IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           D.J.M. applies to reduce or cancel arrears of child support pursuant to s. 174 of the Family Law Act of B.C.  The arrears have accumulated under an order made on the 18^th of October, 2000 in [omitted for publication], which required D.J.M. to pay the sum of $400 per month, starting November 1^st, 2000, for the support of his daughter N.A.J., born [omitted for publication].  As or September 21^st of this year the arrears amounted to $66,497.00 plus interest of $20,654.04 for a total of $87,151.69.  In addition, D.J.M. owes fees to the Family Maintenance Enforcement Program (‘FMEP’) totaling $3,600.00.

[2]           I have decided to reduce the arrears owing by D.J.M.  My reasons are explained in detail below but may be summarized as follows: I am satisfied that D.J.M. has never earned income at a level that would justify the $400/month amount required by the order made in 2000.  I am also satisfied that it would not be fair or reasonable to impute to D.J.M. an income that would justify the amount of child support ordered in 2000.

[3]           I find that, as of September 21^st, 2018, arrears should be reduced to $10,203.68 (C).

[4]           As well, D.J.M. will have to pay interest on these arrears.  This will require a re-calculation of interest by the FMEP based on my findings about D.J.M.’s income over the past 18 years (see Appendix A).

[5]           In addition, D.J.M. will have to pay the FMEP fees of $3,600.00.  This is made up of $400/year for the 9 years that have gone by since C.M.B. registered the 2000 Order with the program.

[6]           Finally, with respect to ongoing child support for N.A.J., who is 18, turning 19 next [omitted for publication], I impute to D.J.M. a total income for Guideline purposes of $23,023.23 (minimum wage of $12.65/hour) for 2018 and order that he pay the table amount of $198.19 per month in child support commencing October 1^st, 2018 and continuing on the 1^st day of November and December, 2018.  For the year 2019 I impute a total income of $25,207.00 (minimum wage of $13.85/hour) and order that he pay the table amount of $211.44 per month commencing on January 1^st, 2019 and continuing on the 1^st day of each and every month thereafter for so long as N.A.J. remains eligible under the relevant law, or until further order of the court. 

[7]           I will now explain my reasons for reaching this decision.

[8]           D.J.M. and C.M.B. (formerly C.M.J.) were in a dating relationship in 1999.  Their daughter, N.A.J., was conceived during this time.  They never co-habited.  Both were living in the area of [omitted for publication], B.C. at the time.

[9]           C.M.B. is from the [omitted for publication] First Nation.  D.J.M. is [omitted for publication] from the [omitted for publication] Band located near [omitted for publication], B.C.

[10]        D.J.M. turned 50 years of age in [omitted for publication] of this year.  He is the father of 4 children: with V.H. of [omitted for publication] he has a son, J.H., and a daughter, T.H., born in 1991 and 1992, respectively.  With N.S. of Penticton he has a son, A.M., born in 1997, and with C.M.B. he has N.A.J., born in [omitted for publication].

[11]        D.J.M. was served with C.M.B.’s initial Application for child support however he did not appear on either August 3^rd, 2000 or October 18^th, 2000, the two dates when the matter was before the court in the [omitted for publication]. 

[12]        On this second date, the Honourable Judge Low made an interim order that D.J.M. pay $400/month in child support.  Although no finding was made at that time as to D.J.M.’s total income, a review of the child support tables in effect in 2000 indicates that this would equate to an annual income in the range of $47,000.00.

[13]        Judge Low also ordered that D.J.M. file a financial statement within 30 days of receiving a copy of the order and stated that D.J.M. was entitled to apply to review the amount of child support set out in his order.

[14]        D.J.M. was personally served with a copy of Judge Low’s order on November 28^th, 2000.[1]

[15]        D.J.M. failed to file a financial statement as directed and did not apply to review the order.  He also paid no child support for N.A.J. for many years. 

[16]        As I understand the evidence, D.J.M. has had no contact with C.M.B. since before N.A.J.’s birth and has never met N.A.J.

[17]        It appears that C.M.B. enrolled with the FMEP late in 2006.  Enforcement actions (garnishment and attachment) began to produce some results starting in 2014.  A total of $17,603.59 had been collected from D.J.M. as of September 21^st, 2018.  See Account Statement filed during argument on September 27^th, 2018.

