MD v. GD Date:, 2012 BCPC 187

Citation: MD v. GD Date: 20120502 2012 BCPC 0187 File No: F8770 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: MD APPLICANT AND: GD RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Applicant: R. Simunovic

Counsel for the Respondent: A. Letwin Place of Hearing: Port Coquitlam , B.C. Date of Hearing: May 2, 2012 Date of Judgment: May 2, 2012 [ 1 ] THE COURT: On July 30th, 2010, GD filed an application to cancel an order made June 17th, 2008, and in addition, terminating child support for his two children: K, born [DOB], and S, born [DOB].

The reasons he gave were that K had turned age 19, S was away at school and was self-supporting, and that he was unemployed and his income was drastically reduced assumedly from what it had been in June of 2008. [ 2 ] The order is in fact an amended separation agreement filed with this Court on July 30th, 2010 and as well in the Supreme Court of British Columbia on June 10th, 2009.

It followed an earlier first separation agreement made on January 2nd, 2004. [ 3 ] MD filed a reply on August 30th, 2010 stating that she was in agreement that the child support for K be terminated provided that a corresponding amount -- she did not state what this might be -- be paid to her as spousal support.

In so replying, she sought to rely on clauses in the above agreements which I shall shortly come to and I think in particular the amending agreement, the latest in time. [ 4 ] She disagreed that the child support should be cancelled for S as she was said not to be self-supporting while attending university. [ 5 ] In this reply, she also sought: 1. Child support for S. 2. Spousal support. 3.

A declaration of arrears. [ 6 ] GD was in his reply thereto filed September 28th, 2010 generally opposed to the relief she sought, asserting in part that he had paid all arrears of his support payments in September 2009 with a lump sum. He also sought an order cancelling or reducing the arrears. [ 7 ] MD has not sought in her application, a retroactive variation of child support. [ 8 ] This matter proceeded before me with a trial. I heard a great deal of oral evidence from both parties. Neither K nor S testified.

In addition, I received various documents from the parties, all of which I have reviewed, and further a lengthy affidavit sworn by GD on September 13th, 2011 with various exhibits attached thereto. [ 9 ] I do not intend to summarize all the evidence given by both parties which I have heard at the trial.

Rather, I will set out what I consider to be some of the more salient facts in this matter, many of which are not in dispute. [ 10 ] I should state at the outset that I generally found both GD and MD to be persons attempting to be honest in the testimony they gave before me, both of whom seemed to make every effort to honestly tell their story to the Court with the aid of documents where available. The fact that I perceive them to be honest in this regard does not mean I accept all the evidence they gave to be either fully reliable or accurate.

MD did however admit that she did have some difficulty remembering certain historical facts accurately by reason of her current medical condition which I shall come to. BACKGROUND [ 11 ] The parties were married in April 1986. GD was born [DOB]; he is now age almost 59. MD was born [DOB]; she is now 52 and one half years of age. [ 12 ] When they were married, MD was working at Revenue Canada as a stenographer and GD worked at Rogers Sugar.

He lost his job there in about April 2002. [ 13 ] Nonetheless, GD says he is entitled to a pension at his age 60 on June 20th, 2013 from Rogers Sugar and asserts that MD's share then payable will be about $960.00 per month pursuant to a division he earlier made with respect to this pension in the first agreement. I understand he wishes to retire at his age 60. MD did not at trial oppose his wish to do so. [ 14 ] MD stopped her work at Revenue Canada when S was born.

The parties first separated in the year 2000 and finally did so in early 2002 after an unsuccessful reconciliation attempt in the year 2001. [ 15 ] Following separation and his job loss, GD, who then lived with his mother in her condominium, did warehouse work and received Employment Insurance in both 2002 and 2003. In the spring of 2004, he elected to re-train as a crane operator and by June 2004 qualified to work as such. [ 16 ] On January 2, 2004 the parties finalized a separation agreement and the same was filed with this Court on January 2nd, 2004.

It provided that the two children would live with MD in the family home in Port Coquitlam, and GD transferred his undivided one-half interest therein to her and she took on the responsibility of making the mortgage payments.

[ 17 ] The

schedule to this first agreement provided that the home was then worth some $250,000 and the mortgage was said to have $40,000 outstanding. In the result, based on these figures, GD's interest was then worth about $105,000. In his evidence, he said he thought it was worth closer to $150,000. [ 18 ] MD also received all of their RRSP, and a 1998 Mazda van valued together at $24,000. [ 19 ] By contrast, GD received $13,000 worth of assets. His anticipated inheritance formed part of the property referred to in the agreement and was said to be an asset and said to be worth $75,000.

It was not in January 2004 in my view an asset at all, rather it was an expectancy at best with no legal certainty he would receive it in future at all. [ 20 ] This agreement also divided GD's pension with Rogers Sugar 50/50 starting with a date approximately 15 years before they married and including some approximately 11 years after they separated. [ 21 ] This division of assets was clearly very generous to MD, and GD testified he did what he did so that the children would have a home to live in while growing up. [ 22 ] MD testified at trial that this home is now worth some $600,000.

I note no document has been provided to the Court substantiating this value. It has an outstanding mortgage of some $120,000. Her present equity is therefore $480,000 based on this evidence. [ 23 ] The January 2nd, 2004 agreement stated that GD was unemployed and taking training to become a tower crane operator and that he expected to earn income in the near future. MD was said to be employed for the last four months with Vancouver Condominium Services Ltd. GD’s 2004 income was said to be some $33,218. [ 24 ] In this first agreement, he agreed to pay $1,000 a month child support.

Clause 10(2) in the agreement states as follows: If [MD] become [sic] unemployed, [GD] will pay to [MD] the sum of $1,800 per month for the support of the children ("the Child Support") such support to be paid on [GD's] paydays, twice per month, in the amount of $850.00 each, such payments to be made to [MD] each year with post-dated cheques issued every four months. [ 25 ] The parties agreed in Clause 11 that GD's child support obligation would cease when the children among other things became self-supporting, became 19 years old, and unless they remained a child of the marriage within the Divorce Act due to inability to become self-supporting due to illness, disability, pursuit of education or other cause. [ 26 ] This agreement also provided in Clauses 14 to 17 for spousal support as follows: Spousal Support 14.

