IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           J.A.K. and A.J.T. are the parents of two children, D.R.K. born [omitted for publication] and R.J.K. born [omitted for publication].

[2]           On February 21, 2002, His Honour Judge Steinberg made an order imputing income to Mr. T. of $40,000.00 and setting child support for two children at $566.00 a month starting March 1, 2002.  Mr. T. did not attend this hearing.

[3]           This is an application by A.J.T. to change, suspend or terminate the February 21, 2002 support order of His Honour Judge Steinberg or to cancel or reduce child support arrears owed to J.A.K.

[4]           Mr. T. said he was not aware of the February 21, 2002 court order until sometime in 2009 when he saw that his Goods and Services Tax (GST) refund had been attached for payment of support.  He then filed an application to vary the support order.  Mr. T. explained that he was in receipt of income assistance at the time and did not have any legal help.

[5]           On September 19, 2014, Mr. T.’s application came before His Honour Judge Yee for hearing.  Mr. T. was not present and his application was dismissed.  Mr. T. said that he was late attending court.

[6]           Almost two years later on August 11, 2016, Mr. T. filed a new application to change or cancel the support order and to cancel or reduce the arrears, which is the application before me now.

[7]           Mr. T. said the filing of his current application was delayed because he was seeking information that had been requested by Ms. K’s legal counsel.  Mr. T.’s father passed away in 2012 and Mr. T. was asked to obtain estate information to confirm if he was entitled to any funds out of his father’s estate.

[8]           On January 16, 2017, Judge Giardini ordered that Mr. T. provide by February 3, 2017 a notarized copy of correspondence relating to the Will and Probate of W.T. of [omitted for publication] in the County of [omitted for publication].

[9]           Mr. T. provided a copy of probate documents which show that he was not entitled to any funds under the Will of his father.  The copy was not notarized despite Judge Giardini’s order requiring such.  Despite this failure I accept the copy of the Will as evidence that Mr. T. was not entitled to any funds from the estate of his father.  No evidence was called by Ms. K to suggest otherwise.

[10]        This matter came before me for hearing on August 18, 2017.  Mr. T. testified that in 2002, he was working as a driver of a tractor trailer and earning $23.61 an hour, or $48,000.00 per annum.  He testified that he lost his employment later in 2002 due to drug and alcohol issues.

[11]        Mr. T. testified that he has not held a job since 2002.  He testified that he has medical issues that prevent him from working.  This includes two collapsed vertebrae in his back and sciatica.  He says he suffers from a hereditary back problem that has caused a degenerative disc in his back.

[12]        Initially, Mr. T. did not provide any medical evidence to support his claim.  I allowed him an adjournment to September 20, 2018 to give him an opportunity to provide medical evidence.  The documents he provided are records from Burnaby General Hospital.  They include the following:

[13]        This medical information is very poor.  There is no diagnosis.  There is nothing recent.  Certain parts of the medical records seem to be missing and some of the notes do not have Mr. T.’s name.

[14]        Mr. T. also advised me that he previously filed medical information with the court.  I have reviewed the court file and there are no medical notes or reports.

[15]        Mr. T. said that he did have other records which he did not bring to court.  Mr. T. does not have a lawyer and lacks a clear understanding of the legal process.  I told Mr. T. on September 20, 2017 that any documents filed with the Registry or given to Ms. K does not automatically become evidence unless those documents are also entered as an exhibit at trial.  I also informed Mr. T. that he needs to satisfy me that he has suffered some kind of material change that prevents him from complying with the support order, whether now or in the future.  I further told him that under a different legal test he needs to show that it would be grossly unfair for me to not cancel or reduce support arrears, which also requires evidence of a material change.  I urged Mr. T. to seek legal advice and referred him to the Justice Access Centre located at the Robson Square Court building.  I reluctantly allowed a further adjournment and ordered that Mr. T. provide additional medical information.

[16]        Mr. T. did file further documents with the court on January 30, 2018 and February 5, 2018.

[17]        The documents filed on January 30, 2018 include the following:

[18]        Mr. T. filed a copy of a Brooke Radiology Associates report on February 5, 2018.  The report referred to an examination date of February 1, 2018.  Excerpts from this report are as follows:

[19]        Mr. T. also filed two Financial Statements, one on February 17, 2014 and the other on August 11, 2016.

