IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
M.Y.T.C. v. L.H.N., |
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2018 BCSC 1174 |
Date: 20180713
Docket: E172700
Registry: Vancouver
Between:
M.Y.T.C
Claimant
And
L.H.N
Respondent
Before: The Honourable Madam Justice Forth
Reasons for Judgment
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Counsel for the Claimant: |
P.P. Paul |
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Counsel for the Respondent: |
M. Guy |
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Place and Date of Hearing: |
Vancouver, B.C. May 11, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. July 13, 2018 |
[1] These reasons for judgment address the issues argued at the hearing of May 11, 2018 (the “Hearing”), during which the claimant made submissions with respect to three applications.
[2] The first application dated October 19, 2017, and filed October 20, 2017 (the “October Application”), sought a variety of relief. At the Hearing, the claimant sought the following relief:
a. exclusive occupation of the family residence located on Lime Street, Vancouver, B.C. (the ”Family Residence”) (item 6);
b. a parenting plan for the child of the marriage (item 7);
c. that the respondent facilitate the child to attend family reconciliation counselling with a registered psychologist (item 8); and
d. spousal support (item 10).
[3] The second application, dated and filed on November 29, 2017 (the “November Application”), sought a variety of relief. At the Hearing, the claimant sought the following relief:
e. parenting time with the child after school and with an exchange location (items 1-3); and
f. the parties and child attend the Re-unification and Co-Parenting in High Conflict (“REACH”) program, the terms of the program, the report to the court by the REACH designate member, and the payment of expenses relating to the REACH program (items 7-10).
[4] The third application, dated April 12, 2018 and filed April 13, 2018 (the “April Application”), sought a variety of relief. At the Hearing, the claimant sought the following relief:
g. the respondent be found in contempt of court for wilfully disobeying the order of Mr. Justice N. Smith made March 5, 2018 (item 1);
h. the respondent be found in contempt of court for wilfully disobeying the order of Master Taylor made December 12, 2017 (item 2);
i. the respondent be found in contempt of court for wilfully disobeying the order of Master Taylor made on October 20, 2017 (item 3); and
j. the Family Residence be listed for sale and sold (item 4).
[5] The claimant also requested that a judge be seized with this proceeding.
[6] The issues are:
a. Should there be an order made for exclusive occupation of the Family Residence to the claimant?
b. Should there be an order made for the sale of the Family Residence? If so, on what terms?
c. What parenting orders should be made? Should there be an order compelling the parties and child to attend the REACH program or an equivalent program?
d. Should there be an order for spousal support, and, if so, in what amount and from what date?
e. Should there be contempt orders made against the respondent?
f. Should I seize myself of this proceeding?
[7] The parties were married on August 15, 1998. They separated on August 5, 2017.
[8] There is one child of the marriage, born in April 2003. He is currently 15 years old and has just completed Grade 10.
[9] The claimant was born in February 1971 in Taiwan and is currently 47 years old. She came to Canada in 1986. She works as a part-time piano teacher and a part-time college instructor. She has been on stress leave from her college position since September 2017. Up until March 2018, she was receiving sick days from the college. She has applied for and is expecting to receive short-term disability benefits from the disability insurer.
[10] The respondent was born in September 1968 in Vancouver and is currently 49 years old. He is a dentist. He operates his own dental practice. He continues to work as a dentist but at a reduced capacity.
[11] The notice of family claim was filed on October 16, 2017.
[12] The claimant has filed three applications seeking a total of 43 orders. In support she has filed 17 affidavits. In turn the respondent has filed seven affidavits. On the morning of the Hearing, the respondent filed his sixth affidavit which consisted of 168 paragraphs.
[13] There have been six orders already granted with respect to this family dispute. A summary of those orders are as follows:
a. Ex parte order of Master Taylor dated October 20, 2017 that included a restraining order against the respondent (granting the relief sought in items 1-5 of the October Application with a slight amendment to item 5) (the “October Order”).
b. Order of Master Taylor dated December 12, 2017 that included orders for a Views of the Child Report and conduct orders, the respondent to return the $500,000 which he took from the parties’ joint Scotiabank line of credit, the respondent to deposit the sum of $30,000 into his lawyer’s trust account, the respondent serve his Form F8 Financial Statement with all required attachments on or before January 24, 2018, and for Master Taylor to be seized of this file as it pertains to parenting issues (the “December Order”).
c. Consent order of Master Taylor dated January 17, 2018 changing the name of the psychologist to prepare the Views of the Child Report.
d. Order of Master Taylor dated February 28, 2018 that he is no longer seized of this file as it relates to parenting issues.
e. Order of Mr. Justice N. Smith dated March 5, 2018 that included that the respondent be guilty of contempt of court for his wilful disobedience in failing to comply with paragraphs no. 10 and 13 of the December Order; that, the contempt be purged by the respondent filing his Form 8 Financial Statement within seven days of this order and paying all costs incurred by the claimant in obtaining bank records directly from the banks; that the respondent is not in contempt for failing to return the $500,000, but he is to swear an affidavit explaining in detail what happened to the money and supported by documentary evidence within seven days; that the respondent pay forthwith a $5,000 fine to the claimant for failing to produce his Form 8 Financial Statement; and for production of records from various banks (the “March Order”).
f. Order of Mr. Justice Branch dated May 4, 2018 that dismissed the respondent’s application to adjourn these applications on the term that counsel for the claimant provide copies of the order and affidavits, and that the report of Dr. Elterman critiquing the Views of the Child Report will not be relied upon (the “May Order”).
[14] A trial of ten days is set for February 2019.
[15] The test for granting exclusive occupation of a family residence is set out in s. 90 of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. The claimant must show that the shared use of the Family Residence is a practical impossibility and that the claimant is the preferred occupant of the home on a balance of convenience: Bateman v. Bateman, 2013 BCSC 2026 at para. 44.
[16] It is clear from the affidavits that these parties cannot live together.
[17] The second prong of the test is whether the claimant has demonstrated that the balance of convenience favors her exclusive occupation of the Family Residence. In my view she has met that test.
[18] The respondent and child left the Family Residence on September 27, 2017. They are currently living at the respondent’s mother’s home in East Vancouver. The respondent claims that he is supposed to pay his mother rent but concedes he is paying none. The claimant is residing at the Family Residence. She has been on stress leave from college position since September 2017. The medical evidence filed by the claimant from Dr. Hatlelid, dated April 15, 2018, supports that this doctor’s opinion was that the claimant was suffering from a Major affective disorder – depression, anxiety disorder and insomnia.
[19] Dr. Hatelid records that the claimant continues to suffer from significant stress and anxiety.
[20] The claimant uses the Family Residence for her piano teaching business.
[21] The respondent submits two bases for why he should have exclusive occupation of the Family Residence until it is sold:
1. he and the child were essentially “homeless” in that they were having to sleep on air mattresses at his mother’s home; and
2. the child should be entitled to return to the Family Residence to say “goodbye” to his home before it is sold.
[22] There is no merit in either basis. The respondent and child have a place to live while waiting for the Family Residence to sell. If the child wants to return to the Family Residence to stay or visit, nothing prevents him from doing so. The claimant would welcome him back.
[23] The balance of convenience favors that the claimant remain in exclusive occupation pending the sale of the Family Residence.
[24] The parties agree that the Family Residence should be sold. The parties could not agree on a joint conduct of sale. The claimant agreed but the respondent did not. He submitted that he should have sole conduct of sale although provided no substantive reasons to support such a request.
[25] The Family Residence will be listed for sale. The parties will have joint conduct of sale. If the parties cannot agree to a relator within 14 days from the date of these reasons, then each party will appoint their own listing agent.
