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Family and Divorce Law: Child Support, Retroactive, Prospective, Child Access, Custody

Family and Divorce Law: Child Support, Retroactive, Prospective, Child Access, Custody

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Athwal v. Athwal, 2007 BCSC 221

[1] The parties have each made applications to the court relating to the support of their daughter who turned 19 years old on November 7, 2006. Ms. Athwal seeks an increase in child support retroactive to 1999. Mr. Athwal opposes a retroactive increase and also seeks an order determining that his obligation to pay child support ceased upon his daughter reaching the age of majority.

[2] The parties married in 1982 and separated in 1988 when their daughter, Ramonique, was six months old. On June 25, 1990, they consented to an order which included the granting of custody of Ramonique to Ms. Athwal. Mr. Athwal was to have liberal and generous access to Ramonique. The parties also consented to an order requiring Mr. Athwal to pay child support of $525 per

month. Their divorce was granted September 4, 1990.

[3] The parties have not spoken directly to each other since 1991. Mr. Athwal has not had access to his daughter since October 1996.

[4] In November 1997 the parties made an election that, as of November 1, 1997, for income tax purposes the child support paid by Mr. Athwal would not be taxable to Ms. Athwal or deductible by Mr. Athwal.

[5] In 1999, in the midst of protracted litigation concerning Mr. Athwal’s applications to obtain access to Ramonique, Ms. Athwal’s counsel on more than one occasion requested from Mr. Athwal’s then counsel copies of Mr. Athwal’s tax returns. The requests were sought for the purpose of negotiating the apportionment of the costs of counselling relating to Mr. Athwal’s access to Ramonique, which were then in place, and also so that a reassessment of child support could be considered. The information was not provided and no further steps were taken to request
information until November 2005. Ms. Athwal says that when Mr. Atwal took no further steps in his access-related applications in November 1999 she was too exhausted emotionally and financially to take further actions to seek an increase in the amount of child support.

[6] In late 2005, Ms. Athwal became aware that Mr. Athwal was working in an executive position and she presumed that he was earning significantly more than what he had been earning in 1997. On November 21, 2005, counsel for Ms. Athwal wrote to Mr. Athwal requesting copies of financial information pursuant to s. 25 of the Federal Child Support Guidelines (the “Guidelines”), including copies of his income tax returns for the last three years and his most recent statement of earnings. The information was not provided and on March 30, 2006, Rogers J. ordered that Mr. Athwal pay a penalty of $5,000 pursuant to s. 92 of the Family Relations Act, R.S.B.C. 1996, c. 128. Mr. Athwal was also ordered to prepare and deliver to the plaintiff a sworn Form 89 Financial Statement within 30 days of being served with the order.

[7] The amount of $525 child support per month agreed to in 1990 predated the existence of the Guidelines by almost seven years, but it would correspond under the Guidelines to the support payable based on an annual income of $63,500 prior to May 1, 2006, and approximately $56,500 after that date. Mr. Athwal’s actual annual income from 2002 to 2005 was:
2002 $159,959
2003 $175,263
2004 $175,532
2005 $234,900

[8] Mr. Athwal’s 2005 income included a “retention bonus” of $54,667 arising out of the merger of his employer with another association. It has been described by his employer as a “non-recurring” payment. His anticipated 2006 income is $180,000.

Background

[9] Before addressing the specific claims, some of the background to the present application should be reviewed.

[10] For a period of time after the June 1990 consent order, Mr. Athwal had access to Ramonique. Around 1992 or earlier Mr. Athwal began to have difficulty in doing so and there followed thereafter a number of applications by him to obtain and to specify access. Orders setting out access times and arrangements were made by Warren J. on October 14, 1992, by Lysyk J. on March 9, 1995, by Hood J. on April 25, 1995, and by Boyd J. on December 20, 1996.

[11] Two reports ordered under s. 15 of the Family Relations Act were prepared by a family court counsellor, Ms. Elizabeth Briemberg, one on November 30, 1992 and one on March 30, 1995, and a third was prepared by Dr. Michael Elterman on July 26, 1998.

[12] In her November 30, 1992 report, Ms. Briemberg recommended access on alternate weekends, two non-consecutive weeks in the summer and one other week after Christmas or at Spring Break. That access schedule was not maintained.

