Citation:	H.C.A. v. A.P.M.
	2020 BCPC 31
Date:		20200227
File No:		13591
Registry:		Smithers

 

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

Interjurisdictional Support Order Act

 

 

 

IN THE MATTER OF

THE FAMILY LAW ACT, S.B.C. 2011 c. 25

 

 

 

 

BETWEEN:

H.C.A.

APPLICANT

 

AND:

A.P.M.

RESPONDENT

 

 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE J.T. DOULIS

 

Appearing on their own behalf:	H.C.A.
Appearing on their own behalf:	A.P.M.
Amicus Curiae	P. Reimer
Place of Hearing:	Smithers, B.C.
Date of Hearing:	February 21, 2010
Date of Judgment:	February 27, 2020

Introduction:

Issue:

199(1) A court must ensure that a proceeding under this Act is conducted

(a) with as little delay and formality as possible, and

(b) in a manner that strives to

(i) minimize conflict between, and if appropriate, promote cooperation by, the parties, and

(ii) protect children and parties from family violence.

(2) If a child may be affected by a proceeding under this Act, a court must

(a) consider the impact of the proceeding on the child, and

(b) encourage the parties to focus on the best interests of the child, including minimizing the effect on the child of conflict between the parties.

Background Facts and Procedural History

a.            H.C.A. will pay child support to A.P.M. through the Family Maintenance Enforcement Program for the child D.D.M., born [omitted for publication], in the amount of $400 per month commencing March 1, 2009, and continuing on the first day of each and every month thereafter for so long as D.D.M. remains a child under the Family Relations Act of British Columbia;

b.            The amount of arrears owing by H.C.A. pursuant Judge Jack’s March 31, 2005 order are hereby reduced to $17,710, inclusive of any interest or statutory penalties or charges;

c.            H.C.A. will pay to A.P.M. (through the Family Maintenance Enforcement Program) $200 per month towards the arrears commencing March 1, 2009 and continuing on the first day of each and every month thereafter until the arrears are paid in full;

d.            For as long as the arrears remained unpaid in full, H.C.A. will pay to A.P.M. (through the Family Maintenance Enforcement Program) the amount of each and every income tax refund he receives from the Canada Revenue Agency each year commencing in 2009; and

e.            H.C.A. will provide to A.P.M. a copy of each income tax return he files with the Canada Revenue Agency, or before August 1, each year commencing in 2010.

H.C.A.’s August 16, 2018 Support Variation Application

a.            a current and up-to-date printout from the ABMEP showing the status of child support arrears and payments;

b.            copies of documents from his disability insurer indicating the gross amount he receives on a monthly basis prior to income tax and other deductions; and

c.            an updated medical letter as to any limits on his ability to be gainfully employed.

a.            H.C.A.’s Form B Identification;

b.            H.C.A.’s Form K Financial Statement as of August 16, 2018. In this financial statement, H.C.A. states his income is $0.0 for 2018 and S.M.A.’s was $1,588 per month which she receives from disability benefits. H.C.A. also indicates K.H. resides in his household. K.H. receives $1,500 per month  from AISH (Assured Income for the Severely Handicapped) and pays 25% of the household expense;

c.            H.C.A.’s 2014 Tax Return and Summary showing he had a Guideline Income in 2014 of $132,431.94, all of which was from employment income with [omitted for publication];

d.            H.C.A.’s 2015 Tax Return Summary showing had a Guideline Income in 2015 of $59,162.56, of which $46,181.32 was from his employment income with [omitted for publication] and $12,941.00 was from Employment Insurance, and $40.24 from RRSP Income;

e.            H.C.A.’s 2016 Notice of Assessment, showing he had a Guideline Income in 2016, of $10,177, from social assistance benefits;

f.            H.C.A.’s 2017 Tax Return Summary showing he had a Guideline Income in 2017 of $0.00;

g.            Form M Evidence to Support Variation of a Support Order, in which H.C.A. states:

