A.N.H. v. L.D.G., 2018 BCSC 1086

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.N.H. v. L.D.G., 2018 BCSC 1086 Date: 20180612 Docket: E45924 Registry: Vernon Between: A.N.H. Claimant/Respondent And L.D.G. Respondent/Applicant Before: The Honourable Mr. Justice Abrioux Corrected Judgment: J. Aucoin has been added as co-counsel for the Respondent/Applicant Oral Reasons for Judgment Re: Contempt of Court The Claimant/Respondent, appearing in person: A.N.H. Counsel for the Respondent/Applicant: L.A. Kahn, Q.C., J. Aucoin Counsel for Director FMEP: A.M. Accettura Place and Date of Hearing: Vernon, B.C. May 1, 11, and 28, 2018 Kelowna, B.C.

June 6, 2018 Place and Date of Judgment: Vernon, B.C. June 12, 2018 Table of Contents I: INTRODUCTION .. 3 II: BACKGROUND .. 3 Introduction . 3 The March 5, 2018 JMC .. 5 The Events Following the JMC .. 8 Issues on These Contempt Applications . 11 III: L.D.G.’S CONTEMPT APPLICATION .. 12 IV: THE EX MERO MOTU CONTEMPT APPLCATION .. 20 Introduction . 20 Discussion . 20 Penalty . 28

I: INTRODUCTION [ 1 ] I intend to issue these reasons for judgment in writing.

When I do, they will be edited for publishing/clarification, but the substance will not change. [ 2 ] There are two applications to have A.N.H. found in contempt of court. [ 3 ] The first is brought by L.D.G. (the “L.D.G. application”), in which she seeks to have the court find her former spouse, A.N.H., in contempt of court for his alleged failure to comply with various court orders arising out of a judicial management conference which occurred on March 5, 2018 (the “JMC”). [ 4 ] The JMC occurred following my dismissal of L.D.G.’s prior application to have A.N.H. held in contempt of court, and its primary purpose was to provide directions for the scheduling of a variation application to be brought by A.N.H. regarding child and spousal support (the “Variation application”).

My February 2018 reasons regarding the prior contempt application are indexed at 2018 BCSC 183 , and were rendered following a five-day hearing which occurred in December 2017 and January 2018 (the “2017/2018 contempt application”). [ 5 ] The second application is brought by the court ex mero motu , which is on its own motion, and arises from alleged breaches by A.N.H. of orders made on May 1, 2018, during the hearing of the L.D.G. application and his conduct thereafter.

II: BACKGROUND Introduction [ 6 ] Most of the salient background is set out in the February 2018 Reasons, which I shall not repeat at this time except to note the following. [ 7 ] This family law proceeding included two trials. The first took place in 2012 and dealt with, among other things, support issues. The second, a

summary trial in 2014, concerned the relocation of L.D.G. and the children of the relationship to Saskatchewan. [ 8 ] On June 6, 2015, in reasons for judgment indexed at 2015 BCCA 263 , Justice Newbury dismissed A.N.H.’s appeal of child and spousal support orders made in November 2012 (the “Support Orders”), stating at para. 13: [13] Having heard from both A.N.H. and Mr. Kahn, we formed the view that A.N.H. had not provided any “convincing explanation” as to why he remains in arrears with respect to the Supreme Court orders relating to support.

In the circumstances of this case, the administration of justice would be called into disrepute by our hearing an appeal at the request of a person who has exhibited disdain for the judicial process and continues to use this process to overwhelm his former partner. [ 9 ] Furthermore, in June 2017, A.N.H. was found to be a vexatious litigant in the Court of Appeal (the “CA-VLA”). Those reasons for judgment are indexed at 2017 BCCA 216 .

I made a similar finding in this Court in July 2017, in reasons indexed at 2017 BCSC 1259 (the “SC-VLA”). [ 10 ] As a result of the SC-VLA, A.N.H. is required to obtain leave of the court prior to filing any applications in this Court. I have heard several such applications or requests from A.N.H. in that regard since the SC-VLA reasons were rendered. [ 11 ] The 2017/2018 contempt application was the second such application involving A.N.H.

In 2014, the trial judge, on an application by FMEP, had found A.N.H. in contempt of court for his failure to make court-ordered support payments, but that finding was overturned by the Court of Appeal in January 2016 in reasons for judgment indexed at 2016 BCCA 6 (the “CA Contempt Reasons”). [ 12 ] The 2017/2018 contempt application concerned alleged breaches by A.N.H., including his failure to pay the Support Orders and certain costs awards (the “Costs Orders”), collectively, the “Orders”.

These Orders were the result of protracted family proceedings that commenced in 2011 and continue to this day. [ 13 ] The Support Orders were based on an annual income of $610,000 imputed by the trial judge for support purposes.

This resulted in monthly child support of $7,900 and spousal support of $9,000. [ 14 ] The trial judge also ordered that there be a review of L.D.G.’s support in 2016. [ 15 ] There was a voluminous record before me at the 2017/2018 contempt application which I dismissed with costs to A.N.H., essentially on the basis that L.D.G. had not established beyond a reasonable doubt that A.N.H. had the ability to pay the Support Orders which totalled $16,900 per month. [ 16 ] L.D.G. filed a notice of appeal from the dismissal of the 2017/2018 contempt application which has now been abandoned.

The March 5, 2018 JMC [ 17 ] By March 2018, I had recently replaced the trial judge as the judicial management judge, and the purpose of the JMC was to

provide a framework for the hearing of the Variation application that A.N.H. had filed on April 10, 2014. The appendix to the February 2018 reasons sets out much of what occurred over the better part of the last five years in that regard, and it is an understatement to say it has been a tortured process. [ 18 ] At the JMC, I ordered that A.N.H. take certain steps such that the Variation application could proceed to be heard in a reasonable timeframe.

I raised the possibility of a two-week hearing in May 2018, but it became apparent that this time frame was overly optimistic even though A.N.H. indicated he believed he could be ready to proceed by that time.

