Blakeney v. Aspholm

2014 BCSC 857 Blakeney v. Aspholm

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Blakeney v. Aspholm, 2014 BCSC 857 Date: 20140423 Docket: E71734 Registry: Nanaimo Between: Kevin Arthur Blakeney Applicant And Angela Darlene Aspholm Respondent Corrected Judgment: May 22, 2014 edited for publication purposes Before: The Honourable Mr. Justice Baird Oral Reasons for Judgment In Chambers Appearing on her own behalf: Angela Aspholm Place and Date of Hearing: Nanaimo, B.C. April 23, 2014 Place and Date of Judgment: Nanaimo, B.C. April 23, 2014 [1] THE COURT: This has been a summary proceeding in the Supreme Court of British Columbia at Nanaimo. The issue here is whether or not I am prepared to confirm a child support variation order made on a provisional basis on the 18th of November 2013 by my colleague Madam Justice Jollimore, of the Nova Scotia Supreme Court, Family Division. [2] Madam Justice Jollimore made this provisional order at the instance of Kevin Arthur Blakeney, who is the natural father of T.B., a person whose evidence I have taken under oath today, and who is sitting in my courtroom as I speak. T.B. was born on the 7th of October of 1993, so on his last birthday, last October, he turned twenty. The respondent, T.B.'s natural mother, is also present and has testified before me today. [3] The application made in Nova Scotia was premised primarily on the fact that T.B. is now over the age of nineteen.

But Mr. Blakeney also gave evidence that T.B. had finished high school, that he had done so on an accelerated basis, and that he had succeeded well in all his tasks. Mr. Blakeney also attempted to persuade Madam Justice Jollimore that T.B. was independent, living away from home and was well and fully employed. In short, T.B. had reached the age of majority and had withdrawn from his parents care and there was no good reason to continue paying support for him. [4] On this evidence, of course, the provisional order was duly made. It was sent to British Columbia in accordance with the procedures established for interjurisdictional family law enforcement and management. As I said, I have now, at the other end of the country, taken sworn evidence from the respondent and T.B., who together painted a very different picture. [5] In fact, on the basis of what I have heard in this courtroom today, I am persuaded that Madam Justice Jollimore was misled in material and important particulars by the sworn evidence that she received from Kevin Arthur Blakeney. For the record, I would note the following background facts. The parties were married on November 6th, 1998, by which time T.B. was already six years old. The parties had been living together in a common-law relationship for some eight years. On the very day of their wedding, there was a domestic altercation between Ms. Aspholm and Mr.

Blakeney. I infer, without having probed into the details overmuch, that this involved some form of physical violence, and the police became involved. Mr. Blakeney decided the best thing by far for him to do would be to leave Alberta, where they were married, and return to Nova Scotia, where he is from. [6] From that day forward, Mr. Blakeney did not pay a nickel in child support until the year 2006. What happened in 2006 was that T.B. went to visit his father in Nova Scotia, and while he was there, his father started making rumblings about wanting to keep him. [7] Ms. Aspholm was opposed to this. She took the advice of counsel, which, to make a long story short, resulted in family law proceedings that acted as a catalyst to the resolution of all outstanding disputes between these parties. They were divorced, for one thing, and T.B. was returned to his mother. The court in Saskatchewan -- Ms. Aspholm by that time had moved to Saskatchewan, the Saskatchewan Court of Queen's Bench also ordered that Mr. Blakeney, on a guideline income of roughly $28,000, should pay -- or $25,000 I think I read in the order itself, to pay $212 per month in child maintenance for T.B.. [8] Mr. Blakeney has never, I have been advised, voluntarily made any single one of those monthly child support payments. He has had to be pursued by the Family Maintenance authorities of Nova Scotia at every turn and

step of the way. It is only by attaching his personal possessions, by garnishing his wages and bank accounts, that any of the money that the court ordered Mr. Blakeney to pay for the support of T.B., has actually been disgorged and transferred to T.B.. [9] I am totally satisfied on the basis of the evidence I have heard, on the documentation I have read, and from having evaluated the testimony of the witnesses here, that T.B. suffers from Tourette's Syndrome and attention deficit hyperactivity disorder. These are serious afflictions which materially compromise those suffering from them from functioning adequately in the world. He has a severe learning disability. [10] Contrary to the plain implication of Mr. Blakeney's testimony in Halifax, T.B. needed significant help and assistance throughout high school. He graduated in January 2011 with marks ranging from 58 to 60%. Since then he has tried to find work but has found doing so difficult given his disabilities. Whenever he has found work he has been fired. In 2012 he worked in a gas station in Saskatchewan for three weeks before being terminated. He lived with his sister in Saskatoon during that time, and this is the only time in his life when he has not lived with his mother. He was fired because he was incapable of rudimentary tasks such as handling money and processing credit cards. [11] His next job was with a pre-cast

