D.W. v. C.D., 2022 BCPC 165

Citation: D.W. v. C.D. 2022 BCPC 165 Date: 20220822 File No: F-15712 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.W. APPLICANT AND: C.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Appearing in Person: D.W. Respondent: Not appearing at this hearing Place of Hearing: Port Coquitlam , B.C. Date of Hearing: August 3, 2022 Date of Judgment: August 22, 2022

Introduction [ 1 ] The parties are the parents of two children. They have entered into the following agreements (the ”Agreements”) covering such matters as parental responsibilities, child support and s. 7 expenses: 1. Agreement Made in a Mediation dated July 27, 2020, and filed November 16, 2020, and 2. Minutes of Settlement dated August 26, 2020, and filed November 16, 2020. [ 2 ] D.W. (“Ms. W.”) has applied to enforce the Agreements, and she seeks the following orders: 1. The appointment of a parenting coordinator. 2. Ms.

W. is to be the sole person permitted to register the children in any activities for the children. 3. Mr. D. is to pay a financial penalty to Ms. W. for any late payment of expenses or child support. 4. Mr. D. to arrange for the pre-scheduled direct deposit of child support payments to Ms. W., or for Mr. D. to provide post-dated cheques for the support payments. 5. If Mr. D. seeks payment for any agreed-upon expenses he has incurred for the children, he is to provide to Ms. W. copies of the invoices or receipts 14 days before payment is due to him, or before he can seek a set off from expenses owed to Ms.

W. [ 3 ] Mr. D. did not attend the hearing. He appeared remotely before me on April 19, 2022, when the August 3, 2022 hearing date was set. I have elected to proceed with the hearing in Mr. D.’s absence as permitted by both Family Law Act s. 200 and Provincial Court Family Rule 148. [ 4 ] This matter has also been in court for several appearances. Mr. D. is well aware of the types of orders that Ms. W. seeks. The Terms of the Agreements [ 5 ] The Agreement Made in a Mediation provides in clause 2(

e) that one child will participate in hockey and the other in figure skating. The agreement goes on to say other children’s activities are to be “discussed and reviewed and consented to by both parties before the activity being implemented.” [ 6 ] The Minutes of Settlement sets child support at $2,700 a month payable in two installments on the 1 st and 15 th day of each month “to be paid by automatic e-transfer.” The Minutes of Settlement also call for the proportionate sharing of s. 7 expenses. Based on their respective incomes, Mr. D.’s share is 93% and Ms. W.’s share is 7%. [ 7 ] Clause 2(

b) of Appendix A to the Minutes of Settlement requires a party to reimburse the other party for agreed-upon expenses within 14 days after receiving the expense receipt. The Evidence of D.W. [ 8 ] On August 24, 2021, Ms. W. sent Mr. D. a receipt for various agreed-upon expenses. Mr. D.’s share was $512.66. Mr. D. did not pay his share of the expense within the 14 days required by the agreement. [ 9 ] On September 22, 2021, Ms. W. filed an Application About Enforcement . She sought an order to enforce the Minutes of Settlement , although the Application incorrectly said this agreement was dated August 26, 2021. Ms.

W. asked for orders requiring Mr. D. to pay the child support on time, to prepay s. 7 expenses, that Mr. D. remove the children from any activity not agreed upon by the parties, and for Mr. D. to refrain from discussing adult matters with the children. [ 10 ] Ms. W.’s application came before Judge Dorey on October 5, 2021. [ 11 ] Judge Dorey made various orders including requiring the parties to exchange a

summary of their s. 7 expenses with supporting receipts. Judge Dorey adjourned the application to another date and there have been several subsequent court appearances. [ 12 ] On November 29, 2021, Ms. W. sent Mr. D. an expense

summary with attached receipts. The expense claim now totalled $1,508.92. Mr. D. did not send a

summary of expenses to Ms. W. [ 13 ] On December 16, 2021, Ms. W. filed a further Application About Enforcement to enforce the Agreements. She requested an order for Mr. D. to pay the outstanding expenses, to pay $100 for the benefit of Ms. W., and that Mr. D. not register the children in any activities without Ms. W.’s consent. [ 14 ] On January 8, 2022, Mr. D. sent Ms. W. $1,235, which was a reduction of $273.92 from the amount sought by Ms. W. Mr. D. did not send Ms. W. any receipts to justify the amount of the deduction despite a request from her; nor had Mr. D. sent Ms. W. a

summary of his expense claim. [ 15 ] Ms. W. also put into evidence various records showing child support payments made by Mr. D., which occurred in amounts and at times that differed from that required by the Minutes of Settlement .

