C.M. v. W.M. Date:, 2011 BCPC 359

Citation: C.M. v. W.M. Date: 20111213 2011 BCPC 0359 File No: F7858 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: C.M. APPLICANT AND: W.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Applicant: J. Werb Counsel for the Respondent: F. C. Lowther Place of Hearing: North Vancouver , B.C. Date of Hearing: November 10, 2011 Date of Judgment: December 13, 2011 [ 1 ] The parties, C.M. and W.M., are the parents of C.P.M., born [DOB].

They were married in February 1997 and separated in September 2009. [ 2 ] On January 5, 2011, they entered a consent order at a Family Case Conference before Judge Challenger. The parties were not represented by counsel at that time. The Order gave the parties joint custody and guardianship of C.P.M. His primary residence was to be with C.M., and W.M. had specified access. [ 3 ] C.M., now represented by counsel, has filed two Notices of Motion.

In the first, filed June 14, 2011, she seeks interim child support, spousal support and extraordinary expenses; seven days notice of cancellation of W.M.’s access, and the right to cancel access if W.M. is not able to directly care for C.P.M. for more than three hours during a visit. In the second, filed September 19, 2011, she seeks to suspend W.M.’s weekday access on an interim basis, in light of his recent move to Squamish. On the same day, she filed an Application to vary the January order. [ 4 ] In his Reply to the Application, filed October 11, 2011, W.M. opposes any interim change to the access

schedule on the basis that the Consent Order made on January 5, 2011, is a final order. He also seeks: changes in the terminology of the Order to remove the designations of primary residence and access in favour of parenting time; an alternating week parenting schedule; and orders that the parties meet with a family justice counselor and have a case conference. [ 5 ] C.M. also filed an Application on June 13, 2011, seeking to cancel an earlier November 16, 2010 order requiring the parties’ written consent to trips outside the province.

In his Reply to this Application, filed October 11, 2011, W.M. suggests that the order be amended to provide that the parties may travel with C.P.M. to Washington State but not elsewhere outside British Columbia without

written consent of the other parent. Course of Proceedings [ 6 ] The parties and their counsel appeared before me on November 10, 2011, in the afternoon, scheduled for a hearing on the Notices of Motion. The matter had been moved during the lunch break from another courtroom.

By that time the file had accumulated several inches’ worth of materials, including five affidavits for C.M. and four for W.M., Financial Statements for each, Divorce Mate calculations and a book of authorities, all filed in relation to the interim hearing. [ 7 ] Unfortunately it is not the practice at this level of court to assign matters such as these to a Judge, ahead of the hearing date. The Judge’s access to the file generally occurs at best the day before the hearing. In this case, that did not occur, because the file was moved between courtrooms at the lunch break.

To exacerbate matters, the parties had already been before another Judge on September 29 and had been adjourned for lack of court time. [ 8 ] The first subject of [considerable] discussion between counsel, on the hearing date, was which of the applications and notices of motion were actually set for hearing. The September hearing date had been set for the first set of motions, but not for those filed in September. Counsel differed as to whether the hearing pertained to the issue of interim maintenance or also to the access schedule. [ 9 ] The next topic of dispute was how the hearing would proceed.

I made the perhaps injudicious point that if it were going to proceed on the affidavit evidence already filed, it would take me the rest of the afternoon to stand down and read it. I invited the parties to call their clients to give viva voce evidence, but they resisted that suggestion. [ 10 ] I do not want my reluctance to proceed on affidavits to be misinterpreted. It is not just a matter of personal preference. This Court is not equipped to deal with voluminous affidavit materials on interim applications.

