Bassett v. Magee

2020 BCSC 1994 Bassett v. Magee

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bassett v. Magee, 2020 BCSC 1994 Date: 20201218 Docket: E22467 Registry: Cranbrook Between: Dean Leigh Bassett Claimant And Erin Maureen Magee Respondent Corrected Judgment: The text of this judgment was corrected at paragraph 52 on January 5, 2021. Before: The Honourable Mr. Justice A. Saunders Reasons for Judgment Counsel for the Claimant: D. Reimer Counsel for the Respondent: M. Matthews Written Submissions of the Claimant Received: May 4 and June 23, 2020 Written Submissions of the Respondent Received: April 20, May 15, and June 19, 2020 Place and Date of Judgment: Cranbrook, B.C. December 18, 2020 [1] The Respondent, Ms. Magee, applies for an order varying, both retroactively and prospectively, both the basic child support and special and extraordinary expenses ordered in the January 27, 2015 trial order pronounced by Mr. Justice Macintosh (the "Trial Order") (reasons for judgment indexed at 2015 BCSC 237 (the "Trial Reasons")); an order in respect of the parties' communications and conduct; and an order respecting control of the Registered Education Savings Plan ("RESP"). [2] This application has long been outstanding, having first been filed by Ms. Magee on August 1, 2017. I was appointed to have case management of this proceeding in January 2019, following an order made by Mr. Justice Marchand on December 28, 2018,

which dismissed Mr. Bassett's application to have Ms. Magee's counsel removed from the record (reasons indexed at 2018 BCSC 2322) (the "Removal Decision"). At a Case Planning Conference heard before me on May 6, 2019 I made orders for further financial disclosure, and directed Ms. Magee to file a new notice of application and supporting affidavit materials. Subsequent scheduling difficulties, up to and including the Court's COVID-19 related reduction in hearings, prevented the timely scheduling of a hearing, and in a memorandum to counsel dated April 6, 2020 I proposed that the application be dealt with by way of written submissions. The parties have waived oral submissions. Child Support - the Trial Order [3] In the Trial Reasons, Macintosh J. made the following determinations in respect of child support: [63] Mr. Bassett is to pay child support of $1,448 per month, pursuant to the Federal Child Support Guidelines, based on his present income. Starting February 1, 2015, that payment will be one‑half every two weeks rather than all at the first of the month. [64] Both parties are obligated to advise the other by June 30 of each year of their annual income, and any adjustments in Mr. Bassett's payments will be as of August 1 following. [65] The parties are to share equally all Wyatt's hockey expenses. The children's orthodontic expenses are to be covered by whichever parent's plan at work allows for that. The net cost of the children's orthodontics are to be borne equally. [4] The terms of the Trial Order reflected those reasons: 24. Based on the Claimant's present income, he shall pay child support to the Respondent for the children in the amount of $1,448.00 per month. Such payments are to commence February 1, 2015, with one-half being paid every two weeks.

25. Each party shall advise the other of their annual income by June 30th of each year. Any adjustments of the Claimant's child support obligation shall be as of August 1st each year.

26. Each party shall pay an equal share of the child Wyatt's hockey expenses.

27. Orthodontics for the two children shall be covered by each of the parent's respective employment insurance dental plans that allow for such. The net costs of the orthodontics, shall be paid equally by the Claimant and the Respondent. [5] Under the Federal Child Support Guidelines [Guidelines], monthly Table support payable by a payor with annual income of $97,800.00, for two children, would be in the amount of $1,448.00. I accept Ms. Magee's representation that one of the exhibits before Macintosh J. at trial was a June 26, 2014 letter from Mr. Bassett's employer that stated Mr. Bassett's annual salary was $97,788.36. [6] There have been no adjustments to the basic child support amount since the Trial Order was pronounced. [7] Following entry of the Trial Order on April 1, 2015, a series of further applications was filed, and heard by Macintosh J., one on July 2, 2015, two others on November 19, 2015. The latter hearing encompassed an application that had been filed by Ms. Magee on October 29, 2015, in which she sought variation of the child support, increasing it to $1,726.00 per month in accordance with the Guidelines; an order that Mr. Bassett pay the children's special expenses on the terms that had previously been ordered by Mr. Justice Greyell, in an interim order pronounced in December 2012; and an order staying the sale of the family home. As to variation of basic

