IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The parties to this unusual family law proceeding are the applicant D.Z.M. (“Uncle D”), his sister S.M. (“Mother S”) and his brother-in-law N.E. (“Father N”).  Mother S and Father N are the biological parents of two youths—N.E. (“Youth N”) and S.E. (“Youth S”) (collectively, the “E Youths”).  Youth N, a female, will turn 19 in early 2015; Youth S, a male, will turn 18 in late 2014.  Each of the E Youths is, accordingly, a “child” for the purposes of the Family Law Act, S.B.C. 2011, c. 25.

[2]           As can be seen, in order to remove the potential confusion that flows from having sets of initials (and nothing more) to signify the various parties and affected persons whose interests are at play in this proceeding, I have chosen to define those parties and affected persons by attaching to their initials descriptors that are based on their respective roles or identities in the extended family within which this family law dispute has arisen.

[3]           For reasons that will become clearer further on in these reasons for judgment, the applicant Uncle D has been the sole caregiver for the E Youths since August 27, 2012.  He was, undoubtedly, also a secondary caregiver alongside Mother S for almost the entirety of the E Youths’ lives before then.  In an Application filed on January 23, 2013 under the Family Relations Act, R.S.B.C. 1996, c. 228 (the predecessor legislation to the Family Law Act), he sought orders granting him custody and guardianship of the E Youths, along with orders to compel Mother S and Father N to pay to him guideline child support and certain, specified special and extraordinary expenses, retroactive to the end of August, 2012.  Uncle D also applied for orders restraining Mother S and Father N from interfering with and harassing either himself or the E Youths.

[4]           In their Reply filed on March 22, 2013, Mother S and Father N opposed the granting of all of the relief sought by Uncle D.  Moreover, they cross-applied for custody, guardianship and access of and to the E Youths.  They also sought an order “that the parties, including the Applicant, contribute to section 7 special and extraordinary expenses in proportion to their respective incomes” and a further order restraining Uncle D from interfering with or harassing them.

[5]           Between the time that pleadings closed in this matter and the hearing giving rise to these Reasons for Judgment commenced, certain important events occurred.  On March 18, 2013, the Family Law Act was proclaimed in force, redefining the legislative background against which the parties’ dispute falls to be determined.  A short while later on June 24, 2013, two important orders were made on consent, namely:

[6]           By agreement the present hearing was limited solely to the issue of child support payable by Mother S and Father N to Uncle D. 

[7]           Uncle D contends that Mother S and Father N are liable to him for guideline child support for the E Youths dating back to September of 2012 (the first full month during which they were in his exclusive care).  Mother S and Father N do not argue against the proposition that they should pay Uncle D something on account of child support; however, they question whether everything that Uncle D is seeking retroactively and prospectively, based on their guideline incomes, is properly recoverable by him, in part on the basis of their contention that Uncle D has a separate obligation to contribute toward the support of the E Youths himself.

[8]           The first exhibit to be marked at the hearing of this matter was—to the credit of both counsel—a Statement of Agreed Facts.  The filing of that statement contributed to the narrowing of the issues and to the streamlining of what, otherwise, would have been a much more lengthy hearing.

[9]           I have reproduced the Statement of Agreed facts below, more or less verbatim, but with the actual names of the parties and the subject youths obscured by the use of the initials/descriptor “names” I have previously given to the parties and subject youths in the course of drafting these reasons.

[10]        A good deal of evidence was heard at trial dealing with the difficult and unique family dynamics that surround this most atypical child support dispute.  Given however that the only point specifically now in issue is the quantum of child support that Mother S and Father N ought to pay to Uncle D now that he is both a guardian of Youth N and Youth S and their sole caregiver, I do not consider it necessary to review that evidence in great detail.

[11]        The testimony given by Uncle D is, in many respects, starkly at odds with that given by Mother S and Father N. 

[12]        I will say straightaway that in most respects, for the reasons I will briefly outline, in coming to my conclusions about the disputed facts I have generally accepted the testimony of Uncle D and rejected that of Mother S and Father N.

[13]        The evidence persuades me that Uncle D—a single man who, for most of the material time was a primary provider for his entire extended family—has played a disproportionately central role in the lives of all members of his extended family.  He has done so not by choice but by necessity.  His broader family, for a variety of evolving reasons, has almost continuously been in need of his assistance and, in the vernacular of our times, Uncle D always “stepped up”.  When the E Youths became estranged from Mother S and Father N and sought to return to live with him after a brief interval of living with their parents in a new home in Maple Ridge (between March and August of 2012), Uncle D stepped up again.  Now he finds himself their sole caregiver and, I must say based on the evidence before me, he has borne these extra responsibilities and challenges with consummate grace and goodwill. 

