A.N.H. v. L.D.G.

2018 BCSC 2012 A.N.H. v. L.D.G. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.N.H. v. L.D.G., 2018 BCSC 2012 Date: 20181114 Docket: E45924 Registry: Vernon Between: A.N.H. Claimant And L.D.G. Respondent Corrected Judgment: The text of the judgment was corrected at paragraph 130 and in the Appendix on December 7, 2021. Before: The Honourable Mr. Justice Abrioux Reasons for Judgment The Claimant, appearing in person: A.N.H. Counsel for Respondent: C. Chisholm Counsel for FMEP: A. Accettura Place and Date of Hearing: Vancouver, B.C. September 25-28, 2018, October 1-3, 2018 Place and Date of Judgment: Vancouver, B.C. November 14, 2018 Table of Contents I. INTRODUCTION. 3 II: BACKGROUND. 5 The Litigation Generally. 5 The Variation Application. 6 III: A.N.H.'s APPLICATION TO VARY THE SUPPORT ORDERS. 10 Introduction. 10 The Legal Framework. 10 Statutory Framework. 10 Position of the Parties. 15 Discussion. 17 IV: THE REVIEW OF SPOUSAL SUPPORT AND OTHER SUPPORT ISSUES. 28 V: CANCELLATION OF ARREARS. 38 VI: THE MARCH 5, 2018 INTERIM ORDER. 40 VII: CONCLUSION AND COSTS; 43 I. INTRODUCTION [1] A.N.H. and L.D.G. have been involved in high conflict family proceedings since 2009. These reasons pertain to an application made by A.N.H. to, among other things, vary the order regarding child support and review L.D.G.'s spousal support that was ordered by Justice Cole in 2012. [2] A.N.H. operates his dentistry practice through A.N.H. Inc. (the "Company"). [3] In the 2012 reasons for judgment indexed at 2012 BCSC 1313 and 2012 BCSC 1683, the trial judge imputed A.N.H's income for support purposes at $610,000 and ordered child support for the two children of the relationship at $7,900 per month, with spousal support at $9,000 per month (the "Support Orders"). He also ordered that L.D.G.'s support be reviewed in July 2016. [4] On April 10, 2014, A.N.H. filed a Notice of Application which sought, in part, variation of the Support Order as follows: a. That the income of the Claimant be determined; b. That the amount or amounts of spousal and/or child support be varied; and c. That the arrears of spousal and child support, accumulated and payable since November 2013, be reduced, varied or rescinded. (the "April 2014 Variation Application"). [5] Since the April 2014 Variation Application, A.N.H.: · has been declared a vexatious litigant both in this Court and the Court of Appeal; and · has been found in this Court, on June 12, 2018, to be in contempt of court for having conducted himself in a manner "deliberately designed to challenge the authority of the court and its process, and to prevent justice from being properly administered in this proceeding; in particular at this stage the variation application" (the "June 2018 Contempt Reasons", as defined below). [6] As of March 2018, the April 2014 Variation Application had not been heard. A.N.H. was granted leave to file an amended April 2014 Variation Application, but his conduct in doing so provided one of the bases for his being found in contempt of court. Accordingly, he was directed to file a new application limited to the variation of the 2012 Support Order. This occurred on July 20, 2018, with the hearing of this application proceeding for seven days in September and October 2018. [7] In these reasons, I will refer to both A.N.H.'s variation application and the review of L.D.G.'s support collectively as the "Variation Application". [8] A.N.H. has repeatedly raised the issue of my recusing myself and formally applied that I do so. Most recently, he did so on September 25, 2018, which was the first day of the hearing for this application. My reasons for declining to adjourn this hearing and/or recuse myself are indexed at 2018 BCSC 2001. [9] As will be outlined below, I had previously declined to recuse myself on an ex mero motu application at the time of the vexatious litigant application in 2017. [10] These reasons for judgment relate to the Variation Application and the review of L.D.G.'s support ordered by Cole J. in September 2012. The Variation Application proceeded in September and October 2018. [11] For the reasons that follow, I have made the following orders: (a) A.N.H.'s income for support purposes is imputed at $325,000 for the years 2013 to 2017 inclusive; (b) L.D.G.'s support is terminated as of August 31, 2017; (c) FMEP is directed to calculate arrears of spousal and child support in accordance with these reasons; and (d) A.N.H.'s application that arrears of spousal and child support accumulated and payable since November 2013 be reduced, varied or rescinded is dismissed, with the exception that arrears shall be reduced in accordance with these reasons; and (e) the interim order made March 5, 2018 that A.N.H. pay $6,000 per month on account of his support obligations shall continue. II: BACKGROUND The Litigation Generally [12] The litigation of this matter has resulted in several reported reasons for judgment which include, but are not limited to: (a) the 2012 trial reasons rendered on September 6, 2012: 2012 BCSC 1313 (the "Trial Reasons"); (b) supplementary trial reasons rendered on November 13, 2012 pertaining to income for support purposes: 2012 BCSC 1683 (the "Supplementary Trial Reasons"); (c) reasons for judgment finding A.N.H. in contempt of court rendered on May 15, 2014, the order reversed on appeal: 2016 BCCA 6 (the "2016 Court of Appeal Contempt Reasons"); (d) reasons for judgment dated October 3, 2014 following a summary trial permitting L.D.G. to relocate to Saskatchewan with the children: 2014 BCSC 1875 (the "Relocation Reasons"); (d) reasons of the Court of Appeal rendered June 11, 2015 dismissing A.N.H.'s appeal of support orders made for the period April 2010 - October 2012 without hearing the substantive appeal due to A.N.H.'s failure to comply with Supreme Court orders relating to support: 2015 BCCA 268; (e) reasons for judgment dated June 9, 2017 finding A.N.H. to be a vexatious litigant in the Court of Appeal: 2017 BCCA 216 (the "CA-VLA"); (f) oral ruling rendered May 29, 2017 re: this Court's ex mero motu recusal application: 2017 BCSC 1246; (g) reasons for judgment dated July 19, 2017 finding A.N.H. to be a vexatious litigant in this Court: 2017 BCSC 1249 (the "SC-VLA"); (h) reasons for judgment dated February 7, 2018 dismissing L.D.G.'s application to have A.N.H. found in contempt of court: 2018 BCSC 183 (the "February 2018 Contempt Reasons"); and (i) reasons for judgment dated June 12, 2018 finding A.N.H. in contempt of court both as a result of L.D.G.'s application and the court's ex mero motu application: 2018 BCSC 1086 (the "June 2018 Contempt Reasons"). [13] It should be noted that A.N.H. filed a Notice of Appeal relating to the orders made arising from the Trial Reasons and the Supplementary Trial Reasons, particularly the Support Orders. However, after receiving legal advice, on November 13, 2013, A.N.H. abandoned the appeal. [14] The salient background facts are summarized in the February 2018 Contempt Reasons, commencing at para. 5, and I will not repeat them in these reasons. The Appendix to those reasons is a summary of the proceedings relating to support commencing with the filing of the Notice of Appeal on November 28, 2012. [15] Appendix A to these reasons provides a contextual background to the issues arising on the Variation Application by setting out excerpts from various reasons for judgment. I rely on Appendix A as required when making certain findings of fact and reaching the conclusions set out in these reasons. The Variation Application [16] The pertinent facts relating to the events which occurred from March to June 2018, in relation to setting down the Variation Application for hearing, are set out in the June 2018 Contempt Reasons at paras. 17-35. [17] At a judicial management conference on March 5, 2018, I indicated to the parties that, depending on the materials filed, the Variation Application hearing may involve the parties' affidavits standing as their direct examination, with the parties then being available for cross-examination. [18] By the time of the second judicial management conference, which occurred on August 27, 2018, A.N.H. had filed his July 20, 2018 Notice of Application, which provided in part: 1. That the Order of the Honourable Mr. Justice Cole dated November 13, 2012, be varied as follows: a. That the support, for which variation of support is sought, is from 2010 to 2018 and/or up to the date of any judgment arising from the variation; b. That the amount of income the Claimant seeks the Court to impute for support purposes is as follows: For 2010 $ 104,349; For 2011 $ 6,931; For 2012 $ -36,039; For 2013 $ -1,402,656; For 2014 $ -286,892; For 2015 $ -333,619; For 2016 $ -270,339; For 2017 $ -303,985; c. That the amount or amounts of spousal and/or child support be varied retroactively from March 2010 to 2018 and/or up to the date of any judgment arising from the variation and that the arrears of spousal and child support, accumulated and payable since November 2013, be reduced, varied or rescinded. 4. Costs. 5. Such further and other relief as this Honourable Court deems just. [19] Part 4 of the Notice of Application identified the material A.N.H. intended to rely on, including Affidavit #127 filed on July 20, 2018. Taken at face value, the material, which included 28 prior affidavits filed by A.N.H., consisted of hundreds, if not thousands of pages. A significant portion of the content of the affidavits is irrelevant to the issues I consider to be germane to the Variation Application. [20] It was also evident that the hearing could not proceed as contemplated at the March 5, 2018 judicial management conference with respect to A.N.H.'s affidavits standing as his direct-examination. [21] Rule 10-3 (4) of the Supreme Court Family Rules provides: (4) On a chambers proceeding, evidence must be given by affidavit, but the court may (a) order the attendance for cross-examination of the person who swore or affirmed the affidavit, either before the court or before another person as the court directs, (b) order the examination of a party or witness, either before the court or before another person as the court directs, (c) give directions required for the discovery, inspection or production of a document or copy of that document, (d) order an inquiry, assessment or accounting under Rule 18-1, and (e) receive other forms of evidence. [22] I directed that A.N.H.'s Affidavit #127 be the affidavit mandated by the opening words of R. 10-3(4) and that A.N.H. give his direct evidence viva voce. I also directed that the extent to which A.N.H. wished to rely on portions of that affidavit and/or introduce other affidavits into evidence would be considered with the court's rulings provided when reference was made to those affidavits and their voluminous exhibits. [23] I did this in order to reduce the evidence at the hearing to a manageable and, for the most part, relevant evidentiary record. This was necessary for the hearing itself, these reasons for judgment and any appeal which may be taken by one or both parties. [24] By the conclusion of the hearing, I had "winnowed" down the materials sought to be relied on by A.N.H. to a small percentage of that referred to in the Notice of Application, but they nonetheless remained extensive. [25] It was not possible to give rulings in the timeframe set for the hearing with respect to every exhibit referred to in the affidavits that I admitted into evidence. In reaching my conclusions, I have not considered material which I considered inadmissible, either on the grounds of relevance or otherwise. [26] During the course of the hearing, I ruled certain affidavits or portions thereof inadmissible, an example being the affidavit of Stephen Cousins, A.N.H.'s former accountant who was also the accountant for two political parties in which A.N.H. was involved over the years. That ruling is indexed at 2018 BCSC 2003. [27] At the outset of the hearing, an issue arose regarding L.D.G.'s participation. In her Affidavit #62 filed