Date: 19990118 Docket: A881580 Registry: New Westminster IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: SHARON MARIE EARLE PLAINTIFF AND: ROBERT ALLEN EARLE DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE MARTINSON Counsel for the Plaintiff: G. Brenda Kaine Robert Allen Earle: Appeared on his own behalf Place and Date of Hearing: New Westminster, B.C. December 2, 1998 INTRODUCTION [1] This is an application by Robert Earle relating to both maintenance for his two sons, Ryan, age 14, and Corey, age 13 and specified access to them. [2] With respect to maintenance he is asking for two things: a. That child support payments be varied to comply with the Federal Child Support Guidelines, and that b. Child support arrears be cancelled. [3] With respect to access, he is asking for half of the summer holidays, half of the Christmas holidays, all of Spring Break and Easter Friday until Easter Monday. He asks that Sharon Earle be responsible for the costs of access. BACKGROUND [4] The parties were married October 1, 1983 and they separated in 1988. They were divorced on June 22, 1990. The original order, made under the Domestic Relations Act on June 22, 1990, by consent, says that they are joint guardians of the children. The parties have joint custody with primary residence with her and reasonable access to him. He agreed to pay $350.00 per month per child. [5] Mr. Earle has since that time been an active and involved parent. [6] He had a new relationship with Lee-Anne Lloyd and their son Joshua Robert Earle was born September 21, 1989. They separated in 1991. He pays $300.00 per month for Joshua and is not in arrears on those payments. [7] Mr. Earle moved to Nanaimo in July 1993 and had, and continues to have, a relationship with his partner Heather Brennan. Extensive access to his sons continued. There were joint visits with Joshua. [8] In August 1996, Joshua moved to Stoney Plain, Alberta. A court order now gives Mr. Earle access to Joshua one half of the summer holidays, one half of the Christmas holidays, all of spring break and two separate seven-day periods, all at his mother's expense. [9] Sharon Earle moved to High Prairie, Alberta in January 1998 with her fianc‚ Brian Dunn and Ryan and Corey. Mr. Dunn found employment there. This was a decision made by her without consulting Mr. Earle. [10] It has been agreed that the issues should be determined in British Columbia, though Ms. Earle now lives in Alberta. DISCUSSION I. MAINTENANCE A. THE LAW THAT APPLIES [11] Mr. Earle did not have a lawyer to represent him at this hearing. In fact, many people who appear in Family Chambers to make applications like this one do not have lawyers. For his benefit I will set out some of the most important legal rules (principles) that are used to make decisions about child maintenance. Many of these rules are found in the Divorce Act or the Family Relations Act. Others have been stated by the Courts, including the British Columbia Court of Appeal. [12] I have considered the following cases of the British Columbia Court of Appeal: Turecki v. Turecki (1989), 35 B.C.L.R. (2d) 51; Reid v. Reid (1992), 40 R.F.L. (3d) 92 (B.C.C.A.); Heiden v. British Columbia Director of Maintenance Enforcement (1995), 16 B.C.L.R. (3d) 48; Cherry v. Cherry (1996), 24 B.C.L.R. (3d) 158; Johnston v. Johnston, [1997] B.C.J. No. 418 (QL); Weinstein v. Weinstein (1997), 38 B.C.L.R. (3d) 367; McIvor v. McIvor (1998), 48 B.C.L.R. (3d) 367; Ward v. Ward (1998), 37 R.F.L. (4th) 163; Wang v. Wang (1998), 164 D.L.R. (4th) 146; McLaughlin v. McLaughlin (30 October 1998), Vancouver No. CA023706; Thorne v. Thorne (26 November 1998), Vancouver No. CA024202. [13] I have also considered the following cases: Haisman v. Haisman (1994), 7 R.F.L. (4th) 1 (Alberta Court of Appeal, leave to appeal to the Supreme Court of Canada refused), which has been cited with approval by the British Columbia Court of Appeal in Heiden and Johnston; Willick v. Willick, [1994] 3 S.C.R. 760 (Supreme Court of Canada); Dithurbide v. Dithurbide (1996), 23 R.F.L. (4th) 127 at 136, (British Columbia Supreme Court); and Jones v. Anhorn (5 May 1998), New Westminster E003954 (British Columbia Supreme Court, under appeal). [14] It is not the role of Judges of the Supreme Court and Judges of the Provincial Court to change these legal rules. Instead, their role is to see how the rules apply to the cases that come before them. 1. CHILD SUPPORT - BASIC PRINCIPLES [15] Three fundamental principles apply to all child support applications, including the first decision about what payments should be made, applications to vary or change that amount, and applications to cancel or reduce arrears. a. Joint Legal Obligation [16] Parents have a joint and ongoing legal obligation to support their children. It is considered such an important obligation that a divorce cannot be granted until parents make satisfactory arrangements for the care of their children. b. Right of the Child [17] It is the child, not the parent with custody, who has the right to maintenance. This has long been the case and has been confirmed in the Federal Child Support Guidelines. The first objective of the Guidelines is 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. c. Ability to Pay [18] The payment of maintenance is based on ability to pay. That means that it is based not only on what the parent does earn, but also what the parent can earn. The result is that parents have a legal obligation to earn as much as they are capable of earning to meet their obligation to support their children. 