COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Burchill v. Roberts,

2013 BCCA 39

Date: 20130130

Docket: CA039582

Between:

Nancy Elizabeth
Burchill

Respondent

(Claimant)

And

Colin George
Roberts

Appellant

(Respondent)

Before:

The Honourable Chief Justice Finch

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Groberman

On appeal from: Supreme
Court of British Columbia, November 30, 2011
(
Burchill v. Roberts
, 2011 BCSC 1793, Vancouver Docket No. F970060)

Appellant Appearing In Person:

C. Roberts

Counsel for the Respondent:

D. Paterson

Place and Date of Hearing:

Vancouver, British
  Columbia

January 7, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 30, 2013

Written Reasons by:

The Honourable Madam Justice Prowse

Concurred in by:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Groberman

Reasons for Judgment of the Honourable
Madam Justice Prowse:

INTRODUCTION

[1]

Mr. Roberts is appealing from that aspect of the order of a chambers
judge, made November 30, 2011, ordering him to pay retroactive child
support for the parties son in the amount of $55,212 for the period
January 1, 2006 to December 31, 2011.  The order was made pursuant to
the
Family Relations Act
, R.S.B.C. 1996, c. 128, having regard to the
Federal
Child Support Guidelines
. SOR/97 - 175

(the
Guidelines
), incorporated
by reference pursuant to s.

129
of the
Family Relations Act
, and, in particular, Regulation 1(2) of the
Child
Support Guidelines Regulation
, B.C. Reg. 61/98.

[2]

The chambers judge also made an order that Mr. Roberts pay ongoing
child support in the amount of $1,537 per month commencing January 1, 2012
based on Mr. Roberts
Guidelines
annual income of $180,157.  She
dismissed Ms. Burchills claim for arrears of child support for the years
1997 to 2005.

BACKGROUND

[3]

Mr. Roberts and Ms. Burchill lived together in a common law relationship
from May 1991 to January 1995.  Their son was born on February 14, 1992.

[4]

In January 1997, Ms. Burchill commenced proceedings against Mr. Roberts
seeking child support pursuant to the
Family Relations Act
.  The
Statement of Claim disclosed that Ms. Burchill was then 36 years of age
and employed as a nurse and that Mr. Roberts was 51 years of age and
employed as a commercial insurance broker.  Their son was then 5 years old and
had been living with Ms. Burchill since the parties separated.

[5]

On June 2, 1997, the parties entered into a consent order providing
that Ms. Burchill have interim sole custody and guardianship of their son
and that Mr. Roberts pay Ms. Burchill interim child support in the
amount of $1,250 per month until further court order.  This amount was based
on Mr. Roberts annual income of $90,000.  The order provided that child support
was to be taxable in Ms. Burchills hands (and, accordingly, tax
deductible for Mr. Roberts).  At the time of this order, both parties were
represented by counsel.

[6]

Shortly after this order was obtained, the parties met in a coffee shop
to further discuss child support, apparently because Mr. Roberts did not
wish to pay child support on a tax deductible basis.  The chambers judge found
that, as a result of that meeting, Ms. Burchill agreed to accept child
support in the amount of $737 on the understanding that there would be no tax
consequences for either party.  No further order was obtained by either party
relating to child support until the order under appeal.  Thus, Mr. Roberts
paid child support in the amount of $737 per month from 1997 until November
2011  just over 14 years.

[7]

In December 2010, Mr. Roberts advised Ms. Burchill that he
would be terminating child support in February 2011 when their son turned 19 years
of age.  At that point, Ms. Burchill sought legal advice, as a result of
which she became aware of Mr. Roberts substantial increases in income.
Although the evidence is limited, the most significant increases in income were
found to be those arising as of 2005.  On November 2, 2011, Ms. Burchill
brought an application for increased child support, payment of arrears under
the 1997 court order, and payment of retroactive support based on Mr. Roberts
Guidelines
income commencing January 1, 2006.  It was that
application which culminated in the order under appeal.

[8]

Both parties were represented by counsel at the hearing before the
chambers judge.  Mr. Roberts appeared on his own behalf on appeal.

DECISION
OF THE CHAMBERS JUDGE

[9]

The chambers judge dismissed Ms. Burchills application for arrears
of payments pursuant to the original court order for the period from 1997 to
2005 on the basis that Ms. Burchill had agreed to accept reduced payments
of $737 per month.  This aspect of the application was dealt with at
para. 40 of her reasons for judgment, where she stated:

The evidence in this
case is that the material change in circumstances occurred approximately five years
ago.  I accept [Mr. Roberts] argument that until then, the parties had an
agreement that $737 per month would be payable.  Ms. Burchill was aware that
Mr. Roberts was earning in the range of $90,000 per year, and with that
knowledge, accepted the $737 per month support for Jack.  She cannot now seek
payment in the amount of $900 to $950 for those three years.  Accordingly her
claim for arrears of child support between 1997 and 2005 is dismissed.

[10]

There is no cross appeal with respect to the arrears of child support.

[11]

In dealing with retroactive child support, the chambers judge relied on
the leading decision of the Supreme Court of Canada in
D.B.S. v. S.R.G.
,
2006 SCC 37, [2006] 2 S.C.R. 231. In applying that decision, she found that:

(1)  Ms. Burchills delay in bringing her application
for retroactive support was not unreasonable or blameworthy in the
circumstances, primarily since she was unaware of the substantial increases in
Mr. Roberts income since 1997 and he did not advise her of the
increases.  She cited
D.B.S.
for the proposition that, even if the delay
could be viewed as unreasonable, it was only one of several factors to consider
and did not absolve Mr. Roberts of his obligation to pay reasonable
support in accordance with his income.

(2)  Mr. Roberts failure to pay child support in
accordance with the substantial increases in his income since 1997 was blameworthy,
even in the absence of a demand for an increase, since he was, or should have
been, aware of his obligation to pay child support commensurate with his
income.  The discrepancy between what he should have been paying under the
Guidelines
and what he paid was so significant that there is no room for an inference
that he thought he was meeting his obligations. (para. 32).