support, the Factual Basis - Part 2 of the notice of application - referenced the recent disclosure of Mr. Bassett's 2014 T4 as showing income of $119,438.83. As to special expenses, the notice of application referenced Ms. Magee incurring tuition costs for the parties' daughter, as she had not been permitted to relocate from Cranbrook, and a change in their son's sports activities. [8] (The Legal Basis - Part 3 - of that notice of application followed the "barebones" practice of only listing the statutes and rules relied upon, a practice that has been found improper since the Supreme Court Civil Rules, B.C. Reg. 168/2009 and the Supreme Court Family Rules, B.C. Reg. 169/2009 [SCFR] came into effect in 2010: Dupre v. Patterson, 2013 BCSC 1561; Crossan v. Crossan, 2016 BCSC 2102. The present notice of application is similarly deficient.) [9] Justice Macintosh gave judgment orally on November 20, 2015. In respect of the child support issues, he said: [6] I am not increasing Mr. Bassett's support payment obligations based on all of the evidence to this point. A separate application, confined to that question, can be brought if necessary next year, but at present I am allowing Mr. Bassett to regroup financially. [7] I am not revisiting the special expenses obligations, which I addressed in the trial decision. In my view, they should have been the subject of appeal if they were going to be revisited. [10] The Order entered upon those reasons stated: 1. The application to vary the basic monthly support under the Trial Order of January 27, 2015 from $1,448 per month to $1,726 is dismissed at this time.

2. The application to vary the special expenses from the Trial Order is dismissed. [11] The present application is the first since that Order of November 20, 2015 to seek variation of child support. Variation of Support Orders [12] It will be noted that the Trial Order did not require the parties to adjust annually the amount of child support, to correspond with material fluctuations in income. Neither did it dictate a schedule or mechanism by which the parties would agree on any such adjustment. The Trial Order simply provided a date for annual disclosure of incomes, and a date as of which any adjustments would be effective. [13] Ms. Magee submits that the Trial Order "included a term that child support should be automatically adjusted annually pursuant to the [Guidelines]". That, however, is not what the Trial Order said. The Guidelines do not mandate "automatic" adjustments to support. The child support regime instituted under the Divorce Act, R.S.C. 1985 c.3 (2nd Supp.), is application-based, in respect of both initial support orders and variation, putting the onus on both payor and payee to ensure that adequate support is in place. An increase in income may, if there have been no other material changes in circumstance, place a payor under an obligation to adjust their payments. If a payor does nothing, that obligation may, on application, be determined and enforced by way

of a retrospective order: see D.B.S. v S.R.G, 2006 SCC 37 [D.B.S.] at paras. 56-60. Until a support order is varied, however, it remains presumptively valid, and the payor is entitled to the certainty and predictability the order entails, subject to the possibility of variation, including retroactive variation: D.B.S., at paras. 62-66. [14] It is correct to say that Mr. Bassett has not been paying increased Table amounts of basic child support that would be payable under the Guidelines, commensurate with his increases in income. It is incorrect to say that he has been under a continuing legal obligation to pay increased amounts, which is how Ms. Magee, in her written submissions, now characterizes Mr. Bassett's position. Whether that obligation did exist is the subject of this variation application. I will say more, later in these Reasons, about Ms. Magee having characterized Mr. Bassett's position in this manner. Variation of Child Support - Basic Support [15] Applications for variation of support orders require proof of a material change in circumstances. In respect of varying the basic child support order, Ms. Magee relies chiefly on increases in Mr. Bassett's income since the date of trial. (Ms. Magee argues that Mr. Bassett also underreported his income at trial; however, she did point out in her notice of application filed October 29, 2015 that Mr. Bassett's 2014 income

was actually $119,438.83; Macintosh J. nevertheless declined to increase the basic child support payable.) Ms. Magee submits there have been other changes in the parties' financial circumstances as well, although those circumstances do not appear to be material to the calculation of Table child support amounts, but rather to the parties' living standards in respect of the determination of hardship under s. 10 of the Guidelines. [16] Ms. Magee submits that Mr. Bassett's income increased, from the $97,788.36 on which the Trial Order was apparently based, to $122,715.91 in 2015; $116,376.54 in 2016; $114,450.00 in 2017; and $124,158.00 in 2018. Mr. Bassett does not dispute these figures. Further, Mr. Bassett's 2019 T4 shows employment income of $124,958.68. Ms. Magee submits that the effect of these increases in income since trial has been to make Mr. Bassett liable for retroactive child support. She is not seeking what she submits is the full retroactive amount of $22,456.96; after adjustments that account for both her retroactivity claim only extending back to December 1, 2016, and a claw-back of a temporary voluntary increase in support payments that FMEP attributed to interest on arrears, Ms. Magee puts the retroactive support obligation at $15,655.93. She says that on the basis of his 2019 income, his monthly basic child support should increase, going forward, from the

current level of $1,448.00; the Table amount based on Mr. Bassett's 2019 T4 income would be $1,844.08. [17] Mr. Bassett does not dispute these calculations. What he submits is that he should be relieved of his obligation to pay the full amount of Table support on the grounds of undue hardship. Undue Hardship [18] Section 10 of the Guidelines provides for an amount other than Table support being awarded in cases of undue hardship. It provides: 10. (1) On either spouse's application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. (2) Circumstances that may cause a spouse or child to suffer undue hardship include the following: (a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living; (b) the spouse has unusually high expenses in relation to exercising access to a child; (c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person; (d) the spouse has a legal duty to support a child, other than a child of the marriage, who is (i) under the age of majority, or (ii) the age of majority or over but

