K.J.P. v. B.S.J.G., 2024 BCSC 167

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: K.J.P. v. B.S.J.G. , 2024 BCSC 167 Date: 20240202 Docket: E01002 Registry: Abbotsford Between: K.J.P. Claimant And B.S.J.G. Respondent Before: The Honourable Justice Schultes Reasons for Judgment Counsel for Claimant: D.R. Greig C. Anninos The Respondent, Appearing on his own behalf: B.S.J.G. Place and Date of Trial: New Westminster, B.C. May 2-5, 8-10, 12, 2023 Place and Date of Judgment: New Westminster, B.C.

February 2, 2024 Table of Contents Overview ... 3 During the Marriage .. 4 Employment and Financial Arrangements . 4 Parenting . 8 Events Leading to the Separation .. 9 The Parties’ Debts . 9 The Respondent’s Behaviour 10 Since the Separation .. 13 The Claimant’s Employment and Financial Situation . 13 The Respondent’s Employment and Financial Situation . 16 Parenting . 20 Child Support 25 Other Alleged Misconduct by the Respondent 27 Non-Disclosure . 36 Discussion .. 38

Proper Use of Misconduct Evidence . 38 Effect of Non-Disclosure . 40 Credibility Assessment 41 Parenting . 44 Income for Support Purposes . 48 Child Support 55 Special and Extraordinary Expenses . 62 Spousal Support 65 Property Division .. 70 Fines . 79 Protection Order 80 Conclusion .. 82 Overview [ 1 ] This family law trial deals with the consequences of the end of the parties’ 16-year marriage. [ 2 ] The claimant is 43 years old and the respondent is 42. They began their relationship in secondary school.

After their oldest child was born in 2000, the claimant and the child lived with her parents until 2002, when the parties married and began to live together. [ 3 ] They separated in December 2018. The respondent returned to the family home the following February, but the parties did not resume their relationship, and he left for the final time in December of that year. [ 4 ] Their children are: H. (22), L. (16), and C. (13).

Despite his age, as of the trial dates H. was living at home in order to complete his post-secondary education. [ 5 ] The claimant works as an educational assistant in the public-school system. It is common ground that during the marriage she was primarily responsible for caring for the children and looking after the home. [ 6 ] The respondent formerly held a supervisory position with an energy utility, which was terminated in December 2019. Since losing that job he has been seeking to qualify in the HVAC (heating, ventilation and air conditioning) field.

Until shortly before the trial dates he had been receiving disability benefits was because of an Achilles tendon injury that he suffered in August 2022, but planned to return to work when the trial concluded. [ 7 ] The parties’ main asset is the former family home, which had a value of approximately $1.35 million as of the trial dates. [ 8 ] In addition to a divorce, which they agree should be granted, the main contested issues are: • The appropriate parenting arrangements for the younger two children; • The respondent’s income for child and spousal support purposes, and whether he is intentionally underemployed; • Whether support is payable for their older child H., on the basis that he is unable to withdraw from their care due to his educational requirements; • The entitlement of the claimant to spousal support; • The effect on property division of the claimant’s post-separation efforts to preserve the former family home from foreclosure, which involved a significant advance of funds from a family friend, and of the increase in its value since separation; • The effect of the respondent’s deficient pre-trial disclosure, despite orders for document production, and whether a fine should be imposed on him to address it; • Whether a basis exists for a protection order against the respondent; and • The relevance and proper use of the extensive evidence of pre- and post-separation misconduct by the respondent that was led by the claimant.

During the Marriage

Employment and Financial Arrangements [ 9 ] The claimant testified that because of her family responsibilities, she had only a part-time job at a local recreation centre while the children were young. [ 10 ] In 2008 she completed the ten-month educational assistant training program. She then began working in that role, with a break following C.’s birth, and has done so continuously since January 2016, by which point all of the children were in school. [ 11 ] Her long-term goal was to build on those qualifications and eventually become a teacher.

There is a process available that allows educational assistants to obtain the necessary training to make that transition. She said that she wished to pursue the training while she was off on maternity leave after C.’s birth, but that the respondent would not agree to it. (He did not address this particular allegation in his evidence.) [ 12 ] The respondent agreed that the claimant had done the majority of cooking and cleaning during the relationship, and had attended to the children’s medical and dental appointments and their needs at school.

He noted that because of her educational assistant position, she had a strong rapport with the teachers. [ 13 ] In 2008, after working for a company that manufactures doors and then running a venture building decks with a friend, the respondent was hired by the energy utility. During his employment there he qualified as a journeyman gas fitter. He has what is known as an A level ticket as a gas fitter, which is the highest level of qualification in that field. He progressed to a position as an operations supervisor within the utility.

In 2018, the year of the separation, he earned $118,642. [ 14 ] The overall arrangement between the parties was that his earnings were to be used to cover the family’s expenses. The claimant deposited her income as an educational assistant into an account to which the respondent did not have access. She explained that she did so because she did not trust him with her earnings and did not know what he would spend them on.

However, she said that she was open with him about what she earned, and would attempt to discuss her proposed use of it with him. [ 15 ] In cross-examination she agreed that she had saved $17,000 in this manner to pay for cosmetic surgery that she had towards the end of the relationship.

At the time she felt comfortable spending the money in that manner, because he had assured her that their family was financially secure. [ 16 ] Her evidence was that respondent had the complete responsibility for handling the family’s financial affairs, and that he refused to share any information concerning it with her, despite her repeated requests. [ 17 ] The respondent’s position was that she had full knowledge of their financial matters, and participated in the decision-making with respect to them.

On the issue of her knowledge, he referred to a document from the bank through which they obtained their Visa cards, in which she confirmed her request to cancel electronic statements with respect to one of the cards, in favour of mailed statements. (However, this letter was from March 2021, after the respondent had left the home for the final time.) [ 18 ] The parties bought the family home in 2010.

They had bought and sold two previous properties during their relationship, increasing their equity each time. [ 19 ] The claimant testified that in 2017 the respondent told her that “he had taken $150,000 out of our mortgage”. Her evidence was that he had done this without consulting her, and that she was against the move because of his past difficulties in handling money. He told her that the money was interest-free for a year and that they “could give it back if they wanted”.

As the associated lending documents show, the process involved obtaining new mortgage financing for more than what was owed on their existing mortgage, and drawing out the difference for themselves in cash. [ 20 ] The respondent maintained that the claimant had been fully aware of this refinancing and had consented to it. The new lender is associated with a grocery chain and has outlets in its stores, and the respondent said that he and the claimant went to a store in Langley to sign the necessary documents.

He produced a “payout statement authorization”, which allowed the new lender to pay out their bank for the previous mortgage. It appears to contain both parties’ signatures. [ 21 ] The claimant could not recall whether she had gone with the respondent to sign the document authorizing the payout for the new mortgage, which he presented to her in cross-examination. She explained that he would frequently bring her banking documents and tell her that he needed her signature.

Because he was her husband she trusted him on such issues, and would sign in those situations without making any further inquiries. [ 22 ] The direction to pay the proceeds of the new mortgage shows that the refinancing was carried out by replacing two existing mortgages, which totalled $393,000, with one for $500,000. This resulted in a payout to the parties of $106,000.

The copy of this document that was produced by the respondent was unsigned. [ 23 ] The claimant described one of the mortgages that was paid out, for $45,000, as a line of credit that the respondent had previously taken out without her knowledge. The other mortgage, for $347,000, represented what they owed on the home at that point. [ 24 ] She said that they agreed (once she found out about the remortgaging, I took her to mean) that the funds would be used for home renovations, which were required because of the age of the house.

