T.B. v. S.S., 2021 BCPC 159

Citation: T.B. v. S.S. 2021 BCPC 159 Date: 20210602 File No: [Omitted for publication] Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.B. also known as T.S. APPLICANT AND: S.S. RESPONDENT ORAL RULING OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Applicant: S. J. Davidson Counsel for the Respondent: H. Lucky Place of Hearing: Prince Rupert , B.C. Date of Hearing: June 2, 2021 Date of Judgment: June 2, 2021

[ 1 ] THE COURT: These are my reasons with respect to the March 15, 2021 Notice of Motion filed by T.B. [ 2 ] By way of background, on December 24, 2020, Judge Stewart found that S.S. had wrongly denied parenting time to T.B. contrary to the September 12, 2018 order of my brother Judge Seidemann III. Then, on January 21, 2021, I found that S.S. had wrongly denied parenting time over the 2020 Christmas school break to T.B., contrary to the December 24, 2020 order of Judge Stewart.

T.B. requested in her Notice of Motion that this court use the extraordinary remedy set out in s. 231 of the Family Law Act to imprison S.S. for seven days or, in the alternative, this court require S.S. to pay a fine of up to $5,000 for the benefit of T.B. as a penalty to S.S. for breaching the September 12, 2018 order of Judge Seidemann III. [ 3 ] Now, I must say that the wording of the Notice of Motion left me somewhat perplexed and I will explain the reason for that.

Details of the order requested: i. an order under s. 231(2) that S.S. be imprisoned for a period of seven days for failing to comply with the order of Judge Stewart made December 24, 2020, or in the alternative; ii.

S.S. shall pay a penalty of up to $5,000 to and for the benefit of T.B. for breaching the order of September 12, 2018. [ 4 ] That is, the Notice of Motion does not set out an either/or in relation to the December 24, 2020 order, rather it suggests seven days' jail for breaching the December 24, 2020 order or, in the alternative, a penalty of up to $5,000 for breaching the September 12, 2018, order. [ 5 ] CNSL S. DAVIDSON: Your Honour, may I make a comment on that? [ 6 ] THE COURT: No, that is okay. [ 7 ] CNSL S.

DAVIDSON: Thank you. [ 8 ] THE COURT: In relation to this matter, I have reviewed ahead of time the 116-page judgment of my brother Judge Brecknell, unreported, which was filed on April 28, 2017, in this matter. I have also reviewed: I. the Submissions of S.S., Respondent , filed by his counsel, Mr.

Lucky, on April 26, 2021; II. the affidavit of S.S., which is Document 124, filed on June 1, 2021; III. the affidavit of T.B., which is Document 122, filed on May 28, 2021; IV. the affidavit of S.S., which is Document Number 119, filed on April 26, 2021; V. the affidavit of T.B., which is Document 118, filed on April 19, 2021; VI. the affidavit of T.B., which is Document 115, filed on March 15, 2021; VII. the order of Judge Brecknell made April 28, 2017, which is Document 77; VIII. the order of Judge Seidemann III made September 12, 2018, which is Document 94; IX. the order of Judge Stewart made December 24, 2020, which is Document 108; and X. the order that I made on January 21, 2021, which is Document 112. [ 9 ] Counsel for T.B. has pointed out some of the factual findings made by Judge Brecknell on April 28, 2017, specifically concerning credibility and about S.S.'s “behaviour”, for lack of a better term.

I do note that there is a long history of S.S. not complying or, in the alternative, having excuses for why he did what he did, as pointed out by Judge Brecknell on several occasions in his April 28, 2017, decision.

I note at paragraphs 122 and 123 of the decision where Judge Brecknell stated: [122] He acknowledged that he would quit his job if Ms. [B] received retroactive child support suggesting that his paying of the Court ordered support for the last four years should be recognized as sufficient. [123] Mr. [S.] pointed out to the Court that not being legally trained he may have on some occasions use words incorrectly and that he should not be faulted for that. That is a fair suggestion.

