M.J.S. v. A.D. Date:, 2016 BCPC 367

Citation: M.J.S. v. A.D. Date: 20161118 2016 BCPC 367 File No: F54900 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.J.S. APPLICANT AND: A.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Mr. S

Counsel for the Respondent: P.K. McMurchy Place of Hearing: Nanaimo , B.C. Dates of Hearing: August 3, 4, October 14, 2016 Date of Judgment: November 18, 2016 Background [ 1 ] Mr. S. and Ms. D. are the parents of A., now age 10. Mr. S. and Ms. D. have never lived together. A. has lived with his mother since birth. On February 2, 2010, when A. was 4, His Honour Judge Cowling made an interim order that Ms. D. have sole custody and guardianship of A. On September 7, 2010, Her Honour Judge Saunders made an interim order for Mr.

S. to have supervised access visits twice per week. [ 2 ] The requirement for supervision during Mr. S.’ visits arose as a result of a disagreement between Ms. D. and A.’s paternal grandparents, who are evangelical Christians. Ms. D., quite properly, claims the right as the custodial parent to decide what religious instruction A. should receive, and does not wish him to participate in the activities of the church attended by the paternal grandparents. In 2010, the paternal grandparents applied for an order for visits with A. Ms.

D. opposed the application, primarily on the ground that she believed that the paternal grandparents would take advantage of the visits as an opportunity to proselytize A. The paternal grandparents’ application was dismissed (after a 3-day hearing) by His Honour Judge Dohm on November 1, 2010.

In his written reasons of that date, he said: … there is a convincing pattern which demonstrates that the [paternal grandparents] do not respect the views of the mother. * * * … there is a great deal of conflict and hostility in the relationship between grandparents and the mother. * * * The testimony of the sister and of the maternal grandmother gives credence to the view that the [paternal grandparents] simply will not take no for an answer.

The mother says that she will never trust the [paternal grandparents] to not instruct the child in their religion. * * * … the child in this case finds himself in the midst of a high level of conflict between the [mother] and the [paternal grandparents]. While there is some evidence that, in the past, the child enjoyed a pleasant relationship with the [paternal grandparents], I am not satisfied that the vestiges of that relationship outweigh the risk to the child’s health and emotional well-being which flow from the conflict between the parties. [ 3 ] Mr.

S.’ parental rights and responsibilities were the subject of a hearing before His Honour Judge Gould on December 9, 2011. He made a final order that: (

i) Ms. D. have sole custody and sole guardianship of A.; (ii) Mr. S. have supervised access visits every second Saturday from 1:00 p.m. to 5:00 p.m.; (iii) “… during access visitation, the child is not to be exposed to any religious instruction or taken to any place of worship unless with the specific permission of Ms. D …”; and (iv) Mr. S. pay child support at the rate of $220 per month (based on an estimated income of $24,000 per year). In relation to Mr. S.’ application for joint guardianship, Judge Gould said: I think to open the door to decision-making with respect to A to [Mr.

S] and possibly his family is an invitation to disaster. Judge Gould’s oral reasons for judgment (which were transcribed) do not express a reason for the requirement for supervision during Mr. S.’ access visits. Mr. S. says that Judge Gould imposed the supervision requirement because Mr. S. had not seen A. in the two years preceding Judge Gould’s decision. There is no support for that assertion in Judge Gould’s reasons. Judge Gould did quote in his oral reasons the last of the passages from Judge Dohm’s judgment which I have quoted in paragraph 2, above.

I think it clear that Judge Gould’s decision on the issues of guardianship, custody and access was driven by his perception that the degree of hostility between the parents was so high that cooperative parenting would not be possible, and that attempts at cooperative parenting would be adverse to A.’s interests. [ 4 ] Mr. S. relies on the following passages from Judge Gould’s oral reasons: … it is reassuring to see that [Mr. S] still wants to be in the picture, that he still wants to have a relationship with this young boy …. * * * If [Mr.