[13] At the time of Ms. Briemberg’s March 30, 1995 report, Ramonique had not visited her father for some time. Ms. Briemberg therefore recommended that visits be increased gradually and that overnight access be reintroduced on an alternating weekend basis. In the “Evaluation” section of her report Ms. Briemberg stated:
The child in this matter certainly shows extensive anxiety about access visits. None of the information about her experiences on the visits would explain the extent of her fear. Dr. Golden does not find any contradictions for access. The mother says she tries in all sorts of ways to encourage the child to go on the visits. It seems to me the explanation may be in the mother’s intense distrust of the father and her insistence on total separation of the child’s life at her home from the father. This has been conveyed to Ramonique over the years and she, being an obedient child, can only fulfill her mother’s expectations by refusing to see her father or agreement to see him in very limited circumstances.

[14] In his July 26, 1998 report, Dr. Elterman sought to understand why Ramonique had consistently refused to re-establish access with Mr. Athwal and to suggest remedial steps. In the “Opinion” section of his report Dr. Elterman stated: It is quite clear that Ramonique’s resistance arises directly from the mistrust and animosity from her mother’s side of the family towards her father. I believe that Mr. Athwal is quite correct in saying that Ramonique has been made to choose because eventually the act of going on a visit became an act of disloyalty to her mother and her mother’s family. I feel that the only way that there is going to be any movement in this case is if there was some peace between Ms. Mahli [Athwal] and Mr. Athwal. This might involve them going to counselling together but the most important aspect is to demonstrate to Ramonique that the parents are together in their desire to see and visit with Mr. Athwal and his family. I believe that if this essential ingredient is not in place, then any other efforts are likely to result in failure.

[15] In 1999 Mr. Athwal, having had few positive results from the applications he had succeeded in bringing over time, brought an application seeking custody of Ramonique. A trial date in November 1999 was arranged. On May 4, 1999, Burnyeat J. ordered that a number of preliminary steps be taken, including a requirement that the parties meet separately with the same counsellor over a period of time and then together and that there be separate counselling for Ramonique, out of which would come a recommendation from the counsellor as to when access between Ramonique and her father should commence.

[16] On July 14, 1999, Burnyeat J. ordered that Ms. Athwal and Mr. Athwal attend individual counselling with Dr. Richard Golden and that Ramonique and Mr. Athwal meet with a registered psychologist, Robert L. Colby.

[17] A November 1999 trial date for Mr. Athwal’s application for custody had already been obtained. Mr. Colby held an individual therapy session with Mr. Athwal in July 1999 and a joint session with Mr. Athwal, Ms. Athwal and Ramonique on August 5, 1999. He attempted to hold a session with Mr. Athwal and Ramonique on August 10, 1999, but Ramonique refused to take part.

[18] On November 26, 1999, Mr. Colby again attempted to hold a meeting between Mr. Athwal and Ramonique. On November 30, 1999, Mr. Colby wrote to Mr. Athwal’s then counsel and counsel for Ms. Athwal reporting on what had happened on November 26. In the letter he stated:
This psychologist appears unable to conduct a meeting between these individuals, as Ramonique remains inflexible about being in the same room with her father. She refuses to discuss these matters, and will not enter the psychologist’s office by herself to talk about it. In view of the above, I do not feel we can do anything further to facilitate this process.

[19] Mr. Athwal at that point agreed to accept his daughter’s wishes. He says that since 1996 he has not been consulted on any issues pertaining to his daughter’s life and was not invited to her high school graduation. He states that during the past several years he has not been able to send her a birthday card or present as he had done in the past as he has not been advised of her current address. When he tried to send flowers to her old address the flowers were returned because Ms. Athwal and Ramonique had moved to an undisclosed location. He also attempted, without success, to contact Ramonique by email to invite her to her grandmother’s 80th birthday celebration in 2005 and again to wish her a happy 18th birthday.

[20] Ms. Athwal suggests that there were steps Mr. Athwal could have taken to have “involvement” in Ramonique’s life, which Mr. Athwal was never prevented from taking. Suggested steps include his contacting the school to obtain information about parent-teacher conferences and about her extracurricular activities. Ms. Athwal says as well that Mr. Athwal did not need an invitation to Ramonique’s high school graduation and he could have obtained the date from the school.