As each child becomes ineligible for child support, $500.00 from the amount of child support per month for that child shall be converted to spousal support and given to [MD] for that purpose. 15. [GD] shall pay [MD] spousal support which support will be increased by $500.00 per month for each child once they reach ineligibility for child support for a total of $1,000 in spousal support ("spousal support").

Spousal support shall be paid to [MD] every two weeks in the sum of $500.00 which [GD] shall pay indefinitely due to [MD's] disability which [GD] was aware of prior to marriage. 16. [GD] agrees to help [MD] with the responsibilities of the children and house if her health fails. During this period he will continue to give her spousal and child support and keep his personal residence separate from [MD’s]. 17. Upon [GD] retiring from employment at the age of 65 years, spousal support for [MD] shall cease. [ 27 ] This first agreement was amended on June 17th, 2008.

It states that GD was then working as a crane operator and making some $94,100 a year. This figure does not correspond of course with his 2008 tax return which states that he earned $73,871 in 2008 working as a crane operator and as well from Employment Insurance, some $20,000 less. In the prior year, 2007, his income was marginally more or $95,649. [ 28 ] This amending agreement states MD was then making $31,000 a year with the above company, Vancouver Condominium Services.

Her 2008 tax return shows her total income from all sources this year to be $31,487.00. [ 29 ] This agreement amended the child support payable by GD to MD to be $1,369 a month assumedly from July 1st onward and contained a proviso that the parties would by May 31st exchange copies of their tax returns each year by May 31st and annually by June 30th each year review child support. This review was never conducted. [ 30 ] The agreement also states that if no review occurred this means both parties consider the child support satisfied the Guidelines requirements in essence each following year.

In my view, it did not. [ 31 ] Finally, the spousal support provisions were amended to read in Clauses 6 to 8 as follows: 6. As each child becomes ineligible for child support, the child support paid from the amount of child support per month for that child shall be converted to spousal support and given to [MD] for that purpose. 7. [GD] agrees to help [MD] with the responsibilities of the children and house. If her health fails during this period he will continue to give her spousal and child support and keep his personal residence separate from [MD's]. 8.

On [GD] retiring from employment at the age of 65 years, spousal support to [MD] shall cease.

[ 32 ] Nothing in the agreement defines what was the amount of child support that was automatically to become spousal support when either child became ineligible. For example, was it one half of $1,369 or the difference in the table amount for one as against two children on the date the ineligibility arose? [ 33 ] I asked all lawyers involved in this case (all very experienced with family law) during the course of the trial to attempt to locate a decided case for such a provision as Clause 6 in the amending agreement which was construed or considered by any Canadian court. None were located.

All said, as I recall, they had never seen such a clause before. Nor have I. [ 34 ] One obvious difficulty with respect to this type of clause is that if a party, as here, seeks to vary child support or reduce or cancel arrears claiming for example that a child is no longer eligible, if this point is disputed the Court needs to address the eligibility issue first. Is it child support the Court is dealing with or is it spousal support? They are different. Different legal rules apply to each.

Not only are the automatic spousal support provisions vague as to amount, they are clumsy, in my view, in operation. [ 35 ] I return to the facts in this matter. [ 36 ] GD’s income in 2005 was $58,175. S graduated in 2005 and in September enrolled in part-time General Studies at Kwantlen College. She lived with her mother through January 2006 and then for three months, to March 2006, with her then boyfriend. She returned to live with her mother in or about April 2006 and lived with her mother to July 2006. In August 2006, S left home to live with roommates and did not attend college for some 14 months.

She lived with roommates to April 2007 and did not re-attend school until September 2007. From May to August 2007, she lived with her mother. [ 37 ] In 2006, S made $21,183 and purchased a car. In 2006, GD’s income was $67,484, all earned as a crane operator. From September 2007 to March 2008, S lived with another boyfriend's parents while attending a Nursing Unit Clerk program at VCC which ended in April 2008. [ 38 ] In 2007, S's income was some $18,558 and GD said she paid her own tuition costs at VCC with scholarship funds. In this year 2007, GD earned $95,649 and MD earned $31,153.

GD said he did very well this year with the surge in pre-Olympics construction activity in the Lower Mainland. [ 39 ] In September 2007, when K was almost 17, he came to live with his dad staying until May 2008. [ 40 ] In April 2008, S returned to live with her mother and did so to December 2008. [ 41 ] In June 2008, K graduated from high school. He returned to live with his mother in or about June 2008. He did not attend school in the fall of 2008 but did do a few continuing education upgrading courses.

I have no particulars as to the hours involved or precise number of courses or exactly what was involved. [ 42 ] In September 2008 to July 2009, S attended Douglas College taking sciences and also worked part-time as a Unit Clerk at Eagle Ridge Hospital. In 2008, S's income was some $24,277. S and K lived with their mother in the fall of 2008. GD's income in 2008 was $73,871 from crane operator work and Employment Insurance, and MD's was some $31,487. He testified that his union job as a crane operator ended on September 28th, 2008 and he was unable to find another job as such for the balance of this year.

He drew Employment Insurance too to December 2008. [ 43 ] GD said he was not in arrears on his support payments until September 2008. According to Exhibits 11 and 12, in September 2008 GD had started to accumulate arrears through the Family Maintenance Enforcement Program ("FMEP") eventually in the amount of $10,322 at July 2009 being ten payments under the amending agreement or $13,690 and less $3,368 of payments made by GD from September 2008 to February 2009. [ 44 ] In January 2009, S came to live with her dad and remained for five months to May 2009.

While there, she attended Douglas College in New Westminster. In June 2009, S returned to live with her mother when her semester at Douglas College ended. She lived there over the summer until August 2009. In September GD says he drove S to Edmonton where she had enrolled in first year at the University of Alberta doing a Bachelor of Science degree and living in residence.

K was then living with his mother doing certain landscaping work. [ 45 ] GD's mother passed away in 2008 or 2009 and when her estate was finalized in 2009, he received $60,000 which he testified he spent as follows: 1. $10,000 paid to FMEP for outstanding arrears. 2. $45,000 toward the purchase of his mother's condominium where he had been living since separation in 2002. 3. About $5,000 was given to S to help with her first year tuition and residency costs. [ 46 ] In 2009, S's income was some $22,311 and K made some $7,887.