is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. (3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse. (4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II. (5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time. [19] The process for establishing undue hardship under these provisions was summarized by Madam Justice Prowse in Van Gool v. Van Gool (1998), 64 B.C.L.R. (3d) 94 (C.A.) [Van Gool]: [45] The undue hardship test under s. 10 is two-fold. The spouse applying for relief under this section must prove that payment of the table amounts

would cause undue hardship under s. 10(1) having regard to the criteria in s. 10(2). If this test is met, the applicant must go on to establish that, if required to pay the amount of maintenance otherwise payable under the guideline table, the standard of living of his or her household would be lower than that of the household of the other spouse. If this dual test is met, the court has a discretion to award a different amount of maintenance than that otherwise required under the Guidelines. [46] Section 10(2) sets out a non-exhaustive list of circumstances which may give rise to a finding of undue hardship. Justice Prowse cited with approval passages from the decision of Madam Justice Robertson in Swift v. Swift, [1998] O.J. No. 501 (C.J. (Gen. Div.)), in which undue hardship was described as "a tough threshold to meet", "more than awkward or inconvenient", and synonymous with "excessive, extreme, improper, unreasonable, [or] unjustified". [20] Justice Prowse further reminded us in Van Gool that the interpretation of s.10 is subject to the objectives and presumptions imbedded in the Guidelines: [24] As with any other question involving the interpretation of the Guidelines, the court must bear in mind the objectives of the Guidelines which are set out in s. 1 as follows: Objectives 1. The objectives of these Guidelines are (a) to establish a fair standard of support for

children that ensures that they continue to benefit from the financial means of both spouses after separation; (b to reduce the conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances. [25] The court must also have regard to the presumptive rule set out in s. 3 of the Guidelines: 3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7 [special or extraordinary expenses]. [21] Mr. Bassett relies on subsections 10(2)(a) and (b): unusually high levels of debt to earn a living; and unusually high expenses in relation to exercising access. Procedural Issue [22] Ms. Magee objects to Mr. Bassett raising the hardship issue on this application, as there is no application before the Court for "hardship review". This objection is unfounded. Mr. Bassett is not

seeking review of the support order that has been in place since the trial. He is raising undue hardship in opposition to the present application. There is no requirement in the SCFR that hardship be determined by way of a free-standing application. Not only is it permissible for Mr. Bassett to seek a determination of hardship on the present application, it is desirable that the Court make that determination in concert with determining the support variation issue: see Brady v. Watson (27 March 1998), Vancouver D54618 (B.C.S.C). Undue Hardship: Debt [23] The debt that Mr. Bassett submits creates undue hardship arises out of legal expenses incurred to set aside a finding of contempt. The circumstances are described in the Reasons of the Court of Appeal, indexed at 2015 BCCA 422. (This was an appeal of both the contempt finding, and aspects of the Trial Order.) It bears mention that following the finding of contempt, Ms. Magee's counsel stated during a penalty hearing that she was seeking jail time. Mr. Bassett submits that the finding of contempt - which, of course, is quasi-criminal in nature - potentially had a devastating impact on his career as a constable with the Calgary Police Department. I accept his evidence that the contempt finding, prior to it being overturned, resulted in him losing the opportunity to earn higher income as an acting sergeant, and exposed him to the

risks of losing opportunities for advancement, or even dismissal. I find that his legal expenses in resisting the contempt application in this court, and in having it overturned on appeal, were incurred to earn a living within the meaning of s. 10(2)(a). [24] The Court of Appeal, in overturning the finding of contempt, awarded Mr. Bassett special costs of the appeal and of the original contempt hearing. On the assessment of Mr. Bassett's special costs on appeal, he tendered legal bills in the amount of $125,425.32, which included post-appeal costs of more than $35,000. The Registrar (reasons indexed at 2016 BCCA 329), made certain deductions on the basis of specified findings. These included costs that were found to have been incurred in the Supreme Court and that were therefore outside the jurisdiction of the Court of Appeal Registrar; reductions in fees and travel disbursements for two lawyers that were found excessive; fees for representing Mr. Bassett on an interlocutory application brought on the appeal where Ms. Magee had been awarded her costs in any event of the cause; and similar matters. Those particularized deductions amounted to $23,736.53. The Registrar then reduced the balance by 30%, "taking into account the various factors in Rule 61(2)" of the Court of Appeal Rules, B.C. Reg. 297/2001 [Court of Appeal Rules], and issued a certificate of costs in the amount of

