L.E.T. v. R.M.L.

2024 BCSC 2263 L.E.T. v. R.M.L.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.E.T. v. R.M.L., 2024 BCSC 2263 Date: 20241031 Docket: E230397 Registry: Vancouver Between: L.E.T. Claimant And: R.M.L. Respondent Before: The Honourable Justice J. Hughes Oral Reasons for Judgment In Chambers Counsel for the Claimant: D.H. Exel, appearing as agent for M.E. Guy The Respondent, appearing in person: R.M.L. Place and Date of Hearing: Vancouver, B.C. October 29, 2024 Place and Date of Judgment: Vancouver, B.C. October 31, 2024 [1] THE COURT: In this family law proceeding, the claimant seeks an order that the respondent be found in contempt for his failure to comply with three orders of this Court requiring him to make financial disclosure: 1) Paragraph 2(b) of the order of Associate Judge Robertson made March 13, 2024 (the "Robertson Order"), requiring him to provide his notices of assessment for the past three years; 2) Paragraph 2(d) of the Robertson Order, which requires him to provide copies of his work calendar for the past three years; and 3) Paragraph 5 of the order of Associate Judge Bilawich made July 9, 2024 (the "Bilawich Order"), which required him to produce all bank statement for the 2023 that had not been previously been produced. [2] The claimant adjourned the balance of the relief sought on this application--namely paras. 1(a) and (b), 2, 3, and 4 of the notice of application--and I order that

those paragraphs be adjourned generally. [3] The parties' relationship was of short duration. They started dating in October 2020 and separated in late December 2022. They have one child, N., who was born in August 2021. The claimant has been N.'s primary parent since separation. [4] The notice of family claim was filed on February 15, 2023. Since the outset of this litigation, the respondent has engaged in a pattern of failing to disclose documents and comply with court orders. For example, at a June 2023 judicial case conference, both parties were ordered to disclose and exchange financial information, including tax returns, bank and credit card statements. The respondent did not comply. [5] Multiple court applications ensued, including a November 2023 order of Associate Judge Muir (the "Muir Order"), which imposed a $1,000 fine and assessed a $1,000 of costs against him. The respondent finally produced his F8 in December 2023. He also filed an application seeking to set aside the Muir Order, but there is no indication that that application has ever been brought on for hearing. [6] In February 2024, the claimant sought further disclosure from the respondent, including particulars of the respondent's banking institutions and accounts and debts. An application came on for hearing before Associate Judge Robertson on March 13, 2024. The respondent was represented by counsel at

the time, and the orders in issue were made by consent. [7] Paragraph 2 of the Robertson Order is an issue on this application, and provides as follows: 2. BY CONSENT, pursuant to Rules 9-1(7) and (8) of the Supreme Court Family Rules, the Respondent will serve the following documents on the Claimant: a. A financial statement of the Respondent's self-employment business for the last three years, including particularized expenses as claimed on the Respondent's T1 Tax Returns, to be served within 60 days of the date of this order; b. The Respondent's notices of assessment for the last three years, to be served within 30 days of the date of this order; c. Copies of the Respondent's monthly accounting notebook for the last three years with client names anonymized, to be served within 30 days of the date of this order; and d. A copy of the Respondent's work calendar for the last three years, confirming the hours worked each week, with client names anonymized, to be served within 30 days of the date of this order. [8] The respondent failed to comply with the Robertson Order. In May 2024, the claimant filed an application seeking enforcement of the Robertson Order and of the earlier Muir Order. The claimant's May 2024 application was heard in July 2024 by Associate Judge Bilawich. The respondent represented himself on this application. Among other orders, the respondent was ordered

to: a) produce all bank statements not previously produced to the claimant within 30 days; and b) pay child support in the amount of $507 a month retroactive to March 2024, plus $147 per month of s. 7 expenses (which equated to approximately 20% of N.'s daycare expenses). [9] The respondent produced his 2022 notice of assessment and made partial disclosure of banking documents, but did not produce the balance of the documents required under the Robertson or Bilawich Orders. [10] The claimant filed a further application in August 2024 seeking to enforce the Bilawich Order, the Robertson Order, and the Muir Order. [11] This application for contempt was filed on October 15, 2024, and came on for hearing before me on October 29, 2024. [12] On the eve of hearing of this application, the respondent produced the balance of the banking documents required under para. 5 of the Bilawich Order and the work calendars required under para. 2(d) of the Robertson Order. The claimant accepts that the respondent's contempt of those orders has thus been purged, but says that I should nonetheless make a finding of contempt against the respondent for his prior contempt of those orders. [13] The respondent admits that he has not produced all of the notices of assessment required under para. 2(b) of the Robertson Order. The respondent indicated that this is because his 2022 notice of assessment--which

