IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Curry v. Curry, |
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2008 BCSC 892 |
Date: 20080513
Docket: D072509
Registry: Vancouver
Between:
Michelle Irene Curry
Plaintiff
And:
Clyde Charles Curry
Defendant
Before: The Honourable Mr. Justice McEwan
Oral Reasons for Judgment
In Chambers
May 13, 2008
| Counsel for the Plaintiff |
M.R. Bradshaw |
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| Counsel for the Defendant |
R.L. Ellard |
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Place of Hearing: |
Vancouver, B.C. |
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[1] THE COURT: The plaintiff seeks the following relief:
1. A variation of a May 11, 1990 divorce order which included a child support order obliging the defendant to pay $500 per month for the support of two children, Juniper Irene Stewart, a child born December 4, 1975, to whom the defendant stood in the role of a stepparent, and Kellen Charles Curry, born July 7, 1986, the natural child of the parties and the subject of this application.
2. There is a second application, to increase child support from September 1992 by $50 per month pursuant to an oral agreement by the defendant made in August 1992.
3. And thirdly, there is an application for child support retroactive to the inception of the Guidelines in May of 1998 and an application for determination of the arrears owing as a result.
[2] The parties were married November 30, 1985, and were together for two-and-a-half or three years until sometime in 1998. They were divorced on May 11, 1990. There was an order entered on that date which appears to be a standard order for its time providing for divorce and the child support I have outlined. The order was faithfully paid up until a point in time. The parties disagree on whether the date was in 1992 or 1994. At that time, whichever it was, the parties agreed that the child support for Kellen, which was then $250 per month in accordance with the terms of the divorce order, would be raised to $300 per month.
[3] This arrangement was modified in a manner that is not entirely satisfactorily explained, but that included an arrangement that the defendant would loan the plaintiff and her new husband the $1,200 to purchase a motor vehicle at a time when he was unemployed and needed it to help him find work. The arrangement for the repayment was that the $50 per month that had been negotiated as an increase in the child support would not be paid for 24 months in order to retire that debt.
[4] Following the point in time at which that debt had been retired on that notional basis, the defendant did not resume paying the $300 per month until some point in 2007. The child, Kellen Charles Curry, was 19 in July of 2005. The child support of $250 and latterly $300 has been paid to the present time. The court was advised by counsel that that child now has qualified as an adult for a disability pension of $906 per month. Any sums received on account of child support will be deducted from that amount.
[5] Essentially, there are two parts to the application. The first is the enforcement of this arrangement that the parties made to increase child support by $50 per month and to establish the arrears on that contract. The second is whether or not this court can on a principled basis review the entire child support arrangement between the parties and, at this stage, retroactively adjust it all the way back to the imposition of the Federal Child Support Guidelines or some period short of that, which some of the cases suggest could be something like three years.
[6] The young man concerned, Kellen Charles Curry, does have a series of disabilities which are outlined in the materials and which include cerebral palsy and a number of related or collateral conditions which have slowed his growth and made learning difficult. I will not recite the medical evidence in this case, except to say that it does appear that Kellen had a complex of medical conditions that required a great deal of attention from his mother and a great deal of assistance in getting him through school day by day. I do not think I misread the affidavits if I say that Mr. Curry, the defendant, does not seem to have a complete and full appreciation of that level of effort.
[7] At the present time, there is a significant disagreement between the parties respecting Kellen’s best interests. To put it briefly, the defendant thinks that he is not doing the best he could to get out and get into the world and get on with adult living, and he does not think that he is suffering from disabilities that should prevent him from being able to do a number of things that would make him independent and also make him happier. His concern is that he lives with his mother in a basement suite and seems to spend a great deal of time on the Internet and not getting out into the world. I think it is fair to say that the affidavit evidence suggests that the plaintiff’s view of this is that this just reflects a significant degree of difficulty that Kellen has and will continue to experience as an adult and that she is prepared to be there for him to the degree that she thinks he needs assistance.
[8] The courts sometimes see cases of this kind where adult children are, in the view of one of their parents, ready to leave the nest and are, in the view of the other parent, still in need of assistance, and given the fact that the government has chosen to treat Kellen as an adult for purposes of establishing a disability pension for him, I think the time has come to an end when child support should be payable for him, and accordingly, the order I will make today assumes that child support has ceased to be required as of May 1, 2008.
