T.M.A.H. v. R.W.S. Date:, 2016 BCPC 341

Citation: T.M.A.H. v. R.W.S. Date: 20161114 2016 BCPC 341 File No: 10596 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.M.A.H. APPLICANT AND: R.W.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Applicant: D. Klassen

Counsel for the Respondent: M. Cheema Place of Hearing: Abbotsford , B.C. Dates of Hearing: May 2, June 20, July 4, September 26, 2016 Date of Judgment: November 14, 2016 Introduction [ 1 ] The parties to this application are T.M.A.H., the Applicant, and R.W.S., the Respondent. They are the parents of two daughters: [older daughter], who was born on [d.o.b.], 2004, and [younger daughter], who was born on [d.o.b.] 2008. [ 2 ] The children have been in the Applicant’s care and she is their sole guardian by virtue of the operation of

section 251 of the Family Law Act . Prior to the coming into force of the Family Law Act , an order was made under the Family Relations Act which awarded the Applicant “sole custody” of the children.

In her Application filed on March 24, 2015, the Applicant seeks an order for child support, retroactive to March 1, 2012, and asserts the belief that the Respondent’s gross annual income is in the range of $150,000. [ 3 ] In his Reply, filed on May 25, 2015, the Respondent agrees that he should pay child support, but states in his Reply, “I would like proof - receipts of child support, expenses, since support has been provided ongoing.” He disagrees with having to pay retroactive support for his children, and in his Reply he writes: “This is the first I’ve heard of this.

Why would there be retroactive support from time of birth? There is support and care of our daughters.” [ 4 ] The Respondent also brings his own application asking that his contact with the children be changed from supervised to unsupervised. The Applicant is opposed to this change. [ 5 ] At the hearing of this matter, both of the parties testified. The Applicant’s mother also testified. Following is a

summary of the previous court orders, a

summary of the evidence presented at the hearing of this matter, a

summary of the law that must be applied to these applications, and the reasons for the order which is being made in response to these applications. Previous Court Orders [ 6 ] The parties have been before this court since 2005 when the first application was brought by the Applicant for custody of the older child. (The younger child was born in 2008). Since then, the following orders have been made by this court: (

a) August 25, 2009: The Honourable Judge R. R. Romano made an order giving the Respondent supervised access to the children, setting out the times and conditions for that access. (

b) October 13, 2009: The Honourable Judge B. G. Hoy varied the previous order, amending the times of the Respondent’s access and allowing the paternal grandparents to serve as supervisors for the Respondent’s access. (

c) November 18, 2009: The Honourable Judge C. J. Rounthwaite made an order giving the Applicant sole custody of the children, and requiring that the Respondent’s access be professionally supervised.

In making this order, Judge Rounthwaite stated in her reasons: “In my view, given the longstanding history of alcohol abuse, as well as these significant allegations of abusive behaviour or violent behaviour that went along with the alcoholism, the mother’s concerns are indeed justified about the father’s continuing sobriety, his potential for violence, as well as the ability of the paternal grandparents to supervise… “In my view at this point the father’s access must be supervised.

It needs to be supervised by a professional access supervisor or another independent, objective person not a member of the father’s family. While I have no concerns and the mother has no concerns with respect to the grandparents’ love and ability to care for these children, the issue is whether the grandparents are sufficiently able to monitor the behaviour of their son when he is exercising access. So in my view the paternal grandparents are not the ones to supervise.

There will be an order for supervised access to the father, either by way of professional access supervisor or by any other independent person as the parties may agree.” (

d) September 28, 2010: The Honourable Judge C. J. Rounthwaite varied her previous order and required that the Respondent’s access to the children take place in a neutral location. She dismissed the Respondent's application to remove the requirement of supervision of the access. (

e) August 25, 2015: The Honourable Judge D. R. Gardner ordered the Respondent to pay, “on a without prejudice basis”, child support to the Applicant in the sum of $1062.00 each month commencing on September 1, 2015. (

f) September 9, 2015: The Honourable Judge J. Oulton adjusted the times of the Respondent’s contact with the children and required the parties to communicate by text message or email. She also specified the time for the Respondent to have telephone contact with the children and also ordered the Respondent to file a Financial Statement on or before December 31, 2015.

The prepared order uses the phrase “supervised parenting time”, although no order has ever been made finding the Respondent to be a guardian of the children. [ 7 ] The Respondent did not file his financial statement by December 31, 2015, as ordered by Judge Oulton. One was finally filed on June 29, 2016, and it attached one T-4 for the tax year 2015.

Summary of Evidence

[ 8 ] The Applicant testified that her daughters reside with her in a two story home. She and the Respondent separated for the last time in June of 2009 and the children have been in her care continuously since then. When the parties initially separated, an order was made giving the Respondent supervised access to the children. A lawyer, who was also a friend of the Respondent, was named in the order as supervisor of the visits. According to the Applicant’s testimony, that didn’t work out so well.

