Dhaliwal v. Cheema

2016 BCSC 1384 Dhaliwal v. Cheema

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Dhaliwal v. Cheema, 2016 BCSC 1384 Date: 20160726 Docket: D36677 Registry: New Westminster Between: Inderjit Ruby Dhaliwal Claimant And Kuldip Singh Cheema Respondent Before: The Honourable Mr. Justice Blok Reasons for Judgment Counsel for the Claimant: P. Smith-Gander Counsel for the Respondent: U.K. Dhaliwal Place and Dates of Trial: New Westminster, B.C. April 22-23, 2014 and April 30, May 1 and 27, 2015 Place and Date of Judgment: New Westminster, B.C. July 26, 2016 I. Introduction [1] The respondent, Mr. Cheema, seeks the cancellation of child support arrears that have accumulated by reason of an order made in March 1997. By 2014 those arrears totalled about $89,000, including interest. In an amended notice of application Mr. Cheema added additional relief sought, including (1) removing a Family Maintenance Enforcement Program ("FMEP") lien on his property; (2) cancelling further child support payments; (3) repayment of all monies paid to the claimant by FMEP from March 22, 2012 onward; (4) repayment of any monies held by FMEP: and (5) the "payback" of loans he says he made to Ms. Dhaliwal in the amount of $17,400. [2] The parties had an odd relationship. They married in December 1988 and separated in June 1995. During that time they had two children, Gurpeet (born in February 1990) and Gaganpreet (born in June 1993). They

were divorced by order made on March 21, 1997. That order also required that Mr. Cheema pay child support of $500 monthly for those two children. [3] What is unusual about this case is that the parties then had two more children, one born just before the divorce order (Kiranpreet, born in February 1997) and one born afterward (Sharnpreet, born in February 1998). The March 1997 order was never varied to reflect these additional two children. [4] The parties agree that, for largely economic reasons, Ms. Dhaliwal and the children moved in to Mr. Cheema's home either in December 1996 or 1997 (as per Ms. Dhaliwal; she used both dates) or in October 1997 (as per Mr. Cheema). They also agree that they lived in the same house as landlord and tenant and Ms. Dhaliwal was to pay rent of $1,000 plus certain other expenses. They disagree whether rent was in fact paid and whether, as Mr. Cheema, asserts, his child support obligation was set off against that rent. [5] Mr. Cheema's application was first heard in chambers on October 4, 2013. Madam Justice Gropper ordered the matter referred to trial. The parties proceeded with a two-day trial in April 2014, but it emerged that two days was wholly insufficient and that more trial days would be needed. The matter was then heard over two more days in late April and early May 2015, over a year after the first two days of trial. The additional two

days were still insufficient. The trial finally finished on May 27, 2015. A further element of delay occurred in December 2015 when Mr. Cheema wrote to the court schedulers to ask that judgment not be rendered for another four to six months because Mr. Cheema was in India. [6] The segmented manner in which this matter was heard has made the determination of the issues very challenging. Although this case is a very extreme example, it also illustrates the all-too-common problems that are created when counsel and litigants underestimate the time needed for court applications or trials. The advantage they may seek to gain in obtaining an earlier hearing date is more than lost in the ensuing delay and inefficiency. [7] Ms. Dhaliwal was formerly known as Inderjit Kaur Cheema. By an order made on April 23, 2014 (and, I note, not yet entered) the style of cause was amended to reflect her current name. II. Evidence A. Kuldip Singh Cheema [8] Mr. Cheema said he paid child support for about five or six months after the divorce order of March 21, 1997. The monthly amount was $500. He paid in cash. [9] In October 1997 there was a break-in at Ms. Dhaliwal's apartment. This frightened the children and prompted Ms. Dhaliwal to move to Mr. Cheema's Abbotsford house on Newcastle Drive. She became a tenant. She was supposed to pay Mr. Cheema $1,000 per month. Mr. Cheema said they had a "verbal

agreement" that each month Ms. Dhaliwal would keep $500 of that rent for child support and another $500 to pay household bills such as utilities and cable. As a result, Ms. Dhaliwal did not actually pay any rent to Mr. Cheema. [10] Mr. Cheema said that Ms. Dhaliwal and the children lived in his house from October 1997 to June 28, 2010. [11] Mr. Cheema's house had both upstairs and downstairs living areas. Upstairs there was a kitchen, living room, family room and bedrooms. Downstairs there were two separate suites. At the beginning he gave Ms. Dhaliwal and the children three bedrooms, while he had the master bedroom. His mother lived in one part of the basement. Ms. Dhaliwal's mother also lived in the basement at times. [12] Mr. Cheema remarried to a woman named Swarnjeet. His wife arrived in Canada in 1999 or 2000. He said "she stayed for a time, then left". In cross-examination he said this marriage took place in 1997 or 1998 but his wife left after five to seven months. He remarried again in April 2011. [13] Ms. Dhaliwal also remarried. According to a letter introduced in evidence by Mr. Cheema, Ms. Dhaliwal remarried in March 2000 but she was unable to get a visa for her husband and so they parted ways in November 2009. [14] Mr. Cheema confirmed his declared earnings as per his income tax returns: Year Declared

