that he has earned at various times over the past several years since the making of the September 2008 Order.

In some years he was an extremely high income earner by community standards. He has also by choice had some very low income years when he allowed what he self-describes as immaturity to fashion his decisions about finding gainful employment and supporting not only himself, but also his Child. [ 110 ] On balance, I am of the view that the arrears should not be cancelled. I make this determination mindful of the fact that the amount that forms the basis of those arrears, is based on an income that certainly overestimated what the Father's income was at the time of the making of the September 3rd, 2008.

However, I am also mindful of the significant reprieve provided by the Mother when she told FMEP that she was forgiving that large amount of arrears. [ 111 ] I am also mindful that in Earle it is noted that an agreement between parents that maintenance for a child does not have to be paid will not be considered. The Mother assumed that she had a right to waive the Child's maintenance when, in fact, the maintenance is owed by the Father for the benefit of the Child and is simply payable through her.

It was an unfortunate decision on her part to agree at a certain time in the relationship between the Mother and the Father to have that amount forgiven for the purposes of Family Maintenance Enforcement. It would have been appropriate at that time for the Father to take the necessary steps in order to bring an application to formally vary the September 3rd, 2008, Order. [ 112 ] The reasons offered by the Father simply are not adequate. He was fully aware of his responsibilities. He was fully aware of the imputed income that was being used for the purposes of the child support payments.

He had no legal impediment to making an application, but simply chose not to do so. Accordingly he must bear the consequences of that ill-founded decision. [ 113 ] The timing of whether there should be any variation of the amount owed by the Father for child support therefore becomes important. As I will set out below, I am intending on making an order different from that of the September 3rd, 2008, Order for prospective child support. [ 114 ] I note that the Father's application to vary child support was filed with the court on February 10th, 2015.

That in my view would be an appropriate date to consider making a determination of the accrual of child support payments under the September 3rd, 2008, Order. [ 115 ] I will now turn to the issue of whether or not the September 3rd, 2008, Order should be varied prospectively and, if so, what amount should be used for determining the Father's guideline income and what is the resulting amount of the payments. [ 116 ] As I have noted above, there have been choices made by the Father with respect to where, when, and how he is employed, which have caused there to be a significant variation in his income since 2008 when the September 3rd, 2008, Order was made. [ 117 ] In recent years, as I have noted above, the Father has had periods of time where by choice he has earned a very poor income, in particular in 2010 when he says he "hit rock bottom". [ 118 ] Again, he was candid enough to admit that it was an immature choice on his part not to seek employment, but I note that from that date going forward again there is a significant variation in his income.

There have been times when he has been out of the

workforce due to injuries, but has been compensated from Workers' Compensation payments. There were periods of time where he appears to have chosen to receive EI benefits.

I have no evidence before me that tells me what efforts he was making during the periods that he was on Employment Insurance to gain employment. [ 119 ] I note that in 2013 he made a decision to move from Campbell River where he had previously been working back to Vancouver in order to reside, as I understand, with his own mother. [ 120 ] 2015 has been a year where he has demonstrated an ability to hold several different types of jobs and to earn a reasonable income.

To utilize the projected income of some 40 to $45,000 in 2015 as the basis for establishing his guideline income would in my view be inappropriate. [ 121 ] The guidance provided by Van Gool is useful in this particular set of circumstances. The suggestion that is put forward by the Mother in her submissions, I find to be a useful way to approaching the problem.

However, it does raise another question of concern for the court and that is whether or not the amount set today should be determinative of ongoing child support in the years to come. [ 122 ] I am of the view that given the history of the Father's failure to abide by his obligation to pay child support that there will need to be annual reviews of the present child support in order to assess the success of the Father moving forward in order to become both gainfully employed at a reasonable level as well as to determine the impact of his payments for child support on his overall general financial circumstance.

Conclusions Arrears of Child Support [ 123 ] Given all of the above, I am of the view that arrears for child support should continue to accrue under the September 3rd, 2008, Order up until the time that the Father brought his application and filed it in this court in order to seek to vary the monthly payments due.

