IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Respondent, S.K.C.G. is the applicant in the matters now before this court, but since he was the Respondent in the original application, he will be referred to as the Respondent in these Reasons for Judgement.

[2]           K.C.J.W. was the Applicant in the original motion and she will be referred to as such in these reasons, even though she is the one responding to the application before the court.

[3]           The parties are the parents of a son named T.N.W. (the “Child”), who was born on [omitted for publication]. On October 19, 2011, when the Family Relations Act was still in force, an order was made giving the parties “joint custody” and joint guardianship of the Child. The Child was ordered to live with the Respondent for a minimum of one out of every three weeks. Subsequently, further court orders were made confirming this arrangement of having the child live with the Applicant for two weeks and with the Respondent for one week. On May 17, 2016, an order was made giving the Applicant all of the parental responsibilities for the Child.

[4]           On September 17, 2014, an order was made requiring the Respondent to pay the Applicant the sum of $458 per month for the support of the child. This amount was later increased to $748 per month. There are now significant arrears owing under that order.

[5]           On May 29, 2018 the Respondent filed the Application now before the court, in which he asks for an order directing that the parenting time be shared equally between the parties and that his obligation to pay continuing child support be reduced. He also asked for a reduction in the arrears of child support that he owes, and states that he was unable to work for a period of time due to a medical condition. The Applicant filed a Reply opposing these changes.

[6]           At the commencement of the hearing, the Respondent was asked to confirm what the order was that he was seeking. He listed seven things that he was asking for:

[7]           On May 24, 2019, an order was made suspending enforcement proceedings until this application could be heard. The order will end following the outcome of this application.

[8]           Two days were set for the hearing of this matter, but the parties were efficiently able to present their evidence and make their submissions in one full day. Because the matter involved a review of the past orders and a calculation of the proper amount of support owing, a decision on the Application was reserved. Following is a summary of the evidence heard in this matter and of the applicable law, as well as the reasons for making the order that follows.

[9]           The history of this matter may be summarized first by looking at the past orders made by this court. The first of these was made on October 19, 2011, when the Family Relations Act was still in force. That order found both parties to have “joint custody” and joint guardianship of the Child and ordered that the Child would reside primarily with the Applicant. It was ordered that the Respondent would have what was then called “access” to the Child for one full week out of every three, as well as such further time that the parties agreed upon. The Respondent was found to have an annual income of $43,200 and he was ordered to pay monthly child support of $400.

[10]        Two orders were made in December of 2012. On December 19, 2012, an order was made requiring the Respondent to pay the Applicant a total of $150 per month for daycare costs, and the order also required each party by text message of his or her intention to remove the Child from the Lower Mainland of British Columbia at least 48 hours in advance. (This entire order was later cancelled on August 27, 2013). On December 21, 2012 an ex parte order was made requiring the Respondent to return the child to the Applicant, with police enforcement of the order if required.

[11]        On July 23, 2013 the parties were ordered to file new financial statements and the Respondent’s parenting time was specified, with the place of exchanging the child set to be the end of the Applicant’s driveway.

[12]        An order was made on August 27, 2013, cancelling the order of December 19, 2012, and ordering specified parenting time for the Respondent. The order also required the Respondent to pick the Child up from, and return him to his school at the start and end of his parenting time visits, unless otherwise indicated. The order also adjusted the amount of child support payable by the Respondent, finding his annual income to be $80,000 and ordering him to pay $748 per month (in two instalments) starting on September 1, 2013. The Respondent was also ordered to pay $150 per month for day-care costs. It was ordered that neither party was to remove the child from British Columbia without the permission of the other parent.

[13]        On January 13, 2014, the parenting time was changed to an alternating two week schedule. The order also fixed the summer parenting time and found the Respondent’s income to be $50,000 for child support purposes. He was ordered to pay the Applicant $458 per month in two instalments, and he was also ordered to give the Applicant a copy of his pay stubs and to report any other income he earned.

[14]        All of these orders were varied on September 17, 2014, when it was ordered that the parenting time schedule be changed such that the child would primarily be in the Applicant’s care and that the Respondent would have parenting time with the child for one out of every three weeks, depending on his work schedule (which was to be provided to the Applicant at least seven days in advance). The arrears of child maintenance were reduced by $1,050, but the existing child maintenance order was to continue until the end of 2014. Thereafter, the amount of the Respondent’s monthly child support order was increased to $748, based on an imputed annual income of $80,000. He was also ordered to continue to pay $150 per month for daycare costs.

