C.L. v. C.C.

IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: C.L. v. C.C., 2005 BCSC 355 Date: 20050311 Docket: E022198 Registry: Vancouver Between: C.L. Plaintiff And: C.C. Defendant Before: The Honourable Madam Justice Boyd Reasons for Judgment Counsel for the Plaintiff: A. Prkacin Counsel for the Defendant: S.K.J. Chen Date and Place of Hearing: March 7, 2005 Vancouver, B.C. Introduction: [1] The defendant father applies for an order that: ● the Interim Order and the Restraining Order made by Master Donaldson on July 18, 2002 be set aside; ● the defendant be given sole guardianship and sole custody of Y.C.1, born [ ], 1993 and Y.C.2, born [ ], 1997 (the "Children"); ● an order the plaintiff shall have supervised access only to the Children based on a schedule to be fixed by the Court; ● the monthly spousal maintenance of $100 be retroactively cancelled as of July 18, 2002 and that the arrears be rescinded; ● the monthly child maintenance of $900 be retroactively reduced to an amount to be determined under the Federal Child Support Guideline as of July 18, 2002 and that the arrears be rescinded; ● if the child maintenance arrears are not rescinded, that the defendant is to pay the child maintenance arrears in periodic payments based on the ability to pay of the defendant; ● the annual default fee owed by the defendant to the Family Maintenance Enforcement Program be cancelled; and ● costs. Background: [2] Most of the matters dealt with in this application were addressed in an earlier application heard December 15, 2004. While Reasons in respect of those applications were under reserve, the defendant mother left the jurisdiction and took the children to Toronto, Ontario. I therefore declined to provide any reasons or to make any order in respect of the father's applications or the mother's cross applications which were originally being heard in the court on December 15, 2004 (See Reasons for Judgment, 2005 BCSC 140). [3] On March 7, 2005, the father's counsel reviewed the developments since the last hearing date, including the Ontario Superior Court's order upholding my order of January 21, 2005 in which I had awarded the father interim sole custody with no access to the mother pending a further court order. Pursuant to that order, the children were recovered from their school in Toronto and under the father's supervision, escorted back to British Columbia on February 3, 2005. [4] At the conclusion of the March 7, 2005 hearing, I refused to make any final order for sole custody and guardianship in favour of the father, with no access to the mother for a period of six months, as proposed. I expressed concerns about the emotional wellbeing of the children as well as the dearth of information offered by the mother concerning her circumstances in Ontario and the boyfriend with whom she proposed to form a new home for herself and the children. That part of the application was therefore adjourned to a future date pending the filing of further and better materials by both parties. [5] Nevertheless, the father's counsel asked the Court to provide judgment in respect of the issue of child support and arrears in maintenance which were the subject of submissions on December 15, 2004. I understand that the mother has filed a restraining order against title to the former matrimonial home in Taiwan, reflecting arrears of maintenance in the sum of approximately $15,000-$20,000 which have accrued under Master Donaldson's order of July 18, 2002. If this court now addresses the issue of arrears, Mr. Chan submits there will perhaps be some opportunity for the lifting of that order in Taiwan. Arrears, Child Support and Maintenance: 1. Background Facts: [6] The husband is 45 years of age. The wife is 34 years of age. They married in June 1993 in Taiwan. Their two children are 7 and 11 years of age. The husband worked as a University English language instructor in Taiwan. While the wife completed a Bachelor of Arts degree in Taiwan, it does not appear she was employed in Taiwan. [7] In 1997, the husband initiated an application for immigration to Canada and in 1998, the family obtained landed immigrant status. They moved to Vancouver in 1998 but continued to travel back and forth between Canada and Taiwan. [8] The parties apparently separated by mutual agreement and then divorced in Taiwan in April 1999. The wife says she was coerced into signing a separation agreement whereby she agreed to give up any rights of custody to the children and to waive any entitlement to spousal maintenance. [9] Notwithstanding the separation and divorce, the wife continued to regularly visit the home and visit the children. She says that she continued in her role as the children's primary caregiver, which assertion the husband disputes. [10] In January 2001, the husband took a leave of absence from the University and moved to Vancouver with the children. He says that at her request the mother was allowed to accompany the family in this move and that the parties resumed cohabitation for the purposes of sharing parental duties. She says that in reality, notwithstanding the divorce, her marital relationship with the husband had never ended and that indeed, they continued to have sexual relations and that she became pregnant in 2000. She says that due to the husband's continued emotional abuse, she miscarried this baby just shortly before the move to Canada. She says it was always understood that they would move as a family to Canada and that she would carry on in her role as wife and primary caregiver. They settled in an apartment in Vancouver and she says that they simply continued to live together as husband and wife and engage in sexual relations. [11] In August 2001, the husband's father became very ill, requiring the husband (who is the eldest son in the family) to return to Taiwan in September 2001 to assist his family in caring for his father. I understand that in any case, the husband would have had to return to Taiwan at approximately that time, since his leave of absence from the University had come to an end. [12] The wife complains that throughout her marriage, the husband has been very controlling and has refused to allow her to work. Since the family's arrival in Canada, she says that he has always retained her social insurance card, her passport and landed immigrant documentation, all bank statements and all income tax documents. Nevertheless, since approximately July 2001, she has insisted on attempting to establish a career as an artist, producing and marketing her own hand made crafts at local craft fairs. She says the husband was enraged by her efforts and that both then and now he has labelled her as