|
Date: |
|||
|
|
Docket: |
E005677 |
|
|
Registry: Vancouver |
|||
IN THE SUPREME COURT OF BRITISH COLUMBIA |
|||
|
Oral Reasons for Judgment The Honourable Madam Justice Martinson December 20, 2002 |
|||
|
|
|||
|
BETWEEN: |
|||
|
P.W.
|
|||
|
PLAINTIFF |
|||
|
AND: |
|||
|
K.W.
|
|||
|
DEFENDANT |
|||
|
Counsel for the Plaintiff |
M. Hambrook |
|
Counsel for the Defendant |
C. Linde |
|
Family Advocate |
H. Wolfson |
INTRODUCTION
[1] In this family law case, the issues the court has been asked to decide relate to the parenting regime that should be in place for a nine year old girl (the child); what child support arrangements are appropriate for her; and a division of family assets.
[2] In giving the judgment orally, I reviewed some background information, described the agreements that have been reached, and set out the questions to be answered. I also reviewed the position of the parties on each issue, as well as the general approaches advanced by each. In reducing those oral reasons to writing I intend to review the agreements reached, and to give my conclusions on the matters that need resolution, as well as the reasons for those conclusions.
AGREEMENTS
[3] With the assistance of the Family Advocate, the parties were able to come to some agreements.
[4] The parties have now agreed to a gradual increase to 7 days on, 7 days off. It is agreed that if the child is ill, she will be exchanged unless there is medical support for the need to keep her where she is. It is agreed that there should be joint guardianship based on the Joyce Guardianship Model. It is agreed that I should be seized of any further applications. It is agreed that the money in trust from K.W.’s pension plan be kept for the benefit of the child. It is agreed that if Dr. J. continues, that she will not be compellable. They agree that neither party shall remove the child from British Columbia without the written consent of the other party or further order of the court.
QUESTIONS IN NEED OF RESOLUTION
[5] The questions I have to answer are these:
1. Should there be sole or joint custody? Should the Joyce Guardianship Model permit the mother or the father to be the final decision maker, subject to a court application?
2. Telephone Access – how should it work?
3. (a) How should access exchanges take place?
(b) How should the parents communicate?
4. Should there be an independent assessment to see whether the child needs ongoing psychiatric counselling?
5. If it is determined that there should be, should the person doing it be Dr. J.? If not, who? If so, for how long? Should Dr. J. be asked for a report? If so, when?
6. Should there be any directions regarding K.W.’s alcohol difficulties? Should there be any directions with respect to counselling for P.W? Or for both?
7. Should I make a finding that K.W. did not act in a sexually inappropriate way?
8. Should there be a review by the court? If so, when?
9. Should there be ongoing involvement by the family advocate? If so, how? Meeting with parents? Meeting with Dr. J.?
10. Child support – should this court decide it at all? If so, should there be any directed, and if so, how much?
11. Property Division – who should have the say regarding how the trust funds for the child should be spent? How should the money in Mr. Linde’s trust account be divided?
DISCUSSION
[6] In reaching my decisions, I have considered all of the evidence and all of the arguments that have been made. In explaining my decisions, it is necessary for me to comment on certain aspects of the evidence as it relates to P.W., K.W., and Dr. J.
(a) P.W.
[7] P.W. obviously loves the child, and the child loves her. Setting aside her concerns about K.W. for a moment, P.W. provides a caring loving environment for her. She has a sincerely held belief that she has always acted in the child’s best interests. Between 1996 and early 1999, she encouraged the relationship between the child and K.W., the child’s father.
[8] When she was initially presented with information dealing with possible sexually inappropriate behaviour, she acted in a reasonable way by seeking the assistance of professionals and in trying to assure herself that there was no danger to the child.
[9] She was understandably concerned about the child’s mental health when she was hearing voices and spoke about doing cartwheels into a glass table. She wisely sought the assistance of her family doctor and followed his advice.
[10] She has understandable concerns about K.W.’s history of alcoholism and his angry aggressive behaviour when he is drinking. I am satisfied, based on the evidence that she has presented, K.W. acts angrily and aggressively when he drinks.