[18]        In June, 2013 the Director of Maintenance Enforcement obtained a Summons to a Default Hearing.  The Default Hearing process continued over the next year and a half - 12 court appearances in [omitted for publication] and then in Williams Lake - concluding with an order on October 30^th, 2014 fixing arrears and requiring a payment of $125/month towards arrears, with 3 days in jail for each missed payment.  Judge Church, as she then was, recommended that D.J.M. contact legal counsel to help him with his child support difficulties.

[19]        The account statement reveals that D.J.M. made payments (likely through garnishment as the amounts paid are not consistent) until early February, 2015.  Then there is a 6 month gap.  Payments resumed in early August, 2015 and continued until early May, 2016 though in reduced amounts starting in early 2016.  Then there is a 9 month gap until early February, 2017. 

[20]        During that time, in December, 2016, the Director of Maintenance Enforcement obtained the issuance of a Summons to a Committal Hearing.  This may have been the first time D.J.M. raised the issue of reduction or cancellation of arrears on the basis that his income had never been of a level to justify child support in the amount that Judge Low had ordered.  It is certainly the first time this is mentioned in the court summary sheets.

[21]        The Committal Hearing was adjourned from time to time to permit D.J.M. to complete and file his tax returns going back to the year 2000 and for him to file an application in court to reduce or cancel arrears.  There have been about 14 appearances on the committal aspect since its commencement in December, 2016.  It would appear, from the contents of the court file, that D.J.M. was jailed for some period of time early in 2017 for failing to comply with court orders made in this matter.

[22]        D.J.M. did eventually file an Application Respecting Existing Orders on September 14^th, 2017.  Subsequently, after retaining Mr. Rempel, a Notice of Motion was filed on his behalf on January 16^th, 2018.  C.M.B. filed a Reply disagreeing with the Application on January 11^th, 2018.  She wrote: “I have not received disclosure from D.J.M. to prove why he could not pay since 2000 order.”

[23]        The trial of the issue of reducing or cancelling arrears took place on May 17^th and September 27^th, 2018.  I reserved decision.

[24]        With this background in mind I will now focus on the evidence about D.J.M.’s income over the 18 years since his daughter, N.A.J., was born. 

[25]        The only tax returns I have for D.J.M. are those for 2014, 2015 and 2016 which are attached to his Statement of Finances filed on June 14^th, 2017.

[26]        Despite at least 7 court orders over the years requiring him to produce income tax returns for the 18 or 19 years between N.A.J.’s birth in 2000 and the present, D.J.M. has only ever produced the three tax returns.  It is not clear to me that he has actually filed those three returns with the Canada Revenue Agency (‘CRA’) as no Notices of Assessment were tendered.  My understanding is that D.J.M. has not prepared tax returns for any of the other 15 or 16 years of N.A.J.’s lifetime.  Asked about this on cross examination D.J.M. gave several explanations: “I moved so often.  I really should have been on top of it.”  “There is an accountant at the [omitted for publication] who is willing to do them for me.”  “I kept on calling [to get T4’s from prior employers], I was going to each individual business, and they never sent it.”

[27]        On the first day of trial, May 17^th, D.J.M. testified that he had contacted the CRA and via that route had managed to get copies of all T4’s filed for him by employers going back to 2005.  These are marked Exhibit 1.  He was going to follow up with the CRA and obtain the earlier ones dating back to 2000 after the rush of tax season was over.  But, when the trial continued on September 27^th he produced no further documentation.  There was also no reference to D.J.M.’s having made any progress towards getting his tax returns completed and filed in the four months that went by between the first and second day of trial. 

[28]        D.J.M.’s professional skills are as a [omitted for publication], a [omitted for publication], and as a [omitted for publication].

[29]        He testified about his recollection of his employment history and personal circumstances between 2000 and present.  His evidence may be summarized as follows:

[30]        He had the primary care of his two oldest children, J.H. and T.H. for most of this time.  He received no child support from the children’s mother, V.H.  He and the children had been living in the [omitted for publication] for some period of time in the late 1990’s, early 2000’s when N.A.J. was conceived and born.  In 2001 D.J.M. and his two older children moved to Kamloops.  In Kamloops he was working as a [omitted for publication] in a [omitted for publication]. 