As it turned out, only the roof, gutters and fencing were replaced, with the assistance of the respondent’s friends, at a cost of about $18-$19,000. She was not aware of what happened to the rest of the re- mortgaging proceeds. [ 25 ] In cross-examination she accepted a list of other home improvements that the respondent suggested had been carried out prior to the separation. However, she pointed out that they were also carried out before this large amount of money was drawn from the mortgage. In fact, she had actually paid for some of these additional improvements from her own earnings.

With respect to the ones that

were carried out using joint family funds, she agreed that she was aware of how those funds were used. [ 26 ] The proceeds of the remortgaging went into the respondent’s account, which was at a different financial institution than their joint account, and to which she had no access.

The statement from the respondent’s account for the month in question shows that the deposit was immediately followed by a $7000 payment to the parties’ joint Visa account (she was not aware at the time that such an amount was owing on their Visa), followed by just under $10,000 to an American Express account in the respondent’s sole name, and about $2500 to pay an amount that he owed for taxes. [ 27 ] About $86,000 of the refinancing proceeds remained after this group of payments.

Other than the approximately $20,000 in renovations that the claimant agreed had actually taken place, the respondent was unable to document what had happened to the remaining approximately $66,000. He agreed with the suggestion that the marriage was “struggling” at this point, but not as much as it eventually did in the year of the separation. Parenting [ 28 ] According to the claimant, the respondent was frequently absent from the home during his non-working hours.

This was due to the extensive socializing he engaged in with teammates on the recreational sports teams he played on, his friends from high school, and work associates. His social activities frequently led to him returning home late at night in an intoxicated state. He also went on trips with his friends, with a frequency that she considered to be excessive in light of his family responsibilities.

Overall, she estimated that he would be away from the home 200-250 nights per year for social purposes. [ 29 ] Her parents were heavily involved in the children’s lives and would fill in some of the gaps left by his absences. [ 30 ] The respondent disagreed with this description of his absences from the home, but did not offer a specific alternative estimate, other than agreeing that he socialized in relation to his sports activities and with his friends. [ 31 ] He explained that the trip to which the claimant gave the greatest emphasis – to Las Vegas with friends, which she said extended well beyond its planned length - was for only three days, and that one of the photos that she referred to as depicting him on it was actually taken in a restaurant in Langley. [ 32 ] The claimant agreed with his suggestion in cross-examination that he had been involved in coaching the sports teams of all three of the children at various points, but added that coaching was something that he enjoyed doing for its own sake, and even did once on a paid basis when none of their children were on the team.

She also pointed out that coaching did not fulfil all of his parental obligations. [ 33 ] J.G., the respondent’s sister, testified that he was an active participant in both L. and C.’s lives from their birth, including coaching their sports. He would usually have at least one of these children in his care, if not both (while attending their sports events, I took her to mean). [ 34 ] The parties’ oldest child H. and the respondent became estranged from each other before the separation.

The claimant said that they had a contentious relationship throughout H.’s life, because of the respondent’s tendency to make remarks that H. found hurtful. [ 35 ] The catalyst for their complete estrangement was an incident in 2018, in which H. wrecked a car that had been given to him by his grandfather, and the respondent refused to provide the insurance proceeds to H. to replace it. The vehicle and the insurance were registered in the respondent’s name. This led to a heated phone conversation between them, after which they did not speak further.

Events Leading to the Separation The Parties’ Debts [ 36 ] The claimant testified that in the fall of 2018 she was contacted by their mortgage lender and told that the payments on their home had fallen behind.

She was unable to remedy the situation because the missing payments were to have been withdrawn from the respondent’s account, to which, as I have mentioned, she did not have access. [ 37 ] The respondent acknowledged in cross-examination that he had “potentially” missed some mortgage payments during that period. [ 38 ] In November of that year her card for the joint Visa account, which the respondent was responsible for paying, was declined. Her inquiries revealed that there was $18,000 owing on it, and that it had been frozen due to a lack of payments.

In cross-examination she clarified that “whether or not [she] could access the statements” for that card, she was previously unaware of the unpaid debt that had accumulated on it. [ 39 ] At the end of December, she received a letter from their bank advising that a line of credit that was in her and the respondent’s names required attention, because the minimum required payment on it had not been made. She was not previously aware of the existence of this line of credit, which by then had a balance of $32,000.

She added that she would have been on maternity leave when it was originally obtained, and had no income of her own at that point. [ 40 ] Although she agreed that she received statements for another Visa card of which she was the primary holder, the claimant said that she only saw those statements “off and on”, and that the respondent would usually take them.

She later clarified that she was aware of the balance of that card, and of another one that was in her sole name that she had obtained many years previously. [ 41 ] Similarly, although she agreed that the line of credit statements were addressed to them jointly at the home address, she

emphasized that this did not mean that she saw them.

The respondent suggested to her that this line of credit was used well before separation to purchase the vehicle that she is currently driving, but she replied that she had “no idea” whether that had occurred or not. [ 42 ] The respondent agreed “a hundred per cent” with the suggestion in cross-examination that these credit card and line of credit amounts were “in all likelihood just probably family debt.” The Respondent’s Behaviour [ 43 ] As background to these events, the claimant gave examples of his tendency to drink to excess in social situations during the marriage (I previously summarized her evidence of his intoxication in the context of his frequent absences from the home).

This included drinking to the point of physical illness and incapacitation when attending weddings, attempting to drive while intoxicated and, towards the end of the relationship, parking his truck in a manner that suggested he had been intoxicated when he drove it home the previous evening. [ 44 ] She said that during the 2015-2016 period his behaviour became more erratic, which she attributed to his addition of drug consumption to his existing difficulties with alcohol. [ 45 ] One night he came into their bedroom and told her that she needed to leave because he was afraid he was “going to hurt” her.

He then sat down on the toilet in their bathroom and continued to yell the same thing at her, before going downstairs. [ 46 ] In other incidents he would come home and claim to have been drugged, vomiting as he did so. [ 47 ] On another night he came home at dinner time after attending a pub after work and was “talking nonstop” and “making no sense”. [ 48 ] One day she found some unfamiliar pills, which she photographed, scattered in the kitchen.

She also took a photo of five bottles of the respondent’s prescription medication in the bathroom, one of which was oxycodone. [ 49 ] In 2017 she confronted him about ongoing manic behaviour of this nature. In response, he told her that he had used cocaine “a few times”, but would not do so again. In a related incident, he stopped them from attending a get-together at a friend’s house, explaining that he “always ended up using cocaine when he was with this group”. [ 50 ] The respondent denied that he has ever had any form of substance abuse problem.

He is a social drinker, but has never consumed it in front of the children when they have been in his “direct care”. He was never a cocaine user as the claimant described.

His version of his refusal to attend the get-together with friends was that he did not want to be in a place where cocaine was being used, not that he was susceptible to using it himself. [ 51 ] He sought to dispel any negative inference about his mental state and substance issues that might arise from the presence in the home of the medications that the claimant described by referring to a provincial government record of the prescriptions that he has received since 2000, and to copies of some of the prescriptions shown in the photos she took. [ 52 ] He identified the loose pills as bupropion, which he had been prescribed for depression, and which is shown in the government record as having been prescribed to him in October 2019, well after the separation.

He said that he only took this antidepressant for “a month or two potentially”. He added that he also took counselling through his employee assistance program, but stopped when the six sessions that were covered by the employer had been used up.

He did not specify the time period in which he had the employer- sponsored sessions, and did not know why he had not paid for additional sessions himself. [ 53 ] The labels of the medication bottles in the bathroom photo reveal them to be oxycodone, a second type of pain medication, and a muscle relaxant - all of which were prescribed to him 2014 in relation to a fracture of his fibula. He only took them around the time of that injury.

