D.A. v. S.A.

2014 BCSC 1769 D.A. v. S.A. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: D.A. v. S.A., 2014 BCSC 1769 Date: 20140911 Docket: E004539 Registry: New Westminster Between: D.A. Claimant And S.A. Respondent Before: The Honourable Mr. Justice Abrioux Oral Reasons for Judgment Claimant/Respondent to the Application: Self Represented Counsel for Respondent/Applicant: Carla Lewis Place and Date of Hearing: New Westminster, B.C. August 26, 2014 Place and Date of Judgment: New Westminster, B.C. September 11, 2014 Table of Contents I: INTRODUCTION. 3 II: BACKGROUND. 5 III: CORRECTING THE ORDER. 7 IV: VARIATION AND ARREARS OF CHILD SUPPORT. 7 A: The Applicable Principles. 7 B: The Parties' Positions. 9 C: Discussion. 11 V: MISCELLANEOUS. 13 I: INTRODUCTION [1] I shall be providing the parties with these reasons for judgment in written form. I may make stylistic and editorial changes but the substance of these reasons for judgment will not change. [2] The respondent (the applicant) applies for the following orders: 1. That the order of Mr. Justice Burnyeat dated February 11, 2000 (the "Order") be corrected to include the provisions regarding special and extraordinary expenses that were omitted from the order. 2. That the monthly support payable by the claimant to the respondent for C.E.M.A., born June 11, 1994 and O.B.M.A., born October 22, 1997, (the "Children") pursuant to the Order in the sum of $1,400.00 per month be varied to the amount of support that is appropriate under the Federal Child Support Guidelines, S.O.R./97-175, prospectively, and retroactively to February 11, 2000 or such other date as this Honourable Court may determine. 3. An order that the claimant pay the respondent his share of special and extraordinary expenses for the Children, prospectively, and retroactively to February 11, 2000 or such other date as this Honourable Court may determine. 4. An order that the claimant shall not speak to the Children, or in their presence, about this litigation or speak negatively about the respondent. [3] A summary trial took place before Mr. Justice Burnyeat in February 2000. At that time Burnyeat J. made several orders (the "Order"), certain of which were final in nature in that they related to family property and were made pursuant to the Family Relations Act, R.S.B.C. 1996, c. 128. The orders in question on this application were silent as to whether they had been made pursuant to the Family Relations Act or the Divorce Act, R.S.C. 1985, c. 3. Accordingly, I find they were interim orders under the Divorce Act that became final orders under that Act when an order for divorce, which was silent with respect to corollary relief, was subsequently granted: Yu v. Jordan, 2012 BCCA 367 at paras. 47-57. [4] If I am in error in reaching this conclusion regarding the nature of the orders under the Divorce Act, then they were final orders under the Family Relations Act. In either case, the principles that apply to this application are substantially the same. [5] The Order was entered on August 25, 2000. [6] The amounts sought are significant. They include $58,223 for arrears of child support and $40,166 for Section 7 expenses as of January 2014, being a total of $98,389. [7] Unlike many applications of this kind, this proceeding does not involve questions of the claimant's ability to pay. He is a professional software engineer who has earned more than $100,000 for several years. His 2012 income tax return indicates that his income for that year was approximately $116,500. In 2013, it was approximately $124,000. [8] The claimant, Mr. A., has declined to provide a Form 8 financial statement on the basis that he views this to be irrelevant. That is because it is his opinion that his daughters lack for nothing at the present time and their future needs are secure in that he has substantial savings of $38,000 on their behalf in an RESP. He advised the court he has $40,000 in savings, approximately $250,000 in RRSP's, and equity of approximately $310,000 in the townhouse in which he lives and which is registered in his name alone. [9] The applicant is a legal assistant. In 2013 her income was approximately $56,000 including employment income of $34,000, employment benefits of $8,500 and RRSP income of $13,000. [10] Mr. A., who represented himself on this application, stated that he had the ability to retain counsel but chose not to. That is because he wanted to be "engaged" in the process. When this matter proceeded to a summary trial in 2000 he was represented by counsel. At that time the applicant was self represented. [11] Mr. A. stated during submissions that he was prepared to pay the entire amount sought by the applicant as long as the necessary protection was present such that the funds be spent on the Children and not used by the applicant for herself. This statement indicates the concerns that Mr. A. has towards his former spouse and I shall refer to those later in these reasons for judgment. [12] For the reasons that follow the application is, in large part, granted. II: BACKGROUND [13] Paragraphs 1 to 18 of Part 2 of the Notice of Application set out most of the pertinent background: 1. The parties were married on January 8, 1994. 