he did produce--was incorrect. So he resubmitted it and is now undergoing an audit. [14] The extent of the respondent's evidence regarding non‑production of his notices of assessment is contained in one paragraph of his responding affidavit, where he says: I have attempting [sic] to produce my Notices Of Assessment. I am undergoing an audit of the assessment in question and will produce the documents when they are released by the CRA. [15] The respondent provided no documentation, from Canada Revenue Agency ("CRA") or otherwise, confirming that he is, in fact, being audited or that this prevents him from providing his notices of assessment. Analysis [16] Turning now to the analysis on this application. The principles governing contempt proceedings are uncontroversial: a) Contempt proceedings are quasi-criminal in nature and accordingly, the rules of strictissimi juris apply: Peel Financial Holdings Ltd. v. Western Delta Lands Partnership, 2003 BCCA 551 at para. 18; L.M. v. S.M., 2022 BCSC 477 at para. 178; b) The applicant bears the onus of proving the elements of contempt on the criminal standard, namely beyond a reasonable doubt: Bassett v. Magee, 2015 BCCA 422 at para. 33; and L.M. at para. 178; c) If the order said to be breached is ambiguous, the alleged contemnor is entitled to the most favourable construction of the order: Peel Financial Holdings Ltd. at para. 18; d) A

finding of contempt should not be made in the absence of reliable and meticulous evidence establishing each and every aspect of the alleged contempt: L.M. at para. 180. [17] The comments of the Court of Appeal in Larkin v. Glase, 2009 BCCA 321, at para. 7 are also apposite in the present circumstances: [7] A court order must be obeyed until and unless it is reversed. Refusal to obey court orders strikes at the heart of the rule of law, at the core of the organization of our society. If court orders can be disregarded with impunity, no one will be safe. Our free society cannot be sustained if citizens can decide individually what laws to obey and what laws to disregard. Madam Justice McLachlin, as she then was, stated in United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901 at 931: Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court. [18] In a case of civil contempt, the general factors the court is to consider

were outlined by the Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17, at paras. 33 to 35: a) The order alleged to have been breached must state clearly and unequivocally what should and should not have been done; b) The party alleges to have breached the order must have had actual knowledge of it. An alleged contemnor may attract liability on the basis of willful blindness, or the court may infer knowledge in the circumstances; and c) The party allegedly in breach of the court order must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels. In this respect, see also Falkener v. Falkener, 2020 BCSC 538 at para. 33. [19] In the family law context, failure to produce documents and information as required by a court order can be sufficient for a finding of contempt: Buckland v. Buckland, 2019 BCSC 1023, at para. 11, citing Neufeld v. Nesbitt, 2012 BCSC 2059. [20] Considering the record before me and applying the principles as set out above, I am satisfied beyond a reasonable doubt that: a) the Robertson and Bilawich Orders clearly and unequivocally state the documents that the respondent was required to produce. Indeed, he does not suggest otherwise, and his partial and last‑minute compliance with the terms in issue further establishes this to be the case; b) the respondent had notice of the Robertson Order.

He does not say otherwise, and regardless, notice can be inferred based on his partial compliance with that order. I find the same applies to the Bilawich Order, particularly as the respondent was present in court when the order was made, according to the order itself; c) the respondent has not complied with para. 2(b) of the Robertson Order, which indeed the respondent admits that he has not produced all of the notices of assessment required; and d) the respondent's failure to comply is willful, deliberate, and not accidental. In the absence of any corroborative documentation from the CRA, I do not accept his bare assertion that he cannot produce his notices of assessment because his 2022 tax return is being audited. [21] I find the respondent is in contempt of court on account of his failure to comply with para. 2(b) of the Robertson Order. [22] I am also satisfied beyond a reasonable doubt that the respondent was in contempt of para. 2(d) of the Robertson Order and para. 5 of the Bilawich Order, until he purged his contempt on the eve of this application coming on for hearing by producing the missing bank statements and work calendars. [23] In so concluding, I reject the respondent's submission that a finding of contempt should not be made against him, despite his admitted non‑compliance, because the claimant has also failed to comply with court orders from time to time and

therefore does not have clean hands. This submission is not compelling and does not provide any basis to negate the respondent's own contemptuous conduct. [24] No application seeking a contempt finding against the claimant is presently before the Court, and I make no findings in that respect, other than to say that the circumstances the respondent says demonstrate the claimant's non‑compliance with court orders appear at first instance to be somewhat contrived and lacking in merit. In this respect, I am referring to his allegation that the claimant breached a court order requiring her support person to remain 10 metres away from him at parenting time exchanges when he was the one who approached the claimant and her support person. [25] I recognize that as the Court of Appeal emphasized in Hokhold v. Gerbrandt, 2016 BCCA 6, "contempt of court is a heavy, blunt tool", and that a "measured response to non‑compliance with court orders is the standard; a contempt order should be a last resort to obtaining compliance": at paras. 31 to 32. [26] However, lack of financial disclosure in family matters has been described as a cancer: Buckland at para.