[11] However, it is my view that many decisions that she has made during the course of this litigation have been coloured by three factors. The first is her strong dislike and mistrust of K.W. The second is her strongly held view that K.W. and Mr. Linde, his counsel, were determined to undermine her relationship with the child, and were not concerned about what is in the best interests of the child. That is, she argues, in effect that they have an improper motive. The third is the strong reliance she places on the advice of her sister.
[12] P.W.’s strong dislike and mistrust of K.W. have caused her to sometimes lose her objectivity as to what is in the child’s best interests. I will say more about that in a moment.
[13] It is necessary to comment upon her view of Mr. Linde’s involvement. It is true that he has taken an aggressive approach on behalf of his client. However, I conclude that he did so to ensure that his client’s role as the child’s parent was not undermined. Many of the steps that he took were taken in the face of a situation where his client was being denied the ability to see his child, and in which a medical practitioner was making important decisions about his daughter without his input. It cannot be said that Mr. Linde had an improper motive. Therefore, P.W.’s views about an improper motive, either on the part of Mr. Linde or K.W., were unreasonably held.
[14] P.W.’s sister has no objectivity whatsoever on the subject of K.W. She has a strong dislike for him to the point that she could not even concede that there was any benefit at all to his relationship with the child.
[15] Because of these three factors, P.W. has viewed much of what has happened with great suspicion. I am particularly concerned with her actions leading up to, and as a result of, the Order of Mr. Justice Oppal on March 6, 2000. She was the one who asked for the appointment of the Family Advocate. The child clearly told the Family Advocate that she wanted to see her father and that she wanted overnight visits.
[16] Rather than supporting the view of the Family Advocate, P.W. took it upon herself to tell the child that there would likely be supervised access. She also made it very clear to the child that she, as the child’s mother, thought the court made the wrong decision in not ordering supervision. She made her extreme concern about the correctness of the court decision apparent to the child.
[17] I conclude that P.W. and her sister encouraged the child to contact the first family advocate and suggested to her what she might say. In this respect, I accept the evidence of Dr. E. that the child told him “it was her mom’s idea,” and that her aunt and mom helped her decide what to put in the letter.
[18] This, in my view, was the beginning of a stance taken by P.W. and her sister towards the child that left the child with the impression that they felt that it was dangerous for her to see her father, and that they had to protect her from her father. This approach is very obvious in the videos, where P.W. makes no effort to encourage the child to go with her father. She rather makes it seem like it is a necessary evil, but that she, her mother, is doing her best to protect the child.
[19] It is no wonder that the child began to have mental health difficulties. She was in an untenable position, which could not help but place her under significant stress. She wanted to see her father and was likely excited about doing so after not seeing him for so long. Yet, when the visit was approaching, she sensed how upset her mother, her aunt and their friends were about the visits, and so she assumed what has been called her “people please” role. I am satisfied that once she was with her father, she enjoyed the visits, even when there was a traumatic exchange.
[20] The problems were further aggravated by P.W. yet again reporting the matter through a child emergency number.
[21] I view this behaviour on the part of P.W. as self-righteous, and lacking in objectivity. She did not recognize the adverse effects on the child of approaching the issues in the way that she did. I am reinforced in this view by the comments of Dr. E. on this issue. He said:
I believe that the child has suffered emotionally from the position that P.W. has placed her in by requiring her to share her reluctance and antipathy towards K.W. which was displayed at the outset of some visits. I also think that the child’s report of hearing voices was the result of this type of stress.
[22] Then, when the child exhibited emotional difficulties, P.W. dealt with them on the basis that they were solely caused by the fact that the child had to visit her father. She therefore excluded K.W. from the process of dealing with these emotional difficulties. This increased the level of conflict significantly.
[23] I am concerned that there have been so many instances in which P.W. has disagreed with the professional opinions she has received or professional services that have been provided. She has had four lawyers. She has reported one of her lawyers to the Law Society. She has reported Mr. Linde to the Law Society. She has reported the first family advocate to the Attorney General.
[24] I was very surprised to find that - just before or during the course of the continuation of this trial - she reported the new family advocate to the Law Society.
[25] She has reported a psychiatrist to the College of Physicians and Surgeons. He wrote a report at the request of counsel for K.W., questioning Dr. J.’s role in this matter. It was disclosed during the evidence of Dr. E. given at this trial that Dr. E. has recently been notified that he has been reported to his professional association.