[15]        A further order was made on February 12, 2016 permitting the Applicant to serve the Respondent with a Notice of Motion substitutionally by attaching a copy of the notice and the order to the front door of two residences, one of which is the one that the Respondent now lists as his current residence. The Respondent did not appear at a hearing held on May 17, 2016, and an order was made in his absence, giving the Applicant all of the parental responsibilities for the child. The order also provided that the Respondent was to be fined $500 for any “harassing text” which he sent to the Applicant, and he was also ordered to pay 50% of the Child’s special or extraordinary expenses, defined to include the Child’s Medical Services Plan premiums, any dental expenses not covered by a dental plan, and prescription costs not covered by a medical plan, and the costs of summer camp. The Applicant was ordered to provide the Family Maintenance Enforcement Program (FMEP) with a copy of her receipts for these expenses. Finally, the order provided that the Respondent was not to drive the Child in a vehicle unless he held a valid BC driver’s license.

[16]        The last entered order made in this matter was made on May 24, 2019 at which time it was ordered that enforcement proceedings against the Respondent for payment of outstanding child support would be suspended until his application to cancel or reduce these outstanding arrears was heard.

[17]        Also, on October 16, 2018, the Family Justice Counsellor was ordered to prepare a “Views of the Child Report” under section 211 of Family Law Act. That report was filed on December 11, 2018. In the report, Family Justice Counsellor [omitted for publication] spoke to both of the parties and the Child was also interviewed. In the report, the Child is described as “reluctant to be interviewed” but that he later “appeared comfortable and very engaged in the process.”

[18]        In the report, the Applicant complained that the Respondent was attempting to undermine her efforts to manage the Child’s diagnosed condition of ADHD and also alleged that the Child did not pay attention to his school work while in the Respondent’s care. Conversely, the Respondent complained to the report writer that his parenting “rights” had been “stripped” from him and blamed this on his having to work out of town much of the time. He confirmed that he disagreed with the Child’s diagnosis of ADHD. Both parties acknowledged the conflict in their relationship that hampered their ability to communicate with one another.

[19]        In the report, the Child attributed the fact that the Respondent was living at his paternal grandfather’s home to the amount of child support that the Respondent had to pay. The Respondent has three children from another relationship for whom he provides support. In the report, the child stated that he shares a bedroom in the Respondent’s home and that he and the Respondent enjoy watching movies and playing basketball and video games together. In the section 211 report, the Child complained about the Respondent’s anger. He said that the Respondent “will yell if he gets angry”, making the Child want to stay away from him.

[20]        The Child reported that in the Applicant’s home, the Applicant was living with a new boyfriend who seems to be a good person. The Child was candid in his assessment that this has not always been the case and that some of the Applicant’s previous boyfriends have not been nice to her. His half-sister had once lived in the home, but she has now moved out, something that makes the Child happy. He was also happy about the forthcoming birth of a new sibling. He reported that anger is not an issue with the Applicant and that when she is upset with him, she sends him to his room, but does not yell at him.

[21]        According to the report, the Child is aware of the parental conflict. He cites this as the reason why he supports the idea that he should split time between the homes of his two parents. In the words of the report writer, “he felt that this was equal and there should be no fighting. He also told the report writer that the Respondent talked to him about court and also asked him if an equal division of time was what he wanted. The Child indicated that he thought he should know what was going on in court, as it directly affected him. Conversely, he indicated that the Applicant did not discuss court proceedings with him.

[22]        What seems to come through from the section 211 Report is that what upsets the Child most is the anger among his parents. His strongest motivation for wanting an equal division of time is his hope that this will end the fighting between his parents. He told the report writer that “he would like his parents to stop fighting about him”.

[23]        In the past, the Respondent has worked as an ironworker and much of his work was in camps. He estimates that 80% of his work was done in camps. This type of a work schedule interfered with the time that he was able to spend with his son. His solution to this problem has been to look for less lucrative work that allows him to spend more time close to home. Currently, he is working as part of a contract to service vending machines. His hours are limited and he supplements this with some food delivery work. The Respondent estimates that this year his total earnings will be less than $30,000, but he hopes that this will improve to approximately $55,000 in the New Year.

