CPU v. LCW

FCMC 13107 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13107 OF 2008

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__________________

J U D G M E N T

(Variation of Maintenance)

__________________

The Background

1.  This is the latest battle in which the respondent father fights for the downward adjustment of a maintenance order granted in favour of the 3 children of the family.

2.  I have now been living with this case for nearly 2 years.  The last battle was on the mother’s application for relocation of the 2 younger children of the family.  After a 2-day trial, I granted leave on 2 October, 2013 for her to remove the children from Hong Kong to Ontario, Canada for the purpose of immigration.  At the same time, I devised an access plan for the parties.  In brief, the plan is for the father to have access to the children on an annual basis, the first to be held in Canada and then followed by one in Hong Kong.

3.  As I have set out the background to these matrimonial proceedings and the particulars of the parties in my judgment dated 2 October, 2013 (“the Relocation Judgment”) on the relocation issue, I am not going to repeat the same here.  Reference to the relevant parts of the Relocation Judgment can be made where necessary.   For convenience, I continue to refer the mother as P, the father as R and the 3 boys as E, V and A respectively.

4.  R now seeks to vary the maintenance order made by Deputy District Judge Woodcock (as she then was) on 8 November, 2011 (“the 2011 Maintenance Order).  That was given after a 6-day trial and was in itself a variation of a previous order dated 9 February, 2009 made by HH Judge Chu (as she then was) (“the 2009 Maintenance Order”).  I will refer to the relevant parts of Deputy District Judge Woodcock’s Judgment (“the 2011 Judgment”) where appropriate.

5.  In brief, by the 2011 Maintenance Order, R was to pay the following monthly periodical payments,

1.	$5,700 to P;
2.	$2,800 to E (the 1st child);
3.	$5,600 to V (the 2nd child); and
4.	$5,600 to A (the 3rd child)

6.  All the above orders, totalling $19,700 per month, are subject to usual terms, namely as for P, the maintenance is payable during the joint lives of the parties or until her remarriage, whichever is the shorter.   As for the children, they are subject to the usual term that the maintenance is to last until the age of 18 years or cessation of full time education, which is the latter.

7.  R admitted that notwithstanding the 2011 Maintenance Order, all along he has been paying $8,000 only, with the explicit intention that he agrees to maintain V and A only but never agrees to maintain P and E.

8.  Now with the remarriage of P on 28 February, 2013, his legal obligation as regards P has ceased but his obligation as regards the 3 children are still subsisting for the reason that although E has attained the age of majority, he is still receiving full time education and V and A are still under the age of 18.  Hence, the total amount still in force is $14,000.

The Application

9.  R’s present application was taken out at about the same time as P’s application for relocation; priority was given to deal with P’s application first.  Further, it is obvious that his application was prompted by P’s judgment summons for the arrears of maintenance.  The judgment summons has been adjourned to a date to be fixed after the determination of R’s application for variation.

10.  Notwithstanding that R has 3 items in his application, it is clear that the bone of his contention, being the first item, is to reduce the total monthly maintenance to what he has been paying according to his own decision, ie not more than $8,000.  He argued that he has no obligation towards P and E; and as for V and A, $4,000 for each of them, thus totalling $8,000, should be more than sufficient.

11.  As for the second and the third items, I just need to dispose of them briefly.   

12.  The second item is that R asks that in the event of sale of the property on MacDonald Road (“the Property”), P or any person nominated by her should never be the trustee of the 30% share for V and A.  This is in relation to R’s quarter-share in the estate of his late father which is essentially an apartment on MacDonald Road and by the 2011 Maintenance Order, V and A were given 30% of R’s share of and in the estate.  In my view, either the application is misconceived or it is unnecessary.  First, the order is read as follows, “30% of the Respondent’s beneficial interest in the property known as (address), if any, be held on trust for the 2 children (V) and (A) equally”.  Hence, it appears to me that a trust was imposed by virtue of the order and R was made the trustee.  Secondly, it is undisputed that no step has ever been taken for the obtaining of the Probate on the will of the grand-father. Even if R is not the trustee, it is definitely premature now to deal with the question of who is going to be the trustee for the children.

13.  In his third item R asks that P should be responsible for her own financial matters since she has already remarried.  It is again a misconception since the 2011 Maintenance Order, in so far as it relates to P, clearly does not extend beyond P’s remarriage.