[9] The principle that the plaintiff invokes in order to urge upon the court that child support should be retroactive all the way to May of 1997 when the Federal Support Guidelines came into play is set out in the series of cases decided by the Supreme Court of Canada and indexed as D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, [2006] S.C.J. No. 37. As a preface to a discussion of that principle, I will simply say that it is commonplace in these courts that the imposition of the Guidelines themselves in May of 1997 was the introduction of a quite different scheme for the payment of child support, that created a series of presumptive amounts given certain amounts of income and removed a great deal of discretion from the courts, and also a great deal of argument over various economic factors within individual households. The Guidelines were said to be presumptively a change in circumstances and, certainly, a good number of the types of orders that the order before me is an example of, were brought before the court. The new regime was analysed in light of the income of the payor and the amounts were adjusted.
[10] There is no question, looking back to that time, that had the Federal Guidelines been applied, the defendant in this case would have paid significantly more child support, not only on the face of the numbers themselves, but bearing in mind the fact that orders for child support after that time also were treated differently for tax purposes. There has been no discussion of that in this case, but if there is an advantage that way, it would also have accrued to the defendant.
[11] The courts have essentially said, in cases where an application has been made for retroactivity going back a long time, that the behaviour of the payor is significant. Parties are, by contract, entitled to make arrangements that they consider in the best interests of their children and in their best interests and they are entitled to rely on those contractual relationships unless they are drawn to the court’s attention and are found to be improvident. There are any number of factors that might go into the individual party’s assessments of what is fair.
[12] One of the reasons for the Guidelines was to prevent a kind of situation that was frequent before they were imposed which was that bullying spouses, or spouses with more force of character than the other, were in a position in the old regime to sometimes talk spouses into awards that were not provident and did not provide adequately. Where the order is in place – in this case before the Guidelines came in – and nothing has been done in a formal way to bring the matter before the court until a decade or so later, the court is obliged to ask why, and one of the reasons that may justify going back as far as this application does would be where the behaviour of the payor made it so problematic to seek support that the payee simply did not see fit to bring the matter before the court.
[13] The evidence in this case is an attempt to fit the facts into that theory. I must say that on the basis of what is contained in the material, although I have commented briefly on a disparity between the parties with respect to their attitudes towards this child, I do not have the sense that there is a reasonable excuse for seeking support under the Guidelines that far back. In the D.B.S. case at paragraph 101, Mr. Justice Bastarache made this observation:
Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practical concerns associated with a child support application. They should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family. Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice: see Chrintz v. Chrintz (1998), 41 R.F.L. (4th) 219 (Ont. Ct. (Gen. Div.)), at p. 245. On the other hand, a recipient parent will generally lack a reasonable excuse where (s)he knew higher child support payments were warranted, but decided arbitrarily not to apply.
[14] There is certainly evidence in the material that suggests that Mr. Curry, the defendant, was not making efforts to ensure that he paid an appropriate level of child support or reopening the issue in any way. I think it is fair to suggest that there is some evidence in the material that would suggest that he would resist any such suggestion. He does, however, in one of his affidavits annex an email from the plaintiff which reads in part as follows:
As for child support, when Kellen turned 12, I was eligible for a substantial increase in child support but due to the kindness of my heart I didn’t want you to cause an upset in Kellen like you were doing then. Also, as you know, we agreed ourselves that in the beginning of 1992, you give me a miniscule increase of $50 a month. Whee! Brian I repeat. Brian borrowed $1,200 from you in September 1992 and the both of you went behind my back and made a deal to take it right back off my support. Brian never paid it back to me, by the way, Clyde, so do the math by removing $1,200 after you add up $50 a month for 13 years that you owe me. Not to mention the fact that for 12 years you should have been paying me $587 a month in child support. I have gotten legal advice a couple of times, but didn’t want to make it any harder for Kellen to be with you. Now this just pisses me off. Kellen also has been very good at paying both Debbie and Brian back the money he borrowed. You better have given Debbie the money Kellen gave you for her, $450. Also, I would appreciate it if you would deal directly with me on this. That’s how it should be. Starting Monday, I’m seeking legal advice on collecting back unpaid child support. I wasn’t going to bother before this.
[15] That was apparently written in 2005. The point of reading that into the record is simply to say that although the defendant may have been a most reluctant payor, it does not bespeak of an arrangement between the parties whereby the plaintiff was in some sense in fear of vindictive activity of the part of the defendant. I am sure it might have been unpleasant, but it does suggest very strongly that the fact that the plaintiff did not apply over the years was on the basis of decisions she made calculating the cost and benefit to her of doing such a thing. She does say that she was afraid that every time she mentioned child support, the defendant would do something to undermine or make the relationship with Kellen more difficult. Be that as it may, it does not strike me as the sort of conduct that Mr. Justice Bastarache was suggesting would justify going back as far as the plaintiff suggests. I repeat, he observed that delay in seeking child support is not presumptively justifiable and, on the basis of the material, I do not think that this delay was justified.
[16] There is a more significant problem in dealing with the whole issue and that is found at paragraph 89 of the same decision. There the court observes that:
An adult, i.e., one who is over the age of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made. This is true, whether or not this adult should have received greater amounts of child support earlier in his/her life. Child support is for children of the marriage, not adults who used to have that status.
[17] I think that poses a difficulty in this case in this sense, that Kellen is an adult and has been for almost three years. Certainly, adult children who are unable to withdraw from the support of their parents are entitled to child support, although not on quite the same basis as they are before they turn 19, but the situation now is that Kellen is being treated like an adult and has his own adult income. That makes the application brought now one that is really for an adjustment in cash of money that should have been paid over the years if there had been an application that was made in a timely manner. I do not think, looking at the circumstances of this case and bearing in mind the apparent tradeoffs and considerations that went into why there has not been an application brought before now, this is an appropriate case for a retroactive adjustment of the longstanding agreement between the parties as to what was fair and equitable between them.
[18] That is not the same thing as saying that there will be no adjustment inasmuch as there is a contractual relationship between the parties that is enforceable, in my view, right up to the present time. That is, that the child support that was payable at $250 was adjusted upward to $300 and that, in part, the difference between the $300 and the $250 has not been paid.
[19] This hearing is on affidavits and it suffers from the weaknesses of affidavit evidence. The court does not have the opportunity to make a credibility judgment on the basis of direct evidence from the parties. I do not, however, think that it would be sensible or worthwhile to direct that the parties appear before me for this reason. As I have said, the defendant has had something of a holiday from his legally-declared obligation under the Support Guidelines.
[20] On a balance of probabilities, I accept that the arrangement was made in September of 1992. The only comment I will make is that if I am wrong about that or if I might be persuaded otherwise on the basis of better or viva voce evidence, I cannot say that I think of the difference as an injustice. It is a small amount of money. It is much less money than would have been paid had the Guidelines been invoked in a timely manner and I will direct, therefore, that the arrears be payable from and after the 1st of September, 1992, at the rate of $300 per month, bearing in mind that there is a two-year deduction of the $50 for the $1,200 that was repaid for the motor vehicle and that deduction is recognized by the plaintiff, although she is clearly not happy about it.
[21] The only other question, then, is adjusting when specifically the $300 started to be paid again. I take that time to be agreed between counsel. I am given to understand that the appropriate calculation based on the date that I have fixed for its commencement is that the defendant, Mr. Curry, owes $7,700 in arrears on that contract to the present time. When I say “that contract,” I am alluding to the contractual arrangement that was made that is embodied as the child support in the divorce order. I will leave it to counsel to advise me if there is any adjustment that is necessary to that date on the basis of arithmetic, although I fully expect them to work that out. If the amount is in any sense different than what I have said, they are at liberty to include the proper amount upon consent of both of them in this order.
[22] Is there any issue with respect to the plaintiff getting her costs in this matter?
[23] MR. ELLARD: Yes.
[24] THE COURT: What is that?
[25] MR. ELLARD: Well --
[26] MR. BRADSHAW: About costs, I wasn’t clear with respect to the shorter period of the last three years, from the time -- or I mean three years from the time --
[27] THE COURT: That I am saying --
[28] MR. BRADSHAW: -- he became -- got this pension?
[29] THE COURT: No, I am saying that there is no basis for retroactive adjustment under the Guidelines at all.
[30] MR. BRADSHAW: Oh, okay.
[31] MR. ELLARD: You said that arrears be payable commencing September 1 and then your voice dropped off, was that 1992?
[32] THE COURT: 1992
[33] MR. ELLARD: Thank you.
[34] THE COURT: Costs?
[35] MR. ELLARD: On costs, My Lord, two things in particular, first of all, the claim was brought as -- in the amount of over $40,000. We acknowledged and agreed that $5,600 was owing. There’s a net recovery here of $2,200. At best, if the defendant is not substantially successful in defending his application, it has been a mixed success, and secondly, I told my friend this morning that we would put $10,000 on the table. That wasn’t accepted and here we are.
[36] MR. BRADSHAW: Actually, I did not get such a communication. I got a communication that --
[37] THE COURT: Well, it does not matter. If it is not --
[38] MR. BRADSHAW: -- he was seeking such instructions, but --
[39] THE COURT: If it is not in formal offer --
[40] MR. BRADSHAW: Yes.
[41] THE COURT: -- it is not even considerable by the court. It just seems to me that if it was not paid by now, I cannot consider that at all and the matter had to come to court, apparently, to get the amount that was obviously due and owing from Mr. Curry and, therefore, I will grant the plaintiff the costs of this hearing and the preparation for it.
“McEwan J.”
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The Honourable Mr. Justice McEwan