[24]        If he continues to work as an ironworker, the Respondent could be paid between $34 and $41 per hour as a journeyman. He is now an apprentice 3. He testified that in his position as an ironworker he is able to have the Child covered on his medical and dental coverage. He also acknowledged that the decision to change careers was made by his choice. The following table sets out his past earnings, based on his Notices of Assessment provided by the Canada Revenue Agency:

[25]        Child support was last addressed by court order in 2014. Prior years’ income are included in the table to give some indication of what the Respondent’s past income earning ability has been.

[26]        The Respondent has three children from another relationship. Their ages are 3, 5 and 6 and according to his testimony, he pays the mother of those children $500 per month. He testified that he does so voluntarily, and that there is no court order requiring him to do so.

[27]        In cross-examination, the Respondent agreed that he tells his son that the reason that the Child is not in extra-curricular activities is because the Applicant is not allowing it. When the Child is in his care, his parents get the child to and from school most days. When the Respondent is not at work, he plays games with the child: basketball, computer games, soccer and tennis.

[28]        The Respondent’s father also testified and said that he has paid for some of the Child’s activities. He said that the Respondent has lived in his home and does not pay any rent. He testified that on a number of occasions the Applicant has increased the Respondent’s time with the child. He recalled two specific times when this had happened: once when the Applicant went on vacation and another time when she had taken a fall on the ice. He also recalled another occasion when the Applicant let the Child stay over for an extra night. The Respondent’s father also said that he and his wife do most of the cooking for the Child and that he is teaching the Child how to cook.

[29]        The Applicant testified that she does not discuss court proceedings with the Child. She acknowledges that there is some conflict with the Respondent, especially over matters relating to the Child’s health. She says that the Respondent does not accept the diagnosis that the Child has ADHD so he refuses to give the child his prescribed medication. To address this, she has made arrangements with the Child’s school to see that he gets his medication.

[30]        Since the Section 211 Report was completed, the Applicant gave birth to a little boy and according to her evidence, the Child has bonded with his new sibling. He regularly babysits for his mother and she pays him quite well for doing so. He has completed a babysitting course and the Applicant is pleased with how her son has proved to be a capable sitter for his newest sibling.

[31]        The Applicant acknowledges that communication between her and the Respondent is not good and the two of them have stopped talking to one another. She says that their email and text message communication has been uncivil in the past and she owns up to her part in this. It concerns her that the Respondent has the Child send email to her. She is also concerned that the Respondent regularly discusses court proceedings with the Child, and that the Child is unwilling to work with an independent professional counsellor about how the parental conflict is affecting him.

[32]        The Respondent also acknowledges that in the past she has not made the best choice of partners, although this has been a problem for both of the parties. On one occasion a former girlfriend of the Respondent’s became angry and intentionally damaged the Child’s electronic devices.

[33]        Part of the reason for the mistrust between the parties stems from an incident that occurred in 2013 which led to the Respondent being charged with an assault of the Applicant. The Applicant says that she was pushed up against a wall at the Child’s school by the Respondent, while he claims that he was falsely accused of doing this. The Respondent was acquitted at trial. Little can be concluded from all of this, other than that the standard for charge approval was met, but guilt beyond a reasonable doubt was not established. In her evidence, the Applicant asserts that the reason that she cannot collaboratively parent with the Respondent is because of his temper.

[34]        The Applicant works as the building manager for a local hotel. She has worked there for 19 years. In spite of having a new child and full-time employment, the Applicant is still able to take the child to school during her parenting time.

[35]        The Applicant has spoken respectfully about the Respondent’s parents and she sees them as a good influence on her son. She says that she “has no problem with” the paternal grandparents, and her only concern is that they are aging and that it is unfair to increase the burden to care for a young child on them in their retirement years, which is what she believes will happen if the Respondent’s parenting time is increased. Similarly, she does not object to either the Respondent or his parents taking the Child to the United States during his parenting time. She has only two requests regarding travel to the USA, neither of which seem unreasonable. She asks for seven (7) days’ notice of any travel outside of BC, and she would like to see proof of travel insurance for the child if he is going to the United States. She adds that she has recently renewed the Child’s passport and is willing to part with it in order to allow him to travel with the Respondent or his parents, subject to the concerns she has expressed.

[36]        There are essentially two aspects to the Application now before the court. The first concerns what are known as “parenting arrangements” (parental responsibilities and parenting time). The second concerns child support. Much of what will be ordered in respect of the second aspect may depend on the outcome of the former. The Respondent wants to resume an equal role in making decisions concerning the Child, and also wants to significantly increase the amount of time that the Child spends with him. Before such changes to the current parenting regime can be made, the Applicant must show that such changes are in the best interests of this Child.

