B.D.M. v. N.N.S. Date:, 2011 BCPC 402

Citation: B.D.M. v. N.N.S. Date: 20111208 2011 BCPC 0402 File No: F7998 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: BDM APPLICANT AND: NNS RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Appearing on their own behalf: The Applicant, BDM Appearing for the Respondent: H. Astaforoff Place of Hearing: New Westminster , B.C. Date of Hearing: December 8, 2011 Date of Judgment: December 8, 2011 [ 1 ] THE COURT: This is what I am going to do in this case.

The Family Relations Act is the statute in this province that sets out the obligations on the part of parents to pay child support for children. [ 2 ] There is no question in this case that this little girl, K, is the child of the two adults who appear in front of me, NNS and BDM. [ 3 ] The only basis upon which the mother NNS' income would be relevant in this proceeding is if she were claiming a contribution from the father BDM towards what are called Guideline 7 special or extraordinary expenses.

The law set out in the Guidelines provides that those are to be shared on a pro rata basis between the parties having regard to what their income from all sources either is, or I suppose might be had they cared to go out and work at anything, or on a fuller-time basis perhaps than they are. [ 4 ] No such claim is advanced in this lawsuit. The only claim that is advanced, as I have alluded to earlier, is a claim for the basic amount of child support, which is payable under tables that are enacted under the Guidelines in this Province.

The tables set out the amount of child support that is to be payable by any payor parent, simply driven by the amount of income that that person makes. [ 5 ] The obligation to support a child is set out in s. 88 of the Family Relations Act , which states simply in subsection (1): Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child. A child as defined in the Family Relations Act would certainly include this little girl.

There is no issue on that point. [ 6 ] Under s. 93 of the same Family Relations Act , which deals with orders for support and maintenance, the legislation states that:

...a court may make an order on application -- - and leaving out some of the words - -- requiring a party to the proceeding to discharge his or her liability (

a) under

section 88 by paying to the person designated in the order the amount the court ascertains, using the child support guidelines,... [ 7 ] So the liability here in question is that of the father, and this legislation in my view is broad enough to permit me making an order that the payment be made to some person other than the mother, although I accept immediately that that would be unusual for me to do that. [ 8 ] The Guidelines , when one reviews them, set out rules whereby the amount of child support can be calculated, and they do not generally have any legal statements in them that require a child, for example, to be actually in the physical custody and residing with the parent who is applying for child support.

Nor, for that matter, does the Family Relations Act so state. This, of course, is the point that BDM takes most strenuously in this proceeding before me, that if this little girl is really living with grandma, why should he be obliged to pay anything to the mother? And I think those simple statements encapsulate his position in these proceedings in the last two days.

Maybe the Act and the Guidelines could be improved upon with respect to this whole concept that is of concern to him, but what I have said I think is accurate, that they do not expressly provide for it. [ 9 ] In my view, it is enough in a case, and in the case at bar before me involving these two parents, for the mother to have an order in her favour as she does providing that she has sole custody of the child.

The evidence frankly is that even though this little girl spends very significant periods of time with her grandmother, and I accept that she has done so perhaps for some time starting earlier than January or February of this year, contrary to the mother's evidence, that nonetheless the mother is still playing an integral role in her daughter's life.

For example, she picks the child up very frequently after school, takes the child to her mother's, spends some measure of time with her daughter at her mother's, makes lunches for her preparatory to school the next day - not every day but on some days - and generally is involved in her care until bedtime. [ 10 ] The impression I have is that for the most part during weekdays of late, while the mother has been recovering from some health issues, this little girl is gotten up in the morning and sent off to school or taken to school, more accurately, by her grandma, who testified before me, and the mother is not involved in, for the most part, in that early morning activity.

The child is at school during the day.

I accept that the school has both the grandmother's phone number and the mother's phone number for purposes of emergency calls (of which I think I am told there have been none) but it does not frankly matter a lot to me who gets called first for purposes of the decision I have to make. [ 11 ] I am satisfied that insofar as there is an obligation on the part of the Minister to establish on the balance of probabilities an entitlement to child support on behalf of the claimant mother, NNS, that that has been met in the case at bar. [ 12 ] The trickier point perhaps to deal with is what the quantum of child support should be.

I have not had filed before me any information with respect to the exact amount of income made by the respondent father from January 1st, 2011 to date, including documentation that he may have been provided with by prior employers. All I really have to go on is the fact that since he says mid- August 2011, he has had reasonably secure employment working at a heating firm that he has testified about.

And he has been very cooperative in bringing current pay stubs to court that disclose that his year-to-date income working for the heating concern in Burnaby is in the amount of $6,392 essentially for 3.5 months, which according to counsel's calculations and those made by the court, equates to an annualized Guideline income of some $21,915. [ 13 ] The testimony that he has given would suggest that if he applies himself, that this job is a reasonably secure one. [ 14 ] This employment is said to be reasonably secure and the respondent father says that that is the very reason that he is working in that job as against looking for jobs where he might use other skills that he has, for example, rigging crane loads, working on construction sites and doing skilled labour involving skills with various hand tools. [ 15 ] I am told that the amount of child support that is driven by an annualized income figure of $21,915 is $199 per month. [ 16 ] The father in his closing submissions said that he has not offered that earlier in time because he cannot afford to pay it. [ 17 ] Essentially the Guidelines provide that in all but the rarest and most exceptional circumstances, that is the amount that a person earning $21,915 is obliged to pay for child support for one child.