However, when Mr. [S.] ventured into giving evidence that was patently untrue, particularly in the face of convincing evidence to the contrary, he is not entitled to the same leeway. [ 10 ] In addition, at paragraph 126: Overall, with rare exception, where there was a discrepancy between the evidence of Ms. [B.] and Mr. [S.], the Court prefers Ms. [B.]’s version of how events occurred to be more credible and reliable. [ 11 ] I need to point out to the parties that I am not reconsidering Judge Brecknell’s April 28, 2017 decision.

I am basing my decision today on: I. the materials that were given to me by way of affidavits;

II. the decision and order Judge Brecknell made back on April 28th of 2017, which, among other things, ordered S.S. pay a fine of $1,000 to the clerk of the court for the benefit of T.B. The fine still has not been paid. III. the orders that were made on September 12, 2018, December 24, 2020 and January 21, 2021; and IV. the submissions of counsel, including the written submissions of Mr. Lucky and the oral submissions made today by Mr. Davidson and Mr. Lucky. [ 12 ] For the most

part I am not concerned with the particulars of the affidavits as far as credibility goes, that is: as far as “he said/she said” and what has transpired so far in 2021 between the parties. It is clear to me, as it was to Judge Brecknell four years ago, that the current relationship between T.B. and S.S. is dysfunctional and that the children, frankly, are being used as pawns. [ 13 ] It was suggested by Mr. Lucky that perhaps counsel should be appointed for a couple of the children or a s. 211 Family Law Act report should be ordered.

Today's Notice of Motion has not asked for that relief and there is not a Notice of Motion from S.S. requesting that relief. As a result, I am not going to deal with those issues today. I will invite S.S. to bring a new application to the court under the new Provincial Court Family Rules and ask the court to either appoint counsel for the children or, in the alternative, order some kind of report either under s. 202 or 211 of the Family Law Act .

My decision today deals with the already-found-to-be-true decisions by S.S. not to comply with court orders. [ 14 ] I want to deal with one factual issue, though, as it relates to Judge Brecknell's order of April 28, 2017, because I think it is important that we all remind ourselves of the words that he used at paragraph 278: Mr. [S.] shall pay a fine of $1,000.00 by December 31, 2017 to the Clerk of the Court for the benefit of Ms. [B.]. [ 15 ] At paragraph 20 of T.B.'s affidavit of April 19, 2021, she states: After our trial in 2017, S.S. was ordered to pay a $1,000 fine for not completing his financial statement as required.

He did not pay the fine. [ 16 ] S.S. in his affidavit of April 26, 2021, at paragraph 24, says: In response to paragraph 20 of the April affidavit, I believed the fine was to be added to child support arrears. I will pay this amount by the end of May 2021. [ 17 ] Simply put, I disbelieve S.S. on that point. I have no doubt that S.S. was fully aware that he had to pay the $1,000 fine to the clerk of the court by no later than December 31, 2017, as told to him by Judge Brecknell. Furthermore, as I mentioned earlier, in his affidavit of April 26, 2021, S.S. said he would pay the $1,000 fine by May 2021. I asked Mr.

Lucky today if S.S. had paid the $1,000 fine and Mr. Lucky told me that S.S. still has not paid the fine. [ 18 ] The order of Judge Stewart dated December 24, 2020, states in paragraph 3: Upon being satisfied that the father, S.S., has wrongfully denied parenting time to the mother, T.B. also known as T.P., this court orders under s. 231(4) of the Family Law Act that a police officer apprehend O.S. born [omitted for publication], C.S. born [omitted for publication], and S.S.

Jr. born [omitted for publication], and take them to T.B. also known as T.P. [ 19 ] Paragraph 2 of that same order said: With respect to O.S., C.S., and S.S.