The kind of affidavit contemplated by the Family Relations Act and Provincial Court (Family) Rules , is confined to one affidavit accompanying the Notice of Motion, in the prescribed form [Form 17]. [ 11 ] There is nothing in the Rules that contemplates or even permits the kind of prolix cross-affidavits that were filed in this case, or others like it. Indeed, Rule 13(3) reads as follows:

(3) Subject to the requirements of sub rule (4), evidence may be given by affidavit at a trial or hearing only if permission is granted by a judge , either on application brought by notice of motion under rule 12 or under rule 8 (4) (g). [Emphasis added.] [ 12 ] No such application to proceed by affidavit was filed in this matter.

With all due respect to counsel who practice in the higher courts, where affidavit evidence on chambers applications is mandated by the rules, it is my view that interim hearings in this Court must proceed on viva voce evidence, unless otherwise ordered. [ 13 ] There are several good reasons for this.

Firstly, for Judges of this Court to find the time to pore through reams of allegations and counter-allegations, hear enough cross-examination to make a reasonable assessment of credibility, and render a considered decision, will often take far more time, in the long run, than having the parties simply attend court and present their evidence. The interim hearing process is meant to be a

summary one. Hearings should proceed in a fashion that permits a

summary decision after a brief hearing. [ 14 ] Secondly, the way in which hearings are scheduled in this Court is not conducive to Judges having the time for advance preparation; and the way in which this Court is currently resourced is not conducive to Judges’ finding the time outside of court to read voluminous materials and render reserved decisions on

summary matters. [ 15 ] Thirdly, in my view, preparing and filing these kinds of accusatory and retaliatory materials sets the parties’ positions early in the process, generally in a much more antagonistic way than necessary. [ 16 ] This case is a good example of all of those reasons. Given that the case was moved from one courtroom to another, such a common occurrence as to be a presumption at this level of court, there was no hope that the hearing Judge would have been able to read the affidavits before the hearing.

Counsel resisted calling their clients, and the hearing time was used for submissions by counsel, who differed on every aspect of the matter. [ 17 ] The case was nowhere near ready for any kind of interim ruling at the end of the day. Counsel were sent off to set a case conference and a trial date on the applications. Those have now been set for February 7, 2012, and April 23 and 27, 2012. They were also asked to try to reach a consent regarding the interim applications, and to set the matter back down for a decision or further submissions before me, if necessary.

In due course, not surprisingly, it became necessary, and the matter was set for December 13. In terms of the

summary nature of the proceedings, it must be noted that the applicants have waited two-thirds of the time to trial to receive their interim rulings. In my view the expectation that the Judge hearing their Notices of Motion would entertain nine affidavits is at least partly to blame for that delay. [ 18 ] The good news is, because of the month’s adjournment I have had time to read the affidavits and I have come to know a lot about the complaints the parties have against each other. The bad news is, I am not certain they have put me any further ahead in terms of an assessment of C.P.M.’s best interests. [ 19 ] It is my view, and it will be my ruling, that the proper

interpretation of the Rules is that the registry is not required to accept any more than the one affidavit in Form 17 that accompanies a Notice of Motion under Rule 12(3), unless the party that seeks to file it first has leave of the Court under Rule 13(3) to do so. There is simply no point in filing affidavits “on spec”. I have informed the Administrative Judge and the Registry of this ruling for future reference.

[ 20 ] Having digressed to get that off my chest, I will proceed to a consideration of the relevant issues. The test I will employ in relation to making an order at this stage, particularly in light of the imminence of the hearing date, is whether there are clear and compelling circumstances for making the orders sought. Access [ 21 ] Until August 2011, both parties resided in North Vancouver. C.M. is concerned that having C.P.M. travel back and forth with his father from North Vancouver to Squamish on school days is onerous for him.

The length of the trip was a matter of some debate but given the distance exceeds 60 km, a minimum time would be in the range of 50 minutes. [ 22 ] W.M. takes the position that C.M. has the obligation under the January order to attempt to resolve the issue without litigation. In response, C.M. says W.M. moved to Squamish on short notice without discussing it with her. She says she has tried to discuss changing the access

schedule with him, but has been unsuccessful. [ 23 ] I am satisfied that C.M.’s motive is to reduce the amount of time C.P.M. spends commuting between Squamish and North Vancouver. She says he is exhausted and is having trouble concentrating in school. She offers to compensate W.M. on weekends for time lost during the week. [ 24 ] C.M.’s proposal is that C.P.M. spend three weekends a month with his father from Friday to Monday and that this be extended on long weekends.

