IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         B.B. and R.K. (formerly known as R.B.) are the parents of J.B.B. who is now 25-years-old (“J.B.B.”) and S.B.B., now 20. (“S.B.B. together with J.B.B., “the children”). When B.B. and R.K. separated in 2001, the children were five and one. Thereafter, the children lived primarily with R.K. For the first four years post-separation, B.B. contributed financially to the children’s care as he saw fit. On July 4, 2005, while B.B. was incarcerated, R.K. obtained an order requiring him to pay $670 per month in child support on an imputed income of $48,000. This sum only changed as the children aged out of their entitlement to child support under the Family Law Act (“FLA”). With the odd exception, over the next 16 years, the only time R.K. received any child support from B.B. was when the Director of the Family Maintenance Enforcement Program (the “Director”) succeeded in garnishing it from third parties, usually the federal government. The Director has doggedly attempted to collect child support from B.B. for R.K.’s benefit. To this end, the Director has summoned B.B. to a default hearing, which is the matter before me.

[2]         The issue before me is whether the court ought to make an order compelling B.B. to make monthly payments on the arrears of child support and in default, impose a jail term for each missed payment.

[3]         This matter came before me for trial on March 31, 2021, April 1, 2021 and July 29, 2021. I heard oral evidence from B.B. and received into evidence the following exhibits:

[4]         I heard submissions of counsel and received written submissions from Ms. Oliver Dunbar, legal counsel for B.B. At the conclusion of the trial, I reserved my decision. This is my decision and reasons for judgment.

[5]         B.B. is 43-years-old, having been born on [omitted for publication]. He was born and raised in north-eastern British Columbia and is a status member of the [omitted for publication] First Nations.

[6]         B.B. spent his early years in [omitted for publication] and attended high school and the Northern Lights College in Dawson Creek, BC. In 1999, B.B. earned a Level A certification in welding. He has worked as a welder for much of his adult life.

[7]         B.B. and R.K. began cohabitating in a marriage-like relationship in 1999. They are the biological parents of J.B.B. born [omitted for publication] 1996, and S.B.B. born [omitted for publication] 2000. They separated in 2001 when J.B.B. was five-years-old and S.B.B. was one.

[8]         B.B. moved to Prince George, BC, in 2012, and has lived there since. He resides in a two-bedroom apartment at: [omitted for publication], Prince George, BC, [omitted for publication]. He shares this apartment with one roommate.

[9]         B.B.’s parents, J.B. and H.Q. are in their 70’s and continue to reside in [omitted for publication]. B.B. tries to return to [omitted for publication] at least once every year for a week or so to visit his parents.

[10]      R.K. resides in [omitted for publication] and works for the [omitted for publication] First Nations in the band office.

[11]      B.B. suffers from a congeries of health issues. He has a longstanding alcohol and drug addiction. In 2016, he began experiencing testicular pain and underwent an orchiectomy on his left testicle on March 5, 2018. Approximately five years ago, B.B. developed carpal tunnel syndrome in his right wrist. It is so severe he can no longer work as a welder or labourer. B.B. stopped working full time in 2016. He last worked in May 2017 for three days, before he reached his pain threshold. He says he expects to return to work once he has received carpal tunnel release surgery on his wrist. This surgery has yet to be scheduled.

[12]      These proceedings commenced on April 26, 2004, when R.K. filed an Application to Obtain an Order against B.B. in the [omitted for publication] Registry under Court File 3123: CEIS 1. R.K. sought custody of J.B.B. born [omitted for publication] 1996 and S.B.B. born [omitted for publication] 2000: CEIS 1. This originating application was served on B.B. on May 17, 2004. At that time, both parents resided in [omitted for publication], BC.

[13]      R.K.’s application came before Judge Macfarlane in [omitted for publication] Provincial Court on September 13, 2004: CEIS 4. R.K. appeared represented by legal counsel D. Fowler; B.B. did not appear. Judge Macfarlane ordered that R.K. have sole custody of the children.

[14]      On January 26, 2005, R.K. filed a further Application to Obtain an Order seeking child support for the children: CEIS 5. This was served upon B.B. on May 4, 2005. In her application, R.K. said she did not know B.B.’s income because she had not lived with him for four years, but that he was an “A” welder.

[15]      On June 6, 2005, R.K.’s application for child support came before Regional Administrative Judge Brecknell (“RAJ Brecknell”) in [omitted for publication] Provincial Court. R.K. appeared represented by duty legal counsel R. Zeunert and legal counsel K. Johnston appeared as agent for B.B. Judge Brecknell ordered on an interim without prejudice basis: (a) B.B.’s annual income was imputed to be $48,000; (b) B.B. was to pay $670 to R.K. for child support for the month of June 2005, and (c) B.B. was to provide his financial statement along with all attachments to R.K. no later than June 24, 2005: CEIS 9.

[16]      B.B. did not comply with RAJ Brecknell’s order and a warrant was issued, but held until the next court appearance on July 4, 2005.

