Boonstra v. Boonstra

2023 BCSC 649 Boonstra v. Boonstra

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Boonstra v. Boonstra, 2023 BCSC 649 Date: 20230421 Docket: E39790 Registry: Penticton Between: Colette Denise Boonstra Claimant And Berwyn Boonstra Respondent Before: The Honourable Justice Funt Reasons for Judgment Counsel for the Claimant: C.F. King Counsel for the Respondent: R. Mostar C.R. Anninos Place and Dates of Trial: Penticton, B.C. July 19-21, 2022 Place and Date of Judgment: Penticton, B.C. April 21, 2023 Table of Contents 1. introduction. 3 2. Agreed Statement of Facts. 3 3. further facts. 7 4. analysis. 11 a) The VAC Benefits. 11 b) Is there double recovery?. 14 c) VAC Benefits - Means and Needs and Ability to Pay. 15 5. conclusion. 17 6. Costs. 17 1. introduction [1] The claimant has applied to review the spousal support she should receive from the respondent. She also seeks retroactive spousal support and retroactive child support. [2] More specifically, the claimant seeks the following relief: a) Mid-range spousal support, on the without-child-support formula, in the monthly amount of $1,763 with the final payment on October 1, 2031 (the month the respondent turns 65) based on Guideline income of $49,364 and $101,939 for the claimant and respondent respectively; b) $32,807 in retroactive spousal support from August 1, 2020; and c) $13,644 in retroactive child support for the period from May 2016 to July 2020. [3] For the reasons that follow, the claimant is awarded: a) monthly spousal support of $838 for August 1, 2022 to October 1, 2031; b) $13,977 in retroactive spousal support; and c) $6,277 in retroactive child support. [4] Very helpfully, through counsel, the parties were able to agree on many relevant facts with the expectation that the Court would find further facts.

2. Agreed Statement of Facts [5] The claimant, Colette Denise Boonstra (now Farnworth), was born in July 1969 and is 53 years old. [6] The respondent, Berwyn Boonstra was born in October 1966 and is 56 years old. [7] The Parties have three children: · Melanie born in May 1995 (age 27); · Kurtis born in August 1997 (age 25); and · Timothy born in July 2001 (age 21). [8] The parties met in Smithers, BC and subsequently lived in Salmo, BC from 2004 to 2007 and Oliver, BC from 2007 until they separated on February 1, 2013. [9] The parties were divorced pursuant to a final order of The Honourable Justice Ball dated and filed August 22, 2016 (the "Order"). [10] The Order includes, in part, the following pertinent terms: [ ] 13. Based upon the Respondent having a Guideline income of $88,713.00, the Respondent shall pay monthly child support to the Claimant for Kurtis and Timothy in the amount of $1,327.00 commencing May 15, 2016 and continuing on the 15th of each month thereafter until and including August 15, 2016. Commencing September 15, 2016, the Respondent shall pay monthly child support to the Claimant for Timothy in the amount of $824.00 for so long as Timothy remains a child of the marriage as defined by the Divorce Act (Canada) [R.S.C. 1985, c. 3 (2nd Supp.)] [ ] 15. The parties shall exchange copies of their respective Income Tax Returns for the prior year, by May 1st of

each and every year for so long as child and/or spousal support is payable, commencing May 1, 2016. [ ] 19. Commencing May 1, 2016, the Respondent shall pay monthly spousal support of $800.00 to the Claimant until Timothy is no longer a child of the marriage as defined by the Divorce Act (Canada), at which time spousal support shall be reviewable at the option of either party and furthermore, either party shall be at liberty to seek a review of spousal support in the event of a material change of circumstances. [ ] 32. The Respondent shall maintain the Claimant as the irrevocable beneficiary on his Manulife life insurance policy in the amount of $250,000.00 for so long as he is obliged to pay child or spousal support to the Claimant. [ ] 37. The benefits accrued to the Respondent under his R.C.M.P. pension (the "Pension") are a family asset and the Claimant's share of the said Pension is 50% of the Pension that accrued between the date of marriage on April 28, 1990 and the date of separation on February 1, 2013. The Claimant's share of the Pension will be satisfied by the transfer of an amount from the Pension to the credit of the Claimant in accordance with the Pension Benefits Division Act, [S.C. 1992, c. 46, Sch. II] and the Pension Benefits Division Regulations, [SOR/94-612]. [11] When the parties' relationship began, the claimant was working for the BC Ministry of