GD made $33,725 and MD made $37,010 and had income from an RRSP in addition of some $3,975. [ 47 ] On October 19th, 2009, K turned 19 while living at home with his mother. He was not then attending school and to some extent was either working or based on the evidence I have heard, at least capable of working at gainful employment. I do not know when he made the $7,887 reported this year on his tax return. [ 48 ] In late 2009, GD was working primarily doing day labour jobs and said his income this year also included certain Employment Insurance benefits.

He said he could not find union work this year. [ 49 ] GD testified that on several occasions prior to January 2010, including as soon as he lost his union job as a crane operator on

September 28th, 2008, that he asked MD to consider lowering the payments called for in the amending agreement but each time she refused. In the result, he said finally in January of 2010 he filed an application to change the same in the New Westminster Supreme Court later learning from court duty counsel in July of this year that this was the wrong court and location. He learned that without a consent variation in the amount called for in the agreement, he would have to apply to this Provincial Court to vary the same which as I have already said he did so on July 30th, 2010.

At this time he was employed however only doing day labour jobs. [ 50 ] In late January 2010, K asked to come and live with his dad and did so. His father did not charge him rent. K worked at various jobs in the spring of 2010 including delivering drywall.

K continued to live with his dad to May 2011 and when GD suggested he might want to contribute some rent, he left to live with his mother. [ 51 ] There is no evidence that MD ever charged either K or S rent when they lived with her, regardless of the amount of income they were making at the time. [ 52 ] In June 2010, K went to Jamaica for a two-week holiday with friends which he apparently paid for. [ 53 ] S completed first year at the University of Alberta in May 2010 and left residence to live with her then boyfriend's mother in Edmonton, working over the summer at two different jobs.

Since the completion of her first year in May 2010, the evidence is that S has really only visited with her parents in British Columbia for relatively brief periods of time including at Christmas 2010. [ 54 ] GD had difficulty finding work as a crane operator in 2010. He said he had not worked for his union since the fall of 2008.

In the fall of 2010 he found a job doing some crane work but hurt his back and was unable to continue the lifting and carrying aspects of this job and was fired November 30th, 2010. [ 55 ] An x-ray taken in October 2010 states that GD has advanced osteoarthritis and lumbar spondylosis in his back. GD says these conditions which he calls "spinal problems" limit the type of work he can do.

The radiology report relating to his lumbar spine states that the x-ray disclosed advanced degenerative disc disease and disc space narrowing at L4-5 and L5-S1 with moderately severe narrowing of L1-2 and L3-4 disc intervals. [ 56 ] GD’s income in 2010 was some $37,341 and his tax return this year shows union dues of $188.00. MD's notice of assessment with Revenue Canada for 2010 shows her income was some $30,215 which included some $6,400 of Employment Insurance. S's net income in 2010 as reported by her in an email of September 9th, 2011 to her father was said to be $8,527.

K's income in 2010 during which year he lived with his dad was some $22,000 earned doing security work and drywall delivery. On August 29th, 2010, he provided a cryptic note to GD stating that he was solely independent purchasing his own food and asked for no financial support from him. K was then almost 20 years of age. [ 57 ] On October 20th, 2010 early in her second year at the University of Alberta, S authored a letter "To whom it may concern". She was then 23 and one half years of age.

It states in part that she was living independently and had not lived with her mother since August 2009 and had not been receiving regular financial support from her. She had student loans of $21,760. She worked full time in the summer of 2010 but quit this job to concentrate on full time, full course load school work. She acknowledged in the past approximately year her mother had given her $1,200.

GD said he asked S to prepare this note that also sets out where she lived and what courses she had taken by October 2010, all of which facts I believe I have set out above. [ 58 ] GD said by September 13th, 2011 he had earned some $31,511 doing non-union crane operator work. His Form 4 financial statement discloses he also received by this date $6,500 in Employment Insurance payments for a total income to September 13th, 2011 of $38,000. This form shows union dues nonetheless of $450.00. [ 59 ] This same financial statement refers to GD’s then net worth.

He lists total assets of $75,200 including equity in his condominium of $74,000 calculated on a market value of $260,000 less a mortgage of $186,000. He shows debts of some $23,492, $22,000 of which is said to be a debt consolidation loan. His net worth is therefore some $50,500 based on these figures and of course does not include any amount owed to FMEP or MD. If this amount were to be included, his net worth at his almost age 59 would be close to zero. FMEP ARREARS [ 60 ] GD was in 2008 registered with FMEP. I do not have the precise date when this occurred.

Exhibit 12 at p. 2 (being a list of payments form completed by MD) states that he owed her no support payments prior to September 2008, the month in which he lost his union job as a crane operator. [ 61 ] Exhibit 4, being a further FMEP statement for the period starting July 10th, 2009 when according to FMEP he owed arrears of $10,152.46 shows he made a $10,000 payment on August 21st, 2009 thereby reducing his outstanding balance to $1,535. 26 being mostly the unpaid July 2010 amount called for in the amending agreement of $1,369 a month for child support for two children.

This statement contains a closing arrears balance of $36,930.86 at October 11th, 2011 comprising interest of $1,117.48, default fees of $1,200 and arrears from ongoing maintenance of $34,613.38, all apparently calculated on the basis of the amending agreement monthly amount of $1,369. [ 62 ] Exhibit 4 shows GD paid FMEP the following amounts during this period: in 2009, $10,000; in 2010, $755.56; in 2011, $1,746.52; for a grand total in these three years of some $12,502.08. [ 63 ] There is other evidence (Exhibit 8, Tab 23) that by November 16th, 2011 the arrears were said to be some $37,202.43. [ 64 ] GD gave evidence as to his financial assistance for his children above and beyond child support paid to their mother.

He summarized same in Exhibit 5 dealing with K and Exhibit 6 dealing with S. He was not really cross-examined on either document in any depth.

