COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

McCaffrey v. Paleolog,

 

2011 BCCA 378

Date: 20110922

Docket: CA038153

Between:

David Thomas McCaffrey

Appellant

(Plaintiff)

And

Maryla Dawn Paleolog also known as Maryla Dawn Cutcliffe

Respondent

(Defendant)

Before:

The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Bennett

On appeal from:  Supreme Court of British Columbia, May 3, 2010,
(McCaffrey v. Paleolog, 2010 BCSC 627, Prince George Docket No. 0524809)

Counsel for the Appellant:

J. Cluff

Counsel for the Respondent:

S. Aldinger

Place and Date of Hearing:

Vancouver, British Columbia

June 20, 2011

Place and Date of Judgment:

Vancouver, British Columbia

September 22, 2011

Written Reasons by:

The Honourable Mr. Justice Chiasson

Concurred in by:

The Honourable Mr. Justice Frankel
The Honourable Madam Justice Bennett

Reasons for Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1]             This appeal considers what applications are appropriate and what determinations must be made when a mother, who has been ordered to make child support payments for children of a previous relationship subsequently elects not to work in order to remain at home to care for a newborn child and her two-year old sibling. This appeal also examines the application of s. 19(1)(a) of the Federal Child Support Guidelines [the Guidelines] in such circumstances. Section 19(1)(a) states:

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

Background

[2]             The appellant father and the respondent mother, who is a veterinarian, lived in a marriage-like relationship from 1997 to 2002. They had two children. Subsequently, both married other people.

[3]             Initially, the mother had custody of the children and the father paid child support. The mother had a Guideline income of $90,000 from her veterinary practice and the father had a Guideline income of $52,500. On May 2, 2006, Master Baker ordered child support payable by the father to the mother based on this income.

[4]             The parties entered into a separation agreement but when, in 2005, the father learned that the mother intended to move to the United States with her new husband, he began the present litigation.

[5]             As a result of a settlement conference, a consent order was made on October 25, 2006 by Meiklem J. That order gave the father custody of the two children. His obligation to pay child support was rescinded and no child support was ordered to be paid by the mother. This order also dealt with all of the outstanding issues between the parties.

[6]             The mother permanently moved to the United States with her new husband on May 16, 2007 after their first daughter, Natalia, was born in January 2007.

[7]             The parties brought applications before the Court in May and June, 2007. These were heard over several months. The next order of substance was made on February 14, 2008 [2008 BCSC 178]. The father had sought child support from the mother based on an imputation of income. The mother argued that income should not be imputed and that her child support should be based on her actual income, which, because she was not working due to the birth of her daughter, consisted of employment insurance benefits from her employment in Canada.

[8]             The chambers judge concluded that 15 months was an appropriate time for the mother to be unemployed while attending to her child. He ordered that she pay child support in the amount of $238 per month based on her income from employment insurance from January 5, 2007 to March 31, 2008. In his reasons, the chambers judge stated that “the issue[s] of child support and extraordinary expenses that have been sought, but not ... established on the evidence can be brought before the court by way of requisition at the expiration of the 15 month period” (para. 23). He ordered that these issues “be brought before the court as soon as practicable after March 30, 2008” (para. 35). The February 14, 2008 order was not appealed.

[9]             On June 10, 2008, Chamberlist J. ordered that the mother pay “interim-interim child support” in the amount of $925 per month.

[10]         The next relevant applications dealing with child support were heard in August and September 2008. At this time the mother was pregnant with her second child. It appears that she failed to disclose this to the court or to the appellant father.

[11]         The mother chose not to work full-time because she wished to be free during her access time with her older children. As a result, the chambers judge, in reasons released February 26, 2009 [2009 BCSC 242], concluded that she was under-employed and imputed income to her in the amount of $87,440 US, based on an income of $90,000 US less business expenses. This was equated to $88,725.37 CAD. The chambers judge ordered that child support be set at $1,299 per month, retroactive to April 1, 2008 to be adjusted annually based on the exchange rates between the Canadian and United States dollars.