Environment in a receptionist position. [12] In 1988, the claimant obtained a bookkeeper certificate from a community college in Smithers, BC. In the mid-1990s, the claimant began operating a home-based bookkeeping business while caring for the children which she continued until 2004. The parties made a family decision that the claimant would not re-establish her home-based bookkeeping business when they relocated to Salmo, BC in 2004. [13] In 2005, the claimant began working for the Salmo School District as an on-call school secretary. [14] In 2007, the claimant began working for the Oliver School District as a part time library assistant and secretary. [15] Currently, the claimant works full time for the Oliver School District in an administrative role. [16] In 2021, the claimant received $45,394 in employment income and $4,989 in employment insurance benefits. The claimant paid $1,019 in union dues. [17] On January 26, 2021, the pension was divided, and the claimant received $164,510.64, which is held in a locked-in fund pursuant to the Pension Benefits Division Act (the "Pension Division"). [18] When the parties' relationship began, the respondent was employed with BC Parks before moving to employment with a commercial construction company. [19] From 1996 to 2003, the respondent worked as a manager at a building supply store. [20] In 2003, the respondent applied to and was

recruited by the Royal Canadian Mounted Police (the "RCMP") and he completed his training at Depot between August 2003 and January 2004. The respondent began employment as a police officer with the RCMP on January 26, 2004. [21] The respondent developed post-traumatic stress disorder ("PTSD") during the time he was employed with the RCMP. [22] In 2015, the respondent was off work with the RCMP. [23] In June 2016, the respondent began a graduated return to work ("GRTW") with the RCMP. [24] The GRTW lasted approximately three years and, during this time, the respondent remained on administrative duties. [25] The respondent applied to be medically discharged from the RCMP. The respondent was discharged from the RCMP effective March 5, 2020. [26] Effective March 5, 2020, the respondent became entitled to receive his RCMP Pension (the "Pension") in the amount of $2,013.32 per month plus a $473.39 monthly bridge benefit (the "Bridge Benefit') for a total of $2,486.71 per month. The Bridge Benefit will continue until the earlier of the respondent's 65th birthday or the date he begins receiving Canadian Pension Plan ("CPP") disability benefits. [27] Upon his discharge from the RCMP, the respondent applied for and began receiving long-term disability benefits from Canada Life (the "LTD Benefit"). The LTD Benefit is $5,894 per month less the amount received from the Pension. [28] Between

March 5, 2020 and December 31, 2020, the respondent received $5,894 per month from the Pension and the LTD Benefit. [29] As of January 1, 2021, the respondent began receiving $2,505.36 per month from the Pension and continued to receive $3,407.29 per month from the LTD Benefit for a total of $5,912.56 per month. [30] The respondent applied for and receives a non-taxable monthly disability benefit from Veteran's Affairs Canada (the "VAC Benefits"). [31] In June 2019, the respondent began receiving the VAC Benefits in the amount of $1,291.25 per month. The VAC Benefits were retroactive to August 10. 2017 and the respondent received a one-time payment of $27,421.84. [32] In April 2021, the VAC Benefits increased to $1,470.08 per month. This increase was retroactive to June 24, 2020 and the respondent received a one-time payment of $2,696.58. [33] As a result of the Pension Division with the claimant, the respondent will receive a reduction of $669.58 per month from the Pension, effective November 1, 2026. [34] At trial, the parties further agreed that in addition to the VAC Benefits, the respondent received further monthly amounts from August 2017 to July 2019 on behalf of the parties' son, Timothy. In July 2019, Timothy turned 18 years of age, which is the cut-off date under the relevant legislation, absent specific exceptions, which are not engaged in the case at bar. In total,

