L.J.M. v. B.B.F.

2013 BCSC 956 L.J.M. v. B.B.F. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.J.M. v. B.B.F., 2013 BCSC 956 Date: 20130530 Docket: 29448 Registry: Penticton Between: L.J.M. Claimant And B.B.F. Respondent Before: The Honourable Mr. Justice Rogers Reasons for Judgment Counsel for the Claimant: I.N. McAndrews Counsel for the Respondent: C.D. Goodrich Place and Date of Trial: Kelowna, B.C. May 1, 2013 Place and Date of Judgment: Kelowna, B.C. May 30, 2013 Introduction [1] This is an application to vary the respondent's obligation to pay child support. The application follows the respondent's unsuccessful attempt to increase his parenting time from 42% to 50%. The central issue is the quantum of the respondent's income and the scope of Guidelines s. 7 expenses to which the respondent must contribute. The Facts [2] The parties married in August 1997 and separated in March 2007. They made a separation agreement on September 25, 2008. The agreement was incorporated into their October 29, 2008 divorce order. The parties have one child: J, born April 9, 2004. [3] The separation agreement provides that in each 14-day cycle, J will spend seven nights with the claimant and six nights with the respondent. The parties have, for the most part, adhered to that schedule. When they made the agreement, the claimant's income was approximately $35,000 and the respondent's income was approximately $60,000. No spousal support was to be paid by one party to the other. Despite the shared-parenting schedule which triggered the application of s. 9 of the Guidelines, the respondent agreed to pay child support to the claimant in the full Table amount. In 2008, the Table amount was $560 per month. [4] The parties agreed that the following costs relating to J should be special and extraordinary expenses within the meaning of s.7 of the Guidelines: a) child care expenses and preschool costs; b) medical and dental expenses not covered by insurance; c) any other health-related expenses, including orthodontic treatments, glasses, and contact lenses not covered by insurance; d) any other expenses arising in the future that the parties agree qualify as special or extraordinary expenses within the meaning of the Federal Child Support Guidelines; e) expenses for post-secondary education; and f) other special and extraordinary expenses as agreed between the parties from time to time. [5] Given the language the parties employed when they drafted the agreement, this is, obviously, not an exhaustive list of the s. 7 expenses the parties anticipated would arise in the course of J's childhood. [6] Notwithstanding a disparity of their incomes, the parties agreed that they would equally share the cost of the s. 7 expenses. [7] The agreement went on to require the parties to review child support and, if necessary, to revise it in accord with the Guidelines by May 31 of each year. The agreement also required the parties to perform an accounting by May 31 of each year to ensure that each had paid his or her proper share of the s. 7 expenses for the previous year. [8] The parties' incomes for the purposes of Guidelines child support have been: Year Claimant Respondent Line150 Respondent Employment Expenses Respondent Net Income 2008 $47,633 $54,411 $23,189 $31,222 2009 $55,242 $76,092 $14,056 $62,036 2010 $70,943 $119,666 $26,811 $92,855 2011 $59,113 $95,466 $23,462 $72,004 2012 $61,800 $105,987 $25,000 (estimated) $80,987 (estimated) [9] The respondent has paid $560 per month from 2008 to the present. [10] In 2010, the parties learned that J suffers from a mild intellectual disability, attention deficit hyperactivity disorder, and sensory processing disorder. J has been assessed by an occupational therapist and certain therapies have been recommended for him. These therapies include a highly individualized sensory program which involves physical activities and exposure to various stimuli. The physical activities include things such as hiking, swimming, martial arts, rock wall climbing, trampling, and a yoga or gym class. [11] The respondent has paid his proper share for J's s. 7 day care costs, but he has not contributed to various other items the claimant says are properly s. 7 expenses. The claimant has tabulated those expenses as follows: Year Item Cost 2009 Medical $66.76 South Okanagan Montessori School Society $4,361.00 Swimming $489.50 2010 Glenfir School Society $9,525.00 Scouts Canada $150.00 South Okanagan Therapeutic Riding Assoc $440.00 Okanagan Ability Centre $1500.00 Private Occupational Therapy $280.00 Penticton Chiropractic and Massage $40.00 Summerland Parks and Rec $333.40 City of Penticton AquaSpring Swimming Lessons $489.50 Prescription Medication $203.65 2011 Private Occupational Therapy $2,622.00 Summerland Parks and Rec (Swimming) $106.00 South Okanagan Riding Association & Summer Camp $940.00 Scouts Canada $150.00 Prescription Medication $204.85 2012 Scouts Canada $175.00 Summerland Parks and Recreation $355.00 South Okanagan Riding Association $720.00 Dental & Orthodontist $171.04 [12] The s. 7 expense for which the claimant seeks retroactive payment is one-half of $23,322.70, or $11,661.35. [13] The respondent complains that the claimant did not give the receipts for these expenses to him in a timely way. He says that in