Sl] is able to keep up on a regular basis and establish this relationship with young A the way he says that he wants to, then it might be easier to … make some adjustments to that access regime …. It is clear that Judge Gould hoped and expected that Mr. S.’ relationship with A. would evolve, and that changes might be made in Mr. S.’ visiting arrangements, depending on the nature and extent of the evolution in the relationship between father and son.

[5] On November 6, 2012, Judge Gould heard and decided an application by Mr. S. for: (

i) a reduction in his monthly child-support obligation; (ii) unsupervised access visits. Judge Gould dismissed both applications on the ground that Mr. S. had demonstratedno material change in circumstances in the interval between December 9, 2011 and November 6, 2012. [6] Under the terms of Judge Gould’s order, Mr. S. has been entitled to 26 supervised visits with A. each year. Mr. S. did not fullyavail himself of that opportunity. He had four supervised visits with A. in 2012, eight in 2013, seven in 2014, six in 2015 and six in thefirst seven months of 2016. Each of those visits was of 2 hours’ duration. Mr.

S. explains that supervision is very expensive, and that hehas had difficulty arranging a

schedule with the supervisor. There is no evidentiary basis for a suggestion that Ms. D. is in any wayresponsible for Mr. S.’ failure to exercise the access ordered by Judge Gould. [7] On April 12, 2013, Mr. S. filed another application, seeking substantially the same relief as he sought in the application whichwas heard and dismissed by Judge Gould on November 6, 2012. Ms. D. filed her reply to that application on May 13, 2013. In her reply,she sought “… child support retroactive to January 1, 2012 because [Mr. S.] misrepresented to the court and to [Ms.

D.] his income in2012 …”. [8] On May 17, 2013, Judge Saunders heard an application by the paternal grandparents, supported by Mr. S., for leave tointervene. Judge Saunders dismissed that application in written reasons dated May 17, 2013. She imposed a penalty of $2000 on thepaternal grandparents, under the authority of

section 221 of the Family Law Act SBC 2011, c 25 (“the FLA”), on the ground that theapplication was a frivolous attempt to re-litigate issues which had previously been decided. [9] The applications referred to in paragraph 7 came on for hearing before me on August 3 and 4 and October 14, 2016. It will beobserved that more than three years elapsed between the date of filing of the application and the date of hearing. I was offered noexplanation for the delay. The Statute [10] The FLA came into effect on March 18, 2013. It repealed and replaced the Family Relations Act RSBC 1996, c 128 (“theFRA”).

The concepts of custody and access, recognized by the FRA, were replaced by the concepts of guardianship, parentalresponsibilities, parenting time and contact time, recognized by the FLA.

Section 251 of the FLA provides:

(1) If an agreement or order, made before the coming into force of this section, provides a party with (

a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parentingtime with respect to the child under this Act, or (

b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are asdescribed in the agreement or order respecting custody, guardianship and access. Mr. S. has never resided with, or regularly cared for, A. As a consequence, he is not a guardian of A.: FLA, section 39(3). For thatreason, and because of

section 251, Mr. S.’ time with A. is contact time, rather than parenting time. [11] The court’s jurisdiction to vary an existing order for contact time is conferred by

section 60 of the FLA: On application, a court may change, suspend or terminate an order respecting contact with a child if satisfied that, since the making ofthe order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances ofanother person. It will be noted that the phrase employed in

section 60 is "... a change in the needs or circumstances ...", while the phrase considered inthe leading authorities is "... a material change in circumstances ...": Gordon v. Goertz (SCC), [1996] 2 SCR 27 atparagraph 12. However, it has been held that the change in language has not effected a change in the nature of the condition precedent tojurisdiction - the applicant continues to carry the onus of establishing a material change in circumstances: J.V.G. v. E.T., 2014 BCPC 307at paragraph 16. [12] The court’s jurisdiction to vary an existing order for child support is conferred by

section 152 of the FLA, which provides:

(1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively orretroactively.