Jr., T.B. will have parenting time on December 25, 2020, from 11:00 a.m. until 5:00 p.m. and continuing on December 26, 2020, at 9:00 a.m. until further order of the court. [ 20 ] There can be no doubt that S.S. knew exactly what his obligations were with regard to the children being with their mother on those dates and at those times. [ 21 ] On January 21, 2021, I was satisfied under s. 61 of the Family Law Act that during the 2020 Christmas school break, S.S. had wrongfully denied T.B. parenting time or contact time with the children, O.S. and C.S. [ 22 ] The net result is that S.S. has been found: I. twice to have wrongfully denied parenting time, and II. once to have refused to obey an order of the court, that being the order in regards to the $1,000 fine that is now more than four years old. [ 23 ] In all the circumstances, this case is about as close as one can come to the line of being sent to jail, but I am not going to send S.S. to jail. [ 24 ] I find S.S. has, as contemplated by s. 231(1), of the Family Law Act , failed to comply with an order made under the Family Law Act on at least three occasions and I am satisfied that there is no other order under the Family Law Act that will be sufficient to secure S.S.'s compliance moving forward.

Nevertheless, I am going to take the unusual step of not applying the remedy set out in 231(2), but I am going to tell S.S. that, having made the determinations that I have, the next time he is before the court for disobeying a court order, he can expect to go to jail. [ 25 ] I am making an order under s. 228 of the Family Law Act regarding S.S.’s ongoing disobeyance of the order of my brother Judge Brecknell dated April 28, 2017. In addition to the $1,000 that is still owing from April 28, 2017, S.S. shall pay, pursuant to s. 228(1)(c) (ii), a fine in the amount of $1,000 by no later than June 30, 2021.

[ 26 ] In relation to the disobeying of the December 24, 2020, order of Judge Stewart, under s. 228(1)(c)(ii) of the Family Law Act , S.S. shall pay a fine of $4,000 to the clerk of the court for the benefit of T.B. by no later than September 30, 2021. [ 27 ] THE CLERK: Sorry to interrupt, Your Honour, would you like it as T.B. as that is -- [ 28 ] THE COURT: Mr. Davidson, would you prefer that the order be to the benefit of T.B.? [ 29 ] CNSL S.

DAVIDSON: Yes, Your Honour [indiscernible/teleconference] T.B. also known as T.P. [ 30 ] She remarried after the last changes made -- [ 31 ] THE COURT: Thank you. [ 32 ] CNSL S.

DAVIDSON: -- [indiscernible] so she is now T.B. [ 33 ] THE CLERK: I just need that spelling of her name, Your Honour. [ 34 ] THE COURT: [omitted for publication] [ 35 ] THE CLERK: Thank you, Your Honour. [ 36 ] THE COURT: Just so we are clear, the $1,000 fine pursuant to Judge Brecknell's April 28, 2017 order is still owed; there is an additional $1,000 fine for non-payment of that; and there is a $4,000 fine for not complying with the December 24, 2020 order. So $5,000 new money, $1,000 old money. Is that clear, Mr. Lucky? [ 37 ] CNSL H.

LUCKY: It is, thank you, Your Honour. [ 38 ] THE COURT: Is that clear to you, Mr. Davidson? [ 39 ] CNSL S. DAVIDSON: Yes, Your Honour, I just want to make sure everything is correct. So the two $1,000 fines to be paid by June 30th, the $4,000 fine to be paid by September 30th? [ 40 ] THE COURT: Well, in fact, I did not make an order as to when the $1,000 fine imposed by Judge Brecknell is to be paid -- I did not change the date. It is due and payable immediately. [ 41 ] CNSL S.

DAVIDSON: Right. [ 42 ] THE COURT: The new $1,000 fine for not having paid the April 28, 2017 fine imposed by Judge Brecknell has to be paid by June 30th of 2021. The $4,000 fine has to be paid by September 30, 2021, as I am a realist and I know S.S. is going to have to go commercial fishing this summer to earn the money to pay the $4,000 fine. [ 43 ] CNSL S. DAVIDSON: Okay, thank you, Your Honour. [ 44 ] THE COURT: Any questions, Mr. Davidson, in addition to the one you just asked? [ 45 ] CNSL S. DAVIDSON: No, Your Honour. (REASONS CONCLUDED)