She says that on one occasion when the lawyer was supposed to be supervising the visits, she found him passed out on the couch as the result of his alcohol consumption. After the court ordered the Respondent’s visits with the children to be supervised, the Applicant says that he only had three visits with the children. [ 9 ] The Applicant testified that in the summer of 2012, in order to try to facilitate contact between the Respondent and his children, she agreed to drive him and the children to Penticton where the Respondent’s parents live. This didn’t go so well either.

She says that the Respondent drank alcohol on the trip up, with the children present in the car, even though she asked him not to and had agreed beforehand that he would not drink during his visit with the children. She said that the Respondent behaved in a manner that made her and the children feel uncomfortable. On one occasion during the trip she says that he grabbed her breast while she was driving. [ 10 ] The Applicant says that when they arrived in Penticton, things were fine for the first few days, but then the Respondent started drinking again.

One day when the Applicant was at the home of a friend of hers, the Respondent showed up very drunk and speaking very profane and loud in the presence of the children. The Applicant says that the Respondent’s conduct caused the son of her friend’s landlord to tell the Respondent to leave, while the landlord tried to get the Respondent to calm down. The Respondent’s behaviour caused the Applicant to shorten the visit. She and the children left the following morning. [ 11 ] After this visit, the Applicant says that she tried to facilitate other visits between the Respondent and the children.

On one visit, she planned to drive the Respondent to a shopping mall, but when she called the Respondent, she says that he was very drunk. She says that the Respondent’s telephone calls to the children were “few and far between”. She testified that by the spring of 2014, the Respondent’s relationship with the children had degraded to the point where they did not wish to talk to him. [ 12 ] The Applicant testified about an unannounced visit to her home that the Respondent made in April of 2015.

She says that he showed up with open liquor in his vehicle in a very noisy fashion with loud music blaring from the vehicle. She said that he had obviously been drinking and that he grabbed her breasts before leaving. This incident was also witnessed by the Applicant’s mother. [ 13 ] The Respondent testified that he did show up at that time with a BMX bike and a 32 inch flat screen television for his older daughter. He came back after he realized that he had forgotten the remote control for the television. [ 14 ] The Respondent had some supervised visits with the children in the fall of 2015.

The Applicant says that some of the visits were either cancelled or shortened because the Respondent showed up for the visits with alcohol on his breath. The Respondent has not had any visits with the children since October of 2015. Although Judge Oulton changed the frequency of the Respondent’s supervised visits with the children, the Applicant says that the Respondent did not arrange supervision for these visits, so they never happened. [ 15 ] The Applicant says that the Respondent’s telephone contact with the children did not go very well either.

She says that he would accuse the children of recording the phone calls, and that he would make disparaging remarks about her and her family to the children. She also says that the Respondent would get the children’s hopes up by making promises of future visits, only to fail to make good on these promises. [ 16 ] The Applicant says that she has changed her telephone number this past April because the Respondent had been making threatening phone calls to her. She has provided a toll-free number at which she can be reached through her employer.

The threats she describes were threats to litigate this matter before the Supreme Court of this province, and to make personal allegations against her and her family. She says that he has also demanded that she cease enforcement proceedings with the Family Maintenance Enforcement Program (FMEP). She is also unwilling to give her telephone number to the Respondent’s parents because she is afraid that they will give her number to the Respondent. [ 17 ] The Applicant says that the children generally have a good relationship with the Respondent’s parents.

She reiterated this in cross-examination and referred to them as “good people.” Her only concern is about them dropping in to see the children unannounced. The Applicant says that she has maintained contact between the children and the Respondent’s brother and his wife, who she describes as nice people. [ 18 ] The Applicant is concerned that the Respondent is not being current in the payment of child support. She alleges that he paid very little in 2013 and 2014, despite the fact that he earned in excess of $100,000. She has had to involve FMEP to collect child maintenance.

On her behalf, FMEP placed a lien on property owned by the Respondent. For much of the time that the trial of this matter was proceeding, she continued to receive no child support. [ 19 ] The Applicant testified that she remains concerned about the Respondent’s use of alcohol and about his inability to restrain his anger. She says that the children are afraid of seeing the Respondent for overnight visits.

She also noted that the Respondent did not make any effort to contact the children or to send a card or gift to the youngest daughter for her birthday, which occurred in between the first and second day of the hearing of this matter. She said, in cross-examination that she believes that the Respondent loves the children “in his way”, but that they are “not his number one priority.” [ 20 ] In cross-examination, the Applicant admitted to past drug use when she was with the Respondent, but states that this took place before the birth of the children.

Today she says that she does not use non-prescribed drugs and very rarely drinks alcohol. [ 21 ] The older daughter is described as being very outgoing and talkative and also very loving and generous. Her younger sister can also be talkative at times, but at other times can be very withdrawn. The children are described by the Applicant’s mother as being very loyal to one another and to their mother.

According to the Applicant’s mother, the children have informed her that they do not like visits with the Respondent because of his drinking, and because of disparaging remarks he makes to them about the Applicant. [ 22 ] The Respondent is 49 years of age. He is married and also maintains a close relationship with his parents, who live in Penticton.