Everybody is required to make the payment that is mandated in the tables, and the judges sitting in our courts in this province, and in indeed other provinces in Canada, have precious little discretion with respect to the amount of child support. [ 18 ] Accordingly, and notwithstanding the submission made by this father, there will be an order that this amount of child support will start on December the 15th, 2011, and it will be payable in equal parts on the 15th day and 30th day of each and every month thereafter.

So the first payment will be one half of $199 due on December the 15th, with a further half on the 30th of December, and this amount will be payable on the 15th day and 30th day of each and every month thereafter, save for the month of February each year when the amount will be payable on the last day of February.

This amount of money will be paid as long as the mother, NNS, has sole custody of K, and as long as K remains a child as defined by the Family Relations Act . [ 19 ] I have considered whether this is a rare case where under s. 93(2) of the Family Relations Act where the amount should be payable to someone other than the mother NNS. I understand that I have jurisdiction to make such an order by reason of the language in s. 93(1)(a), which enables me to make the amount payable to a person designated in the order.

I am satisfied, having regard to the track record that exists between these parties, and being impressed as I was by the involvement of the grandmother, DS, in the life of this child and the acceptance by both parents historically that she should be very integrally involved in the life of this child, that this is one of those

rare cases where the order should be that the amount of money is to be payable to the grandmother, and I so order. Child support will be payable to DS. [ 20 ] I make a further order that the respondent father will make all future payments by means of a cheque and he will provide to DS a series of post-dated cheques for six months allotments of child support. So on or before December 15th, he is to provide her with whatever number of cheques are called for so that she will have in hand child support in the amount ordered for K from December 15th, 2011 through to June the 15th, 2012.

And the order will provide that thereafter on or before June 15th, 2012 he will provide a further series of post-dated cheques, also payable to DS for the next six months of child support. In that fashion, the amount of child support actually paid by the father will no longer be a mystery with him saying that he has paid more than he has and the mother taking issue with the exact amounts paid. It is quite frankly madness, I think, to make payments for whatever reason, lawful or otherwise, in cash without at least getting a receipt for the payment.

The courts are plagued by people who do this kind of thing, and it makes the job of judges very difficult in sorting out at the end of the day, who is telling the truth. If cheques are provided, there can be no question as to whether payments are made or not because photocopies of cheques can be got. The reverse can be copied, signatures seen on the reverse, and it becomes very clear who got the money. [ 21 ] The order will provide that DS will be a trustee of these funds for K. That will be expressly set out in the order.

The money is to be spent only for her benefit. [ 22 ] There will be a further order under Guideline 21(2) that the respondent BDM will provide to counsel for the Minister and file with the court not later than December 31st, 2011, copies of his tax returns as filed with Canada Revenue Agency with all attachments, including any notice of assessment or reassessment that he may obtain from Canada Revenue Agency for the tax years 2008, 2009 and 2010. [ 23 ] Further, he will file and provide to counsel for the Minister copies of any and all documentation he has with respect to his income from all sources for the tax year 2011. [ 24 ] There will be a further order that on or before May 15th, 2012, and on and before the 15th day of each and every year thereafter, and so long as he is required to pay child support for K, he will provide to the Ministry and to NNS a copy of his current tax return as filed for the year in question.

The order will have to be structured so as to provide, for example, by May 15th, 2012, he will provide a copy of his 2011 tax return. It is abundantly clear under the tax rules that that apply to all Canadians who earn income that we all must file a tax return by the 30th day of April every year, with there are few exceptions to this general rule known to the court.

Therefore BDM, while he is obligated to pay child support, is expected to comply with the rules that we all play by, file his return by April 30th and provide a copy of it to the Minister and to the mother of his child within roughly two weeks, by the 15th day of the following month. [ 25 ] The signature of BDM on this order will be dispensed with. Counsel will draw the order. [ 26 ] I will state in my reasons that I am not making any finding as to whether or not the Minister has a retroactive claim for child support in this case.

I am simply unable to grapple with that issue when I have no financial disclosure from the father. [ 27 ] If the Minister wishes to pursue such a claim after the father complies with the orders that I have made, the Minister will be at liberty to set that matter down for a hearing at a future date. There will then be a single issue for me to determine.

I will be seized of that matter, namely whether or not this father should pay any retroactive child support for this child. [ 28 ] Having heard the evidence that I have heard, and assuming that it is accurate and in no way dividing this issue, I would not have thought that any retroactive order would start any sooner than June 1st of 2010, being told as I am, that he was served with the application by the Minister on behalf of the mother on May 1st, 2010, and in the result, the claim for retroactive child support would be something in slightly over a year in duration.

The law is that he would have a credit against any arrear found to be payable for any payments that I find that he has made, including in cash to the grandmother for this little girl. [ 29 ] So that matter is outstanding. If the Minister wishes to pursue it, it must be brought before the court with an appropriate application served on the respondent father, and a date set for a hearing that is convenient to both parties. [ORAL REASONS FOR JUDGMENT CONCLUDED]