C.A.S. v. G.A.P., 2011 BCSC 1431

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: C.A.S. v. G.A.P., 2011 BCSC 1431 Date: 20111025 Docket: 8717 Registry: Terrace Between: C.A.S. Claimant And: G.A.P. Respondent Before: The Honourable Mr. Justice R. Punnett Reasons for Judgment C.A.S.: In Person G.A.P.: In Person Place and Date of Hearing: Terrace, B.C. August 8, 2011 and September 21, 2011 Place and Date of Judgment: Terrace, B.C. October 25, 2011 [ 1 ] This application concerns a 16 year old boy born March 8, 1995. He resides with his mother in Eugene, Oregon.

By a consent order dated July 3, 1996 (the “1996 Order”), the father agreed to pay $500 per month in child maintenance commencing January 1, 1996. The order also required that he provide medical and dental coverage through his employment.

As the order pre-dated the Federal Child Support Guidelines (the “ Guidelines ”), the father has claimed the payments as a deduction and the mother has claimed the payments as income. [ 2 ] The father missed two maintenance payments in 2007 and made his last payment in November 2008. [ 3 ] In August 2010 as a result of the cessation of payments, the mother registered the 1996 Order with the Family Maintenance Enforcement Program (“FMEP”). FMEP took steps to enforce the order.

In December 2010 FMEP threatened to suspend the father’s driver’s licence, intercepted the receipt of funds due to the father from the Federal Government and prevented the placement of a second mortgage sought by the father to pay off his line of credit. FMEP consented to the second mortgage in return for funds being placed with FMEP respecting the arrears of child maintenance.

The father consented to payment of $3,000 for child maintenance in December 2010 from the funds received by FMEP from the Federal Government and the second mortgage. [ 4 ] As a result of these events, the father, on February 14, 2011, filed an application with this Court seeking a variation of the maintenance payable and cancellation of the arrears. [ 5 ] The balance due as of September 9, 2011 is $15,265.07 which includes all arrears and accrued interest.

FMEP currently holds $14,178.67. [ 6 ] The mother filed a response opposing the relief sought. [ 7 ] The matter came before the court on May 2, 2011 and Justice Verhoeven ordered that the father serve any further applications and affidavits within 14 days with the mother to have 14 days to respond and then the father a further 7 days to reply. [ 8 ] The father then filed another Notice of Application on June 29, 2011 (which was outside the period ordered on May 2, 2011) seeking an order that he have access to his son one month each summer and alternate Christmas and Spring Breaks and that the mother pay the child’s transportation costs for access.

In addition, the father sought a restraining order against the mother alleging harassment by her and an order for a paternity test. [ 9 ] The mother has also now applied for an order varying the child maintenance order. [ 10 ] Notwithstanding the failure of the father to file his material in the time period ordered, the mother did not oppose the matter proceeding.

Background [11] The parties resided in a common-law relationship. The mother has remarried and now resides in Eugene, Oregon. She isemployed by the University of Oregon on a contractual basis and earns approximately $63,000 per annum. [12] The father up until January 2008 was employed as a millwright at Skeena Sawmills in Terrace, British Columbia. He hadworked there for 28 years. On January 5, 2008 the mill was closed. The father, along with many others, was laid off. [13] The father has remained a resident of Terrace despite the lack of employment opportunities in the area.

He made efforts tosecure employment locally. Those efforts included starting his own business with the assistance of funding from Community Futures. However, that venture was not profitable. The father claims he then applied or responded to approximately sixty advertised positionsthroughout British Columbia and Alberta where millwrights were sought. He received two replies, one of which resulted in a few weeksof paid employment in Fort St. John on a mill shut down. The other resulted in his current employment.

I note that the evidence ofavailable employment fails to include evidence of his applications or any replies received. The vast majority of the advertisementsproduced appeared in the spring of 2011. He did not make significant efforts to find employment outside of Terrace prior to 2011 givenhis desire to remain in the Terrace area. [14] It was not until July 4, 2011 that he secured full-time employment with a Kitimat contractor who continues to employ him ona full-time basis. [15] Despite regaining full-time employment, the outstanding arrears for child maintenance as of September 9, 2011 total$15,265.07.

FMEP holds the sum of $14,178.67 pending resolution of this application. Issues [16] The issues to be addressed are:

a) Should a paternity test be ordered?

b) Should the arrears of child support be cancelled?

c) Should the existing order for child support be varied?

d) Who should pay the costs of access?

e) Costs. Discussion Paternity [17] 16 years after the birth of the child, the father raises the issue of paternity. He acknowledges in his affidavit material that heengaged in unprotected sex with the mother in the time period that the child would have been conceived. He consented to the 1996 Orderthat entitled him to joint guardianship and access to the child and required him to pay child maintenance. In addition, the father agreed toplace the child under his medical and dental plans.