[12]         The next step in the litigation resulted in the order under appeal. In June 2009, the father filed a notice of motion seeking, among other things, enforcement of arrears of child support. The mother filed a motion in response in September 2009 seeking to suspend the application for enforcement of arrears until December 2010 and to suspend her obligation for child support from December 1, 2008 until February 28, 2010.

[13]         As noted above, the mother was pregnant when the application for imputed income was heard. This child, Charlotte, was born on January 7, 2009. Her application for the “suspension” of child support was brought eight months after the child was born. A hearing was held in October 2009 and on May 3, 2010, the chambers judge acceded to her request and granted the mother another 15 month hiatus from her child support obligations to her first family [2010 BCSC 627].

[14]         The May 3, 2010 order also suspended payment of arrears, increased child support to $1,417.21 commencing March 1, 2010 (an adjustment due to the exchange rate between United States and Canadian funds) and ordered the mother to deliver post-dated cheques to the father.

[15]         The only issue pursued on appeal was the order suspending child support payments.

Reasons of the chambers judge

[16]         The judge referred to his February 14, 2008 decision, in which he had concluded that suspending existing child support obligations for 15 months was appropriate. He then stated:

[11]      In my reasons of February 14, 2008, I had reviewed applicable law with respect to whether or not the defendant mother should be relieved of paying full child support based on her income when at that time all that she was receiving was $413.00 per week, or approximately $16,000.00 per year as a result of maternity leave benefits from the federal government. In that decision I reviewed case law including Savoie et al v. Lamarche, [1990] 71 D.L.R. (4th) 481 and Omah-Maharajh v. Howard, 1998 ABQB 81. As a result of my review of those decisions I determined that 15 months would be appropriate for suspension of the existing child support obligations and I reduced child support payments up to March 31, 2008 and ordered monthly support payments in the amount of $238.00 based on the Child Support Guidelines for an income of $16,000.00 for two children. At that time I also found that there was insufficient evidence before me to impute income which resulted in my 2009 order as aforesaid.

[12]      It is as a result of the defendant’s second child that she seeks a similar order to that which I granted with respect to the birth of her first child.

[13]      The plaintiff father submits that by virtue of s. 19(1) of the Child Support Guidelines the defendant mother has not provided enough evidence upon which I could find that I should follow the rationale contained in my previous order relating to abatement of child support.

[14]      I have considered s. 19(1) again in light of the plaintiff father’s submissions and I have come to the same conclusion I did with respect to the birth of her first child.

[15]      Regretfully, I am unable to accede to the plaintiff father’s request. I say regretful as the birth of the defendant’s newest child has had the effect of loading on Mr. McCaffrey and his present wife the full financial burden of raising the biological children of the plaintiff and defendant. This is contrary to the intent of the Family Relations Act and the Federal Child Support Guidelines which have been adopted as guidelines under our British Columbia Family Relations Act. However, societal requirements for the first needy months following the birth of a child cannot be ignored. The federal government of this country has recognized that by putting into force laws (Employment Insurance Benefits) that provide for maternity leave with benefits.

[16]      Regretfully, the affidavit material provided by the defendant sets out that she is not eligible for any paid maternity leave or any other paid employment leave as her then present employment did not provide for any paid benefits at any time and there are no government sponsored maternity benefits available to her as a resident of United States of America. In her affidavit #17, sworn May 12, 2009, she has sworn that it is her intention to take at least 12 and up to 15 months of unpaid leave from employment to care for the new baby and her two year old sister, and plans to return to work in or about January 2010 if she is able to secure employment at that time.

[17]         Reluctantly, the judge ordered the suspension of child support payments for the period of December 1, 2008 to February 28, 2010.

[18]         It is apparent that the focus of the parties and the judge was on the needs of the child exception in s. 19(1)(a) of the Guidelines. There was no suggestion that the mother’s unemployment was required by her reasonable educational or health needs.