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

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

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.

It will be observed that a material change of circumstances is only one of three grounds upon which a variation of child support may beordered. The Application to Vary Contact Time [13] Mr. S. carries the onus of establishing a material change in circumstances. The apposite definition of “material” provided bythe Canadian Oxford Dictionary is: Law (of evidence, a fact, etc.) significant, influential, esp. to the extent of determining a cause, affecting a judgment, etc. I conclude that a circumstance is material if and only if it would significantly affect the decision of the court on the point in issue.

So,unless it can be said that the court would probably have reached a different conclusion if the circumstances now pertaining had existedwhen the order was made, the intervening change of circumstances is not material. [14] The material change in circumstances contemplated by Judge Gould has not transpired - Mr. S. has not established a strongrelationship with A. He has been in A.’s presence for 16 hours or less in each year since Judge Gould made his order. One cannotestablish a strong relationship with a child whom one sees so infrequently and for so short a time. [15] Mr.

S. says that a material change in circumstances may be inferred from the passage of time. Because A. is now 10 years old,he says, the circumstances are now different than they were when Judge Gould refused Mr. S.’ application in 2012. I do not agree. Ithink it clear that the concern underlying Judge Gould’s decision was the same as that underlying Judge Dohm’s decision; i.e. that A.’sexposure to the hostility between his parents should be minimized to the extent possible. That factor is unchanged.

It is clear from theevidence before me that the hostility between the parents is undiminished. [16] I do not think that A.’s age is, alone, a sufficiently important factor to justify a variation in the provision for contact time. Mr.S. advances the proposition that a 10 year-old child needs extensive unsupervised contact with both of his parents. That is much toogeneral a statement. Much depends on the existence or absence of established attachment between the child and the parent. A. has spenteight to sixteen hours each year in the company of Mr. S. It is unlikely that he has any existing attachment to Mr. S.

The introduction ofa new and little-known parental figure into the life of a 10 year-old child can have unfortunate consequences, particularly when therelationship between that person and the child’s established attachment figures is irreparably hostile. For that reason, even if a materialchange in circumstances had been proven, I would not accede to Mr. S.’ application in relation to contact time. The Application to Vary Child Support [17] On December 9, 2011, Judge Gould assessed Mr. S.’ income, for the purposes of the Federal Child Support GuidelinesSOR/97-175, at $24,000 per year.

That assessment appears to have been founded upon a property & financial statement filed by Mr. S.on March 22, 2012. The instructions in the property & financial statement form direct the person completing the form to “… recordwhat you expect your income for this year to be from each source of income that applies to you …”. Mr. S. recorded his expectedincome for 2012 to be $7,200 from employment and $15,240 from social assistance payments. Mr. S. has not disclosed a notice ofassessment for 2012, but has disclosed employers’ statements of earnings (CRA form T-4) totalling $28,651.11 for that year. [18] Mr.

S.’ actual “Total Income” (as assessed by Canada Revenue Agency) was $54,541 in 2013, $51,017 in 2014 and $60,747 in2015. [19] It is clear that there has been a material change in Mr. S.’ income-earning capacity since Judge Gould made his order, and thatmaterial evidence is now available which was not available when Judge Gould made his order. For those reasons, this court hasjurisdiction to vary the child-support provisions of Judge Gould’s order. [20] Mr. S. has been paying child support at the rate of $220 per month under the terms of Judge Gould’s order.

Under the FederalChild Support Guidelines, he ought to have been paying $502 per month in 2013, $468 per month in 2014, and $563 per month in 2015. [21] Ms. D. seeks a variation of child support, retroactive to January 1, 2012, on the ground that Mr. S. misrepresented his income toJudge Gould. That allegation is not proven. In his oral reasons dated November 6, 2012, Judge Gould noted that Mr. S.: … has been off on a job in Red Deer, making $21 an hour … and is now working on a higher-paid … job with the City of Vancouverwhere he now makes $24 per hour.

