Martin v. Ahrens

2009 BCSC 1836 Martin v. Ahrens

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Martin v. Ahrens, 2009 BCSC 1836 Date: 20091125 Docket: 3472 Registry: Duncan Between: William Walter Martin Plaintiff And: Lori Kay Ahrens Defendant Before: The Honourable Mr. Justice Schultes Oral Reasons for Judgment In Chambers Counsel for Plaintiff, appearing by teleconference: B. Soloway Counsel for Defendant: L. Parcells Place and Date of Hearing: Duncan, B.C. November 23, 2009 Place and Date of Judgment: Duncan, B.C. November 25, 2009 [1] THE COURT: Lori Ahrens, the defendant in this family law matter, is seeking to cancel or reduce arrears of child support stemming from an order made in 1995, as well as to terminate some recent enforcement measures with respect to those arrears that have been taken by the British Columbia Family Maintenance Enforcement Program ("FMEP"). The plaintiff, William Martin, opposes her application. [2] The parties are natives of the Province of Newfoundland. They met in 1988 when Ms. Ahrens was 16 and the plaintiff was 22. They were married in 1991 in Newfoundland, and their child, Billie-Jean, was born there in May of 1992. They separated about a month after Billie-Jean's birth. Ms. Ahrens obtained an order for child support from Mr. Martin in Newfoundland Provincial Court but no support was paid pursuant to it. [3] Following the separation, Mr. Martin moved to Calgary. Ms. Ahrens and

Billie-Jean remained in Newfoundland until 1994, when they too moved to Calgary. I gather that this was not a reconciliation, as Mr. Martin was by then in a new relationship, but the parties were in contact with each other. However, Mr. Martin did not make any contribution for Billie-Jean's support. [4] Because of the difficulty she was having supporting herself in Calgary, Ms. Ahrens decided to place Billie-Jean in the care of her parents and entered into an agreement with them for that purpose. Accordingly, Billie-Jean returned to Newfoundland to live with Ms. Ahrens's parents. [5] Mr. Martin then returned to Newfoundland and, with the permission of Ms. Arhens's parents, began to have contact with Billie-Jean. At this point Ms. Ahrens was still in Calgary. Based on her continuing financial difficulties and her assessment that Mr. Martin had mended his ways and was now in a positive relationship himself, Ms. Ahrens agreed to place Billie-Jean in his care. [6] Mr. Martin then moved to British Columbia with Billie-Jean, and in September of 1995 he obtained an order for divorce from Ms. Ahrens and corollary relief in this province. Ms. Ahrens did not contest those proceedings. She deposes that she was depressed because of her decision to give up custody of Billie-Jean and that she did not have the financial ability to come to British Columbia in any case. [7] In addition to the

divorce and an order for Mr. Martin's interim custody of Billie-Jean, an order was made requiring Ms. Ahrens to pay him $250 per month in child support for as long as Billie-Jean was eligible. It is this order that has resulted in the arrears that Ms. Ahrens now seeks to have cancelled or reduced. [8] As of October 2nd of this year, the arrears were $42,437.38. She has never made any payments pursuant to this order. She deposes that she could not afford to pay, due to her limited income. [9] In 1996 Ms. Ahrens moved to Ottawa, where her parents were then residing. Her training is as a hairdresser and from 1996 to 2001, according to her financial statement, she earned income in the range of $6,000 to $9,000 per year. [10] In 2002 she married her present husband and moved with him to the United States. They now have two children together, age six and one. Since moving to the United States the conditions of her visa have not permitted her to work there. She deposes that her visa is a "dependent" one in relation to her husband's visa and I infer that he may not yet be a United States citizen himself. This could account for the lengthy period during which she has not been permitted to work. [11] According to her financial information, her husband currently earns about $85,000 per year, although his 2008 U.S. income tax return showed an income of $136,206. Their current income is

