H.A.J.R. v. D.L. Date:, 2017 BCPC 277

Citation: H.A.J.R. v. D.L. Date: 20170921 2017 BCPC 277 File No: F76677 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: H.A.J.R. APPLICANT AND: D.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Applicant: P.J.D. Krog

Appearing in person: Mr. L Place of Hearing: Nanaimo , B.C. Dates of Hearing: September 13, 20, 2017 Date of Judgment: September 21, 2017 The Issues [ 1 ] Mr. L and Ms. R are the biological parents of C, who is now 44 months of age. My colleague, His Honour Judge Harvey, presided at a family case conference on December 12, 2016. At that conference, Mr. L and Ms. R consented to an order declaring them to be C’s joint guardians, and directing that Mr. L have “… reasonable parenting time at dates and times agreed …” between Mr. L and Ms. R. Between January and August, 2017, Mr.

L had parenting time with C every second weekend from Friday to Sunday. Recently, he has had parenting time on Wednesdays and Thursdays from 4:30 p.m. to 8:30 p.m. and overnight for one night each week. [ 2 ] Ms. R seeks an order for child support, including retroactive support. Mr. L says that he has paid adequate child support since C’s birth. He seeks an order that he and Ms. R share equal parenting time, and that his future child support obligation be determined by reference to a shared parenting arrangement under

section 9 of the Federal Child Support Guidelines SOR 97-175. Mr. L seeks relief in respect of any arrears of child support which may be owing, on the ground of hardship, under section 10(1) of the Guidelines. [ 3 ] Mr. L says that his past child support obligation should be assessed under the Saskatchewan tables to the Guidelines. Ms. R says that it should be assessed under the British Columbia tables. The parties agree that Mr.

L now resides in British Columbia, with the result that his future obligation, if any, should be determined under the British Columbia tables. [ 4 ] At the completion of the evidence in the case, I raised a further issue. Ms. R’s evidence, if accurate and complete, would lead a reasonable person to conclude that C is not safe in Mr. L’s care, particularly on overnight visits. Section 14(1) of the Child, Family & Community Service Act RSBC 1996 c 46 (“the CFCSA ”) provides: A person who has reason to believe that a child needs protection under

section 13 must promptly report the matter to a director or a person designated by a director. Ms. R has not complied with that provision. History [ 5 ] Ms. R has a daughter, H, from a previous relationship. H is now 9 years of age. [ 6 ] Mr. L and Ms. R met in Nanaimo in February, 2012, and began dating. In April, 2012, Mr. L moved to Lloydminster, Saskatchewan to take advantage of an employment opportunity. Ms. R visited him in Lloydminster in May, 2012. In September, 2012, Mr. L visited Ms. R in Nanaimo and asked her to marry him. She accepted his proposal. In October, 2012, Ms.

R and H moved to Lloydminster and rented an apartment. Mr. L lived nearby. In December, 2012, Mr. L moved in with Ms. R and H. [ 7 ] Mr. L and Ms. R agreed to have a child. On May 24, 2013, Ms. R learned that she was pregnant. [ 8 ] In the first week of January, 2014, Mr. L came home from a night on the town, and told Ms. R that he had spent the evening drinking and fornicating with a group of women. He said that his relationship with Ms. R was over, and that she should return to live with her mother in Nanaimo. Ms. R decided to do that. On the following morning, Mr.

L apologized and persuaded her to stay with him in Lloydminster until the end of the school year. [ 9 ] Ms. R and H moved back to Nanaimo at the end of June, 2014, and moved into Ms. R’s mother’s home, where they have resided since that time. [ 10 ] Mr. L also moved to Vancouver Island at the same time. He says that he moved into the home of Ms. R’s mother, and resided there with Ms. R and the children until June, 2015. Ms. R denies that. She says that he has never resided at her mother’s house, and that he returned to work in Saskatchewan in August, 2014. Mr.

L called his brother to corroborate his evidence on the point. I did not find the brother’s evidence to be helpful. Although manifestly honest and sincere, the brother’s recollection of dates was vague. He said that he saw Mr. L at the R residence at intervals of “a couple of months”. I accept that evidence, but it falls far short of establishing that Mr. L was in residence at the R home. Mr. L’s evidence on the point was similarly vague, and inconsistent on several points. I accept Ms. R’s evidence, and conclude that Mr. L and Ms. R last cohabited in June, 2014. [ 11 ] In April, 2016, Mr.