August 16, 2018, the same day as her response to A.N.H.'s Notice of Application, she stated she would not participate in the hearing. In particular, she would not attend in Vernon to be cross-examined by A.N.H. [28] My ruling with respect to this issue is indexed at 2018 BCSC 2002 which will be released contemporaneously with these reasons, my aforementioned ruling regarding A.N.H.'s recusal/adjournment application, and my ruling with respect to Mr. Cousins' affidavit. [29] In the end, L.D.G. did not participate in the hearing, with the exception of her counsel filing a written submission in accordance with my ruling. [30] It took several days for A.N.H. to give his evidence, despite not being subject to cross-examination. I also permitted his sister, C.H., to testify regarding certain accounting matters. [31] In conclusion on this issue, I am satisfied that the admissible portions of the affidavits and exhibits in evidence tendered by both parties, and the viva voce evidence of A.N.H. and C.H., provide a proper evidentiary record such that the issues arising from the Variation Application can be properly considered. III: A.N.H.'s APPLICATION TO VARY THE SUPPORT ORDERS Introduction [32] According to the Family Maintenance Enforcement Program ("FMEP") and the respondent, as at the date of the hearing of the Variation Application, A.N.H. was in arrears of his support obligations in the amount of $592,222.38 exclusive of interest (the "Support Arrears"). He was also indebted to L.D.G. in the amount of $56,098.52 in outstanding costs orders, which does not include the costs still to be assessed arising from the July 2017 hearing and the May/June 2018 Contempt Hearing. A.N.H. received his costs arising from the February 2018 Contempt Hearing which are to be offset from the outstanding costs orders. Even when this is taken into account, the outstanding costs to which L.D.G. is entitled remain significant (the "Outstanding Costs"). [33] Notwithstanding the fact that the initial trial was in 2012 and A.N.H. abandoned his appeal in November 2013, A.N.H. seeks variation of support retroactive to 2010. He also seeks orders relating to the imputation of his income as of 2010, which I will turn to later in my reasons. The Legal Framework [34] In B.G.M.S. v. J.E.B., 2018 BCSC 1628, Justice Fleming succinctly summarized the statutory framework: Statutory Framework [179] Section 147 of the FLA sets out the duty of each parent to provide support for his or her child. Section 150(1) requires the amount of a child support order to be determined in accordance with the Guidelines. Ultimately, neither party suggested departing from this approach based on the Agreement. The key objective of the Guidelines is to establish a fair standard of support for children that ensures they continue to benefit from the financial means of both parents after separation. Under the Guidelines, the presumptive rule requires payment of the "table" amount of child support based on the payor's annual income, and an additional amount, if any, for extra or specified expenses under s. 7 based on both parents' annual incomes. [180] Section 16 of the Guidelines provides that a spouse's annual income is determined using the sources of income set out under the heading "Total Income" in the Canada Revenue Agency T1 General form, namely the income set out at line 150, adjusted in accordance with Schedule III of the Guidelines. Under ss. 17 to 20 the court has the discretion to adjust the amount of the spouse's income to reflect funds at his or her disposal for child support purposes (Vincent v. Vincent, 2012 BCCA 186 at paras. 35-39). In Brown v. Brown, 2014 BCCA 152, the court described the importance of advancing the objectives of the Guidelines when exercising this discretion: [23] Sections 17-20 of the Guidelines allow courts a degree of flexibility in specific circumstances where parties have unusual forms or patterns of income, or where they are able to manipulate their income for tax purposes in a manner that might frustrate the goals of the Guidelines. It is important, however, in interpreting and applying those sections, that courts recognize the need for consistent and predictable results. Courts should interpret ss. 17-20 of the Guidelines with a view to advancing the objectives set out in s. 1. [181] Section 19 of the Guidelines allows the court to impute income to a spouse in a broad range of circumstances, among them intentionally under-employed or unemployment and failing to provide income information. Where grounds for imputing income are established, the court determines the spouse's income based on what he or she is reasonably capable of earning. [35] In paras. 182-183 of B.G.M.S., the court highlights s. 21(1) of the Federal Child Support Guidelines, SOR/97-175 [Guidelines], which addresses the parties' obligation to provide income information, and R. 5-1 of the Supreme Court Family Rules pertaining to financial disclosure. [36] Since the parties were not married, this proceeding is governed by the Family Law Act, S.B.C. 2011, c. 25 [FLA]. Section 152 of the FLA provides that on application, a court may change, suspend or terminate an order respecting child support prospectively or retroactively. The court must be satisfied that since the last order respecting child support was made, there has been a change in circumstances, there is available evidence that is substantial which was previously unavailable at the hearing, or that evidence of lack of financial disclosure by a party has been discovered. [37] Section 170 of the FLA details matters that may be provided in support orders, including (but not limited to): the form and nature of payments, the period of the payment, that the payment can be made in lump sum directly or in trust, and that a charge can be registered against specific property to secure a payment. [38] The Guidelines also contain provisions that detail the procedure for calculating support. Section 3(1) provides that unless otherwise stated, the amount of a child support order for children under the age of majority is the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought. This is in addition to any special or extraordinary expenses, as determined by s. 7 of the Guidelines. [39] As set out in s. 25 of the Guidelines, paying parents have an ongoing obligation to provide financial disclosure. [40] With respect to spousal support, s. 167 of the FLA provides that a court may change, suspend or terminate an order respecting spousal support prospectively or retroactively. The court must be satisfied that since the last order respecting spousal support was made, there has been a change in circumstances, there is available substantial evidence that was previously unavailable at the hearing, or that evidence of lack of financial disclosure by a party has been discovered. If an order of spousal support requires payment for a definite period or until a specified event occurs, the court need not make an order resuming spousal support unless it's satisfied that the order is necessary to relieve economic hardship that arises form a change of circumstances between the relationship between the spouse or if the changed circumstances would have resulted in a different order. [41] I will also refer to the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) ["SSAG"] later in these reasons. [42] Earle v. Earle, [1999] B.C.J. No. 383 (S.C.) is one of the leading cases on the issues arising on the Variation Application. I note that like Mr. Earle, A.N.H. is self represented in these proceedings. I shall set out what was stated by Justice Martinson at paras. 11-24: [11] Mr. Earle did not have a lawyer to represent him at this hearing. In fact, many people who appear in Family Chambers to make applications like this one do not have lawyers. For his benefit I will set out some of the most important legal rules (principles) that are used to make decisions about child maintenance. Many of these rules are found in the Divorce Act or the Family Relations Act. Others have been stated by the Courts, including the British Columbia Court of Appeal. [12] I have considered the following cases of the British Columbia Court of Appeal: Turecki v. Turecki (1989), 35 B.C.L.R. (2d) 51; Reid v. Reid (1992), 40 R.F.L. (3d) 92 (B.C.C.A.); Heiden v. British Columbia Director of Maintenance Enforcement (1995), 16 B.C.L.R. (3d) 48; Cherry v. Cherry (1996), 24 B.C.L.R. (3d) 158; Johnston v. Johnston, [1997] B.C.J. No. 418 (QL); Weinstein v. Weinstein (1997), 38 B.C.L.R. (3d) 103; McIvor v. McIvor (1998), 48 B.C.L.R. (3d) 367; Ward v. Ward (1998), 37 R.F.L. (4th) 163; Wang v. Wang (1998), 164 D.L.R. (4th) 146; McLaughlin v. McLaughlin, [1998] B.C.J. No. 2514, (30 October 1998), Vancouver No. CA023706; Thorne v. Thorne, [1998] B.C.J. No. 2740, (26 November 1998), Vancouver No. CA024202. [13] I have also considered the following cases: Haisman v. Haisman (1994), 7 R.F.L. (4th) 1 (Alberta Court of Appeal, leave to appeal to the Supreme Court of Canada refused), which has been cited with approval by the British Columbia Court of Appeal in Heiden and Johnston; Willick v. Willick, [1994] 3 S.C.R. 670 (Supreme Court of Canada); Dithurbide v. Dithurbide (1996), 23 R.F.L. (4th) 127 at 136, (British Columbia Supreme Court); and Jones v. Anhorn, [1998] B.C.J. No. 1274, (5 May 1998), New Westminster E003954 (British Columbia Supreme Court, under appeal). [14] It is not the role of Judges of the Supreme Court and Judges of the Provincial Court to change these legal rules. Instead, their role is to see how the rules apply to the cases that come before them. 1. CHILD SUPPORT - BASIC PRINCIPLES [15] Three fundamental principles apply to all child support applications, including the first decision about what payments should be made, applications to vary or change that amount, and applications to cancel or reduce arrears. a. Joint Legal Obligation [16] Parents have a joint and ongoing legal obligation to support their children. It is considered such an important obligation that a divorce cannot be granted until parents make satisfactory arrangements for the care of their children. b. Right of the Child [17] It is the child, not the parent with custody, who has the right to maintenance. This has long been the case and has been confirmed in the Federal Child Support Guidelines. The first objective of the Guidelines is to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation. c. Ability to Pay [18] The payment of maintenance is based on ability to pay. That means that it is based not only on what the parent does earn, but also what the parent can earn. The result is that parents have a legal obligation to earn as much as they are capable of earning to meet their obligation to support their children. 2. VARIATION - BASIC PRINCIPLES [19] Before a judge can change a maintenance order that has already been made, there has to be a material change of circumstances since the original order was made. That is, the change must be of the kind that, if known by the judge when the last order was made, would have resulted in a different order. The change must be significant and long lasting. Otherwise, there will be uncertainty, which is not in the best interests of children. [20] A judge does not have to change an order granted before the Guidelines came into force, to conform with the Guidelines just because a parent asks. Instead, an order will only be changed where the arrangements the parents or a previous court made are seen as unreasonable when compared with the arrangements that would result from the application of the Guidelines after taking into account all the relevant factors. 