[21] Ramonique has also sworn an affidavit in which she says that her father never contacted her through her schools or attended parent-teacher conferences and extra-curricular activities and that it would have been easy for him to find out where she was attending school. She also states that whatever chance there might have been to have a relationship with her father is “certainly lessened” by the position he is now taking with regard to child support.

The present circumstances of the parties

[22] Ms. Athwal is a nurse with a specialty certification in critical care nursing. Her annual income since 2002 has been approximately $60,000. She owns a condominium in which she resides with Ramonique and states its value to be approximately $340,000 with a mortgage of about $137,000.

[23] Ramonique graduated from high school in June 2005 and is presently attending college full-time, taking a full course load towards a Bachelor of Arts degree. She intends to attend the college for two years and then transfer to the University of British Columbia to complete her degree. She works part-time and earns $12.75 per hour. The income provides her with spending money and pays for some of her clothes. Her mother has paid for her food, some of her clothing, and tuition and books. To date, Ramonique has not had to apply for student loans.

[24] Mr. Athwal remarried in 1990. He and his wife are the parents of two children, ages eleven and six. His employment income is set out above. In his financial statement Mr. Athwal discloses assets which include the family residence and two rental properties as well as an RRSP.

The issues

[25] The issues raised in the applications are:
1. Should there be a retroactive increase to the child support Mr. Athwal is required to pay?
2. If so, to what date and in what amount?
3. Does Ramonique continue to be a “child of the marriage” and entitled to continuing child support?
4, If so, in what amount?

The legal principles
Principles relating to retroactive orders

[26] The Supreme Court of Canada enunciated the principles that apply to making retroactive orders for child support in the case of D.B.S. v. S.R.G.; L.J.W. V. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, (2006), 270 D.L.R. (4th) 297, 2006 SCC 37 (“D.B.S.”). The court observed that parents have an obligation to support their children in an amount which is in keeping with their incomes. It recognized three situations in which it may be appropriate to make retroactive child support orders and that retroactive orders need not be seen as “exceptional.”

[27] One of the three situations where a retroactive order may be appropriate is when, as in this case, there has already been a court order for child support to be paid. The court stated that such orders will not necessarily be “frozen” to the amount set out in the order if the amount is not commensurate with the payor’s increased income at a later time. A number of factors must be considered.

[28] One factor to consider is whether there has been delay in bringing an application for increased support. In assessing this factor a court must include in its consideration the balance between the payor parent’s interest in the certainty of the existing order and fairness to the children, recognizing that child support is the right of the child.

[29] Another consideration is whether the payor parent has engaged in “blameworthy conduct”, such as hiding income or misleading a recipient parent into believing that the correct amount of support is being paid. One indicator of blameworthy conduct is the existence of a substantial difference in the amount of child support actually being paid and the amount that should be paid in accordance with the payor’s income.

[30] A further factor is the circumstances of the child, both past and present. The court notes, for example, that a child who has been enjoying a relatively high standard of living may benefit less from a retroactive order than a child currently in need.

[31] A court should also consider the nature of any hardship that would be imposed by a retroactive award. For example, such an order may result in undue hardship on new family obligations of the payor.

[32] If, after considering the factors, a court determines that a retroactive order should be made, the court must decide the date to which the order will be retroactive and the amount of support that should be ordered.

[33] As a general rule, the date when “effective notice” was given will be the retroactive date. “Effective notice” is any indication by the recipient parent that child support needs to be renegotiated. A “prolonged period of inactivity” after giving effective notice may have an impact on its effect. At para. 123 of D.B.S. Bastarache J. stated:
Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions should move forward. If they do not, legal action should be contemplated. While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. The federal regime appears to have contemplated this issue by limiting a recipient parent’s request for historical income information to a three-year period: see s. 25(1)(a) of the Guidelines. In general, I believe the same rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support award retroactive to a date more than three years beforeformal notice was given to the payor parent.

[34] At para.130 Bastarache J. also stated:
…While I stated above that the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance, where a court finds that there has been an unreasonable
delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award. Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case.

Principles relating to a “child of the marriage”

[35] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) defines “child of the marriage” in s. 2. The applicable portion of the definition is: “child of the marriage” means a child of two spouses or former spouses who, at the material time,

(b) is age of majority or older and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

[36] The burden of establishing that her daughter is a “child of the marriage” lies with Ms. Athwal.