[14]        Up to until recently when he formally became their third guardian and sole caregiver (with their parents’ consent), Uncle D was not under any legal duty to make provision for the E Youths.  Receiving them back into his home in his new role as their sole caregiver on August 27, 2012, and becoming their third guardian by consent on June 24, 2013, has substantially transformed his life, necessitating, inter alia, changes to his working schedule and to the way he allocates his time.  He did not ask to have his life transformed in this way but he has not shrunk from accepting that wholesale change, in part (undoubtedly) as a result of an abiding love and concern for the well-being of the E Youths.

[15]        Long ago, as his (and Mother S’s) aging parents became increasingly infirm, Uncle D assumed most of the responsibilities for maintaining and funding the household in which the whole extended family lived.  He did so for many years.  He oversaw the building of a new house for the extended family and took on most of the responsibility for paying the mortgage associated with that project thereafter.  I consider it a reasonable inference from the evidence I have heard and seen—even if, as she claimed, she paid her own mother, the matriarch, $500 per month for rent and not childcare services—that Mother S derived much more by way of economic benefit from living in the home that housed her entire extended family than what she put in.  While it is true that she largely covered the cost of the E Youths’ food and clothing from the time when they were infants, the benefits she derived from having a roof over her head, and theirs, were out of all proportion to what she was able to contribute from what was, until fairly recently, a comparatively meagre income.

[16]        Father N, too, benefited materially from this unusual arrangement.  Relatively soon after the encounter with the criminal justice system that resulted from the assault he committed upon Mother S, Father N as assailant and Mother S as victim secretly rekindled and revived their relationship.  Father N was however relieved by their clandestine arrangement of most of the responsibility for making provision for Mother S and the E Youths’ daily needs for shelter and care.  I am satisfied on the evidence that his contributions to the cost of maintaining the E Youths was minimal at best.  Had it been otherwise—that is, had substantial amounts been coming in from him that Mother S could not account for—his cover would have been blown and the elaborate deception that he and Mother S devised would have been unmasked. 

[17]        Father N’s cash flow requirements, as the tenant in a small and inexpensive basement suite, were comparatively limited and so he was able to save, contribute to his favoured charities, contribute to RRSPs and make his way forward both economically and career-wise.  Indeed, he was better able to progress than he would have been had he been shouldering the full economic weight of being a full-fledged spouse to Mother S and a full-fledged parent to the E Youths.  That weight was shouldered largely by Uncle D in circumstances where, due to the sham through which Mother S and Father N kept their reunion as spouses a secret, he (Uncle D) believed that the man who had assaulted his sister, been criminally charged and then dealt with by law was gone from all of their lives forever.

[18]        It is obvious that, in a moral sense, Mother S and Father N are deeply indebted to Uncle D.  At first blush their reluctance to pay guideline child support to him for the E Youths’ benefit seems almost incomprehensibly mean-spirited.  Their attempt to portray Uncle D as an uncaring and avaricious tyrant within the extended family household struck a particularly sour and discordant note with the court at the hearing of this matter.  That evidence simply did not square with the other, independent evidence that I have heard, seen and considered.

[19]        But it must not be forgotten that Mother S and Father N—for all their manifest faults and unworthy manoeuvring as litigants—are wounded people too.  They have made a terrible mess of things with their lives and with the lives of the E Youths.  After years of maintaining their low-cost, clandestine relationship—all the while building up a war-chest with which they ultimately were able to buy a house in Maple Ridge—they naïvely believed that they could reconstitute their family, intact, in a new community and sail off happily together into the future without the need of Uncle D’s continued central involvement in their lives and those of the E Youth.  That experiment—whereby Mother S and Father N bought a house in Maple Ridge, announced to all that they were back together again and unilaterally relocated the E Youths from Burnaby to the new home in March of 2012—was an abject failure.  Families—particularly those that include youth in their teens—cannot be reordered and reconstituted in an instant, simply by parental edict or fiat.  Youth N and Youth E proved to be more wilful and protective of the life they knew and preferred in Burnaby with Uncle D than Mother S and Father N anticipated.  The E Youths did not want to be uprooted from familiar surroundings and they resisted that plan.  The resulting “parent/teen conflict” (as MCFD styled it) degenerated ultimately into an ugly encounter on August 27, 2012, between Mother S, Father N and the E Youths.  That encounter eventually descended into violence.  While all participants can be justly faulted for resorting to violence, the greater fault must here fall at the feet of the adults—Mother S and Father N. 

