Citation: ☼ TS v.

BB
2023 BCPC 171
Date: ☼20230705
File No: 37124
Registry: Penticton

2023 BCPC 171 (CanLII)

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

BETWEEN:
TS
CLAIMANT

AND:
BB
DEFENDANT

REASONS FOR JUDGMENT

OF THE
HONOURABLE JUDGE S.KEYES

Counsel for the Claimant: I. Hill

Counsel for the Defendant: M. Patterson
Place of Hearing: Penticton, B.C.
Dates of Hearing: June 3, October 1, 2021, October 25, 2022, January 10, 11,
April 14, 2023
Date of Judgment: July 5, 2023
TS v. BB Page 1

INTRODUCTION

[1] TS (or “Ms S”) and BB (or “Mr B”) are the parents of three children: B, K, and A.
The parties separated in 2013, reconciled at some point and then separated again in
the spring of 2014. All of the children lived primarily with Ms S until the end of

2023 BCPC 171 (CanLII)

September 2015, when their son B went to live with a friend. After that, the girls
remained with their mother until A left to live with her father in September 2017. Since
then, the parents have had split parenting regimes at various times. On June 3, 2021, I
made an order regarding the imputation of income, arrears and ongoing child support
from March 1, 2021 onward, and adjourned the issue of retroactive child support.

[2] On April 14, 2023, the last day of this hearing, with the assistance of counsel, the
parties were able to agree for the most part on the question of with whom the children
have lived since the parties separated in 2014. The questions before the court at this
point are whether the court should impute income to Mr B, and if so, in what amount;
whether Mr B is obliged to pay retroactive child support back to 2014, and if so, to
determine the quantum of child support based on with whom the children lived at
various time periods.

HISTORY OF APPLICATIONS FOR CHILD SUPPORT BY MS S

[3] Ms S has made several applications seeking child support over the years. On
April 3, 2014, she filed an application seeking child and spousal support from March 1,
2014. It is not clear whether that application was served on Mr B. Then on February 19,
2015, Ms S again applied for child support for the children. Mr B filed a reply March 25,
2015, in which he agreed with the application, but sought a five-month extension on his
obligation to file a financial statement. On May 15, 2015, Judge Klinger amended
Ms S’s application to include a claim for retroactive child support.

[4] Mr B was ordered to provide financial disclosure multiple times. Judge Klinger
made an order on May 15, 2015, requiring Mr B to file a financial statement by June 15,
2015. Mr B filed a financial statement late (on June 16, 2015), attaching some income
information for 2012, 2013 and 2014, but not his income tax returns, but including
TS v. BB Page 2

information that his employment ended in April 2015 and that in June 2015, he applied
for social assistance.

[5] On June 19, 2015, Judge Koturbash ordered him to file his 2012, 2013 and 2014
income tax returns within 30 days and adjourned the matter to September 25, 2015.

2023 BCPC 171 (CanLII)

Mr B did not comply with Judge Koturbash’s order; he simply submitted a few pages of
some notices of assessment for those years. On September 25, 2015, Judge Koturbash
again ordered that Mr B provide financial documents to Ms S and adjourned the matter
to November 27, 2015. On that day, it is not clear from the court records whether Ms S
was in attendance although she testified she was present for the trial date. It is clear
from the court records that, in a bewildering turn of events, on the trial date, the matter
was marked as “concluded”; no order for child support was made, despite Mr B.’s reply
having agreed to the same.

[6] On October 11, 2019, Ms S again applied for child support, retroactive to 2013. It
is not clear whether that application was served on Mr B. Another application was filed
by Ms S on February 4, 2020, seeking child support for the children in her care at the
time. She was at that time represented by counsel, Mr Hill. On September 15, 2020,
Judge Cartwright ordered that Mr B provide disclosure for the prior seven years, going
back to 2013.

[7] On November 23, 2020, Mr B filed a financial statement with the court, attaching
tax return information for 2017, 2018 and 2019. On April 6, 2023, he filed another
financial statement indicating he was again in receipt of social assistance and attaching
his notices of assessment for 2021 and 2022. He has never filed any financial
information for the year 2020, although he admits he was working that year.

