B.B. v. J.A.D. Date:, 2013 BCPC 108

Citation: B.B. v. J.A.D. Date: 20130509 2013 BCPC 0108 File No: 12659 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE INTERJURISDICTIONAL SUPPORT ORDERS ACT , S.B.C. 2002 c. 29 BETWEEN: B.B. APPLICANT AND: J.A.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: Mr. J.A.D.

Place of Hearing: Kamloops , B.C. Date of Hearing: February 6, 2013 and April 25, 2013 Date of Judgment: May 9, 2013 [ 1 ] This is an application pursuant to the Interjurisdictional Support Orders Act initiated by B.B. from the State of New York with respect to a child, H.J.D., born [DOB]. In my Reasons for Judgment dated October 22, 2012, I pronounced that J.A.D. is the father of this child but noted that he had never met or had any contact with her. It seems Mr. J.A.D. is not entirely persuaded that H.J.D. is his daughter. [ 2 ] In any event, the application before me was to increase Mr.

J.A.D.’s contributions for child support on the basis of an increase in his income and to provide medical health insurance coverage for H.J.D. [ 3 ] At the conclusion of the proceedings on October 22, 2012, I was not satisfied that I had sufficient financial information from Mr. J.A.D. and adjourned it so that he could prepare a proper financial statement. Mr. J.A.D. has subsequently provided that information. [ 4 ] Because Mr. J.A.D. was also pleading hardship claiming that his income had been reduced after going into business for himself, and because Mr.

J.A.D. was concerned that H.J.D. no longer lived with her mother, I referred the matter back to the originating jurisdiction, being the State of New York, for proof of certain things:

a) That B.B. continues to be the parent responsible for the support of the child;

b) Legal basis for Ms. B.B.’s entitlement to child support if the child no longer resides with her;

c) Basis for which a foreigner can obtain medical health insurance coverage in the Province of British Columbia for the child who resides outside of the country on a permanent basis;

d) Information with respect to whether Ms. B.B. has herself acquired or can acquire medical coverage for the child, including the nature and extent of the medical coverage;

e) Complete financial information for Ms. B.B. and all members of her household contributing to the household expenses;

f) Information with respect to why Ms. B.B. works only as a babysitter given her college education;

g) Information with respect to any other dependents Ms. B.B. may have. [ 5 ] Mr. J.A.D.’s information indicates that his income in 2008 was $92,600.00. This was when he was employed in the logging industry before his company laid him off. In 2009, his assessment indicates he earned $40,998.00. In 2010, his total income was $7,800.00. In 2011, his total income was $37,500.00. [ 6 ] Mr. J.A.D. re-attended at court on April 25, 2013. He indicated that business is doing poorly this year. He has flown perhaps seven hours since his last appearance in October.

He is borrowing money from his brother-in-law to make ends meet. [ 7 ] In the meantime, his spouse is working two days a week but they have three young children at home. I queried why Mr. J.A.D. is not home caring for the children. He answered that he goes to the hangar every day hoping business will come and cannot take the children in the event that he does get a flight. I asked Mr. J.A.D. when he was going to look at alternative employment.

He is in a financial bind because he owes so much money on his leased helicopter that it could be repossessed; but it is not because no one is using helicopters, so the owner has left it with him. Certainly if Mr. J.A.D. continues on this course, his annual income will not even be as high as the $19,380.00 he estimated when last before the court. [ 8 ] The originating jurisdiction did forward some responses to the inquiries I made. The form of evidence comes by way of an affidavit of a support investigator.

The information consists of two short paragraphs, one entirely made up of the identity of the deponent, Lisa Wiggins. The other paragraph is entirely hearsay if not double hearsay. Basing her evidence upon a telephone conversation with Ms. B.B., Ms. Wiggins deposes that Ms. B.B. does have the child residing in her home and continues to receive publicly funded food stamps and Medicaid benefits for the child. This was confirmed, apparently, through the Department of Social Services computer system. [ 9 ] The affiant does not say who performed this check. The affidavit does not disclose the amount of income Ms.

B.B. receives. Ms. B.B. told the deponent that she is no longer a daycare provider and has married. She was only working a few times per week but her services were no longer required. Her current husband is incarcerated and not scheduled to be released until January, 2013, being approximately six weeks after the deponent made her affidavit. He has no employment. Ms. B.B.’s only source of income is the child support she receives from Mr. J.A.D. and another non-custodial parent of another child.

