D.R. v. G.B.R.

2024 BCSC 1599 D.R. v. G.B.R. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: D.R. v. G.B.R., 2024 BCSC 1599 Date: 20240828 Docket: E201118 Registry: Vancouver Between: D.R. also known as D.V. also known as V.D. Claimant And G.B.R. Respondent Before: The Honourable Justice E. McDonald Oral Reasons for Judgment Counsel for the Claimant: Z. Jenab The Respondent, appearing in person: G.B.R. Place and Date of Trial/Hearing: Vancouver, B.C. August 23, 2024 Place and Date of Judgment: Vancouver, B.C. August 28, 2024 [1] These reasons were delivered orally. They have since been edited for distribution and publication. Introduction [2] There are cross applications before me that are a response to a recent accident experienced by G.B.R. that resulted in him sustaining serious injuries. Each party submits that as a result of the accident, certain relief, including to vary a final order, is required. [3] On June 19, 2024, G.B.R. filed an application seeking a variety of orders, mainly to vary and reduce child support, s. 7 expenses and arrears but also to reinstate his parenting time. G.B.R. is concerned that since his accident in early May 2024, he has not had in-person parenting time. He is also concerned that due to his injuries, his financial circumstances have changed for the worse because he is not working and he is receiving disability benefits. [4] On July 16, 2024, D.R. filed an application seeking a variety of orders to obtain information about G.B.R. and to temporarily require that his parenting time be supervised and to give her final say in exercising parental responsibilities. D.R. is concerned that G.B.R. is an unsafe parent and that he poses a risk to the child because G.B.R. was intoxicated at the time of the accident. D.R. states that the reasons for the accident are unexplained and she opposes G.B.R. having unsupervised parenting time with the child until she receives a satisfactory explanation for the accident. Background [5] As mentioned, the parties were formerly married. They divorced in December 2022 and they are parents of a child, M.R., born July X, 2015. [6] A comprehensive final consent order was made on December 7, 2022 (the "Final Order"). Both parties were represented at the time of the Final Order. [7] The Final Order provides G.B.R. with regular parenting time every second and fourth weekend including overnights from Friday to Sunday. The Final Order also provides the parties with summer holiday parenting time and special occasion parenting time. G.B.R. also received phone or facetime video parenting time with the child on Monday, Wednesday and Friday. [8] Finally, and relevant to this application is that the Final Order provides a week of time during which G.B.R. has all parenting time, including duties to transport the child to school and activities, at the option of D.R. That is called "Claimant's personal time" and I understand the intention is to give D.R. a break during a full week of her choosing on specific notice to G.B.R. G.B.R. in his application seeks to vary the Final Order to eliminate this personal time parenting at the option of D.R. D.R. opposes varying the order to remove this term. [9] The Final Order also provides for child support payable by G.B.R. of $813 pm based on imputed annual income of $85,000 until August 1, 2025. If G.B.R.'s income is less than $85,000 the Final Order says he will still pay based on $85,000 and if more than that, he is to pay increased table child support based on his higher income. Child support is payable while the child is eligible for support. In addition, the Final Order states that G.B.R. will pay s. 7 expenses of $7,600 per annum and G.B.R.'s 65% share is $412 pm. [10] On May 9, 2024, G.B.R. sustained serious injuries resulting from a fall off of his apartment balcony. He was hospitalized and his injuries included a head injury and broken bones such in his leg and wrist. He could not walk for a period of time but he is now able to walk. G.B.R. was placed on short-term disability after his accident. He provided evidence at the hearing that he was recently approved for long-term disability. His doctor has apparently told him he will not return to work this year. However, his plan is to recover and return to work as an electrician. [11] D.R. is presently collecting unemployment benefits due to being laid off. She is looking for another job and she is reliant on the support payable to her under the Final Order. Analysis The Respondent's Application [12] The Final Order refers to child support being payable for as long as the child is eligible under the Family Law Act, S.B.C 2011, c. 25 [FLA]. Therefore, I consider G.B.R.'s application to vary the Final Order respecting child support as being pursuant to s. 152 of the FLA. In essence, G.B.R. wishes to see his payments for child support and s. 7 expenses reduced due to his allegedly reduced annual income. [13] The grounds available to change an order under s. 152 include that there is a change in circumstances as provided by the Federal Child Support Guidelines, SOR/97-175 [Guidelines] occurring since the order and evidence of a substantial nature that was unavailable during the previous hearing. A material change is one that if known at the time would result in a different order being made and it must have some degree of continuity and not merely be a temporary set of circumstances: Willick v. Willick, [1994] 3 S.C.R. 670 at para. 21 and L.M.P. v. L.S., 2011 SCC 64 