I also advised A.N.H. that he did not require leave of the court to file an amended notice of application regarding variation of support, which would, otherwise, have been required as a result of the SC-VLA. [ 19 ] Certain of the statements/submissions made at the JMC need to be considered in order to place what occurred, including the background to the two contempt applications which are the subject of these reasons, in context. The transcript of the JMC indicates the following: (

a) p age 3 – A.N.H. had already “blocked off” the period commencing May 1, 2018, for nine days for the hearing of the Variation application; (

b) page 13 – the Court commented to A.N.H. that the hearing will have to do with variation: It’s not a pre-emptive strike by you on a relocation application. It’s not to be a rehash of previous attempts you have made to have a relocation application. It’s not to touch in any way the various allegations you have made in the past against CRA’, Justice Cole, other people involved in what you consider to be a conspiracy of people and malfeasance against you. The materials are not to deal with that in any way shape or form, this has to do with variation and variation, that’s it. (

c) page 14 – the Court: We’re going to set down some ground rules for this application and in your materials you’re going to focus on what should your income be imputed to be for different timeframes…The first step is, what are you going to put before the court as to the basis for the Variation application. Income tax returns … notices of assessment … financial information coming out of your practice … To which A.N.H. responded: Well if the court is narrowing the focus directly on my ability to earn income and not on some fanciful concoction that was derived in part from those things I derived, well this is going to be a lot simpler. And it’s going to be a lot easier and more streamlined; (

d) pages 15/16 – the Court: Starting off I want to keep this as simple as possible, and the materials that you have to file are a notice of application...but you are to set out in

summary form what you say the basis for the variation is and as of what date and why…And I want a very, very clear road map from you. To which A.N.H. responded: Well. I’m liking what you’re hearing [sic] (

e) with respect to the contents of the affidavit to be filed – the Court: I can’t imagine there’s any new material to be filed in terms of exhibits because there were all sorts of exhibits added to the affidavits that were filed in December and January of this year. So I can’t imagine there is anything new since then. To which A.N.H. responded: Well there’s just the new computer printouts and we continue to do them and just my staff saying nothing has changed (

f) page 24 – A.N.H.: I understand what you’re saying…You really want a compact, hit all the major arteries. The Court: You got it (

g) p age 31 – with respect to the relocation application , A.N.H.: I hope to file in court a leave to pursue relocation of the children. The Court: …I’m going to be very clear on this. The variation application is going to take precedence over that. A.N.H.: I agree . But I want to get it into the time frame because if this [i.e. the variation application] could go ahead in May and heaven forbid and God allow us to have the relocation and parenting time handled in July, because the school year is coming and—and I think these kids, from the amount of abuse these children have had …

[Emphasis added.] [ 20 ] The JMC orders included: (

a) A.N.H. was to file an amended notice of application to vary spousal and child support which was to be filed by March 26, 2018. This was to be accompanied by an affidavit not to exceed 20 pages, excluding exhibits; (

b) references to prior affidavits would be deemed to be in this action. This was to avoid the need for A.N.H. to refile on the Variation application copies of the voluminous affidavits which he had previously filed; (

c) A.N.H. was to file a Form 8 financial statement by March 26, 2018; (

d) L.D.G. and the Director of FMEP were to file their response materials by April 16, 2018, with A.N.H.’s reply materials to be filed by April 23, 2018; (

e) another JMC was to occur on April 23, 2018; and (

f) on a without prejudice basis, A.N.H. was to pay $6,000 per month for child and spousal support retroactive to March 1, 2018. The Events Following the JMC [ 21 ] Following the JMC, A.N.H. sought to have me provide clarifications to certain of the orders I had made and requested that I revisit the $6,000 support payment, but I declined to do so. [ 22 ] In a memorandum to the parties dated March 22, 2018, I stated: In so far as my directions regarding allegations of fraud are concerned, I thought I had been clear on March 5, 2018.

The variation application is not an avenue for A.N.H. to pursue making allegations of impropriety, including fraud against the trial judge or CRA. Only issues relating to the issue of child and spousal support, including L.D.G.'s attempts to become self-supporting, are relevant. This does not preclude A.N.H., for example, from making allegations in relation to L.D.G. which he considers appropriate in relation to support issues including credibility and the like.

Within these general parameters, to the extent A.N.H. does wish to rely on alleged evidence regarding fraud, he is to specifically identify what they are and where they can be found in the many affidavits which have been filed. I will be in a better position to make any rulings regarding what the parties intend to rely on after their materials have been filed. [ 23 ] A.N.H. did not file an amended notice of motion, an affidavit, or the financial statement as ordered at the JMC by March 26, 2018, which date was extended by the court to April 3, 2018.

On April 19, 2018, L.D.G.’s contempt application was brought, and I directed that it be set down for hearing on May 1, 2018, being the date that had been fixed for the next JMC. [ 24 ] On May 1, 2018, L.D.G.’s contempt application commenced with the JMC being adjourned. Counsel for L.D.G. made her submissions, and A.N.H. commenced, but did not complete his response submissions. [ 25 ] Both in his written response to the L.D.G. contempt application and his submissions on May 1, 2018, A.N.H. argued that the JMC orders were, amongst other things, ambiguous and unclear.

In particular, it was A.N.H.’s argument that the formal order drafted by L.D.G.’s counsel should have contained the provision that his affidavit was not to refer to allegations of conspiracy or gross misconduct by the trial judge or the Director of FMEP. But for that, he stated he fully understood the orders made at the JMC.

On May 1, 2018, L.D.G.’s counsel agreed to the addition of the words “gross misconduct”, and I then signed the order such that it could be entered. [ 26 ] It was also A.N.H.’s submission that L.D.G. had not established beyond a reasonable doubt that he had the ability to pay the $6,000 per month ordered by me at the JMC.