[26] There is a difference between challenging, in the context of the litigation, the views professionals express, and reporting the professional to a disciplinary body. It is not unusual to find that people question the opinion of an expert and question the conduct of a lawyer. Litigants sometimes report professionals to their professional associations.
[27] However, the conduct of P.W. in this case is unusual. In my opinion, P.W.’s actions in this case show that she has a great deal of difficulty accepting views on questions relating to the child that do not coincide with her own.
[28] I regret to say that I find that P.W.’s sister reinforces these negative views. I am unable to accept her sister’s assertion that she has not played a large role in the litigation. I found her evidence, for example, that she only read the part of Dr. E.’s report that related to her, difficult to accept. She, in fact, in a different part of her evidence, revealed that she had in fact read other parts of the report.
[29] I though have no doubt that her sister has many good qualities as well, and has had, and should continue to have, a close relationship with the child. She will never change her views about K.W. She should, however, keep her views about K.W. to herself, at least so far as the child is concerned. I would encourage P.W. and her sister to make arrangements for separate accommodation.
[30] Having said all of that, I am quite encouraged by more recent events. Dr. E. notes in his May 2002 reports that P.W. acknowledged that her own anxieties may play a role in the child’s difficulties.
[31] She has acknowledged to the court that the evidence does not support a concern about sexually inappropriate behaviour. She was specifically asked in June whether she thought that K.W. was currently a sexual threat to her daughter, and she said no.
[32] I am pleased that she had agreed to the shared parenting schedule. That is a significant decision on her part to act in the child’s best interests. That shows that she does now recognize the important role that K.W. plays in the child’s life.
[33] I am also now satisfied that P.W. is not taking steps to prevent telephone contact between K.W. and the child.
[34] I emphasize my earlier comment that P.W. clearly loves the child and has much to offer her. While I have commented adversely on some aspects of her conduct, I also conclude that she has not had an improper motive. She has felt that she was always acting in the child’s best interests.
(b) K.W.
[35] I now turn to K.W.
[36] K.W. also loves the child and has much to offer her. He provides not only enjoyable times for the child, but intellectual stimulation and exposure to a wide and varied group of friends.
[37] I want to say something about the allegation of sexually inappropriate behaviour.
[38] Based on the information P.W. received, it is understandable how she initially had some concerns. However, none of the investigations proved that this was a concern.
[39] Based on the evidence presented in this case, I am satisfied that K.W. did not act in a sexually inappropriate way with the child. He may have acted in a way that made the child feel uncomfortable, but when he learned about her discomfort, he took steps to deal with her concerns. I am reinforced in this view by the conclusions of Dr. E., a psychologist with considerable experience and expertise in the area of sexual abuse of children. He found, at page 33 of his first report, that the behaviours complained about by the child, with the exception of sleeping nude, were within the realm of normal parental behaviour between a parent and a young child. K.W. has addressed the sleeping nude issue.
[40] It is difficult to think of anything worse than being wrongly accused of sexually inappropriate behaviour with the daughter you love.
[41] I understand K.W.’s concerns about Dr. J. treating his daughter without his knowledge or consent. The fact that this happened unnecessarily increased the conflict. It is to his credit that, in spite of the difficulties that have arisen with respect to Dr. J., he is, in certain circumstances, willing to work with her for the child’s benefit.
[42] I do, however, agree with the Family Advocate that K.W. also contributed to the creation of the conflict and its escalation.
[43] He could have sought the assistance of the court at an earlier stage when his ability to see his daughter stopped.
[44] His frustration with his inability to see his daughter is understandable. However, his actions in attending the school to try to see her, driving to the house on Burien when he knew that P.W. would not permit access, and attending at the neighbourhood showed that he was most concerned with his own feelings at that time. He did not consider, or did not care enough about, the impact of his behaviour on the child.
[45] In my view, K.W. has been playing games with his phone messages left at P.W.’s home and in the letters he sends with the child. Again, he seemed more concerned with advancing his position in this litigation than in considering how such calls would adversely affect the child.
[46] I also find that K.W. has been less than cooperative and forthright in providing financial disclosure. This created more mistrust.
[47] He has not provided an adequate explanation as to why he was researching parental alienation at a time when the problems did not exist. His own aggressive approach to the litigation – while certainly permissible - lessened the chances for an early and consensual resolution.