the respondent received $3,493.07 on behalf of Timothy in VAC Benefits. 3. further facts [35] As of his 19th birthday in July 2020, Timothy was gainfully employed and was, accordingly, no longer a child of the marriage for the purposes of child support after his 19th birthday. As a result, as of this date, none of the parties' three children was a child of the marriage. [36] In June 2010, the respondent was first diagnosed with PTSD, following an accident the respondent had while riding his bike when a car collided with him. [37] In June 2015, under the Mental Health Act, R.S.B.C. 1996, c. 288, the respondent was admitted to St. Paul's Hospital. After two weeks, he was admitted to Vancouver Coastal Health's Richmond Bridge House for further treatment and then after a week, he was transferred, with the support of the RCMP, to the Homeward Health Centre, a facility in Guelph, Ontario. [38] At Homeward Health Centre, the respondent underwent a program designed to treat PTSD. By mid-October 2015, the respondent had completed the Homeward Health Centre program and had returned to his apartment in Richmond, BC. [39] The respondent's PTSD is significant. Ms. van Hoogstraten is the respondent's girlfriend. In October 2015, she first met the respondent as he was joining a choir of which she is a member. Ms. van Hoogstraten provided a caring and longitudinal view of the respondent's

PTSD. She says that the respondent is often hyper vigilant and is profoundly affected by the sound of sirens or alarms. [40] Ms. van Hoogstraten has helped the respondent with daily chores and the planning of ordinary matters as necessary as the respondent's PTSD waxes and wanes. [41] The respondent's PTSD has negatively affected what would have been a normal and typical relationship with each of his three children. [42] As noted, in June 2016, the respondent started his GRTW with the RCMP which lasted until his requested medical discharge in March 2020. [43] Shortly after his discharge from the RCMP, the respondent travelled to Hawaii to help Ms. van Hoogstraten (at the request of her employer) in a travel venture for seniors from which she derives some income. The respondent has also taken vacations with Ms. van Hoogstraten. [44] The respondent is athletic. In recent years, the respondent has been running outside (in quieter areas), cycling (in less-travelled areas), and swimming in the ocean. [45] At the present time, I find that the respondent is much better mentally than he once was. As a witness, he was clearly engaged and understood counsel's questions without difficulty and was able to respond articulately with fully formed testimony. However, I am satisfied that the sound of sirens or alarms or unexpected events will cause him to react negatively and he will regress to

a greater or lesser degree, depending on the nature and duration of the event. [46] The respondent testified that, more recently, that as a result of the claimant's request for a vocational assessment of him, he became withdrawn. He testified that he now cycles inside on a stationary bike. [47] After a contested application, the court ordered that the respondent undertake a vocational assessment. On May 13, 2022, Dr. Colleen Quee Newell undertook a vocational assessment of the plaintiff. [48] At trial, Dr. Newell testified as an expert witness. She has a Ph.D. in Counselling Psychology from the University of British Columbia and is a Registered Clinical Counsellor and a Registered Rehabilitation Professional. I ruled that Dr. Newell was qualified to give opinion evidence regarding vocational assessment and related aspects. [49] Dr. Newell had prepared a June 16, 2022 expert report which was entered into evidence. [50] In her June 16, 2022 report, Dr. Newell states, in part: 120. I do note that Mr. Boonstra faces a vocational dilemma in that if he experiences improved psychological functioning with the cessation of his current legal case, a return to any form of remunerative employment will result in a deduction of such employment income from his LTD benefits. This may act as a disincentive for engagement in paid employment despite the psychological, social, and health benefits known to be associated with participation in paid work.

121. From a vocational rehabilitation perspective, should Mr. Boonstra achieve improved psychological functioning when his legal case [concludes], he should be encouraged to pursue some form of part-time, paid employment. Paid employment can be psychologically beneficial as it offers increased daily structure. opportunities for positive social interaction, a sense of societal and familial contribution, and financial compensation. [ ] 123. In my examination of potential employment options, I have also considered Mr. Boonstra's requirement for low stress work that can be performed independently or as part of a small crew or team.

124. Occupational examples compatible with the aforementioned vocational profile include landscape labourer or trail builder, warehouse order picker, and dog walker. If Mr. Boonstra's tolerance for the emotional demands of driving were to improve, he could also pursue employment as a delivery or courier service driver. [51] The respondent enjoys fishing and camping. He intends to move from the Lower Mainland, possibly to the Interior. [52] I find that although the respondent requested his medical discharge from the RCMP, the GRTW after over three years was not achieving the results the respondent desired. He remained restricted to administrative duties and his PTSD was not diminishing. [53] I accept the respondent's testimony that even with the GRTW, he experienced mental stresses which exacerbated his PTSD. I find that although the RCMP was very supportive in the implementation of the GRTW, the associated stress interfered with a more promising reduction in the respondent's PTSD. [54] As noted above, the respondent applied for his medical discharge and his request was granted. Under its Table of Disabilities, Veterans Affairs Canada found the respondent to be 41% disabled, which was revised to 50% in March 2021. Canada Life also determined that the respondent qualified for long-term disability coverage. [55] The respondent testified that he is "trying to manage and function in

