E.B.L.P. v. J.G.S., 2020 BCPC 18 (CanLII)
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2020 BCPC 18 |
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Date: |
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File No: |
F-3373 |
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Registry: |
Burns Lake |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25
BETWEEN:
E.B.L.P.
APPLICANT
AND:
J.G.S.
RESPONDENT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE J.T. DOULIS
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Counsel for the Applicant: |
Strimbold, K. |
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Appearing in person: |
J.G.S.. |
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Place of Hearing: |
Burns Lake, B.C. |
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Date of Hearing: |
January 29, 2020 |
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Date of Judgment: |
February 11, 2020 |
Introduction
[1] This is a proceeding under the Family Law Act, SBC 2011, c 25 (the “FLA”). E.B.L.P. and J.G.S. ask the Court to determine their prospective and retrospective child support obligations for their two children: B.E.P.S., who is now 20 years old, and N.W.D.S., now 18. Both children have graduated from high school. B.E.P.S. is in third year at the University of British Columbia [omitted for publication]. She attends university full-time studying [omitted for publication]. When she finishes a Bachelor of Arts degree, she intends to pursue a Bachelor of Education. E.B.L.P. estimates B.E.P.S. has three more years before she completes her post-secondary education. After his high school graduation, N.W.D.S. left his fulltime residence with his mother to live with his father. He is not yet attending post-secondary school, but hopes to do so next fall. In the interim, N.W.D.S. works sporadically with his father in [omitted for publication].
Issues:
[2] The issues before this Court are as follows:
a. Is B.E.P.S. a “child of the marriage” or otherwise unable to withdraw from the charge of her parents?
b. What are the parents’ ongoing support obligations for the Children?
c. What are the parents’ retrospective support obligations for the Children?
Background Facts
[3] E.B.L.P. (“E.B.L.P.”) and J.G.S. (“J.G.S.”) were married on [omitted for publication], in [omitted for publication], BC.
[4] J.G.S. was born on [omitted for publication], and is now 43 years old. He is a [omitted for publication] by trade. He is a working supervisor at [omitted for publication], a position he has held for 3.5 years (since July 2016).
[5] E.B.L.P. was born [omitted for publication] and is now 42 years old. She works full-time for [omitted for publication] in [omitted for publication], a job she has held since 2008. In 2018, she was promoted to [omitted for publication] Manager.
[6] Since they separated both parents have repartnered, J.G.S. twice. J.G.S. and his spouse, M.B. live in a mobile home on a small acreage she owns on [omitted for publication]. M.B. has two children from a previous relationship, one who is 13 years old and lives with her half time under a shared parenting arrangement. M.B. is a [omitted for publication]. J.G.S. and M.B. have been in a relationship for four years; they have cohabitated for three and one-half years.
[7] E.B.L.P. and her husband, T.P., live on the outskirts of [omitted for publication]. They have been in an intimate relationship since July 2016; they married on [omitted for publication]. T.P. has two minor daughters from a previous relationship, who reside with him (and E.B.L.P.) under a shared parenting arrangement he has with their mother. T.P. drives a logging truck which he owes through a small closely held corporation, [omitted for publication] Ltd. E.B.L.P. owns 33% of the shares of that company, with T.P. owning the balance.
Chronology and history of the Proceedings
[8] E.B.L.P. and J.G.S. have two children of their marriage, B.E.P.S., born [omitted for publication], now 20 years old, and N.W.D.S., born [omitted for publication], now 18 (“N.W.D.S.” and together with B.E.P.S., the “Children”).
[9] E.B.L.P. and J.G.S. separated on [omitted for publication] 2010. They entered into a Separation Agreement on [omitted for publication] 2012, in which they agreed, among other things, to an equal shared parenting time arrangement with the Children. Neither parent was to pay child support. At the time of their separation, J.G.S.’s annual income was $70,877. E.B.L.P. worked for [omitted for publication] and earned $37,247 per year.
[10] On November 12, 2013, E.B.L.P. filed and withdrew an application before this Court seeking Child support and Spousal Support, prospectively and retroactively: [Documents #1 and #2]. At that time, E.B.L.P. stated she and J.G.S. had a shared parenting arrangement with the Children and that J.G.S. paid neither child nor spousal support.
[11] In December 2013, J.G.S. moved to Prince George, and the parents’ shared parenting arrangement came to an end. The Children began living with E.B.L.P. in [omitted for publication] full-time. After he moved, J.G.S. began paying E.B.L.P. $1,100 per month for child support.
[12] On March 1, 2016, J.G.S. increased the monthly child support he paid to [omitted for publication] to $1,200.
[13] On July 25, 2016, E.B.L.P. filed an Application to Obtain an Order for child support for the Children [Document #3]. In her application E.B.L.P. stated the Children had been living primarily with her and J.G.S. had generous parenting time with the Children on his own initiative. E.B.L.P. sought increased child support prospectively and retroactive to January 1, 2015, at which time J.G.S. had notice of her intention to seek increased support. On September 12, 2016, Process Server Jaclyn Gerow personally served J.G.S. with E.B.L.P.’s July 25, 2016 Application [Document #4]. She filed an Affidavit of Service on October 6, 2016. J.G.S. did not file a Reply or a Financial Statement within 30 days of being served with the application.
[14] On November 7, 2016, E.B.L.P. filed an affidavit in support of her July 25, 2016 Application to Obtain an Order [Document #5]. In that affidavit E.B.L.P. stated:
a. J.G.S. moved to Prince George in December 2013, after which the children began living with her full-time. At that time, J.G.S. began paying E.B.L.P. child support in the amount of $1,100 per month for both children;
b. She believed J.G.S. was working as [omitted for publication] in the “oil patch”;
c. From January 2014 up to and including February 2016, J.G.S. deposited $1,100 per month in her bank account for child support in two monthly payments of $550 each;
d. From March 2016 onward, J.G.S. paid $1,200 per month to E.B.L.P. for child support, in two monthly instalments of $600 each;
e. E.B.L.P. says J.G.S. began depositing his pay cheques into a bank account he held jointly with E.B.L.P. so that his wife at the time would not know how much he was earning. E.B.L.P. therefore had bank records which she exhibited to her affidavit indicating J.G.S.’s annual after-tax income was $89,028.99, which grossed up to a pre-tax salary in excess of $120,000;
f. E.B.L.P. asked J.G.S. in the fall of 2014 and on multiple occasions since to increase his child support payments to accord with the Federal Child Support Guideline table amount; and
g. E.B.L.P. sought retroactive child support from January 2015 to October 2016, and ongoing child support commencing November 2016.
[15] E.B.L.P.’s July 25, 2016 Application came before Judge Struyk for hearing on November 8, 2016. E.B.L.P. was represented by Mr. Strimbold. J.G.S. did not appear, nor did anyone on his behalf. On that date, Judge Struyk made the following final order:
a. J.G.S.’s annual income for 2015 and 2016 was imputed to be $120,000;
b. On the first day of every month J.G.S. would pay to E.B.L.P. the sum of $1,734 per month for the support of the two Children, retroactive from January 2015;
c. The Court recognized J.G.S. paid child support in the amount of $1,100 per month from January 2015, and $1,200 per month from March 2016 to October 2016;
d. J.G.S. owed E.B.L.P. retroactive child support from January 2015 to February 2016 in the amount of $634 per month for 14 months for a total of $8,876; and
e. J.G.S. owed E.B.L.P. retroactive child support from March 2016 to October 2016 is the amount of $634 per month for 8 months for a total of $4,272.
