R.S.D. v. K.D.

2019 BCSC 119 R.S.D. v. K.D. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R.S.D. v. K.D., 2019 BCSC 119 Date: 20190221 Docket: E171752 Registry: Vancouver Between: R.S.D. Claimant And K.D. Respondent Before: The Honourable Madam Justice Sharma Reasons for Judgment Re: Retroactive Child Support and Costs Counsel for Claimant: S.S. Parhar Counsel for Respondent: R.G. Sherman Place and Date of Trial: Vancouver, B.C. June 18-22, 25-28, 2018 August 9-10, 13-16, 30, 2018 Claimant's Written Submissions Received: November 7, 2018 Respondent's Written Submissions Received: September 17, 2018 Place and Date of Judgment: Vancouver, B.C. February 21, 2019 [1] After delivering judgment on parenting issues in this action on August 31, 2018, I invited the parties to provide written submissions on the outstanding issues of retroactive child support and costs. This judgment addresses those two issues. [2] The trial commenced on June 18, 2018. After 16 non-consecutive days, it ended on August 30, 2018. Oral reasons for judgment on the parenting issues were delivered the next day. [3] By way of background, the parties separated when the respondent left the family home with the children on May 28, 2017. She enrolled the children in a new school closer to her residence without consulting or notifying the claimant. She also refused to grant him parenting time despite his many requests. [4] The notice of family claim was filed on July 7, 2017. The response and counterclaim were filed on August 9, 2017. The respondent sought an order for child support in the counterclaim. [5] In July 2017, the claimant (via counsel) sought from the respondent an agreement that the children spend half their time with him. The respondent refused, and in an email suggested that if the claimant came around her residence she would call the RCMP. Accordingly, the claimant was forced to bring an application seeking joint parenting and custody of the two children on an equal basis. On July 26, 2017, a master ordered a parenting schedule, which the parties agree was a shared parenting schedule. [6] At trial, the respondent sought retroactive child support from the date of separation (May 28, 2017) until March 29, 2018. The parties agree that no child support is payable by either party from March 29, 2018 until the start of trial because their respective parenting time met the standard for shared custody under s. 9 of the Child Support Guidelines ("CSG") and their incomes were relatively equal. [7] They also agree that starting in September 2018 and going forward, the respondent will pay to the claimant $795 per month as child support based on their agreement that the respondent's annual income is $51,000. [8] The respondent stopped working in June 2017 and did not return to employment until March 2018. She also received employment insurance benefits for about 15 weeks in 2017. RETROACTIVE CHILD SUPPORT [9] The respondent's position is that child support became payable upon separation on May 28, 2017, regardless of what led to the separation. She submits the claimant had a positive duty to pay support even if no order was entered: Hartshorne v. Hartshorne, 2010 BCCA 327 at para. 73. She submits there were no countervailing circumstances to obviate that responsibility. [10] The claimant submits he should not have to pay any child support for the two months after the respondent unilaterally left the matrimonial home, and refused him any parenting time. [11] Counsel did not refer me to any case where the entitlement or quantum of child support depended upon the nature of the marriage breakdown or the parents' behaviour leading up to and at separation. While the claimant was clearly frustrated at the notion of paying child support during a time when he was being denied any parenting time, he presented no case which suggested no support would be payable in those circumstances. Thus, for the two months the children lived exclusively with the respondent, he had a prima facie obligation to pay child support. [12] I also note that despite his position that the respondent made a unilateral decision to leave the matrimonial home, her testimony was that she was asked to leave. I do not resolve that evidentiary conflict in the trial decision, and I do not purport to do so now. In my view the subject of that dispute is irrelevant since both parties agree that they did separate on May 28, 2017. [13] As noted above, the respondent did not work from June 2017 until March 2018. She submits based on a total income of $67,375 in 2017, the claimant is liable for $6,132 in child support for six months starting June 2017 ($1,022 per month). The CSG was updated and the table revised effective December 2017. The respondent seeks $3,144 in retroactive child support for December 2017 to the end of February 2018 ($1,048 per month). Those amounts total $9,276. [14] The claimant accepts those calculations are accurate based on the table amounts in force at the time. However, he submits income should be imputed to the respondent starting in July 2017. His position is that the respondent was fully capable of earning income of between $51,000 and $55,859 in 2017 based on her tax returns. He alleges she was intentionally unemployed. Based on her imputed income, he submits the parties' incomes were roughly equivalent and therefore the claimant should not receive retroactive child support. IMPUTING INCOME [15] The respondent did not work from July 2017 to February 