The Honourable Madam Justice Newbury

The Honourable Mr. Justice Mackenzie

[1] This appeal concerns the enforcement and variation of a child support order. It focuses on the undue hardship provisions of the Child Support Guidelines.

[2] The basic facts are not seriously in dispute.

[3] The parties divorced in 1994. At that time, they consented to an order requiring Mr. Llewellyn to pay $750.00 monthly for the support of their three sons, Joshua (now 17), Tylor (now 16), and Mathew (now 13). At the same time, the parties settled the arrears under an interim order at $9,175.00, to be paid at $150.00 monthly under the terms of a payment order. Both parties remarried that year.

[4] Until 1 April 1996, Mr. Llewellyn was seeing the boys on a bi-weekly basis and for holidays and was up-to-date on the support order. In April 1996, the boys moved with their mother and her new husband to Kamloops from the Lower Mainland. From 15 August 1997 to July 1998, Tylor lived with his father and Ms. Llewellyn in the Lower Mainland. In December 1998, the boys moved with their mother and Mr. McCrae to Sylvan Lake, Alberta, where they now live, so Mr. McCrae could obtain employment. They lost their home in Kamloops and in March 1999 declared personal bankruptcy. Tylor again lived with his father from 1 April to 3 October 2000.

[5] Mr. Llewellyn is of the opinion the child support he has been ordered to pay precludes him from exercising reasonable access to the boys, given the distance the moves, first to Kamloops, then to Sylvan Lake, put between him and them. He submits the trial judge erred when he found no undue hardship arose from the costs of access. I will return to that question after considering the grounds of appeal with regard to the arrears under the consent order.

[6] Mr. Llewellyn acknowledges the table amount of support he is required to pay under the Child Support Guidelines is $751.00 monthly on his Guideline income of $40,405.00. He submitted the chambers judge erred when he when he failed to deduct his union dues from his gross income in determining his Guideline income. I agree the chambers judge's order must be varied to take account of the union dues.

[7] The chambers judge fixed the arrears under the consent order at $32,750.00 as at 19 March 2001. This amount reflects Ms. McCrae's concession that Mr. Llewellyn was not required to pay $250.00 per month for Tylor for the 16-1/2 months when he he was living with his father. At the hearing before us, Ms. McCrae accepted the arrears to 31 March 2001 at $31,200.00. On Mr. Llewellyn's view of agreements he made with Ms. McCrae as circumstances changed, the arrears would have been at most $15,800.00 and more properly $6,200.00.

[8] The chambers judge was not persuaded Mr. Llewellyn had made an agreement with Ms. McCrae to vary child support in April 1996 or subsequently. Ms. McCrae denied having reached any agreement with Mr. Llewellyn to change the child support. She seems to have simply acknowledged in her claim to enforce the arrears that Tylor's support need not be paid while he lived with his father. She did propose a reduction in support to $600.00 per month plus $50.00 for gas for each trip she made to the Coquihalla tollgate so the boys might visit their father in the Lower Mainland. This proposal was subject to the condition that Mr. Llewellyn include the boys on his medical and dental insurance plan. This proved not to be possible. However, Mr. Llewellyn reduced his payments to $600.00 when he applied for that insurance coverage, believing he would obtain it. He continued to see the boys regularly.

[9] In August 1997, Mr. Llewellyn stopped making any payment for support when Tylor moved to his home. He took the view that Tylor offset one son in Ms. McCrae's care and that the access costs he was incurring offset the remaining $200.00 he had been paying. In August 1997, Ms. McCrae withdrew from the Family Maintenance Enforcement Programme. When she took no steps personally to enforce the order, Mr. Llewellyn assumed she agreed with his unilateral decision. He accepts that he should have paid $600.00 per month for the months of July to November 1998 when Tylor was with his mother in Kamloops.

[10] When the McCraes moved to Sylvan Lake with the boys in December 1998, Mr. Llewellyn decided his obligation to pay child support was offset by his costs of access. That view continued while Tylor was with him from April to October 2000. However, after Tylor returned to his mother's home in November 2000, Mr. Llewellyn offered to arrange for payment of $600.00 monthly by his employer to Ms. McCrae to fulfil his obligation under the Child Support Guidelines.

[11] Each of the changes in the boys' circumstances could have founded an application to vary support, both before and after the introduction of the Guidelines. Section 17 of the Divorce Act permits retroactive variation. But Mr. Llewellyn did not apply to vary the support order, even when Ms. McCrae filed the application to enforce on 19 October 2000. Her non-action from April 1996 until October 2000 seems to have lulled Mr. Llewellyn into believing she agreed with his view of what payments were reasonable as circumstances changed from time to time.

