IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
A.C.M. v. M.A.S., |
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2018 BCSC 1166 |
Date: 20180712
Docket: E49247
Registry: New Westminster
Between:
A.C.M.
Claimant
And
M.A.S.
Respondent
Before: The Honourable Mr. Justice Funt
Reasons for Judgment
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Counsel for the Claimant: |
S. Bobb C. Kooner, Articled Student |
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Respondent Appearing in Person: |
M.A.S. |
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Place and Date of Trial: |
New Westminster, B.C. April 3-6, 9-13 and 27, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. July 12, 2018 |
Table of Contents
4. Parenting Arrangements - Generally
5. GUARDIANSHIP, PARENTING RESPONSIBILITIES, PARENTING TIME
[1] This case involves the dissolution of a marriage-like relationship. The parties started to co-habit in July 2002, with a separation date of August 1, 2015.
[2] The parties have a daughter, A., and a son, L., from the relationship. They are nine and six years of age respectively.
[3] The key outstanding issues between the parties are parenting responsibilities, parenting time, child support, and the division of property.
[4] Dr. R.A. LaTorre, a psychologist, prepared an assessment with respect to the children under s. 211 of the Family Law Act, S.B.C. 2011, c. 25 [FLA], addressing the needs of the children, their views, and the ability and willingness of each party to satisfy the needs of each child.
[5] The parties and their children all enjoy good health.
[6] In these reasons, I will provide the background facts, and my findings as to the current parenting skills of each parent. I will then generally comment on parenting arrangements and then review and resolve the outstanding issues.
[7] The claimant mother and the respondent father are 41 and 39 years old respectively. Each are educated and employable.
[8] Since September 10, 2015, the parties have lived in separate residences. The father has remained in the former family home. The mother initially lived across the back alley in a rental suite and, more recently, has purchased a nearby condominium (about a five-minute drive away from the former family home).
[9] Currently, on a without prejudice basis, the parties share parenting time almost equally. On June 21, 2016, Master Keighley ordered (in part):
THIS COURT ORDERS, BY CONSENT, that:
...
5. On a without prejudice basis to either party, commencing on the 7th September 2016, the Children shall have parenting time with each party on a 2-week rotation basis as follows:
a Week 1
i with the Claimant from Wednesday at 12pm to Sunday at 10am
ii with the Respondent from Sunday 10am to Wednesday at 12pm
b Week 2
i with the Claimant from Wednesday at 12pm to Saturday at 5pm, and
ii with the Respondent from Saturday at 5pm to Wednesday at 12pm;
(the “Regular Schedule”)
[10] With often considerable difficulty, arrangements for parenting time during holidays and special occasions have been made.
[11] The mother is currently employed under a one-year contract with the British Columbia Government and Service Employees’ Union (“BCGEU”) as a staff representative. Her income under the Federal Child Support Guidelines, SOR/97-175 [Guidelines] is approximately $88,000.
[12] The mother has previously been employed by non-profit organizations. Most recently from 2008 to early 2017 with the Pacific Coast Resource Society (“PCRS”), serving as a manager for support services. With young children, the mother worked four days per week (28 hours per week in total).
[13] In early 2017, the mother took a three month leave of absence from PCRS and worked on a trial basis with the BCGEU. At the time of her return to PCRS, it was planning to restructure. She negotiated a settlement package with a severance payment and benefits coverage until the end of 2017. In January 2018, she started her current BCGEU assignment.
[14] The mother has a Bachelor of Arts degree from the University of Victoria (Sociology and Political Science) and a Master’s degree in Social Science from the Royal Melbourne Institute of Technology in 2007. As noted, she started to work for PCRS in 2008.
[15] The father attended the University of Victoria for six years. He was active in student life and was the President of the Student Union and served on the University’s Board of Governors. He did not obtain a degree.
[16] The father has a keen interest in politics. He has worked for both the federal and the provincial wings of the New Democratic Party (“NDP”). He has information technology skills of particular utility to political parties and election campaigns.
[17] The father has had various jobs. Most recently, he worked for the provincial NDP from August 2007 to September 2015. From August to December 2016, he worked for the Professional Employees Association as an organizer.
[18] Since 2016, the father has not worked. While working for the provincial NDP, he earned approximately $89,000 per year.
[19] In August 2016, the former family home was purchased by the father’s parents. The purchase price represented fair market value. After discharging a mortgage and sale-related fees, the realized equity was $502,696.76.
[20] Of the $502,696.76, $100,000 was held-back pending agreement by the parties or court order. Under Master Keighley’s June 21, 2016 Order, the $402,696.76 balance was divided equally by the parties at that time with $50,000 to be held in trust for each party “pending agreement between the parties or court order”.
[21] Although the Court must make its decision based on all of the evidence, as Justice Martinson observed in L.E.G. v. A.G., 2003 BCSC 412 at para. 21, a s. 211 report is “an important tool the court can use in reaching its conclusions”.
[22] Where the s. 211 expert is not cross-examined, the facts stated in the expert’s report are prima facie evidence of their truth: K.M.W. v. L.J.W., 2010 BCCA 572 at para. 50.
[23] I found Dr. LaTorre’s s. 211 report to be comprehensive and particularly helpful with respect to assessing parenting skills and determining parenting responsibilities and parenting time. His findings were consistent with the nature of the testimony I heard.
