MacGrotty v. MacGrotty

2014 BCSC 317 MacGrotty v. MacGrotty IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: MacGrotty v. MacGrotty, 2014 BCSC 317 Date: 20140228 Docket: 4554 Registry: Courtenay Between: Jeanne Janet MacGrotty Claimant And Paul MacGrotty Respondent Before: The Honourable Mr. Justice Halfyard Reasons for Judgment Claimant appeared on her own behalf: Counsel for the Respondent: K.D. Stevan Place and Date of Hearing: Courtenay, B.C. December 13, and 19, 2013 Place and Date of Judgment: Courtenay, B.C. February 28, 2014 The Application of Paul MacGrotty [1] There are two applications before the court. The first application is that of the respondent, Paul MacGrotty ("the father") which was filed on August 7, 2013. In his application, the father seeks to vary the final order made by Mr. Justice Metzger on May 29, 2009. That order required the father to pay to the claimant Jeanne MacGrotty ("the mother") child support for their daughter Cassandra in the amount of $906.00 per month commencing May 1, 2009. The order also required the father to pay $100.00 per month to the mother for special expenses for Cassandra, commencing January 1, 2009. The child support order was based on a Guideline Income for the father of $100,000.00 for 2009. [2] These parties separated in 1994, and were divorced a few years later. [3] The facts from which the father's application arises are, in summary, the following. [4] Cassandra was born on April 5, 1993, so she is now 20 years of age. She turned 19 on April 5, 2012, but she remained a child of the marriage until September 30, 2012, having been in attendance at a post-secondary educational institute in Vancouver until then. [5] Cassandra had moved away from her mother's home in Courtenay in August 2011, lived with her father for a short time, and then commenced her post-secondary studies in Vancouver in September 2011. She was able to contribute almost $6,000.00 towards her living expenses, but her tuition costs were about $36,600.00, her school supplies cost about $1,500.00 and her living expenses (including rent, clothing, travel, dental care, medical insurance, vehicle insurance, toiletries and computer) amounted to about $13,000.00. [6] The father paid $906.00 in child support to the mother, from the date of the order until July 31, 2011. It appears that he also paid her the $100.00 per month for special expenses, up to July 2011. The father then unilaterally decided to stop making any payments of child support or special expenses to the mother. He made no voluntary payments to her at all, for the 14 month period from August 1, 2011 to September 30, 2012. [7] The father alleges that during that 14 month period, Cassandra incurred educational and living expenses of more than $51,000.00 and that he paid more than $43,000.00 of those expenses (by making payments to Cassandra or on behalf of Cassandra). The father knew that the mother did not agree with his terminating payments to her. The Family Maintenance Enforcement Program (FMEP) collected just over $4,000.00 from him by way of garnishing proceedings in December 2011. [8] Cassandra ceased to be a child of the marriage after September 30, 2012. On November 29, 2012, the father filed a notice of application which was somewhat similar to his present application. But that earlier application was never brought to hearing. Instead, he filed a new application on August 7, 2013. I would paraphrase the orders being sought by the father in his Notice, as follows: a) An order declaring that his obligation to pay child support for Cassandra be terminated as of July 31, 2011; b) An order that his obligation to pay special expenses for Cassandra be terminated as of June 2010; c) An order cancelling the arrears of child support that accumulated under the order for the 14 months from August 2011 through September 2012 ($9,434.31 as of December 6, 2013). d) An order cancelling the interest on the said arrears as calculated by FMEP ($500.62) as of December 6, 2013). e) An order cancelling default fees claimed to be owing by FMEP ($400.00, as of May 1, 2012). [9] The material change in circumstances relied on by the father is that Cassandra had moved out of the mother's home near Courtenay by August 2011, to pursue post-secondary education. The mother denies that Cassandra moved out of her home until December 2012. The mother acknowledges that Cassandra was living in Vancouver while attending at the educational institute. But she says that Cassandra came to her home for visits at various times during that 14 month period and that she (the mother) maintained Cassandra's bedroom for her, and kept most of Cassandra's belongings for her. [10] The mother opposes the father's application on several grounds, including the following: a) He stopped making child support payments to her, without her consent and without a court order. b) She contributed $7,000.00 towards Cassandra's tuition costs and living expenses, during the period in question, which she did in reliance on receiving payment of the arrears owing under the court order. c) In any event, the father received far more than $100,000.00 in income, in the years 2010 and 2012, without disclosing the increases in his income to her. [11] It is implicit in the mother's defence to the father's application that he should have paid far more child support than he did, since the making of the May 29, 2009 order, and that the difference between what he should have paid and what he did pay, would equal or exceed the