W.D.M. v. R.A.M.

2013 BCSC 1239 W.D.M. v. R.A.M. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: W.D.M. v. R.A.M., 2013 BCSC 1239 Date: 20130712 Docket: 28876 Registry: Kelowna Between: W.D.M. Claimant And R.A.M. Respondent Before: Master Young Reasons for Judgment Appearing on her own behalf: W.D.M. Appearing on his own behalf: R.A.M. Counsel for Family Maintenance Enforcement Program: V. Beier Place and Date of Trial/Hearing: Kelowna, B.C. April 30, 2013 Place and Date of Judgment: Kelowna, B.C. July 12, 2013 [1] By notice of application filed February 20, 2013, the claimant, Ms. M, applied for an order to have my previous order dated January 4, 2012, complied with. She asked for the following orders: 1. To have the respondent pay the outstanding amount owed under my previous order for maintenance ($5,201.04 for the rest of the school year and $2,647.04 for payment due August 1, 2012). 2. To have the respondent pay 72 percent of the school and living expenses for PM (the "child"), which total $13,000 and $811, and have the respondent pay the amount of $703 per month. 3. To have the respondent show proof of all payments made to PM or to Selkirk College. 4. To have the respondent pay directly to the claimant any amounts found to be owing. 5. To establish a definite date when the respondent must pay all monies owing to the claimant for costs pursuant to my January 4, 2012 order. 6. To clear the credit which appears on the Family Maintenance Enforcement Program documents in the amount of $1,907.37. 7. To have the respondent pay a $5,000 fine for each court ordered item he disobeyed pursuant to the court order of January 4, 2012. 8. To set a fair and more accurate rate of child maintenance from the years 2000 to 2012. 9. To have the Supreme Court of British Columbia make these orders final orders. 10. Costs. [2] On the same day, February 20, 2013, the Family Maintenance Enforcement Program (the "FMEP") filed a notice of application requesting the following: 1. To credit a portion of the costs owing to [the claimant] pursuant to the order of Master Young dated January 4, 2012 against the credit on the Family Maintenance Enforcement Program Account Statements as of January 3, 2012 to reduce any credit on that file to a zero balance. 2. A declaration that [the respondent] has defaulted on the payments due under Master Young's order of January 4, 2012 in that he failed to pay [PM] the sum of $5,207.04 by the end of the school year for 2011/2012 which ended March 31, 2012 and, as such, all payments due after that date should have been made to [the claimant] and paid through the Family Maintenance Enforcement Program. [3] I was not aware that the FMEP had an application until the hearing date, as it was not included in the materials filed by the claimant. I was also not aware, until Ms. Beier explained it to me, that the parties had entered into an oral agreement to vary child support in October 2005 increasing support to $810 per month. The parties did not document this agreement, and therefore FMEP could not alter their books to show that the increased amount $810 per month was owing. The respondent continued to pay $810 per month pursuant to the oral agreement until August 2006. By then, FMEP's records showed an accumulated a credit of $1,907.37. [4] Commencing September 20, 2006, when their eldest child became independent, the parties confirmed in writing that they had agreed to a reduction in child support to $500 per month for the one remaining child. As a result of the overpayments and the subsequent adjustments to arrears I made in my January 4, 2012 order, the FMEP statement reflected a credit of $2,477.78 as at the end of December 2011. The claimant and FMEP have asked that I vary this credit so that there would be a zero balance as of January 1, 2012. [5] Both parties agree that this oral agreement had been entered into in 2005 and that the respondent was paying pursuant to that oral agreement. He did not pay more than that to which they orally agreed. Order 1 [6] I will therefore retroactively vary the child support to reflect what the parties agreed to in October 2005: that the respondent pay the claimant $810 per month, and that commencing September 2006, he pay $500 per month for the support of one child. By this order, it is my intention to erase any credit showing on the books on January 1, 2012. If because of interest or penalties there is not a zero balance on January 1, 2012, I order that any arrears, interest, penalties or surplus be cancelled. The January 4, 2012 Order [7] In the January 4, 2012 order (the "order"), the respondent was to pay the claimant: 1. $1,800 for child support for the period from November 16, 2010 to April 1 2011. 