14.  Hence, what is left is the issue of downward adjustment of the monthly maintenance in favour of the children.

15.  On the day of trial, P informed the court that she and the children were about to leave for Canada at the end of December, 2013.  The trial that was fixed for one day was unfortunately part-heard and had to be adjourned.  P indicated that in all likelihood she would be absent in the adjourned hearing; that actually turned out to be the case.  Leave was therefore granted for P to obtain the recording of the trial and to submit her closing submissions, which she did on 3 June, 2014.

The Legal Principles  

16.  The Court’s power to grant an order for variation is governed by s11(1) and (7) of the Matrimonial Proceedings and Property Ordinance, Cap.192 (the “MPPO”) which provides as follows: 

“11. Variation, discharge, etc. of orders for financial provisions
    
(1) Where the court has made an order to which this section applies, then, subject to the provisions of this section, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.

 ….
(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates and, where the party against whom that order was made has died, the changed circumstances resulting from his or her death.” (emphasis added)

17.  Therefore, the court, in considering such an application for variation, has to consider all the circumstances of the case and in particular, any changes in the matters to which regard has been made in reaching the original order.

18.  In the case of AEM v. VFM [2008] 3 HKLRD 36, [2008] HKFLR 106, Cheung JA explained the modern approach in dealing with such an application at paras 14.4-8 of the Judgment:

“4. The modern approach, as required by section 11(7), is for the Court to consider all the circumstances of the cases.  The Court is not required to proceed from the starting point of the original order but look at the matter afresh:  Flavell v. Flavell [1997] 1 FLR 353 at 357B following Lewis v. Lewis [1977] 1 WLR 409 and Garner v. Garner [1992] 1 FLR 573.

5. Any change in any of the matters to which the Court was required to consider when making the original order was one of the circumstances to be considered.

6. Almost invariably, an application to vary an earlier periodical payment order will be brought on the basis that there has been some changes in the circumstances since the original order was made, for example, continuing inflation; the increased costs in supporting a growing child and that one party may be more adversely affected than another by the increase in the costs of living: Garner v. Garner.

7. An increase in the wealth of the husband was a relevant factor to be taken into account: Primavera v. Primavera [1991] 1 FLR and Cornick v. Cornick (No. 2) [1995] 2 FLR 490.

8. At the same time the basis and intended effect of the original order are relevant factors to which the Court on variation should pay regard and there should not be a radical departure from the approach taken by the parties themselves when they had entered into an agreement embodied in a consent order: Boylan v. Boylan[1988] FLR 282.”

19.  As to the weight to be attached to the original order, Tang VP (as he then was) said in HCTT v. TYYC [2008] 5 HKC 86 at paras 15-16,

15. But as Garner v. Garner [1992] FLR 573 shows that does not mean that the earlier order, whether made by consent or not, carries no weight.  How much weight should be given to the earlier order must depend on the circumstances.  Cazalet J said in the English Court of Appeal:
“Almost invariably, an application to vary an earlier periodical payment order will be brought on the basis that there has been some change in the circumstances since the original order was made; otherwise, except in exceptional circumstances, the  application will, in effect, be an appeal.  If an order is not appealed against, or is made by consent, then the presumption must be that the order was correct when made.  If it was correct when made, then there will usually be no justification for varying it unless there has been a material change in the circumstances.  However, because of the impact of continuing inflation, because children grow older and cost more to support and because, for example, the cost of living in its increase may hit one party harder than another, it will usually follow that, if time has passed, there will inevitably have been changes in the circumstances, of the parties concerned.
  Following Lewis v. Lewis, by which decision this court is bound, a court on the hearing of an application to vary is fully entitled to look at all the relevant matters set out in s. 25 of the Matrimonial Causes Act 1973.  On occasions, the court may be slow to accede to an application to vary a consent order; not least because the parties’ solicitors might otherwise be deterred from either seeking to negotiate such a provision or to achieve finality.  Another factor which may influence a court will be the time that has passed since the original order was made.  If an application consequent on an order is brought very soon after that order has been made, the court, in normal circumstances, is likely to attach more weight to the earlier order than if it had been made some years previously.  Likewise, the court would expect to pay full regard to any special terms agreed between the parties at the time the original order was made - as, for example, when endorsements on briefs or contemporaneous correspondence show that an agreed order has, for some particular reason, been set at an artificially low figure.  Shortly stated, the court must decide what weight it should attach to the original order and all the surrounding circumstances.  However, once an application to vary is before it, the court is fully entitled to make an order considering all the circumstances afresh, paying such regard to the older order as may be appropriate.”

