Fitchett v. Mellin Date:, 2017 BCPC 208

Citation: Fitchett v. Mellin Date: 20170710 2017 BCPC 208 File No: F3322 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF INTERJURISDICTIONAL SUPPORT ORDERS ACT , S.B.C. 2002, c. 29 BETWEEN: BRADLEY BRIAN FITCHETT APPLICANT AND: KATHERINE JOHANNA MELLIN RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. BLAKE Counsel for the Applicant: M. Odishaw

Appearing for the Respondent: Self-Represented Counsel for the Director of FMEP: A. Leslie Place of Hearing: Colwood , B.C. Dates of Hearing: April 25, 2016, August 12, 2016, February 21, 2017 Date of Judgment: July 10, 2017 INTRODUCTION [ 1 ] The Applicant Bradley Brian Fitchett and the Respondent Katherine Joanna Mellin have both made applications with respect to a series of child support orders (or “assessments”) made in Australia between 2007 and 2012.

For ease of reference, I will refer to those orders collectively in these Reasons as “the Australian Orders” or simply “the Orders”. [ 2 ] The overall effect of the Australian Orders was to impose a child support obligation on Mr. Fitchett which varied in amount from time to time but which, because no payments were made, continued to accumulate. The obligation had risen to $21,018.23 by January 13, 2014. On that date, the Orders were registered in British Columbia pursuant to the provisions of the Interjurisdictional Support Orders Act , S.B.C. 2002, c. 29.

Interest has continued to accrue on the principal amount since that time. [ 3 ] The intended beneficiary of the support payments referred to in the Orders is Marley Jane Elizabeth Mellin (referred to herein as “Marley”), the biological daughter of both the Applicant and the Respondent. Marley was born on October 19, 1994, and thus ceased to be a “child” for child support purposes in 2013. This explains why any accretion to her father’s financial obligation ever since the Australian Orders were registered in British Columbia, has consisted of interest only, not principal. BRIEF BACKGROUND

SUMMARY [ 4 ] It would be helpful if I began with a brief

summary of the factual background. This

summary is not intended to be exhaustive. It is intended solely to provide sufficient information to place into context the nature of the proceedings before me. [ 5 ] The Applicant and the Respondent lived together between 1993 and 1995, during which time Marley was born. [ 6 ] After the parties separated, the Applicant continued to enjoy parenting time with Marley and to exercise at least some parenting responsibilities. [ 7 ] In or about 2001, the Respondent decided to move to Australia.

I gather that the move was intended to enhance her employment prospects. [ 8 ] Initially, the Respondent’s move to Australia was intended to be temporary, and the Applicant did not object to it. Indeed, he spent some months in Australia himself in 2001 in order to make the move easier for the Respondent and for Marley.

He has noted, in his evidence before me, that he took Marley to her first day of school in Australia. [ 9 ] A year later, however, the Respondent, through her solicitor, wrote to the Applicant in British Columbia, advising him that she would like to remain in Australia on a more permanent basis. [ 10 ] It appears that in 2002 and 2003, an agreement was struck between the parties, who both had counsel. The agreement covered various matters, including the Applicant’s access to his daughter and child support. The Respondent agreed that she would support the child.

Although the agreement is less than clear, it appears to suggest that the Applicant is to bear no financial responsibility to support Marley. [ 11 ] On April 17, 2003, a Consent Order was filed in the Family Court of Australia (Brisbane Registry), presumably intending to document the agreement that had been reached between the parties but making no direct mention of child support. [ 12 ] In 2007, the Respondent made an application to the Family Court of Australia for child support.

She was successful. [ 13 ] The child support regime in Australia appears to contemplate regular reviews of child support orders, and in the present case those reviews occurred on seven separate occasions between 2007 and 2012.

The Applicant’s child support obligations varied considerably as a result of some of those reviews, but the obligation was never extinguished. [ 14 ] The Applicant claims that he did not know of the Respondent’s initial child support application until 2009, and then began to complain to the Australian authorities, not surprisingly perhaps, that he did not believe the process to have been fair. He had not been advised of the process nor had he had any opportunity to participate. [ 15 ] The Applicant’s complaints to the Australian authorities do not appear to have met with much success.

