J.R.B. v. K.R.H. Date:, 2013 BCPC 172

Citation: J.R.B. v. K.R.H. Date: 20130530 2013 BCPC 0172 File No: 13458 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: J.R.B. APPLICANT AND: K.R.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: Mr. K.R.H.

Place of Hearing: Kamloops , B.C. Date of Hearing: May 1, 2013 Date of Judgment: May 30, 2013 [ 1 ] This is an application pursuant to the Interjurisdictional Support Orders Act brought by J.R.B. against K.R.H. respecting support for the children, L.R.H., born [DOB], and K.C.H., born [DOB]. [ 2 ] The parties entered into a consent order on April 18, 2011 here in the Provincial Court of British Columbia providing that they shall have joint custody and joint guardianship of the children, with primary residence of the children to be with Ms. J.R.B. Mr.

K.R.H. was to have reasonable and generous access to the children. He was found to be a resident of British Columbia with an annual income of $68,000.00. The parties agreed to a lesser amount for child support being $175.00 bi-weekly. Mr. K.R.H. was also to pay special and extraordinary expenses to Ms. J.R.B. in proportion to their respective incomes. They were to disclose to each other copies of their income tax returns and notices of assessment each year. [ 3 ] The application before me is on a document titled “Form A”. It consists of various blanks to be filled in and boxes to be ticked.

The third page of Form A has a jurat indicating that Ms. J.R.B. swore the evidence contained in that Form A application and each of its attachments is true. On the Form E she ticked the box that says, “I ask for an order that the Respondent obtain or maintain medical or dental insurance coverage for the child(ren)”. [ 4 ] There is a Form F which also appears to be part of the sworn documentation which asks the court to impute the Respondent’s income at $70,000.00 per annum if he does not provide any financial information. The box associated with that request says, “My evidence for this claim is in this form”.

However, there does not appear to be any supporting evidence. She has stated her belief that Mr. K.R.H. has an annual income of $67,000.00 to $70,000.00 with a tick box indicating the Respondent’s last known source of income is “employment (include occupation, name and address of employer, other information)” and a box in which Ms. J.R.B. has written “employment as heavy duty mechanic”. On the following page she noted in a blank that the most recent information she has about the Respondent’s source of income is “income summery (sic) for child support claim. Part of a (sic) income

summary”. She has ticked no boxes under that section. In the following

section she wrote under another unticked box a list of employers Mr. K.R.H. must have had in the past, but not with the source of her knowledge. She attached a properly sworn financial statement prepared by Mr. K.R.H. in 2010 indicating he was then a commercial transport technician at Valley Roadways earning $70,720.00 per annum. This is the most reliable evidence in her application. Underneath that tick box is another tick box that Ms. J.R.B. has ticked saying, “Child support of $______ per month, or the amount payable under the child support guidelines table used by the court”.

I suppose I am to assume that this means she is seeking the guideline amount. [ 5 ] While Ms. J.R.B. indicated in her evidence that she has a full time job, there is no indication of what that full time job is or what she earns. [ 6 ] Below that information is a tick box which Ms. J.R.B. has not ticked setting out special or extraordinary expenses. However, she has completed the box below that tick box which suggests she is seeking contributions for preschool and for swimming lessons. The total costs of preschool for each child is $200.00 per month, and she is claiming 50% of that from Mr. K.R.H.

The swimming lessons for the children are $70.00 per year each for which she seeks $30.00 per year from Mr. K.R.H. There are no receipts for the child care or the swimming lessons. However, Form M to the application states there has been a change in circumstances for the applicant which are: Come September of 2012, our oldest daughter will start preschool, circumstances have also changed since our last court, as I have a full time job and pay a private daycare $250.00 every week (five days) on my own.

I will be hoping to put our oldest and youngest in a govt daycare when our oldest starts preschool, which in turn can be more expensive. As I will have to pay any day girls are not attending. Permanently I am hoping. This change will be for the better. [ 7 ] Under the child’s change in circumstances, she writes: “August 2012 London K.R.H., oldest daughter starts preschool and both children are old enough to start social activities.” [ 8 ] All I can deduce from this “evidence” is that there is no substantiating evidence of the daycare costs which are either $200.00 per month or $250.00 every week.

It appears from this evidence that neither child has yet started preschool or daycare. The only other supporting evidence is what appears to be a register sent by e-mail from someone named Marysa Racher indicating that certain amounts have been paid for child care for both children from May 24 of an unspecified year to the “present date”, which appears to be December 23, 2011. This e-mail, which seems to have been sent December 23, 2011, sets out a separate heading for January, 2012 to February, 2012 with a total of $500.00 and a February current total of $2,350.00.