16. Thus, although the jurisdiction to vary is untrammelled, normally the earlier order would not be varied unless there has been a material change in the circumstances.”(emphasis added)

20.  I am guided by the above principles when I consider R’s application.

The Matters to be Determined

21.  In my view, the following matters need to be investigated:

1.	The financial resources and needs of R;
2.	The financial resources of P; and
3.	The needs of the children.

22.  Above apart, I also need to deal with the issue of whether or not R should continue to be required to support E.

R’s Financial Resources

R’s Case

23.  As said, H’s major bone of contention is to reduce the monthly maintenance to not more than $8,000.  He argued that E is not his son and therefore he has no obligation towards him.  As for V and A, $4,000 for each of them, thus totalling $8,000 per month, should be more than sufficient for their maintenance in Canada.  In trial, he made himself clear that no matter what he would still give $8,000 per month.  I take it to mean that regardless of the outcome of his application, he would continue to have his own way.

24.  R maintained that the court erred in making the 2011 Maintenance Order and in particular, the court was wrong in holding that he obtained all the rental incomes of the Property or he was in a position to manipulate the rentals.  As a matter of fact, since 2008 and up to now he has been in difficult financial position.  He has been jobless since 2001.  The sole source of his income for the last 10 years or so is the rental receipts but they are for the support of several families, namely, R, V and A, his mother and his 2 elder sisters’ families.

25.  R said the condition of the Property was poor and so it took a longer time for hime to have it rented out.  As a result, the Property was left vacant from time to time over the past 5 to 7 years, the longest being about 9 months and the shortest about 6 months.  He added that he changed to pay $8,000 per month only in about 2009 when the Property was left vacant for 9 months.  That was the situation and was also his evidence at the time of trial of the 2011 Maintenance Order.  Also, same as the situation back in 2011, up to now he still has no money to retain solicitors to apply for the probate of the grand-father’s will.

26.  In order to make the Property more appealing to potential tenants, R spent about $100,000 in 2013 on the internal renovation of the Property.  To enable him to do so, he had to loan $75,000 from the Hang Seng Bank on 29 December, 2012.

27.  Further, besides the monthly management fees, the Property is liable to the payment of contribution to the renovation costs of the common areas levied by the Owners Incorporation, Property Tax and Rates.  The Property is now currently rented out for $52,000 per month but the tenant recently informed him that he might move out this summer.   He insisted that the monthly rentals are for several families; depending on his needs, he could have $10,000 to $20,000 odd every month out of the rentals received.

Discussion

28.  It is undisputed that the Property was in the past left vacant from time to time.  Back in 2009, there was a tenancy agreement dated 25 September, 2009 by which the Property was let for $39,000 from 1 October, 2009 to 30 September, 2009; and I understand that the tenant moved out prematurely.  After that the Property was rendered vacant for 9 months. 

29.  Then the Property was rented out to another tenant from about July, 2010 to August, 2012 for a monthly rental of $47,000; that was the time when the 2011 Judgment was made.  Upon the expiry of the term, the Property was left vacant for about 8 months and was then let out to the existing tenant for $52,000 from 27 May, 2013 to 26 May, 2015, as can be seen from the tenancy agreement dated 24 April, 2013 (Exhibit “R-3”).  The fragmentary quotation and receipts produced by R on the 2^nd day of trial (Exhibit “R-7”) show that R did engage a contractor in 2013 for the renovation of the internal of the Property.  I accept that R incurred about $100,000 for this purpose so as to make the Property more appealing to potential tenants.  I believe that with this new renovation it should now be much easier for R to find a new tenant even if the existing tenant really has to go this summer. The transitional period during which the Property would be left vacant should be much shorter than before.  Taking the transitional period into consideration, I consider it is safe to assume that the Property should be able to fetch $45,000 to $50,000 per month.

30.  The next question is how much R is getting for himself out of the rental of $52,000. 

31.  R’s evidence is that in the past 3 years, the rentals would be paid into the eldest sister’s account here in Hong Kong notwithstanding that she has long made her home in Ottawa, Canada.  Whilst R said that his eldest sister could deal with the monies through internet banking back in Canada, he admitted that the eldest sister left the bank card with him and with this he has been able to withdraw monies and operate the account.  He has also been able to operate the account on the internet and to have the bank statements printed out.  The eldest sister is divorced and a single mother with 3 children.  Two are already in university and one of them is studying in the United Kingdom.  The youngest one is in the secondary school.  She is now working as a part-time accountant.  His another elder sister is also married and the family is living in Hong Kong but her two children have also left for Canada for education.  This sister is a bankrupt and is therefore in need of financial assistance.