[8] The hearing before me commenced on June 3, 2021. At that time, Mr B was
unrepresented and sought to adjourn. I ordered that the hearing proceed regarding child
support ongoing from March 1, 2021, and that the portion of the trial dealing with the
retroactive child-support claim from 2013 to 2019 be adjourned so that Mr B could seek
legal advice regarding retroactive claims. I imputed income to Mr B and ordered
TS v. BB Page 3

ongoing child support commencing March 1, 2021. On October 1, 2021, the trial
recommenced on the issue of retroactive child support.

[9] There were many adjournments after October 2021, almost all of which were at
the behest of Mr B. Evidence and submissions finally concluded on April 14, 2023.

2023 BCPC 171 (CanLII)

WHETHER TO MAKE A RETROACTIVE ORDER FOR CHILD SUPPORT AND IF SO,
TO WHAT DATE?

[10] Mr B relies on DBS v SRG, 2006 SCC 37 (CanLII). Ordinarily, the court is quite
cautious when considering applications for retroactive variations to child support.
Retroactive orders change the obligations of people when they have already organized
their affairs and therefore, retroactive orders can sometimes unfairly take a party by
surprise. Moreover, retroactive orders are typically not to be made effective more than
three years prior to the application, or effective notice of it, being given to the party: DBS
v SRG, 2006 SCC 37 (CanLII).

[11] However, a failure to seek variation of child support by the recipient does not
preclude such an application going beyond the three-year presumption, where the
recipient has not received timely disclosure from the payor as to a change in income.
The recipient has no means to obtain the payor’s income information – that information
is entirely within the payor’s control. A failure to frankly disclose meaningful financial
information, sufficient for the recipient to make an informed decision regarding whether
to seek a variation of child support, is blameworthy conduct on the part of the payor:
Michel v Graydon, 2020 SCC 24 (CanLII).

[12] The court in DBS provided guidance on the factors to take into account when
considering whether to make a retroactive child-support order. One factor is whether the
payor had actual notice of the application for child support or the need to pay it. Another
is the reason for delay in applying for child support. That is, why did the person seeking
a retroactive child-support order not apply immediately or without unreasonable delay?
The conduct of the payor is another factor – that is, whether the payor engaged in any
blameworthy conduct. The court should also consider the current circumstances of the
children and whether the retroactive order will cause hardship to the payor.
TS v. BB Page 4

[13] Mr B argued that it would be unfair to make a retroactive order beyond 2019,
much less to 2014 as sought by Ms S. He argues that there has been no blameworthy
conduct on his part, because he was unable, not unwilling, to provide child support all
these years, that the children’s circumstances are different now because two of the

2023 BCPC 171 (CanLII)

three children no longer reside with their mother, and that a retroactive award at this
point would only cause him hardship.

NOTICE

[14] As noted in the history of this litigation above, Ms S has filed multiple applications
for child support since the parties’ separation date in 2014. Judge Klinger specifically
amended her 2015 application to include a claim for retroactive child support, in court,
when Mr B was present. Mr B actually agreed to pay child support in his reply, but then
repeatedly failed to comply with court orders to provide disclosure, resulting in multiple
court appearances.

[15] I find Mr B had notice in 2015 that Ms S was seeking child support retroactive to
April 2014 and he had already agreed that he owed it. The fact that he did not meet
child-support obligations does not mean he did not have notice of that outstanding
obligation. Ms S’s 2019 application, which is before the court at this time, is nothing new
and cannot possibly take Mr B by surprise. I find he has been on notice with respect to
Ms S’s claim for child support retroactive to April 2014, ever since March 2015.

