Citation: ☼S.K.R. v. N.S.B.

2020 BCPC 21
Date: ☼20200213
File No: 15567
Registry: Abbotsford

2020 BCPC 21 (CanLII)

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25

BETWEEN:
S.K.R.
APPLICANT

AND:
N.S.B.
RESPONDENT

REASONS FOR JUDGMENT

OF THE
HONOURABLE JUDGE K.D. SKILNICK

Appearing in person: S.K.R.

Appearing in person: N.S.B
Place of Hearing: Abbotsford, B.C.
Date of Hearing: February 12, 2020
Date of Judgment: February 13, 2020
S.K.R. v. N.S.B. Page 1

Introduction

[1] The Applicant, S.K.R. is the mother of a little boy named D.S.B., who was born
on [omitted for publication]. The Respondent, N.S.B. is the child’s father. The parties
were married in May of 2008 and lived together until December of 2009 when they

2020 BCPC 21 (CanLII)

separated. They have lived separate and apart ever since then and the child has been
in the Applicant’s care.

[2] On June 25, 2013, the Applicant filed an application for child support. That matter
is only now coming for a hearing. The Applicant says that she delayed proceeding on
the application because the Respondent threatened to stop seeing the child if she went
ahead with the application. She testified that she was concerned about emotional harm
that would come to the child if she went ahead with the application. The parties also
attempted resolution of the support issue through the Family Justice Counsellor, but
they were unsuccessful in resolving the issue through those means. The Applicant now
seeks an order from this court.

[3] Since the time of separation, the Respondent agrees with the Applicant that he
has only paid $630 in child support payments. This was paid pursuant to an interim
order made by the Honourable Judge G. J. Brown of this court, which required the
Respondent to pay the Applicant the sum of $210 per month for the support of the child
commencing on December 1, 2019 and continuing on the first day of each month
thereafter until further order of this court.

[4] The Respondent does not think that he should have to pay any child support, or
at best, only a modest amount of support for the child going forward. In his words, “I
don’t see the sense of retroactive support. I’ve paid for karate lessons and video
games.” He concedes that some of these things were paid for by his parents, but in his
opinion this amounts to the same thing as if he had paid them.

[5] On October 29, 2019, the Honourable Judge Jamieson of this court made an
order that the Respondent was to file a Financial Statement as required by the
Provincial Court (Family) Rules by December 15, 2019. The Respondent is in breach of
S.K.R. v. N.S.B. Page 2

that order and on the morning of the hearing, the Respondent furnished an unsworn
financial statement with some papers loosely attached, but he had not shown these to
the Applicant prior to the hearing.

[6] At the hearing of this matter, the parties both testified. At the conclusion of the

2020 BCPC 21 (CanLII)

hearing, the Applicant sought an order for retroactive child support from the time of
separation, and ongoing, based on the amount set out under the Federal Child Support
Guidelines. She seeks to have an income imputed to the Respondent in the amount of
$50,000. The Respondent asks for the application for retroactive support to be
dismissed and that ongoing child support remain at $210 based on the order of Judge
Brown.

[7] At the conclusion of the hearing, decision was reserved, but the parties were
advised that the Respondent would be treated in the same manner as any other parent
in Canada in his position. These reasons for judgement will set out the law that the
parties are subject to and how any retroactive and ongoing child support has been
calculated.

Applicable Law

1. The Obligation to Pay Child Support

[8] When parents bring a child into the world, they have a joint and ongoing legal
obligation to support their children according to their income earning ability. This is not
something that the parties can bargain away. It is the child’s right to be supported in this
manner. This is considered such an important obligation that a divorce cannot be
granted until parents make satisfactory arrangements for the care of their children. It is
the child, not the parent with primary care of the child, who has the right to
maintenance.

[9] The purpose of the Federal Child Support Guidelines is to establish a fair
standard of support for children that ensures that they continue to benefit from the
financial means of both parents after separation.
S.K.R. v. N.S.B. Page 3

[10] The payment of maintenance is based on the ability of the parent that is not
providing the day-to-day care of the child (in this case the Respondent) to pay. Ability to
pay is based not only on what that parent earns, but also what the parent can earn. The
law places the responsibility on parents who bring a child into the world to earn as much

2020 BCPC 21 (CanLII)

as they are capable of earning to meet their obligation to support their children.

[11] The obligation to support one’s child takes priority over other financial
obligations. A payor parent can’t use as an excuse for not paying child support that “I
can’t afford child support because I have too many other bills.” Parents are expected to
live within their means and make the obligation to support their children a priority. Even
when 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. In this case, the Respondent has a second family and is the father of two
children with his current partner. However, in his evidence, he testified that his new
partner works in a specialized field and he said that he had no idea what she earns.