the result he has missed the opportunity to submit some or all of the expenses to his extended health insurer. [14] The claimant maintains that the respondent was aware the need for J to have occupational therapy (because he had the medical reports recommending it) and that he was aware of J's attendance at occupational therapy as well as the therapeutic modalities the therapist recommended (because he had the occupational therapist's report and actually picked J up at those activities from time to time). Further, the claimant adduced emails between her and the respondent in which she asked for reimbursement for certain expenses. The respondent's responses to those requests are generally rude and dismissive. Applications [15] The respondent has applied to reduce his child support obligations to nil and to cancel all accrued arrears. The success of that application depended entirely on the respondent achieving an order increasing the amount of time that J spends with the respondent by 8%, or one additional night every two weeks. In separate reasons for judgment I have concluded that no change of circumstance merited alteration of the parenting regime set up by the separation agreement. I therefore dismissed the respondent's application to change the parties' parenting time. There having been no change in J's circumstances, that ground cannot bottom the respondent's application to reduce or eliminate his child support obligation. The respondent's support oriented application must be dismissed. [16] In response to the respondent's change of parenting application, the claimant commissioned a custody and access report from the psychologist Dr. Elterman. That report was delivered to the parties in August 2012. The report did not identify any change in J's circumstances (it was not commissioned for that purpose) but it did recommend equal parenting time. The content of Dr. Elterman's report motivated the respondent to make his application to change the parties' arrangements for parenting and support. [17] In response to the respondent's application, the claimant brought on her own motion. In it, the claimant applied for retroactive and ongoing orders bringing the respondent's child support obligation in accord with the Guidelines. She also seeks an order requiring the respondent to pay his share of J's s. 7 expenses. Lastly, she asks for an order requiring the respondent to return J's social insurance card and birth certificate to her. Discussion [18] The parties' separation agreement created a sensible support regime. It also set up a workable mechanism for periodic adjustment of their respective financial obligations. I can see no reason to do anything other than order that the parties comply with the terms of the agreement they made. [19] I find that the parties' incomes for the purposes of determining child support set off amounts have been as set out in the table noted above. I have come to that conclusion notwithstanding the claimant's submission that the respondent's expense for an assistant is either unnecessary or is an income splitting scheme. I have concluded that the former argument has no merit because the respondent's income increased considerably when he hired an assistant, and I have concluded that the latter argument has no merit because there was no evidence that the respondent's current assistant - his second wife - does not provide fair market value for her services. [20] I will turn first to the claimant's request for retroactive support. The Table amount for the respondent's income on May 31 of each year after the separation agreement is: Commencement Date Respondent's Income Monthly Basic Support Paid Monthly Table Amount Deficit x 12 Months May 31, 2009 $62,036 $560 $576 $192 May 31, 2010 $92,855 $560 $860 $3,600 May 31, 2011 $72,004 $560 $673 $1,356 May 31, 2012 $80,987 (estimated) $560 $758 $2,376 May 31, 2013 Unknown Unknown Unknown Unknown Total: $7,524 [21] The respondent's jeopardy to the claim for retroactive Table support is, therefore, $7,524. His jeopardy on the retroactive claim for s. 7 expenses is $11,661.35, making a total of $19,185.35. [22] The principles governing the making of an order for retroactive child support have been laid down by the Supreme Court of Canada in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; and Hiemstra v. Hiemstra, 2006 SCC 37. [23] When assessing an application for retroactive support, the court must consider all the relevant circumstances. Those circumstances include four factors: reasonable excuse for delay, conduct of the payor spouse, circumstances of the child, and hardship. None of the factors is determinative. The Supreme Court of Canada has said, for example, that retroactive support could be ordered where there was no blameworthy conduct on the part of the payor parent. The court also said that an order for retroactive support should not be viewed as unusual. As to the span of the retroactive period, the court opined that the date on which notice of the request was made would normally be the minimum commencement, and that orders ordinarily ought not to go further than three years beyond that. Reasonable Excuse for Delay [24] The claimant offered no real explanation for not vigorously pursuing an annual adjustment of basic child support and s. 7 