I can make no sense of this register, its origins, or whether it in fact relates to daycare costs incurred while Ms. J.R.B. was working, given its stale dated nature. It is also entirely unclear who altered the document to update it. [ 9 ] I can also deduce from this evidence that the children have not started swimming lessons at this point. It is unclear whether they have been registered or even whether Ms. J.R.B. has consulted with Mr. K.R.H. before embarking on this plan. [ 10 ] Mr. K.R.H. attended court on February 27, 2013 pursuant to the Notice of Hearing requiring him to do so.

He was unable to obtain assistance for duty counsel because his income level is too high to qualify for that assistance. Neither Ms. J.R.B. nor anyone for the Designated Authority under the Interjurisdictional Support Order Legislation appeared.

[ 11 ] I can be satisfied that the original order made in 2011 is a properly obtained order because it is one that originated in this jurisdiction and was made by consent with both parties present. It appears that there may or may not be some proceedings that Ms. J.R.B. has also started in Alberta, but Mr. K.R.H. was unable to enlighten the court other than to say he thought they were going to mediation. [ 12 ] Mr. K.R.H. testified that he is a heavy duty mechanic with Peterbilt and earns approximately $72,000.00 per annum.

He had not filed his income tax returns for 2011 or 2012 and so that was his best estimate. [ 13 ] Mr. K.R.H. said that the reason the consent order did not require him to pay the full amount of child support was because it was to reflect his travel expenses to have access to the children in Alberta. On that basis, he objected to the application being brought at all to increase his contributions. [ 14 ] Mr. K.R.H. does not have an objection to London or Kennedy going to preschool but he wants Ms. J.R.B.’s contributions for the daycare costs he incurs for the one-third of the year that he has the children.

Their current arrangement is four weeks with their mother and two weeks with their father. This will obviously change when the children start Kindergarten. Mr. K.R.H. appreciates that adjustments to this

schedule will have to be in an application on notice to Ms. J.R.B. He said that he did not agree to her moving with the children to Alberta but did not oppose it because he did not have legal advice at the time. He has every intention of fighting to have the children brought back to British Columbia. [ 15 ] Mr. K.R.H. said that he had no objection to the children having swimming lessons provided there is a receipt from a legitimate business offering the lessons. [ 16 ] With respect to Ms. J.R.B.’s income, she has not been providing him with her financial information as required by the court order.

He only knows that for some time she had been working as a hotel housekeeper but believes she is now working at a clothing store in a mall. Beyond that, he does not know what she is earning or whether she is in fact full time. [ 17 ] Furthermore, Ms. J.R.B. was to make reasonable efforts to meet Mr. K.R.H. in Golden for the exchanges but he has predominantly been responsible for driving all the way to Red Deer at his expense entirely. It is 10 hours in each direction for him. He cannot drive the full 20 hours in a single day so he incurs hotel room costs.

He said in a recent example of access he incurred $400.00 travel costs. He then has to take the children back to Red Deer, adding another $400.00 in travel costs. [ 18 ] Mr. K.R.H. estimates that his entire access costs, including travel and daycare but not including food for when the children are with him, is between $1,400.00 and $1,500.00 per month. In addition, he pays $375.00 per month in child support and $200.00 per month for daycare. Mr.

K.R.H. said that he pays daycare at $40.00 a day when he has the children with him. [ 19 ] Arising from that hearing, I referred questions and requests back to the originating jurisdiction: (

a) Complete financial information of J.R.B. with respect to all sources of income, including copies of her income tax returns and Canada Revenue Agency Notices of Assessment or Re-Assessment pursuant to the Order of Judge Harrison made April 18, 2011; (

b) Copies of receipts of the expenses claimed with respect to daycare; (

c) Copies of receipts of the expenses claimed with respect to the swimming lessons; (

d) Full disclosure of Ms. J.R.B.’s monthly household expenses and income, including income from any other person contributing to the support of the household. [ 20 ] Unfortunately, our Registry did not send these requests to Alberta until April, 2013 when the transcript arrived. As of the date of this judgment, no response has come from Alberta. [ 21 ] I ordered Mr. K.R.H. provide his completed financial information by April 30, 2013. The matter was rescheduled for May 1, 2013, presuming that this would be sufficient time for the Alberta jurisdiction to return the requested information. Mr.

K.R.H. attended on May 1, 2013 but the material had not been provided by the originating jurisdiction, for the reasons noted herein. [ 22 ] Mr. K.R.H.’s financial statement disclosed income of $75,000.00 per annum, but he indicated this included overtime which he did not intend to work any more because he wanted to spend the time travelling to see his daughters. His total expenses amount to $77,776.48. He expressed surprise on completing the expenses. They are not unreasonable on their face but he had not turned his mind to these matters before. [ 23 ] Mr.