32.  R said apart from him, V and A and the grand-mother, the rental incomes are also for the support of all these other family members. Despite the fact that according to the will, each of the grand-mother, R, the eldest sister and the elder sister is given 25% of the interest in the estate of the deceased grand-father, there is actually no fixed share amongst the members when it comes to the division of the rentals; it all depends on the needs of each and every member and this also applies to him.  He said he get roughly $10,000 to $20,000 odd per month.  He does not have the habit of calculating how much he actually took in the past but normally it would be in the region of $10,000 but he would take more if there are urgent needs.

33.  R initially testified that the eldest sister has taken most of the rentals but when he was being cross-examined by P as to whether the eldest sister, being a Canadian citizen, has paid tax to the Canadian authorities on this income, he retracted to say that most of the rentals were used for payment of debts.

34.  At the conclusion of the 1^st day of trial, I ordered R to produce the statements of the eldest sister’s bank account that receives the rental incomes.  As a result, the statements from June, 2013 to December, 2013 were produced.

35.  An examination of these statements in light of R’s own bank statements show that the rentals were either withdrawn by R by ATM or transferred to his account; and the $8,000 maintenance was transferred directly from the eldest sister’s account to P’s account. 

36.  It seems to me clear that he has been operating the account as his own.  For instance, he paid his own traffic penalty $1,080 on 23 July, 2013 and the monthly car washing fee $200 each month from the account. Another example is that for the period from 8 June, 2013 to 7 July, 2013, he withdrew cash of $10,000 and transferred $5,000 into his account in addition to the payment of $8,000 maintenance directly from the account.

37.  The following are further examples.

38.  For the period from 8 July, 2013 to 7 August, 2013, he withdrew a total of $37,000 and deposited a total of $17,500 into his own account, this did not include $8,000 maintenance, $200 car washing fee and $1,080 traffic penalty.

39.  From 8 August, 2013 to 6 September, 2013, R transferred a total of $19,000 to his account and withdrew $13,000 by ATM in addition to $8,000 maintenance and $200 car washing fee.

40.  The similar pattern occurred for the period from 7 September, 2013 to 7 October, 2013 where R withdrew $20,000 and transferred $34,800 on the top of the maintenance and the car washing fee.  From 8 October, 2013 to 7 November, 2013, the figures were $22,300 and $20,000 for transfers and withdrawals respectively.  Finally, the transfers were $28,800 and the withdrawals were $17,000 for the period from 8 November, 2013 to 7 December, 2013.  All these were exclusive of the maintenance and the car washing fee.

41.  In my view, there is simply a dearth of documentary evidence in support of R’s contention that part of the rentals were for the benefit of other members of the extended family.  R suggested that he made use of his credit card to send money to Canada by Pay Pal but there is no evidence in this regard and R has not been able to refer to a single transaction on the statements in support of his contention.  R produced some Application for Remittance by way of an affirmation on the 2^nd day of trial but these documents certainly do not support his contention of Pay Pal transfers since these are the documents of a Money Changer and they say that cashes were received for remittances.  The Remitter or the Applicant was stated to be the husband of the elder sister and R said that the funds were for the use of the elder sister’s children in Canada.  Whilst these Applications for Remittance may very well prove that the elder sister needed to remit money to Canada, they are certainly not evidence that the sisters have obtained the rentals for their use nor are they evidence of transfer of the rentals to the sisters whether in Hong Kong or in Canada.

42.  For the reasons aforesaid, I am able to come to the conclusion that R did have the full use of and the control of the rental incomes.  This is the same conclusion reached by Deputy District Judge Woodcock (as she then was) back in 2011.

43.  One may wonder why the rental incomes have to be deposited into the eldest sister’s account.  After all she is far away from Hong Kong and it is glaringly clear that all along it has been R who has the management and control of all the matters relating to the Property.  I believe the reason for doing this is to keep the money away from the reach of P who previously successfully obtained a Garnishee Order Absolute on 4 July, 2012 in respect of R’s Hang Seng Bank Account for the maintenance in arrears.  I have no doubt that the measure is to avoid this to happen again.  Since the elder sister is unfortunately a bankrupt, R has no choice but to make use of the eldest sister’s account.