                              i.               He is no longer working in the oil field as a derrick hand because his body was in bad shape. He has arthritis and had three knee replacements. He cannot work on the rigs because he is in continuous pain;

                           ii.               He is not making the money he used to make and was in the process of applying for disability benefits;

                           iii.               He is taking care of his wife who has suffered three aneurysms and two strokes. She is paralyzed on the right side;

                           iv.               He cannot drive his wife to her medical because Maintenance Enforcement took away his driver’s licence; and

                           v.               He has not been able to talk to D.D.M. because A.P.M. does not comply with the court order.

h.            ABMEP transaction record from January 1, 2008 until August 2, 2018, which shows that on February 19, 2008, H.C.A. was declared in arrears $34,593, which was reduced pursuant to Judge Milne’s February 19, 2009 order. The ABMEP transaction record further indicates that as of August 1, 2018, H.C.A. was being charged $445.32 per month, consisting of $400 per month in child support, $40 as a default penalty and $5.32 per month in interest. On August 1, 2018, H.C.A. was in arrears $9,176.86;

i.              H.C.A.’s affidavit filed August 16, 2018, in which he asks the Court to change his order because his wife, S.M.A., needs him to care for her “24-7.” He says S.M.A. suffered three aneurysms and two strokes and is paralyzed on one side of her body. She also has a brain injury. H.C.A. says his wife needs help with everything. H.C.A. too has a disability arising from his arthritis. He says that he had just had a knee replacement and expects to receive a disability pension in August 2018;

j.              Correspondence from a social worker and a physiatrist (Physical Medicine and Rehabilitation physician) with Alberta Health Services asking Alberta Works assist S.M.A. DOB October 15 [1962]. It states, in part:

As you are aware, S.M.A. suffered a brain aneurysm rupture leading to a subarachnoid hemorrhage and a left MCA ischemic stroke on October 21, 2015. She was discharged home this week to be with her husband and sons. S.M.A. has made good progress but at this time she still uses a WC for mobility mostly and requires 1 person assist for walking and doing stairs. Her right side has been significantly affected including her leg and arm. She is unable to do meal preparation on her own. She is right hand dominant. She has pre-existing issues with her right knee. She is unable to stand unsupported or unassisted for long periods of time. She requires set up and cueing for getting dressed and shower assist . . .

k.            A medical letter from Dr. Siva P. Sivalingam, dated April 25, 2016, in which he states that had an intracranial hemorrhage followed by a ruptured aneurysm. He states she is wheelchair bound with hemiplegia and needs a caregiver at home to look after her 24 hours a day;

l.              A medical report of Dr. Siva P. Sivalingam, dated March 13, 2018, prepared for Service Canada in support of H.C.A.’s application for Canada Pension Plan disability benefits. This report indicates that Dr. Sivalingam had been H.C.A.’s physician for 12.5 years. His reports:

                              i.               H.C.A. suffers severe osteoarthritis in his right knee. H.C.A. had a right knee replacement in 2009 and a revision of the total knee replacement in 2013;

                           ii.               H.C.A. had a torn medial and lateral meniscus in his right knee and a meniscectomy in 2005;

                           iii.               H.C.A. now suffers from chronic pain in his hips and knees;

                           iv.               H.C.A. had several operations to his right knee including ACL reconstruction, removal of the meniscus and total knee replacement, twice;

                           v.               H.C.A. worked in oil rigs until 2015 and was unable to carry on with heavy work due to severe pain in his hips and knees due to severe osteoarthritis;

                           vi.               In his recent examination, Dr. Sivalingam, found H.C.A. suffered swelling of the right knee and restricted knee movements;

                          vii.               H.C.A. walks with a limp due to his right leg weakness;

                        viii.               H.C.A. is unable to lift or carry any weight over 50 pounds;

                           ix.               H.C.A. was on the following medications: (1) Oxyneo (a form of oxycodone), 20 mg for pain; (2) Nabilone, 25 mg (for nausea); (3) Quetiapine, 25 mg ( antipsychotic medicine); and (4) Trazodone, 50 mg (antidepressant); and