[20]        Mr. T.’s 2002 tax return shows T4 earnings of $389 and social assistance payments of $5,950, for a total of $6,339.

[21]        Mr. T.’s 2003 tax return shows T4 earnings of $1,696, other income of $7,277 and social assistance payments of $5,000, for a total of $13,973.

[22]        Mr. T.’s 2004 tax return shows T4 income of $3,850 and social assistance payments of $7,075, for a total of $10,925.

[23]        Mr. T.’s 2005 tax return shows social assistance payments of $6,581.

[24]        Mr. T.’s 2006 tax return shows social assistance payments of $7,090.

[25]        Mr. T.’s 2007 tax return shows social assistance payments of $9,951.

[26]        Mr. T.’s 2008 tax return shows social assistance payments of $13,559.

[27]        Mr. T.’s 2009 tax return shows social assistance payments of $9,955.

[28]        Mr. T.’s 2010 tax return shows social assistance payments of $10,672.

[29]        Mr. T.’s 2011 tax return shows employment income of $471.64 and social assistance payments of $10,672.04, a total of $11,143.68.

[30]        Mr. T.’s 2012 tax return shows employment income of $1,033.32 and social assistance payments of $10,672.04, a total of $11,705.36.

[31]        Mr. T.’s 2013 tax return shows employment income of $290.67 and social assistance payments of $10,672.04, a total of $10,962.71.

[32]        Mr. T.’s 2014 tax return shows employment income of $39.50 and social assistance payments of $10,672.04, a total of $10,711.54.

[33]        Mr. T.’s 2015 tax return shows 2015 employment income of $842.56 and social assistance payments of $10,872.04, a total of $11,714.60.

[34]        Mr. T. has not filed tax returns for the years 2016 or 2017.

[35]        A document from the Ministry of Social Development, Employment and Assistance office, signed July 19, 2012 indicates that Mr. T. was receiving Persons with Disabilities assistance in the amount of $946.42 a month.  There is no indication when this started or the nature of the disability.

[36]        Attached to the Financial Statement filed August 11, 2016 are copies of a Ministry of Social Development and Social Innovation Monthly Report.  The reports confirm payment of an allowance in June, July and August 2016, each in the amount of $946.42.  There is a reference to a “caseload” and a designation “256PWD”.  This appears to be a reference to a Persons with Disabilities designation.

[37]        Mr. T. provided an updated statement from the Ministry showing that on January 24, 2018 he was entitled to a disability payment of $1,225.42 a month.  This is equivalent to $14,705.04 a year.

[38]        Mr. T. says that he has had ongoing drug and alcohol addiction problems.  He listed the various addiction or treatment centres that he has attended, as follows:

[39]        Mr. T. gave a history of his living arrangements but he could not provide precise dates.  I think it is likely his estimates of time at each location were also only approximate.

[40]        For about two years Mr. T. was homeless and living in North Vancouver, B.C. in shelters or sleeping on the couch in the home of a mother of a friend.  Mr. T. did not say when this occurred.

[41]        Mr. T. then moved into an apartment located at [omitted for publication] where he lived for about two years before he was evicted because of planned renovations.

[42]        Mr. T. next moved to [omitted for publication] where he lived for two years before being evicted again due to planned renovations.  Mr. T. said he was then homeless and living either on the streets or in shelters.  He thinks this was again for about two years.

[43]        Mr. T. then lived at [omitted for publication] Housing for about two years until he was evicted in June 2018 because he became involved in a physical altercation between two other residents.

[44]        Mr. T. entered the [omitted for publication] Detox on July 16, 2018.  He completed the program and is now currently staying at [omitted for publication] in Vancouver, which is an alcohol and drug treatment centre.  He will be there for three months, until October 2018.  During his stay in the treatment centre, his disability benefits have been reduced to $250 a month as the Provincial Government pays for the accommodation and food costs during his stay.

[45]        Ms. K agrees that child support for R. and D. should end as of June 23, 2003, when R. went to live with Ms. K’s mother.

[46]        Ms. K says that D. returned to her care in January 2007and that child support for D. should then resume until D.’s 19^th birthday on [omitted for publication].