Positions of the parties

[19]         The father contends that the judge misapplied the law in his consideration of s. 19 of the Guidelines. He asserts that the judge’s order violates the general rule that “a parent cannot avoid child support obligations by a self-induced reduction of income” because the mother did not establish that the needs of her two new children required her not to work for 15 months.

[20]         The mother relies on jurisprudence from the Province of Alberta and asserts that if she falls within one of the exceptions provided for in s. 19(1), the court should not impute income to her. She contends that maternity leave programs in contracts and legislation make it clear that, as a matter of policy, parents are encouraged to be at home with newborn children and that this engages the s. 19(1)(a) exception.

Discussion

The proceedings

[21]         It is important to place the order under appeal into context.

[22]         For the purposes of this appeal, the story began with the father’s application on May 11, 2007 for an order imputing income to the mother. In his February 14, 2008 order, the judge refused to impute income as requested and ordered the mother to pay child support for 15 months, from January 5, 2007 to March 31, 2008, based on her employment insurance benefits. The judge explained this decision in para. 5 of his February 26, 2009 order, stating, “I had determined not to impute income but rather fix a period of 15 months during which [the mother] would pay child support based on the employment benefits she was receiving”.

[23]         The judge also addressed this matter in para. 11 of his May 3, 2010 reasons quoted above. The cases to which the judge referred both involve s. 19 of the Guidelines and the question of whether income should be imputed. There appears to be a link between the February 14, 2008 order and the suspension order presently under appeal dealing with the exception provided for in s. 19(1)(a) of the Guidelines. In my view, conceptually this may have created a problem in this case.

[24]         Having rejected the father’s application to impute income because the evidence was insufficient to do so, in his February 14, 2008 order the judge set the level of child support on the basis of the mother’s actual income. He made no finding that the needs of Natalia required this adjustment. In the earlier proceeding and in the present situation, ordering a suspension of child support based on the s. 19(1)(a) exception did not take into account the nature of the mother’s application before the court, which was to vary an existing child support order.

[25]         Prior to the February 26, 2009 order, matters concerning child support were temporary and open. This is evident from the February 14, 2008 order in which the judge directed that the issue of child support be brought back to court as soon as practicable after the period of child support he fixed expired.

[26]         The February 26, 2009 order imputed income to the mother and set child support at $1,299 per month. The difficulty in this case is that the parties and the court seem to have proceeded on the basis that the application which led to the order under appeal was merely another chapter in an ongoing saga involving imputation of income. Once the February 26, 2009 order was made, the first book was closed. The level of child support was established. It could be changed only on a motion to vary pursuant to s. 20 or s. 96(1) - (2) of the Family Relations Act, R.S.B.C. 1996, c. 128 [the FRA] which requires a finding that there has been a change in circumstances, or, perhaps, under s. 10(1) of the Guidelines, which requires a finding of undue hardship.

[27]         The relevant provisions in the FRA read:

20  Subject to this Act, if a court has made an order under this Act, except an order under Part 5 [Matrimonial Property] or 6 [Division of Pension Entitlement] , the court may, on application, vary or rescind the order if circumstances have changed since the order was made or last varied.

...

96  (1) If an application is made to vary or rescind a maintenance order not described in subsection (1.1), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any.

(1.1) To vary or rescind a maintenance order as defined in section 87 respecting the obligation under section 88 to support and maintain children, a court must

(a) be satisfied that a change in circumstances as provided for under the child support guidelines has occurred since the making or last variation of the maintenance order, and

(b) if satisfied that a change in circumstances as provided for under the child support guidelines has occurred, apply only the child support guidelines to determine the change of the amount of the maintenance obligation under the order.

(2) If an application is made to reduce or cancel arrears under a maintenance order, the court may reduce or cancel the arrears but only if it is satisfied that it would be grossly unfair not to do so.

[Emphasis added.]