[17]      On July 4, 2005, this matter came before Judge Dollis in [omitted for publication] Provincial Court. R.K. appeared represented by duty legal counsel R. Zeunert, and legal counsel K. Johnston appeared as agent for B.B. Judge Dollis ordered on an interim without prejudice basis: (a) by consent, B.B. was imputed an annual income of $48,000; (b) B.B. was to pay to R.K. $670 per month for the support of the children on the first day of July 2005, and continuing on the first day of each and every month thereafter; (c) B.B. was to pay R.K. the sum of $170 which was in arrears for June 2005, on or before July 18, 2005; (d) B.B. was to file his financial statement no later than July 18, 2005: CEIS 9,10.

[18]      On October 19, 2005, R.K. signed a Payment Declaration with the Family Maintenance Enforcement Program (“FMEP”) indicating B.B. was in arrears of child support in the amount of $3,350 as of November 7, 2005.

[19]      On November 8, 2005, the Director notified the [omitted for publication] Provincial Court Registry that R.K. filed a maintenance order with the FMEP.

[20]      On January 27, 2006, the Director filed with the [omitted for publication] Provincial Court Notice of Attachments to serve upon: (a) Her Majesty the Queen in Right of Canada; and (b) [omitted for publication] Welding Inc. In those notices, the Director indicated B.B. owed R.K. $4,725.06 in arrears of child support as of January 19, 2006: CEIS 56 and 57.

[21]      On June 14, 2007, the Director: (a) filed a Form 23 (Rule 17(2)) Request for Enforcement of order made in these proceedings on September 13, 2004: CEIS 11; (b) issued B.B. a notice under s. 12 of the Family Maintenance Enforcement Act (“FMEA”) to file a Statement of Finances in the prescribed form within ten days of receiving the notice: CEIS 14; (c) filed a Notice of Motion seeking an order requiring B.B. to file a statement of finances: CEIS 13; (d) filed a Statement of Arrears stating that as of March 28, 2007, B.B. owed R.K. $11,366.98 in unpaid child support, inclusive of statutorily accrued interest and legislated fees: CEIS 13; and (e) sought and obtained a summons requiring B.B. attend a default hearing at [omitted for publication] Provincial Court on March 10, 2008: CEIS 11.

[22]      On September 20, 2007, B.B. filed a mostly blank Statement of Finances, indicating his children were “DISOWNED”: CEIS 46.

[23]      On November 5, 2007, this matter came before Judge Daley. Nathan Bauder appeared on behalf of the Director and R.K., and B.B. appeared on his own behalf. Judge Daley fixed B.B.’s arrears of child support owing to R.K. at $16,781.10. Judge Daley further ordered that any payments made by B.B. would be credited firstly to regular child-support payments and next to any arrears pursuant to s. 21(10) of the FMEA.

[24]      On March 10, 2008, this matter came before Judge Gray in [omitted for publication] Provincial Court for a default hearing. Nathan Bauder appeared on behalf of the Director and R.K. B.B. did not appear in person, or by legal counsel or agent. At that time, Judge Gray ordered: (a) B.B. promptly deliver to the Director the particulars of each change of residential address, place of employment or business address; and (b) the Director’s default hearing be adjourned to September 8, 2008.

[25]      On August 29, 2009, the Director filed a request to adjourn generally its application filed June 14, 2007, and returnable September 8, 2008: CEIS 17.

[26]      On December 18, 2009, the Director filed Notices of Attachment with the [omitted for publication] Provincial Court to serve upon: (a) Canadian Imperial Bank of Commerce; (b) Royal Bank of Canada; (c) Bank of Nova Scotia; (d) TD Canada Trust; (e) HSBC Bank Canada; and (f) BMO Bank of Montreal. The attachment notices required any attachee owing B.B. money to pay all or a portion of the money to FMEP. These attachment notices indicated B.B. was in arrears of child support payable to R.K. in the amount of $34,306.94 as of December 2, 2009: CEIS 18 to 23.

[27]      On March 3, 2010, the Director filed Notices of Attachment with the [omitted for publication] Provincial Court to serve upon: (a) [omitted for publication] First Nation; and (b) [omitted for publication] Consulting Archaeologist Ltd. These attachment notices indicated B.B. was in arrears of child support payable to R.K. in the amount of $35,802.75 as of February 23, 2010: CEIS 54 to 55.

[28]      On January 26, 2011, the Director filed a Notice of Attachment with the [omitted for publication] Provincial Court to serve upon Her Majesty the Queen in Right of Canada. This attachment notice indicated B.B. was in arrears of child support payable to R.K. in the amount of $43,688.50 as of January 13, 2011: CEIS 53.

[29]      On June 14, 2011, the Director filed Notices of Attachment with the [omitted for publication] Provincial Court to serve upon: (a) Canadian Imperial Bank of Commerce; (b) HSBC Bank Canada; (c) BMO Bank of Montreal; (d) Royal Bank of Canada; (e) TD Canada Trust; and (f) Bank of Nova Scotia. These attachment notices indicated B.B. was in arrears of child support payable to R.K. in the amount of $47,162.15 as of May 16, 2011: CEIS 47 to 52.