[16] J.G.S. retained legal counsel, Mr. James Rempel of the firm of Chudiak, Schmit & Co. in Quesnel, BC. On May 23, 2017, Mr. Rempel filed J.G.S.’s Reply to E.B.L.P.’s July 25, 2016 Application [Document #7]. J.G.S. agreed to pay support for the children in the amount of $1,200 per month commencing February 1, 2016, which is the date from when he began making those payments. J.G.S. did not agree to pay retroactive child support because he claimed he was not in arrears.
[17] On May 23, 2017, J.G.S. filed a Form 4 Financial Statement, stating he was employed by [omitted for publication] and declared his annual child support Guideline income to be $85,000. J.G.S. appended Income Tax Returns and Notices of Assessment from 2010 to 2016 and employment records for 2018. These documents show on Line 150 of his tax returns:
a. In 2010, J.G.S.’s annual Guideline income was $70,877;
b. In 2011, J.G.S.’s annual Guideline income was $87,371, of which $5000 was RRSP income;
c. In 2012, J.G.S.’s annual Guideline income was $86,847, of which $6,000 was RRSP income;
d. In 2013, J.G.S.’s annual Guideline income was $124,013, of which $36,512 was RRSP income;
e. In 2014, J.G.S.’s annual Guideline income was $141,187, all of which was from his employment;
f. In 2015, J.G.S.’s annual Guideline income was $143,676, all of which was from his employment with [omitted for publication]; and
g. In 2016, J.G.S.’s employment with [omitted for publication] ended on May 19, 2016. He began Working for [omitted for publication] in July 2016. J.G.S.’s annual Guideline income in 2016 was $102,957, all of which was from employment from [omitted for publication].
[18] On June 5, 2017, E.B.L.P. filed a Form 4 Financial stating she was employed full-time as a [omitted for publication]. She declared a Guideline income for child support of $53,632.79, which included RRSP income in the amount of $5,000. E.B.L.P. attached her financial records showing:
a. In 2010, E.B.L.P.’s Line 150 income was $37,427, of which $36,780 was from employment;
b. In 2011, E.B.L.P.’s Line 150 income was $37,818, of which $37,187 was from employment;
c. In 2012, E.B.L.P.’s Line 150 income was $39,527, of which $700 was from RRSP income and $38,133 was from employment;
d. In 2013, E.B.L.P.’s Line 150 income was $44,720, which included, among other amounts, $1,500 from RRSP income and $42,244 from employment income;
e. In 2014, E.B.L.P. Line 150 income was $47,193, which included, among other amounts, $2,000 from RRSP income and $44,109 from employment income;
f. In 2015, E.B.L.P. Line 150 income was $59,133, which included, among other sources, $10,000 from RRSP income, a $1,440 Universal Child Care Benefit (“UCCB”) and $46,473 from employment income; and
g. In 2016, E.B.L.P. Line 150 income was $54,352.79, which included among other sources, $5,000 from RRSP income, $720 from the UCCB, and $46,792 from employment income.
[19] E.B.L.P. said over the years she was cashing in her RRSPs to try and pay down some of her personal debt.
[20] On June 27, 2017, E.B.L.P.’s July 25, 2016 Application came before Judge Jackson for a first appearance. Legal Counsel, Mr. Brad Chudiak, appeared as agent for J.G.S. and his counsel, Mr. James Rempel; E.B.L.P. attended in person and represented by duty counsel, Mr. Michael Reed, acting as agent for Mr. K. Strimbold. At Mr. Chudiak’s request Judge Jackson terminated Judge Struyk’s November 8, 2016 order, which Mr. Reed opposed. Judge Jackson referred E.B.L.P.’s July 25, 2016 Application to the Judicial Case Manager (“JCM”) to schedule a Family Case Conference.
[21] E.B.L.P. and J.G.S. attended a Family Case Conference (“FCC”) before me on September 12, 2017, with respect to E.B.L.P.’s July 25, 2016 Application and J.G.S.’ May 23, 2017 Reply. E.B.L.P. was represented by her legal counsel, Mr. K. Strimbold, and J.G.S. was represented by his legal counsel, Mr. James Rempel. The parties entered into a Final Order by Consent:
a. Neither party shall access a recording of the Family Case Conference without a court order;
b. The arrears for child support owed by J.G.S. to E.B.L.P. as of the date of the order were fixed at $9,000.
[22] Up until the end of September 2017, J.G.S. had paid E.B.L.P. $1,200 per month, in two instalments of $600 each. Beginning in October 2017, he increased his child support payments to $1,400 per month, which he paid in two instalments of $700 each.
[23] Based on the December 31, 2011 Guideline tables, J.G.S. was to pay child support for two children in the amount of $1,278, if he earned $85,000 in 2017, as predicted in his May 23, 2017 Financial Statement. J.G.S. says he understood the $1,400 he began paying in October 2017, consisted of $1,200 per month in ongoing support and $200 per month towards the arrears. In fact, J.G.S. earned $94,642 in 2017, which means he ought to have paid E.B.L.P. $1,406 per month for ongoing support for 2017.
[24] At the end of the September 12, 2017 FCC, counsel for E.B.L.P. and J.G.S. cancelled the January 11, 2018 trial date. No order was requested or made for ongoing child support. E.B.L.P.’s July 25, 2016 Application was adjourned generally.
[25] E.B.L.P. understood that after the September 12, 2017 FCC, J.G.S. was paying $1,400 per month in ongoing child support. J.G.S. says on advice of counsel, he paid $1,200 in ongoing child support and $200 per month towards the $9,000 arrears. Neither J.G.S. nor his counsel discussed this allocation with E.B.L.P. J.G.S. says he anticipated making an arrangement to pay the arrears with Family Maintenance Enforcement Program (“FMEP”), which never happened as E.B.L.P. never registered with FMEP.
[26] On January 11, 2018, E.B.L.P.’s July 25, 2016 Application came before Judge Jackson, at which time Mr. Strimbold appeared on behalf of E.B.L.P. and no one appeared on behalf of J.G.S. The matter was struck from the list given the determination at the September 12, 2017 FCC.
[27] B.E.P.S. graduated high school in [omitted for publication] in June 2017 and began attending university in [omitted for publication], in September 2017. She turned 19 on [omitted for publication]. N.W.D.S. graduated high school in [omitted for publication] in June 2019, and planned to go to live and work with his father at the end of August 2019.
[28] On July 15, 2019, J.G.S. filed an Application to Obtain an Order that:
a. J.G.S. pay child support to B.E.P.S. directly rather than to her mother, E.B.L.P.;
b. J.G.S.’s child support owing with respect to N.W.D.S. cease as of August 2019, when N.W.D.S. began living with him full time; and
c. E.B.L.P. pay J.G.S. child support for N.W.D.S. once N.W.D.S. began living with him full time.