                           x.               H.C.A. suffers chronic pain as a result of the number of operations on his right knee. He will have to live with chronic pain and weakness in his right knee and undergo long term pain management;

m.           The affidavit of H.C.A. sworn January 14, 2019, attaching:

                              i.               his 2015, 2016, and 2017 Tax Return Summaries;

                           ii.               Notices of Assessment showing H.C.A.’s Line 150 income was $59,162.56 in 2015, $10,177 in 2016 and $.0 in 2017;

                           iii.               a summary of H.C.A.’s medical condition;

                           iv.               a summary of S.M.A.’s medical condition;

n.            an undated report from Service Canada indicating H.C.A. received a Canada Pension Plan Disability retroactive payment as follows:

Year	Monthly Amount	Months	Annual Amount
2018	$1,137.27	7	$ 7,960.89
2017	$1,120.46	10	$11,204.60
Total			$19,165.49

o.            The affidavit of H.C.A. filed August 6, 2018, in which he states he and his wife are still disabled. He attached his 2017 and 2018 Notice of Assessment indicating H.C.A.’s total income for 2017, was $0.0 and his total income for 2018 was $32,800. Revenue Canada assessed H.C.A.’s 2018 income at $11,204 less than that declared in his 2018 tax return because in 2018 H.C.A. received a lump-sum payment for CPP disability benefits for previous years;

p.            An updated transaction record from ABMEP H.C.A. filed with this Court on November 21, 2019. This transaction record indicates:

                              i.               as of September 1, 2019, H.C.A. had arrears of unpaid child arrears totalling $1,349.21;

                           ii.               H.C.A. is charged $440 per month, consisting of $400 for child support, $40, default penalty, as well as interest;

                           iii.               H.C.A.’s Canada Pension Disability benefits are being garnished for $300 per month;

q.            Correspondence from Canada Pension Plan dated February 19, 2019, confirming H.C.A.’s monthly disability pension was $1,163.43, from which $400 per month would be paid to ABMEP;

r.            H.C.A.’s 2018 Income Tax Summery indicating in 2018 he received $24,851.84 in CCP disability benefits (which included retroactive benefits for 2017) and $19,153 in social assistance;

s.            H.C.A.’s affidavit filed November 25, 2019, attaching:

                              i.               a letter from the ABMEP confirming that as of that date, H.C.A. was in arrears for child support in the amount of $1,374.19;

                           ii.               H.C.A.’s 2017 and 2018 Tax assessments;

                           iii.               H.C.A.’s benefit statement from Canada Pension Plan; and

                           iv.               Dr. Sivalingam’s March 13, 2018 medical report to Service Canada; and

                           v.               The ABMEP Transaction record showing that on October 9, 2018, CCP paid $8,517.50 of the retroactive disability benefits owing to H.C.A. to the ABMEP and the Federal Government continued to pay to ABMEP monies deducted from H.C.A.’s CCP disability benefits and income tax returns.

Legislative framework

a.            the parents of a child have a joint and ongoing obligation to support their children;

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.

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.

152 (1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration:

(a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made;

(b) evidence of a substantial nature that was not available during the previous hearing has become available;

(c) evidence of a lack of financial disclosure by a party was discovered after the last order was made.

14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

(a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; . . .

In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation.

a. the onus is on the applicant to establish a material change of circumstances;

b. the existing order is presumed to have accurately assessed the needs of the children and therefore the correctness of that order must not be reviewed in the variation proceeding (at 687);

c. the actual circumstances of the parties will determine if there has been a material change of circumstances during the relevant period; and

d. the approach to the making of child support orders is child-centred and requires consideration of the children’s needs, the relative ability of the spouses to pay and the joint obligation of the parents toward their children.

Retroactive child support

42.      The Court went on to identify four factors to be considered in determining the appropriateness of such an order: (i) the circumstances surrounding the delay in bringing the application; (ii) the payor parent’s conduct; (iii) the children’s circumstances; and (iv) any hardship caused by a retroactive child support order.

