IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is an application by C.A.P. for retroactive child support going back to August 2015, ongoing child support and ongoing s. 7 special or extraordinary expenses. C.E.H. seeks an order for shared costs or shared transportation. An additional issue arises from C.E.H.’S income which has largely been non-taxable since 2015.

[2]           C.A.P. lives in Merritt with her three children, C.R.H., born [omitted for publication]; C.D.H., born [omitted for publication]; and P.B., a child of C.B. She is now six.

[3]           C.E.H. has three other children from a new relationship. He is not bringing a hardship application. It is clear based on the financial information presented to court that even with his additional children and the travel costs, C.E.H. would not meet the hardship test.

[4]           The only special or extra-ordinary expense sought at this time by C.A.P. is for piano lessons the girls have started to take. When the piano lessons first began, a friend had paid for those lessons. However, that financing is no longer available. Both of the girls enjoy piano and would like to continue taking the lessons. C.E.H. agrees that it is objectively worthwhile. The teacher they are taking lessons from is highly recommended. C.A.P. agrees that future special or extra-ordinary expenses must be based on mutual consultation.

[5]           The parties are essentially agreed that the distance between the two homes is, for a round trip, roughly 256 km although Mr. Dundee argued that the distance should be rounded up to 260 or 265 km for the incidental travel associated with pick-up and drop-offs.

[6]           C.E.H. has been paying C.A.P. $200 per month in child support after C.A.P. filed her application in July 2015. C.E.H. acknowledged he received the papers that she had served through his friend and said that there was a discussion that he start paying $200 per month. With some slight difference in their recollection of what C.A.P. said, it is agreed by the parties that C.E.H. had no expectation that the $200 per month would continue indefinitely. C.A.P. said that she agreed that it was “fine for the time being” and wanted a court to decide the appropriate amount. C.E.H. recalled that she had said it was “fine for now”. It is a distinction without a difference.

[7]           The parties evidently had another discussion in December 2015 but C.E.H. changed his number after that time and did not give C.A.P. the new phone number until recently. Because C.A.P. could not prove that the original application had been served on C.E.H., she filed a new application in August 2016. C.E.H. never filed a reply to the original application.

[8]           During the period of time that I must consider whether there was delay, C.A.P. was also suffering from an illness. It was not a trifling illness. C.E.H. admitted that he knew C.A.P. was sick, but that she had indicated to him that she was “fine”.

[9]           C.A.P. has described her difficulties with driving long distances. Her illness has left her subject to fatigue at the end of long days. She also has another child to take care of on her own.

[10]        C.A.P.’s income is only relevant to considerations of whether there ought to be an adjustment in child support to account for C.E.H.’s transportation costs and to determine the proportionate share of special or extra-ordinary expenses. Despite C.A.P.’s very limited income, she has been extraordinarily good about not incurring debt. This cannot be held against her when I consider the equities of C.E.H.’s request. As I have noted, C.A.P. has the care of her three children, has struggled with a significant illness, and has only had limited employment. She is presently on income assistance.

[11]        C.A.P. took the Single Parent’s Initiative Program from which she was able to obtain employment very briefly at [omitted for publication] in Nicola Valley. Due to her illness and inability to manage the position, she was again unemployed within months. She has been continuing to look for work but it is difficult when she is waiting the results of her health tests. C.A.P.’s income in 2015 was $15,087.38. There are no special or extra-ordinary expenses sought for 2015. In 2016, her income was $17,383. Again, there are no special or extra-ordinary expenses sought for 2016. However, her income is expected to be roughly the same as 2016, circumstances not having improved.

[12]        C.E.H. had employment at [omitted for publication] in 2014. He netted $800 every two weeks until May of that year. He also commenced working at [omitted for publication]. He made $1,100 there until [omitted for publication] closed. He ultimately started working with the [omitted for publication] in late 2015. Mr. Ross calculated C.E.H.’s income for 2015 with simpletax.ca gross-up on non-taxable income of $19,137, plus his taxable income for a total of $35,084. Mr. Dundee estimated the non-taxable income at 75 hours every two weeks, $16 per hour from June 1 for a total of $18,200. This amounts to a total income based on the DivorceMate calculations for gross-up for 2015 in the sum of $31,200. Mr. Dundee submitted that C.E.H. would have earned roughly $1,000 to $3,000 less than that.

[13]        I am satisfied on the evidence before me that C.E.H.’s 2015 income is $31,200 with a child support obligation for two children of $482.

[14]        C.E.H.’s tax return and T4 for 2016 show earnings in the approximate sum of $34,000. The grossed-up amount is $40,405. Counsel was unable to provide the percentage used by that site for the gross-up. There is no dispute regarding C.E.H.’s income for this year setting his income including grossed-up amounts at $40,405. This is a child support obligation for two children in the sum of $618 per month.

[15]        C.E.H.’s anticipated income for 2017 based on his financial statement is $30,600. This will be entirely non-taxable. The grossed up amount is agreed to be $38,370. The child support obligation for two children for 2017 is $587 per month.

