S. E. v. G. M. Date:, 2011 BCPC 435

Citation: S. E. v. G. M. Date: 20110830 2011 BCPC 0435 File No: F13190 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: S. E. APPLICANT AND: G. M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. A. GRAY Counsel for the Applicant: S. E. Counsel for the Respondent: G. M. Place of Hearing: Prince George , B.C. Date of Judgment: August 30, 2011 [ 1 ] THE COURT: I have reviewed the material and also my notes from the previous court date and I will just speak briefly on this matter.

The one issue really for this particular court hearing is the question of the transportation access costs. [ 2 ] This matter arose from what I see is the original application, a notice of motion filed by Mr. M., it is called Document Number 33 and first filed March 18th, 2010 at Prince George. [ 3 ] This matter has been before the courts on some extensive hearings as I view it.

Judge Brecknell provided reasons for judgment in December of last year on the issue of access transportation, made that order and that was incorporated into a two-page order that is an interim order setting out the access arrangement for M. E., born November 21st, 2000. [ 4 ] Ms. H., through the proceedings, has reverted to her previous name or maiden name H. and is known as that in these court proceedings. [ 5 ] Now, the matter had been adjourned. There had been some court orders regarding financial disclosure and that has been completed.

We have financial statements from both parties with attachments to those financial statements, and that has been of assistance to the court in order to determine the nature of the claims by both parties. [ 6 ] There have been extensive affidavits filed in previous hearings and I have made some review of them as well. At our court session August the 16th, I was able to hear from both parties, Mr. M. attending by telephone and he resides, of course, in Calgary, but outlining his own circumstances, and the mother, Ms.

H. was here at Prince George, she testified and stated various circumstances surrounding her financial circumstances. [ 7 ] Now, currently both parties are in new relationships. They have partners; Ms. H. is married and so is Mr. M., and as Mr. M. indicated he has a new child from that relationship. He resides at Calgary and currently has employment with the federal government as a passport examiner. As he has indicated, that is a six-month contract and it has been renewed for a period of six months. The second

renewal, however, expires September 30th, 2011, and he is anxious to have that contract renewed again, but with the current economics there is no guarantee that that job will continue. [ 8 ] He had previous employment and that was indicated paid a higher salary. Currently the financial statement that I have before me, the newest financial statement indicates the father's income is around $47,000 and that is reduced from what he had been earning previously in Calgary of approximately $80,000. [ 9 ] The mother resides here in Prince George. She is a teacher.

She works at a private school, if I can term it in that fashion, and her income is $27,000. In her financial statement, she has indicated that in 2009 she had limited income, about $1,647 as indicated by the Canada Revenue notice of assessment; in 2008, a larger income of $7,363; and in 2007, a smaller income of $2,184. [ 10 ] Ms. H. has recently completed studies and is now a teacher, but she is freshly employed and now earns the larger income of $27,000.

Her financial statement indicates that she has student loans and a variety of debts from her student years, but she expects that they will be reduced over time. [ 11 ] Her partner works at P.G. Fuel Injection, a business here in Prince George, and earns an income of about $65,000. [ 12 ] Now, the father's financial statement was not complete in the full form as required by the Family Court Rules and, as Mr. M. indicated, he did not see the need to complete anything further past the income portion.

I have his Page 6 showing his income and expenses, but the further pages, which set out assets and liabilities, have not been completed. They are not attached and his most recent Financial Statement does not include Page 9, which is the particular

section dealing with undue hardship in the question of reducing maintenance or making some accommodation for travel costs. [ 13 ] Mr. M.'s issue is that the Order that was made by Judge Brecknell on an interim basis should continue and that the parties should be under the Court term that they meet at Jasper and exchange M. at that time, M. being now 10 and half years of age. That has been the pattern of access and has continued in that form since the court Order of Judge Brecknell.

As I say, he rendered his judgment December 21st of last year. [ 14 ] Now, I have had the advantage also of reviewing a court case that has recently been issued by our Court of Appeal and that is the case of Kelly v. Kelly , and I have made copies for the parties so that they can review that. Madam Clerk, I thought I left copies with my file. No? I am just trying to retrieve those copies and perhaps I have left them in my office, Mr. M., but I will make reference to that. Yes, I will provide a copy now to Ms. H. and Mr.

M., I will forward a copy of this case to you with my court order. [ 15 ] The decision from the Court of Appeal, it is cited as Kelly v. Kelly , 2011 BCCA 173 , it is a decision from April the 12th, 2011, so it is a recent decision. It deals with this very topic and it is a decision where in that case the mother and father lived -- one in the lower mainland and the other in Kamloops, and they had an arrangement for the driving so that each would participate in half the driving effort and it is noted at paragraph 2 that the father, the appellant, drives 688 kilometres and the mother drives 718 kilometres.

