IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Warren v. Warren, |
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2018 BCSC 1285 |
Date: 20180731
Dockets: D071626 & A882072
Registry: Vancouver
Between:
Greville Mark Warren
Plaintiff
And
Stephanie Jean Warren
Defendant
Corrected Reasons for Judgment: A docket number has been added to the cover page of the Reasons for Judgment on August 16, 2018
Before: The Honourable Mr. Justice Funt
Reasons for Judgment
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Plaintiff: |
Not appearing at this hearing |
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Respondent: |
Not appearing at this hearing |
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Counsel for the Designated Authority appointed under s. 37 of the Interjurisdictional Support Orders Act: |
M. Weintraub |
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Counsel appearing as Amicus Curiae for the Ministry of Attorney General: |
P.J. Reimer |
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Place and Dates of Hearing: |
Vancouver, B.C. July 12 and 18, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. July 31, 2018 |
[1] On July 6, 1992, Justice Finch, as he then was, granted the parties a divorce.
[2] At that time, the parties had two young children, age nine and seven. The petitioner father was ordered to pay $600 per month in child support. The first twelve payments were secured by post-dated cheques (the “Finch Order”).
[3] After the twelve post-dated cheques were honoured, the next payment was not made until January 12, 2006, as a result of attachment proceedings. By this date, the two children were at the age of majority, and neither a “child of the marriage” for the purposes of child support.
[4] The outstanding child support is currently approximately $83,000 (including interest). Other than the initial twelve payments totalling $7,200, the father’s child support payments since the Finch Order total approximately $12,000 resulting from collection proceedings in Fiji and then New Zealand under our Province’s Family Maintenance Enforcement Program (“FMEP”).
[5] Since 1992, the mother has been registered with FMEP.
[6] In April 1992, the father moved to Fiji. On July 4, 1995, he remarried in Fiji and now has three children from that marriage (the youngest of whom is now almost 17 years of age).
[7] In 2007, the father moved with his second family to New Zealand.
[8] In November 2012, the father applied under the Family Proceedings Act, 1980, No. 94 (New Zealand) to the Family Court, Tauranga, New Zealand for his past child support obligations to be discharged in their entirety.
[9] As a result of the New Zealand proceedings, there is now before this Court a Provisional Order of the New Zealand Court, varying the father’s child support obligations. The New Zealand Court reduced the father’s then outstanding child support arrears from approximately $87,000 CAD to $10,000 NZD. With subsequent payments, the outstanding balance under the New Zealand Provisional Order is approximately $6,000 NZD.
[10] For the reasons that follow, I will recognize the procedure the Designated Authority submitted I could follow in considering the New Zealand Provisional Order, but I will not recognize that Order to reduce the father’s child support obligations. Under Canadian law, a reduction of the father’s child support arrears is not justified.
[11] The applicant in these proceedings is the Designated Authority appointed under s. 37 of the Interjurisdictional Support Orders Act, S.B.C. 2002, c. 29 [ISO Act].
[12] The Designated Authority gave notice of a Constitutional Question to the Attorney General of Canada and the Attorney General of British Columbia. The Constitutional Question reads:
TAKE NOTICE that the Designated Authority appointed under section 37 of the Interjurisdictional Support Orders Act, S.B.C. 2002, c. 29 (the “ISOA”) hereby gives notice pursuant to s. 8 of the Constitutional Question Act, R.S.B.C. 1996, c. 68 that the Designated Authority will be asking a Justice of the Supreme Court of British Columbia to treat a provisional order and other documents received from a foreign reciprocating jurisdiction as a variation application made under s. 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
The Designated Authority’s application, the particulars of which are enclosed, addresses the jurisdiction of the Court to use the ISOA, the Supreme Court Family Rules, B.C. Reg. 169/2009, and its inherent jurisdiction to give effect to the Divorce Act, which does not, itself, prescribe any procedure for a foreign applicant to apply for a variation order.
[13] The Attorney General of Canada chose not to intervene with respect to the Constitutional Question.