(3)  There was no evidence that their son experienced
significant hardship over the years; nor, on the other hand, was there evidence
that he was living in a manner commensurate with a father earning in the range
of $200,000 per year.  There was evidence that Ms. Burchill had
accumulated debt for the living costs of herself and their son over the years,
and that their son had to rely on a variety of sources of income, including
loans, to meet his university expenses.

(4)  There was no evidence that Mr. Roberts would suffer
hardship in the event of the requested retroactive order.

(5)  In terms of the commencement date for the retroactive
payments, the chambers judge noted that there was a presumptive three-year
limit but that this did not apply where she had found Mr. Roberts conduct
to be blameworthy.  Based on the absence of any evidence of any material change
in Mr. Roberts income before 2005, she concluded that the retroactive order
should commence as of January 1, 2006 and be paid in accordance with Mr.
Roberts actual income as reflected in a chart provided by counsel, allowing
deductions for business (car) expenses, but not allowing deductions for RRSP
contributions.

[12]

As earlier stated, the amount of retroactive child support calculated on
this basis amounted to $55,212, for the period January 1, 2006 to
December 31, 2011.

ISSUES ON APPEAL

[13]

Mr. Roberts submits that the trial judge erred in ordering
retroactive child support for any period prior to June 2011 when, he submits,
Ms. Burchill first requested that he pay more.  According to his
calculation, the amount of retroactive support should have been no more than
$5,600, apparently based on his income for 2011.

[14]

Mr. Roberts also submits that the trial judge erred in:

(a)  finding that his conduct in failing to make financial
disclosure and/or pay greater support commensurate with his increased income
was blameworthy;

(b)  failing to find that Ms. Burchills delay in
seeking an increase in support was unreasonable and blameworthy;

(c)  making a retroactive order in the absence of any
evidence that their son had suffered from the absence of increased support; and

(d)  misquoting
D.B.S.
in stating (at para. 19)
that the need of the recipient parent (rather than the child) was a
relevant consideration, and in stating (in para. 37) that the date that
increased support should commence will often (rather than sometimes) be commensurate
with the material change in the payors actual income where there is
blameworthy conduct.

[15]

I will elaborate on the chambers judges findings and the evidence in
discussing these grounds of appeal.

STANDARD
OF REVIEW

[16]

The standard of review to be applied by an appellate court in reviewing
child support orders is set out in the following passage from
Hickey v.
Hickey
, [1999] 2 S.C.R. 518, at paras. 11 and 12:

Our Court has often emphasized the rule that
appeal courts should not overturn support orders unless the reasons disclose an
error in principle, a significant misapprehension of the evidence, or unless
the award is clearly wrong...

...Though an appeal court must intervene when
there is a material error, a serious misapprehension of the evidence, or an
error in law, it is not entitled to overturn a support order simply because it
would have made a different decision or balanced the factors differently.

DISCUSSION

1.

Introduction

[17]

I begin this discussion by observing that the materials before the chambers
judge, including financial information, were more limited than one would expect
on an application relating to a period of over 14 years.  There were no
financial statements or income tax returns from either of the parties and the
affidavit evidence setting forth the factual background was relatively sparse
and, on some points, contradictory.  As a result, the chambers judge had to
draw inferences from the evidence available to her, and she did so.
Fortunately, the parties agreed on a schedule of Mr. Roberts income for
the years 2006-2011 which enabled the chambers judge to make findings
(unchallenged on this appeal) of his
Guidelines
income for those years.
That schedule sets out Mr. Roberts income, the
Guidelines
child
support payable for each year, and the manner in which the retroactive support
was calculated , taking into account the payments he made, as follows:

SCHEDULE A

BURCHILL v.
ROBERTS

RETROACTIVE SUPPORT CLAIM

(Allowing business
expense deduction but
not
RRSP purchase)

2006

1.

Roberts income before RRSP purchase

$164,817.00

2.

Roberts yearly child support obligation @ $164,817 =
  $1,417/month

$17,004.00

3.

Roberts actual payments @ $737/month

8,844.00

4.

retroactive claim

$8,160.00

2007

1.

Roberts income before RRSP purchase

$149,802.00

2.

Roberts yearly child support obligation @ $149,802 =
  $1,301/month

$15,612.00

3.

Roberts actual payments @ $737/month

8,844.00

4.

retroactive claim

$6,768.00

2008

1.

Roberts income before RRSP purchase

$185,221.00

2.

Roberts yearly child support obligation @ $185,221 =
  $1,576/month

$18,912.00

3.

Roberts actual payments @ $737/month

8,844.00

4.

retroactive claim

$10,068.00

2009

1.

Roberts income before RRSP purchase

$195,323.00

2.

Roberts yearly child support obligation @ $195,323 =
  $1,655/month

$19,860.00

3.

Roberts actual payments @ $737/month

8,844.00

4.

retroactive claim

$11,016.00

2010

1.

Roberts income before RRSP purchase

$180,157.00

2.

Roberts yearly child support obligation @ $180,157 =
  $1,537/month

$18,444.00

3.

Roberts actual payments @ $737/month

8,844.00

4.

retroactive claim

$9,600.00

2011

assuming income figures are the same as 2010
  retroactive claim

$9,600.00

Total retroactive claim if business expenses allowed
  2006-2011 inclusive

$55,212.00

[18]

As is evident, Mr. Roberts was paying only $737 per month for that
entire period based on his 1997 income of $90,000.  He was not paying that
amount pursuant to the interim court order made in June 1997 (which provided
for payments of $1,250 per month), but pursuant to the oral agreement which the
chambers judge found the parties had entered into shortly thereafter.  It is
this agreement which the chambers judge found governed the relationship between
the parties regarding child support over the ensuing years, not the court
order.  There is no challenge to this aspect of the chambers judges analysis.

2.
The
Application of
D.B.S.

[19]

In essence, Mr. Roberts submits that the chambers judge erred in
her application of  the principles in
D.B.S.
to the evidence before
her.  The
D.B.S.
decision has been cited in our Courts and in other
jurisdictions on numerous occasions since it was decided by the Supreme Court
of Canada in 2006.  For that reason, I do not propose to review the decision in
detail.  Suffice it to say that it sets forth key principles to be considered
by courts in dealing with claims relating to retroactive child support.  In
D.B.S.
,
these principles were discussed in a variety of contexts, including
circumstances where there was either an order or an agreement in place
providing for child support.