amount of arrears that he seeks to cancel. The mother submits that the father's application should be dismissed, with the result that he will be required to pay the arrears in full. The Application of Jeanne Janet MacGrotty [12] The mother filed her application on August 8, 2013. She claims multiple orders, but I would paraphrase the central parts of the relief she is seeking, as follows: a) An order requiring the father to pay the outstanding balance of the arrears which accumulated between August 1, 2011 and September 30, 2012. b) An order imputing a Guideline Income to the father in an amount much higher than $100,000.00 (at least for the years 2010 and 2012). c) An order varying the May 29, 2009 order so as to require the father to pay much higher child support to the mother, retroactively, for the years 2010 and 2012 (and an order to enforce payment of the difference to her). d) An order requiring the father to pay her the sum of $5,000.00, as a penalty for his failure to comply with disclosure orders made on October 1, 2007 and May 27, 2013, pursuant to s.92 of the Family Relations Act and s.213 of the Family Law Act. [13] The father did not file his application response until November 27, 2013 (about 3 ½ months after the mother's notice of application was filed). He opposed the granting of all orders sought by the mother, except for her claim for $117.75 post judgment interest for costs that he had been previously ordered to pay, by February 25, 2010. But in the response, the father admitted that he had control of MacGrotty Consulting Ltd. during the years from 2010 to 2012, and admitted that the company's income was $122,123.00 in 2010 and $246,286.00 in 2012. At the hearing it was admitted that this was income in addition to his employment income to him, of about $67,000.00 in 2010 and $35,827.00 in 2012. [14] In response to the allegation of non-disclosure of financial information, the father alleged that he had fully complied with the disclosure order made on May 27, 2013. Material Change in Circumstances [15] Notwithstanding the mother's assertion that Cassandra had not moved out of her house until December 2012, I find that she did not live at her mother's home during any part of the 14 month period in question, and that the father has established a material change in circumstances. Accordingly, there is a foundation for the court to reconsider the order made by Mr. Justice Metzger on May 29, 2009. [16] The mother's application for the second and third orders she claims, cannot be entertained. The mother is seeking an award of retroactive child support for an adult child who was no longer a "child of the marriage," when she filed her application on August 8, 2013. The authorities establish that, in these circumstances, a parent has no standing to apply for retroactive child support. See de Rooy v. Bergstrom 2010 BCCA 5, at paras. 63-65; Crepnjack v. Crepnjack 2011 BCCA 177, at para. 29. [17] However, the mother can claim for payment of the arrears, and for a remedy for the father's alleged non-disclosure. Moreover, the facts that the father admittedly received incomes in 2010 and 2012 that were far greater than the $100,000 Guideline income imputed to him by the order of May 29, 2009, are relevant to both of those aspects of her application. [18] The issues on the two applications are inter-connected. I will assess the father's application first. The Father's Application [19] In her affidavit material, the mother has conceded that the father paid about $42,000.00 of Cassandra's educational and living expenses during the 14 months from August 1, 2011 through September 30, 2012. On the hearing, the mother sought to challenge some of the payments that the father and Cassandra claim were made by the father. However, I am satisfied that the father did pay about $42,000.00 of the expenses in question, which I find amounted to about $51,000.00 in total. [20] The mother alleged that she paid about $7,000.00 towards Cassandra's education and living costs during the same 14 months period. That assertion was denied by Cassandra, who has deposed that her mother contributed about $1,800.00 to her education expenses, and just a few hundred dollars more, for living expenses. Cassandra and her mother have each sworn several affidavits relating to this issue, and there are a great many conflicts in their evidence. [21] The conflicting affidavits are very detailed, and obviously a considerable amount of thought was put into them. I was unable to understand why the parties placed so much importance on the amount of support that had or had not been paid by the mother. It appeared that the father was claiming that these expenses should be considered special expenses and the mother seemed to agree with that. The father then asserted that these expenses (which totalled about $51,000.00) should be apportioned 80% to him, and 20% to the mother, based on a reading of the May 29, 2009 order and an earlier order. If that formula was used, then the father would be required to pay $40,800.00 and the mother would be required to pay $10,200.00. From that foundation, the father seemed to argue (which seems borne out by the last page of his counsel's outline of argument) that the mother should be required to pay him the difference between what she did pay, and the sum of $10,200.00. It was claimed that the mother should make a lump sum payment to the father, to rectify the unfairness of him paying more that his 80% share of these expenses. That seemed to be