



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



de Rooy v. Bergstrom,









2010 BCCA 5




Date: 20100107

Docket:
CA036665

Between:

Gertrude Frederika de Rooy

Respondent

(
Plaintiff
)

And

James Terrence Bergstrom

Appellant

(
Defendant
)




Before:



The Honourable Mr. Justice Chiasson





The Honourable Mr. Justice Frankel





The Honourable Mr. Justice Bauman




On appeal from: the Supreme Court of British Columbia, November 14,
2008

(de
Rooy
v. Bergstrom
, Vancouver Docket No. F950264)




Counsel for the Appellant:



H.W.
  Wiebach





Counsel for the Respondent:



R.N.
  Toews





Place and Date of Hearing:



Vancouver,
  British Columbia





June 19, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January
  7, 2010









Written Reasons by
:





The Honourable Mr. Justice Frankel





Concurred in by:





The
  Honourable Mr. Justice Bauman





Concurring Reasons by:





The Honourable Mr. Justice Chiasson (p.
  22, para. 69)












Reasons for
Judgment of the Honourable Mr. Justice Frankel:

Introduction

[1]

James Terrence Bergstrom appeals from the order of
a judge of the Supreme Court of British Columbia requiring him to pay
retroactive child support with respect to the three children from his
common-law relationship with Gertrude Frederika de Rooy.  His position is that
the chambers judge, Mr. Justice Groves, had no jurisdiction to vary an interim
order for child support and that, in any event, the judge erred in both fact
and law in his disposition of the matter.  As well, Mr. Bergstrom submits
that it is inequitable to base his child support obligations on the
Federal

Child Support Guidelines
, SOR/97-175.

[2]

For the reasons that follow, I would allow this
appeal in part.  Mr. Bergstroms liability should be reduced by the amount
ordered to be paid with respect to the oldest child.  At the time of Ms. de
Rooys application, the oldest child was not a child as defined by s. 87
of the
Family Relations Act
, R.S.B.C. 1996, c. 128, and could not
be the subject of a retroactive child support order.

[3]

It should be noted that I agree with the
additional observations made by Mr. Justice Chiasson.

Factual Background

[4]

Mr. Bergstrom and Ms. de Rooy lived in
a common-law relationship from late 1985 until May 1992.  They have three children
together:  N.B., born May 27, 1986; D.B., born January 27, 1989; and R.B., born
October 9, 1990.  Mr. Bergstrom was married prior to entering into a
relationship with Ms. de Rooy.  He has three children from that marriage.

[5]

When Ms. de Rooy and Mr. Bergstrom
separated in May 1992, he continued to reside in their family home, and
continued to provide support for her and their children.  He remained in the
family home until May 1993.  After Mr. Bergstrom moved from the family
home he did not pay Ms. de Rooy child support on a regular basis.  He did,
however, pay his former wife $300.00 per month in child support.

[6]

Mr. Bergstroms employment required him to
engage in heavy physical labour.  In 1978, he suffered a job-related injury. 
By early 1994, he was no longer capable of engaging in heavy physical labour. 
As he was unable to work, Mr. Bergstrom received employment insurance and,
later, workers compensation benefits.  Mr. Bergstrom was approved for a
retraining, and continued to receive workers compensation benefits while
undergoing retraining.

[7]

On May 4, 1995, Ms. de Rooy commenced an
action against Mr. Bergstrom in the Supreme Court of British Columbia
(Vancouver Docket No. F950264) under the provisions of the
Family
Relations Act
, seeking:

(a)      sole
interim and permanent custody of their children;

(b)      interim
and permanent maintenance for the support of the children; and

(c)      an
order with respect to the division of property with respect to the family home.

[8]

On May 17, 1995, a master of the Supreme Court
made an order in Docket No. F950264, by consent, that:

(a)      granted
Ms. de Rooy interim custody of the children;

(b)      granted
Mr. Bergstrom reasonable and generous access to the children; and

(c)      ordered
Mr. Bergstrom pay to Ms. de Rooy for the interim maintenance of the
children ... the sum of $600.00 per month commencing the first day of May, 1995
and on the first day of each and every month thereafter until further Order of
this Court.

[9]

Following the making of the Supreme Court consent
order, the parties, both of whom were represented by counsel, negotiated a
comprehensive separation agreement, which they signed on December 20, 1995.  Amongst
other things, that agreement dealt with custody of and access to the children,
child support, and the division of assets.  It provided that neither party
would claim spousal maintenance from the other.  Also, Mr. Bergstrom
agreed to transfer his interest in the family home to Ms. de Rooy.

[10]

The agreement stated that it was intended to be
a settlement with respect to guardianship, custody, and maintenance of the
Children.  It also stated that Mr. Bergstrom is in receipt of Workers
Compensation benefits while a student in the City of New Westminster and
receives $28,800.00 gross per annum.

[11]

With respect to child support, the agreement
provides:

MAINTENANCE FOR
CHILDREN

8. (1)    Terry is to pay to Trudy, for the
maintenance of the children, namely, [names and dates of birth omitted], the
sum of $200.00 TWO HUNDRED DOLLARS per month per child commencing September 1,
1995, and thereafter, on the 1st day of each and every month until that child:

(a)        attains the age of 19 years;

(b)        marries;

(c)        dies; or

(d)        becomes self-supporting;

whichever comes first.