[26] The proceeds of sale of the Family Residence will be used as follows:
a) to pay any mortgage(s);
b) to pay other encumbrances registered against the title;
c) to pay real estate commission; and
d) to pay usual closing costs.
[27] The net proceeds of the sale of the Family Residence are to be held in trust in the claimant’s lawyer’s trust account until further agreement or court order.
[28] The court must determine parenting arrangements solely on the best interests of the child. Section 37 of the FLA frames the circumstances that a judge should consider in assessing the bests interests of the child:
37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(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.
(3) An agreement or 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.
(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.
[29] The views of the child should be considered, and in this case they are a significant factor.
[30] Canada has ratified the United Nations Conventions on the Rights of the Child, CAN. T.S. 1992, NO. 3. Article 12 imposes an obligation to ensure that children are afforded the opportunity to be heard in any judicial proceeding affecting them. These obligations were discussed in B.J.G. v. D.L.G., 2010 YKSC 44, a decision that has been cited with approval in a number of British Columbia Supreme Court decisions.
[31] The weight given to a child’s views should be in accordance with their age and maturity. If a child is forming a view in a reasonable and independent manner, then the views must be considered as a significant factor in family cases.
[32] The claimant’s affidavit and application for an order that the parties and child attend the REACH program is premised on the assertion that this is a case of parental alienation. I agree with the following comment made by Mr. Justice Affleck in K.L.S. v. K.M.S., 2017 BCSC 1315 at para. 12:
[12] On this application I make no findings concerning the parental “alienation” Dr. Eirikson describes. I am not requested to make such findings by the respondent. This is an instance of complete estrangement but not “alienation” between a mother and her now 16 year old daughter. “Alienation” is a word used in family law to refer to deliberate efforts by one parent to alienate a child from the other parent. I would not be prepared to consider addressing that question without a trial. Dr. Eirikson’s emphasis on alleged alienation greatly limits the value of his report on this application. I agree, however, that an order compelling J.S. to resume a relationship with her mother would be, to use Dr. Eirikson’s phrase, “a recipe for getting nowhere”.
[33] In this case there is no expert evidence that supports a claim for alienation.
[34] In this case it is appropriate that the child’s views be considered. To date, the views of the child are contained in the following documents:
a. Letter of Claire Sutton dated November 6, 2017;
b. Affidavit of the child sworn December 5, 2017; and
c. Views of the Child Report by Dr. Laura Mills dated March 17, 2018 (the “Views of the Child Report”).
[35] I will deal with each of these documents.
[36] The claimant arranged to take the child to Ms. Sutton, a registered clinical counsellor, on September 22, 2017. She did not advise the respondent that she was taking the child to see a psychologist. Ms. Sutton saw the child for 25 minutes on his own and 15 minutes with the claimant present.
[37] Ms. Sutton prepared a letter dated November 6, 2017 addressed to the claimant’s lawyer in which she stated:
[The child] wanted the following:
1) A schedule that clearly outlined when Dad picked him up and when Mom picked him up including the nights he spent with which parent;
2) Parents would attend alternate music performances;
3) That Mom accept the fact that [the child] is attending [the new school];
4) That Mom & Dad stop arguing in front of him;
5) That [the child] engage in physical activity such as basketball which he likes to do at the [club] which he is a member;
6) That when with [his mother] – they relax while watching a movie together with popcorn.
[38] Ms. Sutton recommended the following:
In my professional opinion, my recommendations are as follows:
1) That [the child] sees a counsellor on a weekly basis. This counsellor should be skilled in dealing with adolescents as well as separation and divorce.
2) That a parenting schedule is set up immediately including the schedule for the Christmas holiday break.
3) That [the father] be assigned a Divorce Coach.
4) In the best interests of [the child], that both [the father] and [the mother] work with the same family therapist (individually at first) that will help them parent responsibly given the separate households.
5) And, if [the father] refuses to engage in the recommendations outlined above, I would recommend that he be psychologically assessed (section 211) to determine if he is a fit parent with the best interests of his son at the top of his priority.
[39] The respondent deposed that one week prior to the hearing scheduled for December 12, 2017, the child told him that he wanted to give a statement to the court. The respondent arranged to take the child to a notary public to swear an affidavit. The respondent decided not to rely on this affidavit for the December 12, 2017 hearing but attached it to his affidavit #2 as an exhibit.
[40] In this affidavit the child states as follow:
[1] I want to stay with my dad. I want my living arrangement to stay the same as it is now staying with my dad. I am comfortable, relaxed, and not stressed when I am living with my dad.
[2] I do not want to see or be with my mom. My mom lies, forces and pressures me to do things that I do not want to do and things that benefits herself….
…
[12] In the early part of August when I was doing math, my mom started crying in front of me and told me that my dad was having an affair. She also told me there may be other children and he will not love me anymore or have time for me…
…
[17] She coerced me to go see psychologist Claire Sutton and she told me it would help me. She said every boy needs a mom and dad and to tell her that I want to see my mom equal to my dad. I did not want to go and I wanted to run away from Claire’s office, but my mom would say it would help me if I did this.
…
[19] Now that I am away from my mom I am relieved, not stressed and happy now.
[41] The claimant admits that she told her son that his father was having an affair and she admits that the respondent was not having an affair and her suspicions were unfounded.
[42] Dr. Laura Mills is a registered child psychologist, who has expertise in the assessment and treatment of children and their families. She has prepared in excess of 100 reports regarding children’s mental health. The Views of the Child Report was based on interviews with each parent and the child. Dr. Mills notes that the child presented as “bright, thoughtful and articulate in expressing his thoughts, feelings and experiences.”
[43] Of significance is:
[The child] noted he didn’t want to come to see me because he knew his mother had already spoken to me and he felt she likes to give a false impression. He added that his dad has tried to keep him away from his problems but he felt his mother has tried to use him to make herself look better and his dad look bad.
…
[The child] claimed that his mother pretended that his dad hurt her and she recorded this. Then she would cry. [The child] recalled that he would see his mother recording saying “stop hurting me” but his dad was not doing this or near her.
…
[The child] noted she [the mother] told him that his father had an affair and had other children. [The child] claimed he has determined that this was not true.
…
When asked about the future, [the child] noted that right now he did not want any contact with his mother until after the divorce is done. He felt this way because he felt she kept trying to put him in the middle. He noted he was concerned she would put him in the middle of the situation where she would say bad things about his dad. [The child] noted he didn’t want to hear anything about the separation. He noted his mother sent [the child] an e mail to say she was sorry but [the child] noted he just didn’t want to be part of it. He added that until it is over, he wants to be out of the process.
…
[The child] noted that now he doesn’t want to see his mother but it will depend on how it ends. He added he was worried that he may have to see her but he didn’t want to if it was “50-50”. He claimed he just wouldn’t go. He didn’t want to live with her but maybe once in a while he would see her but he was not sure if he wanted to.
[The child] …wrote: “Please tell the judge for me:
1. I don’t want to see my mom and I don’t want her or her friends that she lied to contact me.
2. I don’t want my mom or people she told lies to harass me at school or at my activities – Please tell the judge to make her stop.
3. I want my mom to fix the lies she told others because that has hurt my relationships with my friends-Please tell the judge to fix her lies (like write a correction letter to those she lied to).
[The child] was asked to express his concerns directly in a letter to his mother. He was reluctant but then agreed. He wrote the following letter in our session:
“Dear Mom, I am writing this to tell you how I really feel. I have tried to tell you countless times but you just ignore me. I do not want to see you or have contact with you or your friends that you have lied to. I do not want you or your friends to come to my school or my other activities and harass me. I want you to fix the relationships that you have hurt by writing a letter to the people you lied to. Even though I am handwriting this, I have zero faith that you will do any of this. And if you do, I still will not want to see or contact you.”