[48] I turn now to the question of K.W.’s use of alcohol. This question has two aspects to it. The first is whether he is still consuming alcohol. The second is a concern about future use of alcohol based on his past difficulties with it.
[49] As noted earlier, I am satisfied, based on the evidence, that K.W. acts angrily and aggressively when under the influence of alcohol. That behaviour created an intolerable situation for P.W. and the child.
[50] I will deal with the first aspect first.
[51] There are some suspicious circumstances. However, the evidence does not prove that he has been drinking recently. The evidence in fact shows that he has been doing a good job parenting the child.
[52] I am, however, satisfied that K.W. has had serious problems with alcohol over many years. He is to be congratulated for the steps he has taken recently. It is encouraging that in the past, when he has difficulties, he seeks help. Alcohol, though, will be a continuing challenge for him.
(c) Dr. J.
[53] Dr. J. is obviously a well qualified and experienced child psychiatrist.
[54] The child has a good relationship with her. That relationship and the accompanying trust have taken time to develop. The therapy has provided some benefits to the child. I agree that Dr. J. has now made it clear that she thinks both parents should have an equal role in her upbringing. She has played a role in assuring P.W. that the shared parenting time is appropriate and that K.W. does not present a sexual threat to the child. She feels strongly that the child needs therapy and she will proceed with the therapy by involving both parents. The child is happy to continue to see her.
[55] It is at the same time problematic that Dr. J. undertook the task of diagnosing and treating the child without involving K.W. at the outset. I say this for two reasons. That fact has escalated the conflict in this case. In addition, Dr. J. did not have the benefit of the father’s perspective on what the issues were that the child was facing. She assumed that what P.W. was telling her was true, and that what the child was saying accurately reflected her concerns. Much of the approach in the therapy was directed at dealing with problems K.W. may have had. There was no similar focus on P.W. and the ways in which she may have been contributing to the difficulties.
[56] I have some concern about the fact that Dr. J. cannot envision any colleague reaching a conclusion about the ongoing need for therapy that is different from hers.
CONCLUSIONS
[57] I now turn to my conclusions on the questions I have identified that are in need of resolution.
1. Should there be sole or joint custody? Should the Joyce Guardianship Model permit the mother or the father to be the final decision maker, subject to a court application?
Legal Principles
[58] I turn first to the legal principles that apply.
[59] In making my decisions about whether there should be joint custody of the child or whether one or other of her parents should have sole custody, I am required to apply the law as set by Parliament in the Divorce Act and the legal principles that courts, especially the British Columbia Court of Appeal and the Supreme Court of Canada, have set out.
[60] Section 16 is the part of the Divorce Act that deals with custody orders. It gives a judge of the Supreme Court the right to make custody and access orders in a divorce case. It tells me that in making an order I shall take into consideration only the best interests of the child as determined by reference to her conditions, means, needs and other circumstances (s. 16(8)).
[61] Section 16 tells me that I shall give effect to the principle that they should have as much contact with each of their parents as is consistent with their best interests and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact (s. 16(10)). This section also tells me that I shall not take into consideration the conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child (s. 16(9)).
[62] For a long time, there was a debate among judges about when joint custody should be granted and when sole custody should be granted. Some thought that it is in the best interests of children to have only one parent make the decisions, even though the other has generous access. Other judges thought that joint custody should only be granted when both parents agree to it.
[63] Others thought that joint custody should be granted even if there was no agreement, as it is in the best interests of the children to cooperate. Some thought there should be a presumption that parents continue to have joint custody after they separate like they had before they separated, unless it can be shown why there should not be joint custody.
[64] Both the British Columbia Court of Appeal and the Supreme Court of Canada have now provided direction to trial judges in this respect. The Court of Appeal, in Robinson v. Filyk (1996), 84 B.C.A.C. 290 followed an earlier decision of the Supreme Court of Canada called Gordon v. Goertz, [1996] 2 S.C.R. 27. These courts have said that there should be no starting presumption or point of view by judges about what is best for children. What a judge must be concerned about is what arrangement is best for the particular child before the court, given that child's situation and that of the child's parents.
[65] In Gordon v. Goertz the Supreme Court of Canada said (at p. 58) that Parliament did not entrust the court with the best interests of most children. It entrusted the court with the best interests of the particular child whose custody arrangement fell to be determined.
