R.Z. v. J.A.T.S. Date:, 2012 BCPC 63

Citation: R.Z. v. J.A.T.S. Date: 20120106 2012 BCPC 0063 File No: F8234 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: R.Z. APPLICANT AND: J.A.T.S. RESPONDENT RULING OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Applicant: E. A. Witzman Counsel for the Respondent: F. Lowther Place of Hearing: North Vancouver , B.C. Date of Hearing: January 6, 2011 Date of Judgment: January 6, 2012 [ 1 ] The parties are the parents of A.D.S., born [DOB]. The proceedings in this Court were initiated by Ms.

Z.’s Application for custody, guardianship and maintenance filed May 4, 2011. They first appeared before the Court on May 5, 2011, when the mother sought and Judge Rodgers granted an interim order returning the child to her, from the father. [ 2 ] The parties appeared together on May 6, 2011 and Judge Rodgers modified his order to specify a rotating three day custody schedule. Since that time there have been numerous applications, notices of motion, and interim hearings, and various orders made.

It is difficult to determine from the file what remains in dispute between the parties, and what stage the proceedings have reached. [ 3 ] The trial scheduling memo for today’s date states that applications numbered 11 and 15 are set for hearing. The document numbered 11 in the file is Ms. Z.’s application filed June 20, 2011 to have a custody and access report under

section 15 of the Family Relations Act prepared by Dr. Larry Krywaniuk, to have Mr. S. pay for the report, to set a case conference, and to restrain Mr. S. from filing a Notice of Motion until he had taken Parenting After Separation. Document number 15 is Mr. S.’s application filed June 27, 2011, to have Ms. Z. submit to a medical examination, and to have a

section 15 report prepared. [ 4 ] On July 25, 2011, Mr. S. filed a further Notice of Motion seeking disclosure of medical records from various professionals, pertaining to Ms. Z. This Notice of Motion does not bear a number, on the file. [ 5 ] The first two of those Notices of Motion came to Court for the first appearance on June 28, 2011, and a hearing was set for August 2, 2011. That hearing proceeded before Judge Challenger. She appears to have dealt with the July 25, 2011, Notice of Motion at the same time.

[ 6 ] Judge Challenger ordered that a

section 15 report be prepared and prohibited the parties from contacting Dr. Krywaniuk. It appears that order was contingent on a decision as to who would pay for the report. Judge Challenger also made some orders in the nature of case management regarding the initial application for custody, guardianship and maintenance, including a requirement that the parties file financial statements. [ 7 ] Following the August 2 nd hearing, the matter was adjourned to an “application” on September 12, 2011 - the clerk’s notes specify “for application #11, #15” - and a hearing was set for January 6, 2012.

The transcript of the proceedings before Judge Challenger indicates that the hearing pertained to whether Ms. Z. would be required to produce her medical records. It was to have proceeded on affidavit evidence from the parties. The notation on the file indicates as well that Judge Challenger was to have been seized of the applications. [ 8 ] The parties appeared several more times over the summer of 2011. Today’s hearing was confirmed on September 12, 2011, and at the same time, a case conference was set for November 2, 2011.

Also on that date, Judge Challenger made an order for $906.00 per month interim child support, imputing Mr. S.’s income at $100,000 per year, and finding “arrears” of $4,530 to September 12, 2011. The order was stated to be “without prejudice” to the father, who need not establish a change in circumstances, in order to apply to have it varied. It also stated that an interim hearing on child support would be adjourned to a date following an interim hearing on the matters of custody and access and the

section 15 report. It was contemplated, according to the transcript, that the first of those interim hearings would be within a month, and would proceed by affidavit. [ 9 ] That hearing came before Judge Merrick on September 29, 2011. He made an order regarding the parenting schedule, and the parties discussed arranging a date for the hearing on interim maintenance. [ 10 ] At the November 2, 2011, case conference, which proceeded before me, it was agreed that today’s hearing would not be used for the original purpose, the application by Mr. S. for Ms. Z.’s medical records but rather to resolve: (1) the issues of the

Section 15 report; (2) particular parenting

schedule issues including whether Ms. Z. was required to have her aunt present while the child was with her and where she would have the child; and (3) child support. [ 11 ] The parties were adjourned to the Judicial Case Manager on November 2 nd to set a four day trial for the original (now amended) application. That has not yet occurred, and as I pointed out to Mr. Lowther this morning, it also appears from the file that Mr.