the motive for challenging the mother's claim that she paid $7,000.00 of Cassandra's expenses during the period in question. [22] I am unable to resolve the major conflicts in the evidence between Cassandra and her mother, as to the amounts that the mother did or did not pay towards Cassandra's special expenses and living expenses. It does appear to me that the mother probably did spend the approximate $7,000.00 as she claimed. But I am not persuaded that all of these expenses could properly be considered as a contribution towards Cassandra's special expenses or living expenses. The mother suggested that Cassandra had changed her evidence in several instances, by accepting her mother's evidence as to some items, after originally having denied them. There were a few such instances, but I am far from being satisfied that these changes would justify a rejection of Cassandra's evidence on other disputed points. [23] Doing the best I can, I find that the mother contributed about $4,000.00 towards Cassandra's special expenses and living expenses for the time period under consideration. I will return to the father's submission that the mother should pay him a lump sum for the difference between what she paid ($4,000.00), and the amount represented by 20% of the special expenses (about $10,200.00). [24] The father withheld payments of child support and special expenses to the mother, for 14 months. The total of those monthly payments was $1,006.00 x 14 months = $14,084.00. That is the amount that he was required to pay under the order of May 29, 2009. F.M.E.P. recovered $4,024.00 from him in December 2011, and so he was compelled to pay part of those arrears, which leaves a balance of $10,060.00. He must have paid some further amount at an earlier time, because the arrears claimed are $9,434.31. [25] One of the father's submissions was that his obligation to pay $100.00 for special expenses should be terminated as of June 30, 2010. If he is right, then he should not be required to pay $100.00 per month for the 27 months from July 2010 through September 30, 2012. That would amount to a deduction of $2,700.00 from the arrears. [26] The father's argument on this issue was that the special expenses of $100.00 per month were intended to cover guitar lessons specifically, and he says that Cassandra stopped taking guitar lessons in June 2010. I am unable to accept the father's position. The order is clearly worded so as not to require the mother to justify special expenses in any amount, for any purpose. The order required the father to continue to pay $100.00 per month in special expenses, until September 30, 2012. [27] The father's position shortly before the date of the hearing was that his Guideline Income for the years 2009, 2010, 2011 and 2012 was considerably less than the $100,000.00 imputed to him on May 29, 2009. It was argued that he had substantially overpaid his child support obligation for Cassandra up to July 2011 and that these overpayments should be taken into account in his favour. At the hearing, he abandoned any claim which would require the mother to reimburse him for such alleged overpayments. [28] It did appear from the evidence that the father's Guideline income for 2009 and 2011 was less than $100,000.00 (i.e., about $81,774.00 for 2009, and about $86,199.00 for 2011). [29] The father's recent admission that his income in 2010 was about $188,000.00 and his income in 2012 was about $282,000.00 eliminates all support for his arguments that he overpaid the child support required by the order up to July 2011, and that he was being charged too much, thereafter. [30] That leaves the father's argument that he paid more than his 80% share of Cassandra's special expenses for post-secondary education, while the mother paid less than her 20% share of those expenses. If the 80-20 proportion is applied, it appears that the father's payment of $42,000.00 was $1,200.00 more than his 80% share ($40,800.00) and that the mother's payment of $4,000.00 was $6,200.00 less than her 20% share ($10,200.00). Having regard for the father's admitted income of $282,000.00 in 2012, Cassandra's contribution of $6,000.00 and the mother's low income. I would not grant the father much credit against the arrears, on this ground. It may be a factor to be taken into account, in his favour. But it cannot be given much weight, because the evidence indicates that the mother's income was less than $20,000.00 during the time period in question. [31] My decision on the issue of whether the arrears should be cancelled or reduced requires consideration of the mother's applications to enforce payment of the arrears and to require the father to pay a penalty. The issues are intertwined. [32] The mother claims for payment of the arrears, plus a penalty. Non-disclosure of financial information is at the heart of both of her applications. The context for considering this allegation includes the facts alleged by the father in his notice of application filed August 7, 2013. In his notice, the father alleged that his actual Guideline Incomes for the years from 2009 to 2012 were the following: 2009 $74,706.00 2010 67,858.00 2011 77,896.00 2012 35,827.00 [33] The father then alleged (in paragraph 7 of the Factual Basis) that he had overpaid child support, by $13,150.00. In paragraph 11 of the Factual Basis, the father alleged that the mother's imputed income of $25,000.00 was 40% of the parties' total income in 2012. [34] When the father filed his first Notice of Application on