[12] Delay in seeking or enforcement of a claim for child support is generally not a
relevant factor. A child cannot waive his or her right to maintenance, and a parent
cannot give up that right on behalf of a child. The obligation to pay child support should
be enforced in fairness to the parent who has had to bear a disproportionate part of the
expenses of raising the child. Both parents are jointly responsible for the cost of raising
the child and this responsibility should not be avoided by delay.

[13] The payor parent is not excused from meeting his or her obligation to pay for the
support of a child because others have provided assistance. The payor parent is also
not excused from paying child support at law because he or she spent money on the
child in other ways. The law is clear that it is up to the parent who is entitled to receive
child support to decide how that child support should be spent in the best interests of
the children.

2. Retroactive Child Support

S.K.R. v. N.S.B. Page 4

[14] Retroactive child support orders are not considered to be exceptional. They are
often justified by the fact that the payor parent has chosen not to meet his or her
support obligation due to a child. Delay in making an application for retroactive child
support may be excused if the applicant held reasonable fears that the payor parent

2020 BCPC 21 (CanLII)

would react vindictively to the application to the detriment of the child or to the family, or
if the applicant lacked the financial ability to bring the application or experienced
emotional impediments to bringing the application. Since child support is the right of the
child and cannot be waived by the recipient parent, delay does not eliminate the payor
parent’s obligation.

[15] Each parent’s behaviour should be considered in balancing the competing

factors for and against retroactive orders. If a parent has an obligation to pay child
support but refuses or neglects to do so, that conduct can be considered to be
blameworthy if it privileges the payor parent’s own interests over his or her children’s
right to an appropriate level of support. Where the payor withholds disclosing
information, this is a clear example of blameworthy conduct. A court must also consider
any hardship that will result from a retroactive award in ordering retroactive support.
However hardship for a payor parent is less of a concern if it results from his or her
blameworthy conduct.

[16] There are four options for when a retroactive support order can begin:

(a) the date when the application was made;

(b) the date when formal notice was given to the payor parent;
(c) the date when effective notice was given to the payor parent; or
(d) the date when the amount of child support should have increased.

As a general rule, the proper date is the date of effective notice. The first two options
should generally not be selected because parents should not be penalized for using an
application to court as a last resort. The “effective date” is the date when it was
indicated to the payor parent that child support needs to be calculated or recalculated.

3. How Child Support is Calculated

S.K.R. v. N.S.B. Page 5

[17] As a general rule, the Guidelines provide (in section 16) that a payor parent’s
annual income is determined using the sources of income set out under the heading
“Total Income” in the T1 General form issued by the Canada Revenue Agency and is
adjusted in accordance with Schedule III. But the guidelines go on to state that if the
court is of the opinion that the determination of a spouse’s annual income under section

2020 BCPC 21 (CanLII)

16 would not be the fairest determination of that income, the court may use other
methods to arrive at a fair number. A court may have regard to the spouse’s income
over the last three years and determine an amount that is fair and reasonable in light of
any pattern of income, fluctuation in income or receipt of a non-recurring amount during
those years.

[18] In appropriate cases, a court can impute annual income to a spouse. This is
allowed under section 19 of the Guidelines in a number of situations. These include:

1. Where the payor 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);
2. If the payor has failed to provide income information when under a
legal obligation to do so.
3. If the payor derives a significant portion of income from dividends,
capital gains or other sources that are taxed at a lower rate than
employment or business income or that are exempt from tax.

[19] In this case, the Respondent is in breach of a court order to provide the proper
financial disclosure to properly assess his financial ability to support his child. He was
ordered to file a proper financial statement by December 19, 2019, and has not
complied with that order. Even on the morning of the hearing, which was scheduled in
December of 2019, he had not complied with that order. The financial statement he
provided to the court was unsigned and unsworn. It only attached a Notice of
Assessment for 2018. He did not provide copies of his income tax returns, something
that would be vital in determining what deductions he has made in arriving at his
income, in disclosing the sources of his income, and the rate of tax. He also testified to
S.K.R. v. N.S.B. Page 6

having rental income but did not disclose this on his financial statement or provide any
details about this.

[20] Where the payor parent fails to provide information that is required by law to
properly assess what a fair level of child support should be, an adverse inference can

2020 BCPC 21 (CanLII)

be drawn against that party. A payor cannot be sheltered from his or her responsibility
to the child because of an unwillingness to be provide honest and open financial
disclosure. When the payor does so, the benefit of any doubt may be given to the
parent who is in receipt of child support.