2018. She relies on her and Dr. Weckworth's testimony to support her position that income should not be imputed to her for that entire period. Considering all of the evidence on this topic, I find on a balance of probabilities that the respondent was capable of earning income, but was intentionally unemployed for eight months. On that basis, I impute income to her. [16] I reviewed the trial testimony relevant to why she stopped working. In her direct testimony, the respondent confirmed that she took an unpaid leave of absence from her job starting July 2017. When asked if she received a disability benefit, she replied that she took an "unpaid leave of absence" and that she received about 15 weeks of employment insurance. She testified that her reason for taking the leave was relating to her health, stress and anxiety. During cross-examination, she confirmed she has been at times an anxious person and that she "has anxiety". It is important to note that statement was not a description of her then current mental state. It reflects the respondent's perception that she suffers from a condition. That is bolstered by her specific answer in re-direct when asked if was presently suffering from anxiety that disabled her ability to work or parent in any way. She replied no. [17] It would be surprising if she did not experience stress in the aftermath of her marriage ending, and uprooting the children. The respondent also relies on Dr. Weckworth's testimony, and the notes the doctor wrote to the respondent's employer. However, I am not persuaded Dr. Weckworth's testimony, viewed in context and in its entirety, supports the respondent's position. [18] The issue is not whether the respondent experienced stress and anxiety that were troubling; the issue is whether those conditions debilitated her to the extent that she could not earn income to support her children. [19] Dr. Weckworth has been the respondent's general physician since the respondent was 11 months old; she continued to be the family physician for the respondent and the parties' two daughters. Her direct testimony focussed on the care and treatment she provided to the children, particularly in response to the respondent's reporting a concern that the children had been sexually abused. Dr. Weckworth also answered questions about her observations of the respondent as a parent. [20] When respondent's counsel asked Dr. Weckworth to testify about her training to screen patients for mental disorders, claimant's counsel objected on the basis that the respondent was attempting to elicit opinion evidence from Dr. Weckworth either directly, or to support an inference I would be asked to draw about the respondent's mental state. Although respondent's counsel assured me he was not attempting to elicit expert opinion, claimant's counsel raised other objections to questions asked. [21] In part, claimant's counsel pointed out that he would be taken by surprise by the doctor's testimony about the respondent's mental state because no medical records (or other records) on that topic had been disclosed. Apparently, he only received clinical records regarding the doctor's examination of the children. Thus, the objection was based both on the inadmissibility of opinion evidence from a lay witness and non-disclosure of portions of the doctor's evidence. [22] After ruling on counsel's submissions, the following evidence (in addition to what is mentioned above) was adduced from Dr. Weckworth: · During examination in chief, Dr. Weckworth was asked to explain why she wrote the notes to the respondent's employer. Dr. Weckworth testified that the respondent went into a state of anxiety where she found it difficult to concentrate upon her marriage break-down, and she was not sleeping well; the respondent "just couldn't work" so Dr. Weckworth "supported her with that by giving her these notes". · During direct testimony, she was also asked if she had ever written a letter of that kind before for the respondent, and Dr. Weckworth answered "no". · During cross-examination, claimant's counsel asked Dr. Weckworth to confirm that when the doctor spoke about the letters to the respondent's employer about taking time off work relating to "anxiety, stress and anxiousness" they were based on the respondent's self reporting of what she had felt and said she was going through. Dr. Weckworth responded: "yes, she came to see me many times and we had consultation[s] and I determine -- I supported her being off work because I, uh, she was too stressed". · Claimant's counsel continued by clarifying that the point of his question was to confirm that the respondent's self-reporting was subjective and there was no objective evidence. Dr. Weckworth responded: "And we do make observations. We make [note of] subjective and then we do make observation[s]. We can see whether people are trembling, we can see whether people are breaking down and crying. We can see whether people appear to be, um, [in what] condition they appear to be". · Lastly, claimant's counsel asked whether in the past the doctor had prescribed anti-depressant medication to the respondent, to which the doctor replied she had prescribed anti-anxiety medication. [23] There is a significant gap in Dr. Weckworth's evidence as it relates to the respondent's ability to work. She did not testify that she observed the "objective" behaviours of stress in the respondent. She only stated that as a family physician she had seen patients exhibit objective