3. ARREARS - BASIC PRINCIPLES [21] The cancellation or reduction of arrears of maintenance is a form of variation. There are two points that have to do with arrears that should be kept in mind. a. Significant Change [22] Because cancellation or reduction of arrears is a form of variation, there is a substantial onus (a heavy duty) on the person asking for a reduction or a cancellation of arrears to show that there has been a significant and long lasting change in circumstances. [23] The courts are generally reluctant to reduce or to cancel arrears. Under the Family Relations Act arrears will not be reduced or cancelled unless it is grossly unfair not to do so. This principle is similar to the one applied to the Divorce Act, which requires a material and long lasting change. b. Postponement of Payment or Payment over Time [24] The second important point is that just because the arrears are not cancelled does not mean that they have to be paid right away. The court has the right to postpone payment for a reasonable period of time or make reasonable terms for payment, if it seems appropriate, taking into account all the circumstances of a case, including the present financial circumstances of the person required to pay. This would only be done when there has been a complete disclosure of the financial situation of the person asking for a postponement of payment or to pay over time. [43] The leading case with respect to issues of retroactive child support is the Supreme Court of Canada decision in D.B.S. v. S.R.G., 2006 SCC 37 [D.B.S.] which reiterates the crucial obligation children are owed by their parents. [44] Justice Bastarache sets out a series of non-exhaustive factors which should be taken into consideration in determining whether a retroactive award is appropriate, including: 1. Whether there was a reasonable excuse for the recipient parent failing to make an earlier request for support, or variation; 2. The conduct of the payor parent; 3. The circumstances of the children; and 4. Any hardship occasioned by a retroactive award. [45] These factors have been referenced when it is the payor spouse who is seeking variation of support obligations. G.M.W. v. D.P.W., 2014 BCCA 282 at para. 39; N.H. v. M.H., 2018 BCSC 921 at para. 158. Position of the Parties [46] A.N.H. advances many arguments, mainly that he has established a material change of circumstances. He points to what he says is the "gross unfairness" of the basis for the Support Orders, in particular, the reference in the Trial Reasons to his access to "almost unlimited amounts of money". [47] He submits that the record clearly indicates that he has not earned anywhere close to the $610,000 per year imputed to him in the Trial Reasons in 2012. He says that he has restricted his dental practice to oral surgery and is physically unable to perform general dentistry services, partially because of ongoing symptoms resulting from a motor vehicle accident years ago. [48] He argues that the corporate and personal income tax returns filed over the years and the spreadsheets prepared by C.H. clearly demonstrate ongoing cash flow deficiencies virtually every month since the Support Orders were made. [49] He relies on the evidence from two employees, Carole Wheeler and Sigrid Olynuk, who both provided affidavits which were to the effect that every effort is made to operate the dental practice at maximum efficiency, but this still results in treating patients less than three days a week. [50] A.N.H. says that the required payments pursuant to the Support Orders have resulted in crippling tax liabilities and that the CRA is on the verge of shutting down his dental practice. He argues that this is a classic case of what was cautioned against in Kowalewich v. Kowalewich, 2001 BCCA 450, where Justice Huddart stated at paras. 58-59: It seems to me regard should also be had to the nature of the company's business and any evidence of legitimate calls on its corporate income for the purposes of that business. Justice Drake cautioned about not killing the goose who lays the golden eggs. Monies needed to maintain the value of the business as a viable going concern will not be available for support purposes. In my view they should not be included in determining annual income. In Hollenbach v. Hollenbach, 2000 BCCA 620, the trial judge recognized the need for a reserve for depreciation as an appropriate factor to be considered in a real estate business. Justice Dorgan recognized Mr. Kowalewich's business expansion plan as a valid business purpose in a retail business. I do not recite these factors to suggest this Court should tinker with a trial judge's exercise of discretion, nor that a trial judge should second guess business decisions. I do say that a trial judge must have regard to the evidence of legitimate business needs in determining what portion of pre-tax corporate income to include in annual income for Guideline purposes. [51] A.N.H. submits that the Support Orders have resulted in his company not having sufficient funds to pay its employees and being unable to provide required upgrades to the dental practice. Further, he argues that the Support Orders have effectively left him with no funds to live on. He notes that if not for the generosity of others, particularly his sister, C.H., he would not have the ability to go to Saskatchewan to see his children. [52] He says that if significant changes are not made retroactively to the Support Orders, he will have to close his dental practice and, as a result, the respondent and the children will be left with nothing. [53] He alleges that certain errors and egregious behaviour of the trial judge have led to his predicament, which has resulted in millions of dollars of debt and an overpayment of significant amounts for support over the years. [54] L.D.G.'s position is that A.N.H. has not satisfied the onus of establishing a material change of circumstances. She points to what she alleges is ongoing incomplete financial disclosure and the lack of evidence demonstrating a reduction in income that is not a result of choice. [55] Furthermore, she submits that A.N.H. has failed to provide credible evidence that he is unable to operate his dental practice for only three days a week. If this is the case, she says he should be supplementing this income by treating patients as a general dentist. [56] L.D.G. emphasizes A.N.H.'s conduct over the years that has resulted in his being declared a vexatious litigant in this Court and the Court of Appeal. She refers to the onslaught of negative behaviour she has been subjected to, the thousands of pages of documents she has been served with, and the multitude of court proceedings in the Provincial Court, this Court and the Court of Appeal. [57] L.D.G. submits that A.N.H. has chosen to behave in this vexatious manner by continuing the litigation. She argues that she and the children should not suffer the financial consequences resulting from A.N.H. depleting his own resources and wasting time that could have otherwise been devoted to his dental practice. Discussion [58] I wish to make clear in this portion of these reasons that I do not in any way accept A.N.H.'s implicit, if not explicit, submission which he has made on several occasions that I can effectively sit on appeal of the findings of fact and conclusions of the trial judge in 2012 and 2014. I referred to this in the June 2018 Contempt Reasons at paras. 68-95, in particular para. 72. [59] Rather, the extent I am prepared to vary the Support Orders is based on whether a material change of circumstances has been established since the Support Orders were made in 2012, this issue considered within the legal framework to which I have referred [60] It is not my role to go behind the Support Orders and A.N.H. has abandoned his appeal with respect to them. If income is imputed then, absent fraud, properly adduced fresh evidence or additional disclosure, on the basis of fairness, the principle of res judicata provides that this matter cannot be re-litigated once it has been determined on its merits: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at paras. 52-53, Nejatie v. Signore, 2014 ONCJ 653 at para. 38. Simply put, the Support Orders are presumed to be correct. G.M.W. at para. 14. [61] On the basis of res judicata and the abandoning of his appeal of the Support Orders, A.N.H.'s application to vary the support ordered in 2012 for the years leading up to the Trial Reasons and the Supplementary Trial Reasons is dismissed. In addition, his application to have a lower income for support purposes for the years in question is also dismissed. [62] I also consider the incomes for 2013 to 2017, set out at para. 18, above which A.N.H. seeks the court to impute as specious and a further example of his improper conduct in this proceeding. [63] In fact, during his submissions, A.N.H. presented a spreadsheet prepared by C.H., which included two options pertaining to his income for support purposes, neither of which resembled the amounts referred to in his Notice of Application. [64] Option 1 would have the court find as reasonable certain deductions from the company's financial statements for 2013 and 2014 relating to extraordinary items and taxes that would result in the imputed income for support purposes as follows for 2013 to 2018: Fiscal years ending Not finalized Nov. 1, 2017 to Aug. 31, 2018 (10 months) Projected Oct. 31, 2018 Oct. 31, 2017 Oct. 31, 2016 Oct. 31, 2015 Oct. 31, 2014 Oct. 31, 2013 Net income before extraordinary items & taxes 143,625 172,350 289,795 177,066 151,858 136,874 114,525 [65] Option 2, which would not permit the deductions in Option 1, would result in income for support purposes for 2013 to 2017 as follows: Fiscal years ending Projected Oct. 31, 2018 Oct. 31, 2017 Oct. 31, 2016 Oct. 31, 2015 Oct. 31, 2014 Oct. 31, 2013 Net income before extraordinary items & taxes & SR&ED 172,350 289,795 177,066 151,858 358,631 384,893 [66] Although the submissions were not entirely clear, the 2018 amounts on both options appeared to be for 10 months of this year up to August 31, 2018. [67] By way of comparison, A.N.H.'s line 150 income for the years 2013 to 2017, which the Guidelines provide is the presumptive amount of a payor's income for support purposes, was assessed by the Canada Revenue Agency ("CRA") as: 2013: $521 2014: $0 2015: $432,692.00 2016: $302,050.00 2017: $316,445.20 These amounts are taken either from CRA Notices of Assessment or C.H.'s summary entitled "Income on which to base child and spousal support" prepared for July 20, 2018, being the first two pages of Exhibit I to A.N.H.'s Affidavit #127, being Exhibit 7 at the hearing. [68] The amount for 2015, being $432,692, included a garnished RRSP of $113,618, which would reduce the line 150 income for that year to $319,074, an amount similar to the line 150 income for 2016 and 2017. [69] C.H. then deducted outstanding shareholder's loans for each of 2015, 2016 and 2017 to reduce the amount available for support to $0. [70] While I appreciate L.D.G.'s argument that A.N.H.'s financial disclosure is not complete, I have concluded that the evidentiary record is sufficient for me to make a fair imputation of his income pursuant to the principles outlined above and the Guidelines. [71] In that regard I am mindful that s. 8 of the SSAG provides that the "with child" calculation of income is based on the individual's net disposable income . Furthermore when the payor is the principal of a closely held corporation certain additional considerations arise. [72] In Hausmann v. Klukas, 2009 BCCA 32, the Court of Appeal addressed the issue of reconciling corporate income as a function of income for support purposes. The proper approach is to include in income for the purposes of child support corporate income where the sole shareholder of a corporation has control over the characterization and allocation of corporate expenses. In Hausmann, Justice Kirkpatrick stated: [51] While the purpose and application of s. 18 were outlined in Kowalewich [v. Kowalewich, 2001 BCCA 450], this Court has not heretofore established an onus test. Some post Kowalewich authorities from this province, however, have concluded that there is an "emerging presumption" that pre-tax corporate income will be assumed to be available to a payor unless evidence is led to the contrary. These authorities state that the onus in the circumstances