He argued that I had made that order essentially off the cuff and without properly considering the issue, including providing him with the proper opportunity to respond. [ 27 ] At the conclusion of the proceedings on May 1, 2018, when it was clear that additional time would be required to complete the hearing of the application, I advised the parties that in order to have the matter move forward in as practical a manner as possible, I would make certain orders, which included: (

a) by 4:00 p.m. on Wednesday, May 9, 2018, A.N.H. would file an amended notice of application to the one filed in April 2014 that would set out “at a minimum” the calendar years for which variation of child and spousal support is sought and the income amount that the court should base income on for support purposes for those years. The “at a minimum “ expression was used such that A.N.H. could include, for example, seeking an order reducing or cancelling arrears; (

b) by May 9, 2018, A.N.H. would file a Form 8 financial statement with portions that he was unable to complete to be marked as such (the “May 1, 2018 Orders”); (

c) by May 9, 2018, A.N.H. would file a supplementary affidavit limited to 20 pages, not including exhibits , which is to be limited to providing the evidence relating to the years for which he seeks variation of child and spousal support and the basis for the amounts that he seeks the court to find his income should be for support purposes for those years; (

d) on May 11, 2018, the contempt application will be completed and the Judicial Management Conference will canvass the timing of the response materials and any other items that need to be filed, that is in relation to the Variation and Review applications;

(

e) the parties will attempt to be available for the first two weeks in July; and (

f) the proceeding is adjourned to May 11, 2018, in Vernon, B.C. [ 28 ] I stated that if A.N.H. complied with the orders referred to in (

a) to (c), then I anticipated that when the hearing resumed on May 11, 2018, the outstanding issues to be dealt with by the court at the time would be restricted to A.N.H.’s ability to pay the $6,000 support payment ordered at the JMC. [ 29 ] A.N.H. was then provided with the opportunity to ask any questions of the court regarding the May 1, 2018 Orders. He stated that he understood them and acknowledged that they were not ambiguous. [ 30 ] On May 9, 2018, A.N.H. attempted to file an amended notice of application purportedly in compliance with the May 1, 2018 Orders.

He filed a financial statement and an affidavit in support of the notice of application. The May 9, 2018 amended notice of application itself (the “May 9, 2018 notice of application”) was not accepted for filing by the registry since it did not contain a hearing return date. [ 31 ] On May 11, 2018, A.N.H. completed his submissions with respect to the L.D.G. contempt application. [ 32 ] As a result of the May 9, 2018 notice of application, I initially advised A.N.H. on May 11, 2018, that I was considering bringing a contempt application ex mero motu .

I provided him with certain case law references and strongly urged him to consult counsel. [ 33 ] Later that day, I advised the parties that I would render oral reasons for judgment on the L.D.G. contempt application on May 28, 2018. I also advised A.N.H. that the court would, in fact, bring an ex mero motu contempt application which would be heard that day.

I re-impressed on A.N.H. the seriousness of the situation and recommended that he obtain legal advice. [ 34 ] On May 23, 2018, A.N.H. sought leave - which was required as a result of the SC-VLA order - without notice to L.G.D. (the “Relocation Leave application”) to have the court hear on an urgent basis, and also without notice to L.G.D., an application to relocate the children from Saskatchewan to British Columbia (the “Relocation application”), this application to be heard prior to the hearing of the Variation application. [ 35 ] On May 24, 2018, in a memorandum to the parties, I dismissed the application to have the May 23, 2018 leave application proceed without notice, made certain orders regarding the service of the Relocation applications on L.D.G.’s counsel and ordered that the leave application would proceed on May 28, 2018.

Issues on These Contempt Applications [ 36 ] The issues on this proceeding at this time now include whether: (

a) with respect to the L.D.G. contempt application, A.N.H. should be held in contempt for alleged breaches of the JMC orders and if so, the appropriate penalty; (

b) as a result of what A.N.H. filed on May 9, 2018, the court ex mero motu should find A.N.H. in contempt of one or more of the May 1, 2018 Orders and if so, the appropriate penalty; (

c) the Relocation Leave application and the Relocation application constitute contemptuous conduct. [ 37 ] There was also the issue as to whether leave should be granted to A.N.H. to proceed with the Relocation application, but on May 28, 2018, A.N.H. advised the court that he was not proceeding with the Leave and the Relocation applications. This was confirmed by him on June 6, 2018.

III: L.D.G.’S CONTEMPT APPLICATION [ 38 ] The legal framework is set out in the February 2018 Reasons at paras. 21-30, which I shall not repeat in these reasons. [ 39 ] I would add that at para. 27 of the CA Contempt Reasons, Justice Saunders commented on the importance of an allege contemnor’s credibility: [27] I would not say that the appellant’s evidence should have been accepted. That, however, was not the question for the judge. Rather, the question was whether the Director had proven beyond a reasonable doubt that the appellant had the means to comply with the order and that he wilfully failed to comply.

The burden of proof was not on the appellant. In considering whether the burden of proof was met, the credibility of the alleged contemnor was key . In this case, the judge’s view of the appellant’s credibility was reflected in his paragraph 17 replicated above describing the appellant as arranging his affairs, including through the loans to political parties and through the August 2012 agreement, so as not to have the means to pay the support ordered.

The fatal flaws in the judge’s reference to those matters discussed above generally undermine the credibility assessment of the appellant; the judge’s rejection of the appellant’s exculpatory evidence rests on an unsound foundation. [Emphasis added.] [ 40 ] There are three possible bases for findings of contempt, being that A.N.H.: (

a) did not file an amended notice of application and affidavit in support of that application by April 3, 2018;

(

b) did not file a Form 8 financial statement by that date; and (

c) did not pay the $6,000 per month support retroactive to March 2018. [ 41 ] With respect to (

a) and (b), it is for L.D.G. to establish beyond a reasonable doubt that A.N.H.: (1) had notice of the orders; (2) that he did not comply with the orders; and (3) that the non-compliance was “willful” ( i.e. , deliberate, as opposed to accidental or unintentional). [ 42 ] With respect to (c), she must also establish that A.N.H. was, in fact, capable of complying with the order, i.e. , that he had the means to make the required payments of $6,000 per month retroactive to March 2018. [ 43 ] Notice of the orders is not in issue.