His father is 83 years of age and his mother is 76. Both have significant health problems. The Respondent expressed his displeasure at the Applicant for having commenced court proceedings, and he also expressed his resentment at having to call prior to seeing his children and at having to pay for professional supervision of his visits with his children. Since the court orders made in 2015 he says that he has only seen his children twice, with both of the visits supervised by a company called West Coast Link. [ 23 ] The Respondent had been employed in the field of crane maintenance.

His T-4 shows his employer as [name of employer]. He testified that in 2013 or 2014, he suffered a torn bicep injury that prevented him from working. He was able to work in 2014. He says that this was because his friend was the foreman and “pushed for extra hours.” He was not specific about his time off of work, but he testified that he “took the summer off” in 2014 and went to Cuba. He took a first aid course in December of 2014. He testified that he hasn’t worked since April of 2015.

He said that he could go back to work, but felt obligated to care for his parents. [ 24 ] A brief note from the Respondent’s physician was tendered in evidence. The note was written on March 13, 2014, and in the note the physician recommends “that [R.D.S.] does not do heavy duty mechanic [work] due to a very symptomatic foot, knee and left arm condition. He can work as a driver.” An occupational fitness assessment dated April 22, 2015 was also provided.

In this report, the physician comments that the Respondent “cannot work in heavy duty mechanic” or operate a forklift. [ 25 ] A series of reports were provided in evidence from West Coast Family Link, the organization which supervised the visits during the fall of 2015. These reports detail visits that took place on September 20, October 3, and October 17. The reports do not disclose any behaviour on the part of the Respondent of the type that Judge Rounthwaite was concerned about.

Specifically, nothing in the reports suggests that the Respondent was drinking during the visits or that he became angry at any point. From some of the comments attributed to the children, it is apparent that they have heard talk about court, but the Respondent does not bring up the subject or discuss it with the children.

The only concern that is mentioned in these reports by the visit supervisor is a note the supervisor made in the report of October 3rd, which reads: “I spoke to Dad at the end of this visit about repeatedly bringing up Penticton.” It is unclear what this means or why this is problematic. [ 26 ] The Respondent testified that he found it difficult to pay for the cost of supervised parenting time, in part because he was not working, and in part because he was required to go to Penticton to care for his parents. He said that he wants to go back to work as a first aid attendant, but added “I can’t leave my parents.

I don’t know what’s going to happen.” [ 27 ] In the past few years, the Respondent acknowledges that he has made few child support payments. Following Judge Gardner’s order of August 2015, he made a payment of $1063, which was paid to the Applicant’s counsel. He also testified that he made the following further payments: 1. A payment of $250 at Christmas of 2014 2. Payments of $1063 for October and November of 2015, by depositing the money into a CIBC account that the Applicant has with the children. 3. A payment of $200 on June 11, 2013 4. A payment of $200 on December 17, 2013 made by his mother 5.

A payment of $200 on March 21, 2014 (paid to the older child by his mother) 6. A payment of $200 on September 17, 2013, paid by his mother 7. Payments of $150 to each child (for a total of $300) 8. Payments of $200 to each child (for a total of $400) on June 6, 2014 made by his mother 9. A payment of $200 made on April 20, 2012 10. A payment of $200 made on May 20, 2012, deposited into the Applicant’s account 11. A payment of $300 made on April 27, 2012 12. A payment of $200 given to the children on October 20, 2013 by his mother 13. A payment of $400 given to the children on June 5, 2014 by his mother 14.

A payment of $200 given to the children on September 17, 2013 by his mother 15. A payment of $200 given to the children on June 28, 2012 by his mother 16. Clothing he purchased for the children on October 24, 2010 for $49.61 [ 28 ] The Respondent also says that a cheque he gave to the Applicant for $10,000 in 2008 should also be set off against any arrears of child support that he may be found to owe. [ 29 ] The Respondent claimed that he had bank records showing that he made deposits into the Applicant’s CIBC account, but deposit slips for these were not provided at trial.

He said that he stopped making payments after that. He takes offence to the fact that the Applicant had registered the order with FMEP. He adds that he has expenses in connection with his schooling and with his visits to see his parents.

[ 30 ] The Respondent testified that he attended each of his older child’s first five birthdays, but he was not allowed to attend any after that because the Applicant claimed that the children were afraid of him. He was invited to the child’s birthday party in 2013, held at a pizza restaurant in Pitt Meadows, but he says that his parents were not allowed to attend. [ 31 ] The Respondent complains that the children are taught to keep information from him.

As he put it, they are “trained not to tell me the truth.” He testified about a number of visits he had with the children, including a visit he had in 2014 when the children went to the PNE, and a supervised visit in August and October of 2015. He said that on these visits, “I had a good time, so did they.” [ 32 ] The Respondent testified that he paid for his first aid course in December of 2015. It was at around this time that Family Maintenance Enforcement placed a lien on the Respondent’s condominium, something that he was very upset about.

