S.T.B. v. C.A.T., 2023 BCPC 200

Citation: S.T.B. v. C.A.T. 2023 BCPC 200 Date: 20230809 File No: 1547336 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: S.T.B. APPLICANT AND: C.A.T. RESPONDENT RULING RE APPLICATION OF THE HONOURABLE JUDGE M.J. BRECKNELL Counsel for the Applicant: K. Parker For C.A.T. No appearance Place of Hearing: Prince George , B.C.

Date of Hearing: August 9, 2023 Date of Judgment: August 9, 2023 [ 1 ] THE COURT: Before the Court is an application by S.T.B. for indemnification for all legal fees, disbursements, and taxes for the conduct of the litigation of this file as well as outstanding compensation orders totalling $3,000 by virtue of orders made by the Court against C.A.T. and which he had not paid. [ 2 ] S.T.B. relies on the following sections of the Family Law Act : 212, 213, 222, and

Section 212 and 213 deal with matters surrounding disclosure and penalties arising from a lack of disclosure, and ss. 222 and 228 deal with conduct in the course of a proceeding and the court's responses to poor conduct within the proceeding. The relevant portions of s. 212 are as follows: 212

(1) A court may at any stage of a proceeding make an order to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court Family Rules.

(2) If an order is made under subsection (1), the court may order a party to pay, to the other party or to another person, all or part of the expenses reasonably and necessarily incurred in complying with the order. … 213

(1) This

section applies if a person (

a) fails to comply with (

i) an order for disclosure made under

section 212 or (ii) a requirement to disclose information in accordance with the Supreme Court Family Rules or the Provincial Court Family Rules, within the time or in the manner required by the order or Rules, or (

b) provides information that is incomplete, false or misleading.

(2) In the circumstances set out in subsection (1), the court may do one or more of the following … And the only one I am going to refer -- the only two I am going to refer to is sub (d)(i): (

d) make an order requiring the person described in subsection (1) to pay (

i) a party for all or part of the expenses reasonably and necessarily incurred as a result of the non-disclosure of information or the incomplete, false or misleading disclosure, including fees and expenses related to family dispute resolution, [and number] (ii) an amount not exceeding $5 000 to or for the benefit of a party, or a spouse or child whose interests were affected by the non- disclosure of information or the incomplete, false or misleading disclosure … [ 3 ]

Section 222 reads as follows: At any time during a proceeding or on the making of an order under this Act, the court may make an order under this Division for one or more of the following purposes: (

a) to facilitate the settlement of a family law dispute or of an issue that may become the subject of a family law dispute; (

b) to manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order; (

c) to prevent misuse of the court process … [ 4 ] The applicable provisions of s. 228 are: 228

(1) If a party fails to comply with an order made under this Division, the court may do one or more of the following … (

c) make an order requiring the party to pay (

i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the non-compliance, including fees and expenses related to family dispute resolution, (ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the non-compliance … [ 5 ] Today, I received submissions from S.T.B.’s counsel, Mr. Parker, and I have reviewed the majority of the file which consists of three accordion files of materials dating back to 2015.

I am satisfied that, although there were some minor disputes between the parties about parenting arrangements in the course of the litigation, the thrust of the matters at issue in this case consisted of: (1) attempting to get proper disclosure from C.A.T. to make the determination of his income; (2) determining his income; and

(3) steps taken to obtain a child support order and secure the funds due under that order. [ 6 ] From the very beginning of the proceeding, C.A.T. took many deliberate steps to frustrate the resolution of matters to S.T.B.’s financial detriment and to the detriment of the child due to unpaid child support.

His behaviour in obstructing the process was discussed at length in the trial decision of Judge Gray on October 7, 2019, where Judge Gray said in part: [8] The central issue for the court is simply child support and, on that issue, there has been difficulty, as well. [9] An example of [C.A.T.’s] non-compliance occurred during our court session in November when he provided an updated financial statement on the first day of the hearing. It was apparent on that day that [C.A.T.] had not properly prepared and did not have a case or witnesses to present.

He contended he would pay child support based on the Line 150 amount shown on his notice of assessment from Canada Revenue even though he had been alerted to the issue of his interest in the family-run company.