[20]        The violent encounter of August 27^th was brought immediately to the attention of the police and MCFD.  Indeed, the police attended at the Maple Ridge home in response to two 9-1-1 calls.  The initial “safety plan” that was worked out with the police and MCFD resulted in both Youth N and Youth S being returned to Uncle D’s home. 

[21]        Ultimately it was determined by all, including MCFD, that the E Youths’ desire to return to live with Uncle D long term had to be honoured.  The evidence shows that, since their return, they have been doing very well.  It is to be regretted that positions haven’t softened and that the E Youths remain steadfast in their refusal to entertain any contact with Mother S and Father N.  It is to be hoped that relations will thaw, eventually, and that some kind of interactions between and among them will resume.  In the meantime, day-to-day responsibility for the care and guidance of Youth N and Youth continues to rest solely with Uncle D.

[22]        As can be seen, the reality is that over a period of many years, Mother S and Father N have been morally and economically indebted to Uncle D for assuming many duties and responsibilities that they should (and, ordinarily, would) have borne—both for the E Youths and generally.  A perhaps more astringent way to describe the state of accounts between Mother S and Father N on the one hand, and Uncle D on the other, is that Mother S and Father N were and remain “beholden” to Uncle D.  They sought to bring that awkward situation to an end by setting up in a new home for themselves and the E Youths in Maple Ridge in March of 2012 but that plan failed.  Thus, the parenting responsibilities that would normally fall to Mother S and Father N now fall fully to Uncle D.

[23]        Human experience teaches that it takes a particularly strong character to preserve decorum and goodwill in a situation where A and B are under an obligation to C because C has come to A and B’s assistance and done something for A and B that A and B could not, would not or did not, do themselves.  In this kind of scenario, it is exceedingly difficult for A and B not to allow their feelings of inadequacy or guilt at being unable (or unwilling) to do what would normally be expected of them to eclipse the gratitude and appreciation they should feel toward C for taking over their responsibilities.  In this illustration, of course, A and B are Mother S and Father N and C is Uncle D.

[24]        Mother S and Father N do, I am quite certain, feel some measure of gratitude to Uncle D for all he has done for them, the broader family and for the E Youths, particularly now that he is Youth N and Youth S’s third guardian and sole caregiver.  But as I reflect on Mother S and Father N’s testimony, it is evident to me that that gratitude is complicated and often overtaken by the feelings they have of being beholden to Uncle D.  It is also complicated and overtaken by their manifest sadness and disappointment at having been rejected by Youth N and Youth S as parents.  I thus have some sympathy for Mother S and Father N and I have had to remind myself, more than once while reviewing the evidence in this case, that I must consider the sometimes harsh and ungrateful-sounding testimony they gave with those other human factors in mind.

[25]        Uncle D, being a mortal human, unquestionably has his faults and has made his mistakes.  I do not see him as being otherwise.  But I do not believe that he was or is the unkind, aloof, controlling, grasping and greedy man that Mother S particularly sought to portray him to be in her testimony.  It was, after all, Uncle D who presided over and largely provisioned the household where all members of the extended family lived together for many years (including Father N for three years before he assaulted Mother S and had to leave in order to abide by a no-contact order).  It was Uncle D who selflessly accepted the transforming effects on his own life that were wrought by other family members’ problems and bad choices—the first by the predicament Mother S found herself in when the assault she suffered at Father N’s hand turned her swiftly into a single mother of two children with little to live on, and the second by the desire of both Youth N and Youth S to have him serve as their sole caregiver after their parents’ ill-considered and unsuccessful attempt unilaterally to redefine in a trice almost all of the parameters of their joint lives.

[26]        Based on all of the evidence I have seen and heard, I have concluded that Uncle D (whatever his faults) is a kindly man who responded generously and altruistically to extraordinary needs that arose within his extended family.  He did so by going far beyond what most single, middle-aged men in his circumstances would do.  In this his diffident and self-effacing words under oath at trial were plainly corroborated by the evidence of his actions throughout. 