2. child support in the amount of $400 per month for the period from May 1, 2011 to and including August 1, 2011. [8] In the order, the respondent was to pay the claimant or the college: 3. $8,717.04 towards [PM's] school and living expenses for the 2011/2012 school year. He has contributed $3,510.00 to these expenses thus far and so must pay the remaining balance of $5,207.04 for the rest of the school year. [9] In the order, the respondent was to pay the claimant the following if PM was living with her: 9. $400 [payable to the claimant] per month during the summer of 2012 (April to August) [10] There is no sworn evidence from the respondent setting out what he paid. Most of the payments were made to PM, and the respondent did not provide proof of payment to the claimant. There is a detailed reply prepared by the respondent's former counsel, but not sworn, setting out a record of payments made by him. I have relied on the record of payments because they appear to be confirmed by the claimant; I do not agree with the calculation of arrears. [11] Interestingly, the three calculations of arrears provided to me by the claimant, the respondent and FMEP are completely different. A common error is that they neglect to apply the payments first to the two outstanding lump sums of $1,800 (set out in para. 1 of the order) and $1,600 (set out in para. 2 of the order) before applying payments to the $5,207.04 owing for school fees. [12] The FMEP statement credits a payment of $3,724.07 toward the lump sums of $1,800 and $1,600 when, in fact, that payment was part of the respondent's school fee obligation, which is contained in paragraph 3 of the order and referred to in paragraph 47 of my reasons. I ordered the respondent to pay the balance of $5,207.04, and I acknowledged that he had paid $3,510 based on the evidence before me. [13] In his reply, the respondent asks for credit for the $1,840 he paid to Selkirk College for residence fees on September 1, 2011. At the hearing, I thought this amount was already acknowledged in the $3,510 credited to him at paragraph 47 of my reasons as set out in paragraph 3 of the order. Now after reviewing the respondent's e-mail to the claimant on February 26, 2012 (attached as Exhibit B-1 to her affidavit), I see that there were two payments for PM's residence. The first term residence fee was paid in July 2011 in the amount of $1,965, and this was credited as part of the $3,510 credit. Unbeknownst to me, there was a second payment of $1,840 to the college for residence fees for second term. The respondent should get credit for this amount. [14] The following is my calculation of arrears owing prior to the September 2012 semester of the 2012/13 school year. References to the "order" and to paragraph numbers refer to my January 4, 2012 order. Date Description Amount Owing Amount Paid Running Total Arrears January 4, 2012 Para. 1 of the order: child support for November 16, 2011 to April 1, 2011 $1,800.00 $1,800.00 January 4, 2012 Para. 2 of the order: child support for May 1, 2011 to August 1, 2011 1,600.00 3,400.00 January 4, 2012 Para. 3 of the order: balance owing on school fees for 2011/12 school year 5,207.04 8,607.04 September 1, 2011 Term 2 residence fee credited to para. 3 school fees $1,840.00 6,767.04 December 26, 2011 Credited to para. 3 school fees 160.00 6,607.04 December 12, 2011 Credited to para. 3 school fees 200.00 6,407.04 January 16, 2012 Credited toward para. 1 re: $1,800 lump sum 400.00 6,007.04 February 13, 2012 Credited toward para. 1 re: $1,800 lump sum 400.00 5,607.04 February 22, 2012 Para. 1: $1,800 lump sum paid in full and partial payment toward para. 2 re: lump sum $1,600 child support 1,400.00 4,207.04 Undated Avalanche beacon credited toward para. 3 school fees 220.00 3,987.04 April10, 2012 Credited toward para. 2 re: $1,600 lump sum owing 800.00 3,187.04 April 14, 2012 Para. 2 re: $1,600 lump sum paid in full 400.00 2,787.04 May 1, 2012 Para. 9 summer child support 400.00 3,187.04 May 3, 2012 $400 for para. 9 child support and $400 credit to para. 3 school fees 800.00 2,387.04 June 1, 2012 Para. 9 summer child support 400.00 2,787.04 July 1, 2012 Para. 9 summer child support 400.00 3,187.04 February 7, 2012 400.00 2,787.04 July 3, 2012 Paid re: para. 9 summer child support for June and partial for July 700.00 2,087.04 August 1, 2012 Para. 9 summer child support 400.00 2,487.04 August 7, 2012 Paid re: para. 9 summer child support 400.00 2,087.04 [15] The respondent has made certain defaults in paying my order. He also failed to provide proof of payments to the claimant. Pursuant to paragraph 11 of the order if he defaulted, the claimant would be granted liberty to enforce the order, which means that the payments should be made to her. She was the one who ended up paying the tuition shortage so that PM could attend his second year. Order 2 [16] I therefore order the respondent to pay to the claimant $2,087.04 owing as at August 1, 2012. 2012/2013 School Year [17] At Exhibit D to her affidavit sworn January 14, 2013, the claimant set out a budget for PM's school fees for the second year. It is not challenged; therefore, I do accept that the total educational fees and living expenses for the second year were $13,811. The USC college plan did pay $3,000 of this amount. PM was responsible for paying $3,000. Pursuant to paragraph 7 of the order, the balance after government grants and PM's contribution was to be divided between the parents in the ratio of 72 percent by the respondent and 28 percent by the claimant. The respondent's contribution was to be $5,623.00. Date Description Amount Owing Amount Paid Running Total September 1, 2012 to April 30, 2013 RAM's contribution to PM's school and room and board for second year $5,623.00 $5,623.00 September 1, 2012 Payment by RAM to PM 400.00 5,223.00 September 26, 2012 Payment by RAM to PM 500.00 4,723.00 October 25, 2012 Payment by RAM to PM 1,000.00 3,723.00 November 28, 2012 Payment by RAM to PM 500.00 3,223.00 December 25, 2012 Payment by RAM to PM 500.00 2,723.00 January 28, 2013 Payment by RAM to PM 500.00 2,223.00 February 22, 2013 Payment by RAM to PM 800.00 1,423.00 March 31, 2013 Payment by RAM to PM 500.00 923.00 Subtotals: 5,623.00 4,700.00 923.00 May 1, 2013 Costs owed to the claimant after PM graduates 2,700.00 3,623.00 May 1, 2013 Costs owed to FMEP after PM graduates 1,305.00 4,928.00 Unknown Date Flight to Australia for PM 1,400.00 Not Child Support Unknown Date Australian Visa application for PM 200.00 Not Child Support Total owing under the order: $4,928.00 [18] In his reply, the respondent sought to have the cost of the flight to Australia and the visa credited toward the outstanding payment, but at the hearing, he said that he was not seeking that relief. These were gifts and not child support payments. Order 3 [19] The respondent is ordered to pay to the claimant the sum of $923 child support arrears. The orders for the payment of costs have already been made. Retroactive Award [20] At paragraph 15 of the order, I ordered the respondent to produce a sworn form F-8 financial statement and to complete all sections of the form and attach income tax returns for any and all companies to which he held a controlling interest for the years 2000 to 2011. At paragraph 55, I said: [55] The respondent has been in breach of Madam Justice Beames' order to produce financial disclosure since 1999. The claimant has requested that I fine him under s. 92 of the Family Relations Act. Tempted though I may be, there was no application brought by the claimant for this relief, so I will not fine the respondent. However, I will order that he produce a sworn form F‑8 financial statement and that he complete all sections of the form and attach all completed income tax returns and corporate financial statements and tax returns for any and all companies to which he holds a controlling interest for the years 2000 to 2011. This disclosure is to be filed by requisition no later than February 1, 2012, and a copy delivered to the manager of Supreme Court scheduling, indicating that it is to be brought to my attention. A copy of the complete financial statement is to be delivered to Ms. Beier of FMEP, and a complete copy is to be delivered to the claimant by no later than February 1, 2012. [21] In 1999, Madam Justice Beames found the respondent's income to be $45,480 and ordered him to pay child support of $710 per month, which was slightly higher than the Child Support Guidelines table amount but was in keeping with the spirit of the parties' separation agreement. [22] The claimant applies for a retroactive variation of child support based on her assessment that the respondent did not disclose increases in his income. I have reviewed the form F-8 with its 392 pages of attachments and summarize the income as follows: Year Line 150 Income Description Corporate Income Notional Child Support Payable on Income 2000 $28,950.00 reassessed at $38,666 Dividend, rental loss and self‑employment $592.00 2001 12,050.27 reassessed at $61,529 Net business income and rental loss 993.00 2002 41,722.00 Net business income and rental loss (must have added back some expenses into income) - over 16k in vehicle expenses and business use of home 635.00 2003 Tax return missing but assessment $45,800 Net business income and rental loss $696.00 2004 66,473.00 From assessment RRSP and net business income - business income was $40,490 996.00 2005 57,499 Net business income 870.00 2006 17,225 Business income M.C.S. Ltd. incorporated May 2006 $70,997 corporate income for M.C.C. Ltd. paid as dividend in 2007 269.00 2007 76,500 Dividend from M.C.S. Ltd. actual dividend before grossing up for tax $61,200 $50,909 corporate income from M.C.S. Ltd. - see dividend paid in 2008 925.00 2008 55,000.00 Dividend from M.C.S. Ltd. actual dividend before gross up for tax $44,000 408.00 2009 62,500.00 Dividend from M.C.S. Ltd. actual dividend before tax gross up $50,000 $60,767 corporate income for M.C.S. Ltd.