2. VARIATION - BASIC PRINCIPLES [19] Before a judge can change a maintenance order that has already been made, there has to be a material change of circumstances since the original order was made. That is, the change must be of the kind that, if known by the judge when the last order was made, would have resulted in a different order. The change must be significant and long lasting. Otherwise, there will be uncertainty, which is not in the best interests of children. [20] A judge does not have to change an order granted before the Guidelines came into force, to conform with the Guidelines just because a parent asks. Instead, an order will only be changed where the arrangements the parents or a previous court made are seen as unreasonable when compared with the arrangements that would result from the application of the Guidelines after taking into account all the relevant factors. 3. ARREARS - BASIC PRINCIPLES [21] The cancellation or reduction of arrears of maintenance is a form of variation. There are two points that have to do with arrears that should be kept in mind. a. Significant Change [22] Because cancellation or reduction of arrears is a form of variation, there is a substantial onus (a heavy duty) on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances. [23] The courts are generally reluctant to reduce or to cancel arrears. Under the Family Relations Act arrears will not be reduced or cancelled unless it is grossly unfair not to do so. This principle is similar to the one applied to the Divorce Act, which requires a material and long lasting change. b. Postponement of Payment or Payment over Time [24] The second important point is that just because the arrears are not cancelled does not mean that they have to be paid right away. The court has the right to postpone payment for a reasonable period of time or make reasonable terms for payment, if it seems appropriate, taking into account all the circumstances of a case, including the present financial circumstances of the person required to pay. This would only be done when there has been a complete disclosure of the financial situation of the person asking for a postponement of payment or to pay over time. 4. COMMON ARGUMENTS MADE TO CANCEL OR REDUCE ARREARS [25] I will now consider a number of specific arguments that are often made to the courts on applications to cancel or reduce arrears and give the legal rules that apply to those arguments. a. "I cannot afford to pay now" [26] Not being able to pay now is not a valid legal reason to cancel or reduce arrears. They will only be cancelled if the person is unable to pay now and will be unable to pay in the future. b. "I could not pay when I was supposed to because my financial circumstances changed" [27] People making this argument have a heavy onus. It is not good enough just to say that they could not pay because they earned less. They can only get a reduction or a cancellation of arrears if they present detailed and full financial disclosure, under oath (usually in the form of an affidavit) that: i. the change was significant and long lasting and ii. the change was real and not one of choice and iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful. [28] The requirement that the information be under oath is an important one. A decision to cancel or reduce arrears can only be made on reliable, accurate and complete information. The Rules of the Supreme Court say that this can only be made based on sworn evidence unless a judge says otherwise. No judge will allow evidence that is not reliable and accurate. [29] If there is no such sworn evidence, it is as if the judge has no evidence at all on which to base a reduction or a cancellation of arrears. [30] Evidence cannot be hearsay either. That is, the person asking for a cancellation or a reduction of arrears cannot say in an affidavit that somebody else told him or her something important about the arrears. That other person has to swear an affidavit setting out the information. For example, the person asking for the reduction or cancellation cannot swear an affidavit and put in the affidavit a letter from his or her employer saying he or she is earning less. That letter is not under oath. Instead, the employer has to swear an affidavit explaining that the person is earning less and why. [31] Wilfully providing false information about financial circumstances under oath, in an affidavit or otherwise in a court proceeding is a crime under s. 131 of the Criminal Code, with a maximum sentence of fourteen years imprisonment. c. "I could not pay when I was supposed to because I had new obligations" [32] This raises questions of priority. Which obligations come first? It is often argued that the person required to pay has a second family. The law is clear that responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family. [33] In any case, clear evidence, under oath would be required to determine what the new obligations were so that it can be decided