IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           D.M.O. and G.S.T. never lived with one another but do have a child together.  C.M.O. was born on [omitted for publication] and is now 13 years old.

[2]           Except in 2013 and 2014 when D.M.O. was struggling with mental health and addiction issues, C.M.O. has lived with her mother in Kamloops.  C.M.O. lived with G.S.T. in Nanaimo from January 13, 2013 to June 23, 2013 and was in foster care from October 23, 2013 to December 31, 2014.

[3]           On August 18, 2004, the Honourable Judge Saunders found G.S.T. to have a “guideline income” of $16,224 and made an Interjurisdictional Support Order (“ISO”) requiring G.S.T. to pay D.M.O. child support of $134 per month commencing July 1, 2004. 

[4]           Very soon after the ISO was made, G.S.T. began earning substantially more than $16,224 per year.  D.M.O. was aware of G.S.T.’s increased earnings but did not take any formal steps to obtain financial disclosure from G.S.T. nor to increase his child support obligations until July 2013.  In June 2013, G.S.T. filed an application in Nanaimo to, amongst other things, cancel the ISO and obtain child support and special expenses from D.M.O. retroactive to January 13, 2013 when C.M.O. came into his care.  In her July 2013 Reply, D.M.O. counterclaimed for C.M.O. to be returned to her care, for G.S.T. to pay child support based on his increased income retroactive to September 2004 and for the file to be transferred to Kamloops.  On August 19, 2013, the file was transferred to Kamloops, the parties were ordered to exchange financial statements within 30 days and G.S.T.’s Application and D.M.O.’s Reply with Counterclaim were adjourned generally.

[5]           D.M.O. filed her current application to vary the ISO on June 12, 2015 with the assistance of counsel for the Minister under the Employment and Assistance Act, SBC 2002, c. 40 (the “Minister”).  D.M.O. seeks to have the ISO updated to reflect G.S.T.’s current earnings and to have child support retroactively adjusted back to 2005 when G.S.T.’s earnings began to increase substantially.  D.M.O. also seeks to have arrears of child support determined and to have G.S.T. pay a proportionate share of special expenses based on the respective incomes of the parties.

[6]           G.S.T. agrees to pay increased child support commencing June 1, 2015 based on his 2014 income with an increase on July 1, 2016 based on his 2015 income.  G.S.T. also agrees to pay his proportionate share of special expenses.  G.S.T. does not agree that child support should be retroactively increased and disputes D.M.O.’s claim for arrears of child support.  G.S.T. says he has, for the most part, abided by the ISO or paid increased child support in amounts agreed to by D.M.O.

[7]           The parties have agreed on G.S.T.’s income since 2004 and on D.M.O.’s income since 2012.  The parties have also agreed on some, but not all, child support payments G.S.T. says he made. 

[8]           The parties are diametrically opposed on whether G.S.T. should be ordered to pay retroactively increased child support.  D.M.O. submits that G.S.T. should not be rewarded for his failure to provide full and transparent financial disclosure to her.  D.M.O. further submits that G.S.T. should be ordered to pay her retroactively increased child support based on his actual income over the years and the Federal Child Support Guidelines (the “Guidelines”).  G.S.T. submits that it would be highly prejudicial and grossly unfair to saddle him with the substantial arrears that would flow from a retroactive adjustment of child support, particularly one dating back to 2005.

[9]           The parties also disagree on the rate at which G.S.T. should pay any arrears of child support I may find he owes to D.M.O. and on the specific terms for payment of special expenses.

[10]        The issues are:

[11]        Before turning to the substantive issues, I will provide some comments regarding the credibility and reliability of the testimony of D.M.O. and G.S.T.

[12]        Both D.M.O. and G.S.T. testified with apparent sincerity but I had significant credibility and reliability concerns with the testimony of both of them.

[13]        The parties were the only witnesses to testify.  At the conclusion of their testimony on March 17, 2016, I was facing a classic “he said/she said” case with very little objective evidence to help me sort out what actually happened.  As a result, the parties agreed to adjourn the hearing to allow them to produce bank records in support of the testimony they gave.