(2)        While Terry is unemployed the
amount of child maintenance for the Children, namely, [names and dates of birth
omitted], is reduced to $66.00 per month per child until Terry regains
employment.

(3)        While required to pay Child
Maintenance under this Agreement, Terry will maintain medical and dental
insurance for the children.

(4)        The amount of Child Maintenance
shall be increased annually on the anniversary date of the Separation Agreement
by same percentage as Terry receives as salary increase during the period
before the anniversary date.

9.         While
required to pay Child Maintenance under this Agreement, Terry and Trudy will
share the cost of tuition, fees, books, and any other expenses related to that
Child attending any post secondary educational institution in proportion to
their respective incomes.

[12]

I note that both the interim order and the
separation agreement pre-date the coming into force of the federal
Guidelines
that have, since 1998, applied under the
Family Relations Act
by virtue
of the
Child Support Guidelines Regulation
, B.C. Reg. 61/98.  As a
result, Mr. Bergstrom was entitled to claim a tax deduction for support
paid under either the interim order or the agreement.  Ms. de Rooy, on the
other hand, was required to declare payments she received as income on her tax
returns.  Payments based on the
Guidelines
are neither deductible by the
payor, nor taxable in the hands of the recipient.

[13]

The separation agreement also contained the
following provisions:

GENERAL

21.       If either party takes any
proceedings with respect to the parties assets or responsibilities to each other,
pursuant to this Agreement this Agreement shall

(a)        be filed or exhibited in
such proceedings;

(b)        continue in effect after
any order is made in the proceedings; and

(c)        survive the divorce.

22.       The parties shall execute a
consent to the filing of this Agreement in the Supreme Court of British
Columbia, which, only after unsuccessful mediated settlement, at the option of
either party, may be filed with the Supreme Court of British Columbia.

. . .

25.       This Agreement constitutes the
entire agreement between the parties and there are no representations, promises,
warranties, covenants, or conditions other than those expressly set forth in
this Agreement.

. . .

27.       Any
provision of this Agreement that is void, voidable, or unenforceable is
severable and the remainder shall continue in effect.

[14]

Prior to executing the separation agreement the
parties orally agreed that Mr. Bergstrom would not pay child support for a
number of years.  Although there is disagreement as to the length of this
non-payment period, Ms. de Rooy accepts that it was to last until 2000,
when Mr. Bergstrom would no longer be paying support for the children from
his earlier marriage.

[15]

As a result of their agreement, Mr. Bergstrom
did not pay Ms. de Rooy child support.  He did, however, provide some
money for clothing, gifts, and extra-curricular activities.

[16]

Mr. Bergstrom completed his retraining at
the end of May 1999.  In October 1999, he commenced full-time employment.  By that
time he was no longer supporting his other children.  That job lasted six
months.  Mr. Bergstrom was paid on an hourly rate basis, equivalent of an
annual salary of approximately $42,000.00.

[17]

In December 1999, Ms. de Rooy was in dire
financial straits.  She met with Mr. Bergstrom and asked him to begin
paying child support.  Following this meeting Mr. Bergstrom paid Ms. de
Rooy $1,500.00.  Mr. Bergstroms income for 1999, including workers
compensation benefits, was in excess of $53,000.00.

[18]

On January 30, 2000, the parties signed a handwritten
document that states:

This is a
preliminary agreement between Trudy De Rooy and J. Terry Bergstrom regarding
child support starting March 1st/2000 for $400.00 per month.  We also agree
that I will on each quarter to [
sic
] try to put in $200.00 per child for
their education funds which are located in the Templeton Growth Fund.

[19]

After that document was signed, Mr. Bergstrom
began paying Ms. de Rooy $400.00 per month for the support of their three
children.  He increased the payments to $600.00 per month in late 2000, when he
obtained a higher paying job.  Mr. Bergstrom did not claim the child
support payments as a deduction on his income tax returns, and Ms. de Rooy
did not include them as income on her returns.  From 2000 to 2007, Mr. Bergstroms
annual income was in the range of $50,000.00 to $94,500.00.  If he had been paying
under the
Guidelines
in 2000, then, based on his income that year, his
monthly payments would have been $426.00 for one child, $696.00 for two
children, or $911.00 for three children.  Based on his 2007 income, the monthly
Guidelines
amounts that year were respectively $860.00, $1374.00, and
$1784.00.

[20]

On October 7, 2005, Ms. de Rooy, acting on
her own behalf, filed the separation agreement in the Provincial Court.  She sought
to enforce the child support terms of the agreement, and to have new child
support amounts set under the
Guidelines
, so that those payments would
not be taxable in her hands.

[21]

Ms. de Rooy sought assistance from the
provincial Family Maintenance Enforcement Program.  On October 20, 2005, she
completed a List of Payments Form.  In filling out the form she indicated she
did not wish to claim any payments owing from January 1993 to December 2001.

[22]

On March 3, 2006, Ms. de Rooy filed an
Application to Change or Cancel an Order in the Provincial Court.  However,
it is apparent from the information that accompanied that form that she was
seeking to vary the separation agreement to have child support based on the
Guidelines
retroactive as of 2002.