The last bottle was an antibiotic that he was prescribed in 2015. [ 54 ] He did not believe that his behaviour was odd during this period leading up to the separation, but conceded that “you could just infer that, sure”. [ 55 ] According to the claimant, the respondent’s erratic behaviour continued, and matters came to a head at the end of 2018. After claiming that he would seek assistance with his substance abuse through her employee assistance program, the respondent then told her that it was “pointless”, and that he would not be pursuing any further efforts towards sobriety.

She asked him to leave and he agreed, ultimately doing so on December 26. [ 56 ] The claimant’s mother, who also testified, said that she was not aware that the respondent had alcohol or drug problems until the claimant told her in 2018 that it was the reason for their separation. Since the Separation The Claimant’s Employment and Financial Situation [ 57 ] Her recent income has been: • 2018: $30,664 • 2019: $34,142

• 2020: $43,656 • 2021: $41,063 • 2022: $36,099 (projected from her T4, supplemented by employment insurance benefits in the range of $5,000) • 2023: $40,676 (projected in her Form 8 financial statement). [ 58 ] She is required to collect employment insurance benefits in June and July, when school is not in session.

She also receives the federal child benefit, which amounts to about $12,000 per year. [ 59 ] Since 2016 she has been contributing to an employee pension plan. [ 60 ] According to her most recent financial statement her monthly expenses are just under $6,000. [ 61 ] The mortgage on the family home was approximately $480,000 at the time of separation. According to a historical appraisal, the value of the home at that point was $895,000. [ 62 ] The mortgage eventually fell into arrears after the separation, when the respondent stopped contributing to it and she was unable to cover it on her own.

This was in addition to the unpaid Visa and the line of credit of which she had been previously unaware, which totalled about $50,000. [ 63 ] In addition, in March of 2019 she received a letter addressed to the respondent at the family home advising that payment on an Amex credit card in his name was past due.

She was previously unaware that he had such a card and as a result had no access to the account. (He suggested to her that when she had travelled to Mexico for dental implant surgery in 2016 she had used this card to withdraw Mexican currency, but she was unable to recall which one she had used for that purpose.) [ 64 ] The respondent testified that he paid the mortgage regularly from the separation until the fall of 2019, when he began to have difficulties at work. [ 65 ] He was referred to banking documents showing that he made the two required mortgage payments for January 2020, as well as an extra payment that he agreed was in relation to a missed one from the preceding months.

Although there were no documents available for February and March, he said that he continued paying the mortgage for those additional months.

He referred to an email exchange with the claimant on March 30, 2020, in which she requested him to pay the second of the two required mortgage instalments for that month, implying that he had paid the first of them. (However, at another point in his cross-examination he said that he had stopped paying the mortgage “in and around” January of that year.) [ 66 ] Also around March, he stopped paying such expenses as utilities, property taxes and insurance, as well as the phone and internet. (He advised the claimant of his intentions in this regard in an email in February 2020). [ 67 ] In April 2020 he advised the claimant, “Remember that circumstances have changed and I only make $30,000 a year so now you might be paying me.” [ 68 ] To relieve the claimant’s financial situation, in December 2021 T.C., a family friend who has a very successful business, had his company assume the mortgage, which he said then stood at about $485,000. [ 69 ] Over the period between April 2020 and December 2022, Mr.

C. also loaned her funds through the company to cover her other essential needs, including paying off the Visa and the line of credit (on which significant interest had accumulated) and contributing to her legal fees, with the effect that she owed the company a total of $630,000 as of the trial dates. She was referred to copies of promissory notes indicating funds advanced to her by Mr. C.’s company. [ 70 ] In his testimony, Mr. C. confirmed that these advances constituted a loan to the claimant. [ 71 ] In cross-examination he explained that there are no written terms of repayment for the loans.

Because he understands that the Canada Revenue Agency requires that some interest be charged, he has set the rate as 1%. Despite the claimant’s low annual income, he considers the loans to be adequately secured. [ 72 ] When he was shown the claimant’s most recent financial statement, which listed the loan relating to “mortgage and debt” and a line of credit, as $480,000, he recalled that the additional $5000 paid by his company related to the associated legal fees. (The respondent did not cross-examine on it, but the claimant’s financial statement lists the subsequent loans from Mr.

C.’s company as totalling $226,850, whereas the promissory notes in the evidence totalled only $130,000, for a total indebtedness to the company of $706,850. This is a larger amount than Mr. C. described, but she did not suggest that any amounts except the mortgage, Visa and line of credit loans were family debt). [ 73 ] Mr. C. was also asked about the absence of any disclosure to the respondent of the documents showing the assumption of the mortgage by his company. He said that he expected that the bank would have a statement of adjustments and documents showing the payment to it from the company’s law firm.

The claimant’s previous counsel told him that there was flexibility as to when the mortgage was registered, and elected not to register it. Mr. C. did not know what the basis for her counsel’s decision was. [ 74 ] He also agreed that he and the claimant had discussed the “potential” of his purchasing the home after the court proceedings have concluded. [ 75 ] In addition to Mr. C.’s assistance, the claimant was loaned $15,000 by her cousin and $64,500 by her father to address her ongoing needs since the separation. These loans were also documented by promissory notes.

[ 76 ] Her hope is to retain the former family home for the sake of the children, but she cannot qualify for a mortgage herself on her relatively low earnings. She confirmed that she and Mr. C. have discussed some possible arrangements that would allow her to retain the home, but nothing definite has been arrived at. The Respondent’s Employment and Financial Situation [ 77 ] His income in 2019, the year of his termination, was $106,345. [ 78 ] He received a severance “package” as part of his termination.

His bank account statements show direct deposits from his former employer that total $55,928 on January 15, 2020, which may correspond to the severance payments. In cross-examination he said that the amount was around $66,000. [ 79 ] Neither he nor his friend K.M., whom he called as a witness, could remember the reason for a series of transactions shown in his bank statement for that same month. He transferred $3000 to Mr. M., who immediately transferred it back, and then transferred $2000 to Mr.

M. later that month, without that amount being returned. [ 80 ] He also transferred a total of $9000 to his mother, which he said was a prepayment of his rent and contribution to groceries for his planned stay with her after leaving the family home, as well as for a new bed for his father.

The bank statement shows that he received $3000 back from his mother shortly afterwards, which was not explained. [ 81 ] He said that the $10,000 that was also shown being withdrawn that month was placed in a high-interest savings account, but he did not have any documentation of that transaction or the subsequent disposition of that money. Later in his cross-examination he said that he had spent it. [ 82 ] The net effect of these various transactions was to leave about $25,000 in the account.

By the time of the next available statement, which showed transactions on the account in December of that year, that amount was no longer present. The respondent said that there were “lots of reasons” for the decline, but acknowledged that he did not have a document explaining it. [ 83 ] In addition to the severance payment, his employee pension entitlement of approximately $130,000 was transferred to a locked-in retirement account (a “LIRA”). The balance of that account was about $152,000 as of the trial dates.

He does not have access to the funds in it until he retires. [ 84 ] In the early part of 2020 he obtained employment with a mechanical contractor, to pursue qualification in HVAC. He was eventually laid off for lack of work, but later rehired. His Line 15000 income according to his notices of assessment was $46,319 in 2020, $32,103 in 2021, and $62,425 in 2022. [ 85 ] His training in HVAC, which is a form of apprenticeship, requires both classes and a certain number of hours of work experience to complete.

He is permitted to claim employment insurance benefits while he is doing the classwork. [ 86 ] It is a four-year program, and he has been given credit for his gas fitter training as part of it.