2. There are two children of the marriage, [C.E.M.A.], born June 11, 1994 and [O.B.M.A.], born October 22, 1997 (the "Children"). 3. The parties separated on March 27, 1998. 4. The parties attended a summary trial before Mr. Justice Burnyeat on February 11, 2000. The claimant was represented by counsel, Cecil Ash. The respondent was unrepresented. 5. Mr. Justice Burnyeat rendered oral reasons on February 11, 2000, which included the following provisions which are relevant to this application: a. The parties would share joint guardianship of the Children, and the respondent was granted sole custody. b. The [C]hildren were to reside primarily with the respondent, and the claimant was granted access. c. The claimant was to pay child support of $ 1,400 per month. d. The respondent was to provide the claimant with copies of receipts for childcare monthly and the claimant was to pay 5/6ths of the special and extraordinary expenses. e. The parties were to exchange financial information annually to review and adjust support payments. f. The claimant's lawyer was to provide a copy of the draft order to the respondent for comments, and if she had objections to the form, she was to advise within 10 days. If the claimant's counsel had not heard from the respondent within 10 days, he could enter the order. The respondent's signature on the form of order was dispensed with. g. If there was anything that needed to be clarified, they could have a telephone conference. 6. Counsel for the claimant, Mr. Ash, sent a draft of the Order to the respondent on July 18, 2000. 7. A memorandum from Mr. Ash to the New Westminster Law Court Chambers Registry, dated July 18, 2000, indicates that Mr. Ash submitted a draft of the Order to the court on July 18, 2000. The memorandum does not state that the draft was not to be entered until Mr. Ash had heard from the respondent. This memorandum refers to Mr. Ash having a transcript of Mr. Justice Burnyeat's oral reasons and the clerk's notes. 8. The Order was entered on August 25, 2000. 9. The Order states that the respondent is to send the claimant copies of receipts for special and extraordinary expenses, but does not refer to the claimant contributing to those expenses. The clerk's notes and the transcript of Mr. Justice Burnyeat's reasons state that the claimant was to pay 5/6ths of special and extraordinary expenses. 10. The respondent asked the claimant on various occasions to contribute to the Children's special and extraordinary expenses. The claimant responded that she would have to pay for those expenses from the child support that she received. 11. The claimant did not provide his financial information annually or at all. He paid different amounts of support from month to month. 12. The claimant contributed to some special and extraordinary expenses, for example, orthodonture. He decided how much he would pay. 13. The Children live with the respondent, and spend three weekends per month with the claimant. 14. [C.] began attending Simon Fraser University in the fall of 2012 and has completed second year. She hopes to attend a business program in Norway, starting in January of 2015. 15. [C.]'s university costs have been paid from a Registered Education Savings Plan saved by the respondent, by scholarships and by [C.]'s savings from part-time employment. 16. On June 11, 2013, [C.] turned 19. The claimant stopped paying child support for her. 17. On October 1, 2013, the respondent's lawyer wrote to the claimant advising that he should pay support for [C.], and that the child support paid since 2000 needed to be reviewed. 18. The claimant provided tax information for most of the years in question, as a result of which it appears that the shortfall between what he had paid in monthly child support and what he should have paid according to the Child Support Guidelines is approximately $58,233. He should have contributed an additional $40,166 toward special and extraordinary expenses. [14] The claimant says that he has always provided for the Children's needs and they have not suffered financially in any way since 2004. [15] He acknowledges that he does owe certain arrears in child support until the fall of 2013. At that time he was made aware that he had been basing his support payments on outdated support guidelines. He has, since then, been making payments based on the applicable guidelines amounts. III: CORRECTING THE ORDER [16] The Order did not make reference to special and extraordinary expenses that were to be paid by the parties. [17] I have reviewed a transcript of the proceedings before Mr. Justice Burnyeat and the correspondence pertaining to what occurred thereafter. [18] It is clear to me that the Order should be corrected to include the provisions