She is open to one of those access periods being extended to Wednesday after school to Sunday. [ 25 ] In terms of the interim application, I agree however with the position taken on behalf of W.M. by his counsel that the move and consequent commute are not so drastic a change in circumstances or such a hardship that an interim order changing the parties’ consent

schedule needs to be made at this stage. [ 26 ] It is submitted that the trip from Squamish, or Garibaldi Highlands, to North Vancouver is not an unusual commute these days. Whether that means it is in C.P.M.’s best interests or not, as pointed out in W.M.’s affidavits, it has not been shown that any of C.P.M.’s problems with concentration at school are attributable to the commute. He is apparently only getting up perhaps half an hour earlier than he did before. He misses some play time in the school yard on days he travels from Squamish.

W.M. is mindful of his bedtime and need for sufficient sleep. [ 27 ] The interim change proposed by C.M. would not significantly reduce the number of trips per week. Although he would have fewer or no school morning trips he would still be traveling to Squamish after school and back again on weekends or perhaps Monday mornings. The

schedule proposed would also mean longer periods when W.M. would not see C.P.M., and a different quality of parenting time. [ 28 ] I do not find that it has been established that those changes to W.M.’s time with C.P.M. are justified on an interim basis by the addition of the commuting time to North Vancouver created by W.M.’s move. This is a matter that will be better assessed by the hearing Judge after more time has passed. Support [ 29 ] In relation to the application for support, there was no prior order. W.M. has paid essentially voluntarily since the separation, but he has not paid a predictable amount.

C.M. complains that he pays support erratically and she is unable to rely on a consistent amount. [ 30 ] There are months in which W.M. has paid no maintenance at all. C.M.’s counsel provided a

schedule of amounts she has received. When the parties first separated W.M. paid $3,000 in some months. In contrast he paid no maintenance in April or October, 2011, and $800.00 in September. [ 31 ] Counsel disagreed significantly as to what W.M.’s income should be for the purposes of the Federal Child Support Guidelines. He describes himself as a self employed window washer. His business is a sole proprietorship and it seems likely that he deducts expenses for tax purposes that may not be recognized in calculating his Guideline income. [ 32 ] C.M. describes herself as a disabled homemaker in her affidavits.

She has not worked since C.P.M. was born. She declared an income of under $5,000 for 2010. [ 33 ] She has been looking for work, but has not been successful. She worked in the field of not for profit organizations and office environments, but has recently been diagnosed with arthritis in her hip. She cannot do too much sitting but is hopeful of finding something suitable.

She has applied for CPP disability benefits. [ 34 ] Counsel for C.M. suggested spousal and child support amounts based on an imputed income of over $63,000, and DivorceMate calculations utilizing the Federal Spousal Support Guidelines. [ 35 ] W.M. declared an income of about $48,000 in 2010, but says it has decreased for 2011, and will continue to do so, given the state of the economy. He offered to pay $400.00 in spousal support and the Guideline amount of $442.00 in child support, which corresponds with an income of $47,600.

In our discussions at the hearing I gained the impression that W.M. would have consented to a combined amount of about $1,200 on a without prejudice basis. That would reflect an amount of $758.00 in spousal support. [ 36 ] Counsel for C.M. pointed out that the average monthly amount W.M. paid over the 18 months after separation was $1,763.87.

When I suggested to the parties at the hearing that this might represent a reasonable compromise amount, pending a full hearing on the issues, C.M. took the position that this amount was not sufficient and would not properly represent W.M.’s capacity to pay based on what she believes his income to be. [ 37 ] The case law regarding interim child support establishes that there is an ongoing legal obligation on the part of the parent who has a child less than 40% of the time to pay the Guideline amount of child support.