This means that he will have to do less schooling in the final year of the program, which is intended to take four years. [ 87 ] When his program has completed, which should occur in two to three years, depending on the availability of the classes that he is required to complete, he expects to earn an income in the range of $110,000 per year - essentially the same as he was earning in the position from which he was terminated. He later described this scenario as his “hope”, if he “could get into the schooling portion”, which would be “the tough part of it”.

I took him to be saying that the uncertainty was in the timeline for being able to complete his apprenticeship, not the income that he could expect to earn following completion. [ 88 ] Leaving aside the effects of the injury and disability payments on his 2023 income, at his current pay level, and anticipating some overtime hours, he expected to earn $60-$65,000 per year.

In his financial statement filed just before trial, he described earning $2240 bi-weekly, which in a year without disability payments would equal $58,240. [ 89 ] On the question of why he has not pursued employment that is based on his existing qualifications, he explained that being a licenced class A gasfitter, which is a “ticket” (that is, a qualification) that is not held by a large number of people in the province. It relates to work on “industrial-sized equipment”.

Most of the jobs involving that type of equipment are located outside of the lower mainland or the province, and involve class A ticket holders who operate their own companies. He lost his last position at the start of the pandemic, when jobs that utilize this type of ticket were not available due to the health restrictions that were imposed.

When they subsequently became available (with the lifting of the restrictions), he did not want to seek work that was mainly out of town at a time when he was “struggling” to obtain parenting time with his children. [ 90 ] While many plumbing companies also use class A gasfitters, he is not qualified as a journeyman plumber, so such opportunities are not available to him. [ 91 ] His essential point was that he is not unintentionally underemployed, but rather is working towards the realistic goal of reproducing his past earnings. [ 92 ] He provided the union wage scale for HVAC positions.

A journeyman position, which is what I understand he seeks to qualify for, has an hourly wage of $50.09, plus benefits that raise it to $69.48. At 35 hours per week that is an annual income of about $126,000, which is higher than he estimated in his evidence. Without the benefits it is about $91,000. [ 93 ] He also made inquiries about jobs with the city governments of Surrey and Langley, but chose the HVAC option after a friend approached him about it. He said that it had the advantage of being something he was able to take up immediately.

[ 94 ] He agreed that he had never complied with the request made at his examination for discovery to provide copies of his resume and evidence of the efforts he had made to find new employment after his termination. His response to the questions by the claimant’s previous counsel on this subject during the discovery was, “I don’t believe that it’s any of your business”. He also never provided that information to the claimant’s present counsel in the lead-up to trial. [ 95 ] During the portion of his examination for discovery that was held in December of 2021, he had said that he was not working at the time.

He clarified during his trial testimony that he had previously been working with the mechanical company, which he began in the early part of 2020, but had been laid off prior to the discovery.

He was later rehired and continued with the qualification process. [ 96 ] Since beginning work with the mechanical firm, he has accumulated an RRSP of about $9,600, to which he currently contributes $434 per month. [ 97 ] In his latest financial statement, he listed his annual expenses as just over $75,000, which is considerably more than his claimed current income. [ 98 ] In a further elaboration on his current financial situation, he referred to using Visa debit cards, which draw on an existing balance rather than incurring a debt, for some of his purchases, rather than credit cards.

It was not made clear whether this is because he does not have any credit cards, or because he prefers not to use them. [ 99 ] To flesh out the respondent’s limited disclosure somewhat, the claimant called his live-in partner, J.R. as a witness in her case. [ 100 ] Ms. R. testified that since February 2023 the respondent has been living with her and her teenage daughter, with whom she shares parenting with a former spouse, at her rented townhouse in Langley. Her relationship with the respondent began about a year before that.

He contributes about $500 per month towards expenses, either in cash or by e-transfer, and also performs his share of household chores. (The respondent testified that he had given Ms. R. “a couple of thousand dollars” in the three and a half months since he moved in.) [ 101 ] Ms. R. confirmed that as of the trial dates the respondent had not worked since the previous August because of his torn Achilles tendon. She was aware that before that he was doing “mechanical work”, including installing air conditioning units. [ 102 ] He has not told her that he is short of money as a result of being off of work.

She herself works Monday to Friday, coincidentally as an educational assistant like the claimant, and was not aware of what the respondent does with his time while she is out. [ 103 ] His friend Mr. M. testified that he observed the effects of the Achilles tendon first hand, since the respondent was living with him at the time he suffered it. In the initial stages this involved the respondent being “couch-ridden” and requiring the use of pain killers, and later using a knee cart to get around. He required Mr. M.’s assistance with daily tasks for two to three months following the injury.

Parenting [ 104 ] When he returned to the home in February 2019 the respondent was able to have contact with L. and C. without the claimant having to be involved. [ 105 ] After he left the home for the final time in December 2019, he did not cooperate with her efforts to

schedule parenting time for him with those children. [ 106 ] The claimant said that sometimes he would call L. and C. directly and tell them that he would come by shortly to pick them up. This brief notice was very stressful for C., who was nine years old at the time, and already upset at the limited amount of time he was getting to spend with the respondent. [ 107 ] After confirming with C. that it would be beneficial to him, she suggested to the respondent that he could arrange a specific day of the week to exercise his parenting time.

He responded by accusing her of trying to control his time with the children, and would not agree. [ 108 ] At other times he would make arrangements to see L. or C. and then fail to show up, which was distressing for them. For example, after making plans to take C. for lunch on C.’s birthday he was not able to follow through, and did not see C. for a further two months.

C. was so upset that the next time the respondent appeared, at one of C.’s baseball games, he was unable to play. [ 109 ] In cross-examination the claimant elaborated that the practice of the respondent arranging parenting time directly with the children became necessary because of his inability to interact with her in an appropriate way on that topic. This eventually led to her insisting that all communications between them about the children be by email. [ 110 ] She estimated that he saw L. and C. once or twice per month, but promised to see them six times per month.

She keeps a calendar of all of the children’s appointments, in which she recorded that the respondent had seen L. and C. 77 times since he finally left the former family home in December 2019. [ 111 ] The last overnight visit that they had with the respondent was in 2020. [ 112 ] The respondent agreed that he did not have any evidence that contradicted the claimant’s recording of the number of visits, and conceded that there had been “multiple disappointments for the boys over the years”. [ 113 ] He also agreed that the last time he coached one of his children’s sports teams was in 2019 (although he said that this gap was not because of unwillingness on his part), that he has not taken them on any vacations since the separation, and has not made an interim application for specified parenting time. [ 114 ] The claimant agreed with his suggestion that he and L. call or text each other regularly, but was not prepared to agree that it was

on a daily basis. She approved of that type of communication between them, but emphasized that it is “not considered parenting” (in itself, I took her too mean). [ 115 ] The respondent put several documents to her in cross-examination that he suggested showed his commitment to parenting. With respect to the contents of text messages between the respondent and L. from September 2022, she agreed that “there’s some positivity there”, although the messages did not represent “the full picture” of that relationship in her view.

Similarly, she agreed that a series of photos depicting the children engaged in activities with him showed that they had “some good times together”, but returned to her theme that such activities did not represent the “the full scope of parenting”. [ 116 ] In general, she is supportive of the claimant having time with L. and C., if they are “happy and healthy” in relation to it. [ 117 ] Her specific position on parenting arrangements is that the current situation, in which the two younger children reside primarily with her and the respondent arranges parenting time directly with them as they wish, is in their best interests.