That child support is not disclosed in the affidavit but is perhaps the particularized sum she identified in her Petition. I cannot tell with any certainty. [ 10 ] Ms. B.B. told the deponent she is unable to work and has applied for federally funded social security income because she suffers from an anxiety disorder. There is no doctor report to support this. She feels that she cannot provide daycare services without her spouse being present because she suffers from panic attacks. It begs the question how she can provide daycare services in the presence of a person who has a criminal record.

[11] This is another extremely frustrating case arising from the inadequate interjurisdictional support order provisions. It is afrustrating process for the court to deal with these applications without the applicant present or an advocate for the designated authority. I have the benefit of and am grateful for the decision of Justice McEwan in the decision of Leduc v. Leduc, [2013] B.C.J. No. 84.

Hisdecision sets out precisely the struggle I find I have with this application. [12] In Leduc, Justice McEwan says this at paragraph 8: “In Leduc, the application is a near inscrutable maze of tick boxes and schedules, “sworn” in a fashion that would never bind a perjurer,and surrounded by other materials that are completely unconsolidated. It is not, by any means, “readily amenable to decision”.” [13] Justice McEwan went on to consider the purpose of the legislation and its dysfunctions as set out by Smith, J.A. in the decisionof Mathers v.

Bruce, 2005 BCCA 410 , 2005 B.C.C.A. 410, then concluded: 10 This précis should suffice to give a sense of how difficult it is for a judge to try to construe the statute with any confidence in achambers hearing. 11 It is obvious that even relatively uncomplicated ISO case may take some time to assess; to determine whether the material isadequate; to determine what law to apply, and to determine how the application fits within the legal framework.

The DesignatedAuthority clearly does nothing to put the material in order but simply forwards it to the court if it appears that the respondent lives inBritish Columbia. 15 It is simply not possible to accommodate a mail-in stream of files requiring judicial investigation (often, as in Walker, fruitlessly),even if the practice were otherwise unobjectionable.

As it is, any upward delegation of clerical or preparatory work or research to thejudiciary to avoid spending money on trained staff or lawyers can only come at the expense of time that should be devoted to the thingsonly judges can do. 16 Apart from these essentially pragmatic observations, however, the expectations embedded in the legislation seriously warp thebasic features of judicial decision making and, in my view, betray a significant misunderstanding of the role of the judicial branch ofgovernment. [14] Justice McEwan had before him a lawyer from the Attorney General’s office, who was not a family lawyer but appeared as anamicus curiae before him to address the legislative scheme and why counsel were not presented.

Justice McEwan had this to say atparagraph 20: 20 ... I was simply saying that I expect these cases to proceed like any others. That ordinarily means that if a party does not appear, thematter is struck off the list, not that the court would presume to tell the government to send a lawyer.

If it is important to the governmentthat these matters be heard, on the other hand, the means of providing representation are entirely in its hands. [15] Justice McEwan went on to conclude at paragraph 22: 22 The Walker submission suggests that the legislative intent of the ISO Act is to relieve applicants of the "cost barrier of forcing theapplicant to [appear] by counsel". Until the last few years, that would have implied an undertaking by the government to provide accessto legal assistance, by one means or another.

What is new is that the ISO Act is also specifically designed to relieve government of theresponsibility of ensuring representation. This is accomplished by legislatively conscripting the judiciary to act as pro bono counsel forthe applicants. There are practical as well as theoretical difficulties with this. [16] Justice McEwan highlighted the challenges of not having counsel present as follows: 23 As I indicated earlier the materials the court is expected to review generally amount to scribbles on a multi-purpose form surfeitedwith inapplicable tick boxes.

Information that should all be in one place is inconveniently scattered through a series of schedules. The"facts" are simply asserted to be true without any indication of the source of the applicant's knowledge ... 25 The Designated Authority purports to tell the respondent what he believes the materials and the Notice of Hearing mean,particularly that it is "mandatory" that the respondent come to court, in spite of his strong position (asserted in Walker) that the courtcannot oblige the applicant or anyone on his or her behalf to attend.