is on the payor. As discussed in Jeffery v. Motherwell, 2006 BCSC 140, 36 R.F.L. (6th) 377, at para. 13: Kowalewich has been applied on other occasions by judges of this court and is binding authority. One of those cases Bartkowski v. Bartkowski (2003), 37 R.F.L. (5th) 242 (B.C.S.C. [In Chambers]), albeit dealing with very different factual circumstances in that the payor contended that his line 150 income was inflated to take advantage of tax benefits, the court said this about the authorities post Kowalewich: I am of the view that these cases reveal an emerging presumption that the corporation's pre-tax income will be assumed to be available to the shareholder payor for the payment of child support unless compelling evidence is led by the payor spouse to support the conclusion that re-investment is necessary to sustain the company as a viable enterprise. ... (para. 51) The onus is on the payor to provide the necessary evidence that the corporation's pre-tax income is not available to the payor. The court should not have to ferret out the necessary information from inadequate or incomplete financial disclosure. While Bartkowski says the evidence of the payor must be compelling, I prefer to use the word clear when discussing the necessary evidence of business circumstances as the former word might be taken to suggest a higher standard of proof than is called for by Kowalewich. [73] Some of the disclosure deficiencies identified by L.D.G., for example the "bare trust" of assets relating to the dental practice, were largely explained during the hearing, although L.D.G. was not present to hear the explanations. [74] Certain audit documents from the CRA, which the respondent had previously sought to obtain, were not entered into evidence. However, in my view, L.D.G. cannot take issue with this because of her decision not to attend the hearing. I had previously directed that if L.D.G. wished to pursue this matter, it would have to occur at the hearing itself. [75] I note that much of what A.N.H. presented to the court on the issue of income for support purposes, both from a corporate and personal perspective, was voluminous, repetitive in places and often confusing or contradictory. It is not possible to reconcile many of the documents before the court, including C.H.'s various spread sheets, the corporate and personal income tax returns filed over the years, A.N.H.'s most recent F8 sworn financial statements, and the written summary he provided while making his closing submissions. [76] As was noted in Hausmann at para. 51: it is not the court's role to "ferret out the necessary information from inadequate or incomplete financial disclosure". That is precisely what A.N.H. seeks to have the court do. [77] Quite apart from the discrepancies between the corporate and personal tax returns, to the extent complete tax returns were before the court, there is no comprehensible explanation why what was submitted in closing submissions by A.N.H. (paras. 64-65 above) is different from other documents prepared by C.H., for example a spread sheet dated May 8, 2018 (Exhibit 36) where she states A.D.H's "salary" to be: 2013: $120,845 2014: $136,873 2015: $317,473 2016: $287,961 2017: $303,105 even though this "salary" appears to be based largely on the Company's net income before taxes. [78] In my view, the period of time it has taken for the Variation Application originally filed in April 2014 to result in an actual hearing, the length of the hearing itself and the need for the parties and the children to have some resolution of this issue, at least in this court, mandates that I do the best I can with the evidentiary record before the court. [79] It is also neither possible nor necessary to detail A.N.H.'s evidence on certain matters, in addition to his general position as described above. [80] Accordingly, I make the following findings of fact and reach certain conclusions based on the relevant and admissible evidentiary record before me. [81] Based on the affidavits of two employees, Carole Wheeler and Sigrid Olynuk, the most recent sworn on November 29, 2017, I accept that since 2013, A.N.H.'s oral surgery practice has been operating at full capacity, which is somewhat less than three days a week. [82] I am aware that both these individuals testified at the 2012 trial, but it is not evident from the Trial Reasons whether any supporting documents were before the court at that time. At this hearing, there were many source documents which formed part of the evidence, which detail the patients booked since the 2012 trial and the efforts made to generate additional oral surgery business. At the hearing, neither Ms. Wheeler nor Ms. Olynuk were requested for the purposes of cross-examination on their affidavits. Accordingly, their evidence is unchallenged by L.D.G. This is one of the consequences L.D.G. must face as a result of her non-participation at the hearing, and to which I referred at para. 27 above. [83] In my view, the best evidence regarding A.N.H.'s income from the oral surgery dental practice from 2013 to 2017 is to average his "salary" (less the RRSP) for the last three years as outlined on Exhibit 36 being 2015 to 2017, which results in income of $302,846.33. I round this up to $305,000. [84] This amount is approximately $50,000 less than if I were to average A.D.H's line 150 income taken from his personal tax returns for the same years. The approach I have followed is generally consistent with using the net income of a company before taxes and the framework identified in Hausmann. If the 2015 Line 150 income is reduced to take into account the RRSP, then the average Line 150 income for 2015-2017 would be $312,523. This amount generally corroborates the $305,000 I have concluded is appropriate. [85] I say "generally" because there were any number of different documents before me on this issue, including two very different spreadsheets prepared by C.H., Exhibit 36 prepared in May 2018, and the two options referred to above which were produced during closing submissions in early October 2018. [86] To put it bluntly, A.N.H.'s submissions and positions on what his income should be imputed at varied dramatically over time and were essentially a "moving target", the best example perhaps being the negative amounts identified on his Notice of Application, to which I have referred at para. 18 above. [87] There is also the issue as to payments made to A.N.H. from the Company, which are sometimes characterized as shareholders loans but are also described as "other income" on his personal income tax returns. C.H.'s explanations did not go nearly far enough in satisfying the onus on A.N.H. to establish what his income was for support purposes. [88] A.N.H. must accept responsibility for my refusal to accept the other available options that he alleges are more preferable to his position due to the ambiguous, incomplete and haphazard manner he placed the evidence before the court. [89] I would add that during the hearing, A.N.H. expressed some surprise that there are in fact Guidelines which deal with the imputation of income for support purposes. This occurred notwithstanding the fact that the 2012 Trial Reasons explicitly refer to the Guidelines on several occasions. [90] There are also significant deductions which relate to expenses involving scientific and research tax credits, as well as expenses related to the political parties in which A.N.H. was involved. I do not consider them to be appropriate deductions from the Company's revenue such that this would result in a reduced amount available to A.N.H. in his personal capacity for support purposes. [91] In any event, from the documents that were before me at the hearing, the gross revenues of the Company did not appear to be significantly different in 2013 and 2014 than they were in 2015-2017; from this I conclude that A.D.H's "salary" as described by C.H. should be generally the same for support purposes. A.N.H. has failed to explain why this conclusion should be considered improper. [92] At page 8 [7] of Appendix A, I refer to the February 2018 Contempt Reasons and the comment made by Justice D. Smith in the Court of Appeal that at least one division of the court was concerned that A.N.H.'s income should have been approximately half of what had been found by the trial judge. While this statement was obiter dicta and not binding, I note that this is entirely consistent with my conclusion set out at para. 83 when I approach the issue from the perspective of a material change of circumstances. [93] This statement from the Court of Appeal, based on the financial record before that court at the time, is largely consistent with the Company's and A.N.H.'s financial circumstances since then, as reflected in the evidentiary record on this application. [94] The issue then becomes whether the $305,000, which is based on income derived from the dental practice for three working days a week, should be increased to take into account any additional amounts that A.N.H. could have reasonably earned for the remaining two working days. [95] L.D.G. does not agree that A.N.H.'s ongoing symptoms from the MVA prevent him from working as a general dentist. However, a report from Dr. J.P. Etheridge, an International and Chronic Pain Management specialist, dated November 18, 2014, was admitted into evidence. The report deals with the ongoing effects of the A.N.H.'s injuries arising from the MVA. [96] The report contains the following conclusions: (a) The natural history of chronic neck pain is that of a chronic condition that fluctuates over time. (b) Due to the length of time that his neck pain has been present it will probably continue to plague him in the future. (c) It is my opinion that [A.N.H.] will continue to have his current level of impairment, functional and social participation limitations long term. (d) [A.N.H.] was unable to perform the essential duties of his job as a dentist following the index motor vehicle accident for approximately 8 years following the index MVA. Between 2006 to 2009 he increased his days of work from 2 to 3 days a month up to 3 days a week by 2009. (e) He focused his energy and effort into a business and research venture following the index motor vehicle accident and continues to perform some of these duties but to a lesser degree. (f) He subsequently returned to dentistry from 2000 and onwards and limited his practice to oral surgery. He opened a dental office in Vernon in 2010 where he works 3 days per week. He has also made modifications to his work environment to accommodate his impairments and functional limitations as outlined in this report. He is currently able to perform the essential duties of his job as a dentist doing oral surgery, mainly due to modifications that was made to his work environment and number of work days. These modifications have allowed him to perform less than 25% of his workday in a partly flexed uncomfortable posture, compared to 75-80% during regular dentistry practice. (g) It is my opinion that due to the presence of central sensitization changes as indicated by his history and confirmed on my physical examination, [A.N.H.] will not be able to increase his work load past 3 days a week without significantly aggravating his pain. He may be able to increase his work load for a short period of time, but in doing so he will aggravate his chronic pain condition by aggravating central sensitization. (h) It is my opinion that these functional limitations and social participation limitations will continue long-term. [97] Although the report was not updated for this hearing, it indicates that A.N.H.'s condition is a long term problem that would not improve substantially after November, 2014. [98] Due to L.D.G.'s non-participation at the hearing, Dr. Etheridge's conclusions remain unchallenged. [99] Accordingly, I find that A.N.H. does not have the ability to work as a dentist beyond the three days he is currently occupied performing oral surgery. [100] This leaves two days a week when A.N.H. is not earning