IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           I.B. brings this matter before the court under the Interjurisdictional Support Orders Act (“ISOA”).  Pursuant to that legislation, in conjunction with the Family Law Act (“FLA”), she seeks orders that the Respondent, M.M., pay ongoing and retroactive child support for the child, A.M., born [omitted for publication].  The Respondent raised a preliminary objection challenging the jurisdiction of BC courts to make orders for child support due to the existence of a child support order made by the Russian courts on September 28, 1998.  On October 25, 2016 I ruled that the Provincial Court of British Columbia does have jurisdiction to consider the application for child support brought by I.B.  However, I also determined that this court’s jurisdiction is limited to determining child support after [omitted for publication], 2013, being the date that the child support order made in the Russian courts expired.

[2]           The issues that must be decided are the following:

[3]           It is important to note that the nature of a hearing conducted under the ISOA is unusual.  It is commenced by an applicant completing and submitting a number of documents to the designated authority in the applicant’s jurisdiction.  Those documents are then forwarded to the jurisdiction in which the respondent resides.  The respondent is then given an opportunity to file documents in response and to attend court in his jurisdiction when the matter proceeds.  A hearing is held based on the documentary evidence of the applicant as well as any documentary or viva voce evidence adduced by a respondent.  Generally, an applicant will not be present for the hearing and the court will have to rely entirely on the documents provided by the applicant with no opportunity for the applicant to respond to a respondent’s documents or evidence.

[4]           In the present case the applicant was permitted to appear at the hearing by telephone.  However, that allowed her to hear the evidence only and I did not allow her to testify by telephone, nor was she permitted to conduct any cross-examination by telephone.  She did however, have the benefit of Paul Reimer appearing as Amicus Curiae to assist her and the court in having the matter properly placed before the court.  Mr. Reimer cross-examined the Respondent and made submissions on behalf of the applicant.  Mr. Reimer’s role was necessarily circumscribed by the nature of his limited role.  In short, the ISOA requires that the court do the best that it can with imperfect evidence and that is what I am required to do in this case.

[5]           The background facts are as follows.  The parties were married in Russia in 1994.  They had one child, namely A.M., who was born on [omitted for publication].  The parties separated in July 1998 while still living in Russia.  By order of a Russian court dated September 28, 1998, the Respondent was ordered to pay ¼ of his income to the applicant for the support of A.M. until she reached the age of majority.  The parties disagree as to whether he in fact paid the full amounts owing by him under the Russian court order.  The Respondent has provided a translation of what appears to be a Russian Court order indicating that all amounts were paid under that order but I understand that the Applicant contests that assertion. 

[6]           A.M. turned 18 on [omitted for publication], 2013 and, accordingly the Respondent’s child support obligations under the Russian order terminated.  The parties were divorced by the Russian courts in December 1998.

[7]           In 2003, the Applicant re-married an American and moved to North Carolina with A.M. where they have both resided since then.  The Respondent remarried in 2001 and has a 14 year old son with his current wife.  In 2008 the Respondent, along with his wife and son, moved to British Columbia where they have continued to reside since that time.

[8]           In the period initially following their separation, A.M. resided primarily with the Applicant with the Respondent having access to her.  The Respondent asserts that the Applicant made his access difficult and limited the time he was able to spend with her.  He says that on January 1, 2003, he came to drop off presents for A.M. and discovered that the applicant had moved to the United States with A.M. and her new husband, without the Respondent’s consent.  He acknowledges however, that he and the Applicant had previously had discussions about her moving to the US with A.M. which he was prepared to agree to provide his parental rights, including visitation, were secured in a written agreement.  The Respondent states that when no such written agreement was reached the Applicant simply left without his consent.

[9]           Following this move, the Respondent says that he did not know where the applicant had moved to.  However, in 2004, he travelled to the USA for work and while there he was able to track down the Applicant’s home address and he travelled there to see A.M.  He said that he was only permitted to spend one hour with her.  He says that in subsequent years he sent birthday cards each year until 2012 but did not see her again or any further contact with her until 2011.

[10]        The Applicant has a very different view of how it has come to pass that A.M. and the Respondent have not had a relationship over the years.  She states that the Respondent was aware of her address after she moved to the USA with A.M. and simply chose to not come and visit her or to maintain a relationship with her.  She states that he did not bother to even send birthday cards to A.M. over the years, an assertion that the Respondent denies. 

[11]        In December 2011, A.M. contacted the Respondent by e-mail expressing some disappointment and frustration towards him for not having a relationship with her.  He responded and there ensued a number of e-mail exchanges between them over the next few months with discussions of A.M. possibly coming to visit the Respondent in British Columbia.  He sent her a $3000 as a birthday gift in [omitted for publication], 2012. 

[12]        Communications between them stopped in May 2012 with one further e-mail from A.M. sent in September 2012, in which she requested details of the Respondent’s address, employment and education to assist her in completing college applications.  The Respondent believes that this last e-mail was actually written by the Applicant and was an attempt to get information from him to assist her in the child support application that she was in the process of bringing in North Carolina.  The Respondent then sent a final e-mail to A.M. in which he included the statement, “If you want me to take care of you as your father (divorced but still a father), try to be more of a daughter.”  The Respondent has not attempted to communicate with her since that time.  A.M. was 17 at that time.

[13]        Since graduating from high school A.M. has been attending university away from home at the University of South Carolina.  She appears to have been attending full time and receiving very good marks.  She completed her undergraduate degree in management in the spring of 2017.  Her LinkedIn profile suggests that she is currently working as a management trainee and intends to enrol in a Master’s program in 2017/2018.  She recently became engaged.

[14]        The Respondent is 56 years old and has the Russian equivalent of a PhD in linguistics.  When he resided in Russia he was employed as a university professor, becoming the Dean of the department of foreign languages and eventually becoming a Vice President of the university before moving to Canada in 2008.  Notwithstanding his significant education and professional success in Russia, he says that his income remained very low.

[15]        Since moving to Canada, the Respondent states that he has been unable to obtain employment at the level he previously worked at in Russia.  His declared income as disclosed on his income tax returns each year has been as follows:

[16]        Complete tax returns were not provided by the Respondent for subsequent years and only his notices of assessment were provided.  As such, it is impossible to break down the sources of his income in those years.  In any event, his line 150 income (total income) indicates as follows:

[17]        Surprisingly, no tax return or even notice of assessment was provided for 2015 although the Respondent’s 2016 T1 return indicates that his 2015 line 150 income was $8,575 inclusive of a net business loss of $2,493.  His 2016 return indicates a total income of $7,527, again inclusive of a net business loss of $2,867.  The 2016 tax return that was provided to the court did not include the schedule which details rental income and expenses in order to determine the appropriateness of the rental expenses claimed.  I note that gross rental income claimed was $35,846 with a net of $10,034 in 2016.  Overall, the Respondent’s disclosure of documents to permit a proper analysis of his income has been woefully lacking.

[18]        The Respondent states that he has struggled to earn any employment or self-employment income since coming to Canada.  He does consulting work, running workshops and doing multicultural training, but appears to earn only a nominal income from that endeavour.  He became licenced as a realtor in 2014 but has only earned commissions on 3 sales and a partial sale since then.  He says that he has applied for over 1000 jobs, academic and non-academic.  During the trial he provided a list of jobs that he has applied for over the years.  I note from that list that he has applied for primarily academic positions, despite his continued lack of success in obtaining any of those jobs.  The list mentions only a few jobs having been applied for prior to 2016, although the list is not necessarily exhaustive.  In 2010, he delivered newspapers for about a year given the lack of other opportunities that had arisen.  He states that he cannot compete in consulting due to his foreign credentials.  He has made some efforts to upgrade his skills but this appears to have been unsuccessful.

