Hyde v. Hyde, 2016 BCSC 1152

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hyde v. Hyde, 2016 BCSC 1152 Date: 20160623 Docket: 23876 Registry: Cranbrook Between: Johanna Lynn Hyde Claimant And Darryl Michael Hyde Respondent Corrected Judgment: The text of the judgment was corrected at paras. 4, 5a, 5h and 18 on June 30, 2016 Before: The Honourable Mr. Justice Jenkins Reasons for Judgment in Chambers Counsel for the claimant: M.B. Fuchs Counsel for the respondent: J. Lalonde Place and Date of Hearing: Cranbrook, B.C. February 17, 2016 Place and Date of Judgment: Cranbrook, B.C.

June 23, 2016 [ 1 ] On February 17, 2016, in Cranbrook, BC, I heard applications by each of the parties to this family dispute and gave oral reasons for some of the specific orders sought.

I reserved my decision on the claimant’s applications to declare the respondent in contempt of court and her application under s 18 of the Supreme Court Act, R.S.B.C. 1996, c. 443, that the respondent be declared a vexatious litigant and be prohibited from making further applications in this action without leave of the court or, in the alternative, that the respondent be prohibited from making further applications in this action without leave of the court pursuant to s. 221(1) of the Family Law Act, S.B.C. 2011 c. 25 (“the FLA ”).

I also reserved on her application for costs. [ 2 ] The claimant has married since the granting of a divorce in this proceeding and is now known as Ms. Juravel. [ 3 ] This action has been very hotly contested since the separation of the parties in August of 2013, and has resulted in several orders of this court prior to my orders of February 2016. In order to deal with the applications now before me, it will be necessary to summarize the history of this action and the conduct of the parties which are relevant to the outstanding issues. Counsel for Ms.

Juravel has kindly prepared a chronology of the proceedings and the meetings between the parties in this action which has been of considerable assistance to the court. [ 4 ] Based upon my review of the application record, Ms. Juravel has filed 16 affidavits to date, and Mr. Hyde has filed 12 affidavits. Other affidavits have been provided by Ms. Pat Smythies, office assistant to counsel for the claimant. Factual Background [ 5 ] The parties are both currently 37 years of age, married in 1997. There are two children of the marriage, a son, age 12, and a daughter who recently turned 10.

A notice of family claim was issued in October 2013. Applications, orders granted to date and other significant dates in the progress of this case include:

a) On October 28, 2013, Mr. Justice Butler ordered that the action proceed prior to a judicial case conference (“JCC”) and that both parties be restrained from disposing of any property at issue in this action without further order of the court or the consent of the parties.

b) On October 30, 2013, a four-way meeting of the parties and their counsel was held with an agreement to meet again on November 7, 2013. Three subsequent dates for further four-way meetings were cancelled by the respondent.

c) A JCC was held before Master Keighley on January 7, 2014. This appearance resulted in an agreement to mediate issues.

d) Mediation sessions scheduled for two occasions in February 2014 were cancelled as a result of the respondent advising he planned to attend without counsel. At a mediation session held on March 3, 2014, no agreement was reached.

e) A notice of application of the respondent seeking parenting orders was adjourned by the respondent in the summer of 2014.

f) On September 9, 2014, an order was granted by Master MacNaughton setting a date to exchange lists of documents, restricting the trial scheduled for October 21, 2014, to the issue of parenting “to the extent possible” and making other directions regarding witnesses.

g) A trial scheduled for October 21, 2014, was “bumped” by the court.

h) Both the claimant and the respondent filed notices of application regarding parenting issues and spousal and child support. Both were returnable December 15, 2014, and adjourned to the March 9, 2015, assize.

i) On January 12, 2015, a consent order was granted by Mr. Justice McIntosh for a partial distribution of funds realized from the sale of the former family residence with the balance to remain in trust. There was a further order that Ms. Juravel transfer both her wedding and engagement rings and a ring of the respondent plus $7,500 to Mr. Hyde as full and final division of all personal possessions, chattels, etc. save reapportionment based upon a reduction of spousal support after property division.

j) On March 12, 2015, Mr. Justice Groves granted an order for divorce. On the same date, Groves J. granted orders giving primary parenting responsibility to Ms. Juravel with very detailed access to Mr. Hyde, for payment by Mr. Hyde of $1,394 per month for spousal support and for payment by Mr. Hyde for child support of $1,450 per month; both support payments to commence as of January 1, 2015. Arrears of support were to be paid within 48 hours. Mr. Hyde was also ordered to pay a lump sum non-taxable spousal support order for $2,500 as a result of Mr. Hyde having transferred $2,500 debt into the name of Ms.