[47]        Ms. K feels that there remains a possibility that Mr. T. will receive money from his father’s estate, although only if the father’s Will was overturned by a court.  She had no evidence to show that the Will had been overturned though or that such an application was being pursued.  Given Mr. T.’s circumstances, it is unlikely he could afford the costs of litigation to challenge his father’s Will.

[48]        Ms. K said that she recently received funds attached by the Family Maintenance Enforcement Program (“FMEP”) that were otherwise payable to Mr. T. by the Federal Government.  This arose because Mr. T. had recently filed tax returns and was entitled to tax refund money.  Neither Ms. K. nor Mr. T. was able to tell me the precise amount attached.  Mr. T. thought it was about $4,700.00 but had no proof of this.

[49]        The tax returns provided by Mr. T. showed the following refund amounts:

[50]        This totals $542.35 but I cannot be certain this is the total amount collected by FMEP without confirmation from FMEP.

[51]        The one account statement I have from FMEP is dated November 1, 2016 and shows six payments totalling $311.10 collected from the Federal Government.  This was from late 2010 to early 2011.

[52]        Mr. T.’s application seeks two alternative remedies:

[53]        Each application involves a different legal test and I will discuss them both.

[54]        The decision Beavis v. Beavis, 2014 BCSC 422 (CanLII) tells me that I cannot combine these two approaches.  I cannot adjust the amount of support payable based on income and then reduce or cancel arrears pursuant to s. 174.  The Beavis decision dealt specifically with an application to reduce or cancel arrears and stated at paragraph 41 as follows:

[55]        I will now discuss each of the remedies.

[56]        Under section 152, I must be satisfied that at least one of the following exists:

[57]        In this case, Mr. T. argues that there has been a change in circumstances such that s. 152(a) applies.  Section 14 of the Child Support Guidelines clarifies that the type of change of circumstances that would allow a support order to be varied includes a change that would result in a different child support order.  Simply stated, that includes a material change in income.

[58]        Another factor I must consider in a section 152 application is whether the application was made in a timely manner.  I refer to the decision L.B. v. J.K., 2012 BCPC 231 (CanLII), where the Court stated:

[59]        In the present case, the court order was made on February 21, 2002 in the absence of Mr. T.  Mr. T. states that he did not learn of the order until 2009 when he saw that his GST refund was attached.

[60]        I refer to the FMEP Account Statement filed as an exhibit in these proceedings.  It shows funds attached from the Federal Government starting in 2010.  The Account Statement also indicates that this file was not enrolled with FMEP until July 2010.  I think it is more likely that when Mr. T. refers to an attachment of GST funds leading him to learn of the support order, it was in 2010.

[61]        Mr. T. filed his first application to change the support order in 2011.  That application was dismissed in 2014 when Mr. T. did not attend court on time.  His current application was filed August 2016.  Mr. T. said the current application was delayed as he was gathering information about his father’s estate to show that he was not a beneficiary under his father’s Will.  That is now 14 years after the order was made and 6 years after Mr. T. likely learned of the order.  In my view, Mr. T. has not pursued his application in a timely manner, even taking into account his lack of a lawyer.  Given this, Mr. T.’s application to vary the support order pursuant to s. 152 of the Family Law Act is dismissed.

[62]        This does not conclude the matter though.  Mr. T. also asked to cancel or reduce arrears which is an application made pursuant to s. 174 of the Family Law Act.  I will now address that application.

[63]        Under section 174, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.

[64]        What is meant by “grossly unfair” has been considered in the decision L.B. v. J.K., a decision which I referred to earlier.  I note that this decision dealt with the Family Relations Act which has since been replaced by the Family Law Act.  The legal tests remain the same though.

[65]        In. L.B. v J.K., the court stated:

[66]        The leading case on applications to vary support orders or to cancel or reduce support arrears is the decision of Madam Justice Martinson in Earle v. Earle, 1999 CanLII 6914 (BC SC) where the court stated at paragraph 22:

[67]        In Earle v Earle, the court addressed a number of common arguments for the cancellation of arrears.  This included the following comments:

[68]        Based on this, I must consider whether there has been a material change in circumstances that makes Mr. T. unable to pay the child support now and in future.  The change must be significant and long lasting.  The change must be real and not one of choice.  Mr. T. must also have made every effort to earn money with those efforts being unsuccessful.  Ultimately, I must be satisfied that it would be grossly unfair to Mr. T. not to cancel or reduce the support arrears.

