IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         M.L.C.O. and C.M.A.O. were married on [omitted for publication] 2008, and separated on December 18, 2017. They are the biological parents of three children: (a) K.M.J.O., born [omitted for publication], 2008; (b) K.A.L.O., born [omitted for publication], 2009; and (c) A.C.K.O., born [omitted for publication], 2014. M.L.C.O. is also the biological mother of A.T.P.S., born [omitted for publication], 2004, a child from M.L.C.O.’s previous relationship; C.M.A.O. is A.T.P.S.’s stepfather.

[2]         Post-separation, C.M.A.O. moved out of the family home and M.L.C.O. became the children’s primary caregiver. C.M.A.O. paid to M.L.C.O. $300 in child support from December 2017 to October 2018. Since then, C.M.A.O. has paid no child support, although he was working and receiving some government benefits.

[3]         The salient issues before me in this case are twofold:

[4]         The issue of child support, both prospectively and retrospectively, came before me for trial on March 5, 2021, and continued on May 21, 2021. On May 21, 2021, I heard submissions of the parties and counsel for the applicant provided the court with the following case authorities: Hanson v. Hanson, 1999 CanLII 6307 (“Hanson”), Murphy v. Murphy, 2000 BCSC 974 (“Murphy”), and D.B.S. v. S.R.G. (“D.B.S.”); L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. At the conclusion of the proceedings on May 21, 2021, I reserved my decision. These are my reasons for judgment.

[5]         M.L.C.O. is 42-years-old, born [omitted for publication] 1979. She resides at [omitted for publication] Street, Prince George, BC, [omitted for publication]. She works as a commercial cleaner for [omitted for publication], a job she has held for many years.

[6]         C.M.A.O. is 35-years-old, born [omitted for publication], 1985. C.M.A.O. resides at [omitted for publication] Street, Prince George, BC, [omitted for publication]. He resides with his new partner B.M.R. B.M.R. is the mother of a nine-year-old daughter. B.M.R. suffers from throat cancer.

[7]         C.M.A.O. has had a variety of low-paying jobs over the years. He has worked as a lube and oil technician, high ceiling rigger, and drywaller. In 2013 while working as a belt splitter, C.M.A.O. was injured when a 300-pound steel bar fell on him. He says his injury remains unresolved. He cannot work for more than four-to-six hours per day without suffering excruciating pain. At the time of the injury, C.M.A.O. did not seek medical treatment. C.M.A.O. has not provided any medical reports or expert opinions corroborating his injury or its impact on his ability to work.

[8]         From the date of separation on December 18, 2017, until October 2018, C.M.A.O. paid M.L.C.O. child support in the amount of $300 per month. He paid no child support in 2019, 2020, or 2021. C.M.A.O. says M.L.C.O. has withheld his parenting time with the children so he has withheld paying her child support.

[9]         On February 13, 2020, M.L.C.O. filed with the Prince George Provincial Court Registry an Application to Obtain an Order for guardianship, parenting time, allocation of parenting responsibilities, spousal support, child support, a protection order and supervised parenting time, Prince George Family Court File 2057420 (CEIS Document #1). She further asked for child support retroactive to December 1, 2017. Specifically, M.L.C.O. sought a protection order which would prohibit C.M.A.O. from having any contact with M.L.C.O. or the children except through a third party. She also sought that visits C.M.A.O. had with the children be supervised.

[10]      On February 13, 2020, M.L.C.O. filed a Notice of Motion returnable February 14, 2020, seeking an order: (a) prohibiting any person removing the children from the Prince George area; (b) prohibiting anyone from relocating the children; and (c) a protection order (CEIS Document #3). Also on February 13, 2020, M.L.C.O. filed an affidavit in support of her Notice of Motion (CEIS Document #2).

[11]      M.S. served M.L.C.O.’s February 13, 2020 application, Notice of Motion and affidavit (CEIS Documents #1, 2 and 3) on C.M.A.O. on February 13, 2020 (See CEIS Document #6).