Income 1997 $15,097 1998 17,479 1999 14,749 2000 14,001 2001 20,441 2002 25,690 2003 29,095 2004 34,616 2005 25,374 2006 35,336 2007 26,237 2008 12,237 2009 28,857 2010 9,502 2011 23,014 2012 29,889 [15] Mr. Cheema said his income dropped in 2010 because this was a stressful time in his life. It was in June of 2010 that Ms. Dhaliwal and the children moved out. Also, he works as a salesperson for a Punjabi radio station and Ms. Dhaliwal was disparaging him in his community, which interfered with his work and his ability to make sales. He became depressed and spent most of his time at home. He attempted suicide at one point. [16] Mr. Cheema said he has not seen his children since 2010. [17] Mr. Cheema said he did not work much in 2012. His income in that year was mostly from RRSP withdrawals. [18] Mr. Cheema spent some time reviewing his bank statements and copies of cancelled cheques. He noted various utilities payments he made, which were expenses that Mr. Dhaliwal was supposed to pay, as well as some payments for expenses relating to the children. Mr. Cheema also referred to a cancelled cheque for $15,000 dated March 1, 2005, made out to Ms. Dhaliwal. He said this was an RRSP loan to Ms. Dhaliwal, but Ms. Dhaliwal has never repaid it. Similarly, he said two cheques dated in January 2004, totalling $1,500 were also loans he made to Ms. Dhaliwal. [19] For a time, Ms. Dhaliwal

also rented space in the basement for use as her office. This was the same suite her mother was renting. Ms. Dhaliwal paid him $550 for the office space. He said she paid him by cheque. She told him, on one occasion at least, that she paid by cheque because she wanted a record. On May 15, 2008 Ms. Dhaliwal gave two weeks' notice she was vacating that space due to "the invasion of my office". Mr. Cheema explained that guests of his from India were looking around the house and had opened the door to her office. [20] At Mr. Cheema's request, Ms. Dhaliwal gave Mr. Cheema a letter dated May 3, 2008 confirming that she was paying $1,000 to Mr. Cheema each month. Mr. Cheema asked for the letter because he was renewing his mortgage and wanted letters from his tenants in order to confirm his income. The letter read: To whom it may concern, I am paying $1,000.00 towards [t]he cost of maintaining expense to Kuldip Singh Cheema [a]t [XXXX] Newcastle Drive. This is the monthly expense that I am taking care of on his behalf. [21] Mr. Cheema emphasized that Ms. Dhaliwal did not actually pay him this money. [22] Mr. Cheema introduced a letter from his family doctor, Dr. Harjit Lail, dated September 27, 2013. No objection was taken to its introduction despite the fact that it was not in proper form for an expert report. The letter notes that Mr. Cheema suffers from "multiple medical problems"

and "he suffered from depression and anxiety disorder". In his letter Dr. Lail said "[Mr. Cheema's] medical problems certainly have an effect on his ability to work to his full potential". Dr. Lail also summarized what Mr. Cheema told him had been the negative effects of his family discord on his employment. [23] As noted earlier, Mr. Cheema married his current wife in April 2011, in India. He returned to Canada, and later learned his wife was pregnant. She subsequently had a miscarriage. This caused Mr. Cheema to be depressed. Subsequently, his wife became pregnant again and gave birth to a boy in February 2013. [24] Mr. Cheema said Ms. Dhaliwal lived in his house for 12 to 14 years and never requested child support. She only made a claim for child support and enrolled with the Family Maintenance Enforcement Program in 2011, after Mr. Cheema remarried. [25] In cross-examination, Mr. Cheema said: a) he travelled to India in November 1998, shortly after Ms. Dhaliwal moved to his house. He did not recall if he was in Canada when Sharnpreet was born in February 1998. Later in his cross-examination he said he had checked his notes and was in fact present when she was born; b) he never paid child support for the younger two children because "she never asked". I would note, however, that at this point an objection was taken suggesting child support for the two younger children was

being dealt with in Provincial Court; c) he travels to India every year, staying there for more than one month at a time; d) during the several months he is in India he lives off the commissions he has earned as a salesman; e) the current amount of his mortgage payment on his Newcastle Drive property is about $1,000 to $1,200 a month; f) he paid the utilities for that property on many occasions, yet those were Ms. Dhaliwal's responsibility. She was also supposed to pay for any repairs; g) he had no idea where Ms. Dhaliwal and the children lived after they left the Newcastle Drive home in June 2010; h) at the time of their divorce they had a house on York Avenue in Abbotsford as well as the Newcastle Drive house. The York Avenue home was sold and a condominium purchased on Nelson Street in Abbotsford. The condominium was registered in both their names, but the Newcastle Drive home was registered in his name alone; i) he owns a house in India in a town called Moga. He bought the property in perhaps 2004 or 2005 and built a house on it in 2007 or 2008. He did not know how much it cost to build, perhaps $30,000 to $40,000. He did not know its value. Title to the property is in the names of Mr. Cheema and his mother; j) their eldest son, Gurpreet, did not live at Newcastle Drive because he lived most of the time with Ms. Dhaliwal's mother. He lived with her because she has health