[29] In his July 15, 2019 Application, J.G.S. stated that N.W.D.S. was currently residing with E.B.L.P. but was going to live with J.G.S. in August, 2019. B.E.P.S. was attending post-secondary school in [omitted for publication] from September 2019 to May 2020, and she would return residing with E.B.L.P. during the summer break. J.G.S. further stated he had been paying $1,400 per month to E.B.L.P. for the support of both Children.
[30] On August 15, 2019, E.B.L.P. filed a Reply disagreeing with J.G.S.’s application for child support. She says J.G.S. has no idea of the amount of B.E.P.S.’s expenses for university as E.B.L.P. pays the majority of those expenses directly. She further states that if N.W.D.S. does move to [omitted for publication] to live with J.G.S. it would be for full-time employment and N.W.D.S. has not yet moved.
[31] J.G.S.’s July 15, 2019 Application and E.B.L.P.’s August 15, 2019 Reply came before Judge Malfair on September 10, 2019. E.B.L.P. attended in person and represented by her legal counsel Mr. K. Strimbold. J.G.S. attended in person and represented by Ms. J. Reed, acting as duty counsel. Judge Malfair made the following order, by consent:
a. Upon the Court being advised that the name and birth date of each child is as follows:
i. B.E.P.S., born [omitted for publication]; and
ii. N.W.D.S., born [omitted for publication],
collectively, the “Children”;
b. The Court is satisfied that E.B.L.P., also known as E.B.L.S. and J.G.S. (“J.G.S.”) are the guardians of B.E.P.S. and N.W.D.S. under s. 39(1) of the Family Law Act (FLA);
c. Upon the Court being advised that N.W.D.S. is primarily residing with J.G.S. as of September 1, 2019;
i. E.B.L.P. and J.G.S. will complete, file with the Registry of this Court, and deliver to each other a sworn Financial Statement in Form 4 of the Provincial Court (Family) Rules, including all attachments listed on page 2 of that Form by October 31, 2019;
ii. E.B.L.P. and J.G.S. will exchange the following financial documents by October 31, 2019:
iii. records documenting any payments of any child support or arrears made between the parties from November 1, 2016 to August 31 2019;
iv. records relating to any RESP's maintained for the benefit of the children; and
v. all records relating to income, expenses, student financial support, and school costs relating to the B.E.P.S.
d. The matter is adjourned to the JCM to fix a one day hearing on the issues of child support for both Children, including the issue of whether B.E.P.S. is a child of the marriage. [Emphasis added]
[32] On December 20, 2019, E.B.L.P. filed a Form 4 Financial Statement in which she disclosed her income, benefits and adjustments, expenses, and her assets and debts. In her Financial Statement, E.B.L.P. says she is [omitted for publication]. Her financial documents indicate:
a. In 2012, E.B.L.P.’s Line 150 income was $39,527, which included, among other sources, $700 from RRSPs and $38,133 from employment;
b. In 2013, E.B.L.P.’s Line 150 income was $44,720, which included, among other sources, $1,500 from RRSPs and $42,244 from employment;
c. In 2014, E.B.L.P.’s Line 150 income was $47,193, which included, among other sources, $2,000 from RRSPs and $44,109 from employment;
d. In 2015, E.B.L.P.’s Line 150 income was $59,133, which included, among other sources, $10,000 from RRSPs, $1,440 from the UCCB, and $46,473 from employment;
e. In 2016, E.B.L.P.’s Line 150 income was $54,352, which included, among other sources, $5,000 from RRSPs, $720 from the UCCB, and $46,792 from employment;
f. In 2017, E.B.L.P.’s Line 150 income was $65,443, which included, among other sources, $14,086 from corporate dividends, $5,000 from RRSPs and $45,517 from employment; and
g. In 2018, E.B.L.P. Line 150 income was $62,536.92, which included, among other sources, $10,000 from RRSPs and $51,375 from employment.
[33] E.B.L.P. explained that she continued to cash in RRSPs in order to pay down her debt, although she also continues to contribute to her RRSPs. E.B.L.P. anticipates her 2019 employment income is $56,000. The $14,086 she received in corporate dividends is the only money she has received from [omitted for publication] Ltd.
[34] J.G.S. acknowledges E.B.L.P. does not receive significant money from her interest in [omitted for publication] Ltd. Apparently the corporation is not a particularly profitable enterprise. E.B.L.P. provided financial documents for the company from 2017 and 2018. The balance sheet for the company as of December 31, 2018, indicated it had a net loss of $35, 891, however, its expenses also included salaries totalling $80,594 for the year. The balance sheet from December 31, 2017, show [omitted for publication] Ltd. having a net loss for the year of $31,633, having paid salaries of $69,867. I assume the salary is paid to T.P., who is its principal owner / operator.
[35] E.B.L.P. included financial documents confirming the balance of the registered education savings plan (RESP) she and J.G.S. created for the Children. Initially, E.B.L.P. and J.G.S. each contributed $100 per month to the RESPs, for a total of $2,400 per year. J.G.S. stopped paying into the fund in 2015; after which, E.B.L.P. contribute $200 per month. As of March 31, 2015, the RESP was valued at $22,977.59. By June 30, 2017, the value of the RESP increased to $29,242.24. Beginning in September 2017, E.B.L.P. began withdrawing RESP funds to help pay B.E.P.S.’s tuition, text books, school supplies, and parking. At the same time, she continued to pay $200 per month to replenish the RESP.
[36] In 2015, when J.G.S. permanently stopped contributing to the children’s RESP, he earned employment income of $143,676 while E.B.L.P. earned $46,473.
[37] E.B.L.P. also included in her financial statement a list expenses E.B.L.P. paid for B.E.P.S.’s past 2.5 years of university, which total $42,890.
[38] On January 29, 2020, J.G.S. filed his Form 4, Financial Statement, without any attachments. In his Financial Statement, J.G.S. stated he was a [omitted for publication] working for [omitted for publication], he declared his annual income from his employment as $100,000.
[39] J.G.S. brought to the hearing and filed as exhibits his Notice of Assessments for 2016, 2017, and 2018. He did not bring any financial records confirming his 2019 income. He says he did not know he was required to do so. During the hearing J.G.S. stated his income for 2019 was $105,000. The Notices of Assessment he did tender into evidence show:
a. in 2016, J.G.S. earned a total income of $102,957 from his employment;
b. In 2017, J.G.S. earned a total income of $94,642 from his employment; and
c. In 2018, J.G.S. earned a total income of $101,589 from his employment.
[40] J.G.S. says his only assets are a 2016 F-150 Truck, a 2013 Jayco travel trailer and an aluminium boat. Both vehicles are subject to loans which are now greater than their market value. J.G.S. has no other assets or substantial debts. As to expenses, J.G.S. pays $700 per month rent to M.B. and $250 per year towards the property taxes. His rent includes his utilities. I conclude J.G.S.’s living expenses are significantly less than his expenses.