Juravel post-separation of the parties. Lump sum costs were awarded to Ms. Juravel. I refer to Groves J.’s oral reasons with respect to the respondent’s conduct in this litigation in detail below.

k) On September 22, 2015, an order was granted by Master Scarth dismissing Mr. Hyde’s applications for a reduction of spousal support and for an increase in parenting time. Master Scarth also granted an order for the preparation of a Views of the Child Report as sought by Mr. Hyde, for a judicial settlement conference to be held the week of the assize of October 19, 2015, and that Ms. Juravel have her costs of the application. Mr. Hyde later refused to sign the draft order prepared by Ms. Juravel’s lawyer, requiring her to set the matter down for settlement before the registrar (though Mr. Hyde signed it an hour before this appointment).

l) A judicial settlement conference was held on October 22 and 23, 2015, by Mr. Justice McEwan which resulted in an extensive and detailed consent order of October 23, 2015. The consent orders gave joint custody of the children to the parties, with Ms. Juravel having primary care of the children and Mr. Hyde having regular weekly and holiday access. The consent order also provided for payment out of the balance of funds in trust to the parties, spousal and child support and more. The consent order was a final order which covered all outstanding issues between the parties at that time. Mr.

Hyde was self-represented at the judicial settlement conference whereas he had been represented by counsel in previous applications, save the application before Master Scarth. Ms. Juravel was represented by counsel at all hearings.

m) A Views of the Child Report was issued on October 13, 2015, and was referred to at the judicial settlement conference.

n) On November 11, 2015, Ms. Juravel re-married.

o) On December 7, 2015, Mr. Hyde, apparently without the assistance of counsel, issued a notice of application seeking termination of spousal support effective November 11, 2015, and a “new” s. 211 Views of the Child Report. Mr. Hyde had apparently sought for a “new” Views of the Child Report as he wrote to the first report author that he, Mr. Hyde, “[did] not agree with anything”. The application for termination of spousal support was clearly a response to the wedding, a few weeks prior, of Ms. Juravel. An amended notice of application was issued February 3, 2016, by Mr.

Hyde’s subsequently retained lawyer, seeking a variation of spousal support “reflecting the parties’ current conditions, means, needs and other circumstances”, a variation of the duration of spousal support “that ought to have been ordered”, an order for disclosure of the financial records of a company owned by Ms. Juravel’s new husband and financial disclosure by her new husband.

p) Faced with the notice of application filed by Mr. Hyde on December 7, 2015, Ms. Juravel filed an application response on December 30, 2015, as well as a notice of application seeking the orders sought against Mr. Hyde under s. 18 of the Supreme Court Act , i.e. an order that Mr.

Hyde be declared a vexatious litigant and requiring he obtain leave of the court before issuing any further applications, or in the alternative an order under s. 221 of the FLA that he not be allowed to file further application without leave of the court in respect of this family action. [ 6 ] Following the hearing of February 17, 2016, I dismissed the application of Mr. Hyde for a variation of spousal support in light of the recent consent order granted October 23, 2015, especially as I found on the affidavit evidence that it was reasonably foreseeable that Ms.

Juravel may enter into a more permanent relationship with her new partner at the time of the judicial settlement conference and the very short period of time between the judicial settlement conference and the application filed by Mr. Hyde for a variation in the amount of spousal support payable by him. I found no material change in the circumstances that would justify a variation of spousal support obligations. [ 7 ] Regarding the application of Ms. Juravel for an order under s. 18 of the Supreme Court Act or alternatively under the FLA for an order requiring leave of the court for Mr.