$74,595.64. This amount has been paid. The evidence is that it was paid not by Ms. Magee personally, but by her counsel's insurer. [25] Ms. Magee says that this assessment of costs is a complete answer to Mr. Bassett's attempt to obtain credit for the remaining amounts owing on his counsel's fee accounts; those excess amounts have been adjudged by the Registrar not to be reasonable, and therefore, it is submitted, they cannot form the basis of a hardship claim. [26] The force of that argument, however, is blunted by three considerations. First, a significant number of deductions were in respect of matters that were properly incurred, but were simply not within the Registrar's jurisdiction, e.g., amounts incurred in the Supreme Court. [27] Second, Ms. Magee's position, in essence, is that Mr. Bassett ought to have had his counsel's fee accounts reviewed; and that had there been a review, the outcome would have been the same. But that does not necessarily follow. The factors considered in a special costs assessment under the Court of Appeal Rules do closely track the circumstances to be considered on a review of a lawyer's account (Legal Professions Act, S.B.C. 1998, c.9, [LPA], s. 71(4)). But a Registrar on a review assessment would be bound to give different weight to those factors, particularly depending, as implied by ss. 71(2) and (3) of the LPA, on whether services

objectively determined to be unnecessary were nevertheless reasonably intended to advance the client's interests, and whether the services or fees were authorized or approved by the client. [28] Third, though I might accept that some reduction of the amount of the outstanding accounts is reasonable for the purposes of a hardship assessment, given the Registrar's findings, that would only reduce the total amount of the indebtedness, and therefore, the length of time required to pay it off; it does not follow that this would necessarily reduce, to any significant extent, the amount of the monthly payments Mr. Bassett is reasonably required to make. [29] I find that Mr. Bassett's indebtedness to his counsel does create undue hardship under s. 10(2)(a), taking into account: the size of the debt; the proportion the monthly payment obligation, or even a sizeable portion of it, bears to Mr. Bassett's Table support obligation; and the improper and unjustified circumstances which necessitated the debt being incurred. Undue Hardship: Unusually High Access Costs [30] Mr. Bassett also submits that undue hardship arises by reason of his unusually high transportation and living expenses incurred in relation to travelling from his home in Kimberley, where he resides on his days off so that he can parent the children in Cranbrook, to Calgary, where he is employed and where he stays with or

rents from friends. [31] Mr. Bassett says that his hardship claim was implicitly accepted by Macintosh J. in his November 2015 decision allowing Mr. Bassett to "regroup financially". Ms. Magee says there has been no material change in Mr. Bassett's access costs since trial such as to support a variation, and that Mr. Bassett is estopped from raising the issue under the principle of res judicata. [32] The record as to what issues were advanced at trial, six years ago, is unfortunately murky. The Trial Reasons did not address the hardship issue and made no findings that could support a hardship claim. In March 2015, however, just shortly after the Trial Reasons were pronounced, Mr. Bassett filed a notice of application seeking orders, inter alia, in respect of parenting time and the sale of the matrimonial home, and also seeking a stay of certain aspects of the Trial Order. As to the latter, the notice of application asserted that Mr. Bassett's appeal of the Trial Order had been filed, would involve "at least 26 errors in law and material errors of facts", and that these errors included the trial judge's purported failure to reduce support due to undue hardship by reason of "significant debts and expenses incurred to earn a living" - not by reason of access costs. [33] These expenses were referred to again in Mr. Bassett's application response filed in opposition to Ms. Magee's

November 2015 variation application. Mr. Bassett stated: 11. The Applicant's request to vary the Trial Order and impute additional income to the Application Respondent is unwarranted and inappropriate for the following six reasons: (e) The Application Respondent has not abandoned his undue hardship claim as he has significant debts from the marriage, its breakdown and the litigation, including the wrongful contempt ruling and subsequent appeal, he incurs commuting and accommodation expenses to earn a living and has a significantly lower household standard of living than the Applicant. [Emphasis added]. I infer that these commuting and accommodation expenses, then referred to as being incurred to earn a living, are the same expenses that Mr. Bassett now characterizes as being incurred in respect of exercising access. [34] Following the Court of Appeal's decision of October 7, 2015 on the appeal, Mr. Bassett sought to have the appeal reopened. Supplementary Reasons were issued December 14, 2015 (indexed at 2015 BCCA 511). On the issue of arrears, Mr. Bassett submitted that one of the errors made by the trial judge was failure to take his undue hardship into account. Mr. Justice Donald held: [8] The trial judge was fully aware of the parties' financial circumstances when he gave his reasons. I do not accept that the trial judge ignored the appellant's position when he decided the

arrears issue. In any event, the appellant did not argue hardship at trial, and so it is not surprising that the trial judge did not mention the point in his reasons. [Emphasis added]. [35] Meanwhile, Macintosh J. had ruled on Ms. Magee's variation application. I do not accept that a finding of hardship is implicit in his November 2015 variation reasons. Such a finding would have required a determination of whether the hardship was "undue", and an analysis of the parties' relative standards of living under s. 10(3). The absence of any such analysis strongly implies that Macintosh J. had considerations other than a technical finding of "hardship" in mind. [36] This leaves us with the question of whether Mr. Bassett is now estopped from raising this hardship concern, as a consequence of how the issue of his expenses was dealt with - or not dealt with - at trial. [37] Res judicata is a doctrine that prevents parties from re-litigating issues that have previously been decided between them, or that ought to have been decided in a previous proceeding - see the summary of the twin aspects of the doctrine, cause of action estoppel and issue estoppel, in Erschbamer v. Wallster, 2013 BCCA 76 [Erschbamer]. [38] There appear only to be two alternatives as to the treatment at trial of the issue of hardship arising out of Mr. Bassett's accommodation and transport expenses. Either the