[14]        When the hearing was reconvened on July 7, 2016, both parties put before me substantial historic banking records which did not entirely support either version of events I had previously heard. 

[15]        In an Affidavit filed on August 13, 2013 in Nanaimo and in her testimony on March 17, 2016, D.M.O. swore that G.S.T. did not pay any child support to her until 2011.  Consistent with G.S.T.’s testimony, however, D.M.O.’s historic banking records show that many transfers were made into her account from a bank in Fort McMurray starting in 2005 when G.S.T. was working there.  Many of the transfers look suspiciously like child support payments and match G.S.T.’s banking records.  G.S.T. also produced records showing e-transfers from his account to “D.M.O.” starting as early as 2006.  Faced with this information, when the hearing reconvened on July 7, 2016, D.M.O. conceded that she had been mistaken and that, in fact, she had received some child support from G.S.T. starting in 2005, though not to the extent asserted by G.S.T.

[16]        During his testimony on March 17, 2016, G.S.T. was very specific about the amount of monthly child support he says he and D.M.O. had agreed he would pay.  The historic banking records simply do not match these amounts.  On March 17, 2016, G.S.T. also insisted that he had paid child support in the amounts the parties had agreed.  The records, however, tell a different story and have many gaps which demonstrate that G.S.T. was not consistent with his child support payments. 

[17]        The longest gap in recorded child support payments is from 2009 to 2011 when D.M.O. says G.S.T. was not seeing C.M.O.  G.S.T. produced some records of cash withdrawals and testified that he paid D.M.O. cash during this time when he was working in Kamloops.  This testimony is not believable.  G.S.T. was not in Kamloops for work or other reasons for the duration of this time period, the cash withdrawals were not in the amounts G.S.T. says the parties agreed he would pay and it makes no sense that G.S.T. would switch from a secure, reliable and recorded method of paying child support to cash during this time.

[18]        Given the significance of the discrepancies between what D.M.O. and G.S.T. testified to be true on March 17, 2016 and what the historic banking records show, I am in the unenviable position of being unable to rely on the testimony of either of them. 

[19]        Section 150 of the Family Law Act, SBC 2011, c. 25 (the “FLA”) empowers courts in British Columbia to make child support orders and requires that child support be determined in accordance with the Guidelines.  Section 152(1) of the FLA empowers courts to, amongst other things, change child support retroactively when there has been a material change in circumstances.  The parties agree that G.S.T.’s increased income represents a material change in circumstances and that the current child support order needs to be updated to reflect G.S.T.’s current income.  The parties also agree that I can, but differ on whether I should, adjust child support retroactively.   

[20]        D.B.S. v. S.R.G., 2006 SCC 37 remains the leading case on retroactive child support.  In D.B.S., the Supreme Court of Canada emphasizes the obligation on both parents to ensure their children are receiving an appropriate amount of child support and directs trial courts to take a holistic view to decide each case on its particular facts.  The Court identifies four factors to assist trial courts in balancing the payor parent’s interest in certainty and predictability with the need for flexibility and fairness to children.  The four factors are:

[21]        After weighing these and any other relevant factors, if the court determines that a retroactive award of child support is warranted, the start date will generally be the date the recipient parent gave effective notice to the payor parent.  All this requires is that the recipient parent broach the topic of child support with the payor parent.  Choosing the date of effective notice is fair to the payor (who knows the recipient will be looking to him or her for child support) and does not penalize a recipient parent who attempts to resolve child support informally (thus avoiding litigation that could be hostile, costly and, therefore, adverse to the child’s interests).  In cases of payor misconduct, the start date may be earlier so as not to permit the payor to profit from his or her misconduct.  In cases of unreasonable delay by the recipient, the period of unreasonable delay may be excluded from an award.  (See D.B.S. at paragraphs 118 to 125 and 130.)

[22]        I will next analyse the four factors set out in D.B.S. before reaching a conclusion on an appropriate start date for child support.

[23]        Delay in seeking increased child support is discouraged for two reasons.  Delay undermines the payor’s interest in certainty and retroactive awards are “a poor substitute for past obligations not met”.  That said, delay may be justified where “the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family” or where “the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice.”  (See D.B.S. at paras 101 -103.)