As he puts it, “the Ministry [FMEP] cut my legs off.” He complains that his wages are being garnisheed and that if he was to get hurt on the job, any payments from WorkSafe BC would also be garnisheed. He also complains that he is prevented from taking his parents to their birth country because FMEP has taken his passport. He is also concerned that when his driver’s license expires, he will not be able to get a new one. He views the Applicant’s efforts to enforce the child maintenance orders as a “malicious act”. He also complains about the amount of maintenance he has to pay.

He asks “isn’t $600 or $800 enough?” [ 33 ] The Respondent admitted that in April of 2015 he went on a vacation to Cuba. He says that this was paid for by his current wife. [ 34 ] On the final day of trial, the Respondent testified that his condominium had been sold. He says that his mother is owed money that she provided to purchase the home, but he acknowledged in cross-examination that she never placed any sort or mortgage or other charge against the title to the property. The first written record of the mother’s loan was on June 28, 2016.

There isn’t any sort of documentation regarding this purported loan, and there is no record of any sort of payments ever made to his mother for this. [ 35 ] The Respondent was cross-examined about his alleged drinking problem. He acknowledged that he has been convicted of impaired driving and that in the past he has had an interlock device placed in his car.

He was asked about being convicted of driving while prohibited subsequently, and replied “I can’t remember.” He acknowledges that he was drinking with the Applicant in 2014, but says “we both got drunk together.” When asked whether he was drinking and driving on the trip that he and the Applicant took to Penticton, he said, “of course I was, she let me. She never disputed it, that’s never been an issue with her.” [ 36 ] The Respondent said that he stopped attending the scheduled supervised visits, saying “I couldn’t afford it, so I washed my hands of that deal.

It was just a waste of time.” [ 37 ] On September 26, 2016, the final day of the trial of these applications, the Respondent testified that his condominium had sold. He said that FMEP is holding $12,000 from the sale proceeds, which will be applied to ongoing child maintenance payments. He said that he has returned to work, working full time at a wage of $41 per hour. [ 38 ] The Respondent took offence to being questioned about his financial situation. He described income he had made cutting and coring concrete in a side job as something that was “private”.

When asked about the propriety of telling the children that the money he paid for child support was something for them to do with as they wished, he responded “is there something wrong with that?” He felt that he should have some control over how the Applicant spent the money he paid for child support, stating “I’d like to see where the money goes.” He also saw the involvement of FMEP to enforcement his payment as their “messing everything up.” [ 39 ] The Respondent continues to see the need for supervised visits as unnecessary.

When asked in cross-examination about his alcohol and drug use and his anger, he replied “those are just allegations”, and continued to see nothing wrong with his drinking on the trip to Penticton with the children in the car because the Applicant was driving and because she didn’t say anything. When asked if he called his children while under the influence of alcohol, he replied “I don’t know, maybe.” [ 40 ] The Respondent filed a financial statement in this matter on June 29, 2016. In the statement he states that he expects a 40% to 50% reduction in his annual income “due to physical limitations”.

He adds “see motor vehicle and workplace injuries” but does not attach anything to “see” regarding these. He lists his employment as a crane maintenance technician and gives his annual income as $34,131 from employment and $822 from his RRSP.

He states that he is responsible to provide physical, emotional and financial help to his aging parents, including upkeep of their property. [ 41 ] In the financial statement, the Respondent states that he has attached “every personal income tax return I have filed for the past three most recent tax years, together with any attachments” and “every income tax notice of assessment I have received for each of the three most recent tax years”.

The only attachment on the filed copy of the financial statement is a T-4 for the tax year 2015 which shows employment income of $34,131.15 and a T-5 showing a withdrawal of $822.01 from his RRSP account. Position of the Parties [ 42 ] Counsel for the Applicant states that the Respondent has not been forthcoming in disclosing his financial picture. He has never filed a financial statement with all of the required attachments and the financial statement that he was required to file in support of this application was not filed until June 29, 2016, after this trial had begun.

He has never produced pay stubs and only a couple of Notices of Assessments or tax returns. In his most recent financial statement, he swears that he has made mortgage and rent payments, but in cross- examination he acknowledged that he made no such payments. [ 43 ] The Applicant’s counsel also notes that the Respondent has a spotty record for making child support payments and that he has attempted to evade his responsibility to support the children that he brought into the world by claiming as his payments gifts that were given to the children by his mother.

He has not provided very much medical information to support his claim that his injury prevented him from meeting his child support obligations. Counsel seeks a support order that is retroactive to 2012, based on the following table: YEAR ANNUAL INCOME CHILD SUPPORT AMOUNT 2012 $67,072 $1,016

2013 $76,885 $1,162 2014 $99,036 $1,425 2015 $70,000 (imputed) $1,062 January to September, 2016 $70,000 (imputed) $1,062 October, 2016 on $80,000 (imputed) $1,209 [ 44 ] Counsel states that the Respondent has only paid $900 in child support for the years 2012 and 2013 ($700 in the spring of 2012 and $200 in June of 2013). The remaining amounts were either paid by the Respondent’s mother, or represent payments that should not be properly characterized as being for child support.