[66] In Robinson v. Filyk at para. 29, the Court of Appeal said that the only issue is the child's best interest. The child's best interest must be found within the practical context of the reality of the parents' lives and circumstances. The Court said that legal and factual presumptions about what is best for children, like the ones I have referred to above, have no place in an enquiry into the best interests of a child. They detract from the "individual justice to which every child is entitled" (at para. 22).
[67] The British Columbia Court of Appeal has upheld a decision of a trial judge who gave joint custody to parents when the evidence was that the parents were unable to cooperate and Dr. E. believed that joint custody was unworkable, having regard to the history of the relationship between the parties and certain past conduct of the mother: Carr v. Carr, 2001 BCCA 415.
Discussion
[68] I agree with P.W. and K.W. that an equal sharing of parenting time is in the child’s best interests. It allows the child to fully benefit from the many good qualities each parent has to offer, while at the same time minimizing contact between her parents and, thus, the chance of conflict.
[69] I will first consider how the shared parenting time will be implemented.
[70] The five day rotation should begin forthwith. At the next change, the parent who has the child will have her for five days, instead of four. I think that it is important for the child to see that there are some immediate changes. The five day rotation will continue until her spring break. Once she returns to school after spring break, the seven day with each parent plan will come into effect, with the transfer being on Friday evenings. That week with one parent, next week with the other will then continue indefinitely, and notwithstanding various holidays or other breaks. I am not going to make orders with respect to birthdays or mother or father’s day. I think that arrangements can be made to celebrate those events on another day, when the child is scheduled to be with a particular parent. This, of course, is subject to the agreement of the parents in writing.
[71] The parent who does not have the child during Christmas can choose whether to have her from noon on Christmas Eve to noon on Christmas Day, or from noon Christmas day to noon Boxing Day. That choice must be communicated by December 1. If the choice is not made, the residential parent can choose, and must advise the other of the decision. Any other arrangement can be made with the written consent of the parties.
[72] I now turn to the question of whether there should be sole custody to either P.W. or K.W., or whether there should be joint custody.
[73] In my view, it is in the child’s best interests that P.W. and K.W. both have joint custody and guardianship of the child.
[74] I have concluded that it is not in the child’s best interests to have only her mother make major decisions for her. While things are improving, P.W. has made decisions in the past that I have concluded were not in the child’s best interests.
[75] I also do not think that it is in the child’s best interests that only K.W. makes major decisions for her.
[76] The child will benefit from having both her parents play a role in making major decisions that affect her life. I agree with Dr. E.’s conclusion that there should be an equalization of parenting power. I wish to emphasize that in this regime, the parent with whom the child is residing will make the day to day decisions affecting the child.
[77] It is only major decisions that require joint decision making. Major decisions include such things as extracurricular activities that she participates in, where she goes to school, major medical decisions, and going on significant trips without her parents.
[78] They are to consult about and share major decision making by email. This means that each time a major issue arises, the parent who feels it has to be decided will seek the input of the other by email. They will make every effort to reach a resolution that is in the best interests of the child. If they are unable to make a decision, they will each prepare a letter, setting out what the dispute is, attaching copies of the emails, and indicating what they think the decision should be and why. That letter should be provided to Mr. Wolfson, who will provide an opinion. If the parties are still unable to agree upon a solution, the letters and Mr. Wolfson’s response should be provided to the court. I will provide a written decision to the parties by way of memorandum.
2. Telephone Access – how should it work?
[79] When the child is residing with one parent, she can call the other parent every evening between 6:00 p.m. and 8:00 p.m. She should have her own phone line in her room at each house, and an answering device. If the other parent is not there, she will leave a message. The other parent will not call back unless it is absolutely necessary. I have taken into account the cost of having these separate lines. However, it is a small price to pay given the advantages of doing so. She should be given complete privacy to make her calls. The parent with whom she is residing should not ask her any questions about the calls.
[80] The most important issue here is to ensure that the parent who has telephone contact does not make the child feel guilty if she does not phone. She has obviously been under some stress as a result of conflicts relating to telephone calls.
3. (a) How should access exchanges take place?