life" and wishes "mental freedom" from the claimant. [56] I have determined that the claimant and the respondent have had the following Guideline Incomes: Claimant* Respondent 2016 $46,793 $88,713 2017 $45,930 $98,105 2018 $44,471 $93,025 2019 $47,543 $97,765 2020 $48,358 $137,416 2021 $50,383 $71,237 * Before Union Dues are deducted [57] The respondent's 2020 Guideline Income is comprised of $50,024 (T4) + $24,546 (Pension) + $33,732 (LTD Benefit) + $29,113 (Qualifying Retiring Allowance). For 2021, his Guideline Income is comprised of $30,064 (Pension) + $40,887 (LTD Benefit). His 2021 Notice of Assessment shows $71,237, which is slightly higher than the total of the Pension and the LTD Benefit. I have used $71,237. [58] I have not included the VAC Benefits in the computation of the respondent's Guideline Income but have included his Pension income. The respondent did not dispute that the LTD Benefit should be included. The LTD Benefit is included in the computation of income for tax purposes. [59] As noted, the claimant seeks $13,644 in retroactive child support. In coming to the foregoing amount, the claimant has included in the respondent's income the VAC Benefits (with a gross-up). Similarly, in computing the $32,807 in retroactive spousal support and the future monthly spousal support of $1,763, the claimant has included in the respondent's income the VAC Benefits (with

a gross-up). [60] As set forth below under "Analysis", I will not include the VAC Benefits in the respondent's income but will consider them in the context of means and needs. 4. analysis a) The VAC Benefits [61] In Wallace v. Pichichero, 2021 BCSC 1642 with respect to whether VAC benefits should be included in income for the calculation of spousal and child support, Justice Branch stated: [104] In Lozinski v. Lozinski, 2017 BCCA 280, the Court of Appeal considered whether the trial judge erred in considering the availability of a Veterans Affairs disability pension, paid out under the Pension Act, R.S.C. 1985, C. p-6, as part of the support assessment. This required a consideration of whether the characterization of such amounts as pain and suffering payments in the statutory insurance policy interpretation decision Manuge v. Canada, 2012 FC 499, should also be applied to the family law context. In Manuge, the court concluded that the disability amounts paid were not "monthly income benefits" within the meaning of the insurance policy and, accordingly, that a deduction was not contractually justified. In Lozinski, the court found that the trial judge did not err in considering the payments as part of the court's assessment of the "conditions, means, needs and other circumstances" under s. 15.2(4) of the Divorce Act: [32] The question for resolution is whether the judge erred

when fixing child and spousal support by considering the VA Pension as part of the "conditions, means, needs and other circumstances of each spouse" pursuant to s. 9(c) of the Guidelines and s. 15.2(4) of the Divorce Act. Whether VA disability pensions may be considered Guidelines income is an important issue, but it is not directly engaged because, as discussed below, given the shared parenting context, the judge was entitled to consider non-income resources. That is how he approached the VA Pension. In addition, Ms. Lozinski did not seek its inclusion in income, nor did the judge make the order on that basis. In these circumstances, I would leave comprehensive analysis and determination of whether VA disability pensions may be considered Guidelines income for support purposes to another day. [33] Nevertheless, while distinguishable, the cases that analyse whether VA disability pensions may be considered Guidelines income provide helpful guidance and context for how such pensions should be treated when support is fixed based on the "conditions, means, needs and other circumstances of each spouse" [ ] [44] As noted, the same phrase is found in s. 15.2(4) of the Divorce Act regarding spousal support. The Supreme Court of Canada has interpreted "means" in the spousal support context expansively to include "all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits": Strang v. Strang, [1992] 2 S.C.R. 112 at 119; Leskun v. Leskun, 2006 SCC 25 at para.