issues and needed to be looked after; k) he disagreed that Gurpreet moved out due to any altercation or because Gurpreet intervened with parental disputes at any time; l) more recently, his mother has helped him financially; m) he agreed that he has an obligation to support his younger children, but said he was never asked to support them, they refuse to see him, and his medical problems prevent him from working; and n) there is a lien against his house that has to be dealt with in order to re-finance the property or to sell it. [26] In re-examination Mr. Cheema said the Moga house was built after the parties separated. He said the Newcastle Drive property is worth $458,000 according to the most recent property assessment, and there is a $400,000 mortgage owing on it. He is currently behind in paying the property taxes and insurance. B. Inderjit Ruby Dhaliwal [27] Ms. Dhaliwal said theirs was an arranged marriage. Mr. Cheema arrived in Canada in September 1988 and they were married on December 31, 1988. The wedding was elaborate and cost about $20,000. Ms. Dhaliwal paid for it. Three days after the wedding Mr. Cheema tried to commit suicide, bemoaning the fact that Ms. Dhaliwal had all the money and he had none. In order to placate him Ms. Dhaliwal transferred her remaining money ($30,000) to Mr. Cheema in order to "build his confidence". [28] Ms. Dhaliwal indicated this was a

sign of things to come in their marriage as their relationship was little more than a financial arrangement and not a marriage in its true sense. [29] When Ms. Dhaliwal became pregnant with their first child (born in February 1990) Mr. Cheema departed for India "right away". His trips to India became an annual event and Mr. Cheema was there for four to six months each year. [30] In the fall of 1989 they purchased the house on York Street in Abbotsford. The $30,000 savings of Ms. Dhaliwal were used for the down payment. Both parties were registered on title. [31] In 1993 they purchased the building lot on Newcastle Drive. They were sponsoring Mr. Cheema's family for immigration and they needed a large home. A house was built on the lot; construction finished in September 1994. The resulting mortgage payments were $1,700 per month. That same year, the York Street house was sold and the parties purchased the Nelson Street condominium. [32] Ms. Dhaliwal was injured in a car accident in 1994. Her injuries left her unable to continue her business, which involved supplying labour for agricultural businesses such as greenhouses and nurseries. In 1995 both parties travelled to India to attend a wedding in Mr. Cheema's family. When she returned home she found she had been sent demands for payment of GST, totalling about $75,000. In addition, two businesses who owed her a total of $85,000

had gone bankrupt. Ms. Dhaliwal said she was told that she, too, should declare bankruptcy. She filed an assignment in bankruptcy at some point, although the evidence did not disclose the date of that assignment. [33] In March 1995, when Mr. Cheema returned from his annual trip to India, he declared to Ms. Dhaliwal that he wanted to marry someone else. By this point the couple owned the condominium on Nelson Street. They decided Ms. Dhaliwal should move into the condominium while Mr. Cheema "sorted things out". At the same time Ms. Dhaliwal's name was removed from title to the Newcastle Drive property. [34] According to Ms. Dhaliwal, she became pregnant with their third child when Mr. Cheema "attacked" her. [35] Mr. Cheema proceeded with the divorce. In the divorce Mr. Cheema kept the Newcastle Drive house and Ms. Dhaliwal kept the condominium. Mr. Cheema subsequently married Swarnjeet. [36] Ms. Dhaliwal moved back to the Newcastle Drive home in December 1996, though later she said it was December 1997. Mr. Cheema was complaining of financial hardship due to his child support obligation (although, according to Ms. Dhaliwal, he only made two child support payments) and due to empty, unrented suites in the house. He said he would lose the house if he did not get help. He encouraged Ms. Dhaliwal to rent out her condominium. Ms. Dhaliwal herself noted that the condominium was too

small for her and the children. [37] Ms. Dhaliwal was paying $1,000 per month for her condominium mortgage and strata fees. Mr. Cheema said to her, "Why not pay me $1,000; I'll live downstairs". More specifically, he said Ms. Dhaliwal should pay $1,000 in rent and pay the electricity, gas and telephone bills. Each party would be responsible for their own groceries. Ms. Dhaliwal agreed. The arrangement was that Ms. Dhaliwal and the children would move upstairs and Mr. Cheema would have the downstairs. [38] Their fourth child was born in February 1998. Swarnjeet, the new wife, arrived five months later. Ms. Dhaliwal was not specific about the duration of this relationship of Mr. Cheema's but it appears it did not last long. [39] After a few months Mr. Cheema reneged on the agreement concerning the living quarters. He said he would now have the master bedroom, so Ms. Dhaliwal and the children could only use part of the top floor. [40] Ms. Dhaliwal said, "When guests came over we had to play the happy couple". [41] During this time Ms. Dhaliwal worked at two jobs. She worked at Sun Life and she also had her own cleaning company. Together with the child tax credit, she had three sources of income. [42] Ms. Dhaliwal said she paid the agreed rent and paid the bills she was supposed to pay. Mr. Cheema insisted that she pay him in cash as he did not want to declare the payments as