Accordingly, arrears will be calculated in accordance with the records of Family Maintenance Enforcement as may be settled between the parties up to and including the payment due in February of 2015 under the September 3rd, 2008, Order. [ 124 ] If the parties disagree with that amount, then the matter is to be brought back before me for a final determination. [ 125 ] In order to mitigate against any hardship that may flow from a significant arrears order, I will address that by making a monthly payment schedule.

Accordingly, the Father will be ordered to $200 per month commencing effective November 1st, 2015, and continuing thereafter until further order of the court, but subject to review as set out below. [ 126 ] In other words, the $200 per month will be attributable to the payment of the arrears amount as either determined by the parties or, as mentioned above, determined by me through a further appearance before the court. Child support for the Child [ 127 ] I am of the view that the proposal put forward by the Mother with respect to the commencement and the amount of child support is appropriate.

Accordingly, there will be an order that the Father will be paying child support on the basis suggested by the Mother. The guideline income will be established on the basis of s. 19 of the Federal Child Support Guidelines. The Line 150 income of the Father for 2012 being $62,328; for 2013, $87,999; and for 2014, $37,741 will be totalled. I make that amount to be $188,068. The average amount requires me to divide the total amount by three, thereby resulting in an annual income for guideline purposes of $62,689. [ 128 ] The payments therefore based on the guidelines will be $582 per month.

Those payments, of $582 per month, will become effective on March 1st, 2015. Any payments made by the Father to the Mother since March 1st, 2015, will be attributed to the ongoing child support. Any shortfall in the child support payments based on that amount since March 1st, 2015, will be fully paid by January 31st, 2016. [ 129 ] As I noted above, in my view it is essential that there be an annual disclosure and review of the financial circumstances of both parents.

I am also of the view that the amounts that I have set for repayment of the arrears under the September 3rd, 2008, Order up to and including the payment due February 2015 should be subject of that review and also, of course, the issue of child support is never a closed issue and it will be necessary for the parties to review the adequate level of child support in years to come in order to determine that the Father is making appropriate payment based on his abilities to earn money and on his actual financial performance. [ 130 ] Accordingly, I am going to make a further order that for so long as the Child is eligible to receive child support the parties will exchange any copies of their respective income tax returns for the previous year including all attachments not later than May 1st of each year and the copies of any notice of assessment or reassessment provided to them by Canada Revenue Agency immediately upon receipt.

The first delivery will take place in 2016 and continue thereafter until further order of the court. [ 131 ] The payments of child support will continue for so long as the Child is eligible for support under the Family Law Act or until further order of the court. [ 132 ] Therefore there will be orders accordingly. [ 133 ] The Mother's solicitor will be responsible for preparing the form of the order. [ 134 ] MR. MATTILA: Could I ask also if in the order that we dispense with S.D.H.’s signature? [ 135 ] THE COURT: I am just going to deal with that. [ 136 ] MR. MATTILA: Okay. Sorry, I apologize.

[ 137 ] THE COURT: Yes. In this case, I am going to require the form of the order to be sent to S.D.H. for his approval as to form. In doing so, I am mindful that I have left it to the parties to come up with a final determination of the amounts that are due for arrears of child support as I have set forth above after the payment due February 2015. [ 138 ] I direct that if there is an agreement as to that amount, that it be evidenced in documentary form signed by both the solicitor for the Mother as well as by the Father.

If it is settled between the parties, then the amount agreed upon can be placed into the form of the order based on the signed document. [ 139 ] If the parties are in dispute over the form of the order that I have made, then the matter is to come back before me no later than November 30th, 2015, in order to settle any outstanding issues. [ 140 ] I am going to pause for a moment. Are there any questions about the form of the order that I made? Not my rationale, but what I have actually ordered? [ 141 ] All right.

Having heard no concerns, that concludes my reasons for judgment, and I will stand down. [REASONS CONCLUDED]