[31]        At some point he moved back to [omitted for publication], his home community.  He took a [omitted for publication] course with his cousin and together they did a few [omitted for publication] projects during this period for which he was paid minimum wage. 

[32]        In about 2004 or 2005, when they were around 13 and 14 years of age, J.H. and T.H. went to live primarily with their mother who lived on the same street as him in [omitted for publication].  He did not pay V.H. child support once she assumed primary care of J.H. and T.H. 

[33]        As it concerned his son A.M., he has always resided with his mother, N.S.  D.J.M. said they had an “open custody and shared visitation” arrangement.  He did not pay child support but “I provided as much as she needed for A.M.  She would call and ask and I would give as much as I could.”

[34]        There are no tax returns, T4’s or other documentation of D.J.M.’s income for the years 2000 to 2005.

[35]        In 2006 and part of 2007, D.J.M. was living in Vancouver.  He said he was living with his father.  There are T4’s documenting employment with a numbered company (D.J.M. says this is a labour contractor) and [omitted for publication].

[36]        In 2006 his T4’s document earnings amounting to $5,735.

[37]        D.J.M. continued working for [omitted for publication] in 2007.  Then he moved back to [omitted for publication] and worked for [omitted for publication] in her [omitted for publication].

[38]        In 2007 his T4’s document earnings totaling $9,635.79.

[39]        D.J.M. continued working for [omitted for publication] in her [omitted for publication] in 2008. 

[40]        Later in the year he was hired to do the [omitted for publication] for [omitted for publication] band members.  He worked out of the [omitted for publication] on reserve.  He continued in this position for about 3 years until sometime in 2011.  D.J.M. testified that he has asked his band administration several times for documentation of his employment over this time period but has received nothing.  As D.J.M. referred to “gross earnings” and “expenses” it may be that he was employed by the band as an independent contractor rather than an employee.  Whether he was an employee or a contractor, he has produced no documentation of his earnings for this 3 year period. 

[41]        During 2011 D.J.M. left his position with the band and went to work at a [omitted for publication] in the town of [omitted for publication].  This was the [omitted for publication] run by [omitted for publication]. 

[42]        In 2011 his T4’s document earnings amounting to $3,260.00 (all from [omitted for publication]).

[43]        D.J.M. continued working at [omitted for publication] in 2012.  However, he testified there was a fire that affected the [omitted for publication].  He looked for other work but found “not much”.

[44]        In 2012 D.J.M.’s T4’s document earnings of $2,050 (all from [omitted for publication]).

[45]        D.J.M. continued to do some work at [omitted for publication] in 2013 but for most of the year he worked as a caregiver for his sister who is a single mother with 4 children. 

[46]        In 2013 D.J.M.’s T4’s document earnings of $1,342.60 (all from [omitted for publication]). 

[47]        D.J.M. moved to Williams Lake in 2014.  During the week he worked as a [omitted for publication] for [omitted for publication] at the [omitted for publication].  On the weekends he worked as a [omitted for publication] at the [omitted for publication] restaurant. 

[48]        In 2014 D.J.M.’s T4’s showed earnings totaling $14,308.00 from these two sources.  In his 2014 tax return, D.J.M. was shown as having a total income of $15,739.07, somewhat more than is documented by the T4’s.

[49]        D.J.M. continued to work for [omitted for publication] in 2015 until she closed her business.  She referred him to the [omitted for publication] ([omitted for publication] B.C. Ltd.) and he continued as a [omitted for publication] there during weekdays.  On weekends he continued to work at the [omitted for publication] as a [omitted for publication].

[50]        In 2015 D.J.M.’s T4’s showed earnings totaling $22,733.25 from these three sources.  His tax return for 2015 showed total income of $20,164.74, somewhat less than is documented by the T4’s.

[51]        In 2016 D.J.M.’s T4’s showed earnings totaling $6,745.79, all from [omitted for publication] B.C. Ltd. doing business as [omitted for publication].  His tax return for 2016 showed total income of the same amount.  D.J.M. testified that he was unemployed from September, 2016 to January, 2017.  During that time he was on social assistance. 

[52]        Early in 2017 D.J.M. started working for the [omitted for publication] as a [omitted for publication] in their restaurant, [omitted for publication], at minimum wage. 

[53]        In 2017 D.J.M.’s T4’s showed earnings totaling $23,078.09 from the [omitted for publication] plus social assistance.