whether they are obligations that should take priority over child maintenance obligations. Few do. d. "My former spouse (partner) delayed in coming to court to enforce payment" [34] Delay in enforcement is not, in itself, a relevant factor. There are two reasons for this. First, a child cannot waive his or her right to maintenance, nor can a parent with custody make such a waiver on behalf of a child. Second, very often, all of the resources of the parent with custody -- financial, physical and emotional -- are used up in caring for the child. That parent is not in a position to bring enforcement proceedings. [35] A court may consider delay as a factor if the person required to pay can show that the delay has prejudiced him or her in some material way. In order to establish prejudice however, the person required to pay must show not only that he or she could not pay at the time of the application, but also that he or she is unlikely to be able to pay in the future. e. "My former spouse (partner) will get a windfall" [36] This is sometimes called the rule against hoarding. The law is now clear that it does not apply to the payment of child support arrears. This is because the rule against hoarding invites the person required to pay to disobey the court order directing him or her to pay. It assures the person that if he or she can avoid making those payments for long enough, a court will vary the order for payment so as to reduce or eliminate any arrears. This is contrary to public policy. [37] The rule also does not apply because the courts feel that the obligation to pay arrears of maintenance should be enforced in fairness to the parent with custody who has had to bear a disproportionate part of the child rearing expenses. It is also in recognition of the important principle that parents are jointly responsible for child support, and that this responsibility cannot be avoided by delay. f. "The children have not suffered because others provided assistance" [38] This argument suggests that no harm has really been done. This has also been rejected by the courts. A variation order that reduces or eliminates arrears of maintenance of a child because someone else has provided this financial support, does not recognize the financial obligation of the person against whom the order was made to maintain the child. Such a variation order is inconsistent with the Divorce Act. g. "My child does not need the money now" [39] This is like the last argument. It also has been rejected. If the quality of life of the child has been diminished, it may be appropriate to compensate the child. This could be done directly by payment to him or her, or indirectly by payments to the parent with custody, for the child. h. "My former spouse (partner) agreed that I did not have to pay" [40] This argument has been rejected by the Court of Appeal as well. Even if such an agreement exists, it could not be relied upon or enforced because it purports to deny the children the right to support from the person who does not have custody. i. "My former spouse (partner) prevented me from having access" [41] It has been decided that lack of access between a parent and child is not a proper factor to be taken into consideration in determining whether arrears of maintenance should be reduced. The joint and ongoing obligation to maintain the child remains. j. "I spent a lot of money on my children, even though I was not paying all that was required by the Court Order" [42] This does not provide a valid legal excuse for not paying maintenance and does not provide a reason for reducing or cancelling arrears. Maintenance for children is required for many reasons and it is up to the parent who is entitled to receive it, not the person who is required to pay, to decide how it should be spent in the best interests of the children. k. "I did not have legal advice when the order was made or during the time when the payments were not made" [43] The fact that a person did not have legal advice when the order was made or during the time when the arrears added up, is not, by itself, a reason to reduce or cancel arrears. 5. EFFECT OF THE GUIDELINES [44] Some of the provisions of the Divorce Act and the Family Relations Act relating to applications to vary child maintenance have changed to bring them in line with the Guidelines. I however conclude that the basic principles I have referred to still apply. [45] For example, section 26.1(2) of the present Divorce Act maintains the basic criteria relied upon in the former cases, that is, joint financial obligation of the parents and payment based on ability to pay: 26.1(2) The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation. This emphasis on the joint responsibility of parents was reaffirmed by the Court of Appeal in Wang. MAINTENANCE - SUMMARY [46] These basic principles can be summarized this way: 1. Maintenance Generally a. Parents have a joint and ongoing legal obligation to support their children. b. It is the child, not the other parent, who has the right to maintenance. c. The payment of maintenance is based on not just what a parent does earn but what a parent can earn. 2. Variation a. There has to be a material change of circumstances, a change that is significant and long lasting. b. A change to the Guideline amount is not automatic. 