[44] The child reported that his mother had told people about his father. He further reported an incident when his mother attended a youth orchestra rehearsal with a friend. His mother was at one entrance and the friend at the other. The friend attempted to grab him when he tried to run away.
[45] In the Youth Self Report questionnaire the child provided the following significant answers:
I would be really happy if …… “my mother would leave me alone”;
I sure wish my dad would …“understand me better” (teenage things);
I sure wish my mother would… “leave me alone”;
If I could have three wishes come true, I’d like…“to be successful in the future, my mother to go away, to be happy”.
[46] Dr. Mills opined that:
[The child] has expressed the view that he does not want to have contact with his mother at this time. His reasons appear to be related to his experiences where he felt his mother has done things that placed him in the middle of the martial conflict. He has indicated he has felt his mother has said and done things that left him feeling he was used as part of the conflict between his parents. He has indicated he does not want to be part of the conflict between his parents…
…
[The child] has expressed the view that he could not begin to consider contact with his mother until he felt confident that his parents have settled their marital separation issues. Otherwise, he appeared to feel he was worried he could be drawn into the conflict.
[47] Dr. Mills concludes with:
However, it is hoped that over time, if [the child] can see that his parents can work together for the benefit of his development and normal adolescent needs, then he may be encouraged to initiate contact with his mother and resume some relationship. Until that time, it is likely, based on [the child’s] claims about his feelings and experience, that if [the mother] was to initiate the contact with [the child], he would only retreat into the hurt, angry and distrustful feelings that he expressed in the current report.
[48] During submissions, an issue arose regarding the appropriate use of social science articles contained in the claimant’s book of authorities. These articles were:
a. Summary – Parental Alienation (key points from the cases and articles);
b. John-Paul Boyd, “Alienated Children in Family Law Disputes in British Columbia” (July 2015), Canadian Research Institute for Law and the Family; and
c. Michael F. Elterman, Views of the Child Reports (2018) [unpublished].
[49] The claimant has obtained another report by Dr. Elterman that critiques the Views of the Child Report, but in accordance with the May Order, it has not been relied upon.
[50] The respondent’s counsel objected to the admissibility of these types of articles on the basis that their inclusion as evidence would result in the admission of opinion evidence without the need to qualify or hear cross-examination of the expert: see generally Walker v. Maxwell, 2014 BCSC 2357 at para. 77 [Walker]. I must determine whether it is appropriate to rely on such material on the applications before me.
[51] Although evidence in family law cases is subject to the same rules as other areas of civil law, there is precedent for the admissibility of academic articles when addressing post-separation parenting in the context of the best interests of the child. For example, in Young v. Young, [1993] 4 S.C.R. 3, the court considered or referenced several academic articles, including many that addressed post-separation parenting in the context of the best interests of the children, while questioning a legal doctrine.
[52] In Warcop v. Warcop, 2009 CanLII 6423 (ONSC), the court was asked to consider an article written on child development. The court “raised some concern that [this article] could result in the admission of opinion evidence without the need to qualify the expert, or hear cross-examination of the expert”; however, counsel agreed that the court could consider this article, see para. 45. The court commented at para. 47:
It would appear, in any event, that in family law matters, court are more willing to take into account social science literature, without the need for formal proof: see Young v. Young, [1993] 4 S.C.R. 3.
[53] In Willick v. Willick, [1994] 3 S.C.R. 670, L’Heureux Dubé J., at para. 16 of the concurring reasons, wrote that “social science research and socio-economic data are long-standing tools in both Canada and United States.”
[54] Despite the ability to admit these types of materials, the majority of the content in the specific articles does not withstand the threshold for admission. I am mindful of my gatekeeping role in admitting expert evidence, that the evidence be relevant, necessary and reliable: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 54; J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308 at para. 271. Ultimately, I am not satisfied that the potential probative value of these articles outweighs their risks.
[55] First, I note that the “Parental Alienation” summary is not attributed to any author—it merely reads as a submission from the claimant, with two references to the article of John-Paul Boyd. The material has no hallmarks of reliability.
[56] Second, although the article of John-Paul Boyd is more academically rigorous than the summary, I find most of the portions emphasized by counsel unnecessary in the circumstances. At the very most, I am open to considering pages 21–26, “Assessing Allegations of Alienation”. However, as I will discuss below, the evidence before me does not support a finding of alienation at this point, and therefore there are no subsequent issues for which pages 27–61 of the article will assist the court.
[57] Lastly, I have several misgivings about the article of Dr. Elterman, in which he discusses the pitfalls and possible uses of Views of the Child Reports in general. Dr. Elterman offers several critiques, including the risk that Views of the Child Reports will replace the best interests of the child, and that if there is evidence of alienation, the reports should be given less weight. Dr. Elterman’s opinion does not assist this Court. I note that pursuant to s. 37 of the FLA, the court must consider all of the child’s needs and circumstances—the child’s views are but one of several factors, which include among other things the history of the child’s care and the nature and strength of the child’s relationships with significant persons. The court is already mindful of the correct legal test to apply. Furthermore (and, again, as I will discuss below), the evidence does not support a finding of alienation.
[58] The Court of Appeal made the following comments on cases involving allegations of alienation in Williamson v. Williamson, 2016 BCCA 87, a case involving an order made for four children to attend at the Family Reflections Reunification Program (“FRRP”) at paras. 39-49:
[39] Some case authorities disclose that the issue of parental alienation is a controversial area in family law. This controversy is not before us and we are not resolving it. Parental alienation is a term that has been used in the context of divorce and separation cases to describe a breakdown in the relationship between a child and one of the separated parents. Some courts have said that alienation can occur as an unfortunate side-effect of the breakdown of a relationship, but can also occur because of deliberate actions, both direct and indirect, on the part of a parent: L.G. v. R.G., 2012 BCSC 1365 at paras. 1-2. Courts have said parents may engage in alienating behaviour without successfully alienating the child from the other parent: L.G. at para. 206.
[40] In D.S.W. v. D.A.W., 2012 BCSC 1522, Mr. Justice Barrow thoroughly discussed some of the concepts relating to parental alienation. At para. 64, Barrow J. stated that at the core of parental alienation is:
… the notion that the child's decision to refuse to have a relationship with the targeted parent is without justification or without convincing reason. If there is a reason given by the child for taking the extreme step of refusing to have a relationship with a parent, it will often be out of all proportion to the decision taken. The reasons for such decisions need to be assessed with the particular personality and experience of the child involved. What may seem a thin or unconvincing rationale for one child may have a much more convincing force in the context of the personality and experience of another child.
[41] Barrow J. also observed that parental alienation must be distinguished from estrangement: D.S.W. at para. 28. Courts have said that the difference between estrangement and alienation lies in the cause; estrangement occurs when the child understandably refuses contact with a parent because of that parent’s behaviour, and there is a logical and rational reason for the child’s rejection of the parent. In the case of alienation, it is said there is little or no objectively reasonable cause for the child’s rejection of the parent: N.R.G. v. G.R.G., 2015 BCSC 1062 at paras. 277-278
[42] If a court finds a parent ‘guilty’ of alienation, that finding does not pre-determine one particular remedy: L.G. at para. 220. Determining an appropriate response once a finding of alienation is made is an extremely important process since it can have an impact on both the short and long term well-being of the children involved: N.R.G. at para. 287.