Prior to these proceedings, the issue of paternity was never raised and the father hasnot provided the court with any evidence to support his claim that he is not the biological father. [18] The issue of paternity ought to be raised early in the proceedings or the party raising the issue risks being estopped from doingso. (S. (P.K.) v. S. (J.S.) (1995), (BC SC), 6 B.C.L.R. (3d) 122, British Columbia Supreme Court). In my view, itwould be contrary to the best interests of the child to permit a challenge to paternity at this stage in the proceedings.

The father hasmissed his opportunity to raise the issue of paternity. [19] I should note that even if the father provided the court with an evidentiary basis to suggest that he is not the biological fatherand estoppel did not apply, he is still obliged to pay child maintenance as he meets the definition of “parent” pursuant to s.1 of the FamilyRelations Act R.S.B.C. 1996, c.128. The application for a paternity test is therefore dismissed.

Cancellation of Arrears [20] There is a substantial onus on the party requesting a reduction or a cancellation of arrears to demonstrate that there has been asignificant and long lasting change in his or her financial circumstances that was not one of choice. The requesting party must alsodemonstrate that efforts were made to earn an income during the time in question but those efforts were unsuccessful (Earle v. Earle,1999 BCSC 283). As stated in Earle at para. 23, “The courts are generally reluctant to reduce or to cancel arrears.

Under the FamilyRelations Act arrears will not be reduced or cancelled unless it is grossly unfair not to do so.” The onus to establish such unfairness restson the respondent (Longstaff v. Longstaff (1993), (BC CA), 86 B.C.L.R. (2d) 1, British Columbia Court of Appeal, atpara. 52). [21] The $3,000 payment in December 2010 brought the arrears up to date to the end of December 2008. As a result, the arrearsclaimed relate to the time period of 2009 to 2011.

[ 22 ] The father claims that the arrears accumulated in part because he had various debts to pay including credit card debts, a line of credit, family loan and mortgage arrears. The total paid by him with respect to those debts was $37,785.83. [ 23 ] The mother submits that the father was capable of earning greater income than he did during the time period in question and further submits that he failed to make sufficient efforts to obtain employment.

Her claims are based on the father’s statement in his Notice of Application filed in February 2011 that “he cannot look for work because of all the legal paper work [he] is having to do himself at the moment” and his desire to remain in Terrace. As he put it in his affidavit material “I have been living in Terrace with my family since I am (sic) a teenager. … I have a home in Terrace, and I like Terrace. … I want to stay living in Terrace.” [ 24 ] I have reservations respecting the adequacy of the father’s efforts to obtain employment.

However, in light of the mother not seeking a retroactive variation of maintenance and the conclusion I have reached respecting the father’s application to cancel the arrears, I do not have to consider whether income should be imputed to him for those periods when the arrears were accumulated. [ 25 ] The father’s reported income for the years 2008, 2009 and 2010 is as follows: a) 2008 -- $25,408 consisting of earned income and Employment Insurance Benefits; b) 2009 -- $7,242 c) 2010 -- $59,406.69 consisting of severance pay and self-employed income. [ 26 ] The latter figure does not include a Capital Cost Allowance claimed at $2,795.36.

The evidence is not sufficient to consider whether all or a portion of the Capital Cost Allowance should be added back into the father’s income. As a result, I decline to do so.

In addition, in 2010 he received $21,750 tax free from Community Futures, resulting in a 2010 income for maintenance purposes of $81,156.69. [ 27 ] Given my conclusion respecting the mother’s application to cancel the arrears and the fact she is not requesting a retroactive order I need not address the issue of accounting for the tax exempt portion of the father’s 2010 income. [ 28 ] The father’s 2011 income, calculated up until September 11, 2011 is $25,709.70 (approximately $3,200 per week). This is the income he received from his new employer in Kitimat which began in July 2011.

Approximately one half of his income arises from overtime. His regular pay is $29.85 per hour based on a 40 hour work week. The father continues to be employed on a full-time basis in Kitimat. His base pay is approximately $1,194 per week or $62,088 per annum. His most recent paystub reveals overtime earnings roughly equal to his base rate of pay. [ 29 ] While the father did suffer through periods of unemployment he has managed during those periods to pay down his debts and to support himself and at the same time have excess funds available as evidenced by the funds retained by FMEP.

While a portion of those funds arose from further borrowing he still paid down debts greatly in excess of the sum retained by FMEP. In addition, the father is now employed and is currently, with overtime, earning a significant salary. [ 30 ] Section 96(3) of the Family Relations Act provides that in considering whether it would be grossly unfair not to reduce or cancel arrears the court may take into consideration the following: …

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 consider relevant. [ 31 ] Notwithstanding the substantial income received by the father in 2010, he failed to attempt to comply with the maintenance order, preferring instead to pay creditors. He also failed to provide any reasonable explanation for his delay in applying to vary the order other than claiming lack of income. Instead, he simply stopped child maintenance payments.

It is also of note that substantially all of the funds required to satisfy the arrears are in the hands of FMEP. [ 32 ] In my view, the father has failed to meet the onus of demonstrating a significant and long lasting change in his financial circumstances and has failed to establish that it would be “grossly unfair” to not cancel the arrears. He has also failed to establish that he is unable to pay now (given the funds held) or in the future (given his current employment). [ 33 ] The father’s application to cancel the arrears is dismissed.

