Lerner v. Fischer

2013 BCSC 2124 Lerner v. Fischer

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lerner v. Fischer, 2013 BCSC 2124 Date: 20131122 Docket: 93995 Registry: Kelowna Between: Jo-Ann Marie Lerner Claimant And Jason Dean Fischer Respondent Before: The Honourable Mr. Justice Barrow Reasons for Judgment Counsel for the Claimant: M.G. Miller No other appearances Place and Date of Trial/Hearing: Kelowna, B.C. September 30, 2013 Additional materials filed: October 2, 2013 Place and Date of Judgment: Kelowna, B.C. November 22, 2013 [1] The claimant began this action in January 2012 with the filing of a notice of family of claim. She is seeking child support for the two children retroactive to January 1, 2009. She is seeking the order under either the Divorce Act or the Family Relations Act. She has pleaded that she believes the respondent earns approximately $100,000 per year. [2] The parties were married in July 1990 and separated in February 2003. The claimant began a divorce action in Alberta some years ago. On March 8, 2006, Hart J. found that Mr. Fischer's income was $60,000 per year and ordered that he pay child support in the sum of $829 per month. In addition, he ordered Mr. Fischer to contribute $133 per month towards s. 7 expenses. Those expenses consisted of child care expenses, Alberta health care premiums, and music lessons. [3] On August 24, 2006, the parties were divorced. The divorce order is silent on

the issue of child support. [4] After the child support order was granted but before the divorce was granted, the parties settled their differences and recorded their settlement in a separation agreement. By the terms of that agreement, Ms. Lerner has the day-to-day care of the children and Mr. Fischer has reasonable and generous access. They agreed that Mr. Fischer would "pay support in accordance with the provisions of the order of the Honourable Mr. Justice D.G. Hart granted March 6, 2006". They reproduced the terms of Mr. Justice Hart's order in their separation agreement. [5] Although the divorce order did not deal with the corollary relief sought in the divorce action, I am satisfied that the March 6, 2006 order of Hart J. was interim and that it ceased to have any effect once the divorce order was granted. It is styled "interim order" and is noted to be made "without prejudice" and based on "limited financial disclosure" from Mr. Fischer. I infer from the circumstances that the parties intended to define their child support obligations in the separation agreement. Viewed from this perspective, there is no extant superior court order dealing with support for these children. I am, therefore, at liberty to address the matter afresh. [6] As noted above, this action was commenced in January 2012. On February 1, 2012, Mr. Fischer was served with a copy of the notice of family

claim, as well as a notice requiring his attendance at a judicial case conference, a notice of application and a supporting affidavit. A judicial case conference was held on April 18, 2012, at which Laurie Hnatiuk, a lawyer practising in Calgary, appeared on Mr. Fischer's behalf. [7] Although Mr. Fischer has not responded to this action and is thus not entitled to notice of applications, Ms. Lerner applied for and was granted a substitutional service order on September 4, 2013. By the terms of that order, Mr. Fischer was to be served by serving Ms. Hnatiuk. On September 5, 2013, Ms. Miller, counsel for Ms. Lerner, delivered a copy of the notice of application and the claimant's supporting affidavit to Ms. Hnatiuk's offices. Mr. Fischer has not responded to the application. [8] The two children whose support is at issue are Jamie Marie Fischer, who was born December 19, 1994, and is now 18 years old, and Kelsea Jordan, who was born April 1, 1996, and is now 17 years old. Jamie is in her second year at the University of British Columbia Okanagan enrolled in a program leading to a Bachelor of Arts degree. She expects to graduate in the spring of 2016. Kelsea is in her senior year of high school. Both children live with Ms. Lerner and have since the parties' separation. [9] As recorded in the parties' separation agreement, Mr. Fischer was earning $60,000 per year in 2006. He is a

