Ateb v. Ateb

2015 BCSC 2267 Ateb v. Ateb IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Ateb v. Ateb, 2015 BCSC 2267 Date: 20151204 Docket: E024339 Registry: New Westminster Between: Michelle Lisa Ateb Claimant And Elyes Ateb Respondent Before: The Honourable Madam Justice S. Griffin Reasons for Judgment Claimant Michelle Lisa Ateb: Appearing in person on her own behalf Counsel for the Respondent Elyes Ateb: Karen F. Redmond Place and Date of Hearing: New Westminster, B.C. November 19, 2015 Place and Date of Judgment: New Westminster, B.C. December 4, 2015 [1] The claimant applies for an order that the respondent pay child support for the parties' two children, who live (and have always lived) with the claimant, plus a proportion of extraordinary expenses, including the costs of a nanny. Background [2] The parties married on September 3, 2000 and separated on December 21, 2009. The parties were divorced by order of this Court on July 4, 2013. [3] They have two children of the marriage, a boy who is 12 years old and a girl who is 8 years old. [4] The parties had a tumultuous separation. The matrimonial litigation was prolonged and highly stressful due to the respondent's intransigence, hostility, emotional volatility, and refusal to cooperate with the process, as noted in the reasons for judgment of the trial judge, Bernard J., made July 4, 2013. [5] Exasperated with the respondent's non-cooperation which was frustrating the claimant's opportunity for justice, the trial judge seized upon the respondent's statement near the end of the trial that the claimant could have everything she was seeking, and crafted a consent order of the parties ("the Consent Order"). [6] By that point in the trial, the respondent was over $25,000 in arrears of child support. [7] Unfortunately the claimant was self-represented and at the point of the Consent Order was exhausted by the process, the respondent's confrontations, and by the fact that she was sick but had yet to be diagnosed with what turned out to be Stage IV non-Hodgkin's Lymphoma. She was repeatedly interrupted at trial by the respondent when she tried to explain what it was that she was seeking. [8] In the end, the terms of the Consent Order were as follows: 2. The Claimant shall receive 100% reapportionment of the net proceeds from the sale of the former matrimonial home in the amount of $367,594.00, BY CONSENT; 3. The Claimant shall have sole ownership of the business 576625 B.C. Ltd., doing business as Milica SalonSpa, and shall be solely responsible for all outstanding debt with respect to that business, BY CONSENT; 4. On or before August 1st, 2013, the Respondent shall transfer to the Claimant ownership of the 2008 Hyundai Vera Cruise, currently in joint ownership, BY CONSENT; 5. The Claimant shall have sole guardianship, and sole custody, and primary residence, of the children, Malik Ail Ateb, born March 17th, 2003 and Leila Michelle Ateb, born March 2nd, 2007, ("the Children") BY CONSENT; 6. The Claimant waives her entitlement to child support past owing, and any future child support for the Children, BY CONSENT; 7. All other claims sought by either the Claimant or Respondent are dismissed, BY CONSENT; [9] The claimant says she did not fully understand or appreciate the implications of the Consent Order, especially the waiver of child support. Change in Circumstances [10] The claimant's evidence is that there has been a material change of circumstances since the Consent Order was made that affects child support. [11] One material change has to do with her health. It was expected at trial that the claimant would be able to keep working and earning an income. In September 2013 she was diagnosed with Stage IV non-Hodgkin's Lymphoma cancer, an aggressive form of lymphoma. She went through rigorous treatment which made her very sick and susceptible to other infections such as pneumonia. She was in treatment or sick until May 2014, when she was told her cancer was in remission. [12] In early November 2015, the claimant was diagnosed with a recurrence of Stage IV non-Hodgkin's Lymphoma. She will be starting aggressive chemotherapy almost immediately, and is expected to be very sick throughout her treatment. She requires a bone marrow transplant and radiation. Knowing how her previous treatment affected her, the claimant expects to be unable to work until at least 2017. [13] This material change in the claimant's health has led to a material change in her financial circumstances since trial. Unable to work during her first round of cancer treatment and unable to work now, she has very little income and has depleted her assets. [14] This leads me to comment on the division of assets in the Consent Order. [15] While the face of the Consent Order suggests that the claimant was receiving a substantial amount of net proceeds of the sale of the family home, the claimant had brought $120,000 of equity into the family home from her previous townhome owned before the marriage. The parties also owed outstanding property taxes of $17,100 and the claimant had accumulated $90,000 in HST arrears in relation to her hair salon business. [16] Payment of