[43] In N.R.G at para. 288, Mr. Justice Kent described what could be some of the legal responses to alienation, which are illustrative of the type of inquiry one would expect in the face of allegations of alienation:
· Detailed case management and parental conduct orders with cost consequences for non-compliance;
· Judicial exhortation urging compliance and emphasizing the emotional harm caused to the children (generally only effective in less severe cases of alienation);
· Court-ordered therapeutic intervention where appropriate, while recognizing “force-marching” a child to reunification may in some cases be unrealistic and harmful;
· Ordering supervised access/parenting time to allay any child anxiety and possibly pave the way for further strategies to achieve positive relationships;
· Suspension of child or spousal support as a sanction to enforce more engagement with the other parent;
· Transferring custody from the alienating parent to the rejected parent where expert testimony establishes the long-term benefits will outweigh any short-term emotional trauma to the child;
· Terminating access by/parenting time of the alienated parent when the alienation is so entrenched that the “cure is worse than the illness”, recognizing that children do sometimes resume a relationship with a rejected non-custodial parent after a long period without contact, albeit perhaps only in later years.
[44] Further, courts have considered that the age of the child appears to be relevant in determining the appropriate response to alienation. Once the child becomes a teenager, it appears that remedial options become increasingly limited: L.G. at para. 215.
[45] The only consideration in determining what particular remedy is appropriate in an individual case is the best interests of the child in accordance with the factors outlined in s. 37(2) of the FLA. It is important to consider the child’s best interest in both the short term and long term: A.A. v. S.N.A., 2007 BCCA 363 at para. 27.
[46] Here, the chambers judge made what amounts to draconian orders, changing custody, guardianship and parental rights to access to the children, and cutting off contact with one parent, the father, without finding him ‘guilty’ of alienation. In fact, the judge said he could not say which parent was ‘guilty’ of alienation. In my view, such a drastic order should never have been considered absent a finding of alienation on the part of the father, and absent careful consideration of alternative remedies besides the FRRP, which has been described as a “last resort” (M. v. M., 2015 BCSC 1297 at para. 153), “drastic” (N.R.G. at para. 322), and a “draconian remedy” (L.D.K. v. M.A.K., 2015 BCSC 226 at para. 106).
[47] Alienation is a serious allegation. In this case, its existence and its root cause were hotly disputed by the parties. Further, as described above, there is a range of mechanisms available to a court to address alienation. Some of these responses could have a long term impact on the child involved. Therefore, in a case such as this, alienation should be proved. Proposed responses should be supported with admissible expert evidence. In determining whether the particular evidence is admissible a court must follow the steps outlined in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 22-23. First, a court must examine the threshold admissibility of such evidence in accordance with the well-established factors in R. v. Mohan, [1994] 2 S.C.R. 9 (relevance, necessity, absence of an exclusionary rule and a properly qualified expert). Then, if the evidence meets the threshold requirements of admissibility, the court must exercise its gatekeeper function and balance the potential risks and benefits of admitting the evidence.
[48] Proof of such a serious allegation requires proper expert evidence to support a finding of alienation on the part of either party and to support that the FRRP was in the best interests of the children. The judge appeared to rely on the report of Mr. Finlay without considering his qualifications, that is, whether he was a properly qualified expert; or the necessity of his assessment given that Dr. Elterman, the court appointed expert, had already been ordered by Arnold-Bailey J. to update his s. 211 report.
[49] Dr. Reay’s affidavit simply describes her program in generic terms and elaborates on its apparent effectiveness in certain circumstances. It did not appear to have been proffered as expert evidence. I note that in some of the case authorities there has been criticism of the FRRP, such as the fact the deconditioning program appears to be a fairly recent program in Canada and it has not been independently peer reviewed. As well, there have been questions about the qualifications of Dr. Reay: see Luo v. Le, 2016 ONSC 202 at paras. 29-33, 42, and the cases cited therein; D.S.W. v. D.A.W., 2014 BCSC 514 at paras. 31-32. However, these issues are properly addressed by the trial courts when the issue arises.
[59] The Court of Appeal set aside the order requiring the children to attend the FRRP program.
[60] There is no expert opinion that this child has been alienated and that a program such as REACH is appropriate considering his age and views.
[61] It is not clear on the evidence in this case whether this child is estranged from his mother or on the spectrum of being alienated as a result of actions taken by the respondent, although there is much evidence to support there is a logical and rational reason for the child’s rejection of the claimant. As noted by Mr. Justice Kent in N.R.G. v. G.R.G., 2015 BCSC 1062 at paras. 277 and 278, there is a distinction between the two concepts:
[277] The difference between an estranged child and an alienated child lies in the cause; estrangement, sometimes referred to as “realistic estrangement”, is the label applied when the child understandably refuses contact with a parent because of the latter’s behaviour whether it be physical or emotional abuse, rigid or restrictive parenting, immature and self-centered behaviour, and/or dysfunctional conduct arising from the parent’s own psychological or psychiatric issues. In such circumstances, the child’s rejection of the parent may well be a reasonable and adaptive response to the estranged parent’s behaviour.
[278] An alienated child, on the other hand, is the label frequently applied when there is little or no objectively reasonable cause for the child’s rejection of the parent and particularly when it is the product of the other parent’s hostility and antipathy towards his/her former spouse and the intentional undermining by the former of the child’s relationship with the latter. While the undermining of the relationship can arise from direct or indirect behaviours, in its worst form the parental conduct is expressly designed to alienate the child from the other parent. Such conduct is pernicious and unpardonable.
[62] The main issue is that the child is refusing to see the claimant. She alleges that the respondent is responsible for cutting off all access to the child. She deposes that: “I believe that this is a case of parental alienation with the respondent purposefully alienating [the child] from me. I am sure that the respondent will claim that [the child] does not want to see me but those feelings and words would be words of the respondent and not those of [the child]”.
[63] The claimant deposes that until September 27, 2017, she had a loving relationship with her son. She relied on affidavits from friends that support that she had a good relationship with the child prior to the separation. The child has refused to see the claimant since September 27, 2017. Her last texted message was on October 3, 2017. The child has not answered her phone calls. She last saw him on November 18, 2017, when she attended at Vancouver Youth Symphony practice. The child ran away from her.
[64] Counsel for the claimant submits that programs like REACH can be used in alienation and estrangement cases. Her submission is that the court does not need to find alienation to make such an order. The purpose of the REACH program is to re-establish a relationship. The claimant is hopeful that with such a program she will be able to reconnect with her son and re-establish a relationship. She is fearful that without such a program her son will continue to refuse to see her.
[65] The claimant admits that she did accuse the respondent of having an affair and that the child overheard this. She denies saying the respondent had other children.
[66] The claimant’s position is that the Views of Child Report is simply a repeat of the child’s affidavit and that of the respondent’s position. She argues that the respondent was in full control of the child when this report was prepared. She submits that the child’s views and preferences were coached or influenced by the respondent.
[67] The respondent wants to let the child decide on if and when he sees the claimant.
[68] On December 5, 2017, the respondent arranged to take the child prepare an affidavit. He deposes that he did this so that the child’s views could be heard by the court.
[69] He disagrees that the child is alienated from the claimant and takes the position that it is due to the claimant’s own conduct that the child does not want to see her. He provides the following as steps taken by the mother that have resulted in the child’s refusal to see her:
· In early August 2017, she held a session with the child where she told him a number of falsehoods about the respondent and she monitored him to ensure he kept the falsehoods a secret from the respondent;
· She pressured and coerced the child to go to a private school; and
· She enlisted the aid of others, who she also told falsehoods about the respondent, to put pressure on the child to attend the private school.
[70] He asserts that it is not appropriate and not in the child’s best interest to force him into a counselling process.
[71] The actions of both parents leave much to be desired and show a lack of understanding of how their conduct since separating has been to the detriment of their child’s best interest.
