J.A.S. v. T.E.J. Date:, 2015 BCPC 308

Citation: J.A.S. v. T.E.J. Date: 20151030 2015 BCPC 0308 File No: 1344009 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J. A. S. APPLICANT AND: T. E. J. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Appearing on their own behalf: J. A. S.l Counsel for the Respondent: S. Elson Place of Hearing: Prince George , B.C.

Date of Hearing: September 21, 2015 Date of Judgment: October 30, 2015 BACKGROUND [ 1 ] The parties, T. J. and J. S. had lived together for 18 years when it all came to an end in the early morning of June 22, 2013. During the course of an alcohol fueled argument, the argument turned into a physical assault on Ms. S. by Mr. J. [ 2 ] It would seem from the evidence, and in the manner in which the parties testified that there were issues simmering between them leading up to the incident. I note the evidence of Ms. F. J., Mr. J.’s mother, that she had past concerns about the alcohol consumption of Ms. S. and Mr.

J. [ 3 ] The parties had been drinking since around noon on June 21, 2013. The children were with them at the events at which they consumed alcohol. The four of them returned home at 2 AM in a taxi due to the level of intoxication of Ms. S. and Mr. J. [ 4 ] The children were present during the fight. The parties were separated by Ms. F. J. and Ms. S.’s mother who were called to intervene. Ms. S. and her children went to her mother’s house. Mr. J. remained in the family home.

During and after the assaults he had punched holes in the cupboards and in the drywall solar is visible damage that was not repaired until after Ms. S. and the children returned home. [ 5 ] Mr. J. was subsequently arrested and charged for three counts of assault January 22, 2014. He entered a plea of guilty to a charge of assault on Ms. S. The charges against Mr. J. were stayed and he was given a conditional discharge with 12 months’ probation. The issue of family violence played a role in this trial. [ 6 ] The main issues before the Court relate to the

schedule for Mr. J.’s parenting time, payment of child support by Mr. J., and payment of spousal support to Ms. S. [ 7 ] There is no dispute that Mr. J. and Ms. S. are both Guardians as contemplated by s. 39 of the Family Law Act SBC 2011, C 25. [ 8 ] The parties also agree to share parental responsibilities as set out in s. 41 of the Family Law Act . [ 9 ] These reasons will examine the issue of family violence and the

schedule for Mr. J.’s parenting time under the criteria of

section 37 of the Family Law Act as to the best interests of the children PARENTING ARRANGEMENTS IN THE BEST INTERESTS OF THE CHILDREN [ 10 ] Mr. J. and Ms. S. have two children, J. S. J.-S. born [dob], and M. S. J.-S. born [dob]. One of the themes of the evidence in this case is the effect upon the children of witnessing the physical violence between their father and mother. This is an issue that Ms. S. raised a number of times throughout the evidence in this trial. I have considered the following facts: 1. After receiving his conditional discharge, Mr.

J. was ordered by the court to undergo counseling under the direction of his probation officer. 2. Exhibits 16, 17 and 18 are copies of certificates received by Mr. J. after completing the counselling. Exhibit 17 pertains to an anger management course that Mr. J. completed in the fall of 2013. It should be noted that Mr. J. undertook this counseling while he was on a recognizance. In other words, he had taken this counseling on his own from the John Howard Society before entering his guilty plea on January 22, 2014. Subsequent to the guilty plea, Mr.

J. completed counseling relating to relationship violence program and a program completion concerning respectful relationships. 3. Mr. J. testified that he drank considerably less alcohol than he had before June 22. He testified that he did not drink in front of his children for a full year after he began exercising his the parenting time. 4. Mr. J. testified that during the some of his counseling sessions J. and M. were in attendance. 5. Ms. S. wishes to see the children participate in the Rainbow Program.