[12] There is no suggestion Mr. Llewellyn is an uninterested father, or that he is not involved with and concerned about his sons' well being. But he does appear to act on his own view of the circumstances rather than that of Ms. McCrae or a court. He has not made any payment under the current support order. That fact would normally cause this Court not to hear his appeal. However, Ms. McCrae travelled from Sylvan Lake for the purpose of achieving finality with regard to her dispute with Mr. Llewellyn, and did not object. So we chose not to do so either.

[13] The chambers judge rejected Mr. Llewellyn's argument that he was entitled to a reduction of the arrears to take account of the changed circumstances and the agreements to which they allegedly gave rise. He made an attachment order under the Family Maintenance Enforcement Act directed to Mr. Llewellyn's employer requiring the payment of $500.00 per month on account of the arrears, commencing 1 April 2001. That order has been paid regularly.

[14] The combined practical effect of the attachment and support orders made by the chambers judge is that Mr. Llewellyn is left with $942.00 per month to support himself and pay the costs of visiting with his sons. While the chambers judge did not find it necessary to determine the costs of access additional to those that would be incurred if the boys were living in the Lower Mainland, the evidence suggests $350.00 would be a reasonable allowance for each visit given the standard of living the parties' income permits.

[15] The authorities are clear that non-enforcement in and of itself is no answer to an enforcement application. Nor is it a reason for cancelling arrears, as Chief Justice McEachern noted in Anderson v. Anderson [1999] BCCA 0147, at paras. 9 and 10:

[16] That is the general rule when a parent fails to honour a support obligation and many years later comes to Court seeking to avoid its enforcement, as Mr. Anderson did, based on his and the children's circumstances at that time. That was not Mr. Llewellyn's position. The chambers judge rejected Mr. Llewellyn's argument that he was entitled to a reduction of the arrears to take account of the changed circumstances and the alleged agreements. In arriving at this conclusion, the chambers judge was guided by the principles discussed in Cherry v Cherry (1996), 22 R.F.L. (4^th) 432, particularly in this passage from the reasons of Finch J.A. (as he then was) at para. 11:

[17] At para. 15, Mr. Justice Finch made clear the onus on the applicant was to show a change of circumstances such that he "was unable to pay during the time that the arrears accumulated or at the present time." Mr. Llewellyn did not attempt to meet that onus. Nor did he argue that he did. His point was that Ms. McCrae agreed with him that access was in the best interests of their sons and that he could not pay both child support and the costs of regular access. That agreement was the changed circumstance he argues the chambers judge ignored.

[18] I am not persuaded the chambers judge fell into the error of ignoring an agreement; he was not persuaded any agreement to vary child support had been reached. His opinion that any such agreement would have been irrelevant was harmless error.

[19] I do not agree with the chambers judge that no weight can be given to an agreement to vary support upon a change in circumstances. Such an agreement is a factor to be considered in determining whether the paying parent has established the "prejudice by delay, serious hardship or unfairness in the circumstances," Chief Justice McEachern held (in Anderson, supra) the authorities required. That expression of the rule regarding the defence of enforcement proceedings permits a payor who has defaulted to defend such proceedings by reference to facts that would render unfair the enforcement of the order. In some circumstances, an agreement to vary might carry significant weight in that regard.

[20] Moreover, one of the factors traditionally considered in determining whether it would be fair to enforce the payment of arrears in full is what would have been the result had the payor brought an application to vary upon a change in circumstance. This rule reflected the reality that for many reasons parents do not come to court every time the circumstances material to the determination of appropriate child support change. It recognized the reality that parents cannot always agree on the effect or significance of often-frequent change. It permitted some fluidity without long-term injustice.

[21] The difficulty in this case is that the Divorce Act provides a better remedy for such situations and, as so often happens when enforcement proceedings are brought, it was ignored. Section 17 permits a payor to seek a retroactive variation of a support order at any time. On such an application, the parties can lead evidence as to their circumstances at the time of the alleged change, including any agreement they made. The court can then vary the order retroactively, calculate the arrears, and determine how they should be paid having regard to current support obligations in the circumstances of the parties.