[72] The evidence supports that the respondent is not supportive of the claimant’s relationship with her son and is likely encouraging the estrangement. This includes the transcript of the recording taken on September 5, 2017, the texted message on September 21, 2017, and comments made in a 65-page summary of evidence prepared by the respondent (the “Summary”). The following comments of the respondent raise a concern:
· Accusations of financial and psychological abuse by the claimant being akin to “family violence” (p. 3 of Summary);
· Referring to the claimant as an abuser and predator and to the child and himself as “victims” (pp. 5 and 10 of Summary);
· Accusing of “vicious harm” of the child (p. 6 of Summary);
· Referring to himself and the child as “her easiest prey” (p. 9 of the Summary);
· The claimant should “be punished … by the courts (p. 12 of Summary);
· Accusing the claimant of “child abuse” (p. 15 of Summary);
· Accusing her of a “fraudulent disability claim (p. 16 of Summary);
· The claimant and her lawyer attend at his dental office to harass his staff (pp. 29 and 61 of Summary). The claimant’s counsel advised the court that she had never attended the respondent’s dental office;
· The respondent and child have to deal with “homelessness” (p. 26 of Summary). The “homelessness” refers to living at the respondent’s mother’s home and having to use an air mattress;
· Refusing to allow the claimant to speak to the child privately on September 5, 2017;
· Instructing the child not to go with his mother after school and not to text her; and
· Instructing the child to “tune out” his mother.
[73] These allegations are extremely serious and the language used can only be described as excessive.
[74] The respondent accuses the claimant of dragging the child into the fray, but in my view, bringing the child to a notary public is involving the child in this proceeding.
[75] I agree with the claimant that in the circumstances of this case, it is not appropriate for one of the parents to have the child swear an affidavit. I quote Mr. Justice N. Smith for his apposite explanation in Rashtian v. Baraghoush, 2013 BCSC 2023 at paras. 10–12, for why such conduct may not be appropriate:
[10] Counsel for the respondent filed an affidavit from Daniel that was prepared by and sworn in front of another lawyer. I made it clear at the hearing that I considered the creation of that affidavit to be highly inappropriate and I have not read it.
[11] The court has recognized that children should have an opportunity to make their views known in custody disputes (L.E.G. v. A.G., 2002 BCSC 1455) and s. 37 (2)(b) of the FLA now requires to court to consider the child’s views “unless it would be inappropriate to do so.” Of course, that does not mean the child’s views are the only consideration or that children can make the decision about where they will live.
[12] Although it is often important to make the court aware of the child’s views, I consider the least satisfactory method of doing that to be an affidavit drawn by a lawyer to whom the child has been taken by one parent without the knowledge of the other. The creation of such an affidavit draws the child deeply into the hostilities between the parents and there is a high risk of influence and manipulation.
[76] The evidence supports that the claimant used the child and dragged him into the matrimonial issues. In text messages to her son the claimant did the following:
· Stated that the respondent had plotted to divorce and take money and to sue her;
· Asked the child to located a cheque book and get it for her;
· Asked the child to ask the respondent to pay the mortgage; and
· Asked the child to stand by her side and to keep conversations confidential.
[77] The claimant also:
· Told him that his father had an affair. She later acknowledged that her suspicions were not true;
· Attended activities and had a friend come along to “guard” the doorways – highly embarrassing for any teenager; and
· Asked the child to decide whether the respondent should have the new alarm code for access to the Family Residence.
[78] The evidence supports that the child is doing well. He has adjusted to his new school, and his report card indicates he has excelled at school over the first two terms of 2017–2018. He has also excelled in extracurricular activities, placing first in a piano performance and third in an academic competition.
[79] I see no benefit in forcing the child, if one can force a 15 year old, to attend counselling. The child’s views are clear that any attempt to force him to enter counselling will be met with significant resistance. I believe this could even further damage the future relationship between him and his mother. The child may well use this as a further example of how he has been drawn into this marital “battle” by his mother.
[80] The evidence supports that the child is “a bright competent adolescent boy capable of communicating his feelings and experiences”, who shows “competence in his activities, social relationships and school achievement.”: see Views of the Child Report at p. 10. In consideration of all the factors, his views must be given a significant weight. I adopt the reasoning of Mr. Justice Affleck in K.L.S. v. K.M.S., 2017 BCSC 1315 at para. 16:
[16] The only consideration I must have in regard to J.S. is her best interests. I am persuaded that an order of this Court requiring J.S. to undergo counselling with the aim of establishing a relationship with her mother, no matter how skilfully that counselling is handled, and no matter how delicately the re-establishment of a relationship is approached, would be seen by J.S. as coercion. It would not enhance the prospect of developing a useful relationship with her mother. In my view the more promising approach to achieving a satisfactory relationship between J.S. and her mother is to allow the passage of time, if possible, to overcome the wounds of the past, as perceived by J.S. This perception by J.S., whether or not it is acknowledged by others, must be respected. The striving of the respondent, through this Court, to create a relationship with J.S. is counterproductive.
[81] If the child does wish to have counselling, then both parties should support and encourage this. However, the overall circumstances in this case do not support that the court should order the child to attend the REACH program or an equivalent. The record does not support that the child is ready or would be willing to engage in such counselling. As a result, this Court is not in the position to force meaningful counselling at this time: see e.g. K.L.K. v. E.J.G.K., 2013 BCSC 2030 at paras. 72–74; Willis v. Willis, 1987 CarswellBC 2697 at para. 15 (S.C.).
[82] From September of 2017 the claimant has been receiving sick pay from the college of $2,019 monthly. These benefits have now expired, and she has made an application for short-term disability from the insurer. She is hopeful she will be approved. If approved, her benefits will be approximately $1,400/month based on 70% of her income.
[83] In addition, she earns approximately $17,000 as a part-time piano teacher. She also deposes to having rental income of $800 per month from a rental property she owns in the United States.
[84] Her tax returns show that her total incomes for 2014–2017 were $136,629, $115,749, $124,967, and $48,462 respectively. They also indicate that prior to 2017, there was income splitting between the parties by way of dividend payments.
[85] The claimant asserts that the respondent has deliberately reduced the amount of his work, from previously full-time to now about three hours a day. She claims that he is doing this to reduce the value of his practice and is planning to try and sell his practice.
[86] The claimant submits that the appropriate amount to use for her income is her 2017 actual income of $48,461. She submits that the appropriate amount to use for the respondent’s income is $182,665, being his 2017 corporate income from operations, plus wages and interest.
[87] Based on the claimant’s income at $48,461 and the respondents at $182,665, the Spousal Support Advisory Guidelines [SSAG] ranges would be a low of $2,604, mid of $3,038 and high of $3,472.
[88] She further claims retroactive support from October 2017, when she first made the application for support.
[89] The respondent claims that since the separation, he has been struggling with significant depression and stress and he is not able safely practice dentistry. He asserts that his income has dropped to “virtually zero”. He claims that he is now just working enough to keep his practice “afloat”.
[90] The respondent’s position is that the claimant seeks to ignore the most current information available, which supports that he is not making the same income as he did in the past.
[91] From the date of separation to March 2018, he has revenue of approximately $270,000 and expenses of approximately $260,000. He deposes that as of May 2018, he had not paid himself for the prior eight months.
[92] The respondent claims that the claimant earns $100/hour as a piano teacher and receives cash, and, as such, her tax return will not reflect her true earnings as a piano teacher. This allegation is denied by the claimant.
[93] The respondent has been looking after the child, but the claimant has not contributed to his expenses. The respondent has not yet brought an application for child support, but the principles relating to child support enunciated in Bennett v. Bennett, 2015 BCSC 699, bear repeating for these parties:
GENERAL PRINCIPLES OF CHILD SUPPORT
...
Obligation to Pay Child Support
[40] Three fundamental principles apply to all child support applications:
1. parents have a joint and ongoing legal obligation to support their children;
2. it is the children, not the custodial parent, who have the right to support; and
3. support payments are based on earning capacity and not just on what a parent actually earns; as a result, a parent has a legal obligation to earn as much as he or she is reasonably capable of earning so the children can receive an appropriate level of support.
