C.M.B. v. D.L.B.

2011 BCSC 1006 C.M.B. v. D.L.B. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: C.M.B. v. D.L.B. 2011 BCSC 1006 Date: 20110727 Docket: E110287 Registry: Vancouver Between: C.M.B. Claimant And D.L.B. Respondent Before: Master MacNaughton Reasons for Decision Counsel for Claimant: L.A.L. Chantler The Respondent D.L.B.: In Person Place and Date of Hearing: Vancouver, B.C. June 22, 2011 Place and Date of Judgment: Vancouver, B.C. July 27, 2011 Background Facts [1] C.M.B. and D.L.B. were married on February 27, 1999, and separated in January, 2009 when D.L.B. left the matrimonial home. [2] They are the parents of three sons: E.J.B., born July 18, 2001; J.A.B., born January 4, 2004 and D.A.B., born October 9, 2005 (the "children") [3] D.L.B. was born in Australia and, for a part of their married life, the parties lived there. They have lived in British Columbia since about March 2004. [4] During the parties' marriage, C.M.B. was the primary caregiver to the children and that has continued since the date of separation. C.M.B. and the children reside in a jointly-owned family home at 10696 Kimola Way in Maple Ridge (the "family home"). D.L.B. purchased a home nearby where he lives with his girlfriend and her son who resides with them half of the time. [5] C.M.B. is a school counsellor with School District #42 and, as indicated on her income tax return, had a 2010 income of $57,663.18. In her affidavit sworn May 30, 2011, C.M.B. indicates that she works from Monday to Thursday from approximately 8:30 a.m. until approximately 3:00 p.m. but that her work hours are flexible permitting her to accommodate the children's activities and appointments. Much of the children's time is taken up by their involvement in competitive swimming. It is clear from C.M.B.'s affidavit, and not disputed by D.L.B., that C.M.B. is the parent who has been primarily involved in the children's swimming. [6] D.L.B. is an operations manager for Universal Rope which is a ship's chandler. In addition, he operates a landscaping company, JED Excavating. D.L.B.'s work schedule requires him to leave home early in the morning but he says that he generally finishes work in the early afternoon. [7] On his March 1, 2010 financial statement, D.L.B. says that his income is $84,257.20, which includes $1,250 from JED Excavating. The parties disagree about D.L.B.'s income from JED Excavating and C.M.B. believes that he earns more than indicated on his financial statement. [8] After separation, it took some months for the parties to work out an access schedule. Until about March 2009, D.L.B. did not have accommodation in which the children could sleep overnight and, for two nights a week, D.L.B. stayed at the family home so that he could have access with the children. In about April 2009, D.L.B. moved into larger accommodation and his overnight access to the children gradually increased. The children are currently in D.L.B.'s care as follows: a) every Thursday after school until Friday morning at 8:00 a.m., at which time the woman D.L.B. lives with takes E.J.B. and J.A.B. to school and drops D.A.B. off at C.M.B.'s residence; b) every Friday from approximately 4:00 p.m. until Saturday at approximately 1:30 p.m.; and c) any other access agreed to by the parties. At a judicial case conference, and on consent, the parties agreed that D.L.B. could take the children for a three-week holiday to Australia between June 26 and July 20, 2011. The Application [9] C.M.B. seeks the following interim orders: a) that she have sole custody of the children of the marriage; b) that the parties have joint guardianship of the children as defined by the Master Joyce model, with C.M.B. having final decision-making authority; c) that the children primarily reside with her in the family home; d) that D.L.B. disclose a number of financial records; e) that D.L.B. pay interim child support in the amount of $1,678.00 per month, based on his annual income of $88,147.00. C.M.B. says that the interim child support she seeks is until further order of this Court, and without prejudice to her claims for retroactive child support, or to increased child support, based on any higher income that is revealed in the disclosure requested from D.L.B.; f) that D.L.B. pay 60% of the children's special and extra-ordinary expenses, including the cost of daycare and karate; and g) her costs of the application. [10] D.L.B. opposes the orders sought by C.M.B. He says that custody of the children should be shared. In addition, he disputes the amount of interim child support he should be ordered to pay because he says that his 2010 income, as reflected on his income tax return, was inflated by the inclusion of a one-time capital gain. Orders with respect to children [11] Since the separation, there have been a number of incidents, some of which are set out in C.M.B.'s affidavit of May 25, 2011, during which D.L.B. has engaged in intimidating behaviour and had angry outbursts, sometimes in the children's presence. C.M.B. also attests to incidents in which D.L.B. discussed issues of custody and access in front of the children. D.L.B. did not deny these incidents in his materials or in his submissions before me. In fact, he acknowledged that he has "made some mistakes" in dealing with C.M.B. and the children. [12] As a result of the difficulties surrounding custody and access, E.J.B. has been