signs of stress and anxiety. [24] More importantly, there are two reasons why Dr. Weckworth's evidence about the notes she wrote to the respondent's employer did not support the respondent's contention that she was unable to work. First, Dr. Weckworth specifically said she wrote the notes to the respondent's employer because of the respondent's stress and anxiety from the marital breakdown. That differs from the respondent's explanation for why she stopped working. The respondent testified that receipt of the notice of family claim made her severely stressed and anxious. Just days before she stopped working (but after separation), she received confirmation that she had been successful at procuring a secondment to a different government agency. I find the respondent's testimony contradicts the doctor's evidence that the marital breakdown disabled the respondent. [25] Second, Dr. Weckworth testified she wrote the notes because she "supported" the respondent's desire not to work. The doctor was careful in her choice of words, knowing that she could not express an opinion. I am not being critical of the doctor as it is commonly known that family physicians do view their role to be an advocate for their patient's health care. However, that is not necessarily the same as providing a medical justification for not working. [26] On the facts before me, I find other aspects of Dr. Weckworth's evidence supports the claimant's position more than the respondent's. The doctor clarified during cross-examination that she prescribed anti-anxiety medication to the respondent on one occasion other than in 2017 (during the breakdown of the respondent's first marriage). This suggests the respondent might have an underlying condition or predisposition to developing anxiety as a health issue during times of high stress, although it had never before 2017 disabled her from working. Dr. Weckworth stated she had not previously written a note excusing the respondent from work. This accords with the respondent's testimony that she "has anxiety". [27] I also find other evidence that is more consistent with the claimant's position. As noted above, the respondent did not receive any type of disability benefit, but was on an unpaid leave of absence. Notably, she did not describe it as a medical leave of absence. For a witness who I found strives for precision in her choice of words, (see para. 155 of trial decision, 2018 BCSC 2416) that description is significant, even if not determinative. [28] The claimant points to the numerous recreational activities the respondent undertook with the children to contest her claim that she was incapable of working because of her stress levels. Those activities included serving as vice president of the PAC committee at the children's new school, frequent visits with the children to parks (up to 5 days a week), beaches, campsites, heritage sites across the lower mainland and other educational or celebratory events. The range and frequency of those activities is not consistent with a person so overcome with anxiety and stress that she cannot earn income. [29] For all those reasons, I am satisfied that the respondent was capable of working and chose not to, and therefore I impute income to her. [30] The claimant submitted that the respondent's income for 2017 should be imputed to be between $51,000 and $55,859. My understanding is the parties have agreed that from September 2018 going forward, the respondent's income is $51,000. For the sake of finality and clarity, and because it is supported in the evidence, I exercise my discretion and impute $51,000 income to the respondent for 2017. SHARED PARENTING [31] Section 9 of the CSG allows for the parents' income to be set off against one another in situations of shared parenting. There is no single approach for how to calculate the amount of time each parent has with the child for that purpose: Maultsaid v. Blair, 2009 BCCA 102 at para. 25. The court should avoid turning into a "calculator and the hearing [turning] into an accounting exercise", but instead should assess the "essence of the situation to determine whether there is truly shared custody or not": Berry v. Hart, 2003 BCCA 659 at para. 4. [32] In Contino v. Leonelli-Contino, 2005 SCC 63, the Supreme Court of Canada considered the court's discretion when awarding support under the factors set out in s. 9 of the CSG at para. 51: The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another [33] There can be no dispute that for the two months the children lived exclusively with the respondent, the claimant was obliged to pay child support. The court acknowledges the frustration experienced by a parent, desperate to see his children, who has to pay child support in the face of a parent who unreasonably denies parenting time. Nevertheless, child support is for the benefit of the child and the child should not to be deprived of it based on the behaviour of one parent. [34] Thus, the claimant is wholly responsible for child support for June and July 2017. Accordingly, the claimant owes the respondent $2,044 in retroactive child support for June and July 2017. [35] For the remainder of time in dispute (August 2017 to February 2018), I am satisfied based on the case law and the evidence at trial, that the claimant did exercise parenting at least 40% of the time. Therefore, s. 9 of the CSG applies, and I see no reason to depart from the set-off dictated by the CSG table amounts. [36] Based on the claimant's