[37]        Section 37 of the Family Law Act of British Columbia directs that a court that is considering making an order respecting guardianship, parenting arrangements or contact with a child, must consider the best interests of the child only. To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

[38]        For an order to be in the best interests of a child, it must consider how best to protect the child's physical, psychological and emotional safety, security and well-being. This section of the Family Law Act goes on to state that the court making the order may consider a person's conduct only if it substantially affects one of the factors listed above.

[39]        The issues that the Respondent is now bringing before the court have previously been decided by this court. A person who is unhappy with a decision of the court has a right of appeal, but in this case the time for an appeal of the previous orders has long since passed. Persons who do not like a decision of the court and who have not appealed that decision, or who have exhausted their options for appeal, cannot simply keep bringing the same application over and over again. Allowing a person to do so would give judges of the same level of court the power to sit in appeal of the first judge, and it would also give a dissatisfied litigant the power to harass the other party by bringing the same application over and over again.

[40]        However over time, circumstances change and conditions may not be the same as they were when the original order was made. In such cases, it is appropriate to review the initial order. Section 47 of the Family Law Act allows for such a review. It provides as follows:

[41]        The Supreme Court of British Columbia, in L.A.M. v. N.J.O. 2015 BCSC 70, has held that the person seeking to change an order has the burden of proving that there has been a change in circumstances. The BC Court of Appeal, in Williamson v. Williamson 2016 BCCA 87, has held that this must be a material change in circumstances, in other words, one which has “altered the child’s needs or the ability of the parent to meet those needs in a fundamental way”.

[42]        The Respondent is asking for a change to the existing orders, giving him more parenting time and an equal share in the parental responsibilities. Counsel for the Applicant opposes this for a number of reasons. Each of these will be addressed in turn. The first objection is that there has not been any material change in the circumstances as they existed in the previous orders, or if there has been, those changes merit keeping things as they are. The Respondent points to three things in response. Firstly, he says that the Applicant has been denying him his parenting time. Secondly, he argues that his change in career will afford him the ability to spend more time as a parent. Finally, he points to the Section 211 Report in which the Child has expressed a desire for the change proposed by the Respondent.

[43]        The evidence presented at the trial does not support the assertion that the Applicant is denying the Respondent his parenting time. The Respondent’s own evidence, given by his father, suggests that any problems in this regard took place before the orders sought to be varied were made. The Respondent’s father also testified as two occasions when the Applicant had the child remain in his home for a week of what would otherwise have been her parenting time. Nothing in the evidence presented suggests any intention or pattern of withholding the child from the Respondent by the Applicant.

[44]        Whether the second ground justifies a change in circumstances will depend on whether the Respondent’s change of employment is reasonable, or whether he is intentionally underemployed. It would not be in a child’s best interest for a parent to intentionally restrict his or her ability to support the child for a selfish purpose. This is what the Applicant says that the Respondent has done. The Respondent says that he has changed careers not for selfish reasons, but for unselfish ones, namely to be a better parent and spend more time with his son. This issue will be canvassed in greater detail in the portion of these reasons that addresses the issue of child support and arrears.

[45]        The Respondent’s strongest argument supporting the suggestion that there has been a change in circumstances comes from the views expressed by the Child to the Family Justice Counsellor. Recently the Supreme Court of Canada has held that the weight given to a child's views should be proportionate to the child’s age and maturity: Office of the Children's Lawyer v. Balev, 2018 SCC 16 at para. 79. In the present case, this Child has now reached a level of maturity which justifies revisiting the parenting arrangements. He presents as bright, articulate and responsible, the latter quality evidenced by the trust that the Applicant places in him in letting him care for his baby brother.

[46]        This is not to suggest that the views expressed by the Child to the report writer are the deciding factor in this application. Section 37 of the Family Law Act directs both the court and the parties themselves to fix parenting arrangements according to the best interests of the child. A child’s expressed view is only one factor to be taken into account. Also, as counsel for the Applicant points out, the court must consider not only what the Child is saying, but why he is saying it.

[47]        In determining whether or not the changes proposed by the Respondent are in the Child’s best interest, the child's health and emotional well-being must be considered. Three factors present themselves when considering this. Firstly, it is generally accepted that involving a child in parental conflict is not emotionally healthy for the child. The Applicant accepts this and conducts herself accordingly, while the Respondent disagrees and feels justified in discussing court proceedings with the Child. This is likely for the purpose of wanting to present himself to the Child as the parent in the right and the Applicant as the parent in the wrong. This cannot be said to be in a child’s best interests.