[19]        Despite his very low income, the Respondent purchased two rental properties with his wife upon their arrival in Canada.  The purchase funds came from selling their property in Russia.  In 2011 and 2012, the Respondent’s wife received an inheritance of approximately $1,100,000.  The Respondent and his wife purchased a 27 foot power boat for $30,000.  In 2011, his wife purchased the home that they currently reside in with a $200,000 down payment.  The house remains in his wife’s name, although the Respondent acknowledges that he has put $300,000 of his own money into the home by way of renovations.  The boat was sold in 2014 for $26,400 and, due to an order that the Applicant had obtained in the North Carolina courts (which was subsequently set aside on appeal), $6,500 of those proceeds were attached and sent to the Applicant.

[20]        The Respondent’s wife is a physician but has not worked since coming to Canada.  Her mother resides with them and they provide financially and otherwise for her.  The Respondent travels to Russia at least once per year to visit his wife’s family there, although he states that some of these travel costs are sometimes covered by the organizations that have invited him to lecture there.  He states that he has $12,000 in debt.

[21]        There can be no dispute that A.M. continued to be a “child” as defined in the FLA after she turned 18 on [omitted for publication], 2013.  The presumptive rule set out in s. 3 of the Child Support Guidelines requires that child support be paid until a child attains the age of majority, which is 19 in British Columbia.

[22]        Upon attaining the age of 19, A.M. will need to continue to satisfy the definition of “child” in s. 146 of the FLA in order to continue to receive child support.  That definition states:

[23]        The evidence is that A.M. has been attending university full time since graduating from high school, and doing well in that endeavour.  Consequently, at first blush, I have no hesitation in finding that she has remained a “child” and thus entitled to receive child support up until the completion of her undergraduate degree, which appears to have been April 2017.

[24]        The Respondent argues however, that A.M.’s conduct in rejecting a relationship with her father should effectively disentitle her from receiving child support.  That proposition comes from the last factor of what is known as the Farden factors (Farden v. Farden (1993) 1993 CanLII 2570 (BC SC), 48 RFL 3d 60), which the court should consider on an application for child support in relation to a child over the age of majority.  That particular factor states:

[25]        The Respondent also relies on the statement from Law v. Law referred to in Marsland v. Gibb, 2000 BCSC 471 at paragraph 32 which states as follows:

[26]        Our Court of Appeal has more recently commented on the very high threshold that must be met for a child to be disentitled to child support by virtue only of the quality of the parent child relationship.  In Shaw v. Arndt, 2016 BCCA 78 the court stated at paragraph 29:

[27]        The evidence in this case falls short of the threshold contemplated by the court of appeal in Shaw.  I accept that the Applicant changed A.M.’s residence to the USA without the consent of the Respondent.  I also accept that the Applicant’s actions were largely responsible for creating the estrangement between A.M. and the Respondent.  However, child support is the right of the child and there is no basis for blaming A.M. for the continued estrangement.  It was A.M. who reached out to the Respondent in 2011 and initiated the thawing of their relationship.  Ultimately it was the Respondent who ended that rapprochement when he became suspicious of A.M.’s motives in reaching out to him.  As such, I do not find that the nature of the estrangement between A.M. and the Respondent is such as to displace the Respondent’s obligation to continue to pay child support for her benefit.

[28]        The evidence indicates that A.M. graduated with a bachelor’s degree in April 2017.  There is a suggestion that she may be going on to a Master’s program in September.  However, the evidence of that was extremely limited.  In addition, there is no evidence whatsoever of A.M.’s present means or circumstances that would permit any kind of assessment of the appropriateness of continuing child support obligations after a first degree.  Furthermore, even if that evidence were present, while is common for parents to be required to support their children for one degree, it is far less common for that obligation to continue into a second degree: Wence v. Wence, 2015 BCSC 2616 at para 62.  As such, I find that the Respondent’s obligation to pay child support to the applicant for the benefit of A.M. is terminated as of April 30, 2017.