[14] The mother does not oppose the procedure the Designated Authority proposes. The mother does oppose any variation to the father’s child support obligations.
[15] The Designated Authority takes no position with respect to the merits of recognizing the New Zealand Provisional Order, which, if confirmed, would reduce the father’s child support obligations.
[16] The Designated Authority arranged for Mr. Paul J. Reimer to act as amicus curiae to assist the Court with respect to the merits of the father’s application which resulted in the New Zealand Provisional Order.
[17] If the father’s child support obligations had arisen under the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA] or the Family Law Act, S.B.C. 2011, c. 25 [FLA], the procedure adopted would fall within the ISO Act. Under the ISO Act, the father could apply in a reciprocating jurisdiction in which he habitually resides (in this case, New Zealand) for a provisional order that could then be confirmed in British Columbia upon application through the Designated Authority to a designated British Columbia Court.
[18] In considering the provisional variation order of the New Zealand Court, the British Columbia Court would apply the law of British Columbia: ISO Act, s. 31.
[19] As noted, the ISO Act is a provincial statute. Its procedures do not apply to a variation of child support under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which is federal legislation.
[20] For several reasons, I have concluded that the child support was ordered under the Divorce Act. First, the Finch Order was made in the parties’ divorce proceedings. Second, the Finch Order referred to the infant “children of the marriage”. The Divorce Act defines in s. 2(1) the phrase “child of the marriage”. Finally, in Yu v. Jordan, 2012 BCCA 367, as Justice D. Smith described, the doctrine of paramountcy would result in the Divorce Act applying rather than provincial legislation such as the FRA or the FLA: paras. 54 and 55.
[21] As a final procedural aspect, the current action D071626 (Vancouver Registry) was ordered to be heard together with action number A882072 (Vancouver Registry). The A882072 action dealt with spousal and child support under the FRA arising prior to the Finch Order. There was no opposition to both actions being heard together and I ordered that the matter be heard together at the outset of the hearing before me.
[22] The Court has the jurisdiction to hear the matter because the mother is ordinarily a resident in British Columbia: Divorce Act: ss. 5 and 17. The Constitutional Question engages procedure.
[23] I find the Designated Authority’s procedural argument to treat the New Zealand Provisional Order as a variation application made under s. 17 of the Divorce Act to be persuasive.
[24] As the Designated Authority notes, the Divorce Act “is silent on procedure where a former spouse is not ordinarily resident in a province”.
[25] Section 25 of the Divorce Act leaves many of the procedural aspects relating to court practice and procedure to the competent authority of the particular province. It reads:
Definition of competent authority
25 (1) In this section, competent authority, in respect of a court, or appellate court, in a province means the body, person or group of persons ordinarily competent under the laws of that province to make rules regulating the practice and procedure in that court.
Rules
(2) Subject to subsection (3), the competent authority may make rules applicable to any proceedings under this Act in a court, or appellate court, in a province, including, without limiting the generality of the foregoing, rules
(a) regulating the practice and procedure in the court, including the addition of persons as parties to the proceedings;
(b) respecting the conduct and disposition of any proceedings under this Act without an oral hearing;
(b.1) respecting the application of section 17.1 in respect of proceedings for a variation order;
(c) regulating the sittings of the court;
(d) respecting the fixing and awarding of costs;
(e) prescribing and regulating the duties of officers of the court;
(f) respecting the transfer of proceedings under this Act to or from the court; and
(g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act.
Exercise of power
(3) The power to make rules for a court or appellate court conferred by subsection (2) on a competent authority shall be exercised in the like manner and subject to the like terms and conditions, if any, as the power to make rules for that court conferred on that authority by the laws of the province. ...
[26] The Lieutenant Governor in Council makes the rules “governing the conduct of proceedings” in the Supreme Court of British Columbia after receiving a recommendation of the Attorney General who in turn has consulted with the Chief Justice of the Supreme Court: Court Rules Act, R.S.B.C. 1996, c. 80, ss. 1 and 6.