just slightly higher than their listed annual expenses. Because of the decline in the value of their home due to the recession, it appears to be worth less than the amounts owing on its two mortgages. There is also a large amount of unsecured debt listed. [12] In 1995 Mr. Martin enrolled in the FMEP, which began to pursue Ms. Ahrens for payment of the arrears of child support. She deposes that she remained in contact with the FMEP and informed its officials of her whereabouts from time to time. She also deposes that in December 2001 FMEP closed its file because it had no current address for Mr. Martin. [13] Since moving to the United States, she has been contacted by an American entity calling itself the "Child Support Enforcement," which has attempted to collect the arrears from her. She contacted the FMEP twice in response to these solicitations and its officials advised her that the FMEP's file remained closed and that it might not recognize any payments to such a third party. [14] In January of this year FMEP contacted Ms. Ahrens to inform her that it had reactivated its file, I infer based on renewed contact from Mr. Martin. Since then the FMEP has taken steps to enforce the child support arrears, first by attaching any payments from the Canadian government to which she may be entitled and then by cancelling her passport. [15] The cancellation of her passport has caused

Ms. Ahrens to move back to Canada pending the resolution of this arrears issue. She is currently living in Nova Scotia, where she has friends, together with her young children. Her husband remains in the United States. She deposes that the cost of maintaining these two residences is exacerbating her family's already difficult financial situation. [16] In August of this year Billie-Jean, who is now 17, moved from Mr. Martin's care to Ontario to reside with the defendant's sister, in order to complete her schooling. Billie-Jean is unfortunately estranged from Ms. Ahrens. [17] Mr. Martin deposes that he has continued to support Billie-Jean financially since that move, but Ms. Ahrens deposes that he has not done so. [18] As I have indicated, he opposes any reduction of these arrears. He points out that Ms. Ahrens has never made a payment pursuant to the original order and argues that, despite her protestations, she now has significant property and financial resources that could be drawn on to satisfy it. He also alleges that she has worked on a cash basis in the past and therefore may have had undeclared sources of income, although there is no evidence to support this assertion. [19] The plaintiff also points to the case authorities, which emphasize that the question is not the current ability of a payor parent to satisfy arrears, but whether he or she will ever be able to pay

them. [20] The most helpful decision on the issue of reducing or cancelling child support arrears, which is in reality a form of variation of the original support order, is that of Madam Justice Martinson in Earle v. Earle, 1999 BCSC 283. Beginning at paragraph 18 of that decision, Madam Justice Martinson made the following observations: 18 The payment of maintenance is based on ability to pay. That means that it is based not only on what the parent does earn, but also what the parent can earn. The result is that parents have a legal obligation to earn as much as they are capable of earning to meet their obligation to support their children. 19 Before a judge can change a maintenance order that has already been made, there has to be a material change of circumstances since the original order was made. That is, the change must be of the kind that, if known by the judge when the last order was made, would have resulted in a different order. The change must be significant and long lasting. Otherwise, there will be uncertainty, which is not in the best interests of children. 20 A judge does not have to change an order granted before the Guidelines came into force, to conform with the Guidelines [Federal Child Support Guidelines] just because a parent asks. Instead, an order will only be changed where the arrangements the parents or a previous court made are seen as unreasonable

when compared with the arrangements that would result from the application of the Guidelines after taking into account all the relevant factors. 21 The cancellation or reduction of arrears of maintenance is a form of variation. There are two points that have to do with arrears that should be kept in mind. 22 Because cancellation or reduction of arrears is a form of variation, there is a substantial onus (a heavy duty) on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances. 23 The courts are generally reluctant to reduce or to cancel arrears. Under the Family Relations Act arrears will not be reduced or cancelled unless it is grossly unfair not to do so. This principle is similar to the one applied to the Divorce Act, which requires a material and long lasting change. [Emphasis added.] [21] I note that the present variation, because of the context within which the original order was granted, will be pursuant to the Divorce Act, so the test is whether there has been a "material and long-lasting change". [22] Then at paragraphs 27 and 28 Madam Justice Martinson makes further helpful observations: 27 People making this argument have a heavy onus. It is not good enough just to say that they could not pay because they earned less. They can only get a reduction or a cancellation of arrears if

