Drummond v. Drummond

2008 BCSC 1651 Drummond v. Drummond

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Drummond v. Drummond, 2008 BCSC 1651 Date: 20081201 Docket: F992921 Registry: Vancouver Between: Edward Jack Drummond Plaintiff And Sandra Patricia Drummond Defendant Before: The Honourable Madam Justice Ross Reasons for Judgment The Plaintiff Appeared on His Own Behalf The Defendant Appeared on Her Own Behalf Date and Place of Hearing: October 20, 2008 Vancouver, B.C. [1] This is an application brought by the defendant Sandra Drummond for orders: (a) varying the orders of Mr. Justice Groves made December 13, 2007 and Mr. Justice Curtis, made September 1, 2000 with respect to the custody, guardianship and access of the child of the marriage, Christina who is aged16; (b) varying the order of Mr. Justice Groves of December 13, 2007 with respect to child support; (c) for the plaintiff, Edward Drummond, to produce certain documents; (d) for a determination of each party's 2008 Guideline incomes; (e) for retroactive child support, effective June 2008; (f) for security for child support; and (g) costs. [2] It is clear that relations between these parties have been and continue to be acrimonious. They have been before the court a number of times pursuant to numerous notices of motion with respect to these same issues. For the purposes of this application, the most significant orders are as follows: (a) Pursuant to the order of Curtis

J. of September 1, 2000 and by consent, the parties shared joint custody and guardianship in accordance with an equal shared parenting plan. Mr. Drummond was to pay child support based upon the set off between the parties respective Guideline incomes to reflect the 50/50 shared custody regime. (b) Mr. Justice Goepel dealt with three applications brought by Mr. Drummond and an application by Ms. Drummond. By order of March 3 2000, Goepel J. increased the child support based upon changes in the Guideline income and made a series of rulings with respect to extraordinary expenses and travel arrangements. Goepel J. dismissed Ms. Drummond's application for retroactive lump sum payment of child support. (c) By order of May 19, 2004, Madam Justice Neilson reduced the amount of child support based upon changes in the Guideline income, ordered the production of a s.15 report and production of certain documents from the West Vancouver Police Department files. (d) By order of June 3, 2005, Madam Justice Satanove dismissed applications with respect to custody and access brought by Mr. Drummond and Ms. Drummond. The joint custody and shared parenting were to continue for two years, after which time either party was at liberty to apply for a review without the necessity of proving a material change in circumstance. (e) By order of June 29, 2007, Madam Justice Martinson varied the order of

September 1, 2000 to provide that Christina would reside primarily with Mr. Drummond, parenting time for Ms. Drummond was specified according to a two-week rotating schedule. Ms. Drummond was ordered to pay child support. Mr. Drummond's application for retroactive support was dismissed. (f) By order of December 13, 2007, Mr. Justice Groves varied the order of June 29, 2007 to restore a shared parenting regime in which Christina spent equal time with each parent on a weekly rotation schedule. Mr. Drummond was ordered to pay child support based upon the set off of the respective Guideline incomes. Ms. Drummond's application for retroactive support and an order for security for child support were dismissed. Variation of Custody and Access [3] Ms. Drummond submits that there has been a significant and long lasting change in circumstance in Christina's physical care and living arrangements in that Christina has been in Ms. Drummond's primary care since August 2007, with the exception of three weeks of shared care in May and June 2008. Ms. Drummond submits that the order of shared care of Groves J. of December 13, 2007 does not reflect the reality of the physical custody and care circumstances of Christina. [4] Mr. Drummond does not dispute the fact that Christina has been in Ms. Drummond's primary care. He submits that the reason for this is that "Christina has been running the

show" and that Ms. Drummond has encouraged her to breach first the provisions of the order of Martinson J. and then the order of Groves J. It was Mr. Drummond's submission that one or the other of the parties should have sole custody of Christina. He submitted that, if the court was not prepared to order that he have sole custody, that Ms. Drummond pay appropriate child support and that Christina abide by the terms of such an order, then Ms. Drummond should have sole custody, the court should set appropriate child support and he would have no further visitation or contact with Christina. [5] He submitted that in the hearing before Groves J. Ms. Drummond stated that Christina was doing extremely well at school. In fact, Mr. Drummond learned subsequently that Christina had been suspended from school, her attendance was poor and she was failing four classes. He provided school reports for the subsequent period of November 26, 2007 to February 29, 2008 that showed no improvement from the previous term and indeed some further deterioration. [6] He submitted that Christina's performance improved during the time when she was with him in May and June 2008, but that Ms. Drummond interfered with his efforts to impose some discipline. [7] He submitted that no order for retroactive support should be made because of Ms. Drummond's failure to abide by the orders of Groves J. and Martinson J.