income for income tax purposes. The only rental income he claimed was from one of the suites. When Ms. Dhaliwal incorporated a company for her insurance business she could no longer pay cash for the office space she rented because she needed a record for tax purposes. [43] Ms. Dhaliwal's declared income from 2004 to 2011 is as follows: Year Declared Income 2004 $99,000 2005 32,000 2006 22,510 2007 39,137 2008 28,400 2009 28,198 2010 14,189 2011 10,678 [44] Ms. Dhaliwal denied that Mr. Cheema loaned her $15,000 at any point. The cheque said to evidence this "loan" was written on Mr. Cheema's account and filled out by Ms. Dhaliwal herself, at his request. The money was for Mr. Cheema's own RRSP. He wrote the word "loan" on the cheque afterwards. Ms. Dhaliwal also denied that the other amounts claimed by Mr. Cheema were loans. [45] In 2005 Mr. Cheema wanted the condominium sold. Ms. Dhaliwal said she was also having trouble managing, given that she had to pay all the household bills. Despite their divorce agreement, Mr. Cheema remained on title to the condominium even though Ms. Dhaliwal's name had been removed from the title to the Newcastle Drive property. The condominium was sold and this resulted in net proceeds of $68,500. Over Ms. Dhaliwal's objections, Mr. Cheema directed the conveyancing lawyer to give him a cheque for $35,000 because he was a "half-owner" of the

property. [46] Ms. Dhaliwal said different people lived at the Newcastle Drive house at different times, including her mother and his cousin. Her side paid rent; his did not. Ms. Dhaliwal said that, contrary to the agreement, she paid for all of the household groceries. In her later evidence, however, Ms. Dhaliwal said she did not pay for the groceries of Mr. Cheema or his mother. She supplied all the groceries she and the four children used. She also paid all school fees, while Mr. Cheema paid nothing. [47] Ms. Dhaliwal moved out on July 1, 2010. Living with Mr. Cheema had proven too hard on the children. They did not want to live there anymore. Also, Mr. Cheema was not paying child support. When Ms. Dhaliwal asked Mr. Cheema to help out financially, he said the children were her responsibility. [48] When Ms. Dhaliwal moved out she needed help from the welfare office because the rent on a townhouse she located was $1,000 per month and her monthly income was just $1,400. The welfare authorities demanded that she register with FMEP. [49] Ms. Dhaliwal started work as a travel agent in August 2010, filling in for an employee on maternity leave. Thereafter, she worked for two years at Tim Hortons. She was about to return to work with Sun Life in 2012 but was injured in another car accident and could not return to work for six months. This delayed her return to the financial

services industry until January 2014. In November 2013 she started a delivery service for a local newspaper chain. A house fire in March 2014 curtailed her work with Sun Life, as she was forced to move several times from temporary lodgings and this impacted her ability to generate sales. Yet another motor vehicle accident on April 10, 2015 curtailed the newspaper delivery work. [50] Ms. Dhaliwal testified about the property in Moga, India. Ms. Dhaliwal was in Moga in 1991 when Mr. Cheema and his uncle were looking for property to buy. The lot was purchased in joint names but the uncle's name was removed from title in or around 2005. A home has been built there, but she has never seen it, although her children have. They took pictures of the home in 2007 (these photographs were entered as Exhibit 3). [51] The last time Ms. Dhaliwal travelled to India was in 2000. The air fare alone cost about $2,000. [52] Ms. Dhaliwal is aware the FMEP enforcement measures are putting pressure on Mr. Cheema. His federal refunds have been garnished. He may lose the Newcastle Drive house. She understood his passport had been "held", though she noted that this did not stop him from visiting India, somehow. [53] In 2015 Mr. Cheema was working at a bakery, but when he learned Ms. Dhaliwal had become aware of this employment, he quit. [54] Mr. Cheema has another wife, his third. She came to Canada in

March 2014. They have had two children together. [55] In cross-examination, Ms. Dhaliwal said: a) she agreed she had not supplied some documents she had been ordered to produce. She thought a lawyer was needed to do this, and she was unrepresented. Later, she said she had understood opposing counsel was going to send authorisations for her to sign; b) she signed an amended order to pay for the sale of the condominium; that document required the law firm to hold the net proceeds of sale until the parties reached an agreement in writing. She had refused to sign an earlier one that did not have this provision; c) she acknowledged Mr. Cheema helped with some pre-sale improvements to the condominium; d) she acknowledged Mr. Cheema has paid some small amounts for the children's Punjabi and public schooling, and that he paid certain Hydro, gas and cable bills; and e) the original building lot in Moga was purchased in 1994. That lot was sold and another one purchased in 1995. The house was built on the second lot after that. She estimated the value of the property at $350,000, based on what her father-in-law told her. C. Gurpreet Singh Cheema [56] Gurpreet Cheema is the eldest child of Mr. Cheema and Ms. Dhaliwal. He was 25 years old at the time of trial. I will refer to him by his first name because he and his father are both "Mr. Cheema". [57] Gurpreet said he acquired knowledge