[24] Each of the parties loves each of their children and each child loves each parent. The testimony of each of the parties and their respective witnesses fully supports this finding. There has been no family violence or ongoing safety concerns with either child being in the care of the other parent. I readily adopt Dr. LaTorre’s finding: “the bond between each parent and each child appears relatively strong”.
[25] The fundamental problem at the present time is that the father is often annoyingly difficult in his dealings with respect to family matters. This in turn makes the coordination of many aspects of each child’s life frustrating for the mother and others, and does not serve the best interests of each child.
[26] As an example, the father took an unrealistic approach with respect to Dr. LaTorre making a mistake in asking the father to sign an attestation that the father was the children’s biological mother rather than the children’s biological father. The father is an intelligent individual. He could have simply asked for the correct form or crossed-out “mother”, inserted “father”, and initialled and signed the form. Instead, he unreasonably complained.
[27] In his s. 211 report, Dr. LaTorre sets forth a tentative view as to the father’s personality traits:
During the course of this assessment, it appeared to me that Mr. [S] might be a contrarian, contemptuous of authority or passive-aggressive and that those traits might impact his parenting either directly or indirectly by making it difficult for him to discuss matters of significance with Ms. [M] should joint guardianship or co-parenting be considered. Possibly related to that concerns what [sic] that he might not have fully participated in the s. 211 assessment.
Mr. [S] replied to that concern in an e-mail dated 17 August 2017. I quote his full response:
“I am an intelligent, well read, active parent. I have been regularly coerced into participating in this assessment, despite this, I have cooperated with you and at times sought to move things along much quicker. I find it difficult to ascertain how I could in good faith sign a document that stated: ‘I hereby attest that I am the biological mother of the aforementioned child.’ As requested by you. Specifically since I am male, and the mother of no children this would appear to be very difficult to do. [To provide context: I sent the parties consent to release information regarding their children. On the release forms sent to Mr. [S], I had included the attestation that he was the mother of the children rather than the father. That is the matter to which he speaks.]
“I have sought legal advice in relation to your assessment and at no time have I been satisfied that those providing the advice were acting on my behalf, instead they sought to act on the children’s behalf in a narrow interpretation of the children’s interests without regard to mine. I believe that this is consistent with the law and potentially with the children’s interests if there is a clear discrepancy between my interests and theirs, however, since legal matters of this type require legal advice and since participants in this family law matter have repeatedly threatened or acted to use this dispute in other matters, sought to act extra-judicially and judicially to defeat me in this case by exhausting my financial resources, including arguing that they may discover your assessment in another legal venue, I need legal advice in order to respond fully to such accusations.
“This isn’t contemptuous or passive-aggressive but it is particularly frustrating for all involved. I seek to continue to cooperate fully with you, however, this limitation of the law appears to restrict my participation where things are unclear, I also don’t think this is particularly a pedantic concern when a consent form includes an attestation. As a result of an undertaking to Ms. Kinney, I will get you a signed and witnessed consent to discuss the children with teachers, next week, although I doubt that I will find a way to include an attestation within it, since I have no legal advice on this question.
“I would ask reasonably I believe, that you view my cooperation within the context with which it is provided and that you not attempt to assess my ability to parent by judging my level of cooperation without taking into account the financial coercion I am currently subject to. This coercion includes the failure to make child support payments by [Ms. M] in line with her income and mine, the on-going discussion of my job prospects, work performance and qualifications and by the complainant with my potential and past employers and most recently another court application seeking costs against me by asserting that I am delaying your inquiry.
“As you may remember her lawyer asserted that you must be the one to conduct the inquiry as your availability would allow for this section 211 to be completed in December of 2016. We are far beyond the timelines contemplated when the order was granted and I hope that we can now dismiss the majority of issues from this forum as it seems particularly unlikely that we can use this forum to resolve these issues. As their father, I must state that the dramatic costs involved in you inquiring in relation to these relatively minor questions do not appear to be in the children’s best interests.”
[28] Another example of the father’s annoyingly difficult behaviour is with respect to obtaining a passport for A. A.’s passport had expired and the mother wished to travel to Phoenix in January 2018 with her two children to celebrate her brother’s 40th birthday.
[29] The father had agreed to cooperate to help to obtain a passport for A. However, as a result of the father’s approach, A.’s passport was not obtained in a timely manner and the mother did not attend her brother’s 40th birthday party.
[30] Before A.’s passport was obtained, two court orders were required: the first, December 12, 2017, was to require the father to sign the passport application; the second, March 15, 2018, to dispense with his signature.
[31] With respect to the mother’s application to dispense with the father’s signature leading to the March 15, 2018 order, the father in his affidavit suggested that the mother could be a flight risk by swearing (in part):
The applicant seeks to avoid trial and settle issues by leaving the jurisdiction with the children. …
[32] The father’s suggestion of the mother being a flight risk lacked any foundation.
[33] The cross-examination of the father by Mr. Bobb, counsel for the mother, illustrated the father’s annoyingly difficult approach to matters. As a result of the father’s approach, most of the trial in the afternoon of April 12, 2018 was required to address the signing of the passport application for A. I set forth below an excerpt from the cross-examination that shows the difficulty. The excerpt refers to an October 2017 mediation between the parties with counsel present:
Q Okay. Do you recall that once Ms. [M.] gave you the passport and you said you were going to sign it, when it became apparent that you weren’t going to sign it, that you refused to give it back at the mediation?