and because he continued to pay support for eighteen months during which time Christina was living with him and not Ms. Drummond. [8] For her part, Ms. Drummond places the blame upon Mr. Drummond for Christina's refusal to return to Mr. Drummond's residence. She provided reports from the school that suggest that Christina's performance and attendance have improved. [9] Each party provides conflicting evidence with respect to certain events involving Christina. It is not possible to reconcile the versions or, in this summary proceeding, to make findings of fact about these events. [10] A review of the voluminous affidavits filed by the parties reveals that there has been a history of difficulties, and school and behaviour issues. At different times Christina has expressed a desire to live with each of her parents and expressed conflict with the other. There have been indications that each of the parties has experienced issues with anger management. Each parent has, at different times, deposed that Christina's version of some of the events is not truthful. [11] In her reasons indexed at 2005 BCSC 813, Madam Justice Satanove noted that Dr. Elterman had recommended joint custody and equal time-sharing. Commencing at para. 9 she observed: Thirdly, the inability of these joint custodial parents to co-operate is not necessarily a change in circumstances because it appears they never

co-operated in the first place. However, Dr. Elterman reports that conflict between the parties is the root of C.'s unhappiness, so I think it prudent to review C.'s custodial arrangement and determine whether a change would be in her best interest. Two important principles should be kept in mind: (1) Parliament has expressed its opinion that contact with each parent is valuable and that I should ensure that contact is maximized (Young v. Young, [1993] 4 S.C.R. 3); and (2) although the inability of the parents to get along is an important factor, it does not mean joint custody is not feasible (Robinson v. Filyk (1996), 28 B.C.L.R. (3d) 21 (C.A.)). Given the contradictory nature of the parties' affidavits, I found the most reliable evidence to be from Dr. Elterman's report, which was comprehensive and thorough. He pinpointed his concerns with each parent and C. He felt that the plaintiff's comments about C. were likely more appropriate for a fifteen year old girl rather than a twelve year old. He was concerned that the plaintiff gave C. more credit in terms of sound and mature judgment and the ability to handle freedom than is likely safe. Dr. Elterman wrote that although the plaintiff was a devoted parent, he did not have a realistic view of C.'s maturity or her ability to play one parent off against the other. Dr. Elterman had different concerns with respect to the defendant.

She admitted to a quick temper which did not subside easily. She took things personally and over-reacted by yelling or being physically aggressive in a few instances. Dr. Elterman felt that there were parenting skills and anger issues that needed to be addressed by the defendant. Dr. Elterman also had a concern with C.'s conduct. He thought C. seemed to be "calling the shots" as to when she would come from or go to each parent's home. She also used her father's freer approach to undermine the disciplinary methods of her mother. Dr. Elterman's reluctance to recommend sole custody by either parent was due to a very real fear that residing with one parent would lead to little or no contact with the other parent. C. herself wanted to be able to see both parents, although she wished to go back and forth between them at will. Dr. Elterman did not think that allowing C. to choose when and how she resided with each parent would be in her best interest, and I agree. Both parents have something to offer C., in terms of love, devotion, freedom and discipline. I do not think it is in C.'s best interest to be solely subjected to one parenting style at the sacrifice of the other. In married households where the parents' relationship is one of co-operation and compromise where necessary, different parenting styles usually meld into a hybrid style to the child's benefit. I believe this can

also be achieved in joint custodial arrangements between two households. C. may feel she should be free to choose which home she wants to live in and when, but I respect Dr. Elterman's opinion that in the formative years C. may not always choose in her best interest. Dr. Elterman suggested a neutral counsellor/coordinator to respond to situations between C. and the defendant, but both parties agreed that this was not really practical. [12] In my view, it is not in Christina's best interests to make an order of sole custody to either parent. As Satanove J. noted, both parents have something to offer Christina and it is in her best interest to maintain a relationship with both her parents. There has been a history of volatility. My concern is that an order for sole custody for either parent will not enhance her relationship with both parents. As Satanove J. noted, these parents have never cooperated and that has not changed; however, that is not a reason to make a change in custody in these circumstances. Accordingly, the application to vary the previous orders with respect to custody and guardianship is dismissed. [13] With respect to access, whatever the circumstances and conduct of the parties with respect to compliance with orders concerning parenting schedules in the past, Christina is now of an age where it is not practicable to make an order with respect to access; see