[27] As a passing reference, I note that Mr. K. McEwan, Q.C. provides a useful review of the history of rule-making for the Supreme Court of British Columbia in his article “A Short History of Rule-Making for Courts” in Janice Dillon and Gordon Turriff, eds, British Columbia Annual Practice 2018 (Toronto, Ontario: Thomson Reuters, 2017) at xxv.
[28] The Supreme Court Family Rules, B.C. Reg. 169/2009 [SCFR], do not provide specific rules for treating a provisional order from a foreign jurisdiction as a variation application under the Divorce Act.
[29] On facts with no material differences to those before this Court, Justice J. M. Ross in Beauchesne v. Beauchesne, 2012 ABQB 308, held that the Designated Authority in Alberta could follow a procedure similar to that proposed by the Designated Authority for the case before this Court:
[24] The Designated Authority acknowledges that a foreign court lacks the jurisdiction to vary a Divorce Act support order, a foreign Applicant must instead apply in Canada, and the Divorce Act is the substantive law which must be applied on such a variation application.
…
[26] The Designated Authority submits that failure to treat documents from a reciprocating authority as an application for variation of support under the Divorce Act could work an unfairness on foreign Applicants without the means to travel or to hire an Alberta lawyer to bring a variation application under the Rules of Court. The federal government could have legislated regarding the procedure to follow in such cases, but has left procedural matters to the provinces with the exception of the regime set out in ss. 18 and 19 of the Divorce Act.
[27] The Designated Authority argues that the issue is one of interpretation of the ISO. The Designated Authority acts under both the ISO, and ss. 18 and 19 of the Divorce Act in relation to the interprovincial transfer of documents. It is possible for the Court to interpret the ISO as applying to the incoming order because it is a provisional order. The ISO definition of "provisional order" is broad enough to cover everything except Divorce Act orders specifically addressed in the Divorce Act. The Court would not be contravening the Divorce Act, but rather would be using it. The Divorce Act applies because the order in question is a divorce order. The ISO turns the provisional order into an application to vary support order where the choice of law is not governed by the ISO, but rather by s 17 of the Divorce Act. The Designated Authority submits that there is no conflict and therefore no issue of paramountcy arises.
[28] Section 23(b) of the ISO expressly provides that nothing in Part 3 allows a support order originally made under the Divorce Act to be varied except as authorized by a federal enactment. Canada is not a reciprocating jurisdiction under the ISO and there is no federal enactment authorizing variation other than as provided in the Divorce Act. Nevertheless, the Designated Authority's suggested mode of proceeding would promote the goals of facilitating a resolution in a timely and cost-effective manner, and avoiding a multiplicity of proceedings.
…
[33] I conclude that the relevant provisions in the Rules of Court and the Divorce Act are broad and flexible enough to enable the Court to treat the materials presented in relation to the "provisional order" in this case as a variation application under s 17 of the DA. This would be in keeping with the purpose of the Rules.
[30] Section 22(b) is the ISO Act counterpart to s. 23(b) of the Alberta legislation to which Justice J.M. Ross refers in para. 28 of her reasons above.
[31] I recognize that the SCFR are not identical to the rules of court considered in Beauchesne. However, as the Designated Authority submits, treating the New Zealand Provisional Order and supporting materials as a “support variation application” under s. 28 of the ISO Act would serve the object of the SCFR to “secure the just, speedy and inexpensive determination of every family law case on its merits” (emphasis added).
[32] As observed in Beauchesne, the “failure to treat documents from a reciprocating authority as an application for variation of support under the Divorce Act could work an unfairness on foreign Applicants without the means to travel to or hire a [British Columbia] lawyer to bring a variation application under the [SCFR]”.
[33] I will follow the Beauchesne approach. The matter is one of procedure that furthers the hearing of a variation application on its merits and serves to respect the New Zealand legislation and proceedings in accordance with the notion of comity: Chevron Corp. v. Yaiguaje, 2015 SCC 42, paras. 51–53.
