D.M.R. v. J.B. Date:, 2013 BCPC 9

Citation: D.M.R. v. J.B. Date: 20130116 2013 BCPC 0009 File No: 14126 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: D. M. R. JR. APPLICANT AND: J. B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Appearing on their own behalf: D. R. Jr. Counsel for the Respondent: G. E. Greene, Esq. Place of Hearing: Houston , B.C.

Date of Hearing: January 9, 10, 11, 2013 Date of Judgment: January 16, 2013 BACKGROUND ( 1 ) The parties herein cohabited for approximately five years and separated in late 2005. ( 2 ) During the cohabitation a child, BPMR was born [DOB]. ( 3 ) There was interim alternating residency of the child until December 2007. ( 4 ) On the hearing date of December 20th, 2007 a Consent Order was granted. Amongst other conditions, that Order granted: (

I) permanent sole custody to Ms. B.; (II) joint guardianship of the child BPMR with a number of defined obligations to discuss and agree on matters of a significant nature effecting BPMR; (III) Mr. R. to have reasonable and generous access with BPMR as agreed to between the parties, including a defined schedule; (IV) an annual income of $45,000 was imputed to Mr. R.; (

V) Mr. R. was ordered to pay child maintenance in the amount of $417 per month commencing February 1st, 2008; (VI) Mr. R. was to provide to Ms. B. a copy of his filed income tax return by May 1st each subsequent year; (VII) Mr. R. was to pay child maintenance each subsequent year in an amount calculated by applying the Child Support Guidelines to line 150 of the income tax returns mentioned in (VI). ( 5 ) Mr. R. applied to vary custody and child maintenance and to cancel arrears. These applications were dismissed August 8th, 2008. ( 6 ) On April 11, 2011 Ms. B. applied for the following variation to the Order of December 20, 2007:

a) sole permanent guardianship;

b) defined access to Mr. R. to be replaced by reasonable and generous access as agreed to from time to time;

c) that Mr. R. be required to file with the Court copies of his filed income tax returns for the years 2007, 2008, 2009 and 2010 and that this Court used the income figures in those returns to fix the amount of his child maintenance;

d) that the Court impute income to Mr. R. in the amount of $100,000/annum and fix child maintenance at $906/month commencing on April 1st, 2011;

e) that pursuant to s92 of the Family Relations Act that Mr. R. pay as a penalty to Ms. B. $5,000/annum for each of the years 2008, 2009, 2010 and 2011 for not providing the required copies of his filed income tax returns. ( 7 ) On June 21, 2011 Mr. R. filed a reply and counterclaim for:

a) custody;

b) guardianship;

c) access;

d) maintenance for BPMR;

e) variation of the December 20th, 2007 Order;

f) a paternity test. ( 8 ) The hearing of the application and counter-claim was adjourned at the request of Mr. Remand on March 19th, 2012 and set pre- emptory on Mr. R. for three days starting January 9th, 2013. At that time Mr. R. was also ordered to provide to Ms. B. a copy of his filed 2011 income tax statement by April 30th, 2012. ( 9 ) On June 21, 2011 Mr. R. filed financial statements including his income tax assessments for the years 2007, 2008, 2009 and 2010.

( 10 ) On March 19, 2012 Ms. B. filed financial statements including her income tax returns for the years 2009, 2010 and 2011. ( 11 ) In June 2012, Mr. R. provided Ms. B. with a copy of his 2011 income tax return. It was marked as Exhibit #1 in this hearing EVIDENCE ( 12 ) Ms. B. testified that immediately after the separation BPMR lived with Mr. R. The arrangement then varied to joint guardianship on a week by week basis. By the end of 2006, the relationship between the parties had deteriorated into frequent arguments about their new partners, money, and the exchanges of BPMR. ( 13 ) Ms.

B. further testified that after the Court Order of December 20th, 2007 there were frequent disagreements between herself and Mr. R. She testified that Mr. R. changed his phone number and did not provide her with a new number. She had to contact Mr. R. through his father. ( 14 ) Ms. B. testified that BPMR was often in tears when it was scheduled that she was to go to visit her father. ( 15 ) In cross-examination by Mr. R. she admitted that BPMR was often in tears when being returned by her father. ( 16 ) Ms. B. testified that there were frequent arguments on the phone and in person with Mr. R.’s new wife, M.