[24]        In this case, D.M.O. has been a low income single parent who has, at times, struggled with alcohol.  Other than for a brief period in 2013, D.M.O. did not have legal help until counsel for the Minister became involved.  D.M.O. says that G.S.T. constantly threatened her with court and she felt he would “win” because he was represented by a lawyer who was one of his best friends.  D.M.O. says she feared G.S.T. would take C.M.O. from her if she pursued him for child support.  D.M.O. further says that she preferred G.S.T. to have a relationship with C.M.O. to pursuing him for child support. 

[25]        G.S.T. disputes that he ever threatened D.M.O. or that he would ever have tried to take C.M.O. away from her. 

[26]        In the absence of any objective evidence, I cannot find that G.S.T. overtly threatened D.M.O.  It is not hard for me to imagine, however, that D.M.O. felt intimidated by her belief that G.S.T. had easy access to a lawyer while she did not and vulnerable because of her personal struggles.

[27]        In asking me to look back 11 years, I cannot ignore that D.M.O.’s delay has caused prejudice to G.S.T.’s ability to respond to her application.  His memory has understandably faded and he was unable to access all financial records that would have been available if D.M.O. had proceeded in a more timely fashion.

[28]        There is no dispute that G.S.T.’s income rose substantially almost immediately after the ISO was made in 2004.  The ISO was based on a Guidelines income of $16,224 and provided for child support of $134 per month.  From 2005 to 2008, G.S.T. says he made approximately $50,000 per year and after that his annual income has varied from a low of about $60,000 to a high of almost $90,000.  Until December 2015, the available banking records show that, in the months that G.S.T. paid child support to D.M.O., he paid varying amounts of up to $300 per month.  Even after subsequent increases to $400 and then $500 per month, these amounts are far less than the child support of up to $820 per month that G.S.T. would have been obliged to pay under the Guidelines.

[29]        In D.B.S., the Supreme Court of Canada emphasizes that “the payor parent’s interest in certainty is least compelling where (s)he has engaged in blameworthy conduct.”  The Court goes on to encourage trial courts to take “an expansive view” of what constitutes blameworthy conduct and to include “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support.”  The Court also holds that a payor parent who is abiding by a child support order or agreement should be presumed to be acting reasonably.  (See paras 105 and 106.)

[30]        In this case, I do not accept G.S.T.’s testimony that he and D.M.O. agreed to the amounts of child support he was paying.  G.S.T. led no objective evidence to support his assertion and the banking records do not reflect the amounts he testified the parties had agreed to. 

[31]        That said, I also do not accept D.M.O.’s testimony that she repeatedly asked G.S.T. to disclose financial information to her.  Firstly, D.M.O. led no objective evidence in support of her testimony.  Secondly, such demands would be inconsistent with her other testimony that she felt threatened and preferred G.S.T. to have a relationship with C.M.O. to pursuing G.S.T. for child support.  Finally, when D.M.O. first sought retroactive child support in 2013, G.S.T. provided financial disclosure as required. 

[32]        On all of the evidence, it appears to me likely that G.S.T. unilaterally decided what he would pay D.M.O. for child support and D.M.O. accepted those amounts without any serious objection. 

[33]        Dealing specifically with the question of whether G.S.T. engaged in blameworthy conduct, on all of the evidence, I conclude that he did.  A child support order was in place and the fact that G.S.T. unilaterally increased his child support payments indicates that he was well aware of his duty to pay increased child support as his income rose.  In the words of the Supreme Court of Canada in D.B.S. at paragraph 108, the change in G.S.T.’s earnings was “sufficiently pronounced” that it was not reasonable for G.S.T. to pay child support in amounts that were so far below Guidelines amounts. 

[34]        Neither party focussed extensively on C.M.O.’s past and present needs. 

[35]        I understand that C.M.O. is an active child who plays various team sports at school.  I accept that D.M.O.’s income has been very limited over the years and that D.M.O. has, therefore, not been able to put C.M.O. in other activities that interest her such as dance, guitar and singing lessons. 