L returned to Vancouver Island and found employment at a local sawmill in June. He worked there until December, 2016, moved to Alberta in January, 2017 and worked there until April, 2017. Since April, 2017, he has been employed at a sawmill on Vancouver Island. [ 12 ] Ms. R and Mr. L did not marry, and it is clear that they will not in the future. [ 13 ] Mr. L and Ms. R have not lived together since June, 2014, but they continued to have an intimate relationship, on and off, since that time. Ms. R is adamant that they will not be intimate in the future. The Evidence of Family Violence

[14] In an affidavit sworn on September 17, 2015, Ms. R deposed: [Mr. L] is a danger to me, my children, and our safety, and I don’t believe he should be involved in our lives. [15] Ms. R alleges that Mr. L grossly abuses alcohol, and that he treated her in a violent and abusive manner when he wasintoxicated. Ms. R works as a server in the hospitality industry, and so often works evenings. She says that, when she lived inLloydminster, she would often leave the children in Mr. L’s care while she was at work, and that, on more than one occasion, shereturned from work to find Mr.

L drunk and unconscious, leaving the children effectively unattended. Mr. L acknowledges that he oftendrank to excess in the early years of their relationship. He denies that he abused Ms. R, or that he drank to the point of unconsciousnesswhen C was in his care. He says that he no longer drinks to excess, and that he now does not consume alcohol when C is in his care. [16] Ms. R described two incidents in April, 2015, which are of particular concern. Ms. R was then living with her children in hermother’s home. Her mother was on holiday, and Ms. R needed someone to look after the children while she was at work.

She asked Mr.L to perform that service for her and he agreed. She returned from work one evening to find Mr. L “stumbling drunk” while the childrenwere in his care. She says that he took a large kitchen knife and pressed the tip against her trachea. She feared that, even if he did notintend to hurt her, he might fall or slip in his drunken state and cut her throat. Eventually, she persuaded him to drop the knife and theywent to bed. He was sober the following night, but, on the night after that, he was again extremely intoxicated when she got home fromwork.

He was stumbling around and fell on top of C, who was lying on the floor. C was not injured. During the ensuing discussion,Mr. L said “I’m finding it really hard not to punch you in the face right now”. Ms. R attempted to flee to the bathroom, but he blockedher path. Eventually, Ms. R was able to get a message to Mr. L’s brother, who came and took Mr. L to the brother’s house. [17] Mr. L emphatically denies that there is any grain of truth in Ms. R’s account of the events described in paragraph 16. He saysthat they simply did not happen. Analysis of the Family Violence Issue [18] Four consequences follow if Ms.

R’s evidence is accurate and complete: a. C is not, and has not been since birth, safe in the unsupervised care of Mr. L, at least in the evenings. b. Ms. R has been unwilling or unable to protect C from Mr. L. On the contrary, she has consistently placed C in Mr. L’s careovernight despite the obvious risk, and continues to do so. c. C is, and has been since birth, a child in need of protection: CFCSA.

section 13. d. I have a duty to report the matter to the Ministry of Children & Family Development (“the Ministry”): CFCSA,

section 14. [19] Mr. L and Ms. R flatly contradict each other on the subject of the allegations of family violence. There is no independentevidence of any value on that subject, and no objective external circumstances which renders one account more probable than the other. Demeanour is a notoriously unreliable guide to the assessment of credibility [I.F.K. vs College of Physicians & Surgeons of British Columbia [1998] BCJ No. 577; (BC CA), 158 DLR (4th) 330; 55 BCLR (3d) 349 @ paragraphs 38 - 39], but I haveno other data to work with.

The matter is of critical importance in this case because a mistaken conclusion on the issue of credibilitywould be likely to have serious adverse consequences for C. More particularly: a. If I mistakenly accept Mr. L’s denial of Ms. R’s allegations, and Ms. R continues to allow Mr. L unsupervised overnight visitswith C, there is a high risk that C will be in danger during those visits. b. If I mistakenly accept Ms.

R’s version of events, the probable result is that C will not have unsupervised parenting time with hisfather, and will lose the opportunity to have a healthy and unconstrained relationship with him. [20] In those circumstances, I do not think that I should decide the parenting time issue now. Rather, I should report the matter tothe Ministry, as I am obliged to do, and ask the Ministry to investigate Ms. R’s allegations. While the investigation is in progress, Mr. Lshould not have parenting time except with the approval of the Ministry, and only on such conditions as the Ministry may impose.

