B.D. v. L.D.B., 2003 BCCA 189

Court of Appeal for British Columbia Citation: B.D. v. L.D.B., 2003 BCCA 189 Date: 20030325 Docket: CA029746 Between: B.D., also known as B.K.D. Respondent ( Plaintiff ) And L.D.B. Appellant ( Defendant ) Before: The Honourable Madam Justice Rowles The Honourable Madam Justice Newbury The Honourable Mr. Justice Smith Appellant appearing on his own behalf D.S.

MacKinlay Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia February 27, 2003 Place and Date of Judgment: Vancouver, British Columbia March 25, 2003 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice Rowles The Honourable Mr. Justice Smith Reasons for Judgment of the Honourable Madam Justice Newbury: [ 1 ] In May 2002, the Chambers judge below heard an application brought by the purchasers of certain real property for the release of a judgment registered against title.

The applicants had agreed to buy the property from the appellant herein, Mr. B. The judgment was in fact a maintenance order registered in 1996 by the respondent, Ms. D., in order to secure Mr. B.'s support of their child, N. N. is now 11 years old and is in Ms. D.'s custody. She originally opposed the release of the registered charge unless "substitute security" was provided. Mr.

B., on the other hand, sought the release of the funds to himself, arguing that security was not necessary and that he required the funds to carry on his occupation of investing on the stock market. [ 2 ] After some initial missteps, it was evidently agreed by all concerned that the property sale should proceed and that title should be cleared; but that the proceeds of the appellant's equity in the property, which came to some $101,000, should be held in a solicitor's trust account pending the Court's determination of the question of alternate security. [ 3 ] The purchasers' application was brought pursuant to s. 26(10) of the Family Maintenance Enforcement Act , R.S.B.C. 1996, c. 127 .

The relevant portions of s. 26 provide:

(10) On application by (

a) the person against whose land a maintenance order is registered, or . . .

the court may make an order discharging or partially discharging the registered order or an order postponing the registered order to allow the registration of a charge. . . .

(12) The court may, in an order made under subsection (10), impose any conditions as to security or otherwise it considers necessary and reasonable. I pause to note, as did the Chambers judge below, that Stewart J. had dismissed a previous application brought by Mr. B. himself, on the basis that the application must be made by the registered owner of the property. By the time of that application (April 2001), Mr. B. was no longer the registered owner.

Thus the purchasers filed their own notice of motion in this action and the parties were evidently content to have the Court proceed without the purchasers' being required to file a petition. The Chambers judge said that to insist on that step would have been a triumph of form over substance, and counsel did not take issue with his approach.

Although I would not want to be taken as agreeing with the proposition that it was merely a formalistic misstep for the purchasers to make their application in the way they did rather than to issue a proper originating notice, I am of the view that in the unusual circumstances of this appeal, which is an outgrowth of a long and costly family dispute, it is in the interests of all and in the interests of the administration of justice that this issue be resolved without further expense and delay. [ 4 ] The question for the Court at the time of the second application was whether the funds in trust would be released unconditionally to Mr.

B. or whether all or part should be held as security for N.'s future support. The Chambers judge noted that the cases decided under the predecessor to s. 26(10) indicate that "the purpose of security is to secure payment of maintenance and not simply to fetter the property or assets of the paying spouse.

Nor, obviously, is it intended to punish the paying spouse, although it has the potential to be used in that fashion." He continued: Generally, security is not ordered, if I understand the principles of the authorities cited by counsel correctly, in the absence of some history of deliberate disobedience to court orders, or conduct making the risk of future disobedience something more than a mere speculative concern. [para. 9] [ 5 ] Turning to the facts before him, the Chambers judge noted that there was "a history, albeit not a particularly egregious history, of disobedience with the spirit, if not the letter, of court orders." He was referring to the fact that in 1996, an error had been made in the text of a maintenance order which had specified maintenance for N. of $600 per month payable by Mr.