[23]

During 2006, the parties agreed that Mr. Bergstrom
would re-file his income tax returns for 2003, 2004, and 2005, to deduct the
child support he had paid.  They also agreed that he would reimburse Ms. de
Rooy for the additional tax she would have to pay as a result of declaring
those amounts as income.  Ms. de Rooy received $4,000.00 under this
agreement.  However, as a result of declaring the support payments Ms. de
Rooy was required to repay approximately $2,500.00 in child tax and G.S.T.
benefits.

[24]

The Provincial Court application to vary and
enforce the separation agreement was scheduled to be heard in the fall of
2006.  Shortly before the hearing date, Ms. de Rooy retained counsel.  Ms. de
Rooys counsel and Mr. Bergstroms counsel were unsuccessful in their
efforts to reach a settlement.  As both counsel were of the view that the
matter should proceed in the Supreme Court, they arranged for the Provincial
Court hearing to be adjourned generally.

[25]

On February 20, 2007, Ms. de Rooy filed the
separation agreement in the Supreme Court (Vancouver Docket No. E070595). 
She did this at the request of the Family Maintenance Enforcement Program, on
the understanding that doing so would enable those administering that program
to assist her in enforcing the separation agreement.

[26]

On July 14, 2008, Ms. de Rooy filed a
notice of motion in Supreme Court (Vancouver Docket No. F950264).  The
relief sought in that notice included:

(a)      an order fixing
arrears of child support payable pursuant to the separation agreement;

(b)      a determination
of on-going child support for the three children; and

(c)      in the
alternative, an order varying the child support provisions in the 1995 interim
order, including retroactive variation, based on the
Guidelines
.

[27]

Ms. de Rooys application was heard on
November 6, 2008.  The chambers judge rendered his decision on November 14,
2008.

Chambers Judges Decision

[28]

The chambers judge stated that the first issue
he had to decide was whether child support was to be determined on the basis of
the interim order, or on the basis of the separation agreement.  In his view,
the court cannot do both.

[29]

The chambers judge agreed with Mr. Bergstrom
that the clause in the agreement calling for annual increases in child support
could not be used, because it does not set out a baseline income for
calculating those increases.  As a result, the chambers judge determined that
he should consider the issue of child support on the basis of the 1995 interim
order.  In this regard, he said:

[19]      I have concluded on balance, for a
number of reasons, that it is more appropriate to approach this application by
following the court order and then considering the argument for a retroactive
increase to the court order.

[20]      Court orders, in my view, are of
considerable moment.  Both parties were aware of the court order when they
signed the agreement.  Both parties appeared to have legal advice at the time. 
Both parties, however, chose not to in any way vary the court order at the time
of the agreement.

[21]      Additionally, I have some concern
as to whether or not the court has jurisdiction under the
Family Relations
Act
to in fact vary the agreement.  In my view this is an unfortunate quirk
of the
Family Relations Act
.  The
Family Relations Act
only
allows the Supreme Court to enforce the terms of an agreement filed pursuant
section 122, not in fact vary it.

[22]      However,
on balance I have concluded that the agreement has a level of uncertainty to it
and that the order is the more appropriate matter for the court to consider. 
In my view generally speaking orders of the court are more significant than are
the parties agreements.

[30]

Later, the chambers judge said this about why he
was dealing with the matter on the basis of the order, and not the agreement:

[37]      I have concluded, as noted, that
the order is to be followed, not the agreement.  I will clarify, if need be,
the reasons for this.  The agreement is a contract that in some ways it is
slightly uncertain at least as to the acceleration clause.  The agreement does
not specify an accurate level of income and it is as such questionable as to
what the parties were agreeing to in the first place, though I note that it is
completely consistent with the order.

[38]      It seems clear from the agreement
that [Mr. Bergstrom] should pay $600 a month while going to school and
earning Workers Compensation funds, in my view, because that is what he agreed
to when he agreed to the order.

[39]      However,
the main reason for my following the order is not really the uncertainty or the
seeming questions which may remain as a result of the agreement.  The main reasons
for following the order is that the order is a consent order, it is an order
entered into and approved by the court, and both parties have legal
representation, and it is, in my view, orders are generally of greater import
than are agreements.

[31]

The chambers judge went on to consider the
merits of the application.  He noted that both Ms. de Rooy and Mr. Bergstrom
were 55 years of age.  At the time of the hearing Ms. de Rooy was earning
$22,539.00 per year, having been disabled in February 2004, as a result of a
work-related incident.  Mr. Bergstroms annual income at the time of the
hearing was $83,000.00.

[32]

The chambers judge did not accept Mr. Bergstroms
submission that Ms. de Rooys handwritten note on the Family Maintenance
Enforcement Program form she filled out on October 20, 2005, evinced an
intention on her part not to seek child support until December 2001.  He said
filling out that form was a quick and casual act done without the benefit of
legal advice.  Further, the chambers judge did not accept the handwritten note
signed by the parties on January 30, 2000, as being sufficient to modify Mr. Bergstroms
child support obligations under the separation agreement.  The chambers judge stated
that the note, which he described as a scrap of paper, was written without the
benefit of legal advice, and was inconsistent with the parties formally
negotiated agreement.