A My concern was for the coerciveness of the situation I was in and my capacity to examine what was being put in front of me and to respond in a way that would actually act in the best interests of the children. And it was very difficult for me, in a tightly closed — enclosed space, to make decisions. I felt coerced. I asked to leave the room and was told no. When I was allowed to leave the room, I cleared my head, came back into the room, and committed myself to not be coerced in that environment. I did not believe that that was the best — and I would not — my biggest problem with it was not so much that I was being coerced but that both [Ms. M] and I were being coerced in that environment and that I in no way would want either of us, as parents, to be coerced into making decisions about the children. That -- and that went back and forth. It wasn't — it wasn't simply me. I felt trapped, and I felt the accusation that I had trapped [Ms. M] in that room, and I made several attempts to make sure that both of us were allowed to leave if either of us wanted to leave. And I think that was both reasonable and I think your manner at this stage is — is indicative of why good faith attempts at mediation were attempted and may — may — may not be possible in this case.
Q Can I take that as a yes? You didn’t answer the question. But you’re not denying what I said, are you?
A I’m denying that — that I understood whether or not there was a document in front of me that was a valid passport application at the mediation. So you’re asking whether I took a passport application out of the mediation –
Q No.
A -- and you’re asking whether I took a passport out of the mediation.
Q No, that’s not what I asked. Please listen to my questions.
We’ve established that Ms. [M] brought an application to the mediation; right? A passport application. Doesn’t matter — I don’t care if you think it’s invalid or valid or whatever. Okay? But she brought a passport application to the mediation. You said you would sign it and she gave it to you; right? In the mediation room, and you said you would sign it. Am I right so far?
A I did sign a passport application.
Q I’m not asking you that. I'm asking you, when you received that passport application in the mediation room, you said you would sign it; correct? Do you remember that?
A I don't remember those specific words.
Q But at that time do you remember that you at least in some way expressed that you would sign it?
A I remember feeling extremely coerced, that the -- that the circumstances did not seem in any way conducive to us resolving the issues in front of us. The accusation had been made that I had forced the mediation, that the forcing of the mediation was caused by me, that I was the cause of [Ms. M] needing to be in that room, and that my — my sense of protection of my children and of my ex-partner, their mother, and myself was that no one should be trying to coerce legal agreements under those circumstances, and that the contents of a passport could be construed to be a legal agreement, the contents of a passport application could be construed to be a legal agreement, and that no matter how much a -- a document might or might not be something, it’s not a good idea, in my mind, to not read a document in its entirety before signing it. I think it’s — it’s — it’s a good idea to just sit and — and read it.
I can’t say that I’ve read every document completely that I've ever signed, but at times I’ve been responsible for millions of dollars and at those times I have never felt that my responsibility was as much as the responsibility I have to my children, and I think that I was being coerced in that circumstance. And I don't believe that if I had signed a document at that point that it would be a valid document. I do believe I’ve signed an application for [A.’s] passport.
Q Okay. So back to the mediation. I’m going to suggest to you that you did say you were going to sign the passport application and that Ms. [M] asked you to sign it and you just kept continuing to say, “I will sign it.” Do you agree with that?
A I will sign reasonable documents under reasonable conditions.
[34] As a witness, the father was often unresponsive, pedantic, and rarely forthright.
[35] With a semblance of reasonable cooperation between parents, obtaining a Canadian passport for one of their children is not a difficult task. I am satisfied that the mother did everything she could have done in order to obtain a passport for A. without difficulty.
[36] Since separation, the mother has been the primary parent of the children, including arranging haircuts, dental and medical appointments. Dr. LaTorre also noted:
I have also considered that, when there are choices made for the children, [the mother] appears to more consistently make choices, or favor choices, that put the children’s best interest[s] foremost while [the father] contaminates his decision-making by placing other concerns forefront or in completion [sic] with the children’s best interests.
[37] The father called his mother as a witness. She is a retired family law mediator. She holds a Bachelor’s degree in Psychology. She lives in Victoria with her husband, a retired school teacher.
[38] As a result of living in Victoria, she sees her son and grandchildren less than she would if she were living in the Lower Mainland. She described her son as a good father and said that the children related well to him. The father has not shown his mother a copy of Dr. LaTorre’s report. Similarly, she was not aware of the various court orders made in this matter, or that her son is seeking to have the final say on significant matters (subject to review by the court). She also would not “categorically say no” that the mother is not a flight risk.
[39] Generally, I found the father’s mother to not be a reliable witness. As noted, she was unaware of significant aspects and information. She was overly protective of her son in much of her testimony.
[40] I am satisfied that the father’s annoyingly difficult approach to matters has frustrated typical activities for the children that may fall within the current parenting times of each parent (e.g. lessons, sports). The father views his parenting time as apparently exclusive without reasonable regard to the more usual regular activities of children throughout a typical week. The mother has had to make arrangements, where possible, to schedule such activities during her parenting time.
[41] The testimony of the mother, her mother, and Ms. D., a close friend with an almost familial relationship with each child, further illustrated the frustrations that arise in dealing with the father, and further support Dr. LaTorre’s finding that the father “contaminates his decision‑making by placing other concerns in the forefront or in completion [sic] with the children’s best interests”. The father can be overly intense to the extent that he is perceived to be paranoid.
[42] In sum, at the current time, the father lacks the co-operative parenting skills so necessary where a child’s parents have separated. The mother has the skills to assess, to organize, and to communicate in order to co-operate with a separated partner in the best interests of a child.
[43] In determining parenting arrangements, I am guided by that which is in the best interests of each child. Section 37(3) of the FLA provides that an “order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being”.