November 29, 2012, he was "seeking to . . . change an order for child support." As a result, by the operation of Family Rule 5-1(1)and (2) he was required to file his "application income documents" and serve them on the mother within 30 days after he served his Notice of Application. In this case, the father's "applicable income documents" were the following: a) A copy of every personal income tax return filed by the father for each of the three most recent taxation years; b) A copy of every notice of income tax assessment or re-assessment issued to the person for each of the three most recent taxation years; c) A document or documents to prove his total current income for employment for 2012, up to the date of the application; d) The financial statements of his company, together with a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to the father. [35] The father did not serve any of the documents required by these Rules, within 30 days of serving his Notice of Application on November 29, 2012. The mother demanded disclosure of financial information, and on May 27, 2013, Mr. Justice Thompson made a disclosure order against the father. There is a dispute as to what was ordered, and the terms of the order were never settled. But it is common ground that the court ordered the father to produce his personal income tax returns for the years 2009 through 2012, together with current income information. [36] In his affidavit sworn November 28, 2013, the father gave evidence to the effect that he delivered the personal income tax returns ordered by Thompson J. to the mother, "in June 2013". [37] The documents alleged to be the father's personal income tax returns for the four years 2009 through 2012 were presented to the court as Exhibits "A" to "D", attached to the affidavit of John Marshall, sworn August 6, 2013. Mr. Marshall is executive assistant to counsel for the father. In this affidavit, each income tax return is referred to in the same way (except for the 2012 tax return which is additionally described as being "condensed"), as follows: Attached as Exhibit ____ is a copy of the T-1 General . . . Canada Revenue Agency Income Tax and Benefit return provided to [counsel for the father] by Paul MacGrotty. [38] The evidence about the father's income tax returns given by Mr. Marshall amounts to this: Counsel for Mr. MacGrotty told me that Mr. MacGrotty gave these Income Tax returns to her and told her that they were his Income Tax returns. [39] That is double hearsay (and perhaps triple hearsay) and would ordinarily be inadmissible. [40] The father has not given any affidavit evidence in which he identifies the documents attached to Mr. Marshall's affidavit as being true copies of his income tax returns which he filed with the Canada Revenue Agency. Nor has he given any evidence to the effect that the facts stated in his personal income tax returns are true. But the lengthy hearing of these applications, of necessity, was based on the acceptance of Mr. MacGrotty's income from employment for the years 2009 to 2012, as being the amounts stated in these documents. [41] At some point in time which is not clear from the evidence, counsel for the father informed the court (or the mother, or both) that the father had a business or was operating a business through a company. Thereafter, the mother demanded production of the income tax returns and the financial statements of the company or business, for the years from 2009 through 2012. It is unclear whether the court made any direction for disclosure of this corporate income information, but counsel for the father quite properly accepted that the information should be disclosed. [42] A new application was filed on behalf of the father on August 7, 2013. The mother's application was filed on August 8, 2013. Thereafter, the mother has acted on her own behalf. [43] It was not until December 5, 2013 (less than a week before the scheduled date for the hearing) that the father delivered income information relating to his company, to the mother. That income information was presented to the court as an Exhibit to the affidavit of the father sworn November 28, 2013. In that affidavit, the father made numerous responses to evidence contained in the mother's affidavit No. 5 sworn August 8, 2013. The only reference to the company income information is one sentence which is not numbered and which is mixed in with the father's responses, as follows: - attached as Exhibit "A" is a copy of the corporate tax returns and financial statements for 2010 to 2012 for MacGrotty Consulting Ltd. [44] The father does not depose that any of these documents are true copies of documents filed with the Canada Revenue Agency, nor does he swear to his belief that the facts stated in the documents are true. The corporate tax returns are dated July 4, 2013 for 2010, and September 17, 2013 for 2011 and 2012. [45] With respect to the father's personal income tax returns that were attached to the affidavit of Mr. Marshall sworn August 6, 2013, none of the four are signed and only the tax return for 2009 is dated (June 25, 2013). No explanation has been given by the father for why he failed to report any dividend income in 2010 or 2012, why none of his tax returns were signed, why only one of them was dated or why no tax returns (personal or corporate) were prepared until the summer of 2013. His counsel suggested that income information relating to the father's company did not become relevant until the mother filed her application on