regarding special and extraordinary expenses: Lochhead v. Lochhead, 2011 BCSC 1662 at para. 20. Although not expressly consented to by the claimant, he does appear to acknowledge that an error was made. IV: VARIATION AND ARREARS OF CHILD SUPPORT A: The Applicable Principles [19] An order reducing or cancelling arrears is a retroactive variation of child support, so the court must consider the factors in section s. 17(4) of the Divorce Act, that is, if there has been a material change in circumstances. [20] In S. (D.B.) v. G. (S.R.), 2006 SCC 37 at para. 38, the following core principles were established by the Supreme Court of Canada: · child support is the right of the child; · the right to support survives the breakdown of the child's parents' marriage; · child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; · the amount of support will vary based on the income of the payor[.] [21] In Green v. Green, 2002 BCSC 576 at para. 19, Mr. Justice Crawford summarized the decision of Madam Justice Martinson in Earle v. Earle, 1999 BCSC 283, with respect to the principles governing applications to reduce or cancel arrears of child support. Those that are pertinent on this application include: 1. The onus is on the applicant seeking to reduce or cancel arrears to show a change in circumstances; 2. Arrears will only be cancelled if the applicant is unable to pay now and unable to pay in the future; 3. The applicant must provide full financial disclosure under oath that the change in financial circumstances is significant and long lasting, the change was not the result of choice, and efforts were made to earn money, but were unsuccessful; [4.] Delay in enforcement is generally not a factor in arrears of child support; [5.] support is the right of the child; [6.] Arrears will not be cancelled because someone else had provided financial assistance to the children; [7.] Money spent directly on the children is not a factor[.] [Emphasis added]. [22] While the "grossly unfair" test which resulted from the Family Relations Act is not specified in the Divorce Act, it is similar to the latter's test which requires a material and long lasting change: Earle v. Earle at para. 23. The "grossly unfair" principle has been found appropriate for consideration on variation applications under the Divorce Act: S.A.R. v. L.G.R., 2011 BCSC 712 at para. 45; Lewis v. Lewis, 1999 CanLII 5273 at para. 16, [1999] 2 R.F.L. (5th) 417 (B.C.S.C.). [23] Since C. is now an adult, the questions include: · is she a "child of the marriage?" · is this challenged by the claimant? · has he proven that the strict application of the Child Support Guidelines under section 3 (1) is inappropriate? · what is the appropriate amount of support? Swiderski v. Dussault, 2008 BCSC 1629 at paras. 31-32 and 53; De Beck v. De Beck, 2012 BCCA 465 at paras. 56-57. [24] Additional principles that apply on this application include: · blameworthy conduct by a parent is anything that privileges the payor's interests over the children's right to appropriate support: S. (D.B.) v. G. (S.R.) at para.-106; · failure to disclose relevant financial information in a timely manner is blameworthy conduct: E.R.H. v. B.W.H., 2009 BCCA 573 at paras. 45-47; · indirect contributions to the child's support do not excuse the payor's failure to disclose income and adjust child-support payments accordingly: Swiderski v. Dussault (BCSC) at para. 89; · it is not for payor spouses to create their own support regime. The receiving parent is usually the one making decisions about the child's expenditures. A private unilateral scheme operated by the payor can be a method of control that undermines the authority of the custodial parent. In addition, since the payor is in the sole possession of the information about direct payments, unless he is forthcoming about such payments in a timely way, the payee is at the mercy of the payor's record-keeping; Swiderski v. Dussault, 2009 BCCA 461 at para. 39; · the fact a payor makes additional payments does not make them an appropriate substitute for those that should be paid in accordance with the relevant table amounts. It is not for the payor to present him or herself in a more positive light to the children and others while leaving the custodial parent in the position of funding more mundane daily living expenses. Greene v. Greene, 2010 BCCA 595 at paras. 