about the family finances because when he was 14 or 15 years old he helped his mother organize receipts. By my own arithmetic this would put the time frame in 2004 or 2005. [58] From this activity Gurpreet learned where the money went. He noted that his mother was the breadwinner in the family. He said a lot of her money went to his father. When he asked his mother about that she said bills from Hydro and Terasen had to be paid for. If the money was not paid to his father he would hear him complain to his mother that he did not have enough money to pay the bills and that he "could not do it on his own". Payments by his mother to his father were usually in cash, although later he added that he never saw the actual exchange of cash. [59] Gurpreet heard a lot of discussions and arguments between his parents over the payment of rent for their accommodation. He said rent was definitely paid. His father would tell his mother that the rent was coming up. His father would add that if not paid then she would have to move out. This was a general threat he made. [60] Most, if not all, of the groceries came from his mother. Even his grandmother (Mr. Cheema's mother) would complain to his mother if something ran out and it was expected that his mother would supply it. [61] Money for the children's activities came from his mother. If Gurpreet needed money for, as an example, a camp of some

sort, he would ask both parents, but his father always told him to get it from his mother. Gurpreet said his father told him it was "not his job" to pay for these things. [62] Gurpreet confirmed that his father travelled to India on almost a yearly basis. While his father was away his mother took care of everything, as far as he knew. Gurpreet was happy to see his father travel to India because it would mean that he would not get yelled at, or hit. [63] Gurpreet left the Newcastle Drive home in 2007 or 2008 due to his poor relationship with his father. There was a precipitating event. He heard his parents arguing and also heard what he concluded was the sound of his father striking his mother. Gurpreet intervened and his father jumped on him and pushed him over. Gurpreet fought back; this was the first time he had resisted his father in that way. He told his father if he ever laid a hand on his mother again then he would intervene again. [64] Shortly afterward, Gurpreet moved out and went to live with his maternal grandmother. [65] In cross-examination Gurpreet said he has no actual resentment or bias against his father, just that his father "affected" him. He also said that his father used the entire living area of the house. Gurpreet did not view the living arrangement as a family unit, but said that "physically" they were together. D. Mr. Cheema [66] Due to the one-year gap

between the first days of trial and the resumption of the trial, counsel agreed that Mr. Cheema could be recalled to give evidence about more recent events. [67] Mr. Cheema said his present wife gave birth to a daughter on January 17, 2015 but complications (including two surgeries) associated with childbirth kept his wife in hospital for 19 days. As a result, he had to leave his employment at a bakery and, as of May 1, 2015, he continued to be unemployed because he had to stay home to look after the baby and their two year-old. He did not know how long he would be off work but hazarded the view it might be six months. [68] Mr. Cheema's 2014 income totalled $14,947, which consisted of rental income of $11,500 and bakery income of $3,447. [69] In further cross-examination, Mr. Cheema said: a) there are tax sale proceedings underway for the Newcastle Drive property because the property taxes have not been paid for two years; b) he travelled to India in 2014. His ticket cost around $1,200 or $1,300; c) the monthly mortgage payment is now interest-only. The amount is $1,000 to $1,200; d) there are five people in the house: his wife, their two children, his mother and himself. Their children were planned as his wife wanted to have two children; e) his mother usually buys the groceries. She has pension income; f) their B.C. Hydro and Terasen Gas expenses total about $280 per month.

Diapers cost them $400 to $500 per month; g) later in his cross-examination Mr. Cheema said friends pay his mortgage, electricity and gas expenses. He said the money comes from a church; h) his wife worked on a farm for four or five months in 2014. He did not know her earnings; i) he accepts he has an obligation to support his older children but noted they are all currently working; and j) the property in India belongs to his father and he derives no income from it. III. Positions of the Parties A. Mr. Cheema [70] Mr. Cheema noted his original application of February 22, 2012 was amended on January 9, 2013 to claim the additional relief summarized earlier in these reasons for judgment. [71] Mr. Cheema submits that the relationship of the parties after October 1997 was one of landlord and tenant - though apparently with "benefits" - but, he says, Ms. Dhaliwal paid him no rent. He notes there is no evidence showing Ms. Dhaliwal paid any rent. [72] Although the child support order from March 1997 is only for the two older children, Mr. Cheema acknowledges his obligation to pay support for the two younger children as well. The question, he says, is how he provided for the children. He maintains there was an oral agreement that Ms. Dhaliwal was to pay rent of $1,000 per month, with $500 of that rent offset by Mr. Cheema's child support obligation and the other $500 credited by