This is a program that helps children whose parents are separated, divorced, or a witness of family violence. Mr. J. testified that he had talked with the children about going to the Rainbow Program but they stated they were not interested. 6. Mr. J. also testified that the children are aware they can talk to him about the family violence they witnessed. According to Mr. J., the children just aren’t interested in pursuing the matter would prefer to focus on moving on. [ 11 ] I note from section 37(2) (g) (

h) and (

i) that the best interests of the child requires the court to consider family violence in the context of the child safety, security, and well-being. The court must determine if the family violence was directed at the child or another family member and, if so, how this family violence may impair a parent’s ability to care for the children or meet the children’s needs. It also requires the court to consider the risk of future violence directed at the children.

[ 12 ] What I find is that the act of violence between Mr. J. and Ms. S. only occurred once in 18 years of their relationship. In addition to the counseling that I have described, Mr. J. has made every effort subject to his conditions to have contact with the children and be an active parent. [ 13 ] There is no evidence that the violence of June 22, 2013 was in any way directed at the children. Ms. S. testified that she was not exactly sure of the sequence of events other than the fact she was assaulted by Mr. J. I note that Crown counsel stayed the two charges of assault as against J. and M.

I conclude, therefore, that Mr. J. is not a risk to his children. [ 14 ] Ms. S. did introduce into evidence that Mr. J. had breached his conditions on three occasions. These incidents she reported to the RCMP. The incidences involved are:

a) that Mr. J. delivered a child maintenance payment directly to Ms. S.’s residence;

b) that Mr. J. attended an art exhibit at the children’s school upon the invitation of M.; and

c) that Mr. J. told M. to tell her mother his conversations with his daughter was none of her business when her comments disrupted Mr. J.’s exercise of phone contact with his daughter. This phone contact with M. took place over a speakerphone and Ms. S. became involved in the conversation. [ 15 ] It is worthwhile to note it is only the last incident that led to a charge against Mr. J. for a breach of conditions.

It is also worth noting that he entered a guilty plea and received a conditional discharge. [ 16 ] On January 23, the day after entering his guilty plea to assault and receiving a conditional discharge, Mr. J. made a first appearance in family remand court. On that date Mr. J. consented to an order of the court that establish telephone access and provided in person parenting time of one hour per week in a public place. Mr.

J. also consented to making child support payments the amount of $1,327.00 per month for both the children, commencing the first day of February 2014. [ 17 ] At an interim hearing conducted over five days between May 27 to October 7, 2014, the Court ordered Mr. J. was to have weekend access every second weekend. This judgment was rendered on November 19, 2014. The parties were back in court on December 16, 2014 in order that Mr. J. could obtain an order providing additional parenting time over the Christmas holidays. [ 18 ] Mr. J. now seeks an order of the court to have parenting time on a week on week off basis.

Ms. S. is opposed to this for the following reasons:

a) there is still not enough consideration given the impact of events on the children;

b) there should be more of a progressive integration of Mr. J. and the children;

c) transition would be too much stress on the children; and

d) Mr. J.’s new relationship with Ms. J. K. is a new factor of which Ms. S. was not given notice. [ 19 ] Mr. J.’s counsel pointed out that last summer he had the children for three weeks holidays and there were no issues or complaints by either the children or Ms. S. [ 20 ] As noted previously, when Mr. J. brings up the idea further counselling, the children say they are not interested. Mr. J. has also entered into a new relationship with J. K. They moved in together, with Ms. K.’s two children, two weeks before the trial. Ms. K. testified that her children get along well with Mr. J.’s children. Mr. J.’s evidence is that his children are fine with the arrangement. [ 21 ] Mr. J.’s shift

schedule as set out in Exhibit 10 appears to be complicated, but his explanation provided to the court in his testimony shows a well thought out plan when the children are in his care. I accept the evidence of Mr. J., Ms. F. J. and J. K. that Mr. J. is actively engaged with his children and their activities. He has planned his parenting time to maximize his involvement with M. and J. [ 22 ] It is for these reasons that I conclude that a week on week off

schedule of parenting time, as set out in Exhibit 10, is in the best interest of the children. SPOUSAL SUPPORT [ 23 ] Ms. S. seeks spousal support from Mr. J. Her claim is set out as follows: a) 2013: August to December $1,006.00 per month for a total of $5,030.00; b) 2014: January to December $867.00 per month for a total of $10,404.00; and c) 2015: January to September $182.00 per month for a total of $1,038.00. Total Spousal support $17,072.00

[ 24 ] At the time of separation, Ms. S. was working as a social worker in the emergency ward at the hospital in Prince George. In 2012 her income was $52,689.00. In 2013 her income was $53,190.64. [ 25 ] Ms. S. testified that after the assault she had an emotional reaction and was unable to work at her job. The rationale was that the work required helping women who were the victims of domestic violence. She was unable to continue that work. In 2014 Ms. S. earned a total of $73,168.81 while she was off work.