[69]        The evidence I have is as follows:

[70]        The fact that Mr. T. received a “persons with disability” designation from the Provincial Government is but one factor for me to consider whether there has been a material change in circumstances since the support order was made.

[71]        The Employment and Assistance for Persons with Disabilities Act [SBC 2002] chapter 42 states at section 2(2):

[72]        A person who is so designated may apply for benefits under the legislation.

[73]        Because Mr. T. has received the designation “person with disabilities”, I conclude that he met the criteria set out in section 2(2) of the Employment and Assistance for Persons with Disabilities Act.

[74]        The fact that Mr. T. continues to receive benefits confirms that he is still considered to be a “person with disabilities” in the eyes of the Provincial Government.  This classification is not binding upon me but it is a factor I will consider.

[75]        Ideally I should have a report from a doctor setting out the nature of Mr. T.’s disability, when it started, what his current limitations are, what his current condition is and the prognosis for improvement in the future.  I don’t have that evidence.  However, an application to vary a support order should not be refused due to the lack of medical information if there is a valid reason why such information was not provided at court.  Based on Mr. T.’s financial information, I am satisfied that he lacks the means to obtain a full medical report about his condition.

[76]        The following cases confirm that Mr. T. is not required to produce a formal written medical report to support a claim of an inability to work: Leskun v. Leskun, 2006 SCC 25 and M.C.D. v D.A.D. 2017 BCSC 1832.

[77]        Without a proper medical report, I will need to look to other evidence, including Mr. T.’s own testimony, to see if his application should be allowed.

[78]        The approach I will take in dealing with a section 174 application will be the same as I used in the decision S.G.M. v. P.K.M., 2017 BCPC 257.  It is as follows:

[79]        Mr. T. provided a copy of a letter from FMEP dated February 4, 2014 advising that they were no longer monitoring and enforcing support for the child R. as of June 23, 2003.  FMEP has adjusted its record of the arrears accordingly and advised that they are enforcing for the remaining arrears of $51,132.90.  Mr. T. suggested that this was the amount of the arrears only in relation to the child D. but the letter does not say this.  The arrears amount would be the sum owed for the two children, plus any accumulated interest and statutory fees if any.

[80]        It is important to note that the FMEP record of the arrears does not necessarily provide an accurate statement of the arrears owed pursuant to the court order.  Section 4(d) of the Family Maintenance Enforcement Act gives the Director of Maintenance Enforcement the discretion to enforce all or part of the arrears of support owing under an order.  Accordingly, the Director has discretion to decide if the amount of support being enforced should be reduced or stopped.  The exercise of the Director’s discretion is not a variation of the support order.  This is confirmed in the decision C. (C.L.) v C. (B.T.) 2006 BCSC 1787 where the court held that a decision by FMEP to not enforce ongoing support under a court order does not act to change that order.

[81]        I will therefore calculate the current amount of support arrears owing without taking into account FMEP’s record of arrears.

[82]        The February 21, 2002 order of Judge Steinberg set child support payable at the rate of $566.00 a month starting March 1, 2002.  Calculated up to and including August 1, 2018, the amount due would be $112,068.  I have calculated the current arrears to August 1, 2018 because only the court can cancel or vary an order and that has not yet occurred.

[83]        I lack precise information about this.  The FMEP statement dated November 1, 2016 shows payments of $311.10.  Further funds have been attached by FMEP and the tax returns provided by Mr. T. suggest that additional payments of $542.35 may have been collected.

[84]        Mr. T. also thought that FMEP attached approximately $4,700 from tax refund money although he had no documentary evidence to prove this.

[85]        Ms. K agrees that child support for R. and D. should end as of June 23, 2003, when R. went to live with Ms. K’s mother.

[86]        Ms. K says that D. returned to her care in January 2007and she says that child support for D. should then resume until D.’s 19^th birthday on [omitted for publication].

[87]        The changes in the circumstances of the children are significant and long lasting.

[88]        Furthermore, I find it would be grossly unfair to require Mr. T. to pay child support when the children were out of Ms. K’s care.  I will cancel the requirement to pay any child support for the period June 23, 2003 to January 2007 inclusive, a period of 42 months.  This will result in a cancellation of arrears of $23,772 (42 months x $566).

