N.C.W. v. R.C.W.

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: N.C.W. v. R.C.W., 2004 BCSC 906 Date: 20040707 Docket: E5025 Registry: New Westminster Between: N.C.W. Plaintiff And R.C.W. Defendant Before: The Honourable Mr. Justice Joyce Reasons for Judgment The plaintiff appearing in person The defendant appearing in person Date and Place of hearing: June 7, 2004 New Westminster, B.C. [1] The plaintiff applies to cancel arrears of child support, interest thereon and default fees charged by the Director of Family Maintenance Enforcement that have accumulated pursuant to a child support order. [2] On November 12, 1999 the plaintiff was ordered to pay basic support for the parties' two children in the amount of $350 per month commencing December 1, 1999, increasing to $510 per month commencing November 1, 2000, based on a guideline income of $36,528 per year. She was also ordered to pay a portion of extraordinary expenses, which amounted to $1,366. [3] At the time the support order was made the plaintiff was a school teacher with the Nanaimo School District. The plaintiff's contract was not renewed for the 2000/2001 school year and in September 2000 she took up a position teaching school in a First Nation's village in the N.[ ] Valley. I cannot determine from the evidence the plaintiff's income from her new teaching position because she has not provided complete financial information,

including her T4 slips. [4] The plaintiff deposes that she began to experience anxiety attacks beginning in November 2000, which worsened to the point where in February 2001 her physician recommended that she take sick leave and leave the N.[ ] Valley. In April 2001 she relocated to Kelowna. She began to see a psychiatrist in May 2001. [5] The plaintiff received disability insurance for a period of 4 months after February 2001. [6] In September 2001 the plaintiff accepted a part-time teaching position with the Kelowna School District. This was basically a half-time position. The plaintiff has not provided documentary evidence with regard to her salary from the Kelowna School District. However, she reported employment income for 2002 in the amount of $13,040 on her income tax return, which would represent 6 months' income (January to June) or $21,730 over the school year. [7] The plaintiff's contract with the Kelowna School Board was not renewed at the end of June 2002 and she was placed on the Teacher on Call list for September 2002. It is not clear from the evidence whether any teaching work was available for the plaintiff beginning in September 2002 but if it was she did not accept it. The plaintiff made an attempt to start up a business making metalwork but it never made any money. The plaintiff received $6,332 in employment insurance benefits during 2002. [8] Other than the

failed attempt to start a business, there is no evidence the plaintiff has sought employment, whether full-time or part-time. There is no evidence from any medical professional with respect to her ability to work. She last attended her psychiatrist in the Spring of 2002. [9] In February 2004 the parties consented to an order fixing the amount of ongoing support at $157 per month for the two children. The plaintiff consented to an order that upon the older child becoming financially independent (which has now occurred) the amount of child support would remain at $157 for the remaining child. That level of support is required of a person who has a guideline income of 18,687. [10] With respect to arrears, the plaintiff was current with her maintenance payments at the end of July 2001. Arrears, interest and fees from that date to February 29, 2004 are as follows: Support payments $ 7,579.10 Interest 542.15 Default fees 1,200.00 $ 9,321.25 [11] The plaintiff submits that if the child support obligation is recalculated based on her earnings as reported in her tax returns for 2001 to date she has overpaid her support obligation by some $3,500. Accordingly, she seeks cancellation of all arrears including interest and default fees. [12] The defendant, on the other hand, takes the position that the plaintiff has been voluntarily unemployed or underemployed during the past three years and

says that none of the arrears should be cancelled. He takes no position with regard to the default fees nor, apparently does the Director of Family Maintenance Enforcement who did not appear to oppose that part of the order. [13] I am satisfied that the plaintiff did suffer emotional problems that resulted in her not being able to maintain employment at the same level as when the order was made and that the diminution in income was long standing. I am further satisfied that had she made an application for variation at an earlier date she would likely have been successful in having the amount of support reduced somewhat. However, I am not satisfied that her actual income or her ability to earn income was reduced to the level suggested by her. I am satisfied that she did not act reasonably in attempting to establish a business rather than use her professional skills. [14] I conclude, therefore, that the plaintiff is entitled to a partial reduction in the arrears. I propose to retroactively vary the amount of child support payable from August 2001 until March 2004 (31 months) based on a guideline income of $22,000 per year. The amount payable is $10,168 and the amount actually paid was $8,234. The arrears are therefore reduced to $1,934 plus interest, which I will fix at $140. I will cancel the default fees. "B.M. Joyce, J." The Honourable Mr. Justice B.M. Joyce