reason of her taking care of the utilities. He also paid some utility bills (even though this was to have been Ms. Dhaliwal's responsibility) and certain expenses relating to the children's schooling. [73] Mr. Cheema notes that Ms. Dhaliwal was ordered to produce bank statements but failed to do so, so the Court should draw a negative inference against Ms. Dhaliwal as a result of this failure. He said Ms. Dhaliwal's credibility suffered as a result of various other inconsistencies as well. [74] Mr. Cheema said it would be "grossly unfair" to require him to pay child support during the time he supported the family under one roof. For the later time (which the parties agree commences July 1, 2010) Mr. Cheema submits that he is capable of earning just $12,000 to $13,000 per year, although he would agree his income should be imputed at $15,000. For the three children still under 19 this level of income translates to a Guidelines support obligation of $240 per month. [75] Mr. Cheema says he is not working at present due to the fact that his current wife is recovering from medical problems. Because of his current financial situation he submits he should be ordered to repay arrears at the rate of $50 per month for 2015 and $100 per month for 2016. B. Ms. Dhaliwal [76] Ms. Dhaliwal submits that the onus is on Mr. Cheema to establish that he is entitled to the relief he seeks, and there

is no credible evidence on which to do so. [77] Ms. Dhaliwal notes that her evidence was that she paid rent to Mr. Cheema. The rent was paid in cash, at his insistence. She only moved back to the Newcastle Drive home because he said he would lose the property if she did not. Her evidence was corroborated by their son Gurpreet, who testified about numerous conversations where Mr. Cheema demanded money from Ms. Dhaliwal. [78] As for the banking records she was ordered to produce, counsel noted that there was conflicting evidence on this. Ms. Dhaliwal said she gave authorisations for release of the records to her previous counsel. No adverse inference should be drawn against Ms. Dhaliwal in these circumstances. [79] The cancelled cheques produced by Mr. Cheema, showing payments for school and clothing, add up to just $644, a paltry sum for the support of four children over 20 years. As for the utilities payments made by Mr. Cheema, he was able to make these payments only because Ms. Dhaliwal was paying rent to him. [80] Mr. Cheema's claims of minimal income are not credible and his claims of hardship arise from his own actions. He goes to India on an almost-annual basis and he has a substantial home there. He has remarried and, by choice, has had two more children. His medical evidence about inability to work was less than convincing. His claims of minimal earnings do not stand up

when compared to his annual expenses, and his various explanations about how he met that substantial shortfall ought to be rejected. [81] For all of those reasons Ms. Dhaliwal submits the Court should conclude that Mr. Cheema has not met the burden of showing arrears should be cancelled. IV. Discussion A. Credibility [82] Because of the nature of this case it is necessary that I comment on the credibility of the parties. Both parties had substantial credibility problems. [83] Ms. Dhaliwal had an elusive command of detail. The most notable example is her reference to different years when testifying about the date she and the children returned to live at the Newcastle Drive home. She also tended to make broad assertions that were later shown to be inaccurate, such as her assertion that she always paid all the utilities she was supposed to pay. In cross-examination she conceded that Mr. Cheema paid some of these bills. She claimed that Mr. Cheema directed the conveyancing lawyer to pay him half of the net sale proceeds of her condominium and that this was done over her objections but she ultimately conceded she signed a conveyancing document in which she agreed to that payment. [84] Mr. Cheema's most notable credibility flaw was that he was remarkably unforthcoming about his finances. His testimony in cross-examination, on financial assets or income in particular, was either vague

or quite obviously evasive. He seldom answered a direct question on finances with a direct or substantially responsive answer. [85] For the reasons expressed above I have been very cautious in accepting the evidence of either of the parties. B. Analysis [86] Mr. Cheema's principal claim is for the cancellation of child support arrears, which is relief that carries with it a substantial onus. An order cancelling arrears is a form of retroactive variation: Earle v. Earle, 1999 BCSC 283; Boekhoff v. Boekhoff, 2016 BCCA 33. [87] Variation of the child support order in this case is governed by the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), because that order also granted a divorce. Section 17 of the Divorce Act provides: 17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) a support order or any provision thereof on application by either or both former spouses; or (b) a custody order or any provision thereof on application by either or both former spouses or by any other person. (4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. [88] In the oft-cited case

of Earle v. Earle, Madam Justice Martinson outlined the principles applicable to applications to cancel support arrears. I summarize these as follows: a) because cancellation or reduction of arrears is a form of variation, there is a substantial onus on the person asking for a reduction or cancellation of arrears to show that there has been a significant and long-lasting change; b) arrears will only be cancelled if the applicant is unable to pay now and in the future; c) the applicant must provide full financial disclosure under oath that the change in financial circumstances is significant and long-lasting, the change is not the result of choice, and every effort was made to earn money or more money but these efforts were not successful; d) the applicant's responsibility for a second family does not relieve that parent of his or her obligation to support the first family; e) delay in enforcement is generally not a relevant factor in considering the cancellation of child support arrears; f) the argument that the recipient spouse will get a windfall will not be given effect because to do so may encourage payors to delay and because the recipient parent has had to bear a disproportionate burden of child-rearing expenses; g) arrears will not be cancelled simply because others provided financial assistance to the children; h) similarly, arrears will not be cancelled because the