K.R.H. also pays child support for another child, T.H., in the sum of $7,932.00 per annum. It is a curious outcome that the child support for one child is higher than the child support he pays for two children. His expenses are otherwise largely reasonable. In his financial statement, he assessed his monthly access costs at $550.00. This is lower than the estimate he provided at the original hearing. He attached numerous credit card entries to support that claim. They also highlighted in those statements a number of entries which must relate to his child support payments which he does by e-mail.

He has also highlighted some claims which he cannot make, including an entry for a shoe store. It is Ms. J.R.B.’s obligation to purchase the clothing for the children and provide everything on the visits to their father. If he chooses to purchase clothing for the children while they are in his care, this is not something he can claim from Ms. J.R.B. [ 24 ] The income tax returns and T4s attached indicate that Mr. K.R.H. earned $80,926.98 in 2012; $73,014.61 in 2011; $67,492.81 in 2010.

I am satisfied that his 2013 income is $75,000.00 according to his financial statement bearing in mind that 2012 was an unusual year with overtime income. The issue does not end with that finding, however. I must address the “access” costs as agreed by the parties previously, and the special or extraordinary expenses. [ 25 ] It is a frustrating 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. His decision sets out precisely the struggle I find I have with this application. [26] In Leduc, Justice McEwan says this at paragraph 8: In Leduc, the applicaton 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”.

That is precisely the problem I have in this case. [27] 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 cases 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. [28] Justice McEwan had before him a lawyer from the Attorney General’s office, who was not a family lawyer but appeared as anamicus curiae to address the legislative scheme and why counsel were not presented.

Justice McEwan had this to say at paragraph 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. [29] 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. [30] 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. [31] 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. [32] A person with an annual income of $68,000.00 and two children to support would be required to pay $1,031.00 per month.

Instead, the parties agreed by consent that K.R.H. pay what amounts to approximately $380.00 per month, being $651.00 per month lessthan the Child Support Guidelines. This concession was made with a specific view to the costs Mr. K.R.H. would have to incur toexercise reasonable and generous access to his children in Alberta. It was also with a view to the agreement that Ms. J.R.B. was toattempt to alleviate some of those costs by meeting Mr. K.R.H. part way on those visits. She has made very few such attempts, resultingin Mr. K.R.H. incurring almost all of the expenses associated with visiting his children. Ms.

J.R.B. now seeks to increase that childsupport payment to the full Guideline amount despite the concession made by consent in 2011. [33] Mr. K.R.H. continues to incur costs associated with his parenting time. Based on the lack of proper evidence before me, I amonly able to make an increase in the child support obligations which reflect the consent order and Mr. K.R.H.’s increased income. I findthat Mr. K.R.H. is a resident of British Columbia with an income of $75,000.00 per annum with a child support obligation for twochildren of $1,136.00 per month. I am satisfied that it is appropriate to deduct the costs Mr.

K.R.H. incurs to give effect to his parenting

time as agreed by the parties in the sum of $651.00. I set Mr. K.R.H.’s child support obligations at $485.00 per month. [ 34 ] The parties already have an order that they will share the special and extraordinary expenses in proportion to their income. The calculations shall be based upon Mr. K.R.H.’s income of $75,000.00 per annum. I have nothing upon which to base Ms. J.R.B.’s income. She is required to produce her financial information to Mr. K.R.H. No special or extraordinary expenses shall be payable by Mr. K.R.H. until he receives production of that information.

I am not satisfied that the daycare expenses as sought have been proved, in any event. Ms. J.R.B. shall provide to Mr. K.R.H. receipts for daycare expenses actually incurred and he shall pay his proportionate share of those upon receipt of that proof of payment, subject to my order respecting production of Ms. J.R.B.’s financial disclosure. Similarly, Mr. K.R.H. is agreeable to paying his proportionate share of the expenses for the children to take swimming lessons provided that proper receipts are produced from a legitimate business offering the lessons.

He shall pay his proportionate share of those costs upon production of the receipts and subject to my order respecting production of Ms. J.R.B.’s financial disclosure. [ 35 ] Mr. K.R.H. sought contribution from Ms. J.R.B. for his child care costs for the period of time he has the children. This is not an expense the parties agreed to in their original order and I am not satisfied that it is appropriate to do so absent evidence of a substantial material change in circumstances. This and Mr. K.R.H.’s application to return to British Columbia must be pursued on a separate application on notice to Ms.

J.R.B. ___________________________ S.D. Frame Provincial Court Judge