[34] I will now consider the merits of allowing the father’s application to reduce child support arrears as now reflected in the New Zealand Provisional Order.
[35] In Holmstrom v. Holmstrom, 2014 BCSC 545, Justice S.R. Romilly summarized neatly the applicable principles for the reduction or cancellation of child support arrears as follows:
[32] Section 17 of the Divorce Act states that a court may make an order varying child support prospectively or retroactively, if there is a satisfactory “change in circumstances” since the child support order was made:
Order for variation, rescission or suspension
17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
(a) a support order or any provision thereof on application by either or both former spouses; ...
...
Factors for child support order
(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.
...
Guidelines apply
(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.
[33] The Guidelines provide, in relevant part:
Circumstances for variation
14. For the purposes of subsection 17(4) of the 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; ...
[34] The court may reduce or cancel arrears and interest under s. 174 of the Family Law Act, S.B.C. 2011, c. 25:
Reducing or cancelling arrears
174 (1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.
(2) For the purposes of this section, the court may consider
(a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support,
(b) the reasons why the person responsible for paying support cannot pay the arrears owing, and
(c) any circumstances that the court considers relevant.
(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.
(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under section 11.1 of the Family Maintenance Enforcement Act, on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest.
[35] The test for cancelling or reducing child support arrears was cited by Madam Justice Fenlon in her recent decision in Beavis v. Beavis, 2014 BCSC 422 (released March 13, 2014). Although it could not have been referred to by counsel in this proceeding, the principles contained therein were adequately canvassed and addressed by both parties. Sitting on an appeal from a Provincial Court judgment, Fenlon J. succinctly summarized the applicable law:
[14] ... In Semancik v. Saunders, 2011 BCCA 264 at para. 25, the Court of Appeal states that when applying for the cancellation or reduction of child support arrears:
[25] ... The applicant must prove a material (... defined as a "significant and long lasting") change in circumstances and that it would be grossly unfair not to cancel the arrears.
[Emphasis in original.]
[15] Grounds A (Gross Unfairness) and B (Change in Circumstances) relate to the two main elements of this test. Grounds C (Financial Disclosure) and D (Obligation to Earn to Capacity) fall within ground B: they are two factors to consider when assessing whether the applicant has proven a significant and long-lasting change in circumstances due to a reduction in income. Accordingly, I address the four grounds of appeal within the structure of this two-part test.
[36] In other words, there are two criteria for determining whether a cancellation or reduction of child support arrears is appropriate: (1) a material change in circumstances; and (2) that it would be grossly unfair not to reduce or cancel the arrears.
[37] In P.L. v. J.D.L., 2013 BCSC 1492, Fleming J. reviewed some of the principles that should be applied on an application for the reduction or cancellation of child support arrears. She wrote, in relevant part:
[21] The legal principles applicable to any application regarding child support and cancellation or reduction of child support arrears were discussed by Madam Justice Martinson in Earle v. Earle, 1999 BCSC 283 (“Earle”). With respect to child support generally, those principles are: parents have a joint and ongoing legal obligation to support their children; it is the child, not the parent, who has the right to support; and the payment of child support is based on the ability of the parent to pay, not only what the parent earns. The result of this last principle is that parents have a legal obligation to earn as much as they are reasonably capable of earning to meet their obligation to support their children (Earle and G.(S.) v. W.(G.), 2006 BCSC 991).
[22] With respect to variation applications, the applicant must establish a material change of circumstances since the original order was made. The change must be significant and long lasting. A change to the Guidelines amount is not automatic: Earle.
[23] The cancellation or reduction of arrears is a form of variation. Madam Justice Martinson in Earle found the test under the Family Relations Act, R.S.B.C. 1996, c. 128, which required that arrears not be reduced or cancelled unless it would be grossly unfair not to do so, is similar to the one to be applied under the Divorce Act. The "grossly unfair test" has been found appropriate for consideration on a variation application under the Divorce Act: S.A.R. v. L.G.R., 2011 BCSC 712, at para. 45; and Lewis v. Lewis, [1999] B.C.J. 2537 (S.C.), at para. 16.