[27]        Contrary to the evidence of the E Youths’ parents, Uncle D’s present application for child support from Mother S and Father N does not reflect unalloyed greed or a grasping, money-hungry nature.  It reflects nothing more than the fact that, having been propelled by circumstance into a long term loco parentis role in the lives of the E Youths, and having re-adjusted his life in many ways in order perform that role well, Uncle D rightly believes that Mother S and Father N should play their part in contributing to the cost of the E Youths’ care.  If it were otherwise—that is to say, if Uncle D were indeed only concerned with money (as Mother S and Father N would have the court believe)—one would have thought that, among other things, he would also be pursuing a prima facie meritorious, retroactive claim for child support reaching back well before August of 2012.  One might also expect that, were Uncle D to be the man who figured in Mother S and Father N’s testimony—that is, a man who is preoccupied almost solely with the economic benefits of serving as the E Youths’ quasi-parents—the E Youths themselves would:

[28]        Plainly, Uncle D has not only gracefully accepted the many responsibilities that fate has thrust upon him in his new role as the E Youths’ guardian and sole caregiver, he has discharged those responsibilities with conspicuous dedication and positive results.

[29]        Part of what Uncle D seeks in this proceeding is an order that Mother S and Father N both pay to him guideline child support for the E Youths, based upon the table amounts in the Federal Child Support Guidelines, SOR/97-175 as amended to SOR/2011-267, effective December 31, 2011 (the “Guidelines”) which correspond to their respective incomes as revealed in Exhibits 4 and 6 and the financial disclosure materials they have filed with the court.

[30]        It is common ground that:

[31]        Working from these guideline incomes, Mother S’s table amount for 2014 is $846 per month and Father N’s table amount  for 2014 is $1,977 per month.  Added together, these figures represent a total child support payment, per month, by Mother S and Father N, of $2,823.

[32]        Should both Mother S and Father N be required, going forward, to pay full, guideline child support to Uncle D, as Uncle D argues?  I believe they should.

[33]        Section 147 of the Family Law Act is foundational to the determination of the issue raised by this proceeding.  It provides as follows:

[34]        Youth N and Youth S are neither spouses, nor are they over the age of majority.  These facts take them outside the first two of the three disqualifying circumstances set out in subs. 147(1). 

[35]        Neither, on the facts of this case, does the third disqualifying circumstance contemplated by s. 147(1)—that is, a voluntary withdrawal from parents’ charge—apply here. 

[36]        For almost all of their lives, the E Youths were required to participate in an elaborate deception.  Put more bluntly, they were required to “live a lie” by playing their part in keeping their parents’ reinstated spousal relationship hidden from Uncle D, to his considerable detriment financially and otherwise.  I pause here to make the parenthetical observation that, by recruiting their children to be participants in a fraud on their uncle in this way, Mother S and Father N have provided the E Youths with a very poor example of parental forthrightness and honesty.

[37]        In any event, once they had amassed sufficient funds to purchase a home in Maple Ridge and emerge from hiding, so to speak, Mother S and Father N sought unsuccessfully in March of 2012 to redefine the fundamentals of their unconventional family arrangement.  It didn’t work.  Against a background of simmering internal strife within the Mother S/Father N/E Youths family unit, newly and unilaterally reconstituted in Maple Ridge, there was an eventual outbreak of family violence on August 27, 2012.  Police were called and MCFD was brought in.  A safety plan was conceived by MCFD and the police that involved the E Youths being placed in Uncle D’s primary care.  

[38]        The conflict between the E Youths and Mother S and Father N subsists unresolved—so much so that, sadly, the E Youths have rebuffed and continue to rebuff any overture of any kind that Mother S and Father N make to them. 

[39]        It can thus be seen that, formally, for the purposes of the Family Law Act, the removal of the E Youths from their biological parents’ charge was effected by the state, operating through its law enforcement (RCMP) and child protection (MCFD) emanations.  It was not a voluntary withdrawal of the kind contemplated by s. 147(1)(b) at all; it was a removal of the E Youths from their parents’ charge, triggered by family violence, and it was a forcible removal.  Moreover, the separation of the E Youths from their parents continues, at the insistence of the E Youths—an insistence in which Mother S and Father N have had reluctantly to acquiesce. 

[40]        I have no hesitation in finding that the history of deception reflected in both the uncontroversial and controversial facts admitted and found above, coupled with the ill-conceived and poorly executed attempt to redefine the family lives of the E Youths by unilaterally extracting them from all of their familiar surroundings and communities, created circumstances that the E Youths considered to be intolerable and that, for s. 147(1)(b) purposes, were objectively intolerable.  One can place no other interpretation upon the resistance that Youth N and Youth S displayed toward the unilateral plan to move the family to Maple Ridge and start afresh there that Mother S and Father N carried out in March, the eruption of that resistance into physical violence on August 27^th and the E Youths’ steadfast refusal to accept any involvement on their parents’ part in their lives ever since the police and MCFD placed them with Uncle D pursuant to a safety plan.