[44] Section 37(2) of the FLA reads:
(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:
(a) the child's health and emotional well-being;
(b) the child's views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child's life;
(d) the history of the child's care;
(e) the child's need for stability, given the child's age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
[45] Dr. LaTorre, in his s. 211 report, reviews the applicable factors in reaching his recommendations. Factors 37(2)(g), (h), and (j) are not applicable in the case at bar.
[46] I did not interview either child. Dr. LaTorre did. From his report and the testimony of the various witnesses at trial, it is apparent, as I have previously noted, that each child loves each parent. They each enjoy their time with each parent.
[47] Dr. LaTorre specifically noted that A. does not wish to be involved in her parents’ disagreements.
[48] Dr. LaTorre’s observations and comments with respect to the applicable s. 37(2) factors are consistent with the evidence at trial and serve to reinforce my views with respect to each of the applicable factors. As noted, I did not interview either child. Dr. LaTorre’s interviews of the children do not reveal information that would cause me to make different findings in determining the matter at bar based on the evidence at trial
[49] I find that the father’s annoyingly difficult approach does not serve the best interests of either child. It creates unnecessary obstacles for reasonably cooperative parenting and may often create uncertainty which undoubtedly gives rise to emotions, which children, being sensitive and intuitive, feel with concern and distress to a greater or lesser degree depending upon the particular circumstances.
[50] In determining parenting responsibilities and parenting time, I have concluded certainty is needed and a need to avoid fruitless discussions or negotiations which result from the father’s current approach to matters.
[51] I also recognize that the father may be able to change his behaviour. I recommend that he seek counselling. I will not order that he attend counselling because counselling will likely be of benefit only if he first accepts that counselling may be fruitful. I note that his parents have been supportive in the past of their son and, undoubtedly, wish to serve the best interests of their grandchildren. The father should reflect on Dr. LaTorre’s concerns as to his apparent personality traits and on the reasons that others perceive him to appear paranoid at times. Recognizing that he may be able to change his behaviour, I have included a time after which he may seek a review.
[52] I will first note that there was not controversy as to guardianship. Each parent will remain a guardian of each child.
[53] As part of his written submission on behalf of the mother, Mr. Bobb prepared a draft order of the relief his client seeks. The provisions regarding parenting responsibilities are set forth at Schedule “A”.
[54] I have reviewed Mr. Bobb’s proposed language and will adopt it with several modifications. I am satisfied that Mr. Bobb’s proposed language will help to provide certainty for the parties, including that the mother needs to be given final decision-making authority, subject to the father making an application to court.
[55] As the first modification, I will not seize myself of this matter. That said, either party may canvas my availability through Supreme Court Scheduling to hear a matter.
[56] As a second modification, I will order that the father may make the application contemplated in para. 6 after three years from the date of the order. One year is too soon, and in my view, would only create uncertainty and possibly occasion unnecessary costs. Three years will enable him time to change his behaviour and to have a record showing that his behaviour has changed. As discussed below, it will also provide him an opportunity to show a re-established work history.
[57] With respect to para. 5, I ask that the language be reworded to include specifically that the parent having parenting time will facilitate the scheduled activities of the children (e.g. swimming, hockey, etc.).
[58] Dr. LaTorre recommends a reduction in the father’s parenting time. The father would have parenting time “every other weekend (with extended weekends on professional development days and school holidays falling on either the Monday or Friday of [the father’s] weekend and one overnight weekly, from noon to noon”.
[59] The mother seeks parenting time in line with Dr. LaTorre’s recommendation with minor modifications regarding pick-up and drop-off times.
[60] The father proposes that parenting time should involve alternating weekends with the weekdays remaining flexible (left to discussion or negotiation between the parties).
[61] With respect to parenting time, Mr. Bobb’s draft language for an order is at Schedule “B”. I have reviewed and will adopt the draft language with several modifications.
[62] I will first observe that the regular parenting time in the draft order accords generally with Dr. LaTorre’s recommendations. I also find that the schedule is required in order to provide certainty, thereby creating stability, which in turn serves the best interests of each child.
[63] With respect to paras. 1 and 2(d), I ask that wording be included to require the mother to take either child to an activity during her parenting time in order that there are consistent obligations for each parent.
[64] With respect to para. 3, for clarity, language should be added that the pick-ups and drop-offs occur at the father’s home unless the pick-up or drop-off is to be at school.
[65] At trial there was evidence, such as unannounced visits to the mother’s home by the father, to warrant not having exchanges at the mother’s home.
[66] With respect to para. 10, parenting time over Easter weekend should alternate unless the parties otherwise agree in writing. The alternating Easter weekends may give the father’s parents a further opportunity to see their grandchildren.
[67] With respect to para. 13, if any difficulties arise with respect to the current summer, there is liberty to apply.
[68] With respect to para. 17, I wish to ensure that neither parent always has Christmas morning with the children, with a better sharing of Christmas Eve, Christmas Day, and Boxing Day. Unless otherwise agreed in writing, I will order that the Christmas break will be shared equally as follows:
a) Odd years
i. the father will have the children in odd-numbered years from the last day of school until noon Christmas Day;
ii. the mother will then have the children for the number of days equal to one-half of the Christmas break, rounded-up (e.g. if the break is 16 days then 8 days; if the break is 17 days, then 9 days);
iii. the father will then have the children for the balance of the break.
b) Even years
i. The same as the odd years except the mother has the children first.