[38] In Earle v. Earle, 1999 BCSC 283 at paras. 25-43, Madam Justice Martinson clarified the criteria for a cancellation or reduction of arrears. In relation to a change in financial circumstances, she said:
[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.
[Emphasis in original.]
[39] In L.B. v. J.K., 2012 BCPC 231, Hamilton P.C.J. outlined some of the principles to consider in determining the meaning of “grossly unfair”:
[50] What is clear from these cases is that a determination of gross unfairness is a factual determination. As well, it is clear that the gross unfairness test applies to applications to reduce or cancel arrears of both child and spousal maintenance.
[51] So, what does “grossly unfair” mean?
[52] I was unable to find any helpful authority that sets out what the phrase "grossly unfair" means. Obviously to meet the grossly unfair test the applicant must establish more than it would be unfair to maintain the maintenance arrears. Establishing gross [unfairness] is clearly a more onerous test [than] proving simple unfairness.
[53] I am of the view that gross unfairness means more than something that is a significant financial burden.
[54] In order to meet the gross unfairness test, I am of the opinion that the applicant must establish that maintaining the maintenance arrears is so unfair that to enforce payment of the arrears would serve an injustice on the payor that the court cannot countenance. If enforcing payment of the arrears leaves a payor in strained financial circumstances, that is not enough.
[55] Circumstances in which a court might conclude that an applicant has met the gross unfairness test might include situations where child maintenance arrears have accumulated during a time when the child was living with the payor and not the recipient, or where the child was removed from the recipient's care by child welfare authorities, or was living with other extended family members. Gross unfairness might be established in circumstances where enforcing the payment of the maintenance arrears would force the payor into bankruptcy. A determination of gross unfairness in these examples would depend on the facts of each individual case. However, what is clear from the authorities is that cases in which maintenance arrears will be reduced or cancelled are rare: see [Luney v. Luney, 2007 BCCA 567] at para. 43.
[56] There is a reason for the test being as onerous as it is. The test is onerous because parents have a duty to their children to financially support those children throughout their childhood. This duty imposes an obligation on both parents to financially support their children commensurate with the parents' financial circumstances - Earle, supra, at para. 16. This duty exists whether or not a court order is in place.
[57] When a parent fails to fulfil their duty, the children are deprived of the financial support they are entitled to receive, but which they cannot enforce. The children cannot go to court to secure the payment of the support they are due. The children suffer a deprivation, an injustice.
[58] When the parent's duty is secured by a court order, the failure to fulfil that duty not only serves an injustice to the child, but the parent is disobeying a court order. Our courts cannot, and will not, tolerate such conduct except in the rarest of cases.
[59] So, when a parent comes to court having failed in their duty to their child, deprived the child of that which the child is entitled to receive but cannot enforce, and disobeyed a court order, our courts will not condone that parent's behaviour unless, and only unless, to insist that the parent fulfil his or her duty would be grossly unfair. For these reasons, the grossly unfair test is not an easy test to meet.
[Emphasis added by Romilly J.]
[40] In Longstaff v. Longstaff (1993), 86 B.C.L.R. (2d) 1 (C.A.), Rowles J.A., writing for the Court of Appeal, said:
[54] In Victory v. Victory [[1988] B.C.J. No. 564 (C.A.)], this Court quoted with approval a passage from the judgment of Huddart Co. Ct. J. (as she then was) in Barton v. Barton, [[1985] B.C.J. No. 776 (Co. Ct)], at p. 10:
To cancel arrears on a child maintenance order merely because that order, never sought to be varied, cannot at a moment in time be enforced, encourages a lack of diligent effort to pay in the hope that the more diligent parent will give up any attempt to enforce the order at whatever cost in lost savings and extra effort.