a non-attentive parent, who prefers to pursue her career interests rather than attend to her parental duties. She alleges she is the victim of chronic physical and emotional abuse. [13] Following the husband's return to Taiwan in September 2001, the wife continued to live with the children in Canada, as well as to manage the Vancouver household. Between September 2001 and December 2001, the husband managed to visit in Canada for 24 days. Between January 2002 and July 15, 2002, the husband was in Canada for 94 of the 200 days. During that period the parties' relationship deteriorated markedly. The husband complains that during the periods he was in Vancouver, the wife stayed out late and "neglected her parental duties" while he was forced to care for the children. Based on the children's advice that during his absences, an "uncle" was frequenting the home, he surmised that the wife now had a boyfriend. [14] In June 2002 he says the wife informed him that she wanted to move out of the house and that she would no longer care for the children. He says that he "conceded to her demand". [15] In the interim the wife commenced these proceedings and on July 10, 2002, the husband was served with her application for interim custody of the children and interim child support and spousal maintenance. [16] The husband left Canada to return to Taiwan on July 15, 2002. He says that while he was in Taiwan he communicated by telephone with the wife's previous lawyer. He says she told him that if he failed to appear in Court on the date scheduled for the application, the judge would find him in contempt of court. He says that while his wife's lawyer demanded $4000 in maintenance, he eventually succeeded in negotiating the figure down to $1000 per month, relying on the anticipated assistance of his parents to satisfy such an order. By virtue of the threats made by his wife's legal counsel and his lack of legal representation, he says that he eventually agreed to the Consent Order made July 18, 2002 allowing his wife interim sole custody of the children, interim child support and spousal support of $1000 per month, as well as a restraining order. [17] Pursuant to the consent order of Master Donaldson, I understand that arrears in the order of $15,000-$20,000 have accrued to date. The precise Family Maintenance Enforcement Program account is not before me so this observation is not to be taken as a declaration regarding the amount of the arrears. 2. Submissions regarding Child Support and Maintenance: [18] The husband seeks to set aside the order of Master Donaldson which provides that he pay child support of $900 per month and spousal support of $100 per month, commencing August 1, 2002. [19] The husband says that the July 2002 Consent Order negotiated with the wife's previous lawyer, was premised on his receiving substantial assistance from his parents. Relying on his Taiwanese Income Tax statements for 2002 and 2003, he notes that his only source of income is his salary as a University instructor in Taiwan. He earned the equivalent of $30,128.55 in Canadian taxable income in 2002. His Form 89 suggests that his gross income rose to $33,957 in 2003. Adopting this latter figure, he submits that applying the Federal Child Support Guidelines, the child support ought to have been $447 per month for the period July 2002 to December 2002, and $447 per month for the period January 2003 to present. [20] The wife does not contest this calculation of child support. Her major dispute appears to concern the husband's alleged ownership of various assets in Taiwan, all of which the husband contests. She insists that he is a member of a very wealthy and powerful Taiwanese family and that he owns both the original matrimonial home as well as two commercial buildings in Taiwan. She estimates that his gross income, including his University salary and the rental income from the commercial properties, totals approximately $108,000 per annum. Given the late service of these materials, the husband has not responded to such allegations and thus for the purposes of this interim order, I will not consider them here. [21] Based on the material presently available, I will order that the husband pay child support in the sum of $447 per month for the period July 2002 to December 2002, and thereafter the sum of $492 per month commencing January 2002 until January 1, 2005. I note that to date, no application has been made for extraordinary expenses, nor was such an order originally sought in July 2002. This order will be retroactive to July 2002. I will leave counsel to calculate the amounts paid to date and determine what portion of the outstanding arrears ought to be cancelled. The Provincial Maintenance Enforcement officials ought to be advised. [22] Regarding the matter of spousal maintenance, while there is evidence that the wife does indeed participate in various craft fairs, there was no affidavit evidence that she earns any income as a result. She has filed a Form 89 in which she discloses that she earns no income as a craft person and that her only source of income is the child support and spousal support as well as the child benefit tax benefit. She says she completed a Bachelor of Arts degree in Taiwan and she hopes someday to enrol in the Early Childhood Education program at L.[ ] College in Vancouver. [23] While the affidavit material suggested that the wife had no source of income, during submissions on December 15th, I was informed that the wife had in fact been working part-time at a U.[ ] daycare facility and that in the future, she hoped to obtain full-time employment. [24] More recently, at the hearing on March 7, 2005, counsel produced an affidavit sworn by Ms. C.L. on February 25, 2005. Attached to that affidavit is Exhibit A, a letter from Ms. D., a childcare supervisor at the S.[ ] Centre, confirming that in 2004 Ms. C.L. has worked as a substitute teacher at the childcare centre. However no details are provided concerning the actual period of employment or her history of earnings. [25] In my view, I have no reliable evidence concerning Ms. C.L.'s recent history of employment or the income earned. Given the lack of any reliable evidence now before the court, I am unable to make any order amending the previous order for spousal support or cancelling the arrears which have accrued. The arrears which have accrued between July 2002 and today's date, will therefore remain outstanding, pending the filing of further and better material. The defendant father is at liberty to renew his application for the cancellation of any arrears for spousal support at a later date. "M.E. Boyd, J." The Honourable Madam Justice M.E. Boyd