Now, that is double what he was making as a driver for Thrifty’s, which is his employment when hedid the financial statement. It appears that Mr. S. accurately informed Judge Gould of his employment and earnings, as he was obliged to do. [22] However, Ms. D. may be entitled to a retroactive adjustment from May 13, 2013 (the date on which she filed her counterclaim). The governing principle was stated by Justice Bastarache in DBS v. SRG 2006 SCC 37 , [2006] 2 SCR 231 at paragraph 5: … retroactive awards cannot simply be regarded as exceptional orders to be made in exceptional circumstances.

A modern approachcompels consideration of all relevant factors in order to determine whether a retroactive award is appropriate in the circumstances. Thus,while the propriety of a retroactive award should not be presumed, it will not only be found in rare cases either. Unreasonable delay bythe recipient parent in seeking an increase in support will militate against a retroactive award, while blameworthy conduct by the payorparent will have the opposite effect.

Where ordered, an award should generally be retroactive to the date when the recipient parent gavethe payor parent effective notice of his/her intention to seek an increase in support payments; this date represents a fair balance betweencertainty and flexibility.

[ 23 ] Mr. S. points out that retroactive adjustment of child support is not always appropriate: Armstrong v. Armstrong, 2012 BCSC 419 . He says that it would be unfair to burden him now with a substantial lump-sum award of retroactive child support. I do not agree. Mr. S. has been on notice since May, 2013 that a retroactive increase in child support would be sought. If he is now unable to pay retroactive support, it can only be because he has managed his financial affairs for the past three years on the assumption that no retroactive award would be made. [ 24 ] In D.B.S. v.

S.R.G. , Justice Bastarache said at paragraph 108: Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct.

In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent's belief that his/her obligations were being met. Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order.

However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay. For the past three years, Mr. S.’ income has been more than double the amount on which Judge Gould based his award of child support, and Mr. S. has been paying less than half of what he should have been paying. It ought to have been obvious to him that he was significantly underpaying.

In that circumstance, I perceive no unfairness in ordering him to pay now what he should have been paying for the past three years. [ 25 ] The difference between the child support which Mr. S. paid and that which he ought to have paid was $1692 in the last six months of 2013, $2976 in 2014 and $4116 in 2015. I assess his current income earning capacity at $60,000 annually. The Guideline figure for basic child support at that income level is $566 per month. As a result, Mr. S has underpaid his child support obligation by $3460 in the first 10 months of 2016. [ 26 ] I assess Mr.

S.’ child support obligation at $566 per month, effective December 1, 2016, and assess arrears of child support owing as of November 1, 2016 at $12,244. The arrears will be payable at the rate of $150 per month. [ 27 ] Ms. D. complains that Mr. S. has made no contribution to A.’s special and extraordinary expenses. [ 28 ] Section 7(2) of the Guidelines articulates a "guiding principle", to the effect that the parents are responsible to contribute to special expenses in proportion to their incomes.

That is a guiding principle, not a formula, and the circumstances of an individual case may justify a different apportionment: Razavi-Brahimi v. Ershadi 2007 ONCJ 406 ; [2007] OJ No. 3736 ; 43 RFL (6th) 439 @ paragraphs 14 - 15. No circumstances justifying a different apportionment were identified in the evidence before me. Mr. S.’ income-earning capacity is about $60,000 annually and Ms. D.’s income-earning capacity is about $39,000 annually. Mr.

S. should therefore be responsible for 60% of A.’s special and extraordinary expenses. [ 29 ] It is incumbent upon the custodial parent to consult with the non-custodial parent before incurring such expenses in an attempt to reach an agreement as to the need for each expense and what level of expense is reasonable and justifiable. A failure to pursue good- faith discussions of that kind may be a bar to recovery: K.A.M.R. v. W.G.H., 2014 BCSC 103 ; [2014] B.C.J. No. 112 @ paragraphs 55 - 56; Plett v. Plett, 2010 BCSC 758 ; [2010] B.C.J. No. 1013 @ paragraph 49.

