J.F. v. C.F.

IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: J.F. v. C.F., 2004 BCSC 1744 Date: 20041231 Docket: 3560 Registry: Cranbrook Between: J.F. Petitioner And C.F. Respondent Before: The Honourable Mr. Justice Melnick Reasons for Judgment Appearing on his own behalf: J.F. Appearing on her own behalf: C.F. (formerly F.) Date and Place of Hearing: December 13, 2004 Cranbrook, B.C. [1] This is an application by C.F. ("Ms. C.F.") for a number of grounds of relief in a matrimonial action. She seeks: 1. Cancellation of certain arrears of child maintenance owing by her to her former husband, J.F. ("Mr. J.F."); 2. Variation of a maintenance order requiring her to pay child maintenance; 3. Variation of an existing court order whereby the parties have joint custody of the two children of the marriage with Mr. J.F. having day to day care and control to provide that the parties have joint custody with her having day to day care and control; and 4. That Mr. J.F. pay maintenance to her for the support of the children if she is granted custody of them. [2] At the hearing of this application, Ms. C.F. indicated that she no longer sought maintenance from Mr. J.F. and was content that the children be permitted to live half time with each party. I. BACKGROUND [3] The parties commenced living together as husband and wife in June 1986 and were married in February 1990. They separated for the final time in March 1996. [4] There have been a number of court orders relating to the custody of two children of the marriage, J.1, born [ ] 1988 and J.2, born [ ] 1990. [5] By order dated March 27, 1996, Master Brandreth-Gibbs ordered interim joint custody of the children to both parties with day to day care and control to Mr. J.F.. By subsequent order dated November 13, 1996, Master Bolton ordered that a short form custody and access report pursuant to s. 15 of the Family Relations Act, R.S.B.C. 1996, c. 128, be prepared. That report prepared by Family Justice Counsellor Laurie Morgan in September 1998 recommended that Ms. C.F. be given sole custody of the two children. She stated: "joint custody cannot be an option in this case, because there exists no balance of power". It was her view that Mr. J.F. had a controlling personality. [6] I should add that for much of the time in the past, Ms. C.F. had custody of S.F., a child of hers by a previous relationship, born [ ] 1981. As best as I can determine, S.F. is no longer a child of the marriage. [7] For the sake of completeness, I wish to add this: the parties apparently separated on a number of occasions prior to the final separation in 1996 mentioned above. The court file indicates that Mr. Justice Fraser made an order on September 14, 1992 adjourning an application for interim custody over to October of that year. On March 29, 1993, Master Tokarek dismissed an application of Ms. C.F. as no one appeared on her behalf. I have not taken the time to determine the nature of that application. Subsequently, on November 30, 1994, Master Bolton gave interim custody of all three children to Ms. C.F.. On March 13, 1995, I varied Master Bolton's order to permit Mr. J.F. to attend at the former matrimonial home to retrieve certain personal effects. [8] After hearing a Rule 18A summary trial on April 14, 2000, I gave reasons for judgment on May 3, 2000 that dealt with a number of matrimonial issues including division of matrimonial property and maintenance for the children. I ordered certain maintenance to be paid to Ms. C.F. by Mr. J.F. for S.F.. I also ordered Ms. C.F. to pay maintenance to Mr. J.F. for J.1 and J.2. As best I can now determine, the matter was argued before me on the basis that the principal residence of the children, at least where they spent more than 60% of their time, was that of Mr. J.F.. Custody was not an issue in that summary trial. [9] In my 2000 judgment I concluded that Ms. C.F. was under-employed. She was then, as she is now, occupied as a driving school instructor in her own driving school. I did indicate that, given her qualifications as a dental hygienist, she was capable of earning $15,000 a year in that occupation part-time if she chose to pursue it. Thus, I ordered her to pay child support for J.1 and J.2 in the amount of $225 a month. I ordered that secured for two years in the amount of $5,400. [10] Ms. C.F. now comes to court substantially in arrears. As of September 16, 2004, she owed $4,366.28 including interest and enforcement fees by the Family Maintenance Enforcement Program ("FMEP"). Net of interest, her obligation was $3,975. The only statement I have from FMEP indicates that for the period July 23, 2003 to September 16, 2004 Ms. C.F. made payments of $2,325 although her arrears on July 23, 2003 were $3,150. All of that would have accumulated from June 2002. [11] Thus, Ms. C.F. record of paying maintenance has been poor. [12] During this time, Ms. C.F. apparently received a substantial amount of money in a pay-out from Mr. J.F. with respect to the division of their assets. However, she says that her financial circumstances forced her to declare bankruptcy on September 16, 2003. She claimed as exempt from the bankruptcy a one-half interest in a property located at H.