[33]

On the basis of all the evidence before him, the
chambers judge found that Ms. de Rooy had agreed to excuse Mr. Bergstrom
from his child support obligations only until the end of 1999:

[40]      The
second issue I would have to consider is the non-payment issue.  And as again I
have noted, I am satisfied on all the evidence that the parties agreed that [Ms. de
Rooy] would not seek funds for a while to December of 1999, that she would
attempt to support the children on her own while he was going to school and
while he was paying support for other children.  Those circumstances were over
by December of 1999.  Her words were that she would try to give him a break and
try to do it on her own.  He had, [Mr. Bergstrom], a notice effective
December 1999 that [Ms. de Rooy] required support and that [Ms. de
Rooy] knew by that point not only that he should be supporting his children, as
all parents are deemed to know.  He did know that there was an old order based
on a much reduced level of income which required him to pay $600 a month.  He
was by December 1999 working full time.  He was no longer supporting his other
children.  The circumstances giving rise to the giving him a break, had all
end [
sic
].  [Ms. de Rooy] could no longer support the children on
her own.

[34]

The chambers judge rejected Mr. Bergstroms
argument that Ms. de Rooy did not have standing to apply for retroactive
child support for N.B. and D.B. because they were over the age of 19.  He held
that it would create an injustice to deny the recipient parent the right to
seek retroactive support merely because a child had reached 19 years of age, as
this would reward payor parents who successfully delay, disobey, or disregard
their obligations.

[35]

Having regard to the factors set out in
D.B.S.
v. S.R.G.
, 2006 SCC 37, [2006] 2 S.C.R. 231, with respect to entitlement to
retroactive child support, the chambers judge found as follows:

(a)          Ms. de
Rooy had been actively seeking support from December 1999, and there were
legitimate reasons for the delay in bringing her application, i.e., the
children were difficult, she had suffered a significant disability, and she
lacked the financial and emotional resources to bring the application earlier
than she did;

(b)          Mr. Bergstroms
conduct was blameworthy, in that he had been aware of his obligation to pay
$600.00 per month, knew that that amount had been set when his disability
income had been far lower than his post-retraining income, and knew that his
payments were to increase as his income increased;

(c)          the
children had lived in difficult financial circumstances, and had grown up in
poverty, being supported by a parent whose income was approximately $23,000.00
per year; and

(d)          a
retroactive award would cause limited hardship to Mr. Bergstrom as he had
paid $40,000.00 into trust pending the outcome of the application, being Mr. Bergstroms
share of the net proceeds from the sale of a house he owned with his current
partner.

[36]

Based on those findings, the chambers judge held
that it was appropriate to impose child support obligations on Mr. Bergstrom
as of January 1, 2000.  In so doing, he said:

[58]      In my view in light of the unique
circumstances of this case it is appropriate to make a substantial retroactive
award.  Again, the most unique circumstances of this case are we have a payer
parent who knows that he was to pay $600 a month while he was on disability;
but a payer parent who also knows by virtue of signing an agreement with an acceleration
clause that $600 is a base for support, a base based on a lower level of income
than he clearly had by the time he was actually requested to begin support
payments, which is effectively January 1, 2000.

[59]      I have
concluded that it is appropriate in these unique circumstances and in this
factual matrix between the parties to order an imposition of the Child Support
Guidelines retroactive to 1 January 2000.

[37]

The chambers judge then calculated the amount of
child support payable under the
Guidelines
on an annual basis.  In doing
so, he had regard to the periods when one or more of the children resided with Mr. Bergstrom,
and the parties respective incomes.  Although N.B. had turned 19 in 2005, the chambers
judge found that he continued to be a child for some time thereafter, due to
his inability to support himself.  The chambers judge concluded that Mr. Bergstroms
obligations to support N.B. and R.B. ended when each began to receive support
from the provincial government, respectively in October and December 2007.

[38]

The chambers judge held that D.B. remained a
child until the end of July 2008.  Although D.B. turned 19 in January 2008,
he continued to be supported by Ms. de Rooy until he finished high school
that June.  The chambers found that it was reasonable for D.B. to continue to
receive parental support for one more month, while he sought employment.

[39]

The arrears totalled $52,966.00.  The chambers
judge directed that the funds held in trust be applied against that amount and
that Mr. Bergstrom pay the balance at a rate of $750.00 per month.
The formal order entered to give effect to the chambers
judges decision states:

1.         The child support provisions
of the Order of this court made May 17, 1995, requiring [Mr. Bergstrom] to
pay to [Ms. de Rooy] support for the children of the parties, namely:

. . .

be and are hereby varied
retroactively to accord with the British Columbia Child Support Guidelines for
the period from and after January 1, 2000.

2.         The arrears of child support
payable by [Mr. Bergstrom] to [Ms. de Rooy] pursuant to the aforesaid
terms of this Order be and are hereby fixed at $52,967.00.

3.         The sum $42,195.08 presently
held in trust on conditions by the solicitors for [Mr. Bergstrom] ...,
shall be paid to [Ms. de Rooy] on account of the said arrears of
$52,967.00.

4.         [Mr. Bergstrom]
shall pay to [Ms. de Rooy] the balance of arrears, $10,771.92, by way of
payments of $750.00 per month, commencing January 1, 2009, and continuing on
the first day of each and every month thereafter until the balance of arrears
of $10,771.92 is paid in full.