[41] The court has jurisdiction under both the federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and the provincial Family Law Act, S.B.C. 2011, c. 25, to award support. Subject to certain exceptions, both Acts require that the amount of child support in any given case be governed by the Guidelines. These Guidelines are regulations which have been made under the Divorce Act. They include tables setting the amount of child support based on the incomes of the parents. They also provide for payment of “special or extraordinary expenses”, undue hardship, variation of support orders, how a parent’s income is determined, imputation of income in certain circumstances, and exchange of financial information.
...
[43] The court can issue orders requiring the payment of child support prospectively or retroactively. It also has the power to vary, rescind or suspend orders that have already been made, although the circumstances warranting any variation will be governed by the Guidelines.
[44] When exercising its discretion to make a retroactive child support order, the court will consider various factors including:
· the circumstances surrounding any delay in seeking a court order for support;
· whether the parent has engaged in blameworthy conduct;
· the past and present circumstances of the children, including their needs and standard of living; and
· whether any hardship would be caused by a retroactive award.
[45] Generally speaking, the child support obligation fluctuates with the level of income available to the parents. The latter have an obligation to support their children in a way that is commensurate with their income. A payor parent who does not increase child support payments to correspond with increased income does not fulfill his or her obligation to the children.
[46] Parents are obliged to fully and honestly disclose income information and documentation. At a minimum, this includes tax returns, notices of assessment/reassessment, statements of earnings, financial statements for self-employment, partnership or incorporated enterprises, and the like. Failure to provide disclosure can result in adverse inferences against, and the imputation of income to, the non-disclosing parent as the court considers appropriate.
[94] The claimant has a positive duty to support the child and pay child support. Since there is no application before me for child support, I will not make an order. That said, the claimant should be paying child support, and the parties and their counsel should be in a position to work out the appropriate child support payment.
[95] Entitlement to spousal support and the amount and duration thereof is determined in accordance with ss. 161 and 162 of the FLA, which provide as follows:
161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives:
(a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;
(b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;
(c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses;
(d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time.
162 The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following:
(a) the length of time the spouses lived together;
(b) the functions performed by each spouse during the period they lived together;
(c) an agreement between the spouses, or an order, relating to the support of either spouse.
[96] The facts of this case support that the respondent does owe a duty to support the claimant. The only issue is the income to be attributed to each party.
[97] The presented evidence is not straightforward with respect to the income levels of the parties. In determining the parties’ income for purposes of spousal support, I borrow the following overview from Madam Justice Dardi in T.N. v. J.C.N., 2015 BCSC 439 at paras 103–106:
[103] There is no statutory framework setting out how to calculate income for spousal support purposes. However, the Spousal Support Advisory Guidelines, (“SSAG”) which as the name indicates are advisory and not legislative, incorporate the methodology for defining income under the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”) as a starting point.
[104] The court in P.K.C. v. J.R.R., 2014 BCSC 932, conveniently summarized the pertinent provisions of the Guidelines:
[88] Usually, the total income of a spouse in a given year can be based on the “Total Income” a spouse reports in their T1 General Tax form issued by CRA: Guidelines, s. 16. But if a spouse’s pattern of annual income shows this would not be the most fair and reasonable way to fix Guidelines income for support purposes, the court may consider fluctuations in a spouse’s income over the previous three years. The court can also consider nonrecurring income during that three-year period and fix an amount the court finds proper: Guidelines, s. 17(1).
[105] The authorities establish that the court must first determine, on the most current sources of income information available, whether s. 16 would fairly determine a payor’s annual income. Section 17 permits the court to depart from that determination if it is not the fairest means of assessing income. In circumstances where there is a material difference between the historical pattern of income and the determination under s. 16, the court should assess the fairness of the s. 16 figure: Fuzi v. Fuzi, [1999] B.C.J. No. 2263, 1999 CanLII 4073 (BCSC) at para. 28.
[106] In evaluating fairness, it is crucial for the court to consider the reasons which gave rise to the difference between the two figures and for the court to examine whether any increases or decreases in income are likely to be permanent. If there is a degree of permanence associated with an increase or decrease in income, the s. 16 determination of income may be the fairest determination: Fuzi v. Fuzi. Conversely, if the court concludes that s. 16 would not fairly determine a payor’s annual income, the court may set the income at an amount it deems fair and reasonable: Grossi v. Grossi, 2005 BCCA 47 at para. 25. If a payor’s income historically fluctuates, is unpredictable, or the estimate of current income is not reliable, the usual approach endorsed by the authorities is to average income in accordance with s. 17: J.E.H. v. P.L.H., 2013 BCSC 752 at para. 167.
[98] A summary of the claimants’ “total income” from her last three tax returns is as follows:
· 2015 — Total income: $115,749
o Employment income: $38,390
o Dividends from taxable Canadian corporations: $24,487
o Interest, child benefit, & other : $5,985
o Taxable capital gains: $22,137
o Rental income: $1,084
o Self-employment income: $23,666
· 2016 — Total income: $124,968
o Employment income: $31,733
o Dividends from taxable Canadian corporations: $60,504
o Interest, child benefit, & other: $2,397
o Rental income: $13,489
o Self-employment income: $16,845
· 2017 — Total income: $48,462
o Employment income: $16,250
o Dividends from taxable Canadian corporations: $5,998
o Interest, taxable gains, RRSP, and other: $2,955
o Rental income: $6,162
o Self-employment income: $17,097
[99] The claimant’s “employment income” is from her part-time job as a college instructor. She deposes that she took leave in 2016/2017, and had planned to return to work in September 2017. She deposes that she was unable to return to work because of stress from the separation, and, as a result, she was paid sick pay in the amount of $2,019 a month. At the Hearing, counsel explained that this amount was no longer being paid, and that the claimant is awaiting approval from the insurer for benefits of approximately $1,400 a month.
[100] In the circumstances, the claimant’s 2017 “total income” of $48,462 fairly represents her Guideline income for spousal support purposes. If she is successful in gaining approval from the insurer, she will receive approximately $1,400 a month, which equates to $16,800 per annum. This amount approximately equals her employment income from 2017.
[101] If it turns out that she is not successful in her insurance claim, she may apply to vary the interim spousal support order.
[102] A summary of the respondent’s “total income” from his last three personal tax returns is as follows:
· 2015 — Total income: $114,725
o Employment income: $78,000
o Dividends, interest and investment: $50,765
o RRSP/PRPP (less): ($14,040)
· 2016 — Total income: $123,121
o Employment income: $78,000
o Dividends, interest and investment: $45,121
· 2017 — Total income: $389,560
o Employment income: $52,000
o Dividends, interest and investments: $57,903
o RRSPs: $279,657
[103] In my view, the respondent’s “total income” as recorded in his 2017 tax summary does not fairly determine his Guideline income, as the bulk of his 2017 income is from RRSPs.
[104] The parties have also provided compiled corporate financial statements for the respondent’s dentistry practice which show the following “income from operations” for the years ended May 31,
· 2017: $100,179;
· 2016: $55,827; and
· 2015: $121,682.
[105] The claimant submits that the fairest approach for determining the respondent’s Guideline income is to take the 2013–2016 average of his practice’s income for operation, practitioner wages, and management fees. The respondent, on the other hand, submits that over the past eight months, his practice has barely been afloat and he has not paid himself, and therefore these figures are not fair or reasonable.
[106] The evidence supports that from September 2017 to March 2018—the first seven months after separation—the respondent earned average monthly revenue from his practice of $39,051. His average monthly revenues (based on the year-end figures) for the preceding three years were $52,055 (2017), $46,562 (2016), and $52,962 (2015). The respondent attributes the recent 20-25% decrease in monthly revenue to stress from the separation and litigation.