an income. During his closing submissions, in answering a question from the court, he indicated that for several years he had spent "at least one day a week" attending to the various legal proceedings, including numerous applications he has chosen to pursue. [101] This is not surprising based on A.N.H.'s history as a vexatious litigant and the various comments, excerpted at Appendix A, which relate to his oppressive conduct towards those who do not agree with his views including the trial judge and others, or his opinion that L.D.G. is a persistent liar who has deliberately attempted to harm him. [102] It is also evident from the comments and findings referred to in Appendix A that A.N.H.'s litigious conduct has negatively affected his own health. [103] Considering the evidence as a whole, I conclude that A.N.H. should not be permitted to use his own litigious and negative conduct towards the respondent, the children and himself, as an excuse for failing to acquire other sources of income to supplement his oral dentistry practice. In other words, he has not established that he is incapable of paying more support to the children or L.D.G. [104] While there is no economic evidence before the court as to what additional income could be earned by A.N.H. per week for the two remaining work days, I note that he is a well educated and articulate individual. [105] There is nothing in Dr. Etheridge's report that A.N.H. is incapable of doing other forms of employment apart from oral surgery, notwithstanding the fact he has some ongoing physical issues with his health. In addition, the record is clear that the state of his health for the past number of years has not prevented A.D.H from spending hundreds, if not thousands, of hours pursuing the litigation against L.D.G. and others. Were he to make any meaningful attempts to find additional sources of income, I am satisfied he could do so, particularly if there is a change in his vexatious conduct which is impacting his own health. [106] Accordingly, while I acknowledge this is somewhat of a "crystal ball gazing exercise", I impute an additional income of $20,000 per year to the $305,000 referred to above, for a total income of $325,000 for support purposes from January 2013 to the present and into the future, unless otherwise varied. [107] This $20,000, if anything, is a modest amount. Even nominal employment income based on $15.00 an hour for 8 hours a day, two days a week would result in additional income of approximately $1,000 a month or $12,000 a year. It is for A.N.H. to satisfy the court that it is beyond his capabilities to obtain any form of sedentary employment for the remaining two days a week. [108] An imputation of an additional income for these two days is necessary not only because I have found A.N.H. has the ability to earn additional income, but also to impress upon him that he should be focussing his attempts to maximize his income earning capabilities for his, L.D.G's and his children's benefit, rather than utilizing his time to oppress L.D.G. and his children with his vexatious behaviour. [109] It follows, in my view, that imputing A.N.H.'s income for support purposes as $325,000 from 2013 to the present represents a material change of circumstances in that it is significantly different from the $610,000 imputed by the trial judge upon which the Support Orders were based. [110] In so far as the D.B.S. factors are concerned, the initial application was brought in April 2014 but, due in large part to A.D.H's conduct, was not heard until the Fall of 2018. This would militate against a retroactive variation. But the fact remains that what was actually contemplated by the trial judge in 2012 never materialized, that is an income for support purposes of $610,000. [111] Incomes over $150,000 are governed by s. 4 of the Guidelines. The payor, in this case A.N.H., bears a formidable onus to rebut the presumption that the table amount of child support is appropriate and to show an appropriate level of child support that varies from the table amount: Hathaway v. Hathaway, 2014 BCCA 310, leave to appeal refused [2014] S.C.C.A. No 412 (QL). [112] A.N.H. made no submission that the table amount was not appropriate in the context of being unsuitable. Accordingly, I order child support for the years 2013 onwards based on A.N.H.'s imputed income of $325,000 and applying the principles from the Guidelines. [113] I will consider A.N.H.'s submission that income should be imputed to L.D.G. from 2013 onwards within my analysis of the issues arising on the review of spousal support, to which I shall now turn. IV: THE REVIEW OF SPOUSAL SUPPORT AND OTHER SUPPORT ISSUES [114] In the trial reasons, Cole J. ordered that L.D.G.'s spousal support be reviewed in July 2016. [115] A spousal support review is a hearing de novo and thus treated as an initial application for support: Morck v. Morck, 2013 BCCA 186 at para. 17. [116] The obligation to pay spousal support is set out in s. 160 of the FLA. Section 161 of the FLA sets out the objectives in determining entitlement to spousal support, including: (a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship; (b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child; (c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. [117] Section 168 of the FLA provides for a review of spousal support: (1) An agreement or order respecting spousal support may provide for a review of spousal support, and for this purpose may provide for (a) the review to occur on or after a specified date, after a specified period of time or after a specified event has occurred, (b) the type of family dispute resolution by which the review will take place, (c) the grounds on which a review will be permitted, and (d) the matters to be considered for the purposes of a review. (2) On review, a court, on application, may do one or more of the following: (a) confirm an agreement or order respecting spousal support; (b) set aside all or part of an agreement, or terminate an order, respecting spousal support; (c) make an order under section 165 [orders respecting spousal support]. (3) In making an order under this section, the court is not required to consider any of the matters referred to in sections 164 [setting aside agreements respecting spousal support] and 167 (2) [changing, suspending or terminating orders respecting spousal support]. [118] Accordingly, the onus is on L.D.G. to establish that as of July 2016, she was still entitled to spousal support on a compensatory or non-compensatory basis. [119] Compensatory support is intended to provide redress for economic disadvantage arising from the marriage or the conferral of an economic advantage on the other spouse: Zhang v. He, 2018 BCSC 1622 at para. 21. This economic disadvantage can include a lost economic opportunity as a result of the decision for one spouse to remain at home to care for and raise the children: Graham v. Graham, 2018 BCSC 188 at para. 62. The Court in Moge v. Moge, [1992] 3 S.C.R. 813 at paras. 72 and 80 acknowledged that the curtailment of outside employment can have a significant impact on a spouse's future earning capacity, including a lack of access to benefits such as pension plans, life, disability and health insurance, and other sacrifices in full-time parenting. [120] The longer the marriage/relationship and the more the parties' economic fates are intertwined, the greater the presumptive claim to compensatory spousal support: W. v. W., 2005 BCSC 1010 at para. 11. [121] Non-compensatory support is grounded in the social obligation model of marriage and aims to narrow the gap between the needs and means of the spouses on marital breakdown: Zhang, para. 22. The court should consider the need of the spouse seeking support and whether the other spouse has the means to assist. If the spouse seeking support must encroach on their capital to maintain a standard of living comparable to that which they enjoyed during the marriage, they are suffering from hardship, since the separation will eventually put them in a worse position than if the marriage had continued: Chutter v. Chutter, 2008 BCCA 507 at para. 90. [122] In her response and Affidavit #62 filed August 14, 2018, and her counsel's written submissions of October 5, 2018, L.D.G. addresses A.N.H.'s application to vary support and the cancellation of arrears. She does not, however, specifically address the court ordered review of her support. [123] From the evidence L.D.G. placed before this Court, it is clear there are common elements to her position with respect to all of the matters, including: · the history of the litigation and the events which have resulted in A.N.H. being declared a vexatious litigant; · the "scorched earth" effects of the litigation perpetuated on her by A.N.H. "has denied our children an enormous amount of financial resources and continues to undermine the financial security I can provide the Children"; · raising the children and dealing with the litigation perpetuated by A.N.H. has occupied her full time; · she stopped working as a pharmacist in 2007 due to birth complications, "lost" her pharmacy license in 2013 and has not been employed since separation; · she is "financially, mentally and emotionally exhausted" as a result of A.N.H.'s conduct; · she has incurred legal fees in excess of $800,000 since 2010 and is indebted to her current counsel for approximately $130,000; · "for my own welfare and for the welfare of my children I cannot continue to be entangled in this litigation". [124] Notwithstanding her non-attendance at the hearing, L.D.G. submits that much of the evidence contained in the affidavits upon which she relies, including her financial statements, is either a matter of record and/or uncontroversial. She says the court should consider her evidence and give it the weight it deems appropriate. In other words, L.D.G.'s position is that she "will leave it to the Court to make whatever decision it sees fit in the circumstances regarding [A.N.H.'s] obligations to pay support". [125] L.D.G. seeks to rely on a report prepared by her current family physician, Dr. Bakare, dated March 2, 2018. Dr. Bakare provides a diagnosis of depression "which [has] been complicated by [L.D.G.'s] multiple court cases involving her ex-husband". He states that "despite this, she is capable of caring for her children quite well" and concludes: It is my concern, though, that if these ongoing court appearances do not cease, it might impact her ability to continue to be a good parent to her 2 children, despite the fact that she is seeing a counselor for mental health concerns. I would like to recommend at this point that, based on the effect of these multiple court appearances on [L.D.G.], she be exempt from these court appearances. This recommendation is strictly based on medical grounds. [126] A.N.H.'s position is that L.D.G. voluntarily gave up her pharmacist's license in 2013. He argues that at the relocation summary trial in 2014, she argued that she should be permitted to relocate to Saskatchewan because she had prospects of earning an income with her family company, Gerbrandt Aggregates Ltd. ("GAL"), which she had helped form. In fact, her evidence at that time was that she hoped her involvement in this business would result in long-term financial security for her and the children. [127] A.N.H. emphasizes that, notwithstanding various statements made by L.D.G. in her affidavits that GAL was starting its operations and that she was excited about its prospects, there is no evidence that demonstrates L.D.G. is earning a real income from GAL. He argues that the reference to GAL in 2014 was her deliberate attempt to deceive the court into assisting her in relocating to Saskatchewan with the children. [128] He submits that because both L.D.G. and Dr. Bakare did not attend the hearing and thus were not subject to cross-examination, none of this evidence, including Dr. Bakare's report, should be considered by the court. [129] In considering whether L.D.G. has established an ongoing