Whenthe Ministry’s investigation is complete, there may be a better evidentiary foundation to assess the risks, if any, to C’s safety. Child Support [21]

Section 3 of the Guidelines provides: The applicable table is (

a) if the spouse against whom an order is sought resides in Canada, (

i) the table for the province in which that spouse ordinarily resides at the time the application for the child support order, or for avariation order in respect of a child support order, is made or the amount is to be recalculated under

section 25.1 of the Act, (ii) where the court is satisfied that the province in which that spouse ordinarily resides has changed since the time described insubparagraph (i), the table for the province in which the spouse ordinarily resides at the time of determining the amount of support, or (iii) where the court is satisfied that, in the near future after determination of the amount of support, that spouse will ordinarily reside in agiven province other than the province in which the spouse ordinarily resides at the time of that determination, the table for the givenprovince

Mr. L has resided in Canada throughout the relevant period. Were it not for subsection 3 (a) (ii), the reference in subsection 3 (a) (

i) to “… the time the application … is made …” would be ambiguous. It might mean the date on which the Notice of Application was filed, or it might mean the date on which the application was heard. However, subsection 3 (a) (ii) makes it clear that the former was intended. [ 22 ] In this case, the Notice of Application for child support was filed on September 17, 2015. Mr. L lived and worked in Saskatchewan from August, 2014 to April, 2016. On September 17, 2015, he was resident in Saskatchewan. However, he returned to British Columbia in April, 2017, has lived on Vancouver Island since that time and is employed on Vancouver Island. In those circumstances, the governing provision is

section 3 (a) (ii), and Mr. L’s child support obligation is to be determined by reference to the British Columbia tables. [ 23 ] Mr. L and Ms. R cohabited, with the children, for the first six months of 2014. As a result, he is liable for child support only for the latter half of that year. They have not since cohabited. As a result, he is liable for child support for all of 2015 and 2016. The following table sets out, for each relevant year, Mr. L’s Guideline income, the child support actually paid by Mr.

L, the amount which he should have paid (having regard to his Guideline income), and the amount of the underpayment: Year Guideline Income Amount Owed Amount Paid Underpayment 2014 $110,647 $ 6054 $2250 $4804 2015 $ 92,245 $10,260 $1600 $8660 2016 $ 51,367 $ 5652 $3669 $1983 Total Underpayment $14,447 [ 24 ] Mr. L’s 2017 child support obligation cannot be assessed until his 2017 tax return and notice of assessment are available, which will not be until May or June, 2018. [ 25 ] Mr. L seeks a reduction of the arrears of child support on grounds of hardship.

He says that he is burdened by debts which he incurred to pay family expenses when he was living with Ms. R. However, he provided no particulars of those expenses, no documentary or corroborating evidence respecting them and no detailed statement of his present financial position. The absence of such details during his evidence in chief rendered it impossible for Mr. Krog to cross-examine on the issue, and he wisely refrained from such cross-examination. In the result, there is no evidentiary basis for the claim of hardship. Ancillary Matters [ 26 ] Ms.

R seeks an order that the parties communicate only by text or e-mail. Mr. L complains that she does not respond promptly to such communications. It is clear that C should be insulated, to the extent possible, from the hostility between his parents, and that written communication will assist in attaining that objective. [ 27 ] Mr. L wishes to enrol C as a dependent under the benefits provided by Mr. L’s employer, but needs certain documents and information from Ms. R for that purpose. That is clearly in C’s interest, and should be done. [ 28 ] Mr. L wants Ms.

R to take C’s photos off social media, and to stop talking about Mr. L in that forum. There is no evidence of the social media posts in question, and so no evidentiary support for the order sought. Disposition [ 29 ] I make the following orders: a. Paragraph 4 of the consent order pronounced by His Honour Judge Harvey on December 12, 2016 is suspended until further order of the court. b. An expedited transcript of the proceedings before me on September 13 and 20, 2017 is to be prepared as soon as possible. c. A copy of these reasons is to be delivered forthwith to Ms.

Michelle Greves, local counsel for the Ministry. d. A copy of the transcript is to be delivered to Ms. Greves as soon as possible. e. Pending further order of the court, Mr. L will have parenting time with C only with the approval of the Ministry, and in accordance with such terms as the Ministry may impose. f Arrears of child support are assessed at $14,447 as at January 1, 2017. The arrears are payable at the rate of $250 on the first day of each month, commencing October 1, 2017 and continuing until the arrears have been paid in full. g. Mr.

L is to make interim payments on account of his continuing child support obligation in the amount of $600 per month, commencing October 1, 2017 and continuing on the first day of each month thereafter until further order of the court. h. Unless the parties agree to the contrary, Mr. L’s 2017 child support obligation will be assessed at a hearing to be scheduled in June, 2018. i. Mr. L and Ms. R are to communicate only by text or e-mail. Each of them is to check their e-mail and telephone not less frequently than once each day, and is to respond to messages from the other within 48 hours after receipt.

i. Ms. R is to provide Mr. L with copies of the documents necessary to enrol C under Mr. L’s workplace benefit program, and with any information necessary for that purpose; j. I will be seized of future proceedings in this case. September 21, 2017 ____________________________ T. Gouge, PCJ