[30]      On December 8, 2011, the Director: (a) filed a Form 23 (Rule 17(2)), Request for Court Enforcement of the orders made June 6, 2005, July 4, 2005 and November 5, 2007, in [omitted for publication] File 3123: CEIS 28; (b) filed a Statement of Arrears indicating that as of November 30, 2011, B.B. owed child support payable to R.K. in the amount of $51,880.51: CEIS 26; (c) issued a Notice to Debtor B.B. to complete and file a Statement of Finances in the prescribed form within ten days of receiving the notice: CEIS 27; (d) filed a Notice of Motion seeking an order requiring B.B. to file an updated statement of finances; and (e) sought and obtained a summons requiring B.B. to attend a default hearing in the [omitted for publication] Provincial Court on February 15, 2012: CEIS 24, 25, 30, 31. These documents were served on B.B. on January 11, 2012: CEIS 31.

[31]      The Director’s December 8, 2011 application for a default hearing was scheduled for trial on February 15, 2012, at 9:30 a.m. in [omitted for publication] Provincial Court: CEIS 30. On that date, B.B. did not attend in person, or by counsel or agent. Judge Daley ordered a warrant for his arrest: CEIS 33. B.B. was taken into custody and released on May 14, 2012, on a Promise to Appear in [omitted for publication] Provincial Court on August 20, 2012: CEIS 33.

[32]      B.B. did not appear on August 20, 2012, as set out in his May 14, 2012 Promise to Appear and Judge Daley ordered a warrant for his arrest: CEIS 35.

[33]      FMEP’s Account Statement indicates that as of May 1, 2015, B.B.’s ongoing child support was reduced to $439 per month: Exhibit 7. I understand this reduction was due to J.B.B. turning 19-years-old on [omitted for publication], 2015.

[34]      On November 25, 2013, the Director filed a Request to Withdraw its enforcement default hearing scheduled for November 27, 2013: CEIS 36. At that time the court vacated the August 20, 2012 warrant for B.B.’s arrest.

[35]      On October 5, 2016, the Director: (a) filed with the [omitted for publication] Provincial Court a Form 23 Request for Court Enforcement pursuant to Rule 17(2): CEIS 39; (b) Notice to Debtor that pursuant to s. 12 of the FMEA, B.B. was to file a Statement of Finances in the prescribed form within ten days: CEIS 42; (c) a Statement of Arrears indicating that as of September 14, 2016, B.B. owed R.K. $72,888.50 in unpaid child support: CEIS 40; (d) filed a Notice of Motion (Form 24 (Rule 17(3)) seeking an order requiring B.B. to file a statement of finances: CEIS 42; (e) sought and obtained a further summons requiring B.B. to attend a default hearing in the [omitted for publication] Provincial Court on November 22, 2016: CEIS 38, 39, 41, 42 and 43.

[36]      On November 22, 2016, this matter came before Regional Administrative Judge R. Hamilton (“RAJ Hamilton”) in [omitted for publication] Provincial Court. At that time RAJ Hamilton granted the Director’s application to transfer the file to Prince George, where B.B. was now residing: CEIS 45.

[37]      On January 20, 2017, this matter came before me in Prince George Provincial Court. Mr. R. Bjarnason appeared on behalf of FMEP and R.K. Ms. S. Kristen attended as legal duty counsel on behalf of B.B., who appeared in person. At that time, I ordered, by consent, that pursuant to s. 14(1)(a) of the FMEA, on or before April 11, 2017, B.B. complete and file with the court registry and deliver to the Director a completed Statement of Finances in the prescribed form, together with attachments listed in s. 7 of the FMEA: CEIS 58.

[38]      On April 18, 2017, this matter came before Judge Malfair in the Prince George Provincial Court. Mr. Bjarnason appeared on behalf of FMEP and R.K. Ms. Oliver Dunbar appeared as legal duty counsel on behalf of B.B., who attended in person. At that time, Judge Malfair ordered, by consent, that pursuant to s. 14(1)(a) of the FMEA, B.B. complete and file with the court registry and deliver to the Director by June 30, 2017, a completed Statement of Finances in the prescribed form, together with attachments listed in s. 7 of the FMEA: CEIS 59.

[39]      On December 19, 2017, this matter came before Judge Mengering in the Prince George Provincial Court. Mr. Bjarnason appeared on behalf of FMEP and R.K. Ms. Oliver Dunbar appeared as legal counsel on behalf of B.B., who attended in person. At that time, Judge Mengering ordered, by consent, an extension of time for B.B. to file his Statement of Finances as prescribed under the FMEA, and his Form 4 Financial Statement under the FLA, from June 30, 2017 to February 16, 2018: CEIS 67.

[40]      On February 23, 2018, this matter came before Judge Mengering in the Prince George Provincial Court. Mr. Bjarnason appeared on behalf of FMEP and R.K. Ms. Oliver Dunbar appeared as legal counsel for B.B., who attended in person. At that appearance Judge Mengering ordered, by consent, an extension of time for B.B. to file his Statement of Finances as prescribed under the FMEA, and his Form 4 Financial Statement under the FLA, from February 16, 2018 to March 16, 2018: CEIS 66.