journeyman electrician who works, and may live, in Fort McMurray, Alberta. Ms. Lerner has remarried. She works part-time as a school teacher with School District No. 23. [10] Up until at least May of 2012, Mr. Fischer continued to pay child support in accordance with the terms of the parties' separation agreement. His income since at least 2008 has been substantially higher than it was when the parties concluded their separation agreement. In 2008, his line 150 income was $102,397; in 2009, it was $68,241; in 2010, it was $90,825; and in 2011, it was $72,767. [11] Following the judicial case conference, counsel exchanged correspondence during which Ms. Hnatiuk wrote that had Mr. Fischer been paying basic support in accordance with his income, the arrears from January 2008 to May of 2012 would amount to $18,579. This total is calculated as follows. Mr. Fischer has paid $9,948 per year in basic support since 2007. In 2008, he ought to have paid $1,463 per month or $17,556 for the year. There was a shortfall of $7,608. In 2009, he ought to have paid $971 per month or $11,652. There was therefore a notional shortfall of $1,704. In 2010, he ought to have paid $1,296 per month or $15,552 leaving a shortfall of $5,604. In 2011, he ought to have paid $12,456 ($1,038 per month) leaving a shortfall of $2,508. Up to the beginning of May 2012, Mr. Fischer had paid $4,295 and ought to have

paid $5,450 ($1,090 per month) for an additional short fall of $1,155. [12] The law governing the retroactive variation of child support was set out in D.B.S. v. S.R.G., 2006 SCC 37. As Bastarache J. pointed out at paragraphs 81 and 82, s. 15.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), confers jurisdiction on the court to make a retroactive child support order. Such orders are not truly retroactive inasmuch as properly understood they amount to the enforcement of an existing obligation, albeit one that has not been incorporated into a court order. Be that as it may, the authority exists to enforce a prior obligation. [13] Both of the children in this case remain children of the marriage, and thus the only issue is when the child support order should be made effective. The date at which such orders are to be made effective is to be determined having regard to a number of factors. First, the court should examine the explanation for the delay in pursuing the matter. In this case, there is no explanation for why Ms. Lerner waited until January 2012 to pursue this issue. A second factor is whether the payor parent has engaged in blameworthy behaviour. The separation agreement that the parties reached does not specify that the child support payments are to be increased in accordance with the Federal Child Support Guidelines. It does not contain a provision requiring the

parties to exchange financial information annually. On the other hand, there is no evidence before me that Mr. Fischer believed that he was discharging his child support obligation by continuing to pay that which he agreed to pay in the separation agreement. The presumption that Mr. Fischer was acting reasonably by honouring the obligation set out in the separation agreement is rebuttable. It can be rebutted where there is a significant change in circumstance (see para. 108 of D.B.S.). The parties themselves were alive to this possibility. They agreed at paragraph 3.3 of their separation agreement that "child support may be varied if there is an important change in circumstances of either of the parties or the children". A further factor involves the circumstances of the children on whose behalf a retroactive award is sought. I know very little of Ms. Lerner's circumstances. She was working part-time and averaged approximately $25,000 for the years 2009 through 2011. Her income in 2012 increased to $58,764. On the other hand, in 2012, the parties' oldest daughter was in university and still living at home. A final factor to consider is any hardship that might be occasioned by a retroactive award. There is no evidence before me of any hardship that might flow from retroactively awarding child support. [14] In the absence of any evidence of hardship and in the absence of any

evidence that Mr. Fischer reasonably believed he was meeting his child support obligations, and given the significant increase in his income, particularly in 2008 and 2010, and given Ms. Lerner's income for that period, I am satisfied that it is appropriate to order child support effect January 1, 2008. [15] Mr. Fischer's basic child support obligation beginning January 1, 2008, is set at $1,463 per month based on his line 150 income of $102,397. His basic child support obligation effective January 1, 2009, is set at $971 per month and based on a line 150 income of $68,241. His child support obligation effective January 1, 2010, is set at $1,296 per month based on a Guideline income of $90,825. His basic child support obligation commencing January 1, 2011, is $1,038 per month based on a Guideline income of $72,767. His child support obligation beginning January 1, 2012, will continue to be $1,090 per month and continue to be based on his 2011 line 150 income. I fix his child support in that amount because that is the basis on which counsel were prepared to resolve the matter by the exchange of correspondence in the late spring of 2012. I set this amount without prejudice to Ms. Lerner's ability to seek to have the amount reviewed once Mr. Fischer's 2012 income tax return has been provided in accordance with the order I will soon make. [16] As against the foregoing amounts, Mr.

