Loesch v. Loesch

2012 BCSC 1153 Loesch v. Loesch

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Loesch v. Loesch, 2012 BCSC 1153 Date: 20120705 Docket: 1139256 Registry: Prince George Between: Mark Kenneth Loesch Applicant And Kimberley Jayne Loesch Respondent Before: The Honourable Madam Justice Fenlon Oral Reasons for Judgment (Re Interjurisdictional Support Order) No one appearing for the Applicant: Counsel for the Respondent: S. Grattan Place and Date of Hearing: Prince George, B.C. July 3, 2012 Place and Date of Judgment: Prince George, B.C. July 5, 2012 [1] THE COURT: Both the Interjurisdictional Support Orders Act, S.B.C. 2002, c. 29, and the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 18 and 19, provide a way for parents who reside in different provinces to apply to vary support orders for their children in the province in which the applicant parent lives. The Court of that province then makes a provisional order, and that order does not come into effect until it is confirmed by a court of the province in which the other parent resides. No notice is given on such an application because the other parent is expected to have his or her say when the matter comes before the Court in his or her province. That is what Ms. Loesch, in this case, is faced with. Mr. Loesch applied to the Alberta Court of Queen's Bench for an order varying a support order in place for their two sons, Braeden and Erik. The Alberta Court

varied the previous consent order and sent its provisional order to be considered by this Court after hearing Ms. Loesch's side of the argument. [2] The broad issue before me is whether the Alberta order should be confirmed, declined, or sent back to the Alberta Court for hearing of further evidence. The particular issues are two: first, was the proper process followed by the Alberta Court and, second, on the merits, should the order be confirmed?

1. Was the proper process followed? [3] The hearing before the Alberta Court in October 2010 was very brief. There is some confusion on the record, but the hearing took place on either October 10 or October 12. Mr. Loesch stated that he was applying for child support retroactive to 2007 and prospectively. He gave evidence about his income and Ms. Loesch's income. Mr. Loesch had attached to his application an order made only two or three months before, on August 30, 2010, but that merely dealt with access issues and reserved the issue of child support. [4] Mr. Loesch confirmed to the Court in Alberta that he had not given notice of his application to Ms. Loesch because he was seeking a provisional order, although he did not use that phrase. He did not specify whether he was seeking the order under the Alberta Interjurisdictional Support Orders Act or under the Divorce Act; nor did he tell the Court about an existing child support order made by consent on March 20, 2003 as an order ancillary to a divorce order. [5] The Court then proceeded to make the provisional order sought and made findings that Ms. Loesch's guideline income for 2007 was $30,500; for 2008, $17,000; and for 2009, $13,700. The Court then provided for payment of child support based on the guideline calculation for those amounts and also provided that the amounts could be collected through the director of

maintenance enforcement in Alberta. [6] It appears that the learned judge made the order under the equivalent of the Interjurisdictional Support Orders Act in Alberta, although that Act was not expressly referred to. In any event, the application was, in fact, an application to vary an order made under the Divorce Act and, as such, had to be addressed in accordance with the process for provisional orders set out at ss. 18 and 19 of the Divorce Act. [7] As set out by Ferrier J. in Dent v. Flynn, [2005] O.J. No. 1728 (S.C.) at para. 21: A court can make a provisional order under ss. 18 and 19 of the Divorce Act only if: i. the respondent resides in a different province; ii. the respondent does not accept the jurisdiction of the court where the applicant resides; iii. both parties do not consent to proceed under s. 17.1 of the Act; and iv. the presiding judge is satisfied that the matter can be adequately determined through the provisional/confirmation procedure. [8] In the case before me, Ms. Loesch lives in Prince George, British Columbia, and Mr. Loesch in Grande Prairie, Alberta, so the first criterion is met. However, there was no evidence before the Alberta Court that Ms. Loesch did not accept the jurisdiction of that Court. To the contrary, there was some evidence, albeit buried in the written application that was not referred to before the judge, that Ms. Loesch had just

accepted the jurisdiction of the Alberta Court in August 2010, a few months earlier, when she attended a hearing through counsel dealing with custody and access which led to a consent order. Nor was there evidence that the parties did not consent to proceed under s. 17.1 of the Act. Finally, with respect to the fourth criterion, the learned judge in Alberta did not address the question of whether the matter could be adequately determined through the provisional/confirmation procedure. In the result, three of the four prerequisites to the granting of a provisional order were not met. I would, on that basis alone, decline to confirm the provisional order of the Alberta Court. I will, however, briefly address the merits of the variation order made.