[41] E.B.L.P.’s expenses are twice her income.
Legal Framework
[42] The principles on which child support is based are:
a. the parents of a child have a joint and ongoing obligation to support their children: s. 147 Family Law Act (FLA);
b. child support belongs to the child; and
c. the amount of child support is based, not only on the parents’ earnings, but also on what the parent can earn.
See Carriere v. Carriere, 2013 BCSC 235, at para. 21, citing Earle v. Earle, 1999 BCSC 283.
"child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians
[44] I note that on September 10, 2019, Judge Malfair referred the issue of whether B.E.P.S. was “child of the marriage” to hearing. This is the language of the Divorce Act, which defines a dependent “child of the marriage” in s. 2(1) as follows:
...Child of the marriage means a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;
[45] The age of majority in British Columbia, is 19 years old.
[46] The amount of child support must be determined in accordance with the Child Support Guidelines (s. 150(1) FLA). Pursuant to the FLA and Part 4 of the Family Law Act Regulation, BC Reg 347/2012, the Child Support Guidelines means the Federal Child Support Guidelines (the “Guidelines”) established under s. 26.1 of the Divorce Act (Canada). Accordingly, s. 3(1) of the Guidelines requires the Court to order the amount set forth in the table. This amount is set according to the annual income of the payor parent. The presumptive rule contained in s. 3(1) of the Guidelines may be excepted if certain conditions apply. It states:
Presumptive rule
3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
Child the age of majority or over
(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is
(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.
[47] The objectives of the Guidelines are set out in s.1:
a. to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
b. to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
c. to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and
d. to ensure consistent treatment of spouses and children who are in similar circumstances.
[48] In this case, it is uncontested that s. 3(1) of the Guidelines applies with respect to both Children while they were under the age of 19. B.E.P.S. became 19 years old on [omitted for publication] 2018, N.W.D.S. will be 19 on [omitted for publication] 2020.
[49] Neither parent seeks any child support under s. 7 of the Guidelines, either prospectively or retroactively.
[50] As B.E.P.S. is now an adult, E.B.L.P. bears the evidentiary burden of establishing that B.E.P.S. is “for another reason” unable obtain the necessaries of life or withdraw from the charge of her parents for the purposes of child support under s. 147 of the FLA. “Necessaries of life" is not simply basic food, clothing and shelter. It varies with the specific applicant considering their reasonable expectations: Lougheed v. Lougheed, 2007 BCCA 396 at paras. 23 and 25.
[51] In considering issues of child support for children over the age of 19, the B.C. Court of Appeal, in W.N. (W.P.) v. N.(B.J.), 2005 BCCA 7 (“N. v. N.”), adopted the following four step process Martinson J. formulated (at para. 6) in Wesemann v. Wesemann, 1999 CanLII 5873 (BC SC):
Step One
Decide whether the child is a "child of the marriage" as defined in the Divorce Act? If s/he is not, that ends the matter.
Step Two
Determine whether the approach of applying the Guidelines as if the child were under the age of majority ("the usual Guidelines approach") is challenged. If that approach is not challenged, determine the amount payable based on the usual Guidelines approach.
Step Three
If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach is inappropriate. If not, the usual Guidelines amount applies.
Step Four
If the usual Guidelines approach is inappropriate, decide what amount is appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child?
[52] A generally accepted reason for adult children’s continued dependency on their parents is their pursuit of post-secondary education in order to equip them with a career: Jackson v. Jackson, 1972 CanLII 141 (SCC). However, in N. v. N., the appellate court held that all of the surrounding circumstances must be considered in accessing the adult child’s continued dependency, not just the fact that the child is attending a post-secondary institution. In N. v. N. the issue was whether the adult child continued to be a “child of the marriage” while seeking a second degree and, if so, the amount of support that should be awarded.
[53] The Court will assess an adult child’s entitlement to continued parental support while pursuing post-secondary education depends on whether the educational goals are reasonable in light of the parents’ financial resources. The leading case on the issue of whether parents should continue to pay child support for a child pursuing post-secondary education is Farden v. Farden, 1993 CanLII 2570 (BC SC). In Nordeen v. Nordeen, 2013 BCCA 178, Groberman J.A. summarized the relevant considerations at paras. 16 and 17 with reference to the Farden factors:
[16] In determining whether pursuit of education is a valid reason for continued dependence, a court must consider two questions. The first is whether, considering all of the child's circumstances, the child's educational pursuits are reasonable. If they are, the court must also consider whether it is appropriate that the pursuits be financed by the parents. These questions can be complex and value-laden. In Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60, at 64-5, Master Joyce (as he then was) set out a list of eight factors that may assist a court in making the determinations:
(1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;
(2) whether or not the child has applied for or is eligible for student loans or other financial assistance;
(3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
(4) the ability of the child to contribute to his own support through part-time employment;
(5) the age of the child;
(6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.
[54] If the court finds the adult child is unable to withdraw from the parent’s charge, then the court must apply either s. 3(2)(a) or 3(2)(b) of the Guidelines. The proper approach to determine whether s. 3(2)(a) or s. 3(2)(b) of the Guidelines applies is set out in McClement v. McClement, 2017 BCCA 416 at para. 12. It states:
[12] In sum, the choice between the two sections is discretionary and determined by the particular circumstances of each case and there is no specific requirement formally to challenge relying on s. 3(2)(a) before a judge can consider whether it is inappropriate to apply that subsection rather than s. 3(2)(b) and or vice versa. The view taken by this Court is that the burden of proof rests with each party in the ordinary manner to persuade the court which of the two sections is the appropriate one to apply in the particular circumstances before the court. There are of course factors that tend to support the appropriateness of relying on one section rather than another and which guide the exercise of a judge's discretion. For example, the more closely the circumstances of the adult child resemble those of a minor child living at home, the less likely it is that the approach found in s. 3(2)(a) will be determined to be inappropriate. Each case will depend on its facts.
[55] E.B.L.P. submits s. 3(2)(a) ought to apply; J.G.S., who is self-represented, advocates for a lesser sum than the Guideline table amount. Authorities binding upon this Court hold that generally s. 3(2)(b) applies in the case of “an adult child attending a post-secondary institution and living away from home”: M.(P.R.) v. M.(B.J.), 2012 BCSC 1795 at para. 120 [P.R.M.], aff’d 2013 BCCA 327; N. v. N.; De Beck v. De Beck, 2012 BCCA 465. In De Beck, Madam Justice D. Smith states at paras. 55 and 56:
[55] Justice Levine [in N. v. N.] also discussed the application of s. 3(2)(b) in reference to the decision of Madam Justice Martinson in Wesemann v. Wesemann (1999), 1999 CanLII 5873 (BC SC), 49 R.F.L. (4th) 435 (B.C.S.C.). Wesemann also involved the issue of how support for an adult child attending school away from home should be calculated. Martinson J. formulated a four-step approach for determining the “appropriate” amount of support for an adult child under s. 3(2). That approach began with the presumptive table amount unless the “usual Guidelines approach was challenged” and found to be inappropriate. Levine J.A. (at para. 39) held that the absence of a challenge to the “usual Guidelines approach” did not preclude consideration of s. 3(2)(b) for determining the appropriate amount of support. She concluded:
[42] In my opinion, in principle, support for an adult child who is entitled to child support because of his or her attendance at a post-secondary institution generally should be determined under s. 3(2)(b). The “table amount”, as noted by Martinson J. in Wesemann, contemplates a contribution by the non-custodial parent to the expenses borne by the custodial parent in providing a home for the child. The fact that the “table amount” increases incrementally and not absolutely for additional children supports that interpretation of the intention of the Guidelines. The “table amount” does not contemplate a child’s contribution, which is an important factor in considering the amount of support a student requires. [Emphasis added.]