[ 16 ] Ms. W. said the late payment of expenses and support causes her financial difficulties because she must bear the expenses herself until Mr. D. complies with his payment obligations. Ms. W. is a full-time student and has limited income. [ 17 ] Mr. D. has also unilaterally enrolled the children in soccer in Maple Ridge even though the children reside in Langley. Mr. D. works out of town, which means he is not always available to take the children to soccer. Ms. W. is also not always available to transport the children and so the children miss some of their soccer activities. [ 18 ] Ms.

W.’s evidence was supported by text messages, emails and payment confirmations. It establishes the following: 1) On certain occasions, Mr. D. has not paid s. 7 expenses or child support on the prescribed dates set out in the Agreements. 2) Mr. D. has unilaterally enrolled the children in soccer. 3) Mr. D. has not provided copies of receipts to support his special expenses claim. 4) Mr. D. has not arranged for automatic e-transfers of support payments as required by the Agreements. Appointment of Parenting Coordinator [ 19 ] In the past, the parties had a parenting coordinator but Ms.

W. believes the agreement with the parenting coordinator has expired. She feels that having a parenting coordinator in place would assist in resolving disputes outside of court. However, there is no filed application before me for the appointment of a parenting coordinator, so I decline to make such an order. An application for a parenting coordinator can be made by filing an Application About a Family Law Matter to seek an order under s. 15 of the Family Law Act . Enforcement of an Obligation to Pay Support or Expenses [ 20 ] Ms.

W.’s two applications were brought by way of the Form 29 Application About Enforcement . [ 21 ] Rule 135 prescribes the use of Form 29 to enforce orders about parenting time, conduct and general orders about enforcement. [ 22 ] Rule 140 governs the enforcement of support orders or agreements under the Family Maintenance Enforcement Act . This often involves filing a Form 30, called an Application for Garnishment, Summons or Warrant and perhaps a Form 33 Summons to a Default Hearing .

An application to enforce the payment of support or expenses cannot be pursued by way of a Form 29 Application About Enforcement . [ 23 ] Ms. W.’s two applications requested orders to enforce payment of support and expenses. I dismiss those requests on the procedural grounds I have set out. Ms. W. may deal with any issues about the actual payment of expenses or support by enrolling with the Family Maintenance Enforcement Program or by applying under Rule 140 for enforcement.

Enforcement of Other Obligations [ 24 ] An agreement dealing with parental responsibilities can be filed with the Court and is enforceable as if it were an order of this court: Family Law Act s. 44(3) [ 25 ] The Agreements provide that the choice of activities for the children is a parental responsibility that the parties must exercise jointly. Mr. D.’s decision to unilaterally enrol the children in soccer is contrary to the Agreements. [ 26 ] I am satisfied that an order allowing only Ms. W. to register the children in any activities is necessary to ensure that Mr. D. follows the terms of the Agreements.

The purpose of this order is to manage behaviour that would otherwise frustrate the resolution of a family law dispute that the parties achieved through the Agreements. This is governed by s. 222(

b) of the Family Law Act. [ 27 ] The requirement to provide receipts and to arrange for automatic e-transfers are matters that can be dealt with under the Family Maintenance Enforcement Act . At the same time, these are terms governing the conduct of the parties. Enforcement of these terms will manage behaviour that would otherwise frustrate the resolution of a family law dispute achieved by the Agreements. Once again, I find the authority to enforce these requirements under s. 222(

b) of the Family Law Act and I am satisfied that it is necessary to enforce these requirements. [ 28 ] I am making a conduct order under s. 222 of the Family Law Act to prevent Mr. D.’s unilateral registration of the children into activities, to require Mr. D. to arrange for automatic e-transfers of support payments and that he provide expense receipts. These orders will address behaviours that are otherwise creating conflict between the parties. [ 29 ] If a party fails to comply with a conduct order made under

Part 10: Division 5 of the Family Law Act , which includes s. 222, further enforcement may be sought by filing a Form 29 Application About Enforcement. This will include orders under Family Law Act s. 228(1), s. 230 or even s. 231. For ease of reference, I will set out ss. 228, 230 and 231. Enforcing orders respecting conduct 228

(1) If a party fails to comply with an order made under this Division, the court may do one or more of the following: (

a) make a further order under this Division; (

b) draw an inference that is adverse to the party, and make an order based on the inference; (

c) make an order requiring the party to pay

(

i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the non-compliance, including fees and expenses related to family dispute resolution, (ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the non- compliance, or (iii) a fine not exceeding $5 000; (

d) make any other order the court considers necessary to secure compliance.

(2) If a party fails to comply with an order made under

section 225 [orders restricting communications] , the court must consider whether it would be appropriate to make an order under

Part 9 [Protection from Family Violence] . Enforcing orders generally 230

(1) Subject to

section 188 [enforcing orders respecting protection] , an order under this

section may be made only if no other provision of this Act applies for the purposes of enforcing an order made under this Act.