O'Connell v. McIndoe (1998), 56 B.C.L.R. (3d) 292; 113 B.C.A.C. 172 (C.A.) in which Donald J.A., speaking for the court noted at para. 13: In order for custody orders relating to children in their teens to be practical, they must reasonably conform with the wishes of the child. See Shapiro v. Shapiro (1973), 33 D.L.R. (3d) 764 (B.C.C.A) and Alexander v. Alexander (1988), 15 R.F.L. (3d) 363 (B.C.C.A.). [14] In this case, Christina's wishes have shown a history of change and volatility. In the circumstances, the best course in my view is for there to be no order with respect to access or a parenting schedule, leaving the matter to Christina to arrange with her parents. Accordingly, the order of Groves J. of December 13, 2007 will be varied by deleting paras. 1(b) and (c). Air Canada Pension Statement [15] Mr. Drummond provided the information concerning his Air Canada pension at the hearing, and accordingly the application for relief sought in subparagraph 3 of the Notice of Motion concerning production of those documents was withdrawn. Document Production [16] Ms. Drummond has sought production of a number of documents concerning Mr. Drummond's financial affairs. Mr. Drummond had previously provided Ms. Drummond with a copy of his income tax return. Some of the documentation sought is apparently with reference to matters that were determined at the hearing before Groves J. Other

information is sought with respect to certain rental properties. So far as I have been able to determine from the submissions and evidence, matters in relation to these properties have also been the subject of earlier adjudication. I am not satisfied that a case has been made to order disclosure of this information, accordingly the relief sought in paragraph 4 of the Notice of Motion is dismissed. Child Support [17] Based upon the evidence provided at the hearing, I find that Mr. Drummond has a Guideline income of $113,725 and Ms. Drummond has a Guideline income of $77,093. Christina is at present not in a shared parenting regime, but living with Ms. Drummond. Accordingly, para. 2(b) of the order of Groves J. is varied to provide that Mr. Drummond will pay child support in the amount of $1,018.00 per month. The parties will share special and extraordinary expenses in proportion to their respective incomes. Retroactive Support [18] Ms. Drummond is seeking to make the order for child support retroactive to June 2008, the date when the Notice of Motion was delivered. Mr. Drummond opposes an order for retroactive support on the basis that Ms. Drummond failed to comply with the order of Groves J. and he has met all his obligations pursuant to that order. [19] In determining whether a retroactive child support order should be made, the court should consider all of the relevant circumstances: see D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para.

133. These include: 1. whether the recipient parent has supplied a reasonable excuse for delay; 2. the conduct of the payor parent; 3. the past and present circumstances of the children; and 4. the hardship a retroactive award might entail. [20] In Eadie v. Eadie, 2008 B.C.S.C. 1380, Mr. Justice Slade noted at para. 51: No one factor is determinative. It is possible to make an order for retroactive support in the absence of one of the factors: Hellner v. Hellner, 2007 BCSC 1509, ¶100. As Bastarache J. noted at ¶99 of D.B.S., "at all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix". [21] In Fearnside v. Fearnside, 2008 B.C.S.C. 1072, Madam Justice Gray noted at para. 115: The majority in S. (D.B.) held, at para. 125, that, as a general rule, child support should be retroactive to the date of effective notice by the recipient parent that child support should be increased, but not more than three years in the past, unless the payor has engaged in blameworthy conduct, in which case the date the circumstances changed materially will be the presumptive date of the award. [22] In the present case, there has been no delay on the part of Ms. Drummond in making her intentions known. There is no evidence of hardship and no evidence with respect to the effects upon Christina. Mr. Drummond has been paying

pursuant to the order of Groves J., but that order has not for some time reflected the circumstances of Christina's residence. In the circumstances, I make an order for the support to be retroactive to July 1, 2008. Mr. Drummond will pay the difference between the support paid pursuant to the order of Groves J. for the period from July 1, 2008 to the date of these reasons as retroactive child support. Security for Child Support [23] Ms. Drummond seeks an order for security for child support. In my view, there is no basis for such an order. Mr. Drummond has complied with previous orders of the court and there is no reason to believe that this will change in the future. Accordingly, the application for the relief sought in para. 7 of the Notice of Motion is dismissed. Costs [24] Success has been divided in this matter. The parties will each bear their own costs. "Ross J." December 17, 2008 - Revised Judgment Corrigendum to the Reasons for Judgment issued advising that paragraph 17 should be corrected to read that Mr. Drummond will pay child support in the amount of $1,018.00 per month, not $1,620.00 per month.