[56] Just as the absence of a challenge to the “usual Guidelines approach” under s. 3(2)(a) should not preclude a consideration of s. 3(2)(b), similarly the fact that an adult child is attending a post-secondary institution while living at home should not in my view foreclose a consideration of the approach under s. 3(2)(a). In each case, the choice between applying s. 3(2)(a) and s. 3(2)(b) will be a discretionary one that will be governed by the circumstances of that case.
[56] An important consideration in the analysis is that adult children have an obligation to make a reasonable contribution to their education: Semancik v. Saunders, 2011 BCCA 264, at para. 73. The court has a very broad discretion to determine the amount an adult child should contribute: Semancik at para. 74.
B.E.P.S.
[57] B.E.P.S. did not testify nor did she provide an affidavit in these proceedings. This Court has not been provided documents one expects in applications for support for an adult child. Specifically, the Court has not been provided with:
a. B.E.P.S.’s income tax returns or statement of earnings since she turned 19;
b. B.E.P.S.’s detailed budget;
c. Records relating to B.E.P.S.’s expenses;
d. B.E.P.S.’s transcripts from UBC [omitted for publication];
e. Any reason why B.E.P.S. cannot work part-time during the academic year; and
f. B.E.P.S.’s specific career plans upon completing her post-secondary studies.
[58] I do not consider this paucity of evidence a deliberate omission by E.B.L.P. Given the thoroughness with which she provided her own financial documents, I assume E.B.L.P. did not understand the scope of Judge Malfair’s September 10, 2019 order.
[59] B.E.P.S. graduated from high school in June 2017, when she was 18 years old and began attending university in the fall of 2017. B.E.P.S. is pursuing a [omitted for publication] degree, after which she will seek a second bachelor degree in education. B.E.P.S. is now in year three of a four year Bachelor of Arts’ degree at the University of British Columbia [omitted for publication]. A Bachelor of Education will take her an additional two years. During the academic year (September 1 to April 30), B.E.P.S. resides in [omitted for publication] in a house she rents with other students. She drives a 2009 [vehicle] which she bought with J.G.S.’s assistance. During the four month summer break (May to September), B.E.P.S. returns to [omitted for publication], resides with her mother and works as a server in local restaurants.
[60] From March 2016 until September 12, 2019, J.G.S. paid to E.B.L.P. $1200 per month for child support for both B.E.P.S. and N.W.D.S. He also sent B.E.P.S. money from time to time directly. J.G.S. made his last two ongoing child support payments to E.B.L.P. on September 9 and 12, 2019, in the amount of $700 each. After that date, J.G.S. began sending $600 per month to B.E.P.S. directly in two $300 instalments. He paid E.B.L.P. $500 towards the arrears in two instalments of $250 each.
[61] On pps. 372-373 of her December 20, 2019 financial statement, E.B.L.P. set out B.E.P.S.’s expenses for the past two and one half years of university:
|
Expense |
Amount |
Particulars |
|
2017 UBC Deposit |
$300.00 |
|
|
Student Fees |
$25.00 |
|
|
2017 UBC Tuition (Fall) |
$2,688.83 |
|
|
2018 UBC Tuition (Spring) |
$2,800.00 |
|
|
2018 UBC Tuition (Fall) |
$3,167.14 |
|
|
2019 UBC Tuition (Spring) |
$2,657.56 |
|
|
2019 UBC Tuition (Fall) |
$2,062.27 |
|
|
Books |
$1,450.37 |
$459.89, $230.42, $106, $107.74, $75, + $471.31 |
|
School Supplies |
$ 362.71 |
$24.80 + $55.78 + $30.81 + $107.72 + $103.06 + $40.00 |
|
Parking at UBC |
$1,246.00 |
$120+ $160 + $462+ $504 |
|
Basic living expenses (rent, utilities, groceries) |
$8,960.00 |
Year 1 (Fall 2017 to Spring 2018) |
|
Basic living expenses (rent, utilities, groceries) |
$8,000.00 |
Year 2 (Fall 2018 to Spring 2019) |
|
Basic living expenses (rent, utilities, groceries |
$4,000.00 |
Year 3 (Fall 2019 to January 2020) |
|
Motor Vehicle Expenses |
$2,370.72 |
$806.11 + $1,200 + $224 ($44.80 X 5) + $92.21+ $47.40 + |
|
Groceries |
$366.19 |
$116.29 + $17.56 + 16.74 + 30.28 + 115.48 + $33.99 + $35.95 |
|
Bedding |
$303.81 |
$116.38 + $187.43 |
|
Clothing |
$1,220.58 |
$81.18 + $103.16 + $35 + $349.66 + $163.52 + $90.63 + $296.54 + $100.79 |
|
Extra cash |
$720 |
$200 + $120 + $100 + $200 + $100 |
|
Satellite Radio |
$124.00 |
|
|
Miscellaneous |
$65.00 |
$15 (printing) + $50 (bus fare) |
|
Total Expenditure |
$42,890.18 |
Up until December 31, 2019 |
[62] E.B.L.P. has spent $42,890 in 2.5 years plus additional monies which have not been documented. This means E.B.L.P. spends at least $17,156 per year to support B.E.P.S. while she attends university ($42,890 ÷ 2.5 = $17,156).
[63] E.B.L.P. has withdrawn the following sums from the children’s RESP which she has applied towards the cost of B.E.P.S.’s tuition, books, school supplies, and parking:
|
Date |
Value of RESP |
Amount Withdrawn |
Balance |
|
11 Jan 2018 |
$26,250.98 |
$3,217.00 |
$23,265.45 |
|
07 Sep 2018 |
$25,590.90 |
$5,000.00 |
$20,401.91 |
|
11 Jan 2019 |
$20,293.32 |
$2,657.56 |
$17,847.19 |
|
06 Sep 2019 |
$20,824.41 |
$1,214.05 |
|
|
06 Sep 2019 |
|
$1,248.62 |
$17,643.83 |
|
06 Sep 2019 |
$ 538.33 MMF |
$ 538.33 |
$0 |
|
Value of RESP September 30, 2019 |
|
|
$17,853.37 |
|
Total Withdrawn |
$13,875.56 |
|
|
|
E.B.L.P. continues to contribute $200 per month to the RESP fund. |
|||
[64] E.B.L.P. paid at least $42,890 to support B.E.P.S. in university over the past 2.5 years. Of this sum, E.B.L.P. paid $13,875 from the RESPs. E.B.L.P. has also contributed $6,000 to the RESP fund during this 2.5 year period. E.B.L.P. also supports B.E.P.S. from May 1 to August 30 of each year. Her records indicate E.B.L.P. pays: $42,890 – $13,875 + $3,000 (half of the new RESP funding) = $32,015 for 2.5 years or $12,806 per year. Until September 12, 2019, J.G.S.’s child support payment for B.E.P.S. varied between $7,200 and $8,400 per year: ($14,400 or $16,800 ÷ 2 = $7,200 or $8,400).