[107] On the whole, I find this to be a reasonable explanation for the respondent’s decreased production since September 2017. I have not been directed to any medical evidence supporting that the respondent is not capable of working 100%, but it is reasonable that he has curtailed his practice by 20–25% in the circumstances of this stressful litigation and the early stages of the separation. This is supported by the fact that the claimant has also suffered from stress, forcing her from her part-time job.
[108] The respondent deposes that because of his lower revenue, his effective income is now zero because of the high (approx. 67%) fixed costs of his dentistry practice. Upon reviewing the financial statements, I agree that the dental practice has high fixed costs and therefore it is not lucrative when the principal works only at 75–80% capacity. However, in my view, it is not reasonable given the respondent’s education, work history, and lack of evidence as to medical status that he be perpetually working below capacity.
[109] As such, the respondent’s Guideline income should reflect the three-year average of his practice’s “income from operations” plus “practitioner’s wages” from 2015–2017. This is the most reasonable way to assess the means of the respondent: see generally Marquez v. Zapiola, 2013 BCCA 433 at paras. 37–38. The three-year average equals $170,563.
[110] The claimant also argues that some of the expenses claimed by the respondent are not appropriate. There is insufficient evidence to support this argument and therefore I afford it little to no weight.
[111] Based on the Guideline incomes determine above, the formula set out in the SAAG results in monthly spousal support payable by the respondent to the claimant ranging from a low of $2,283 to a high of $3,044, with the midway point being $2,664.
[112] In my view, the low range is a fair outcome in the circumstances, given the already discussed reduction in the respondent’s revenue and the fact that the claimant has been living in the Family Residence since separation.
[113] The principles governing retroactive spousal support mirror those that govern retroactive child support: i) the needs of the recipient; ii) the conduct of the payor; iii) the reason for the delay in seeking support; and iv) any hardship the retroactive award may have on the payor spouse: Kerr v. Baranow, 2011 SCC 10 at paras. 207–208 [Kerr]. The Court in Kerr noted, however, that the different legal principles and objectives that underlie spousal support may result in considering and weighing these factors somewhat differently. In particular, concerns about notice, delay and misconduct will generally carry more weight in assessing a claim for spousal support: Hallgren v. Fry, 2013 BCCA 15 at para. 25.
[114] I am satisfied that the spousal support in this case should be retroactive to October 20, 2017, the initial date of the claimant’s application for spousal support. The claimant’s needs and lack of delay in seeking support justify the award. In my view the payment of $2,300 monthly is a reasonable and appropriate interim amount in the circumstances.
[115] The facts in support of a finding of contempt must establish, beyond a reasonable doubt, that the contemnor wilfully disobeyed a court order that was clear and precise in its meaning: Jackson v. Honey, 2009 BCCA 112 at para. 13.
[116] The principles governing a motion of contempt were summarized by the Court of Appeal in Peel Financial Holdings Ltd. v. Western Delta Lands Partnership, 2003 BCCA 551 at para. 18, as follows:
[18] The principles governing a motion of contempt are uncontroversial. I would summarize the principles relevant to this case in this way:
1. The proceedings are quasi-criminal in nature and the rules of strictissimi juris apply, meaning for example that the evidence supporting the motion must conform to the rules of admissibility at a trial; so no hearsay, opinion, conclusions and the like are receivable: Glazer v. Union Contractors Ltd. and Thornton (1960), 33 W.W.R. 145 (B.C.S.C.) at 151.
2. The applicants bear the onus of proving the elements of contempt on the criminal standard, viz. beyond a reasonable doubt: Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217 at 229.
3. If the order said to be breached is ambiguous, the alleged contemnor is entitled to the most favourable construction: Melville v. Beauregard, [1996] O.J. No. 1085 (Gen. Div.) at para. 13; see also Berge v. Hughes Properties Ltd. (1988), 24 B.C.L.R. (2d) 1 (C.A.) at p. 8, cited in Hama v. Werbes (2000), 76 B.C.L.R. (3d) 271 (C.A.) at para. 8 where the need for clarity and precision in the order to be enforced was discussed.
[117] Where the alleged contempt is a breach of a court order, as here, the applicant must prove three elements: (1) the existence of the court order; (2) the alleged contemnor knew of the order and its terms; and (3) the alleged contemnor intentionally disobeyed one or more of the terms of the order: CE International Resources Holdings LLC v. Yeap Soon Sit, 2013 BCSC 186 at para. 24
[118] A person cannot be convicted of contempt for breaching a court order if he did not know of the existence of the order or its terms. Actual knowledge of the order and its terms must be proven beyond a reasonable doubt: Pintea v. Johns, 2017 SCC 23 at paras. 1-3.
[119] The claimant seeks an order finding the respondent in breach of three court orders. I will deal with each individually.
[120] The claimant submits that the respondent has willfully breached the March Order in failing:
a. to swear and file an affidavit explaining in detail what happened to the $500,000 and supporting the same with documentary proof within seven days of the order (para. 4);
b. to pay a penalty of $5,000 to the claimant for failing to produce the respondent’s Form 8 Financial Statement (para. 5); and
c. to pay the claimant’s special costs (para. 14).
[121] The March Order required an affidavit be sworn and filed by March 12, 2018. The respondent swore and filed an affidavit on March 12, 2018 in compliance with this term.
[122] The affidavit provides particulars of the withdrawal of the $500,000, the wire transfer of $449,800 to his mother for an alleged repayment of a loan made in May 1993, and the particulars of what the remaining $50,000 was used for.
[123] The claimant is not satisfied with the explanation and particulars provided.
[124] I do not find that the respondent has breached this term of the March Order, and, as such, I do not find contempt.
[125] The respondent was ordered by pay a $5,000 penalty for failing to produce his Form 8 Financial Statement pursuant to s. 213 of the FLA. He admits he has not paid this penalty. Counsel for the respondent wrote on March 12, 2018, explaining that the respondent is not able to pay the $5,000 fine because his personal accounts are frozen and his business account is running a deficit. He offered to have the $5,000 amount credited to the claimant at trial or settlement or from his share upon sale of the Family Residence.
[126] In his most recent affidavit, sworn May 10, 2018, his excuse for non payment was that he does not have the money to pay this penalty because his personal and business income is now zero. He claims that he is not making any money as a result of being “burnt out physically, mentally and financially.”
[127] The claimant admits he cashed out his RRSPs in the amount of approximately $280,000. He has not deposited this amount into a bank account but has instead maintained it as cash. His rationale for doing so was “to have money to live on, pay debts and care for [the child].”
[128] The claimant has not provided any evidence that supports that all of the RRSP monies have been exhausted. He was under a court order to pay $5,000 and he failed to do so. If the respondent was of the view that he had no money to pay this fine, his remedy was not to unilaterally decide not to pay, but to apply to court for relief from payment forthwith. He did not do so.
[129] I find the respondent in contempt for failure to pay the $5,000 penalty. As a penalty for this breach of the March Order, the respondent will pay a further $2,000 penalty. The penalty of $7,000 will be paid to the claimant forthwith.
[130] The respondent can use the RRSP monies he withdrew to pay this fine.
[131] As a term of the March Order, the respondent was ordered to pay special costs of the application in any event of the cause payable forthwith.
[132] On March 12, 2018, the claimant’s lawyer wrote to the respondent’s then counsel, providing a statement of account. The statement of account is dated March 6, 2018, with fees of $9,873.85 and taxes of $1,184.85. Disbursements were claimed in the amount of $484.61. The total account was for $11,543.31.