Analysis

Standard of
Review

[40]

It is important to keep in mind that Mr. Bergstrom
must show that there was a material error, a serious misapprehension of the
evidence, or an error in law by the chambers judge.  As the Supreme Court of
Canada has stated, trial court decisions in family law matters are entitled to
considerable deference:
Hickey v. Hickey
, [1999] 2 S.C.R. 518 at
para. 12;
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R.
1014 at paras. 14, 15.

Variation
of the Interim Order:  Is This What Occurred?

[41]

Mr. Bergstrom submits that the separation
agreement superseded the interim order and that therefore, as a matter of
law, the chambers judge had no jurisdiction to vary that order.  His position
is that, by virtue of the separation agreement, the interim order was spent.  Although
this point was not taken before the chambers judge, Ms. de Rooy did not
object to it being raised on appeal.

[42]

Before dealing with the jurisdiction of the
chambers judge to vary the interim order, I wish to discuss whether this is a
proper characterization of what occurred.  In my view, it is not. 
Notwithstanding that the formal order speaks in terms of the interim order
being varied retroactively, what the chambers judge did, in substance, is
make a fresh and final order for child support.  No doubt, the chambers judge
improperly framed the issue before him as one involving support under either
the separation agreement, or the interim order, by reason of the relief sought
in Ms. de Rooys notice of motion, and the arguments advanced by counsel.

[43]

In is clear from
Newson v. Newson
(1998),
65 B.C.L.R. (3d) 22 (C.A.), that interim support orders are a summary mechanism
for imposing short-term solutions:  para. 11.  Such orders give the
parties time to resolve matters either by agreement or, if necessary, through
litigation.  When, after an interim order has been made, a judge determines,
following a hearing on the merits, the level of support that is appropriate, he
or she is not varying the interim order, but making a new order.  That is what,
in substance, occurred here.

[44]

Even if what occurred could be characterized as
a variation of the interim order, I would not accede to Mr. Bergstroms
argument that the order did not survive the making of the separation
agreement.  Mr. Bergstrom relies on three decisions:
Law v. Kilbride
,
[2001] O.J. No. 3270 (S.C.J.);
Sempf v. Sempf
(1984), 38 R.F.L (2d)
142 (Ont. S.C.);
Sprumont v. Turner
(1984), 41 R.F.L. (2d) 1 (Ont.
S.C.).  In
Law v. Kilbride
, a mother was found to have acted improperly
when she removed two infant children from Ontario, contrary to a shared-custody
agreement that the parents had entered into after an order had been made giving
the mother sole custody.  In
Sempf v. Sempf
, the decree
nisi
of
divorce ordered the husband to pay the wife lump sum support of $100,000.00. 
The parties later entered into an agreement whereby the wife agreed to accept
$30,000.00.  In granting the decree absolute, the Court amended the decree
nisi
to reflect the fact that the wife had agreed to accept $30,000.00.  Lastly, in
Sprumont
v. Turner
, the decree
nisi
incorporated the provisions of a
separation agreement with respect to support to be paid by the husband for his
wife and children.  The parties later amended that agreement.  When the husband
fell into arrears the wife commenced an action claiming what was owed pursuant
to the agreement.  She obtained default judgment, which the husband moved to set
aside.  In upholding the refusal of a master to set aside the default judgment,
the Court held that the action was properly founded on the agreement.

[45]

I do not find those decisions of assistance. 
They are all relatively brief, and contain little, if any, legal analysis with
regard to the point now in issue.  While they support the view that those who
enter into a post-interim-order separation agreement should be held to the
terms of their bargain, they do not bear on the question of whether the interim
order can subsequently be varied and used to govern the continuing relationship
of the parties.

[46]

In the case at bar, the interim order states
that Mr. Bergstrom is to pay child support as stipulated therein, until
further Order of this Court.  Accordingly, under the terms of that order, it
cannot be said to have been terminated by the separation agreement.  Further,
and more importantly, s. 20 of the
Family Relations Act
specifically confers on a court the power to vary or rescind a previous order. 
That section reads:

Subject to this
Act, if a court has made an order under this Act, except an order under Part 5
[Matrimonial Property] or 6 [Division of Pension Assets], the court may, on
application, vary or rescind the order if circumstances have changed since the
order was made or last varied.

This provision has been in existence from
the
Act
s inception:  S.B.C. 1972, c. 20, s. 13.

[47]

Finally, the argument advanced by Mr. Bergstrom
runs contrary to the well-established principle that, as child support is the
right of the child, it cannot be bartered away by the parents:
Richardson
v. Richardson
, [1987] 1 S.C.R. 857 at 869.

Alleged
Factual Errors

[48]

Mr. Bergstrom submits that the chambers
judge failed to consider relevant evidence, and misapprehended other evidence,
in reaching his conclusions with respect to the factual matrix used to decide
whether it was appropriate to make an award of retroactive child support.  In
particular, Mr. Bergstrom says that the chambers judge erred in finding
that: (a) there was a reasonable excuse for Ms. de Rooys delay in seeking
child support, (b) there was blameworthy conduct on his part, (c) the children
had suffered from growing up in poverty, and (d) a retroactive award would not
cause him hardship.