REASONS THE PAYEE FAILED TO SEEK CHILD SUPPORT

CONTEMPORANEOUSLY

[16] Ms S testified that on the trial date in September 2015, the court noted that Mr B
was then on welfare and said to her words to the effect of “you can’t get blood from a
stone” and did not make an order for child support. The matter was adjourned to
November for Mr B to provide the disclosure that had been previously ordered. Mr B
testified that Ms S did not show up at the November appearance, so the matter was
dismissed, but she says she never missed a court date. The court record from
November 2015 did not record a dismissal of Ms S’s application, only that the matter
TS v. BB Page 5

was “ended” and no order for child support was made despite Mr B.’s reply indicating he
did not dispute his obligation to pay.

[17] Ms S testified that Mr B told her he deliberately went on welfare because he was
determined not to pay any child support. She testified he went back to work immediately

2023 BCPC 171 (CanLII)

after her application for child support was dismissed. She said she felt she had been
made to look like a fool in court. She testified that after that, she gave up seeking child
support through the court and she stopped asking Mr B for child support because she
thought he would get mad.

[18] I accept Ms S’s explanation of her reasons. She had made a timely application
for child support which was thwarted by Mr B’s failure to comply with multiple court
orders for disclosure and by his quitting work and going on welfare. I accept that Mr B
told her he would go on welfare if she pursued child support. Given the response she
received from the court in the fall of 2015, to the effect that “you can’t get blood from a
stone”, I find her failure to make continued applications for child support was
reasonable, but that does not in any way excuse Mr B from his obligation to support his
children.

BLAMEWORTHY CONDUCT

[19] I look upon Mr B’s repeated failure to comply with court orders requiring him to
provide financial disclosure as blameworthy behaviour. Indeed, that behaviour had the
effect of dragging out proceedings until Ms S gave up. I also accept Ms S’s evidence
that Mr B told her he would not pay child support and would quit work and go on welfare
to avoid paying. I accept that he said those words to Ms S. I find that is blameworthy
conduct.

[20] I find Mr B’s solitary payment of $400 to Ms S in April 2014 was an indicator that
he was well aware of his obligations to his children. Mr B frankly acknowledged that
after his single payment in 2014, he never contributed any financial support whatsoever
to his children in all the years that Ms S had been caring for them. I find he chose to pay
nothing even when he was employed – and he chose to claim the child tax benefit for
the entire year of 2017 even though his daughter was only with him for three months in
TS v. BB Page 6

that year, which caused additional hardship to Ms S and the child in her care. I find that
blameworthy conduct.

[21] I draw an adverse inference against Mr B for his failure at this hearing to provide
income information regarding his employment and EI earnings for 2020. He could have

2023 BCPC 171 (CanLII)

obtained a tax return summary for that year from the CRA and he chose not to do so. I
find that blameworthy conduct.

CURRENT CIRCUMSTANCES OF THE CHILDREN

[22] The current circumstances of the children are a relevant consideration in whether
to impose a retroactive award. In DBS, the court said:

110 A retroactive award is a poor substitute for an obligation that was

unfulfilled at an earlier time. Parents must endeavour to ensure that their
children receive the support they deserve when they need it most. But
because this will not always be the case with a retroactive award, courts
should consider the present circumstances of the child — as well as the
past circumstances of the child — in deciding whether such an award is
justified.
111 A child who is currently enjoying a relatively high standard of living
may benefit less from a retroactive award than a child who is currently in
need. As I mentioned earlier, it is a core principle of child support that,
after separation, a child’s standard of living should approximate as much
as possible the standard (s)he enjoyed while his/her parents were
together. Yet, this kind of entitlement is impossible to bestow retroactively.
Accordingly, it becomes necessary to consider other factors in order to
assess the propriety of a retroactive award. Put differently, because the
child must always be the focus of a child support analysis, I see no reason
to abstract from his/her present situation in determining if a retroactive
award is appropriate.
112 Consideration of the child’s present circumstances remains consistent
with the statutory scheme. While Parliament has moved away from a
need-based perspective in child support, it has still generally retained
need as a relevant consideration in circumstances where a court’s
discretion is being exercised: see ss. 3(2)(b), 4(b)(ii) and 9(c) of
the Guidelines. Some provinces, like Quebec, even provide courts with
discretion to alter default child support arrangements, within defined limits,
on the basis of need: see art. 587.1 of the Civil Code of Québec, S.Q.
1991, c. 64. Unless the applicable regime eliminates need as a
consideration in discretionary child support awards altogether, I believe it
TS v. BB Page 7

remains useful to retain this factor when courts consider retroactive

awards.
113 Because the awards contemplated are retroactive, it is also worth
considering the child’s needs at the time the support should have been
paid. A child who underwent hardship in the past may be compensated for
this unfortunate circumstance through a retroactive award. On the other

