H.Z. v. R.Z. Date:, 2015 BCPC 123

Citation: H.Z. v. R.Z. Date: 20150407 2015 BCPC 0123 File No: F9447 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: H. Z. APPLICANT AND: R. Z. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. ALEXANDER Counsel for the Applicant: P. Burke

Appearing on their own behalf: R.Z. Place of Hearing: New Westminster , B.C. Date of Hearing: April 7, 2015 Date of Judgment: April 7, 2015 [ 1 ] THE COURT: I am going to be very brief in my reasons because it is time for the parties to move forward. I know as well that there are other proceedings with respect to the property division in the other court and those will be addressed separately. [ 2 ] The father -- and I will just call the parents mother and father for the sake of simplicity here -- and I recognize that he is the stepfather and that is in issue. [ 3 ] Mr.

Z. has made an application to set aside the order of Judge Walters for child support for one child, L. That order was pronounced on October 17th, 2014 and the basis for setting aside that order is at least twofold. [ 4 ] Firstly, Mr. Z. says that he did not have notice of the application. He was separated from the mother at the time. The notification went to an address for delivery which was at the parties' old apartment. He had a key to the mailbox, and that is clear on the evidence that is before the Court.

He says he did not receive the notice and that he was in China on the day of the application and therefore was unable to appear and did not know how to deal with it from China. [ 5 ] The second position is that really no child support should be payable because the application is out of time pursuant to s. 147 of the Family Law Act .

He disputes that he is or was in loco parentis or actively involved as a stepparent to the child, L., and that any such relationship was severed years before and that he was excluded from any family relationship and therefore the application was not brought in a timely way and is precluded by the provisions of that section. [ 6 ] He also disputes the amount of the child maintenance. He is not working at the moment. He ceased employment either in May or June of 2014. He is on Employment Insurance. He says he has sent out a number of resumes.

He is a steel fabricator and attended BCIT for that position so he is well-trained, but he says that there are not many jobs available in his field. [ 7 ] The mother of the child disputes the position put forward by Mr. Z. With respect to notice of the application on October 17th, counsel submits on her behalf that the explanation offered by Mr. Z. is simply not credible on the evidence. The notice of the hearing was delivered to the address for delivery, the evidence is that Ms. Z. saw an identical envelope in the mailbox and at that time Mr.

Z. was accessing the mailbox. [ 8 ] She does concede that at some point she had the fob for the building deactivated through the building manager because of unwanted contact with Mr. Z., but she did recall seeing two identical envelopes in the mailbox and she took hers. [ 9 ] Further, before the hearing there was an email between the parties on October 15th and there was a telephone call on October 16th about financial issues between the parties. The father denies that there was any discussion about the upcoming hearing date since he was on his way to China.

The mother takes a different position and says she indeed did remind him of the upcoming date. [ 10 ] Where there is a conflict in the evidence on this point, I prefer the evidence of Ms. Z. It is revealing that in the face of this outstanding issue that Mr. Z. took no steps to deal with this matter over a period of months. [ 11 ] I find that Mr. Z. knew or ought to have known of the October 17th date, firstly by the notice appearing and delivered to his address for delivery where he collected his mail from, and due to the subsequent communications with Ms.

Z. through telephone and email. [ 12 ] With respect to the issue of whether the order should be set aside on the basis that the child is not his biological child and that he has not been in loco parentis and that it is out of time, the father submits that this application brought by the mother is all part of an overarching scheme to extract child support from him for a child that is not his biological child based on advice that she received from her friend who is a lawyer. [ 13 ] I find that based on the evidence before this Court that Mr.

Z. has been in loco parentis to this child since her arrival in Canada in 2009. That involvement continued until early 2014. The application was not late. It is clear on the evidence that he continued to pay mortgage payments, he was involved in her after school care, and he was involved in extra-curricular activities. The relationship as evidenced by the translation of the emails shows a relationship developed over years of caring and affection which cannot be artificially terminated once the issue of financial responsibility comes into play.

He did not attempt to have L. removed from the MSP plan until early 2014. [ 14 ] I have no doubt that relations were stressed in the family home but they continued to share meals and other family activities, and I do not accept the artificial construct offered by Mr. Z. in an attempt to minimize his role in the life of this child he accepted as his own as set out in Exhibit 3. [ 15 ] With respect to the order of Judge Walters in terms of the amount, Judge Walters' order reflects an averaging of three years of income of Mr. Z.

I find that it is reflective of his ability to pay and that he is able to earn that amount of money though he is on Employment Insurance at the moment. He was unable to provide his Record of Employment with respect to the circumstances surrounding when he left his job. He says he was laid off. [ 16 ] I accept counsel's submission that it is coincidental with the timing of the service of the application for child support. There is

little evidence of attempts to find new employment and there is nothing to suggest that Mr. Z. is anything but healthy and able to work. He is certainly educated and well-trained in his chosen field. [ 17 ] I decline to set aside the order of Judge Walters. The order will stand as being reflective of the relationship between Mr. Z. and the child, and reflective of his ability to earn income. [ 18 ] By the consent of the parties, the protection order is extended for a further year from its expiration date in May 2015. [ 19 ] That is the order of this Court. [ 20 ] MR.

BURKE: Your Honour, just to make sure I'm clear on the drafting of the protection order, should I draft the whole thing – [ 21 ] THE COURT: No, if you can incorporate it by reference the order of Judge Janzen of whatever date it was is hereby extended for a further period of one year from the date of that order. [ 22 ] MR. BURKE: Thank you. [ 23 ] THE COURT: I will dispense with signatures on the order. Mr.

Z. is to be provided with a copy of the order that I have made today and if there is a different address for delivery, please advise the Registrar so that they can take note of it and make sure that it is delivered appropriately. [ 24 ] MR. BURKE : Thank you, Your Honour. [ 25 ] THE COURT : Thank you. That is the order. I have made my order sir. [ 26 ] R. Z. (through interpreter) : I accept this order but I don't have the money now.

Is it possible to wait 'til the decision from the Supreme Court about our property and then I pay that. [ 27 ] THE COURT: If you don't pay maintenance between now and then it will accumulate as arrears of maintenance and you should get some legal advice as to how that may impact on your share of net sale proceeds. And you can certainly have some discussions with Mr. Burke. Are you representing – [ 28 ] MR. BURKE: I am. [ 29 ] THE COURT: Yes, all right. You can have some discussions about how to address that issue. Thank you. (ORAL REASONS FOR JUDGMENT CONCLUDED)