[ 65 ] GD points out that he has always assisted with his son's ice hockey costs within reason including defraying transportation costs from time to time. [ 66 ] I do not intend to review this evidence in any detail. GD testified as to his current rather precarious financial situation. The arrears said to be outstanding greatly concern him. FMEP has filed a lien on his condominium. He is having difficulty making ends meet. He has no credit rating. His cable service was cut off in January 2011 due to late or non-payment of bills.

He has been late in paying certain strata fees and a special assessment of the strata corporation. The $22,000 loan referred to above is from a friend, one Ms. A and was said to be necessary to prevent his mortgage being foreclosed upon. At trial his condominium was for sale. He had never claimed a tax deduction for spousal support. [ 67 ] Based on his evidence, the impression I have is that for several years after 2008 he has done far less union crane operating work than he did in say 2007 and 2008 and at a lower hourly rate oftentimes.

For example, he testified that by December 31st, 2010 he had only done 31 days work on union jobs. All the rest of his crane operator work as I understood his testimony was non-union work. However, he did say that in 2011 he was able to attract all union work save for one job. [ 68 ] He said he would like to retire at his age 60 on June 20th, 2013 and then to commence receiving his pension as would MD, namely, about $960.00 per month each. [ 69 ] As to his current medical condition, he said his lower back problem is currently okay if he operated a tower crane which he does while seated.

This work comprises about 70 percent of his current workload. His back hurts or gets sore if he has to lift things or do a lot of climbing. He cannot stand for more than four to five hours at a time. He also has an ankle with reduced range of motion and said it gets sore if he has to stand while operating what he described a self erect crane which apparently comprises about 30 percent of his current workload. These medical conditions are certainly in my view material changes from a health standpoint from where he was in the year 2008. [ 70 ] MD testified at length at the trial before me.

Again, I have considered all of her evidence but do not intend to summarize all of it in these reasons. She said that she had worked at Vancouver Condominium Services from September 3rd, 2003 to February 11th, 2011 as a typist. She described various medical conditions in her evidence outlined in letters from her doctors (at Exhibit 8, Tab 12) in 2010 and 2011 as follows: 1. Epilepsy history requiring daily medications to prevent seizures. She testified that her last seizure had occurred when K was age 5. 2. Mood fluctuations and anxiety diagnosed with a borderline personality disorder.

This causes recurrent emotional breakdowns. 3. Urinary difficulties following two somewhat unsuccessful surgeries, one of which caused her to be off work from May to September 2010, a period which she described as a very difficult recovery following which she experienced problems returning to work including memory deficit and an inability to problem solve which made it impossible to do her old job. 4. Recurrent episodic cough. She testified that in May 2011 Dr.

McCarthy diagnosed her to have COPD which I take to mean chronic obstructive pulmonary disease and that she uses a puffer medication daily to deal with this condition. [ 71 ] Dr. McCarthy was of the opinion that these permanent conditions negatively affected her ability to be and remain gainfully employed and affected her ability to work consistently. On May 11th, 2011, Dr. Lovett was of the opinion that MD had chronic permanent medical conditions that precluded her from working indefinitely. She felt the above conditions were still current. MD testified that it was Dr.

Chang, a psychiatrist, who first diagnosed her to have a borderline personality disorder in the year 2009.

She currently takes a mood stabilizer drug to deal with this condition and as well has been attending a two-year program at the Surrey Memorial Hospital to deal with it. [ 72 ] These above two letters that I have referred to from her family doctors were prepared for Employment Insurance purposes which she received following her departure from Vancouver Condominiums, from May 2011 into April 2012 in the amount of $1,581 a month (see Exhibit 13). [ 73 ] She has applied for total disability benefits through a bank group insurance policy and feels there is a good chance she will be approved for a monthly amount which would be some $979.00 or more per month dependent on whether or not she receives other income, for example, Employment Insurance. [ 74 ] MD gave some evidence concerning her debts and how they had accrued.

Currently, she has a first mortgage with a 35 year amortization with the Home Trust Company (see Exhibit 8, Tab 14) requiring a monthly payment of $374.33 including $87.83 towards taxes and with about $119,000 to $120,000 balance outstanding.

This indebtedness was taken in March 2010 as a form of loan consolidation when she consolidated her line of credit with the Royal Bank of some $75,000 and took new funds of some approximately $45,000, she said to make ends meet. [ 75 ] The evidence is that she used some of these funds either from the line of credit or the new mortgage to improve her home including renovating her kitchen at a cost of $25,000, building a kitchen in her basement, installing hardwood floors throughout and acquiring a new roof, furnace, or water heater. In addition, she acquired a new car at a cost of $10,000.

She has created a basement suite and rented it starting in the spring of 2010 to a tenant at $550.00 a month. [ 76 ] She also testified that some of this indebtedness was as a result of money she spent on her children including, she alleges, some $53,000 (Exhibit 8, Tab 22) on various hockey related costs for her son K. GD said he was not consulted on many if not all of these costs, including flights to Toronto. DISCUSSION

[77] I accept the evidence in this case that there were no arrears owed under the two agreements until September 2008. This iswhen GD lost his well paying full-time union job as a crane operator. Thereafter arrears started to accrue and the most recent FMEPevidence placed before the Court shows that these were in the amount of $37,202.43 at November 16th, 2011. This figure includes costsand interest. Exhibit 8, Tab 23 shows that the arrears accrued on a monthly basis of some $1,369 which is as I have said the amountcalled for in the amending agreement initially for child support commencing on June 17th, 2008.

The start date for these monthlypayments is not set out in this amending agreement. [78] A fundamental premise for these arrears is that on and after September 2008 each child was a child as defined by s. 87 of theFamily Relations Act. I think too, a second basic premise relevant to the accuracy of the above figures is that Clause 6 in the amendingagreement is a valid and legally enforceable clause. The mere fact that the amending agreement was filed in this Court does not in myview make it so. [79] S turned age 19 on May 16th, 2006 and K turned age 19 on October 10th, 2009.