[28]         The “change in circumstances as provided for under the child support guidelines” refers to s. 14 of the Federal Child Support Guidelines, SOR/97-175, which, as adapted by s. 1(3)(o) of the Child Support Guidelines Regulation, 61/98, states:

14. For the purposes of section 96(1.1) of the Family Relations Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

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

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

[29]         Section 10 of the Guidelines reads:

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

[30]         The material before this Court does not make it clear whether the mother stopped making child support payments at some time prior to her application to suspend payments. It does appear that she made payments in amounts less than ordered on February 26, 2009. It may be that the appropriate application would have been for cancellation of arrears under s. 96(2), which requires the court “to be satisfied that it would be grossly unfair not to do so”.

[31]         No application under s. 10 of the Guidelines or under ss. 96(1.1) or 96(2) of the FRA was made.

[32]         Because the parties were never married, this is not a proceeding under the Divorce Act, R.S.C. 1985, c. 3, a fact clearly recognized by the parties as evidenced by their pleadings, which state that the matter is a proceeding under the Family Relations Act, R.S.B.C. 1996, c. 12. In her September 17, 2009 notice of motion the mother relied on ss. 15, 16 and 17 of the Divorce Act. Section 17 of that legislation gives a court the authority to vary, rescind or suspend an order. Sections 20 and 96 of the Family Relations Act refer only to rescinding or varying an order. Both acts require a change in circumstances. The jurisprudence makes it clear that the change must be material: Willick v. Willick, [1994] 3 S.C.R. 670; Bockhold v. Bockhold, 2006 BCCA 472.

[33]         The mother applied to suspend the February 26, 2009 order. As noted, the Act does not refer to suspension. Assuming, for purposes of this appeal, that the mother’s “suspension” application constituted an application to vary the February 26, 2009 order, the first question would have to be whether there was a change in circumstances.

[34]         The birth of a child in a second relationship may be a change in circumstances, but not necessarily. In this context, a determination as to whether there has been a change of circumstances requires some evidence. The burden in this case was on the mother. In considering that burden the court must take into account s. 88 of the Act and the fact that the interests of the children of the first relationship are at issue. Section 88 provides:

Each parent of the child is responsible and liable for the reasonable and necessary support and maintenance of the child.

[35]         The chambers judge essentially followed the path established by his February 14, 2008 order. Although that order was not appealed, it derived from a consideration of s. 19(1)(a) of the Guidelines, but there was no specific finding that the needs of Natalia required the mother to be unemployed for 15 months. The only evidence to which the judge referred was the mother’s assertion that she intended to breast-feed the child. In addition, as will be discussed below, the chambers judge relied on case authorities which have not been followed in British Columbia.

[36]         In the present application, the mother stated in her affidavit that it was not feasible for her husband “to take time off work to parent our children full time” and she deposed that there was a one-year wait for daycare. The evidence of her husband’s availability was uncontradicted, but the court had little or no information concerning the feasibility of in-home care, full or part time, or regarding the financial circumstances of the mother and her husband.

[37]         The mother’s evidence on this point is found in paras. 17 and 18 of her September 17, 2009 affidavit:

My husband’s [sic] is not able to take time off work to parent our children full time. There are no government sponsored employment insurance options available to my husband in the United States and his employer does not offer him any parental leave benefits. Further, my husband is required to travel for work purposes with some regularity. By way of example, my husband traveled outside the United States on five occasions in 2008 for the purpose of meetings and conferences.

The costs of enrolling Natalia and Charlotte in the childcare centre that I used for Natalia last year would be approximately $925 per month. I am advised that the wait list to enter the centre is approximately one year for a spot for an infant. The costs and wait lists of this facility are comparable with other facilities that I investigated when I initially enrolled Natalia in childcare. I have not been able to locate any licensed facilities in my community that offer part time care.

I have a little difficulty with this evidence.