[41]      On March 1, 2018, with the assistance of counsel, B.B. filed with the court: (a) a Form 4 Financial Statement under the FLA, attaching copies of his Canada Revenue Agency (“CRA”) records for 2005 to 2017 inclusive: CEIS 60; and (b) a Statement of Finances under the FMEA, attaching copies of the prescribed financial records: CEIS 61.

[42]      On March 2, 2018, B.B. filed an Application Respecting Existing Orders or Agreements seeking to cancel or reduce child support retroactive to July 1, 2005, on the basis of undue hardship: CEIS 63. B.B. claimed:

[43]      At the hearing of his March 2, 2018 application, B.B. also sought:

[44]      On March 2, 2018, Ms. Oliver Dunbar filed an affidavit of her legal assistant attaching B.B.’s T4 Statements for 2005 to 2016 inclusive: CEIS 64.

[45]      On March 2, 2018, the Director of FMEP filed a reply, taking no position with respect to B.B.’s March 2, 2018 application: CEIS 65.

[46]      On April 20, 2018, this matter came before Judge Mengering in the Prince George Provincial Court. Mr. Bjarnason appeared on behalf of FMEP and R.K. Ms. Oliver Dunbar appeared as legal counsel for B.B., who attended in person. At that time, Judge Mengering ordered, by consent, B.B. could provide proof of service of documents on R.K. on or before July 6, 2018: CEIS 71.

[47]      On August 2, 2018, R.K. filed a reply opposing B.B.’s March 2, 2018 application to reduce child support and arrears of child support: CEIS 69.

[48]      On October 19, 2018, this matter came before Judge Dhillon in the Prince George Provincial Court. Mr. Bjarnason appeared on behalf of FMEP and R.K. Ms. Oliver Dunbar appeared as legal counsel and agent for B.B. At that time, Judge Dhillon ordered B.B. provide an accounting for expenditures of the $24,645 settlement funds he received on December 13, 2017: CEIS 76.

[49]      On November 6, 2018, R.K. filed a Form 4 Financial Statement, attaching her income tax records for 2015, 2016 and 2017: CEIS 74.

[50]      On January 18, 2019, this matter came before RAJ Brecknell. Mr. Bjarnason attended in the Prince George Provincial Court on behalf of FMEP and R.K. Ms. Oliver Dunbar appeared as legal counsel for B.B., who attended in person. At that time, RAJ Brecknell ordered B.B. provide an accounting for expenditures of the $24,645 settlement funds by February 28, 2019: CEIS 73, 75, 76.

[51]      On March 22, 2019, this matter came before RAJ Brecknell in the Prince George Provincial Court. Mr. Bjarnason appeared on behalf of FMEP and R.K. Ms. Oliver Dunbar appeared as legal counsel and agent for B.B. At that time RAJ Brecknell ordered B.B. provide Mr. Bjarnason a copy of all receipts for the expenditure of the settlement funds on or before April 12, 2019: CEIS 79.

[52]      On April 12, 2019, Ms. Oliver Dunbar’s legal assistant filed an affidavit with respect to the statement of accounting ordered on January 18, 2019: CEIS 77; Exhibit 10. This accounting is with respect to a lump-sum payment of $24,645 that B.B. received from Deloitte Wealth Management on behalf of the [omitted for publication] First Nations. The funds were deposited into B.B.’s Scotiabank account on December 13, 2017, and were virtually depleted by January 12, 2018. The affidavit attaches 12 receipts totalling $8,506.96. The only money B.B. paid towards his child-support arrears from these funds was $1,600 on December 27, 2017, which he says was for clothing for his daughter, for which there is no receipt.

[53]      On November 1, 2019, B.B.’s March 2, 2018 application came before RAJ Brecknell for a family case conference. R.K. was represented by [omitted for publication] and B.B. was represented by Ms. A. Oliver Dunbar. On that date the court was advised B.B.’s arrears of child support owing to R.K., inclusive of interest, totalled $77,938.29 as of October 1, 2019. On November 1, 2019, the parties consented to a final order, which included, among other things, the following terms (CEIS 81):

[54]      As of November 1, 2019, both B.B. and R.K.’s children were adults. J.B.B. turned 19 on [omitted for publication], 2015, and S.B.B. turned 19 on [omitted for publication], 2019. Accordingly, B.B.’s ongoing child-support obligation had ended.

[55]      This matter came before Judge Gray on November 22, 2019. At that time he ordered B.B. provide his 2017 and 2018 Canada Revenue Agency (“CRA”) Notices of Assessment 30 days before the Pre-Trial Conference on the trial of the default hearing. The matter was adjourned to the Judicial Case Manager to set a trial date for the default hearing no sooner than March 1, 2020.

[56]      On May 5, 2020, the Director’s October 5, 2016 Summons to a Default Hearing was scheduled for a Pre-Trial Conference on May 22, 2020, and a trial on June 26, 2020: CEIS 83. The pre-trial conference was cancelled due to the suspension of the regular court operations as a result of the COVID-19 pandemic. The June 26, 2020 trial date was converted to a pre-trial conference, which proceeded before Judge Keyes.