Dealing with GD’s application to rescind thearrears outstanding, all of which are said to have accrued after September 2008, in my view I need to deal with at least these twopremises as well as the provisions of s. 96(2) and (3) of the Family Relations Act. [80] If S and K at some point ceased to be children, then on this basis there would be no legal obligation on the part of GD to payany child support to MD for each child thereafter. I will deal with the oldest child, S, first. [81] Was she a child within s. 87 of the Family Relations Act on the date the amending agreement was made on June 17th, 2008?

She was then 21 years of age. In my view, having regard to the principles in Farden v. Farden (1993), (BC SC), 48R.F.L. (3d) 60, she was not then a child. [82] For the first three months of that year she lived with her boyfriend's parents while attending Vancouver Community Collegeapparently doing a unit clerk program. GD's evidence is she paid for this herself using scholarship funds. She completed this course inApril 2008 and then commenced living with her mother and did so to December 31st, 2008. As well, she worked part-time as a unit clerkat Eagle Ridge Hospital and her 2008 income was some $24,277.

She was enrolled on some part-time basis at Douglas College in thefall of 2008 and took apparently two courses: Preparation for General Chemistry and Basic Algebra. [83] MD did not request that S contribute anything towards her own costs in the nine months to December 31st, 2008notwithstanding her average monthly income was approximately $2,000. [84] Because S has not provided the Court with an affidavit that fully deals with her work and schooling, including expensesincurred, I am not in a position in any event to consider the analysis called for in s. 3(2)(

a) and (

b) of the Guidelines dealing with a childwho is over the age of majority. I am aware that MD has included a

schedule as an attachment to her 2010 financial statement said to beS's annual expenses for university which I assume relates to S's second year at the University of Alberta although it does not say so. Shas not confirmed that these apparent estimates are accurate and they include items which, in my view, are not within Guidelines s. 7 forexample a car loan payment and debt payment amounting to almost $10,000 alone. Nor do these estimates relate to the years 2008 or2009.

I find GD did not owe MD for child support for S in the year 2008 notwithstanding their agreement. [85] I have no evidence as to whether she applied for student loans and here I refer to S in the year 2008 nor as to the amount ofbursaries or scholarships she may have received that year. [86] In 2009, S lived with her father from January to May or for some five months. No child support would be payable during thistime in my view by GD to MD, even if S were a child. MD did not pay or offer to pay anything in these five months to GD. S's incomethis year was some $22,711.

S attended Douglas College early in 2009 in the winter semester and took four courses of some 16 hoursper week duration. In June 2009, S went to live with her mother for some three months. In September of 2009 she drove with her fatherto Edmonton and commenced her first year at the University of Alberta doing a Bachelor Science Degree where she is now enrolled. She was then 22 years of age. [87] GD's evidence was that he gave S approximately $5,000 to pay her first year tuition and residency fees or at least contribute tothese costs.

GD also says in the fall of 2009 he gave S $1,340 to assist her with her expenses and pay for her flight home to Vancouverat Christmas 2009. He also paid her cell phone bill to May 2010. S does not state in her October 20th, 2010 letter that she received anymoney from her mother while at the University of Alberta this year. I have no evidence as to any of S's actual costs this year at theUniversity of Alberta. GD understands she lived in residence in her first year.

I do not find that S was a child pursuant to s. 87 of theFamily Relations Act this year either. [88] I am mindful that the status of a child for child support purposes can change, for example, if a child not at school returns toschool (see Paterson v. Paterson, [1997] B.C.J. No. 2293 at paras. 31 and 32). I do not find based on the evidence provided that GDhad any responsibility to pay child support for S to MD in the year 2009. [89] In 2010, S continued at the University of Alberta completing her first year in or about May 2010.

She remained in Albertaover the summer of this year working full-time and I believe lived with a boyfriend's family. In fact, in a letter S submitted to the Courtdated October 20th, 2010, she asserts she did not live with her mother after August 2009. In September 2010 she had her second year atthe University of Alberta, again as a full-time student. [90] In her October 20th letter she states that as of this date she was currently living independently in Edmonton (she does not statewhere) going to school full-time. She asserts she has student loans of $21,760 but again no particulars are provided.

In her letter, S saysher mother gave her $1,200 in total in 2010, and GD agrees that MD paid her flight home at Christmas 2010. This $1,200 figure is incontrast to MD's evidence. She asserts she paid living expenses for S in 2010 of some $2,300 as I read Exhibit 8 at Tab 19. WhereMD's evidence differs from S's, I prefer S's. There is no evidence S has memory deficits. She was the recipient of the funds. [91] MD has admitted in the course of her testimony before me that by reasons of her various medical conditions, as I have said,she has difficulty with her memory of past events.

[ 92 ] I have no evidence of S's income for this year or any time period thereafter. [ 93 ] Based on the evidence provided to me, I do not find that S was a child in 2010 and in the result GD had no obligation to pay child support to MD for S for this year. [ 94 ] I will deal with 2011 and 2012 to date together. [ 95 ] I have very little evidence as to what S is doing at this time and in these years beyond going to school, I assume, full-time at the University of Alberta and living somewhere in Edmonton. In the spring of 2012, she will have completed her third year in what I again assume is a four-year program.

On May 16th, 2012, S will be 25 years of age. [ 96 ] I have reviewed the documents in Exhibit 8 at Tabs 18 and 19. One indicates that at August 22nd, 2011, S owed $21,760 in student loans and was apparently seeking another $12,888 from them. A copy of her Westminster Savings line of credit statement at November 16th, 2011, shows she owes $1,282.05. I do not know what these funds were used for. There is a Visa statement dated October 24th, 2011 showing a then outstanding balance of $1,705.26 and a November 25th, 2011 Mastercard statement of $6,867.34.

Again, I do not know what these funds were used for. [ 97 ] S has confirmed in her October 20th, 2010 letter receiving $1200 from her mother in 2010 between April 16th and September 6th and says since August 2009 she has not been receiving regular financial support from her. There is no evidence from S as to what funds, if any, she received from her mother in the years 2011 and 2012. [ 98 ] Based on the evidence provided to the Court at the trial I am not able to find S is in fact or in law a child in these years either, 2011 and 2012.