A.N.H. was in the courtroom on March 5, 2018, at the JMC when the orders were made. [ 44 ] It is also not in dispute that he had not complied with the orders at the time the hearing commenced on May 1, 2018. He had, however, paid the arrears of support, being $15,000, by the time the hearing continued on May 11, 2018. That payment was made on May 9, 2018. [ 45 ] I will now turn to whether the non-compliance was wilful. [ 46 ] A.N.H.’s position is that the non-compliance with (a), (b), and (

c) was not deliberate since there were ambiguities in the orders. He submits that he attempted to have this issue heard by me following the JMC, but I declined to allow him to do so. [ 47 ] He points specifically to the restrictions that I placed on the content of his affidavit, being that it could not include his allegations of misconduct against the trial judge or the Director of FMEP. He says that although I referred to the allegations of “conspiracy” at the JMC, he had never made that allegation and only referred to that term having been raised by the Court of Appeal.

He argues that since the order drafted by counsel did not refer specifically to this issue, the order was unclear and provided a legal basis for his not filing an amended notice of application, affidavit, and Form 8 financial statement by April 3, 2018. [ 48 ] I disagree. I find that L.D.G. has proven beyond a reasonable doubt that A.N.H.’s failure to file the amended notice of application, affidavit, and Form 8 was deliberate. [ 49 ] My reasons, when considered within the context of the proceedings at the JMC to which I have made certain references above, include: (

a) but for the alleged ambiguity relating to what the affidavit could not contain and A.N.H.’s umbrage at the use of the word “conspiracy”, he clearly understood what had to be filed by April 3, 2018, and the restrictions I had imposed on the content of his affidavit. I find his excuse for not filing the amended notice of application, affidavit, and financial statement not to be credible; (

b) nor do I accept that my refusal to hear further from A.N.H. after March 5, 2018, raises a reasonable doubt on this issue. As the transcript of the JMC indicates, A.N.H. was well aware of what had been ordered and why. He was in fact, or appeared to be in agreement with the procedure I had put in place indicating at one point that this would simplify what he had to do to have the Variation application heard expeditiously. In fact, he believed on March 5, 2018, that the hearing of the Variation application should be able to proceed in May 2018; (

c) his attempt to have portions of what transpired at the JMC reargued was nothing more than another example of his conduct which, in part, resulted in the vexatious litigant order being made in this Court in July 2017; and (

d) even if I should have a reasonable doubt that his failure to file the amended notice of application and affidavit was not wilful, which is not the case, the excuse proffered by A.N.H. has no bearing on his failure to file the financial statement by the prescribed date. [ 50 ] Accordingly, I am satisfied that all the necessary elements which L.D.G. is required to prove beyond a reasonable doubt with respect to the failure to file the amended notice of application, affidavit, and financial statement have been established. [ 51 ] The next basis for finding A.N.H. in contempt of court is his failure to make the $6000 support payments commencing March 2018.

It is evident that A.N.H. had notice of the order, that he did not comply with it until May 9, 2018, and that the non-compliance was wilful. [ 52 ] The only real issue is whether L.D.G. has proven beyond a reasonable doubt that A.N.H. had the means to be able to make those payments. [ 53 ] A.N.H.’s position is that she has failed to do so. He points to the fact that the 2017/2018 contempt application was dismissed. In his lengthy submissions, he essentially reargued many of the points he had raised regarding his capacity to pay which had been made in the 2017/2018 contempt application.

These included, but were certainly not limited to: (

a) he has paid virtually no taxes to Canada Revenue Agency (“CRA”) for several years, and if he does not start making substantial payments in accordance with a negotiated payment plan, his dental business will be shut down; (

b) for several years his income from his professional corporation was paid on account of shareholders loans and other indebtedness owed to him. This allowed the income not to be treated as salary which would have resulted in CRA at source deductions. Simply put, he argues that he has attempted to pay the court ordered support payments of $16,900 per month (as modified from time to time) in large part on the basis that he has not paid CRA what it is owed, which can no longer continue;

(

c) he has other financial obligations which prevent him from making a $6000 monthly payment; and (

d) the misconduct of the trial judge and the Director of FMEP have resulted in his inability to, amongst other matters, apply to vary the Support Orders which are the genesis for his ongoing financial difficulties. [ 54 ] He also argues that I did not provide him with the proper opportunity to make submissions at the JMC regarding his ability to pay $6000 per month.

Essentially, he says the order was made “off the cuff “and that I ought to have allowed him the opportunity to make further submissions on the issue which I declined to do. [ 55 ] I do not accept any of these arguments and conclude that L.D.G. has established beyond a reasonable doubt that A.N.H. had the means to make the monthly support payments of $6,000 retroactive to March 2018. My reasons include: (

a) as I noted in the February 2018 reasons, once the applicant has provided some evidence of the alleged contemnor’s financial circumstances, the respondent on the application will usually lead some evidence regarding their inability to pay, thereby attempting to raise a reasonable doubt on this issue. This then leads to the credibility issues and Justice Saunders’ comments in that regard to which I have referred; (

b) all that I decided on this issue in the 2017/2018 contempt reasons was that L.D.G. had not established beyond a reasonable doubt that A.N.H. had the ability to pay $16,900 per month in support payments. I made no findings as to his ability to pay a lesser amount, in particular $6000 per month; (

c) when I made the support order at the JMC it was within the context of a recently completed lengthy hearing which involved an examination of A.N.H.’s finances. The order of $6000 was not made off the cuff. As the transcript of the JMC indicates, there were submissions made on this issue. While A.N.H. may have wished to be provided with more time to advance arguments on this point either at the JMC or thereafter, which I declined, he was provided with the better part of two days to make submissions on May 1 and 11, 2018; (

d) one of the documents before the court at the hearing of the 2017/2018 contempt hearing was a spread sheet prepared by A.N.H.’s sister, a chartered accountant, which stated that A.N.H.’s “monthly combined net income before taxes, support payments and all other expenditures” for 2016 was $24,006. For 2017 it was estimated to be $24,367; (

e) there is no evidence to support A.N.H.’s statements regarding CRA made in his submissions on more than one occasion, an example being on May 28, 2018, that “you miss one payment you get shut down”. In fact, what occurred is that after numerous attempts to speak with CRA officials - which resulted in a lengthy conversation on May 11, 2018 - on May 12, 2018, A.N.H. wrote to CRA in response to its request that he make a proposal regarding his outstanding tax obligations. In that letter, amongst other things, he proposed monthly payments of $15,000 commencing June 1, 2018.