I concluded that [C.A.T.] was not able to present evidence and the court session would not proceed in the normal manner and, potentially, court time would be lost. [10] It was on the first day of hearing, November 9, 2018, that I determined that the fairest way to proceed was to have the evidence presented, firstly, by way of cross-examination in order that [C.A.T.] would better understand the case he had to meet. I was satisfied it was necessary for [C.A.T.] to properly prepare and present evidence on another day.

He advised that he would probably call as witnesses his mother who was the bookkeeper for the business and maybe the accountant. The hearing proceeded that day with a thorough examination of the corporate records which included the general ledger, the bank statements, and various credit card accounts. [C.A.T.] was able to comment on the particular entries.

Largely, he answered that he did not know what the transfers were for, but he was able to confirm that many payments made by the company were for his personal benefit and, in addition, there were regular payments made to his personal account by the company that were debited from his shareholders loan. The first day of hearing lasted for over four hours, although the matter was scheduled for two-and-a-half hours. [11] The matter was adjourned and the court

schedule was adjusted so court time could be found for me to sit on the continuation. The next date was November 20, 2018. On that date, [C.A.T.] arrived with counsel and with a request for an adjournment so that they could prepare. [C.A.T.] did not arrive with any witnesses and he was not prepared to continue the hearing as had been planned. The adjournment was granted, but with direction that both counsel were to complete the evidence by way of affidavit and submissions with a new

schedule to allow for exchange and reply. The next action was a notice of motion filed on December 17, 2018, by counsel for [C.A.T.] for a mistrial because natural justice had not been satisfied. This was set for January 3, 2019, and adjourned to come before me on February 11, 2019. All written submissions or affidavits were filed and the time requirements for [C.A.T.] to provide his material as I had ordered on November 20 were not met. [12] After hearing submissions on February 11, I provided my ruling on February 12 and dismissed the motion.

I set new deadlines for affidavits and submissions to be completed in February and March. No further substantive materials were filed. [C.A.T.] did file a handwritten submission that reiterated his objection to the process.

Counsel for [S.T.B.] chose not to file any reply and only commented in her requisition that they "had no response to contents thereof," being the handwritten submission." [C.A.T.] had impliedly chosen to represent himself and counsel was no longer retained. [13] The entire hearing and orderly assessment of the child support issue has been stymied by [C.A.T.] both in his inaction and his active non-compliance with court orders. I will deal with this conclusion later in this decision.

Judge Gray goes on at paragraph 52: [C.A.T.] had failed to make proper disclosure … Then partially in paragraph 54: …As matters stand now, he has engaged in frustrating a court proceeding that should have been concluded in one day. The best interests of this young child are being jeopardized by his ongoing conduct. Further, at paragraph 54: In my view, [C.A.T.], with or without legal advice, manipulated the process and was at no time prepared to engage in a thorough examination of his finances. He has misused the court process again and again.

I am concerned that [C.A.T.] did not receive fulsome advice when he sought legal counsel. The inference I draw is that he was intending to secure any step that would delay the resolution of his financial obligation to support his child. [ 7 ] Further to his lack of disclosure, C.A.T. refused to pay the child support ordered by the Court to the point where substantial arrears accumulated. C.A.T. also appealed the decision of Judge Gray to both the B.C. Supreme Court and the B.C. Court of Appeal.

Both of those appeals were dismissed as being without merit. [ 8 ] The Family Maintenance Enforcement Program (“FMEP”) became involved and secured funds for the arrears of child support and future child support from the sale of C.A.T.’s home, securing the amount of $100,000 which consisted of arrears of $25,000 and $75,000 to be held against future child support payments. [ 9 ] Subsequent to the sale of C.A.T.'s home, he died on February 16, 2022. [ 10 ] S.T.B., through her counsel, first sought to have the money held by FMEP paid out to her for the child's benefit.