[12]      On February 14, 2020, M.L.C.O.’s February 13, 2020 Notice of Motion came before Judge Keyes. M.L.C.O. and C.M.A.O. attended in person. M.L.C.O. was assisted by duty counsel F. Stevens-Guille; C.M.A.O. was self-represented. On that day, Judge Keyes adjourned the matter to March 13, 2020, at 9:30 a.m. for a subsequent appearance.

[13]      On February 19, 2020, M.L.C.O. filed with the Prince George Provincial Court Registry a second Application to Obtain an Order in Prince George Family Court, File 2057420, seeking a protection order (CEIS Document #7). She sought an order prohibiting C.M.A.O. from: (a) having contact with her except through a third party; (b) having contact with the children except through a third party; (c) having visits with the children unless they were supervised through a third party; and (d) contacting M.L.C.O.’s immediate family (F.C. and L.C.); and (e) any persons known to C.M.A.O. driving past M.L.C.O.’s residence.

[14]      Also on February 19, 2020, M.L.C.O. filed a Notice of Motion seeking a protection order (CEIS Document #10) prohibiting C.M.A.O. from having direct contact with her or the children, her father L.C., or her brother F.C. She asked that any visits the children had with C.M.A.O. be supervised. M.L.C.O. also filed an affidavit in support of her February 19, 2020 application for a protection order (See CEIS Document #8).

[15]      On February 20, 2020, T.S. served C.M.A.O. with M.L.C.O.’s February 19, 2020 application, Notice of Motion and affidavit (See CEIS Document #11).

[16]      M.L.C.O.’s February 19, 2020 Notice of Motion (CEIS Document #10) came before Judge Gray on February 20, 2020. Both M.L.C.O. and C.M.A.O. attended court in person. M.L.C.O. was represented by duty counsel F. Stevens-Guille; C.M.A.O. was self-represented. At that time, the matter was adjourned to March 13, 2020.

[17]      On March 12, 2020, C.M.A.O. filed with the Prince George Provincial Court Registry a Reply and Counterclaim to M.L.C.O.’s February 13 and 19, 2020 applications (CEIS Document #12). C.M.A.O. agreed to M.L.C.O.’s application for guardianship and parenting time with the children and an order that C.M.A.O. have contact with M.L.C.O. through a third party. He states, “I wish to have 50/50 guardianship and parenting time – I would like to have my children from Saturday nights at 7 p.m. to Wednesday mornings at 7 a.m.” C.M.A.O. disagreed with M.L.C.O.’s application for spousal support, child support and a protection order. He states:

[18]      C.M.A.O. counterclaimed for guardianship, parenting time and contact time with the children. C.M.A.O. indicated his address for service was [omitted for publication] Street, Prince George, BC, [omitted for publication].

[19]      M.L.C.O.’s February 13, 2020 Notice of Motion (CEIS Document #3) and February 19, 2020 Notice of Motion (CEIS Document #10) came before Judge Brecknell on March 13, 2020. M.L.C.O. and C.M.A.O. appeared in person. M.L.C.O. was represented by legal counsel P. Leblanc; C.M.A.O. was self-represented. At that time, Judge Brecknell adjourned the two motions to April 14, 2020, at 10:45 a.m. for a Family Case Conference.

[20]      On March 13, 2020, the Prince George court registry mailed to M.L.C.O. and C.M.A.O. a Notice of Hearing or Conference advising them to attend court on June 9, 2020, at 3:15 p.m. for a Family Case Conference (CEIS Document #14). The court registry sent the notice to M.L.C.O. at [omitted for publication] Street, Prince George, BC, [omitted for publication] and to C.M.A.O. at [omitted for publication], Prince George, BC, [omitted for publication].