Fischer is to be credited with the payments he has made. As I understand the material, he has paid $9,948 in each of the years 2008, 2009, 2010 and 2011. Further, I understand that he paid $829 per month for the first five months of 2012. He may well have paid additional sums in 2012. If so, he is of course to be credited with those amounts. I will, however, fix the arrears of basic child support as of May 1, 2012, in the amount of $18,579. [17] The next matter involves retroactive special expenses. Ms. Lerner claims as special expenses in 2009, 2010, 2011 and 2012 school supplies for each child totalling $30; school field trips totalling sometimes $80; school fees of $85; and similar relatively small amounts. Given the amount of basic child support being paid by Mr. Fischer and the household income of Ms. Lerner, none of these are special or extraordinary expenses. The following, however, do amount to special and extraordinary expenses. In 2009, dental expenses of $963.50 for Jamie; dance lessons for Kelsea of $905; swimming lessons for Jamie of $527.70; and Jamie's cell phone expense of $604.80. These expenses total $4,196. In 2010, Ms. Lerner's line 150 income was $20,574. Mr. Fischer's was $90,825. He is responsible for 80 percent of the special and extraordinary expenses. In 2010, his obligation amounts to $1,917. [18] In 2011, dental expenses were incurred for Jamie of

$584 and for Kelsea $172. In addition, Ms. Lerner paid prescription expenses for both children totalling $300. Kelsea's dance lessons amounted to $866 and Jamie had a math tutor, the cost of which totalled $295. In addition, Jamie took driving lessons that totalled $420, and Ms. Lerner paid an additional $228 in insurance to permit Jamie to drive her vehicle. I would not allow the cost of the driver's test and the driver's licence. Finally, Jamie took a trip to Italy with the school. Mr. Fischer contributed $1,700 towards the cost of that trip. Jamie was 16 years old in 2011; I am not prepared to require Mr. Fischer to contribute further to this trip (the next amount is $3,000). The remaining expenses therefore total $2,865. Mr. Fischer's line 150 income in 2011 was $72,767; Ms. Lerner's was $23,791. Mr. Fischer is responsible for 75 percent of the special expenses which comes to $2,148. [19] In 2012, Kelsea had to have a tooth surgically removed at a cost of $650 (net of insurance). Contact lenses and prescriptions totalled some $250, Kelsea's dance lessons came to $1,310, and both children had a $604 annual cell phone expense. Jamie also took swimming lessons (National Life Guard course and materials), which totalled $370. All of these are properly regarded as special expenses in the context of this family. In addition, Jamie graduated from high school and the costs

associated with those ceremonies came to $470. Ms. Lerner's additional car insurance premiums amounted to $1,668, and she also paid Jamie's tuition and university books, which totalled $6,020 ($4,820 in tuition and $1,200 for books). Given that Jamie was living at home in 2012, these expenses are properly regarded as special and extraordinary expenses to be added to the basic monthly Guideline support obligation. However, Jamie is expected to contribute towards the cost of her education. I consider it reasonable to require that she pay $2,000 towards the tuition and book expenses. In the result, special expenses in 2012 come to $9,947. Mr. Fischer's Guideline income for that year (subject to adjustment) I take to have been $72,676. Ms. Lerner's income was $56,229. In the result, Mr. Fischer's 57 percent share of the special expenses comes to $5,670. [20] I estimate the special and extraordinary expenses for these children for 2013 to be that which they were in 2012 (Kelsea remains in high school and Jamie remains in university) except for the swimming lessons, the grad expense and the dental surgery. The special or extraordinary expenses are therefore estimated at $8,457. Mr. Fischer's monthly contribution to those expenses is set at $400 commencing November 1, 2013. The arrears which have accumulated in 2013 are $4,720. [21] Next, there will be an order that on or before June

1st in every year beginning June 1, 2014, the parties are to exchange their income tax returns for the previous year, including all supporting documentation filed with those returns. Their respective child support obligations will be adjusted based on their previous year's income. [22] I am not asked to impose terms by which the arrears of child support are to be retired. In the result, all of the arrears are due and payable forthwith. I will, however, entertain an application by Mr. Fischer, should he decide to bring one, to address the payment of these arrears in some other way (for example, monthly payments). [23] Finally, Ms. Lerner is entitled to her costs. Costs of this proceeding will be at Scale B. "G.M. Barrow, J." The Honourable Mr. Justice G.M. Barrow