Since the Order of Judge Gardner made in October of 2015, the Respondent has made two payments of $1,062, as well as another payment of $300 in November of 2015. Counsel has provided a record from FMEP showing that the sale of the Respondent’s condo has resulted in a further payment of $10,400.76 on July 29, 2016, which paid all arrears under the order of Judge Gardner. FMEP also paid its default fee ($400) and a land discharge fee ($150).

FMEP has since made the payments for August and September of 2016 from the money held from the sale proceeds. [ 45 ] With respect to the cross-application for removal of the need for supervision and for guardianship, the Applicant’s counsel points out that the Respondent has not complied with the requirements under

section 51 of the Family Law Act in order for him to become a guardian of the children, and that neither order is in the best interests of the children. He has had little contact with the children, and has not bothered to take advantage of the supervised contact that has been afforded to him. Generally he has not demonstrated any sort of parental commitment for these children. He continues to display a high level of antagonism and animosity, something that would impact negatively on the lives of the children.

He continues to demonstrate a lack of insight into the problems caused by his drinking or even any acknowledgement of the problem. Generally, he has not demonstrated any change for the better from the conditions that led to the imposition of supervised contact in the first place. [ 46 ] Counsel for the Respondent seeks an order for joint guardianship of the children and asks for the removal of the requirement for supervision of her client’s time with his children. She alleges that the Applicant has been guilty of alienating the children from the Respondent.

She also argues that the cost of supervision should be considered before coming to any conclusion that the Respondent’s lack of contact with the children should be equated with a lack of caring about them. In the alternative, she argues that supervision of the visits should be done by someone who is not paid to do so, such as the paternal grandparents or the Applicant herself. [ 47 ] The Respondent’s counsel attributes her client’s gruff manner to his cultural background.

She argues that in reality there is no risk of any physical harm either to the Applicant or to the children and that the current situation simply does not call for supervision of visits with the children. [ 48 ] Counsel for the Respondent notes that the arrears under Judge Gardner’s order have been paid in full, as stated by counsel for the Applicant. She adds that presently, FMEP is holding $9,555 (as of October 7, 2016) from which future child support payments would be made.

She writes: “We would ask that the monthly payment going forward be $500-$600, provided he gets meaningful access for himself and his parents.” She argues that it is dangerous to impute an income at the level that the Applicant asks for because the Respondent’s health is precarious, given his work injury, and his income flow may be affected because of the reasonable requirement of looking after his elderly parents. Applicable Law 1. Best Interests of the Children [ 49 ]

Section 37 of the Family Law Act requires that when a court makes an order respecting guardianship, parenting arrangements or contact with a child, “the court must consider the best interests of the child only.” In determining what is in the best interests of a child, all of the child's needs and circumstances must be considered. Subsection (2) of

section 37 specifically mentions the following factors: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

[50]

Section 37 goes on to provide, in subsection (4) that “in making an order under this Part, a court may consider a person'sconduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.” 2. Supervised Contact [51] As a general rule, children have a right to a meaningful relationship with the parent that they do not reside with. However, asthe Supreme Court of Canada noted in Young v. Young (1993), (SCC), 84 B.C.L.R. (2d) 1 (S.C.C.), that objective maybe restricted where the best interests of the child requires it.

Contact between the non-resident parent and his or her children is oftenrestricted, made subject to conditions or even denied completely, where it presents a risk to the child. [52] This requirement has been codified in the Family Law Act under section 59 (1), which permits a court to “make an orderrespecting contact with a child, including describing the terms and form of contact.” Subsection (3) goes on to state:

(3) The court may make an order to require the parties to transfer the child under the supervision of, or require contact with the child tobe supervised by, another person named in the order if the court is satisfied that supervision is in the best interests of the child. [53] The decision on whether or not to order supervised contact will depend on what is in the best interests of the children. Someexamples of when supervised contact (formerly supervised access) has been ordered as being in the best interests of children include: (

a) Where the child has not seen the party exercising access for a long time and that person is essentially a stranger (e.g. McCann v.McCann, 2006 BCSC 858) (

b) Where the child has a fear of the person exercising access (e.g. V.G. v. T.G.I., [2005] BCJ No. 493, 2005 BCSC 299) (

c) Where the person exercising access has an untreated substance abuse problem (e.g. Polajzar v. Polajzar, 2005 BCSC 1615; R.U. v.L.S., 2005 BCSC 912; Gallant v. Gallant, 2007 BCSC 151) (

d) Where there is a reasonable possibility that the party exercising access has been physically abusive or sexually inappropriate with thechild (e.g. K.M.E. v. D.M.Z., [1996] BCJ No. 464 (B.C.S.C.); B.D.L. v. B.K., [2004] BCJ No. 536; 2004 BCPC 58) (

e) Where the party exercising access has removed or attempted to remove the child outside of the jurisdiction of the court incontravention of a court order (e.g. D.F.S. v. L.K.S., 2015 BCPC 363; Grant v. Grant, 2006 BCSC 1974; J.C.M. v.