[48]        Secondly, it appears from what the Child is telling the report writer that the reason he wants to equalize the time spent with each parent is because he wants their conflict to stop. The Child also tells the report writer that the Respondent is more prone to anger, while he reports that the Applicant is more apt to find healthier and calmer outlets for her anger. If we listen to what the Child is saying, i.e. that he feels stressed amidst anger and fighting, and that he is more likely to be exposed to this in the Respondent’s home, then it is hard to justify having him spend more time in that home as being in his best interests.

[49]        Finally, the Applicant has chosen to follow the advice of the Child’s physicians in their diagnosis of his condition, while the Respondent refuses to accept this diagnosis. This has caused the Applicant to find alternative methods to get the Child his medication when he is in the Respondent’s care. It is generally not in a child’s best interest for parents to substitute their opinion for that of a medical professional. The parent who is better able to follow the advice of qualified medical practitioners will generally be better suited to handle parental responsibilities than a parent who disregards such advice and substitutes his or her own diagnosis. This isn’t to suggest that all diagnoses are correct. It is not unreasonable for the Respondent to ask the Applicant to seek a second opinion or a review of the Child’s ADHD diagnosis. But to simply reject or ignore this medical opinion based on his own diagnosis cannot be seen as being in the Child’s best interest.

[50]        As has been discussed, it is often appropriate to consider a child's views, and it is appropriate to do so in this case. But as section 37 points out, this is just one consideration among many to be taken into account in determining what is in a child’s best interest. It is also appropriate to look behind those expressed views and determine if they are the product of manipulation, coercion, intimidation or frustration. In this case neither parent appears to be manipulating this Child to say what he has said, but it is clear from what the Child himself says that his suggestion of equal time is the product of frustration as a result of parental conflict. It is his solution of how to keep the peace. But this responsibility should not be placed on his shoulders. The better solution would be for his parents to either end the conflict, or if they are unable to do so, to keep it out of the Child’s life. The Applicant appears more willing to do this. She prefers to communicate by text message or email and does not discuss court proceedings with the Child. According to the Child, she is better at containing her anger in her home. Changing the parenting time based on the Child’s proposed solution is problematic because it is really placing responsibility on him to fix a problem created by his parents. It also sends the wrong message to the Child, teaching him that maintaining the level of conflict, rather that protecting children from it, is a good way to get what you want.

[51]        The nature and strength of the relationships between this Child and significant persons in his life is another important consideration. He has strong ties in both homes: to his baby brother as well as to his paternal grandparents. The Applicant has demonstrated an ability to not let her conflict with the Respondent affect the Child’s relationship with the grandparents. She does not seek to disparage their importance in his life, and the respect that she demonstrates for them is beneficial to the Child and shows that being in her care will not impair the relationship that the Child has with important persons on the Respondent’s side of the family. To be fair, the Respondent has not had sufficient opportunity to demonstrate how he will support the Child’s relationships with those on the Applicant’s side of the family such as her new child or her new partner.

[52]        The history of the Child's care thus far has had him in the Applicant’s care for the majority of the time. This is primarily because the parties’ relationship followed what was once a traditional pattern with the Respondent taking on the role of earning a greater income. This involved him being away from home for long periods. This is not something that he should be penalized for.

[53]        The Child's need for stability can be met by a continued sharing of parenting time. The evidence does disclose some disparity however on the ability of each of the parties to exercise his or her responsibilities in connection with the child. The Applicant has demonstrated a willingness and an ability to care for the Child and to perform those duties of parenthood that aren’t the fun parts. She cooks and cleans for him, gets him to school, sees that he does his school work and makes looking after his little brother a bigger priority than playing games. Conversely, as the Respondent disclosed in his case, he is willing and able to do the fun things with the Child such as play basketball and video games. But as his own witness (his father) testified, the grunt work of cooking and feeding the Child and getting him to school is delegated to someone else, the grandparents. The Respondent says that this will change if and when he lives on his own, but thus far, he has no track record to show that he is capable of diligently taking on these responsibilities.

[54]        The impact of any family violence on the Child's safety, security or well-being appears to be in the past. There is still the ongoing conflict and the Child has expressed how much that fallout from this hurts him. The Applicant has testified that the Respondent’s anger prevents meaningful discussion about the Child, and the Child himself has confirmed that he has had to witness his father’s anger. The parental conflict is not such that either parent is impaired in his or her ability to care for the Child and meet the Child's needs. It does however present a difficulty in supporting shared parental responsibilities. It calls into question the appropriateness of an arrangement that would require the Child's guardians to cooperate on issues affecting the Child. Requiring cooperation would almost certainly escalate the potential for conflict, something that would adversely affect the emotional health of this Child.

[55]        On a consideration of the factors set out in section 37 of the Family Law Act, the Respondent has not met the burden of showing that a sharing of parental responsibilities or for him to increase his parenting time with the Child would be in this Child’s best interests. There are a number of things that are lacking for this to take place. Thus far he has delegated much of the child care heavy lifting to his parents, rather than showing that he is willing to take on all aspects of raising a child, and not just the fun things like basketball and video games. He also needs to earn back his share of parental responsibility by demonstrating an ability to communicate respectfully with the Applicant. This is not to suggest that the Applicant has herself been perfect in this regard, but she has certainly done a better job of keeping the conflict out of the Child’s life and focusing his attention on more positive things, such as being a good big brother. The Respondent needs to learn to focus on cleaning up his side of the street and not on the faults of his former partner.

[56]        A period of respectful and civil communication between the parties needs to happen before shared parenting can occur. While the Respondent cannot control the behaviour, words or actions of the Applicant, he can at least demonstrate that he is capable of fulfilling his role in working toward this goal. He also needs to focus not so much on what the Child has said in the Section 211 Report, but why he said what he said. This Child is troubled by the fighting between his parents. The kindest and most loving thing that each parent can do is to do his or her part in eliminating that from the Child’s life.

[57]        When the Family Law Act replaced the Family Relations Act, it eliminated words such as “custody” and “access”, words which implied that children were possessions to be owned and divided up like loot. So-called “rights” were replaced with a responsibilities. It is wrong to view the current situation as one where one party possesses two thirds of a child’s time, and the other one third. Instead each should pack as much into his or her time with the Child so that he grows up happy and with a sound moral compass. The parenting that is modelled to him will shape the type of parent he becomes. The way that he sees his parents treat each other is what he will bring into his own adult relationships. Each of the parties should think about this before sending off the next disparaging text message or email.

[58]        Almost every day in Provincial Court, parents are taught the A-B-C’s of child support. If you bring a child into the world, you are responsible to support that child financially into adulthood (and in some cases beyond) according to your ability. That responsibility does not go away when your relationship ends, and one parent can’t simply say to the other, “the child is your problem now.” The Federal Child Support Guidelines seek to treat all parents equally. They require a parent who is not the primary caregiver to pay the other parent an amount based on that parent’s ability to earn an income. There is also provision made for support in split parenting or equal parenting situations where there is an income disparity.

[59]        Some children are lucky enough to have parents who are very wealthy, while others are not so fortunate. The Guidelines take this into account and provide a sliding scale of payment, based on actual or imputed income and based on the number of children. Some payor parents think that they are being ordered to pay this money to their former partner. In fact the money belongs to the child or children and when a payor parent falls short of his or her obligation to pay child support, it is the child who is being cheated.

[60]        In this case previous orders have been made under the guidelines, and the current order requires the Respondent to pay the Applicant the sum of $748 per month for the support of the Child, as well as an additional sum of $150 for day-care. The Respondent says that this is unfair because his income has gone down considerably from the time that this order was made. This is mostly true, although the financial disclosure shows that for at least one year (2015) the Respondent was not assessed at the proper amount under the Guidelines.

[61]        The Respondent seeks an adjustment to the child support he is required to pay, and a reduction of his arrears by $14,897.74. As was stated earlier, the previous child support orders may be reviewed, but only from and after October 1, 2014, when the most recent order for child support took effect. The table below shows what the Respondent should have paid for child support if that support had been based on his actual income, rather than the imputed income of $80,000 set in the order of September 27, 2014:

[62]        In the foregoing calculations, a different payment is calculated for the last month of 2017 when the change to the Guidelines came into effect. The Respondent has estimated his 2019 income to be less than $30,000, but since no clear evidence to support this was provided, his income for 2018 was used in the 2019 calculations.