[38]         In para. 7 of her October 8, 2009 affidavit, the mother deposed that her daughter Natalia “was enrolled in full time daycare for the entire period that I was employed in Texas (from January to December 2008)”. Natalia was born in January 2007. This means that the mother remained at home with her for 12 months, not the 15 months she obtained by the February 14, 2008 order and the order presently under appeal.

[39]         In addition, the mother moved to Texas on May 16, 2007. Natalia was put into daycare seven and one-half months later. If there was a year’s delay in obtaining a place at daycare, it would appear that by forethought the mother was able to abridge it. She knew daycare would be required as soon as she became aware she was pregnant with Charlotte.

[40]         It may be that the mother took Natalia out of daycare because she was going to be at home once Charlotte was born, but there was no evidence as to why daycare could not have been arranged for the two girls in advance of the time when they would attend. It is apparent that the mother need not be unemployed to care for Natalia because she was in daycare from the age of one year.

[41]         I do not consider that the evidence available to the judge was sufficient to allow him to determine whether there was a change in circumstances sufficient to vary the February 26, 2009 order and certainly not to find undue hardship or to be satisfied that failing to cancel areas of maintenance would be grossly unfair.

[42]         In this case, the parties and the court appear to have dealt with an application to vary under the rubric of imputed income. The judge ordered a suspension based on the exception in s. 19 of the Guidelines. This was done reluctantly on the basis that the mother was entitled to an hiatus based on maternity leave entitlement in the public and private sectors and was anchored on a previous order for which there appears to have been little or no evidentiary basis.

[43]         In my view, the correct approach required in this case would involve the following:

a.       an application should/would be brought by the mother to vary the February 26, 2009 order based on changed circumstances, hardship or cancellation of child support arrears required to avoid gross unfairness;

b.       the burden of establishing either changed circumstances, hardship or gross unfairness would be on the mother;

c.       if the mother seeks to establish that child support should be varied and no income should be imputed based on the needs exception in s.19(1)(a) of the Guidelines, she would need to adduce evidence to establish that her unemployment is required by the needs of Natalia and Charlotte;

d.       any period of reduced child support based on the needs exception in s. 19(1)(a) should reflect not periods of maternity leave in the public and private sector, but should be based on evidence addressing the circumstances of the mother and the needs of her children.

[44]         The final factors derive from my consideration of the application of s. 19 of the Guidelines, to which I now turn.

Analysis of s. 19

[45]         A starting point in an analysis of s. 19 of the Guidelines must be s. 88 of the Family Relations Act, which is the legislation applicable to the parties’ relationship. I repeat it:

Each parent of the child is responsible and liable for the reasonable and necessary support and maintenance of the child.

[46]         In addition to the law referenced in his February 14, 2008 reasons, the judge also examined the law relevant to s. 19 in his February 26, 2009 reasons, in which he imputed income to the mother:

[34]      Dealing with s. 19(1) (a), it has been held that a parent’s desire to be available for children before and after school is not a sufficient reason to justify under-employment in the absence of a child’s special needs, and income can be imputed to that parent. (Llewellyn v. Llewellyn, 2002 BCCA 182)  Similarly, in Van Gool v. Van Gool (1998), 44 R.F.L. (4th) 314 (B.C.C.A.), the Court held that a parent is expected to take reasonable steps to find employment commensurate with that person’s age, health, education, skills, and work history.

[35]      In this case Mr. McCaffrey has cited the decision of our Court of Appeal in Watts v. Willie, 2004 BCCA 600. In that case, after referring to s. 19(1) (a) of the guidelines, the Court said this at para. 16:

16        In Donovan v. Donovan (2000), 190 D.L.R. (4th) 696, 2000 MBCA 80, Madam Justice Steel gave the judgment of the court and wrote at para. 21:

            The following guidelines may be considered when determining whether to impute income. (See Dr. Julien D. Payne, Imputing Income, “Determination of Income, Disclosure of Income”, Child Support in Canada, Canrab Inc., August 3, 1999).

1.         There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is “no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor” (Van Gool v. Van Gool (1998), 166 D.L.R. (4th) 528 (B.C.C.A.)).