[89]        D. returned to her mother’s care in January 2007 and so the child support payable effective February 2007 should be for one child only.  Judge Steinberg’s order was based on a finding of income of $40,000 and set child support for two children at $566 a month.  Based on the Child Support Guidelines in effect at the time, the amount of child support payable for one child would have been $364 a month.  This is a reduction of $202 a month from the court ordered $566 a month child support for the period February 2007 to January 2013.

[90]        The period of time between February 2007 and January 2013 is 72 months.  The support arrears will be reduced by a further sum of $14,544 (72 months x $202).

[91]        Ms. K is not seeking child support after D. turned 19 years of age on [omitted for publication].  I will therefore terminate the requirement to pay child support effective [omitted for publication].

[92]        By this calculation the support arrears are reduced to $73,752 as of [omitted for publication] ($112,068 less $23,772 less $14,544).

[93]        This calculation takes into consideration the periods of time the children were not in Ms. K’s care, as confirmed by Ms. K.  Mr. T. suggested that the children were never in Ms. K’s care and so no child support should be paid at all.  However, aside from this allegation, he provided no evidence in support and so I reject this suggestion.

[94]        I now need to consider if there are any other changes in circumstances that make it grossly unfair not to cancel or reduce the arrears.

[95]        Based on the evidence before me, I am satisfied that Mr. T. has been and continues to be disabled, and that he has a very limited ability to work.  I find that this has been a material and long lasting change in Mr. T.’s circumstances that affects him both presently and in the future.

[96]        I conclude that it would be grossly unfair to not to further cancel or reduce the support arrears.

[97]        Given his circumstances I set the arrears at $2,000.  This amount takes into consideration any funds already paid to Ms. K, including any funds received through FMEP.  There is no obligation on the part of Ms. K to refund any money to Mr. T. and the funds she has received to date will not be applied to reduce the arrears of $2,000.

[98]        Regarding the payment of the arrears, Mr. T. presently has income of $250 a month while he resides at [omitted for publication].  He will complete his treatment in October 2018.  At that time, Mr. T. will leave [omitted for publication] and his benefits will increase to $1,225.42 a month, which is equivalent to income of $14,705.04.

[99]        According to the current Child Support Guidelines, at an income of $14,700 child support for one child would be $69 a month and for two children it would be $172 a month.  This provides me with an indication that according to the Government, even at this low income there is an ability to pay child support.

[100]     I therefore order that Mr. T. pay the arrears at the rate of a minimum of $50 a month commencing November 1, 2018 and continuing on the 1^st day of each month thereafter until the arrears are paid in full.

[101]     I have no indication that Mr. T. has been charged statutory interest on the arrears by FMEP.  This is likely because Mr. T. has been in receipt of income assistance benefits and Family Maintenance Enforcement Act Regulation 6.4 provides that no interest will accrue on support arrears when a person is in receipt of income assistance.  If any statutory interest has been charged, I order that it be cancelled because I find it would be grossly unfair not to do so.

[102]     Given Mr. T.’s limited ability to pay I order that statutory interest not accrue on the reduced support arrears pursuant to Family Law Act s. 174(3) as I find it would be grossly unfair not to do so.

[103]     I have no indication that Mr. T. has been charged any statutory default fees by FMEP.  This is likely because Mr. T. has been in receipt of income assistance benefits and Family Maintenance Enforcement Act s. 14.4(4) provides that a debtor in receipt of income assistance is not to be charged with the fee.  If any statutory default fees have been charged, I order that they be cancelled because I find it would be grossly unfair not to do so.

[104]     So long as the support order is enrolled with the Director of Maintenance Enforcement, all payments shall be paid to the Director of Maintenance Enforcement and sent to FMEP Payment Services, Box 5599, Victoria, BC V8R 6T7 or by way of such other method as permitted by the Director of Maintenance Enforcement.

[105]     FMEP will remain entitled to enforce payment of the arrears, which may include issuing notices of attachment.

[106]     Ms. K must provide a copy of this decision to FMEP as well as a copy of the court order which the registry will prepare.

[107]     My order is as follows:

[108]     I ask that the Director of Maintenance Enforcement make the necessary adjustments to his records based on my order and provide the parties with an updated Account Statement.

[109]     The Registry will draft the order.  The parties are not required to sign it.  The Registry will mail a copy of the entered order to the parties in due course.