3. Arrears Basic Principles a. There is a heavy duty on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances. Arrears will not be reduced or cancelled unless it is grossly unfair not to do so. b. If arrears are not reduced or cancelled, the court can order a payment plan over time if convinced the arrears cannot be paid right away. Examples a. Arrears will only be cancelled if the person is unable to pay now and will be unable to pay in the future. b. A reduction or a cancellation requires detailed and full financial disclosure, under oath (usually in the form of an affidavit) that at the time the payments were to be made: i. the change was significant and long lasting and ii. the change was real and not one of choice and iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful. c. Responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family. d. Delay in enforcement is generally not a legal basis to cancel or reduce child support arrears. e. Judges will not cancel arrears because the other party gets a lot of money at once. Otherwise, people would be encouraged to not pay maintenance and rewarded for not paying maintenance. f. Judges will not cancel arrears because the children were looked after in spite of the non payment. g. Nor will judges cancel arrears because the children no longer need the money. The children should be compensated for what they missed. h. An agreement between parents that the maintenance for the children does not have to be paid will not be considered. i. Lack of access between a parent and child is not a legal reason to reduce or cancel arrears. j. Judges will not reduce or cancel arrears because other money has been spent to buy things for the children. k. The fact that a person did not have legal advice when the order was made or during the time when the arrears added up, is not, by itself, a reason to reduce or cancel arrears. B. THE LAW APPLIED TO THE CIRCUMSTANCES OF THIS CASE [47] I will now deal with how the law should be applied to this case. In spite of the original order requiring payment of $700.00 per month, Ms. Earle agreed orally to reduce the amount to $400.00 per month in September, 1990, just three months after the order was made. The arrears she says are now owing is based on the $400.00 a month amount. The total amount owing is $21,400.00. [48] Mr. Earle is now self-employed and operates a pressure washer business. He says his present average income is $6,801.66, which would not require any payments under the Guidelines. He says however that he is not "shying away from paying what he is now paying", being $200.00 per month. [49] He explains his reasons for changing the maintenance and cancelling the arrears this way in his affidavit: My income has dramatically decreased in the last eight years and my average annual income for the last three years is $6,801.66. An order for increased child support ... would cause undue hardship on myself, wife and custodial family. My personal income tax returns for the tax years 1995, 1996, 1997, do not include $2400.00 per year in child support payments that I paid to the plaintiff. These payments were deductible under the pre-May, 1997, provisions. I did this to ease the tax burden on the plaintiff. If I am ordered to pay the arrears, I will refile my tax returns for the applicable years. I have a third child, Joshua Robert Earle, that I currently pay $300.00 per month to support. I am not in arrears on these payments ... I recognize the responsibility of supporting my children. I am willing to increase support payments as my financial situation improves. I am willing to provide tax assessments annually, and have the child support payments adjusted based on this information. That [in June 1990] my gross income was approximately $40,000.00 annually. ... That I was unemployed for approximately seven months in both, 1991 and 1993. ... That as my income decreased during subsequent years, I continued to make child support payments to the plaintiff in the amount of $200.00 per month. I paid this amount on the first of every month. That I have contributed to the various additional expenses for Ryan and Corey, such as: school clothing, school trips, haircuts, sports equipment, motor bike purchase, and repairs, etc. That the plaintiff has had two live-in relationships since 1990, and that the children have not suffered due to financial difficulties. That the plaintiff has purchased homes on three separate occasions between 1990 and 1998. That I wish I would have applied to the courts for a variance much earlier. I was hoping that my financial situation would improve to the point that I could gradually increase my support payments. As well, I feared that an initiation through the Courts to reduce child support payments would inspire a rift between the plaintiff and myself. [50] It is argued on behalf of Ms. Earle that the existing order should not be varied because there has not been a material change in circumstances. The sum of $100.00 per month per child, the amount he is asking to pay, is only a minimal amount. Joshua is receiving $300.00 a month. [51] It is also argued that Mr. Earle has failed to show that it would be grossly unfair not to cancel the arrears. Ms. Earle