they present detailed and full financial disclosure, under oath (usually in the form of an affidavit) that: i. the change was significant and long lasting and ii. the change was real and not one of choice and iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful. 28 The requirement that the information be under oath is an important one. A decision to cancel or reduce arrears can only be made on reliable, accurate and complete information. The Rules of the Supreme Court say that this can only be made based on sworn evidence unless a judge says otherwise. No judge will allow evidence that is not reliable and accurate. [23] The helpfulness of this reasoning has been affirmed at the appellate level as well, for example, Ghislieri v. Ghislieri, 2007 BCCA 512. [24] First, I draw distinction between the present case and those arrears cases in which no issue is taken with the amount of support originally ordered and the payor parent seeks cancellation primarily on the basis of the unlikelihood that he will ever be able to pay them, because of their size and his or her dismal employment prospects. Examples of this are decisions such as Labell v. Labell, 2006 BCCA 45, or Longstaff v. Longstaff, 49 R.F.L. (3d) 1 (B.C.C.A.). In those kinds of cases, judges have quite properly referred to the possibility of an upturn in

circumstances or a windfall of some kind that would make it possible to pay the arrears and have therefore declined to cancel them. [25] Without excusing Ms. Ahrens's non-appearance to contest the divorce and child support order, the reality in this case is that the amount of support was arrived at without any financial information from her. Even prior to the Guidelines, I do not think that child support payments totalling $3,000 per year would have been ordered from a person earning about $9,000 per year. Even if such an order would still have been made, I find that it would have been "unreasonable when compared with the arrangements that would result from the applications of the Guidelines after taking into account all relevant factors," as described in Earle. I am satisfied that, as envisioned in the Earle decision, a different order would have resulted had Ms. Ahrens's true financial circumstances been known, either at the time the order was made or in the ensuing years. [26] I also find that her financial disclosure on his application has been the sort of "reliable, accurate and complete" information contemplated by Earle, and I accept, based on it, that her income from 1995 to 2001 was even lower than at the time of the order, ranging from a high of $8,050 to a low of $5,680. [27] I also accept that since 2002 she has been unable to work in the United States, as she

deposes. [28] There is no question that she delayed bringing these circumstances forward until the FMEP began to take more severe steps to enforce the arrears. [29] I am also mindful that support is the right of the child, one that cannot be compromised by any actions by the recipient parent and that a court order speaks and is binding from the time of its pronouncement until and unless it is set aside. [30] Having acknowledged these considerations however, I am nonetheless satisfied that Ms. Ahrens's very limited means at the time of the original order and in the ensuing years, as well as her quite reasonable belief between the years 2001 and 2009, based on Mr. Martin's lack of contact with FMEP, that arrears were no longer being pursued, justify my revisiting the support amount even at this late date. [31] In this regard, I should say that I am not attaching any weight to the hearsay allegation in Ms. Ahrens's affidavit that Mr. Martin's current wife told her that he was not pursuing child support through FMEP because he did not want to receive income that he would have to declare. I do not know why he fell out of touch with FMEP over those years, and I impute no ill motive to him. [32] I should also emphasize that delay in enforcing a child support obligation has no effect on the obligation itself. It goes only to the issue of the reasonableness of the payor parent's

expectations, when he or she is explaining a delay in seeking a variation. [33] Accordingly, I am satisfied Ms. Ahrens has met the heavy onus of showing a material change, in the sense of a meaningful difference between the earnings that were imputed to her in her absence at the hearing of the divorce and her actual circumstances from that time until today. I find that the situation was significant and long-lasting, that it did not arise by choice and that she made every effort to earn additional income, though unsuccessfully. [34] I think the fair result based on these findings is to require her to pay those arrears that represent what she should have paid based on her income had the Guidelines been in effect and, after they came into effect, pursuant to the Guidelines. Billie-Jean was always entitled to support from Ms. Ahrens but this should have been paid at the level that she was actually able to pay. [35] My order is therefore as follows: 1. That from 1995 to 2001 the existing arrears are reduced to that amount in each of those years that would have been payable for Ms. Ahrens's income, as set out in her financial disclosure in this application, pursuant to the current Guidelines.