[65] During the four month summer break, B.E.P.S. works at the [omitted for publication] where she receives minimum wage and tips. She saves her earnings for spending money while at university and to pay for her car insurance. B.E.P.S. has her own vehicle which she and J.G.S. shared the purchase price. E.B.L.P. does not ask B.E.P.S. to contribute any of her earnings toward E.B.L.P.’s household.
Issue #1: Is B.E.P.S. still a child under the FLA and entitled to continuing support?
[66] J.G.S. does not seriously contest B.E.P.S. continues to be require financial assistance from her parents, but he does not know the amount of support they ought to provide, or for how long. Although E.B.L.P. does not believe B.E.P.S. ought to work while attending university full-time, J.G.S. believes she ought to contribute more towards her education.
[67] Considering the Farden factors, I conclude:
a. B.E.P.S. is enrolled in a course of studies which is full-time for eight months of the year. She has 1.5 years of university to complete her first undergraduate degree and then an additional two years if she is to achieve her goal of a Bachelor of Arts [omitted for publication] and a Bachelor of Education.
b. Given her age, her parents’ income, and she is working toward her first degree, B.E.P.S. is not eligible for student loans. The Court has not been apprised of whether B.E.P.S. has received any scholarships or other form of financial assistance;
c. I surmise B.E.P.S.’s career plans are ultimately to become a [omitted for publication] teacher. This seems like is a reasonable and appropriate plan;
d. I understand B.E.P.S. does have the ability to contribute to her own support through summer employment. I have not been given any reason why B.E.P.S. cannot work part-time during the school year other than E.B.L.P. believes it is unnecessary;
e. B.E.P.S. is 20 years old; she will be 21 on [omitted for publication] 2020;
f. I have no information on B.E.P.S.’s past academic performance or progress; however, I infer from the fact she is now in third year university, B.E.P.S. is succeeding in her course of studies;
g. E.B.L.P. and J.G.S. contributed jointly to an RESP for years. I infer from this investment that both before and after their cohabitation they intended their children would pursue some sort of post-secondary education; and
h. there is no suggestion B.E.P.S. has unilaterally terminated her relationship from J.G.S. In fact, the contrary is true, J.G.S. seems to communicate regularly with B.E.P.S.
[68] I conclude B.E.P.S. is still “a child of the marriage” and unable to withdraw from the charge of her parents.
Issue #2: What are the parents’ ongoing support obligations for the Children?
[69] J.G.S. is prepared to pay B.E.P.S. $600 per month directly to assist her with her studies. These payments will continue throughout the year, including during the summer break. This means J.G.S. will pay $7,200 per year towards B.E.P.S.’s education, which is about half the amount of child support he had been paying prior to September 2017 for both Children. J.G.S. believes that B.E.P.S. ought to be contributing to the cost of her education beyond simply earning spending money. In this respect, I do not consider J.G.S.’s expectation unreasonable.
[70] E.B.L.P. asks J.G.S. pay support for B.E.P.S. in the Guideline amount, although she agrees he can pay $600 of that sum to B.E.P.S. directly. J.G.S.’s guideline income for 2019 is $105,000. If he were to pay Guideline child support, J.G.S. would pay $1,588 per month for two children (roughly, $794 each) and $989 for one child. On a Guideline $100,000 income, J.G.S. would pay $1,522 per month for two children or $946 per month for one. I understand E.B.L.P. asks J.G.S. pay $600 per month to B.E.P.S. directly and the balance of the Guideline support to her ($389 or $342 as the case may be). E.B.L.P. would then continue to cover B.E.P.S.’s expenses while she is attending university and provided her with a home during the four months when B.E.P.S. is not in school. If I were to make such an order, J.G.S. would pay between 66% - 69% of B.E.P.S.’s yearly shortfall ($989 x 12 = $11,868 ÷ $17,156 x 100 = 69%; $942 x 12 = $11, 304 ÷ $17,156 x $100 = 66%). E.B.L.P. would pay the remaining 31% - 34% which is $5,288 to $5,852 ($17,156 - $11,868 = $5,288; $17,156 - $11,304 = $5,852) from her own income and from the RESPs. E.B.L.P. would also continue to contribute $2,400 per year to the RESP on behalf of both Children.
[71] E.B.L.P. says if she has to pay child support to J.G.S. for N.W.D.S. in the amount of $527 per month she will not be able to continue to send B.E.P.S. $1,000 per month.
Conclusion on B.E.P.S.
[72] J.G.S. has paid child support to E.B.L.P. for B.E.P.S. up until September 12, 2019, when he ceased paying E.B.L.P. any money for ongoing child support for either B.E.P.S. or N.W.D.S. He began paying B.E.P.S. $300 every two weeks directly. J.G.S. is prepared to continue pay to B.E.P.S. directly $600 per month on the first day of each and every month while she is attending university full-time, at least for the time being.
[73] As I have set out below, over the years, J.G.S. has paid to E.B.L.P., less child support than that to which the children were entitled, sometimes significantly so. Although she too works full-time, E.B.L.P. earns and has earned roughly half of what J.G.S. earns. I acknowledge that a significant portion of J.G.S.’s employment income is attributable to him working over-time. Nevertheless, in the circumstances, I am not prepared to order J.G.S. pay any less than Guideline child support for B.E.P.S. prior to September 12, 2019. Although E.B.L.P. agrees J.G.S. pay B.E.P.S. $600 directly, she asks J.G.S. pay to E.B.L.P. the balance of B.E.P.S.’s Guideline child support calculated on his estimated $100,000 annual income ($946-$600 = $346). E.B.L.P. would credit J.G.S. the $346 per month towards the arrears. In this way, E.B.L.P. would continue to support B.E.P.S. as she does now.
[74] B.E.P.S. is 20 years old and will be 21 in [omitted for publication]. I agree B.E.P.S. is of an age she can receive at least some of her father’s support directly. I will order J.G.S. pay $600 per month to B.E.P.S. directly and $200 per month to E.B.L.P. for B.E.P.S.’s support. This means J.G.S. will pay a total of $800 per month or $9,600 per year toward B.E.P.S.’s support. This leaves the $7,556 remaining shortfall ($17,156 - $9,600 = $7,556) to be paid by a combination of E.B.L.P., the RESP, and B.E.P.S. J.G.S.’s support in the amount of $800 per month will begin on the last day of September 2019, and continue on the last day of each and every month thereafter as long as B.E.P.S. remains eligible under the FLA until further order of this Court. The support order is reviewable after B.E.P.S. has completed her first degree, which I assume would be sometime in May 2021.
