McBurney v. Saunders, 2015 BCSC 1093

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: McBurney v. Saunders, 2015 BCSC 1093 Date: 20150625 Docket: 18680 Registry: Nelson Between: Margot Elizabeth McBurney Petitioner/Respondent And Dana Paul Saunders Applicant Before: The Honourable Mr. Justice McEwan Reasons (Mandated by s. 32(3) of the Interjurisdictional Support Orders Act , S.B.C. 2002,

Chapter 29) Petitioner/Respondent, appeared on own behalf: M.E. McBurney Counsel for the Applicant: No appearance Place and Date of Trial/Hearing: Nelson, B.C. May 19, 2015 Place and Date of Judgment: Nelson, B.C. June 25, 2015 [ 1 ] This matter comes before the court under the Interjurisdictional Support Orders Act , SBC 2002, c. 29. It found its way onto a chambers list on May 19, 2015 in Nelson. No one appeared for the applicant, Mr. Saunders. The petitioner (respondent to the application) attended, having had a sheriff appear at her door with a notice compelling her to come.

The notice purports to emanate from the court. [ 2 ] I have expressed my views about this procedure on an earlier occasion in Leduc v. Leduc , 2013 BCSC 78 . I will take it as read. Since that time I have only encountered one other application of this kind, on a chambers day in Vancouver. At that time a lawyer appeared purporting to act as a “friend of the court”. Counsel specifically advised that he did not appear on behalf of the applicant but to assist the court with its duties under the legislation.

He was advised that the court chooses its “friends” and that Leduc had addressed the problems with the legislation. These include, the way it purports to enlist the court in the role of pro bono counsel for the applicant, and mandates an asymmetrical process wherein the applicant is relieved of any responsibility for the materials submitted, while the respondent is confronted in person and forced to explain. [ 3 ] Leduc was never appealed.

It nevertheless appears that the Designated Authority does not consider it an impediment to continuing to circumvent the requirement that parties appear in person or by counsel. I offered my concerns in Leduc without seeking further submissions from counsel for the Designated Authority on the constitutionality of legislation. The simple provision of counsel for the applicant would address the difficulties I outlined.

It is regrettable that the Designated Authority or those who instruct him appear determined to avoid doing so. [ 4 ] When this matter came before me on May 19, 2015, the respondent appeared, very anxious about being summoned to court, and made a brief submission. She earns only $30,000 per year. She had been obliged to miss a day of work, which, on that income, is a meaningful amount of money. She identified a number of deficiencies in the material. On my cursory view of it (bearing in mind that I do not take responsibility for the correctness of my self-instruction), her submissions appear to be well taken.

The applicant seeks an order cancelling arrears of child support based on income information dating only up to 2012, and then, only on the basis, in that year, of a handwritten T4 of debatable authenticity. [ 5 ] The order presently binding the applicant was made April 10, 2007, imputing an income of $40,000 per year to him. On the basis of this, he was obliged to pay $345 per month in child support. On the form submitted to court, he wrote that his child support “was based on what Ms.

McBurney told them I made, I was never given the opportunity to prove my income wasn’t what she said it was.” The problem with this is that the order shows on its face that he was present and represented. [ 6 ] According to the respondent, the arrears of child support exceed $18,000.

[ 7 ] The applicant’s tax records, to the extent they have been provided, show that he made $45,360 in 2010 and $58,320 in 2011, and that he estimates he earned $21,330 in 2012. Even accepting that to be true, the average for the three years of income information the applicant provided exceeds the $40,000 imputed. [ 8 ] I will not say more. The material is inadequate by any standard. It could not have been examined by anyone in the office of the Designated Authority. On the face of it, the respondent was compelled to attend court needlessly. She is entitled to costs. Who should pay them?

The Authority who compelled her to attend pointlessly, to her emotional and financial cost? [ 9 ] There are questions raised by these proceedings which I think require the assistance of counsel for the Designated Authority. I extend an invitation to that office to notify this Court by July 31, 2015 if it intends to make further submissions on the issue of the constitutionality of the statute and on costs. Failing that assistance, I may feel obliged to embark on the sort of self-instruction that the statute otherwise appears to contemplate.

I have already expressed the view in Leduc that that misunderstands the role and function of a Superior Court judge. “McEwan J.” _______________________________ The Honourable Mr. Justice McEwan