D.D. v. I.D. Date:, 2011 BCPC 489

Citation: D.D. v. I.D. Date: 20110908 2011 BCPC 0489 File No: F12453 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: D.D. APPLICANT AND: I.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Counsel for the Applicant: D. Klassen

Appearing in person: I.D. Place of Hearing: Abbotsford , B.C. Date of Hearing: May 12, 27, June 13, July 27, 2011 Date of Judgment: September 8, 2011 [ 1 ] THE COURT : This application was referred back to the Provincial Court following partially successful appeals. While I was not one of the judges who originally made the orders, all parties have agreed that I should seize myself of this file and decide the few issues that remain. [ 2 ] Those issues are identified through the court history. On November the 4th, 2009, the Provincial Court ordered I.D. to pay both retroactive and ongoing spousal and child support.

Based on his actual income for 2008 being $29,903, spousal support of $707 per month was ordered from June to December 2008. Imputing income of $24,000 for 2009, monthly spousal support was reduced to $523, and monthly child support of $220 was ordered for the baby born January 23rd, 2009.

To his credit, I.D. was up-to-date in all his payments, making both a lump sum retroactive payment in the amount of $13,122, as well as all of the ongoing monthly support payments up to the date of the appeal. [ 3 ] On July 14th, 2010 the Supreme Court, later confirmed by the Court of Appeal, reduced I.D.’s imputed 2009 income to $19,000, lowering the amount of related child support to $170. The cumulative effect of the two Appeal Court decisions was to refer back to Provincial Court the commencement date of the child support and the quantum and commencement date of spousal support.

Those then are the issues for this court to determine. The amount of I.D.’s income for 2009 has been fully established through appeal, $19,000. The questions are, when should the child support of $170 begin, and when and what, if anything, should be paid as spousal support? [ 4 ] As well, on August the 3rd, 2010 the Provincial Court made an order for sole custody and guardianship to D.D. That order has been confirmed on appeal dated October the 8th, 2010, but the issue of access has been referred back to this court, as the order was silent as to access.

So the third issue is what access, if any, would be in the child's best interests? [ 5 ] Before turning to those issues in detail, I am going to quote from the Court of Appeal decision given November the 30th, 2010 ( 2010 BCCA 557 ) as it sets out the background facts. I refer specifically to paragraphs 2 through 4: D.D. and I.D. were married in Romania in 2007. They began their Canadian cohabitation when D.D. joined I.D. here in March 2008. They separated in May 2008. On January 23, 2009, D.D. gave birth to their son. D.D. has been unemployed since she came to Canada.

At the time of the hearing in the Provincial Court, she was enrolled in classes to learn English in order to improve her prospects for employment. She and the son were supported by social assistance, since I.D. paid them no spousal or child support after their separation. As a result, with the assistance of counsel for the Ministry, she applied in the Provincial Court for an order for spousal and child maintenance. I.D. was employed as a security guard for many years until 2009 when he was unable to renew his licence because of pending criminal charges allegedly arising out of an incident involving D.D.

As well, commencing in 2001, I.D. was self-employed cleaning and maintaining a commercial building in the evenings. I.D. testified he intends to return to work as a security guard if and when he is able to renew his licence and that, in the meantime, he has been unable to find any additional cleaning contracts. In the hearing before us this afternoon [November 30, 2010], I.D. advises us that he got his licence back yesterday.

It appeared from financial information and tax returns filed by I.D. that his average gross annual income from his security-guard position was $23,000 to $25,000 and that his gross annual income from his self-employment was approximately $20,000. I.D. owned a home on which he had placed a mortgage in the amount of $180,000 to secure a line of credit. He testified he drew about $150,000 on the line of credit. He said he used $45,000 to buy gold, which he held at his bank. He said he spent the balance but has not provided any details of the expenditures.

He sold the home in July 2009 and, after paying the mortgage balance and sale expenses, he realized about $16,000. He said he spent about $11,000 of that amount to buy more gold. He said he has been spending the balance on his living expenses. [ 6 ] I will turn now to the specific issues, starting with child support. Based on imputed 2009 income of $19,000, I.D. is obligated to pay child support of $170 per month. I am going to order this commence January 1st, 2009. The child was born mid-January, and I accept that the expenses at birth are particularly heavy.