43.      A finding of unreasonable delay will militate against a retroactive child support award (para. 104).  Similarly, a payor parent’s blameworthy conduct, defined as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support” will also militate against a retroactive order (paras. 106-109).  The circumstances of the children are also relevant in order to ensure that they receive the benefit of a support order to which they are entitled, in a timely manner (paras. 110-113).  Lastly, consideration of the hardship that may be occasioned by a retroactive order is not limited to the payor parent (paras. 114-116).

Cited in by Justice Schultes in N.M. v. G.M., 2015 BCSC 1732 (CanLII), at para. 35.

Undue Hardship

1.            On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

2.            Circumstances that may cause a spouse or child to suffer undue hardship include the following:

a.            the spouse has the responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

b.            the spouse has unusually high expenses in relation to exercising access to a child;

c.            the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

d.            the spouse has a legal duty to support a child, other than a child of the marriage, who is:

                                             i.               under the age of majority, or

                                            ii.               the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

e.            the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

3.            Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of the sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

4.            In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

5.            Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

6.            Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.

a.            He must show that paying the table amount would cause him undue hardship;

b.            He must show that his household standard of living is lower than that of A.P.M.; and

c.            If he satisfies the Court the first two steps have been met, the Court then decides on a new support amount. The Court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties.

My full-time position, with [omitted for publication], allows me to cover my basic household expenses, mortgage payments, utilities, transportation, food and clothing;

My part-time position, as [omitted for publication], allows me to cover extra-ordinary expenses very minimally. I requested extra-ordinary expenses at the onset of the maintenance hearings, but sadly it was denied;

. . .

We do not travel on holidays, as the two incomes I receive only cover the basic necessities and does not allow me the extra funds to plan a holiday either on Spring Break or summer.

Section 7 extraordinary expenses

Special or extraordinary expenses

7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

7(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

[66]        Special expenses listed in ss. 7(1)(a)-(c) and (e) are distinct from extraordinary expenses referred to in ss. 7(1)(d) and (f). Special expenses are defined as relating to child care, medical or dental insurance premiums, health-related costs, and post-secondary education. They must be found to be reasonable and necessary. Extraordinary expenses are not defined. Their extraordinariness is determined in the context of the combined income of the spouses, as well as other considerations, including the nature and amount of the individual expense, the nature and number of the activities, any special needs or talents of the child, and the overall cost of the activities. They also must be found to be reasonable and necessary. Relevant considerations for the tests of necessity and reasonableness include whether the expenses are necessary in relation to the child’s best interests, and reasonable having regard to the means of the spouses, the child, and to the family’s spending pattern prior to separation. See McLaughlin v. McLaughlin (1998), 1998 CanLII 5558 (BC CA), 57 B.C.L.R. (3d) 186 at paras. 81-82 (C.A.). In assessing “means”, the court may consider the parties’ capital assets, income distribution, debts, third-party resources, access costs, support obligations, receipt of support, and any other relevant factor:  Delichte v. Rogers, 2013 MBCA 106,37 R.F.L. (7th) 81 at para. 38. Courts may consider whether the non-custodial parent was consulted regarding the expense, though a lack of consultation does not automatically preclude a finding that the expense is reasonable and necessary: Delichte at paras. 39, 44.