children no longer need the money; i) it is no answer to say that the recipient spouse agreed that child support did not have to be paid, because support is the right of the child, not the parent; j) an applicant's lack of access to the children is not a factor in determining whether arrears should be reduced; k) money spent directly on the children does not provide a valid legal excuse for not paying child support and does not provide a reason for reducing or cancelling arrears; and l) the fact that the payor spouse did not have legal advice when the order was made or during the time payments were not made is not in itself a reason to reduce or cancel arrears. [89] Not all of those principles apply in this case, but many of them do. [90] Mr. Cheema's application to cancel arrears is based, in essence, on different arguments relating to two periods of time, the first being the time when Ms. Dhaliwal and the children resumed living at the Newcastle Drive address and the second being the period of time after they moved out. I will therefore analyse these time periods separately. 1997 to 2010 [91] It is very difficult to establish whether Ms. Dhaliwal paid rent, as she asserts, or whether, as Mr. Cheema maintains, no actual rent was paid because it was set off against his child support obligation. Both have improbabilities about them. For example, it does not make sense that Ms.

Dhaliwal would opt to return to Newcastle Drive in order to pay more money ($1,000 plus the utility bills) than she was paying at the condominium. On the other hand, it is very difficult to see how Mr. Cheema could have afforded to maintain his mortgage payments of $1,700 per month at his reported level of income (which in the first three years of their arrangement was just $14,000 to $17,500 annually, and which reflected gross rental income in the range of $3,500 to $5,000) without a substantial source of other funds, and much more funds than a mere set-off arrangement would garner. He had to have had other sources of money, aside from the apparently minimal pension income of his mother, and Ms. Dhaliwal is the most likely source of that money. [92] Ms. Dhaliwal said she paid rent in cash, at Mr. Cheema's request, so there is no record of her payments. Similarly, Mr. Cheema said that for the period of time Ms. Dhaliwal lived at the condominium he paid her the required child support in cash, so there is no record of this either. All that I can safely conclude from this evidence, and from the evidence generally, is that it is likely many of the dealings between the parties were conducted on a cash basis. [93] Mr. Cheema submits that the Court should draw an adverse inference against Ms. Dhaliwal for failing to produce banking records back to 1997 as she had been ordered to do in

October 2013. Ms. Dhaliwal offered some excuses for this failure, familiar ones in the family law context, though none conclusively compelling. Given the circumstances of this case, however, including Ms. Dhaliwal's various personal circumstances as reviewed earlier, I am not prepared to draw an adverse inference against Ms. Dhaliwal for failure to produce the banking records in question. [94] At Mr. Cheema's request, Ms. Dhaliwal signed a May 2008 letter to a bank, presumably the mortgagee bank, attesting to the fact that she was "paying $1,000 towards the cost of maintaining expense to [Mr. Cheema] at [Newcastle Drive]". Both parties read this letter as supporting their respective cases. What the letter does not say, however, is that half of that sum was not being paid at all due to a set-off, which is what Mr. Cheema asserts on this application. Clearly Mr. Cheema was representing to the bank that $1,000 was in fact being paid monthly by Ms. Dhaliwal. [95] Gurpreet, the son, said "rent was definitely paid". Although counsel for Mr. Cheema argued that this rent probably related to the office space in the home and not the living space, the context in which Gurpreet's evidence was given satisfies me that he was referring to rent for the living space. Gurpreet also testified that his mother was the breadwinner in the family and about his father's frequent requests for money,

which supports the idea that Ms. Dhaliwal was paying more than Mr. Cheema admits. [96] Gurpreet was by far the most credible of the three witnesses who testified. I am satisfied that Gurpreet was an honest and truthful witness. The question with Gurpreet's evidence was not credibility so much as it was with the reliability of his evidence. In particular, Mr. Cheema noted that Gurpreet never saw money change hands between his parents. Despite these reliability concerns I conclude that Gurpreet's evidence is reasonably reliable. The fact that he never saw money actually change hands does not detract from the reliability of his evidence because it is clear that demands for money were made by Mr. Cheema and, given Gurpreet's evidence about the relationship between his parents, it seems highly unlikely these demands were not met by Ms. Dhaliwal through the payment of funds. [97] Mr. Cheema complains that he is being put to the proof of a negative; that is, that something - the payment of rent - did not happen. However, that is not really the proper characterization of the issue here. The issue is whether Mr. Cheema met his child support obligation. He asserts that he did. He had the ability to arrange and document his affairs in such a way that he would be able to show he was meeting his court-ordered obligation. He failed to do that. [98] The Divorce Act requires that an applicant