[21]      The court registry sent a notice to M.L.C.O. and C.M.A.O. that the April 14, 2020 Family Case Conference was cancelled due to the COVID-19 pandemic. On March 23, 2020, the court registry sent out a Notice of Hearing or Conference advising M.L.C.O. and C.M.A.O. the next court appearance would be June 9, 2020, at 3:15 p.m. The court registry sent the notice to M.L.C.O. and C.M.A.O.’s address for service on file, namely, to M.L.C.O. at [omitted for publication] Street, Prince George, BC, [omitted for publication] and to C.M.A.O. at [omitted for publication] Street, Prince George, BC, [omitted for publication].

[22]      On June 4, 2020, staff of the Prince George registry contacted the parties by telephone to confirm the date and time of the court appearance and to obtain telephone numbers. The court registry was given the number [omitted for publication] for M.L.C.O.

[23]      On June 9, 2020, M.L.C.O. attended the Family Case Conference before Judge Keyes, represented by legal counsel Ms. Morgan Chawla. C.M.A.O. did not attend the Family Case Conference in person, or by legal counsel or agent. At that time, Judge Keyes made the following interim order:

[24]      On June 30, 2020, C.M.A.O. filed a Notice of Change of Address indicating that as of June 15, 2020, he resided at [omitted for publication] Street, Prince George, BC, [omitted for publication]. His telephone number was [omitted for publication] and his email [omitted for publication] (CEIS Document #17).

[25]      On October 6, 2020, M.L.C.O.’s legal counsel M. Chawla filed a requisition seeking an appearance on M.L.C.O.’s February 13, 2020 application (CEIS Document #1) in relation to child and spousal support (CEIS Document #19).

[26]      On October 20, 2020, the Prince George Provincial Court Registry sent to M.L.C.O. and C.M.A.O. a Notice of Hearing or Conference that M.L.C.O.’s February 13, 2020 application would be heard on November 19, 2020, by MS Teams (CEIS #20). The notice was sent to M.L.C.O. in care of her legal counsel Morgan Chawla and to C.M.A.O. at [omitted for publication] Street, Prince George, BC, [omitted for publication].

[27]      On November 19, 2020, M.L.C.O.’s February 13, 2020 application (CEIS Document #1) came before Judge Brecknell. M.L.C.O. and C.M.A.O. attended by MS Teams. M.L.C.O. was represented by M. Chawla; C.M.A.O. was self-represented. At that time, Judge Brecknell ordered C.M.A.O. to complete, file with the registry of this Court, and deliver electronically to M.L.C.O.’s legal counsel Morgan Chawla a sworn Financial Statement in Form 4 of the Provincial Court (Family) Rules, including all attachments listed on page 2 of that Form, by December 4, 2020.

[28]      On November 20, 2020, C.M.A.O. filed a Notice of Change of Address indicating his new address as [omitted for publication] Street, Prince George, BC, [omitted for publication] (CEIS Document #22).

[29]      On November 30, 2020, C.M.A.O. filed a Form 4 Financial Statement which attached his 2017 and 2018 income tax returns, as well as his current statement of Entitlement to Employment Insurance Benefits. He did not produce his income tax returns for 2019.

[30]      C.M.A.O.’s motion for child support, both ongoing and retrospectively, came before me on March 5, 2021. M.L.C.O. attended in person represented by legal counsel Ms. M. Chawla; C.M.A.O. attended in person and self-represented. At that time, C.M.A.O. made it clear he wanted to address issues of guardianship, parenting time and parenting responsibilities.

[31]      I proceeded with the hearing of M.L.C.O.’s application for child support (CEIS Documents #1 and 18). I heard evidence from M.L.C.O. and C.M.A.O. The hearing of the child-support issue did not conclude because of the paucity of current financial information from C.M.A.O. I adjourned M.L.C.O.’s and C.M.A.O.’s reciprocating applications, replies and counterclaims to the judicial case manager to schedule a three-day trial on all outstanding issues. I also ordered:

[32]      On March 16, 2021, the Prince George Court Registry sent a notice to the parties advising them “The application filed on March 12, 2020, February 13, 2020 will be heard on MAY 21, 2021 AT 9:00 AM IN PERSON ATTENDANCE.” The notice was sent to M.L.C.O. in care of her legal counsel, Morgan Chawla, and to C.M.A.O. at his address at [omitted for publication] Street, Prince George, BC, [omitted for publication], and his email address at [omitted for publication].