After some exchange of correspondence and further pleadings, the following occurred:

(1) C.A.T.'s executors renounced their positions with regard to his estate; (2) the Public Guardian and Trustee became involved, but ultimately took no position on S.T.B.’s application; and

(3) FMEP was still involved, but took no position on S.T.B.’s application. [11] At the end of the day, the funds were paid to S.T.B. for the child's benefit. [12] What remains is the issue of what should occur given the expenses incurred by S.T.B. in seeking to have C.A.T. comply with theFamily Law Act and various court orders. There are already two outstanding orders of $1,000 and $2,000 for previous non-complianceby C.A.T. Neither of those amounts were paid by him.

There is, further, an outstanding order for $7,450 which was to compensateS.T.B. directly for her cost on one application which C.A.T. did not pay, but which forms part of the indemnity request S.T.B. seekstoday. [13] Indemnity, in whole or in part, is permitted as described in ss. 213(2)(d)(

i) and 228(1)(

c) of the Family Law Act. Thecircumstances where indemnity may apply have been described in several cases including Dawson v. Dawson, 2014 BCSC 44, and T.J.B.v. B.A.F., 2014 BCPC 290. In Dawson, the Court described where "special costs" can be awarded in paragraphs 57 and 58: [57] Ms. Corfield seeks special costs in relation to Mr. Dawson’s application. Rule 16-1 of the Supreme Court Family Rules dealswith costs.

It provides that unless the court orders that the costs of an application be assessed as special costs or unless the court awardslump sum costs in relation to an application, costs are recoverable and assessed in accordance with Appendix B. Special costs may beappropriate where a litigant has engaged in reprehensible conduct. In Garcia v. Crestbrook Forest Industries Ltd. (1994), (BC CA), 119 D.L.R. (4th) 740 (B.C.C.A.), Lambert J.A. explained that “reprehensible” is a: …word of wide meaning.

It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconductdeserving of reproof or rebuke… [58] An award of special costs generally serves two purposes: first, it compensates the party in whose favour the award is made,usually to the point of indemnifying that party for the legal expenses incurred; and second, it serves to sanction the party whose conductgives rise to the award. [14] The Dawson decision also deals with how to quantify costs and whether to fix them summarily in paragraphs 63, 64, and 65: [63] There remain two issues: the first is the method of quantifying the costs and the second is whether to fix those costs summarily. [64] There are a number of common approaches to the quantification of special costs.

One approach is to award costs on a fullindemnity basis. Another is to award costs as a percentage of the actual legal expenses incurred by the party in whose favour the award ismade. A third approach is sometimes referred to as the “rough and ready method” and involves an award based on $5,000 per half day ofhearing, plus taxes and disbursements (Interclaim Holdings Ltd. v. Down, 2002 BCCA 632 at para. 40). [65] The court has the power to fix costs summarily, but it is a power to be exercised sparingly (Bradshaw v. Stenner, 2012 BCSC237 at para. 16). In Buchan v.

Moss Management Inc., 2010 BCSC 121, Bauman C.J.S.C. (as he then was) summarily fixed costs on aspecial costs basis. One reason for summarily determining the amount of costs is to bring an end to litigation (Graham v. Moore, 2003BCCA 497). The history of this litigation overwhelming[ly] supports the need to bring it to a conclusion as soon as reasonably possible. Iwill therefore summarily fix the costs to which Ms.

Corfield is entitled. [15] In T.J.B., the court discussed judicial responses available under the Family Law Act and how they should be approached withregard to issues of non-disclosure in paragraphs 49 through 53: [49] This

section of the FLA provides the court with broad discretion to impose penalties to respond to and remedy issues relating tofailure to disclose information as required, or to the disclosure of incomplete or misleading information. [50] The decision of Mr. Justice Punnent in JDG v JJV, 2013 BCSC 1274 is the leading authority in assessing the appropriateness andnature of penalties available under s. 213(2). [51] In JDG the court was considering a case in which a father had failed to properly disclose financial information despite requestsfor the disclosure and a court order requiring the disclosure.

Two days before the application was heard the father disclosed the financialinformation in issue.

In imposing a fine of $500.00 pursuant to s. 213(2)(d)(ii), as well as costs thrown away assessed at $1500.00, thefollowing principles were enunciated: • The FLA imposes a statutory duty to disclose from the outset. … • “Both the issue of non-disclosure and the severity of any order made under s. 213… should depend on the circumstances of thecase, the degree of non-disclosure, the reasons for late disclosure and when it is made.” … • Where disclosure is particularly “complex or onerous” this should be recognized in the assessment of any order under … s 213. … • The purpose of FLA, s 213 is not wholly the punishment of the party who has failed to disclose the required information.