From that total I deduct $16,488.05 from the total income of $56,000.00 once the income that represents a withdrawal from her RRSP. I find her income for that year is $56,000.00. [ 26 ] Ms. S.’s testimony was that she applied for disability benefits both with employment insurance and later with her long-term disability carrier, but there was a lag in the claims being processed and monies paid out. After years of donating to Christmas hampers, in 2013 she actually had to apply for such a Christmas hamper for her and the children. [ 27 ] During 2013 and 2014, Ms.

S. was stressed trying to make ends meet and pay the bills. She explained to the Court her employment insurance ended March 2014 and for eight months she had no cash flow until she received a lump sum in November from the long-term disability carrier. In order to cover the gap, she had to cash in her RRSPs. [ 28 ] As I understand her evidence, since January 2015 she has been working part-time, but due to the absence of other employees, has been working an average of 7.5 hours a day, in other words almost full-time.

She obtained a full-time position on June 8, 2015 and since that time has taken on a new job in which she is in now. [ 29 ] The objectives of spousal support is defined in s. 161 of the Family Law Act of British Columbia, which states as follows: 161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives: (

a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship; (

b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child; (

c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (

d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 30 ] The difficulty with Ms. S.’s claim is that looking at her Financial Statement filed in this matter, and her own testimony, she has not suffered an economic loss. She is, in fact, financially independent and is gainfully pursuing her career as a social worker. This year she will earn more money than she has in the past. I can appreciate however that the last two years have been financially difficult for Ms.

S. [ 31 ] That being said, I accept that she suffered some economic disadvantage during the transition to a single parent household, and being off work. Her calculations I think are too high given the facts in this case. In those circumstances I would conclude Ms. S. should receive spousal support for eleven months of 2014 in the amount of $6,391.00. This will represent payments of $581.00 per month. CHILD SUPPORT [ 32 ] Mr. J. did not pay child support for 2013. He did contribute to the household expenses for July and August 2013.

On January 23, 2014, he entered into a Consent Order to pay at $1,327.00 a month in child support. Counsel for Mr. J. states there is a shortfall in child support in the amount of $4,587.00, given Mr. J.’s income in 2014 of $115,983.76. [ 33 ] Ms. S. seeks a retroactive order for child support. This is calculated, Ms. S. says, over and above the $1,327.00 per month Mr. J. began to pay in February 2014. [ 34 ] This raises the issue of retroactive orders for child support. The leading case is the Supreme Court of Canada decision in D.B.S. v.

S.R.G. 2006 SCC 237 . [ 35 ] In addressing retroactive orders for child support, the court said at para. 116: I agree with Paperny JA, who stated in D.B.S. that courts should attempt to craft the retrospective award in a way that will minimize the hardship (paras 10 and 106).

Statutory regimes may provide judges with an option of ordering retroactive award as a lump sum, a series of periodic payments or a combination of the two . . .” Having established that the retroactive award is due, a court will have four choices for the date which the award should be retroactive: the date when an application was made to the court; the date when formal notice was given to the payor parent; the date when effective notice was given to the payor parent; and the date when the amount of child support should have been increased.

For the following reasons, I adopt the date of effective notice as a general rule. [ 36 ] The court goes on to discuss how effective notice may be provided. Discussion between the parents is seen as a better way than simply filing a court application. It will all depend on the facts. It must be remembered that Mr. J. was on a probation order from January 22, 2014 to January 2015. One of the conditions was communication about the children was to be through a third party. Effective notice to Mr. J. was when Ms. S. filed her Application under the Family Law Act in December 2013.