[33]      On May 21, 2021, M.L.C.O. filed a Notice of Change of address indicating she was now represented by Elle Blanaru of PGS Law, #450 -625 Agnes Street, New Westminster, BC, V3M 5Y4.

[34]      On May 21, 2021, M.L.C.O. attended court in person, represented by her new legal counsel Ms. E. Blanaru; C.M.A.O. attended self-represented. On May 21, 2021, Ms. Blanaru advised the court that the matter proceeding that day for 2.5 hours was M.L.C.O.’s application for child support. The trial on the parenting arrangements had not yet been scheduled.

[35]      C.M.A.O. had not complied with my order to file with the court his 2019 and 2020 income tax returns. He did have a copy of his 2020 income tax return on his cellular phone, which he showed to the court and to Ms. Blaranu. He testified he believed his total Guideline Income for 2019 was approximately $32,000.

[36]      C.M.A.O.’s financial documents indicate his income has varied over the years. Specifically:

[37]      Section 147(1) of the Family Law Act, S.B.C. 2011, c. 25 (“FLA”) stipulates that each parent and guardian of a child has a duty to provide support.

[38]      In Michel v. Graydon, 2020 SCC 24, para. 10, the Supreme Court of Canada restated the principles governing child support articulated in D.B.S.:

[39]      Pursuant to s. 150(1) of the Family Law Act, the amount of child support must be determined in accordance with the Child Support Guidelines. Section 1 of the Family Law Act and Part 4 of the Family Law Act Regulation, BC Reg 347/2012, define the Child Support Guidelines to mean the Federal Child Support Guidelines under s. 26.1 of the Divorce Act (Canada). Section 150(2) does allow the court to make a child-support order in an amount different from that required by the Guidelines if the parties have an agreement for some other amount and the court is satisfied that reasonable arrangements have been made for the support of the child.

[40]      Section 3(1) of the Guidelines sets out the presumptive rule that child support for children under the age of 19 is payable in the amount set out in the applicable child-support table scheduled to the Guidelines. This amount is set according to the annual income of the payor parent. There are exceptions to the presumptive rule contained in s. 3(1) of the Guidelines, none of which apply in this case.

[41]      The objectives of the Guidelines are set out in s.1:

[42]      The first step in determining the payor parent’s child-support obligation is to calculate their income. In order to do this fairly and accurately, the Federal Child Support Guidelines and the Provincial Court (Family) Rules, BC Reg 417/98 require applicants and respondents to disclose to the court and each other information relevant to the child-support proceedings. Section 21 of the Guidelines requires the payor parent to provide the following financial documentation:

[43]      Section 21(2) requires a respondent to an application for a child support order and whose income information is necessary to determine the amount of the order, must, within 30 days after the application is served, provide the court as well as the applicant with the documents referred to above.

[44]      In this case, C.M.A.O. has filed a Form 4 Financial Statement, albeit over nine months after M.L.C.O. filed her February 13, 2021 application. Even then he did not provide all the required supporting documentation. He was specifically ordered to provide this information by this Court on June 9, 2020, November 19, 2020, and March 5, 2021.

[45]      Typically, the court determines the parents’ respective Guideline income from Line 150 of their most recent income tax return. For this reason, the court generally calculates the parents’ child-support obligations based on the previous year’s income of each spouse: J.(K.M.) v. N.(J.H.D.), 2014 BCSC 1895, at para. 114.