on a variation application show there has been, or was, a change of circumstances that would affect child support. The case law indicates that the burden on an applicant to show a change of circumstances is a substantial one. Given the state of the evidence in this case I conclude Mr. Cheema has not met this burden. July 1, 2010 Onward [99] For the period July 1, 2010 onward the situation is different. For this period Mr. Cheema does not claim that he met his court-ordered obligation; instead, he submits that his obligation is excessive given his income during this time and because he is currently not working. [100] There are many problems with this aspect of Mr. Cheema's application. I begin by noting that the March 1997 order dealt with support for just two children, yet there are four. There seemed to be a suggestion that support for the younger two children is being dealt with in Provincial Court, though this was not at all clear. If so, it is highly unsatisfactory to have child support dealt with in two different courts. I am left in some doubt as to whether I am to consider a variation of the 1997 order for two children or whether I am to consider the adequacy of the child support order in a broader sense by considering the adequacy of the support for all four children. Submissions did not make this clear insofar as counsel for Mr. Cheema utilised Guidelines figures for

both two children ($223 per month) and three children ($240 per month), based on an annual income of $15,000. The figure for four children was not referred to (presumably because Gurpreet is now over 19 and independent), but I note that while Gurpreet was over 19 years of age by July 1, 2010, the evidence shows he attended a post-secondary institution for two years and so he may well have continued to be a "child of the marriage" or, in other words, a dependent child, after he turned 19. [101] A further, though more minor, complication arises from the fact that the Guidelines tables changed effective December 31, 2011. The child support amounts in those tables for an income of $15,000 are $245 for two children, $282 for three children and $302 for four children. [102] I note as well that the 1997 order was a pre-Guidelines order so it does not reveal the level of income on which it is based, as is the post-Guidelines practice. [103] This brings me to the most significant problem with Mr. Cheema's application, which is that I have no confidence at all that Mr. Cheema's true income for child support purposes is as he has reported for tax purposes or that he has given full and frank financial disclosure generally. As noted earlier, I found Mr. Cheema to be very unforthcoming about his finances in his testimony and I am unable to accept that his income was at the relatively minimal

level he has reported over the relevant years given the level of his expenses and, in particular, the expenses relating to his mortgage and with his regular travels to India. [104] Critically, he failed to disclose in either his financial statement or in direct testimony his ownership of what appears from the photographs to be a stately home in India. He also did not provide an estimated value of this property, maintaining that he had never heard of there being property appraisers in India, as there are here. He said that the home was constructed in 2007 and 2008 with some financial help from his father and uncle, but he did not explain how he funded the construction otherwise given his modest income. He also gave contradictory evidence on the ownership of this property. He clearly said the property was his, though registered jointly with his mother, but he later asserted the Moga property was his father's. [105] Mr. Cheema's lengthy sojourns in India also beg the question about his capacity to earn more than he does, since he has taken considerable time away from any employment in order to accommodate his regular travels to India. [106] Mr. Cheema's account statements show he had RRSPs totalling about $37,000 as of December 31, 2010. He did not explain how it was that he was able to accumulate these sums given his modest income and relatively high expenses. [107] Finally, I

address Mr. Cheema's claimed medical difficulties. The September 2013 medical letter from Dr. Lail that Mr. Cheema submitted in evidence is unsatisfactory evidence for several reasons. First of all, it meets none of the requirements of an expert report and should be inadmissible for that reason alone. But even allowing for a relaxed evidentiary standard (given that the letter was not objected to), Dr. Lail's letter does not really reveal much. Dr. Lail outlined Mr. Cheema's current health problems, including diabetes and high blood pressure, as well as two attendances on psychiatrists for treatment of depression. Dr. Lail then said "His medical problems certainly have an effect on his ability to work to his full potential". That is really all Dr. Lail reports by way of a medical opinion. Dr. Lail does go on in his letter to report other matters, but these comments of Dr. Lail merely parrot what Mr. Cheema has told him ("he tells me that he is having difficulty finding suitable work due to his medical problems"). These latter comments carry no weight. [108] In summary, I decline to cancel arrears of child support that have accrued since July 1, 2010 because: (1) Mr. Cheema has not given full and frank disclosure of his financial affairs; (2) I am not satisfied that the income he has reported on his tax returns is his true income for child support purposes; (3) I am not satisfied

that he has been working and earning to his capacity given that he has made himself unavailable for work with his lengthy and regular trips to India; and (4) the medical evidence, such as it is, does not demonstrate a medical basis for unemployment or substantial underemployment. The Claimed Loans [109] Mr. Cheema claimed that certain funds paid to Ms. Dhaliwal were loans. Ms. Dhaliwal said they were not loans. That was essentially the extent of the evidence on the subject. [110] I find the Mr. Cheema's claim that these sums were advanced as loans to be unproven. [111] I would add that I entertain some doubt that this sort of claim can be tagged on to an application for cancellation of support arrears, and I am inclined to the view that they ought to have been the subject of a separate claim or proceeding. However, I need not rely on this procedural defect as the claim fails for want of proof. V. Conclusion [112] Mr. Cheema's application is dismissed with costs. "Blok J."