29. In [Kerr v. Pickering, 2013 ONSC 317], the court relied on this interpretation in considering s. 9(c) of the Guidelines: [33] The Supreme Court of Canada has considered the scope of the terms "condition" and "means" in the context of spousal support cases. It has held that the "condition" of a litigant includes such factors as their age, health, needs, obligations, dependants and their station in life. A litigant's "means" encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits. [Footnotes omitted by Dickson J.A.] [45] The broad and flexible interpretation of "conditions, means, needs and other circumstances" is consistent with the jurisprudence in this province. For example, in Ortynski v. Ortynski, 2014 BCSC 73 at para. 45, the Court held that s. 9(c) captured wealthy paternal grandparents' contributions, and in Reber v. Reber, 2002 BCSC 884 at para. 76, child tax benefits and a daycare subsidy were considered on the same basis. [46] In my view, the judge engaged in the sort of broad and flexible analysis mandated by Parliament in s. 9(c) of the Guidelines and s. 15.2(4) of the Divorce Act. In doing so, he recognized the compensatory nature of the VA Pension and its intended purpose of improving Mr. Lozinski's quality of life. He also proceeded on the basis that the VA Pension is not income, citing L.F. and Wells with apparent approval: paras. 72-79. Nevertheless, given the shared parenting context, he was entitled to consider the VA Pension as part of "all financial resources, capital assets, income from employment and any other source from which [Mr. Lozinski] derives gains or benefits": Kerr at para.

33. As is clear from his testimony, this is the manner in which Mr. Lozinski treats the VA Pension. [ ] [51] I also see no error in the judge's approach to determining the quantum of spousal support. After finding entitlement on both a compensatory and non-compensatory basis, he reviewed the SSAG ranges using the parties' Guidelines incomes, not including the VA Pension. Nevertheless, he recognized that, regardless of its purpose, Mr. Lozinski's receipt of the VA Pension created an increased discrepancy in the parties' respective standards of living, which is a relevant factor for consideration. In my view, his choice to award spousal support at the higher end of the SSAG spectrum as a result was well within his discretion: Redpath v. Redpath, 2006 BCCA 338 at paras. 40-42. Given the broad definition of "means" in the case law, the judge was entitled to consider the VA Pension in determining the appropriate quantum of spousal support. I see no material error, serious misapprehension of evidence or error in law that would justify disturbing the spousal support award. [105] I am prepared to adopt a similar approach here, i.e. that such benefits should at least be considered part of Mr. Pichichero's means if not his income. I find that completely ignoring these benefits would be improper, particularly given that there was insufficient evidence or expert opinion to establish with

certainty that the DVA payments are in fact purely for "pain and suffering" (as in Manuge) rather than being, at least in part, meant to compensate for loss of employability as well. [Emphasis of Branch J.] [62] I will join my colleague and follow his approach that the VAC Benefits should at least be considered as part of "means". [63] In the case at bar, the matter must be considered in light of the Pension payments the respondent receives. The respondent submitted that if the Pension payments were to be included in income, the claimant would enjoy a double benefit as a result of the earlier division of the Pension under Justice Ball's August 22, 2016 Order. [64] I will first address the question of double recovery with respect to Pension payments and then return to whether the VAC Benefits should form part of the computation of spousal support and child support. b) Is there double recovery? [65] Boston v. Boston, 2001 SCC 43 is the leading authority on double recovery where a pension has been previously divided between parties. [66] In Boston, Justice Major, writing for the Supreme Court of Canada, stated: [1] "Double recovery" or "double dipping" are terms that have come to describe the situation where, after an equal division of assets on marriage breakdown, one spouse claims continued support from the previously divided or equalized assets of the other spouse. This usually

arises, as here, when a pension is involved. In place of the common designations of "appellant" and "respondent", the use of the terms "husband" and "wife" from time to time in these reasons might add to the clarity of what follows. [2] Pension rights give rise to special difficulties in questions of spousal support. Under the Ontario Family Law Act, R.S.O. 1990, c. F.3, a pension right must be valued as a capital asset that is an entitlement to a future income stream. After retirement, the pension changes from a capital asset into an income asset. When the pension is in pay, in a sense, the pension asset is being liquidated. [3] When a pension changes from an asset into income the "double recovery" difficulty can arise, usually in the following way. On marriage dissolution, the parties equalize the matrimonial assets. The pension-holding spouse (the husband in this appeal) must include the future right to his pension as part of his net family property. For the husband to retain his pension, the payee spouse (the wife in this appeal) must get other assets of the same value, in order to equalize their net family property. While the husband is still employed, he may be obliged to make spousal support payments to the wife. When he retires, however, and his pension comes into pay, the wife is said to be making a double recovery if she continues to receive spousal support from the