Hence GD does not owe any child support to MD for S for these two years. [ 99 ] I turn now to K. [ 100 ] Was he a child within s. 87 of the Family Relations Act when the amending agreement was made and thereafter to date? The answer to this question I think is yes and no. [ 101 ] When the amending agreement was made on June 17th, 2008, K was age 17 and living at home with his mother. He finished Grade 11 in June 2007 and graduated from high school, Grade 12, about June 30th, 2008.

He turned age 19 on October 10th, 2009. [ 102 ] I find based on the evidence in this case that K was a child within s. 87 of the Family Relations Act from January 1st, 2008 to October 10th, 2009. He lived with his dad from January to May 2008. For these five months, MD did not pay or offer to pay any child support to GD. K returned to live with his mother in June 2008 and remained with her for the rest of this year and over the summer and while completing high school in June 2008.

K did not attend a post-secondary educational institution in the fall of 2008 but according to GD did take a few upgrading courses in the fall. I have no evidence of K's income in the year 2008. [ 103 ] I find that for seven months, from June to December 2008, GD ought to have paid table child support to MD for K based on his actual Guidelines income of $73,871 or $688.00 a month times seven months or some $4,816.

Likewise for the five months, January to May 2008, MD ought to have paid table child support to GD while K lived with him based on her actual Guidelines income of $294.00 a month times five months or $1,470. GD therefore ought to have paid MD the difference, namely, $3,346 in the year 2008 for K. [ 104 ] In 2009, K continued to live with his mother for the entire year. His income this year was some $7,887 I believe from doing landscaping work. I have no idea whether this was all the income he could have made after he turned age 19 or not.

K received his grandmother's car following her death in 2009 and GD says he paid the insurance of $364.00 and maintenance for it. No amounts are provided for maintenance. He also paid for his cell phone and gym fees. K did not attend school in 2009. I understand in 2009 K was trying out for various junior hockey teams in August and September, but according to GD was not successful in these endeavours. Therefore he did not play hockey in 2009.

GD says he paid for the expenses attendant on the above tryouts. [ 105 ] I find that K was a child within s. 87 of the Family Relations Act to the month he turned age 19, October 2009, but not thereafter. Accordingly, GD had an obligation to pay MD table child support for K for some ten months, January to October 2009, based on his then Guidelines income of $33,225 or $310.00 a month times ten months or $3,100. [ 106 ] After October 10th, 2009 I am not of the view based on the evidence in this case that K could not have been independent and self-supporting had he wished to do so.

He came to live with his dad in late January 2010 after his mother asked him to leave her home. In 2010, he worked at various jobs including providing security at a nightclub, delivering drywall and teaching at a goalie school and was able to go to Jamaica in June for a two-week holiday which he paid for. He continued to play hockey in the fall of 2010 and 2011. [ 107 ] GD believes he earned approximately $22,000 in 2010. He lived with his father until the spring of 2011 and then returned to live with his mother. [ 108 ] I understand in August 2011 he travelled to Dawson Creek where he now lives and works.

I further understand that counsel for MD does not seek child support for K after October 10th, 2009, his age 19. I do not find he was a child within s. 87 of the Family Relations Act and entitled to any child support after this date, namely, October 10th, 2009. [ 109 ] I have reviewed

Schedule A of Exhibit 8, Tab 22, being a very detailed

schedule MD prepared as to extra curricular expenses she incurred for K. Likewise, I have reviewed as I have said Exhibit 5 being GD's similar

summary. Neither is supported by any invoices. The dates MD incurred the various expenses set out are not clear. It is also far from clear to me that the two parents agreed on all these expenses before they were incurred or that any of them are proper Guidelines s. 7 expenses. [ 110 ] MD, by way of example, asserts she incurred significant expenses of some $6250.00 for K to attend hockey camps in Calgary and Toronto. GD is said not to have contributed to these and other essentially hockey costs for K. They total some $44,350.

[ 111 ] I understand she is not advancing a claim for reimbursement for any against GD. Assuming these figures are correct (and I do not find that they are) they do, however, show that MD seems to have been prepared to spend money she likely did not have to support her son's dream to become a higher level hockey player when fiscal prudence on her part might well have caused her to make far fewer of these expenditures and commitments.

I do accept, based on all these exhibits relating to K, that both parents supported their son as generously as they could or wished to do so to pursue higher level hockey. [ 112 ] In the result, based on the above findings, GD was not legally obligated to pay child support to MD for S after September 1st, 2008 being the date arrears commenced to accrue.

He was, however, responsible to pay her child support in September and thereafter at $688.00 a month for 2008 or for the five months after which arrears are said to have accrued, some $3,440, and some $3,100 for 2009 for a total of $6,540. [ 113 ] In my view, in calculating actual arrears after September 1st, 2008, I ought not to give GD a credit for any child support MD ought to have paid in the first five months of this year because K lived with his dad.

As well, in my view, it would not be correct in principle to calculate any actual arrears based on the level of income disclosed in the amending agreement when the Court has the benefit with hindsight of the actual income earned by GD on and after September 2008. [ 114 ] What child support did gd pay to MD on and after September 1st, 2008? [ 115 ] According to Exhibit 12, he paid some $2,001 from September 1st, 2008 to February 1st, 2009. As well, I understand Mr. Simunovic agreed he made a further payment of some $1,367 (not shown on Exhibit 12) that he should have been given a credit for.

There is no evidence he made any other child support payments between February 1st, 2009 and July 10th, 2009 when he was enrolled in FMEP. Exhibit 8, Tab 23 shows payments made by GD due to FMEP from July 10th, 2009 to November 16th, 2011 in a total amount of $12,325.63. If I add the payments from September 1st, 2008 to February 1st, 2009 above, this total becomes $15,693.63. Deducting the amount of his obligation for child support as found by me above, or $6,540, the result would be that he has overpaid MD for child support by $9,153.63.

He does not seek to be reimbursed for this amount or any other amount by her in these proceedings. This then is the position if the arrears are viewed as arrears of child support. [ 116 ] Again, considering this matter from a child support perspective, what is the situation from January 2nd, 2004, the date of the first agreement to July 1st, 2008, the effective date I think of the amending agreement?