[133] The respondent offered to pay the costs of the application on the same basis as he offered to pay $5,000 penalty.
[134] There is no evidence that the respondent has agreed to the amount of the legal account.
[135] The special costs have not been assessed.
[136] Sub-rule 16-1(2) of the Supreme Court Family Rules [Rules] provides for the assessment of special costs by a registrar. Sub-rule 16-1(25) provides that after the assessment, the registrar must endorse the original bill or issue a certificate of costs. The certificate of costs must then be filed by the party assessing the costs. These steps have not been undertaken, and there is no certificate of costs.
[137] It is premature to seek an order for contempt for the non-payment of the special costs. The respondent should be aware that there remains an order that the special costs, once assessed or agreed to, must be paid forthwith in accordance with the March Order. If he is incapable of paying these special costs, he should seek leave to vary the “forthwith” portion of the order and not simply decide not to pay it.
[138] If he follows the same course of action, he is at risk of being found in contempt again.
[139] The claimant submits that the respondent has willfully disobeyed the December Order in not depositing $30,000 into his lawyer’s trust account to be held and reserved for the possible retaining of the REACH team pursuant to para. 11(a).
[140] Paragraph 11(a) of the December Order reads as follows:
11. The respondent will forthwith return the $500,000.00 which he took out of the parties’ joint Scotiabank line of credit and use those funds to pay down the line of credit save and except for:
a. $30,000.00 which he will deposit into his lawyer trust account to be held and reserved for the possible retaining of the REACH Team until further Court order or written consent of the parties,
after which time neither party will use the line of credit without written agreement of the parties or court order except to pay the interest thereon.
[141] The clear intent of the order was that it would be from the $500,000 to be returned to the line of credit that the $30,000 would come.
[142] On February 5, 2018, the claimant filed an application seeking a variety of relief including a contempt order against the respondent for his failure to return the $500,000 and deposit the $30,000 into his lawyer’s trust account in accordance with para. 11 of the December Order. The contempt order was not granted. In the March Order, Mr. Justice N. Smith made the following order in respect to the February contempt application:
The respondent is not in contempt of Paragraph no. 11 of the Order of Master Taylor made December 12, 2017 with respect to returning the $500,000.00 he took out of the parties’ joint Scotia Line of Credit which he was to deposit back into the same account.
[143] The December Order was clear that the $30,000 was to come from the return of the $500,000. This Court has already heard and determined a contempt application relating to the failure to return the $500,000. Although the March Order did not explicitly address the $30,000, I see no basis in allowing the claimant to apply a second time for a contempt order arising out of the failure to comply with para. 11 of the December Order. The issue of the return of the $500,000, which includes the $30,000, has already been adjudicated upon.
[144] The claimant submits that the respondent has wilfully breached the October Order in disobeying:
a. paras. 1 and 2 with respect to a prohibition on dealing with family property, and, in particular, in dealing with his accounts at CIBC.
b. para. 3 with respect to not doing anything that may have effect of depreciating or dissipating the value of his dental practice.
[145] The particulars of the alleged disobedience is that on October 23, 2017, the respondent took a $64,000 bank draft from his TD business account, and that on October 23, 2017, he withdrew money from other accounts, including $24,000 from his CIBC account.
[146] The October Application was without notice to the respondent. It was heard on October 20, 2017, and an order was pronounced and filed the same date. The factual question that arises is whether or when the respondent was provided notice of the October Order.
[147] The claimant has not provided any evidence in support of when the October Order was served on the respondent. She speculates that the respondent must have known of the Order made on October 20, 2017 because he attended and made withdrawals from various bank accounts.
[148] The claimant has not provided an affidavit of service of the October Order to support when the October Order was served.
[149] The respondent deposes that he was served with the October Order on October 25, 2017. He deposes that on October 23, 2017, he was not aware of the October Order and he was not aware that the claimant had commenced a divorce action against him.
[150] The respondent deposes that the claimant has an affidavit of service from a process server that shows he was served on October 25, 2017, and that she deliberately did not produce that affidavit of service in support of this application. He asserts that this was with a view of “misleading the court”.
[151] The respondent further deposes that after being served with the October Order on October 25, 2017, he sought legal advice. He returned the $64,000 to his TD Canada Trust business account on March 12, 2018.
[152] The claimant has failed to prove that the respondent knew of the terms of the October Order when the withdrawals were made on October 23, 2017. Therefor, this application for contempt is dismissed.
[153] I do note that the failure of the claimant to disclose when the October Order was served on the respondent is a cause for concern. There is a positive duty on a party and their counsel, as officers of the court, to fully disclose relevant evidence. A contempt application has been described as quasi-criminal; there is a high onus on the party seeking a contempt order as they can have significant and penal consequences: Carey v. Laiken, 2015 SCC 17 at para. 32.
[154] A component of any contempt application is proof that the respondent had actual knowledge of the order and its terms. As such, information such as when the respondent was served with the order is something that ought to have been disclosed by the claimant.
[155] The claimant submits that this is a high-conflict divorce, and, where child alienation is being alleged, the court needs to act expeditiously and take control. A judge should be assigned. She submits that the scheduling of these applications took four months.
[156] I do not see the need to seize this proceeding. Hopefully moving forward these parties will try and resolve issues, and if not then there is a trial date set seven months from now. Taking into account the age of the child, 15 years old and going into Grade 11 in September, this is not a case in which there will be a need for ongoing parenting orders. This is not a case in which there should be any ongoing applications on what is in the best interest of the child or to ensure that the child’s views are heard.
[157] The future issues will predominantly involve financial arrangements for which the parties and their counsel should strive to resolve.
[158] A summary of the orders are as follows:
a. The claimant is to have exclusive occupancy of the family residence located on Lime Street, Vancouver, B.C. (the “Family Residence”) until the property is sold.
b. By consent, the Family Residence is to be listed for sale.
c. The claimant and the respondent are to have joint conduct of sale of the Family Residence.
d. The parties will agree on a listing agent within 14 days of this order. If the parties do not agree to the listing agent they will each appoint a listing agent.
e. The proceeds of the sale of the Family Residence are to be used as follows:
i. To pay mortgage(s);
ii. To pay other encumbrances registered against the title;
iii. To pay real estate commission; and
iv. To pay usual closing adjustments.
f. The net proceeds of the sale of the Family Residence are to be held in trust in the claimant’s lawyer’s trust account until further agreement or Court Order.
g. The respondent is found guilty of contempt of Court for his wilful disobedience of paragraph 5 of the Order of Mr. Justice Smith dated March 5, 2018.
h. The respondent is to forthwith pay a $2,000 penalty to the claimant for his contempt.
i. The claimant’s application to find the respondent in contempt of paragraph 11 the Order of Master Taylor dated December 12, 2017 is dismissed.
j. The claimant’s application to find the respondent in contempt of paragraphs 1, 2 and 3 of the Order of Master Tylor dated October 20, 2017 is dismissed.
k. For the purposes of calculating spousal support payments under the Spousal Support Advisory Guideline, the respondent’s income is set at $170,563 and the claimant’s income is set at $48,462.
l. The respondent will pay the claimant for her support the sum of $2,300 per month, commencing on November 1, 2017 and continuing on the first day of every month until further order of the court, on an interim basis.
[159] The parties had divided success. The focus of the Hearing was on the parenting issues and the order to compel the child and parties to attend the REACH program. The claimant was unsuccessful in that application. She was successful in obtaining an order for retroactive spousal support, exclusive occupation of the Family Residence, and in one of the contempt orders sought. However, the claimant failed to provide relevant evidence to support the contempt application respecting the alleged breach of the October Order and was unsuccessful in the other contempt applications. In my view, each party should bear their own costs for this Hearing.
“The Honourable Madam Justice Forth”