2023 BCPC 171 (CanLII)

hand, the argument for retroactive child support will be less convincing
where the child already enjoyed all the advantages (s)he would have
received had both parents been supporting him/her: see S. (L.). This is not
to suggest that the payor parent’s obligation will disappear where his/her
children do not “need” his/her financial support. Nor do I believe trial
judges should delve into the past to remedy all old familial injustices
through child support awards; for instance, hardship suffered by other
family members (like recipient parents forced to make additional
sacrifices) are irrelevant in determining whether retroactive support should
be owed to the child. I offer these comments only to state that the
hardship suffered by children can affect the determination of whether the
unfulfilled obligation should be enforced for their benefit.

[23] To summarize, if children, deprived of support from a parent, wanted for nothing
and enjoyed a high standard of living when the support should have been paid and
continue to do so at the present time, the court might decide against making a
retroactive award, especially if to do so would impose hardship upon the payor’s other
children.

[24] The children have all grown older, naturally, during the time that has passed
since this application was filed: B is now [omitted for publication]; K is almost [omitted
for publication]; A is almost [omitted for publication]. A lives with her mother.

[25] K was living with her mother until she moved away from home and in with a
friend on a “youth agreement” in 2021, under which she was provided some rental and
financial assistance to live. K has returned home and then moved out again several
times under various renewals of the youth agreement, some of which did not include
any residential assistance and provided only $100/m in financial assistance. Most
recently, on March 1, 2023, K moved into her own apartment, under an arrangement
with the Ministry of Children and Family Development (“MCFD”) that the Director pays a
portion of her rent and her power bill and provides some financial support every two
TS v. BB Page 8

weeks. Ms S helps her pay her internet, paid her second month’s rent and has been
buying her groceries.

[26] B lives independently with his girlfriend, but Ms S assists him by helping to
furnish his place and she gives him money now and then. Ms S commented that her

2023 BCPC 171 (CanLII)

children cost her more when they are not living at home. Ms S has also been helping
the children to furnish their homes.

[27] In this case, Mr B has no other children or dependents of any kind. It is

reasonable to infer, from the fact that Ms S was herself in receipt of social assistance
during the time periods when the children were in her care, that the children did not
have an affluent lifestyle. I infer from Ms S’s evidence that the older children continue to
need assistance to meet very basic needs, such as rent, groceries, furnishings and
internet. Nothing in the evidence suggests that these children enjoy, or have ever
enjoyed, an affluent lifestyle. Indeed, Ms S’s evidence was that when Mr B claimed the
2017 child tax credit for A (despite having her only three months in 2017), Ms S had to
repay the 2017 child tax benefit in 2018 which resulted in considerable hardship for her
and her other children, including K and B. She had to rely on food coupons from MCFD
to be able to feed the children. I find Mr B’s failure to meet his financial obligations to the
children deprived them of support which they very much needed at the time and still
need to be ready to enter the world of adulthood.

HARDSHIP

[28] Mr B submits that it would not be appropriate to impose on him a retroactive child
support order because such an order would cause him hardship. He submits that the
fact that he is in receipt of income as a “person with multiple persistent barriers” should
satisfy the court that he is incapable of earning anything greater than that amount. He
testified that he lives at a bare subsistence level, and that it would be impossible for him
to pay anything towards retroactive child support. In the alternative, he argues that if the
court were inclined to make a retroactive award, it should be on the basis of his current
income – that is, $985/month, or $11,820 annually, not on any income greater than that.