2.         When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.

3.         A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.

4.         Persistence in unremunerative employment may entitle the court to impute income.

5.         A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

6.         As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.

[Emphasis added by the chambers judge.]

[47]         In Llewellyn, this Court, following Van Gool, made it clear that a payor parent must establish that the needs of a child require the parent to stay home. In para. 31, Madam Justice Huddart stated:

I have been unable to find a case where this factual situation has come before this Court. However, I find guidance in the reasons of Madam Justice Prowse in Van Gool v. Van Gool CA023712, 30 October 1998 (1999), 44 R.F.L. (4th) 331. She considered s. 19(1)(a) in the context of the analysis courts have long undertaken in considering the liability of parents for support under the pre-Guidelines statutory provisions before concluding that a mother's desire to be "available" for her son before and after school was not sufficient reason to justify under-employment, in the absence of evidence of a child's special need. She projected an appropriate income at $19,000.00 annually and ordered the mother to pay child support for two other children in their father's custody at the table amount for that income of $282.00 monthly. I would impute an income of $18,000.00 to Ms. McCrae in the absence of any evidence of special need on the part of any of the children. On that income, under the Alberta Guidelines applicable to Ms. McCrae, she would be required to pay $149.00 monthly for the months when Tylor was with his father. That results in a reduction of $2,607.50 in the amount of the arrears.

[48]         In Van Gool, Madam Justice Prowse stated in para 33:

... Eric was 13 years old at the time of the hearing, and there is no suggestion that he had special needs for care, transportation or otherwise which would require her to be available to him so as to preclude her from obtaining full-time or increased part-time employment.

[49]         This Court has concluded that a desire simply to stay home with children is not sufficient to invoke the exception in s. 19(1)(a). There must be evidence of needs of a child which require the parent to remain home and unavailable for employment. The chambers judge agreed with the mother’s position that a newborn child has needs beyond the usual as is evidenced by Employment Insurance maternity leave and other maternity leave programs. This may have been the basis of the judge’s reference in para. 15 to the “societal requirements for the first needy months following the birth of a child”.

[50]         In his February 14, 2008 decision, the judge relied on decisions from Alberta which required a finding of deliberate intent to evade child support obligations before income will be imputed and which fixed a period of of non-imputation based on maternity leave programs. The intent to evade approach was rejected by this Court in Barker v. Barker, 2005 BCCA 177. Madam Justice Huddart had this to say in para. 19:

With deference to the view of the majority in Hunt, supra, I prefer the reasoning of the trial judges of this province who have looked for guidance to this court’s early interpretation of s. 19(1)(a) in Van Gool v. Van Gool (1998), 166 D.L.R. (4th) 528, to find that the intent to evade or minimize the payment of child support is not required for a finding of intentional underemployment or unemployment, although if that intent exists that finding is required. What matters under the Guidelines is what mattered under the Divorce Act and the Family Relations Act before the Guidelines -- whether the parent is earning what the parent is capable of earning: Hanson v. Hanson, [1999] B.C.J. No. 2532 (S.C.); Baum v. Baum (1999), 182 D.L.R. (4th) 715 (B.C.S.C.); Bucholtz v. Smith, 2001 BCSC 1176. That is the view of other appellate courts in Canada who have considered the issue, as well as that of Picard J.A. in dissent in Hunt, supra: see Montgomery v. Montgomery (2000), 181 D.L.R. (4th) 415 (N.S.C.A.); Donovan v. Donovan (2000), 190 D.L.R. (4th) 696 (Man. C.A.); and Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.). As Julien D. Payne noted in Child Support Guidelines in Canada 2004, (Toronto: Irwin Law, 2004) at 153...

[51]         In D.R.D. v. J.M., 2004 ABCA 380, a case relied on by the mother on this appeal, the Alberta Court of Appeal expanded its approach:

[17]      Even if Hunt were distinguished from the case at bar, the wording of s. 19(1)(a) of the Guidelines creates an exemption within which the mother falls. She has established that she is unemployed due to a decision to provide personal care to her two young children.