[57]      On June 25, 2020, Ms. Oliver Dunbar’s legal assistant filed an affidavit attaching B.B.’s 2017 Tax Return with supporting documents: CEIS 85.

[58]      In 2020, B.B. was entitled to receive two payments from the [omitted for publication] First Nations, one in June 2020 in the amount of $3,000, and another in December 2020 in the amount of $5,000. R.K., who works for the [omitted for publication] First Nations, alerted the Director of these payments. On October 23, 2020, the Director of FMEP sought and obtained an order from Judge Keyes on June 26, 2020, directing any moneys payable from the [omitted for publication] First Nations to B.B. between June 1, 2020 and September 30, 2020, be paid to FMEP for the benefit of R.K. Judge Keyes also ordered a further pre-trial conference in this matter after September 1, 2020, for the purposes of updating the court on B.B.’s circumstances and the monies he was to receive from the [omitted for publication] First Nations: CEIS 87.

[59]      In July 2020, of the $3,000 owing to B.B., the [omitted for publication] First Nations paid 25% ($750) to FMEP for the benefit of R.K. and the balance to B.B. directly: Exhibit 7, p. 9.

[60]      On October 22, 2020, Ms. Oliver Dunbar’s legal assistant filed an affidavit attaching B.B.’s CRA Notices of Assessment for 2015 to 2018 exclusive, together with CRA records of B.B.’s government benefits for the GST/HST and BCCATC for 2016 to 2021 inclusive: CEIS 86.

[61]      On October 23, 2020, the parties appeared before Judge Keyes for a pre-trial conference. Ms. Oliver Dunbar advised the court that B.B.’s circumstances had not changed. His surgery had not been scheduled and his only income was from social assistance. At that time, Judge Keyes ordered (CEIS 88):

[62]      On December 3, 2020, the [omitted for publication] First Nations paid 25% ($1,250) of the $5,000 owing to B.B. to FMEP. These funds were held in trust by the Director pursuant to Judge Keyes’ October 23, 2020 Order, until April 1, 2021: Exhibit 7, p. 13.

[63]      On February 26, 2021, pursuant to s. 13 of the FMEA and s. 7 of the FMEA Regulations, I ordered B.B. provide the Director with his Statement of Finances in the prescribed form, together with the required attachments, on or before March 24, 2021.

[64]      On March 24, 2021, B.B. filed a Statement of Finances under the FMEA, attaching his financial records: CEIS 89.

[65]      This matter came before me for trial on March 31, 2021, April 1, 2021, and July 29, 2021. The hearing could not proceed for the second day on April 1, 2021, as originally scheduled due to lack of court time. However, on April 1, 2021, B.B. consented to an order authorizing the Director to pay to R.K. the $1,250 FMEP was holding in trust since December 3, 2020.

[66]      The April 1, 2021 trial date was rescheduled for July 29, 2021. On that day, Mr. Bjarnason appeared on behalf of the Director and R.K. Ms. Oliver Dunbar appeared on B.B.’s behalf, but he did not attend. Ms. Oliver Dunbar was not confident that B.B. was even aware of the July 29, 2021 trial date, which had been set after the April 1, 2021 trial date was cancelled. Mr. Bjarnason and Ms. Oliver Dunbar asked the court to continue the trial in B.B.’s absence, with Ms. Oliver Dunbar acting as B.B.’s agent. I agreed given the voluminous documentary evidence. Because of his non-attendance at trial on July 29, 2021, B.B. could not be cross-examined on his evidence given in direct examination on March 31, 2021. Ms. Oliver Dunbar entered further exhibits and counsel proceeded directly to submissions. It goes without saying the court will give B.B.’s uncorroborated oral evidence less weight than if it had been tested in cross-examination. Where B.B.’s oral evidence is contradicted by records I consider trustworthy, I prefer the evidence of the latter.

[67]      Between June 6, 2005 and April 1, 2015 inclusive, B.B. was required to pay to R.K. child support for two children in the amount of $670 per month: CEIS 9. This was calculated on an imputed income of $48,000 per year, using the May 1 1997 Child Support Guidelines tables.

[68]      On May 1, 2015, B.B.’s child-support payments were reduced to $439 per month as a result of J.B.B. turning 19-years-old on [omitted for publication], 2015. Based on a $48,000 annual income, the Guideline support for one child using the December 31, 2011 Child Support Guideline tables was $439 per month.

[69]      The only year B.B. earned an income more than or equal to the $48,000 imputed to him on July 4, 2005, was in 2012.

[70]      The FMEP Account Statement indicates that generally any monies received to B.B.’s credit was from garnishees, typically the federal government. Exhibits 7 and 9 show:

[71]      B.B. says his sporadic income over the years is due to his intermittent incarceration over the past 18 years, addiction issues and poor health. B.B. has not worked in the last 4½ years. He says he cannot return to work until he has received and recovered from wrist surgery to relieve the symptoms of carpal tunnel syndrome.