Child support was set on January 23, 2014. Neither party asked for a review which could have been done during the three days of trial in 2014. [ 37 ] I take the date of effective notice as to a review of child support is December of 2014. On that basis, and the Divorce Mate

calculations submitted by both parties, I order that a lump sum payment suggested by counsel for Mr. J., representing the shortfall in child support of $4,587.00 be paid to Ms. S. CURRENT CHILD SUPPORT [ 38 ] As this court has determined that the parenting time be divided on a week on week off basis, Mr. J.’s child support will be adjusted accordingly considering the Divorce Mate materials filed. On October 1, 2015, Mr. J. will pay $541.00 per month to Ms. S. for child support. I note in making these orders for spousal support and child support the estimated 2015 income of Mr.

J. in the amount of $107,058.00 and Ms. S. in the amount of $67,837.00. The child support payment recognizes the disparity of the incomes pursuant to s. 9 of the Federal Child Support Guidelines. [ 39 ] The Court orders that: 1. The parties are each Guardians of the children; 2. The parties shall each have all parenting responsibilities as detailed in

section 41 of the Family Law Act ; 3. The children shall be in the care of each party on an alternating weekly basis as follows:

a) the children shall be in the care of Ms. S. from Monday after school the following Monday before school commences effective September 28, 2015 and each alternative week thereafter;

b) the children shall be in the care of Mr. J. from Monday after school to the following Monday before school commences effective October 5, 2015 and each alternative week thereafter;

c) in the event that Monday is a statutory holiday [not already addressed in holiday time] or professional development day, the parties shall exchange the children at 6 PM for such other time as they agree from time to time 4. The children shall be in the care of Ms. S. each Mother’s Day from 9 AM to 7 PM; 5. The children shall be in the care of Mr. J. each Father’s Day from 9 AM to 7 PM; 6. Each party shall have reasonable telephone contact with the children while in the care of the other parties; 7. The parties shall share the care the children during Christmas school break each year on an alternative weekly

schedule and such or such other schedules as might be agreed to from time to time with the following exceptions:

a) the children shall be in the care of Ms. S. from 3 PM on Christmas Eve until 3 PM on Christmas Day in 2015, and each alternative year thereafter;

b) the children shall be in the care of Mr. J. from 3 PM on Christmas Eve until 3 PM on Christmas Day in 2016 and each alternate year thereafter;

c) the children shall be in the care of Mr. J. from 3 PM on Christmas Day until 3 PM on Boxing Day in 2015 and each alternate year thereafter;

d) the children shall be in the care of Ms. S. from 3 PM on Christmas Day until 3 PM on Boxing Day in 2016 and each alternate year thereafter; 8. Each party shall have a three week uninterrupted access with the children each summer in the following terms:

a) Mr. J. shall have the first option of selecting his vacation. In 2016 and each alternate year thereafter;

b) Ms. S. shall have the first option of selecting her vacation in 2017 and each alternative year thereafter;

c) The party with the first option of selecting their vacation shall notify the other party of their intended vacation not later than March 1 in each year;

d) The party who does not have the first option of selecting their vacation shall notify the other party of their intended vacation not later than March 10 in each year and each party will confirm with the other their vacation with the children not later than April 30 of each year;

e) Each party shall notify the other prior to removing the children from a 100 km radius of the City of Prince George and shall advise the other party of the location and duration of any travel with the children outside of 100 km radius of the city of Prince George;

f) Each party shall notify the other of any significant matter affecting the children, or either of them;

g) Each party shall notify the other of any change of residential address or phone number forthwith upon making such a change; 9. Commencing October 1, 2015, Mr. J. shall pay to Ms. S. child support the offset amount of $541 per month; 10. Mr. J. will pay to Ms. S. the amount of $6,391.00 for spousal support and retroactive child support in the amount of $4,587.00 for a total of $10,978.00 (the arrears);

11. Enforcement of the payment of the arrears by Mr. J. shall be stayed pending resolution of the property issues between the parties in the British Columbia Supreme Court. R. W. Callan Provincial Court Judge Province of British Columbia