entitlement to spousal support, I also consider findings and conclusions referred to in prior proceedings and which are summarized, in part, in Appendix A. [130] For ease of reference, I refer to the following from the Trial Reasons (outlined at page 2 [1] of Appendix A): [167] The mother requested spousal support be paid until [E.] is in Grade 1 which will be for a period of four years. The position of the father is that the mother should have been working and that there are jobs available. A witness was called on his behalf who testified that there is a part-time position available in the Vernon London Drugs for a pharmacist. [168] It is my opinion that because of the turmoil these children have gone through and the necessary period of adjustment that is going to have to be made to allow both of these families to settle into some normal routine, that to force the mother back to full-time work under these circumstances at an early date would not be in the children's best interests. [169] I am of the view that the mother should be requalifying to practice pharmacy in British Columbia and that within one year from the date of this order, she should have some type of part-time employment that does not interfere with her childcare responsibilities. I am satisfied that spousal support should be reviewed in July of 2016. That will have given the mother ample opportunity to get back on her feet and pursue her profession. [131] The following sections are from the Relocation Reasons (at pages 3-4 [3] of Appendix A): [49] . She claims that one reason why she has not pursued her career in pharmacy is because of the pressure that has been put on her by the claimant not only through the emails but because of his refusing to pay regular child and spousal support. . . . [97] I am satisfied that the respondent is applying to move back to Saskatchewan to be with her family because she and the children currently lack financial security due to the fact that claimant has a history of not paying support. I find that the respondent is also partially motivated by her need for her own emotional well-being, which is reasonable in the circumstances. The evidence of Dr. Waterman indicates that the respondent's increased emotional well-being will have a positive impact on the children's development. . . . [134] The respondent's family doctor and her psychologist are all of the opinion that the emotional harm suffered by the respondent has been caused by the claimant's conduct. This conduct is emotionally abusive and amounts to intimidation and harassment and I am satisfied that it constitutes family violence. [135] I find that the family violence perpetrated by the claimant is serious and that it has continued over the last two years, and that it is perpetrated by the claimant because of his controlling personality. Although the violence was not directed at the children, they have been indirectly affected because of the effect that family violence has had on their mother. [132] I have concluded that I should consider L.D.G.'s affidavits filed on this application. While A.N.H. was not provided with the opportunity to cross-examine her on these affidavits, L.D.G.'s basis for not participating at the hearing is understandable and results from A.N.H.'s oppressive conduct over the years. This is despite my emphasis in the attendance ruling indexed at 2018 BCSC 2002 that L.D.G.'s cross-examination would occur in a controlled setting, that is, the court room. [133] Furthermore, much of what L.D.G. deposes to in her affidavits regarding A.N.H.'s conduct and the effect of this litigation on her has been commented on in prior reasons for judgment. [134] L.D.G.'s presence at the hearing would likely not have provided much assistance in deciding the issues on the Variation Application. The "credibility issues" that A.N.H. wished to canvass with L.D.G. over a proposed two-day cross-examination, specifically that she is a liar and invented a viable family business to relocate, are not pertinent to the Variation Application. In any event, this issue was dealt with in the Relocation Reasons. [135] However, the trial judge's findings on when L.D.G. was expected to commence earning an income, to which I refer above in para. 130, are relevant to the issue of support. This is coupled with the fact that L.D.G. requested support only until her daughter was at the age to be enrolled in school, being the Fall of 2016, which resulted in the order that the review was to take place in July 2016. [136] Furthermore, the evidentiary record which L.D.G. has chosen to put before the court on the review application is lacking. There is nothing to indicate what occurred with the development of GAL as a business. All that is apparent is that her expectations in 2014, with regards to GAL and the income she would be earning, did not materialize. [137] Apart from her statement in her Affidavit #62, there is no independent evidence to support the assertion that she cannot work as a pharmacist. In that regard, although I am prepared to consider Dr. Bakare's report, it is of little assistance to me because his opinion is restricted to the stresses L.D.G. has with respect to appearing in court and the effects of A.N.H.'s conduct. He does not say she cannot requalify as a pharmacist or pursue other careers or forms of employment. [138] In my view, in light of L.D.G.'s expectation that she would not require spousal support after the summer of 2016, it was incumbent on her to establish and adduce proper evidence of her entitlement to ongoing support. I note that she did not "lose" her pharmacy license in 2013; rather, she allowed it to lapse. [139] I do accept, however, that the extent of A.N.H.'s oppressive litigious conduct appears to have commenced after November 2014 after the release of the Relocation Reasons. I also accept that that L.D.G. was entitled to a reasonable period of time after relocating to Saskatchewan to attempt to earn an appropriate income from the family business GAL or from other sources. [140] I also take into account that the "with child formula" in the SAAG is largely based on compensatory support and that the "needs and means" of both parties has been relatively modest. This is shown by their respective budgets and was commented on by the Trial Judge in 2012. [141] Under all the circumstances, taking into account the length and nature of the marriage-like relationship between the parties, I conclude that L.D.G. has established entitlement to spousal support on both a compensatory and non-compensatory basis until August 31, 2017, that is approximately one year after the July 2016 date referred to by the trial judge for the review. By that time: · she had been living in Saskatchewan for about two and a half years; · her daughter had completed her first year of elementary school; · A.N.H. had been found to be a vexatious litigant both in this Court and the Court of Appeal; · this was a sufficient period of time to start earning an income from GAL or, if unable to do so, from other sources including requalifying as a pharmacist; and · the Gold Coins litigation, of which L.D.G. became aware in 2016, had been resolved in her favour. [142] While the finding that A.N.H. was a vexatious litigant did not eliminate his egregious behaviour, it is a matter of record that it was somewhat lessened. In fact, after July 2017, the next significant event was L.D.G.'s contempt application, which was heard over several days in December 2017 and January 2018, and which I concluded was misconceived. I noted in those reasons for judgment that the preparation and court time would have been better utilized by the hearing of the Variation Application. [143] The reasons I have outlined regarding the review of spousal support also apply to A.N.H.'s submission that I should be imputing L.D.G.'s income from 2013 onwards. I do not accept this argument. Until the time of the relocation trial, it was reasonable, in my view, for L.D.G. not to focus on requalifying as a pharmacist, even though the children were with both parents at times. The events in her and the children's lives from the time of the Trial Reasons to the Relocation Reasons form the record in this case and A.D.H's conduct towards her has been found to constitute family violence. [144] Accordingly, I conclude that no income should be imputed to L.D.G. until her entitlement to support terminates on August 31, 2017. [145] When determining what range in the SSAG to implement, the mid-point range should not necessarily be treated as the default outcome: Loewen, v. Loewen, 2018 BCSC 1932 at para. 66. [146] Since I have imputed A.N.H.'s income as $325,000 the range is: Low: $6,419 Mid: $7,162 High: $7,934. This range is the pre- November 2017 range, as I have decided to terminate support on August 31, 2017. [147] In the Supplementary Trial Reasons, Cole J. noted that the range for spousal support on an imputed income of $610,000 was from a low of $13,540 to a high of $16,122. The amount ordered of $9,000, accordingly, was significantly lower that the low point of the range. His rationale for this conclusion is found at para. 30 of his reasons, being the father's income and the fact that L.D.G. must pay tax on the spousal support. [148] It bears repeating that I am not acting in an appellate role. Since I have reached my conclusions based on a material change of circumstances, I am in no way bound by the trial judge's conclusion that spousal support be below the low point of the range, particularly since he imputed a much higher income than I have. [149] Based on the financial statements of both parties, A.N.H.'s income level, and the circumstances surrounding the relationship, I conclude that spousal support in this case should be between the mid and high range referred to at para. 146. I appreciate that the upper-mid to high range is usually found to be appropriate when dealing with low to middle level income payors, which is not the case given that A.D.H.'s income is more than $150,000, but in the unique circumstances of this case which include: · a protracted period of family violence caused by oppressive and vexatious conduct perpetrated on L.D.G by A.N.H.; · the length of time it has taken for the Variation Application to be heard which, for the reasons outlined below, I find was caused primarily by A.N.H.'s conduct; I view this to be the appropriate range. [150] I have considered that the Guidelines were revised in November 2017. This will not affect spousal support in light of the fact that it is terminated as of August 31,2017. The pre-2017 amount for child support based on the imputed income of $325,000 is $4,309 and the post-2017 amount is $4,224. [151] Accordingly, based on imputed income of $325,000, I order that A.N.H. pay L.D.G. spousal support in the amount of $7,500 a month from January 2013 up to and including August 2017. He is also ordered to pay L.D.G. child support in the amount of $4,309 pre-November 2017 and $4,224 commencing November 2017, this amount to continue until a further order of the court. [152] In that I have arranged for a further judicial management conference on November 28, 2018, I also direct FMEP recalculate the amount of arrears, interest and penalties, if any, in accordance with these reasons by November 21, 2018 with liberty to apply for an extension of this timeframe. The recalculation is to be provided to the parties and the court by that date. V: CANCELLATION OF ARREARS [153] A.N.H. also applies to have any arrears of child and spousal support cancelled. [154] The legal framework on reducing or cancelling arrears is summarized in Earle v. Earle above and s. 174 of the FLA, which provides: Reducing or cancelling arrears (1) On application, a court may reduce or cancel arrears owing under an agreement or order respecting child support or spousal support if satisfied that it would be grossly unfair not to reduce or cancel the arrears. (2) For the purposes of this section, the court may consider (a) the efforts of the person responsible for paying support to