at para. 35. [14] G.B.R. has provided evidence related to his income. That evidence consists of employment earnings statements, short-term disability statements and a letter about long-term disability. At his employment, he earned $45,754 before he was off work due to injury. On short-term disability, he earned weekly non-taxable payments of $920 starting in May 2024. He has now been approved for monthly non-taxable long-term disability benefits of $4,000 effective August 2024. [15] For 2024, G.B.R. will have employment earnings of $45,754 and non-taxable disability benefits of approximately $32,000. Therefore, it appears G.B.R.'s 2024 income will be approximately $8,000 less than the $85,000 imputed to him in the Final Order. [16] G.B.R. submits that his average income for 2021 to 2023 has been $81,237, so he has been paying more support than is required by the Guidelines. In 2023, his income was $114,379 but he concedes that he did not pay increased child support based on his income being more than $85,000. [17] G.B.R. is also concerned that D.R. collects government benefits for the child and he submits the s. 7 expenses are being paid through those benefits. Counsel for D.R. clarified that this is actually Child Tax Benefit. However, s. 7(4) of the Guidelines provides that for determining the amount of a s. 7 expense, the court shall not take into account "any universal child care benefit". [18] In my view, taking the evidence, submissions and legal principles into consideration, there is no basis to vary the Final Order as requested by G.B.R. He has not established a material change in circumstances that is significant. I find that his income has been variable and this year it will not be significantly less than $85,000. [19] While there is uncertainty about timing and whether he will be able to perform all of his job duties, his plan is to return to work once he is recovered. That is consistent with the letter from his disability insurer mentioning an 8-month goal to return to work. Therefore, G.B.R. has not shown that the change in circumstances is more than a temporary change of circumstances. [20] In respect of G.B.R.'s request to cancel child support arrears, s. 174 of the FLA provides authority to do so if G.B.R. satisfies the court that it would be grossly unfair not to reduce or cancel arrears. To obtain this relief, the onus on G.B.R. is heavy and the standard of gross unfairness sets a high bar: Kular v. Kular, 2018 BCSC 1715 at paras. 19-21. Since being off work due to his accident, G.B.R. has fallen behind in child support. He is concerned that he cannot afford to keep up with child support and pay his rent on his reduced income. [21] After considering the evidence as a whole, G.B.R. has failed to establish that it would be grossly unfair not to cancel the arrears of child support, especially as he hopes to resume employment. There is no evidence to establish that G.B.R. lacks the means to pay the arrears now or in the future. [22] I deny G.B.R.'s request to vary the Final Order respecting child support or s. 7 expenses and to cancel arrears. Except for the requests in para. 6 and 7 of part 1, which I will deal with later in these reasons, all of the relief sought in paras. 1-5 of G.B.R.'s application is denied. The Claimant's Application [23] Regarding D.R.'s request to vary the Final Order to change the parenting provisions, she alleges the accident and the risk to the child's safety that G.B.R. poses, constitute material changes in circumstances. [24] The Supreme Court of Canada's decision in Gordon v. Goertz, [1996] 2 S.C.R. 27, 1996 CanLII 191 (SCC) [Gordon], is the leading case regarding varying an order for parenting time. In Gordon, the court outlines a two-step inquiry. First, the party seeking the variation must establish that a material change in the condition, means, needs, or other circumstances materially affecting the child has occurred. If such a change is established, the second step involves a fresh review considering only the best interests of the child. [25] D.R. also relies on s. 62 of the FLA as grounds for her denial of parenting time because she reasonably believes the child will suffer family violence or that G.B.R. will be impaired by alcohol or drugs during his parenting time. There was no evidence in the record demonstrating that since the Final Order, G.B.R. was intoxicated during his parenting time. There is also no evidence to demonstrate that the parties have been unable to exercise their joint parental responsibilities in consultation with each other. [26] G.B.R. denies that he poses any kind of risk for the child, including that he has been impaired by drugs or alcohol during his parenting time. G.B.R. submits that prior to the accident, he had been drinking alcohol. He was not exercising parenting time during the weekend of his accident. As he told the court, G.B.R. has surmised that he was sitting on the railing and he somehow lost his balance immediately before the fall. [27] At the hearing, G.B.R. provided a redacted letter from the Ministry of Children and Family Development ("MCFD") dated July 17, 2024, stating that the assessment of whether the child needed protection due to concerns around substance use and mental health was completed. The letter states the child protection concern has been sufficiently addressed and the file is now closed. D.R. has spoken with the MCFD but she does not know the details of the assessment. [28] D.R.'s concerns about