R’s Earning Capacity

44.  R has been jobless since 2001 and his business of designing and making chopsticks also ceased in 2006.  Thus, he claimed to be economically inactive, at least since 2006.  He maintained that he always hopes to get a job but his prime concern is not on the money side but to take care of his mother.  The grand-mother is 79 years old and her health is getting worse since the last hearing on relocation in September, 2013.  R said he has to accompany her to see the government psychiatrist every 3 months for her elderly cognitive disorder and also on average once every 2 weeks for other medical conditions. She is going to the market less frequently now.  The elder sister, the one living in Hong Kong, has her own business and is only able to come to visit the mother about once every 2 weeks.

45.  In my view, what R said about his mother is more of a self-serving statement than anything.  At the time of the trial on the relocation issue in September last year, his mother was diagnosed to have suffered from nascent elderly cognitive disorder and R claimed that her condition had been stabilised and that she was even able to manage the household chores and prepare meals for the children.  It has to be recalled he refused home visit by the social welfare officer when investigating into the relocation matter last year and hence, no objective evidence regarding his mother’s condition was available.  Now what we have is the same as before, his testimony is unsupported by any medical evidence or even evidence of some substance.  I fail to see why he cannot enlist the assistance of his elder sister or some social welfare agencies so as to allow him to engage in some gainful employment, a remark that I have already made in the Relocation Judgment.  On this, I share what Deputy District Judge Woodcock commented in para 44 of the 2011 Judgment:  I cannot imagine what he does with his time day in and day out.

46.  I find that R has not utilized his earning capacity at all.  He is physically fit and educated.  He should be able to earn some income by engaging in some driving or clerical jobs earning say $8,000 to $10,000 per month.

R’s Financial Needs

47.  I now turn to the expenditure.

Payments payable to the Management Company

48.  R said there is still an outstanding contribution to the renovation of the common parts of the building where the Property is situated.  He produced a debit note dated 17 September, 2013 issued by the management company showing that the share of contribution is $65,000.  He has been paying this by instalments.  It appears that he was paying $13,033 per month, as can be seen from his bank statements for the months of October and November, 2013. However, the receipt issued by the management company on 21 February, 2014 shows that the outstanding sum has reduced to $10,835 and apparently there is no outstanding management fee that is currently set at $2,200 per month (see Exhibit “R-9”).  With these materials, I am quite sure that the outstanding contribution could be paid off pretty soon; and hence, the picture is not as doomed as R would like to have painted it.  R cautioned that a further contribution would be resolved to be payable for the renovation of the external walls soon in which time he would have to make further payment.  In my view, be that as it may, even if there is some new contribution resolved to be payable, the track record shows that R has been able to arrange to have the contribution paid by instalments that are within his affordability.

49.  According to R, there is in fact a further sum of about $200,000 outstanding management fees and renovation contribution but the same were reluctantly paid by his former tenant in order to avoid disturbance from the management company.  With the agreement from the tenant, he is now repaying about $1,000 to $2,000 per month.  His own bank statements and the repayment record that he maintains with the former tenant show this is the case and I accept that.

Property Tax and Rates

50.  The Demands for Property Tax show that the tax liability is well over $100,000 but R has obtained an agreement from the Inland Revenue for him to pay a monthly instalment of $571 each (see Exhibits “R-5” and “R-6”).  He however added that the Inland Revenue is reviewing the situation and so the future arrangement remains uncertain.  As for the Rates, there appears to have an outstanding sum of about 225,000 (see Exhibit “R-4” and R’s Affirmation dated 10 May, 2013) but again, he managed to come to an oral agreement with the authorities concerned to pay a symbolic amount of $200 per month.  He has no idea when full payment could be made.  He accepts that the property tax and the rates should be the responsibility of the whole extended family but he said it is not possible for each family to contribute the small sum of money.

51.  Therefore, on the evidence of R, the Property is now currently subject to the following recurring expenses:

1.	Management fee	$2,200
2.	Repayment to former tenant	$2,000
3.	Property Tax	$571
4.	Rates	$200
	Total:	$4,971

52.  There is of course still a sum of $10,835 contribution to renovation remains outstanding but I believe it will soon be repaid.  Further, even if the Inland Revenue and the Rating and Valuation give a review on the situation as alleged by R, I believe it is more likely than not that they would as before allow R to repay by instalments.