(2) For the purposes of enforcing an order made under this Act, the court on application by a party may make an order to do one or more of the following: (

a) require a party to give security in any form the court directs; (

b) require a party to pay (

i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees and expenses related to family dispute resolution, (ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the party's actions, or (iii) a fine not exceeding $5 000. Extraordinary remedies 231

(1) This

section applies if (

a) a person fails to comply with an order made under this Act, and (

b) the court is satisfied that no other order under this Act will be sufficient to secure the person's compliance.

(2) Subject to

section 188 [enforcing orders respecting protection] , the court may make an order that a person be imprisoned for a term of no more than 30 days.

(3) For the purposes of subsection (2), (

a) a person must first be given a reasonable opportunity to explain his or her non-compliance and show why an order under this

section should not be made, (

b) for the purpose of bringing a person before the court to show why an order for imprisonment should not be made, the court may issue a warrant for the person's arrest, and (

c) imprisonment of a person under this

section does not discharge any duties of the person owing under an order made under this Act.

(4) If satisfied under

section 61 [denial of parenting time or contact] that a person has been wrongfully denied parenting time or contact with a child by the child's guardian, a court may make an order requiring a police officer to apprehend the child and take the child to the person.

(5) If satisfied that a person having contact with a child has wrongfully withheld the child from a guardian of the child, a court may make an order requiring a police officer to apprehend the child and take the child to the guardian.

(6) For the purpose of locating and apprehending a child in accordance with an order made under subsection (4) or (5), a police officer may enter and search any place he or she has reasonable and probable grounds for believing the child to be. Application for a Payment [ 30 ] One order sought by Ms. W. was for Mr. D. to pay an amount to her for his failure to comply with the Agreements. Family Law Act sections 228(1)(

c) and 230(2)(

b) provide authority for such orders. I will refer to such payments as an “Enforcement Payment”. [ 31 ] Under s. 228(1)(c), the court may order a party who fails to comply with an order made under Division 5 of

Part 10 of the Family Law Act , specifically ss. 222 to 228, to pay:

a) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the non-compliance, including fees and expenses related to family dispute resolution,

b) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the non-compliance, or

c) a fine not exceeding $5 000. [ 32 ] The court only has jurisdiction to order such payments if there is first an order made under ss. 222 to 228 and that order is contravened. [ 33 ] Section 230(2)(

b) also allows the court to make an order for an Enforcement Payment. This

section applies to the enforcement of any order made under the Act , not just orders made under Division 5 of

Part 10. Section 230(1) only permits an order under s. 230(2)(

b) if no other provision is available for enforcement of an order made under the Act . [ 34 ] In this case, I lack an explanation from Mr. D. for his failure to comply with the Agreements. Rather than proceeding directly to an Enforcement Payment order, I will make conduct orders under s. 222 and allow Mr. D. to comply. If Mr. D. fails to do so, Ms. W. can apply to enforce the conduct order by filing a Form 29 Application About Enforcement.

At that time, the court may make an order for an Enforcement Payment under s. 228(1)(c). [ 35 ] If an Enforcement Payment order is not complied with, I am of the opinion that this can be enforced by filing a further Form 29 Application About Enforcement . The Enforcement Payment order is not for child or spousal support but is made to enforce a conduct order. Procedurally, the Application About Enforcement is to be used to enforce such orders.

Order [ 36 ] I order as follows: 1) Pursuant to s. 222 of the Family Law Act , D.W. will have the sole responsibility for registering the children into any activities, including but not limited to any activities D.W. and C.D. have agreed upon as set out in paragraph 2(

e) of the Agreement Made in a Mediation dated July 27, 2020, and filed November 16, 2020. 2) Pursuant to s. 222 of the Family Law Act , C.D. will forthwith arrange for the automatic e-transfer of support payments as required by paragraph 2(

a) of the Minutes of Settlement dated August 26, 2020, and filed November 16, 2020. 3) Pursuant to s. 222 of the Family Law Act , C.D. will provide D.W. copies of any receipts for s. 7 special expenses as required by paragraph 2(

b) of the Minutes of Settlement dated August 26, 2020, and filed November 16, 2020, and C.D. is not entitled either to reimbursement of any expenses or to setoff the expenses from any monies owing to D.W. until he has provided D.W. with the receipts. 4) Should C.D. fail to comply with this order, D.W. may apply to enforce this order by filing and serving C.D. with a Form 29 Application About Enforcement. 5) The application of D.W. to enforce the payment of child support and expenses is dismissed on procedural grounds without prejudice to an application to enforce payment brought under Provincial Court Family Rule 140 and the Family Maintenance Enforcement Act . [ 37 ] The Court Registry will prepare this order and provide a copy to the parties. _____________________________ The Honourable Judge W.

Lee Provincial Court of British Columbia