[41]         There being nothing contemplated by s. 147(1) to disqualify them from child support, the E Youths are accordingly entitled to look to “each [of their] parent[s] and guardian[s]” to live up to their “duty to provide support” them under s. 147(1) of the Family Law Act (emphasis added).  That is to say, each of Mother S, Father N and Uncle D (newly, their third guardian) owes a duty to provide child support for the E Youths, although Uncle D’s non-parent guardian status is expressly secondary to that of Mother S and Father N: s. 147(3).  This reading of the requirements of s. 147 is consistent with the statement of Bastarache J. (for the court) found at para. 45 of Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999] 1 S.C.R. 242:

[42]        It is also consistent with the reasoning of Bastarache J. (McLachlin, C.J., LeBel and Deschamps, JJ. concurring) in D.B.S. v. S.R.G., 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231, who stated at para. 48 that, even at common law:

[43]        I do not pretend that it is not unusual for children to have, as the E Youths have here, three guardians to whom to look for support.  It is unusual to be sure but it is not unheard of.  Looking to more typical family breakdown situations for guidance—that is, breakdowns where one parent and guardian retains primary caregiver status and responsibilities and the other resides elsewhere—the non-custodial parent in such situations supports the child by paying child support that is presumptively based on the Guidelines and the custodial parent, as primary caregiver, supports the child through a combination of in-kind services and contributions which must be paid for: see, for example, S.J. v. D.F., [2011] B.C.J. No. 327 at para. 26 (Prov. Ct.).  Together, these contributions in the aggregate create the conditions under which the subject children benefit in proportion to their respective guardians’ means and, for those who are payors, their correlative, table-defined obligations to contribute.

[44]        Section 150 of the Family Law Act provides as follows:

[45]        Section 150(1), like subs. 3(1)(a) of the Guidelines, makes it clear that, presumptively, the quantum of child support payable by a payor is that prescribed by the Guidelines, based on the number of children entitled to support and the payor’s (or, implicitly, payors’) income (or incomes).   That presumption only yields when, on the facts, one or more of the statutory exceptions applies.

[46]        The E Youths are both under the age of majority so the jurisdiction to depart from the presumptive guideline quantum on age-related grounds conferred by subs. 3(2)(b) of the Guidelines is not triggered.  Neither does the annual income of either Mother S or Father N exceed $150,000 per annum; therefore, the mechanisms found in subs. 4(b) are not engaged.  Uncle D is not a “spouse in place of a parent” and, thus, he does not owe an independent duty qua spouse to pay child support “having regard to [the] Guidelines and [Mother S and Father N’s] legal duty to support [the E Youths]” under s. 5 of the Guidelines.  And the notions of split custody, shared custody and undue hardship are inapplicable to the facts of the case at bar, thus ruling out the departures from the presumptive approach reflected in s. 3(1)(a) of the Guidelines that are authorised under ss. 8, 9 and 10.

[47]        Uncle D has not consented to child support being paid in an amount different from that required under the Guidelines; neither have he (on the one hand) and Mother S and Father N (on the other) entered into any agreement concerning child support for the E Youths.  Subsection 150(2) of the Family Law Act therefore has no application. 

[48]        Similarly, there is no room for argument that applying the Guidelines would be inequitable, having regard to the existence of:

[49]        On the facts of the case at bar, none of the factors enumerated above (which are addressed in subs. 150(4) of the Family Law Act) is present.

[50]        Mother S and Father N argue that as a non-parent guardian with nevertheless broad responsibilities for the E Youths, Uncle D has a legal duty (though a secondary one) to support them.  I understand that that proposition is accepted by Uncle D as being correct, both in fact and in law.

