J.A.S. v. N.J.S.

2003BCSC1373 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: J.A.S. v. N.J.S., 2003 BCSC 1373 Date: 20030909 Docket: E002203 Registry: Vancouver Between: J.A.S. Plaintiff And N.J.S. Defendant Before: The Honourable Mr. Justice E.R.A. Edwards Reasons for Judgment Counsel for the Plaintiff Marnie Dunnaway Counsel for the Defendant Dinyar Marzban Counsel for H.M. Peter Brown Counsel for Trevors Bjurman Carla Forth Date and Place of Trial/Hearing: September 2, 2003 Vancouver, B.C. [1] This is a child custody dispute. In March 2002, I found the defendant ("mother") in contempt of a series of orders of this court as part of a concerted effort to deny the plaintiff ("father") access. I awarded the father sole custody of their daughter O., now age seven. The judgment is 2002 BCSC 440. Costs [2] The father claims special costs on the basis of the mother's contumacious behaviour. The mother did not oppose the claim. Her counsel points out she is without the means to satisfy an order for special costs and may be forced to declare bankruptcy if such an order is made. I grant the father special costs against the mother from the commencement of this proceeding to March 25, 2002. [3] One element of the special costs claimed is the expense incurred by the father and his father and stepmother travelling to Hawaii to exercise court ordered access on two occasions when the mother denied access. While this is not a direct litigation expense in the normal sense, it is akin to costs thrown away, precipitated by the deliberate misdeed of the opposite party in ignoring a requirement of the Rules. Here, the costs were incurred when the father attempted to exercise rights under orders recently granted by the court. [4] If the father had travelled to the site of the litigation to obtain the order and been awarded costs thrown away because the case did not proceed for reasons attributable to the mother, he would be entitled to his travel costs. Here, the travel expense necessary to give effect to the orders was "thrown away" because of the mother's misconduct. She should pay the disbursement. [5] The disbursement will include the cost of the father's father and stepmother accompanying him. Because of the unfounded allegations of pedophilia made by the mother, they were required to attend the access visits to allay any further suggestion of impropriety by the father. [6] The father also claims costs from the mother's mother ("Ms. H.M.") and the mother's first lawyer ("Mr. Bjurman") who have been made parties to the action for that purpose. [7] The father claims that Ms. H.M. directed and paid for the litigation on behalf of the mother and paid for the mother to flee this jurisdiction for Hawaii, hide there and resist the father's efforts to enforce this court's orders in Hawaii. [8] The father claims Mr. Bjurman was complicit in unduly delaying the hearing of certain applications and in the mother's contempt of at least one order of this court, based on instructions from Ms. H.M.. [9] In order to pursue this claim for costs against Ms. H.M. and Mr. Bjurman, the father seeks an order that the mother's three previous counsel Mr. Bjurman, Mr. Jack Aaron Q.C. and Mr. Stephen Mansfield "produce forthwith to counsel all records and notes in their possession of telephone conversations, correspondence to and from and meetings with H.M. up to, during and after the trial of this matter until the date that H.M. was made a party in this proceeding". [10] This follows a demand for discovery of those same documents served on Ms. H.M.'s solicitor in June 2003. Ms. H.M.'s position is that these documents may be released only on waiver of solicitor/client privilege by the mother. Ms. H.M. makes no claim to solicitor/client privilege. [11] The mother's counsel asserted solicitor/client privilege over whatever documents may be in the hands of her present or past counsel relating to communications they had with Ms. H.M.. [12] Counsel for the mother, Ms. H.M. and Mr. Bjurman argued the order sought was in the nature of a premature fishing expedition until the father has disclosed all the evidence on which he relies in his claim for costs against Ms. H.M. and Mr. Bjurman, although counsel for Mr. Bjurman acknowledged she might have to apply for the same documents in order to properly defend Mr. Bjurman. [13] There was ample evidence at the trial that Ms. H.M. played the major role in financing and instructing counsel on behalf of the mother in an attempt to resist the father's access and in encouraging the mother to disobey orders of the court. Had Ms. H.M. not done so, at significant expense to herself and the father, who is a truck driver of limited means, the mother might well have retained custody. [14] The mother testified that Ms. H.M. financed this litigation and instructed Mr. Bjurman. [15] A letter dated May 25, 2001, from Mr. Bjurman transferring the file to Mr. Aaron refers to taking instructions from Ms. H.M. and to her and the mother as "these clients". [16] A memo from the mother and Ms. H.M. to Mr. Aaron dated July 8, 2001, briefing him for the trial, states "we have tried to identify and clarify incidents" and "to collate things in chronological order as best we could". [17] Mr. Aaron, advised of this application, wrote to the father's counsel on August 8, 2003, stating that he dealt with Ms. H.M. only as agent for his client the mother. Mr. Mansfield took no position on the application. [18] Clearly, it is not in the mother's interest to resist disclosure of documents which may help the father prove his claim to costs against Ms. H.M. and Mr. Bjurman, thereby potentially relieving the mother of some of the burden of the award of special costs which she did not oppose. Her instructions to her counsel to assert privilege can only benefit Ms. H.M., since Mr. Bjurman's counsel acknowledges she may need the documents to defend Mr. Bjurman. This suggests the mother's assertion of privilege is in reality being dictated by Ms. H.M., or made on her behalf, the very allegation the father makes with respect to the litigation