expenses were raised at trial as a hardship issue (contrary to the conclusion reached by the Court of Appeal), and implicitly rejected by the trial judge; or they were not raised, when they could have and should have been. In either case, Mr. Bassett is estopped from raising the issue now. Cause of action estoppel, as broadly defined in Erschbamer, clearly applies. Further, there is no evidence that these expenses, or the circumstances in which they are incurred, are now so materially different from the situation at trial that variation is permitted. If they did not create a hardship at the income Mr. Bassett was earning at the date of trial, it is hard to see how they are a hardship now. I cannot find undue hardship on this ground. Undue Hardship: Standards of Living [39] Having found undue hardship in respect of the legal expenses debt, I must apply s. 10(3) of the Guidelines. The parties, not surprisingly, are at odds as to what data should go into the Worksheet calculations. [40] I have recalculated the comparison of household standards of living in accordance with the foregoing hardship determinations. Using Ms. Magee's income figures for both parties - that is, not including the income being earned by the parties' son, which Mr. Bassett submitted should be accounted for - and including in Mr. Bassett's income deductions a $12,000 per year expenditure for the debt

repayment, Mr. Bassett's income ratio is 5.86, vs. Ms. Magee's ratio of 6.17. I note that even if the allowable amount of the legal expense indebtedness were to be reduced so as to correspondingly lower the monthly payment from $1,000.00 to as little as $716.00, there would still be rough parity in the income ratios. I do not find, on the evidence, that applying the hardship determination I have made would result in Mr. Bassett being left with a higher standard of living. Undue Hardship and Variation of Support: Conclusion [41] Lastly, reducing support below the Table amounts, on account of undue hardship, is a matter of discretion. I do not find that allowing the hardship claim would frustrate the objectives of the Guidelines. It is appropriate for the undue hardship created by the legal expense of defending and successfully appealing the contempt finding be recognized through denying the application for retroactive and prospective variation of child support. Special and Extraordinary Expenses [42] As noted above, an interim order for sharing of special and extraordinary expenses under s. 7 of the Guidelines was made by Greyell J. in 2012. The extraordinary expenses were specified in that order to include daycare; extracurricular activities such as hockey, soccer, skiing, swimming and gymnastics; private school tuition and uniform costs; and medical expenses, including

medications. [43] These and other special and extraordinary expenses (with the exception of tuition, which I address below) were before the trial judge in 2014-2015. The Trial Order only made provision for hockey and orthodontic expenses. I find that the trial judge, implicitly, must have considered the other expenses not to qualify as special or extraordinary, under s. 7 of the Guidelines. Ms. Magee argues that this interpretation of the Trial Reasons is illogical, as the trial judge did make an order for payment of arrears of support that included arrears in respect of the broader special and extraordinary expenses detailed in the interim order. While there may arguably be an inconsistency in this respect, that does not alter the fact that s. 7 expenses were addressed at trial, and only a limited special expense order was made. That aspect of the Trial Order was not appealed. [44] Ms. Magee says that at trial, tuition was "overlooked" as a special expense because it was then expected that she and the children would be moving to Vernon and the children would attend public school there. In that respect, the tuition issue is arguably not one that should have been raised at trial. However, that change in circumstance, and the resulting ongoing tuition expenses, were before the trial judge on the November 2015 variation application: Ms. Magee's notice of application stated, under

Part 2: 9. Now that the Respondent is required to stay in Cranbrook she is incurring tuition costs for Eden. The Claimant is refusing to contribute to such costs. This is notwithstanding that Mr. Justice Greyell had made an interim order allowing such as reasonable special costs. As set out above, Macintosh J. ordered that basic support would not be varied "at this time", but the application for variation of special expenses was dismissed outright. That decision was not appealed. [45] On the evidence, I am not satisfied that any changes in the character or amount of the children's extracurricular activities and health-related expenses since the trial and the November 2015 variation application are so material that variation can be ordered. The majority of the children's medical expenses are covered by the parties' insurance plans. There is an RESP in place for post-secondary education. [46] This issue is res judicata. I make no variation in the child support order in respect of special or extraordinary expenses. Conduct and Communication Orders [47] At present there are only minimal orders in place respecting the parties' conduct and communications. The order of Mr. Justice Melnick pronounced February 1, 2013 included a direction that the parties not speak negatively of each other in the presence of the children or discuss their legal affairs with the children. The Trial Order included the following: 4. The Respondent must report to the Claimant by email at least once every two weeks an informative overall update as to the aforementioned parenting responsibilities. The Respondent shall receive the Claimant's responses by email as to these reports, and she will take these responses into account as her judgment dictates.