[18]      The father argued that this alone does not show that care is “required by the needs of a child” absent evidence of special needs on the part of one of her children. That interpretation is not supported by the express wording of s. 19(1)(a). Had Parliament intended such a limited ambit to the exemption more precise wording would have been used.

[19]      No affidavit evidence is needed to prove the trite fact that children aged two and four months need constant care, and that they cannot be left alone while their parents pursue employment. Even if support for the suggestion of dependency for children of that age were required, it could be found in federal and provincial legislation which grants new parents periods of leave from employment, acknowledging the emotional and physical health needs of both mother and child during the periods surrounding childbirth.

[20]      Even in those cases where income-earning ability was imputed to the mothers of young children, the period of imputation did not commence until the expiry of their statutory or contractual maternity leave: see Lachapelle v. Vezina (2000), 11 R.F.L. (5th) 328 (Ont. S.C.J.), and Zieglgansberger v. Venyige (2003), 240 Sask.R. 109, 2003 SKQB 512 (Q.B.).

[52]         It is clear that in this jurisdiction the bad faith requirement of the Alberta courts has been rejected. I reject the approach to considering the duration of the non-imputation of income as expressed in Omah-Maharajh v. Howard, 1998 ABQB 81 and D.R.D. for a number of reasons.

[53]         The Alberta courts appear to treat the imputation of income as somewhat of an anomaly; that is, that it is discretionary and should not occur if a parent falls within the “exceptions” in s. 19. With respect, in my view, this approach does not take into account adequately the positive obligation on a parent to support a child. The court is authorized to impute income to meet that objective. If a parent is intentionally under-employed or unemployed, income may be imputed unless the parent establishes that he or she falls within an exception under s. 19(1)(a); in this case, unless the mother establishes that the needs of other children require her unemployment. She has the obligation of satisfying the court that this is so.

[54]         The second concern I have with using maternity benefits as the measure of the time during which there can be an hiatus from child support flowing from the needs of a child are the different policy considerations at issue.

[55]         Contractual and legislative maternity benefits shift some of the financial burden of caring for newborn children to employers or to the public at large. This situation should not be equated with shifting that burden onto the parent of other children of the payor parent. The extent to which this shift should occur engages a consideration of the basic parental obligation to support children and the factors enunciated in Donovan.

[56]         In addition, it must be recognized that not everyone is eligible for maternity benefits (this case is an example). Furthermore, not everyone can afford the reduction in income that often comes with such benefits.

[57]         The third concern I have with following the approach taken in Omah-Maharajh is that the decision was not based on a principle applicable to this case. The court in para. 62 stated its basis for refusing to impute income: for some time the mother had reason to apply to increase child support and the father benefited from this and the period of unemployment. The courts in this province have recognized that a period of unemployment or reduced employment after childbirth is reasonable, that is, that newborn children will have needs which will require someone to remain at home. I accept this as a general proposition, but with the caveat expressed by the court in Savoie v. Lamarche, [1990] 71 D.L.R. (4th) 481 (Que. C.A.) and as quoted by the chambers judge in para. 14 of his February 14, 2008 reasons:

... it is ... unacceptable to suppose ... that in principle the birth of a child automatically gives a parent the right to be exempted from the obligation of financial support, by unilaterally deciding to cut herself off from any source of income by which she could provide for them.

[58]         In summary in a case like this:

1.       income may be imputed to a parent who is intentionally under-employed or unemployed unless the parent establishes under s. 19(1)(a) of the Federal Child Support Guidelines that the  needs of a child require the parent to remain at home;

2.       it is recognized that generally a newborn child or a child of very young age is a child who needs care at home in the context of s. 19(1)(a), but

3.       childbirth does not provide an automatic relief from a parent’s child support obligations;

4.       the circumstances of each situation must be evaluated using all of the criteria articulated in Donovan v. Donovan (2000), 190 D.L.R. (4th) 696 (Man. C.A.) as adopted by this Court in Watts v. Willie, 2004 BCCA 600;

5.       any period of non-support must be reasonable in the circumstances.