[46]      Section 2(3) of the Guidelines hold:

[47]      This suggests the court can calculate the parents’ income based on their most recent statements of earnings where their income stream is relatively certain. In this case, C.M.A.O.’s income is anything but certain. Therefore, the court ought to calculate C.M.A.O.’s income for 2020 based on his 2019 earnings.

[48]      Section 16 of the Guidelines states:

[49]      Section 17(1) of the Guidelines allows the court to consider income patterns or fluctuations to arrive at a fair amount. It states:

[50]      Section 19 of the Guidelines permits the court to depart from the methodology set out in s. 16 and “impute such amount of income to a spouse as it considers appropriate in the circumstances”. Although there are nine statutorily defined situations, it is not an exhaustive list and the section gives the court a significant amount of discretion in imputing income. Section 19 states:

[51]      The onus is on the person seeking to impute income to show an evidentiary basis. The onus then shifts to the other party to prove that the deductions are reasonable: Harris v. Visser, 2019 BCSC 2438 (CanLII), at para. 40 citing M.(C.) v. M.(V.), 2016 BCSC 2144). There must be an evidentiary basis on which to impute income. The court must find that the parent is realistically capable of earning the income that is sought to be imputed (Marquez v. Zapiola, 2013 BCCA 433; Shen v. Tong, 2013 BCCA 519). A party’s capacity to work must be measured against their actual education, not what the other party had hoped it would be (Herron v. Herron, 2016 BCSC 1508).

[52]      The proper approach to assessing a parent’s capacity to earn income engages the following principles:

[53]      M.L.C.O. submits the court ought to impute income to C.M.A.O. pursuant to s. 19(1)(a) and (f) of the Guidelines. She says C.M.A.O. is intentionally underemployed and he has failed to provide income information when under a legal obligation to do so. Specifically, she asks the court to impute a Guideline income to C.M.A.O. in the amount of $39,164 for 2019, 2020 and 2021.

[54]      In 2018, C.M.A.O. earned approximately $39,164, which consisted of $34,035 in employment income and $5,129 from employment insurance. I assume the employment insurance benefits relate to a period in 2018 before C.M.A.O. began working at W.W. I do not know how much he would have earned at W.W. if he had been employed for all 12 months of 2018. C.M.A.O. was employed at W.W. full time for all of 2019. C.M.A.O. has not provided M.L.C.O. or the court with a copy of any of his 2019 financial information, including his 2019 Income Tax Return, Notices of Assessments or Reassessments, T4 tax slip (Statement of Remuneration Paid) or T4E tax slips (Statement of Employment Insurance and Other Benefits). He has not provided any of this documentation for 2020. At best, he permitted the court and the applicant’s counsel an opportunity to review an electronic copy of his 2020 Income Tax on his cellular phone.

[55]      C.M.A.O. left his employment with W.W. in the Spring of 2020. C.M.A.O. claims he lost his employment as of a result of protective measures he believed necessary because of the COVID-19 pandemic. C.M.A.O. says his union refused to assist him or grieve his termination. C.M.A.O. has provided no documentation nor called any witnesses to corroberate his evidence. It is highly unusual for a union to refuse to challenge a wrongful termination of a worker’s employment. When asked in cross-examination what efforts he made to have the union challenge his termination, C.M.A.O. testified he called the union three or four times. His shop steward told him there was nothing the union could do. C.M.A.O. does not claim to have filed any grievance with respect to his termination, nor taken any action against the union for unfair representation.

[56]      M.L.C.O. acknowledges that C.M.A.O. was injured in 2013; however, she does not agree that C.M.A.O. suffers from a significant lingering disability as a result of that injury. C.M.A.O. never sought medical treatment or received Workers’ Compensation Benefits as a result of that workplace accident. In M.L.C.O.’s view, C.M.A.O. is deliberately underemployed as a strategy to avoid paying child support.