53.  R said for the reason that the Property was not able to generate income when being left vacant in the past, he had to take out some bank loans for his living and for the renovation of the Property.  The bank statements/letters show he took out a loan of $50,000 on 21 October, 2012 and a further loan of $75,000 on 29 December, 2012, both are from the Hang Seng Bank and payable in 36 months.  The monthly payments are about $4,000 odd. There is a third loan for $36,000 on 26 March, 2013 from the Citibank that is repayable by 24 monthly instalments of about $1,637 each.  Hence, the total repayments are about $5,637 per month.  He also alleged that he owes his friends loans in the region of $300,000.  There is no documentary proof and he is not repaying any exact amount.  How much he pays is all a matter of his affordability.

54.  R’s Form E dated 19 June, 2013 stated his monthly expenditure at about $21,080; this does not include the repayment of loans but already include the $8,000 maintenance to the children and the general expenses that he incurs together with the mother.  His mother is in receipt of CSSA and, therefore the figures for utilities, food and household expenses should be reduced by half which comes down to  2,775.  If the loan repayments are included but the $8,000 maintenance is excluded, his total monthly expenditure should be less than $16,000 ($21,080 - $8,000 (maintenance) - $2,775 (the mother’s share) + $5,637 (loan repayments) = $15,942).  I round it up to $16,000.

55.  Thus, together with the recurring expenses of the Property, his total monthly expenditure should be in the region of $20,971, exclusive of the maintenance to the children ($16,000 + $4,971).  I round it up to $21,000.  With this conclusion, it means that he has around $24,000 to $29,000 left for his disposal and for setting aside part of it for the rainy days.

56.  Finally, before I leave this part I need to mention that despite his alleged dire financial situation, R all along has been keeping a car and thereby, according to his Form E, incurring $2,600 per month.  It is of note that his bank statements show he is paying a car washing fee of $200 per month.  He is jobless.  I would have thought that his money could have been better spent in some other ways by having the car washed by himself.  The children have left for Canada and therefore the main purpose of having the car is gone.  R said that he now uses the car for taking the mother for medical appointments and this is the only purpose.  At the end, he admitted that after all this is his own choice of keeping the car.  This is telling. Despite his alleged dire financial situation, he still has the luxury of keeping a car and affords to have it washed regularly by someone else.

P’s Financial Resources

57.  P, having the responsibility of taking care of the 3 children, was not working while in Hong Kong.  There is nothing to suggest that she will be economically active after having settled down in Canada.  In any event, this is not R’s case.

The Children’s Needs  

58.  At the time of the commencement of the trial the children were still in Hong Kong and the parties had not provided the estimates of their likely expenses in Canada.  On the 1^st day of trial both parties agreed that the application was to proceed on the basis of the materials before me.  Further, on the part of R, he believed that the basic expenses for the children in Canada should be more or less as those in Hong Kong but the welfare benefits should be better there.  It was on this footing that he said $4,000 per month for each of V and A should be more than sufficient.   On the 2^nd day of trial, he produced a news extract dated 22 August, 2013 that he downloaded from the internet to say that according to a research the minimum cost for raising a child in Canada is about CAD4,500 per year (about $32,130 at an exchange rate of 1:7.14) which is much lower than the prevailing estimates between CAD10,000 to CAD15,000 per year.  The extract says the research looks at the cost of a child as a marginal cost and excludes any prior costs that a parent would already have to pay for, such as housing.

59.  P has given a lengthy reply in her closing submissions, arguing that the news extract should not be relied upon.  While I find her submissions are of some substance I do not think I need to go into their details here.  To me, great caution must be exercised when considering whether or not a piece of information found on the internet should be accepted and how much weight should be given to it.  It is evident that the research as reported is clearly in stark difference from the prevailing estimates and without knowing how this research was done and hence, its reliability and correctness are yet to be established, I decline to accept the figure.

60.  R further raised the point that the children should be entitled to some Canada Child Tax Benefits after P having acquired the status of a landed immigrant.  I take the view that since at the moment and even in the near future whether or not they would be so entitled and when they would be so entitled and if yes, what would be the amount remain uncertain, I decline to include these benefits into consideration.