Hyde to bring applications, I made that order on February 17, 2016, such requirement to last for a period of three months, which time has now lapsed. That order was intended to allow for a period of time within which the parties

could address and solve their problems without the need of the court and was directed in particular at the respondent applying so promptly for further orders based upon the simplest minor change in circumstances. [ 8 ] Also, on February 27, 2016, I imposed a fine of $5,000 against Mr. Hyde under s. 221 of the FLA in that his conduct as described, in

part in these reasons and in the reasons for judgment of Mr. Justice Groves, constituted abuse of the court process or amounted to frustration of the court process. His bullying tactics, agreements to mediate and otherwise resolve matters only to withdraw his participation and drag out the processes of the court, his failing to sign an order to allow for its entry in court, and his use of his financial position of strength to attempt to force Ms. Juravel into accepting less than she may be entitled to all justified this fine. [ 9 ] Also on February 27, 2016, I reserved judgment on the application of Ms.

Juravel that Mr. Hyde be found in contempt of court and to consider whether the three month order during which Mr. Hyde was not permitted to file applications without leave of the court should be extended. I further reserved on the issue of costs. I understand Mr. Hyde has resiled from his application for a new Views of the Child Report. [ 10 ] The application that Mr. Hyde be found in contempt of court arises primarily from the facts deposed to by Ms. Juravel in her 15th affidavit filed February 5, 2016. In that affidavit Ms. Juravel refers to para. 6(

a) of the final order of October 23, 2015, which states that when the children are in Mr. Hyde’s care they are to have a 9:00 p.m. bedtime on nights preceding a school day for the children. Ms. Juravel describes in her 15th affidavit circumstances in which their son had been out at Mr. Hyde’s hockey games on Sunday evenings which generally end at 10:30 p.m. [ 11 ] It is the position of Ms. Juravel that by Mr.

Hyde keeping their son out well after 9:00 p.m. on Sunday evenings before school on Monday, often apparently leaving their daughter with a baby sitter, he was deliberately breaching the October 23, 2015, order. [ 12 ] Also of concern was the occasion deposed to by Ms. Juravel when she and her new husband attended at the rink on a Sunday night only to see her son at the rink while Mr. Hyde played hockey, Mr. Hyde soon after learning of Ms. Juravel being present at the rink, leaving the ice and taking their son home. Mr. Hyde clearly knew he was in breach of the order. [ 13 ] In his 13th affidavit, Mr.

Hyde acknowledges that he has been in breach of the final order and attempts to give excuses as to why he breached the order, suggesting his children may have been kept up late by their mother on occasions, that the hockey games are family-oriented father-and-son games and that ice time varies, all of which to Mr. Hyde justifies a decision on his part to be in breach of the order. [ 14 ] In my view, this behaviour is not inconsistent with the controlling approach of Mr. Hyde described throughout the many affidavits and by Mr. Justice Groves.

Indeed, Groves J.’s oral reasons for judgment of March 12, 2015, are very revealing as to the conduct of the parties. Included in his reasons for judgment are the following paragraphs which are relevant to the applications before me: [23] I cannot help but conclude that it is the father’s behaviour that has made the lack of cooperation in this case more acute.

It is his behaviour in insisting on unilateral changes to a workable schedule, again for no apparent reason, and it is his bullying tactics with money, which I, again, will deal with later, which have caused unnecessary friction and difficulty. . . . . . [48] Turning to the financial issues. [49] I repeat my comments made during submissions, that I am, frankly, astounded by the bullying behaviour of the respondent as it relates to money since separation.

I am astounded that it took so many months for something as simple as equal division of a large amount of money to be divided between the parties from the sale proceeds of the family home, and the bulk of the evidence suggests to me that the father was using the retention of these funds to get his own way. [50] In addition to that, the way the father dealt with the modest amount of family debt that the parties had at the time of separation is very troubling. There was a joint debt at the time of separation on a joint credit card. The evidence before me now is clear that Mr.

Hyde transferred the maximum amount possible that he could to a credit card in his wife’s name and in the name of her alone that he could, after separation, and then he simply gave her the statement for the card on which he had transferred the debt and told her that she was responsible for it. He did this while earning $90,000 a year or thereabouts and she was earning nothing. I cannot at this point determine whether or not it is true that he set up this charge card in her name without her knowledge.

If he did, that is a fraud and it is a criminal offence. [51] Additionally, I am also astounded that this father, the educated and financially astute individual that he is, could do what he did in regards to agreeing to pay his spouse $2,000 per month. I am satisfied he did agree to that amount, and then unilaterally and often with no notice cut back these funds.