[20]

Here, the chambers judge found that there was an oral agreement between
the parties entered into shortly after the court order in 1997 which provided
for child support.  In
D.B.S.
, at paras. 78 and 79, Mr. Justice
Bastarache, speaking for the majority, stated that, in the absence of governing
provincial legislation giving agreements a special status, the principles
governing retroactive child support will generally be similar to those applied
in the case of prior court orders.  The agreement will be given some
significance, but where circumstances have changed, the courts may make a
retroactive award which is not in accord with the agreement as long as it is
not contrary to the applicable statutory regime.  This is not surprising since
the law was clear long before the
D.B.S.
decision that parents could not
bargain away the right of their child to appropriate levels of child support.

[21]

In this case, the oral agreement was made in a coffee shop at the behest
of Mr. Roberts, without the benefit of legal advice, and for an amount
which is less than the amount provided for in the consent order which was
reached days earlier with the benefit of legal advice.  In those circumstances,
there was no basis for giving that agreement anything other than minimal weight
in balancing it with the other relevant considerations relating to retroactive
support.  At most, it reflects an agreement between the parties that, at the
time it was entered into, and based on Mr. Roberts income of $90,000 per
year, $737 was an acceptable level of support for their child, who was then 5
years of age.

[22]

I turn, then, to the chambers judges application of the
D.B.S.
principles in the context of the issues raised by Mr. Roberts.  I begin by
referring to Mr. Justice Bastaraches summary of those principles set forth at
paras. 131-134 of the decision:

Child support has long been recognized as a
crucial obligation that parents owe to their children.  Based on this strong
foundation, contemporary statutory schemes and jurisprudence have confirmed the
legal responsibility of parents to support their children in a way that is
commensurate to their income.  Combined with an evolving child support paradigm
that moves away from a needs-based approach, a childs right to increased
support payments given a parental rise in income can be deduced.

In the context of retroactive support, this
means that a parent will  not have fulfilled his/her obligation to his/her
children if (s)he does not increase child support payments when his/her income
increases significantly.  Thus, previous enunciations of the payor parents
obligations may cease to apply as the circumstances that underlay them continue
to change.
Once parents are in front of a court with jurisdiction over
their dispute, that court will generally have the power to order a retroactive
award that enforces the unfulfilled obligations that have accrued over time.

In determining whether to make a retroactive
award, a court will need to look at all the relevant circumstances of the case
in front of it.  The payor parents interest in certainty must be balanced with
the need for fairness and for flexibility.  In doing so, a court should
consider whether the recipient parent has supplied a reasonable excuse for
his/her delay, the conduct of the payor parent, the circumstances of the child,
and the hardship the retroactive award might entail.

Once a court decides
to make a retroactive award, it should generally make the award retroactive to
the date when effective notice was given to the payor parent.
But where the
payor parent engaged in blameworthy conduct, the date when circumstances
changed materially will be the presumptive start date of the award.
It
will then remain for the court to determine the quantum of the retroactive
award consistent with the statutory scheme under which it is operating.
[Emphasis added.]

[23]

I turn, next, to a discussion of the principal factors relevant to
retroactive child support which were considered by the chambers judge, but in a
manner which Mr. Roberts submits reveals reversible error.  In so doing, I
note, as did the chambers judge, that
D.B.S.
states that a holistic
approach must be taken to the application of these factors, and that the
analysis is driven by the facts in each particular case.  As Mr. Justice
Bastarache emphasized at para. 4 of the decision, however:

... Whatever the outcome of these
individual cases [then before the court], the ultimate goal must be to ensure
that children benefit from the support they are owed at the time when they are
owed it.  Any incentives for payor parents to be deficient in meeting their
obligations should be eliminated.

3.
Blameworthy
Conduct on the Part of Mr. Roberts

[24]

Mr. Roberts took great exception to the finding of the chambers
judge that he had engaged in blameworthy conduct, both in failing to disclose
the extent of his increases in income over the years, and in failing to pay
support commensurate with those increases.  He submits that her finding in this
regard is in error.  In support of that submission, he says that he was unaware
of his obligations under the
Guidelines
; that he adhered faithfully to
his agreement to pay $737 per month; that Ms. Burchill was aware that she
could ask for more money over the years and did not do so; and that he had no
reason to believe that he was not meeting his parental responsibilities in
contributing to his sons support.  In his view, he has been unjustifiably portrayed
as a deadbeat dad.

[25]

Since this issue was the principal focus of Mr. Roberts oral
submissions before the Court, I will deal with it first.

[26]

In addressing the question of whether Mr. Roberts had engaged in
blameworthy conduct which would weigh in favour of an award of retroactive
support, the chambers judge made the following comments at paras. 30-32 of her
reasons for judgment:

I turn then to the second factor, the conduct of
Mr. Roberts.  The Court in
D.B.S. v. S.R.G.
noted that Courts ought to
take an expansive view as to what constitutes blameworthy conduct in the
context of the payors child support obligations.  At para. 106, the Court said
that blameworthy conduct is:

...anything that privileges the payor parents own interests
over his/her childrens right to an appropriate amount of support. ... Thus, a
payor parent cannot hide his/her income increases from the recipient parent in
the hopes of avoiding larger child support payments...

At para. 107, the Court said:

Even where a payor parent does nothing active to avoid
his/her obligations, (s)he might still be acting in a blameworthy manner if
(s)he consciously chooses to ignore them.

Mr. Roberts provided
no evidence to the effect that he held a reasonable belief that he was meeting
his child support obligations.  The evidence is to the contrary, as the amount
that Mr. Roberts should have been paying was almost twice as much as what he
was actually paying.  The discrepancy is significant enough that there is no
room for inference that he thought he was meeting his obligations.