August 8, 2013, claiming retroactive child support. That cannot be so, having regard to the disclosure requirements of Family Rule 5-1. [46] There is other evidence relevant to the issue of non-disclosure. The mother's evidence (affidavit No. 4 sworn October 21, 2011, Exhibit "L") shows that she sent a registered letter to the father dated October 21, 2011, requesting delivery of his income tax returns for 2009 and 2010. Her evidence also indicates that the father did not sign for that registered letter and so it was returned to her. However, the mother's affidavit No. 4 also shows that, by March 2012, the father knew that she was demanding updated income information. By letter dated March 31, 2012 to the mother, counsel for the father delivered his T-4 slips for 2009, but counsel apparently had not received any other information from the father. No explanation was offered for the father's failure to comply with the mother's disclosure demand. [47] After the father filed his application on November 29, 2012, without making disclosure of any financial information, counsel for the mother wrote to counsel for the father in January 2013, requesting an updated financial statement and income tax documents. No financial information was provided, and then came the order of Thompson J. made on May 27, 2013 (which may have been a date that had been set for the hearing of the father's application). It was in this context that the father made his late, incomplete and unsatisfactory disclosure of financial information. [48] If, as the father claims, none of his income tax returns, or the tax returns for his company were prepared until the summer of 2013, then it is understandable that he could not provide any income tax assessments or re-assessments issued by the Canada Revenue Agency for the years 2009 to 2012. There would appear to be no reason to reject that evidence, and I accept it. But there is no explanation for why the father did not file his personal or corporate tax returns in a timely manner. And there is no explanation for his failure to deliver all of the financial information that was available to him, at the time he filed his first application. [49] Although the financial information presented by the father by way of documentary evidence was sadly deficient, the hearing of these applications proceeded (due to necessity and expedience) on the basis that the information contained in his personal tax returns and in the tax returns and financial statements of his company were correct. The mother's main complaints were that the father failed to make timely disclosure of increases in his income and that he falsely represented his income to be far less than it actually was, for the years 2010 and 2012. I find that those facts have been conclusively proved. [50] It was not clear to me that the earlier order made on October 1, 2007 required the father to deliver updated financial information to the mother each year regardless of whether or not the mother made a request for such information or provided him with her updated financial information. However, it has been shown that the mother tried to demand disclosure in October 2011, and that she was effectively demanding updated financial information from the father by March 2012. Then, when the father filed his application on November 29, 2012, the Family Rules of Court required him to make full financial disclosure as I have previously described. He continued to fail to make any proper disclosure until after being ordered to do so on May 27, 2013. Even then, he failed to report any dividend income on his personal income tax returns, which reported only his income from employment. It was not until several months later, after repeated requests by the mother that the father finally made disclosure of the existence of his company and the income that he received by way of dividends from his company. Nor did the father disclose his non-taxable income benefits until December 5, 2013. [51] In S (D.B.) v. G (S.R.), [2006] 2 S.C.R. 231 (at para. 124) the court stated: . . . Not disclosing a material change in circumstances -- including an increase in income that one would expect to alter the amount of child support payable -- is itself blameworthy conduct. . . . [52] The inference is inescapable that the father knew that he was being paid large sums of money by his company, in the form of dividends, beginning in 2010. His failure to disclose this income was clearly "blameworthy conduct" within the meaning established by the courts. But there is an additional aggravating factor. With knowledge that there had been substantial increases in his income for the years 2010 and 2012, the father represented to the court that his income for each of those years was far less than the Guideline Income of $100,000.00 imputed to him in the order of May 29, 2009. In my opinion, the father could not reasonably have believed that he was meeting his child support obligations as required by the Guidelines. The increases in his income were simply too great to permit such a belief. And there has been no attempt to explain why he did not report these increases to the mother or why he falsely represented his Guideline incomes in his notice of application dated August 7, 2013.. [53] It has not been shown that there was unreasonable delay on the part of the mother in seeking an increase in child support. There has been blameworthy conduct on the part of the father. These factors would have weighed in favour of making a retro-active award of child support, if the mother had standing to claim it. [54] In my opinion, the mother has established a foundation for claiming enforcement of the arrears and a penalty against the father. Should the arrears be enforced, or cancelled or reduced? [55] Although Cassandra was not living with her mother during the 14 months in question, I would not terminate the father's obligation to pay child support as of July 31, 2011. I must consider his application for cancellation of the arrears. [56] A parent who applies to cancel or reduce arrears under a child support order must satisfy the court that it would be grossly unfair not to do so. See s.96(2) of the Family Relations Act and s. 174(1) of the Family Law Act. [57] The father is compelled to rely almost exclusively on the fact that he paid about $42,000.00 of special expenses for Cassandra's post-secondary education during the time period in question. [58] For the 14 months from August 2011 through September 2012, the order required the father to pay $14,084.00 in child support and special expenses to the mother. He paid nothing to the mother, but he paid over $42,000.00 for Cassandra's educational and living expenses during that same period. However, a parent who is required to pay child support under an order does not have unilateral power to choose what the child support money will be spent on. The father failed to apply to vary the order until after it had run its course. No explanation for that delay has been offered. [59] I think it is relevant to determine the difference between the amount of child support and special expenses that the father was required to pay under the order (for the period from May 1, 2009 through September 2012) and the amount that he would have been required to pay for that 3 ½ year period, if the child support payments had been based on his actual incomes in each of those years. I will make calculations for each of those years in turn. 2009 [60] The order required the father to pay $1,006.00 per month for Cassandra ($906.00 for child support and $100.00 for special expenses), for the eight months from May 1, 2009 to December 31, 2009. That amounts to $8,048.00. The father's Guideline Income was imputed to be $100,000.00 under the order, but it was actually $81,774.00. Accepting his counsel's calculations, he should have paid $765.00 per month in child support, and $100.00 per month in special expenses, which is eight months x $865.00 per month = $6,920.00. That means there was an "overpayment" of $8,048.00 - $6,920.00 = $1,128.00. 2010 [61] For the twelve months in 2010, the order required the father to pay $1,006.00 per month for 12 months, which is $12,072.00. But the father had an income of about $188,000.00 that year. Accepting counsel's calculation, the Guidelines required him to pay the sum of $1,351.00 per month in child support, which totals $1,351.00 x 12 = $16,212.00. I would add $1,200.00 for special expenses for the full year, which makes the total amount that the father should have paid to be $17,412.00. But he paid only $12,072.00, and so he underpaid by $17,412.00 - $12,072.00 = $5,340.00. 2011 [62] For the twelve months of 2011, the order required the father to pay $12,072.00 in child support and special expenses. But the father's Guideline Income for that year was only $86,199.00. Accepting counsel's calculations, the Guidelines required him to pay $745.00 per month in child support. That would be a total of $745.00 x. 12 = $8,940.00 in child support for the year. I would add $1,200.00 for special expenses, which makes a total of $10,140.00. Thus the father "overpaid" by $12,072.00 - $10,140.00 = $1,932.00. 2012 [63] For the nine months ending September 30, 2012, the order required the father to pay 9 x $1,006.00 = $9,054.00. But the Guideline Income of the father was about $282,000.00 for that year. The father's counsel made no submission about what the father should have paid versus what he did pay. The current Guidelines say that the monthly child support for one child on that income would be $1,302.00 (Basic) plus .78% of his income over and above $150,000.00 (namely, $132,000.00). The additional amount would be .0078 x $132,000.00 = $1,029.60. The total of these two amounts ($1,302.00 + $1,029.60) is $2,331.60. For the nine months ending September 30, 2012, the father's actual Guideline income would have required him to pay $2,331.60 x 9 = $20,984.00. But the order required the father to pay $100.00 per month in special expenses, and so a further $900.00 must be added, making a total of $21,884.00. If Cassandra had been living with her mother from January through September of 2012, the father should have paid $21,884.00 in child support and special expenses, but the order required him to pay only $9,054.00. The difference is $12,830.00. [64] The notional overpayments in 2009 and 2011 total $3,060.00. The notional underpayments in 2010 and 2012 total $18,170.00. The net result is that, based on his actual Guideline Incomes, the father should have paid $15,110.00 more than he was required by the order to pay, for the period from May 1, 2009 to September 30, 2012. But that observation rests on the assumption that Cassandra was living with her mother during the 14 months in question. [65] During the 14 months period from August 1, 2011 through September 30, 2012, the father paid no child support or special expenses to the mother. The order required that he pay her $14,084.00. But the father paid $28,000.00 more than that amount, for