[72]      B.B. has tendered into evidence 28 records totalling 178 pages retrieved from the Ministry of the Attorney General Court Services online website which document his criminal activity between June 10, 1998 and October 9, 2018. B.B. testified as to his criminal charges and convictions between 2001 and 2018: Exhibit 5.

[73]      In addition to periods of incarceration he served as result of his multiple convictions, B.B. owes fines and restitution to the Insurance Corporation of British Columbia (“ICBC”) in the amount of $122,063, as of August 13, 2019: Exhibit 3. As a result of an incident which occurred on November 18, 2010, B.B. was required to pay restitution to ICBC in the amount of $120,000: Exhibit 5, Tab 19. B.B. no longer has a driver’s licence and cannot obtain one until he pays his debt to ICBC.

[74]      During his direct examination on March 31, 2021, B.B. testified his criminal offences were committed while under the influence of alcohol. He admits he was an alcoholic and made stupid choices.

[75]      B.B. was arrested on July 18, 2017 and incarcerated for 28 days. He was re-arrested on September 6, 2017 and incarcerated until December 6, 2017. B.B. was also incarcerated in 2018.

[76]      B.B. has not been charged or convicted of any criminal offences since his release from jail in December 2018.

[77]      B.B. has struggled with addictions his entire adult life. By his early twenties, he was an alcoholic. He began using cocaine while still living with R.K. In 2017, B.B. graduated to heroin. B.B. has achieved periods of sobriety interspersed with periods of relapses. His most recent relapse was in May 2021.

[78]      On or about December 11, 2018, B.B. became a patient of the Blue Pine Primary Health Care Clinic in Prince George. For the next two and one-half years B.B. received medical care from Dr. C. Kibonge and Nurse Practitioner Colleen Booth (“NP Booth”).

[79]      In December 2018, B.B. entered into a Client Agreement with Blue Pine Clinic for buprenorphine (suboxone) treatment for opioid dependence: Exhibit 4. NP Booth states that B.B.’s physician in [omitted for publication] had placed B.B. on suboxone in 2017 and that he was receiving suboxone while still incarcerated in Prince George Regional Correction Centre in 2018.

[80]      The Blue Pine Clinic inducted B.B. into its suboxone program on January 23, 2019. B.B. continued with the suboxone treatment until June 17, 2020, when he switched to methadone.

[81]      His records indicate B.B.’s medical problems at the time included: (a) chronic alcoholism; (b) hypertension; (c) opioid dependence; (d) trauma compartment syndrome due to a crush injury of the left leg; (e) radical inguinal orchiectomy (surgical removal of the left testicle, with a post-operative hematoma); (f) carpal tunnel syndrome of the right wrist: Exhibit 8.

[82]      Between April 25, 2019 and June 8, 2021, inclusive, B.B. was prescribed a number of medications, including: (a) suboxone; (b) amitriptyline; (c) hydrochlorothiazide; (d) ramipril; (e) dilaudid; (f) methadone; (g); sertraline; (h) quetiapine; and (i) amlodipine: Exhibit 8.

[83]      On February 18, 2021, NP Booth took B.B. to Central Interior Native Health where he was initiated on methadone and a pharmaceutical alternative to dilaudid. B.B. relapsed and his laboratory tests taken on May 10, 2021 detect the presence of amphetamines, benzodiazepine, cocaine, fentanyl, heroin, methadone, and oxycodone: Exhibit 11. NP Booth reports that on May 11, 2021, B.B. was admitted to University Hospital of Northern British Columbia (UHNBC) for acute opioid withdrawal, and restarted on suboxone. His laboratory tests on that day indicate the presence of amphetamines, fentanyl, heroin and methadone: Exhibit 11. On May 13, 2021, B.B. was admitted to the Adult Withdrawal Management Unit (“AWMU”). NP Booth did not have B.B.’s discharge summary from AWMU. Upon reviewing pharmanet, NP Booth noted that B.B. did not fill a prescription for any opioid use disorder treatment medication after he left AWMU. He was seen at the Blue Pine Clinic on May 26, 2021, and again on June 8, 2021. B.B. reported to NP Booth he stopped using opioids in the beginning of May. He declined offers for opioid antagonist therapy. On June 8, 2021, B.B. told NP Booth he was working and did not want to be on any medication for his opioid-use disorder. He accepted amlodipine medication for his anxiety and hypertension. In her July 28, 2021 report, NP Booth says she had not seen B.B. since June 8, 2021.

[84]      In December 2017, B.B. sought medical assistance from Dr. Abdulla, a urologist at the University Hospital of Northern British Columbia. On March 5, 2018, Dr. Abdulla surgically removed B.B.’s left testicle. B.B. suffered a post-operative hematoma and required further emergency treatment on March 6, 2018. He remained in the hospital for six days and was discharged on March 11, 2018. B.B. convalesced for three months following his surgery: Exhibit 8.

[85]      At the March 31, 2021 hearing, B.B. testified he still experiences pain and discomfort related to his remaining right testicle. NP Booth indicated B.B. has been referred to Dr. Hampole to investigate B.B.’s ongoing urological issues.