[16]        However, soon after these proceedings concluded on October 16, 2017, Mr. Dundee advised that C.E.H. had been laid off and he wished to apply to re-open the case.

[17]        C.E.H. testified that his boss sat him down on October 30 and told him that there had been complaints made against him by the Chief and Council. They felt it was best that he take stress leave or face possible termination. His position is not a union position so there is no grievance process in place. He acknowledged that he was going through some difficult times in his community, family and his position at work so this was probably a good recommendation.

[18]        C.E.H. has consulted his doctor but the only concerns appear to be about his liver. He has been given anxiety medication and now sees a counsellor once a week. The [omitted for publication] does not pay benefits while on stress leave. His doctor has advised him that his condition is not a disability and therefore he cannot apply for stress leave.

[19]        C.E.H. had applied for employment insurance and was just accepted the week of December 7. When he was accepted, he received $1,350 for catch-up benefits and will continue to receive $450 per week thereafter. This will amount to $1,800 per month, or $23,400 per annum if he is on employment insurance for an extended period of time.

[20]        C.E.H.’s current partner continues to be unemployed. Compounding the difficulties, C.E.H. has now blocked C.A.P. on Messenger because she had wanted him to borrow money from his mother to pay the child support.

[21]        C.E.H. has also not very strenuously pursued any investigation with his employer about what is expected of him to be able to return to work, when he would be returning to work, or otherwise. He has registered with Aboriginal Skills and Employment Training Strategy (ASETS) in Merritt, which assists First Nations people in obtaining skilled employment, has applied on a job search engine, and has updated his resume. There do not appear to have been very strenuous efforts taken with ASETS, he has rejected the job postings on the search engine because they were jobs in Alberta and Saskatchewan, and his references listed on his resume are ones who are unlikely to give him a good reference.

[22]        While it may seem that the termination from his employment is rather new, this is not the first time that C.E.H. has had to apply for work. His efforts ought to have been more significant and energetic given his obligations both with his current household and with his daughters residing with C.A.P. In the end result, he has only applied for one job and claims there is not much other work. At this point, C.E.H. should be looking at employment outside of his preferred field in order to provide better for his two families. Instead, it appears that he is simply waiting out the Chief and Council at [omitted for publication] until a change is expected on April 1. That is far too far off into the future and much more is expected of him. This is particularly concerning since his employment insurance is expected to run out in September 2018.

[23]        At this time, I am not prepared to suspend or alter C.E.H.’s child support obligations. For 2018, his child support obligation will be based upon his income in 2017. However, I am giving liberty to C.E.H. to apply to have this reconsidered upon him amassing a significant amount more evidence of efforts to find employment, efforts to resolve his difference with [omitted for publication], and concrete efforts to register and/or train with such organizations as ASETS. At this point, his unemployment is neither longstanding nor expected to last beyond April 1. With more significant efforts on C.E.H.’s part, he may well be back to work before that date, although with another employer.

[24]        Based upon an annual income of $38,370, the child support obligation for two children effective December 1, 2017 is $611 per month.

[25]        The starting point for consideration of retroactive child support is the decision of D.B.S. v. S.R.G, 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231. There is no order for child support in the case before me, although C.E.H. has been paying $200 per month since receiving C.A.P.’s application.

[26]        At paragraph 80 of D.B.S., the court held this:

[27]        In other words, it is unreasonable for C.E.H. to believe he was acquitting himself of his obligations towards C.R.H. and C.D.H. in the absence of special circumstances. There are no such special circumstances in the case before me. C.E.H. did not make himself aware of what his obligations were for child support and certainly did not pay in accordance with his income.

[28]        The next question is whether C.A.P. was reasonable in delaying between filing her application in July 2015 and proceeding with her new application in 2016, ultimately resulting in the hearing before me. At paragraph 105 of D.B.S., the court said this:

[29]        In this case, C.E.H. made no effort to ascertain his obligation, changed his telephone number and failed to file a reply in the original proceedings. While this is certainly not the most egregious conduct, it is conduct I must consider in determining whether it is appropriate to make the retroactive order. This is exemplified at paragraph 107 of D.B.S.:

[30]        It cannot be said that there was any form of agreement between the parties that C.E.H. would be meeting his obligations simply by paying $200 per month. Even on his evidence, the payment amount was accepted “for now”. It cannot be said that he had any reasonably held belief that he was meeting his support obligations by making such a low payment.

[31]        The court set out at paragraph 108 of D.B.S.:

[32]        C.E.H. argues that the bringing of a retroactive order now would cause him considerable hardship based on the significant amount by which he would have underpaid that child support. In D.B.S., the court acknowledged that it is not always possible to avoid hardship and that the court should attempt to craft the retroactive awards to minimize that hardship:

[33]        The effective date of notice is the appropriate date for the commencement of the retroactive payments. In this case that would be August 2015. It is not necessary that the date of service of the application be used to constitute effective notice, as observed in the D.B.S.:

[34]        Of course, this does not end C.A.P.’s obligation. Having raised the issue of child support, she had a positive obligation to commence her proceedings:

[35]        In the case before me, C.A.P. did pursue this matter with C.E.H. After he changed his number, she realized she was not going to be able to prove service and filed a new application. It cannot be said that the passage of time between commencing the first proceedings and second proceedings constitutes a prolonged period of inactivity, given the health challenges she had at that time and her positive steps to attempt to have an affidavit of service provided.