G.B.R. persist. She wishes to obtain information from the police concerning their investigation into his accident. She is suspicious that G.B.R. may have been pushed off the balcony; however, as mentioned, G.B.R. submits he was alone when he fell. [29] D.R. also wants full records from the hospital, the disability insurer, and the MCFD. D.R. says that until she satisfies herself for the reasons for G.B.R.'s accident, she is concerned that the child is in danger if he has unsupervised parenting time. [30] There are some aspects of D.R.'s evidence concerning the grounds for varying the parenting time and denial of parenting time that I find concerning. For example, D.R. states in her affidavit that the police came to her home late on the night of the accident to confirm that the child was safe and with D.R. D.R. says the police told her "G.B.R. had fallen off his 3rd floor balcony" and "they did not know the circumstances that lead to the respondent having fallen from the balcony". D.R. describes that she brought the child to the hospital to see G.B.R. What is concerning is that D.R. says the child now expresses fear to stay with her father "as he might jump off the balcony with her". [31] D.R. does not say who told the child that G.B.R. "jumped off" his balcony. According to D.R., the police told her that they did not know the circumstances. However, she expresses suspicions that someone pushed him or that he was trying to commit suicide. As mentioned, G.B.R. said the fall was accidental and afterwards, he was hospitalized and unable to walk. [32] I am unable to determine who told the child that G.B.R. had jumped off his balcony. No matter who provided this deeply disturbing information, or misinformation to the child, doing so was contrary to the best interest of the child because it undermines her emotional well-being and the parent-child bond. This is made obvious by the fear that the child now apparently expresses to D.R. [33] As for D.R.'s request for extensive records related to the accident, I deny that request. I find there is absolutely no evidence to demonstrate that while exercising his parenting time, G.B.R. has been using drugs, alcohol or otherwise engaging in unsafe behaviour that puts the child at risk. While the accident was obviously a serious event that caused G.B.R. significant injuries, there is nothing in the record before me to demonstrate that G.B.R. poses a safety risk to the child if he were to have his usual parenting time. [34] Put another way, neither the accident nor D.R.'s suspicions, amount to a material change in circumstances sufficient to justify varying the Final Order to impose supervised parenting time on G.B.R., even on an interim basis. D.R.'s suspicions also do not provide grounds to justify what is in effect, a fishing expedition into the events surrounding the accident. Further, as G.B.R.'s request to vary child support on account of his current disability status has been denied, the relevance of the medical and disability records sought by D.R. are even more negligible in the circumstances. [35] However, as G.B.R. admits that prior to the accident he was drinking alcohol, and to create conditions to assist with managing fear that has developed, I find it appropriate to order that G.B.R. shall not consume any alcohol, marijuana, or controlled substances within the meaning of s. 2 of the Controlled Drugs and Substances Act, except as prescribed by a licensed physician, during contact or parenting time with the child and for 12 hours prior to having contact or parenting time. This requirement expires in six months from the date of my order subject to further court order or the agreement of the parties. [36] The claimant's request for the records in paras. 1-19 of part 1 of her application is denied. For clarity, I order that the parenting time provided for in the Final Order shall resume forthwith. [37] As for G.B.R.'s request for make-up parenting time, I dismiss that request because, in light of all of the circumstances, I do not find make-up parenting time to be in the child's best interest. I further dismiss the request for make-up parenting time because G.B.R. is presently asking the court to eliminate the additional parenting time to which he is entitled during D.R.'s one-week of personal time. I deny G.B.R.'s request to eliminate D.R.'s one-week of personal time and although G.B.R. may find it inconvenient to transport the child to and from school during that week, he has not shown a material change in circumstances that would justify varying the Final Order to remove this week. If G.B.R. is reluctant to take up all of the parenting time to which he may be entitled under the Final Order, I fail to see how make-up parenting time is necessary or in the best interests of the child. [38] Finally, G.B.R. seeks an order directing that his parenting time under the Final Order resume without delay. As I have dismissed D.R.'s request to require his parenting time to be supervised because there is insufficient evidence to show he poses a risk to the child during his parenting time, I grant the order that G.B.R.'s parenting time recommence forthwith, subject to the no-intoxicants condition that I described earlier. Costs [39] As the majority of each party's requests for relief have been denied for the reasons I explained, I find that neither party has been substantially successful. Therefore, I order the parties to bear their own costs of the applications. "E. McDonald J."