[30]        To summarize, before a recreational or extracurricular expense will be considered as a s. 7 expense, it must meet the threshold of being necessary, reasonable and affordable. It must be “extraordinary” in the sense that it is over and above what should be considered “ordinary”. Then, the court must consider if the recipient of child support can reasonably cover the expense out of income, including table child support. If “yes”, it will usually not be considered an extraordinary expense. Nevertheless, it may still be considered an extraordinary expense depending on the amount of the expense in relation to the claimant’s income, the kind and number of programs/activities that the children are enrolled in, any special needs or special talents the children have, the overall costs of the programs/activities and other relevant/similar factors.

a)   First, the court should determine whether the expense claimed under section 7(1)(f) of the Guidelines is an extraordinary expense or extracurricular activity by considering the following factors:

                              i.               the combined income of the parties;

                           ii.               the nature and amount of the individual expense;

                           iii.               the nature and number of the activities;

                           iv.               any special needs or talents of the children;

                           v.               the overall cost of the activities; and

                           vi.               other similar factor that the court considers relevant.

b)   Once the court determines that an expense falls within section 7(1)(f) of the Guidelines, a court must then determine whether the expenses are necessary in relation to the child's best interests and reasonable in the circumstances having regard to the following factors:

                              i.               the means of the spouses and those of the child; and

                           ii.               the family spending pattern prior to separation.

Analysis

a.            Pursuant to Judge Jack’s March 31, 2005 Order, H.C.A. was required to pay child support to A.P.M. based on an imputed income of $100,000 for a BC payor, retroactive to November 1, 2004. H.C.A.’s income tax returns from 2001 to 2005 show that he earned significantly less than $100,000;

b.            H.C.A. fell hopelessly into arrears;

c.            On February 19, 2009, Judge Milne reduced H.C.A.’s child support to $400 per month, which suggest either: (a) H.C.A. had an annual Guideline income of $47,400 for an Alberta payor based on the May 1, 2006 Tables; or (b) Judge Milne accepted H.C.A.’s hardship claim and ordered H.C.A. pay less than the table amount of child support;

d.            Judge Milne declined to make an order H.C.A. pay a portion of D.D.M.’s extraordinary expenses, whatever there were asserted to be;

e.            Also on February 19, 2009, Judge Milne fixed H.C.A.’s arrears at $17,710 which was a reduction of $27,361.92;

f.            In 2005 2006, 2007, 2008, 2014 and 2015, H.C.A. paid less than the table amount of child support. The Court has no information as to H.C.A.’s income for 2009, 2010, 2011, 2012 or 2013. Specifically:

                              i.               In 2005, H.C.A. earned $68,922, which gives rise to a Guideline child support payment for an Alberta payor of $578 per month, using the May 1, 1997 Federal Child Support Guidelines. H.C.A. paid $400 per month, which is $2,136 less than the annual Guideline amount ($178 x 12 = $2,136);

                           ii.               In 2006, H.C.A. earned $90,238, which gives rise to a Guideline child support payment of $738 per month using the May 1, 1997 Federal Child Support Guidelines and $793 using the May 1, 2006 Guidelines. H.C.A. paid $400 per month, which is $5,100 less than the annual Guideline amount (($338 x 4 = $1,352) + ($393 x 8 = $3,144) = $4,496);

                           iii.               In 2007, H.C.A. earned $85,276, which gives rise to a Guideline child support payment of $750 per month for an Alberta payor using the May 1, 2006 Federal Child Support Guidelines. H.C.A. paid $400 per month, which is $4,200 less than the annual Guideline amount ($350 x 12 = $4,200);

                           iv.               In 2008, H.C.A. earned $85,276 and that for the 11 months ending November 28, 2008 which would be approximately $93,028 for the year, which gives rise to a Guideline child support payment of $818 per month for an Alberta payor using the May 1, 2006 Federal Child Support Guidelines. H.C.A. paid $400 per month, which is $5,016 less than the annual Guideline amount ($418 x 12 = $5,016);

                           v.               In 2014, H.C.A. earned $132,431 which gives rise to a Guideline child support payment of $1,154 per month for an Alberta payor using the December 31, 2011 Federal Child Support Guidelines. H.C.A. paid $400 per month, which is $9,048 less than the annual Guideline amount ($754 x 12 = $9,048);