By way of a letter dated May 22, 2018, that proposal was accepted for a period of three months subject to certain conditions, one of which was to update CRA regarding A.N.H.’s financial obligations arising from the family law proceeding. The letter refers to a disputed balance owing of approximately $1.9 million and an undisputed balance of approximately $250,000. The letter ends with the statement “[a]lso be advised that for any reason the above terms and conditions are not met, the Agency could commence with legal action without further notice to both the Company and yourself”.

Needless to say this is a far cry from “miss one payment and you are shut down”; and (

f) A.N.H. says that he enjoys working very much and, but for CRA, he would gladly continue to do so. In that regard, the trial judge in his reasons for judgment indexed at 2014 BCSC 1875 stated at para. 80 that A.N.H. has threatened to close up his dental practice in the past and: The claimant has been told by this Court that he should not close up his dental practice until he has received legal advice and that if he does close up his practice he will still be faced with the possibility of a court imputing his income on the basis of his capacity to earn an income.

He has also been told that closing up his business would not be in the best interests of his children because it would mean that he could no longer support them financially. [ 56 ] It is noteworthy in my view that A.N.H. proposed $15,000 per month to CRA, not a lesser amount such as $9,000 - $10,000 which have taken the $6,000 ordered at the JMC into account, and that $6000 was ordered only on an interim basis until the Variation application was heard, which A.N.H. wanted in March 2018 to have occur as soon as possible. [ 57 ] Accordingly, based on the evidence before me at this time I do not accept A.N.H.’s assertion that CRA will close down his practice if he does not pay $15,000 per month to the Agency. [ 58 ] There is also the fact that A.N.H., as of May 2018, has now decided to pay himself a monthly salary of $4,000.

After deductions his net salary is $3,232.55. Based on this amount, using “MySupportCalculator.ca”, he calculates his support obligations to be $1,268 per month, which is the amount of support he paid to FMEP for June 2018, not the $6,000 ordered by the court at the JMC.

As was the case with the amount of the proposal to CRA, this monthly salary is what A.N.H. has decided to pay himself from a company that has paid him an income of approximately $300,000 for several years as shown by his 2017 personal income tax return and other tax returns that form part of the record. [ 59 ] Accordingly, I find that it has been established beyond a reasonable doubt that A.N.H. had the ability to pay combined monthly support of $6,000 as of the date of the JMC. [ 60 ] This conclusion is supported by the fact that on May 9, 2018, part way through the hearing of this application, A.N.H., in fact, paid the $15,000 of arrears owing for the months of March, April, and May 2018 as a result of the order made at the JMC. [ 61 ] It should also be noted that contempt may be found if the contemnor decides to incur other debt obligations and pay related creditors rather than comply with a court order to pay money, such as a support order.

Furthermore, a parent is “not entitled to choose to deprive his or her children of support in order to pursue a matter in litigation”: Heisler v. Heisler, 2012 BCSC 753 at paras. 135 , 139-142. This is particularly germane to A.N.H. with his well established history of attempting to re-litigate issues already decided and which have

either been dismissed or stayed on appeal. [62] As Justice Saunders noted at paras. 35-36 of the CA Contempt Reasons: [35] In my view, the order should be set aside and the application for an order finding the appellant in contempt of court should beremitted to the Supreme Court of British Columbia, in the event the Director still seeks its determination. [36] By this conclusion I do not mean that the appellant is excused from compliance.

He must comply with the order as variedfrom time to time, or he will face sanction from the court. [Emphasis in original.] [63] In so far as the appropriate penalty is concerned, I find that A.N.H. has purged his contempt in relation to his failure to pay thesupport payments ordered at the JMC by doing so on May 9, 2018. [64] With respect to the other findings of contempt in relation to the JMC orders I will, in light of my conclusions with respect to thecourt’s contempt application, suspend the passing of sentence. [65] I find A.N.H.’s conduct resulting from his breach of the JMC orders to be deserving of reproof or rebuke and award L.D.G. thecosts of her contempt application on a special costs basis.

I am not prepared to do so on a lump sum basis as submitted by L.D.G.’scounsel since there is no evidence before me at this time upon which I could make that assessment. I understand there is anotherassessment regarding special costs set to be heard by the Registrar and the assessment of these costs could presumably occur at that timeas well. IV: THE EX MERO MOTU CONTEMPT APPLCATION Introduction [66] While it is clear that the court has the jurisdiction to initiate contempt proceedings on its own motion, the power to do so shouldbe used cautiously.

Furthermore, the alleged contemnor must be provided with an opportunity to explain their conduct: R. v. Jolly, [1990]B.C.W.L.D. 1889 at para. 10 (C.A.). [67] In Shaw Cablesystems Ltd. v. Er-Conn Development Inc., 2005 BCSC 478 at para. 11, Justice Johnston summarized theframework this way: [11] Counsel relies on R. v. United Fishermen & Allied Workers' Union et al (1967), (BC CA), 65 D.L.R. (2d) 579(B.C.C.A.).

On the question whether this court ought to have acted on its own motion to initiate the contempt proceedings, DaveyC.J.B.C. said, and this is relied upon by counsel for Shaw, that the jurisdiction in this court to proceed in that way is "... a drasticprocedure which should be used cautiously only to uphold the authority of the Court and its process or to enable justice to be properlyadministered, or to maintain the authority of the law." [Emphasis added.] Discussion [68] The May 9, 2018 notice of application was filed as an exhibit.