[57]      What records C.M.A.O. has produced indicate that he earned little in the last four years of his relationship with M.L.C.O. (2014-2017). It was not until he began working for W.W. in 2018 that C.M.A.O. began to earn even a modest income. It is not clear to me when in 2018 C.M.A.O. began working. He would have worked full time for all of 2019, but he has not produced his income tax returns for that year. C.M.A.O. testified that he “thinks” he may have earned $32,000 in 2019 while working full time for W.W. as an oil and lube technician.

[58]      I find that C.M.A.O. has been very cavalier in complying with his disclosure obligations. He has not provided all requisite financial documentation even in the face of multiple court orders. He has not produced medical documentation to support his claims he can only work four-to-six hours per day and even then in a limited capacity. He has not provided any corroborating evidence as to how he came to lose his employment with W.W. in the Spring of 2020. I am not prepared to accept C.M.A.O.’s of-the-cuff excuses for non-compliance.

[59]      As M.L.C.O. is seeking child support retroactive February 1, 2020, C.M.A.O.’s income for 2019 is relevant. Ordinarily, I would be prepared to impute to C.M.A.O. an income for 2019, 2020 and 2021, at least equal to that which he earned in 2018, namely, $39,164. I cannot, however, simply ignore the fact that on March 18, 2020, the Province of British Columbia declared a State of Emergency in relation to the COVID-19 pandemic. Fairness dictates the court take into consideration that even if C.M.A.O. were gainfully employed in 2020 and 2021, he may not have earned what he did in 2018.

[60]      On the evidence before me, I find C.M.A.O. is underemployed and has failed to provide information required under the Guidelines. Accordingly, I find it appropriate to impute income to C.M.A.O. pursuant to s. 19(1)(a) and (f) of the Guidelines. In such circumstances, however, the court is forced to impute an income in an amount which is somewhat arbitrary. This is the risk C.M.A.O. assumes as a result of his non-compliance with his disclosure obligations: Lessard v. Mahoney, 2007 BCSC 562, para. 59; Collier v. Campbell, 2013 BCSC 825 (CanLII).

[61]      I am of the view the court ought to impute C.M.A.O. a Guideline income for 2020 and 2021 in the amount of $33,500.

[62]      I am also of the view that C.M.A.O. ought to pay child support on a Guideline income retroactive to February 1, 2020.

[63]      C.M.A.O. is found to be a resident of British Columbia and is imputed to have a Guideline annual income of $33,500 for 2020 and 2021.

[64]      C.M.A.O. shall pay to M.L.C.O. the sum of $718 per month for the support of: K.M.J.O., born [omitted for publication], 2008; K.A.L.O., born [omitted for publication], 2009; and A.C.K.O., born [omitted for publication], 2014, (Collectively, “the Children”) retroactive to February 1, 2020.

[65]      The arrears of child support payable by C.M.A.O. to M.L.C.O. accrued between February1, 2020 and June 1, 2021, inclusive, are fixed as of June 1, 2021, in the amount of $12,206 inclusive of statutory interest if any ($718 x 17 = $12,206).

[66]      C.M.A.O. will pay M.L.C.O. ongoing child support of $718 per month for the support of the Children commencing July 1, 2021, and continuing on the first day of each and every month thereafter, for as long as the Children are eligible for support under the Family Law Act or until further court order.

[67]      C.M.A.O. shall pay to M.L.C.O. towards the arrears in child support and in addition to the regular monthly maintenance payments, the minimum sum of $150 per month starting July 1, 2021, and continuing on the first day of each month thereafter until the arrears are paid in full or further order of the court.

[68]      For greater clarity C.M.A.O.’s total child support payment to M.L.C.O. commencing July 1, 2021 is $868 per month ($718 ongoing child support + $150 arrears in child support = $858).

[69]      For as long as the Children are eligible to receive child support, C.M.A.O. shall provide to M.L.C.O. (a) copies of his income tax return for the previous year, including all attachments, not later than June 1 each year; and (b) copies of any Notice of Assessment or Reassessment provided by the Canada Revenue Agency, immediately upon receipt.