income of $67,374, and the respondent's imputed income $51,000 and applying the set-off, the claimant owes the respondent $249 per month for August to November 2017 ($996), and $253 per month for December 2017 to February 2018 ($759). When added to the $2,044 for June and July 2017, the total amount of retroactive child support payable by the claimant to the respondent is $3,799. COSTS [37] In S.A.M. v. L.A.M., 2017 BCSC 2348 at para. 7, Justice Bernard summarized the key principles for the court in determining costs in a family law matter as follows: (a) The costs of a family law case must be awarded to the successful party, unless the court otherwise orders (Rule 16-1(7)) of the Supreme Court Family Rules [Rules]; (b) The "successful party" is the party who has achieved substantial success at the trial/hearing (Fotheringham v. Fotheringham, 2001 BCSC 1321; Marquez v. Zapiola, 2014 BCCA 35); (c) The court's discretion to "order otherwise" must be exercised judicially, bearing in mind a non-exhaustive list of factors that includes hardship, earning capacity, the purpose of the particular award, the conduct of the parties in relation to the litigation, and the importance of not upsetting the balance achieved by the court in relation to the substantive issues (Gold v. Gold (1993), 106 D.L.R. (4th) 452 (B.C.C.A.)); (d) The party who asks the court to "order otherwise" bears the onus to persuade the court why it should do so (S.D.W. v. C.W.W., 2006 BCSC 162); (e) Financial hardship, without more, is not a sufficient basis for the court to exercise its discretion to depart from the usual rule that successful parties are entitled to their costs (S.D.W. v. C.W.W., supra.; K.D.P. v. A.R.K aka R.K., 2012 BCSC 1025; Brown v. Kucher, 2016 BCSC 194); [38] As discussed in Fotheringham v. Fotheringham, 2001 BCSC 1321, substantial success is assessed "on the event", which refers to success in the litigation as a whole, rather than a piecemeal dissection of victory or loss on each and every single issue and sub-issue. In Marquez v. Zapiola, 2014 BCCA 35, success was understood liberally and said to be a measure in broad terms. [39] The claimant submits he is entitled to his costs for this litigation. The respondent made allegations of sexual abuse first in the Provincial Court (which were withdrawn), and again in the Supreme Court. These allegations continued in her interactions with Dr. Posthuma. The allegations of abuse were not substantiated by any agency or this Court. The claimant's position is that the falsity of the respondent's allegations support awarding costs in his favour. [40] The claimant also submits that the final orders regarding parenting reflect essentially what Dr. Posthuma recommended in his report. His position is that the respondent's unreasonable denial of any parenting time forced him to start the litigation and bring the application in July 2017, in which he succeeded in obtaining shared parenting. He further submits that the issue that demanded the most time and the majority of evidence was with whom the children would reside, and where they should go to school. He submits he succeeded on those main issues. [41] The respondent submits the topic commanding the most attention and trial time was whether joint parenting was possible. She submits the claimant did not succeed because he sought sole guardianship and sole ability to exercise all parenting responsibilities; he was granted sole responsibility only with respect to decisions under ss. 41(b) and (c). She emphasizes that with respect to most other parenting responsibilities, the parties are to seek agreement, and only if that fails, does the claimant have the final say. In the end, she says the claimant only enjoyed complete success on two issues: where the children live and where they go to school. [42] In the alterative, she submits that the court should exercise its discretion and consider issues of hardship, earning capacity and the purpose of the costs award, and not impose full costs on her. [43] The claimant summarizes his position in his written submissions as follows: the three major and central issues of this trial were: Where will the children reside/parenting time/who decides? - there was clear success on the part of the Claimant; Where will the Children attend school/who decides? - there was clear success on the part of the Claimant; Who decides other important matters in the best interest of the Children? - there was clear success on the part of the Claimant - and he was awarded sole custody. The Order from trial states that the parties will try and reach an agreement on all important issues, however, if they cannot agree, the Claimant shall make the decision. [44] I find that to be a fair description of the trial. By any measure, the claimant was successful at trial. While the order granted directs the parties to seek agreement on the majority of parenting responsibilities, ultimate responsibility is assigned to the claimant. The purpose of directing the parties to seek agreement is to encourage them to engage one another in a reasonable manner about parenting decisions in order to reconcile them as parents. However, the claimant has ultimate decision making authority on almost all responsibilities. [45] I also agree with the claimant's submissions that he was forced to seek interim parenting; the respondent refused him any parenting time despite her not alleging he was an unsuitable parent. There is little doubt that had