comply with the agreement or order respecting support, (b) the reasons why the person responsible for paying support cannot pay the arrears owing, and (c) any circumstances that the court considers relevant. (3) If a court reduces arrears under this section, the court may order that interest does not accrue on the reduced arrears if satisfied that it would be grossly unfair not to make such an order. (4) If a court cancels arrears under this section, the court may cancel interest that has accrued, under section 11.1 of the Family Maintenance Enforcement Act, on the cancelled arrears if satisfied that it would be grossly unfair not to cancel the accrued interest. [155] A.N.H. acknowledges what was stated by Justice Newbury in Luney v. Luney, 2007 BCCA 567 at para. 43: Cases in which arrears have been cancelled are rare, and generally speaking, this court has continued to hold the bar of "gross unfairness" at a high level [156] His position is that the Variation Application was originally filed in April 2014 and it would therefore be grossly unfair if any arrears were not cancelled, as not to do so would be "to kill the goose that laid the golden egg". He points to, among other things, C.H.'s cash flow summaries and the significant cash flow difficulties which the Support Orders have caused the Company and by extension, A.N.H. personally. [157] I categorically reject A.N.H.'s argument that any arrears found by FMEP's recalculation should be cancelled or reduced. [158] It is evident that the failure to have the April 2014 Notice of Application heard in a timely manner rests almost entirely with A.N.H. The only mitigating factor is that Justice Cole's supernumerary status may have affected his ability to hear certain matters. However, this pales in comparison to the real reasons for A.N.H. not having the Variation Application heard, either in 2014 when it was filed, or shortly after the relocation summary trial occurred later that year. [159] The record is clear as to the reasons for delay, which is outlined in Appendix A to these reasons, the Appendix to the February 2018 Contempt Reasons, and the findings in the June 2018 Contempt Reasons and elsewhere. [160] The first is A.N.H.'s oppressive, vexatious and "scorched earth" conduct in this proceeding. There is also the "Gold Coins" litigation, in which he attempted to bring an action in the names of the children against their mother and maternal grandmother. This action was dismissed in reasons indexed at 2016 BCSC 1559. [161] A.N.H. also made repetitive attempts to "piggyback" his claims of alleged misfeasance against the trial judge (described by A.N.H. as an allegation of "fraud" in the CA-VLA) and most recently the conduct described in the June 2018 Contempt Reasons being deliberately interfering in the administration of justice, that is, the proper and orderly hearing of the Variation Application. [162] As I noted in those reasons: [91] Simply put, A.N.H. has no intention of having the Variation application proceed as a variation application per se as ordered by the court. Rather, he is intent only on proceeding with a variation application on his own terms, that is to re-litigate everything which has occurred in the past and with which he disagrees, in particular the perceived injustices caused to him by the trial judge and the Director of FMEP. [92] There is a real irony to A.N.H.'s course of deliberate conduct. That is because as I stated at paras. 9-10 and 55-57 of the February 2018 Reasons, both the Court of Appeal and I have expressed our views that there are legitimate issues to be canvassed on a Variation application. This is also conceded by L.D.G. In my view, these would include, at a minimum, the income as indicated on A.N.H.'s income tax returns over the years in comparison to what was imputed for support purposes by the trial judge in 2012. There is also the question of the review of L.D.G.'s income and her efforts to become self-supporting which was ordered to take place in 2016. [93] There can also be no doubt that it is in the best interests of L.D.G. and the children, let alone A.N.H. himself, to have the Variation application occur as soon as reasonably practical for all the reasons that have been documented and commented on for several years, including the psychological effects of this protracted litigation on the children. [94] And yet more than three months after the JMC, the parties and the court are no further ahead in having the Variation application heard than was the case in early March 2018. [163] A.N.H.'s conduct between March and June 2018 is generally indicative of his conduct from October 2014 and the Relocation Reasons. [164] Simply put, A.N.H. is predominantly to blame for the time it took for the substance of the Support Orders to be varied, which has resulted in what he alleges to be ongoing cash flow problems. [165] The decision not to cancel or reduce the arrears does not result in "gross unfairness" to A.N.H. Rather, it would be grossly unfair to L.D.G. and the children if A.N.H. was not required to fulfill his support obligations ordered by the court as varied by these reasons. VI: THE MARCH 5, 2018 INTERIM ORDER [166] At the judicial management conference on March 5, 2018, I ordered that A.N.H. pay $6,000 per month on account of child and spousal support until the Variation Application was heard and I rendered my reasons. On several occasions since, A.N.H. has attempted to have me reconsider or vary that decision, both of which I have declined to do. [167] The basis for these several requests has, for the most part, been set out in updated cash flow statements prepared by C.H. A.N.H. says he is unable to comply with this order. In part, he points to the fact that the Company now pays him a salary of $4,000 per month. He says that if the interim support amount is not drastically reduced, the CRA will close down his business and/or he will have to do so himself, since his employees will not be paid. [168] I dealt with the CRA argument in the June 2018 Contempt Reasons, which I will not repeat here. [169] As a result of these reasons, A.N.H.'s support obligations will be significantly lower moving forward. His child support will be reduced from $7,900 a month to $4,309 a month for January 2013 - November 2017, and $4,224 from November, 2017 onwards. Furthermore, there will be no spousal support paid at all after August 2017, with the arrears to be calculated by FMEP. [170] I am of the view that A.N.H. should continue to pay the amount of $6,000 per month, approximately $4,225 of which is for child support and I am satisfied he has the ability to do so. My reasons include: (a) I have imputed his income at $325,000 per year. Even in his own submissions, he argued that his income should be imputed at $289,795 for 2017. (b) his obligation to pay child support takes precedence over other obligations, even income tax arrears: Tweel v. Tweel, 1994 Carswell PEI 16 (SC) at para. 82; D.W.I. v. L.A.P., 2015 BCPC 184 at para. 38. (c) from his financial statement, it appears that A.N.H. and his company have substantial debts, both secured and unsecured. He states that the total of his secured and unsecured personal debts is in excess of $2.7 million. There are significant personal and corporate liabilities to CRA, both disputed and not, and there is a personal debt of $500,000 to C.H. (d) there is approximately $108,000 of funds which have been garnisheed and which remain in court. [171] In closing submissions, A.N.H. stated that he has not taken any steps to seek protection from his creditors, nor has he considered bankruptcy protection, either for his Company or himself personally. His submission appeared to be that he was waiting for the result of the Variation Application. This position is, of course, contrary to his overall conduct, which has been to do everything he can to avoid this application being heard, unless it also afforded him the opportunity to revisit the alleged wrongs of the trial judge and others. [172] It is for A.N.H. to organize his financial affairs such that he can have the necessary cash flow to adhere to his support obligations. This would presumably include attempting to make an agreement with the Company's and his personal creditors, including CRA, and making arrangements for the Company to access a portion of the funds in excess of $100,000 which are in court. No doubt this would have to involve professional assistance but the point has come when he can no longer ignore the realities of his financial circumstances while intentionally focussing his considerable efforts on his litigation against L.D.G. and others. [173] The $6000 will continue to be paid, with leave to L.D.G. to have it increased once FMEP has recalculated the arrears. Should A.N.H. seek to have this amount reduced, he will require leave of the court, which must include an affidavit outlining what steps he has taken, including obtaining professional advice, to deal with his personal and the Company's creditors. VII: CONCLUSION AND COSTS; [174] In summary: (a) the Support Orders are varied as of January 2013 with A.N.H.'s income imputed at $325,000 from January 1, 2013 onwards, until varied by agreement of the parties or order of the court; (b) child support is set at $4,309 from January 1, 2013 to November 1, 2017 and then at $4,224 onwards, until varied by agreement of the parties or order of the court; (d) spousal support is set at $7,500 from January 1, 2013 until August 31, 2017 at which point it is terminated; (e) FMEP is directed to calculate the amount of child and spousal support arrears in accordance with these reasons by November 21, 2018; and (f) A.N.H. is to continue paying the monthly amount of $6,000 on account of child support and the arrears of the child and spousal support amounts until further order of the court and in accordance with these reasons. [175] Finally, I turn to the issue of costs. The legal framework regarding costs in family proceedings was recently summarized by Justice MacNaughton in H.K. v. W.K., 2018 BCSC 1447 at paras. 7-14, which I will not repeat in these reasons with the exception of: [7] Supreme Court Family Rule 16-1(7) provides: Costs to follow event (7) Subject to subrule (9), costs of a family law case must be awarded to the successful party unless the court otherwise orders. [9] Recently, in S.A.M. v. J.A.M., 2017 BCSC 2348 at para. 7, Justice Bernard helpfully summarized the principles applicable to costs awards in family cases: (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); [10] There is no real dispute about these settled principles. To them I would add that substantial success is to be measured objectively taking into account the matters in dispute, their weight or importance to the parties, and the parties' relative success or failure with respect to those matters: Fotheringham at para. 60. [12] Substantial success is to be "measured in broad terms" and the court should not finely parse issues: Stearman v. Powers, 2017 BCCA 165 at para. 65. As the Court of Appeal noted in Marquez, the consideration should not be an overly complicated mathematical problem [13] In Litt v. Gill, 2016 BCCA 288, Justice Garson commented on the unique problem costs pose in family law cases involving multiple issues, noting that a more flexible approach may be required in assessing the concept of "success" for the purposes of assessing costs [14] Recently, in Reid v. Reid, 2017 BCCA 191, the Court of Appeal said: [9] We do not read Marquez as requiring that the Court, in determining "substantial success", undertake a mathematical comparison of the amount claimed to the amount awarded. Rather, the Court has broad discretion to take into account myriad considerations in assessing whether a party has been substantially successful. [176] When I take the non-exhaustive list of factors into account, I am of the view that the following are particularly germane to this application: (a) "substantial success" is not clear cut in this case. While A.N.H. has been successful in