[51]        The point is made, however, with a view to persuading this court that to add child support from two payor parents (like Mother S and Father N) to what is already being provided by Uncle D would be to exceed what is required to meet the E Youths’ needs.  In this respect their counsel’s written argument states as follows (at para. 15):

[52]        My first observation is that by making this argument, Mother S and Father N appear to be attempting to turn an iniquity to their own advantage.  The standard that the E Youths “previously enjoyed” was undoubtedly lower than the standard they will enjoy when guideline child support begins coming their way from both of their parents.  But that is because, throughout the years of artifice during which they were able to save and support their favourite charities and contribute to RRSPs, Mother S and Father N were not participating fully or adequately in making provision for the E Youths’ daily needs.  The standard that the E Youths “previously enjoyed” was a standard that was, unquestionably, below what they should have enjoyed when one considers that, over a period of years, it did not reflect appropriate financial contributions from either Mother S or Father N.  It is a bold strategy indeed for Mother S and Father N now to invoke their children’s diminished lifestyle in the past—a diminished lifestyle that can be traced to their own failures to contribute financially to fund it—as a basis for arguing that guideline child support would be excessive because it would enable a lifestyle that the E Youths should have enjoyed all along.

[53]        But, more than that, this argument also misapprehends the fundamental lineaments of our child support regime in British Columbia.  By choosing the unfortunate term “windfall” to describe what a straightforward application of the applicable Family Law Act and Guidelines provisions would produce, and then asserting that the beneficiary of the “windfall” would be Uncle D, counsel’s argument reveals that Mother S and Father N have failed to grasp that:

[54]        In this regard, I cite the majority reasons of Bastarache J. (McLachlin, C.J., LeBel and Deschamps, JJ., concurring) who held at paras. 44-45:

[55]        That passage clearly and succinctly defines the child support model that our legislators chose when enacting the Family Law Act and the Guidelines.  It also describes the policy to which they sought to give effect when choosing that model.  Pursuant to that policy, as payor incomes increase, so also does the child support that payors must pay.  Questions of fairness have already been addressed in the background calculus that links table amounts to gross annual incomes.  This all redounds ultimately to the benefit of the children who are entitled to child support.

[56]        With respect, I consider that the arguments advanced on behalf of Mother S and Father N in this connection are grounded in a faulty logic.  They, in effect, advocate the use of a “pure needs-based” approach to the appropriate quantum of child support when what in fact governs is the clear and compelling logic of the “general Guidelines regime”.  Even though the unique facts of the case at bar require (unusually) that guideline child support be paid by two biological parents, the “general Guidelines regime” that prevails in British Columbia mandates that result (and for good policy reasons).  To track the language of the passage from D.B.S. quoted above, the facts of this case create for the E Youths an entitlement to “a greater quantum of support in absolute terms”, given that both of Mother S and Father N are both obliged to pay guideline child support for their benefit to the guardian (Uncle D) who is their sole caregiver.  The E Youths are, in other words, entitled to “enjoy” a lifestyle that reflects, first, the table amount payments, in money form, that both of their parent guardians must contribute together with the secondary contribution that Uncle D makes as a non-parent guardian, both in kind and through the goods and services that he purchases for them out of his own resources.

[57]        Much has been said at trial and in argument about the true cost, to Uncle D, of meeting the E Youths’ needs.  In light of what I have said about our law not being premised on a needs-based model, that surely is a distraction.  While I cannot see anything about it that is wanting, I do not consider it necessary to subject Uncle D’s secondary contribution to a close or any analysis, any more than any judge sitting in a more conventional case would feel a need to closely analyse what is being provided for a child by a custodial parent in order to determine whether the non-custodial parent should pay guideline child support.  Under the general guidelines regime that governs here and in all cases in this province, the quantum of the child support obligations that are owed to the E Youths by Mother S and Father N as parent guardians are determinable by recourse to the threshold presumptions found in subs. 150(1) of the Family Law Act and subs. 3(1)(a) of the Guidelines (subject to exceptions that do not apply here).

[58]          In sum, none of the factors recognised by the provincial and federal legislatures in the relevant child support-related enactments that confer a discretion to depart from the table amounts is present in the facts of the present case.  It follows for reasons defensible in policy that, with regard to their prospective obligations, Mother S and Father N should be, and are, obliged to pay to Uncle D, as sole caregiver for the E Youths, child support for their benefit in the combined amount of $2,823 per month—the sum of the table amounts that correspond to their agreed respective annual incomes for 2014.

[59]        Uncle D also seeks an order that Mother S and Father N be liable to him for guideline child support for the E Youths dating back to September, 2012—the first full month of his continuing role as their sole caregiver.  Based on the analysis I have carried out above, the starting point of course is that retroactive obligations in this case (like prospective ones) are determined initially by recourse to guideline incomes and the corresponding table amounts.  Then, the court must address the special considerations that arise when a retroactive order is sought.  Having already determined the guideline incomes and corresponding table amounts for Mother S and Father N,  I now move to address the special considerations.