She is not averse to the respondent contacting them by phone at the home, as long as it is not used as a means of tracking her whereabouts; or to keeping him informed by email about important developments relating to their health, education and activities, as long as he does not reply to her updates. [ 118 ] She considers co-parenting with the respondent to be an unworkable prospect, because of his persistently hostile and uncooperative attitude towards her. [ 119 ] A longstanding example of this uncooperativeness in parenting matters has been his withholding of his consent for the children’s cross-border travel, either completely or until the very last minute.

This behaviour was sometimes accompanied with threats to call the police or border services if the children attempted to go without his consent. He would also involve her counsel in disputes over the children’s travel, thereby increasing her legal expenses needlessly.

The result has been significant worry and uncertainty about whether the children will be able to participate in sports events that take place in the United States. [ 120 ] As a particularly aggravated example of this type of behaviour, he filed a missing person report with the police in relation to C.’s baseball trip to the U.S., on which the claimant had accompanied him.

This resulted in an RCMP officer texting her while she and C. were there, to do a wellness check. [ 121 ] With respect to travel within the province, the claimant’s mother testified that when she and the claimant’s father took the children to visit their cousins in Duncan over a Remembrance Day weekend, they received a text message from the respondent, who told them that “he wasn't happy that we were taking the boys away for the weekend…not to do it again without asking him and he might have the police meeting us there.

Because it was not allowed.” As it turned out, he did not actually call the police. [ 122 ] The respondent explained that these trips were in breach of an agreement he had with the claimant’s previous counsel that the parties would inform each other of any travel involving the children. [ 123 ] As an example of his actual cooperativeness on this issue, he included a consent form that he had completed in relation to L.’s trip to the U.S, in 2022 in his trial documents. [ 124 ] He cross-examined the claimant on the fact that she had recently sent him a text message seeking his permission for L. to go to Washington State with a friend’s family, despite her usual insistence on email communication.

She explained that she had done “whatever was necessary” in order to ensure that L. was able to go on that trip. [ 125 ] In the respondent’s view, it is in L. and C.’s best interests for him to spend a significant amount of time with them, since he has always been heavily involved in their lives. He currently speaks to L. daily and tries to get together with him when L.’s busy

schedule allows. The only impediment to that level of communication with C. is the inability to contact him easily by phone. He provided examples of his text communications with each child, to demonstrate the positive nature of his relationship with both of them. [ 126 ] His preference would be equal parenting time on alternating weeks, with exchanges taking place on Friday evenings.

If the children are ordered to reside primarily with the claimant, he seeks “ample” scheduled parenting time with them, with the opportunity to apply to expand it as they get older. [ 127 ] His work hours are currently 6:00am to 2:30pm, which is conducive to making after school pickups and driving them to extracurricular activities, efforts that his partner Ms.

R. and his sister and other family members are able to supplement if necessary. [ 128 ] As to the allocation of parental responsibilities, he did not envision any reason that he would disagree with the claimant’s decisions with respect to L. and C.’s schooling, or with respect to their medical and dental care.

He said that he “trusts that she has their best interests in mind” and that “if she came to me with something…I would probably agree with her…” [ 129 ] He does not think that she would ever do anything that was not in the children’s best interest, and conceded that with regard to these kinds of parenting responsibilities she had really been “parenting the children alone” for the past three and a half years. [ 130 ] Given H.’s age, the court obviously has no role in directing their contact, but to the extent that their estrangement is relevant to other issues, the respondent testified that after the trial concludes and “things have settled down a bit”, he hopes to engage in counselling with H. to repair their relationship. [ 131 ] Ms.

R., the respondent’s partner, advised that L. and C. had been to her home about six times, although not for any overnight visits, and that she sometimes accompanies the respondent when he takes them out to a restaurant. She described them as “great kids”, who are happy to see the respondent during those get-togethers. She agreed in cross-examination that they love their father and want to spend more time with him, and that her home is set up so that they could be comfortable staying overnight. [ 132 ] Ms.

R.’s sister, J.G., has a son the same age as C., with whom C. has a close relationship, and has provided after-school care for

C. by agreement with the claimant. She has also facilitated contact between the respondent and L. and C., for example by arranging for him to speak to C. when C. was at her home. [ 133 ] The respondent has also come up for the day to see C. during her family camping trips, which C. was invited to join. [ 134 ] She testified about two specific incidents in which the respondent called her trying to reach C. In both cases she examined C.’s phone and found that the respondent’s number had been blocked on it, although she could not say by whom.

Child Support [ 135 ] Since separation the respondent has not paid child support or contributed to the children’s special or extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines . [ 136 ] The s.7 expenses that the claimant has had to pay since the separation are their dental costs in excess of the available insurance, and equipment and registration costs for activities for L. and C. (skiing, band, soccer, football, and baseball, including travel for the latter two). To economize in light of her restricted finances she eventually had to restrict them to one sport each.

Her parents and her cousin have helped defray some of these costs. [ 137 ] The respondent has also not contributed to the cost ($1500) of a brace that H. required after having knee surgery. Instead it was paid for by the claimant’s father. [ 138 ] During the relationship the parties had contributed to an RESP for the children, which their oldest child H. has already drawn on.

Only the respondent had access to the account information, so the claimant was not aware of the remaining balance at the time of separation, or what became of the funds in the plan. [ 139 ] After attending Kwantlen Polytechnic University for two years but being unable to qualify for its nursing program, H. enrolled in training at a private college to become a practical nurse. He had to take out a $34,000 student loan for this program, which he is expected to complete in April of this year.

The respondent did not make any contribution to the costs of that program. [ 140 ] After completing it, H. plans to obtain a position as a practical nurse, which is expected to pay about $30 per hour, but to remain at home in order to pay off his student loan and pursue a full nursing degree. [ 141 ] The respondent maintained that he has “provided the kids with anything they’ve asked” of him - for example expense money to L. for a sports trip, runners, and taking them for lunches and dinners.

He emphasized that those were just examples of his contributions, but acknowledged that in December 2022 the claimant’s counsel had written to him demanding any evidence he had of payments in the nature of support for the children, and that he had not provided any documents in response. [ 142 ] As a partial explanation for his failure to pay interim child support, he referred to an email exchange with the claimant in March 2020, in which he referred to the possibility of deferring payments on the mortgage for six months, because paying both the mortgage and his own rent was not sustainable.

The claimant responded that if he deferred the mortgage he was going to have to pay her $2200 per month in child support, in accordance with his previous year’s income. The point he sought to make was that the claimant considered his paying the mortgage up to that point as the equivalent of support. [ 143 ] A recurring theme throughout his testimony on this issue was that he would have been prepared to pay support if there had been an agreement in place to document his specific obligations.

When the claimant asked him in that March 2020 email exchange whether he was refusing to pay support, he referred to the absence of such an agreement. As he put it at one point in his cross-examination: I should have been paying something, but I didn't know what to pay, and the second point of that is I don't believe, with all of these promissory notes and that, that [the claimant] was in any financial struggle with 200-plus-thousand dollars in loaned money [from Mr.

C.]. [ 144 ] When the claimant’s counsel asked him, “Why not take a wild guess and send her a thousand bucks every 45 days…?”, he said that he did not know why he had not done that. [ 145 ] Going forward, he has “no problem” paying support, including for H.’s post-secondary costs, once trial orders have been made. [ 146 ] He has extended medical coverage that applies to the children through his employer. He can maintain that coverage during his apprenticeship schooling and any layoffs by paying a modest monthly fee. Shortly before the trial dates he had provided details of this coverage to the children’s dentist.