R. ( 17 ) Ms. B. testified that her father and only sister both live in Prince George and they both have good relationships including almost monthly visits with BPMR. ( 18 ) Ms. B. testified that she has a good relationship with BPMR. ( 19 ) Ms. B. testified that after Halloween, 2010 she sent a letter to Mr. R. stating that he would not be having access to BPMR until he provided a contact phone number and arranged counselling. The letter also noted the failure of Mr. R. to provide the required tax returns. The letter was marked as Exhibit #3. ( 20 ) Ms.

B. testified that BPMR would complain of unfair treatment by her step and half-siblings and that when confronted by Ms. B., Mr. R. would only become angry. ( 21 ) Ms. B. specifically denied in examination in chief and in cross examination that she agreed with Mr. R. that he did not have to file his tax returns as required by the December 20th, 2007 Order. ( 22 ) Ms. B. also specifically denied agreeing with Mr. R. that he did not have to increase his child maintenance to match his income tax returns during a meeting at Steelhead Park. ( 23 ) Ms. B. testified that the last time Mr.

R. had access to BPMR was Halloween 2010 aside from random contact in Houston. ( 24 ) Under cross-examination, Ms. B. stated that she had told the Family Maintenance Enforcement office to not collect maintenance from Mr. R. for one month that he had guardianship of BPMR during a summer holiday. ( 25 ) Ms. B. stated that she assumed the parties could not reach an arrangement for contact between Mr. R. and BPMR because she was unable to phone him. ( 26 ) Ms. B. stated that there was a complete breakdown in communication between her and Mr.

R. because he was angry over the separation, their debt, and a boyfriend that she had for a time after the separation. ( 27 ) Mr. R. testified that both parties had varied the Order of December 20th, 2007 concerning the actual date that he had access and that he did not have to provide the income tax returns for the years 2007, 2008, 2009 and 2010. ( 28 ) Mr. R. testified that at a meeting at Steelhead Park in Houston Ms. B. had agreed that the maintenance would not be varied to match his annual income and that he could continue to pay $417 per month. ( 29 ) Mr.

R. testified that initially BPMR “got on great” with his two step daughters and his son Brody. He went on to say that there were problems caused by BPMR having more things such as an electronic game that the other children didn’t have. ( 30 ) Mr. R. testified that he tried to treat all the children equally but it is difficult to blend the families as he only saw BPMR occasionally. ( 31 ) Mr. R. testified that his current wife, M. also “got on great” with BPMR until BPMR started calling her mom which caused a problem with Ms. B. ( 32 ) Mr. R. testified that there were times when he wished to see BPMR and he and M.

R. would argue over it. ( 33 ) Mr. R. described the time from the separation to date as being “seven years of battle.” ( 34 ) Mr. R. testified that his income had temporarily increased during the last year because of extra work upgrading his worksite. ( 35 ) Mr. R. testified that there was an incident approximately six years ago when BPMR had suffered a concussion while with Ms. B. but had been dropped off a day early with M. R.

( 36 ) Mr. R. testified that the relationship with Ms. B. concerning BPMR “went sour” before December 20th, 2007. ( 37 ) Mr. R. testified that he had applied for a paternity test on BPMR for his peace of mind because of infidelities by Ms. B. during their cohabitation. ( 38 ) Mr. R. testified that BPMR would cry both when leaving Ms. B. or leaving himself during exchanges. Mr. R. testified that his phone had been initially disconnected for non-payment.

Later he had disconnected the phone because he “couldn’t handle all the calls and changes to BPMR’s schedule.” He stated that he had given BPMR his cell number during a chance meeting with her in Houston. He further stated that he could provide his phone number to Ms. B. if she would not call during dinner or bed times which disrupted his family. ( 39 ) Mr. R. testified that there had been an agreement between him and Ms. B. that he would claim the tax benefit for BPMR in 2005. He also stated that Ms.

B. had reneged on the agreement and claimed BPMR on her 2005 income taxes which had caused great financial hardship on him because of the loss of the deduction combined with assessed penalties and interest. ( 40 ) Under cross-examination, Mr. R. stated that he was not on speaking terms with Ms. B. ( 41 ) Under cross-examination, Mr. R. stated that starting in 2006 he had requested a public exchange of BPMR as he had been falsely accused of an assault by Ms. B. ( 42 ) Under cross-examination Mr. R. stated that he could not discuss significant decision concerning BPMR because he could not trust Ms.

B. because of her reneging on the Steelhead Park agreement and the 2005 tax deduction for BPMR agreement. ( 43 ) Under cross-examination, Mr. R. agreed that Ms. B. had repeatedly asked him to deal with their relationship concerning BPMR. He added that he had called a Family Justice Counsellor in Terrace and asserted that someone from that office had tried to arrange a meeting with Ms. B. ( 44 ) Under cross-examination, Mr.

