J.M. v. C.W. Date:, 2016 BCPC 264

Citation: J.M. v. C.W. Date: 20160811 2016 BCPC 264 File No: F9124 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: J.M. APPLICANT AND: C.W. RESPONDENT RULING ON APPLICATION PURSUANT TO S. 221 OF THE FAMILY LAW ACT OF THE HONOURABLE JUDGE J. CHALLENGER Appearing on his own behalf: J.M.

Counsel for the Respondent: S.L. Specht Place of Hearing: North Vancouver , B.C.

Dates of Hearing: Oct 28, Nov 10, 2014; Feb 20, Mar 17, Apr 21, Jul 24, Oct 27, Nov 10, 24, Dec 2, 2015; Feb 9, 10, 11, 12, Mar 2, Jul 13, 19, 2016 Date of Ruling: August 11, 2016 [ 1 ] These reasons relate to an application brought pursuant to s. 221 of the Family Law Act by the respondent Mother to require the Father to pay for all or part of legal expenses reasonable and necessarily incurred by her as a result of Father’s actions in the conduct of the matter. [ 2 ] The foundation for this application arises from the order made at the conclusion of the hearing which prohibits Father from making further applications without leave of the Court.

This order was made because I was satisfied that Father had conducted the proceeding in a manner which was a misuse of the court process and was continuing to act in a manner that misused the court process. [ 3 ] I also wish to make clear that the order to be made here is not reflective of or meant to punish Father’s bad conduct in his dealings with Mother during the course of their relationship or since their separation. I have considered only conduct which I have found to have impacted the course of the proceedings in court. [ 4 ] The only witnesses called at the hearing were Father and Mother.

In the absence of any other evidence, the Court must base its findings in this application on their evidence as given under oath in this proceeding, on the documents admitted as exhibits and on the record of proceedings including transcripts, affidavits and orders. [ 5 ] As to the credibility of the witnesses, I accept the evidence of Mother as being reliable, reasonable and in accord with the preponderance of probability. Father’s evidence was often confused, inconsistent and at times evasive. He engaged in minimization of his own criminal conduct, alcohol misuse and mental health issues.

Father’s perceptions and

interpretations of Mother’s positions and conduct are distorted by significant personal animus toward and unfounded distrust of her. He repeatedly blamed her or her family for many matters which in fact arose from his own failure to take action or to meet his responsibilities. For the purposes of making findings of fact for this application, I do not accept his evidence where it conflicts with Mother’s. [ 6 ] There is one female child of the relationship born [omitted for publication].

Mother and Father separated in July of 2014. [ 7 ] Recent to the separation, in mid-July of 2014, Father made threats to Mother respecting a male who she worked with. Around the same time Father sent Mother various texts which were extremely abusive and threatening.

In those texts he said he would make her life hell, would humiliate her publicly, he would seek custody of the child and that she should “Get ready to fight!!!!!! stupid bitch”. [ 8 ] He was arrested for threatening and harassment and released on bail with terms that he not attend Mother’s residence or workplace and that he not have contact with the male, Mother or her family except through legal counsel or a Family Justice Counsellor and only according to the terms of an order made under the FLA for the purposes of seeing his child.

In September, Father attended mother’s employment which was a breach of his release terms and was arrested and charged for that offence. On October 10 th , 2014 he was charged with a further breach of his bail for emailing her mother. [ 9 ] On September 3 rd of 2014, Father filed an Application asking for guardianship and for parenting time every second weekend and two evening visits per week. Mother replied and filed a counter claim.

Father did not file a Reply to the Counterclaim until July 21 st , 2015 at which time he asked for an Order for equal parenting time and responsibilities. [ 10 ] The matter was first set for an interim hearing on November 25 th , 2014. That hearing was adjourned by counsel for both parents prior to that date. The next appearance was for a Family Case Conference on February 20 th , 2015. At that time only child support issues were addressed. A final hearing with respect to child support was held on April 21 st , 2015.

On July 21 st , 2015, an interim hearing was held following which Mother was granted sole parenting responsibilities. [ 11 ] On July 23 rd , 2015, Mother filed a Notice of Motion for an Interim Order regarding guardianship and parenting issues. Father did not seek an interim order to address parenting time or contact with his daughter until the hearing on Mother’s Notice of Motion on October 27 th , 2015.

Following that interim hearing Mother was granted sole guardianship and sole parenting time. [ 12 ] Father was permitted to have contact with his daughter at a gymnastics class at a community center in order to allow the child to become familiar with him. I find he had seen his daughter only twice since separation prior to that contact commencing and those visits had been in the late summer of 2014. He had contact with his daughter at the class on November 8 th and 22 nd , December 13 th and 20 th and January 10 th , 17 th and 31 st , 2016.

I accept Mother’s evidence that Father did not respect Mother’s directions on how and when he should approach his daughter at some of those visits. I also accept that he displayed hostility toward her in the presence of the child at some of those visits. [ 13 ] The hearing on Father’s application and Mother’s counterclaim was set for February 9 th , 10 th , 11 th and 12 th , 2016. There was a pre-trial conference held on December 2 nd , 2015 during which Father confirmed that he would be seeking an order for guardianship, equal parenting time and an equal sharing of parenting responsibilities.

He said he was calling six witnesses in addition to his own

testimony. [ 14 ] On February 2 nd , 2016 Father filed an application to vary the order respecting child support made after the hearing on April 21 st , 2015. The record is clear that up to the time of the hearing on October 27 th , Father had not yet fully complied with his obligations to make financial disclosure despite having been fined $1000.00 in April. [ 15 ] The hearing commenced on February 9 th and continued through to February 11 th . Father wanted to deal with support issues at the hearing but this was not permitted as Mother had not had an opportunity to properly respond or prepare for that issue.

In any event, Father had still not complied with his financial disclosure obligations. Father also failed to cooperate during the process leading up to the hearing by not responding when sent an order for approval. [ 16 ] In Father’s direct evidence, he did not address any arrangements or plans for transitioning his child into his care, what the child’s life would be like in his home, a proposed parenting time schedule, how he would deal with parenting responsibilities given the strained relationship with Mother or his child’s very serious medical issues.

Although there was a “Parenting Timeline” in his materials he did not refer to it. I note it refers only to alternating weekends and mid-week visits and not equal parenting time. [ 17 ] Father agreed that Mother was an excellent caregiver to the child and had been her primary caregiver since birth. He minimized the child’s health challenges as a baby and was unable to articulate what the doctors who were dealing with the child had diagnosed, even if provisionally. He only requested information about the child’s health from Mother or the child’s medical practitioners on one occasion since separation.

When Mother required funds to buy special formula for the child, at a time when Father was failing to pay child support, Father did not provide any funds because he didn’t believe it was necessary. This conclusion was based solely on his distrust of Mother. [ 18 ] At the conclusion of Father’s evidence, he indicated to counsel for Mother that he would consent to an order that Mother have sole guardianship, sole parenting time and sole parenting responsibilities. Father would have very limited contact to be arranged through Mother’s father.

When asked why he would consent to such an order he said, “I honestly just don’t want to deal with this. Like, I don’t want to deal with it anymore.” He reiterated that Mother was providing his daughter with excellent care. [ 19 ] He was urged by the Court to carefully consider his position and to seek independent legal advice prior to such an order being made.

The concern of the Court was that he was acting impulsively as a result of being unable to regulate his emotions, consistent with a pattern of behavior established in his evidence. [ 20 ] After court in February, Father initially agreed he would consent to the order discussed and so counsel for Mother drafted that order and sent it to Father. He then refused to sign it. He had been specifically warned in Court about this possibly occurring and that there could be monetary consequences should he do so. [ 21 ] The matter went over to March 2 nd for Father to consider his position.

When he returned to court that day, he advised that he intended to continue with his case, confirmed he would be calling the witnesses he had indicated previously and would pursue his application for variation of the child support order made in April. [ 22 ] Prior to continuation of the trial he was sent a notice of Mother’s intention to re-locate to the Okanagan. Father did not respond to that or take any steps to determine the import of such a notice. [ 23 ] He saw his daughter only a few more times at the class. On March 20 th , a concern was raised about him pushing past Mother to give something to the child.

He then refused to attend further visits. [ 24 ] The continuation of the trial was set for July 13 th , 18 th and 19 th , 2016. On the first day of the continuation, Father requested an adjournment so he could obtain counsel. His application to adjourn was not granted. He did not have any of his witnesses available.

He had not filed any updated financial information other than his 2015 tax return which was submitted late the day before. [ 25 ] Mother then testified and the order which Father had said he would consent to in February was granted. [ 26 ] Throughout the litigation, Father has behaved in a manner that has caused Mother to incur unnecessary legal fees. He was at times non-responsive, his positions were changeable and he was often obstreperous.

Of particular concern is that Mother’s counsel twice prepared to meet the case Father confirmed with the Court he would be presenting and which he then failed to pursue. [ 27 ] There were 14 court appearances in this matter. There were three contested interim hearings. In each, Mother was the successful party. Mother is also the successful party following trial. [ 28 ] I find it was reasonable for Mother to have retained counsel throughout the proceedings given the abusive and threatening conduct of Father outside of court and his uncooperative and non-compliant behavior in the proceedings.

Mother’s legal fees amount to $70,000.00 plus disbursements and taxes for a total of $83,000.00. [ 29 ] Father was entitled to his day in court to be heard on the issues relating to his daughter. I find that even if he had continued to seek regular but limited parenting time and shared responsibilities, as was set out in his original Application, this hearing would have been contested by Mother in any event. [ 30 ] However, I find that Father has never sincerely wanted to be granted equal parenting time with his daughter. I find he pursued that remedy solely to cause Mother anguish.

Although I can accept that he sincerely wishes to have a relationship with his daughter, he has not made reasonable efforts to do so. To the contrary, he has been dilatory and disinterested with respect to achieving this end. I find it more probable than not that Father has intentionally taken contrary positions in these proceedings in order to cause both financial prejudice and emotional harm to Mother. In all the circumstances, I find Father has abused the court process to the extent that a remedy should be granted under s. 221.

[ 31 ] I find that Father shall be responsible to pay 1/2 of mother’s legal expenses being $41,500.00 which amount shall be enforceable under the provisions of the Family Maintenance Enforcement Act and is payable forthwith. Case Authorities Considered : 1. Karpodinis v. Kantas , 2006 BCCA 400 2. Cain v. Hodgson , 2013 BCSC 310 3. K.A.M. v. T.S.C. , 2015 BCSC 677 4. Loft v. Nat , 2015 BCCA 418 ________________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia