Bowes v. Bowes

2010 BCSC 63 Bowes v. Bowes

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bowes v. Bowes, 2010 BCSC 63 Date: 20100119 Docket: E003355 Registry: Vancouver Between: Margot Karen Bowes Plaintiff And William John Daniel Bowes Defendant Before: The Honourable Mr. Justice Nathan Smith Reasons for Judgment (In Chambers) Counsel for Plaintiff: D. J. Ramsbotham Counsel for Defendant: J. Campbell Place and Date of Hearing: Vancouver, B.C. December 15, 2009 Place and Date of Judgment: Vancouver, B.C. January 19, 2010 [1] The defendant seeks an order cancelling or substantially reducing arrears of child support, which now stand at almost $35,000. Although he consented to the order setting the amount of child support, the defendant says he was unaware of or did not understand that provision when he signed the order. He said he did not have the income on which the child support payments are based and has not had that income at any time since he signed the order. [2] The plaintiff and defendant were married in 1990 and had two children, now aged 16 and 13. They were divorced by order dated February 21, 2005. That order provided that the children would primarily reside with the plaintiff and that the defendant would pay child support of $670 per month, based on a stated Federal Child Support Guidelines, S.O.R./97-175 [Guidelines], income of $48,000 per year. The portions of the order dealing with corollary relief

were by consent. [3] The defendant signed the order to confirm his consent to its terms, but says he did so without counsel and without understanding what he was signing. He says he signed the order when it was presented to him at a party and was primarily interested in the provisions for joint custody and joint guardianship of the children. He says the provisions about child support were not drawn to his attention and he was unemployed at the time. [4] The plaintiff apparently took no steps to enforce the order until January 2007, when she registered with the Family Maintenance Enforcement Program. The defendant says it was only then that he received a copy of the entered order and understood its implications. He does not explain why he then waited another two years before applying for variation of the order and cancellation of arrears. [5] On January 27, 2009, I allowed an application by the defendant to reduce ongoing child support to $380 a month, effective February 1, 2009. This was based on the defendant's evidence that he earned $24,105 in 2007 and a similar amount in 2008. At the time, I dismissed the defendant's application to cancel arrears, without prejudice to his right to re-apply on the basis of more complete financial disclosure. That application has now, by coincidence, come before me. [6] The defendant has provided copies of his income tax assessments for 2004,

2005, and 2006 showing income of zero for each of those years. I note that the complete absence of income in 2004 is not consistent with the defendant's evidence in a subsequent affidavit that he was laid off from his previous employment late in that year. [7] The principles this Court will apply in determining whether to cancel or reduce arrears were set out in Earle v. Earle, [1999] B.C.J. No. 383 (S.C.). The applicant bears a heavy onus of showing a significant and long lasting change of circumstances. This change must be a real one, not one of choice, and the applicant must show that every effort was made to earn money during the time in question. Even then, arrears will only be cancelled if the applicant is not only unable to pay now but will be unable to pay in the future. The fact that the applicant did not have legal advice at the time of the order or during the time when arrears accumulated is not, by itself, a reason to cancel arrears. [8] I have some difficulty with the defendant's assertion that he signed the consent order without knowing what it meant. The order consists of only two pages, the second of which states in plain English that the defendant has a Guidelines income of $48,000 and is to pay $670 a month. That is the same page on which the defendant's signature appears. If the defendant had no income at the time he signed the order, I find it hard to

believe that those passages could have escaped his attention. [9] However, even if the defendant signed the order in error or ignorance, his evidence now falls far short of what is required to cancel or reduce arrears. The evidence of the defendant's efforts to earn income during the relevant period is particularly unsatisfactory. Although he says he was unemployed from 2004 to 2007, the earliest evidence that he has provided about efforts to find work come from August 2006, when there was an exchange of e-mails with one potential employer. There is further evidence relating to a number of job applications in January 2007. [10] During the period the defendant says he was unable to find work, he did not have income from unemployment insurance or social assistance. He says he did not apply because he was being supported by his new partner, who he has since married. On the whole of the evidence, that is as consistent with a deliberate decision not to work as it is with being unable to find work. [11] The defendant has apparently not yet filed his 2008 income tax return, but there is an undated letter from his current employer indicating that his income for 2008 was $32,100. Counsel for the plaintiff also points out that the reported income of $24,105 for 2007 was a net business income, with the gross income having been $34,000. There is no evidence of what expenses were

deducted. [12] There is also no evidence of what prospects, if any, the defendant has for advancement or increased income in his current employment. The defendant is 41 years old. Even if he is unable to pay arrears now, there is no evidence that he will be unable to do so in the future. [13] The defendant has failed to meet the stringent onus of proof required for cancellation or reduction of arrears and his application is dismissed with costs. "N. Smith J."