[27]

Earlier in her reasons, the chambers judge also stated (at para. 27):

In this case, Mr.
Roberts did not tell Ms. Burchill his income has virtually doubled because, in
the words of his counsel, things were going smoothly and he did not want to
rock the boat.  Undoubtedly, they were going smoothly for Mr. Roberts, but
that is because he declined to advise Ms. Burchill of his changed circumstances
and was content to continue paying half of what he was obliged to pay for the
support of his son.

[28]

In my view, the evidence fully supports the chambers judges finding
that Mr. Roberts failure to advise Ms. Burchill of his substantial
increases in income and to pay support commensurate with his actual income, at
least as of late 2005, amounted to blameworthy conduct within the meaning
attributed to that concept in
D.B.S.
It is beyond dispute that his
failure to pay child support in accordance with his substantially increased
means privileged his interests over those of his son.

[29]

It is not a justification for Mr. Roberts to state that he was
unaware of the
Guidelines
or the amounts he should have been paying
pursuant to those
Guidelines
.  What he did know is that the parties had
agreed in 1997 that $737 was an appropriate amount of child support for their
5-year-old son based on Mr. Roberts' income of $90,000.  He could not
reasonably have regarded that as a final agreement governing child support
which absolved him of any further financial responsibilities in the future.  He
would have been aware of the increased costs of raising his son as he grew
older, not the least because he had three children from a previous
relationship.  He would have been aware of the rising cost of inflation and its
impact in eroding the spending power of $737 over 14 years.  Totally apart from
the
Guidelines
, he would reasonably have understood the basic concept
that If you make more, you pay more.  Nor could it have escaped his attention
that paying $737 child support for a 5-year-old child in 1997 was unlikely to
satisfy his share of the cost of raising a child  who was 10, 15 or 19 years
old.

[30]

In my view, the chambers judge quite properly viewed Mr. Roberts
conduct as involving a blameworthy element.  That is so whether Mr. Roberts knowingly
and intentionally withheld disclosure of his improved financial circumstances
in order to actively avoid detection of the shortfall in meeting his
obligations, or whether he simply chose not to rock the boat by taking the
path of least resistance.  At best, he was careless or negligent in failing to
address his ongoing responsibilities to his son by way of child support.  His
blameworthiness may have been of a lesser order than if he had knowingly
withheld disclosure, actively deceived Ms. Burchill as to his income, or
intimidated her with a view to deterring her from seeking an increase in
support, but it was, nonetheless, blameworthy.  In reaching this conclusion, I
find support in the following passage at para. 108 of the reasons for judgment
of Mr. Justice Bastarache:

...Whether a payor parent is
engaging in blameworthy conduct is a subjective question.  But I would not deny
that objective indicators remain helpful in determining whether a payor parent
is blameworthy.  For instance, the existence of a reasonably held belief that
(s)he is meeting his/her support obligations may be a good indicator of whether
or not the payor parent is engaging in blameworthy conduct.  In this context, a
court could compare how much the payor parent should have been paying and how
much (s)he actually did pay; generally, the closer the two amounts, the more
reasonable the payor parents belief that his/her obligations were being met.
Equally, where applicable, a court should consider the previous court order or
agreement that the payor parent was following.  Because the order (and, usually
the agreement) is presumed valid, a payor parent should be presumed to be
acting reasonably by conforming to the order.  However, this presumption may be
rebutted where a change in circumstances is shown to be sufficiently pronounced
that the payor parent was no longer reasonable in relying on the order and not
disclosing a revised ability to pay.

[31]

I also observe, parenthetically, that blameworthy conduct on the part of
a payor is not essential to a finding that an order of retroactive support is
merited.  Even in circumstances where payors honestly, but mistakenly, believe
that they are paying support commensurate with their income, an honest error in
that respect does not absolve them of their responsibility for righting the
wrong occasioned to the child by their error.  (See
Tedham v. Tedham
2003 BCCA 600, (2003), 20 B.C.L.R. (4th) 56, leave to appeal dismissed, [2004]
S.C.C.A. No. 4, referred to with approval at para. 99 of
D.B.S.
)

[32]

I now turn to the ground of appeal relating to Ms. Burchills
failure to make a more timely request for increased support.

4.
Delay in Making the
Application

[33]

Mr. Roberts submits that the chambers judge erred in failing to
find that Ms. Burchills failure to seek increased support at an earlier
point was unreasonable and constituted blameworthy conduct on her part which
should militate against a retroactive award.  He submits that the chambers judge
overlooked evidence that Ms. Burchill was aware subsequent to 1997 that
she could have asked for increased support and chose not to do so.  In
particular, he refers to the fact that Ms. Burchill did not deny the allegation
in his affidavit that:

15.       Over the years I was
occasionally reminded by the Claimant that she could ask for more money monthly
but she also reminded me that she was choosing not to do so.  I understood that
she was content with the $737.00 per month that I was paying and chose not to
ask for any additional monies as an incentive for me to contribute to Jacks
extraordinary expenses which I did over the years.

[34]

There was also evidence that Ms. Burchill did ask Mr. Roberts
for what she referred to as extras from time to time, albeit with mixed
results.  As stated at para. 19 of her affidavit:

Over the years, I have asked Colin to contribute to certain
extras for Jack:

a.  Colin did pay once for tutoring ($50);

b.  Colin did contribute to Jacks school trip to France
($600)

c.  Colin refused to contribute to Jacks costs for other
field trips including the trip by his school to Strathcona Park;

d.  Colin refused to help with Jacks swim team costs... or
the cost of his swim lessons and lifeguard training;

e.  Colin refused to assist with Jacks lacrosse team fees
and lacrosse equipment;

f.  Colin was aware that Jack started full-time studies at
the University of Victoria in September 2010 but no financial assistance was
forthcoming with his University costs.  In fact Colin told me that he was
philosophically opposed to paying for Jacks education because he had not paid
for the schooling of his 3 older children by his first marriage.