husband's pension income, as she received assets equal to the capital value of the pension at the time of settlement. If support payments from the pension are maintained, she is collecting twice from the same source. And further, [65] Despite these general rules, double recovery cannot always be avoided. In certain circumstances, a pension which has previously been equalized can also be viewed as a maintenance asset. Double recovery may be permitted where the payor spouse has the ability to pay, where the payee spouse has made a reasonable effort to use the equalized assets in an income-producing way and, despite this, an economic hardship from the marriage or its breakdown persists. Double recovery may also be permitted in spousal support orders/agreements based mainly on need as opposed to compensation, which is not the case in this appeal. [67] I find that the Pension payments the respondent receives should be included in computing his Guideline Income for three reasons. First, unlike Boston, in the case at bar, the payor (the respondent) took early retirement. Second, as noted, the Pension payments the respondent receives reduces his LTD Benefit. If the respondent were not receiving Pension payments at this time, his Guideline Income would be the same as it is with the respondent receiving the Pension payments. Third, a review of the claimant's expenses as set forth in her

Form F8 Financial Statement supports "needs-based" spousal support: Chutter v. Chutter, 2008 BCCA 507, paras. 55-56. The claimant's annual expenses are modest but exceed her income. c) VAC Benefits - Means and Needs and Ability to Pay [68] In addition to the VAC Benefits the respondent received for himself, he also received $3,493.07 from VAC Benefits on behalf of Timothy under s. 34 of the Pension Act, R.S.C. 1985, c. P-6. Under s. 34 of the Pension Act, amounts for Timothy were no longer available upon Timothy turning 18 years of age in July 2019. [69] The amounts of the VAC Benefits the respondent received on behalf of Timothy for August to December 2017, 2018 and January to July 2019 were $740.70, $1,742,52, and $1,039.95, respectively, totalling $3,493.07. [70] With respect to means and needs, I have considered that the respondent is physically fit. I have also considered that in the respondent's early years of employment, he worked with Fisheries and Ocean Canada, BC Parks, a commercial construction company, and managed a building supply store. The respondent also has a diploma in Fish and Wildlife Management from the British Columbia Institute of Technology. [71] Although Dr. Newell, in her June 16, 2022 report, refers to the "psychological, social, and health benefits known to be associated with participation in paid work", in my view, unpaid activities for oneself such

as fishing, small repair or building projects can be equally psychologically beneficial. Such activities can also result in significant financial savings. Most people do not have the building knowledge and skills nor the knowledge of the woods and backcountry that the respondent has acquired. [72] Having regard to the foregoing aspects and the approximately $17,000 tax-free VAC Benefits he receives annually, I find that, to ensure fairness, the high-range Guidelines should be used in computing spousal support. [73] I have calculated that the future monthly spousal support should be $838. I have also calculated $13,977 in retroactive spousal support and $6,277 in retroactive child support. [74] For the future monthly spousal support (after July 2022), I have used, for the claimant, $45,394 in employment income, $4,989 in employment insurance, and a $1,019 deduction for union dues. [75] For the respondent, I have used $71,237 as his Guideline Income (see Line 15000 from the respondent's 2021 Notice of Assessment). [76] I have relied on the 2021 Notice of Assessment. I was not provided with the respondent's 2021 tax return as part of his Form F8 Financial Statement. [77] I have used the Spousal Support Advisory Guideline high-range formula to derive the $838 in monthly future spousal support (after July 2022). 5. conclusion [78] The respondent is ordered to pay the claimant the following: a) monthly spousal support of $838 for August 1, 2022 to October 1, 2031; b) $13,977 in retroactive spousal support; and c) $6,277 in retroactive child support.

6. Costs [79] If the parties wish to address costs, I ask that they, within 30 days of these reasons, arrange through Supreme Court Scheduling a 9 a.m. 55-minute hearing before me. "Funt J."