education - related expenses, to or for Cassandra. It is true that Cassandra remained a child of the marriage while pursuing her post-secondary education, and that if it had been necessary, the father could have been compelled by the court to pay the major share of special expenses (80%), having regard to the ongoing low income of the mother. But Cassandra did not live with her mother, and so the mother's need for child support was sharply reduced after August 1, 2011. [66] Consideration of the factors in s.96(3) of the Family Relations Act (and the similar factors in s. 174(2) of the Family Law Act) does not favour the father. His failure to make timely disclosure of financial information that would have increased his child support payments, also weighs against him. I accept that the mother contributed about $4,000.00 to Cassandra's expenses, during the time when the arrears were accumulating, and when her income was quite low. She was entitled to expect that some child support would be paid to her, in the absence of an application by the father to vary the order. [67] In these circumstances, I am far from being persuaded that it would be grossly unfair not to cancel all of the arrears owing under the order. But I am satisfied that it would be grossly unfair not to reduce the arrears. I think a reduction is necessary to prevent an unfair windfall to the mother. I order that the arrears be reduced to $5,000.00. [68] The order that I made on December 19, 2013, temporarily restraining the Family Maintenance Enforcement Program from collecting the arrears owing under the May 29, 2009 order, is set aside. I am not satisfied that the interest on arrears of $500.62, or the $400.00 default fee should be cancelled. Interest will accumulate on the $5,000.00 until such time as it has been paid in full. Should the Father be required to pay a penalty? [69] With respect to the mother's application, the remaining issue is whether the father should be ordered to pay a sum of money as a penalty for his non-disclosure, and if so, in what amount? [70] Family Rule 5-1(28) authorizes the court to make orders against a party who fails to comply with the disclosure requirements of Rule 5-1. The authority includes power to impose a fine against the offending party under s. 92(1) of the Family Relations Act or under s. 213(2) of the Family Law Act, or to require the offending party to pay an amount not exceeding $5,000.00 to the opposite party. The power under s. 92 of the Family Relations Act is similar to the court's authority under s.213 of the Family Law Act, but the Family Law Act particularizes the kinds of non-disclosure that may be penalized. The relevant parts of s. 213 states as follows: Enforcing orders respecting disclosure 213 (1) This section applies if a person (a) fails to comply with . . . (ii) a requirement to disclose information in accordance with the Supreme Court Family Rules . . . , within the time or in the manner required by the order or Rules, or (b) provides information that is incomplete, false or misleading. (2) In the circumstances set out in subsection (1), the court may do one or more of the following: . . . (d) make an order requiring the person described in subsection (1) to pay . . . (ii) an amount not exceeding $5 000 to or for the benefit of a party, . . . whose interests were affected by the non-disclosure of information or the incomplete, false or misleading disclosure, . . . . [71] I have found that the father failed to comply with the disclosure requirements of the Family Rules within the time and in the manner required by the Rules, and that he has provided information that is incomplete, false and misleading. In my opinion the conduct of the father in this case deserves to be penalized, by requiring him to pay a sum of money to the mother. In the circumstances, I fix that amount at $2,000.00 and I order that the father shall pay that amount directly to the mother, within 30 days of this date. [72] The father agreed that he should pay the mother $117.75 in post-judgment interest arising from a previous proceeding. Accordingly, I order that he shall pay the mother that amount also within 30 days of this date. [73] I dismiss the other claims made by the mother in her Notice of Application filed August 8, 2013. Costs [74] Success has been divided on these applications, to a considerable extent. But I think the mother has achieved greater success, and that she is deserving of some of her costs. [75] I order that the mother shall recover 50% of her costs of defending against the father's application, and 50% of her costs of bringing her own application. I find that these applications involved matters of ordinary difficulty. [76] I direct that, for the assessment of costs, each of these two applications are deemed to have occupied a half day of court time. [77] During the hearing, the mother suggested that she should be paid $350.00 for attending at the courthouse in Campbell River on several occasions, when no court hearing occurred. In my opinion, that claim should not be allowed. If she was required to unnecessarily attend at court in Campbell River, due to the fault of the father (or counsel for the father), then I think she should be paid a reasonable disbursement for travel expenses. [78] The costs orders that I have made should simplify the assessment of costs, which I would expect to be done by agreement. [79] It is time that this long-standing litigation should come to an end. "D.A. Halfyard" Mr. Justice D.A. Halfyard