S. has not filed his Parenting After Separation Certificate, which he should do before the matter is set for hearing on the Application and Reply. [ 12 ] The parties and counsel appeared several more times after the case conference, on various applications, and a further interim hearing occurred before Judge Merrick on November 24, 2011. He confirmed that the

section 15 report issue would be dealt with on the January hearing date, confirmed that the amount of retroactive child support made by Judge Challenger was payable as of September 12, 2011 (and not monthly), granted Ms. Z.’s application to change her residence, and ordered that the parties advise each other of where the child would be, with them, and the names of any caregivers. [ 13 ] Apart from the issues of medical records and the interim hearing set by Judge Challenger before Judge Merrick, there has been no order that today’s hearing date proceed by affidavit. It was set as an interim hearing to deal with the issues of who will pay for a private

section 15 report, or whether perhaps a report should be ordered from the family justice counselor. Certain issues regarding the mechanics of the parenting

schedule were also to be addressed. Finally, in light of the prior orders of both Judge Challenger and Judge Merrick, and the transcripts of the proceedings before them, I agree with Mr. Lowther’s position that the issue of whether there should be, or should have been, any interim child support was to have been “finally” determined today, including whether there are any retroactive amounts. [ 14 ] This morning, Ms. Z. applied to adjourn the hearing, on the basis that she had just recently changed counsel. The new counsel, Ms.

Zenab, respected counsel in these Courts, says she was retained yesterday, by way of a letter the Court received this morning. Apparently Mr. Lowther received a copy late yesterday. [ 15 ] Mr. Lowther says that he was advised by Mr. Witzman in early December that he would no longer be counsel. He points out that Ms. Z. knew at that time that this hearing was pending and did not apply to adjourn it until the hearing date. It is difficult to disagree; however, it may be that she has just learned that her new counsel cannot proceed today, and in any event the adjournment is not strenuously resisted by Mr. Lowther.

It is unfortunate in my view that the Court was not advised in time to save several hours’ review of the file, and to enable the lost court time to be used. [ 16 ] Mr. Lowther also made some observations about the timing of the interim hearing held on November 24 th , at Ms. Z.’s request, to deal among other things with whether she needed to continue to live with her aunt. Her counsel persuaded Judge Merrick to negate that condition, insisting on a hearing on short notice, despite the matter being set for hearing today. [ 17 ] It was said that a move was imminent and Ms.

Z. was not going to be able to continue living with her aunt. Mr. Lowther questions whether this can not have been known at the November 2 nd case conference, and yet the move became imminent between then and the November 24 hearing date. He also observes that Ms. Z. has since the hearing date, as of December 30 th at least, apparently resumed residence with her aunt. [ 18 ] I did not ask Ms. Z. to respond to these concerns this morning in light of the fact that she did not have counsel, but the sequence of events does at least raise issues as to whether the hearing date was necessary.

These parties have already taken up an inordinate amount of court time to date, in the very short time the matter has been before the courts, primarily due to applications made by Ms. Z. It may be that Ms. Z. will wish her counsel to address what happened on November 24 th in light of the fact that these concerns have been raised by Mr. Lowther at the adjournment application today. [ 19 ] Mr. Lowther seeks that this Court in all of the circumstances, firstly, make an order suspending the interim child support of Judge Challenger, given that today was the day to have his obligation sorted out.

He says it is not known whether there may be efforts at

enforcement pending the adjourned hearing date. [ 20 ] Mr. S. has filed an updated financial statement reporting a 2011 income of $2,279 from his father’s accounting firm, but Mr. Lowther says he is no longer employed at all. He had been receiving money from the father’s family trust but that has been withdrawn in light of changes in the market and perhaps for other reasons. Mr. S. has not been paying any child support. He takes the position this is a shared parenting situation, except for a very brief time during which Judge Challenger made her “without prejudice” order, when Ms.

Z. was the major caregiver for the child. [ 21 ] He did not pay in accordance with her order, Mr. Lowther says, because he simply did not have any money. Mr. Lowther says the appeal courts endorse this approach when matters are reviewed, though there was no effort on Mr. S.’s part to have that decision reviewed on appeal. He applied on November 2, 2011, to have it varied by the Court based on his available financial documentation. Mr.

Lowther says his client did not receive a full hearing, and from the date the order was made, it was known there would be a hearing regarding the issue of child support, therefore his client has not complied with the order due Mr. Lowther says, to inability, pending that hearing, which he took steps on November 2 nd to have set down for January 6 th . Ultimately that was consented to by Mr. Witzman. [ 22 ] I raised the issue of whether the Court should just order a

section 15 report from the family justice counselor in the absence of information about the length or cost of obtaining one privately. Mr. Lowther makes the point that it may not even be necessary if the parties are able to reach some amicable arrangement in light of the change of counsel. [ 23 ] The issue of whether a judge who presides at a case conference should preside at a hearing came up at the hearing in this matter. As a general rule, I agree with Mr. Lowther’s proposition that it should not be the same judge, unless counsel agree. In this matter, I was told that counsel had agreed.

If I am to hear the interim application on the next date, Ms. Jenab would need to agree to that. The matter will be adjourned for a fix date, for Ms. Zenab to consider whether she consents to me hearing it, and to be set for a one day hearing. [ 24 ] I will just also remind the parties that at the case conference it was directed that the application be set for a four day hearing. That has not been done, and I am hopeful it may not need to be set, if the parties are able to work out their parenting regime without having a full custody contest. _______________________________ The Honourable Judge C.

Baird Ellan Provincial Court of British Columbia