The letter gives the distinct impression that the court is fullyintegrated into an administrative program controlled by the Designated Authority. 26 What issues from the court, in addition to the applicant's materials and the letter, is a Notice of Hearing. This is a brief documentordinarily premised on an earlier exchange of a petition and response. In ISO cases, the respondent is not given an opportunity to statehis or her position before the matter is set down, but is immediately summoned to court pursuant to s. 29(4)of the ISO Act: 29

(4) The British Columbia court receiving a support variation application under subsection (1) must serve on the respondent (

a) a copy of the support variation application, and (

b) a notice requiring the respondent to appear at a place and time set out in the notice and to provide the information or documentsrequired by the regulations.

29 Assuming a respondent attends court, there are essentially two ways a "hearing" can go. The court can try to preserve the vestige ofan open process and an open mind by reading the material only in the presence of the respondent, and then asking him or her what he orshe has to say, a rather time wasteful exercise in weighing confusing and unverifiable material against the viva voce presence of therespondent.

This is thoroughly asymmetrical, and inevitably appears to reverse the onus of proof by calling the respondent to account forhimself or herself based on the assertions of a person who has not borne the risk of attending. 30 The other alternative is worse.

If the court actually behaves as the legislation anticipates, and reviews the material ahead of time,pointing out any deficiencies and offering advice to the applicant (through the Designated Authority) before confronting the other party,it becomes fully implicated in the applicant's case. 40 While these reasons were being prepared, the Court of Appeal decision in Herriman v.

Beresford, 2012 BCCA 437 was delivered.There, with the assistance of a "clear, careful and succinct analysis of the framework of the legislation" from counsel for the DesignatedAuthority, the court corrected an "error" made by the trial court judge, sitting in chambers with no such assistance. It is of more thanpassing interest that the legislation deems it appropriate to lay these "straightforward" cases before an unassisted trial court judge butdoes not similarly provide that they will go, in all their simplicity, before an appellate court on the same basis.

Had that been the process,the underlying issues might have been more apparent. The Court of Appeal noted the trial court's "obligations" under the statute, but,having heard from only the Designated Authority, had no cause to consider whether the circumstances in which the chambers judge wasexpected to decide was the real problem. The Court of Appeal found that the chambers judge had failed to conduct a proper analysisunder s. 32(3), that is, that it had failed to complete its responsibilities, which include duties to:

a) serve the respondent;

b) review the file;

c) make recommendations as to any deficiencies on the material; and

d) do the research to apply the proper choice of law. 41 The current version of the statute, as I read it, does not collect these obligations in one provision but they are still part of themandate. All of these are normally and properly obligations of the parties or their lawyers. 44 Valente makes it clear that the adjudicative function of the courts (and matters directly ancillary to it) cannot be interfered with bythe Executive Branch of Government.

To do so would impair the court's functions as an "independent and impartial" adjudicative body.Legislation which interferes with the adjudicative function of the court will, for Charter purposes, be found unconstitutional. [17] Having revisited the role of judiciary on an application in reference to British Columbia v. Imperial Tobacco Canada Ltd.,2005 SCC 49 , [2005] 2 S.C.R. 473, Justice McEwan concludes at paragraph 50 and 51: 50 ...

The concerns I have expressed are not about the substantive content of the ISO legislation in the sense addressed in ImperialTobacco, but with the way the statute purports to direct how the court will adjudicate. It enlists the court in the role of counsel andpurports to oblige the court to conduct an asymmetrical proceeding, giving the appearance of pre-judgment, and of the application ofdifferent standards to the parties. It appears to effectively reverse the onus, and, in any practical sense, relieves the applicant of theresponsibilities ordinarily imposed on litigants.

It directly interferes with the court's adjudicative role in a manner that does not respectthe court's independence or its responsibility to ensure impartiality, in appearance and in fact. 51 From a broader perspective there is not much substance to judicial independence if, statute by statute, the court can be convertedinto a decision making panel obliged to conduct compromised adjudicative proceedings in the service of government policy objectives. [18] As in the Leduc case, the material purporting to be sworn evidence is comprised of tick boxes.

In this case, there are instancesof changes made to the “general testimony” which have been covered with white-out but not initialled. It is unclear whether the changeswere made before or after the testimony was sworn.