Other Alleged Misconduct by the Respondent [ 147 ] The claimant testified that the respondent did not notify her in advance of return to the family home in February 2019, and refused her request that he leave once she became aware of it. The erratic behaviour and his aggressive attitude towards her that he had demonstrated leading up to the separation continued until his final departure. [ 148 ] For example, several times when she was out playing softball he sent her accusatory text messages and then locked her out of the house.

Her mother testified about such an incident, in which the claimant arrived at her home in the middle of the night because she could not get into to her own home. [ 149 ] In August 2019, after the respondent came home without his truck, the claimant found a document in the kitchen indicating it had been impounded in relation to an impaired driving investigation. He refused to admit to her that this was why he did not have his truck, claiming instead that he was on holidays. (In cross-examination he put a copy of his driving record to her, which referred to a “3 day

immediate roadside prohibition” on September 10, 2019. In his own testimony, he pointed out his relatively minor motor vehicle record as a whole, which consists of five infractions between 2006 and 2013.) [ 150 ] During this period he was “going out and drinking a lot”, she said, and shortly afterwards he took a leave from his job with the energy company, which continued until it was terminated. [ 151 ] She found out about the pending termination in December, when she saw emails from his employer on the unlocked family computer, which he had left in the kitchen.

This included a copy of his work credit card statement that contained unauthorized personal expenses, incurred in pubs and restaurants. She also saw emails from him to the employer, in which he took an adversarial tone and threatened to sue them. Despite this, in their conversations the respondent maintained that he would be returning to work, and was just taking his vacation time for the rest of that month. [ 152 ] The respondent’s position is that he was terminated without cause, pursuant to a change to a large number of management positions within the organization. Mr.

M., who occupies a management position in a different department of the utility, confirmed that version of events. [ 153 ] The respondent conceded however, that before the termination he was “going through some struggles”, including taking a leave following the impaired driving incident in September. It had involved a company vehicle that he was also allowed to use for personal purposes. [ 154 ] In general, his post-separation communications with the claimant, which were mainly by email or text message, were angry and rude. He sent her a large number of them.

At one stage, she blocked him on her phone because of his manner of communicating. [ 155 ] Printouts of many of these electronic communications were referred to in the claimant’s evidence. Their themes included that she was neglecting the children in favour of spending time with her boyfriend, and that C.’s academic challenges during the pandemic were due to inadequate parenting on her part. [ 156 ] As context for the respondent’s more aggressive and threatening post-separation behavior, the claimant described him as having been extremely jealous during the marriage.

He accused her of having affairs, and threatened that if she were ever to be unfaithful to him he had friends who “could throw [her] body in the Fraser River”. He also told her that she would “pay” if she crossed him, although he did not elaborate further. As a result, she was afraid of him at times during the marriage. [ 157 ] The respondent denied having made any such comments. [ 158 ] When she began a relationship after separation with C.I., the respondent sent her messages telling her that she had upset people who now wanted to harm her, and that there was nothing he could do to prevent it.

He also told her to “watch [her] back” and to watch what she said and did. More directly, he told her that there were people he could “put after” her. [ 159 ] In addition to implying that she would be harmed, in 2020 the respondent threatened to reveal unflattering things about her to her family if she did not pay him out for his share of the house. He followed through on this threat, writing to her parents, the family friend Mr. C., and her boyfriend Mr. I., revealing alleged misbehaviour on her part. [ 160 ] He sent a message to the claimant’s mother alleging that the claimant had been having an affair with Mr.

I., whom he described in unflattering terms, during the marriage, that the claimant was mentally unstable, and that she had physically assaulted him during the marriage. (The message from the claimant that he forwarded to her mother along with his message had ended with her threatening to “slit his neck” if he blamed her mother for the difficulties in their relationship.) [ 161 ] He clarified in cross-examination that the assaultive behaviour he had been referring to consisted of her pushing him on one occasion when they were in the garage of the family home, and on another occasion jumping on him while he was sleeping and telling him she was free to have a sexual relationship with whomever she wished. [ 162 ] In a subsequent letter to both of her parents, he repeated these allegations and sought to involve them in the litigation, issuing an ultimatum about his planned return to the home. [ 163 ] In an email to the claimant in April 2020 he threatened to post the details of her relationship on social media, so that “everyone can be involved in your relationship with a married man.” [ 164 ] He also told her that he would disclose her relationship with Mr.

I. to H., although he did not actually do so. [ 165 ] Mr. C., the family friend who gave her financial assistance after the separation, testified that he received confrontational emails and text messages from the respondent, accusing him of interfering in the process of their separation and divorce. [ 166 ] The respondent also sent messages directly to Mr. I., advising him that “I have issues with you and I am not someone you want to have issues with” and inviting him to meet. His explanation in cross-examination was that he had been told by people who knew Mr.

I. that he was involved with the claimant, and was a person of disreputable character whom the respondent “should probably watch”. He sent the message because “if he’s going to be around my kids and my home, I want to know that he’s not that way.” He said that he received that information in the middle of 2019, which was of course after separation. He did not dispute the confrontational tone of the message, but said that he was “writing out of a little bit of emotion”. [ 167 ] In a later message he wrote to Mr.

I. that “you have both made many people extremely unhappy, and as you know, you can't control anyone or their actions.” In the same string of text messages, he wrote, “I’ll be coming to see you. We have a lot to talk about.” He agreed that there was also an incident in which he followed Mr. I. into the washroom at one of L.’s baseball games. [ 168 ] In addition, he wrote to the claimant threatening to speak to Mr. I.’s ex-wife, observing that “I'm sure it will help in his divorce

and I'm sure after I speak with her, things should go smooth”, and indicating his knowledge of where Mr. I. lived. [ 169 ] The respondent suggested that there might be additional conversations with Mr. I. on his phone that would provide context for these communications (conversations of a more civilized nature, I took the respondent to mean), including invitations to meet so that the respondent could learn more about him, but he did not provide them as part of his documents for trial.

He agreed that prior to trial the claimant’s counsel had advised him of the documents that would be included in the claimant’s trial binders, and had invited him to add any additional ones that he felt were relevant. He offered to go home during the lunch break and retrieve his phone in order to provide these additional messages, but the claimant’s counsel did not take him up on that offer. [ 170 ] The claimant also found it disturbing that the respondent’s identifying symbol for his WhatsApp account was a burning house that resembled the family home.

He explained that it was a picture that was sent to him by a friend, and that he liked it because it depicted a situation in which “when everything's kind of crumbling around down around you and you're just trying to find some resolve”. His sister testified to a similar understanding of his purpose in using the picture.

Both disavowed any suggestion that it was meant to demonstrate the extent of his hostility towards the claimant. [ 171 ] The respondent accepted the suggestion in cross-examination that his communications with the claimant might be perceived as “harassing” and “confrontational”, but not as “threatening”. He also agreed that an RCMP officer had phoned him and asked him not to have any further contact with Mr.

I. after the communications that I have described, and that this could be fairly characterized as a warning. [ 172 ] Later in his cross-examination he was prepared to “assume” that his threat to the claimant to enter the home and retrieve some personal items while she was away, which he conveyed to her then counsel in an email, would “maybe” have instilled fear in her, but not “terror”. [ 173 ] More generally, he accepted the suggestion that he had a problem communicating politely at times, and that his communications with the claimant included some “vulgar” ones (her counsel suggested that there were more than 50 that contained vulgarities in the trial documents), which he was “not proud of”.

He did not believe such behaviour was a “regular event” however. He specifically apologized in court for a particularly vile allusion to her sexual activity that he had expressed in an email. [ 174 ] In April 2022 the respondent began renting a room from his friend Mr. M., who had a townhouse in the same development where Mr. I. lived, which is also quite close to the family home. The claimant viewed this an attempt to intimidate her and to keep track of her and Mr. I. [ 175 ] Mr. M., who also knows the claimant, said that he and the respondent were not aware that Mr.