[86]      B.B. testified that in 2016, he had been experiencing problems with his right wrist. Specifically, he felt tingling or numbness in his fingers, and his arm seized after minimal activity. He experienced radicular pain from his hand thorough his arm up into his shoulder. B.B. sought medical intervention.

[87]      NP Booth states in her July 28, 2021 medical report that B.B. was referred to Dr. Daley for EMG testing on May 30, 2019. The EMG tests indicate the changes to B.B.’s wrist due to carpal tunnel syndrome were “moderate in degree”. On September 10, 2019, Dr. C. Kibonge reviewed the test results and diagnosed B.B. as suffering from carpal tunnel syndrome. B.B. agreed to try conservative therapy with a wrist immobilizer splint. Dr. Kibonge opined that if B.B.’s symptoms are not responsive to conservative measure, decompressive surgery would be an option.

[88]      B.B. testified that he understood Dr. Kibonge would refer him to an orthopaedic surgeon who would operate on B.B.’s wrist to release the pressure from the median nerve in his hand. B.B. said he expected to undergo surgery for this impairment before March 1, 2020, after which he could return to work as a welder. B.B. is still waiting for the referral to the specialist and a surgery date. On June 26, 2020, all elective surgeries in British Columbia were cancelled because of the COVID-19 pandemic.

[89]      As B.B. is right-handed, he is unable to work in his trade as a welder until he has had surgery on his wrist for the carpal tunnel syndrome. After he has rehabilitated from that surgery, B.B. anticipates he will be able to return to work. Until that time, B.B.’s only source of income is income assistance.

[90]      NP Booth states B.B. asked her on March 16, 2021, for a referral for surgical release. She says that due to an administrative error, this referral has not yet been submitted.

[91]      The FMEP Account Statement marked as Exhibit 1 indicates that the total amount B.B. owes to R.K. as of July 15, 2021, is $36,695.74, consisting of $22,824.87 in principal and $13,870.87 in interest. Additionally, B.B. owes the Province $3,600 in default fees, for a total indebtedness of $40,295.74: Exhibit 7.

[92]      The Director asks the court to impute to B.B. an annual income of $25,000. This figure is calculated upon BC minimum wage of $14.60 per hour based on 33 hours per week for 52 weeks.

[93]      The Director asks the court to order B.B. pay $400 per month towards the arrears of child support. If B.B. fails to make the payments as directed, he is to be incarcerated for five-to-ten days for each missed payment and these terms are to be served consecutively.

[94]      Ms. Oliver Dunbar submits that B.B. is not financially capable of paying $400 per month towards the arrears. As B.B.’s financial statements filed pursuant to FMEA and FLA indicate, B.B.’s only source of income since May 2017 has been social assistance. In 2018, B.B. earned $8,415 in social assistance, which averages to $701.25 per month. In 2020, B.B. earned $11,855 in social assistance, which averages to $987.92 per month.

[95]      B.B. has no assets and is in debt to ICBC in the amount of $124,545.44, and to R.K. and FMEP in the amount of $40,295.74.

[96]      NP Booth’s July 28, 2021 report and B.B.’s May 10/11, 2021 laboratory tests are alarming. His representations to NP Booth on June 8, 2021 that he no longer consumes opioids and has a job is hopeful, but not determinative of B.B.’s desire or ability to overcome his addictions.

[97]      B.B. is before the court today for a default hearing pursuant to s. 21 of the FMEA. This section reads as follows:

[98]      Ms. Oliver Dunbar submits B.B. is unable to pay any amount towards the arrears of child support because he is unemployed and dependent upon social assistance for his subsistence. B.B. cannot work because he suffers from a congeries of disabilities, including a tenacious opioid addiction and carpal tunnel syndrome to his right wrist.

[99]      Section 147(1) of the Family Law Act, S.B.B.C. 2011, c. 25, stipulates parents have a joint and ongoing obligation to support their children. The amount of child support is based not only on the parents’ earnings, but also on what they can earn. For this reason, the Guideline empowers the court to impute income for a payor parent who is intentionally unemployed or under-employed. This does not require a finding of bad faith on the part of the payor, only that the payor is not earning to capacity: Barker v. Barker, 2005 BCCA 177 at para. 19, cited with approval in Koch v. Koch, 2012 BCCA 378 at para. 3

[100]   Parents who are healthy and can work have a duty to seek employment: Van Gool v. Van Gool, 1998 CanLII 5650 (BCCA), supplementary judgment 1999 BCCA 188. The issue of what the court ought to do when parents make themselves unhealthy through the consumption of alcohol or drugs is thorny.

[101]   Section 2(3) of the Guidelines directs the court to determine issues relating to income based on the most current information available. This requires the court to ascertain, if possible, the payor’s estimated actual annual income in each year for which the quantum of support is being determined and to make support decisions based on that income: (V.(L.R.) v. V.(A.A.), 2006 BCCA 63 (BCCA); E.L. v. M.L, 2021 BCSC 835 (CanLII). In this case, B.B.’s income from social assistance is less than $12,000, which is below the low-income measure for one adult set out in Schedule II of the Guidelines.