[69] With respect to para. 14, I do not see the need for an additional two-week vacation during “non-summer time”. Only in a particularly exceptional case does it serve the best interests of a child to miss school. Only if the parties agree in writing or by court order should such a vacation occur.
[70] With respect to holiday time generally, the detailed provisions should be subject to the parties otherwise agreeing in writing. I wish to provide some flexibility where both parents are in agreement.
[71] With respect to communications between the parties, Mr. Bobb’s draft language for an order is at Schedule “C”. I have reviewed it and will adopt the draft language with one modification and one comment.
[72] The only modification is to add that a portal similar to Our Family Wizard may be used if the parties otherwise agree in writing.
[73] My one comment is that para. 1(h) is required in the circumstances at bar. There was evidence that the father would often record the conversations he had with others including the mother, initially surreptitiously.
[74] The remaining outstanding issues involve child support, retroactive and future, and property division.
[75] Retroactive child support depends mainly on whether income should be imputed to the father. As noted, the father has not worked since 2016.
[76] The father is an intelligent individual with a developed information technology skill set (including enjoying an excellent reputation as an online fundraiser). One of the witnesses the father called, Mr. R., in addition to describing working constructively with the father in the past, testified that his organization had discussed retaining the father for a project that would have likely paid the father in the range of $50 to $125 per hour. Mr. R. works for an advertising agency in Vancouver and has been involved in hiring decisions.
[77] It appears that the father did not receive or possibly accept the assignment because he insisted that the contract be with a limited liability corporation. In cross-examination, the father testified:
Q What do you mean about -- when you say that you needed to register a limited liability entity in order to protect the children's best interests?
A I just wasn’t certain that we had a financial settlement in this case, and that where there could be financial issues still at dispute, that those issues should not be related to my ability as a contractor to have work performed through a contract. It just seemed separate to me, and I -- like I just didn't want them to be tied together, and it’s an easy — instead of as a sole proprietor being contracted to do work, you set up an entity, took a matter of hours, and that entity provides the work, and it’s a limited entity, and yes, as a -- working for that entity, it doesn’t mean you’ll entirely be able to set aside any assets that you have if you’re grossly negligent, but if you’re providing the work in a way that’s — that is meeting the expectations, at least you can account for the differences in the -- in the entity from the household.
Q So as a result of having unresolved financial issues, you turned down work.
A I didn’t turn down work.
Q Well, with Mr. [R] you did.
A No. We went ahead to the point where – he approached me about it, we had a discussion about it. I said I can do this at the drop of a hat once I have an entity registered, but it’s not worth registering an entity to do this work unless you’re serious about it. He got back to me like a month later about what he thought the scope was, like 100 or 120 hours of work or, at most, 200 hours of work, and said, “Yeah, I think we should go ahead with this,” so I registered the entity, and then he said, “Oh, no, that doesn’t work. I checked with everybody else,’ and then I said, “Okay, well, I’ve got this other job anyway. I think it’s on – it’s on those same lines as what you’re talking about, so I don’t know that it would work for me to be working for two separate unions, even in a contracting role through an advertising agency’ so we just moved forward at that point, and I went off and had a job at that stage.
So like if offered 100 hours of work that might be 200 hours of work, or a full-time potentially permanent position, the choice was obvious to me. Choose the potentially full-time position, and that's what I did.
[78] In further cross-examination, the father testified:
Q And you’ve been unemployed for 24 months since then with some employment.
A I’ve been unemployed, yes, for 20 of the 24 months since then.
Q And at least at this point, doesn’t sound like you’re going to be employed for some time; is that correct?
A Yesterday [Mr. R.] sent another job to me. I don’t – I haven’t had a chance in the -- in the intervening period of time to investigate it further, but I think that I do have a very strong network of people who – who do know that I’m looking for work, and I do believe – I hold out hope that it won’t be long before I’m back employed.
[79] In Hanson v. Hanson, [1999] B.C.J. No. 2532 (S.C.), Justice Martinson stated:
[14] The following principles apply when determining capacity to earn an income. (See Dr. Julien D. Payne, Imputing Income, Determination of Income, Disclosure of Income, Child Support in Canada, Danrab Inc., August 3, 1999.)
1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is “no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor.” (Van Gool [v. Van Gool (1998), 166 D.L.R. (4th) 528 (B.C.C.A.)] at para 30.)
2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.
3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.
4. Persistence in unremunerative employment may entitle the court to impute income.
5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.
6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.
[80] In P.L. v. J.D.L., 2013 BCSC 1492, Justice Fleming stated:
[21] The legal principles applicable to any application regarding child support and cancellation or reduction of child support arrears were discussed by Madam Justice Martinson in Earle v. Earle, 1999 BCSC 283 (“Earle”). With respect to child support generally, those principles are: parents have a joint and ongoing legal obligation to support their children; it is the child, not the parent, who has the right to support; and the payment of child support is based on the ability of the parent to pay, not only what the parent earns. The result of this last principle is that parents have a legal obligation to earn as much as they are reasonably capable of earning to meet their obligation to support their children (Earle and G.(S.) v. W.(G.), 2006 BCSC 991).
[22] With respect to variation applications, the applicant must establish a material change of circumstances since the original order was made. The change must be significant and long lasting. A change to the Guidelines amount is not automatic: Earle.