says there has already been a significant accommodation with respect to the arrears because Ms. Earle is only asking for the $400.00 amount she agreed to in September 1990, rather that the significantly higher amount that is actually owing based on the original order. She has been operating on the premise that those arrears would ultimately be paid. [52] It is further argued that a look at the financial information provided with respect to Mr. Earle's pressure washer business shows that many expenses should be added back into his income for the purpose of assessing his Guideline income. If that is done, the monthly payments would be approximately $400.00 per month. Variation: [53] Taking into account all of the relevant factors as outlined above, I am not satisfied that the original order, which I will treat as being for $200.00 per month per child, should be varied. [54] A realistic assessment of his Guideline income, as suggested by Ms. Earle, would in my view result in child support payments in approximately the same range. The original arrangements are not unreasonable, particularly in view of the fact that they were by consent and an early accommodation of a reduction of $150.00 per month per child was made. [55] $200.00 a month for a teenage boy is not a significant amount of money, considering the nature of child care costs for children the ages of Ryan and Corey. It is worthy of note that $300.00 a month is being paid for Joshua. It has not been shown that Mr. Earle does not have the ability to earn an income to support those payments. [56] Mr. Earle is to begin paying a total of $400.00 per month on February 1, 1999. Arrears [57] I have also concluded that the maintenance arrears should not be cancelled. This conclusion is in keeping with the direction the Court of Appeal has given. It would not be grossly unfair not to cancel the arrears. I have carefully considered the reasons advanced by Mr. Earle for not paying all of the maintenance owing. Though he was not working at all times, I am satisfied he had the ability to earn money to pay the order in question. [58] Mr. Earle has a significant financial responsibility toward his children. The Court of Appeal has made it clear that the fact that others have relieved him of that responsibility is not a reason that the obligation should be cancelled. In this case, there is optimism that he will in future be able to repay the arrears. [59] Though I have found that the arrears should not be cancelled, there is no application before me to enforce payment at this time. Ms. Earle, in fact, is not asking for immediate payment. Given Mr. Earle's present financial circumstances and taking into account that he will now be paying $700.00 a month maintenance, enforcement will be suspended for a period of at least one year. [60] Mr. Earle has shown himself to be a concerned and involved father and I expect that he will continue to do so. Attending to these financial obligations to his sons constitutes an important part of his ongoing role as an involved parent. II. ACCESS [61] It is evident that over the years both parents have recognized the importance of each of them playing a significant role in the lives of their children. They still recognize that. The only issue facing them is how that should happen, given that they now live in different provinces. [62] Ms. Earle would prefer to leave the arrangement flexible. Given the age of the boys, she feels that they will have activities that are not easy to predict. [63] Mr. Earle thinks that being specific will work better. It will give everyone a chance to plan, and will allow him to coordinate visits when he has Joshua as well. It will ensure maximum access. [64] Mr. Earle thinks that Ms. Earle should pay for the visits as it was her decision to move. Ms. Earle says that it is not necessary to order that she pay the cost of the visits. So far she has been doing that. She argues that the issue of costs should be left to be decided as each visit arises. [65] Neither parent is being unreasonable in the view they take about specified access in the particular circumstances of this case. However, since they cannot come to an agreement, I will have to decide for them. In my view the access should be specified as it provides some certainty for all involved and allows coordination of the visits with Ryan and Corey's brother Joshua. It will be specified as follows: - July 27th to August 31st each year - December 27th (no later than noon) to noon the day before school starts in January - Spring Break (no later than noon on the first full day of Spring Break to no later than 4:00 p.m. on the last day of Spring Break) - Easter Friday until Easter Monday. [66] The timing of the access can be changed only by the written agreement of the parties or further order of the court. Ms. Earle will be responsible for the cost of transportation. CONCLUSION [67] In summary, the application to vary the existing maintenance order is denied. Maintenance will continue at $200.00 per month per child. The application to cancel the arrears is denied. The amount of the arrears is set at $21,400.00. The application for specified access is granted as set out above. There will be no costs. "MARTINSON J." The Honourable Madam Justice Martinson