WHETHER TO IMPUTE INCOME TO MR B

TS v. BB Page 9

[29] The case of MCD v DAD, 2017 BCSC 1832, provides a helpful summary of the
legal framework and circumstances in which it is appropriate to impute income to a
party. Beginning at paragraph 27, the court said:

Legal Framework

2023 BCPC 171 (CanLII)

[27] In addition to considering each parties’ declared income, there is a
broad judicial discretion to impute income to either or both of the spouses
for the purposes of determining child and spousal support. The party
seeking to have income imputed must establish an evidentiary basis for
such a finding: Marquez v. Zapiola, 2013 BCCA 433 at para. 36.

[28] Both parties are obligated to contribute to the support of their children.
It follows that the imputation of income involves consideration of the
guiding principles set out in s. 19(1)(a) of the Guidelines. Section 19 of
the Guidelines permits the court to impute income in several scenarios,
including where a parent is intentionally under-employed or unemployed,
appears to have diverted income, or has failed to provide obligatory
income information. The court’s power to impute income under s. 19 is not
limited by the restrictions set out in ss. 16-18 of
the Guidelines: Ouellette v. Ouellette, 2012 BCCA 145 at para. 66.

[29] Imputing income for intentional unemployment or under-employment

does not require a finding of bad faith on the part of the spouse in respect
of whom imputation is sought; it only requires a finding that he or she is
not earning to capacity: Beissner v. Matheusik, 2014 BCSC 1785 at
para. 37, aff’d 2015 BCCA 308.

[30] In Schmidt v. Sucke, 2013 BCSC 1489, Madam Justice Fisher

distilled the principles which inform the court’s analysis of the imputation of
income for child support purposes at para. 45:

(a) Parties liable to pay child support cannot avoid their

responsibilities simply by virtue of being under-employed (Van
Gool v. Van Gool (1998), 1998 CanLII 5650 (BC CA), 59
B.C.L.R. (3d) 395 (C.A.) at para. 31).

(b) Parents have a joint and ongoing legal obligation to support their
children and must earn what they are capable of earning. The
court gives effect to this obligation by imputing income (Hanson
v. Hanson, 1999 CanLII 6307 (BC SC), [1999] B.C.J. No. 2532
(B.C.S.C) at paras. 8-9).

(c) Bad faith is not required. A parent is intentionally under-

employed if he chooses to earn less than he is capable of
earning (Hanson at para. 13).
TS v. BB Page 10

(d) When imputing income due to intentional under-employment,

the court must consider what is reasonable in the
circumstances, including the age, education, experience, skills
and health of the parent, and other matters such as the
availability of work (Hanson at paras. 14 and 20).

2023 BCPC 171 (CanLII)

(e) A parent who chooses to work less than full time must justify
that choice by the needs of the children. (Mahannah v.
Mahannah, 2012 BCSC 403 at paras. 122-123; McCaffrey v.
Paleolog, 2011 BCCA 378 at para. 49).

[30] Mr B was a professional truck driver working for [omitted for publication] until the
spring of 2015. He has a Class 1 driver’s licence. Ms S’s uncontradicted evidence was
that, when they were together, he was a very good provider and earned over $70,000.
In 2013 (when the parties first separated), he earned $41,736 and in 2014 (when the
parties permanently separated) he earned $31,496. In the spring of 2015, he stopped
working and went on social assistance, shortly after his first court appearance regarding
Ms S’s application for child support.

[31] Mr B gave a variety of explanations for stopping work. He told me during his
testimony in 2021 that he had been working at [omitted for publication], but the dam
blew up at Mount Polley in 2014 so he moved back to [omitted for publication]. He said
he had a couple of months’ work for his “old boss” but had to “call in” to work all the time
because of trouble managing his daughter who was living with him at the time. I infer
that the trouble Mr B had managing his daughter caused him to be unavailable to work.

[32] The difficulty with Mr B’s explanation that caring for his daughter prevented him
from working in 2014 or 2015 is that the agreed statement of facts provided to court in
2023 indicate that none of the children lived with Mr B in 2014 (except for one month),
nor in 2015, nor did either of his daughters live with him in 2016. In fact, Mr B did not
have a daughter living with him until September 2017. Thus, Mr B’s explanation that he
was unable to work because of difficulties managing his daughter in 2014, 2015 (or
even 2016 and most of 2017) is simply untrue.