[37] In Farden v. Farden (1993), 48 R.F.L. (3d) 60, 40 A.C.W.S. (3d) 1122 (B.C.S.C.) Master Joyce (as he then was) identified eight circumstances that could be relevant to determining whether or not attendance in a post-secondary institution would be sufficient cause for a finding that a child is still a “child of the marriage.”

The list was not intended to be exhaustive. The eight circumstances identified are:
(1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;
(2) whether or not the child has applied for or is eligible for student loans or other financial assistance;
(3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
(4) the ability of the child to contribute to his own support through part time employment;
(5) the age of the child;
(6) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

[38] In relation to the eighth circumstance, Master Joyce referred to the decision in Law v. Law (1986), 2 R.F.L. (3d) 458, 37 A.C.W.S. (2d) 285 (Ont. H.C.J.) where Fleury L.J.S.C. said at 462 – 463:

In the case at bar, Kimberly Ruth Law has reached the age of 22. She has not seen fit to contact her father to keep him appraised of her progress in university and no evidence was made available to the respondent until he unilaterally ceased making maintenance payments for her benefit when she turned 21 in 1985. …Kimberley has certainly withdrawn from the applicant’s charge as a result of her failure to maintain any contact with him. Although it is sufficient that she be in the custodial parent’s charge, I am of the view that where, as here, a mature child unilaterally terminates a relationship with one of the parents without any apparent reason, that is a factor to be considered
by the trial judge in determining whether it would be “fit and just” to provide maintenance for that child. A father-child relationship is more than a simple economic dependency. The father is burdened with heavy financial responsibilities and the child has very few duties in return. It seems reasonable to demand that a child who expects to receive support entertain some type of relationship with his or her father in the absence of any conduct by the father which might justifythe child’s neglect of his or her filial duties.

[39] Counsel referred to a number of cases where this circumstance had been considered by different courts, often in combination with other circumstances, and formed part of the basis for finding that a child was not a “child of the marriage.” A decision of this court which is similar to the present case and in which the sole reason for denying child support was the child’s rejection of her father, is Marsland v. Gibb, (2000), 5 R.F.L. (5th) 406, 2000 BCSC 471. The court there dismissed an application by the mother of a 19 year old daughter seeking a variation of a child support order. At para. 34 Romilly J. stated: …The case at bar represents a case of complete rejection by Jennifer of her father. Although Mr. Gibb has made numerous attempts to establish a father-daughter relationship with Jennifer she has continuously rejected them in no uncertain terms since she was 11 years old. Jennifer is now an adult and must be aware of the consequences of her actions towards her father. In the unique factors of the case at bar I am not satisfied that Jennifer is any longer a “child of the marriage”….

Analysis
Retroactive increase in support

[40] Ms. Athwal says that “effective notice” of the need to renegotiate the amount of child support was given to Mr. Athwal in 1999. D.B.S. recognizes that, if there has been unreasonable delay after effective notice has been given, it may be appropriate to exclude that period from the calculation of a retroactive order.

[41] I accept the evidence that the 1999 request for financial information from Mr. Athwal was, in part, for the purpose of determining whether a reassessment of child support should be considered. In my view, it is significant that Ms. Athwal’s six-year period of inactivity followed upon Mr. Athwal’s decision to proceed no further with his custody application, upon receiving the opinion of Mr. Colby. It was not until new information was received by Ms. Athwal in late 2005 that she retained counsel to seek financial information from Mr. Athwal. In such circumstances, it would be unreasonable to consider the 1999 notice as having continuing effect.

[42] There is, nevertheless, blameworthy conduct by Mr. Athwal in that, for a number of years, he has earned substantial increases in income yet the amount of child support he has paid has been well below what the Guidelines amount would have required.

[43] It is undoubted that, had child support in the Guidelines amount been paid to Ms. Athwal since 1999, the additional support could have enriched the life of Ramonique. The evidence indicates, however, that with Ms. Athwal’s income and the child support being paid by Mr. Athwal, a reasonable standard of living was provided for Ramonique. At the same time, Mr. Athwal had remarried and established a new family since the consent order of 1990.

[44] Although Ms. Athwal’s actions in 1999 cannot be deemed to have the continuing effect of “effective notice”, I conclude that, having regard to the factors in D.B.S., the letter sent to Mr. Athwal on November 21, 2005 can be considered “effective notice.” In my view, the November 2005 letter requesting Mr. Athwal’s financial statements indicated Ms. Athwal’s intention to renegotiate the amount of child support. There must therefore be an increase in child support payable to Ms. Athwal retroactive to November 1, 2005.