[60]        The Supreme Court of Canada gave a definitive ruling in D.B.S. which speaks to the factors that a court must consider when asked to make a retroactive child support order.  Those factors are:

[61]        None of these factors is definitive in and of itself. The question of whether and how much should be paid by way of retroactive child support must be assessed holistically and by reference to the unique facts revealed in individual cases: D.B.S. at para. 99.

[62]        Uncle D began serving as the E Youths’ sole caregiver on August 27, 2012, when they were delivered into his care as part of the “safety plan” worked out by the police and MCFD following the episode of family violence that occurred at Mother S and Father N’s new home in Maple Ridge.  There followed after that a period of some disruption during which efforts were made by Uncle D to get school placements for Youth N and Youth S and, generally, to make the transition—following as it did on the heels of a violent incident—as smooth as possible.

[63]        Uncle D filed his application for child support on January 23, 2013 and Mother S and Father N filed their Reply with cross-claims two months later on March 22, 2013.

[64]        In the circumstances, I do not see how it can be said that a delay of a little less than five months—between the date when Uncle D became the E Youths’ sole caregiver and the date he filed his application—is unduly lengthy.  Clearly, Uncle D’s first priority was to get the E Youths settled; once that was done he was able to turn his mind to the issue of child support.

[65]        Just as Uncle D was struggling over the autumn of 2012 to adjust to having himself catapulted by circumstance into the role of sole caregiver for two teen-agers, so too were Mother S and Father N experiencing considerable disorientation and figurative vertigo in the wake of the episode of violence of August 27, 2012 and the collapse of the plan they had to reconstitute their family in Maple Ridge.  The evidence—and, in particular, the letters from MCFD to Mother S and Father N that form part of Exhibit 1—makes it plain that it was not until late 2012/early 2013 that the E Youths’ determination to cut all ties with their parents and remain with Uncle D for the long term was firm and brought home as such to Mother S and Father N.  Soon after that they were served with Uncle D’s application.

[66]        I do not believe that Mother S and Father N can be faulted for failing to pay child support to Uncle D during the fall of 2012 while matters were in flux and uncertain.  However, by February of 2013 they knew that the arrangement under which Uncle D would be serving as the E Youths’ sole caregiver was likely going to be a long term one; they knew as well (having received his application) that Uncle D was looking to them to contribute, by way of guideline child support, to the cost of providing their care.  The apparent unwillingness of Mother S and Father N to make any contribution on account of child support between that time and the fall of 2013—and then only based on a consent order entered into in June that made him the E Youths’ third guardian and specified $1,750 “without prejudice” monthly payments commencing in October—does, in my respectful view, constitute “blameworthy” conduct as that word is used in D.B.S. 

[67]        The cost of providing for the needs of two teens is considerable and those costs continued to mount, month after month, to Mother S and Father N’s knowledge but without any effort on their part to assist Uncle D to defray them.   That inaction amounted, in my judgment, to a conscious and culpable avoidance by Mother S and Father N of a support obligation that they well knew was binding upon them.  

[68]        Moreover, the seriousness of that culpable inaction is aggravated by the long history—predating the abortive move of the E Youths in March 2012 to Maple Ridge—during which Mother S and Father N similarly failed to participate fully and properly in funding the cost of raising the E Youths. 

[69]        I am satisfied that this recurrent pattern of avoidance of fundamental parental responsibilities, on the authority of D.B.S., constitutes blameworthy conduct which justifies the making of a retroactive order of child support against Mother S and Father N.

[70]        For almost the entirety of their lives, the E Youths have been deprived of the lifestyle that they would have enjoyed had Mother S and Father N made their full and proper contributions toward the cost of their care.  The diminished lifestyle that they have endured, and its cause, are in effect admitted by Mother S and Father N when they argue (through their counsel’s written submissions) that the payment of guideline child support by them to Uncle D “would result in a standard beyond that the children previously enjoyed” (at para. 15).  In these circumstances, I consider that a retroactive order is essential to ensure that at least some of what has been lost to the E Youths is made up through the payment of arrears of guideline child support.