In this case, there have been no such discussions because of the hostility between the parents. [ 30 ] I make the following directions: a. Each year, Ms. D. must prepare a budget for special and extraordinary expenses which she proposes to incur for A. during ensuing year. The budget must include sufficient information to allow Mr. S. to make a reasoned assessment of each budget item. b. Ms. D. must deliver the budget to Mr. S. by December 1 each year. c. Mr. S. must provide a written response to Ms. D. by December 15 each year. If he objects to any budget item, he must state the basis for his objection. d.

If the parties are unable to agree on the special and extraordinary expenses budget for A., Ms. D. should

schedule a court application on that subject sometime in January. e. Whether final budget is agreed or settled by court order, Mr. S. will be responsible for 60% of special expenses and Ms. D. for 40%. f. Ms. D. will render to Mr. S. on the first day of each month an accounting of special and extraordinary expenses incurred (within the limits set by the budget) during the preceding month, and will attach copies of receipts to the statement of account. g. Mr. S. will pay to Ms. D. 60% of the amounts incurred within 14 days of delivery of the statement of account. If Mr.

S. disputes any item in the statement of account, he may bring an application to court to challenge the item. h. It may be that unforeseen circumstances may arise during the year which will lead Ms. D. to think that a special or extraordinary expense, not provided for in the budget, should be incurred. If so, she must notify Mr. S., in writing, and seek his agreement to the expense. If the parents do not agree, Ms.

D. should apply to the court to resolve the question before incurring the expense. [ 31 ] It is likely that further adjustments to basic child support will be necessary as a result of changes in the parents’ incomes. I

direct that each parent deliver to the other, no later than June 15 of each year, a copy of his or her income tax return and notice of assessment for the preceding year. It should be a simple matter to adjust basic child support and the proportions of responsibility for special and extraordinary expenses by reference to the tables in the Federal Child Support Guidelines . If the parties are unable to agree, either of them may apply to the court. Future Applications to the Court [ 32 ] This is a high-conflict case, which has been a financial and emotional burden for both parents.

It would be better for both parents, and certainly better for A., to put an end to litigation. I hope that the directions which I have given will enable the parents to resolve future child support issues without further intervention by the court. However, I cannot be confident of that, nor can I be confident that Mr. S. will regard the issue of contact time as being now finally resolved. For those reasons, I direct that: a. I am seized of future proceedings between the parties in this court. In an emergency, an application may be made to another judge if I am not available.

If an emergency application is brought before another judge, the Registry will provide that judge with a copy of these reasons for judgment, and the judge will decide whether the matter is sufficiently urgent to be heard in my absence. b. No further application is to be brought in relation to contact time, parenting time or guardianship without leave of the court. If a party wishes to bring such an application, the party must file the notice of application and supporting affidavit(

s) in the Registry, but must not serve the opposing party or set the matter for hearing unless and until I give leave for the application to be brought. The Registry will refer the materials to me. If I conclude that the application is sufficiently meritorious to justify a hearing, I will notify the applicant, who may then effect service on the respondent and set the application for hearing. Monetary Penalty [ 33 ] Ms. D. asks me to impose a $5000 penalty on Mr. S., on the basis that the present application is a frivolous attempt to re-litigate issues which were adjudicated in 2011 - 2013. Such an order may be made under the authority of

section 221 of the FLA . [ 34 ] I do not think that such an order should be made in this case, at least at this stage. I accept that Mr. S. is sincere, if misguided, in his pursuit of this litigation. Mr. S. has a significant amount of arrears to pay in addition to his ongoing child support obligation. I have put in place measures designed to prevent further abuse of the court’s process. I think that an additional penalty would be unduly punitive. November 18, 2016 _________________________________ T. Gouge, PCJ