[45] The amount of child support that must be paid by Mr. Athwal is the amount set out in the applicable Guidelines table for the actual income earned in 2005 and 2006. Although those annual incomes are over $150,000, the amount of support will be determined pursuant to s. 3 of the Guidelines.

[46] Counsel for Ms. Athwal presented a table setting out his calculations of the appropriate retroactive increase that appears to be correct. If counsel cannot agree on this calculation, written submissions may be made.

[47] Mr. Athwal must pay the support amount owing as a result of the retroactive increase within 3 months.

“Child of the marriage”

[48] I am satisfied that Ramonique is unable, by reason of her educational program, to withdraw from the charge of her mother. She is enrolled in a full-time course of studies with an educational objective and a potential career choice. While she has part-time employment, her income only enables her to contribute to some of her expenses. She is dependent upon her mother for financial and other assistance and that has included the child support paid by Mr. Athwal since 1990.

[49] But for the submission that her relationship with her father should bar her entitlement to continuing child support, not only would Ramonique come within the definition of a “child of the marriage,” but Mr. Athwal’s obligation to provide child support for her would continue even though she has reached the age of majority.

[50] Ramonique and her mother have each sworn affidavits where they point to steps that Mr. Athwal could have taken to gain the information about his daughter that he has been deprived of. I reject those criticisms as unfair. Despite his lack of success, it is clear from the evidence that Mr. Atwal has continued to try to establish a relationship with his daughter. Some of the information Ms. Athwal suggests that Mr. Athwal could have obtained indirectly from the school could very easily have been provided to him directly.

[51] Does the destruction of Ramonique’s relationship with her father constitute a circumstance that in itself is sufficient to hold that Mr. Athwal does not have a continuing obligation to provide her with financial support? In Farden, supra, Law, supra, and some other authorities referred to by counsel, the child’s unilateral termination of a relationship with the parent from whom support was sought was not the sole basis for determining that the child was not a “child of the marriage.” Those cases are distinguishable on the basis that additional reasons were present.

Termination of the parent-child relationship by the child does, however, appear to have been the sole basis in Marsland v. Gibb, supra. In my view, it is the only basis put forward for holding that Mr. Athwal should not be obliged to continue paying child support.

[52] What makes the present application to continue child support difficult to assess is the origin of deeply rooted and long-standing alienation of Ramonique from her father. It was the subject of extensive diagnosis and counselling when she was a young child, but the professional assistance and Ramonique’s maturing have not overcome the problem. While I recognize that, as a result, Mr. Athwal has remained removed from his daughter’s life for ten years, there is an absence of evidence that Ramonique’s continuing alienation from her father reflects a considered decision, as in the Marsland case, rather than the remains of a longstanding alienation which has not been overcome.

[53] I have concluded that, in all the circumstances of this application, Ramonique remains a “child of the marriage” and despite the absence of a relationship between Mr. Athwal and Ramonique, Mr. Athwal has a continuing obligation to pay child support to his daughter. She has a continuing need for support; she has only recently reached the age of majority, her educational program appears to be sound and she is not self-supporting.

[54] Section 3(2) of the Guidelines deals with the payment of child support to a child over the age of majority. There being no other approach put before the court, the presumptive rule under s. 3(2)(a) is applicable in determining the amount of support to be paid by Mr. Athwal. I do not consider this approach to be inappropriate given the fact that Ramonique continues to reside with her mother in circumstances that are similar to those she was in prior to reaching the age of majority.

[55] Mr. Athwal is entitled to be kept informed of Ramonique’s academic progress. To achieve this Ms. Athwal must, on a timely and continuing basis, obtain from Ramonique and provide by mail to Mr. Athwal, copies of Ramonique’s academic transcripts and information about any bursaries, scholarships or grants she receives. If counsel agree on an alternative procedure for providing such information to Mr. Athwal they may do so.

[56] Submissions on costs were not made. Ms. Athwal would appear to have met with success in her application and is entitled to costs on Scale B. If the parties do not agree, written submissions may be made through the registry.

“Bryan F. Ralph, J.”
The Honourable Mr. Justice Bryan F. Ralph
2007 BCSC 221 (CanLII)

*source: CanLii

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