[33] Mr B also said he went on welfare as a result of a neck injury that happened
sometime in 2015, but he did not specify when it happened, except that it was after he
TS v. BB Page 11

left his residence in [omitted for publication] and returned to [omitted for publication]. Mr
B said he was unable to provide any further details about his neck injury because his
papers were all burnt up in a vehicle fire.

[34] Mr B testified that he applied for a disability pension recently but did not qualify

2023 BCPC 171 (CanLII)

because that pension required a certification of his disability by his doctor. Then in
March of 2023, he applied for a form of social assistance called “persons with persistent
multiple barriers”. In the application document, Mr B wrote that he has suffered from
neck, shoulder and arm pain since 2012, which is inconsistent with his evidence that it
started after a quadding accident in 2015. He also ticked a box in which he attested that
he did not have basic skills for employment – despite having worked as a professional
driver for many years and having a Class 1 driver’s licence. I infer that Mr B was
unconcerned with the accuracy of the information he provided in order to obtain this
form of enhanced social assistance. Given Mr B’s lack of honesty, I cannot place much,
if any, weight on his testimony.

[35] Mr B testified in 2021 that he was working at that time one hour per day – for
which he was paid in meat. He said he traded mechanical work and yard work in return
for getting rides. He said he worked the two summers prior to 2021, working five-six
hours per day driving a tractor in the evenings at a vineyard, but stopped when his neck
injury became worse. The neck issue did not, however, prevent him from doing
mechanical work or yard work in 2021, when he was working odd jobs for cash or kind.

[36] I also recall Mr B’s evidence from June 2021 that he had been advised of the
option to have surgery to correct the problem in 2015 and several times since then, but
because he was informed he would have to quit smoking, he chose not to have the
surgery because he preferred to continue with his two-pack-a-day smoking habit. Mr B
testified more recently that he has no intention of having the problem surgically repaired
because the idea scared him and he “has not looked into it too much.”

[37] Mr B has not provided tax returns or any other financial disclosure regarding his
income in 2020. Income information about that year would assist the court to know what
earnings Mr B is capable of even if suffering from a neck injury. Clearly, it was possible
TS v. BB Page 12

for Mr B to provide that information, given that he was able to provide summaries or
notices of assessment for the years before and after that year and it is not difficult to
download the relevant information from the CRA website.

[38] I find it is not a coincidence that Mr B failed to provide information for a particular

2023 BCPC 171 (CanLII)

year in which, according to his testimony before me in 2021, he admits he was working
(although his financial statement indicated he was receiving Employment Insurance as
of November 2020). Mr B earned $28,864 in 2019 according to his income tax return
summary. According to his financial statement sworn November 23, 2020, Mr B claimed
to have an annual income of $21,984, declaring that his source of income was
Employment Insurance benefits. Although he did not disclose his 2020 tax return or
notice of assessment, he testified that his 2020 income from vineyard work was “about
the same” as 2019.

[39] Mr B testified that his failure to return to vineyard work in 2021 was due to his
neck pain increasing, and since then he claims he has been completely disabled from
working and is in receipt of a disability pension. I note that in 2021 he was able to carry
on working, doing heavy work as a mechanic. His evidence was more recently, he was
able to continue enjoying outdoor activities such as quad riding and snowmobile riding.
Indeed, his reason for missing trial dates earlier this year included that he had broken
some ribs while snowmobiling.

[40] Mr B’s assertion that he is poor and completely disabled from working at any
occupation calls for deeper scrutiny. Mr B testified that, in addition to quadding and
snowmobiling, he goes camping and sleeps in the back of his truck or in a tent on a
foamy, all of which I think would be very difficult and painful for a person suffering such
pain that he cannot work at all. I find it surprising that a person who claims to be unable
to work at all due to neck pain is able to enjoy vigorous (and expensive) outdoor
activities like quadding and snowmobiling multiple times per year and as recently as
January of 2023.