                           vi.               In 2015, H.C.A. earned $59,162 which gives rise to a Guideline child support payment of $492 per month for an Alberta payor using the December 31, 2011 Federal Child Support Guidelines. H.C.A. paid $400 per month, which is $1,104 less than the annual Guideline amount ($92 x 12 = $1,104);

g.            Based on the documentation before the Court, it is a safe inference that H.C.A. paid less than the Guideline amount of child support based on his annual income for the years for which the Court has no documentation, namely 2009 to 2013, inclusive;

h.            In 2016 H.C.A. earned $10,177, which exempted him from paying any child support under the Guidelines. He paid $400 per month, which is $4,800 more than the annual Guideline amount ($400 x 12 = $4,800);

i.              In 2017, H.C.A. earned $0.0, which exempted him from paying any child support under the Guidelines. Even if H.C.A.’s 2017 income was $11,204 from CPP benefits, his child support payment would be $0.00. He paid $400 per month, which is $4,800 more than the annual Guideline amount;

j.              H.C.A.’s 2018 Notice of Assessment attached to his August 6, 2019 affidavit states his total Line 150 Income for 2018 was $32,800, which I accept to be his Guideline income for the year. A Guideline income of $32,800 per month gives rise to a Guideline child support obligation of $275 per month for an Alberta payor under the November 22, 2017 Federal Child Support Tables. H.C.A. paid $400 per month, which is $1,500 more than the annual Guideline amount ($125 x 12 = $1,116);

k.            In 2019, H.C.A. earned $13,961.16, which gives rise to a guideline child support obligation of $117 per month for an Alberta payor under the November 22, 2017, Federal Child Support Tables. H.C.A. paid $400 per month, which is $3,396 more than the annual Guideline amount ($283 x 12 = $3,396);

l.              In 2020, H.C.A. is expected to earn $13,961.16. He will continue to be charged $400 per month until Judge Milne’s February 19, 2009 order is varied;

m.           In addition to the $400 month ABMEP assessed H.C.A. for child support payments, he has also been charged default fees and interest;

n.            H.C.A. has rarely voluntarily paid child support for D.D.M. The vast majority of support flowed from ABMEP garnishment orders served on third parties. (D.B.S. held that the payor’s conduct can be relevant: paras. 105-109)’

o.            H.C.A. is $1,374.19 in arrears of child support as of November 25, 2019, based on the sums he was ordered to pay on Judge Milne’s February 19, 2009 order;

p.            Because of his arrears, H.C.A. had lost his driver’s licence and has been assessed a further $2,000 fine.

Conclusion

a.            H.C.A. is a resident of Alberta.

b.            Commencing September 1, 2018 and ending December 31, 2018, H.C.A. has an annual Guideline Income of $32,800.

c.            H.C.A. will pay child support to A.P.M. for D.D.M. born [omitted for publication], in the amount of $275, on the 1 day of September 2018, and continuing on the 1st day of each and every month to and including December 31, 2018;

d.            Commencing January 1, 2019, H.C.A. has an annual Guideline Income of $13,961.16;

e.            H.C.A. will pay child support to A.P.M. for D.D.M., in the amount of $117, on the 1st day of January 2019, and continuing on the 1st day of each and every month for so long as D.D.M. is eligible for child support under the Family Law Act, or until further order of this Court;

f.            For as long as D.D.M. is eligible to receive child support, H.C.A. will provide to A.P.M.:

                              i.               copies of his Income Tax Returns for the previous year, including all attachments, not later than June 1 each year;

                           ii.               copies of any Notice of Assessment or Reassessment provided to him by Canada Revenue Agency, immediately upon receipt;

g.            If upon recalculation of his support payments for D.D.M, H.C.A. is entitled to a credit, the entire credited sum will be held in trust by ABMEP and used to pay H.C.A.’s future child support payments as they become owing to A.P.M. until the credit is exhausted;

h.            Either H.C.A. or A.P.M. can apply to clarify, settle, review, or vary the terms of this Order upon reasonable notice to the other;

i.              Neither H.C.A. nor A.P.M. is required to approve the form of this order.

 

 

______________________________

The Honourable Judge J.T. Doulis

Provincial Court of British Columbia