[35]

The chambers judge understood that Ms. Burchill was aware that an
increase in Mr. Roberts income over time would have entitled her to apply
for increased child support.  As in the case of Mr. Roberts, it would be
surprising if this fundamental concept were not understood by both parents.
However, as a practical matter, even where known, not all increases in income
by a payor spouse will justify applications for increased support.  The cost of
bringing applications for increased support and accompanying financial
disclosure where the application is opposed can be daunting and, ultimately,
counter-productive.  In that regard, Ms. Burchill deposed that her legal
fees arising out of her initial application in 1997 were $10,000.  And that was
an interim application resulting in a consent order.  Thus, the fact that
Ms. Burchill was aware that she could have sought an increase in payments,
is not, in itself, conduct which would factor against an award of retroactive
support.

[36]

The important finding of the chambers judge in this regard is her
finding that Ms. Burchill had no idea of the magnitude of the increase in
Mr. Roberts income and was shocked to learn that it had doubled since the
original order and agreement were made in 1997.  It is apparent that this
factor carried the most weight with the chambers judge in determining that
Ms. Burchills failure to make demand for an increase in support was not
unreasonable.  In other words, while Ms. Burchill was generally aware of
her right to seek an increase in the event of an increase in Mr. Roberts
income, there would have been no incentive for her to pursue that avenue absent
any indication that the increase in his income was substantial.  The fact that
her efforts to obtain further contributions from Mr. Roberts for extras
had met with limited success may also have accounted, in part, for her failure
to pursue more substantial changes to their financial arrangements.

[37]

Further, there was evidence from both parties that there had been
physical and verbal altercations between them when they lived together.
Ms. Burchills affidavit evidence in that regard (also reflected in her
original pleadings in 1997) was that Mr. Roberts was physically and
verbally abusive toward her during their relationship and that the verbal abuse
and threats continued until they separated.  Mr. Roberts acknowledged that
the parties had a difficult relationship which involved occasional pushing
and shoving, but denied that it was of a serious nature or resulted in any
physical injuries to either party.

[38]

The chambers judge referred to this evidence in her reasons for judgment,
but did not expressly state to what extent it influenced her decision that
Ms. Burchills failure to seek an earlier increase in support was not unreasonable.
In my view, however, the fact that the parties had a dsyfunctional relationship
involving physical altercations during the time they lived together is relevant
in assessing Ms. Burchills apparent reluctance to actively pursue
Mr. Roberts for money.  The fact that they had separated did not repair
the damage already done.  For his part, Mr. Roberts position was that he did
not want to rock the boat.  As pointed out by the chambers judge, however,
not rocking the boat operated in his favour.

[39]

Mr. Roberts suggested in submissions that the only reason Ms. Burchill
sought retroactive support was that he had mistakenly advised her that he was
cutting off child support when their son turned 19, the implication being that
she was acting solely from spite.  If Ms. Burchill had knowledge of
Mr. Roberts' substantial increases in income since 1997, there might be
some force in that submission.  But it was only when he threatened to terminate
support altogether, at a time when Ms. Burchill was attempting to assist
their son with his significant university expenses, that she learned for the
first time of the near doubling of Mr. Roberts income.  The chambers
judge accepted her evidence that she was shocked at this revelation.

[40]

As Mr. Justice Bastarache stated at para. 102 of
D.B.S.
:

...Notably, the difference
between a reasonable and unreasonable delay often is determined by the conduct
of the
payor
parent.  A payor parent who informs the recipient parent of
income increases in a timely manner, and who does not pressure or intimidate
him/her, will have gone a long way toward ensuring that any subsequent delay is
characterized as unreasonable....  [Emphasis in original.]

[41]

Mr. Roberts does not fit the description of the reasonable payor
described in this passage.

[42]

In conclusion on this point, I am satisfied that there was evidence
supporting the chambers judges conclusion that Ms. Burchills failure to
actively pursue an increase in child support at an earlier date was not
unreasonable.  It is not for this Court to reweigh that evidence and substitute
its own opinion.

[43]

The next factor to consider is the impact of Mr. Roberts' failure
to pay increased child support.

5.
Circumstances of the Child

[44]

Mr. Roberts submits that, despite his failure to pay increased
child support since 1997, there is no evidence that his son suffered as a
result.  For that reason, he submits that he should not be required to pay
increased support prior to June 2011 when he says he first learned that
Ms. Burchill was seeking an increase.  He says that, by all accounts, his
son is a bright, accomplished young man who is thriving in his university
studies.

[45]

The chambers judge said little about this factor, perhaps because the
evidence before her was so limited.  She stated, on the one hand, that there
was no evidence that the child had suffered significant hardship over the
years; but also noted, on the other hand, that there was no evidence that he
had been living in a manner commensurate with Mr. Roberts income of up to
$195,000.

[46]

In my view, there can be no question that the cost of supporting a child
over the 14 years between 1997 and 2011 would have increased dramatically.  As
earlier noted, the cost of inflation alone would have substantially eroded the
purchasing power of the support payments, not to mention the increased costs of
feeding, clothing and providing for school and recreational activities over
time for a child who was obviously involved in many activities.  In the
meantime, Mr. Roberts standard of living had improved substantially over
that same period of time.  Any additional contributions he made to his sons
extracurricular activities appear to have been minimal.

[47]

There is evidence that Ms. Burchill went into debt supporting
herself and her son over the years.  This is hardly surprising since, to the
extent that Mr. Roberts did not provide increased support to match the
increasing costs of raising their child, that burden was met by Ms. Burchill.
To the extent that their son had needs which were not met by the support
payments, it was Ms. Burchill who made up the shortfall.  She did so
according to her means and utilizing her ability to incur debt.  The evidence
is that the shortfall in child support payments over the latter years was
(approximately) $8,100 in 2006; $6,700 in 2007; $10,000 in 2008; $11,000 in
2009; $9,600 in 2010 and $9,600 in 2011.  Over the same period, Mr. Roberts
contributed more to his RRSP.

[48]

In my view, it is simply inescapable that, despite the financial and
other support Ms. Burchill provided her son since the parties separated in
1995, he could not have enjoyed a standard of living commensurate with what he
would have enjoyed if Mr. Roberts had been paying support in accordance with
his income.  In short, Mr. Roberts ended up with at least $55,000 in his
pocket which should have been utilized for the support of his son.  This sum
would have provided many of the benefits which children of more well-to-do
parents are fortunate to enjoy; it would have alleviated the costs of food,
clothing and other necessaries which growing children inevitably require; and,
latterly, it would have assisted their son in meeting his university expenses.

