E.L. v. M.L.

2021 BCSC 835 E.L. v. M.L.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: E.L. v. M.L., 2021 BCSC 835 Date: 20210503 Docket: E192752 Registry: Vancouver Between: E.L. Appellant And M.L. Respondent Corrected Judgment: The whole of these reasons have been redacted for publication purposes to anonymize the names of the parties and the children involved in these proceedings and any other information which could identify them in any way where changes were made on May 27, 2021. Before: The Honourable Madam Justice C. Ross On appeal from: An order of the Provincial Court of British Columbia dated April 12, 2019 (E.L. v. M.L. (28 May, 2019), Vancouver 1326771) Reasons for Judgment Counsel for the Appellant: T. Magder Appearing on his own behalf: M.L. Counsel for the Children: S. Narbonne Place and Date of Hearing: Vancouver, B.C. March 22-24, 2021 Place and Date of Judgment: Vancouver, B.C. May 3, 2021 Introduction [1] E.L. appeals the order of Judge Meyers dated May 28, 2019 requiring her to pay retroactive and ongoing child support and special and extraordinary expenses for her three children (the "Order"). [2] The relevant portions of the Order are as follows: 4. The claim of the Applicant, [E.L.], for undue hardship and that she should be relieved from paying child support for the years 2017, 2018 and 2019, and for reduced future child support is dismissed; 5. For the 2017 calendar year the Applicant,

[E.L.], will pay retroactive child maintenance to the Respondent, [M.L.], for all three children, namely [names omitted] commencing on June 1, 2017 and continuing on until June 1, 2019 as set out in the next term; 6. With respect to 2017 child maintenance, the child support obligations of the Applicant, [E.L.], are that she pay the following to the Respondent, [M.L.]: > $689.00 per month from January 1, 2017 to May 1, 2017 (inclusive) > $2,004.00 per month from June 1, 2017 until December 31, 2017 > $1,138.00 per month from January 1, 2018 until a Court Orders otherwise; 7. Neither parent is required to financially participate in any previous extraordinary or special expense incurred; 9. As to what percentage each party should be paying towards the special or extraordinary expenses, the Respondent, [M.L.], earned $92,765.00 and the Applicant, [E.L.], earned $73,300.00 in 2018. The Respondent, [M.L.], will pay 78% of the extraordinary expenses and the Applicant, [E.L.], will pay 22% of the extraordinary expenses. The Respondent, [M.L.], will send the Applicant, [E.L.], receipts for the expenses incurred and the Applicant, [E.L.], shall reimburse the Respondent, [M.L.], for 22% of the cost within 4 weeks of receiving the receipts from the Respondent, [M.L.]; 10. The Applicant, [E.L.], is responsible for paying Dr. Waterman's account and the Applicant, [E.L.], is responsible for

reimbursing the Respondent, [M.L.], for half of what he paid to Dr. Posthuma for his reports and interviews. The Applicant, [E.L.], shall reimburse the Respondent, [M.L.], by June 26, 2019. [3] In her Notice of Appeal, E.L. seeks the following relief: a) setting aside the order for retroactive child support for the years of 2017-2019; b) cancelling the attachment of child support arrears by the Family Maintenance Enforcement Program pursuant to the Order; c) setting aside the order for ongoing child support beginning on June 1, 2019 until the appeal for custody and access is heard; and d) reimbursement for costs already paid. [4] E.L.'s oral submissions were limited to the portions of the Order dealing with retroactive child support for 2019, ongoing support from 2019, the proportions for the sharing of special and extraordinary expenses, and Dr. Posthuma's s. 211 report. Background [5] The parties were married in September 1994 and separated July 1, 2012. They have three children. [6] The parties signed a Separation Agreement in 2012. At the time, the children were splitting their time equally with each parent. Both parents were employed, earning similar amounts. The Agreement provided that neither parent would be required to pay child support. [7] In August 2014, Judge Lee ruled that no child support would be required to be paid by either parent in the future. The children