[59]         In my view, the circumstances to be considered include a consideration of the financial condition of the payor parent’s present family. It is the needs of the child of that relationship that are in issue. In some situations the financial circumstances of the first family may be relevant: for example, where the second family is very affluent and the first family is destitute. The circumstances may compel an almost immediate return to work or may provide for full or part-time in-home assistance. Assisted care or day-care may not be available readily or be available only on a limited basis. In considering the applicability of s. 19(1)(a), the court should be given every assistance by the parties so as to take into account all relevant factors that bear upon the reasonableness of a period of relief from child support, always recognizing that in a case like this the burden is on the parent who seeks an hiatus from the obligation to provide child support to prove that a period of underemployment or unemployment is required by the needs of a child.

New Evidence

[60]         On June 17, 2011, the parties filed a form of consent order providing for the admission of new evidence. It consisted of an admission that the mother was employed as a full-time associate veterinarian from February 1, 2010 to February 28, 2010, and that the mother paid maintenance for the month of February 2010 in the amount of $1,420 by cheque dated April 12, 2011.

[61]         While the consent of parties to the admission of new evidence is a factor to be taken into account by this Court when determining whether to admit such evidence, the decision to do so rests with the Court.

[62]         In Jens v. Jens, 2008 BCCA 392, at paras. 23-29, this Court discussed the policy considerations relevant to the admission of “fresh” or “new” evidence and the difference between these types of evidence. This Court on an appeal was considering whether the tribunal from which the appeal was taken had erred. The court expressed considerable reluctance to admit new evidence, that is, evidence that was not extant at the time the decision under appeal was made. Admission has the potential to invite this Court “to apply different laws to different facts than those which confronted the trial judge” (para. 29, quoting Lambert J.A. in North Vancouver (District) v. Lunde (1998), 60 B.C.L.R. (3d) 201 (C.A.) at para. 26).

[63]         While the proffered evidence shows that the mother did not require a 15-month hiatus, in my view, it has little relevance to the issue on this appeal. I would not admit it.

Conclusion

[64]         It appears that neither the parties nor the chambers judge focused on the nature of the mother’s application: to vary the February 26, 2009 order that fixed her child support obligations. There was no finding of a change in circumstances. Insofar as the birth of Charlotte was contended to be a change of circumstances, the evidence provided to the chambers judge was woefully inadequate to reach that conclusion. Insofar as the exception in s. 19(1)(a) of the Guidelines could support an application based on the needs of a child, the evidence provided to the chambers judge was woefully inadequate to do so. If it were established that the needs of Natalia and Charlotte required a variance, public and private maternity leave programs are of little assistance in establishing the duration of an hiatus from paying child support. The duration also must be based on evidence.

[65]         I would allow this appeal and set aside the order reducing the mother’s child support payments to zero for the period December 1, 2008 to February 28, 2010, with the direction that the parties may return to the Supreme Court with appropriate applications and evidence if they wish to do so.

[66]         In his May 3, 2010 reasons the judge stated in para. 19:

... the imminent birth of her second child ... was not brought to the court’s attention when it should have been, and also to the [father’s] attention when it should have been.

[67]         In September 2009, the mother effectively sought to vary the February 26, 2009 child support order on the basis of circumstances she knew would occur at the time the application that resulted in that order was argued. The extent to which, if at all, this should be a consideration in any application that is brought by the mother may be a matter to be considered by the court hearing the application.

[68]         In the circumstances of this case I would not disturb the chambers judge’s disposition of costs in the Supreme Court and would order that the father is entitled to his costs of the appeal.

“The Honourable Mr. Justice Chiasson”

I agree:

“The Honourable Mr. Justice Frankel”

I agree:

“The Honourable Madam Justice Bennett”