[49]

In the absence of evidence as to what specific losses their son suffered
on a daily or yearly basis arising from a shortfall in the support which Mr. Roberts
income justified, I am satisfied that a loss of benefits can be presumed.  This
is evident from the
Guidelines
themselves, which were intended to
provide for a level of support for children tied to the income of the payor.
The
Guidelines
were designed to do away with the frequently inadequate
needs-based approach to child support which historically underestimated child
costs to the detriment of children and the custodial parent.  A presumption of
unmet needs, or of relative hardship, is one which can and, in my view, should
be made where there is a substantial failure to provide
Guidelines
support over a prolonged period of time, as here.

[50]

Thus, to the extent the chambers judges reasons are unclear as to
whether the circumstances of the child justify an award of retroactive support,
I find that they do.

[51]

Before leaving this point, I note that Mr. Roberts pointed out an
error in the trial judges reasons at para. 19 where she referred to the
needs of the recipient parent.  It is clear from her later analysis that she
was aware that the relevant consideration was the needs of the child and that
her error was in the nature of a typo.

[52]

Finally, I would adopt an observation made by Mr. Justice Donald,
speaking for this Court in
Swiderski v. Dussault,
2009 BCCA 461, 98
B.C.L.R. (4
th
) 40, in rejecting the payors claim in that case that
the childs needs had been met over the years such that no useful purpose would
be served by a retroactive order. Mr. Roberts expressed a similar
sentiment in stating that Whats done is done.  At para. 42 of the
decision, Mr. Justice Donald stated:

The argument loses
much of its impact when the evidence falls short of proving
Guidelines
equivalency.  The childs basic needs were undoubtedly met, but the fact
remains that he did not get what he was entitled to under the
Guidelines
.
His needs are those of the child of a wealthy parent who, by law, is required
to provide the child with a lifestyle commensurate with his position.  On the
needs analysis proposed by the appellant, wealthy payors would always be able
to escape retroactive orders and ignore their
Guidelines
obligations
without risk of a reckoning for past defaults, simply on the argument that the
childs needs were met.  This should be discouraged.  In my opinion, a
retroactive order serves a legitimate purpose as a deterrent.

[53]

I now turn to the question of whether the retroactive award worked a hardship
on Mr. Roberts.

6.
Hardship to the Payor

[54]

It is not clear to me if Mr. Roberts is taking the position that
the chambers judge erred in finding that a retroactive award would not result
in hardship to him.  In that regard, the trial judge simply stated that there
was no evidence of such hardship.  She did, however, provide in her order that
Mr. Roberts had liberty to apply regarding a payment schedule for
retiring the award of retroactive support in the event that a lump sum award
imposed unnecessary hardship on him.  There is no indication that Mr. Roberts
sought to take advantage of this provision.  Nor, in my view, is there any
basis for interfering with her conclusion that he did not establish he would
suffer hardship as a result of the award.  While no financial statements were
filed, the evidence available discloses that he is sole, or part, owner of
several properties and has managed to pay substantial amounts into RRSPs.

[55]

In my view, taking into account all of these factors in the context of
these circumstances, the chambers judge did not err in finding that a
substantial retroactive award was appropriate.

[56]

I turn, next, to the amount of the retroactive award, which was
calculated from January 1, 2006 based on Mr. Roberts actual income
from that date until December 31, 2011.

7.
Date of Commencement of the
Award

[57]

As earlier noted, Mr. Roberts submits that the date for
commencement of the retroactive award should have been no earlier than June
2011 when, he submits, Ms. Burchill first made a demand on him for increased
support.  His submission on this point tracks his submission that Ms. Burchill
was at fault for failing to actively pursue increased support at an earlier
date.  I have already given my reasons for rejecting this submission and I do
not propose to repeat them here.

[58]

Mr. Roberts also submits, however, that the chambers judge erred in
her approach to the commencement date for retroactive support as a result of
misquoting, and misinterpreting, a passage at para. 124 of
D.B.S.
In
particular, Mr. Roberts refers to para. 37 of the chambers judges
reasons for judgment where she states:

I turn then to the
issue of the date of retroactivity.  Once again I am guided by
D.B.S. v.
S.R.G.
, at para. 124, where the Court indicated that the date at which the
increased support should have commenced will
often
be the most
appropriate date.  This situation can most notably arise where the payor parent
engages in blameworthy conduct.  Where there is such blameworthy conduct, the
paying parent cannot argue that he or she reasonably believed that he or she
was fulfilling his or her child support obligations.  [Underlining added.]

[59]

Mr. Roberts submits that the word often in para. 37 should
have been sometimes, and that by inserting the word often, the chambers
judge unjustifiably treated the date upon which the payors income
substantially increased as the usual date for commencement of retroactive
payments.

[60]

In order to determine whether there is any merit to Mr. Roberts
submission on this point, it is necessary to set out what Mr. Justice
Bastarache said in
D.B.S.
with respect to the commencement date for
retroactive payments.  He began his analysis by stating (at para. 118)
that he would adopt the date of effective notice as a general rule.  (In this
case, that would be the June 2011 date favoured by Mr. Roberts.)  Mr.
Justice Bastarache went on to discuss circumstances in which the effective date
of notice would not be the appropriate starting date for retroactive payments.
This analysis is found at paras. 124-125 of his decision, where he states:

The date when increased support should have been
paid, however, will
sometimes
be a more appropriate date from which the
retroactive order should start.  This situation can most notably arise where
the payor parent engages in blameworthy conduct.  Once the payor parent engages
in such conduct, there can be no claim that (s)he reasonably believed his/her
childs support entitlement was being met.  This will not only be the case
where the payor parent intimidates and lies to the recipient parent, but also
where (s)he withholds information.  Not disclosing a material change in
circumstances - including an increase in income that one would expect to alter
the amount of child support payable - is itself blameworthy conduct.  The
presence of such blameworthy conduct will move the presumptive date of
retroactivity back to the time when circumstances changed materially.  A payor
or parent cannot use his/her informational advantage to justify his/her deficient
child support payments.