[36]        In Walker v. Walker, 2011 BCSC 582 (CanLII), 2011 B.C.S.C. 582 the court found that where there was no reasonable basis for assuming that the informal payments would satisfy the entirety of the legal obligation, it may be difficult to find a hardship associated with enforcing those retroactive payments if it is a relatively short time after they arose. So it is in this case.

[37]        I am satisfied that it is appropriate to date C.E.H.’s retroactive child support obligations to August 1, 2015. Less the payments C.E.H. has paid to C.A.P. over time, C.E.H.’s child support obligations are as follows:

[38]        Undoubtedly, even if C.E.H. has been paying the $200 per month consistently, he will have significant arrears of child support. Particularly given his current circumstances, it is going to take him some time to repay this. I fix his arrears payments at an additional $100 per month, commencing April 1, 2018. This will give him sufficient time to establish whether he is returning to [omitted for publication] or find other gainful employment equivalent to what he has enjoyed in the last couple of years.

[39]        I also order that C.E.H. provide to C.A.P. on a monthly basis evidence of his ongoing job search, proof of the efforts he is making with respect to returning to work at [omitted for publication], and confirmation of any employment he may obtain, whether it is long term or short term.

[40]        It is well established that not every activity the children engage in will be considered a special or extra-ordinary expense. In Walker, supra, the court inferred as a matter of common sense that organized recreation is essential to the proper development of children. In this case, C.E.H. recognized that the piano lessons were a worthwhile undertaking for the children. The expense was not expected by C.A.P. but the enjoyment it brings to the children is clearly in their best interests.

[41]        Going forward, the parties have an obligation to discuss recreational activities prior to enrolment. C.A.P. cannot expect C.E.H. to pay for every extra-curricular activity she may wish to enrol the children in, and he cannot expect that his children will enjoy extra-curricular activities entirely at their mother’s expense.

[42]        I am satisfied that the piano expenses are ones which ought to be shared by the parents. C.A.P. shall produce to C.E.H. a receipt for the piano lessons. C.E.H. shall then pay his proportionate amount of those special or extra-ordinary expenses within 30 days. Based upon C.E.H.’s annual income of $38,370 and C.A.P.’s annual income of $17,383, C.E.H.’s proportionate share of those special or extraordinary expenses is 70%.

[43]        Section 10 of the Guidelines provides that the court may award an amount of child support different than the amount determined under the Guidelines if the court finds that the spouse making the request would otherwise suffer undue hardship. Such circumstances that may cause a person to suffer undue hardship include unusually high expenses in relation to exercising access to a child.

[44]        Mr. Dundee asserted his client is not proceeding under the hardship provisions of s. 10 but is asking the court to make orders about parenting time, specifically pick-up and drop-off, that would recognize the extra-ordinary costs of exercising access. What is aptly described as a lukewarm endorsement by Mr. Dundee, the Court of Appeal in Greene v. Greene, 2010 BCCA 595 (CanLII), 2010 B.C.C.A. 595, held at paragraphs 58 and 59 that it was an open question whether the courts could continue to make orders for payment of access costs or other ancillary orders related to exchange following the passage of the Federal Child Support Guidelines.

[45]        Such results were obtained in the British Columbia Supreme Court decisions of Walker, supra and Kelly v. Kelly, 2011 BCCA 173 (CanLII), 2011 B.C.C.A. 173, both being decisions made after the Federal Child Support Guidelines  came into effect.

[46]        In Kelly, supra, the Court of Appeal considered the hardship claim with respect to access costs. The court applied the witness travel tariff under their Rules of Court against the distance travelled to determine whether there were unusually high costs for the Respondent. The court determined that the Appellant travelled over 600 km for each visit and the Respondent travelled over 700 km for each visit. The Respondent had access three out of each five weekends amounting to as much as $645 for her. Those costs, though, had been taken into account when setting the quantum and duration of spousal support.

[47]        In this case, as in Kelly, C.E.H.’s personal circumstances do not constitute undue hardship. If I am to make any account for the costs of access, it should not be by reducing C.A.P.’s child support either retroactively or in the present. She lives under quite modest means, has managed her affairs very well in spite of those modest means, has significant health challenges and cannot be financially responsible for C.E.H.’s parenting time costs. Additionally, the distance between the parties is less than 300 km.

[48]        The question then is whether C.A.P. should bear some of the burden of physical transportation. This too would bring some costs to her, both financially and physically.

[49]        C.E.H. presently has parenting time once per month. Given the disparity in their incomes, the relative closeness of their homes, the limited amount of parenting time C.E.H. has each month, the occasional assistance he enjoys from family transporting his daughters and his persistent failure to pay reasonable child support, I do not find it appropriate in the circumstances to grant C.E.H. such relief or to impose such a burden on C.A.P.