[29]        After a child reaches the age of 19, child support obligations are determined based on s. 3(2) of the Children Support guidelines which states:

[30]        The Respondent’s line 150 income in 2013 and each subsequent year falls below the lowest income threshold for child support obligations to arise.  It is only when a payor’s annual income is above $10,800 that child support obligations will arise.  If I am to accept the Respondent’s line 150 income as the reference point for his child support obligations he would not be required to pay any child support whatsoever.

[31]        The Applicant argues that income should be imputed to the Respondent.  Imputing income is determined under s. 19 of the Guidelines, which states:

[32]        The applicable sub-section is 19(1)(a).  Bad faith is not required to meet the definition of “intentionally underemployed’: Hanson v. Hanson, 1999 Canlii 6037 (BCSC).  The parent required to pay is intentionally under-employed if that parent chooses not to work when capable of earning an income.  Hanson sets out a number of principles that apply when determining capacity to earn an income.  They are (at para 14):

[33]        The Respondent is highly educated.  He was very successful professionally when he worked in Russia, and although he states that his income was very low, he did manage to build up significant capital which he brought with him to Canada.  However, since arriving in Canada his income has been almost entirely passive, being derived from investments and rental income.  His consulting income has been minimal and in recent years has been negative.  His recent income generated from work as a realtor is extremely modest.

[34]        The Applicant has similar credentials to the Respondent with the equivalent of a PhD from Russia.  She has been employed as a University professor in North Carolina since she moved to the USA in 2003.  Her employment income in recent years has been between $53,000 and $58,000.  She suggests that there is no reason the Respondent is not capable of earning a similar income or greater.  Mr. Reimer, on her behalf, suggests that an imputation of his income could use a reference point of the average income of a male in British Columbia, which is $47,000, and increase that amount somewhat to reflect the fact that the Respondent’s education and abilities are far greater than the average male.

[35]        I find that the Respondent meets the definition of “intentionally under-employed” in s. 19(1)(a).  It is simply not realistic for him to have had virtually no non-passive income since immigrating to Canada.  It appears that the Respondent has been applying only for jobs that come close to matching his academic skill set.  While that is understandable and perhaps even possible while he is able to rely on his wife’s investments to support him and his family, it is not justifiable where he is failing to meet his child support obligations.  Even if he were to work full time at the current minimum wage of $10.85 per hour that would result in an annual income of $22,568. 

[36]        The evidence indicates that the Respondent leads a reasonably prosperous life.  He travels regularly to Russia as well as to the United States to visit friends.  He has been able to put $300,000 of his own money into renovations on the family home.  He purchased a new Honda Odyssey in 2013 with his wife.  He co-owns two rental properties with his wife and previously bought and sold a $30,000 boat with her.  While he states that he needs to be available to care for his aging mother in law who lives with them, that argument does not hold up given the fact that his wife does not work outside the home.

[37]        While I accept that the Respondent may face some challenges in finding work in his specific field, that does not relieve him from child support obligations.  However, I do not believe that simply applying an average income of BC males, or a higher amount, is appropriate as that does not reflect the Respondent’s particular circumstances.  Ascribing a minimum wage income to him and adding to that his line 150 income of recent years would result in an income of approximately $30,000.  I note that his 2015 financial statement sets out annual expenses of $29,170.  However, I believe that the Respondent is capable of earning more than minimum wage given his education and experience.  As such, I would impute an annual income of $35,000 to the Respondent for determining his child support obligations.

[38]        Under the child support guidelines, an income of $35,000 gives rise to a monthly child support obligation of $318.  For the 12 months between A.M.’s 18^th and 19^th birthdays, the arrears of child support would therefore be $3816. 

[39]        After A.M.’s 19^th birthday, the child support amount prescribed by s. 3(2) of the guidelines is either the aforementioned monthly guideline amount or if the court considers that amount inappropriate, the amount that the court considers appropriate having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. 

