



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Labell 
          v. Labell,







2006 
          BCCA 45



Date: 20060124





Docket: CA33015

Between:

Richard 
    Simon Labell

Respondent

(
Plaintiff
)

And

Valerie 
    Mary Maureen Labell

Appellant

(
Defendant
)












Before:


The 
          Honourable Madam Justice Newbury




The 
          Honourable Madam Justice Huddart




The 
          Honourable Mr. Justice Low



Oral Reasons for Judgment




J.M. 
          Stirling


Counsel for the Appellant




J.W. 
          Bennie


Counsel for the Respondent




Place 
          and Date:


Victoria, British Columbia




24 January 2006





[1]

NEWBURY, J.A.:
Ms. Labell appeals an order of Lander, 
    J. which varied the child maintenance payable by Mr. Labell in respect of 
    the couple's child, a daughter, now 17 years old, to $1.00 per month and cancelled 
    all arrears owing since the previous order of September 1994.  The amount 
    cancelled, including interest and collection fees charged by the Director 
    of the Family Enforcement Maintenance Program, was approximately $36,000.  
    Ms. Labell has appealed only the cancellation of the arrears.

[2]

The previous order had been the result of a recommendation of Master Horne 
    in September 1994, i.e., prior to the present

Guideline regime.  Master 
    Horne attributed income of $10,000 per annum to Mr. Labell, being approximately 
    the amount of unemployment insurance benefits drawn by him in his tax returns 
    for 1989 to 1993.  Mr. Labell also claimed to have incurred a net loss, or 
    a very small profit, from fishing each year, although his gross income therefrom 
    was between $26,000 and $29,000.  The expenses charged against that income 
    were not disclosed.  Master Horne recommended that child maintenance 
    at that time be increased to $300 per month.  His reasons were not read by 
    the Chambers judge below, although they were before him.

[3]

Over the 11 years since the 1994 order, the Chambers judge found that 
    Mr. Labell had paid a total of $5,907.  Mr. Labell adduced incomplete 
    financial information  most notably his T4 for fishing in 2004 and T4E for 
    employment insurance income for the same year.  He deposed to very low income 
    (under $2,000) in 2000 and 2001 and said he had supported himself by staying 
    with family and friends "as I was unable to support myself alone".  
    He said his income tax returns and related documents for 2000 to 2003 had 
    been lost, but copies of the Revenue Canada summary sheets for 2000 to 2002 
    were adduced.  At para. 17 of his affidavit he stated:

I 
    cannot afford the current support amount, and I don't think I should pay to 
    the Respondent when my daughter is not living with her.  I also cannot afford 
    to pay the arrears outstanding, with my income I will never be able to pay 
    them off.  As of February 17, 2005 the records for the Family Maintenance 
    Enforcement Program state that I owe $36,008.75.  A true copy of those records 
    are attached at Exhibit "G".

Based on this information, the Chambers judge calculated 
    Mr. Labell's average income over the last three years as $8,506, which would 
    have meant the Guideline amount for one child would be $44 per month.  If 
    the last five years were averaged, Mr. Labell would not have to pay anything 
    under the Guidelines.

[4]

The Chambers judge also noted that Mr. Labell is functionally illiterate 
    and has worked at other labouring jobs in the past in addition to fishing.  
    Mr. Labell deposes that his illiteracy "makes it very difficult to look 
    for work, as I find reading help wanted ads very difficult".  His counsel 
    suggests this may also have contributed to his failure to apply earlier to 
    have the maintenance order varied.  He is now 40 years old and appears not 
    to have varied at all from the fishing/UIC life that he was living when the 
    couple were living together.  There is no evidence he has attempted to overcome 
    his illiteracy.  Yet he has a daughter who requires support and is approaching 
    middle age.

[5]

The Chambers judge dealt first with the question of support and essentially 
    reasoned that because he had really no information about how the daughter 
    was supporting herself (she was working at a Dairy Queen and living with friends), 
    he would reduce the maintenance to a nominal amount of $1.00 per month.  (This 
    is not under appeal, but I note parenthetically that the application of the 
    Guidelines does not depend on the child's income or needs.  It is determined 
    now solely on the payor's ability to pay.)  The Chambers judge next turned 
    to the question of arrears.  He said Mr. Labell's arrears were "reprehensible", 
    but that he could see no hope Mr. Labell would every repay the $36,000.  
    He then said:

Brittanie 
    is 16 now, and her situation appears to be one where she has ceased to continue 
    her education.  Whether she returns or not, I have already dealt with.  So 
    I see that very soon she will be an adult.

However, 
    I do have some sympathy for Mrs. Labell and the years that she was deprived 
    of income for the support of Brittanie by this man's conduct.  But we must 
    deal in the present and consider the future.

Therefore, 
    I am cancelling the arrears.  There will be no costs.

[6]

The Chambers judge mentioned only one case 
Earle v. Earle
(New Westminster No. A881580, dated January 18, 1999).  In it, Martinson, 
    J. declined to reduce the arrears of a father who had hopes of being able 
    to pay his arrears in future, but no present ability.  Perhaps a more analogous 
    and more useful case would have been this court's decision in
Longstaff 
    v. Longstaff
(1993), 49 R.F.L. (3d) 1.  Like this case, it was an 
    appeal from an order reducing child maintenance and cancelling arrears.  In
Longstaff
, $4,900 of the $10,900 of arrears had been cancelled.  
    The Court of Appeal allowed the appeal, confirming that the onus was on the 
    payor spouse to make full disclosure of his financial circumstances; that 
    a variation in maintenance generally requires proof of a change in circumstances; 
    and that with respect to the reduction or cancellation of arrears, the payor 
    must satisfy the court it would be grossly unfair not to reduce or cancel 
    the arrears.  In the circumstances of
Longstaff
, this court 
    ruled it was not open to the Chambers judge to cancel part of the arrears.  
    Rowles, J.A. quoted from
Barton v. Barton
, a 1985 case (November 
    26, 1985, Co.Ct., Vancouver Docket No. CC850939), where Huddart, Co.Ct. J. 
    (as she then was) had said:

To 
    cancel arrears on a child maintenance order merely because that order, never 
    sought to be varied, cannot at a moment in time be enforced, encourages a 
    lack of diligent effort to pay in the hope that the more diligent parent will 
    give up any attempt to enforce the order at whatever cost in lost savings 
    and extra effort.

If 
    the courts are to respect the principle that parents share equally the responsibility 
    for the care of their children, no result should be permitted that gives any 
    appearance of favouring a parent whose efforts to fulfil that responsibility 
    have been less than those of the other who shoulders it by dint of energetic 
    and sustained application of his or her resources.

[7]

In the case at bar, while it is unlikely Mr. Labell will get himself 
    out of his dependence on employment insurance and seasonal work, there is 
    always the chance, however slim, that he may do so, or that he may inherit 
    or come into some money in some way.  In that event, it would be grossly unfair 
    if his daughter were unable to press her claim which has grown over the years 
    to $33,000.  In the meantime, I am not satisfied Mr. Labell has discharged 
    the onus on him to show that non-cancellation would be grossly unfair.  It 
    may never be possible to collect the arrears from him, but in my view, it 
    has not been shown that it would be grossly unfair not to cancel or even reduce 
    the arrears in these circumstances.

[8]

Accordingly, I would allow the appeal, set aside the cancellation order 
    made below, and fix the arrears at $33,873.75, which we are told includes 
    interest and penalties but not default fees owing to the government.

[9]

HUDDART, J.A.:
I agree.

[10]

LOW, J.A.:
I agree.

The Honourable Madam Justice Newbury