Applying the Law to These Facts

[21] In the present case, the Respondent has not furnished any valid excuse for his
refusal to pay child support for his child (other than the recent payment of $630). The
excuses he gives do not justify him from refusing to do so. Specifically he gives four
reasons for not paying support for his child:

1. He does not see the sense of it: This is clearly not a valid excuse. His
child has a right to be supported by both of his parents. It is not something
that is optional for the Respondent, it is his responsibility to his child. He
does not evade this responsibility just because he doesn’t feel like it or
agree with it. He is subject to the same law as every other parent in his
position.
2. He has paid other expenses for the child: This is also not an excuse for
non-payment. Once the responsibility to pay child support arises, the
payor does not get to decide how that money should be spent. In this case
it is up to the Applicant to decide how the child support owed by the
Respondent can best be spent in the best interests of the child. Most
likely, that is not by spending it on video games.
3. Others have provided for the support of this child: This is all the more
reason for the Respondent to own up to his responsibility. Others should
not have to do what he is legally and morally obliged to do, and this is not
a legal excuse for his failure to pay child support.
4. Child support was never requested: This is obviously untrue. The
Applicant first filed an application for child support in June of 2013. The
issue was also discussed with the Family Justice Counsellor.
S.K.R. v. N.S.B. Page 7

[22] On the evidence, the reasons for non-payment of child support thus far have
been for purely selfish reasons on the part of the Respondent. He has shown no valid
reason whatsoever for failing to meet his financial, legal and moral obligation to support
this child.

2020 BCPC 21 (CanLII)

[23] The next issue to decide is whether the Respondent should be paying retroactive
child support. It is remarkable that he has not paid child support for almost ten years.
Clearly he has had the ability to do so. He is asset rich and has little debt in proportion
to his assets. Although the Respondent has been secretive about his financial position,
he admitted in his evidence that he is the owner of two rental properties and that he has
approximately $900,000 worth of equity in these two properties. He also has a relatively
new vehicle, an expensive motorcycle, a trailer, and a $7000 watch. He claims to have
$23,000 worth of credit card debt, but did not supply any independent proof of this. The
Applicant suspects that he has also under-reported all of his real estate holdings, as
well as his jewellery. In light of the fact that the Respondent is in breach of the order to
provide financial information in the required form and on time, her suspicions appear to
be reasonable. The Respondent also testified that he may or may not have registered
retirement savings plans but was unsure about this. This seems highly incredible. He
also claimed to have bank accounts with about $8,000, but did not produce any bank
statements.

[24] The lack of proper disclosure of his financial affairs, the selfish reasons for
refusing to pay child support, and the emotional blackmail of threatening to stop seeing
his child if the Applicant pursued her claim for child support all amount to clear evidence
of blameworthy conduct on the part of the Respondent. This blameworthy conduct
supports the imposition of an award for retroactive support from the time of separation
(i.e. commencing in January of 2010). The Respondent had the means to support his
child and had no valid reason for refusing to do so. That this will now result in a large
retroactive support order is something for which the Respondent only has himself to
blame.
S.K.R. v. N.S.B. Page 8

[25] The Applicant asks for a finding that the Respondent should have an imputed
income of $50,000 per annum attributed to him. The only Notices of Assessment that
the Respondent has produced (for 2017 and 2018) shows line 150 income of $12,051
and $20,763 respectively. The Respondent has not disclosed how this income is arrived

2020 BCPC 21 (CanLII)

at, and whether it is the product of huge depreciation claims from his rental properties or
is the product of some other artificial reduction. No income information has been
furnished for 2019. The Respondent simply states that he is employed for a company
that does “real estate consulting.”

[26] The Respondent is also a real estate agent, but he claims that he is unable to
work in that profession because of “car accidents”. He was vague about how he is
prevented from working as a realtor, and did not furnish any medical evidence or reports
confirming that his injuries prevent him from doing so.

[27] This case falls squarely within section 19 of the Guidelines, which allow for an
income to be imputed to the Respondent, rather than relying on his Notices of
Assessment. He has failed to meet his obligations to furnish full and complete financial
disclosure, even to the point of being in breach of an order of this court to do so. He has
not provided the supporting income tax documents to properly assess and verify the
income shown on his Notices of Assessment. Where there has been a failure to be
open about a payor parent’s financial disclosure, this Court can draw an adverse
inference against the Respondent. The case is all the more strong for doing so here
where the Respondent has demonstrated an intention to refuse to meet his obligations
to support his child without good excuse for doing so.

[28] While the Applicant has had to support her child without any significant help from
the Respondent, he has been able to build his own financial position to a point where he
has built a net worth of over a million dollars. The Respondent did not provide any
evidence on how he was able to do so while earning in the twelve to twenty thousand
dollar range annually. Under these circumstances, it is reasonable to draw an adverse
inference against the Respondent and to attribute an annual income to him in the range
suggested by the Applicant.
S.K.R. v. N.S.B. Page 9

[29] Imputing an annual income of $50,000 per annum to the Respondent from and
after January 1, 2010, it is reasonable and fair to this child to assess retroactive child
support from and after that date, based on the imputed income, at the guideline amount.
From January 1, 2010 to December 1, 2011 an annual income of $50,000 attracted a

2020 BCPC 21 (CanLII)

monthly child support amount for one child in the sum of $465 per month. In late
December of 2011 the Guidelines were changed such that an imputed income of
$50,000 attracted a child support payment of $458 per month. The tables were changed
again on November 22, 2017 and from and after that date, the monthly child support
order for these circumstances is $470.