experiencing difficulties at school and is attending counselling with a school counsellor. [13] In seeking interim joint custody, D.L.B. suggests that C.M.B. rarely provides him with information pertaining to the children's activities or appointments and does not meaningfully communicate with him with respect to any decisions affecting the children. The record of the exchange of emails between the parties does not bear out D.L.B.'s position. It reflects significant efforts on behalf of C.M.B. to communicate with D.L.B. about the children. [14] Despite these difficulties, overall, the parties have managed to communicate with each other regarding the children and their disagreements appear to reflect their respective frustration with each other's parenting styles. C.M.B. describes the father as controlling and intimidating and D.L.B. accuses the mother of trying to interfere with his relationship with his children. However, on the information before me, their disagreements have not reached the level at which they are affecting the children's best interests. Both parents have, at times, taken rigid positions but have also shown a willingness to accommodate each other and to put their children's interests ahead of their own. D.L.B.'s acknowledgement that his behaviour could be improved is evidence of his awareness of the impact his conduct may have on his children. His conduct does not, however, rise to that described in the various cases relied on by C.M.B. in which sole custody orders were granted after trial. See, for example, N.M.A. v. K.D.L., 2010 BCSC 392; T. v. R., 2003 BCPC 0331; and Sakaluk v. Sakaluk, 2000 BCSC 713. [15] The current access arrangements seem to be working well and show that the parties can cooperate. D.L.B. would like more access and the parties should work towards that goal. In all the circumstances, I conclude that no order for custody would be appropriate at this time. The parties' relationship will mature as time goes on such that a joint custody arrangement might well be appropriate when this matter comes on for final disposition. [16] The parents are to be joint guardians of the children under the terms of Master Joyce's model which will continue to require them to consult and to jointly reach decisions regarding the children's best interests. In my view, this will suffice pending final resolution. An order for sole custody of the children to C.M.B. would, in my view, interfere with the maturing of the parties' relationship with respect to parenting of the children, would create an unnecessary power imbalance, and would be inappropriate at this time. [17] D.L.B. is to have generous access to the children. At a minimum, he is to have the access which has currently been agreed and the parties are free to, and should, agree to further access. Financial Orders [18] On the information before me, D.L.B. has employment income of $84,257.20. C.M.B. acknowledges that D.L.B.'s 2010 tax return income includes a capital gain. C.M.B. argues that I should draw an inference that D.L.B.'s income is higher than that reflected in his financial statement from his failure to make full disclosure of his income from JED Excavating. While D.L.B. does not deny that he earns additional income from JED Excavating, he advised that the income is minimal. He also says that he has disclosed all financial information for JED Excavating available to him. [19] I accept that D.L.B. does earn some additional income from JED Excavating. In prior years, that income has been significant. I do not have sufficient information to determine the current level of D.L.B.'s additional income and, in light of his position that he has disclosed all the information available to him with respect to JED Excavating, I am not prepared to draw any negative inferences. I therefore set D.L.B.'s income at $84,257.20 for the purposes of the Federal Child Support Guidelines. [20] I do, however, order further disclosure set out below and while I decline to draw any negative inference, I do so without prejudice to C.M.B. to seek greater child support if through disclosure and discovery she learns that D.L.B.'s income is higher. It is also without prejudice to any claim for child support arrears which was not argued before me. [21] To date, C.M.B. has been incurring all of the children's day care and extra-curricular activity costs. C.M.B. says that she is prepared to assume the cost of the children's participation in swimming so long as D.L.B. pays his proportionate share of the other special costs. [22] I see no reason for C.M.B. to assume the cost of the children's participation in swimming and order D.L.B. to pay to C.M.B. his proportionate share of all of the children's s. 7 costs based on the respective incomes set out above. Orders with respect to disclosure [23] C.M.B. acknowledged that since filing her application, D.L.B. has provided some further disclosure. The following items remain outstanding and are ordered disclosed: a. copies of all invoices and any other documentation to verify the father's business income and expenses from JED Excavation from February 1, 2008 to the date of this order. b. copies of all documentation relating to D.L.B.'s Australian Sunsuper Superannuation Pension and any other pensions held by D.L.B. in Australia or in Canada. Costs [24] In the circumstances, costs will be in the cause. "Master H. MacNaughton"