[23] The cancellation or reduction of arrears is a form of variation. Madam Justice Martinson in Earle found the test under the Family Relations Act, R.S.B.C. 1996, c. 128, which required that arrears not be reduced or cancelled unless it would be grossly unfair not to do so, is similar to the one to be applied under the Divorce Act. The "grossly unfair test" has been found appropriate for consideration on a variation application under the Divorce Act: S.A.R. v. L.G.R., 2011 BCSC 712, at para. 45; and Lewis v. Lewis, [1999] B.C.J. No. 2537 (S.C), at para. 16.
[24] In Earle, Madam Justice Martinson clarified there is a heavy onus on those arguing they cannot pay because their financial circumstances have changed. Arrears will only be cancelled or reduced where detailed and full financial disclosure under oath is presented that shows:
i. the change was significant and long lasting;
ii. the change was real and not one of choice; and
iii. every effort was made to earn money (or more money) during the time in question, and those efforts were not successful.
[81] I am not satisfied that the father has taken a planned, committed, and pragmatic approach to finding work. He has the intelligence, skills, and reputation to be employed. With the father’s own testimony of expressed interest by Mr. R.’s employer (including at the time of trial), I cannot accept that the father cannot readily find employment. At $50 per hour on a 37.5 hour work week, his annual income would be approximately $97,500. His average annual income from 2013 to 2015 was approximately $93,000. As suggested by counsel for the mother, I will impute annual income of $92,000.
[82] The father alluded to the need to be present for the children, and the mother’s family claim, as justifying his unemployment. In his cross-examination of the mother, the father also suggested that he lost a job as a result of her actions. His suggestion was wholly unfounded. The father, in turn, sought child support based on nominal Guideline income. His assertions and claims are untenable.
[83] I will order retroactive child support from September 2015, the month in which the parties started to live in separate residences. The retroactive child support will be calculated using the parties’ respective Guidelines incomes with credit for amounts paid (in this regard, I understand the father has paid $398 per month on a without prejudice basis since September 2015 except for one month in which he paid $678).
[84] The share of past s. 7 expenses will similarly be calculated. The past s. 7 expenses from September 2015 to April 2018 total $23,146.68. The father has paid $7,055 towards these expenses. If there are accounting issues, including the determination of the mother’s Guideline income, these may be addressed by the Registrar (a pre-hearing conference should be set in advance of a Registrar’s hearing).
[85] Mr. Bobb’s draft order regarding future child support is at Schedule “D”. I have reviewed the draft provisions and will adopt them with three comments.
[86] First, the father obtaining employment will not be a material change in circumstances. The draft order contemplates the possibility of an annual review. Second, I will also change the dates in paragraph 7(a) and (b) to June 1 and July 1 respectively in order that income tax information may be considered as part of any review. Third, for the next three years, the father’s annual income will be imputed to be $92,000 unless his actual annual income exceeds $92,000, in which case, his actual income will be used to determine his Guideline income. After three years, child support may be reviewed in conjunction with parenting arrangements.
[87] During oral submissions, the division of property was resolved as follows:
|
Property |
Held By |
Trial Value |
Value at Separation |
Disposition |
|
$50,000 held in trust by counsel for the mother
|
Mother |
$50,000 |
$50,000 |
Mother |
|
$50,000 held in trust by counsel or the father
|
Father |
$50,000 |
$50,000 |
Father |
|
2010 Subaru Forester
|
Mother |
$11,400 |
$13,841 |
Mother |
|
2008 Toyota Prius
|
Father |
$6,625 |
$9,611 |
Father |
|
Early 2000s Alpine Chalet A frame camping trailer |
Father |
$5,000 |
$8,500 |
Sell and divide profit equally unless otherwise agreed in writing within 60 days of the court’s reasons
|
|
1990 Dodge Dakota Pick-up Truck
|
Father |
$800 |
$800 |
Father |
|
Ford Falcon 1988
|
Father |
$500 |
$500 |
Father |
|
Employment Pension Plan during entitlement period |
Mother |
N/A |
Part 6, FLA |
Division based on Part 6 and entitlement period (May 2002 to August 1, 2015)
|
|
Employment Pension Plan during entitlement period
|
Father |
N/A |
Part 6, FLA |
Division based on Part 6 and entitlement period |
|
Canada Pension Plan during entitlement period |
Mother |
N/A |
CPP Act
|
Division based on CPP Act and entitlement period (May 2002 to August 1, 2015)
|
|
Canada Pension Plan during entitlement period
|
Father |
N/A |
CPP Act
|
Division based on CPP Act and entitlement period |
|
VanCity RRSP |
Mother |
$1,136.53 |
Assume no change |
Equalization of values as at the date of separation
|
|
RBC RRSP (USD) |
Father |
n/a |
$50,469.56 USD |
Equalization of values as at the date of separation
|
|
RRSP (1c) |
|
|
$4,240.99 |
|
[88] With respect to RRSP transfers, the parties will make best reasonable efforts to ensure that transfers occur on a tax “rollover” basis.
[89] The $50,000 (plus any interest) held in trust for each party will be first used to pay any outstanding child support, including s. 7 expenses, and any net amount owing from property division. Any remaining balance should be held in trust pending the resolution of the costs for these proceedings.
[90] I ask Mr. Bobb to prepare a draft form of order to reflect these reasons, as soon as reasonably convenient for him. I ask that he then email the draft to the father for his comment or approval. If there is no response within seven days, Mr. Bobb may send his form of order to me through Supreme Court Scheduling for my approval.
[91] The parties may address costs by arranging through Supreme Court Scheduling within 60 days, a 55-minute 9 a.m. hearing before me.
Schedule “A”
Parental Responsibilities
1. Pursuant to s. 41 of the FLA, the mother shall be allocated and shall exercise the following parental responsibilities:
a. making decisions respecting the child’s education and participation in extracurricular activities, including the nature, extent and location;
b. making decisions respecting the child’s cultural, linguistic, religious and spiritual upbringing and heritage;
c. subject to s. 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;
d. applying for a passport, licence, permit, benefit, privilege or other thing for the child;
e. giving, refusing or withdrawing consent for the child, if consent is required;
f. receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;
g. making decisions respecting with whom the children will live and associate;
h. subject to any applicable provincial legislation:
i. starting, defending, compromising or settling any proceeding relating to the child, and
ii. identifying, advancing and protecting the child's legal and financial interests,
i. where there is a dispute with respect to holiday parenting time;
2. The mother will first consult with the father with respect to those matters set out in the preceding paragraph and will seek his input which, after this, the mother will be at liberty to make a decision and inform the father of her decision within 14 days through Our Family Wizard. The decision will be final. This is subject to the right of the father to apply, in summary fashion, before the Trial Judge, to review a decision made by the mother with which the father disagrees;
3. Each parent is entitled to receive any notice that a guardian or parent is entitled or required by law to receive;
4. Each parent may request, and is entitled, to receive from teachers, doctors and other third parties, health, medical, education, or other information respecting the children;
5. The parent with whom the children are having parenting time shall exercise the parental responsibility of making day-to-day decisions affecting the children and shall have care, control and supervision of the children during that time set out in in this order subject to the terms of this order (i.e. children are to be taken to their activities); and
6. Upon the expiry of one year from the date of this order, the father is at liberty to apply before the trial judge, for an order restoring to him an equal allocation of all the parental responsibilities under §41 of the FLA that are otherwise allocated to the mother.
Regular Parenting Time Schedule for the Children
1. The children shall have parenting time with the mother whereby their primary residence shall be with the mother which includes all time that the children are not otherwise scheduled to be with their father.
2. The children shall have parenting time with the father as follows;
a. commencing on , and every other week thereafter, the children shall be with the father from Friday after school to drop off Monday at school;
b. if the weekend of parenting time falls on a professional day or holiday on either a Friday or Monday (subject to the holiday schedule), the parenting time with the father shall include those days. If a Friday, pick up shall be at 09:00 am and if a Monday, drop shall be 07:00 pm;
c. each week, on Tuesday from after school to drop off at school on Wednesday; and
d. if the children have an activity during the father’s parenting time, he shall take the children unless there are extenuating circumstances such as illness or an emergency.
(hereinafter referred to as the “Regular Schedule”)
Transition of the Children Between Parents
3. Neither parent will attend the home of the other parent except for the purpose of dropping off the children. Pick up and drop off shall be conducted by the mother and shall occur at the father’s home.
4. The children will be permitted to take any personal item, gift or article of clothing between the parents’ homes and each parent will encourage them to do so.
5. Each parent will ensure that any clothing, equipment or other item related to an activity of a child shall accompany the child to the other parent's home if there is a scheduled activity during the time that a child is with the other parent and the item is needed for that activity.
6. Each parent will ensure that clothing is shared and neither will fail or refuse to return clothing that was otherwise purchased by the other parent.
Holiday Schedule
7. The holiday schedule is in addition to the Regular Schedule above, and overrides the Regular Schedule unless otherwise specified in this order.
8. The time for the exchange of the children if not otherwise stated in this order is 9:00 am.
Spring Break
9. Spring break is defined as the last day after school ends to the last day before school recommences. In odd number years, the mother will have the first choice of which half of spring break she wants and in even numbered years the father will have first choice. The party with the first choice must advise the other party not later than 15th February of each year.
Easter Weekend
10. The children shall be with the mother on the Easter weekend from after school to drop off at school, or alternatively, the children shall alternate with each parent whereby they shall be with the mother odd years and the father even years:
Mother’s Day Weekend
11. If the children are not otherwise with the mother on Mother's day weekend, the children will be with the mother on Mother's day weekend, from Saturday at 7:00 pm until their return to school on Monday.
Father’s Day
12. If the children are not otherwise with the father on Father's day weekend, the children will be with the father on Father's Day weekend, from Saturday at 07:00 pm until their return to school on Monday;
13. The summer vacation will be shared equally. The parents will share special dates that they would like to have the children during the summer by March 31st of each year. The schedule will be rotating weeks with the mother starting the summer at school end on even numbered years and the father on odd numbered years; where the dates can be altered to include children activities including vacation plans with friends, and family. In making plans, each party, will take into account the children's activities and family events. The summer schedule shall be finalized by May 1, 2018 and if no agreement, the mother will have the final say.
Additional Vacation During Non-Summer Time
14. Each parent may take the children on a vacation for a period of up to 2 weeks per year provided that:
a. the terms with respect to travel set out in this order are followed,
b. the proposed vacation is not in during the children's summer holidays and does not interfere with the other parent's holiday schedule with the children, and
c. the parent intending to travel will provide the other parent with the details of the trip 60 days prior to the departure date.
Thanksgiving Weekend
15. The children will be with the mother on Thanksgiving weekend in odd-numbered years and with the father in even-numbered years, from their leaving school on the Friday before Thanksgiving until their return to childcare or school on the following Tuesday;
Halloween
16. The children will be with the mother for Halloween in even‑numbered years and with the father in odd‑numbered years, from their leaving school until drop off the following day at school. The party who has the children for Halloween will be responsible for the children's costumes including both obtaining costumes and the cost.