I.C.M., [2007] S.J.No. 256). [54] In the present case, the concerns which called for supervised contact, as identified by the Honourable Judge Rounthwaite in herorder of November 18, 2009, were described as being “the longstanding history of alcohol abuse” and “significant allegations of abusivebehaviour or violent behaviour that went along with the alcoholism.” Having come to those conclusions, before changing the order forsupervision, it must be shown that since the making of Judge Rounthwaite’s order, there has been a change in circumstances that meritsthe removal of the requirement of supervision.

Section 47 of the Family Law Act provides as follows: “On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the makingof the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances ofanother person.” 3. Fixing the Amount of Child Support Owing [55] When parents bring a child or children into the world, they are expected to provide for the financial support of that child.

Inorder to level the playing field and to treat all parents in the same manner, the Federal Child Support Guidelines have been passed andare presumed to set the level of support expected from parents who are required to pay child support. The guidelines set the level ofsupport based on the payer parent’s income earning capacity.

Under section 150 (2) of the Family Law Act, a court can depart from theguidelines only if the parties have an agreement respecting child support and the court is satisfied that reasonable arrangements havebeen made for the support of the child. [56] Those parents who are obligated to pay child support are expected to make the support of their children a priority in their lives.It is generally unfair to place the cost of feeding, clothing and housing a child solely on the shoulders of one parent.

For the parent who isobligated to pay child support, that responsibility must come first, ahead of driving a nicer car, living in a nicer home, taking expensivevacations or having all of the best electronics and toys. It is the child’s right to be supported by his or her parents, and this right shouldnot be bargained away or be placed behind the payer’s selfish pursuits. [57] In Earl v. Earl, (BC SC), [1999] B.CJ. No. 383, a decision of the BC Supreme Court, Justice Martinson heldthat responsibility for a second family cannot relieve the parent of his or her legal obligation to support the first family.

She added that itis not an excuse for the payer parent to shirk the responsibility of providing child support simply because the children were looked afterin spite of the non-payment. The children should be compensated for what they missed. She also stated that a lack of access between aparent and child is not a legal reason to reduce or cancel arrears. [58] The parent who is paying child support cannot dictate to the parent who is feeding, clothing and housing the child how thechild support is to be paid. The law does not side with the parent who has control issues about how child support money is spent, or who

believes that the amount of child support should fall below the prescribed amount because that parent or others have spent other moneyto buy things for the children. It is up to the parent who feeds clothes and shelters the child to determine how the child support money isspent. [59] In Earl v. Earl, it was also held that a parent to seeks to reduce, cancel or change an order for child support must appear beforethe court having made a detailed and full financial disclosure.

This is a requirement of Rule 4 (2) of the Provincial Court (Family) Rules.Generally speaking, a party seeking a reduction in the amount of child support on the basis of a reduced income must be up front aboutdisclosing the true state of his or her financial position. A party that makes it difficult to examine the true state of his or her financialaffairs risks the drawing of an inference that he or she is hiding something and jeopardizes the chances of any adjustment in his or herfavour. [60] The Applicant is seeking retroactive child support. In D.B.S. v. S.R.G., 2006 SCC 37 , [2006] S.C.J.

No. 37, theSupreme Court of Canada set out the law to be applied when retroactive child support is sought. The court said that with parenthoodcomes financial responsibility. The court held that retroactive child support orders are not exceptional and are justified by the fact thatthe payer parent has failed to meet the financial obligation due to the child. It held that child support is the right of the child and cannotbe waived. [61] The Supreme Court also said that in the majority of cases a retroactive order will be limited to three years, though this is not anabsolute rule.

At paragraph 125 of the judgement, the court states: “In the majority of circumstances, that interest will be reasonable upto the point when the recipient parent broaches the subject, up to three years in the past.” I note that in the present case, the Applicationfor retroactive child support was filed in March of 2015 and the Applicant is limiting her claim to three years, commencing in March of2012. Analysis 1.

Supervision of Contact With the Children [62] In order to change the orders made by Judge Rounthwaite respecting supervised contact with the children, the Respondent mustshow that there has been a change of circumstances which support the removal of the requirement of supervision. Specifically, he mustshow that the concerns about his alcohol use and his anger are no longer a concern. [63] The evidence about what has taken place since Judge Rounthwaite’s orders does not give cause for optimism.

A number of theinitial visits that the Respondent had just after the making of the supervision order failed to address the problem because the family andfriends who were supposed to be supervising were not doing a very good job of it. When the Applicant tried to facilitate the Respondentvisiting with his children to Penticton, he was unable to make the drive without drinking on the trip, in the presence of the children.

Headmits doing so and sees nothing wrong with that, blaming the Applicant for not saying anything at the time. [64] One might expect that a person in the Respondent’s position would want to try and address the issues preventing unrestrictedcontact with the children.