She is the party in this case who is exercising access. [ 16 ] It is indicated also about the financial circumstances. That is described at paragraph 5 and paragraph 6. The mother has limited income of about $25,000 and annual expenses that are around $40,000 and part of that expense is accommodation that she provides so she has the children at access times in the lower mainland. [ 17 ] It is also stated at paragraph 6 that she claims fuel costs relating to access are about $200 per month and said she had to rely on the food bank for some of her groceries due to this.

That is at paragraph 6. [ 18 ] Then the court deals with a number of issues. There was an earlier determination by the chambers judge.

That is reviewed at page 2 and 3, and then on appeal, which starts at paragraph 13 at page 4, it shows the various grounds of appeal, there are four grounds of appeal there, but it is the last ground that is what I wish to refer to, that is the issue of access travel expenses and the undue hardship. [ 19 ] Now, specifically the court starts to deal with that particular issue at paragraph 30 at page 6, and it is a case where the mother in that case argued that her child support obligation of $447 should be reduced based on the debts she incurred, access costs being a large component. [ 20 ] Then the court makes this reference at paragraph 33: A claim for undue hardship under s. 10 of the Guidelines encompasses a two-step analysis.

First, the parent applying for relief must demonstrate the undue hardship that will be caused by paying Guidelines support. Section 10(2) sets out a non-exhaustive list of factors that may be considered at this stage, including “an unusually high level of debts” incurred prior to the separation or “to earn a living”, and “unusually high expenses in … exercising access”. This first step has a high threshold.

The hardship that must be established is described in the authorities as severe, extreme, improper, unreasonable, or unjustified. [ 21 ] There is a case reference to an earlier Court of Appeal decision, Van Gool v.

Van Gool from 1998. [ 22 ] Then paragraph 34: If, and only if, this first requirement is met, the second step engages a comparison of the standard of living in each parent’s household under s. 10(3) of the Guidelines , to ensure the payor of child support will not have a higher standard of living than the recipient if a reduction in Guidelines support is made. [ 23 ] Paragraph 35: If the applicant establishes these two requirements, the court has a discretion to order child support in an amount other than that required

by the Guidelines . This is a narrow discretion, however, and should be exercised cautiously to avoid thwarting the Guidelines ’ objectives of predictability and consistency. [ 24 ] Then the court goes on to examine that particular set of circumstances, but in the end the court concludes that it is not appropriate to reduce support and that there would be no allowance or discount made for the fact of the access costs. [ 25 ] The court does take into account calculations of the access costs.

The Court of Appeal dealt with 30-cents-per-kilometre calculation as being maybe more accurate in terms of gas, maintenance on the vehicle, and just general wear and tear of driving. At paragraph 41, the court says: I am not convinced these represent “unusually” high access costs for the respondent [...]. While access has become more frequent, the respondent is now employed, and is better able to meet the travel costs. [ 26 ] Now, that case, of course, is binding authority to a large extent.

Those principles are binding authority on lower courts and obviously the Provincial Court. [ 27 ] I have the decision from Judge Brecknell and, of course, that decision was made in perhaps circumstances a little bit different than what is before me. I now have the financial documents disclosing the situation of both parties. [ 28 ] Relying on comments made by Madam Justice Neilson in that decision of Kelly v. Kelly , I am not persuaded that the court should make any allowance or discount for access costs. [ 29 ] I do note that financial circumstances are somewhat different here than certainly in Kelly v.

Kelly , in fact perhaps Ms. Kelly was in more extreme circumstances because the court did acknowledge that she did rely on the food banks to maintain her month-to-month living. [ 30 ] In this circumstance before me, Mr. M. is working, has an income of $47,000. His wife is working, one affidavit indicates that she is a corporate counsel and had been most recently perhaps a partner at a large firm, G., L., and H. at Calgary. I have no information about her income or assets, although Mr.

M. was quite frank in describing that the two of them own two houses in Calgary and he is in the midst of renovating his own house and the prospect is that one of the two houses will be sold and the parties will reside in the one remaining house. I do not have any details about the value. I do not have information regarding the Calgary real estate market. It is not appropriate for me to speculate as to the value of those assets, but certainly two houses in Calgary. [ 31 ] Mr. M. has his own expenses similar to Ms.