20. The Claimant and the Respondent shall communicate with each other generally by email.

21. The Claimant and the Respondent are to have the children refer to the parties using the usual terms of parenthood. Neither party shall speak disparagingly of the other in the presence of the children. [48] Ms. Magee seeks orders that further limit the mode, frequency, and content of the parties' communications, and that regulate their conduct. In support, she provides samples of emails sent to her by Mr. Bassett in response to her required bi-weekly reports. Mr. Bassett does not say that these emails are unrepresentative of his communications. [49] Justice Marchand commented on Ms. Magee's application for these orders in the Removal Decision. In respect of Mr. Bassett's email communications, he said: [85] I have reviewed a number of Mr. Bassett's post-trial emails to Ms. Magee. Like the litigation itself, they are excessive, unnecessarily adversarial and often not focused on the children. After giving a number of specific examples, Marchand J. said: [89] Regardless of the merits of the positions taken by Mr. Bassett in the litigation, it is pretty hard to think that this type of communication is remotely appropriate or helpful. That Ms. Magee seeks a mutual order to limit communications is far from futile. [50] In respect of the application for conduct orders, Marchand J. said: [94] While Mr. Bassett believes Ms. Magee applied for these conduct orders in an insincere

attempt to appear reasonable, the nature of his communications to Ms. Magee suggests conduct orders beyond those made by the trial judge may be in order. [51] Mr. Bassett says in his affidavit #34 and in his written submissions that he takes no position with respect to these orders (with the exception of the 60-word limit on emails). In that affidavit he consents to para. 4 of the Trial Order being deleted, which requires Ms. Magee to report to him bi-weekly, as he says he prefers to hear from the children directly (though he acknowledged that at the time the affidavit was sworn, his son had not spoken to him for two years). Notwithstanding those positions, he also argues in his written submissions that the issue of conduct and communications is res judicata. [52] I agree with the above-quoted observation of Marchand J. Mr. Bassett's post-trial communications, generally, have been hectoring, condescending, and insulting. Ms. Magee, in her written submissions, characterizes them as tirades, and that is not an inapt description of some of his emails. He has not been vulgar or overtly threatening. His emails are clearly distinguishable from the harsh and abusive communications at issue in N.M.A. v. K.D.L., 2018 BCSC 1879, a decision cited by Ms. Magee in her written submissions. They do not amount to family violence. I do however accept Ms. Magee's evidence that she finds Mr.

Bassett's emails disturbing, that she feels bullied, and that they induce feelings of anxiety. [53] Despite Mr. Bassett's wish for direct communications, it is inevitable that the parties, as parents, will have to continue to communicate to some extent. Mr. Bassett's confrontational approach and his communications style risks creating an impediment to the parties discharging their mutual responsibilities as parents under the existing orders, and, unless restrained, this is likely to lead to future disputes. I find jurisdiction to make the orders sought under s. 222 (a) and (b) of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. [54] I therefore order as follows: a) Paragraph 20 of the Trial Order is deleted, and paragraph 4 of the Trial Order is varied to read: Communication between the parties is to be by way of email only, with no more than one email per week sent by each party, except in case of extreme emergency when text messaging may be used, and except that more frequent messages may be exchanged as reasonably necessary in the circumstances. All communications shall be limited to matters that directly concern the parties' parenting responsibilities as set out in paragraph 3 of this Order, and other matters that directly concern the children. Only respectful, non-critical, and non-judgmental language shall be used at all times, and all communications are to be no more than

60 words in length. Each party will reply promptly to the other's inquiries and concerns. The parties are prohibited from communicating with each other except in accordance with these provisions. b) Paragraph 1 of the Order of February 1, 2013 and paragraph 21 of the Trial Order are varied to read: The parties shall conduct themselves as follows: (a) They will each put the best interests of the children before their own; (b) They will each encourage the children to have a good relationship with the other parent; (c) They will each speak to the children about the other parent and that parent's partner in a positive and respectful manner, and will not blame, criticize, or disparage the other parent to the child; (d) They will not question the children about the other parent or time spent with the other parent beyond simple conversational questions; and (e) They will not discuss with the children any inappropriate adult, court, or legal matters.