[63]        In addition, these calculations do not include a number of other amounts that the Respondent owes to the Applicant:

[64]        If these amounts are the proper ones to be used, the arrears should be reduced from $25,745.48 (being the arrears figure of $24,249.48 provided by FMEP, plus two payments for September and October of 2019 of $748 each) to $13,806.34 (the arrears as calculated in the table above in paragraph [61] plus the amounts listed in paragraph [63]). The figure of $24,249.48 also includes interest as calculated by FMEP. The figure of $13,806.34 does not include any interest, as this is too difficult to calculate at this time.

[65]        The Applicant objects to any adjustment in the Respondent’s favour, either in the arrears, or to the ongoing payment. Counsel argues that the Respondent is intentionally under employing himself, something he is not permitted to do to the detriment of his Child. The Respondent says that he has valid reasons for his change of employment: (1) His employment as an ironworker will take him away from his Child by requiring him to work in camps for long periods of time, something that is unfair to him and not in the best interests of his child. (2) He finds his current work to be unsafe. On the latter point, no evidence was given to explain or support this, although the Respondent’s father also confirmed that this was one of the motivations for the Respondent’s change of employment.

[66]        Under section 16 of the Guidelines, as a general rule, a payor parent’s income is calculated based on his or her income tax information. However section 17 goes on to provide that if the court is of the opinion that this is not the fairest way to determine income, the court may have regard to the payor’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. (This appears to be what was done in this case in the order made on September 17, 2014).

[67]        Under section 19 of the Guidelines, a court can impute income to a payor if, among other reasons, the court concludes that the payor is intentionally under-employed or unemployed. But this consideration does not apply if the under-employment or unemployment is required by the needs of the child or of any other child under the age of majority or by the reasonable educational or health needs of the payor.

[68]        It is clear from the evidence that the Respondent has the necessary skills and ability to continue to work as an ironworker. According to his own evidence, he has the potential to earn between $34 and $41 per hour. I accept that his motive for not doing so is not to be spiteful toward the Applicant, but rather to maximize the opportunity to spend more time with his son. The question at law is whether or not this is under-employment. If it is not, the Respondent should get the reduction in child maintenance that he seeks. If it is, the current order should continue in place as it now exists.

[69]        The law as to how this section of the guidelines should be interpreted has been set out by a number of decisions of the British Columbia Court of Appeal, which are binding on this court. In Van Gool v. Van Gool (1998) 1998 CanLII 5650 (BC CA), 44 R.F.L. (4^th) 314, the court held that the intention of the Guidelines is “to ensure that parties liable for child maintenance were not permitted to avoid their responsibilities simply by virtue of being unemployed or under-employed.” The court followed one of its earlier decisions, Garcia v. Rodriguez (1997) 1997 CanLII 2253 (BC CA), 29 R.F.L. (4^th) 329 (B.C.C.A.) and held that in assessing a person’s obligation to support a child, the person’s capacity to work or his or her income-earning ability must be considered. The court said that it is no answer for a person liable to support a child to say that his or her potential to earn income is an irrelevant factor.

[70]        In 2001, an Alberta Court of Appeal decision, Hunt v. Smolis-Hunt 2001 ABCA 229, held that for a court to find that a payor parent is under-employed, there must be proof of a specific intention to undermine or avoid support obligations, or circumstances which permit the court to infer that the intention of the payor is to undermine or avoid his or her support obligations. But this has not been accepted to be the law in much of the rest of Canada, and it has been expressly rejected in British Columbia by our Court of Appeal. In Barker v. Barker 2005 BCCA 177, the court held that intent to evade or minimize the payment of child support is not required for a finding of intentional underemployment or unemployment. The court summarized the law by stating (at paragraph [19]): “What matters under the Guidelines is… whether the parent is earning what the parent is capable of earning.”

[71]        The courts of this province have also held that while it is a noble sentiment for a parent to earn less than they are capable of earning in order to have more parenting time available, this does not justify that parent reducing his or her income, unless this is required to meet the needs of the child. (Llewellyn v. Llewellyn 2002 BCCA 182 at para. 31; M.W.B. v. A.R.B. 2011 1663 at para. 242.)

[72]        In this case it was not required for the Respondent to reduce his income in order to meet the needs of the child. While his motive for doing so may not be a malicious one, nevertheless it does not justify him finding less lucrative employment. The law requires him to provide for the support of his child according to his capability. He is not permitted to intentionally reduce his income for the reasons chosen in this case. Accordingly, his application to reduce the arrears must fail.

[73]        For these reasons, the following order is now made: