S.M. v. N.E. Date:, 2015 BCPC 392

Citation: S.M. v. N.E. Date: 20151231 2015 BCPC 0392 File No: F8602 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.M. APPLICANT AND: N.E. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. DYER Appearing on her own behalf: S.M.

Appearing on his own behalf: N.E. Place of Hearing: North Vancouver , B.C. Dates of Hearing: December 9 and 15, 2015 Date of Judgment: December 31, 2015 [ 1 ] THE COURT: On May 22, 2015, Mr. E. ("the father") filed an application seeking to terminate a consent order I made on April 13, 2015, varying and rescinding an earlier order made by Rodgers PCJ on December 11, 2012, wherein he granted joint custody and guardianship rights to the father and respondent, Ms.

M. (hereinafter referred to as the "mother") with respect to their three children, S., E. and A., now ages 18 (19 on [dob]), 17, and 14 (15 on [dob]). [ 2 ] My April 13th order made by consent granted the mother sole custody and guardianship rights of the three children.

The order discloses that neither party was represented by counsel. [ 3 ] The father's application filed on February 2, 2015, asked that Judge Rodgers' earlier order be changed and the stated reasons were, "I am giving sole custody of children to my separated wife." His affidavit sworn in support on the same date said virtually the same thing. [ 4 ] Since the Family Law Act came into force on November 28, 2013, the Provincial Court no longer has jurisdiction to make a custody order. Guardianship rights, in a sense, have replaced custody rights, at least under this legislation.

The consent order of April 13, 2015, therefore, should not have granted sole custody rights to the mother, only sole guardianship rights. [ 5 ] In his May 22, 2015, application, the father also seeks to vary my order of May 5, 2015, to reduce the spousal and child support referred to therein, which orders were based on his intent to move to California by July 1, 2015, and take different employment, with a corresponding increase in his income from what it was in May 2015 and is now, namely $151,479 to the then Canadian dollar equivalent of $165,092 or by some $13,613 per annum.

The order also imputed income to the mother of $20,000 and the amount of child support ordered for the three children then living with the mother was set at a table amount of $2,751 per month to increase to $2,966 per month once the father commenced his new job in California. [ 6 ] On December 11, 2012, Judge Rodgers imputed income to the father of $150,000 a year, but ordered that the mother's application for spousal support be adjourned for a later hearing.

I conducted that hearing and on May 5th gave my reasons, wherein I set her spousal support at some $2,280 a month commencing July 15, 2015, again based on his taking this new job in California and earning a higher income as above. [ 7 ] The mother first applied for child support in September 2012.

The mother has filed a reply to the father's application on June 5, 2015, and therein seeks a protection order to restrict the father from attending at her rented premises at [omitted for publication] in West Vancouver, and from communicating vulgar and/or abusive messages to her or through their children. [ 8 ] These matters came on for hearing in front of me on December 9, 2015. The father then explained that he had not taken up the U.S. job because he and the potential employer could not agree on the contractual terms of his new employment.

In the result, he never left Canada and at all material times he has retained his old job and estimates his income this year will continue to be $151,479. Hence, my earlier orders made based on the higher income level to be achieved had he moved to California cannot fairly remain in place.

There is also a calculation error, which I shall come to. [ 9 ] On the first day of the hearing in this matter and at the conclusion of the day, I made an order varying the child support payable by the father to the mother of $2,966 per month therein to some $2,751 a month payable on the first day of July, 2015, and on the first day of each and every month thereafter. [ 10 ] I now order, for clarity's sake, as follows: 1) the child support payable by the applicant father to the respondent mother for the three children shall continue for so long as they shall each reside with the mother and be children as defined in the Family Law Act ; 2) the signature of the parties on all orders herein shall be dispensed with. [ 11 ] During the hearing before me, the father explained that the oldest child is now attending first year university at Capilano University, but is still living at home, although apparently contemplating moving out.

In my view, a table amount of child support should be paid by the father to the mother for this child, so long as she lives with her mother, who continues to provide a home for her. She will be age 19 on [dob]. [ 12 ] The father said he now pays all her school-related expenses, and indeed has purchased a BMW for her and incurs monthly costs of some $790 with respect to the same to provide this transport.

It is not disputed that the mother currently contributes nothing to the post-secondary costs for the oldest daughter, beyond costs that would be associated with providing a room in their home. [ 13 ] I turn now to the variation sought in spousal support now in the amount of $2,280 per month payable each month commencing July 15, 2015, and $2,093 for April, May, and June of 2015: (see paragraph 47 and 48 of my May 5, 2015, reasons). [ 14 ] In my May 5, 2015, reasons, I considered the Spousal Support Guidelines using only the following facts: 3) the father's income prior to July 1, 2015, was $151,479;

4) the father's income after July 1, 2015, would be the Canadian dollar equivalent of $130,000 U.S. or some $165,092; 5) they had three children, all living with the mother, none of whom had attained the age of majority, 19 years; 6) I imputed income to the mother of $20,000 per year, (see paragraph 39); 7) that the mother was age 44 at separation "three years ago", or in the year 2012, and the father was age 55; 8) that child support based on an income of $151,479 would be $2,751 per month, but $2,966 per month on an income for the father of $165,092. [ 15 ] I did not consider, when applying the Spousal Support Guidelines , the following facts that either came out or were clarified at the December 2015 hearing before me: 9) That on and after February 28, 2014, when the oldest child S. reached age 17, the mother's child tax benefit was reduced from $800 per month to $600 a month, and that on December 23, 2015, when E. reaches age 17, according to her uncontested evidence, it will further be reduced to $300 a month only for their son.

These amounts were not challenged by the father and were not included in the earlier calculation I made in the May 5, 2015, reasons, all of which calculations were made without the benefit of any input from either party with respect to the Spousal Support Guidelines . 10) The parties commenced living together approximately February 15, 1991, prior to being married in 1993, and separated either in August 2011, according to the mother, or February 2012, according to the father.

I am prepared to accept the father's evidence as to the date of separation, and thus their total period of cohabitation would be 21 years and not the 22 years I calculated in paragraph 40 of my May 5, 2015, reasons. 11) The mother receives $120, I understood quarterly, deposited to her bank account, I think likely a GST rebate of some sort. She was unsure. [ 16 ] I have again reviewed the Spousal Support Guidelines and the "with child" formula.

Child tax benefits are to be included, as well as GST credits, in determining the income each spouse has: (see paragraph 6.3 of the Spousal Support Guidelines dealing with calculation of income). [ 17 ] The additional annual amount in issue for the mother would be $600 per month times 12 months for 2015, or $7,200, and GST of $120 times four, or $480, for additional annual income in 2015 of approximately $7,680. [ 18 ] Including these facts and figures in the calculation, using the Spousal Support Guidelines and the "with child" formula, the range of spousal support produced is a low of $1,758 per month and a high of $2,538 per month, with a mid-point range of $2,155 per month. [ 19 ] The range I used, I think erroneously, referred to in paragraph 40 of my reasons was based on his having a higher income of $165,092 per annum and on the assumption he would work in California.

The error is now academic by reason of the father staying put and not moving. [ 20 ] At paragraph 41 and the following of my May 5 reasons, I considered the factors relevant to my choice of range between $2,280 and $3,083 (again based on his income being $165,092 Canadian) and made orders for spousal support at the low end of the range of $2,093 for the three months, April, May, and June, and $2,280 commencing July 15, 2015. [ 21 ] Is there new evidence relevant to the quantum of spousal support I should now consider in determining where in the range I should make an order for spousal support? [ 22 ] The mother's circumstances are not significantly changed between May 5 and December of 2015.

She is still very involved in her Jehovah's Witness faith, both attending evening and weekend services and weekly doing, as I understood her evidence, four hours of telephone "call back", sometimes in the evening. She testified her major purpose at this time and first priority was serving Jehovah. [ 23 ] If a full-time job were offered to her, she would not do it.

After her above service is completed, she said she would be prepared to do part-time work, for example four to five hours in the morning to say 1:00 or 2:00 p.m., five days a week, but not later. [ 24 ] She said she was making some effort to start a cleaning business which she would manage. The proposed business model is that she would obtain cleaning contracts and get workers to actually do the manual labour involved. In essence, she would manage the business.

Little progress has been made on this venture. [ 25 ] The father feels strongly and very emotionally that she is not pulling her weight and assisting at all in defraying either any of her own costs or those relating to the children. He would like to end his payment of spousal support completely if he could. I do not understand that he has, as yet, consulted with a lawyer concerning his legal obligation to pay spousal support to her under the circumstances of their lengthy marriage. He should do so. [ 26 ] I do agree that she could do more to earn income.

This is implicit in my decision not to now change the amount of income I have earlier imputed to her in May 2015, namely $20,000 per year. However, I note there is no evidence placed before me by the applicant father as to exactly what the respondent mother could do to earn a more substantial sum of income at this time than that which I have imputed to her, namely the $20,000. [ 27 ] As well, the respondent mother has every right, just as the father does, to follow the religion of her own choice. [ 28 ] That said, Division 2 of the Family Law Act provides as follows in s. 147(1):

Each parent and guardian of a child has a duty to provide support for the child. . . [ 29 ] Whatever may be the religious beliefs and convictions of the respondent mother, she has a legal obligation with no exception, in my view, based on her religious beliefs, to assist with her three children's costs and arguably her own, subject always to the provisions of s. 162 of the Family Law Act . [ 30 ] I know of no binding legal authority that stands for the proposition, for example, that adherence to one's religious beliefs is a complete excuse for not working to the fullest of one's capabilities in order to discharge legal obligations to pay, contribute to, or provide either spousal or child support to an entitled parent or for a child. [ 31 ] The father testified that changes since May 2015 on his part, over and above his not taking up the better-paying U.S. job, included taking on further costs and indebtedness in buying two cars, one for each daughter, and paying monthly post-secondary educational costs for his oldest daughter.

In addition, he testified that he has regularly purchased clothing for his children and paid, over and above the child support ordered by the court, certain other things for them.

The automobile expense is likely, in the grand scheme of things, unwarranted and extravagant on his part, but I am sure made, on his part, with the best intentions. [ 32 ] I find, considering all the new evidence in this matter that at least the failure of the father to take on new employment in California is a change in circumstances pursuant to s. 152(2) of the Family Law Act that entitles me to make a variation of my May 5, 2015, order dealing with child support.

I also find that it and my non-inclusion of GST rebates and child tax benefits in the mother's income in calculating a range of spousal support, albeit using a now unsupportable income figure for the father, also amounts to a change within s. 169(2) of the Family Law Act entitling me to vary my former spousal support order. [ 33 ] All things considered, I am of the view that the amount of spousal support that should be paid by the father to the mother at this time would be $1,900 per month for the months of April through November 2015.

It will be payable on the 15th day of each month. [ 34 ] In this period of time, her evidence was that she received a child tax benefit of $600 a month for two children.

Commencing on December 31, 2015, and payable on the 15th day of each month thereafter, the father will pay spousal support to the mother of $2,000 a month, in light of the reduction in her child tax benefit to $300 on E.'s 17th birthday. [ 35 ] The Spousal Support Guidelines calculation made reducing the mother's income from $27,680 to $24,080 yields a range of $1,857 at the low end to $2,638 at the high end. [ 36 ] Paragraphs 4 and 5 of my order of May 5, 2015, are wholly rescinded effective May 5, 2015, in light of these reasons.

Other orders therein are amended only in accordance with these reasons and, if not so amended, remain in full force and effect. [ 37 ] I encourage both parties to seek independent legal advice to understand how long the spousal support obligation on the father's

part continues herein as a matter of law, and I think, too, to learn how to assess what child support is payable by one to the other and the amount of spousal support, if any. [ 38 ] As to spousal support, there are various online websites available where calculations can be made based on the net disposable incomes of the parties and the number of dependent children they have living at home with either of them. [ 39 ] I turn now to the father's application to set aside the April 13, 2015, consent order I made whereby, in essence, he gave up his shared guardianship rights with respect to his three children to the mother. [ 40 ] He testified that he had done so because since February 2012, he had been trying to get the mother to sign what he called a "joint divorce", and she had refused to do so.

Finally, she represented to him that if he would agree to the consent order I made on April 13th, that she would agree to sign the divorce papers on May 5, 2015, which he says she refused to do. This was the only reason he consented to the order I made. [ 41 ] He testified that his decision to go to California and there take up a new job played no

part in his decision. In his affidavit sworn May 20, 2015, all of which I have considered, he gave a further reason as follows, and I quote: 5. Ms. M. is a Jehovah's Witness and has been for the last three years. I did not learn until after I entered into the April 13, 2015, consent order that Jehovah's Witnesses are opposed to blood transfusions and withhold their consent to medical procedures involving them. Consequently, I fear that Ms.

M.'s religious convictions may prompt her to make decisions harmful to the children's health in the event that they experience a medical condition or emergency that requires a blood transfusion. [ 42 ] I seriously doubt that this evidence can be true. It is reasonably common knowledge that Jehovah's Witnesses have a restrictive view on blood transfusions. [ 43 ] The mother testified that she never said to him that she would sign any divorce papers if he granted her what she described as full custody of the three children.

She testified the only reason he agreed to do so was because he had a relationship with someone else that had been ongoing for more than a year and wanted to marry her. When I asked her, in effect, what was the logical connection between his wanting to marry another woman and her signing divorce papers, she said she did not know. Nor do I.

I prefer his evidence to hers on this point. [ 44 ] What this father then did on April 13th was, in essence, to bargain away his guardianship rights with respect to all three of his children, likely without first obtaining independent legal advice as to whether or not this act was:

a) a good idea, especially where now he seeks to retrieve these rights and related rights that only flow from them, for example, an ability to exercise parental responsibilities, see s. 41 of the Family Law Act ; and

b) necessary at all to achieve his goal, I suppose bluntly put, to be free to marry someone else.

[ 45 ] On April 13, 2015, this court made its order pursuant to s. 39(2) of the Family Law Act. Section 39(1) provides that each of the father and mother, while living together as parents and following separation, are a guardian of each child. Section 39(2) states as follows: Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian. [ 46 ] Thus on April 13, 2015, the court was empowered and had jurisdiction to do what both parties asked it to do by consent.

The consent order is presumed to be correctly made based on jurisdiction I then had. [ 47 ] What jurisdiction do I now have to set it aside because the father has had a change of heart and wants to again have at least some of the rights he gave up, for example, as a guardian of his children, and in the event that they have not reached the age of majority, to have and be able to make a decision on their behalf that in the event they, for example, were in an accident and as a life-saving requirement needed a blood transfusion, to make such a decision on their behalf?

He understands the mother would not permit a blood transfusion, by reason of her strict adherence to the Jehovah's Witness faith and its various tenets. [ 48 ]

Section 47 of the Family Law Act states as follows: On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person. [ 49 ] Unfortunately for the applicant father, guardianship rights referred to in s. 50 of the Family Law Act are not rights within the definition of "parenting arrangements" in s. 1 of the Family Law Act . Hence, in my view, s. 47 does not provide me with legal jurisdiction to make the order that the father now seeks. [ 50 ]