75-78. B: The Parties' Positions [25] The applicant's position includes: · the Children have not lived according to the standard of living commensurate with a father earning more than $100,000, but rather one who has earned $40,000 to $50,000. The economic circumstances of the claimant are now known. He has demonstrated no hardship; · the claimant has had effective notice of the Order since 2000. He knew it provided for an annual review of support based on current financial information, which he had an obligation to disclose. His blameworthy conduct caused that not to occur; · the calculation of the Arrears takes into account the fact that the claimant did not work for one and a half years in 2001 and 2002; · the claimant has and continues to earn significantly more than the applicant and yet she has still saved funds for an RESP for the Children. It is not for the claimant to decide where the support payments are spent; · this application was not brought earlier in large part because the claimant was uncooperative in providing financial information, the applicant's own financial circumstances and the claimant's involvement of the Children and third parties in the litigation, which dissuaded her from applying sooner; · other than child support, the applicant has had to bear all of the Children's expenses even though her income has been one-sixth to one-third of the applicant's. Between 2000 and the present she has retrained, worked and provided the primary residence for the two children. Her energy and resources were fully committed to meeting the Children's needs. [26] The claimant's position includes: · the Children have not suffered over the years. He only ascertained in the fall of 2013 that what he had been paying was based on an old table amount, not the current table. He acknowledges there was a shortage of support from 2004 until the fall of 2013; · he has the funds to satisfy his support and section 7 obligations. He will pay the amounts that are owing as long as there is a way for him or the court to monitor that it is spent on the Children; · he should decide how and when the Children, particularly C. should receive the funds. C. has demonstrated the maturity that would justify her receiving funds for post-secondary education. O., who is still in high school, has not. He points to what he perceives to be a decrease in her academic standards; · the applicant cannot be trusted with any additional funds that are paid in relation to the Arrears. She will use them for her own purposes, not the Children. In particular, she will use them to support herself and her boyfriend. If she has significant debts this arises as a result of not managing her funds properly. C: Discussion [27] It is evident from the claimant's submissions that he has chosen to live a frugal lifestyle. He has a personal philosophy that includes minimizing debt and accumulating savings that are only to be used in times of demonstrable need. [28] He is also highly suspicious of the applicant and her lifestyle, which he perceives to be contrary to his own personal philosophy. He equates her financial problems with fiscal mismanagement. In his response to this application and during submissions, he made many negative comments about the applicant that are completely unsupported by the evidence that he chose to place before the court. [29] And yet he is clearly an involved and caring father, although from a financial perspective, this has been on his own terms. He sees his daughters regularly and is involved in their education. [30] He has also accumulated a significant amount in an RESP for the Children together with personal savings. He has considerable equity in his home. [31] What the claimant does not appreciate, consciously or otherwise, is the fact that these savings and the increase in the equity of his home have resulted, in part, from his failure for many years to fully comply with his legal obligations to support the Children. [32] In particular, he has not provided the applicant with the financial information that she required such that annual adjustments in his support obligations could occur. [33] When I apply the principles to which I have referred to the circumstances of this application, I cannot accept the claimant's submission that he should decide how the Arrears should be spent. One of his arguments is that a portion of the Arrears could be paid to the applicant with the balance being paid into an RESP under his control. [34] I have concluded that the claimant has essentially no defence to the relief sought by the applicant. To decide otherwise would be contrary to the principles to which I have referred. C. remains a child of the marriage. The claimant's conduct for many years is akin to attempting to put his own regime of child support in place and to prefer his own financial interests in the form of RRSPs, savings and increasing the equity in his home to those of the Children. [35] During submissions I requested the parties to make inquiries as to the viability of transferring the RESP in the claimant's name to the applicant. I have since received correspondence to the effect that this can be accomplished without difficulty. [36] Accordingly I make the following orders: (a) the Order is to be corrected such that it now includes provisions regarding payment by the parties of their proportionate share of section 7 expenses; (b) the Order is varied such that monthly child support for C. and O. is to be in accordance with the applicable Child Support Guidelines, retroactively to February 11, 2000 and prospectively; (c) the claimant shall