It is the right of the child and not of the primary caregiver. [ 38 ] As to spousal support, in my view the aim should be to ensure that the party with primary responsibility for the child is not disadvantaged pending the trial, assuming there is at least a prima facie case in favour of an award, once all the issues are canvassed. [ 39 ] While W.M. takes the position that C.M. should be working, the reality is that she has not done so for several years, she is of an age where unfortunately she is arguably less employable than she once was, and she has a documented problem with arthritis and dysplasia in both hips.

W.M.’s counsel argues that if C.M. were a male the Court would impute income, but I disagree. In my view there is a strong argument in favour of an ultimate finding that spousal support is appropriate at least for a period of time. [ 40 ] It is also argued that providing spousal support will remove any incentive to find work, but I will leave to the presiding Judge at the hearing whether to continue the support amount, taper it off, or supply an end date for it.

As it stands, at present, C.M. is not working and needs support. [ 41 ] As to the amount of income to use for setting interim support, I am not satisfied the Court is equipped to impute to W.M. a higher income than he has acknowledged either overtly or by implication.

The Judge at the hearing may ascertain what amounts are properly deducted from his proprietorship income and whether any further income from his other businesses must be included. [ 42 ] Considering the income W.M. has disclosed, the fact that he runs two other businesses, the amounts he has paid since separation, and the uncertainty of his income for 2011 and 2012, I am of the view that W.M.’s income should be set, on an interim without prejudice basis, at $50,000. [ 43 ] His child support amount at that income will be $425.00. [ 44 ] The Court is really not equipped to perform the analyses that are required under the Spousal Support Guidelines, at an interim stage, again on untested affidavits.

C.M.’s counsel has provided a range of amounts based on different levels of income. Suffice it to say that the range is very wide. [ 45 ] For lack of a better solution at this stage of the proceedings, in my view it is appropriate to consider the minimum amount that it appears likely the Court will order based on the estimated income of $50,000 and C.M.’s potential employability.

I find that the appropriate amount of spousal support, again on an interim, without prejudice basis, is $550.00. [ 46 ] For the benefit of counsel that is an average of the figures in the range provided by the Spousal Support Advisory Guidelines, based on an estimated gross income of $50,000 for W.M., and $12,000 for C.M. [ 47 ] The interim support payment, in total $975.00, will be payable on the 1 st day of each month, effective January 1, 2012, subject to what I have to say about retroactivity. [ 48 ] In my view, in the circumstances as disclosed at the interim hearing, these are minimum amounts for child and spousal support for the past year.

Accordingly, they will take effect as of July 1, 2011, the month after the initial Notice of Motion was filed. The amounts paid by W.M. after that date (and not before it) will be offset against the monthly amount required, of $975.00. I will leave it to counsel to calculate that amount.

The lump sum owing after that calculation will be repayable at the rate of an additional $400.00 per month. [ 49 ] If at the trial it is determined that a lesser amount is appropriate for either child or spousal support, and if the order is made retroactive, any excess amounts paid by W.M. may be offset against future support payments. If the monthly amount is greater, the additional lump sum amount may be calculated at that time.

Order [ 50 ] W.M.’s income for 2011 is deemed to be $50,000 on an interim without prejudice basis. [ 51 ] W.M. will pay the amount of $425.00 per month in child support, $550.00 in spousal support, and $400.00 toward the lump sum amount calculated by counsel, or a total of $1,325 each month, commencing January 1, 2012 and continuing until further order of the Court. [ 52 ] Either party may travel with C.P.M. to Washington State (but not otherwise outside British Columbia), without the other party’s prior permission, provided that the party wishing to travel to Washington advises the other of the trip, in advance. _______________________________ The Honourable Judge C.

Baird Ellan

Provincial Court of British Columbia