At one point, a reviewing officer told him that even if the Respondent had waived entitlement to child support in 2002 and 2003 - which she thought was not clear - the waiver may not have been intended to be permanent. The reviewing officer did not appear to be greatly moved by the suggestion that the Applicant had not received notice of the Family Court proceedings in 2007. [ 16 ] In any event, however, the Applicant was aware of the Australian court process by 2009, and thereafter he took

part in at least some of the review sessions by telephone, with the assistance of counsel. He never did take action in Australia to advance his assertion that he had not been notified of the process at its inception and that the entire process should be considered void as a result.

[ 17 ] In 2014, the Respondent applied to have the succession of “assessments” made by the Australian Family Court accepted for registration in British Columbia pursuant to the provisions of the Interjurisdictional Support Orders Act . The Respondent herself returned to British Columbia in 2016. I have not been provided with any information concerning Marley’s present whereabouts, but I am advised that she has a domestic partner and has a small child. Marley is currently 22 years of age. [ 18 ] On July 29, 2015, the Applicant, represented by his counsel Ms. Odishaw, filed an application to this Court.

Evidently, the Applicant had become aware that the Respondent had applied to register the Australian Orders in British Columbia, even though it seems that the registration process had not been fully perfected at that time. [ 19 ] In his Application to this Court, the Applicant sought relief under

section 35 of the Interjurisdictional Support Orders Act and stated that the reasons for his Application were as follows: The parties had an agreement with regard to child support. The Applicant was not aware or represented at the Hearing. . . . [ 20 ] The Respondent filed a Reply. She disputed the Applicant’s assertion that he had not been aware of the Australian court proceedings, referring to his telephone attendance, with counsel, at some of the later sessions.

The Respondent also expressed the view that the Applicant had never provided satisfactory financial information to the Australian authorities and stated that he should actually have been ordered to make higher child support payments than those assessed against him in Australia between 2007 and 2012. She based this last proposition on the knowledge which she said she had only recently acquired concerning the Applicant’s earnings since 2007.

THE LEGISLATION [ 21 ] The outcome of the present applications is very much determined by the interrelationship of the various pieces of legislation which govern, or may potentially govern, the proceeding. I will, therefore, set out the legislative provisions in some detail. [ 22 ] Sections 16 to 20 of the Interjurisdictional Support Orders Act read as follows: 16(1) In this Part: “extraprovincial order” means (

a) a support order that is made in a reciprocating jurisdiction in Canada; or (

b) a variation of a support order if the variation is made in a reciprocating jurisdiction in Canada, but does not include a provisional order or a provisional variation order. “foreign order” means (

a) a support order that is made in a reciprocating jurisdiction outside Canada, or (

b) a variation of a support order if the variation is made in a reciprocating jurisdiction outside Canada, but does not include a provisional order or a provisional variation order.

(2) This Part applies only with respect to extraprovincial orders and foreign orders. 17(1) For an order to which this Part applies to be registered, an eligible copy of the order must be sent to the designated authority.

(2) On receiving an eligible copy of an order under subsection (1) the designated authority must send the eligible copy of the order to the British Columbia court. 18(1) On receiving an eligible copy of an order under section 17(2), the British Columbia court must register it as an order of that court.

(2) On an order being registered under subsection (1), the order, from the date it is registered, has the same effect as a support order made by a court in British Columbia.

(3) Subject to

section 19, an order registered under subsection (1) may be enforced, with respect both to arrears accrued before registration and obligation accruing after registration, in the same manner as a support order made by a court in British Columbia, or may be varied under this Act.

(4) Subject to

section 19, an order registered under subsection (1) may be filed with the director.

(4.1) Unless otherwise stated in the order, if an order registered under subsection (1) creates an obligation to pay support, the duration of that obligation is governed by the law of the jurisdiction under which law the order was made.