R. admitted that despite the Steelhead Park agreement he had received within three or four months the letter requesting the overdue income tax returns (Exhibit 3). ( 45 ) Under cross-examination, Mr. R. stated that he did not provide a contact phone number because he had been advised by the police and counsellors not to provide a number because he was being harassed by Ms. B. ( 46 ) Under cross-examination, Mr. R. explained that he had not provided the required tax returns because he wanted to first correct the 2005 return that was wrong because of Ms.

B. wrongly claiming the child deduction. ( 47 ) Under cross-examination Mr. R. did admit that the tax returns for 2007, 2008, 2009 and 2010 were all available by June 3rd, 2010. ( 48 ) Under cross-examination, Mr. R. confirmed his income for the years 2007 through 2011 as per the provided tax assessments and return were as follows: 2007 - $50,791 2008 - $53,778 2009 - $68,751 2010 - $82,544 2011 - $80,350 ( 49 ) Under cross-examination, Mr. R. confirmed that in his financial statement filed June 21st, 2011 he was claiming $4,200 owed by Ms.

B. for her portion of the relationship debt although she had been discharged in bankruptcy subsequently. ( 50 ) M. R. testified that she had been with Mr. R. for seven years and their blended family consists of two children she brought into the relationship, BPMR, and two children she has had with Mr. R. ( 51 ) M. R. testified that she resented that if she said no to Ms. B. that Ms. B. would then get Mr. R. to reverse her position. She added that it had affected her health and she was prescribed anti-depressants and ulcer medication. ( 52 ) M. R. testified that she was “very angry” after Mr. R. and Ms.

B. had met in Steelhead Park as she was not involved and BPMR was part of her family too. ( 53 ) M. R. testified that there were several times when Mr. R. had tried to talk to Ms. B. about BPMR but the attempts always ended in arguments. ( 54 ) M. R. testified that during the last visit by BPMR, that BPMR had pushed her younger half-brother B. R. off a chair and when confronted about this, BPMR had stated that Ms. B. and Mr. R. had built that home and the other three children (including B. R.) were not Mr. R.’s and should not be in that home. ( 55 ) M.

R. then reviewed a number of photographs of vehicles and boats found in Exhibit #8 and indicated that most of them were either purchased by her with inheritance money or belonged to someone other than Mr. R.

(56) M. R. testified that she and Mr. R. and Ms. B. together cannot discuss BPMR. She added that she feels excluded fromdiscussions about BPMR even though she is part of the blended family.

(57) M. R. testified that she feels that the four children in BPMR’s blended family are “threatened” by Ms. B. because she had been“calling them down”.

(58) M. R. then went through the monthly expenses of their household and the outstanding debts of their household as listed inExhibit #9. These reveal regular monthly household expenses for electricity, natural gas, medi-care, telephone, satellite TV, visa,master-card, Royal bank mortgage, two credit-union lines of credit and unpaid accounts for stove repair and tires.

(59) Under cross-examination, M. R. stated that she and Mr. R. had grown tired of numerous phone calls from Ms. B. which occurredeven when BPMR was not with them.

(60) Under cross-examination, M. R. stated that her “bitterness” was caused by how Ms. B. treated her and her children.

(61) Under cross-examination, M. R. stated that she and Mr. R. had spoken to the Family Justice Counsellors in Terrace and othercounsellors in Houston.

(62) Under cross-examination, M. R. stated that “most likely she wouldn’t be able to deal with Ms. B.” and that “most likely shewould never get along with Ms. B.” She added that she would not let Ms. B. near her kids or near her home. FINDINGS OF FACT

(63) Although the cause of the breakdown of communication is in dispute, it is clear that after October, 2010 there has been nocommunication between Mr. R. and Ms. B. to make the joint guardianship work.

(64) Aside from random unscheduled meetings between Mr. R. and BPMR, there has been no “access” to the child since Halloween2010.

(65) BPMR has been primarily in the care of Ms. B. since December 20, 2007 and Ms. B. alone has made all the significant decisionswith respect to BPMR.

(66) Mr. R. failed to provide his income information as required by the Court Order of December 20, 2007 until June 21, 2011. Heprovided his 2011 income information in June of 2012.

(67) Mr. R. has continued to pay child maintenance at the 2007 guideline rate of $417 to date.