Section 50 of the Family Law Act provides as follows: A person cannot become a child's guardian by agreement except (

a) if the person is the child's parent, or (

b) as provided under this Division, the Adoption Act or the Child, Family and Community Service Act . [ 51 ] Thus, notwithstanding my April 13, 2015 order, these parents could enter into a written agreement whereby they both agreed: 1) that the father was a guardian of one, two, or all of the three children; and 2) that as such, he had or shared certain parental responsibilities including, for example, that referred to in s. 41(

f) which I think is very important to the applicant father. [ 52 ] It states as follows: 41 For the purposes of this Part, parental responsibilities with respect to a child are as follows: . . . (

f) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; [ 53 ] Section 40(1) of the Family Law Act states: Only a guardian may have parental responsibilities and parenting time with respect to a child. [ 54 ] Thus the father must be a guardian of some or all of his children to exercise any parental responsibilities set out in s. 41 of the Family Law Act with respect to those children. [ 55 ]

Section 51 provides that the court, on application, may appoint a person as a child's guardian. I will assume his application to terminate my April 13, 2015, order is made pursuant to s. 51 of the Family Law Act . The term "child" used in s. 51(1)(

a) is defined in s. 1 of the Family Law Act to mean, except in

Part 3 of the Act (Sections 20 to 36) a person who is under 19 years of age. Hence, the father, as I read s. 51(a), can now aspire to be a guardian for his three children and would have legal rights as such only to their age 19. [ 56 ] There are further requirements for such an application before it can be considered or granted, set out in s. 51(2) to (4) of the Family Law Act as follows:

(2) An applicant under subsection (1) (

a) of this

section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in

section 37 [ best interests of child ] of this Act. (3) Subsection (2) of this

section applies regardless of whether there is consent to the application under

section 219 [ persons may consent to order being made ].

(4) If a child is 12 years of age or older, a court must not appoint a person other than a parent as the child's guardian without the child's written approval, unless satisfied that the appointment is in the best interests of the child.

[ 57 ] The Provincial Court (Family) Rules referred to in s. 51(2) of the Family Law Act , provide in Rule 18.1 as follows: Guardianship Orders Guardianship affidavit required

(1) When an order is sought appointing a person as the guardian of one or more children, the applicant must (

a) complete and file with the court the original and 3 copies of an affidavit in Form 34, attaching the exhibits referred to in the affidavit, that complies with subrule (4) and serve a copy of that filed affidavit on the other parties and on any other person who may be affected by the orders sought, and (

b) provide to the judge any other evidence the judge considers necessary. Interim order may be made

(2) A judge may make an interim order for guardianship without an affidavit in Form 34 having been filed if the judge is satisfied that it is in the best interests of the child that an interim guardianship order be made before that affidavit is filed. [ 58 ] There is a note after Rule 18.1(1) as follows: A person who is a guardian within the meaning of

section 39 of the Family Law Act does not need to apply for guardianship and does not need to file the Form 34 affidavit referred to above. [ 59 ] Following April 13, 2015 the father was no longer a guardian of any of his children. No such affidavit was provided by the father in support of his application, nor did the father provide any written consents. [ 60 ] Rule 18.1(2) of the Provincial Court Rules gives me a discretion to make an interim order before an affidavit is filed.

Under the circumstances of this case, I am not prepared to do so even though I am of the view that what the father did on April 13th last was foolish in the extreme, likely unnecessary and selfish, that he was seemingly unrepresented and that likely he did not understand the magnitude of his act. Nonetheless, his application under s. 51 has some merit and should not now simply be dismissed by reason of his failure to file this affidavit in Form 34 or written consents, if necessary. [ 61 ] Therefore, I adjourn his application to seek guardianship rights generally.

It may be reset by him for a continuation in front of me, by giving the mother not less than seven days' written notice of his intention to do so, but on the following terms: 1) The father would either file a properly-prepared and sworn affidavit as required by the above Rule 18.1 in Form 34, with the required exhibits, or agrees before me to do so by some known future date. I would, at a future hearing, be prepared to consider exercising the jurisdiction given to me by Rule 18.1(2) upon hearing submissions from each parent as to the urgency of the matter.

No further court application will be necessary if the parents can reach an agreement as to sharing guardianship and parenting rights and properly record the same in writing. [ 62 ] I repeat, I highly recommend that each party seek independent legal advice with respect to particularly the guardianship issue addressed in these reasons. [ 63 ] I am mindful that during the course of the evidence given by the parties before me in December of this year, that the mother appeared to indicate that she was not opposed to the father having at least the guardianship right that I have referred to above under s. 40(

f) of the Act . [ 64 ] I turn now to the mother's application that I make a protection order pursuant to

Part 9 of the Family Law Act . [ 65 ] The mother testified that the father had sent text messages and given written communications to her children for them to pass on to her that she found offensive, and which upset her children. On at least one occasion, the oldest daughter, once used as a go-between by her father, was crying when she showed her mother one of the text messages and said she did not want to be involved. [ 66 ] On another occasion, their son was angry that the father had involved him in text messaging things related to the mother.

He wanted his dad to leave him alone and not involve him in his difficulties with the mother. [ 67 ] I have reviewed all of these messages and they are, in my view, inappropriate communications between this father and this mother. I need say no more about them. [ 68 ] Recently, at about noon, the father, according to the mother's testimony, came to her home and, after gaining entry, commenced swearing and yelling at least in her presence. She was alarmed enough to call the police, who attended after he had departed.

She believes he may later have been arrested, one of a series of arrests she told me about. [ 69 ] While the mother's evidence on point was somewhat confusing, I understand that on or about May 29, 2015, she was, as a result of something he did, so fearful of him that she took steps to have an Information sworn setting out a charge under s. 810(1) (

a) of the Criminal Code of Canada . I also understand that on September 9, 2015, Judge Gedye of this court placed the father on bail with respect to this charge with terms including: 1. he is to have no direct or indirect contact with the mother, save through counsel, a family justice counsellor, or in court, as today; and 2. that he is not to attend or be in any known place of residence, worship, work, or educational facility of hers; and

3. he is not to be on or in her residence where she now lives with the three children at [omitted for publication] in West Vancouver. [ 70 ] I understand that currently the father has retained counsel with respect to this proceeding and intends to defend it at a hearing set in the spring of 2016. Until then, of course, the bail orders will continue and be binding upon him. [ 71 ] As I have said, I have reviewed the various screen shots and documents the mother has placed before me in evidence. The father denies sending same and suggests they were taken out of context or incomplete or even doctored.

I do not accept his evidence on point. [ 72 ] One thing is clear to me, however, in this matter, and that is that the father is extremely angry, at least with the mother's choice of religion and its impact on her ability and desire to work at gainful employment and help out with daily expenses, hers and those for the children. [ 73 ] As well, he has sought to involve the children in this fight. There is no nicer word for it. It is also clear they do not wish to be involved and he seems not to understand or accept this. [ 74 ] I have considered all relevant factors in

Part 9, including the s. 184 factors, and I am satisfied on the facts of this case that the father's actions fall within the broad definition of family violence in s. 1 of the Family Law Act , especially subsection (d), and that the mother is an "at-risk family member", and that I have jurisdiction to make the order sought and that I should exercise my discretion to make the order sought on the following terms: 1.

N.E., born [dob], hereinafter referred to as "the father", shall not have contact with or communicate directly or indirectly with S.M., hereinafter referred to as "the mother", save while in a family case conference, at a court appearance, through legal counsel, or in the presence of a family justice counsellor; 2. the father will not enter or be at any known residence, including [omitted for publication] in West Vancouver, place of worship, educational institution, or work known to be that of the mother; 3. the father will not communicate with any of the three children (and the order will set out their names and birthdates) in any fashion whatsoever, including in writing, text, email, or orally, whereby he makes negative, critical, or disparaging comments about the mother or her religion or work ethic; 4. under s. 183(3)(c)(

i) of the Family Law Act , any peace officer, including a member of the Royal Canadian Mounted Police, having jurisdiction within the Province of British Columbia, who is provided with a copy of this order, is directed to remove the father from any place referred to in paragraph 2 herein, in the event that he is in breach of the said order; 5. this order will expire four years from this date, namely on December 31, 2019. (REASONS CONCLUDED)