[81] This is a difficult question. I see advantages and disadvantages to each suggestion. I have decided that, on balance, it is in the child’s best interests that the exchanges take place at a neutral location. That will minimize the anxiety that P.W. feels. That, in turn, will likely place less stress on the child. I am reinforced in this conclusion by the views of Dr. E.
(b) How should the parents communicate?
[82] The parties should communicate by email. As noted above, there is to be no communication by telephone or otherwise, except in an emergency.
[83] Issues four and five can be considered together.
4. Should there be an independent assessment to see whether the child needs ongoing psychiatric counselling?
5. If it is determined that there should be, should the person doing it be Dr. J.? If not, who should it be? If so, for how long? Should Dr. J. be asked for a report? If so when?
[84] These are complex issues. There is some benefit to having an independent assessment of both the need for further therapy, and the nature of that therapy. At the same time, the child has a good relationship with Dr. J. and has received some benefits from the therapy she has received.
[85] In order to obtain meaningful results from an assessment, a full assessment would be required. This would require the child’s participation, and require her to yet again review the events of the past. I have decided that, on balance, it is in the child’s best interests to try to stabilize her life as best as possible. Embarking on a further assessment would be contrary to that objective.
[86] Instead, I have concluded that she should see Dr. J. until the end of September 2003. She will do this on the basis that neither Dr. J. nor her clinical records are compellable, and they are not to be released to the parties without a court order. At that time, Dr. J. should report to the court in writing, indicating her opinion as to whether further therapy is required, and, if so, what therapy, why and for how long.
6. Should there be any directions regarding K.W.’s alcohol difficulties? Should there be an direction with respect to counselling for P.W.? Or for both?
[87] I will deal with the question of K.W. and alcohol first. I conclude that it would be helpful for the child if K.W. undertook a comprehensive assessment from an addiction specialist. He has consented to do so if the court thinks it would be helpful. There will, therefore, be a consent order directing that such an assessment take place.
[88] I conclude that it would be helpful for P.W. to see a counsellor to canvass ways in which she can help make the child’s new life a positive one. I encourage her to do that. However, I do not make an order requiring her to do that.
7. Should I make a finding that K.W. did not act in a sexually inappropriate way?
[89] As noted above, I am satisfied based on the evidence before me, that K.W. has not acted in a sexually inappropriate way with his daughter.
8. Should there be a review by the court? If so, when?
[90] I am, by consent, seized of any further applications in this matter until further order of the court. I direct, pursuant to Rule 60E of the Supreme Court Rules, that a Judicial Case Conference (“JCC”) take place before me sometime after September 30, but before November 30.
[91] That JCC will be for the purpose of a review. I emphasize that it is only intended to be a review of a limited number of questions, as follows:
· Is there a need for ongoing therapy of the child, and if so, what form should it take;
· How have the parties cooperated to make major decisions;
· Should there be a change in the way in which the access exchanges are accomplished; and
· Should there be a change in the telephone access regime?
[92] This provision does not prevent a party from exercising his or her right to bring a motion in chambers. However, I direct that before such a motion can be brought, there must be a JCC before me.
9. Should there be ongoing involvement by the Family Advocate? If so, how? Meeting with parents? Meeting with Dr. J.?
[93] During the course of the trial I expressed concern that the first family advocate’s services were unilaterally terminated while this litigation was ongoing, and without regard to the need for an advocate in this case. However, I was pleased that a new family advocate was appointed when the circumstances of this case were drawn to the attention of the Attorney General’s Ministry.
[94] Mr. Wolfson, acting as family advocate, has played a very important and beneficial role in this litigation. Among other things, he has met with the child a number of times. He has met with Dr. J., and been present at a meeting that was also attended by Dr. J. and the parents. A further such meeting, attended by Mr. Wolfson, is in the child’s best interests. A meeting between the parents, with Mr. Wolfson present, would also be useful.
[95] I have concluded that Mr. Wolfson can assist the court during the next several months in monitoring the progress of the case, and in resolving conflicts that arise. It would be extremely helpful to the court to have him meet with the child in September to review Dr. J.’s report and to attend the Judicial Case Conference.
[96] I therefore respectfully request that the Attorney General consider authorizing payment for this further, but limited, involvement by Mr. Wolfson as family advocate, in this case.