I do not place any significance on the fact that it was not acceptedfor filing by the registry since A.N.H. could not specify a hearing date, given that this date was to be decided by me as part of thejudicial management process which had commenced on March 5, 2018. [69] And yet, it is an understatement to say it is an extraordinary document when one considers: (

a) the history of this proceeding both in this Court and the Court of Appeal; (

b) the VLA orders that have been made in both courts; (

c) the February 2018 Reasons and in particular para. 58 where I referred to the Variation application proceeding before theRelocation application; and (

d) what was discussed and ordered at the JMC in March 2018, including A.N.H.’s advice that he would be prepared to proceed withthe Variation application in May 2018, and that he agreed the Variation application should proceed before the Relocation application. [70] The first three paragraphs of

Part I, the orders sought, essentially comply with the JMC order in that they do relate to variationof support issues. But the May 9, 2018 notice of application does not comply with the order in that it does not set out the incomes whichA.N.H. seeks to have imputed to him for the years in question. It also covers a time frame which precedes the Support Orders for whichvariation is sought. Accordingly, it is not a document that permits L.D.G. to respond to in any meaningful way on this issue. [71] Arguably, paragraph 5(

b) which relates to A.N.H.’s driver’s licence renewal could be seen to relate to his income, althoughthere is no indication that his ability to practice dentistry has been affected by this. [72] The document then goes on to seek relief which is clearly directed at this Court essentially acting as a court of appeal to many ofthe decisions made by the trial judge. I will cite but a few examples, being paras. 7-10: 7. An order that:

a) There was no evidence at any time in Vernon File No, 45924 and there was no evidence before the Court at any time and in anyhearing in Vernon File No. 45924 to support the finding of fact that the Claimant has “access to almost unlimited amounts of money’’ asfound by the Honourable Mr. Justice Cole in paragraph 51 of Hokhold v. Gerbrandt, 2012 BCSC 1313 (CanLlI). 8. An order that:

a) There was no case law before the Court at any time and in any hearing in Vernon File No. 45924 to support the finding of fact that theClaimant has "access to almost unlimited amounts of money" as found by the Honourable Mr. Justice Cole in paragraph 51 of Hokholdv. Gerbrandt 2012 BCSC 1313 . 9. An order that:

a) There was no evidence at any time before the Court and in any hearing in Vernon File No. 45924 to support that the Respondent’sparents "own and operate a large farm and a gravel business’1 at the Gerbrandt family farm in Swift Current. Saskatchewan betweenFebruary 25. 2010 and October 3. 2014 as found by the Honourable Mr. Justice Cole in paragraph 1 of the October 3. 2014 judgmentindexed at Hokhold v. Gerbrandt, 2014 BCSC 1875 (CanLlI). 10. An order that:

a) There was no evidence at any time before the Court and in any hearing in Vernon File No. 45924 to support that the Respondent'sparents "own and operate a large farm and gravel business" at the Gerbrandt family farm in Swift Current, Saskatchewan betweenFebruary 25. 2010 and October 3. 2014 as found by the Honourable Mr. Justice Cole in paragraph 1 of the October 3, 2014 judgmentindexed at Hokhold v.

Gerbrandt 2014 • BCSC 1875 (CanLlI). [73] The notice of application then goes on to seek similar relief over several additional pages. [74] The affidavit filed in support of the application did not comply with the May 1, 2018 Order in that it did not provide the basisfor the amounts A.N.H. sought to have the court attribute for support purposes to the years that variation was sought, although it didsuggest certain “options”.

In my view, it would be very difficult, if not impossible, for L.D.G. to understand and respond in a meaningfulway to this aspect of the affidavit. [75] Furthermore, although the financial statement was filed, it did not comply with the May 1, 2018 Order in that certain sectionswhich should have been completed were not, with little, if any, explanation being provided. [76] On May 28, 2018, and June 6, 2018, A.N.H. provided his explanation for what was filed on May 9, 2018. [77] He stated that he had not been able to fully comply with the May 1, 2018 Order, acknowledging that he had not identified theamounts he sought the court to impute his income to be for the years in question.

He said he had done the best he could based on thelimited time he had available to him and the state of his health, and that he was updating the information.

But, in his submissions hepersisted in referring to the “findings of fact that should never have happened”, that is the findings of the trial judge in 2012 and 2014. [78] And while he acknowledged that he had not fully complied with the May 1, 2018 Orders, he stated that he had, nonetheless,prepared the relocation materials by May 23, 2018, because his children came first, or words to that effect. [79] In considering whether A.N.H. is in contempt of court for his conduct in relation to the May 9, 2018 notice of application andthe May 23, 2018 Relocation Leave application, I take into account what Justice Newbury stated in the CA-VLA to which I referred atpara. 53 of the SC-VLA reasons being: [53] It is these factors, together with his filings in this court, that lead me to conclude that A.N.H. has been using the judicial process in amanner calculated to divert attention from the real issues outstanding between the parties – his annual income, the amount of support heshould pay, and his rights and obligations as a parent. [80] And at para. 49 of the SC-VLA reasons, I noted: [49] A.N.H. also submits that any negative effects of his conduct can be appropriately dealt with through proactive and effective casemanagement.

While this may be superficially attractive, I have decided that in these circumstances, case management alone will beinsufficient moving forward. [81] I conclude that A.N.H.’s conduct which resulted in the court bringing its own motion was in contempt of court. [82] I am mindful that a finding of contempt is to be made sparingly and is a sanction of last resort.

But the point has come wherethe court has no other option but to sanction this vexatious litigant who is now acting essentially in open defiance of the court. [83] In reaching my conclusions I have considered A.N.H.’s conduct after May 1, 2018, and, in particular, May 9 and May 23, 2018,within the following context. Since the February 2018 Reasons, the JMC and the memorandum of March 22, 2018, I have no doubt thatA.N.H. knew that the Variation application was to proceed before any Relocation application.

A.N.H. was also well aware, as the JMCtranscript indicates, that the process in relation to the Variation application was to proceed in stages. In fact, A.N.H. indicated at the JMCthat he agreed with the simplified process outlined by the court at that time to move the application forward.

He also expressed concernthat the application could not proceed in May 2018. [84] Rather than follow the court’s orders, which were focused on facilitating a Variation application, in particular A.N.H.’s incomeand expenses and how this was materially different from the $610,000 found by the trial judge, A.N.H. then proceeded in a mannerindicative of his intent to re-litigate under the guise of a Variation application the perceived injustices which he believes he has beensubject to by the trial judge and others over the years.

[ 85 ] While there were certain indications at the JMC that A.N.H. was prepared to conduct himself in a manner that would assist the Variation application in proceeding properly, his conduct since, in particular on May 9, 2018, and May 23, 2018, has demonstrated that, in fact, the opposite is now the case. [ 86 ] I am satisfied beyond a reasonable doubt, that is, I am certain that A.N.H. has no intention of conducting himself within the context of “proactive and effective case management”.

Rather, his conduct is deliberately designed to challenge the authority of the court and its process, and to prevent justice from being properly administered in this proceeding; in particular at this stage, the Variation application. [ 87 ] My reasons include the following. [ 88 ] I indicated to A.N.H. on May 1, 2018, that I had considerable difficulty with his explanation for having not complied with the JMC orders.

Notwithstanding those concerns, I essentially provided him with the opportunity to cure his non-compliance. [ 89 ] In my view, the record is to the effect that the court is attempting to have the Variation application proceed in an orderly way which, when it is heard, may go a long way to address A.N.H.’s financial concerns including arrears, CRA, FMEP and the like.

But A.N.H.’s conduct in refusing to follow the court’s orders and directions are a deliberate attempt to thwart the process in order to re- litigate his dissatisfaction with the actions of the trial judge and the Director of FMEP. [ 90 ] In my view, the May 9, 2018 notice of application is a cogent example of the contemptuous conduct to which I have just referred. This is evident by significant deficiencies and the inclusion of many paragraphs in the orders sought which relate to the following: (

a) clear attempts to have the court on the Variation application sit as a court of appeal of the trial judge; (

b) variation of support payments which predate the Support Orders, that is for 2010 and 2011, and which I have no doubt A.N.H. knew could only be set aside or varied by the Court of Appeal; (

c) seeking relief where leave was required pursuant to the SC-VLA and which amounted to a re-litigation of issues previously decided, and which I have no doubt A.N.H. knew went completely beyond the bounds of a proper Variation application based on a material change of circumstances since the Support Orders were made in 2012; (

d) failure to set out in the notice of application the amounts for support which he seeks the court to find for the years in question as ordered on May 1, 2018; (

e) the affidavit at best provides a range of potential incomes, the combination of the defective notice of application and affidavit, in my view, being a deliberate attempt by A.N.H. to thwart and impede L.D.G.’s ability to respond in a meaningful way; and (

f) the financial statement does not indicate why he is unable to complete significant portions of the statement. [ 91 ] Simply put, A.N.H. has no intention of having the Variation application proceed as a variation application per se as ordered by the court. Rather, he is intent only on proceeding with a variation application on his own terms, that is to re-litigate everything which has occurred in the past and with which he disagrees, in particular the perceived injustices caused to him by the trial judge and the Director of FMEP. [ 92 ] There is a real irony to A.N.H.’s course of deliberate conduct.

That is because as I stated at paras. 9-10 and 55-57 of the February 2018 Reasons, both the Court of Appeal and I have expressed our views that there are legitimate issues to be canvassed on a Variation application. This is also conceded by L.D.G. In my view, these would include, at a minimum, the income as indicated on A.N.H.’s income tax returns over the years in comparison to what was imputed for support purposes by the trial judge in 2012.

There is also the question of the review of L.D.G.’s income and her efforts to become self-supporting which was ordered to take place in 2016. [ 93 ] There can also be no doubt that it is in the best interests of L.D.G. and the children, let alone A.N.H. himself, to have the Variation application occur as soon as reasonably practical for all the reasons that have been documented and commented on for several years, including the psychological effects of this protracted litigation on the children. [ 94 ] And yet more than three months after the JMC, the parties and the court are no further ahead in having the Variation application heard than was the case in early March 2018. [ 95 ] During his submissions on May 28, 2018, A.N.H. stated that he was not “thumbing his nose” at the court.

I am certain that is exactly what he intended to do on May 9, 2018.

I am satisfied beyond a reasonable doubt that A.N.H.’s conduct in attempting to proceed only on his own terms going forward regarding the Variation application, as shown by his open defiance of portions of the May 1, 2018 Order, is deliberate and egregious, and his conduct must be sanctioned by the court in a meaningful way. [ 96 ] There is also what occurred on May 23, 2018, when A.N.H. sought to have leave granted without notice to L.D.G. for an application to be heard, also without notice to L.D.G., to have the children relocate from Saskatchewan, for this to occur before the Variation application, and for the materials in relation to that application to be sealed.

This was contrary to the directions I had made following my assignment as judicial management judge from which no appeal was taken.

In fact, A.N.H. appeared to be in agreement at the JMC that the Variation application should proceed prior to the Relocation application, and no mention was made at that time of the need to have a Relocation application heard on an “urgent” basis or otherwise. [ 97 ] There was also no mention of the need for this “urgent” application to be heard at the JMC, or the hearing of May 1, 2018, nor were any materials filed in this regard prior to the hearing of May 11, 2018, nor was any mention made of such an application that day when all the parties were before the court.

[ 98 ] I have no doubt that A.N.H. knew when he proceeded to file his relocation materials on May 23, 2018, that there was no likelihood of such applications proceeding without notice. [ 99 ] A.N.H. offers, as an explanation for this conduct, a letter authored by the children’s psychologist, Mr. Stewart, dated May 18, 2018, in which he is said to recant from previous opinions provided to the court. But once I ordered that the relocation materials be served on L.D.G.’s counsel, a further letter was written by Mr. Stewart, which places his May 18 letter in context.

