2008 BCSC 513err1 Hawse v. Hawse

Before: The Honourable Mr. Justice Crawford

Reasons for Judgment

Counsel for the Plaintiff:	G.E. Greene
Appearing on his own behalf:	Ian Hawse
Date and Place of Trial/Hearing:	March 28, 2008
	New Westminster, B.C.

[1] The applications of the parties arise from the breakdown of their marriage. They married in 1980 and their divorce took place in 2004. During the course of their marriage they had 6 children. Mr. Hawse’s drinking eventually led to a breakdown of the family relations, with Mrs. Hawse and the children leaving the family home.

[2] An oral judgment given July 30, 2004 was followed by further orders regarding the children on February 11 and November 1, 2005.

[3] At the time of the trial in July 2004, the children ranged in age from 19 to 9 years. Mr. Hawse’s relations with the older two children were beyond repair. The professional opinion regarding Mr. Hawse and the younger children stated all would need counselling before any attempt could be made to repair the relationship with the younger children. Mrs. Hawse’s relationship and relations with Mr. Hawse then and now is beyond repair.

[4] In July 2007, Mr. Hawse brought a notice of motion seeking: (1) reduction or cancellation of spousal maintenance; (2) termination of child support for Theo, now age 23 and Drake, now age 22; (3) child support for Dylan, Gavin, Quinn and Zara; and (4) reasonable access to the younger children.

[5] In October 2007, Mrs. Hawse filed a cross-motion for: (1) continuing child support for Theo and Drake; (2) payment of extraordinary expenses for Mrs. Hawse of $100 per month; (3) to pay increased spousal support to Mrs. Hawse for dental and medical care for 8 months at $500 per month; (4) an injunction against Mr. Hawse from going on her property.

Mr. Hawse and Access to the Children

[6] Mr. Hawse has had no contact with his younger children for over 5 years. He told me he has not had a drink in 6 years and he has had counselling as requested.

[7] However, he has not provided (as previous Court orders directed), for the children to have counselling before any access was attempted. During argument I told him that advice of the professional still had to be followed, that he has to hire Dr. England or another skilled family counsellor, who should meet with the younger children, get their views, and assess their abilities to reconnect with their father. As well, the counsellor needs to meet with Mr. Hawse and assess his ability to reconnect with his children. The counsellor may need to meet with Mrs. Hawse, but it may be assumed she is not in favour of any such renewal of family relations.

[8] If the counsellor says there is a path to renewing relations between father and children and that such contact is appropriate, presumably in a supervised situation at first, then we need to have an outline from the counsellor as to the steps to be taken and then Mr. Hawse can bring application for renewing access.

[9] On the other hand, if the counsellor’s opinion is that that path is not open, then Mr. Hawse would be obliged to stay away from the children. In a relatively short period, the children will be old enough to be making up their own minds about renewing relations with their father.

[10] In the interim, until further Court order, access will only take place with the father upon the request of the children.

Child Support for Theo and Drake

[11] Theo lives in Vancouver and is said to be self-supporting and not at school. Mrs. Hawse in her affidavit said Theo had completed his education and she is still sending him $100 per month.

[12] Drake has been working in Prince George for 2 years and is not living at home. Mrs. Hawse said he went to college for two years and could not afford to keep on going, and has just started in a minimum-wage job and she sends him $100 per month.

[13] In these circumstances, the child support for Theo and Drake must end. Counsel is well aware of the requirements for continued support for children after the age of 19. If Drake wishes to complete a degree, but needs his father’s support, then an education plan and a financial budget needs to be put forward in accordance with the decided cases. If the parents cannot agree, then Mrs. Hawse would need to apply for a child maintenance order.

Mr. Hawe’s Income

[14] Mr. Hawse said his plan to become a real estate agent had fallen through. He continued to operate the family business building and since 2004 has rented parts of the building and set up a second company with his brother, entitled First Nations Distributors.

[15] He said in his affidavit of June 15, 2007, his income was approximately $34,000.

[16] In his Form 89 Financial Statement of July 19, 2007, he said his income was $32,432.

[17] He said his personal expenses before paying child and spousal support were $22,453, and his personal debt was $55,000.

[18] Various documents were provided in evidence showing his income in 2004 of $31,500; in 2005 $37,200; in 2006 $32,432; and in 2007 $29,990.

[19] There is no explanation how Mr. Hawse’s income is derived from the two companies. Mr. Greene submitted, as Mrs. Hawse said in her affidavits, that Mr. Hawse was hiding income within the financial statements of the companies, but no evidence was adduced in that regard, just the accusations.

[20] Mr. Greene spent a good deal of time turning the pages of the personal tax returns of Mr. Hawse and the accompanying financial statements of the companies, but put no new perspective on the matter, save to make the suggestion Mr. Hawse’s personal income might be more than had been disclosed to Revenue Canada. Part of that argument I found on review was only due to some pages from one year being mixed into another year of tax returns.