I. lived there until after the respondent moved in, and Mr. M. noticed her vehicle parked there. The respondent paid him rent of $800 per month for the ten months he lived there, after which he moved in with his current partner Ms. R. [ 176 ] The respondent also put forward an aggressive posture in the litigation, including declaring his unwillingness to pay home-related expenses and demanding that the home be sold.

More specifically, he told the claimant that he was going to make her “pay”, that she would “never have anything again”, and that she was “never going to get a cent” out of him. [ 177 ] He also demanded disclosure from her counsel of the cost of the cosmetic surgery that she had in 2017 and paid for herself out of her employment earnings. (He had been very hostile towards her after she had this surgery, she testified, addressing her in profane terms and alleging that she had undergone it in order to pursue a new relationship.) [ 178 ] In a similar vein, in 2022 he wrote to the claimant’s former counsel demanding his share of household furnishings for his upcoming move “asap or I will go other routes that will disrupt [the claimant]’s day to day living.” Since he was only going to be renting a room from Mr.

M., she did not believe that he actually required a significant amount of household goods.

She said that several times after this she responded to his demands to her counsel for particular items by leaving them outside the house for him to pick up, but he did not attend for them. [ 179 ] This aggressive posture with respect to the contents of the home, which he demonstrated several times in his dealings with the claimant and her counsel, was also in contrast to the limited number of items that he removed from the home upon separation, and his general comment to her at that time that he did not want anything. (As a reciprocal example of inappropriate post-separation behaviour on the claimant’s part, the respondent said that when he and Mr.

M. went to the family home in December 2019 to pick up his clothes, personal items and tools, pursuant to his final departure, she left these items lying on the floor of the garage. Mr. M. confirmed this incident in his evidence.) [ 180 ] He also communicated with the claimant’s previous counsel in a rude and sarcastic manner. A particularly unpleasant example was the email that he sent after he became aware that counsel’s health issues would prevent him from continuing with the case: I can do without the sob story of your health issues. I far from care about them, as in the same way you cared of mine.

Do your rates go down while you're working at home? [ 181 ] He conceded that some of those emails to counsel, as well as the ones he sent to the claimant, were “very confrontational”. [ 182 ] Other actions of the same nature included threatening to report both the claimant’s present and previous counsel to the police and the Law Society. In his email to the claimant’s present counsel his email alleged “multiple documents…which you and your client had illegally obtained.” Specifically, he alleged that the claimant had opened mail addressed to him at the family home and provided it to counsel.

He later realized that that he was mistaken about that particular complaint. [ 183 ] When C.’s baseball association did not include him to access the app that lists the team’s games, an action that the claimant said that she did not instigate, he contacted the Human Rights Tribunal.

[ 184 ] In support of the claimant’s theory that an ongoing substance abuse problem underlies the respondent’s behaviour, her counsel cross-examined him on the very large number of charges in his bank statements from pubs and other establishments that serve liquor, and for taxis, in his bank statements from December 2020 to May 2021.These apparent drinking activities had occurred despite his having an annual income at that point of only about $45,000, and it his testimony that it was “really hard to make ends meet” during that period.

His position was that he would sometimes “have a drink” at these places, many of which were restaurants, but sometimes he would not. When he was asked if he was sure that he did not have a drinking problem during this period his response was, “I don’t believe so”. [ 185 ] Addressing his use of taxis during that period, he explained that while he was able to borrow vehicles from his brother, the only one available for his exclusive use had mechanical problems, and was only suitable for trips to buy groceries.

He agreed however that he had purchased a motorcycle for $2500 in February 2020, but had not yet earned the specific licence necessary to drive it as of the period in early 2021 that the bank statements covered. (He made that motorcycle purchase “because it gave [him] a little bit of freedom”. He listed the motorcycle as having no value in his most recent financial statement, but conceded that what he meant is that it is no longer worth what he paid for it. As another apparent splurge at odds with his financial situation, he took a four to five-day trip to Atlanta with friends in 2019.) [ 186 ] His friend Mr.

M. described him as being in a depressed state and being “a changed person” following the separation. During the ten months that the respondent rented a room from him - in 2022 and early 2023 - he saw no signs of “daily drinking in excess”. The members of their friend group are all only social drinkers, he added. [ 187 ] His sister similarly described him as depressed and “almost distraught” during the period from December 2018 to December 2019, and expressing sadness about having lost his home and his children.

She rejected the suggestion that he has ever had a problem with alcohol or drugs, on the basis that she is in regular contact with him and has never seen any indication of it. [ 188 ] His partner Ms.

R. is aware that the respondent had a prescription painkiller for his injury, but has not observed him abusing that medication, nor has he abused alcohol in her presence. [ 189 ] With respect to the need for a protection order, the respondent emphasized that he has “no intentions of harming or disrupting [the claimant], her boyfriend or anybody else within her family going forward”, or that he had ever done so to this point. [ 190 ] He expects that he and the claimant could communicate constructively concerning the children, using a parenting app such as “Talking Parents”, once the outcome of this trial has been “signed off”.

In his view, this would address any “harassing or intimidating like there may have been in the past.” He also pointed out that other than a message to alert her that there had been a shooting near the family home, he had not contacted her directly for about six months as of the trial dates. [ 191 ] Despite the claimant’s position that these actions have instilled fear in her, she agreed in cross-examination that none of her counsel have sought an interim protection order on her behalf.

Non-Disclosure [ 192 ] The respondent agreed that despite an order in February 2020 that he provide a list of documents, he did not comply until January 2023. He described his belief that because the trial dates that were pending at the time of that order were subsequently adjourned, he did not have to produce the list immediately. [ 193 ] Despite this concession, he also expressed the view that he had complied with his disclosure obligations.

As part of his examination for discovery he provided the claimant’s previous counsel with releases allowing that counsel to access his employment records for the position from which he was terminated, as well as his banking information.

He also provided her present counsel with copies of his tax returns and notices of assessment. [ 194 ] He agreed that during the examination for discovery in June 2021 the claimant’s former counsel drew his attention to the proper format of a list of documents, and put him on notice that he risked not being able to rely on any of his documents at trial if he did not provide a list in a timely manner.

During that discovery, he was unable to offer any reason why he had not completed one yet. [ 195 ] He agreed that the judge who presided over one of the trial management conferences had told him that he was in breach of the order with respect to disclosure, and possibly in contempt. [ 196 ] He also agreed that his initial list of documents from January 2023 “wasn’t much good”, including the fact that it did not list any of his bank or credit card statements.

Although he had received examples of how to prepare such a list, in the form of the ones provided by the claimant’s counsel, he still found it “challenging to do it the first time”, and “was still a little bit confused about how to do it properly”. He later added that he had “no idea what [he] was doing at the time”.

Despite this, he also agreed with the suggestion that it would have been “really, really easy” to provide his bank and credit card statements. [ 197 ] In response to a letter from counsel on January 30, 2023, which complained about the state of his disclosure at that time, the respondent demonstrated a defiant attitude in his replies, describing counsel’s concerns as “scare tactics” and declaring his unwillingness to get into a “back and forth” on the subject. [ 198 ] As to the documents that he produced on the day that this trial was supposed to begin (which was one day before it actually began), which were quite minimal, he acknowledged that none of them had been created after April 11, when the claimant’s counsel had written again demanding the list.