[ ] Road in Cranbrook, a half interest in certain household goods and a 1994 Thunderbird automobile. The full material with respect to the bankruptcy was not provided and so I have no way of knowing from the material what values she assigned to those assets. [13] In her affidavit presented on this application, Ms. C.F. says that she was involved in a motor vehicle accident on June 23, 2002 which resulted in her suffering "severe soft tissue damage". At the time, she was working for Walmart. She says that she worked for Walmart from November 9, 2000 to May 14, 2004. She claims that she was off work for three months after the motor vehicle accident and returned to work on September 10, 2002 on part-time modified duties for the following three months. She says that she ultimately terminated her employment with Walmart "due to extreme pain, pressures and stress that [she] could not cope with on a daily basis". She claims that at the time of swearing her affidavit on November 19, 2004, she was still not able to sit for more than one hour or stand for more than 30 minutes. [14] Ms. C.F. claims to have been completely unemployed from May 14, 2004 to September 2004. She says that she has recently re-established her driving school business so that she can work around the pain that she suffers due to her back injury. [15] Ms. C.F. has provided no income tax returns for the period 2002 through 2004, no medical evidence attesting to her condition and extent of her alleged incapacity, nor any information from Walmart, her previous employer. Because Ms. C.F. was acting for herself on this application (as was Mr. J.F.), I indicated to both of them that the material filed by each of them (at that point Mr. J.F. had filed no material at all) was insufficient. I encouraged them to provide me with further evidence. Only Mr. J.F. did so. [16] The principal issue on this application was Ms. C.F.'s request that the order of Master Brandreth-Gibbs be varied so that the parties have joint custody with Ms. C.F. having day-to-day care and control. At the present time, pursuant to that order, the parties do have joint custody but with Mr. J.F. having the day to day care and control of the children. Given their present ages (16 and 14) and Ms. C.F.'s submission that they wish to spend half their time residing with her, I determined that I would interview the children. Both parties were in agreement that I do so. I interviewed the children, in the presence of a court clerk, on December 17, 2004. II. DISCUSSION [17] The parties have provided me with insufficient information to make a determination with precision of the amount of arrears of child maintenance owing by Ms. C.F. to Mr. J.F. as of the date of the application. However, based on a monthly obligation of $225 for October, November and December 2004 added to the amount outstanding for all charges and arrears as of September 16, 2004, I get a balance of $5,041.28. This assumes that Ms. C.F. has not made any payments since the FMEP statement in September. I am not prepared to reduce or cancel these arrears without supporting medical evidence attesting to Ms. C.F.'s incapacity to work during the period she failed to pay child support. Further, Ms. C.F. has an obligation to provide proof of her income from Walmart during this period. [18] It may be that Ms. C.F. has available to her this evidence but did not appreciate that she had to bring it before me on an application such as this. It was for that reason that I encouraged her to provide me with further information. I will not dismiss her application outright at this point but will give her liberty to apply to bring further and better information before the court. Of course, Mr. J.F. will have an opportunity to reply to that information with his own affidavit material should he wish to do so. [19] It is clear to me that the children are now at an age where they wish to spend more time with Ms. C.F.. This is understandable given that they have been raised principally by Mr. J.F. and now wish to have a greater experience of life living with their mother. I accept that, at present, they have informal arrangements whereby they just extend defined access periods into longer stays. [20] The children wish to spend approximately half of their time with Ms. C.F.. There is nothing in the material to indicate that will be other than in their best interests. While the rules are stricter at the home of Mr. J.F., I am satisfied that these two children are mature enough to handle living half of their time with each parent. It was not suggested to me by either party how this should be scheduled if put in place. If the parties cannot otherwise reach an agreement after discussions with the children, I would direct that this be in alternating one week periods. I recognize, however, that the children may wish to have a more flexible arrangement. [21] As the children will, as of January 1, 2005, be spending half of their time in the custody of Ms. C.F., she will, from that date, no longer be obliged to pay child support to Mr. J.F.. On the other hand, Mr. J.F. will not be required to pay child support to Ms. C.F.. [22] At the present time, Mr. J.F. has care and control of the children. I have not received any compelling argument as to why that should presently be changed. I am prepared to have a review of that issue in approximately six months time so that I may take into account the experience of the operation of the children living equally with each parent. III. CONCLUSION [23] It is therefore ordered that: 1. As of the date of this application, arrears of child maintenance owed by Ms. C.F. are approximately $5,041.28; 2. Ms. C.F. has not provided sufficient evidence to justify my cancelling or varying the amount of arrears of child maintenance; 3. Effective January 1, 2005, the children shall reside half of their time with each parent; 4. Commencing January 1, 2005, Ms. C.F. will not be required to pay child maintenance to Mr. J.F. nor will Mr. J.F. be required to pay child maintenance to her; 5. Ms. C.F. has liberty to apply to the court with further evidence as to her circumstances with respect to her application to cancel or vary arrears of child maintenance; and 6. The parties will continue to share joint custody of the children with Mr. J.F. having day to day care and control although the issue of care and control shall be reviewed in approximately six months time on application by either party. [24] There is no order as to costs. "T.J. Melnick, J." The Honourable Mr. Justice T.J. Melnick