A.S.A. v. T.J.A., 2023 BCPC 80

Citation: A.S.A. v. T.J.A. 2023 BCPC 80 Date: 20230323 File No: F43788 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.S.A. APPLICANT AND: T.J.A. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. FERRISS Counsel for the Applicant, A.S.A. S. Chorney Appearing on their own behalf: T.J.A Place of Hearing: Surrey , B.C. Date of Hearing: March 23, 2023 Date of Judgment: March 23, 2023

[ 1 ] A.S.A has brought an application for enforcement in this matter, and that was brought in late 2022.

The order she sought to enforce was the Supreme Court final order that was made by consent on May 11th, 2020, and also an order of our court dated January 6th, 2022. [ 2 ] With respect to the Supreme Court order, she sought to have a finding of the quantum of extraordinary and special expenses owing under the Federal Child Support Guidelines, and to have further orders with respect to those expenses. [ 3 ] She also sought to have a conduct order contained in the Provincial Court enforced under s. 228 of the Family Law Act . [ 4 ] T.J.A. also came to court hoping to obtain some changes to the Supreme Court order. [ 5 ] As I advised the parties at the outset of this case, the Provincial Court has no jurisdiction to make any changes to the Supreme Court order, which in this case covers every topic under the Family Law Act , including guardianship; parental responsibilities; parenting time; information from third parties; travel; passports; healthcare; communication; property; child support; extraordinary and special expenses; post-secondary education; health insurance; children's property; and conduct orders.

It is an extensive 11-page order. [ 6 ] The only jurisdiction this court has is to enforce that Supreme Court order, and we did not have jurisdiction to make a different conduct order, and therefore I am vacating the Provincial Court order that was dated January 6th, 2022.

The Supreme Court order is the one that must be relied upon. [ 7 ] While the Provincial Court has jurisdiction to enforce the court orders made in Supreme Court, this court can only enforce support orders, including orders for special and extraordinary expenses, by using the procedures set out in the Provincial Court Family Rules for the Family Maintenance Enforcement Act at

Part 10, Division 2, which are ss. 138 to 145. [ 8 ] The Rules require a completely different set of forms to be filed and served on the other party to enforce support arrears, and those are Forms 30 to 38. [ 9 ] The application for enforcement filed in this case cannot be used to enforce support arrears and there is no provision in the Family Law Act for enforcement of support orders. [ 10 ] In this case, therefore, the only matter before me that I can address is the enforcement of the Supreme Court conduct orders at paragraphs 25 through 28: 25.

Neither party will speak negatively or disrespectfully of the other in the presence of the children or through the use of any form of communication which the children may be exposed to. 26. Both parties shall maintain respectful communications as between themselves, no matter what form the communications shall take. 27. Neither party shall share or discuss particulars of the within litigation or otherwise engage in age-inappropriate discussion with the children or in their presence. 28.

The parties will make their best efforts to encourage the children to have a good relationship with each other and with each parent. [ 11 ] The pertinent sections of the Family Law Act read as follows: 227. A court may make an order requiring a party to do one or more of the following: . . . . (

c) do or not do anything, as the court considers appropriate, in relation to a purpose referred to in

section 222… And: 228(1) If a party fails to comply with an order made under this Division, the court may do one of the following:

a) make a further order under this Division;

b) draw an inference that is adverse to the party, and make an order based on the inference;

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 expense related to family dispute resolution, ii. an amount not exceeding $5000 to or for the benefit of the other party, or a spouse or a child whose interests were affected by the non-compliance, or iii. a fine not exceeding $5000;

d) make any other order the court considers necessary to secure compliance.

[ 12 ] In this case, A.S.A. is seeking an order that the amount of $5,000 be paid by T.J.A. to her for the benefit of A.S.A. [ 13 ] Subparagraph (2) of that

section says that: If a party fails to comply with an order made under

section 225 ... the court must consider whether it would be appropriate to make an order under

Part 9... -- which is a protection order. [ 14 ] A.S.A. initially applied for a protection order, which came before the Provincial Court on January 6th, 2022.

The court did not grant the protection order but made the conduct orders. [ 15 ] At that time, both parties were present, and the presiding judge at that time was very clear, and stated: As I started sitting as a judge only a few years ago and had family litigants come before me and made orders and realized that these orders were not taken seriously, I didn't understand how that could be, because when I make an order for somebody who is being released on bail, and they don't comply with my conduct order, they end up in jail. And I address them in the docket later, and I'm unhappy with them.

And that's the way I kind of view these orders when I'm making them from the bench. They have the same authority and the same jurisdiction. So I'm making these conduct orders not for the sake of wasting time and everybody is extending into their lunch, but because I expect them to be followed. And if they're not followed, I expect there to be consequences for not following.

I certainly agree with that sentiment. [ 16 ] So I am going to deal first of all with emails that were sent to the children, J.(1) and J.(2), regarding parental alienation. [ 17 ] On January 19th, 2023, T.J.A. sent an email to the email address [omitted for publication] with links to seven TikTok videos regarding parental alienation. The email is entitled, "Hey guys. A few videos to watch.