at large. [19] I am satisfied that in order to determine what role Ms. H.M. played in this litigation, to properly adjudicate the claim for costs against her, the order for disclosure of communications between Ms. H.M. and previous counsel for the mother should be made in the terms set out in the Notice of Motion. Change of Custody [20] The mother applied for a change in custody so O. could reside with the mother, her husband and O.'s half-brother, age two, in Hawaii. [21] The law is clear that a final custody order will only be altered on a demonstration of a material change of circumstances which necessitate a change of custody in the best interest of the child. [22] The change of circumstance asserted on behalf of the mother is that the child has now re-established her relationship with the father. It is not suggested that is a detrimental change. It was the change which the order of this court was intended to effect for the benefit of the child who, by virtue of the mother's conduct as described in the reasons for judgment 2002 BSCS 449, had virtually no contact with the father for almost two years. [23] The father has so far not agreed to any visit by O. to the mother's household in Hawaii. This makes it difficult for the O. to maintain contact with the mother's household, including her half-brother. This is unfortunate, but it is not an unforeseen consequence of the order granting custody to the father. [24] If the mother were to have custody, it would be the father who would be limited to occasional short visits to Hawaii in light of his work and his vacation entitlement. [25] Further, the history suggests that the mother might frustrate such access as she did in the past. The father's reluctance to permit O. to visit Hawaii is understandable in that light. This is particularly so when there is outstanding an unpaid bill for US$13,000 in his favour for court costs incurred in Hawaii, and an award for as yet undetermined special costs in this case, both of which the mother says she has no means to pay. [26] Until those outstanding costs orders are complied with, and in light of the contempt the mother exhibited to previous court orders, to change the custody order now, or even to order that the mother's access visits take place in Hawaii, would put the child at risk of rarely seeing her father and would expose him to the risk of further expense to reassert access in Hawaii, if the mother's pattern of ignoring court orders recurred. [27] The mother's counsel proposed a s. 15 Custody and Access Report be ordered at the mother's expense. That expense would be considerable. I am not persuaded such a report would assist the court. There is no suggestion either parent provides an unsuitable home. O.'s behaviour problems antedated the transfer of custody to the father. There is no assertion they are not being appropriately addressed now with a remedial program provided at school. [28] From the fact the mother agreed to pay for such a report when she has no money to pay costs, the father's counsel asked me to infer Ms. H.M. continues to assist the mother financially. [29] If that is so, Ms. H.M. might wish to consider whether the money for such a report and any she will spend to resist an order for costs against her, might be better spent helping the mother meet her court-ordered costs obligations as a first step to re-establishing a level of trust between O.'s parents which might ultimately clear the way for the father to agree to extended access by the mother in Hawaii. Having financed and encouraged the mother in a course of conduct which resulted in major litigation costs awards in the father's favour, Ms. H.M. might wish to consider extricating the mother from that predicament by contributing to paying those costs, even if she has a strong case for resisting the father's claim for costs against her personally - an issue on which I have formed no opinion. [30] I dismiss the mother's application for custody of O. on the basis there has been no material or unanticipated change in circumstances since the order of March 25, 2002. [31] The father applied for $200 per month child support from the mother based on an imputed Guideline income of $20,800, on the basis the mother has offered no explanation for her failure to obtain employment. [32] The mother's counsel argued the dearth of financial information and the fact the mother is faced with substantial expense associated with her access visits to British Columbia militated against a maintenance award at this time. [33] While the mother has a duty to support O. and has offered no explanation for not doing so, relations between the parties in this case are already strained enough, without adding what would almost certainly be unpaid maintenance into the mix. Further, O. would benefit more from more access visits with her mother than from a small monthly support payment. [34] Also, any money the mother can contribute to costs awarded against her, by even modest periodic payments to show a good faith effort to comply with court orders, would be more beneficial to O. as a basis for re-establishing in the father's mind a sense that he can trust the mother to comply with court orders, which could lead, as I have said, to his agreement to permit O. to visit her mother in Hawaii. [35] It is in O.'s best interest to have as much contact with her mother, stepfather and half-brother as circumstances allow. The mother's past contempt of court orders precludes that from including visits with them in Hawaii until she has demonstrated to the father a willingness to comply with court orders. [36] The father's application for child maintenance is dismissed. [37] Success has been divided. The mother and father will bear their own costs inter se. [38] Costs arising from the father's claim for costs against Ms. H.M. and Mr. Bjurman should be determined when that issue is resolved. [39] Counsel may schedule a pre-hearing conference regarding the conduct of that costs hearing if they are unable to resolve the issue. "E.R.A. Edwards, J." The Honourable Mr. Justice E.R.A. Edwards