RESP [55] Ms. Magee seeks an order giving her sole authority and control over the parties' RESP. The evidence shows Ms. Magee's efforts, beginning in January 2019, to secure Mr. Bassett's cooperation in utilizing the RESP to pay their son's expected post-secondary education costs. Mr. Bassett's responses were dilatory and argumentative. Mr. Bassett eventually provided the necessary written consent to the bank in the summer of 2019, but not before Ms. Magee had had to pay monies out of her own pocket. I find Ms. Magee's position is justified, and I grant the order set out at Part 1, para. 5 of the notice of application. The Character of the Parties' Evidence and Submissions [56] The parties, and their counsel, have previously been chastised by the Court of Appeal, and by this Court, for their combative, hyper-aggressive approach to litigating the issues in this action, most recently in the aforementioned decision of Marchand J. Regrettably, they have persisted in this approach. Justice Marchand provided a few specific examples in the Removal Decision. I unfortunately find it necessary to go into greater detail as the parties and counsel, sadly, seem to have had difficulty responding appropriately to the guidance that has been given. [57] I begin by highlighting three specific areas where Ms. Magee's submissions are problematic. The first is at para. 60 of Ms. Magee's initial

written submissions, where she cites Mr. Bassett's supposed "outright, adamant and repeated refusal to pay more child support" as evidence of his bad faith. She offers that purported bad faith as a rationale for claiming special costs. As I have explained, Mr. Bassett was entirely within his rights to pay only the support that had been ordered at trial, until varied. There was no bad faith in his decision not to voluntarily increase support as his income rose. It is most regrettable that Ms. Magee not only misapprehends the nature of support orders, she transmutes her misapprehension of the law into proof of ill will on Mr. Bassett's part. [58] Second, Ms. Magee's reply submissions point to Mr. Bassett's itemization in his May 2019 Financial Statement of his monthly payment of approximately $1,000 towards his legal bills in connection with the contempt issue, and assert that Mr. Bassett "has been paying that for over four years now" and that the bills "should have been paid in full by now". But the record does not disclose that Mr. Bassett has been paying those amounts toward the outstanding bills on the contempt issue for four years; to the contrary, Mr. Bassett's evidence, which I have accepted, is that the debt remains owing. The explanation is found in Mr. Bassett's written submission: Mr. Bassett was able to defer payment of the contempt-related legal accounts because he

was first required to pay $46,713 in trial costs to Ms. Magee in priority to his other indebtedness in order to remain in compliance with the Court Order. So, at most, the record shows that the debt has been outstanding for four years. The record does not demonstrate that the debt has been paid, nor even that it ought to have been paid. Why Ms. Magee and her counsel believed it necessary, appropriate, or effective to assert a fact not supported by the evidence in this manner is a mystery. It may be that this was an honest mistake, brought about by the volume and complexity of the evidence; but that complexity, given the unfortunate history of this litigation, only increases the need for counsel to be scrupulous and to exercise great self-restraint in drafting submissions. [59] Third, Ms. Magee's position that Mr. Bassett's email communications constituted family violence was at best, to put it plainly, a stretch. Characterizing them as such was unnecessary, given that the notice of application did not seek a protection order under Part 9 of the FLA; conduct orders under Part 10 do not require a finding of family violence. It was also inflammatory. Mr. Bassett's emails spoke for themselves. This is, sadly, yet another example of the parties and their counsel needlessly ratcheting up the tension. [60] Mr. Bassett's written submissions are also problematic. They begin with a

request that excepting a review of basic child support, and his undue hardship claim, this application, all affidavits, and Ms. Magee's written submissions be struck in their entirety. I note that this is not the first time in this proceeding that Mr. Bassett has advocated for such a draconian measure. Registrar Outerbridge, in his reasons on the contempt special costs assessment, noted the work undertaken by Mr. Bassett's counsel in marking up Ms. Magee's factum and then demanding the factum be revised, failing which Mr. Bassett threatened to seek to strike it out with costs. The Registrar found the time spent on this activity was not proper and should not be recovered. [61] The present request that the application materials be struck is said to be based on them containing: 8. a substantially fictional account of the history of proceedings and again containing numerous incomplete, misleading and irrelevant statements - all to gain an unfair advantage by portraying Mr. Bassett as a threatening and abusive man. Mr. Bassett's submission then goes on to provide a number of specific examples of what he says is the Respondent mischaracterizing his conduct. There is some merit to some of Mr. Bassett's complaints, and I have addressed what I find to be the more objectionable aspects of Ms. Magee's submissions. But some of the submissions he objects to are simply forceful - though

extreme - advocacy, and are not misleading or unfair. [62] Mr. Bassett then submits: 10. It is outrageous that the smearing of Mr. Bassett continues with Ms. Magee having cherry picked materials from 8 years of court proceedings which are wholly irrelevant to this application; misrepresented with pertinent details and context omitted. These items have previously been before judges and no such findings against Mr. Bassett have been made. This submission is itself a distortion. By far the most serious submissions made by Ms. Magee regarding Mr. Bassett's conduct concern events that post-date the trial and the contempt appeal. If no such negative findings concerning Mr. Bassett have previously been made, it is because the allegations have never been presented in any context that would lead to such findings. For the most part, Ms. Magee is not gratuitously dredging up the past; there is a rational connection between the evidence of past events and the arguments now being advanced on her behalf. [63] Mr. Bassett then uses these objections to Ms. Magee's submission as a pretext for rehashing the circumstances of the contempt finding and appeal, and the circumstances that led to his unsuccessful attempt before Marchand J. to have Ms. Matthews removed as counsel. He submits that Ms. Magee's arguments will somehow prejudice this Court against him. I remind the parties that Marchand J.