[36]        I also understand that C.M.O. has hyperthyroidism which requires that she undergo regular testing and take medication.  I accept that D.M.O. generally pays $25 per month for C.M.O.’s medication and has paid for annual trips to the Children’s Hospital in Vancouver.  On D.M.O.’s income, I accept that it has been difficult for D.M.O. to cover these costs.  In fact, I am sure that, on her limited income, D.M.O. has struggled to meet C.M.O.’s basic needs.

[37]        While a retroactive award cannot fully make up for some of the activities C.M.O. has missed out on or some of the hardships she has undoubtedly endured, such an award would relieve some of the financial pressure on D.M.O. and allow C.M.O. to participate in a greater range of activities of interest to her.

[38]        G.S.T. is employed steadily and earns a very good income of almost $90,000 per year.  He and his common law partner, D.B., have two children. T.B. is 12 and S.B. is 7. 

[39]        The Financial Statements filed by G.S.T. in 2013 and 2016 disclose that D.B. battled cancer from 2009 to 2013 but is now in remission.  Copies of D.B.’s income tax returns for 2009 to 2011 were attached to the Financial Statement filed by G.S.T. in 2013.  These tax returns show that D.B. had very limited income in those years.  The same was likely true in 2012 and 2013.  Since May 2014, D.B. has had a casual position in the kitchen at the hospital in Nanaimo.  D.B.’s 2014 Notice of Assessment was attached to the Financial Statement that G.S.T. filed in 2016.  The Notice of Assessment indicates that she earned $8,887 in the eight months she worked in 2014.  In a full year, this would translate to just over $13,000.  Given that G.S.T. did not disclose any financial documents related to D.B.’s income in 2015 and 2016, I suspect that D.B. earned more than $13,000 in 2015 and is on track to do so again in 2016.

[40]        Regarding T.B. and S.B., G.S.T.’s Financial Statements indicate that each has a disability which requires, in the case of T.B., iPad apps “to help improve his brain firing” and boxing to help deal with his “weak motor skills” and to “strengthen his hands” and, in the case of S.B., tutoring as well as swimming “to help improve her social defiance.”

[41]        Based on G.S.T.’s agreed income and the child support payments D.M.O. acknowledges she received, I calculate that D.M.O. seeks a retroactive child support award of over $40,000.  Though G.S.T. and D.B. collectively earn more than $100,000 per year, a retroactive child support order generating arrears of this magnitude would represent a significant portion of their annual after tax income and, even if spread out over several years, would have a substantial negative impact on their household.

[42]        The parties have proposed three alternatives for increased child support.  D.M.O. proposes January 1, 2005 or, in the alternative, July 1, 2010. The latter date is three years prior to the date she filed her Reply seeking retroactive child support.  G.S.T. suggests that his increased child support obligation start June 1, 2015 to align with the date D.M.O. filed her current application for retroactive child support.

[43]        Taking a holistic approach and paying particular attention to the D.B.S. factors, I have determined that it is appropriate to retroactively adjust G.S.T.’s child support obligation commencing January 1, 2013.  I have chosen this date because:

[44]        In short, retroactively adjusting child support to January 1, 2013 appropriately balances G.S.T.’s interest in certainty and predictability with his own misconduct and C.M.O.’s past and present needs.  This date also strikes the appropriate balance in a way that is fair to the parties and in a way which will not cause undue hardship to G.S.T., D.B. and their children.

[45]        Since January 1, 2013, both parties have resided in British Columbia and their incomes are well documented by tax returns and/or Notices of Assessment. 

[46]        Section 16 of the Guidelines provides that, subject to certain adjustments, a parent’s annual income is the income reported as “Total Income” on line 150 of the parent’s tax return.  In the context of this case, the only adjustments to be made to either party’s income are deductions from G.S.T.’s income for union dues.  In the years for which I do not have any documentation of the specific amount of union dues paid by G.S.T., I have estimated his union dues based on the data which is available to me.

[47]        In 2013, I find that G.S.T.’s income for Guidelines purposes was $79,899 and that he ought to have paid child support of $747 per month to D.M.O. for the four months of that year that C.M.O. was in D.M.O.’s care.  I also find that D.M.O.’s income for Guidelines purposes was $15,778 and that she ought to have paid G.S.T. $112 per month for the five months that C.M.O. was in G.S.T.’s care.  Setting these amounts off against each other means that G.S.T. ought to have paid child support to D.M.O. in the net amount of $2,428 in 2013.