2. From 2002 onwards, while I do not find that she has been intentionally unemployed in any bad faith sense, I do consider that her choice to live in the United States under visa conditions that prevented her from being able to work for such an extended period has deprived her of the ability to earn any income to meet her child support obligations. Therefore, for the years 2002 to 2009 I am going to impute an income to her of $14,000 per year, which I think is a fair estimate of what she could have earned had she not placed herself in a situation in which she could not work legally. Child support arrears will be reduced to the Guidelines amounts for that imputed income for each of those years and for the portion of this year until Billie-Jean went to live with Ms. Ahrens's sister in Ontario on August 12th.

3. Mr. Martin claims that he continues to provide financial support to Billie-Jean since she left his care but, unfortunately, he has not quantified the amount or regularity of such support. Ms. Ahrens denies that any support is being paid. I am hoping to arrive at a resolution of this impasse that will avoid the expense to the parties of further court proceedings. Therefore, I am suspending Ms. Ahrens's ongoing obligation as of August 12th of this year to pay child support to Mr. Martin in accordance with the income that I have imputed to her, until he provides her with complete financial disclosure in Form 89 and documents to her any financial support that he has given to Billie-Jean after August 12th. When he has done that, Ms. Ahrens will pay to him that portion of each of his documented payments for Billie-Jean's benefit that represents the proportion of the income that I have imputed to her to his current income. Immediately upon obtaining paid employment, Ms. Ahrens shall provide updated financial disclosure and shall share proportionately in Mr. Martin's payments in accordance with her actual income from that point on. This regime will remain in place as long as Billie-Jean remains a child of the marriage.

4. The arrears being sought by the Family Maintenance Enforcement program will be reduced to accord with the reduced arrears that I have described in this order. As Ms. Arhens remains in default of her obligations, albeit in what I expect will be a reduced amount, I will not vary or suspend any enforcement action that has been taken or may be taken by FMEP. I expect that she will be able to place herself in good standing with that institution relatively promptly. [36] I should emphasize that in reaching this decision I am not seeking to licence child support scofflaws or to condone wilful neglect of court orders. What sets this apart from the usual requests simply to reduce arrears is the convincing proof that, from the outset, Ms. Ahrens has never had the ability to pay the ordered amount. This is in accordance with the requirement of Mr. Justice Finch, as he then was, in Cherry v. Cherry, 22 R.F.L. (4th) 432 (B.C.C.A.) at paragraph 15 that there be: . . . a change in circumstances such that the [payor parent] was unable to pay during the time that the arrears accumulated or at the present time. [Emphasis added] [37] To much the same effect, see Llewellyn v. Llewellyn, 2002 BCCA 182 and Basi v. Basi, 2007 BCSC 1814, in which long-term accumulated arrears were analyzed as variations pursuant to s. 17 of the Divorce Act dating back to the time when those arrears began to

accumulate. [38] The only difference here is that the arrears began to accumulate immediately because Ms. Ahrens did not contest the order. But, in my view, there is no difference in principle between her situation and that of any payor parent who seeks to vary an order to cancel or reduce arrears long after he or she could have returned to court to address it. To leave the arrears undisturbed in these circumstances because Ms. Ahrens did not contest the order or move to modify it until now would be, in my view, to apply the law rigidly and mechanically and to ignore the reality of the situation. [39] Given the substantial success that Ms. Ahrens has had in this application, she will be entitled to her costs. "Schultes J."