[54]        D.J.M. testified that he continues to be employed in 2018 as a [omitted for publication] with the [omitted for publication] at minimum wage.  The restaurant was closed in the spring for about 9 weeks for renovations but he was able to do some work in other parts of the building.  D.J.M. produced no pay stubs or other documentation of his earnings in 2018.

[55]        As it concerns his life style and expenses, D.J.M. testified that he has not owned a vehicle for 17 or 18 years.  He makes sure that everything is within walking distance.  He has never travelled outside of Canada and has rarely been outside of B.C.

[56]        He has no assets other than a few personal possessions.  He has no savings.  Through his work at the [omitted for publication] he is entitled to a benefit package for medical, dental and extended health costs. 

[57]        He lives alone in a one bedroom apartment which costs $595/month in rent.  He uses a television that was loaned to him by a friend, his own having been stolen.  However, he testified that he has cancelled his cable service and that he has no internet at home.

[58]        At trial he estimated expenses apart from rent in the $700/month range.  With rent the total would be about $1,300/month. 

[59]        There was some inconsistency in D.J.M.’s evidence about how much money he spends on alcohol.  At one point he estimated “$30 a week”.  At another point in his evidence he estimated “$40 per month”. 

[60]        D.J.M. summarized his life style as “low key, humble, at home”. 

[61]        Ms. Zetzsche, on behalf of C.M.B., argues that D.J.M. has either failed to report and document his full income or that he was deliberately under-employed for much of the past 18 years.  She points out that even the modest living expenses he claims would require an annual income of at least $15,000.00.  Yet, it is only in the years 2014, 2015 and 2017 that he is able to document total annual incomes of that amount or greater.

[62]        In all other years there is either no documentation at all or the income that is reported is so low that a person could not possibly live on the amount unless perhaps they were homeless.  For example, in 2012 D.J.M. is only able to document an annual income of $2,050 which translates into $171.00 a month.  When asked to explain this on cross examination D.J.M. said “I could have been working for my cousin, [omitted for publication]…on reserve”.  He also said “I would do cleaning for family members.  I was paid in canned food.”  He agreed his income from [omitted for publication] would have been ‘under the table’ income, not reported to the CRA in the form of T4’s. 

[63]        Ms. Zetzsche also points to D.J.M.’s decision in 2013 to be a stay at home caregiver for his sister’s 4 children.  She argues this is a clear example of how D.J.M. has put the needs of himself and others, such as his sister and her children, ahead of the needs of C.M.B. and his own daughter, N.A.J.

[64]        Ms. Zetzsche argues that once D.J.M. moved to Williams Lake in 2014 and the FMEP started to take very aggressive enforcement action against him, D.J.M. demonstrated that he could earn a considerably higher income.  For example, in 2014 and 2015 he got two jobs - one during the week as a [omitted for publication] and one on the weekend as a [omitted for publication] - and in that way earned an income in excess of $20,000 per year.  He was able to do even better in 2017 with his job as a [omitted for publication] at the [omitted for publication] earning in the range of $23,000.00.  She argues that the court should find that D.J.M. has been deliberately under-employed for all those years where his income was less than the $20,000 to $24,000 per year he showed that he could earn in 2015 and 2017.  She urges the court to impute an income to D.J.M. in this range or higher for each of the 18 years since the making of the October 18^th, 2000 order.

[65]        Mr. Rempel, on behalf of D.J.M., argues that the court should be careful not to impute an income to D.J.M. that is unrealistic given who he is as a person.  He points out that there is no evidence D.J.M.’s lifestyle has ever been anything other than “low key, humble, at home” as D.J.M. himself put it.  He is a skilled man, particularly in the area of doing [omitted for publication] but his frequent moves over the years, his interest in pursuing a variety of different experiences including taking time off from more remunerative employment to, for example, help out his sister or work with his cousin on [omitted for publication] projects mean that he has simply never been in a position to earn much more than a minimum wage income.

[66]        There are many documents missing in this case.  The most important are filed tax returns and notices of assessment.  On the evidence I have heard it appears that D.J.M. has only prepared 3 tax returns over the past 18 years and, as noted earlier in these reasons, I do not know if those 3 returns were ever actually filed with the CRA and assessed for accuracy. 