Part V under Dependent Children says that paternity is established but there is noevidence how it was established. Given Mr. J.A.D.’s assertion that he is not satisfied he is the father, I have no means to resolve thisissue apart from the fact that he has done nothing proactive about challenging his paternity. Under

Part VII, Ms. B.B asserts that theobligor’s earnings have increased substantially but provides no basis for this other than her statement that he runs his own commercialhelicopter business and some unmarked internet pages that appear to have been printed off and attached to the testimony without anyreference. She has also marked “the needs of a party or of the child(ren) has substantially increased or decreased” but there is nothing inthe Petition or its attachments to explain how these needs have increased, whose needs they are that have increased or to what extent. Inaddition, Ms.

B.B. has two other children residing with her, one being 11 years old, which she says she receives $500.00 per month insupport for but there is no indication of whether this is an appropriate amount of child support. Given that Mr. J.A.D. has advanced ahardship claim, this is information which ought to be before the court. There is an additional child residing with her who is just over 17

years old for whom she receives no child support. There is no explanation why which is also an important consideration where a hardship claim is made. With no one here to advocate on behalf of Ms. B.B. or to provide the evidence necessary for the court, there is nothing upon which I can base my decision on the issue of hardship. [ 19 ] At best, Mr. J.A.D.’s income is $19,380.00 per annum. I had made requests of the jurisdiction in order to obtain better evidence to assess the hardship assertions of Mr. J.A.D.

The evidence I received in return, if it can be called that, is as unreliable as the original support Petition. I have no information with which to assess the relative incomes of the household. It is not enough to simply assert what Ms. B.B. receives by way of state aid. There are unanswered questions about her underemployment, about the income she should be receiving from the fathers of her other children, and the employment prospects of her new husband. This court simply cannot guess what the parties might ask or cross-examine the other parties upon.

Nor can the court continue to try to piecemeal together in bits and pieces that evidence which the court does require in order to resolve these issues. [ 20 ] Ms. B.B. has asked that Mr. J.A.D. obtain and maintain medical insurance coverage for the child. Mr. J.A.D.’s evidence is that the only medical coverage he has for his family is that which he pays for through the British Columbia Medical Insurance Plan. There is no evidence before me whether this can extend to a child outside of British Columbia, who has never lived in British Columbia, nor ever resided with the parent.

It is not for the court to chase down this external evidence on behalf of parties. [ 21 ] I am also aware of no authority for me to order that Mr. J.A.D. seek out and obtain medical coverage for a child who is not ordinarily a resident in British Columbia. In any event, Ms. B.B. has already applied for and receives Medicare for that child in the State of New York. There being no basis for me to make that order, I dismiss the application. [ 22 ] Similarly, Ms. B.B. is not working.

Daycare expenses are considered a special or extraordinary expense where the daycare is necessary for the parent to attend work, or as a result of the other parent’s illness, disability or education or training for employment. It is clear that Ms. B.B. does not require daycare services in order for her to attend work. While Ms. B.B. has told the support investigator that she is unable to work due to an anxiety disorder, there is no medical evidence before me of that. There is also no evidence that she is taking any education or training that would lead to better employment.

I dismiss her application for contribution to the daycare expenses. [ 23 ] I am not satisfied on the evidence before me that Ms. B.B. has any impediment to employment or that she is unable to obtain employment that would not provide her a better income than part time daycare. I have no evidence of her income with which to assess the balance of the standard of living as between Mr. J.A.D. and Ms. B.B. I therefore allow Mr. J.A.D.’s application for hardship; I dismiss Ms. B.B.’s application to increase his child support obligations; and I suspend, on the basis of hardship, Mr.

J.A.D.’s child support obligations effective January 1, 2013. [ 24 ] I have expressed to Mr. J.A.D. my concern that there is only so long he can persist in this helicopter business before he has to make a decision about relinquishing the lease on the helicopter and pursuing other forms of employment in order to meet his obligations. I therefore limit the suspension of Mr. J.A.D.’s child support obligation until December 31, 2013. Thereafter, his child support obligation will be based upon his annual income from year to year. Effective January 1, 2014, Mr.

J.A.D.’s child support obligation based on an annual income of $19,380.00 is $169.00. Mr. J.A.D. shall provide his Income Tax Return and Notice of Assessment to Ms. B.B. by June 1 st of each year commencing June 1, 2014, and Mr. J.A.D.’s child support obligations shall be adjusted in accordance with his income and the Child Support Guidelines effective June 1 of each year. ________________________ S.D. Frame Provincial Court Judge