[102]   Section 19 of the Guidelines permits the court to impute such amount of income to a parent as it considers appropriate in the circumstances. Before I could order B.B. to pay any significant amount on the arrears of child support, I would have to impute to him an income which is more than what he earns on social assistance.

[103]   In S.M.R. v. E.L.M., 2019 BCPC 236 (CanLII), Judge Malfair discusses the courts’ dichotomous approach to the issue of imputing income to a payor parent with a substance-addiction problem. Some courts have determined parents cannot be exempted from their child-support obligations because of drug addiction. Even though substance addiction may be perceived as an involuntary illness, its initial use is voluntary and therefore intentional: Hutchison v. Gretzinger, 2007 CanLII 57089 (ON SC). Other courts have held it is unreasonable to expect parents struggling with addiction to earn income at their full pre-addiction potential. Although their initial drugs may have been voluntary, their addiction can spiral out of control leaving them unable to work at their chosen profession: Kalanuk v. Michelson, 2010 SKQB 394; Lindsay v. Jeffrey, 2014 ONCJ 1, para. 39; Dunbar v Saunders, 2021 BCSC 193.

[104]   What is clear is that a payor parent must provide the court with persuasive evidence of the debilitating nature of a professed addiction: Kular v. Kular, 2018 BCSC 1715 (CanLII). In S.J.E. v. L.M.E., 2016 BCSC 2579, Madam Justice Ballance addressed the evidence necessary to establish the impact of a substance-abuse disorder. She said:

[105]   To corroborate his claim, B.B. has provided the court with the medical report of NP Booth and his urinalysis tests for May 10 and 11, 2021. I accept NP Booth’s report as compelling medical evidence that B.B. is struggling from an entrenched addiction. I also accept that B.B.’s primary source of income since 2017 has been social assistance. This does not mean I accept that B.B. is incapable of working in any capacity. Still, as in Lindsay v. Jeffrey, I accept the courts now view alcoholism and drug addiction as illnesses requiring treatment rather than objectionable conduct based on individual choice.

[106]   Although I do not accept B.B.’s addictions absolve him from all responsibility, this is not the extent of B.B.’s problems. B.B. has provided corroborative medical evidence that he also suffers from a variety of physical and non-physical disorders. For example, B.B. has been diagnosed with carpal tunnel syndrome in his right wrist, which impairs his ability to work with tools such as welding equipment. Overlaying B.B.’s medical issues is his poverty, criminal record and lack of a driver’s licence. On the positive side, B.B. has maintained his Level A welding certification and has indicated to NP Booth he is working and abstaining from intoxicating drugs.

[107]   Although these are family law proceedings, I am mindful of Canada’s concern about the over-representation of Indigenous people in our prison system. Section 718.2(e) of the Criminal Code directs judges to use restraint in using prison as a sanction with respect to Indigenous offenders. R. v. Gladue, 1999 CanLII 679 SCC and R. v. Ipeelee, 2012 SCC 13, are the governing cases with respect to how s. 718.2(e) should be applied in the criminal context and establish the framework for sentencing Indigenous offenders. Because the Director is seeking B.B.’s incarceration in default of any payments, I believe these authorities must also guide the court’s analysis under the FMEA. This means I ought to consider the unique systemic and background factors which may have played a part in bringing B.B. before the court and the types of remedies that may be appropriate because of his particular Indigenous heritage.

[108]   The Supreme Court in Ipeelee held that judges may take judicial notice of the broad systemic and background factors affecting Indigenous people generally and case-specific information about the Indigenous offender fore them for sentencing. Generally, an offender’s Indigenous heritage is considered a special and mitigating factor for sentencing purposes: see Sheck v. Canada (Minister of Justice), 2019 BCCA 364 (CanLII).

[109]   The evidence before me suggests that the systemic and background factors affecting Indigenous people in Canadian society have likely impacted B.B. I have to consider whether some of his difficulties in maintaining his employment and sobriety arise at least in part from transgenerational trauma and substance abuse arising from the Indigenous peoples’ involvement with colonialism, displacement and residential schools. B.B. has experienced imprisonment in the criminal justice system, unemployment, addictions and ill health. I believe there is a strong possibility that these factors, both systemic within society and specific to B.B., have likely played a role in his antisocial behaviour.

[110]   I am also aware that B.B.’s former partner R.K. and his children J.B.B. and S.B.B. are also Indigenous and deserve equal consideration in this analysis. I am not convinced, however, that imprisoning B.B. for non-payment of arrears will improve their lot in life. It appears that B.B. may have charted a rehabilitative path for himself and I do not want to derail it to impose a punitive sanction which is unlikely to have a positive effect.

[111]   I am prepared to order B.B. make periodic payments of $100 per month to FMEP for the benefit of R.K. I am not, however, prepared at this time to reinforce that order with a jail sentence in default. I will order the matter return to court for a review after January 1, 2022.

[112]   B.B. will pay to R.K. the minimum sum of $100 per month starting October 1, 2021, continuing on the first day of each month thereafter until the arrears are paid in full or further order of the court.

[113]   The judicial case manager is to schedule a review of this matter after January 1, 2022.