contributions. She says that anytime she has asked for contribution, the respondent's general course of conduct has been to rudely rebuff her. [25] I have reviewed the email exchanges between the parties. I agree that, at least in the sample on offer from the claimant, the respondent's responses are often uncivilized. The sentiment that appears to underlie the respondent's tone is resentment at having to give money to the claimant, and having little control over how she spends it. [26] Be that as it may, the real issue here is whether the claimant has a reasonable excuse for not employing the mechanism set out in the separation agreement in a timely way. It cannot be that she did not have the financial resources to pursue the matter - she has earned a good income since the parties separated. It cannot be that she was afraid of negative consequences if she moved to enforce the settlement agreement; that is because while the respondent's attitude has been unhelpful, it has not been threatening. [27] The first review could have been done in 2009. The claimant's application would take the matter forward to 2012. I make the gap to be four years. In my view, the claimant has not offered a reasonable excuse for waiting so long to take steps to enforce the review and accounting provisions of the settlement agreement. Conduct of the Payor [28] Two aspects of the payor's conduct are relevant in applications for retroactive support. They are whether, on the one hand, the payor made a reasonable and bona fide effort to comply with his support obligations, and on the other, whether the payor knowingly evaded or was wilfully blind to changes that the payor ought to have made to the support payments. The former behaviour works to tip the balance against a retroactive order. The latter is blameworthy conduct and weighs in favour of a retroactive order. [29] The respondent is clearly blameworthy. He knew that his income in 2009 to 2012 was higher than it was in 2008, but he took no steps to inform the claimant of that difference or to effect adjustment of his child support obligation. It cannot be said that the respondent was somehow innocent of his obligation to make those adjustments - the separation agreement clearly describes the annual process that the parties agreed to employ in order to ensure that J was properly supported. Circumstances of the Child [30] I do not see in the evidence a suggestion that J has materially suffered as a consequence of the parties' failure to adjust child support in a timely way. This is a neutral factor in this case. Hardship [31] The respondent makes a good living. He has the financial resources to make periodic payments to retire a retroactive award. Retroactive Period [32] The evidence showed that in April 2011 the claimant sought disclosure of the respondent's income. He neither complied nor responded to that request. The claimant made a similar request in May 2012. Again, the respondent did not comply. The general rule laid down in D.B.S. is that a retroactive award ought not to reach back further than three years from the first demand for adjustment. In this case the first demand was in April 2011. Three years would take the adjustment period back to 2009. That is the appropriate date to begin the retroactive award. Retroactive Amount [33] As noted, the respondent's jeopardy for basic support is $7,524 and for s. 7 expenses it is $11,661.35. I would not allow the expense for Cubs and Scouts. The balance of the claimant's claim for s. 7 expenses is, in my opinion, properly brought. After adjusting for the boys club fees, the potential retroactive award is $18,947.85. Retroactive Award: Conclusion [34] I am persuaded that the respondent's blameworthy behaviour sets off the claimant's lack of a reasonable excuse for bringing her application on in a timely way. I am also persuaded that the respondent ought to have paid support in accord with his income and that he ought to have complied with the parties' agreement by contributing one half of J's s.7 expenses starting in 2009 and carrying on through to the present. He did neither. I find that those amounts are due and owing by him to the claimant. [35] An order shall go declaring that the respondent is in arrears of basic support of in the sum of $7,524 and for s. 7 expenses in the sum of $11,423.85. The respondent may retire the arrears by monthly payments of $250 commencing June 1, 2013. The claimant will be at liberty to pursue enforcement proceedings for the full amount of arrears in the event that the respondent fails to make a $250 monthly payment. [36] At the end of May 2013, the parties should employ the mechanism they created in their separation agreement. [37] The respondent deposed that he is willing to deliver J's social insurance card and birth certificate to the claimant. Rather than encourage personal contact between the two, an order will go that if the claimant does not already have the documents, then within two weeks of the release of these reasons the respondent will deliver J's social insurance card and birth certificate to his counsel who will deliver them to the claimant's counsel. [38] The claimant has been successful in her application. She is entitled to her costs on Scale B. "P.J. Rogers J." The Honourable Mr. Justice Rogers