continued to spend equal time with each parent. [8] In March 2015, the eldest daughter moved in with M.L. full time. The two younger daughters continued to divide their time equally with each parent. This situation continued through 2016 and the first six months of 2017. [9] In June 2017, all three children began to live full time with M.L. E.L. had only very limited parenting time with the children. This situation continued to the date of the hearing of the application giving rise to this appeal. [10] M.L. applied for retroactive and prospective child support in 2017. E.L. responded with an application for the three children to reside with her full time and for child support. [11] The trial with respect to the residence of the children commenced before Judge Meyers on July 25, 2017 and did not conclude until May 24, 2019. There were 26 days of hearing. The trial was still ongoing at the time the Order under appeal was made. [12] Judge Meyers heard the application under appeal on April 11 and 12, 2019 and gave reasons on May 28, 2019. [13] The trial reasons were issued on October 10, 2019. E.L. also appeals the order from trial. I deal with that appeal in a separate set of reasons. Judge Meyers ordered the following in his trial reasons: a) the three children were to reside full time with their father and step-mother; b) the mother was not to have any parenting time with the

children until further order of the court; c) the father was to have all of the parenting responsibilities; d) the father was not required to discuss or secure the mother's agreement for any decisions respecting the children, except "life threatening" decisions; e) the father was to keep the mother informed of the children's health, school work, extra-curricular activities by email once a month; and f) the order was to be reviewed one year later to address the possibility of restoring some parenting time to the mother, provided that she could demonstrate that she had engaged in extensive and successful counselling with a psychiatrist or registered child psychologist. [14] With regard to the Order under appeal in these reasons, E.L. has not paid child support as required to by the Order. [15] It is clear from the transcripts and the hearing judge's reasons that E.L.'s 2019 income was at issue in the application giving rise to the Order. Her testimony was that she was off work as a result of injuries suffered in a motor vehicle accident on August 5, 2016, as a passenger on a bus. There was an outstanding action in relation to those injuries that was, at the time of the hearing, set to go to trial on October 7, 2019. In addition, E.L. testified that she had insurance coverage with Sun Life for wage loss; however, her claim had been rejected. She advised the court that the

insurance matter was under appeal. [16] E.L. testified that her only current income was from social assistance and that her total income for 2019 would be in the region of $9,000, absent proceeds from ICBC and/or the Sun Life appeal. She stated that her plan was to return to work on a part-time basis in two months, to continue with physiotherapy, and then to return gradually to full-time employment. M.L. questioned E.L.'s assertion that she was unable to work. [17] It is clear that the hearing judge did not have the evidence he needed to make a definitive finding regarding E.L.'s income for 2019. Neither of the two outstanding actions--both of which would bear on her income and ability to work--had been resolved. There was no medical opinion evidence or other documentation in evidence concerning E.L.'s ability to work or the status of her injuries. E.L.'s credibility was at issue. The hearing judge made an adverse finding regarding her credibility in relation to her claim for relief on the basis of hardship. [18] In addition, the hearing judge's reasons at paras. 1-4 clearly contemplated that a review of child support, including issues of retroactive support for 2019, was to take place following the trial decision. [1] This is a Judgement with respect to retroactive and ongoing child maintenance as well as sharing extraordinary expenses for the 3 children of M.L. (the "Father")

and E.L. (the "Mother"). [2] This Judgement will cover the period of time from January 1, 2015 until when the Final Decision in this case is rendered as to where the 3 children will be living and what the parenting time for each parent will be. The Final Judgement is expected to be within 3 months of today's date. [3] When the Final Decision is made, the Court will then consider the amount of Child Maintenance payments to be made going forward from the date of the Final Judgement. The Court may have some consideration as to retroactive pay as a result of the Sun Life Lawsuit over disability payments and the ICBC accident Lawsuit, both initiated by the Mother. [4] The Final Decision will include whether or not the Father alienated the children and if he did, how and if, that should have any impact on the required Child Maintenance Payments. [19] That review did not occur. Legal Principles [20] This appeal is brought pursuant to s. 233 of the Family Law Act, S.B.C. 2011, c. 25, which provides in part: 233 (1) A party may appeal to the Supreme Court an order of the Provincial Court made under this Act, except an interim order. (3) After hearing the appeal, the Supreme Court may do one or more of the following: (a) confirm or set aside the order of the Provincial Court; (b) make any order that the Provincial Court could have made; (c) direct the Provincial Court to conduct a new