Instead, the Respondent takes the view that it was ridiculous for the order to have been made in the first place.This stubbornness does little to address Judge Rounthwaite’s concerns, and it does not amount to a change of circumstances of the typeneeded to lift the order for supervision. [65] Although the Respondent has not utilized all of the supervised visits available to him, the reports from the visits supervised byWest Coast Link show that the requirement of supervision did achieved its purpose. The Respondent showed up for these visits in asober condition and was neither disparaging nor prone to anger.

These visits seemed to go well, and it was unfortunate that they did notcontinue. [66] An important piece in determining whether or not unsupervised parental contact is in the best interests of these children is anindependent assessment of the views of the children themselves.

The Applicant has said that the children continue to fear theRespondent, but this has not come through any independent source such as a Family Justice Counsellor or an independent psychologist orcounsellor. [67] The unfortunate aspect of this situation is that the Respondent may well be able to have unsupervised contact with his children,but his stubbornness has prevented an objective assessment of whether or not this is still necessary. He has put himself in this positionand has been the author of his own misfortune.

In order to rebuild his relationship with his daughters, he has been given the opportunityto spend time with them but has chosen not to spend that time with them. He says that supervision is too expensive, but instead ofutilizing whatever time he could afford, he has stopped having visits altogether. His economic pressures did not prevent him fromamassing equity in his home or from taking a vacation to Cuba.

He was advised by Judge Rounthwaite that supervision of visits wasnecessary because of his drinking, but when the Applicant extended him the opportunity to go to Penticton with her and the children, hedecided that he needed to drink on the trip and in front of the children, completely insensitive to how this made them feel. JudgeRounthwaite was concerned about the Respondent’s anger.

Rather than taking steps to manage his anger, the Respondent remainsbelligerent, somehow thinking that if he is bullish enough, he will get his way and those calling for supervised contact will give up. [68] The Respondent is obligated to show that there has been a change of circumstances since the making of Judge Rounthwaite’sorder and that removal of the requirement of supervision is in the best interests of the children. The Respondent has failed to do so andhis application to change Judge Rounthwaite’s order is denied.

He is entitled to know where the goalposts are in order for the order tochange and what should be expected of him before it can be said that there has in fact been a change of circumstances. Before therequirement of supervision can be removed in this case, the following should occur: 1. The Respondent should resume his scheduled supervised visits with the children in order to rebuild his relationship with them. It maybe that a more economical alternative supervisor may be available, such as through the Abby Dads program, and he should investigatethis and other options. 2.

After at least five consecutively scheduled visits have occurred, the Family Justice Counsellor or some other reputable counsellor

should obtain the views of the children on the frequency and conditions of contact with the Respondent and any concerns or fears that they may have. 3. The Respondent should successfully complete an anger management program. This doesn’t have to be an expensive program, but it should be one provided by a reputable agency. He may also consider meeting with the Father Support Worker at Abby Dads or some similar program, to determine whether his participating in that agency’s Anger Awareness Level I and II programs would be of benefit. 4.

The Respondent should participate in an assessment of his alcohol use such as one provided by the Fraser Health or Coastal Health regions. It will be of little benefit in addressing the best interests of the children if the Respondent simply returns to court with his self- assessment that he does not have a problem with alcohol. An independent assessment by an objective professional is called for before the effect of this concern can be properly considered.

Alternatively, the Respondent may decide that his children are more important to him than his alcohol use and embark on a course of abstinence, assisted by a twelve step program or some other proven method. [ 69 ] Ultimately it will be up to the Respondent to decide if his children are enough of a priority in his life to take these steps. He appears to have the benefit of a supportive family to help him.

It is genuinely hoped that in time he will soon come to view his relationship with his children not from the paradigm of it being a war with the Applicant, in which there must be a winner and a loser, but rather from one where he will take the steps necessary to remove parental conflict from his children’s lives, making them the winners. 2. Child Support [ 70 ] The Respondent has played his

part in bringing two children into the world, and like any other non-resident parent in Canada, he is expected to support those children as his income earning ability allows. This means that he is expected to support them at the level set out in the Federal Child Support Guidelines , the same as any other non-resident parent in his position. The Applicant has had the responsibility of feeding, clothing and sheltering these children. This responsibility should not rest entirely on her shoulders.

Both parents are expected to contribute at the prescribed level, and to do so as a priority in their lives. [ 71 ] There should be no strings attached to the Respondent’s contribution to support his children. It is his obligation, not that of his parents. He is not entitled to dictate to the Applicant, who is the guardian of the children, how the child support is spent. The costs of raising two children of this age will easily account for the support that the Respondent is obligated to pay.

It must be reiterated that the guidelines operate so that all payer parents are treated in the same manner, and there is nothing in the present circumstances that call for the Respondent to be treated any differently than any other payer parent. [ 72 ] In the present case, the Respondent has not always been timely or complete in disclosing his financial picture. In a previous financial statement, he has provided his Notice of Assessment for 2012, 2013 and 2014. His recent financial statement discloses that for the calendar year 2015, his income was limited due to a work related injury.

