IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The parties had three children.  N.H.H., born [omitted for publication] remains the only dependent.

[2]           The parties separated in 2013 and signed a separation agreement without the benefit of counsel on March 21^st, 2013.  That agreement divided the matrimonial property and debt.  That agreement also provided for no child support as at the time of signing the child N.H.H. resided with her father.  This agreement was filed with the court April 30^th, 2013 but was not formally made a court order.

[3]           In late August of 2013, N.H.H. moved to live with her mother and has since lived there continuously.

[4]           September 27^th, 2016, S.H. brought an application to vary the separation agreement to obtain: sole guardianship, all parenting responsibilities, to confirm that she is the primary caregiver, and to allow M.H. reasonable contact with N.H.H. as agreed between the parties.

[5]           By consent an order on the above terms was granted on May 1^st, 2017.

[6]           The application of September 27^th, 2016 also sought child support retroactively to August 2013 and in future.

[7]           On June 5^th, 2017, a hearing was held on the issue of child support.

[8]           The applicant filed a form 4 financial statement on April 27^th, 2017.  The respondent filed a form 4 financial statement on May 17^th, 2017.

[9]           M.H.’s financial statement attached income tax assessments for three years.

[10]        M.H. testified that he was in Europe in 2015 and a portion of 2016.  When asked by the court how he supported himself in Europe, he testified that he did not work but that his father gave him money.

[11]        M.H. testified that he estimated his income for 2017 to be $36,000.  He stated that his employer had promised him income of approximately $40,000 for the year but that work was slow and he expected to earn less than promised.  He attached to his financial statement pay stubs showing gross income of $9,729.80 for the period ending May 6^th, 2017.

[12]        In cross-examination M.H. admitted that he had in the past done plumbing work “under the table”.  However, he added that he had not received money for this work but rather received services or goods in return.  He agreed when the court suggested that this was barter.  He also agreed that the value of the “barter” received varied but was in the $500 to $1000 range.  In cross-examination he agreed to three such incidents that he could remember which occurred before the separation.

[13]        S.H.’s financial statement attached income tax assessments for three years.

[14]        She attached to this financial statement pay stubs that showed income from employment from January 1^st, 2017 until April 28^th, 2017 of $17,445.

[15]        S.H. testified that at the time of separation the parties had orally agreed to share the costs of N.H.H.’s dental and extracurricular activities.  She added that she had paid half of both such expenses in 2013 when the child resided with M.H.

[16]        S.H. testified that in 2014 the parties had met in the parking lot of the post office in Burns Lake.  They agreed that M.H. would pay child support when he was working again as he was laid off from work at that time.  M.H. confirmed that in his testimony.

[17]        S.H. testified that at the time of separation she and the children had remained in the family home and she hoped to carry the mortgage.  She was unable to keep up with the mortgage and ultimately the parties agreed to sell the house for what was owed the bank.

[18]        S.H. referred to expense receipts she had attached to her financial statement which were for dental, skiing, soccer and summer camp for N.H.H.  She testified that N.H.H. had been attending the same summer camp before the parties separated.

[19]        M.H. testified that all matrimonial property and debt was equitably divided upon separation.  He disputed S.H.’s suggestion that the $21,000 debt that he paid to their son J.H. was actually just monies held in trust for J.H.  M.H. added that he had used the $21,000 to pay expenses before separation and that it was a debt not just a transfer to existing trust funds.

[20]        S.H. entered a group of photocopies of postcards sent by M.H. to their daughter from Spain, Greece, Slovakia, Turkey and the Czech Republic.  She submitted these are proof that M.H. had sufficient income while in Europe to holiday rather than pay child support.

[21]        First, should the court order retroactive child support?

[22]        Second, has M.H. deliberately reduced his income since the separation?

[23]        Third, if so, should the court impute an annual income for M.H. both for 2017 and retroactively to when N.H.H. came to live with her mother in 2013?

[24]        The British Columbia Court of Appeal in L.S. v. E.P., 1999 BCCA 393 (CanLII), [1999] B.C.J. 1451 laid out a number of factors for a court to consider concerning a retroactive variation of child support.

[25]        The nine factors are laid out in paragraphs 68 through 81 of the above decision.

[26]        The court is allowed to impute (estimate) a paying parent’s income by section 19 of the Federal Child Support Guidelines.  In determining whether a parent has made him or herself underemployed the onus rests on the applicant to prove this on the balance of probabilities, as per Windle v. Windle, 2010 BCSC 18.  That onus is on S.H.

[27]        In considering whether a parent has deliberately made him or herself underemployed the court has a broad discretion and is not limited to the factors listed in sections 16 through 18 of the Federal Guidelines on Child Support, as per Ouelette v. Ouelette, 2012 BCCA 145.