Theprimary purpose of FLA, s. 213 is securing proper disclosure “in a timely and cost efficient way.” … • Penalties should increase the awareness of the importance of complete and timely disclosure and, as a result, reduce the number ofs. 213 applications. … • A “robust application” of s 213 is necessary to accomplish this goal. … • An application for penalty under s. 213 should be made prior to an application to hold a party in contempt, which should bereserved for the “most egregious cases.” … • If disclosure is made following the application for an order under s. 213 that may warrant a lesser penalty, the fact that the

application had to be made should be addressed both “because of the expense incurred” and “the delay itself.” … [52] This approach has been cited with approval and applied in a number of subsequent cases ( see JCP v JV , 2013 BCPC 297 ; Doman v Cicozzi , 2014 BCSC 866 ; Cully v Cully , 2013 BCSC 2457 ; SN v EC , 2014 BCPC 82 ). [53] In JCP v JV , 2013 BCPC 297 Judge Merrick summarized the process of assessing s. 213(2) penalties as follows: “If a party is required to apply to the court for an order for financial disclosure, then the party making the application should be compensated.

The greater the effort, the greater the compensation.” [ 16 ] The decision of Wang v. Jiang , 2020 BCSC 1761 , affirms that s. 213 authorizes an award of special costs. In A.J.F. v.

N.L.S , 2020 BCSC 26 , the Court acknowledged that the penalty provisions of s. 228 should be applied creatively in a manner sensitive to the particular issues before the Court, but should be resorted to when and only to the extent necessary and appropriate to enforce and secure compliance with FLA orders. [ 17 ] After considering the history of this matter and C.A.T.’s deliberate and repetitive and persistent actions to frustrate S.T.B.’s attempts to secure child support and the Court's attempts to have him to comply with its orders and positively participate to resolve outstanding issues, I make the following findings:

(1) C.A.T.’s actions throughout this litigation was reprehensible as succinctly described in Garcia ; (2) his actions were a deliberate combination of non-disclosure and providing incomplete, false, or misleading disclosure; (3) his actions were deliberate steps to frustrate the resolution of a Family Law Act dispute; and (4) his actions were a deliberate attempt to misuse the Court's process. [ 18 ] There is no direct ability for this Court to order "costs" or "special costs" as is available in the British Columbia Supreme Court under their rules.

However, ss. 213 and 228 of the FLA do allow for a payment of "all or part of the expenses reasonably and necessarily incurred." I consider that wording and the cases cited to permit me to order indemnity of S.T.B.’s legal fees, disbursements, and taxes if appropriate in these circumstances. [ 19 ] Mr. Parker provided to the Court his client ledgers for the services he provided to S.T.B. They have been marked as Exhibit 1. Mr. Parker was called to the bar in 2002. He has regularly appeared in Family Court in Prince George.

His hourly rate of $275 an hour is modest when compared to other members of the bar in Prince George of similar seniority. I have reviewed S.T.B.’s client ledgers and accept that the work described by Mr. Parker was required and reasonably carried out in a professional manner. Further, a vast majority of the work was done and carried out prior to C.A.T.’s death. The remaining work necessary was to secure the child support held by FMEP and taken from the sale of C.A.T.’s home and to pursue this application. Mr.

Parker advised that he has not calculated any amount for services rendered to S.T.B. since his July 2022 ledger. [ 20 ] In the final analysis, I grant judgment to S.T.B. against C.A.T. and his estate in the following amounts: (1) unpaid penalty, $1,000; (2) unpaid penalty, $2,000; (3) legal fees, disbursements, and taxes from October 26, 2015, to December 31, 2021, $87,528.62; (4) legal fees, disbursements, and taxes from January 1, 2022, to July 18, 2022, $9,394; (5) legal expenses, fees, disbursements, and potential taxes incurred since July 18, 2022, summarily fixed at $7,500.

Total judgment, $107,422.62. (RULING CONCLUDED)