B. The order wrongly specified the year in which payments were to commence. It was later corrected, but at some cost to Ms. D., and until it was corrected, Mr. B. paid only $400 per month. (Once the correction was made, he paid the shortfall.) As well, Mr. B. had failed to pay maintenance between January and April 1998, when the parties' custody and access dispute over N. was particularly intense. The Chambers judge below observed: I accept that [Mr. B.] allowed his emotions to overwhelm his judgment leading to that hiatus in maintenance payments.

I also note that he brought the payments back into good standing reasonably promptly thereafter. The reason this latter circumstance is of some significance is that there remains the prospect for future intense litigation in this unfortunate matter. One hopes that that is unlikely, but past history does not give this court confidence that that is the case. [para. 11] [ 6 ] The Chambers judge also queried Mr. B.'s connection to the community (Kelowna) where he lives and to British Columbia. In this regard the Court observed: [Mr.

B.] is self-employed and his employment consists of managing his assets by way of trading on them on the Internet. He can, as the plaintiff points out, do this from anywhere in the world. He has no other income stream that has been referred to in evidence. I am not aware of any other fixed assets that he owns in this province and to which the plaintiff may have recourse in the event of a future default.

He lives with a woman in Kelowna, and while she has significant roots here, the uncontradicted evidence is that the defendant has had a number of relationships since his separation from the plaintiff, some of which have been described from time to time as stable, and all of which have proved to be relatively short-lived. [para. 12] [ 7 ] Accordingly, the Chambers judge imposed terms on the release of part of the fund to Mr. B. He ordered that $45,000 be held in trust, effectively on a declining balance basis (as child maintenance was paid) over the next seven years or so. Mr.

B. was given liberty to apply to vary the order after September 1, 2003. In this regard, the Court said this: The second point I wish to make relates to the comment I made regarding the defendant being at liberty to apply to vary this order. I am satisfied that if there is a substantive relationship between the defendant and his son, that there is virtually no risk of him leaving this province. I am satisfied that he wants to build that relationship. The history, however, indicates that that has not been something which has proceeded without difficulty.

Recently, the Court of Appeal has set out some defined access. I am told by counsel that the first several meetings, while they have not gone without a hitch, have taken place. That, it seems to me, is a step in a direction which has not been realistically taken in the recent past. Should the

schedule of access visits as contemplated by the Court of Appeal be met over the course of the next year, such that there is an apparent bond and relationship developed between the defendant and his son, at least from my perspective, the concern that gives rise to the need for security in these circumstances would be greatly diminished. It is on that footing that I invite the defendant to consider re-application, depending on how things go over the next fifteen or sixteen months.

That is my decision. [paras. 18-19] The reference to this court's defining of access is to a judgment dated March 28, 2002 which set out detailed terms for the "phase-in" of Mr. B.'s access to N., which was seen as necessary because of a long hiatus. This court's Reasons for Judgment, published at [2002] B.C.J.

No. 629 , recounted the history of the custody and access dispute in general terms and expressed the hope that if serious difficulties were encountered thereafter regarding access to N., "another justice [of the Supreme Court] might become seized of the matter so that legal wrangling may be kept to a minimum and the intention of our order may be fulfilled." (para. 15.)

[ 8 ] We are now told that the access order has not been complied with, although neither party has sought to enforce or vary the order. Who is to blame, if anyone, for this failure is obviously not something that can be determined on the material before us. Nevertheless, in his factum and in his oral argument in this court, Mr. B. reviewed the history of his dispute since 1995 with Ms. D. concerning custody of and access to N. Ms. D.'s affidavit material responded fully, providing her version of why Mr.

B. has never developed a "substantive relationship" with N., despite his expressed anxiety to do so. [ 9 ] We are concerned in the present appeal only with the matter of support. Mr. B. argues that the Chambers judge erred in finding reason for "concern" regarding his payment of support in the future. Mr. B. acknowledges that in early 1998, his frustration overcame him and he failed to comply with the order for a few months; but he says that will not happen again and that most of the parties' misunderstandings have now been resolved by his providing post-dated cheques to Ms. D. or her counsel. Mr.