[67]        For this reason alone it will be necessary for me to impute (assign) an income to D.J.M. for all the years where there are no records (2000 to 2005, 2009, 2010 and 2018).  See s. 19(1)(f) of the Federal Child Support Guidelines (‘Guidelines’).

[68]        There is also the issue of under-employment raised by Ms. Zetzsche.  I agree that in those years where income is documented but is less than D.J.M.’s very modest annual expenses of about $15,000 (2006 to 2008, 2011 to 2013, and 2016) it seems probable that certain income has either not been documented or D.J.M. was under-employed in the sense of not going out and seeking, or sticking with, full time, paid employment.

[69]        It is less clear to me that D.J.M. was making these choices with the goal of deliberately avoiding his child support obligations to N.A.J. and her mother, C.M.B.

[70]        When I consider all of the evidence I find Mr. Rempel’s argument persuasive.  I find that it is more probable than not that D.J.M.’s choices around employment were driven by his personality and interests, particularly by his interest in moving and changing whether it be in the area of his domestic relationships, where he was living, or where and how he earned a living.  He is also clearly someone who struggles to manage money.  He testified that he actually found it much easier to have the FMEP garnishee his wages rather than make voluntary monthly payments of child support because, with garnishment, the money is taken off the top of his pay cheque and “I don’t see it.”  

[71]        D.J.M. also clearly struggles to understand and comply with regulation and law - such as the legal requirement to pay monthly child support or the legal requirement to file tax returns.  He has consistently been unable to organize his affairs sufficiently to file tax returns despite there being significant incentives to file.  For example, had he filed tax returns he could have avoided much of the pressure and complexity of the protracted maintenance enforcement proceedings.  Also, given his relatively low income he would often have received a refund had he filed returns.  Despite these incentives D.J.M. has failed to file tax returns and I conclude that this is, quite simply, because he finds it extremely difficult to organize his affairs and access the information necessary to do so.

[72]        With these findings in mind, I conclude, first, that D.J.M. has never earned an income in the range of $45,000 to $47,000.00 that would justify the monthly child support payment of $400 set out in the October 18^th, 2000 order. 

[73]        Second, I impute to D.J.M. a full time (35 hours a week, 52 weeks in the year), minimum wage income for all years beginning in 2000 when N.A.J. was born, to the present, with the exception of 2015 and 2017 which I address specifically below. 

[74]        As set out in the table at Appendix A, minimum wage was $7.60/hour in 2000 for an annual total income of $13,822.00.  By June, 2018 it had increased to $12.65/hour for an annual total income of $23,023.00.  It is probable that in some years D.J.M. earned more than a minimum wage income.  For example, between 2009 and 2011 when he was doing [omitted for publication] on reserve, he may well have earned more than a minimum wage income.  However, from the documents we do have it is clear that in many other years he earned far less than a minimum wage income.  Imputing a minimum wage income to D.J.M. each year strikes a balance between the likelihood that his income was higher in some years and the documentary evidence which indicates a lower income in many other years.

[75]        As well, imputing a full time, minimum wage income to D.J.M. imposes upon him a reasonable obligation to earn money to support his daughter N.A.J.  Imputing to him a higher income over the 18 year history of this matter would not, in my view, be realistic or fair given the evidence about D.J.M.’s rather modest standard of living and work history over those years.

[76]        2015 and 2017 are exceptional in that D.J.M.’s documented income (from T4’s) is actually higher than a minimum wage income.  For those two years I will find that D.J.M. had the income shown on the T4’s: $22,733.25 in 2015 and $23,078.09 in 2017.

[77]        For the year 2018 I have D.J.M.’s testimony that he continued to work at the [omitted for publication] but no paystubs or other documentation were produced.  I will therefore impute to him a minimum wage income which amounts to $23,023.00.

[78]        For the year 2019 and until further order of the court, I will impute to D.J.M. a total annual income of $25,207.00.  This too is a minimum wage income, calculated using the minimum wage of $13.85 which is set to take effect in June, 2019.[2]  As N.A.J. turns 19 in August, 2019 her eligibility for further support is something her parents will need to consider.  If they have not already done so, both should seek advice from their lawyers about this in advance.