[22] That is the course this Court recommended in Rorison v. Rorison (1997), 35 B.C.L.R. (3d) 155; 29 R.F.L. (4^th) 1. There a payor applied to vary a consent order by cancelling the arrears and terminating support for two children in response to an enforcement proceeding. The question under s. 17 was what would have been the appropriate order had either parent sought a variation of child support at crucial changes in the circumstances of the parents or children. The application referred only to support before the Guidelines came into effect on 1 May 1997, so it required a determination and apportionment of child rearing costs between the parents taking into account their capacity to contribute to those costs, and income tax considerations.

[23] The real question on this appeal is whether this Court can or should treat Mr. Llewellyn's defence to the enforcement proceeding as if it were an application to vary retroactively under s. 17. The chambers judge was not wrong in failing to do so in the absence of an application by Mr. Llewellyn, although I would not have faulted him had he taken that course, permitting an adjournment if necessary for further evidence.

[24] The arrears that accumulated between 1 April 1996 and 1 May 1997 total $2,000.00: $1,400.00 in 1996 and $600.00 in 1997. Had they been the only arrears, it is unlikely Ms. McCrae would have pursued them. Mr. Llewellyn was seeing his children regularly. The McCraes were cooperating in that regard. In these circumstances, there was no reason for Mr. Llewellyn to seek to vary the consent order.

[25] The balance of the arrears accumulated after the coming into effect of the Guidelines. The situation changed with them. The calculation of child support became more straightforward. On any application to vary retroactively after 1 May 1997, the Guidelines would have applied. They are designed to produce a table amount based solely on the number of children in each parent's care and the other parent's income. Mr. Llewellyn's annual income, using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Customs and Revenue Agency, would have determined the table amount he was required to pay for the boys from time to time after 1 May 1997. He would have paid for three boys for May, June, and July 1997, then for two boys from mid-August 1997 to June 1998, for three boys from July 1998 to March 2000, then for two until September 2000, then for three until the date of the hearing. Ms. McCrae would have paid for Tylor while he was with his father. The amount for Tylor would have offset some of the table amount for his two brothers. Because Mr. Llewellyn was claiming undue hardship with regard to the prospective support Ms. McCrae was seeking, there was evidence about the cost of access, the McCrae family income, and what income (if any) should be imputed to Ms. McCrae.

[26] With the relevant evidence available and not in dispute, I considered whether this Court could have regard to s. 17 at least with regard to the arrears that have accumulated since 1 May 1997, so that the parties would not have to return to the Supreme Court on a further variation application. Because the only issues between the parties are as to the applicable legal principles, I have concluded this Court should assist the parties to conserve their resources, better spent on their sons, by resolving those legal principles and applying them to the facts revealed by the evidence.

[27] The first issue is the amount the arrears should be reduced attributable to the 16-1/2 months Tylor lived with Mr. Llewellyn. The evidence establishes the table amounts for the relevant period as follows:

As I noted earlier, Ms. Llewellyn conceded a deduction of $250.00 per month for those 16-1/2 months. The table amounts would have produced higher arrears. So, no deduction from the arrears can be made unless the undue hardship provisions apply.

[28] The second issue is the amount, if any, by which the arrears should be reduced to take account of Ms. McCrae's obligation to pay support for Tylor during those months. The question is whether any income should be imputed to Ms. McCrae under s. 19 (1)(a) of the Guidelines for the months Tylor was living with his father. On the income the evidence establishes she earned, she would not be obligated to pay support for Tylor. The chambers judge did not have to determine that issue because he did not need to determine her income for Guideline purposes.

[29] Section 19(1) provides:

[30] Ms. McCrae works only enough to supplement her husband's income to meet the needs of the boys living with her because she believes that it is in the boys' best interests that she be a "stay at home" mother, as she was when married to Mr. Llewellyn. This seems to be her general view of what is good for the boys, rather than a response to their particular needs. She led no evidence about any special need of Joshua, Tylor, or Mathew. There are no other children living with her and Mr. McCrae. Mr. McCrae opined in an affidavit that Ms. McCrae could earn about $18,000.00 annually if she were employed on a full-time basis. It seems Ms. Llewellyn has the ability to earn more money should she decide to seek more or full-time employment and that Mr. McCrae agrees with her decision not to do so.

[31] 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. (4^th) 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.

[32] Ms. McCrae raised a further difficulty with regard to the arrears on this appeal. She advised this Court that the attachment order in the amount of $500.00 effectively prevents her from enforcing the current order. She seeks to avoid the cost of returning to the Supreme Court to set aside the attachment order and obtain a new one by asking this Court to direct the payment of the current amount by his employer. Ms. Llewellyn's response was that her husband could not pay $1,261.00 and exercise access to the children. That leads directly to the question of undue hardship.

[33] On this aspect of the appeal, the essential facts are not in dispute. Mr. Llewellyn's income as determined under the Guidelines is $40,400.00. His wife's income in 2000 was $23,200.00, but more usually $30,000.00. With them live Ms. Llewellyn's two sons whom she supports with informal assistance as needed from their father. Ms. McCrae's income in 2000 was about $5,200.00. Her husband earned $56,000.00 in 2000 and benefits from the personal use of an automobile. Mr. Llewellyn's after-tax income is about $2,700.00 monthly.

[34] As I mentioned earlier in these reasons, a reasonable allowance for the costs of an access visit attributable to the distance between the McCrae and Llewellyn homes is about $350.00. This is a significant expense given Mr. Llewellyn's income. Together with the distance, the cost puts bi-weekly and monthly access out of the question, and makes visits to Vancouver unlikely unless the McCrae family is coming for some reason to this area or the boys are coming for an extended stay. The number of visits in 1999 and 2000 reflects this reality. There were six in 1999 and 4 in 2000, years during which Mr. Llewellyn was paying no child support at all. If that pattern holds the additional cost of reasonable access for the coming year would be between $1,500.00 and $2,000.00.

[35] Mr. Llewellyn considers the chambers judge erred in his application of s. 10 of the Guidelines to these facts. That section provides:

[36] The chambers judge accepted there would be hardship to Mr. Llewellyn from paying the amount of the current order and the costs of access, but did not find that hardship to be "undue." I see no reason to interfere with that finding. The authorities support it.

[37] At para. 51 of her reasons in Van Gool, supra, Madam Justice Prowse wrote about s. 10:

[38] In Ness v. Ness(1999), 43 R.F.L. (4^th) 363 (B.C.C.A.), Mr. Justice Lambert considered the circumstances of a father whose relevant circumstances were not dissimilar to those of Mr. Llewellyn. Mr. Ness' four children were with him two nights and three days every eight days and for two periods of 12 days each year with all the expenses that amount of access involved. He lived with his fianceé, who was earning $22,000.00 per year, and her child. On his income of $55,000.00, Mr. Ness was left with an income of $1,313.00 after payment of child support of $1,186.00 monthly. Mr. Llewellyn's comparable net income after payment of current child support is $1,278.00 monthly. While Mr. Justice Lambert did not set out the costs of the very considerable access Mr. Ness was enjoying to his children, it is highly unlikely Mr. Ness' access costs were less than those the evidence establishes Mr. Llewellyn incurred for 4 to 6 visits a year. It follows I would not interfere with the order regarding child support commencing 1 April 2001.

[39] The real hardship Mr. Llewellyn suffers is from his being required to make payments of $500.00 monthly on account of the arrears. That is a consequence of his failure to respect a court order in the past rather than "unusually high expenses in relation to exercising access." That hardship falls to be considered in determining an appropriate enforcement order. As I mentioned earlier, Ms. McCrae acknowledges there are problems with the enforcement order, although she does not accept that Mr. Llewellyn cannot pay $500.00 per month from his net income as well as current child support and expenses associated with access.

[40] Mr. Llewellyn has a valid point. It derives from the amount of cash he actually receives. His bi-weekly pay cheque is in the amount of $941.00, after statutory and other compulsory deductions that total about $530.00. Whatever present or future benefit he may receive from some of those deductions the money is not available to make payments on the arrears of child support. His average monthly cash income is about $2,040.00. If he pays $751.00 in child support that leaves him with $1,285.00 with which to cover his personal and access expenses. As I indicated earlier that would leave him with sufficient funds to finance access visits.

[42] It follows from these reasons I would vary the current support order to $751.00 monthly. I would set aside the order fixing arrears and substitute for it an order setting the arrears at $28,600.00. I would set aside the attachment order and substitute for it an order directing Mr. Llewellyn to direct his employer to make two direct payments monthly to Ms. McCrae totalling $951.00. If his employer does not cooperate in this regard, the parties may address this Court in writing as to the terms of an appropriate payment order.

[43]

Each party should bear their own costs of this appeal. I would not interfere with the order for costs in the Supreme Court.

"The Honourable Madam Justice Huddart"

I AGREE:

"The Honourable Madam Justice Newbury"

I AGREE:

"The Honourable Mr. Justice Mackenzie"