The proper approach
can therefore be summarized in the following way:  payor parents will have
their interest in certainty protected only up to the point  when that interest
becomes unreasonable.  In the majority of circumstances, that interest will be
reasonable up to the point when the recipient parent broaches the subject, up
to three years in the past.
However, in order to avoid having the
presumptive date of retroactivity set prior to the date of effective notice,
the payor parent must act responsibly:  (s)he must disclose the material change
in circumstances to the recipient parent. Where the payor parent does not do
so, and thus engages in blameworthy behaviour, I see no reason to continue to
protect his/her interest in certainty beyond the date when circumstances
changed materially.  A payor parent should not be permitted to profit from
his/her wrongdoing.
[Underlining added.]

[61]

While I agree with Mr. Roberts that the chambers judge mistakenly
used the word often in place of sometimes with reference to para. 124
of
D.B.S.
, that error was not one of substance when one reads the full
passage from
D.B.S.
just quoted.  It is apparent that the chambers judge
chose what she found to be the date of a material change in Mr. Roberts
income (January 1, 2006) as the commencement date for retroactive payments
because she found Mr. Roberts had engaged in blameworthy conduct.  As
earlier stated, I am satisfied that finding was justified on the evidence and
on the law as set forth in
D.B.S.

8.
The Quantum of the
Retroactive Award

[62]

It is apparent that the quantum of the retroactive award is ultimately
one of discretion informed by the principles set out in
D.B.S.
and
related decisions.  It is for the chambers judge to consider the various
factors which must be taken into account under a
D.B.S.
analysis and to
determine the weight to give to each factor.  Here, as in many cases, it is
apparent that the chambers judge gave considerable weight to what she
concluded, rightly in my view, was blameworthy conduct on the part of Mr. Roberts
and her finding that a retroactive award would not cause him hardship.  She
gave less weight to the fact that Ms. Burchill had not made earlier
demands and to the fact that there was no evidence of what she referred to as
significant hardship  occasioned to their son, despite the fact that he grew
up without benefitting from his fathers standard of living.  In my view,
Mr. Roberts has not established a sound basis for interfering with her
decision in that regard.

CONCLUSION

[63]

I would dismiss the appeal with costs to Ms. Burchill.

[64]

With a view to avoiding the cost and delay of future proceedings
relating to child support, I would also order that Mr. Roberts provide
Ms. Burchill with a complete copy of his most recent income tax return
each year (together with schedules and attachments), and with his corresponding
Notice of Assessment.  He shall provide these documents within one month of
their filing or receipt, respectively, commencing in 2013 and continuing until
such time as the parties agree in writing, or the court orders, that their son
is no longer a child within the meaning of the
Family Relations Act
.

The Honourable Madam Justice Prowse

I AGREE:

The
Honourable Chief Justice Finch

I AGREE:

The Honourable Mr. Justice
Groberman


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Gwyn,

2013 BCCA 51

Date: 20130130

Docket:
CA040056

Between:

Regina

Respondent

And

Joshua Jeremy
Quinton Gwyn

Appellant

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Harris

On appeal from:
Provincial Court of British Columbia, March 30, 2012
(
R. v. Gwyn
, Kelowna Registry 75656)

Oral Reasons for Judgment

Counsel for the Appellant:

L.J. Helps

Counsel for the Respondent:

B.A. MacLean

Place and Date of Hearing:

Vancouver, British
  Columbia

January 29, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 30, 2013

[1]

NEWBURY J.A.:
Mr. Gwyn was sentenced by His Honour Judge
Hogan, P.C.J., to 65 months imprisonment on one charge of bank robbery to
which he pleaded guilty in August 2011. The 65 months was arrived at after
the judge gave credit on a one-for-one basis for seven months the appellant had
already spent in custody, with the result that sentence was effectively one of
six years imprisonment.

[2]

Mr. Gwyn was age 26 at the time of sentencing and had a record of
previous convictions, both in Youth Court and as an adult, including on charges
of theft, fraud, assault causing bodily harm, at least three failures to
appear, possession of illegal drugs for the purposes of trafficking, and breaking
and enters. At the time of sentencing, there was an outstanding warrant for his
arrest in Ontario and outstanding charges in Alberta. He has a serious
addiction to heroin and the sentencing judge noted that Mr. Gwyn had been
trying to take some drug programs at Kelowna Regional Correctional Centre to
gain some insight into his behaviour. There was no further information before
us as to specific steps he has taken since he was sentenced.

[3]

Evidently, Mr. Gwyn was high on drugs at the time of the offence,
which the sentencing judge described as follows:

He is on some kind of drug
bender, he has recently arrived here [Kelowna] and, in the midst of his
drug-addled confusion, writes up a note demanding $15,000, goes into the Royal
Bank, hands it to the clerk, gets the money after a threat that he has a gun. He
is arrested shortly thereafter with about $1100, if I recall, in his possession.
The rest having been squandered almost immediately.

[4]

In his reasons for sentencing, the judge reviewed the principles of
sentencing, including the obligation to use the sentence which least confines
the individual, the step principle, and the objectives of sentencing as set
out in the
Criminal Code
. As mitigating factors, he noted that Mr. Gwyn
is comparatively young, and not a hardened offender as to age, and that he
had pleaded guilty. He had also, as noted earlier, been trying to address his
drug addiction.

[5]

The aggravating factors noted by the judge included the fact that
although Mr. Gwyn was not the old and hardened offender, neither is he
the young and foolish teenager that he once was when he came into contact with
the justice system.  The judge noted the pretty frightening effect of
robbery on the bank teller and that although Mr. Gwyn did not have a gun,
he suggested to the teller that he did. As well, the judge said, he does have
these outstanding charges in other provinces which means I cannot go too far in
considering he is of good character.  (Para. 16.)  The Court took into
account a general rise in the number of bank robberies and similar robberies in
the Okanagan region, where he noted a now wide-spread enthusiasm for
robberies.

[6]

On a more personal level, the judge noted Mr. Gwyns drug problem
and the fact he had apologized a bit today to the victim of the robbery.