[49]

In my view, Mr. Bergstroms arguments, individually
and collectively, are an attempt to retry the case.  In this connection, he
points to certain statements in the affidavits, and to the absence of other
statements.  For example, he says that Ms. de Rooy does not specifically
attribute her delay to a lack of financial or emotional capacity, or that
difficulties with the children contributed to the delay.  He says there is no
evidentiary support for the finding that his children lived in poverty, and
that the trial judge ignored the fact that he did not deduct the support he did
pay on his income tax returns.

[50]

I would not give effect to those arguments.  The
chambers judge had to consider affidavits that conflicted in some respects.  On
the basis of what was before him he was required to make findings of fact, and
to draw inferences.  The findings he made and the inferences he drew are
entitled to deference.  I cannot find any palpable and overriding error in his
factual determinations:
Rick v. Brandsema
, 2009 SCC 10, [2009] 1 S.C.R.
295 at para. 30;
Struck v. Struck
, 2003 BCCA 623, 20 B.C.L.R. (4th)
242 at paras. 39, 40.

Ordering Payment Retroactive to
January 2000

[51]

The issue here, as put by Mr. Bergstrom, is
whether the chambers judge erred in law in ordering him to pay child support
retroactive to January 1, 2000.  The chambers judges decision was based on his
finding that Ms. de Rooy gave Mr. Bergstrom effective notice in
December 1999, that she was seeking child support.  Mr. Bergstrom submits
that the date of effective notice should be no earlier than October 2005, when Ms. de
Rooy filed the separation agreement in the Provincial Court.  He points out
that prior to this he was paying $200.00 per month, per child.

[52]

I do not accept this argument.  On the evidence,
it was open to the chambers judge to find that Ms. de Rooy gave effective notice
when she asked Mr. Bergstrom to begin paying the child support which,
pursuant to their informal agreement, he had stopped paying four years before. 
As Mr. Justice Bastarache stated in
D.B.S. v. S.R.G
., effective
notice is any indication by the recipient parent that child support should be
paid, or if it already is, that the current amount of child support needs to be
re-negotiated: para. 121.

[53]

Mr. Bergstrom says that because the separation
agreement is poorly worded he could not know precisely what his child support
obligations were at any given time.  While this is correct, it is clear that
the intention of the parties when the agreement was signed was that Mr. Bergstroms
child support obligations would increase as his financial circumstances improved. 
Notwithstanding the flawed escalation clause, Mr. Bergstrom must have know
that, while gainfully employed, his minimum child support obligation under the
agreement was $600.00, and that that amount was to be adjusted to reflect
changes in his income.  Indeed, under the interim order that was made with Mr. Bergstroms
consent, he agreed to pay $600.00 per month even though disability payments
were then his only source of income.  Accordingly, when the subject of child
support was raised by Ms. de Rooy in December 1999, Mr. Bergstrom was
put on notice not only that he should be supporting their children, but also
that that support should be commensurate with his ability to pay.

[54]

Mr. Bergstroms next submission is that,
even if the date of the effective notice is December 1999, the payments should
not have been retroactive more than three years prior to the date of formal
notice.  He says that formal notice was given on July 14, 2008, when Ms. de
Rooy filed her application for arrears in the Supreme Court.  On this basis,
the arrears should have been made retroactive only to July 2005.

[55]

In
D.B.S. v. S.R.G.
, Bastarache J. stated
that in general a retroactive award should not extend back more than three
years before formal notice has been given, but, could reach back to an earlier date
if the payor parent has engaged in blameworthy conduct:  paras. 123 -125. 
As indicated above, the chambers judge found that Mr. Bergstrom was guilty
of such conduct.  Having done so, the chambers judge exercised his discretion,
and ordered the payments retroactive to the date of effective notice.  I am
unable to find any error in principle in that determination.  Indeed, given Mr. Bergstroms
awareness of the difficult circumstances under which his children were living, and
his indifference to their benefiting from his improved financial position, the
date chosen was entirely reasonable.

Was it Appropriate to Use the
Guidelines
?

[56]

By virtue of s. 93(2) of the
Family
Relations Act
, a court can depart from the
Guidelines
in certain
circumstances. That provision reads:

Despite subsection (1)(a),
a court may make an order to discharge a liability under section 88 by paying
to the person designated in the order an amount that differs from the amount
the court ascertains, using the child support guidelines, if the court is
satisfied that

(a)     provisions in an order, a judgment
or a written agreement respecting the financial obligations of the parents, or
the division or transfer of their property, directly or indirectly benefit the
child, or that special provisions have otherwise been made for the benefit of
the child, and

(b)     the
application of the child support guidelines would be inequitable in the
circumstances of the provisions to which paragraph (a) refers.

[57]

Mr. Bergstrom says that requiring him to
pay in accordance with the
Guidelines
is inequitable because, under the
terms of the separation agreement he effectively gave Ms. de Rooy a 90%
interest in their family home.  This point does not appear to have been argued
before the chambers judge.

[58]

Under the terms of the separation agreement Mr. Bergstrom
transferred his interest in the family home to Ms. de Rooy, who assumed
responsibility for the mortgage.  The agreement further provided that if Ms. de
Rooy sold the property, then Mr. Bergstrom would be entitled to 10% of the
net proceeds.