(68) Mr. R. asserts that Ms. B. agreed at the Steelhead Park to not seek more that the $417 per month maintenance. However, if thatdid occur the letter of Ms. B. delivered within a few months made it clear that she required the annual income information and wished toenforce the Order of December 20th, 2007.

(69) Accordingly, Mr. R. is in arrears of maintenance as of January 1st, 2013 in the amount of $11,189. This amount is calculated asfollows: Income guideline total paid arrears June 1, 2008 to May 1, 2009 $50,791 $465 x 12= $5580 $5004 $576 June 1, 2009 to May 1, 2010 $53,778 $494 x 12= $5928 $5004 $924 June 1, 2010 to May 1, 2011 $68,751 $636 x 12= $7632 $5004 $2,628 June 1, 2011 to May 1, 2012 $82,544 $756 x 12= $9072 $4587 $4,485 June 1, 2012 to Jan. 1, 2013 $80,350 $739 x 12= $5912 $3336 $2,576 Total arrears $11,189 DECISION

(70) To vary an existing custody order the Court must be satisfied that there has been a material change in circumstances affecting thechild (Gordon v Goertz (1996), (SCC), 19 R.F.L. (4th) 177 S.C.C.). The complete breakdown in communication issuch a material change in circumstances affecting the child.

(71) There are before the Court competing applications for custody by both parents. The over-riding consideration of the Court indetermining such applications is the best interest of the child. Ms. B. has been making all the significant decisions concerning BPMR. As well, BPMR has lived with her mother since December, 2007. It would not be in the best interests of BPMR to upset that situationand place her with her father. Accordingly, the Court orders that BPMR shall be in the permanent sole custody and guardianship of J. B.

( 72 ) It is in the best interests of the child that she has generous contact with her father. Accordingly, the Court orders that D. R. Jr. shall have reasonable and generous access as may be agreed to between her parents from time to time. If the parties cannot come to such agreements application can be made to the court to define the access. ( 73 ) The court fixes the amount of arrears of child maintenance as of January 1, 2013 to be $11,189. ( 74 ) As ordered in Court at the end of the hearing, the Court imputes income to D. R.

Jr. for 2013 in the amount of $80,000 and pursuant to the maintenance guidelines orders that he pay to J. B. the amount of $739 each month commencing February 1, 2013 until May 1, 2013. ( 75 ) D. R. Jr. is ordered to file a copy of his 2012 tax return no later than May 1st, 2013 and subsequent tax returns each year thereafter in the court and with the Canada Revenue Agency and to deliver a copy of all such tax returns to J. B.’s address for delivery of documents by the first of May each subsequent year that BPMR is a child as defined by the Family Relations Act. ( 76 ) D. R. Jr. shall pay to J.

B. child maintenance in the amount defined by the Child Support Guidelines commencing June 1, 2013 on the basis of his income as defined by line 150 of his 2012 income tax return and the amount of the child maintenance shall be varied in a similar fashion in each year thereafter for so long as BPMR is a child as defined by the Family Relations Act. ( 77 ) D. R. Jr. has failed to comply with the rules respecting disclosure of information in proceedings and specifically failed to comply with the Court’s December 20th, 2007 Order to provide his tax returns for 2007, 2008, 2009 and 2010.

He has been in contravention of s92 of the Family Relations Act. ( 78 ) Counsel for Ms. B. submitted that Mr. R. should be ordered under s92 to pay the maximum for each of the four years for a total of $20,000. Because of the extensive debt load of Mr. R. revealed in the evidence and his additional obligations to support his two other children and the two children for whom he stands in the place of a parent, to add such an amount would likely make it impossible for him to meet any of his financial obligations. ( 79 ) Accordingly, the Court orders, pursuant to s92 of the Family Relations Act, that D. R.

Jr. pay $100 for each year of non- compliance for a total of $400. It should be clear to Mr. R. that having not complied with s92 already that any further such non- compliance shall result in far heavier penalties. ( 80 ) The Court orders that D. R. Jr. shall pay the $11,189 arrears of child maintenance ordered in paragraph 74 above and the $400 penalty for failure to produce his tax returns, totalling $11,589 to J. B. by means of payments of $400 per month commencing March 1, 2013 and each and every month thereafter until paid in full or further order of this court.

These payments are in addition to the monthly maintenance payment of $739 ordered above. ( 81 ) The requirement of the approval by D. R. Jr. of the form of the Order produced is dispensed with. ___________________________ W. F. M. Jackson Provincial Court Judge