Did GD meet his Guidelines obligations for child support during this period of time? [ 117 ] By way of history, the first agreement of January 2nd, 2004 made when GD was said to be unemployed and training to become a crane operator required him to pay $1,000 a month child support which I understand he did. His actual 2004 income was $33,218. He ought to have paid only $518.00 per month for two children at this time.

The overpayment in 2004 is therefore $12,000 minus $6,216 or some $5,784 for this year. [ 118 ] Assuming he paid the $1,000 per month to say July 1st, 2008, the first month after the June 17th 2008 amending agreement was made, the picture that emerges is as follows (and I am using current Guidelines tables which are slightly different than earlier versions.). [ 119 ] In the year 2005, he paid $12,000 of child support. His Guidelines income was $58,175.

He ought to have paid for two children, $881 for 12 months or $10,572 and therefore there is an overpayment of some $1,428, being $12,000 minus $10,572. [ 120 ] In the year 2006, he paid $12,000. His income was then $67,484. He ought to have paid for two children $1,118 per month over 12 months or $12,216 and therefore there was a shortfall this year of $12,216 less $12,000 paid or $216.00. [ 121 ] In 2007, he paid $12,000. His income was $95,649. He ought to have paid for two children $1,389 times 12 months or $16,668.

The shortfall is therefore some $4,668. [ 122 ] In 2008, using this somewhat simplistic analysis, he paid $1,000 a month. His income was $73,871. For one child the amount was $688 on this income level and therefore there would be a credit of $312.00 per month. On this analysis, he overpaid the child support called for in the agreement from January 1st, 2004 to July 1st, 2008 as compared to what he should have paid under the Guidelines by some $2,640. Again, he does not seek reimbursement for this amount. [ 123 ] I turn now to the above second premise very much relied upon by MD.

As I understand MD's argument advanced through counsel, she asserts that because of Clause 6 in the amending agreement which is said to be valid and enforceable, all the FMEP arrears calculated on something approaching his true 2007 income, his best year ever, should be viewed as arrears of spousal support and be recoverable on this basis regardless of his income level.

This position of course depends on the validity and enforceability of the relevant clauses which purport to automatically make some unknown amount of child support for an ineligible child or children become spousal support. [ 124 ] The amending agreement increased the child support to an amount based on something akin to his actual 2007 income level, $95,649 or $95,100 (see

preamble Clause (

c) in the agreement) but for two children. I have found that S was not on June 17th, 2008 a child and that MD was not therefore entitled to receive child support for her then or on any date thereafter. This agreement was therefore conceptually wrong at the outset in my view. [ 125 ] Clause 6 is what one might call an automatic conversion clause that makes child support become spousal support when a child becomes ineligible for child support. As I have said, it does not state what the amount of child or spousal support would be.

I cannot assume it means that the difference between what MD would pay to MD for two children as compared to for example the amount for one child would automatically become spousal support.

This approach is certainly not one that MD had in mind when she completed p. 12 of Exhibit 8 at Tab 6 of her materials. [ 126 ] The amending agreement seems to mean that whether or not MD actually needed spousal support at the time or was legally entitled to it in this Court under the provisions of the Family Relations Act , she would have a contractual right to it under the amending agreement to his age of retirement at 65 years when by virtue of Clause 17 in the original agreement, it would end. There is nothing in

either agreement that provides GD with a procedure to review his spousal support obligation such as is the case with child support and for example Clause 13 of the original agreement and Clauses 3 to 5 of the amending agreement. [ 127 ] Assumedly GD would be left with an ability to make a court application to seek to vary the provision in the agreement.

This is in essence what he has done by seeking to both terminate child support and deleting spousal support and cancelling arrears. [ 128 ] As I have said, the agreements have been filed in this Court and under s. 121(4) of the Family Relations Act a provision in such an agreement may at any time be varied or rescinded by the Court subject to ss. 20 and 96 of the Act.

Section 20 does not apply.

Section 96 of the Family Relations Act deals with variation or rescission of maintenance orders. The filing of the agreements do not make them orders. Nor does the filing of the agreement make the terms therein valid and enforceable in my view.

Rather it is my view that the maintenance provisions only if valid and enforceable as contractual terms become enforceable as if they were court orders. [ 129 ] I find that the provisions in the amending agreement which automatically make child support spousal support, and in particular, Clause 6 (which replaces Clauses 14 and 15 in the original agreement) is not enforceable. [ 130 ] I have said above that the amount of child support that is supposed to automatically become spousal support is unclear. Clause 6 is in essence therefore void for uncertainty.

It is not up to the Court to guess what the term means, nor to make a contract or term in a contract if the parties themselves have failed to do so. In any contract price or amount is a most material or fundamental term. [ 131 ] In my view, this amending agreement being a contract should be construed no differently from any other contract that is vague or ambiguous in relation to a fundamental term. In addition, this one clause is fraught with difficulty when a court attempts to deal with it in a case like the one before me.

When arrears are in issue, the court, I suppose, needs to assess whether a child is eligible to receive child support or not. If not, then there are no arrears of child support. If he or she is still eligible, they are. The Court may well wish to consider different facts, depending on whether arrears of child support or spousal support are sought to be varied or rescinded.

The same can be said if a retroactive variation is sought and it is unclear what exactly it is that is being sought to be varied. [ 132 ] The Child Support Guidelines are central to any consideration of child support under the Family Relations Act . They are not relevant to spousal support. This type of financial aid has its own guidelines. Spousal support is tax deductible although in this case at bar neither spouse either included any money paid under the amending agreement in their returns as either income or a deduction.

Child support is of course not tax deductible. [ 133 ] In my opinion, s. 121(2) of the Family Relations Act where it refers to a "provision in a written agreement" refers to provisions that pursuant to the law of contract are valid, binding, and enforceable. It should be so construed as if for example the adjective "valid" preceded the noun "provision".

It would make no sense whatsoever to envisage a legislative regime that would allow parties to file unenforceable contracts as a matter of contract law and to have the mere act of filing alone cure the contractual defects to make the provisions enforceable as if they were orders.

Section 121 of the Family Relations Act should not be so interpreted in my view. [ 134 ] In the result, I reject MD's submissions that by dint of Clause 6 and whether or not GD owes her any child support, the amounts all somehow become spousal support and he therefore owes her close to $40,000 of arrears on this basis.