described Mr. Bassett's submissions in the application before him as "out of all proportion to the issues at hand"; that he criticized Mr. Bassett's response to a severely flawed Chronology created by Ms. Magee's counsel as an inappropriate "full frontal assault", and that he chastised the parties for dwelling on past events: [126] Ms. Magee, Mr. Bassett and their respective counsel have to accept past findings that have been made, whether favourable or unfavourable, and move forward. No interest is served by the parties constantly revisiting events and allegations that have been raised and dealt with. Given this admonition, it is simply bewildering that Mr. Bassett continues to revisit past matters that have no bearing on the orders being sought. [64] Mr. Bassett's request that Ms. Magee's application be struck is, again, an overreaction. I have dealt with the issues in the application on their merits. [65] Mr. Bassett's written submission ends with gratuitous and caustic criticism of Ms. Magee, and insinuates that this Court, through leaving it open to Ms. Magee to bring this application, has somehow been complicit in Ms. Magee presenting a distorted narrative and bringing unnecessary applications. A sample: 122. For reasons unknown to Mr. Bassett, this Honourable Court refuses to dissociate from Ms. Magee' conduct.

125. Meanwhile, this Honourable Court leaves it open for Ms. Magee to come back and continue to proffer her false and misleading statements which are contained in every application and repeat her false narrative of how Mr. Bassett is allegedly an abusive man and terrible father and that she is somehow deserving of 'special costs'.

128. This Application simply shows Ms. Magee's endless pursuit of Mr. Bassett in Court - and that she is given free rein to do so - even when there is nothing left for her to fight about. Ms. Magee has been entirely within her rights to seek Table support for her children. Justice Marchand said as much in the Removal Decision, at para.

77. I have found one of the two grounds advanced by Mr. Bassett for the hardship claim to be without merit; his success on the other ground was not a foregone conclusion. I also have found it necessary to grant the orders sought in respect of communications and conduct, which, though phrased as mutual orders, were only necessitated by Mr. Bassett's conduct. [66] The comments concerning this Court are ill-considered. [67] I also find it necessary to comment generally on Mr. Bassett's affidavits. SCFR Rule 10-4(12) provides: Subject to subrule (13) [which sets out the circumstances for the admission of affidavit evidence on information and belief], an affidavit must state only what a person swearing or affirming the affidavit would be permitted to state in evidence at trial. [68] Mr. Bassett's affidavits are, unfortunately, larded with inadmissible material. The following are a few examples from Mr. Bassett's 29th affidavit, sworn September 5, 2017: In short, Ms. Matthews is now using the Respondent as a vehicle to abuse the court process to harass me and cause me further financial hardship (at para. 17); The Respondent blatantly misrepresents to this Court that I leave her paying for the children's medication (at para. 24); The Respondent references FMEP and arrears so as to mar my character (at para. 26); The deliberately convoluted, confusing and manipulated evidence Ms.

Matthews presents in Court is challenging to correct (at para. 33); This order which is already in existence has not curtailed the Respondent from doing so and her request is a duplication of an existing order and a waste of court time and expense (at para. 43). Similar examples appear in his 34th affidavit, sworn September 6, 2019: Many of the orders sought by Ms. Magee are a re-litigation of matters which have already been decided (at para. 3); In Ms. Magee Affidavit #40 at paragraph 11, she misrepresents to this Court (at para. 51); These orders sought amount to a re-litigation of communication and parenting matters (at para. 55). These are but a few examples. None of these statements are evidence as to matters of fact within Mr. Bassett's knowledge. They are argument. The statements would be inadmissible if offered as trial testimony. [69] Counsel should know the Rules governing the tendering of affidavit evidence. It is not proper to place the Court in the position of having to sift through affidavits replete with inadmissible material in order to separate the wheat from the chaff. The parties are on notice that henceforth, affidavits that do not comply with Rule 10-4 may be disregarded in their entirety. [70] I commented earlier on the deficiencies in Part 3 - Legal Basis - of the notice of application. The parties are on notice that if notices of application do not

comply with the Rules, they may be required to redraft the material before a hearing can proceed. Summary [71] The applications for the orders set out in Part 1, paras. 1 and 2 of the notice of application are dismissed. Paragraphs 3 and 4 are allowed, on the terms set out above, and para. 5 is allowed. [72] Success on this application was divided, and each party will bear their own costs. I note, however, that had there been grounds for any costs award in either party's favour, I would have declined to award costs in view of the needlessly aggressive and intemperate content of the submissions and, in the case of Mr. Bassett, the breaches of Rule 10-4. "A. Saunders J."