Do you guys have any to go to Mexico to spring break?" The videos contain information that the WHO considers parental alienation as severe psychological child abuse. [ 18 ] T.J.A. said that he thought the email address was actually A.S.A.’s personal email address, and he said there was no mention of parental alienation in the email itself. He wanted A.S.A. to be aware of the negative health effects of parental alienation. [ 19 ] A.S.A. testified that it was not her personal email account. The Gmail account was set up for the children, and he did use it regularly to email them.

If he was contacting her specifically, he was to use the coParenter account, which the children have no access to. [ 20 ] Looking at the messages that were exchanged over coParenter, T.J.A. had asked A.S.A. on January 10th, 2023, whether there was a private email for the children that she did not use so that he could have a private conversation with them. [ 21 ] A.S.A. replied that [omitted for publication] was only used for contact with him and the children, and the children really had no interest in using it, although they were encouraged to do so. [ 22 ] The email with the TikTok videos was sent to J.(1) and J.(2), which appears to be the names that T.J.A. put into his own contact list. [ 23 ] In addition to that, the title, in my mind, shows that he was aware that the children would have access to that email, and as A.S.A. pointed out, any messages to her were to go to the coParenter app.

So, in my view, he was certainly wilfully blind as to whether the children were going to see that email or not, and I find that the email itself was a breach of the conduct order, as it engaged in age- inappropriate discussion with the children, which he was prohibited from doing. [ 24 ] I then turn to the emails that were sent regarding child support. [ 25 ] On January, 17th, 2023, T.J.A. sent an email to the Outlook email address and asked: Did you get my email about child support? Your mom won't tell me anything. Love you guys.

Dad. [ 26 ] There are also text messages between T.J.A. and J.(1) and J.(2), in which J.(1) told him to stop contacting her because she did not want to talk to him. [ 27 ] He went on to ask: Why are you buying your clothes? I have Mom [sic] lots and lots of child support, so you don't have to spend your money on anything. [ 28 ] J.(1) replied that she bought extras willingly, but T.J.A. told her that she was not supposed to buy anything, and that was why he gave A.S.A. extra money. [ 29 ] Again, I find this was a breach of the conduct order.

It was a discussion of court matters and litigation, and it was age- inappropriate discussion with his daughter. [ 30 ] The next set of issues I find very concerning, and that was the communication between T.J.A. and A.S.A.'s employer. [ 31 ] Two days after the Provincial court conduct orders were made on January 8th, 2022, T.J.A. sent a message to A.S.A. through the coParenter app, in which he said, I'm curious if you are working on the Pro-D Day, how did you arrive at the rink before the end and you your day. The game started at 3:00 and you should have arrived at 2:30 for the game.

I'm curious because you swore under oath you didn't leave work early that day.

The math doesn't add up on my end. [ 32 ] T.J.A. followed that up with the President of the [omitted for publication] to find out if [omitted for publication] did days in lieu with summer Pro-D Days. He was told they did not. And I will just note that A.S.A. is an employee of the [omitted for publication]. [ 33 ] T.J.A. then went on to say that his question “was really around a [omitted for publication] who lied under oath that they were at work when my son was at his hockey tournament. . . .

I'm sure her action will make its way to your office as this proceeds through the appropriate channels." [ 34 ] When asked, T.J.A. said he was acting as a taxpayer in making those requests. He did not think she would get fired for leaving early, he just wanted to make her aware. [ 35 ] Another incident occurred with the school, which the principal later told T.J.A. was an error.

A note was put on MyEd account which said T.J.A. should not be called in on an emergency unless none of the other contacts could be reached. [ 36 ] T.J.A. said, and I do not have any proof of it, but he said that only a guardian could ask for that to be put on the MyEd account.

And so, in his view, it must have been A.S.A. [ 37 ] He advised A.S.A. of this conversation with the Assistant Superintendent of the [omitted for publication] school in a coParenter message dated February 6th, 2023, stating that he needed to go through the Superintendent to get the other [omitted for publication] to respond to him. [ 38 ] On February 27th, 2023, he stated that he had formally filed an FOIPP for all communications to all district staff that A.S.A. had communicated to - teachers; secretaries; administration - and he wanted them given to him.

He went on to say that he would be filing a formal complaint with the College concerning her emails. [ 39 ] When asked how these emails could be seen to be in the children's best interests, he said he really did not think they were. He was just trying to get access to photos and documents regarding his children, and he felt that A.S.A. had not responded. [ 40 ] Certainly, threatening a person's livelihood is a serious threat, and it is taken seriously by everyone.

I find that these emails amounted to a breach of the conduct order to speak respectfully to the other party and, frankly, to me, they sounded quite threatening. [ 41 ] Turning to s. 228 of the Family Law Act and the penalty for breaching the contact (sic) orders, I find the appropriate amount, at this point, to be paid is $2,500 to the benefit of A.S.A., and I am ordering that that will be paid by April the 15th, 2023. [ 42 ] I am declining to make a protection order in this matter, although I find that it certainly comes close -- I am just looking at the case that was provided to me.

I would say that this is family violence, or certainly very close to family violence, the way that the communications are going between the parties, but I do not have the jurisdiction to make an order for a protection order at this point because it would conflict with the Supreme Court order, and I do not find that it is within my jurisdiction to do that, and I will leave that to counsel to decide what to do on that. (ORAL REASONS FOR JUDGMENT CONCLUDED)