concrete company in Qualicum Beach. Again he was dismissed because he couldn't master basic tasks after three weeks. Then he worked for Qualify Foods in Parksville, but he was fired because he was unable to keep to performance requirements. He was fired after five weeks. He then had a job with Black and White Party Rentals in Parksville from July to October 2013. This was the longest job he ever had but he ended up quitting because he was suffering from anxiety brought on, in large measure, by criticism about his work performance. Since then he has had only one other job at a place called Beach Club Resort where he cleaned rooms for three weeks but was dismissed because of his inability to master basic tasks. [12] T.B. is living with his mother and seeking assistance through the local mental health authority. They are trying to see if they can arrange some vocational and life skills training for him. T.B. thinks he might like to work in the future as a heavy machine operator. He was previously on a $600 per month disability pension from the provincial government but he stopped receiving this assistance when he started working. It is obvious to me that he wants to become self-sufficient and live on his own but he is far from that goal at present. [13] T.B. is unable to get any assistance from Employment Insurance because he didn't work for long enough, so he is trying to get

something going through his family physician in conjunction with the local health authority. He is also trying to get some funding in the form of student loans so that he can go to the local college and take their course in the operation of heavy machinery. This course is apparently four months in duration, starting either in September or January. The cost is around $14,000. [14] I am satisfied that T.B. is attempting to make his way in the world independently. He wants to be self-sufficient and is working diligently toward that goal. This was his evidence under oath today and I accept it. But he is not there yet. There is a psychological profile that I have had marked as Exhibit 1 on these proceedings. This makes it clear that T.B. has cognitive deficits, that he has problems with language, that he has problems with mathematics; he has difficulty focusing on tasks; he has difficulty multi-tasking. I would find as a fact that his lack of success in the workplace is entirely due to his Tourette's and ADHD. His mother also told me, and I accept, that because of these afflictions, T.B. can be difficult, he can get angry, he can be oppositional, and he suffers from low self-esteem. [15] I find specifically, and I am referring now to Part 7 of our Family Law Act, but this type of definition appears in family law legislation across the country, in British Columbia, in Nova Scotia, it

does not matter where you go, that T.B. is a person who, though he has reached the age of majority, is unable, by reason of disability, to obtain the necessaries of life or to withdraw from the charge of his parents [16] He continues to need the support of his parents. His mother is trying her best to do what she can for him, and in fact, as I said, between the time that Mr. Blakeney left on their wedding day and the time that T.B. was about thirteen, she took care of all of his bills. She never asked this Blakeney character for so much as a dime. The fact that Blakeney has paid any support at all has to do with the proceedings in 2006, which were forced by Blakeney, in effect, when he threatened not to return T.B. home from Nova Scotia. Ms. Aspholm did not even ask for child support. The court simply ordered it. She had long taken the position that as long as she was able to work and was making good money, she could not be bothered pursuing Kevin Blakeney around the place for money. She would be happy to make do on her own. [17] Ms. Aspholm had good employment up until about five years ago. She was a corporate trainer, making between forty-five thousand and sixty thousand dollars a year. Unfortunately, five years ago she had an accident which has rendered her completely disabled and incapable of working. She is surviving now on welfare payments of $786.84 per month. [18] She

told me that if she could rehabilitate herself, if she could re-enter the work force and start making the sort of income that she had before, she would take care of all of T.B.'s needs, and never ask for another thing from Mr. Blakeney, with whom I have no doubt she would like to be done for good and all. But she cannot do this, and she told me that this is the only reason why she is here. I believe her. She is here because she is living in poverty. Her son is living in poverty, too. [19] As far as this court is concerned, the very least that Kevin Arthur Blakeney can do is to continue making his little $212 per month contribution. In my view, he should continue doing so indefinitely. When T.B. gets on his feet and can live independently, well, that is when Mr. Blakeney can stop paying his $212 per month. Until then I expect him to pay each and every month. [20] I say this with all the greatest respect to my colleague in Nova Scotia, who as I said, was misled on fundamental, basic points about the justice of the petition that was brought before her. [21] Under s. 32 of our Interjurisdictional Support Orders Act, I hereby refuse to confirm the support variation order provisionally made in Halifax as aforesaid on November 18, 2013. Mr. Blakeney will continue to be obligated, in accordance with the order of the Saskatchewan Court of Queen's Bench, made by The Honourable Mr.

Justice R.S. Smith on August 31st, 2006, to pay $212 per month for the support of T.B. [22] Mr. Blakeney will be at liberty, of course, to bring another application if circumstances change, but until T.B. is independent of his parents, until he is able to take care of himself and fend for himself, then Mr. Blakeney's duty as a father is to do at least this much, and in my respectful view, in fact, a good deal more. "Baird J."