2. Should the order be confirmed on its merits? [9] Section 17 of the Divorce Act, which governs variation of the support order made on March 20, 2003, provides that the Court must be satisfied that a change of circumstances has occurred since the order was made. At the time of the 2003 order, the two children were residing with Mr. Loesch in Grande Prairie, and he was receiving a Canada Pension Plan dependents' benefit in the amount of $360 a month toward their support. [10] The 2003 order includes the following terms. Paragraph 2 grants the plaintiff and defendant joint custody of the children with Mr. Loesch to have primary residence and day-to-day care of the children. Paragraph 3 grants the plaintiff reasonable access and telephone access and requires the plaintiff to give the defendant two weeks' notice of the dates on which she wants to exercise access. The order also provides that Ms. Loesch is to be responsible for all access costs unless otherwise agreed upon by the parties. Paragraph 4 expressly orders that neither party is to pay support to the other. Paragraph 5 orders that child support is reserved as long as the children continue to receive the Canada Pension Plan dependents' benefit, and records that Ms. Loesch had satisfied the Court that payment of the full amount of child support prescribed in the Federal Child Support Guidelines would cause her undue

hardship due to ongoing disability, high access costs, and low income. [11] Between the date of the order in 2003 and the provisional hearing in 2010, Ms. Loesch resided in the Yukon and British Columbia, including Whitehorse, Dawson Creek, and Prince George. She paid the costs of access between the children's home in Grande Prairie, Alberta, and wherever she was living. [12] On August 30, 2010 the parties entered into a consent order in the Alberta proceeding. It provided that Mr. Loesch would continue to receive the Canada Pension Plan dependents amount and that amounts owing under the order could be enforced through the equivalent of the family maintenance enforcement program. It also provided that the parties were to exchange financial information by June 30 of each year. In April 2011, Braeden went to live with Ms. Loesch in Prince George. [13] Financial information filed in the proceeding before me sets out Ms. Loesch's income: in 2007, $30,600; in 2008, $17,400; in 2009, $13,700; in 2010, $12,251; and in 2011, $12,500. The material before me also establishes that Ms. Loesch has significant health problems and disabilities which prevent her from earning anything other than minimum income. At present, Ms. Loesch is in receipt of Canada Pension Plan disability benefits, and if she is eligible for social assistance, her total income in 2012 is anticipated to be $10,400 to

$11,200. The only income Ms. Loesch has been able to earn in the past year was $1,133 selling Avon. [14] In May 2012, Braeden returned to live with Mr. Loesch, and since then, Mr. Loesch had both children living with him and has continued to receive the CPP benefits for both boys. [15] Mr. Loesch's income is approximately $53,000 per year, although he was laid off for some period of time in 2010, according to the evidence he put before the Court in Alberta. He paid no child support for Braeden while Braeden resided with Ms. Loesch in Prince George for just over a year from April 2011 to May 2012. [16] At the provisional hearing in Alberta, there was no evidence led by Mr. Loesch as to a change of circumstances since the 2003 order. He simply argued that he had been misled by Ms. Loesch into believing that the CPP dependent child benefits "counted as child support". However, both Mr. and Ms. Loesch were represented by counsel when they consented to the corollary relief provisions of the divorce order in March 2003 and to the order in August of 2010. Those provisions contain a finding by the Court that payment of child support by Ms. Loesch would constitute a hardship as defined by the Federal Child Support Guidelines and therefore child support would not be payable as long as the children received the Canada Pension Plan dependent benefit. [17] I find that Mr. Loesch did not

establish a change in circumstances. Ms. Loesch continues to suffer from a serious disability and to receive a very low income. She continues to be responsible for access costs and in addition supported Braeden for one year without assistance from Mr. Loesch. Mr. Loesch continues to receive the CPP dependent benefits for the two boys as contemplated by the 2003 order and the August 2010 order. Thus, consideration of the application on its merits does not support confirmation of the provisional order. [18] The last issue I will address briefly is the question of delay. The provisional order was made in October 2010. In June 2011, the Ministry of the Attorney General in British Columbia sent the order to the defendant and made her aware of it. Subsequently, there were some efforts made to set this confirmation hearing, but the situation was complicated by the fact that Braeden had come to live with his mother in April 2011. Ms. Loesch was considering an application to vary in light of that change in custody. She delayed because there was some uncertainty as to how long Braeden would continue to reside with his mother, and some difficulty in sorting out what had happened in the Alberta Court in relation to which Act had been applied. Although the delay is considerable, I find that it is explained, and it does not affect the outcome of this hearing. [19] Having considered whether the order should be remitted back to the Alberta court, I have concluded that course is not appropriate in the circumstances. In the result, I decline to confirm the provisional order. The Honourable Madam Justice L.A. Fenlon