[71]        Over a period of many years and without lawful excuse, Mother S and Father N have been deploying their considerable combined earnings to (among other things) acquire real estate, contribute to charities and build up retirement savings through RRSPs.  To do so they have made use, in part, of monies that should have been allocated to providing fully and properly for the material needs of the E Youths.  Now, when called upon by Uncle D to contribute to the cost of caring for the E Youths in accordance with the law that governs child support they argue through their counsel’s written submissions that the payment, by both, of child support in accordance with guideline figures would create a “financial hardship” and “result in their monthly expenses exceeding their incomes” (at para 21).

[72]        I cannot accept those submissions.

[73]        If, as they say, Mother S and Father N have overextended themselves financially to the point where they cannot meet their child support obligations, then they will have to find ways of reigning in their commitments and spending in other areas to make room in their budget for meeting the statutorily defined entitlements of the E Youths.  A review of the Form 4 Financial Statements filed by Mother S and Father N confirms that there is room for them to contract their own lifestyles in order improve the lifestyles of Youth N and Youth S.  Meals outside the home would be a good starting point.  Those account for no less than $5,000 annually in the aggregated expenses identified by Mother S and Father N.  Together they contribute $13,000 per year toward RRSPs (though only $1,200 goes to RESPs for the E Youths each year).  Entertainment spending ($1,980) could perhaps be pulled back somewhat, as could charitable donations ($3,300).  These are small examples that jump out upon a cursory examination of Mother S and Father N’s disclosed expenses.

[74]        Mortgage debt reflects a larger area for potential realignment of spending to reflect present needs and realities.  The mortgage payments for the new house in Maple Ridge appear to represent a monthly demand on cash flow of more than $3,000.  The Maple Ridge house was purchased as part of a plan to reconstitute the entire family in new premises in a new community.  That plan has plainly failed, yet Mother S and Father N are now into their third year living in that house without the E Youths with them.  One might fairly question why Mother S and Father N have not down-sized in the wake of the failure of their plan to reconstitute the family in Maple Ridge or, at the very least, taken in tenants to cover some of the cost of maintaining a residential property that now vastly exceeds their space needs.

[75]        Every parent who is called upon to pay child support must find a way to fit child support into the broader framework of his or her financial planning and management.  Child support payments represent a sizeable incursion into cash flow for most everyone who is required to pay them.  It is incumbent on those who are obliged to pay child support to structure their affairs to accommodate such obligations and, if necessary, to structure their affairs so as to also accommodate catch-up payments where child support arrears have to be retired.  This undoubtedly can cause financial strain in some cases.  But the test in D.B.S. requires proof of undue hardship in order to justify relieving payors of the burden of a retroactive order and undue hardship has not been proven here.

[76]        To summarise on this point, I am not satisfied on the evidence before me that for me to require Mother S and Father N to make additional monthly payments, over and above their monthly child support obligations, to pay down accumulated arrears of child support would impose undue hardship on them.  Their financial disclosure materials reveal that there is room for them to manoeuvre and, as I have indicated, as regards the most pressing source of cash flow pressure, Mother S and Father N cannot justly invoke a perplexing insistence upon remaining in a house that vastly exceeds their space needs at a cost of $3,000+ per month in financing costs as a basis upon which the court should decline to hold them responsible for accrued arrears of child support for the E Youths.

[77]        For all of the foregoing reasons, I consider it fair and just that Mother S and Father N be ordered to pay guideline child support to Uncle D, retroactive to March 1, 2013—a date by which it was clear to them and to all that the E Youths’ relocation to live with Uncle D was a long term one, and after which Mother S and Father N’s failure or refusal to pay guideline child support cannot be either satisfactorily explained or justified.

[78]        On the evidence that has been placed before me I have concluded that Uncle D is entitled to have orders in his favour requiring Mother S and Father N to pay him guideline child support for the E Youths, both prospectively and retroactive to March 1, 2013.  The particulars of those orders are set out below.

[79]        I turn first to the prospective orders:

[80]        I turn next to the retroactive orders.

[81]        It has been established before me, largely on the basis of admitted facts, that:

[82]        Accordingly, and on the basis of the foregoing, I order that:

[83]        I turn finally to the issue of the need for a mechanism to ensure that Mother S and Father N’s child support obligations, including their obligations to retire arrears of child support, are adjusted annually to take account of changes in Mother S and Father N’s incomes and financial circumstances from time to time.  Here again, I leave it to the parties to fashion such a mechanism (based upon, inter alia, updated financial disclosure by Mother S and Father N to Uncle D) by agreement in the form of a consent order.  If the parties are unable to agree on such a mechanism, they may then schedule a further hearing before me for the purpose of having the court make an order in that regard.