H.'s expenses relating to getting behind in bills and having to sort out his applications for employment. He, as I say, has been employed for about 12 months and he has limited assets in terms of vehicles. I understand there is a Honda CR-V of 2002 vintage, and a 1997 BMW. That was stated in testimony. It was not set out in any Financial Statement. [ 32 ] To contrast, the mom resides in Prince George and she similarly has a partner who is able to assist her in the expenses of the household. There is only one dependent in that home.

In the Calgary home, we have the young baby in that home, so in some ways the houses are similar, although the father's income is larger. [ 33 ] Now, the father did explain the visits and the costs and it is an extensive travel for him to travel through to Jasper from Calgary and the mother as well explained the costs for her in travel to Jasper and back. [ 34 ] Turning to the principles set out in Kelly , firstly I have to determine if the particular set of circumstances before me are of undue hardship as described such as being severe, extreme, improper, unreasonable, or unjustified. [ 35 ] As noted in Kelly , the situation there was not found by the courts to be of that nature, and I am satisfied that it is not appropriate for me to determine under s. 10(2) that there is an unusually high expense relating to exercising the access.

Given the nature of the incomes the parties have and assets, in my view that first threshold, the first step in determining access costs and any discount or allowance that has not been met. [ 36 ] Now, if I was wrong in that aspect, I am comfortable with the information I have today to turn to the issue of the comparison of standard of livings of each household, and I am satisfied that if we examine the two households the household in Calgary has larger assets, the two houses versus one house, and the father's income is in my view substantially larger than the mother's, $47,000 versus $27,000.

I have information about Ms. H.'s husband's or partner's income. I do not have information about Mr. M.'s wife or partner's income. So I am not persuaded that it is incorrect to determine that Mr. M. in his household has a higher standard of living. [ 37 ] So, on that second step, Mr. M. would fail in an application regarding undue hardship. [ 38 ] As I say, I am satisfied that if we examine the issues and circumstances surrounding the travel to Jasper and return it is not a severe, extreme, or unreasonable cost or expectation that Mr. M. should fund that access and that Ms.

H. should not have her child support amount reduced in any fashion to accommodate the access by Mr. M. [ 39 ] I have Judge Brecknell's Order and the earlier Order that was made regarding access. That was also an Order of Judge Brecknell's made August 24th, 2007, about four years ago. It set out through paragraphs 1 and subsequent to that paragraph terms about access. I am satisfied that those access terms should not be varied. That was not before me, but those access terms have been followed. To a large extent, the parties have been able to cooperate and that

schedule or pattern of access should continue. [ 40 ] The Order that I am making today is that the transportation costs and the obligation to exercise access rests with Mr. M. and he is the individual who should be fully responsible for the transit and transport of M. to and from her home at Prince George. [ 41 ] In other words, Mr. M., it is my determination that you should be responsible for the transportation to and from Calgary, in other

words that you are the one required to pick the child up at Prince George and return the child to Prince George once you complete your access. [ 42 ] Now, there has been some accommodation or some sharing of that in the past by the two of you, but in my view that is not a proper subject for a court order.

I am not persuaded that there is an undue hardship and there should be some allowance for access to that extent as has been ordered previously. [ 43 ] I am satisfied that the father should shoulder the full responsibility for the transit and transportation of M. [ 44 ] Certainly if you wish to assist in funding some costs for Ms. H. in terms of gas or any mileage expense so that you could perhaps induce her to travel to Jasper, that is something the two of you can sort out between yourselves.

As I view it, the access exchange should take place at Prince George and the father is fully responsible for the access arrangements and the transport. [ 45 ] I note that both Judge Dollis and Judge Brecknell in earlier hearings made comments about the difficulties of access and Judge Brecknell's particular focus in part of his decision was that the child perhaps should not be subjected to such a large and extensive pattern of travel.

At 10 and half years of age, perhaps now is the time when the father should exercise access in and around the Prince George area so that the child is not subjected to the transit that has been taken in the past. As Judge Brecknell commented, and I believe Judge Dollis commented, the question raised by those two judges was whether that was necessarily in the child's best interest. [ 46 ] So in terms of the application made by Mr. M., that application is dismissed and reasons for judgment are available.

If the parties want to obtain my comments and decision today, they can request a copy of the transcript from the court reporters. That is available at cost, but I will forward a copy of the decision of Kelly v. Kelly with the order that will be completed today. We will forward that to Mr. M. at his address. [ 47 ] So those are the reasons for judgment and that concludes our hearing. There may be further applications the parties wish to make, but of course we are not dealing with any of that at this time. [ 48 ] Thank you. Thank you, Mr. M. (REASONS CONCLUDED)