[41] Mr B was able to work in 2013 ($41,736) and in 2014 ($31,360). If Mr B did
indeed suffer from neck and other pain ever since 2012 (as he claimed in his application
TS v. BB Page 13

for “persons with persistent multiple barriers” application), clearly it did not interfere with
his ability to work from 2012 until 2015 – which is when Ms S filed her 2015 application
for child support. I am not satisfied that Mr B’s current receipt of “persons with persistent
multiple barriers” social assistance is based on a physical disability. It appears to be

2023 BCPC 171 (CanLII)

based, at least in part, on his statement that he has “no basic skills for employment”,
which, given he possesses a Class 1 driver’s licence and years of experience as a
professional driver, is a patently false statement. Based on Mr B’s evidence that he did
not qualify for a disability pension that required a medical certification, I find he is not
medically disabled from working.

[42] I place no weight on Mr B’s evidence that he was unable to work in the vineyard
in 2021 due to his neck pain. I find he was doing exactly what he threatened Ms S that
he would do – to quit declared employment and work “under the table” if he might be
required to pay child support.

[43] I find that it is appropriate to impute income to Mr B for the years 2015-2018.
While it may be that Mr B was capable of working to a much higher level than his
declared income in 2014 and 2019, I find that his income in those years provide a
sufficient basis to conclude that Mr B was certainly capable of earning at least $30,000
annually. I therefore impute to Mr B an income of $30,000 annually for each of 2015,
2016, 2017 and 2018.

CHILDREN’S RESIDENCE

[44] The parties were able to agree, with the assistance of counsel and Ministry
records, on most details concerning with whom the children lived in the years from 2014
onward, with some disagreement about where B was living at various times.

[45] In 2014, all of the children were in the care of Ms S after separation, for almost all
of the remainder of the year (eight months) and Mr B had the children for one month, in
July 2014.

[46] In 2015, all of the children lived with Ms S until B went to live with a family friend
from September 30, 2015 to December 2015 and did not live with either parent the
TS v. BB Page 14

remainder of the year. The girls remained living with their mother. Ms S testified, and I
accept, that she paid for B’s living and other expenses when he was living away from
her in 2015.

[47] In 2016, K and A remained living with their mother all year, and B lived with his

2023 BCPC 171 (CanLII)

father for June and September (two months).

[48] In 2017, both girls lived with their mother until September (eight months), until A
went to live with her father (four months) and B lived elsewhere.

[49] Ms S testified, and I accept, that B returned to live with her in her home in
February 2018, which means that Ms S had the care of B for nine of 12 months. K lived
with her mother and A lived with her father in 2018, until all of the children were
removed from each parent on November 26, 2018.

[50] In 2019, the children remained in the care of child-protection authorities until they
were transitioned back to Ms S in August 2019. B went to live on his own, under a youth
agreement with the MCFD, instead of returning home. Ms S is not seeking child support
for 2019 because the children were not in her care until late in the year, and after that,
in 2019 and 2020, she and Mr B were splitting the parenting time for the children and
the parties agree their incomes for those years were similar. Thus, the period of time to
which retroactive orders are sought is January 2014 to November 26, 2018.

QUANTUM OF RETROACTIVE CHILD SUPPORT AWARD

[51] Mr B’s declared income in 2014 was $31,491. I have imputed income to Mr B of
$30,000 for each of the years 2015 to 2018. No dispute was raised with respect to
Ms S’s income or her income-earning capacity. I therefore accept that her income was
as stated in her financial statements for those years. The calculation of child support is
as follows:

2014

[52] Ms S’s income was $13,982, for which Guideline support was $202/month and
Mr B’s income was $31,491, for which Guideline support was $650/month. After
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deducting the one month owed by Ms S to Mr B, plus his solitary child-support payment
of $400, the balance owing from Mr B to Ms S is $4,598.