the family and business debts plus payment of living expenses while undergoing cancer treatment, including nanny expenses, depleted the claimant's assets. She has approximately $9,000 left as her sole assets. [17] The claimant's income is now limited to a disability income of $1,625 per month. Her most significant expense is a caregiver to look after the children. Her nanny has been involved in caring for the children since 2013, and costs $1,900 per month. The claimant will be depending on this nanny to help care for the children while she goes through her next cancer treatment. [18] Another material change is that the claimant has information that suggests the respondent is now working as a hotel and marina manager in Powell River. Before trial the respondent had an annual income of $67,045. He quit his job and was unemployed for a period of time. Recently the claimant asked and the respondent agreed to put the children on his extended medical plan given to him by his employer. He told her that the plan's benefits started in May 2014, and she has been able to obtain some refunded expenses under that plan. This information suggests that the respondent has been employed since at least May 2014 and possibly earlier. [19] The claimant has repeatedly asked the respondent to provide updated financial information about his income and to negotiate child support, but he has refused to do so. [20] The claimant asks the Court to impute income to the respondent of at least $67,000 per year. Procedural and Legal Issues [21] The claimant is self-represented on this application. However, she did receive some legal assistance before coming to court. [22] The respondent was represented by counsel prior to and at the hearing of this application. [23] The application was brought relying on s. 17 and related subsections of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) which deals with orders varying support orders. [24] At the hearing of the application, I distributed to the claimant and counsel for the respondent the case of Lambright v. Brown, 2003 BCCA 621 [Lambright]. That case suggests that where a consent order contains no provision for payment of child support, there is no "child support order" to vary under s. 17. Instead, a party seeking payment of child support must apply pursuant to s. 15.1(1) of the Divorce Act for an order for child support. Under s. 15.1(1) it is not necessary to prove a material change in circumstances, the test applicable under s. 17. Amendment of Application [25] Based on the Lambright case, the claimant applied to orally amend her application to identify her reliance on s. 15.1 of the Divorce Act. I allowed that amendment. Service [26] At the hearing of the application, counsel for the respondent took the position that the application was not properly brought because the respondent had not been personally served pursuant to Rule 6-3(1)(e)(i) of the Supreme Court Family Rules, B.C. Reg. 169/2009 [Rules], which requires personal service of a Notice of Application to change an existing final order. [27] However, Rule 6-3(1)(e)(i) is subject to the discretion of the court. During the hearing, I advised counsel for the respondent that I was giving the claimant leave to proceed on the application without proving personal service on the respondent. I gave this leave for three reasons: a) the counsel who had assisted the claimant with sending her application materials to counsel for the respondent had been led to believe through email correspondence that counsel for the respondent was personally serving the respondent and taking no issue with respect to service; b) the respondent had notice through his counsel of the application, as was made clear by the fact that he instructed her to respond, and he filed an affidavit in respect of the application; and c) the application was urgent as, on the claimant's evidence, there was an urgent need for child support and the claimant would be unable to return to court if the matter was adjourned for personal service, due to the impending start of her onerous medical treatment. [28] Further, given that the claimant is seeking child support and the final order was not a child support order, an argument can be made that the present application under s. 15.1 is not an application to change a final order. [29] I granted the respondent an additional week's time to file supplementary evidence and submissions if he so chose. This additional time was intended to allow him to respond to the claimant's submissions, which were supplemented in part by oral evidence, and to her amended Notice of Application and the new reliance on s. 15.1. Oral Evidence [30] At the hearing of the application, counsel for the respondent objected to the application on the basis that the claimant had not provided sufficient affidavit evidence about her financial circumstances. When the claimant expanded on her facts beyond her affidavit evidence in oral submissions, counsel for the respondent also objected. [31] Normally these objections would be entitled to some weight. However, in light of the urgent circumstances, I considered that the best way to deal with