[21] Mr. Greene submitted the supporting documents threw no light on Mr. Hawse’s true income and that I should leave the original imputation of income of $47,000 in place.

[22] It might have been suggested the companies’ statements did not seem to even give rise to the income declared. It might have been suggested that some items of company expense, such as advertising, business entertainment, travel, telephone and motor vehicle expenses might be of personal benefit to Mr. Hawse. Mr. Hawse did say in reply, as was evident in the corporate financial statements, that the family business Hawse & Company had as of 2005, simply become a landlord, i.e. operating tenancies in the building, and the business or sales activities was now in a separate company, First Nations Distributors.

[23] He submitted his income be averaged to either $33,207 or $33,711. To that I will make some additional allowance for benefits which he would benefit from through the companies and would support his lifestyle and I set his income at $36,500.

[24] Child support for four children is $887 per month and is effective January 1, 2008.

Spousal Support

[25] Mr. Hawse seemed to be of the impression his reduced income gave rise to an argument to reduce or terminate his obligation for spousal support.

[26] However, the marriage was 24 years, most of which Mrs. Hawse spent as housewife and mother. She now has certification as a teacher’s assistant. Whether in the future she will upgrade her teaching qualification may now be problematic.

[27] Her income is disclosed as the following: In 2004 $22,631; in 2005 $27,651; in 2006 $38,407; in 2007 her income was estimated at $45,490. That, in turn comprised employment income of $18,297, UIC of $3,894; spousal support of $7,800; and child support (for 6 children) of $15,456.

[28] In the circumstances, I reduce spousal support to $450 per month. The spousal support order shall be for an indefinite term, but subject to review in 5 years upon the application by either party. A material change in circumstances may also cause reconsideration.

[29] In Mrs. Hawse’s counter-application she sought the following: (1) Section 7 special expenses for the children’s orthodontic needs; (2) increased spousal support for her orthodontic work (which was already complete); (3) ongoing child support for Theo and Drake; (4) an injunction or restraining order against Mr. Hawse from going on her property.

[30] I will deal with them in reverse order.

[31] (4) As to the restraining order, the only evidence given was one occasion when Mr. Hawse had come on to the property the day after the triplets birthday (August 26, 2007), bringing expensive birthday gifts for the children, and she asked him to leave and she then called the police. There was no evidence of “confrontation”. Mr. Hawse knows he is not welcome and indeed would be trespassing. But there are no grounds for making a restraining order.

[32] There was also alleged to be an incident when Mr. Hawse’s brother went on to the property and did act in a somewhat abusive manner. However, no order was sought against him.

[33] (3) Support for Theo and Drake: That matter has already been dealt with.

[34] (2) Mrs. Hawse’s orthodontics. Some paper was put forward to show Mrs. Hawse had begun orthodontic work in 2005. No explanation was given as to why Mrs. Hawse was now requiring reimbursement. No medical or other health reason was provided, nor was any precedent cited for this being the basis for ordering additional spousal support. The application is denied.

[35] (1) The children’s orthodontics. It appears from the bundle of supporting documents that Zara had been found to have “overcrowding” of her teeth and her treatment began in November 2005. It appears Mrs. Hawse paid for the whole treatment ($6,272) November 21, 2005.

[36] The documents also show that in August 2007, Gavin and Quinn saw an orthodontist, presumably for the same reason.

[37] Mrs. Hawse says in her affidavit of October 4, 2007 that she anticipates the boys orthodontic costs will be ($6,200 minus $2,000 insurance) $4,200 payable over two years for each child.

[38] When I asked Mr. Greene if any attempt had been made by Mrs. Hawse to contact Mr. Hawse about this potential extraordinary expense, I was advised the only communication had been by way of the October 2007 motion material.

[39] Mrs. Hawse’s application seeks $100 per month for an indeterminate period. No professional opinion has been expressed as to why orthodontic treatment is necessary, save the one word on a potential bill of “over-crowding”.

[40] Section 7(1) of the Federal Child Support Guidelines states:

a child support order may be made on either spouse’s request to cover all or any portion of the following expenses which may be estimated, taking into account the necessity of the expense in relation to the child’s best interest and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family spending pattern part of the separation

...

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually including orthodontic treatment ....

[41] While I have reservations about the proof of necessity for the orthodontic work, I do not doubt it is in the best interest of the children and the claim is reasonable. The application seeks $100 per month which will be payable for two years beginning May 1, 2008.

[42] There is divided success. There will be no costs to either side.

“The Honourable Mr. Justice Crawford”

May 7, 2008 – Revised Judgment

Corrigendum to the Reasons for Judgment issued advising that the name Hawes should read as Hawse throughout the judgment.

Citation:	*Hawse v. Hawse,*
	2008 BCSC 513