The funds held by FMEP are to be released to the mother to be applied to the outstanding maintenance arrears. Variation of Maintenance [ 34 ] The mother applies to vary the child maintenance on the basis that the Guidelines were implemented after the 1996 Order and on the basis that the father’s income and employment have changed since the 1996 Order. [ 35 ] I am satisfied that the order of July 8, 1996 should be varied given the enactment of the new Guidelines . In determining the father’s child maintenance payments, I must consider the amount of overtime pay that the father receives.

The amount of his overtime is unpredictable. Given his overtime to date I propose to recognize overtime in the amount of $1,000 per month resulting in annual income of $74,124. This amount shall be subject to review on the terms set out at the conclusion of these reasons.

[ 36 ] Commencing November 1, 2011 the father shall pay child support to the mother calculated on an income of $74,124 in the sum of $690 per month and continuing on the first day of each month thereafter. Extraordinary Expenses [ 37 ] The mother seeks additional maintenance related to the child’s international cellular phone plan which enables the child to remain in contact with his father.

Additional maintenance is also sought in relation to the child’s Varsity Lacrosse Goalie fees and associated equipment and travel costs, mountaineering fees and associated equipment and travel costs, math tutor costs, skiing and snowboarding costs. [ 38 ] The evidence does not establish whether there has been discussion of these additional expenses or agreement respecting them.

Nor does it provide sufficient information to enable a determination of which expenses were appropriate extraordinary expenses. [ 39 ] Therefore, I order that the parties share, in proportion to their respective Guideline incomes, the costs of the child’s special or extraordinary expenses within the meaning of s. 7 of the Guidelines . In the event the parties cannot agree on extraordinary expenses they have liberty to apply to the court. Access [ 40 ] The father initially requested defined access to his son.

However, given the age of the child the parties agreed to an order that the father have reasonable access to the child. Costs of Access [ 41 ] The father submits that he has paid for all access to his son over the past years despite the fact that the mother, previously a resident of Terrace, chose to move to the United States. This is disputed by the mother who claims that she has delivered their son to Vancouver and further claims that other relatives have also brought the child to British Columbia.

For the father’s access the mother proposes that she deliver their son, at her cost, to Vancouver and pick him up from Vancouver provided she receives at least 3 weeks notice of summer access (defined as June 15 to August 31) and 6 weeks in the winter months. This is to facilitate her work

schedule and improve access to reduced flight costs when the child is flown to Vancouver. The father shall be responsible for the costs of the son’s access from Vancouver to Terrace and for his return to Vancouver from Terrace. [ 42 ] In my view this is a reasonable solution to the issue of access costs in that it provides for a sharing of those costs. It recognizes the father’s greater income and the greater costs of travel from Vancouver to Terrace.

It also avoids disputes between the parties over setting off of access costs against the maintenance payable. [ 43 ] The mother and father, as evidenced by their interaction in the court room and in the materials provided, clearly cannot communicate in person or by phone. The father complains of harassment by the mother while the mother states she only called the father each month requesting the maintenance payments. As I indicated during the hearing, I propose to make an order that they communicate only in writing whether by email, text, regular mail, or fax. Neither was opposed to such an order.

Order [ 44 ] The terms of the order are as follows:

a) The application of the father to cancel arrears of $15,265.07 owing as of September 9, 2011 is dismissed.

b) The order of July 8, 1996 shall be varied such that commencing November 1, 2011, the father shall pay child support to the mother calculated on an income of $74,124 in the sum of $690 per month and continuing on the first day of each month thereafter.

c) In order to ensure continued compliance with the Federal and British Columbia Child Support Guidelines , the child support payments shall be reviewable at the request of either party by July 1 of each year with the potential for a first review on July 1, 2012. Each party shall, by May 30 of each year, commencing May 30, 2012 provide the other with a copy of their most recent income tax returns, their notice of assessment (if received) and details of any child tax benefits or similar benefits received in the previous year along with their most recent statement of earnings including overtime.

d) The parties will share, in proportion to their respective Guideline incomes, the costs of the child’s special or extraordinary expenses within the meaning of s. 7 of the Guidelines . In the event the parties cannot agree on extraordinary expenses they have liberty to apply to the court.

e) The access costs respecting the child shall be shared by the mother delivering the child to Vancouver, British Columbia and returning the child from Vancouver to Eugene, Oregon at her cost. The father shall be responsible for the costs of transportation from Vancouver to Terrace and the return to Vancouver. The father shall provide to the mother at least 3 weeks notice of summer access (June 15 to August 31) and 6 weeks notice in the winter months.

f) The parties shall communicate only in writing whether by email, text, regular mail or facsimile. Costs

[ 45 ] The mother has been successful in resisting the applications of the father and in her application to vary maintenance and as a result shall have her costs. “Punnett J.”