the evidentiary issues was to allow the claimant the opportunity to swear as true the additional facts stated orally by her. I allowed counsel for the respondent the opportunity to question the claimant but this was declined. [32] As already mentioned, I granted the respondent one week to respond to anything that had arisen during the hearing of the application. [33] The respondent decided not to respond further. He submitted no supplementary affidavits or submissions. He also decided to act in person, filing a Notice of Intention to Act in Person. [34] There is no information from the respondent as to his income. [35] While other technical procedural objections were raised in the Application Response filed by the respondent, these were not pursued at the hearing. Had they been pursued, I would have needed to consider Rules 1-3(1), 15-1(20), and 21-5 which give this Court discretion in situations where the Rules have not been strictly adhered to. In the context of the present case, no purpose would have been served by declaring the claimant's application a nullity on the basis of procedural irregularities, and the impact of delaying the application would have potentially profound negative consequences on the claimant and her children. Analysis [36] The facts of Lambright are somewhat analogous to the facts of this case. In Lambright, the parties had negotiated a consent order that included a term that the claims for child support were dismissed "as though there had been a trial on the merits" (at para. 1). The Court of Appeal rejected the argument that bringing an end to the litigation is a psychological benefit to the parents and children and is a basis for obviating a parent's obligation to pay child support. The Court noted that giving credence to such an argument could encourage one parent to intimidate or coerce the other into an agreement solely to obtain peace, at the cost of the children's right to support (at para. 15). [37] The law is quite clear that parents cannot bargain away the right of their children to support: Greene v. Greene, 2010 BCCA 595 at para. 49; Kopp v. Kopp, 2012 BCCA 140 at para. 37; Lambright at para. 16. [38] It is also clear that expediency in the face of a disruptive respondent led to the Consent Order in this case. The terms of the Consent Order could not have been, in the circumstances, the result of a reasoned, objectively fair negotiation based on an assessment of the future needs of the children and future means of the parents. [39] If evidence of a material change had been required on this application, I am satisfied that the needs of the children and the means of the parents are materially different now than they were at the time of the Consent Order. I have little doubt that if these circumstances could have been foreseen, the term waiving child support would not have been ordered. It is clear that child support is now necessary. [40] Pursuant to ss. 19(1)(f) and 23 of the Federal Child Support Guidelines, SOR/97-175 [the Guidelines], I consider it appropriate to impute income of $67,000 to the respondent. I do so on the basis of his past earning capacity, the evidence that he is currently employed, and the fact he has refused to provide evidence as to his actual income. [41] I pause to note that it is quite shocking that, given the dire circumstances, the respondent would be so callous as to the needs of his children and refuse to financially assist them. [42] I consider it to be in the best interests of the children to apply the Guidelines, based on the mother's income of $1,625 per month, which is $19,500 annually, and the father's imputed income of $67,000 per year. This results in an order that the respondent pay child support to the claimant in the amount of $1,016 per month. [43] I also order the respondent to pay a proportionate share of the monthly costs of the children's nanny, pursuant to s. 7 of the Guidelines. In light of the claimant's current health, an alternate caregiver for the children is a necessary extraordinary expense. Based on the parties' respective incomes, I could order Mr. Ateb to pay 77% of the expense. I will reduce this to 65%, to take into account the possibility that the claimant will have some small personal benefit from having a full-time caregiver for the children in the home. The respondent's share is therefore $1,235 per month. Order [44] I make an interim order that: 1. Pursuant to s. 15.1(2) of the Divorce Act, the respondent is required to pay to the claimant $1,016 in child support on a monthly basis. 2. Pursuant to s. 7 of the Guidelines, the respondent is required to pay to the claimant $1,235 by way of special or extraordinary expenses on a monthly basis. 3. The respondent is required to pay these amounts as of December 15, 2015, and on the first day of each and every month thereafter. [45] This order is interim and the parties are at liberty to apply for review in 18 months' time. However, failing an application for review or agreement of the parties, the amount of child support and extraordinary expenses payable by the respondent will continue as now ordered. "The Honourable Madam Justice S. Griffin"