2015

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[53] Mr B’s income is imputed to be $30,000. None of the children lived with him at
any time so this is not a split-parenting situation. Since Ms S provided for B’s expenses
even when he was not living in her home in October, November and December, I find it
is appropriate that Mr B pay Guideline child support for all three children for the entire
year, at $619/month, for a total of $7,428.

2016

[54] In 2016, Ms S had two of the children for 10 months and all three of the children
for two months. Mr B had B for two months. Ms S’s income was below the Guideline
cut-off for the payment of child support. Based on his imputed income of $30,000, Mr B
owes 10 months’ child support for two children at $463/month, and two months’ child
support for three children at $619/month, for a total $5,868.

2017

[55] In 2017, Mr B’s imputed income was $30,000. Ms S’s income was $8,475, which
is below the cut-off for the payment of child support under the Guidelines. Ms S had
both daughters with her until September, after which each parent had one daughter
living with them. Commencing December 2017, the Guideline amounts were changed.
Accordingly, Mr B owes child support for two children for eight months at $463/month,
three months for one child (September, October and November) at $269/m and one
month (December) for one child at $279/month, for a total of $4,790.

2018

[56] In 2018, Ms S earned $13,796 and Mr B’s imputed income was $30,000. It is
agreed that Mr B had the care of A and Ms S had the care of K. I have found that B
lived with his mother from February 2018, onwards. All children were removed at the
end of November 2018 from both parents. Based on her income, Ms S’s child-support
obligation for A would be $53/month for a total of $583 owed to Mr B. Based on his
TS v. BB Page 16

imputed income, Mr B’s child-support obligation was $279/month for two months for one
child and $484/month for eleven months for two children, for a total of $5,324. The net
amount of child support owed by Mr B to Ms S for 2018 is $4,741.

[57] The total of the aforementioned amounts is $27,425. The arrears of child support

2023 BCPC 171 (CanLII)

for the period 2014-2018 is fixed at $27,425.

[58] Normally, child support is made payable to the parent to whom it is owed, if it is
ongoing, or to whom it should have been paid at the time to which it applies. There is no
doubt that had Mr B been paying child support all along, as he was obliged to do, it
would have been payable to Ms S, who would have used the support for the benefit of
the children.

[59] Mr B submitted that, if the court saw fit to make an award of retroactive child
support, such support be paid directly to the children in question, on the basis that B is
now an adult and K is now living separately from her mother. No authority was provided
to me in support of that proposition.

[60] In some circumstances, it is appropriate to pay child support directly to an adult

child, but those circumstances generally apply to ongoing support orders for adult
children, such as those attending a post-secondary institution. That is not the situation
in this case.

[61] It would be difficult, practically, to divide up the amounts owed in respect of each
individual child because Guideline child support is not strictly arithmetic in its approach.
For example, child support for two children is not double what child support is for one
child. But more importantly, although it is the right of the child to be supported, table
child support is intended to help the recipient parent pay the for the overall costs of
raising a child – such as rent, heat, light, food, transportation, and all of the things that
make up a household in which a child lives. An order directing the payment of a
retroactive award of child support to a child who is now an adult ignores the
fundamental fact that it was not the child who met its own needs at the time the support
should have been paid – those needs were met by the parent with whom they lived.
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[62] Mr B admitted that he did not provide any financial support to the children at all,
regardless of where they lived. Ms S testified, and I accept, that even when one or
another of the children lived with Mr B, she paid for the things they needed, because
Mr B would not. I have no reason to believe that Mr B’s attitudes will change simply

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because I have made this order. I expect the recipient will be obliged to undertake
enforcement procedures. From a practical perspective, making individual amounts
payable to individual children would create an enforcement nightmare.

[63] Child support should have been paid to Ms S at the time, to help support the
children at the time. I find that Ms S continues to assist all of the children to this day,
regardless of where they live, with what meagre resources she has. Mr B does not. I am
satisfied that if Ms S receives any portion of the award of child support I have made, she
will continue to help her children to the best of her ability. I see no reason to depart form
the usual practice of making child support payable to the recipient parent. The recipient
of this order will be Ms S.

_____________________________
The Honourable Judge S.K. Keyes
Provincial Court of British Columbia