[40]        When a child attends school away from home it is generally inappropriate to require a payor to pay the guideline amount as well as a proportionate share of post-secondary education expenses: Catallo v. Catallo, 2015 BCSC 1276.  The evidence indicates that A.M. has been attending university away from home, and in fact in a different state.  However, she appears to have been returning home each summer and taking a summer job.  Her income from summer employment has ranged from $3000 to $8000 each summer.  Because there are significant post-secondary education costs claimed by A.M., those must be considered in conjunction with a determination of child support while she is away at University.

[41]        A.M. has attended the University of South Carolina.  As a non-resident of South Carolina, her tuition was significantly higher than it would have been had she been a resident.  The difference is approximately $20,000 each year.  There was no justification in the evidence for her attending a more expensive out of state university.  Furthermore, where a child chooses to pursue a course of education which is significantly more expensive, it is incumbent on the child (or the custodial parent seeking a contribution) to enter into meaningful discussions with the parent who is expected to contribute:  Z.D.D. v. R.C.G., 2004 BCSC 1239 at para 27.  That did not occur in this case.  I am not prepared to require the Respondent to contribute to the difference in costs between the in state costs and the non-resident costs.  The total of tuition, housing, meals and books for each year of the four years for a South Carolina resident student is $23,704.  The total of those costs for four years would be $94,816. 

[42]        The documentation also shows that A.M. had also obtained student loans in the amount of $72,744 for the 2.5 years of her university education up to the date that the last documentation was provided to the court.  If that amount is annualized over the 4 years of her education it would amount to $116,390.  Thus the student loans that A.M. has qualified for and received will more than cover her education costs based on the in-state resident rates.  Any surplus of the loans, as well as her summer employment earnings can go towards the increased costs she has chosen to incur by attending an out of state university.

[43]        Because all of A.M.’s employment costs, or at least the education costs that I find justifiable, are covered by student loans, the Respondent would have no obligation to contribute to those costs.  As such, under these circumstances I do not find it appropriate to suspend the Respondent’s guideline child support obligations while A.M. is away at school since to do so would be to unfairly benefit him from A.M.’s diligence in seeking student loans.  As such, the Respondent’s guideline child support obligation of $269 per month would continue up until and including April 2017 when A.M. completed her university degree.  The total of the Respondent’s child support payments for the months from [omitted for publication], 2013 to April 2017 is therefore $13,181.

[44]        The applicant has also claimed a contribution to a number of other special expenses.  A number of those expenses include such things as food, vacations and clothes, none of which are expenses that the Respondent would be required to contribute to.  I have also disregarded expenses such as sorority fees, cell phone costs, and vehicle insurance.  Any expenses which were incurred prior to [omitted for publication], 2013 when the Russian order governed, are also not claimable.  The expenses left are as follows:

[45]        The claim for NC Flex (Dental) is not allowed as it is not clear from the documents provided that this expense was related to A.M.  As such, the total of these additional special expenses is $4769.44.  Using an approximate exchange rate of 1.2 between US and Canadian dollars, the outstanding amount is $5723.32 CDN.  As I have found that the Respondent’s imputed income is approximately one half of the applicant’s, the Respondent’s 1/3 proportionate share of medical premiums and dental expenses is $1907.77.

[46]        The total arrears of child support payable by the Respondent to the claimant for the period of [omitted for publication] 2013 to April 2017 are $15,900.  The Respondent is also required to pay the applicant $1907.77 as his share of special expenses for that same period.  The total of these two amounts is $17,807.77.  From this amount will be deducted the $6,500.00 which was attached from the sale of the Respondent’s boat in 2014 and paid to the Applicant.  There will not be a deduction for the $3,000 that the Respondent sent to A.M. in February 2012.  This was clearly intended as a gift to A.M., and as such, cannot qualify as child support.  Thus the net amount of child support arrears and contribution to special expenses payable by the Respondent to the Applicant is $11,307.77 which amount is payable forthwith.