Citation:

McOuatt v McOuatt

Date: 20020705

 

2002 BCSC 1000

Docket:

ED23036

Registry:  Nanaimo

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

bruce alan mCOuatt

plaintiff

AND:

marianne mCOuatt

defendant

 

 

REASONS FOR JUDGMENT

 

OF THE

 

HONOURABLE mr. JUSTICE hutchinson

 

 

No one appeared for the plaintiff

 

The defendant appeared in person

 

Date and Place of Hearing:

06 May 2002

Nanaimo, BC

 

 

[1]            This matter came before Macaulay J. on 18 April 2002 and was referred by him to me as one of the resident judges in Nanaimo.  I heard submissions on 6 May 2002 and have since gone over the material in the file to determine the basis of the original order.

[2]            After the parties were divorced on 22 August 2000, they consented to an order whereby the plaintiff would pay child support of $500 for the two children of the marriage, based on the plaintiff’s guideline income of $34,700.

[3]            The plaintiff filed a motion on 15 January 2001, which is marked as appendix A to these reasons.

[4]            The motion came on for hearing before Lander J. on 22 January 2001 and both the plaintiff and the defendant appeared in person.  A transcript of that hearing is marked Appendix B to these reasons and a transcript of the reasons for judgment of Lander J. dismissing the plaintiff’s application are set out in Appendix C.  The clerk’s notes are set out in Appendix D.

[5]            Two weeks later, I was presiding in chambers and the plaintiff appeared.  A transcript of what occurred is set out in Appendix E.  It is not clear from the court file how the plaintiff had the matter reset on 5 February after all the issues had been disposed of two weeks earlier.

[6]            Before the order was entered the defendant wrote a letter to the District Registrar, and on receipt of that, I ordered a transcript of the proceedings and then directed the parties to appear before me on 20 April 2001.  Appendix F is the letter of Ms. McOuatt, Appendix G is a copy of the order setting aside my order of 5 February 2001.  This was granted on the basis that all the issues raised in the notice of motion filed on 15 January 2001 had been decided by Lander J. on 22 January 2001.  I directed the matter of whether the plaintiff was in contempt of court for misleading the court be decided by another judge.

[7]            Lander J. heard that motion on 19 June 2001.  Attached, as Appendix H. is the affidavit of the plaintiff in defence of that motion and Appendix I is a copy of the clerk’s notes.

[8]            There is no transcript of what occurred in court on 20 April 2001 and what occurred before Lander J. on 19 June 2001, but copies can be ordered if required.

[9]            I have gone into the history of this issue as the matter has come before me on an application to confirm an order of Athey J. of the Court of Queen’s Bench in Fredericton, New Brunswick made on 17 December 2001, whereby she ordered that the original order for child support be reduced to zero dollars from December 2001.  On reading the material and transcript of the evidence before Athey J. there appear to be discrepancies between the facts related to her and the transcripts which raise the issue of the plaintiff’s credibility.

[10]        Section 18 of the Divorce Act does not provide for a referral of the matter back to the court making the provisional order.  I append as “J” the affidavit of the defendant filed 15 April 2002.  The plaintiff has filed many letters to indicate his efforts to find employment.

[11]        On the basis of this evidence I refuse to confirm the provisional order, but suggest the plaintiff be given an opportunity to answer the issues raised above and answer the allegations made by the defendant in her affidavit.  It is preferable that this be done in New Brunswick where the plaintiff now resides and where the judge who made the provisional order can weigh the plaintiff’s evidence against that of the defendant and what occurred before her on 17 December 2001.  If the provisional order is varied the confirmation hearing should be dealt with by another judge in this province as I am retiring effective 16 July 2002.

“R.M.J. Hutchinson, J.”
The Honourable Mr. Justice R.M.J. Hutchinson

NOTE:  Appendixes A – J are available in the Court Registry Files.