[59]

The separation agreement is silent as to whether
there was any particular reason why Mr. Bergstrom agreed to give up his
interest in the family home.  Further, the evidence on this question is conflicting. 
Mr. Bergstrom deposed that he was persuaded to do this so that the
childrens lives would not be disrupted.  Ms. de Rooy, on the other hand,
deposed that the agreement with respect to the family home was predicated on
her waiving her right to spousal support.

[60]

The chambers judge did not resolve this
conflict.  After summarizing the evidence, he stated:

[27]      Both are equally possible to be
viewed as the agreement between the parties because the agreement itself does
not speak to either.  The agreement clearly shows that [Ms. de Rooy] gave
up her claim for spousal support.

[28]      That
being said, I accept the evidence of [Ms. de Rooy] that she generously
agreed to try to support the children on her own to give [Mr. Bergstrom] a
break.  The factors for her doing so were that [Mr. Bergstrom] was living
away from his traditional community and being retrained, he was incurring some
expense in that regard, but of most note, he had other children to support.

[61]

Whatever the reason for the provisions in the
separation agreement regarding the family home, it is not inequitable, in the
circumstances of this case, to base Mr. Bergstroms post-1999 child
support obligations on the
Guidelines
.  When the agreement was signed in
1995 the parties equity in the family home was approximately $120,000.00.  As
a result of their formal and informal agreements Mr. Bergstrom ended his
relationship with Ms. de Rooy with no spousal support obligation at all,
and with no financial obligation to their children for four years.  Not having
to pay child support for four years assisted Mr. Bergstrom in his efforts
to retrain, and improve his life.  More significantly, during those four years,
and thereafter, Ms. de Rooy bore a disproportionate share of supporting
their children.

[62]

I should note that I have not overlooked the tax
consequences to the parties.  Those do not, in the circumstances of this case, make
it unfair to require Mr. Bergstrom to provide support for his children in
accordance with the
Guidelines
.

Retroactive Support for Adult
Children

[63]

Mr. Bergstroms final contention is that it
was not open to the chambers judge to order retroactive support with respect to
N.B. and D.B., as both were over the age of 19 years when the order was made.  As
stated above, the chambers judge found that, although N.B. turned 19 in May
2005, he required parental support until the beginning of October 2007.  With
respect to D.B., who turned 19 in January 2008, the chambers judge found that
he required parental support until the beginning of August 2008.  Because Ms. de
Rooy filed her application on July 14, 2008, I have concluded that she had
standing to apply on behalf of D.B., but not on behalf of N.B.

[64]

In
D.B.S. v. S.R.G.
, Bastarache J. stated
that the question of whether support can be ordered for a person who is no
longer a child is a matter of statutory interpretation:  paras. 86, 87. 
In this regard, the following provisions of the
Family Relations Act
are
germane:

Part
7  Maintenance and Support Obligations

s. 87
In this Part:

child includes a person who is
19 years of age or older and, in relation to the parents of the person, is
unable, because of illness, disability or other cause, to withdraw from their
charge or to obtain the necessaries of life;

s. 88(1)            Each parent of a child
is responsible and liable for the reasonable and necessary support and
maintenance of the child.

s. 91(1)            A
person may apply for an order under this Part on his or her own behalf.

. . .

(3)   Any
person may apply for an order under this Part on behalf of a child.

[65]

In this case, Ms. de Roy brought an
application on behalf of her three children pursuant to s. 91(3). 
However, as discussed by Mr. Justice Slade in
McDonald v. McDonald
,
2008 BCSC 1203 at para. 34, s. 91(3) confers standing on a third party
to apply for support only on behalf of someone who, at the time the application
is brought, is a child as defined in s. 87.  Since N.B. was no longer a
child on July 14, 2008, Ms. de Rooy did not have standing on that day to
bring an application on his behalf.  Accordingly, it was not open to the
chambers judge to order that Mr. Bergstrom pay child support for N.B. to Ms. de
Rooy.  However, as D.B. was a child at the time the application was filed, Ms. de
Rooy did have standing to apply on his behalf.

[66]

The question of whether N.B. could himself have
applied under s. 91(1) of the
Family Relations Act
for an order requiring
Mr. Bergstrom to pay him what Slade J. described as an accrued
liability is not raised by this appeal.  Therefore, I express no opinion on it.

Conclusion

[67]

I would allow this appeal to the extent of recalculating
the retroactive child support payable by Mr. Bergstrom based only on his
obligations with respect to D.B. and R.B.  That total amount owing is to be
determined according to the
Guidelines
, having regard to the respective
annual incomes of the parties, and the periods D.B. and R.B. resided with each
one.  Mr. Bergstrom is to be given credit for the portion of the support
he paid in any year that is attributable to D.B. and R.B.

[68]

The formal order with respect to the disposition
of this appeal should indicate that the chambers judges order is varied by
substituting the total amount owing as calculated in accordance with paragraph
67 for the $52,967.00 that appears in clauses 2 and 3.  In the event the
total amount owing exceeds the funds held in trust, clause 4 of the chambers
judges order should be varied to reflect the balance of the arrears owing.  If
the funds held in trust are sufficient to satisfy the total amount owing, then
clause 4 is to be set aside.