The fact this letter was written confirms the need for L.D.G. and her counsel to have been provided with notice of the Relocation Leave application. [ 100 ] In any event, the letter of May 18, 2018, in no way provided the basis for A.N.H.’s filings on May 23, 2018. [ 101 ] I am satisfied beyond a reasonable doubt that what occurred that day was also wilful, deliberate, and egregious conduct designed to prevent the court from properly administering justice in this proceeding, in particular the Variation application, and is indicative of an ongoing pattern of contemptuous conduct. [ 102 ] This conclusion is reinforced by the fact that once I ordered A.N.H. to provide notice to L.D.G.’s counsel of the Relocation Leave application by March 25, 2018, which did occur three days later on May 28, 2018, A.N.H. decided not to proceed with this exceedingly “urgent” application, which was apparently in the best interests of the children. [ 103 ] In the event I am in error in finding A.N.H.’s filing of the Relocation application materials on May 23, 2018, consisted of ongoing contemptuous conduct, I would nonetheless find him in contempt in relation to the May 9, 2018 notice of application for the reasons I have indicated, and would impose on that finding alone the sanctions to which I shall now turn.

Penalty [ 104 ] As Justice Saunders noted in the CA Contempt Reasons at paras. 31-32: [31] Contempt of court is a heavy, blunt tool. [32] A measured response to non-compliance with court orders is the standard; a contempt order should be a last resort to obtaining compliance. I consider that the same restraint must be brought to bear on any resulting sanction.

In my view, the details of the sanction in the contempt order are intemperate, ergo unreasonable; the sanction would require modification were we to dismiss the appeal, which I would not do. [ 105 ] I have concluded that the penalty for A.N.H.’s contempt should consist of two components. [ 106 ] The first encompasses a series of orders in order to, once again, attempt to have the Variation application proceed in an orderly way.

On June 6, 2018, I advised the parties to make nine days commencing September 25, 2018, available for the hearing of the Variation application, although I would hope that, with these orders, it will take less time than that. [ 107 ] Accordingly, I make the following orders: (

a) A.N.H. is to provide notice to L.D.G.’s counsel of any leave applications or requests to re-appear; (

b) by June 20, 2018, A.N.H. is to file and serve a notice of application with a hearing date of September 25, 2018, not an amended notice of application to the application filed on April 10, 2014, in which the orders sought are restricted to: (

i) the years for which variation of support is sought; (ii) the amount of income he seeks the court to impute for support purposes for those years; (iii) reduction or cancellation of arrears of support; and (iv) costs. (

c) by June 20, 2018, A.N.H. shall file and serve an affidavit limited to 20 pages, which shall be restricted to setting out the evidence upon which the amounts sought to be imputed for support are based, and an explanation of how this amounts to a material change in circumstances since the support orders were made in 2012. Any exhibits to this affidavit are to be restricted to these issues; (

d) by July 16, 2018, L.D.G. and the Director are to file and serve their response materials to A.N.H.’s Variation application, and L.D.G. is to file her materials respecting the review of spousal support as ordered by the trial judge in 2012 (the “Review application”); (

e) A.N.H. is to forward his reply materials regarding his Variation application and his response to the Review application to the court for its review prior to those materials being accepted for filing by the Registry by July 31, 2018; (

f) a JMC set for two hours is to be set between August 1, 2018, and August 8, 2018 (the “August JMC”), in Vernon or Kelowna with counsel having leave to appear by telephone; (

g) at the August JMC, the parties may seek leave to file additional materials; (

h) should any of the parties decide to rely on expert evidence, whether that be accounting/financial or medical, then notice of that intention and the expert reports in question are to be served prior to the August JMC; (

i) A.N.H. is to pay $6,000 per month in child and spousal support for the months of June to September 2018 inclusive, payable on the first of each month with the balance owing for June 2018 to be paid by June 15, 2018; and

(

j) if A.N.H. does not pay the support as ordered in subparagraph (i), then the matter is to be brought before me at 9:00 a.m. within 14 days following the date of the missed payment as arranged with Supreme Court Scheduling. [ 108 ] Since I have found that A.N.H. has the capacity to pay $6,000 per month, I want to make it clear to the parties that L.D.G. is not required to bring another contempt application in the event A.N.H. fails to make the support payments as ordered.

Rather, the matter is to be brought before me in the manner I have just indicated. [ 109 ] I will now conclude with the second component of the penalty portion of these reasons. [ 110 ] As I have indicated, the court cannot condone A.N.H.’s wilful and egregious conduct to which I have referred.

The time has come for it to communicate to him in the clearest way possible that this proceeding will take place on the terms ordered by the court following submissions of the parties, and not those decided upon by A.N.H. himself. [ 111 ] Accordingly, I sentence you, A.N.H., to a term of imprisonment of 10 days, the term to be served on an intermittent basis in order to allow you to operate your dental practice between Thursday and Saturday each week, which is the current schedule. [ 112 ] The 10 days will consist of: • Today, June 12, 2018 and tomorrow, June 13, 2018; • Sunday, June 24 to Wednesday, June 27, 2018; and • Sunday, July 1 to Wednesday, July 4, 2018. [SUBMISSIONS REGARDING A STAY] [ 113 ] A.N.H. seeks a stay of the orders I have made in order to, amongst other things: (

a) seek leave to have me recuse myself; and (

b) re-open the contempt hearing in order to argue that I can, pursuant to s. 9 of the Supreme Court Act , make different findings of fact and reach different conclusions than did the trial judge. [ 114 ] I am not prepared to grant a stay. My reasons include that while A.N.H. is self-represented, he has, for several years, had considerable experience in acting on his own behalf in this Court and the Court of Appeal.

He has been declared a vexatious litigant by both courts. [ 115 ] Furthermore, in light of the conduct which forms the basis of my findings of contempt and the associated penalty, I am of the view that if a stay is to be granted, the decision should be made by the Court of Appeal. [ 116 ] This proceeding is adjourned. “Abrioux J.”