[7]

As far as the applicable objectives of sentencing were concerned in this
case, the sentencing judge stated that general deterrence is not completely
exhausted in our society and that he had seen cases in which persons who
served time in a penitentiary actually turn their lives around. On the other
hand, he said, he had not given up on rehabilitation at all. The Crown suggested
a sentence in the range of six years. The sentencing judge found that this was
pretty sensible taking into account the circumstances of the offence and the
appellants past record. The judge concluded that the Crowns suggestion was a
wise one as to the length of time in total and from it deducted the seven
months the appellant had already spent in custody, for a sentence of five years
and five months. The Court also made a restitution order in the amount of $13,900
in favour of the Royal Bank, observing that restitution was one of the best ways
to demonstrate to the community that Mr. Gwyn is making amends.

[8]

On appeal, counsel for Mr. Gwyn contends that a six-year sentence
is unfit; that the Court failed to consider the totality of such a sentence in
conjunction with the restitution order; and that the latter order was made
without counsels submissions and was excessive.

[9]

In general terms, no error in the reasoning of the court below has been
shown. The sentencing judge considered the appropriate factors and sentencing
principles, and applied them to the facts before him. The real question for us
is whether the sentence was a fit one, having regard to this offender and this
offence. We were referred to this courts decision in
R. v. Brogan
,
1999 BCCA 278, in which a sentence of eight years for
two
robberies was
upheld. Ryan J.A. for the Court suggested that the cases support a range
of between two and nine years in cases in which a robbery with violence has
been committed by a young man. (Violence was not used in the case at bar,
although the bank teller was threatened.)

[10]

We were also referred to this courts decision in
R. v. Gill
,
2006 BCCA 127, which involved a six-year global sentence imposed after the
appellant pleaded guilty to one count of robbery (of a convenience store),
using an imitation firearm and masking his face. He had been serving a CSO at
the time of the offence. This court reduced the sentence to four years,
emphasizing the appellants age (23), his lack of any record for similar
offences, and the fact he had used an unloaded replica weapon. The Court
attached to its reasons a chart which summarized sentences given in several cases
involving the robbery of commercial premises by youthful offenders. (As the
sentencing judge pointed out in his reasons, Mr. Gwyn is not young,
although he may well be youthful.)

[11]

Counsel also made reference to
R. v. Godkin
2008 BCCA
287, in which this court upheld a sentence of nine years plus two months
incarceration on two counts of robbery and one of possession of a dangerous
weapon;
R. v. Nilsson
2012 BCCA 498, upholding an eight-year
sentence imposed on conviction for two counts of robbery; and
R. v. Zakis
2012 BCCA 450, upholding a sentence of six years incarceration after the
appellant pleaded guilty to one count of robbery. The latter case is very
similar to the present one in that it involved a bank robbery in the Okanagan
and does not appear to have involved a weapon or violence of any kind. The
appellant was older (age 39) than Mr. Gwyn, but had a criminal record for
a series of earlier offences for which the longest sentence he had received was
one year.

[12]

Of course, as counsel agreed, and as stated in
Brogan
, no two
offences or offenders are ever entirely the same. In this case, the offender is
not old but not young; he has a record that does not involve violence but which
includes property crimes over several years; and he is addicted to heroin. As Crown
counsel noted, we were not given a great deal of information about his personal
circumstances that might indicate that the sentence imposed here was not fit. He
is not a resident of the Okanagan Valley and seems to have drifted across
Canada in recent years and therefore lacks a stable support system to which he
can turn. Although the court below was told he has a common law wife and child,
it now appears that the mother is of the child is only his girlfriend and
that Mr. Gwyn
hopes
 to have a relationship with the child. We
were not informed of any specific efforts he has made at drug rehabilitation since
sentencing, and it may be that his best hope for treatment and recovery lies in
programs administered by Corrections authorities. Any remorse he has
demonstrated for the robbery seemed lukewarm at best. These factors in my view
weigh in the balance against a sentence at the low end of the range. Perhaps
more importantly, we must be mindful of the sentencing judges comments
regarding the epidemic of bank robberies in the Okanagan region.

[13]

In all the circumstances, although I view the six-year sentence as lying
at the high end of the range, I am unable to say that it was not fit in this
case or that it represented too great a step up from Mr. Gwyns previous
sentences. This sentence must reflect the seriousness of the robbery as
compared to those previous offences.

[14]

As for the restitution order, I am not convinced that it was unfit, or
that together with the jail term, it represents a crushing or excessive punishment
within the meaning of
R. v. Hoyt
[1992] B.C.J. No. 2315
(B.C.C.A.). As Wood J.A. stated in
Hoyt
:

[32]      As this Court noted in
Flottvik
, an order
for compensation is a valuable weapon in the arsenal of the sentencing judge.
Studies have long questioned the deterrent value of harsh custodial sentences,
and suggested that it is the certainty of sanctions stemming from the fear of
detection that acts as a more potent deterrent than does any sanction imposed
after the fact:  see
Sentencing Reform
:
A Canadian Approach
,
Report of the Canadian Sentencing Commission, 1987, at pp. 135-8, and the
studies there referred to. If the fear of detection is accompanied by the
realization that restitution will be ordered, and exacted, the deterrent effect
of any sanction imposed must ultimately be enhanced.

[33]      In addition to having a
measured denunciatory effect, an order for compensation also provides a means
by which the offender can be required to take responsibility for the true
consequences of his or her crime. The assumption of that responsibility
provides a positive benefit to the victim of the offence in question.

[15]

I believe this is what the sentencing judge in this case had in mind when
he observed at para. 38 that restitution was the best way for Mr. Gwyn
to demonstrate to the community that he is making amends.  I also note that the
order simply clears the way procedurally for the Bank to recover the amount
stolen from it: Mr. Gwyn would be bound civilly to make restitution in any
event.

[16]

In the result, I would grant Mr. Gwyn an extension of time in which
to appeal and I would grant leave to appeal, but dismiss the appeal.

[17]

LOWRY J.A.:
I agree.

[18]

HARRIS J.A.:
I agree.

[19]

NEWBURY J.A.:
The appeal is dismissed.

The Honourable Madam Justice Newbury