Christmas Break
17. The parties will share equally the children's school Christmas break. The children will be with the father for the first half of the Christmas break in odd‑numbered years and the last half of the Christmas break in even‑numbered years, and with mother for the first half of the Christmas break in even‑numbered years and the last half of the Christmas Break in odd numbered years. The first half will start after school on the children's last day of school in December and end at 12:00 p.m. on the date that is the half way point of the Christmas break. The second half will start at 12:00 p.m. on the date that is the half way point of the Christmas break and end on the morning the children return to school in January. The children shall be with the mother Christmas Eve at 12:00 p.m. to Christmas day at 12 p.m. regardless of the Christmas break schedule. The parties are at liberty to agree to any changes in particular years as they may choose, but such changes must be evidenced in writing on the Our Family Wizard website.
18. The parent that does not have parenting time on a child's birthday shall be permitted by the other parent to have a telephone call with the child on their birthday.
Communication
1. Neither parent will:
a. Speak in a disparaging or negative manner about the other parent, nor allow others to do so in the presence of a child;
b. Ask a child to keep secrets from the other parent;
c. blame the other parent in front of a child;
d. argue with the other parent or make disparaging or negative remarks to the other parent at any time when the children are present or the parents are in sight of a child;
e. discuss with a child, or with another person, in the presence of a child, present or past legal proceedings or issues between the parents related to present or past legal proceedings, including:
i. financial issues of any kind relating to the parents or a child, or
ii. conflicts between the parents relating to parenting issues;
f. show a child communications between the parents;
g. rely on a child to transport documents or carry messages between the parents;
h. record or photograph the other parent without permission.
2. Each parent will facilitate any telephone call that a child wishes to initiate to the other parent.
3. Except for emergency situations, the parents shall communicate with each other and exchange information through the co-parenting portal called “Our Family Wizard” only, for which the parties will register within seven calendar days at a equally shared cost.
4. The parents’ communication with each other shall be restricted to matters related to the children which may include the exchange of information regarding the children’s care, development, scheduled activities , parenting schedules, and appointments (medical and otherwise).
5. The parents will share all documents pertaining to either child by scanning the document and then sending it promptly to the other parent through Our Family Wizard unless the original is required, which shall be delivered, with the written consent of the other parent, the other parent’s home.
6. Each parent will respond to a request or inquiry from the other parent within 48 hours unless the communication is marked “Urgent” (in the case of emergencies) or “Time Sensitive” (in the case of non-emergency matters requiring a reply within a specified time frame).
7. In the event of an emergency related to a child, the parents will communication by telephone with a follow-up text or email marked “Urgent-Please Call” and the telephone call shall be factual and communicate the essential information to allow the parents to assess and respond to the emergency as appropriate.
8. In the event of a time sensitive communication requiring a reply within a specified time frame, it shall be communicated through Our Family Wizard and marked “Time Sensitive - Response Needed” whereby the recipient parent will acknowledge receipt of the message and respond within the time frame specified or provide a reason why he or she cannot respond within the time frame specified.
Child Support
1. For the purposes of determining child support in accordance with the Federal Child Support Guidelines (the “Guidelines”):
a. The claimant’s Guideline income is $88,274 and will be used for determining the claimant’s proportionate share of special or extraordinary expenses as defined in this order; and
b. The respondent’s imputed Guideline income is $92,000 and will be used for determining the respondent’s proportionate share of the special or extraordinary expenses as defined in this order and table child support.
2. The respondent shall pay $1,415.00 per month to the claimant for the support of the children payable on the 1st of each and every month commencing on until the children are no longer “children” as defined by the FLA.
3. The parties shall pay the special or extraordinary expenses of the children, as determined in accordance with the Guidelines and this order from time to time, in proportion to their respecting Guidelines incomes. As of the date of this order, the claimant’s proportionate share of the special expenses is and the respondent’s proportionate share is .
4. “Special or Extraordinary expenses” under s. 7 of the Guidelines (“Special Expenses”) are defined as:
a. child care expenses;
b. medical and dental expenses, including necessary orthodontic expenses not covered by insurance;
c. extraordinary expenses for primary and secondary school education and other education programs that meet the child's particular needs; including school expenses, tutoring, school trips, and other school-related events;
d. expenses for post-secondary education after taking into consideration any available RESP funds which funds will be applied against the proportionate share of the parent who contributed those RESP funds; and
e. extraordinary expenses for extracurricular activities. The following activities that will qualify as special or extraordinary expenses:
i. For [A]
Dance
Synchronized swimming
Girl Guides
Summer camp
ii. For [L]
Hockey
Martial arts
Gymnastics
Summer camp
f. Such other activities that must be communicated and agreed to in advance.
5. For so long as a child is entitled to receive support the parties will each name the child under any medical, extended medical, or dental insurance schemes as are available through his or her employment and will maintain such medical and dental insurance in good standing for the benefit of the child for so long as they qualify for same.
6. The parties will pay their respective proportionate shares of the Special Expenses on a monthly basis. Receipts or proof of expense shall be uploaded to Our Family Wizard.
7. The child support is reviewable as follows:
a. not earlier than May 1st every year, with the first review being May 1, 2019, the parties may review the child support on the request of either party, and, if necessary, adjust it to ensure that it accords with the requirements of the Guidelines;
b. Any adjustment will commence on June 1st of the review year and shall not apply retroactively; or
c. If there is a material change in circumstances including if, and when, the respondent obtains employment.