If the Courts are to respect the principle that parents share equally the responsibility for the care of their children, no result should be permitted that gives any appearance of favouring a parent whose efforts to fulfil that responsibility have been less than those of the other who shoulders it by dint of energetic and sustained application of his or her resources.
[41] The Court of Appeal in Longstaff also addressed the “grossly unfair test”:
[45] The onus was on the respondent to show that it would be "grossly unfair" not to reduce or cancel the arrears. If that onus was not met, the arrears could not be cancelled.
[42] The following factors are generally not relevant in deciding whether to reduce or cancel child support arrears:
* delay in coming to court to enforce payment (Earle at para. 34);
* the children have not suffered because others provided assistance (Earle at para. 38);
* the children do not need the money now (Earle at para. 39); and
* even though it is less than the full amount, payments were made that contributed to the children's expenses (Earle at para. 42).
I note that some of these arguments are advanced by the claimant in this case.
[43] A trial judge can assess the appropriate magnitude of any reduction in arrears by considering the difference between the income on which the order or agreement is based and the payor’s actual income during the same period. However, it is important to note that recalculating arrears is not appropriate until after it has been determined that a cancellation or reduction of child support arrears has met the two-part test, i.e. a material change in circumstances and that it would be grossly unfair not to cancel or reduce the arrears. This is true even where the court order pursuant to which arrears have accumulated provides for a review of the parties' respective incomes. See: L.B. at para. 42; P.L. at paras. 41-42; and Beavis at paras. 40-45.
[44] The policy underlying this reasoning was laid out by Fleming J. at para. 42 of P.L.:
[42] I note in addition the respondent provided no authority to establish that the court can retroactively calculate child support payments based upon the payor's line 150 income, and then set the arrears based upon the difference between what was paid and what should have been paid according to the line 150 income. In similar circumstances, the Provincial Court in L.B. v. J.K., 2012 BCPC 231, refused to adopt this approach in part because to do so encourages payors to do nothing in the face of a reduction in income and disobey a court order over an extended period of time, allowing significant arrears to accumulate. Then, when it suits the payor, he or she may bring an application for an order that deprives the children in question of child support that they were entitled to receive and relied upon receiving (para. 42).
[Emphasis added by Romilly J.]
[36] I will only add three comments to Justice S.R. Romilly’s summary. First, the FLA is not engaged in the matter at bar. Any reduction or cancellation of past child support falls under s. 17 of the Divorce Act. Second, the Federal Child Support Guidelines, SOR/97-175 [Guidelines] took effect May 1, 1997. The Finch Order of $600 per month would reflect the father earning approximately $42,600 CAD if the monthly payment had been calculated under the Guidelines. Third, the coming into force on May 1, 1997 of the revised child support provisions under the Divorce Act constitutes a change of circumstances that may warrant a variation in child support: Guidelines, s. 14(c); Wang v. Wang (1998), 164 D.L.R. (4th) 146 (B.C.C.A.).
[37] Prior to the Finch Order, two orders for support under the FRA had been made, dated August 9, 1988 and May 11, 1989 (these orders included spousal support).
[38] The father first made an application to cancel his child support arrears under those Orders without reference to the subsequent Finch Order under the Divorce Act.
[39] Confusion initially arose because only the FRA Orders were registered in New Zealand for enforcement. As a result, the Finch Order was not before the New Zealand Court. The child support arrears arise from the Finch Order.
[40] In his November 21, 2012, affidavit in support of his application in New Zealand, the father summarized his grounds to cancel the child support arrears as follows:
11. In summary, the grounds in support of my application are:
(a) The Respondent does not reasonably need ongoing maintenance. She has had over twenty years to find work and become self supporting.
(b) Rebecca and Simon do not reasonably need ongoing maintenance. They are both in their mid twenties and have likely lived independently from their mother for some years.
(c) I cannot afford to pay the arrears accrued under the maintenance orders. I have a wife and three dependent children of my own and am of very limited means.
(d) It is likely that the Respondent is in a stronger financial position than I am. As far as I am aware, she does not have any dependent children.
(e) Subsequent to our separation the Respondent alienated the children from me and, as a result, I have not been able to enjoy any kind of relationship with them as they have grown older. They continue to be estranged from me as adults.
[41] The father’s application proceeded to hearing in New Zealand on February 26, 2014 with oral reasons for judgment given that day. Through New Zealand counsel, the mother filed affidavits and provided a written submission, although counsel was not present at the hearing as a result of the mother’s concerns regarding legal costs.
[42] The New Zealand Court ordered that:
· The order made in the Supreme Court of British Columbia, Canada and dated 11 May 1989 is suspended.
· Interest and penalties on the arrears are remitted.
· Penalties are suspended provided the repayment obligations are met.
· The core debt is remitted, except to the amount of $10,000.
· The debt is to be paid at $100 per month for a period of two years from today’s day and thereafter at the rate of $200 per month.
· Interest shall accrue on the outstanding debt at the rate of four percent per annum.
This order is provisional only and have no effect unless and until confirmed by a competent court in a place outside New Zealand.
[43] The February 26, 2014 New Zealand Provisional Order came before Justice Masuhara of this Court on June 10, 2016. During the course of the hearing before him, two questions arose:
a) Whether the New Zealand Court was aware of the Finch Order; and
b) Whether the Support Orders were made corollary to divorce or under the FRA.
[44] As described above, with the opportunity to canvass the question, it is clear that the Finch Order was made under the Divorce Act.
[45] As noted, the New Zealand Court had not been aware of the Finch Order at the time it pronounced its February 26, 2014 Provisional Order.
[46] On becoming aware of the Finch Order, the New Zealand Court made two orders on April 10, 2017. The first order varied the Provisional Order to the intent that:
(i) Such provisional order is also in substitution for the Supreme Court, of British Columbia, Canada order dated 6 July 1992; and
(ii) The terms of the provisional order dated 24 February 2014 are otherwise confirmed.
[47] The second order suspended the Finch Order.
[48] The New Zealand Orders are provisional orders. They necessarily contemplate the application of the laws of our Province for the Orders to be confirmed.
[49] I will first address the father’s five grounds set forth above in support of his application before the New Zealand Court.
[50] The support in arrears is child support. The support was that of the two children not that of the mother. The two children have been deprived of the support under the Finch Order (there are no arrears under the earlier orders made under the FRA). I reject this ground because its focus is on support for the mother and not the children.
[51] Justice Martinson in Earle v. Earle, [1999] B.C.J. No. 383 (S.C.), answered this type of argument as part of a series of excusing arguments often heard in our Court. She stated:
“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.
[52] The previous excusing argument and Justice Martinson’s answer read:
“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.
[53] Justice Martinson in Earle answered this type of excusing argument as follows:
“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.
[54] In the matter at bar, the father started his second family approximately three years after the Finch Order. The father made the callous choice to fund a new family while abandoning financially his two then still young children from his first marriage in disobedience of the Finch Order.
[55] This excusing argument is answered by the previous answer and then further by the following as expressed by Justice Martinson:
“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.
[56] Justice Martinson in Earle also notes:
“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. …
[Emphasis by Martinson J.]
[57] In his November 21, 2012 affidavit, the father states that at the time of his July 4, 1995 marriage, he was earning $40,000 FD per annum (then roughly equivalent to $40,000 CAD).
[58] The father also says that in 2004 the mother sought to have the child support orders enforced through the Fijian court system. His earnings were attached at $40 FD per week.
[59] The father further swears:
The Fijian Court proceedings were the first time I was confronted with my maintenance obligations since moving from Canada to Fiji.
[60] I am satisfied that, other than the initial twelve post-dated cheques under the Finch Order, no further amounts would have been received from the father but for the collection proceedings in Fiji and then New Zealand. With the Finch Order, the father would have been aware of his child support obligations prior to being “confronted” in Fiji.