(4.2) Despite subsection (4.1), if the director is unable to determine the duration of the obligation to pay support based on information received from the person seeking to have the order enforced in British Columbia or from the reciprocating jurisdiction, the director may apply British Columbia law to determine the duration of the obligation to pay support.

(5) This

section applies to a registered order whether it is made before, on or after the date this

section comes into force. 19(1) After registration of a foreign order made under

section 18, the British Columbia court must send notice of the registration to (

a) the party required to pay support under the order, whether or not that party habitually resides British Columbia, and

(

b) every other party to the order who resides in British Columbia.

(2) A party to a foreign order may apply to the British Columbia court to set aside the registration (

a) within 30 days after receiving notice of the registration, and (

b) on giving notice of the application in accordance with the regulations.

(3) On an application under subsection (2), the British Columbia court may (

a) confirm the registration, or (

b) set aside the registration if the British Columbia court determines that (

i) a party to the foreign order did not have proper notice or a reasonable opportunity to be heard in the proceeding, in which the foreign order was made, (ii) the foreign order is contrary to the public policy of British Columbia, or (iii) the court or administrative body that made the foreign order did not have jurisdiction to make the order.

(4) For the purpose of subsection (3(b)(iii) the British Columbia court must consider the foreign court or administrative body to have had jurisdiction if the British Columbia court determines that (

a) both parties to the foreign order habitually resided in the reciprocating jurisdiction outside Canada, or (

b) a party did not habitually reside in the reciprocating jurisdiction outside Canada but was, under British Columbia’s conflict of interest rules, subject to the jurisdiction of the foreign court or administrative body that made the foreign order.

(5) A British Columbia court that sets aside the registration under subsection (3) must record the reasons for its decision.

(6) The British Columbia court must give notice of its decision or order, and written reasons, if any, to the party that did not request the registration, and the designated authority. 20(1) If the registration of a foreign order is set aside under

section 19, the foreign order must be dealt with under this Act as if it were a document corresponding to a support application received under section 9(1) or a support variation application received under section 29(1).

(2) If the foreign order does not contain the necessary information or documents required for a support application or a support variation application, the designated authority must request the necessary information and documents from the party who applied to register the order or the appropriate authority of the reciprocating jurisdiction that requested the registration.

(3) Until the court receives the required information and documents under subsection (2) no further steps may be taken under this Act. [ 23 ]

Section 35 of the Interjurisdictional Support Orders Act reads as follows: 35(1) The British Columbia court may, after taking into account any right of a government or agency of a government under

section 40, vary a support order made or registered in British Columbia under this Act or under the former enactment if (

a) both the applicant and respondent accept the British Columbia court’s jurisdiction, or (

b) Repealed; or (

c) the respondent habitually resides in British Columbia.

(2) The Family Law Act applies for the purposes of varying a support order under the circumstances referred to in subsection (1), as if the order being varied were an order respecting child support or spousal support under that Act. [ 24 ] In my view, sections 19 and 35 of the Interjurisdictional Support Orders Act interact with one another in a very specific way.

Section 19 governs the situation in which an applicant takes issue with fundamental aspects of the manner in which the foreign tribunal accepted jurisdiction, conducted its proceedings, or rendered its decision. The criteria set forth in section 19(3) indicate that when considering a

section 19 application, the British Columbia court is to focus on fundamental issues of jurisdiction, public policy and procedural fairness alleged to have arisen in the foreign jurisdiction. Such issues call into question the basic validity of the foreign order that is sought to be enforced. [ 25 ] It is precisely because a

section 19 application calls into question the basic validity of the foreign order that the applicant in such a case must notify the “designated authority” (i.e., the authority which oversees the registration of foreign orders in the province) before the application can proceed. The designated authority presumably has the ability (as would appear to be confirmed in the wording of section 20(2)) to communicate with the foreign jurisdiction and to obtain such information as may be necessary to determine whether the application has merit. [ 26 ] A

section 35 application is less sweeping in its scope. Such an application proceeds on the basis that the foreign order is valid. The application focuses on whether the foreign order requires adjustment for specific and limited reasons. [ 27 ] The wording of section 35(2) of the Interjurisdictional Support Orders Act brings about the engagement of certain specific

provisions of the Family Law Act, SBC 2011, c. 25. In particular, sections 152 and 174 of the Family Law Act are brought into play. Those sections read as follows: 152(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

(2) Before making an order under subsection (1), the court must be satisfied that at least one of the following exists, and take it into consideration: (

a) a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made; (

b) evidence of a substantial nature that was not available during the previous hearing has become available; (

c) evidence of a lack of financial disclosure by a party was discovered after the last order was made. 174(1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears.