10. Child Support: – should this court decide it at all? If so, should there be any direction, and, if so, how much?
[97] I have concluded that it is appropriate for this court to assess the parties’ income for the purposes of child support. This has been a long trial and the parties have had the opportunity to present any relevant evidence to the court. It is in the child’s best interests to try to minimize future legal conflict.
[98] This is a case where imputing income is appropriate. Income is based not only on what a parent does earn, but what a parent is capable of earning. I have set out the principles that apply when the court is considering imputing income in Hanson v. Hanson, [1999] B.C.J. No. 2532.
[99] Imputing income is the way in which the court gives effect to the legal requirement that a parent must earn what the parent is capable of earning. Bad faith on the part of a parent is not required before income is imputed. The Federal Child Support Guidelines (“the Guidelines”) are not designed to punish parents who try to avoid child support payments. Instead, the Guidelines are designed to establish a fair standard of support for children to ensure that they continue to benefit from the financial means of both parents after separation: s. 1(a) of the Guidelines.
[100] A number of principles relating to imputing income that are referred to in Hanson apply in this case.
1. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. The parent required to pay is intentionally unemployed if he or she chooses not to work when capable of earning an income. Parents have a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work.
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.
[101] Financial disclosure by K.W. causes some concern. Different amounts have been included in financial statement prepared in and around the same time period. Income tax returns were not filed in a timely way, and when they were, the pension monies received were not properly reported. No adequate explanation has been provided.
[102] K.W. agreed before the Provincial Court that his income should be imputed at $35,000. That, in my view, properly reflects his income earning ability. In the absence of full financial disclosure, that figure is the most reliable indication of his income earning ability.
[103] I also conclude that P.W. is capable of earning more than she is earning, given her previous work experience. There is nothing in the evidence to show that she can not, particularly now that she will not be spending so much time focused on this litigation. I assess her income earning ability at $15,000.
[104] Section 9 of the Guidelines is the section that applies. It says:
Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 percent of the time over the course of a year, the amount of the child support order may be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse.
[105] The British Columbia Court of Appeal has discussed the way in which child support should be determined under this section in Green v. Green, 2000 BCCA 310. The court said that there is no fixed formula that should be used when applying the shared parenting section. Rather, discretion is built into the section.
[106] The table amount for one child based on an income of $35,000 is $303 per month. The table amount for $18,000 is $150 per month. I conclude that, based on K.W.’s greater income earning ability, and the other means, needs and other circumstances of each spouse, K.W. should pay to P.W. $150 per month in child support beginning January 1, 2003, and the first day of each month thereafter.
11. Property Division – Who should have the say regarding how the trust funds for the child should be spent? How should the money in Mr. Linde’s trust account be divided?
[107] I conclude that the $3,279 and the $466.73 (if it is still available) should be shared equally based on the presumption of equal division of assets.
The Divorce
[108] I am satisfied that the prerequisites for a divorce have been proven and I grant a divorce order. The application of P.W. asking for a name change is granted.
Miscellaneous Matters
[109] I direct that the parties not discuss this litigation with the child and that they not discuss with her the findings of conduct of the court. She should be told that the court had concluded that her parents should share custody of her and she should be told how that will work in terms of where she will be when. She should be told that she will continue to see Dr. J. until the end of September 2003, and the judge will then decide whether or not she should have more counselling. Nor should they say anything negative to her about the decision of the court. It will be a part of the order that the parties do not refer to each other in derogatory terms to, or in the hearing of, the child.
[110] [OBSERVATIONS AND DISCUSSION]
[111] With respect to child pick ups, she will be picked up from school on school days, and at 6:00 p.m. on non school days. The pick up and delivery will be at the McDonald’s at or near Lougheed Highway and North Road.
[112] With respect to the Provincial Court’s action, that Court has the jurisdiction to enforce any arrears now outstanding. The Supreme Court has exclusive jurisdiction to vary the orders I have made. The Provincial Court of course has the authority to enforce those orders.
[113] By agreement, it is ordered that no information arising from Dr. J.’s ongoing involvement with the child, other than her report, referred to earlier, is compellable or otherwise admissible in these proceedings.
[114] I wish to thank counsel for their assistance on this difficult case. I would particular like to thank Mr. Wolfson in his role as family advocate. I have found his assistance to be most helpful to the court.
“D.J. Martinson, J.”
The Honourable Madam Justice D.J. Martinson