[28]        As per Van Gool v. Van Gool, [1998] R.F.L. 4^th 314 BCCA unless the parent has a reasonable excuse s/he is expected to find employment commensurate with his/her age, health, education, skills and work history.

[29]        If the paying parent is unemployed, the onus is upon that parent to explain why, as per McNaught v. Friedman, 2011 BCSC 524.

[30]        In Wu v. Sun, 2009 BCSC 985 the paying parent left Canada and lived on an allowance from his father, which was set artificially low in order to limit the amount of support payable.  The court imputed income of $300,000 based on expenditures before the payor left Canada.

[31]        In considering whether M.H. should pay retroactive child support he ceased any payments in August of 2013 although he was still employed that year.  He was employed in 2014 and agreed to pay child support when able.  In 2015 he relocated to Europe and was unemployed and supported by his father until his return to British Columbia in 2016.

[32]        S.H. made no application to the court for child support until September 2016 which is understandable as M.H. was in Europe until that time.  This is not a disguised attempt to redistribute capital assets of M.H. or obtain spousal support as all matrimonial property questions were decided in the separation agreement of 2013.

[33]        M.H. submitted that he would not be able to pay a large award of maintenance arrears.  However, all the evidence supports a finding that retroactive child support should be ordered.  Only the first factor laid out in L.S. v E.P. which is whether M.H. had corresponding ability to pay.

[34]        On his financial statement his income information is incomplete.  However, his ability to pay child support is also involved in the court’s determination of whether income should be imputed to him.

[35]        On the evidence before the court S.H. has established on the balance of probabilities that M.H. was underemployed starting in 2014.  His income dropped from $62,147 in 2013 to $24,562 in 2014.  In 2015 he had no income and was supported by his father in Europe.  Similarly, in 2016 his income in Canada was $1,552 as he only returned late in the year and had been supported by his father before his return.  He estimates his income for 2017 to be $36,000.

[36]        M.H. has been unable to explain why his income dropped over 50% in 2014.  Nor has he been able to explain why he did not earn any income while in Europe.  His responsibility to support his child cannot be extinguished by his choice to spend time unemployed whether it was in Canada or elsewhere.  Accordingly, the court finds both that income should be imputed to M.H. both retroactively and for 2017.

[37]        As per the Ouelette v. Ouelette and Wu v. Sun decisions the court has a broad discretion in imputing income.  In this case the financial information for M.H. is limited and even more complicated because of his admitted history of not reporting income earned off the record through barter.

[38]        M.H. was under employed for large portions of the time from 2013 through 2016.  Accordingly, using an average is unworkable.  Section 17 of the Federal Child Support Guidelines allows the use of a pattern of income over the past three years.  Applying the pattern over the past three years would obviously be incorrect as there are two years of virtually no income.  However, this court can and will apply a broader pattern as per the court’s broad discretion laid out in the Ouelette case.

[39]        M.H. was advised by his current employer that he should earn an income of $40,000.  If the court averaged his 2013 and 2014 income a figure of $43,344 is obtained.  M.H. estimated his income for 2017 to be $36,000.

[40]        Accordingly, this court believes that imputing an annual income of $40,000 would be appropriate both for 2017 and for the years 2014, 2015 and 2016.

[41]        The Federal Child Support Guidelines require child support payable on income of $40,000 at the rate of $364 each month.

[42]        As the arrears of child support payable are quite substantial, the court declines to make any order for retroactive child support for the four month period in 2013.

[43]        Similarly, the court declines to make any order for payment by M.H. of extracurricular or dental expenses.  That is because extracurricular and dental expenses are considered in the Federal Child support Guidelines and are not ordered unless agreed by the parties or are so unexpected as to be extraordinary.

[44]        Child support for N.H.H. shall be $364 per month commencing July 1^st, 2017 and the same amount on the first of each month thereafter until either she ceases to be a dependent or further order of this court.

[45]        In light of the large amount of arrears the court shall order that they be paid in monthly installments over an extended period.

[46]        The parties can adjust the child maintenance payable using the Federal Guidelines in future.  The court will order the exchange of income tax records in the future.

[47]        M.H. shall pay to S.H. child support for the child N.H.H. of $364 on July 1^st, 2017 and the same amount on the first of each month thereafter so long as the child N.H.H. remains a dependent under the Family Law Act or until further order of this court.

[48]        Arrears of child maintenance are fixed at $15,288.

[49]        Arrears of child maintenance shall be paid by M.H. to S.H. at the rate of $200 on the fifteenth of each month starting July 15^th, 2017 until paid in full.

[50]        The parties shall exchange a copy of their filed previous year’s income tax return on or before June 1^st each year, commencing in June of 2018 and on each June 1^st thereafter as long as N.H.H. remains a dependent under the Family Law Act or until further order of this court.