Mayall v. Kebarle – 2018 BCSC 170

Can moving out of the country get you off the hook from paying child support? A recent BC decision says no. While moving to Belize may let you escape the cold weather, it will not release you from your legal obligations. Courts will grant child support variations if there is a material change, but unfortunately, trading in snow for sun does not constitute a material change.

Facts
The parties, Mr. Mayall and Ms. Kebarle, were in a 13 year common law relationship, which ended in July 2009. The parties had a child, Lucas, in 2001. Mr. Mayall was seeking a variation of child support that was ordered in 2013 based on an imputed income of $75,000. The variation Mr. Mayall sought was both prospective and retroactive to August 1, 2014.
At the time of the separation in 2009, the parties failed to agree upon the father’s income for child support purposes. The court found that Mr. Mayall, who was 59 at the time, had employment skills and ability but chose minimal employment. As a result, the court imputed to him an income of $75,000 in 2013.
After the parties separated, and until May 2011, the parties shared joint custody and parenting of Lucas. Since May 2011, Lucas has resided primarily with his mother. Although the parties entered into a consent order for parenting schedules in April 2012, they never implemented the order.
In November 2016, Mr. Mayall moved to Belize. After moving to Belize, Mr. Mayall unilaterally reduced his payments from the court-ordered value of $701 to $307.26 a month. Between October 2016 and September 2017, as a result of Mr. Mayall’s non‑payment of the court‑ordered amount, Family Maintenance Enforcement Program started a series of enforcement actions which eventually led to the cancellation of Mr. Mayall’s passport

Issues
Justice MacNaughton addressed three issues in her judgement:
1. Whether child support order can be varied proactively and retroactively;
2. Whether unpaid support can be canceled; and
3. Whether the parenting arrangement can be varied.
Rules and Analysis

Issue 1:
The application to vary a court order for child support is governed by s. 152 of the Family Law Act. There must be a material change in Mr. Mayall’s circumstances since the order of 2013 for the child support to be varied. A material change is one that, if known at the time, would likely have resulted in different terms (Willick v Willick, [1994] 3 SCR 670).
Mr. Mayall argued that his mental health issues (depression and stress) constitute a material change and explain his inability to meet his legal obligation to pay child support. However, the court was not persuaded by this argument. Justice MacNaughton concluded that Mr. Mayall had “not presented the type of cogent evidence on which [she] could conclude that he is medically incapable of pursuing full time remunerative employment to meet his legal obligation to support Lucas.” (para 36)
Mr. Mayall’s pattern of employment shows that he continued to work at less than his full capacity and on an intermittent basis. Justice MacNaughton held that the circumstances are no different now than they were at the time of court order in 2013. Mr. Mayall “continues to engage in apparently non‑remunerative employment, although he now does so in Belize which, arguably, is a cheaper place to live than his previous residence in North Vancouver.” (para 30)
In D.B.S. v S.R.G., 2006 SCC 37, the Supreme Court summarized the four factors which must be considered in determining the appropriateness of a retroactive support order: the circumstances surrounding the delay in bringing the application; the payor parent’s conduct; the child’s circumstances; and any hardship caused by a retroactive child support order.
The court held that Mr. Mayall has engaged in blameworthy conduct and did not made reasonable efforts to find remunerative employment to meet his child support obligations. Mr. Mayall did not met the test for varying the 2013 child support order either retroactively or prospectively.

Issue 2:
The test for granting a cancellation of arrears of child support comes from Earle v Earle, 1999 BCSC 283.
In Earle, Justice Martinson concluded that there were two requirements for a successful application to reduce or cancel arrears. The applicant must prove a material change in circumstances which Justice Martinson defined as “significant and long lasting”, and that it would be “grossly unfair” not to cancel the arrears.
The court ruled that Mr. Mayall has funds available to currently pay the arrears. Given the fact that there has been no change in circumstance that is material or long lasting, Mr. Mayall still has the ability to pay the child support.

Issue 3:
Mr. Mayall wanted the parenting agreement to be varied so that Lucas could come visit him in Belize. However the parties never followed the agreement in the first place.
Justice MacNaughton held that Mr. Mayall should make a reasonable proposal for Ms. Kebarle arranging a visit for Lucas to Belize. Moreover, she stated that the cost of Lucas’s travel is not a special or extraordinary expense as defined in s. 7(1) of the Federal Child Support Guidelines. Consequently, she did not grant an order for proportionate sharing of Lucas’s travel expenses to Belize based on income as sought by Mr. Mayall.

Conclusion
Justice MacNaughton ruled that there was no material change in the parties’ positions that would justify varying the child support order, waiving the previous unpaid child support or varying the parenting agreement. The application was dismissed in its entirety and Ms. Kebarle was entitled to costs.

By: Karina Alibhai – Summer Student