B. also suggests that he has become something of an advocate for fathers' rights and that if he were to miss a support payment, he would lose all credibility in that cause. [ 10 ] For her part, Ms. D. deposes that Mr. B. has paid for N.'s support only when "forced" and that she fears he may leave the province — a possibility Mr. B. strongly denies. He is a long-time resident of British Columbia and is involved in many community activities in the Kelowna area. He also lives with a woman in Kelowna, as the Chambers judge noted. [ 11 ] With respect, I am of the view that the Chambers judge failed to appreciate Mr.

B.'s background and connection to his community. The only specific evidence that Mr. B. might ever leave British Columbia was a statement made by Ms. D. in her affidavit dated April 11, 2001 that in a conversation she had had with him, he said he "intended to sell his house, buy a motor home to live in, and spend substantial time outside of Canada (he specifically mentioned Texas as a place he intended to go)." However, all of Mr.

B.'s past actions indicate that he is very anxious to be near N., and it seems unlikely he would move away from where the child lives. [ 12 ] This leaves the question of whether alternate security should be ordered, aside from the question of Mr. B.'s future place of residence. As counsel for Ms.

D. stated, there is a dearth of case-law at the appellate level concerning s. 26(10) and its predecessors (which may be traced back in similar terms through the Family Relations Act , S.B.C. 1972, c. 20, s. 34, the Supreme Court Act , R.S.B.C. 1960, c. 374, s. 44, the Supreme Court Rules , 1906, O. 70a, s. 7, to the Supreme Court Rules , 1890, s. 7 (M.R. 960)).

What case-law there is supports the proposition that alternate security should not be insisted upon in every case, but that it may be thought appropriate where the paying party has deliberately refused to comply in the past or is likely to refuse to pay in the future: see Witherow v. Witherow [1994] B.C.J. No. 2124 (B.C.S.C.), at para. 21 ; Langstaff v. Langstaff [1999] B.C.J. No. 327 (B.C.S.C.) .

I would also add that where the paying party is applying to have an existing charge released, the onus would appear to be on him or her to show that alternative security is no longer necessary to protect the interests of the child. [ 13 ] Applying these principles to the facts before us, it seems to me the Chambers judge was right to focus on N.'s needs and to take a cautious approach to ensuring that his future support is secured. Mr.

B. acknowledged that he had failed at least once before to comply with his obligations, and his insistence on paying only $400 when he knew the Court had fixed N.'s support at $600 per month does not do him any credit. More importantly, the degree of animosity between the parents obviously continues undiminished, notwithstanding all the court orders they have obtained. Mr. B. also acknowledged that N.'s interest must be paramount. The Chambers judge's order clearly reflected that principle.

On the whole, I would not disturb the order that security in the amount of $45,000 be held, subject to payments out in accordance with the Chambers judge's order. [ 14 ] However, in giving Mr. B. liberty to apply to vary any time after September 2003, the Chambers judge's order unfortunately linked the question of security for maintenance with the development of the "bond and relationship" between Mr. B. and N. In fairness to the Chambers judge, he was not familiar with the reasons why that bond has not developed and no doubt did not have time to read the long history of the matter in the time available to him.

Generally, however, it is inappropriate to link maintenance for support or security therefor, to custody and access matters (see C.(L.K.) v. C.(M.I.) (1993) 1993 CanLII 1418 (BC CA) , 100 D.L.R. (4th) 68 (B.C.C.A.), at 76) or by the same token, to the development of a "relationship" between parent and child. Maintenance will continue to be required for N. no matter what his relationship with his father and no matter what the state of affairs between the two parents may be. [ 15 ] I would therefore allow the appeal to the extent of deleting paragraph no. 2 of the Chambers judge's order dated May 1, 2002.

In all other respects, I would not interfere with the Chambers judge's order. “The Honourable Madam Justice Newbury” I AGREE:

“The Honourable Madam Justice Rowles” I AGREE: “The Honourable Mr. Justice Smith”