[79]        With respect to ongoing financial disclosure I will order that D.J.M. provide the following documents to the FMEP for transmission to C.M.B., not later than March 1^st of each year starting with 2019:

[80]        The purpose of such disclosure is so that both D.J.M. and C.M.B. can adjust the amount of child support payable for N.A.J. in accordance with the Federal Child Support Guidelines if D.J.M.’s income proves to be either substantially higher or lower than the figure of $25,200.00 I have imputed to him going forward.

[81]        I will turn now to the final issue which concerns s. 174 of the FLA, namely whether the court should order the reduction or cancellation of arrears that have accumulated against D.J.M. pursuant to the October, 2000 order.

[82]        Section 174 reads as follows:

[83]        I have also considered the cases cited by Ms. Zetzsche, Counsel for C.M.B. and the Director.  They are:

[84]        With the legislation and these case authorities in mind I will now turn to the issue of whether arrears of child support should be reduced or cancelled in the case of D.J.M.

[85]        Until 2014 D.J.M. made no efforts to comply with the child support order made in October, 2000.  Since 2014 he has been paying regularly through the enforcement mechanisms of garnishment and attachment. 

[86]        The reason D.J.M. offers for not having paid in accordance with the order is that his income has never been in the range of $45,000 to $47,000 that would justify a monthly amount of $400 for child support.  I have found that the evidence supports his position and have imputed to him a minimum wage income for most of the past 18 years.

[87]        Mr. Rempel argued, under the heading of “other circumstances” in s. 174(1)(c), that it was also open for the court to consider a claim of undue hardship by D.J.M. for the years 2000 to 2004 or 2005 since D.J.M. was the primary caregiver and sole support for his two older children during that time. 

[88]        I find that the evidence is insufficient to establish undue hardship.  In this regard I note that C.M.B. testified that life for her and N.A.J. was very difficult for many years.  Even if the evidence existed to compare the standard of living in each household for those years, which it does not, I am far from confident that D.J.M. would be able to show that his standard of living was lower than that of C.M.B.

[89]        In summary, despite D.J.M.’s failure to make any effort to comply with the 2000 order for 14 years, I find that it would be “grossly unfair” not to reduce arrears to accord more closely with what his income actually was, and reasonably could have been, between 2000 and the present.

[90]        In Appendix A I have calculated the amount of child support D.J.M. would have been required to pay each year at the income I have imputed to him.  As of September 21^st, 2018 he would have been required to pay a total of $27,807.27 (A).  As of that date he had paid a total of $17,603.59 (B) (see Exhibit 2 FMEP Account Statement).  The difference between these figures is $10,203.68 (C). 

[91]        I find that the arrears of child support owed by D.J.M. as of September 21^st, 2018 are reduced to $10,203.68 (C). 

[92]        With respect to interest on these arrears, it is fair that D.J.M. pay interest on the reduced amount of arrears as they have accrued over the years because C.M.B. was denied the use of that money for the support of N.A.J. for all of that time.

[93]        With respect to FMEP fees, s. 14.4(6)(b) and (c) of the Family Maintenance Enforcement Act apply.  Mr. Rempel argues that the court should cancel them entirely given D.J.M.’s limited income.  What money D.J.M. does pay, he argues, should go to N.A.J.’s support and not to the government in fees.  However, I also bear in mind the many years of enforcement action the FMEP has had to undertake in this case because D.J.M. did not take steps at a much earlier stage to apply to vary the October, 2000 order and make proper financial disclosure.

[94]        I have decided that s. 14.4(6)(b) applies as there are no “special circumstances” in this case.  D.J.M. must pay fees reduced proportionately with the reduction in arrears.

[95]        As for ongoing child support for N.A.J., who is 18, turning 19 next [omitted for publication], I impute to D.J.M. a total income for Guideline purposes of $23,023.23 (minimum wage of $12.65/hour) for 2018 and order that he pay the table amount of $198.19 per month in child support commencing October 1^st, 2018 and continuing on the 1^st day of November and December, 2018.  For the year 2019 I impute a total income of $25,207.00 (minimum wage of $13.85/hour) and order that he pay the table amount of $211.44 per month commencing on January 1^st, 2019 and continuing on the 1^st day of each and every month thereafter for so long as N.A.J. remains eligible under the relevant law, or until further order of the court. 

[96]        I will also make the financial disclosure order set out earlier at paragraph 79 of my decision.