[61] In 2005, the year after the younger of the two children reached the age of majority, the father earned significantly more than $42,600 CAD. In his November 21, 2012 affidavit, he stated that he received approximately $105,000 FD (approximately equivalent to $76,000 CAD) while working for the University of the South Pacific. In his November 22, 2013 affidavit, the father attaches a schedule showing his annual income. For 2005 and 2006, he shows approximately $27,000 CAD as his income for each of these years, although he apparently would have earned less in 2006 than 2005 as a result of suffering a stroke on April 22, 2006.
[62] As noted, in April 2006, the father suffered a stroke. From his materials, the lasting seriousness of his stroke is unclear. In 2007, the father moved with his second family to New Zealand. By 2009, he had incorporated with his second spouse a business, K. Design Ltd. They were equal shareholders.
[63] The shareholder remuneration from K. Design Ltd. for 2009 was $63,619 NZD (approximately $46,500 CAD). As Mr. Reimer observed, the father may have split that remuneration with his spouse. The father did not produce copies of any tax returns for the years 1992 to 2004 (the year child support ended) or subsequent years.
[64] I am not satisfied that there was a change in the father’s financial circumstances such that he could not earn $42,600 CAD per annum. The father has not met his onus to show his financial circumstances changed. In particular, I am not satisfied that he made every effort to earn money and that these efforts were not successful.
[65] The father provides little evidence to support his allegation that the mother alienated the children from him. I do not have evidence from either of the children, now adults. By the father not providing any child support after the Finch Order other than the twelve post-dated cheques before they reached the age of majority, such would understandably likely give rise to resentment by the children and alienation from him. As noted, any child support payments from either the father’s time in Fiji or New Zealand result from enforcement proceedings taken in those countries pursuant to steps taken by FMEP.
[66] From a review of the Reasons for Judgment of the New Zealand Court, the applicable New Zealand legislation related to a reduction in past child support is fundamentally different from Canadian law. The factors the New Zealand Court considered were:
a) The means, including the potential earning capacity, of each parent;
b) The reasonable needs of each parent and the fact that either parent is supporting any other person;
c) The contribution of either parent in respect of the care of the children;
d) The financial and other responsibilities of each parent; and
e) The property and income of the children and any earning capacity that they may have.
[67] The signal difference between Canadian law and New Zealand law is that New Zealand law does not focus on child support as the right of the child. In the Reasons for Judgment, the New Zealand Court states:
I am satisfied that, in the absence of evidence about the children’s present position and their needs and, in the absence of information about Ms. Warren’s present financial position and her needs, that I must simply look to the reality of Mr. Warren’s situation. I consider that it is necessary to make the orders that are sought today.
[68] With respect, despite judicial comity, I cannot follow or recognize the Reasons of the New Zealand Court. I am duty-bound to apply Canadian law, which, on the evidence before me, gives rise to a much different result.
[69] As noted, under s. 14 of the Guidelines, a change of circumstances is considered to have occurred where the child support order was made before May 1, 1997. In the case at bar, as noted, the Finch Order was made on July 6, 1992.
[70] I am satisfied that the father has had the ability to earn at least $42,600 per annum since the Finch Order until the present, other than for a relatively short period in 2006 after his stroke. Moreover, I am not satisfied that it would be grossly unfair not to reduce or cancel his child support arrears. Accordingly, the father’s child support obligations will not be varied, other than for the following small adjustment.
[71] Under the Finch Order, the $600 per month would have been paid until the younger of the two children reached 19, the age of majority. The FMEP calculations are based on $600 per month until the younger child reached 19 years of age. The child support arrears should be recalculated to reflect for the period of time that the elder child had reached 19 and the younger child had not. For this period, child support should be based on child support for one child. For this purpose, the father’s Guideline income should continue to be considered to be $42,600.
[72] Finally, I wish to thank Mr. Reimer, Mr. Weintraub, and Mr. Martin for their very helpful submissions.
[73] The parties will bear their own costs.
“Funt J.”