IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Ms. W. seeks an order that Mr. W. pay child support for the benefit of their son, J., for the period June 30, 2019 to May 31, 2020.

[2]         Ms. W. has recently remarried, and is now known as R.H.  The style of cause will be amended accordingly.

[3]         Mr. W. and Ms. H. are the parents of J., now age 16.  They also have a daughter, A., now age 19, who is a student at the University of Victoria.

[4]         On September 29, 2015, His Honour Judge Webb of this court ordered that:

[5]         Mr. W. made the child support payments ordered by Judge Webb from September, 2015 to May, 2019.

[6]         Beginning in his early teens, J. exhibited a number of anti-social behaviours.  He uses illicit drugs and has not been responsive to treatment and counselling programs.  Those behaviours led his parents to agree that he should move to his father’s home.  On May 24, 2019, the parties consented to an order, pronounced by His Honour Judge McKimm of this court, that J.’s primary residence be at his father’s home and that “Any child support payable by either party to the other is cancelled, effective May 1, 2019”.

[7]         J.’s behaviour did not improve when he moved to his father’s home.  He continued to use illicit drugs and was often out all night.  In early June, 2019, he was hospitalized in an attempt to assist him to detox safely.  After his discharge from hospital, Mr. W. declined to allow J. to return to Mr. W.’s home.  During the ensuing six months, J. lived for a period of time with Ms. H.’s parents, and for part of the time couch-surfing at friends’ homes.  In January, 2020, he returned to Ms. H.’s home.  On January 22, 2020, he vandalized his mother’s home and was arrested. The police took him to the adolescent unit at the local psychiatric hospital for assessment.  He was discharged after 7 days and went to live at the home of his girlfriend’s mother, where he remained until May 15, 2020.  During that time, Ms. H. paid $100 per week to the girlfriend’s mother in consideration of the home which the latter provided to J.  On May 15, 2020, the girlfriend’s mother evicted her daughter and J.

[8]         On June 1, 2020, J. entered into a voluntary care agreement with the Ministry of Children & Families (“MCFD”), and now lives in a foster home contracted for him by MCFD.

[9]         At a family case conference on September 9, 2020, the parties consented to an order that “… the order of the Honourable Judge McKimm dated May 24, 2019 is hereby cancelled …”.

[10]      Ms. H. has provided J. with small amounts of cash, ranging from $50 to $200 per month, during the period January, 2019 to December, 2020.  She has also paid for cell phones for J. and A.

[11]      Mr. W.’s annual income is $55,788.  Ms. H.’s annual income is $39,011.

[12]      This case comes before the court pursuant to an Application Respecting Existing Orders or Agreements, filed on December 12, 2019.  In it, Ms. H. seeks the following orders:

[13]      Ms. H. asserts that Mr. W. should be directed to pay her child support in the monthly amount set out in the Federal Child Support Guidelines SOR/97-175 (“the Guidelines”), or, in the alternative, that she should be reimbursed for the amounts which she paid to, or for the benefit of, J. during the period in question.

[14]      Mr. W. objects:

[15]      The obligation to pay child support, if any, is imposed by section 147 of the Family Law Act SBC 2011, c. 25 (“the FLA”).  The pertinent part of that section provides:

[16]      The essential question is whether, by his conduct, J. voluntarily withdrew from his parents’ charge.  If so, neither of them had an obligation to pay child support for the period after he withdrew.  If not, both of them had an obligation to pay child support for that period.  Because J. lived with neither parent during the period in question, if child support was payable, it would be necessary to consider to whom child support should be paid.  I was referred to no previous authority considering these questions.

[17]      In M.A. v. F.A. 2013 BCSC 1077; [2013] BCJ No. 1306 @ paragraph 35, Justice Bruce concluded that a child who is incarcerated for a period exceeding one year “… must be regarded as ‘voluntarily withdrawn’ from the charge of the parent for the purpose of determining child support …”.  That is not this case - J. was not incarcerated during the period in question.  However, M.A. v. F.A does support the proposition that a child who engages in criminal behaviour, and is unable to live in the parents’ home because of that behaviour, may be said to have “voluntarily withdrawn” from his parents’ charge.

[18]      It seems to me that parents must be entitled to say, at some point, that a child’s behaviour exceeds the limits which the parents ought to be expected to tolerate.  I do not think it possible to define those limits in general terms.  Each case must be assessed individually.  Much turns upon the age and capacity of the child.  However, when the limits applicable to the individual case have been exceeded, the parents must be entitled to conclude that, by her or his conduct, the child has elected to withdraw from the parents’ care.  On that issue, if on no other, Ms. H. and Mr. W. were, and are, ad idem.  After June 1, 2019, neither was willing to have J. in their home.

[19]      Because J. elected to withdraw from his parents’ care no later than June 1, 2019, the parents’ obligation to pay child support ceased on that date.

[20]      The payments made by Ms. H. after June 1, 2019 were voluntary payments, made with the best of intentions but without any legal obligation.  Mr. W. did not agree to those expenditures.  He is under no legal obligation to contribute to them.

[21]      The application is dismissed.