He had written back explaining that his list was “very substantial” and that it was “taking some time to put it together”. In his testimony, he explained that he did not provide his list at that point because he was still unsure about which documents he was going to include. Although he represented in his trial brief that he would provide the documents by April 21, he was still “acquiring” copies of some of them by that date. [ 199 ] His position on providing disclosure with respect to his medical situation had been even more categorical. When asked at the

December 2021 discovery about a release of medical records that the claimant’s then counsel had sent him, he had responded, “You’renot getting my medical records…that’s my personal business”.

He could not explain why he had not provided the record that heultimately relied on to support his tendon injury (a radiology report, which actually does not document that injury, only his old healedfibular fracture.) [200] As a further example of what the claimant says is his overall attitude to his disclosure responsibilities, in his communications withher counsel her referred to the “surprises” he would provide at trial with respect to his witnesses.

Discussion Proper Use of Misconduct Evidence [201] Because of the significant amount of evidence of misconduct by the respondent that was led in this trial, it is essential to definethe proper bases for its admissibility, confine it to those bases, and exclude from consideration anything that does not fit within them. [202] As a general principle, unless character is an issue in the case, or it meets the test for admissibility as similar fact evidence,evidence showing the bad character of a party is inadmissible in civil proceedings.

This is because the tendency of a party to behavebadly usually says nothing useful about their conduct in relation to the actual issues: Lederman, Fuerst and Stewart, The Law of Evidencein Canada, 6th ed. (2022)(“Law of Evidence”), at 10.7-10.9. [203] In family law trials, with the increased potential for reliance of the bad character of the opposing party, the use of this evidence iseven more tightly circumscribed.

Under the Divorce Act, which applies here because a divorce is being sought and almost all of therelief is a corollary of it, evidence of the past conduct of a party is only admissible if it is relevant to “the exercise of their parenting time,decision-making responsibility or contact with the child under a contact order” (s.16(5)). With respect to spousal support, s.15.2(5)purports to exclude the “misconduct of a spouse” from consideration entirely, although the Supreme Court of Canada has made it clearthat the effect of the misconduct on a spouse’s need for support remains relevant: Leskun v.

Leskun, 2006 SCC 25 , [2006] 1SCR 920. [204] There are also situations in which evidence that is relevant to an issue tends incidentally to demonstrate bad character.

Suchevidence will be admissible unless its prejudicial effect exceeds its probative value: Law of Evidence, at 2.84. [205] It is appropriate for the counsel to cross-examine on such matters for the purposes of testing a party’s credibility, regardless ofwhether those matters are substantively admissible, subject to the trial judge’s discretion to disallow oppressive or vexatious questions.For questions that are not relevant to an issue, the collateral facts rule applies, and counsel is bound by the party’s answer: Law ofEvidence, at 10.4. [206] The most straightforward type of conduct in this case is the alleged threatening statements and harassing behaviour by therespondent towards the claimant and Mr.

I.

It is directly relevant to the question of whether she is an “at risk family member” whose“safety and security is or is likely to be at risk from family violence carried out by a family member”, so as to support a protection orderunder s.183 of the Family Law Act. [207] To the extent that it helps to determine whether the respondent is capable of co-parenting L. and C. it is also relevant to theconcerns listed under s. 16(5) of the DA. [208] With respect to its potential relevance to spousal support, the vast majority of it occurred after separation, and the claimant did notsuggest in her evidence that it was an aspect of the marriage or its breakdown that left her in greater need of support, so I would notconsider it in that respect. [209] The relevance of the respondent’s substance abuse is more nuanced.

In itself such a problem is a neutral factor – family law doesnot treat it as a moral failing that disentitles a party from accessing the full range of rights that would otherwise be available to them. Thequestion is whether the specific behaviour that a party has engaged in while abusing substances relates to a matter in issue. [210] The obvious application in this case is whether the respondent’s past abuse of alcohol and/or illicit drugs, if I find it occurred, islikely to affect his ability to parent in L. and C.’s best interests in the future.

Similarly, it may demonstrate a greater likelihood ofengaging in future threatening or harassment conduct while under the influence. Since it is related to the alleged extensive absences fromthe home during the marriage, it may have rendered the claimant’s role as primary caregiver more demanding, thus affecting the impactof that role on her need for support.

Finally, to the extent that it was linked to the respondent’s spending patterns, both during themarriage and after separation, it may be informative on the question of whether he dissipated family resources, or spent money on thatactivity that should have been used to pay support. Effect of Non-Disclosure [211] Failure to disclose material information has been described as the “cancer” of family law litigation: Leskun, at para. 34, citingCunha v.

Cunha (1994), (BC SC), 99 B.C.L.R. (2d) 93 (S.C.), at para. 9. [212] One of the options available to the court when it has occurred is to draw an adverse inference against the offending spouse – thatis, an inference that the missing material would have supported the position of the spouse who unsuccessfully sought disclosure.

Thisoption is statutorily enshrined in s. 23 of the Federal Child Support Guidelines with respect to support orders, and with respect to non-compliance with disclosure orders generally in s. 213 of the FLA. [213] However, the availability of an adverse inference does not permit a court to make “something out of nothing”, by inferring the

existence of specific assets in the absence of some evidence about them: Wu v. Sun, 2011 BCCA 239 at para. 41. [214] On any version of the events, the respondent’s disclosure of relevant documents, particularly with respect to his banking andcredit card use, has been completely inadequate. I will address the consequences of this shortcoming as they arise in relation to each ofthe disputed issues. [215] At this point however, I should address his argument that the releases he provided to the claimant’s former counsel fulfilled hisdisclosure obligations.

Aside from the obvious fact that they cannot be used by the claimant’s present counsel because they werecompleted in the name of her previous one, releases do not fulfill the essential requirement of a list of documents under the SCFRs,which is to list, on an ongoing basis, “all documents that are or have been in the party's possession or control and that could, if available,be used by any party at trial to prove or disprove a material fact”: Rule 9-1(a))(i).

This is in addition to the requirement to complete aForm 8 financial statement with all necessary attachments, and to update it in relation to the trial dates: Rule 5-1(18). Credibility Assessment [216] Of the recognized factors that can influence the assessment of credibility (see the often-quoted and helpful compendium inBradshaw v.

Stenner, 2010 BCSC 1398 at para. 186), the ones that particularly apply to the parties in this case are: an interest in theoutcome of the litigation and the extent of the witness’s ability to resist that influence when giving their testimony; the reasonableness oftheir evidence and its resonance with reliable independent evidence; and their responses to cross-examination. [217] The overarching consideration of course is the consistency of the version of events that the witness provides with what a“practical and informed” observer finds is likely to have been reasonable in those particular circumstances, as described in the classicauthority of Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 (BCCA) at para. 10. [218] There were actually fewer areas of factual dispute in this trial than it might initially appear. The respondent did not contest theclaimant’s primary responsibility for childcare and household duties during the relationship. While he has explanations for it that do notreflect any fault on his part, he was really not in a position to dispute the extent or nature of his contact with L. and C. since theseparation. He certainly did not claim that the claimant had impeded it.

The major transactions involving the family home are containedin banking records and the inappropriate communications by him to the claimant after the separation are preserved in emails and textmessages. The respondent has also not suggested that he has made any more financial disclosure than the claimant credits him with. [219] Similarly, while the basis on which Mr.

C. has provided financial assistance to the claimant is disputed, there is no reason todoubt that his company assumed the mortgage on the family home, or that it advanced the other sums to her that are recorded in thepromissory notes. [220] The main areas of dispute on which there is no reliably recorded evidence have to do with the allegations of threatening behaviourby the respondent before the separation, the existence of a substance abuse problem on his part and the amount of time he spent outsideof the home socializing as a result of it, and the degree of the claimant’s knowledge and involvement in the family fi

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