27. This description is apposite on the record before me, which satisfies me that the respondent has engaged in a pattern of consistent and deliberate failure to comply with court orders that cannot be permitted to continue. The history of this litigation shows that this contempt application has indeed been brought as a last resort to obtaining compliance. The respondent's conduct in failing to comply, or only doing so after the claimant has brought further proceedings to compel compliance with court orders--as was the case with respect to production of bank account information and work calendars that were in issue on this application--is an affront to the dignity of our court processes and cannot be without consequence. [27] Moreover, and as I noted above, prior efforts to deter such conduct have proven ineffective. On July 18, 2023, the respondent was ordered to produce a list of documents and his F8 financial statement, including the last three years of income tax returns and most recent notice of assessment within 30 days. He did not do so. On November 7, 2023, the respondent was ordered to pay a $1,000 fine under s. 213 of the Family Law Act, S.B.C. 2011, c. 25 and costs of $1,000, both within 30 days. These amounts remain unpaid. The claimant sought contempt findings arising from the respondent's failure to pay this fine and costs, but adjourned that aspect of this

application generally. Counsel advised the Court that this was because he determined it was not worth proceeding based on banking information. [28] The respondent's conduct also appears to extend beyond failing to produce documents or pay fines and costs orders. The respondent admits that he has not been complying with his obligations to pay child support under the Bilawich Order. [29] The respondent has already twice been cautioned by this Court regarding his obligation to pay child support. [30] First, on February 14, 2024, in the context of cross‑applications regarding parenting time and payment of fines and costs, among other issues, Associate Judge Robertson said this at para. 23: As a final comment, I note that since separation, the respondent has also not paid any child support. When questioned during submissions about why he has failed to do so, the respondent's answers were unsatisfactory. While he stated that it was not intentional, but rather the result of having to respond to too many other applications, and his hope is that at some point he would transition to equal parenting, it is important that he recognize that the right to child support is the right of the Child, and that the obligation to pay child support is not dependent on whether or not a parent feels that he should have more parenting. I hope a further application will not be necessary on that

issue. [31] Second, on August 29, 2024, in the context of cross‑applications in which the claimant sought production of documents and the respondent sought expanded parenting time, Associate Judge Harper said this at para. 35: I want to say another word about child support. It is critical that Mr. L. pay child support. If he thinks that he will just wait until there is an order for equal parenting time, and Ms. T. will then pay him child support on an offset basis, thus eliminating his arrears, his thinking is flawed. The support is payable on a monthly basis, and there are arrears and costs and fines that must also be paid. [32] Despite these cautions, the respondent's failure to comply with his child support obligations continues. It is unclear why a finding of contempt is not being sought in this respect. The respondent's explanation for his non‑compliance--that he was unsure whether he still needed to pay child support now given that the B.C. Family Maintenance Agency (BCFMA) is involved--is wholly unsatisfactory. BCFMA's involvement does not in any way negate the respondent's obligation to comply with the order and pay child support. [33] At the hearing of this application, the respondent was again cautioned by the Court in the strongest of terms that court orders must be complied with unless or until they are varied or reversed. I again reiterate that caution and note

that serious penalties can be imposed for contempt, up to and including incarceration. [34] Paragraphs 2 to 4 of the notice of application, which sought penalties to be imposed if a finding of contempt were made, were adjourned generally by the claimant. The claimant is at liberty to seek further hearing before me to speak to the appropriate penalty to be imposed in light of my findings of contempt. Costs [35] I turn now to costs. The claimant seeks costs of this application payable as special costs. [36] Special costs can and often are ordered in respect of contempt applications on the basis that a person who obtains an order from the court is entitled to have it obeyed without further expense to him or herself: Buckland at para. 35, citing Everywoman's Health Centre Society v. Bridges, 54 B.C.L.R. (2d) 294, 1991 CanLII 5715 (C.A.). [37] The claimant has been put to the expense of bringing this contempt application to compel the respondent's compliance with orders of this Court. Having gone to the cost and expense of obtaining a court order, an individual should not have the additional cost and expense of trying to enforce it: Buckland at para. 34; Falkener at para. 46. [38] I therefore find that the claimant is entitled to her costs of this application as special costs, payable forthwith upon assessment by the registrar, in any event of the cause. "Hughes J."