[75] As I regard E.B.L.P. as the recipient parent, I am not going to order she pay any specific sum to B.E.P.S. for her support. E.B.L.P. has been very generous to B.E.P.S. over the past few years and has effectively managed the Children’s RESP. Moreover, J.G.S. has not suggested otherwise.
N.W.D.S.
[76] N.W.D.S. graduated in June 2019, from [omitted for publication] Secondary School. At the end of August 2019, he went to [omitted for publication] to live with his father. I understand his intention was to work with his father. Since then N.W.D.S. has been working sporadically, perhaps five or so hours a week. He assists his father with maintenance on his property, and I gather he spends a great deal of time playing video games on his x-box.
[77] N.W.D.S.’ current plans are to attend post-secondary school in the fall of 2021. He is looking for work, but has not found anything substantial as of the hearing date. J.G.S. has offered no explanation as to why N.W.D.S. intends to wait one year before attending post-secondary school, given he is not working.
[78] J.G.S. is entitled to receive guideline income from E.B.L.P. for N.W.D.S.’ support. E.B.L.P.’s Guideline income for 2019, is $56,000. As N.W.D.S. has been living with J.G.S. since the end of August, E.B.L.P. is liable to pay J.G.S. child support for N.W.D.S. at the rate of $527 per month as of September 30, 2019. It will continue on the last day of each and every month as long as N.W.D.S. is entitled to child support under the FLA or further order of this Court.
[79] E.B.L.P. is entitle to set-off the support J.G.S. is ordered to pay her for B.E.P.S.’s support ($200 per month) from that which I have ordered she pay to J.G.S. for N.W.D.S.’ support ($527). In other words, until the reciprocating support orders are cancelled or varied, E.B.L.P. will pay J.G.S. $327 per month for N.W.D.S. ongoing support.
[80] E.B.L.P. is also entitled to set-off from the arrears the $327 net monthly payment owing to J.G.S. for N.W.D.S.’ support.
Issue # 3: What are the parents’ retrospective support obligations for the Children?
[81] Section 170(b) of the FLA provides that support can be ordered retroactively with respect to any period before the application for the order is made.
[82] The governing authority on retroactive child support obligations is the Supreme Court of Canada decision of D.B.S. v. S.R.G., 2006 SCC 37 (CanLII). D.B.S. dealt with an application by the recipient parent for a retroactive increase in child support. Mr. Justice Bastarache makes it clear in D.S.B. (at para. 60) that “no child support analysis should ever lose sight of the fact that support is the right of the child.”
[83] In D.B.S., Bastarache J. sets out four factors to be considered by the court in assessing whether a retroactive order is appropriate:
a. whether there is a reasonable excuse for why support was not sought earlier;
b. the conduct of the payor parent;
c. the circumstances of the child or recipient spouse; and
d. any hardship occasioned by a retroactive award on the payor spouse.
[84] The Supreme Court held that as a general rule, absent misconduct, a retroactive change to a child support will commence the date of effective notice, but no more than three years in the past. “Effective notice” is not restricted to the date upon which an application to the Court or formal notice is given, but generally when the topic is broached. The reason for this rule is that persons must have some certainty in their financial affairs. When E.B.L.P. and J.G.S. had a shared parenting regime with respect to both children, neither parent paid child support, although the documentation indicates E.B.L.P. made significantly less than J.G.S. Generally, where there is a shared parenting regime, child support is payable pursuant to a set-off formula, with the higher income earning parent paying some support to the lower income earning parent. E.B.L.P. and J.G.S.’s financial documents indicate E.B.L.P. earned roughly half of what J.G.S. earned. Since the cessation of the shared parenting regime, J.G.S. has consistently underpaid child support. He has filed two financial statements in these proceedings, both of which underestimate his Guideline income for the year in which they were filed. I have set out below the parties Line 150 income and J.G.S.’s child support obligations. I have used the Federal Child Support Tables in force at the appropriate time. As both parties had a habit of buying and selling RRSPs, I have set out below their Line 150 income without adjustment.
Year |
J.G.S.’s Line 150 Income |
E.B.L.P’s Line 150 income |
J.G.S.’s guideline support obligation |
Support actually paid |
Monthly shortfall |
Yearly shortfall |
|
May 1, 2006 Federal Child Support Tables |
||||||
|
Sept 2010 |
$ 70,877 |
$37,247 |
Setoff $1,065- $572 = $493 |
$0 |
$493 x 4 |
$ 1,972 |
|
2011 |
$ 87,371 |
$37,818 |
Setoff $1,282-$580 = $702 |
$0 |
$702 x 12 |
$ 8,424 |
|
December 31, 2011 Federal Child Support Tables |
||||||
|
2012 |
$ 86,847 |
$39,527 |
Setoff $1,303- $605 = $698 |
$0 |
$698 x 12 |
$ 8,376 |
|
2013 |
$124,013 |
$44,720 |
Setoff $1,785- $680 =$1,105 |
$0 |
$1,105 x 12 |
$13,260 |
|
2014 |
$141,187 |
$47,193 |
$1,996 |
$1,200 |
$ 796 x 12 |
$ 9,552 |
|
2015 |
$143,676 |
$59,133 |
$2,207 |
$1,200 |
$1,007 x 12 |
$12,084 |
|
2016 |
$102,967 |
$54,352 |
$1,516 |
$1,200 |
$ 316 x 12 |
$ 3,792 |
|
2017 Sep 13 Dec 1 |
$ 94,642 |
$62,443 |
$1,406 $1,451 |
$1,200 $1,400 |
$ 206 x 8.5 $ 6 x 2.5 $ 51 x 1 |
$ 1,751 $ 15 $ 51 |
|
November 22, 2017 Federal Child Support Tables |
||||||
|
2018 |
$101,589 |
$62,536 |
$1,543 |
$1,400 |
$ 143 x 12 |
$ 1,716 |
|
2019 to Sep |
$105,000 |
$56,000 |
$1,588 |
$1,400 |
$ 188 x 8 |
$ 1,504 |
|
Total |
|
|
|
|
|
$62,497 |
|
On September 12, 2017, the arrears were fixed as $9,000 as of that date. From and including September 13, 2017 to and including August 31, 2019, the arrears are $3,286. |
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[85] But for the parents’ concessions and agreements over the years, J.G.S. would have paid $62,497 more in child support than he did. I acknowledge that in the years when E.B.L.P. and J.G.S. shared parenting of the children (Sep 2010 to Dec 2013), there may have been reasons why J.G.S. did not pay any offsetting child support to E.B.L.P. For example, he may have taken on a disproportionate share of the family debt upon separation.
[86] J.G.S. attended court on September 12, 2017, at a Family Case Conference. At its conclusion the parties consented to an order fixing J.G.S.’s child support arrears to $9,000. E.B.L.P. did not consent to J.G.S. continuing to pay less than Guideline child support going forward. J.G.S. says that as of September 23, 2017, he continued to pay $1,200 per month for ongoing child support and $200 per month against the fixed arrears. J.G.S. claims he was not aware he was paying less than the Guideline amount, which is mystifying given the reason he accrued arrears was because he had been under paying child support. It makes no sense for this Court to allocated $200 of J.G.S.’s ongoing support payments to arrears when it will result in him accruing more arrears. Moreover, E.B.L.P. never agreed to such an allocation.