(2) For purposes of this section, the court may consider (

a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support, (

b) the reasons why the person responsible for paying support cannot pay the arrears owing, and (

c) any circumstances that the court considers relevant.

(3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order.

(4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under

section 11.1 of the Family Maintenance Enforcement Act , on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. [ 28 ] For reasons which will become apparent momentarily, I will also reproduce

section 75 of the Family Law Act , which reads as follows: 75(1) A court must recognize an extraprovincial order if all of the following apply: (

a) the extraprovincial tribunal would have had jurisdiction to make the order under the rules that are applicable in British Columbia; (

b) each party to a proceeding in which the extraprovincial order was made had (

i) reasonable notice that the order would be made, and (ii) a reasonable opportunity to be heard respecting the order; (

c) the extraprovincial tribunal was required by law to consider the best interests of the child; (

d) it would not be contrary to public policy in British Columbia to recognize the order.

(2) On recognition by a court, (

a) an extraprovincial order has the same effect, and may be enforced, as if it were an order made under

section 45, 51 or 59 as applicable, and (

b) the court may, if necessary to give effect to the extraprovincial order, make any order that the court may make under this Act.

(3) If an application is made to recognize more than one extraprovincial order and the orders conflict, the court must recognize the order that is most consistent with the best interests of the child. [ 29 ] In conclusion on this aspect of the matter, I emphasize that sections 19 and 35 of the Interjurisdictional Support Orders Act , when seen in the context of the statutory framework in which they appear, differ fundamentally from one another.

Section 19 is intended to govern the situation in which an applicant calls into question the foreign order as being so fundamentally flawed that it should be considered invalid.

Section 35, on the other hand, is intended to come into play if the applicant accepts the validity of the foreign order but takes the position that some adjustment of that order would be appropriate. In my view, the outcome of the present applications is substantially determined by the failure to distinguish between the two types of application, as I will now attempt to explain. ANALYSIS OF EVIDENCE AND SUBMISSIONS [ 30 ] These applications first came before me on April 25, 2016.

At that time, the Applicant gave his evidence, which to a large extent simply incorporated all that he had deposed to in an affidavit sworn on June 27, 2014. His evidence was helpful in that it succinctly disclosed the essential factual background. [ 31 ] As the Applicant continued to testify, however, I became increasingly concerned about the direction in which he was heading. It seemed to be that his primary focus was on the manner in which the Australian Family Court proceedings had been conducted.

[ 32 ] Essentially, the Applicant’s position was that the Australian tribunal had never notified him properly of its proceedings, had thereby denied him a fair opportunity to be heard, and had then compounded its unfairness by completely overlooking the previous consent order in which (he believes) he had been absolved of the responsibility for child support payments. [ 33 ] Given the fact that the application before me purported to have been made pursuant to

section 35 of the Interjurisdictional Support Orders Act , I began to express my concerns to the Applicant’s counsel that the hearing was becoming focused on matters that were not open for my consideration. Lengthy discussions ensued between counsel and myself, in which I suggested --- wrongly as it turns out -- that perhaps the application was intended to engage

section 75 of the Family Law Act . Counsel accepted --- also wrongly as it turns out --- that my assessment could be correct. [ 34 ] Not surprisingly, the Respondent was somewhat baffled by the discussion taking place around her in the courtroom. When I explained to her that the Applicant appeared to be focusing his attentions on the process adopted in the Australian Family Court, claiming that he had not been properly notified of the proceedings there and had not had a proper opportunity to be heard, she submitted that up until that moment, she had not understood the thrust of the Applicant’s arguments.