- see dividend paid in 2009 465.00 2009 Loss for O.S. Ltd. (19,734.00) 2010 50,000.00 Dividend from M.C.S. Ltd. actual dividend before tax gross up $40,000 $64,188 corporate income from M.C.S. Ltd. - see dividend in 2010 370.00 2010 Loss for O.S. Ltd. (13,697.00) [23] There were years where the respondent's income was higher than that assessment by Justice Beames, and there were years when it was lower. The respondent continued to pay $771 per month. In 2006, he agreed to increase the payment to $881 voluntarily, and he paid that amount until the parties' eldest child became independent. Then by verbal agreement, he started paying $500 per month for PM. [24] The claimant seeks a lump sum of $13,000 in retroactive support. This request ignores the fact that the parties did enter into oral variation agreements on two occasions and, at the time, seemed to be content with the agreements. The blameworthy conduct that the respondent is guilty of is failing to provide the updated disclosure, as he was ordered to do by Justice Beames. Now, he has done that pursuant to my order. [25] There were years where child support would have increased beyond what he was paying had he disclosed his income in a timely fashion, and there were a few years where he could have applied to reduce child support but did not. [26] Retroactive awards are discretionary. [27] I have considered the changes in the respondent's income, the consistent payments he did make, the oral agreements that the parties entered into, and one further factor, which I will set out below. [28] PM's paternity has been in question since he was two years old. Despite that, the respondent refused to have DNA testing because he always treated PM as his son. If he was not his biological son, the respondent did not want to know. He went as far as to apply for an order, which Master Bishop granted on December 9, 2008, that: neither the [claimant] nor the [respondent] shall, at any time, discuss in the presence of [PM] any issues with regard to paternity without there first being a Court Order directing that there be biological testing of the relevant parties to determine paternity; [29] The respondent never breached that order. He never sought to have his child support obligations reduced by ascertaining if there was a biological father who could shoulder the lion's share of the support obligation. However, the claimant did breach the order. It has caused a great deal of strain on PM, who now feels guilty asking the respondent for any support. [30] If there is blameworthy conduct here, then it is the claimant who is guilty of it. I cannot in good conscience exercise discretion to order any retroactive lump sum of child support. It is likely that the respondent has paid far more than he would have if another biological father had been identified. Order 4 [31] I will award the respondent costs of $1,000 to express the court's displeasure at the claimant breaching Master Bishop's order, and I order that this $1,000 be a set-off against the costs that the respondent is ordered to pay her. Conclusion [32] The following is a summary of my orders: · I will therefore retroactively vary the child support to reflect what the parties agreed to in October 2005: that the respondent pay the claimant $810 per month, and then commencing September 2006, he pay $500 per month for the support of one child. By this order, it is my intention to erase any credit showing on the books on January 1, 2012. If because of interest or penalties there is not a zero balance on January 1, 2012, I order that any arrears, interest, penalties or surplus be cancelled. · I order the respondent to pay to the claimant $2,087.04 owing as at August 1, 2012. · I order the respondent to pay to the claimant the sum of $923 child support arrears. · I will award the respondent costs of $1,000 to express the court's displeasure at the claimant breaching Master Bishop's order, and I order that this $1,000 be a set-off against the costs that the respondent is ordered to pay her. Costs [33] Costs of $2,700 were previously ordered and are now payable by the respondent to the claimant as PM has graduated, but I have set off costs in the amount of $1,000. [34] The respondent is to pay $1,700 costs to the claimant and $1,305 costs to FMEP. [35] The total owed by the respondent to the claimant is $4,710.04. "B.M. Young" Master Barbara M. Young