There are no arrears owing by GD to MD. [ 135 ] If I am wrong in the above analysis and there are arrears of spousal support that might be said to be owing by virtue of the amending agreement and the provisions in same are enforceable as if contained in a Family Relations Act order (and I make no such finding) then s. 96(2) and (3) of this legislation would apply. These provisions state 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. [ 136 ] The approach I believe I should then take in this case, particularly having regard to the very novel automatic spousal support provision and in light of MD's submission that she does not seek spousal support going forward and assuming there are arrears outstanding, is to attempt to deal with the somewhat complex facts in this case in a broad brush way, for example, as was done by Madam Justice Arnold Bailey in J.T. v. D.H.T. , 2006 BCSC 551 . There as here the father applied in part for a cancellation and reduction of arrears.

In essence this judge found due to inaccurate financial information, erroneous or inaccurate obligations were assessed and that alternating custody arrangements of the children had not been assessed. [ 137 ] In the case at bar the matter of dealing with arrears is made all the more difficult because the amount of arrears said to be now owing as per FMEP is close to $40,000 and is based in my view on certain erroneous assumptions, all of which I have pointed out.

The $1,369 monthly amount in Clause 2 was based on an income level for the year 2007 which GD never again achieved from 2008 to date despite I find using his best efforts to be suitably employed. Having regard to the Guidelines and his actual income each year, it is simply wrong. [ 138 ] I have already pointed out that in my view S was not a child in any event on or after June 17th, 2008.

I do not accept that the FMEP calculations are correct as far as to what the arrears might now be because they are based on some unknown sort of assessment of Clause 6 and what it means which is as I have found essentially void for uncertainty. [ 139 ] Nonetheless assuming without finding that some arrears might be outstanding, I believe my focus should be on whether or not it

would be appropriate to cancel all or some of the outstanding arrears, not of child support, but what by virtue of s. 6 of the agreement aresaid to be spousal support. I may do so only if I am satisfied it would be grossly unfair not to do so. [140] I find that GD did make efforts to comply with the agreement when he was facing some difficult financial times.

His income inthe years 2009 to date is down dramatically from what it was when the amending agreement was made, largely I think due to the state ofour economy and his ability to find work in the construction industry and particularly at union rates. [141] Had the agreement been for child support without the automatic provisions, as I have said above, he overpaid her.

The samecan be said for what he did from January 1st, 2004 to July 1st, 2008 as discussed above, again if one deals only with child support. [142] In the years 2008 to 2010, MD's income was variously $31,487, $40,985 including RRSP proceeds of $3,975, and $30,215. Shecurrently owns a home with equity of approximately $480,000 and is able to rent it and has done so for some $550.00 a month since2011.

If her net worth included the value of her car and something modest for furnishings her worth would approach half a milliondollars. [143] I have not overlooked that this is so because upon settlement in 2004 GD in a wholly honourable way gave her his half of theequity in the home so she would have a proper home for herself and their two children. I consider this to be a special circumstance unders. 96(3)(

c) of the Family Relations Act. I think the children and MD benefitted immensely from this single act that has allowed her tohave some security in owning a home whereas GD's future in this regard is precarious at best. It has allowed her to have a present networth that is about ten times what his is. [144] He paid the child support he agreed to pay right up until he lost his full-time union pay crane operator's job in September 2008. MD does not really assert that in the years 2008 to 2012 GD has been intentionally under-employed or unemployed. She accepts that heearned what he could in these years.

His current financial circumstances are well explained in Exhibit 1, his lengthy affidavit ofSeptember 13th, 2011 at Exhibit M therein. I will not repeat them. He is forced to seek to sell his home to pay his debts and get on amore even financial keel, and I am well satisfied with his explanation for any delay in applying to the Court to either vary the agreementor to deal with arrears. He, on several occasions, asked MD early on after he lost his job in 2008 to agree to a change or to mediate andshe refused. When he went to court, he spun his wheels to some extent by getting started in the wrong court.

His application was finallyfiled about two years ago. [145] I do not find on the evidence that MD ever had a disproportionate financial burden other than of her own choosing in raising thetwo children. GD overpaid his legally required amounts. I consider this to be a special circumstance again within s. 96(3)(

c) of theFamily Relations Act. [146] MD has income now by way of Employment Insurance and reasonably expects in April or May of 2012 to receive a privatedisability pension as a result of the disability she alleges. I believe she has also applied to CPP for a pension. [147] In the event GD retires at age 60 which I understand is his wish and goal, both he and she will receive one half his Rogers Sugarpension commencing in approximately June of next year in the amount of $960.00 a month. [148] I am mindful of GD's health as well.

He has some serious lower back issues that do now and will in future impact on his abilityto work as a crane operator as he described in his evidence, particularly where he is required to stand for lengthy periods of time whileoperating a non-tower crane remotely. These physiological conditions do now affect his ability to do manual work such as lifting. Hence his income earning potential now and in future is affected and will be affected by his back condition. I accept as truthful hisevidence on point.

I also accept as accurate his assessment of his current income earning ability. [149] I find GD is now and in future entitled to have a place to live, particularly in light of the fact that because of his generosity, MDhas $480,000 worth of real estate equity, a substantially greater sum than does he. [150] I find based on all the evidence in this case that GD cannot now pay the arrears possibly close to $40,000 to put MD's case atthe strongest, nor will he in future be able to do so. I have considered all the factors in s. 96(3) of the Act and as well those relevantfactors in Earle v.

Earle, (BC SC), [1999] B.C.J. No. 383 a judgment of Martinson J. quoted with approval inSemancik v. Saunders, 2011 BCCA 264 at para. 25. [151] I am satisfied based on all the evidence I have heard that if there are any arrears outstanding of any sort that it would be grosslyunfair not to cancel any arrears and any interest on same in this case and I would do so. Arrears will not accrue under either agreementmoving forward.

CONCLUSION [152] GD is not required to pay any arrears to MD nor any interest which has accrued on same including as accounted for by FMEP. [153] All MD's various applications including for child support for S are dismissed. [ORAL REASONS FOR JUDGMENT CONCLUDED]