She asked for an adjournment to consider her position. I understood her to mean that if she had a bit more time, now that she understood the Applicant’s position, she would be able to refute his assertions about the fairness of the Australian proceedings. [ 35 ] I granted the adjournment, but suggested strongly to the Respondent that she would be wise to obtain legal counsel before the matter returned to court. She declined, stating that she “did not want to throw good money after bad.” [ 36 ] When the matter returned to court on August 12, 2016, I had the benefit of hearing from Mr.

Leslie, counsel for the Family Maintenance Enforcement Program (“FMEP”), whose task it may be to enforce the Orders. Mr. Leslie asked to address the court in an attempt to explain the legislative framework in which we were operating. Despite objection from the Applicant’s counsel, I elected to hear Mr. Leslie’s submissions. [ 37 ] Mr. Leslie’s helpful submissions made it clear to me that there was, indeed, a reason for my unease, on the first day of hearing, about the scope of what the Applicant was attempting to do in the context of an application under

section 35 of the Interjurisdictional Support Orders Act . After further discussion in the courtroom, it was agreed that the Applicant’s application should now be put on a more solid footing, allowing the Applicant to delve into those fundamental issues which so clearly concerned him about the Australian court process. [ 38 ] Accordingly, I made the following Order at the conclusion of the proceeding on that second court date, August 12, 2016: THIS COURT ORDERS that the application filed on behalf of Bradley Brian Fitchett on July 29, 2015, be deemed to be an application under Sections 19 and 20 of the Interjurisdictional Support Orders Act , and, in the alternative, an application under

Section 35 of the Interjurisdictional Support Orders Act . THIS COURT ORDERS that Bradley Brian Fitchett’s application be adjourned generally to allow Bradley Brian Fitchett to give notice to the Designated Authority pursuant to Section 19(2) of the Interjurisdictional Support Orders Act . THIS COURT ORDERS that Bradley Brian Fitchett’s evidence given on April 25, 2016, will be considered evidence at the hearing of this matter, subject to the entitlement of cross-examination. [ 39 ] I emphasize the importance of the inclusion of the requirement that the Applicant give notice to the “Designated Authority.” The types of issues that could potentially be raised on a

section 19 application absolutely required the involvement of the Designated Authority in order that fundamental questions of public policy and of fairness in the foreign jurisdiction may be fully and properly explored. [ 40 ] The proceeding was then adjourned to continue once more before me on February 21, 2017. [ 41 ] At the commencement of the continuation of the hearing, counsel for the Applicant advised me that she had now decided to abandon any application under sections 19 and 20 of the Interjurisdictional Support Orders Act , and wished to proceed pursuant to

section 35 only. As I was somewhat surprised by this turn of events, I asked counsel to specifically confirm her position on the record, and she did so. The parties then filed a written consent order, which had been drafted at some time before the actual court date, confirming the position.

For what it is worth, I simply assumed that in the six months which passed since the previous court date, counsel had satisfied herself that any issues concerning the validity of the Australian process had been considered and had been found to have no merit. [ 42 ] The hearing then continued, although at this stage, the proceeding was in the nature of submissions from the parties rather than in the form of evidence from the witness box. My perspective was that the submissions were intended as nothing more than a short introduction to the continuation of testimony, which I expected to take place momentarily.

To my astonishment, however, the submissions made by counsel for the Applicant continued to focus entirely on the alleged flaws in the Australian process, issues which could only have relevance to an application under

section 19 of the Interjurisdictional Support Act and had no relevance to a

section 35 application. [ 43 ] Try as I might, I could not seem to make clear to counsel for the Applicant that we were wasting court time, given the fact that the

section 19 application had clearly been abandoned. Eventually, I advised the parties that if the Applicant’s argument was a mere repetition of what I had been hearing so far, I would not be taking further court time to hear testimony, but would entertain written submissions. I half-expected that the written submissions would reveal that I had simply “missed the boat” somehow and that I would find something in the written version of the argument that would resonate under

section 35 rather than

section 19. [ 44 ] I advised the Respondent that she too could present her argument to me in writing, explaining to me why the Australian Order should be varied to allow for a retroactive increase in child support. Again, I emphasized to her that she might wish to retain counsel, but again she declined.