It is appropriate that the child support commence at the beginning of the month, rather than the end. [ 7 ] As I understand it, I.D. paid the originally-ordered amount of $220, up to and including the month of appeal being July 2010. This represents an overpayment of child support in the amount of $950. His obligation to pay child support will be suspended for five months from October 1st, 2011 to February 1st, 2012. He will pay $70 on March 1st, 2012.

Commencing April 1st, 2012 he shall resume ongoing monthly child support payments of $170. [ 8 ] Turning next to spousal support, I will deal with this in three time periods. For 2008, the spousal support of $707 per month, for a total of $4,949, was based on actual 2008 income of $29,903 before I.D. lost his security licence. This portion of the lump-sum award was confirmed by both the Supreme Court and the Court of Appeal. [ 9 ] Jumping to the present, D.D. has agreed to a nominal support order only, simply to preserve her right to re-apply should there be a material change in circumstances.

She proposes one dollar per year. [ 10 ] The most challenging period is 2009 and 2010, with the reduction of imputed income from $24,000 to $19,000. During this period, I.D. paid all of the spousal support as ordered; the significant lump-sum payment in November 2009, as well as ongoing monthly

payments. Spousal support paid for this period totalled $9,937. Any reduction of spousal support during this period would put D.D., a parent with a child dependent on social assistance, in a deficit position. [ 11 ] At this point I would like to address some of the concerns raised by I.D. during this hearing, as well as during the appeals. First, financial disclosure by D.D. and whether she sufficiently filed her financial statement in accordance with the Rules. From checking the file and reading the transcript dated November 2009, D.D. did file her financial statement on July 7th, 2008.

She has again filed her financial statement for these proceedings, including income tax returns for 2008 and 2009, and the Notice of Assessment for 2009. D.D. has complained about not receiving a Notice of Assessment for 2008. As I explained during the hearing, the income tax return provides all of the necessary information required for this hearing, in fact in greater detail than the Notice of Assessment. Throughout this time period, D.D. has had a very limited financial picture. Her sole income has come from social assistance and/or support payments from I.D.

I am more than satisfied that D.D. has followed the Rules and filed the necessary financial disclosure. As well, I note that pursuant to s. 6.2 of the spousal support guidelines, social assistance is not viewed as income, so that a person relying entirely on social assistance will be treated as a person with zero income. [ 12 ] Secondly, I.D. is concerned about the use of the spousal support guidelines in this case, particularly with its reference to a "floor" of $20,000. Within the guidelines themselves, at s. 11.4, the authors make it clear that the use of the word "floor" is not intended as an absolute bar.

Spousal support orders may be made against payors with incomes less than $20,000, although, as the authors state, "such orders are rare and thus exceptional." Going further: In general, the formulas for amount and duration will not operate where the payor spouse's gross income is less than $20,000 per year as it will be rare that there will be sufficient ability to pay. The emphasis then remains on an assessment of ability to pay. As well, it is important to note that the Spousal Support Advisory Guidelines are informal guidelines only.

They are not legally binding but rather intended as a useful advisory tool. (Section 3.2.1) [ 13 ]

Section 89 of the Family Relations Act still prevails. It sets out the obligation to support a spouse: s. 89(1) A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following: (

a) the role of each spouse in their family; (

b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other; (

c) custodial obligations respecting a child; (

d) The ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves; (

e) economic circumstances. To put it simply, the focus remains on the recipient's need and the payor's ability to pay. [ 14 ] As stated by the Court of Appeal, D.D.’s entitlement to spousal and child support has never been disputed. Through marriage, she was brought to Canada speaking very little English, with no prospects of employment. I.D. was the sole income-earner, and in fact signed a sponsorship agreement with the Federal Government regarding his responsibility to support her. Shortly after the separation their son was born, for whom D.D. has sole custodial obligations.

She clearly has need, and a strong compensatory claim for support. [ 15 ] Equally clear, in my view, is that I.D. had ample ability to pay. Notwithstanding the imputed income, he did in fact pay all of the amounts ordered: The very large lump-sum payment, as well as ongoing monthly payments totalling $743 each month. He has told me several times throughout these proceedings that he has paid thousands of dollars on transcripts and over $200,000 on court proceedings.

He had a clear ability to pay, while his wife and infant son, on social assistance, had obvious need. [ 16 ] Having regard to the factors set out in s. 89 of the Family Relations Act , I am satisfied that the spousal support payments previously paid must be confirmed while ongoing spousal support shall be nominal only. [ 17 ] To recap, I make the following orders: Based on the imputed income of $19,000 in 2009, I.D. is to pay child support of $170 per month commencing January 1st, 2009 and continuing on the first day of each month thereafter until further order of the court.

Given a resulting overpayment of child support in the amount of $950, I.D.’s obligation to pay child support shall be suspended for five months from October 1st, 2011 to February 1st, 2012, and on March 1st, 2012 he shall pay $70. Commencing April the 1st, 2012, I.D. shall resume ongoing monthly child support payments of $170 each month. [ 18 ] Based on guideline income of $29,903 in 2008, I.D. is to pay spousal support of $707 per month from June 1st, 2008, up to and including December 1st, 2008.

Based on imputed income of $19,000 in 2009, and taking into account s. 89 of the Family Relations Act , including financial need and I.D.’s ability to pay, I.D.’s payment of spousal support in the amount of $523 each month from January 1st, 2009 up to and including July 1st, 2010 shall be confirmed.

Based on imputed income of $19,000, I.D. shall pay D.D. ongoing spousal support of one dollar per year, commencing July 1st, 2011 and continuing on the 1st day of July each year thereafter, until further order of the court. [ 19 ] Now, ordinarily I would include a provision that I.D. send a copy of his income tax return and/or Notice of Assessment by July 1st of each year. Are you wishing me to do that in this case, or -- [ 20 ] MS. KLASSEN: Yes, that would be fine, Your Honour. [ 21 ] THE COURT: All right.

I will include the term that I.D. is to send a copy of his preceding year's income tax return and/or Notice of Assessment by July 1st of each year commencing July 1st, 2012. Do you wish that sent to your attention?

[ 22 ] MS. KLASSEN: At this point, yes. [ 23 ] THE COURT: So that is to be sent to D.D., care of her lawyer, Deanna Klassen. [ 24 ] I turn now to the issue of access. This child is now two-and-a-half years old and has had virtually no contact with his father since birth. I.D. is a total stranger to him. The mother has concerns about the sincerity of the father's intentions in spending time with the child, and even fears him absconding with the boy.

The mother also has concerns about physical abuse; the father was found guilty of assaulting the mother at the time of their separation, although he received a conditional discharge. [ 25 ] Given the general importance of a child getting to know both parents, I find that some access will likely be in the child's best interest, although with very strict supervision. This court shares the mother's concerns to such an extent that I am restricting the supervision to Don Silcox of Dolphin Investigation. It is my understanding from other court cases that Mr.

Silcox is a retired police officer, with the necessary skills and experience to ensure the safety and well-being of the child while in the father's care. [ 26 ] I order, on an interim basis, that the father have access to the child for up to three hours a visit, once every three weeks, supervised by Don Silcox of Dolphin Investigation, and paid for by I.D. I.D. may apply for a review of access after six months.

Assuming that six months goes by with the visits going well, the supervisor will provide a written report as to how the visits are going and what kind of bond is being established between father and child, then obviously it would be appropriate to look at the next step, increasing the amount of time and hopefully eventually moving to no supervision. [ 27 ] If there are any difficulties with respect to Mr. Silcox acting as the supervisor, in other words, if for some reason he is not available, then the matter should be brought back before me to address the issue.

As well, if the mother wishes to have a person of her choosing, be present for the visits, not the mother herself but rather someone else who is close to the child, then that, in my view, would be appropriate. [ 28 ] Before concluding my reasons for judgment I will take a moment to address I.D.’s other complaints or concerns as set out in his application filed June 6th, 2011. In short, I.D. alleges a number of wrongs against him by D.D., by D.D.’s counsel, and by the Provincial Court, including various Charter violations.

He seeks orders that the Provincial Court pay him damages in the amount of $20,000 per wrongdoing per month over various periods of time. There is no basis to that application, and I dismiss it in its entirety. [ 29 ] To summarize I.D.’s concerns, they seem to be under two categories; one having to do with procedural matters, the second having to do with the conduct of the hearing. As I have said to I.D. on other occasions, in my view he is largely the author of his own misfortune. This entire case should have been a relatively straightforward matter.

Certainly the issues that have been referred back to Provincial Court could have been dealt with in a rather

summary, efficient fashion. Unfortunately, and I am sure in part because I.D. is representing himself, he has developed a habit of filing an extraordinary number of applications, as many as four, for example, on one day. The file is now almost a foot thick. On occasion I.D. has failed to appear for his court dates, so the case has proceeded in his absence. On other occasions he has, at the last minute, filed a notice of withdrawal of his applications, without specifying which of the many applications he was referring to.

Quite frankly, it has become impossible to determine which applications are withdrawn and which applications are still proceeding. There has been that added difficulty for a judge who is faced with a file a foot thick, having extreme difficulty in knowing what particular matter or issue was in fact before the court. It was for that reason that I have seized myself of this file. I have gone through it on a number of occasions, trying to clean up the mess, if I can put it that way. Throughout, I.D. has nuggets of verifiable issues that have to be dealt with.

There is some basis for some of his submissions, but it gets very significantly lost within the whole of the mess, if I can put it that way. [ 30 ] As a result of this history, and of security concerns from the registry, orders were made that I.D. not file further applications, or have access to the file, without leave of the court. The first branch of the order, that he not file applications without leave, has been vacated. But, the second that he not have access to the file without leave of the court, does remain. I emphasize that this has not prevented him from having full access to the file.

After it was agreed that I seize myself of this file, on April the 28th, on the record, I reviewed in court all of the documents with I.D. and ensured that he had copies of everything in the file. I did that again during the first half hour to 45 minutes on the first day of hearing.

Around about the second or third day of the hearing when I.D. again expressed concerns, I sat down with him over the break for over half an hour, maybe 45 minutes of time, while I.D. specifically reviewed and touched every page within the file. [ 31 ] Notwithstanding these efforts, I.D. still persists in his belief that there are missing pages or sealed documents which are, for some reason, being kept from him.

He is unable to rely on the court's assurances that there are no sealed documents in this file and there is nothing that is being kept from him. [ 32 ] He also persists in his belief that there is an order in place that he not be sent documents or orders from the file. In fact, exactly the opposite is the case. As promised, I copied all of the documents in the file that had not specifically been filed by I.D. I left a large package for I.D. at the registry, and at the time noticed there were two other envelopes in his name containing documents that had been prepared by the registry.

When I.D. attended at the registry, he refused to accept these three envelopes because I had not prepared a covering letter. [ 33 ] I.D. has had full access to the file and has not in any way been prejudiced by my brother judge's earlier order limiting his physical access to the file. [ 34 ] I.D. also has a variety of complaints about the conduct of the hearing, which I think reflect his misunderstanding of court proceedings. He has frequently referred to the court proceedings on March 10th, 2011. This was a case conference which is held in Provincial Court.

It is an exercise of mediation, an attempt at mediation. It is not held in a trial courtroom but rather in the mediation room and the proceedings are not tape-recorded. Because I.D. did not show up for this hearing, the case conference in fact did not take place. As I have told I.D. on numerous occasions, even if the mediation had taken place there would not have been a transcript. There are no clerk's notes other than the form Record of Proceedings or the form when orders are made.

I.D. has been provided with those documents, but he still takes considerable issue with the way in which, I gather, Provincial Court conducts case conferences.

[ 35 ] In his application, he objected to the fact that, in the middle of the hearing, I had not ruled that D.D. was an unreliable witness. He was also concerned that, in the middle of the hearing, I had not ordered supervised visits. As I explained to him last day, it would be inappropriate for the court to make such a finding or make such a ruling while the hearing is still ongoing.

There is a basic principle that the judge needs to hear all of the evidence before making the decision, and indeed, that is what I have done. [ 36 ] In the June application, I.D. objected to the court denying what he referred to as a non-existent application to transfer the file. Specifically, he is seeking to have the file transferred to registries either in Chilliwack and/or New Westminster. I understand that I.D. brings his appeals in, I think, New Westminster these days; however, he is now living in Chilliwack.

He now agrees that in fact there is indeed such an application to transfer the file, but when I look at it from a balance of convenience, the mother lives here, the child lives here and Mother's counsel practices here. On a simple balance of convenience, with regret, I have to find that the court ought not to make an order transferring the file from this jurisdiction. That particular application, as indeed as I have said, all of the applications from June 6, 2011, are dismissed. __________________________ C.J. ROUNTHWAITE Provincial Court Judge