[87] As it stands, J.G.S. owes $9,000 in arrears as of September 12, 2017, plus $3,286 which have accrued since, less the monies he paid to E.B.L.P. after September 12, 2019, which he says is $250 every two weeks. From the total arrears, the parents are entitled to deduct $327 per month for E.B.L.P.’s child support payment for N.W.D.S. beginning September 30, 2019. As of the date of this judgment (February 11, 2020) E.B.L.P. can set-off $1,962 ($327 x 6 months) from the arrears. E.B.L.P. is entitled to set-off her ongoing child support obligations for N.W.D.S. in the amount of $327 per month until J.G.S.’s arrears have been fully paid or until further order of this Court, whichever is the sooner.
Disposition
[88] In summary, I make the orders set out below.
[89] J.G.S. (“J.G.S.”) is a resident of British Columbia with an annual Guideline income of: (a) $94,642 in 2017; (b) $101,589 in 2018; (c) $105,000 in 2019; and (d) $100,000 in 2020;
[90] E.B.L.P. (“E.B.L.P.”) is a resident of British Columbia with an annual Guideline income of $56,000 for 2019 and 2020;
[91] J.G.S. will pay to E.B.L.P. child support for the two children, N.W.D.S., born [omitted for publication] and B.E.P.S., born [omitted for publication], as follows:
a. From and including September 12, 2017, to and including November 30, 2017, the sum of $1,406 per month. This Court acknowledges that during this period, J.G.S. has paid to E.B.L.P. $1,400 per month;
b. From and including December 1, 2017 to and including December 31, 2017, the sum of $1,451 per month. This Court acknowledges during this one month period, J.G.S. has paid to E.B.L.P. $1,400;
c. From and including January 1, 2018, to and including December 31, 2018, the sum of $1,543 per month. This Court acknowledges during this one year period, J.G.S. has paid to E.B.L.P. $1,400 per month;
d. From and including January 1, 2019, to and including August 31, 2019, the sum of $1,588 per month. This Court acknowledges J.G.S. has paid to E.B.L.P. $1,400 per month during this eight month period;
[92] E.B.L.P. will pay to J.G.S. the sum of $527 per month for the support of N.W.D.S. commencing September 30, 2019, and continuing on the last day of each and every month thereafter as long as N.W.D.S. is eligible for child support under the FLA or until further court order;
[93] J.G.S. will pay to B.E.P.S. directly for her support the sum of $600 per month in two equal monthly instalments of $300 per month for the months of September, October, November, and December, 2019 and January 2020. The Court acknowledges J.G.S. has paid these amounts;
[94] J.G.S. will pay to B.E.P.S. directly for her support the sum of $600 per month on the last day of February, 2020, and continuing on the last day of each and every month thereafter as long as B.E.P.S. is eligible for child support under the FLA or until further court order;
[95] J.G.S. will pay directly to E.B.L.P. the sum of $200 per month for the support of B.E.P.S. commencing September 30, 2019, and continuing on the last day of each and every month thereafter as long as B.E.P.S. is eligible for child support under the FLA or until further court order. This sum is in addition to any monies J.G.S. pays to B.E.P.S. directly for her support.
[96] E.B.L.P. is entitled to set-off any monies owing to J.G.S. for child support from monies J.G.S. owes to E.B.L.P. for child support or arrears of child support;
Arrears of child support
[97] As set out in my September 12, 2017 order, the arrears J.G.S. owes to E.B.L.P. for the support of N.W.D.S. and B.E.P.S. up until and including September 12, 2017, are fixed at $9,000;
[98] The arrears J.G.S. owes to E.B.L.P. for N.W.D.S. and B.E.P.S.’s Guideline child support from and including September 13, 2017, up to and including August 31, 2019, is $3,286;
[99] This Court acknowledges J.G.S. has paid $250 every two weeks since September 30, 2019, towards the arrears;
[100] J.G.S. is entitled to deduct from the arrears $327 per month for 5 months (September 30, 2019 to and including January 31, 2020) for a total of $1,635 ($327 x 5 = $1,635).
[101] As of the date of this order, namely February 11, 2020, J.G.S. owes E.B.L.P. arrears of child support totalling $9,151 (9,000 + $3,286 - $1,500 - $1,635 = $9,151).
[102] No interest or default fees are payable on the arrears prior the date of this order.
Ongoing Disclosure
[103] For as long as either N.W.D.S. or B.E.P.S. is eligible to receive child support, J.G.S. and E.B.L.P. will exchange:
a. copies of their respective Income Tax Returns for the previous year, including all attachments, not later than June 1 each year;
b. copies of any Notice of Assessment or Reassessment provided to them by Canada Revenue Agency, immediately upon receipt;
c. records and documents with respect to the child’s respective income, expenses, assets, liabilities, and prospective budget;
d. if the child attending post-secondary education, a copy of the child’s school records and transcripts.
[104] Because of the Children’s ages and their changeable circumstances, either E.B.L.P. or J.G.S. can seek to clarify, settle, review or vary the terms of this Order upon reasonable notice to the other.
[105] If either parent seeks to vary the terms of this order, than the applicant parent must a provide the Court and the responding parent with the following documentation and information:
a. an updated Form 4 Financial Statement which is complete as to the applicant’s current and household income, expenses, assets and debts, and includes all attachments listed on page 2 of that Form that have previously been provided to the Court;
b. financial documentation with respect the financial circumstances of the applicant’s spouse;
c. documentation corroborating any disputed expenses;
d. particulars of the applicant’s conditions, means, needs, and other circumstances;
e. particulars of the child’s conditions, means, needs, and other circumstances;
f. records documenting the child’s income, expenses, assets and liabilities;
g. the child’s budget;
h. if the child is attending post-secondary institution, transcripts from that institution.
[106] If either parent receives an application to vary the terms of this order, than the responding parent must a provide the Court and the applicant parent, in addition to a Reply, the following documentation and information in their possession or control:
a. an updated Form 4 Financial Statement which is complete as to the applicant’s current and household income, expenses, assets and debts, and includes all attachments listed on page 2 of that Form that have previously been provided to the Court;
b. financial documentation with respect the financial circumstances of the applicant’s spouse;
c. documentation corroborating any disputed expenses;
d. particulars of the applicant’s conditions, means, needs, and other circumstances;
e. particulars of the child’s conditions, means, needs, and other circumstances;
f. records documenting the child’s income, expenses, assets and liabilities;
g. the child’s budget;
h. particulars of the child’s conditions, means, needs, and other circumstances; and
i. if the child is attending post-secondary institution, transcripts from that institution.
[107] The Court will draft the order from my Reasons for Judgment and neither party is required to approve the form of the order.
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The Honourable Judge J.T. Doulis
Provincial Court of British Columbia