[ 45 ] I have now read the extensive written submissions filed by both parties. The Applicant’s argument has not changed. I will not repeat it in detail, except to say that it is an extended version of his assertion that the Australian Family Court has not treated him fairly. Essentially, he asks that I decline to register the Australian Orders. The closing paragraph of his submission reads this way: 56. For all the reasons set out above, Bradley asks the court to allow his application and set aside the Australia Child Support Assessments Order for the child support and suspend all enforcement proceedings. [ 46 ] This is an application under

section 35 of the Interjurisdictional Support Orders Act . For reasons which I have tried to explain at some length, both in the courtroom and in these Reasons, I cannot grant the relief which the Applicant seeks. Nor have I been provided with any evidence which would allow me to grant to him the sort of relief which

section 35 contemplates. I must, therefore, dismiss the Applicant’s application for variation of the Australian Orders. The funds which have been held by the Director of Maintenance Enforcement pending the outcome of this proceeding may now be distributed to the Respondent. [ 47 ] It remains for me to consider the Respondent’s application. She has asked that I vary the Australian Orders by retroactively increasing the Applicant’s child support obligations.

She says that I should do so because the Applicant consistently failed to provide financial disclosure to the Australian authorities, resulting in support orders that are too low.

She says that now that fuller disclosure has been made, in the form of the various tax returns and other documents attached to the Applicant’s application to this Court, it is apparent that the Applicant should have been paying more all along. [ 48 ] There may be something to the Respondent’s argument, but I find that I am unable to reach any firm conclusions because the arguments set forth in her written submission are so seriously out of focus.

I will briefly explain that comment. [ 49 ] In her submission, the Respondent maintains that the Applicant’s recent financial disclosure shows that he has been underestimating his income all along. She points to the information which he has disclosed showing his income from dividends paid out to him by a company which he controls. [ 50 ] Unfortunately, however, significant complications arise when a payor parent receives income in the form of dividends.

Tax rates may differ in such cases resulting in differing amounts being available for child support that might otherwise be the case when a person receives employment income in the traditional form. [ 51 ] Section 19(1)(

h) of the Child Support Guidelines provides that in cases where the payor derives a “significant portion of his income from dividends” the court is required to enter into a specific form of inquiry to determine his “real” income for child support purposes. That process was discussed at some length in the case of Megson v. Megson , 2014 BCSC 2467 .

It is not an easy exercise and the Respondent offers me no guidance on how I should even begin the process. [ 52 ] Perhaps more importantly, the Respondent has not provided anything to assist in determining the extent to which, under Australian guidelines in place between 2007-2012, the Applicant’s child support obligation should actually have been higher than it was assessed to be.

The Respondent provides me with no figures at all. [ 53 ] For the most part, the Respondent’s written submission consists of a general disparagement of the Applicant’s qualities as a father, both from a financial point of view and otherwise. That is singularly unhelpful. [ 54 ] As I have already said, it may be that the Australian Orders do indeed underestimate the Respondent’s child support obligation. I cannot say. The Respondent has offered me no information which might allow me to pursue that avenue of inquiry.

Given the fact that she repeatedly refused my suggestion that she obtain some legal help to present her case, and did so basically because she just did not think it was worth it, I am not inclined to do all of her homework for her. In the circumstances, I have no alternative but to dismiss her application. CONCLUSION [ 55 ] The Applicant’s application for variation of child support, made pursuant to

section 35 of the Interjurisdictional Support Orders Act , is dismissed. [ 56 ] The Respondent’s application for variation of child support, made pursuant to

section 35 of the Interjurisdictional Support Orders Act , is also dismissed. [ 57 ] The funds held by the Family Maintenance Enforcement Program to the credit of this matter, pending the outcome of the present applications, can now be paid out to the Respondent.