[30] The amount of retroactive child support owing by the Respondent to the
Applicant is the sum of $55,738 calculated as follows:

a) From January 2010 to December 2011, 24 months at $465 per

month: $11,160;
b) From January 2012 to November 2017, 71 months at $458 per
month: $32,518;
c) From December 2017 to February 2020, 27 months at $470 per
month: $12,690
d) Less child support received to date: ($630)
TOTAL ARREARS OF CHILD SUPPORT: $55,738.

[31] The Respondent has assets to mortgage or sell in order to once and for all meet
his obligation to support his child. In order to incentivize him to do so, a high monthly
payment will be set to be paid toward the arrears. The intention is for this, and the fact
that the Family Maintenance Employment Program will assess a higher rate of interest
than a bank would on a mortgage, to prod him to get these arrears paid off sooner
rather than later.

[32] An order will be made for payment of retroactive maintenance as calculated

above, for ongoing child maintenance based on the imputed income, and for the
requirement to make full and open financial disclosure in future to that the level of
support that this child is entitled to can be properly assessed. The Respondent will also
be ordered to pay his proportionate share of the child’s expenses under section 7 of the
S.K.R. v. N.S.B. Page 10

Guidelines. Based on the Applicant’s reported annual income of $32,720 and the
Respondent’s imputed annual income of $50,000, the Respondent’s share of these
expenses will be 60.44%.

Order

2020 BCPC 21 (CanLII)

[33] For the foregoing reasons, it is ordered as follows:

Upon the Court being advised that the name and birth date of the child is D.S.B., born
on [omitted for publication];
1. The Respondent, N.S.B. is found to be a resident of British Columbia and
is imputed to have a gross annual income of $50,000.
2. N.S.B. will pay to the Applicant, S.K.R., for the support of the child, the
following amounts:
a) From January of 2010 to December of 2011, both inclusive, the
sum of $465 per month, payable on the 1st day of each of those
months;
b) From January of 2012 to November of 2017, both inclusive, the
sum of $458 per month, payable on the 1st day of each of those
months;
c) From December 1, 2017 and continuing on the 1st day of each and
every month thereafter, the sum of $470 per month for as long as
the child is eligible for support under the Family Law Act or until
further Court order.
3. N.S.B. will pay to S.K.R. his proportional share for the child’s special or
extraordinary expenses. The parties’ respective proportional shares are,
for N.S.B., 60.44% and for S.K.R., 39.56%. The following expenses will be
special or extraordinary expenses:
a) child care expenses incurred as a result of the Applicant’s
employment, illness, disability or education or training for
employment;
b) that portion of the medical and dental insurance premiums
attributable to the child;
c) health-related expenses that exceed insurance reimbursement by
at least $100 annually, including orthodontic treatment, professional
counselling provided by a psychologist, social worker, psychiatrist
or any other person, physiotherapy, occupational therapy, speech
therapy and prescription drugs, hearing aids, glasses and contact
lenses;
S.K.R. v. N.S.B. Page 11

d) extraordinary expenses for primary or secondary school education

or for any other educational programs that meet the child’s
particular needs; and
e) expenses for post-secondary education.
4. The arrears of child support owing from N.S.B. to S.K.R. as of the date of
this order are $55,738, including principal and interest and default fees.

2020 BCPC 21 (CanLII)

5. N.S.B. will pay to S.K.R. a minimum of $1,500 per month towards the
arrears of support, in addition to his regular monthly support payments,
commencing on March 1, 2020 and continuing on the 1st day of each
month thereafter until the arrears are paid in full or until further Court
Order.
6. For as long as the child is eligible to receive child support, the parties will
exchange:
a) copies of their respective income tax returns for the previous year,
including all attachments, not later than May 31st of each year; and
b) copies of any Notice of Assessment or Reassessment provided to
them by Canada Revenue Agency, within 7 days of receipt.
In the event that the N.S.B. fails to provide financial disclosure as required by the
terms of this order, then pursuant to s. 213(2)(d)(ii) of the FLA, he shall pay to
S.K.R. an additional sum of $500 as a penalty for failure to comply with this term
of the order.

Dated at the City of Abbotsford, in the Province of British Columbia, this 13th day of
February, 2020.

______________________________________
The Honourable Judge K. D. Skilnick
Provincial Court of British Columbia