While the medical disclosure is not complete, it does afford some evidence of a reduced income earning capacity for 2015.

As has been repeatedly stated, the Respondent is expected to provide for the support of his children at the same level as any other payer parent in Canada, in accordance with the guidelines, no greater, no lesser. [ 73 ] The evidence supports the conclusion that the Respondent has paid the following amounts to support his children for the past five years: 2012: $700 ($200 on April 20, $300 on April 27, $200 on May 20) 2013: $200 (paid on June 11) 2014: $0 2015: $2,424 (payments of $1062 in September and October, and $300 in November) 2016: $14,648.76 (Payment of $10,400.76 on July 29, and payments of $1062 for August, September, October and November: this presumes that the ongoing payments due under Judge Gardner’s order have been made from the funds held by FMEP) [ 74 ] Based on the evidence provided at this hearing about the Respondent’s income, and the payments proven to have been made by him, his child support obligations will be retroactively adjusted, as set forth in the following table: Year Annual Income Guideline Payment Total Owing for Period Payments Made Net Balance Owing March- Dec. 2012 $67,072 $1,016 $10,160 $700 $9,460 2013 $76,885 $1,162 $13,944 $200 $13,744 2014 $99,036 $1,425 $17,100 $0 $17,100 2015 $34,131.15 $527 $6,324 $2,424 $3,900 Jan. to Sept.2015 $70,000 (imputed) $1,062 10,620 $12,524.76 ($1,904.76) October to November, 2016 $80,000 (imputed) $1,209 $2,418 $2,124 $294 Totals $60,566 $17,972.76 $42,593.24

[ 75 ] The following should be noted from the table above: 1. The income of $34,131.15 was utilized for 2015 because this matched the financial disclosure provided in the Respondent’s financial statement filed on June 29, 2016. The Respondent has not provided any supporting documents disclosing his income for 2016 and therefore the income imputed by Judge Gardner has been utilized for January to September of 2016. 2. For the remainder of 2016 and ongoing, income is imputed at $80,000.

This is based on the Respondent’s evidence that he is earning $41 per hour which translates to an annual income of between $79,950 (presuming a 37.5 hour work week) and $85,280 (presuming a 40 hour work week). The figure suggested by the Applicant’s counsel (at the lower end of the range) has been utilized. 3.

The calculation of the net balance owing does not include credit for any additional sums being held by FMEP from the sale proceeds of the Respondent’s condominium. [ 76 ] Based on the foregoing calculations, the application for retroactive child support is allowed based on the table of calculations set forth above. Arrears of child maintenance are fixed, as of November 14, 2016, at $42,593.24, less any further amount held on the Applicant’s behalf by FMEP. The Respondent’s ongoing child support payment will be adjusted to $1,209 per month.

An additional monthly sum of $300 will be ordered to be paid by the Respondent to be applied against the arrears. Order [ 77 ] For the foregoing reasons, it is ordered as follows: 1. The Applicant T.M.A.H. is found to be the guardian of the children [older daughter] born on [d.o.b.], 2004, and [younger daughter], born on [d.o.b.], 2008, pursuant to

section 39 and section 251 (1) (

a) of the Family Law Act . The Applicant shall have all of the parental responsibilities for the children as set out in

section 41 of the Family Law Act. 2. The Respondent R.W.S. shall have parental contact with the children at the times and on the terms as set out in the order of the Honourable Judge C. J. Rounthwaite made on November 18, 2009, as modified by the subsequent order of the Honourable Judge Rounthwaite dated September 10, 2010 and by the subsequent order of the Honourable Judge J. Oulton made on September 9, 2015. 3. The Respondent’s application for an order removing the requirement of supervision of his parental contact is refused. 4.

The Application brought by the Applicant for an order for retroactive child support is allowed, (based on the calculations set out in paragraph [74] of the Reasons for Judgement on this Application). The arrears of child maintenance found to be owing to the Applicant by the Respondent for support of the children are fixed at $42,593.24 (not including any further credit that the Respondent is entitled to for funds held by the Family Maintenance Enforcement Program on the Applicant’s behalf). 5.

The Respondent shall have imputed to him, for the purpose of the Federal Child Support Guidelines, an annual income of $80,000. He is ordered to pay to the Applicant for the support of the children, the sum of $1,209 per month, payable on the first day of each and every month commencing on the first day of December, 2016 and continuing on the first day of each and every month thereafter until further order of this court. 6.

In addition, the Respondent shall pay to the Applicant, the sum of $300 per month on account of the arrears of child support found to be owed by him to the Applicant, which shall be paid on the first day of each and every month commencing on the first day of December, 2016 and continuing on the first day of each and every month thereafter until further order of this court. Dated at the City of Abbotsford, in the Province of British Columbia, this 14 th day of November, 2016. ____________________________________ (The Honourable Judge K. D. Skilnick)