[48]        In 2014, C.M.O. was in foster care so there was no obligation on G.S.T. to pay child support to D.M.O. in that year.

[49]        The parties agree that G.S.T. pay child support of $820 per month from June 1, 2015 to June 30, 2016.  This amount of child support is based on G.S.T.’s 2014 Guidelines income of $88,226.  I find that it is appropriate to use this same rate of child support from January 1 to May 30, 2015.  This means that G.S.T. ought to have paid child support to D.M.O. in the amount of $9,840 in 2015.

[50]        In the first six months of 2016, the parties agree that G.S.T. pay child support of $820 per month.  This means that from January 1 to June 30, 2016, G.S.T. ought to have paid D.M.O. a total of $4,920.

[51]        Adding all of this up, G.S.T. ought to have paid D.M.O. a total of $17,188 in child support between January 1, 2013 and June 30, 2016.

[52]        Effective July 1, 2016, the parties agree that G.S.T. pay child support of $832 per month to D.M.O.  This amount of child support is based on G.S.T.’s 2015 Guidelines income of $89,616. 

[53]        The data is clear and the parties agree that G.S.T. did not pay child support to D.M.O. in 2013 or 2014 and that he paid D.M.O. child support of $3,810 in 2015 and $2,800 from January 1 to June 30, 2016.  In total, G.S.T. has paid D.M.O. a total of $6,610 in child support from January 1, 2013 to June 30, 2016.

[54]        Based on my findings, G.S.T. owes D.M.O. arrears of child support of $10,578 from January 1, 2013 to June 30, 2016.

[55]        In addition, D.M.O. submits that G.S.T. has arrears on the original child support order that required G.S.T. to pay child support of $134 per month commencing July 1, 2004. 

[56]        In the 102 months between July 1, 2004 and December 31, 2012, G.S.T. ought to have paid D.M.O. child support totalling $13,668 under the ISO.  G.S.T. asserts that he paid D.M.O. $11,736.50 in child support during these years.  D.M.O. asserts that G.S.T. paid only $5,240. 

[57]        I have already indicated that I have significant concerns with the credibility and reliability of the assertions made by both G.S.T. and D.M.O. during the 102 months at issue.  Given that the banking records do not support either party and do not definitively establish the amounts paid by G.S.T., I can only do my best to estimate G.S.T.’s arrears under the ISO.  Based on all of the evidence, I find that between July 1, 2004 and December 31, 2012, G.S.T. owes arrears of child support to D.M.O. in the amount of $4,000.

[58]        Based on all of the above, effective June 30, 2016, I set G.S.T.’s arrears of child support at $14,578. 

[59]        D.M.O. submits that G.S.T. ought to pay arrears at the rate of $200 every two weeks.  G.S.T. submits that amount is unrealistic and submits that $100 every two weeks would be more appropriate.  I agree with G.S.T.  I note that at $100 every two weeks, the arrears will be paid in full while C.M.O. is still a child eligible to receive child support.

[60]        The parties agree that G.S.T. will pay his proportionate share of certain special expenses, including medical and orthodontic expenses.  Based on the 2015 Guidelines incomes of the parties, G.S.T. will pay 76% and D.M.O. 24% of special expenses.

[61]        The parties disagree that I should award a monthly amount to pay for unspecified activities that C.M.O. may want to pursue.  G.S.T. submits that many of these expenses could reasonably be covered by D.M.O. as contemplated by s. 7(1.1)(a) of the Guidelines based on her income and G.S.T.’s updated child support obligations.  G.S.T. also submits that there is no assurance C.M.O. will actually participate in any extra-curricular activities in the future.  I agree with both of G.S.T.’s submissions and will not be ordering that he pay a set monthly amount for activities.

[62]        For the reasons I have expressed, I make the following orders:

[63]        I thank counsel for their able assistance and wish the parties and especially C.M.O. the very best in the future.