The
Honourable Mr. Justice Frankel

I agree:

The Honourable
Mr. Justice Bauman

Reasons for Judgment of the Honourable
Mr. Justice Chiasson:

[69]

I agree with Mr. Justice Frankel, but wish to
add a few thoughts of my own on two issues: the effect of the agreement on the
courts consideration of the application and the implications of ss. 121 and
122 of the
Family Relations Act
, R.S.B.C. 1996, c. 128 (the
F.R.A.
)
.

[70]

I agree with my colleagues observation that the
judge was making a new order, not varying the interim order.  In the absence of
an order in the Provincial Court, the Supreme Court has jurisdiction to make an
order in respect of child support under the
F.R.A.
by virtue of ss. 5,
88(1) and 93
.
(See also:
Schaff v. Schaff
(1997), 30
R.F.L. (4th) 63 (B.C.C.A.);
Ekland v. Sangsari
(1996), 24 R.F.L. (4th) 119 (B.C.C.A.).)

[71]

The agreement of the parties was relevant to the
courts determination of the application, but it was not determinative.  Child
support is the right of a child and the court always must determine what is in
the childs best interests.  This is clear from
Richardson v. Richardson
,
[1987] 1 S.C.R. 857,
Willick v. Willick
,

[1994] 3 S.C.R. 670 and
from
Turpin v. Clark
, 2009 BCCA 530.  Sections 88(1) and 93(2) and (3)
of the
F.R.A.
also support this proposition.

[72]

The judge did not err in declining to adhere to
the provisions of the agreement, but it was not a matter of preferring the
provisions of the interim order.  He was determining a final order and the
agreement could not dictate its terms.

[73]

The agreement in this case was filed in the
Provincial Court and the Supreme Court.  B
ecause the issue presented to
the court below was the variation of an existing order and the relationship of
that order to the agreement, the
question arose in this Court
whether the Supreme Court had jurisdiction to vary the agreement.

[74]

Sections 121 (2), (3) and (4) and ss. 122 (1)
and (3) of the
F.R.A.
provide as follows:

121(2) If a signed copy of a written
agreement containing a provision respecting

(a)  the
custody of or access to a child by a parent, or

(b)  the
maintenance of a child by a parent or of a person by the person's spouse

is filed in the Provincial Court in
accordance with the Provincial Court (Family) Rules, the provision is
enforceable under this Act or the
Family Maintenance Enforcement Act
as
if it were contained in an order made under this Act.

(3)  Subsection (2) applies in respect
of

(a)  a written
agreement made after June 30, 1995, and

(b)  a
written agreement made before July 1, 1995, but only if a consent in
the form prescribed by the Provincial Court (Family) Rules is filed with the
agreement.

(4)  A provision that is referred to in
subsection (2) and is contained in a written agreement filed under this section
may, at any time, be varied or rescinded

(a)  by a new
written agreement filed in the Provincial Court in accordance with the
Provincial Court (Family) Rules, or

(b)  by the
Provincial Court, on application and subject to sections 20 and 96.



122(1)  If a signed copy of a written
agreement containing a provision respecting

(a) the custody of
or access to a child by a parent, or

(b) the
maintenance of a child by a parent or of a person by the person's spouse

is filed in the
Supreme Court in accordance with the Rules of Court, the provision is
enforceable under this Act or the
Family Maintenance Enforcement Act
as
if it were contained in an order made under this Act.



(3)  The
filing of a written agreement under this section does not prevent the agreement
from being filed, enforced, varied or rescinded in the Provincial Court under
section 121.

[75]

In
K. v. K.
, 2009 BCSC 69, Garson J., as
she then was, reviewed authorities that appear to be divided on the question of
whether the Supreme Court has the jurisdiction to vary a separation agreement. 
She stated in para. 28:

In my view, s.
122 is not a procedural bar to an application under s. 89 and s. 90 on an
originating application for spousal support.  I do not read s. 122 as
depriving this Court of jurisdiction to entertain such an application because
the agreement was filed under that section.  To conclude that only the
Provincial Court can hear an originating application for spousal support where
an agreement has been filed in the Supreme Court seems illogical given that the
Supreme Court and the Provincial Court have concurrent jurisdiction.

[76]

I agree with her observation that filing a
separation agreement in the Supreme Court does not deprive the court of
jurisdiction to entertain a support application it otherwise would have, but
leave for another day the question whether the Supreme Court has the
jurisdiction to vary a separation agreement, observing that on the plain
language of s. 122, the Supreme Court does not appear to have such
jurisdiction.  The provisions of the agreement are not made a court order.  The
Legislature has given the court only the authority to enforce provisions as if
they were contained in an order.  Variation of provisions in such an agreement
is granted to the Provincial Court if it is filed in that court.  While this
could be considered an anomaly or gap in the legislation, viewed as a matter of
policy, it appears the Legislature intended that the Provincial Court, to which
often there is more regular and direct access, is to deal with parties who wish
to vary their agreement.

[77]

In this case, because the court was not dealing
with a variation but was considering a final order for child support at first
instance, the implications of filing the agreement in the Provincial Court did
not affect the jurisdiction of the Supreme Court.

The Honourable Mr.
Justice Chiasson