His cutbacks were for matters as bizarre as paying the insurance on a second car that at the time was in his driveway thereby demanding his estranged wife contribute to that. [52] In cutting back funds, how could he not know that his children would suffer as a result.

Perhaps, better put, he felt it was okay for his wife to have to live off the charity of relatives while he lived off the considerable income that he was able to earn as a result of joint decisions made by the parties during the marriage, namely, that the wife would stay at home, would not work, and would not achieve that economic advantage and he would. [53] At the time of separation, his wife made essentially nothing.

There is not much evidence about what she is making even now, though her lawyer has generously left open the possibility of the court imputing income to her in the range of $12,000 or perhaps more. There is not a scintilla of evidence that she makes the $35,000 that Mr. Hyde at one point chose to impute to her in an argument to again unilaterally reduce support that he had agreed to pay. [54] How this father expected these children, his children, to be housed, to be fed, to be educated, and to be clothed when regularly he

paid $1,000 a month is astounding and speaks volumes about the inconsistency between what this father says, how much he cares for his children, and how much he actually cares. He appears to refuse to provide sufficient income to allow the mother to meet the needs of the children when they are with her and that is shameful and that is wrong. Discussion and Conclusion [ 15 ] Regarding the application that Mr. Hyde be found in contempt of court, specifically for being in breach of para. 6(

a) of the final order of October 23, 2015, there is no doubt that Mr. Hyde has been in contempt. There is also no doubt that that Mr. Hyde feels entitled to breach orders if it is appropriate and convenient in his judgment to do so. It is also apparent that the breach here is, in itself, not hugely significant, however, in light of his past conduct, a more significant response is in order to ensure the punishment deters any future breach. [ 16 ] In these circumstances incarceration is not in order, but a financial order is appropriate. In consideration of the seriousness of his behaviour, Mr.

Hyde may purge his contempt upon payment of the sum of $2,000 by no later than July 5, 2016, such payment to be made to the Court. [ 17 ] Regarding the further application under s. 18 of the Supreme Court Act that Mr. Hyde obtain leave of the court to issue any further applications, I do not think it necessary to declare the respondent a vexatious litigant on an ongoing basis or to extend my earlier order. Though Mr. Hyde’s approach to this litigation aligns with many of the principles discussed in Bergeron v.

Gillstrom , 2009 BCSC 1616 , to my knowledge no applications have been filed by him since the expiry of my order of February 17, 2016 on May 17, 2016. This is a positive step from Mr. Hyde and, in my view, takes him outside of categorization as one who “habitually, persistently, and without reasonable grounds” institutes vexatious legal proceedings. [ 18 ] However, an ongoing order under s. 221 of the FLA is appropriate. As noted by Mr. Justice Punnett in Williams v.

Williams, 2015 BCSC 928 , the language used in s. 221 broadens the factors considered under s. 18 of the Supreme Court Act , recognizing that family litigation may have wider and more significant effects that should be considered if the resolution of family conflicts is to be achieved. Further to my earlier reasons, Mr.

Hyde has demonstrated a pattern of conducting the proceedings in a manner that is a misuse of the court process by repeatedly delaying the disposition of the issues between the parties, or when those are settled — either by the court or by consent — he has shown a general unwillingness to accept the results. As Ms. Juravel has deposed, his conduct has taken a significant financial and social toll on her that is disproportionate to the extent of the issues between the parties. [ 19 ] I will therefore order that Mr.

Hyde be prohibited from making further applications in this action without leave of the court for a period of two years. The order is so limited in recognition of the fact that the parties have not yet completed the final disposition of the remaining issues between them — the trial scheduled at February 16, 2016, not proceeding. However, in these circumstances, if Mr.

Hyde appears to attempt to bring forward any applications for leave on issues which appear to be frivolous, without merit, or an effort to “bully” as has been the case in the past, or demonstrates further obstructing behaviour, the Court would not hesitate in making such an order for an extended period of time. [ 20 ] Regarding costs, Ms. Juravel is entitled to her costs on the two notices of application giving rise to these reasons on a scale of ordinary difficulty under the Supreme Court Family Rules. “Jenkins J.”