61.  P rightly points out that the children’s travel expenses for the purpose of access must now be considered.  I agree.  P accepts that she has not applied for an upward adjustment of the maintenance to cater for the travel expenses and so she asks for the maintenance to remain unchanged.  To me, her stance is fair and reasonable.

62.  Out of her own initiation, for the reason that R has to cover part of the access related costs according to the access order, P agrees that the amount of maintenance may be lowered by a total of $1,000 per month to be backdated to January, 2014, the time when the children left Hong Kong.  She however leaves it to the decision of the court as to whether or not this adjustment is warranted.  Again, P impresses me as a reasonable person with good sense.  

63.  I have given careful thought on this matter.  I decide not to make a downward adjustment for the reason that according to my conclusion R should have the means to support these costs.  Further, all along R has been adamant that he has no plan to visit the children.

Is there any Change in the Circumstances?

64.  R stressed that his existing situation was the same as before when the 2011 Maintenance Order was made.  His case is that it was wrong for the court to make the previous orders.  The grand-father’s estate remains unchanged.  No steps whatsoever have been taken to obtain a probate on the will.  Thus, even on R’s own case there is no change in the circumstances since the last variation.

The Conclusion

65.  With the conclusion that there is no change in the circumstances, that R has the financial resources, that R has the earning capacity and that the basic expenses for the children in Canada are more or less the same as those in Hong Kong, I do not see any valid reason for a downward adjustment of the maintenance as prayed for by R. 

66.  One final point before I leave this part:  as said, the 2011 Maintenance Order was an upward adjustment of the 2009 Maintenance Order.  I do not think I need to refer to the figures ordered there.  However, there is one paragraph that I need to refer to and that is paragraph 6 where it is provided that the monthly periodical payments for P and the children are to be adjusted for inflation annually on 1^st April, according to the latest available figure on the average 12 months Consumer Price Index (CPI) published by the Census and Statistics Department.  The first adjustment was to be made on 1^st April, 2010.

67.  There is some ambiguity over whether or not this provision continued to have effect after the 2011 Maintenance Order.   Neither the formal Order nor the 2011 Judgment mentioned this.  Be that as it may, there is nothing to prevent me from revisiting this mechanism.

68.  It is probably because of this provision that P now seeks to have the maintenance to be adjusted annually based on the inflation rate in Canada. 

69.  As I read the 2011 Judgment, it would appear to me that the adjustment mechanism was not intended to be continued.   Be that as it may, now with the children having moved out of Hong Kong, it is obvious that the Hong Kong CPI is not appropriate anymore.  Nor do I think the Canadian CPI should be used now as far as this application is concerned for the reason that this point and in particular which CPI is to be used was not argued before me.

R’s Obligation to Maintain E

70.  As said, P appeared on the first day of the trial.  According to her, E is still yet to complete his diploma in digital engineering in 2 ½ years time and is in receipt of CSSA in the sum of about $4,000.  She takes a somewhat neutral stance as regards R’s application by leaving it to the decision of the court.

71.  R is adamant that since E is not his son he should not be responsible for him.  As a matter of fact, I gather that he has never paid a single cent for E’s maintenance.

72.  The objective fact is that from their pre-marriage cohabitation in 2002 up to the time when P moved out in 2006, the relationship in reality lasted for about 4 years only.  It is true that E was treated as a child of the family at the relevant time but there is now a lapse of about 8 years since the relationship ended.  I think it is also undisputed that E has been receiving some maintenance from his natural father who is residing in the Mainland.  On this analysis, I accept that R has a ground to ask for an end to his responsibility.  In my view, fairness requires that R is to be extricated from his obligation to pay the monthly maintenance to E as from July, 2013, the month following his present application.

Orders

73.  For the reasons aforesaid, I give the following orders.

1.	The respondent’s application for variation of maintenance to V and A be dismissed;
2.	The order of 8 November, 2011 for periodical payments payable by the respondent for E, a child of the family, as maintenance be discharged as from 1 July, 2013; and
3.	Paragraphs 2 and 3 of the respondent’s summons dated 19 June, 2013 be dismissed.

Costs

74.  Apart from the maintenance of E on which P takes a neutral stance, R essentially loses his case.  Justice requires that R is to pay P the costs of this application, including all costs reserved, to be taxed if not agreed.

The Petitioner’s Judgment Summons

75.  As P is now outside Hong Kong, she may wish to have the judgement summons to be restored to a date convenient to her.  I give a direction that P may apply for a hearing date in writing for her judgment summons.  

Representation