hearing. [21] Appellate standards of review apply, namely correctness for questions of law and palpable and overriding error for findings and inferences of fact. The court must apply a deferential standard to findings of fact and credibility and to exercises of discretion: Benhaim v. St-Germain, 2016 SCC 48 at paras. 36-39. [22] A court is to use the best evidence of current income in determining income for the purpose of calculating child support under the Federal Child Support Guidelines, SOR/97-175, as s. 2(3) provides: Most current information (3) Where, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used. [23] In Ellis v. Ellis, 2018 BCSC 510, Master McDiarmid discusses the appropriate approach to determining a payor's current support obligation: [38] Although historical income is often used as the basis for a determination of support obligations, the best evidence is accurate evidence of current income. [39] In Heppner v. Jylli, 2010 BCSC 1020, Mr. Justice Halfyard wrote: [25] In L (RE) v. L (SM) [2007 ABCA 169], the Alberta Court of Appeal had to decide what time period is to be used to determine income, when calculating child support. At para 22, the court stated in part as follows: . . . The child is entitled to be supported according to the payor's current income, if

ascertainable, and if not, by a reasonably accurate estimate of the payor's current income with an adjustment at year's end once the actual income is known. [26] The Court of Appeal rejected the proposition that the intent of the guidelines was that the past year's income should be used as the basis for calculating child support. Relying on s.2(3) of the guidelines, the court stated that judges should make "an estimate of the payor's current annual income" (para 18). Discussion [24] Although the Order is contradictory with respect to the end date of E.L.'s support obligations, that is, whether it concludes on June 1, 2019 as in Clause 5 or whether it continues "until a Court Orders otherwise" as in Clause 6, it is evident that Order encompasses at least the first six months of 2019. Accordingly, it was necessary for the hearing judge to determine E.L.'s 2019 income. [25] The best evidence of E.L.'s current income at the time of the hearing was that her current annual income was $9,000 from social assistance. Given the uncertainties regarding the outcomes of the accident litigation, the insurance appeal, and the graduated return to work, a review was clearly necessary and indeed was contemplated. [26] The hearing judge erred in law when he used E.L.'s 2018 income as the basis for calculating her 2019 support obligations in the face of the most current available evidence

concerning her actual current income. He did not state that he was imputing income pursuant to s. 19 of the Guidelines, nor did he state that he was adopting some method other than her current income pursuant to s. 17. [27] Accordingly, the portions of Clauses 5 and 6 regarding child support for the period commencing January 1, 2019 forward, which are based upon E.L.'s 2018 income, must be set aside. At an income of $9,000, E.L. would not be required to pay child support. [28] Since the review that was contemplated by the hearing judge did not occur, I direct that the matter be remitted to the Provincial Court for a review hearing to address the following: a) retroactive child support from January 1, 2019 to the date of the review hearing; b) prospective child support; and c) the proportion of sharing for special and extra ordinary expenses. The review will also address the question of E.L.'s income, including whether income should be imputed on the basis that she is underemployed. [29] Pursuant to Clause 8 of the Order, the parties are under no obligation to contribute to special and extraordinary expenses unless they agree to the expenses or are able to resolve their disagreement. Accordingly, there is no need to address the proportions for sharing those expenses prior to the review. [30] Finally, E.L. objects to the requirement in Clause 10 of the Order that she pay half of

the costs of Dr. Posthuma's s. 211 report. She notes that during the hearing the judge suggested that he would defer his decision on that issue until the conclusion of the trial. However, the parties had an opportunity to make submissions with respect to the issue, and did so. In my view, no unfairness resulted. The decision was a matter of discretion. I would not interfere with his exercise of that discretion. Disposition [31] I make the following orders: 1. Clauses 5 and 6 of the Order are set aside with respect to the period commencing January 1, 2019 forward.

2. The matter will be remitted to the Provincial Court for a review hearing to address: a) retroactive child support from January 1, 2019 to the date of the review hearing; b) prospective child support; c) the proportion of sharing for special and extra ordinary expenses; and d) E.L.'s income for the years 2019 to the time of the review.

3. Success has been divided. Each party will bear their own costs for the appeal. "Ross J."