pay the applicant his proportionate share of section 7 expenses retroactively to February 11, 2000 and prospectively; (d) payment of the amount owed by the claimant for child support and section 7 expenses from February 11, 2000 to September 30, 2014 is to be made by: · transferring to the applicant forthwith and in any event within 30 days of this order, Invesco Family Plan RESP account number 14859069, and · paying the balance of child support and section 7 expenses owing as at September 30, 2014 to the applicant by October 10, 2014. V: MISCELLANEOUS [37] The applicant seeks an order that the claimant not speak negatively to the Children about her or in their presence about this litigation. [38] C. is now 20 years old. O. will soon be 17 years old. They are aware of this application. In light of their ages they should be advised of the outcome. With this exception, neither of the parties is to discuss the litigation with the Children. [39] The applicant also seeks an order that the claimant not speak negatively about the respondent. She points to what he has said to the Children about her, in particular, that she is attempting to take his money from him and that it will have to come from what he has saved for their education. She says the Children appear upset by these comments. [40] In addition, the claimant's application response and his affidavit make serious accusations as to the applicant's alleged irresponsible and neglectful conduct towards the Children. [41] I accept the applicant's submission that if there were any substance to these allegations, then the claimant would have applied for sole custody many years ago. [42] This behavior is contrary to the Children's best interests, which include protection of their mother from improper conduct by the claimant. There will be an order that the claimant not speak negatively about the applicant to the Children, to the applicant herself or to third parties. [43] I also order that the claimant provide a current F8 financial statement within 15 days. [44] The applicant also seeks special costs. The basis for such an award is that a party has engaged in "reprehensible conduct" that includes "conduct worthy of reproof or rebuke" in the course of the litigation. [45] The claimant, although he had the financial means, chose not to be represented by legal counsel. Had he obtained advice he may well have ascertained that his position had little if any merit. [46] The claimant's response to the application was certainly misguided and to some degree inappropriate. He alleges that having to respond to the application has also affected his ability to perform his employment duties. For that, he has only himself to blame. [47] While the claimant's conduct does approach and may well have reached that which is worthy of reproof or rebuke, I decline to make an award for special costs. To do so would, in my view, be overly punitive. The claimant has been ordered to transfer the RESP to the applicant. In addition, he will have to make a substantial payment to her in the immediate future. These are very real consequences for his behaviour over the years. They are also a reminder that any similar conduct in the future will likely result in further proceedings being brought against him. [48] The applicant is awarded her costs for this application at scale B on a lump sum basis. What amount is the applicant seeking? [Submissions regarding costs]. [49] On January 17, 2014, the applicant offered to settle the relief sought for the amount of $55,000. This was the approximate amount of the Arrears not including the section 7 expenses. [50] I summarized the applicable principles in Bideci v. Neuhold, 2014 BCSC 1212 at paras 51-56. [51] The offer ought reasonably to have been accepted for the reasons set out in these reasons for judgment. This application was unnecessary. The applicant presents a bill of costs in the amount of approximately $5300 including disbursements. [52] When I apply the principles relating to costs to which I have referred, I now conclude there must be some significant costs consequences to the claimant. The applicant is awarded the sum of $7500 on a lump sum basis including disbursements and taxes [53] During submissions on costs, the claimant also raised the issue of an email he sent to Supreme Court Scheduling after this application was heard on August 26, 2014. I was advised that applicant's counsel did not object to the email being forwarded to me. As I indicated to the claimant on September 11, 2014, I had not seen the email prior to delivering these reasons for judgment that day. [54] I have now located the email and reviewed the attachments. They contain budgets prepared by the claimant for the years January 2004 to August 2014. They confirm the claimant's personal financial philosophy to which I have referred in these reasons for judgment. [55] The budgets do not cause me to change the conclusions I have reached with respect to this application. "Abrioux J."