she been reasonable and acted in the best interests of the children in June 2017, and accordingly granted the claimant parenting time, this litigation would not have occupied so much trial time. I also note that the most acrimonious aspect of this litigation, which occupied time, increased expense and significantly and dramatically increased the parties' stress was the respondent's unfounded accusations of sexual abuse. [46] The evidence does not support a conclusion that I should make any other order than in the claimant's favour for his substantial success based on any of the factors identified in S.A.M. v. L.A.M. Special Costs [47] The claimant seeks special costs. His position is that the following paragraphs from the trial decision on parenting are relevant: [8] There is no doubt that knowingly making false accusations of sexual abuse is reprehensible conduct. The issue before me is whether the respondent's concerns, even if misguided and ultimately unfounded, were nonetheless genuine and sincere. Among other things, that is relevant to the respondent's ability to act in the best interests of the children with regard to respecting the children's relationship with extended family, which is a factor in the Family Law Act, S.B.C. 2011, c. 25, s. 37. [34] The issue is whether these concerns [the grandfather's sexual abuse of the children] were raised by her strategically or honestly. [35] Although completely unfounded, it is possible that the respondent had a genuine, but ultimately misguided, concern about the nature of the "touching" between the grandfather and the children. It is also possible that the paternal family overreacted to her raising the concern and failed to respect the fact that people can reasonably and fairly have different conceptions of appropriate touching. [39] Another explanation, however, is put forward by Dr. Posthuma. He found that the respondent's exaggerated perceptions and response were consistent with her having some type of personality disorder. [40] A third possibility is the claimant's theory that the respondent knew the allegations were false, but wanted to gain an advantage in the litigation. [44] In my view, the truth probably lies somewhere in between. I find it most probable that she had genuine concerns about how the children were being handled at the beginning, to which she unfortunately gave more and increasingly unwarranted focus as the marriage deteriorated. It then resulted in what I do find to be an unreasonable exaggeration of the accusations in the context of this litigation. [45] Thus, I do find that she exhibited poor judgment and deplorable conduct in making accusations of sexual abuse based on her grossly exaggerated observations. She knew that no professional found any sign that the children had been abused. [51] Thus, I do agree that during the litigation, the respondent knowingly exaggerated what, in her mind, started out as a reasonable and legitimate concern. I do not find this conduct to be the deplorable as in a case where a parent completely fabricates allegations of sexual abuse, but I do find she unreasonably exaggerated her concerns. That tells me there is a serious concern about her perception of events and the manner in which she responds to her perceptions. [48] The respondent challenged the s. 211 report tendered at trial by Dr. Posthuma on a number of grounds. One was his view (which he insisted was not a diagnosis) that the respondent had a personality disorder. Among other things, the respondent submitted Dr. Posthuma's interpretation of the psychometric tests performed was unsupportable. On that issue, I found as follows: [130] Thus, despite all my cautions about Dr. Posthuma's interpretation and use of testing in support of his concerns, I have considered the totality of the evidence before me, and I find his observations and concerns about the respondent were consistent with that evidence. His report was in that sense predictive of the evidence. [49] Although I expressed grave and serious concerns about the manner in which the respondent maintained what I have found to be unfounded allegations of sexual abuse by the grandfather, and sexual impropriety involving the claimant's sister, ultimately I found Dr. Posthuma's observation that the respondent may have a personality disorder was consistent with the evidence before me. [50] I emphasize that perpetuating false or reckless allegations of sexual abuse against a parent or someone else living with the family is deplorable; doing so when there is absolutely no professional or medical support for the allegations is also reprehensible. In this case, but for Dr. Posthuma's observations and my conclusions that the respondent would most likely benefit from counselling, the case for special costs would be compelling. [51] However, I decline to order special costs. I am satisfied on a balance of probabilities that some aspect of the respondent's mental state contributed to her maintaining unfounded allegations. In those circumstances, it would be inappropriate to impose special costs against her. That is particularly true in light of the fact that her behaviour was taken into account in my conclusion that the claimant be awarded costs of the action. CONCLUSIONS [52] The claimant owes the respondent retroactive spousal support in the amount of $3,799. [53] I conclude the claimant has been substantially successful and is entitled to the costs of this litigation, but not special costs. Sharma J.