having his income for support purposes significantly reduced and with spousal support terminated as of August 31, 2017, he has also been unsuccessful in having income imputed to L.D.G. and the termination of her support is one year later than he submitted it should have been. Furthermore, the amount I have awarded for spousal support remains significant until terminated; (b) A.N.H.'s conduct in the litigation has been a significant factor in the delay in this application being heard, including but by no means limited to, his repeated efforts to hinder and delay the orderly hearing of the application unless his allegations of wrongful conduct vis a vis the trial judge and others formed part of the process; (c) A.N.H.'s ongoing oppressive and egregious conduct generally towards L.D.G., which has been found to constitute family violence, has been such that he should not be awarded costs against her, as to do so would cause undue hardship; (d) the Variation Application hearing was scheduled for 8 days, the first being occupied by yet another unsuccessful adjournment/recusal application brought by A.N.H.; and (e) even though L.D.G. chose not to participate in the hearing, it still took the better part of 7 days due mainly to the length of time it took A.N.H. to give his evidence, taking into account the voluminous materials he wished to have form part of the record, and the inevitable delays caused by incomplete and often unexplained contradictions in the documents themselves. [177] Accordingly, each party will bear their own costs of the Variation Application. "Abrioux J." Appendix A Excerpts from Reasons for Judgment: [178] From the trial reasons: 2012 BCSC 1313: [51] The father is financially well off and is capable of billing up to $10,000 per day as a dentist. He seems to have access to almost unlimited amounts of money as his sister also loans him substantial sums which he puts into his limited company as a shareholders loan and then withdraws tax-free. He only declares an income, however, of slightly under $12,000 per year, declaring significant expenses related to the inventions he is working on. [52] The father is very litigious and uses his considerable resources to this end. Glenna Waters, a lifetime friend of the mother, met the father in August of 2008 while the parties were living at Silver Star. Ms. Waters says that after dinner that night, the father excused himself as he had to work on a court case and he told Ms. Waters that he liked to represent himself in court as it allowed him to keep going in and going in, keeping his opponents in court until they ran out of money and could not continue with the case. He said that he was better than most lawyers and judges liked him because of his vocabulary and his preparedness. Although the father denied making that statement, saying it was ridiculous, I accept the evidence of Ms. Waters. I found her to be credible and sincere. . . . [109] The mother has also made no attempt whatsoever to determine if she can qualify to register as a pharmacist in Saskatchewan or how long such qualification would take. [110] I am satisfied that the primary reason that the mother wishes to move to Saskatchewan is to deny access to the father. There have been three occasions where she denied court ordered access and there are multiple examples of her failing to cooperate with the father with respect to changing access. . . . [142] The father works three days a week, for 10-11 hours per day. The normal work week for a dentist is four days a week, but he says he is unable to work four days because of injuries sustained in a motor vehicle accident which occurred on December 24, 1998. The father and his many witnesses including the mother have noted that he has soreness in his neck and has headaches and rubs his neck when he is tired or has worked long hours. I accept the proposition that medical evidence is not always necessary to prove an injury but when medical evidence is available, there must be a good reason as to why it was not produced. . . . [146] The failure of the father to provide the available medical evidence from the trial leads me to draw the adverse inference that the medical evidence would not have assisted his claim. [147] The father says that in any event there are not sufficient patients to enable him to work four days a week. Sigrid Olynuk, his receptionist, gave evidence that the father has been booking appointments approximately two weeks in advance and the father argues that based on that evidence there is insufficient work on a long-term basis for him to work four days per week. I reject that argument because it seems reasonable to conclude given that the father's practice is restricted to oral surgery that his patients come to him in distress after having already seen their regular dentist. Therefore, because of the nature of the father's practice, it would likely not be unusual that he only books two weeks in advance. [148] Based on all the evidence, I am satisfied that the father has the capacity to work four days a week and his income should be imputed accordingly. . . . [166] The mother has been out of the workforce for five years; she quit work shortly after becoming aware of her pregnancy with [W.] because she was high risk. Although there is no formal agreement that the father would support the mother, I am satisfied that this was an understanding they had as there was no suggestion at any time that the father requested that the mother return to work, save and except for doing some part-time work for his dental practice. [167] The mother requested spousal support be paid until [E.] is in Grade 1 which will be for a period of four years. The position of the father is that the mother should have been working and that there are jobs available. A witness was called on his behalf who testified that there is a part-time position available in the Vernon London Drugs for a pharmacist. [168] It is my opinion that because of the turmoil these children have gone through and the necessary period of adjustment that is going to have to be made to allow both of these families to settle into some normal routine, that to force the mother back to full-time work under these circumstances at an early date would not be in the children's best interests. [169] I am of the view that the mother should be requalifying to practice pharmacy in British Columbia and that within one year from the date of this order, she should have some type of part-time employment that does not interfere with her childcare responsibilities. I am satisfied that spousal support should be reviewed in July of 2016. That will have given the mother ample opportunity to get back on her feet and pursue her profession. [179] From the supplementary trial reasons: 2012 BCSC 1683: [28] The father says that in view of the mother's expenses and lifestyle, spousal support should be $2,000 per month and payment of that sum should commence in March 2013, which would allow the claimant to increase his income in the interim period. I reject that argument. The purpose of imputing income is to ensure that a proper level of support is provided based on the ability of the payor to earn an income. When he chooses not to work up to his capacity, he should not be allowed to defer the application of his proper support level because of his own lifestyle choice of working only three days a week. [29] Considering the lifestyle of the parties, the level of income of the father, and my view that the budget prepared by the mother was for current expenses, and was most likely on the low side, endeavouring to be fair and determine what is reasonable in all these circumstances, I order that child support (based on $279,052 income) from April 15, 2010 to July 1, 2010 will be set at $2,278, and from July 1, 2010 to October 31, 2011 (the year end for the company), at $3,730. I order that the father pay spousal support of $7,000 per month until July 1, 2010, and $5,548 for July 1 to October 31, 2011 [30] With respect to the income from November 1, 2011 to October 31, 2012 totalling $610,000, I order child support of $7,900 per month and spousal support of $9,000 per month. That amount of course is discretionary but it takes into account the income of the father and the fact that the mother must pay tax on the spousal support. [31] Those payments will continue until further order or agreement. [180] From the relocation reasons: 2014 BCSC 1875: [26] At the contempt hearing on April 30, 2014, I made it clear to the claimant that his top priority was his children and their mother and that he was preferring other creditors over his children and their mother. The claimant made an offer of $6,000 per month. That offer was rejected and on May 15, 2014 I made my contempt order. The following day he paid Mrs. Bird's company $30,000 through his limited company and the day after that paid Mrs. Bird's company a further $35,000. [27] When the claimant applied to vary the support order on August 11, 2014, he did not tell the Court that approximately two weeks prior, his company had paid a local law firm $20,000 to represent him in a different lawsuit. [28] I am satisfied that the claimant had the ability to pay child and spousal support and had the ability to pay for We Care and the PC but he chose not to do so. Instead, the claimant preferred his other creditors, mainly Mrs. Bird's company, over the welfare of his children. . . . [49] The respondent has found it difficult to carry on with her life when she is inundated with these types of email. She says that she has been spending 20-40 hours a week trying to deal with emails that the claimant sends and often just ignores the emails and does not respond to them because they are upsetting and time consuming. She claims that one reason why she has not pursued her career in pharmacy is because of the pressure that has been put on her by the claimant not only through the emails but because of his refusing to pay regular child and spousal support. [50] The claimant also issues threats throughout his emails concerning 50/50 parenting by repeating that the "faster we even the playing field the better". The other threat he uses is, "We will go as far as the money will last". That particular threat is consistent with his comments to Mrs. Waters, who gave evidence at the First Trial, (2012 BCSC 1313 at para. 52) that: he liked to represent himself in court as it allowed him to keep going in and going in, keeping his opponents in court until they ran out of money and could not continue with the case. . . . [80] One of the factors that has caused the respondent a great deal of emotional stress is the fact that the claimant has not only failed to pay support, but he has also frequently threatened to close up his dental practice. He threatened to do that in January 2014 which prompted the FMEP to lift part of their freeze order on his assets. He has also threatened to close up his practice when he made his application on August 11, 2014 to vary the child support and again on September 5, 2014, when he applied to have my previous order stayed. It is also a concern for the financial future of the respondent and the children that the claimant has threatened to close up his practice if the children are allowed to move to Saskatchewan. He has made it clear that he will move to Saskatchewan and at present there are no jobs available for him. The claimant has been told by this Court that he should not close up his dental practice until he has received legal advice and that if he does close up his practice he will still be faced with the possibility of a court imputing his income on the basis of his capacity to earn an income. He has also been told that closing up his business would not be in the best interests of his children because it would mean that he could no longer support them financially. . . . [97] I am satisfied that the respondent is applying to move back to Saskatchewan to be with her family because she and the children currently lack financial security due to the fact that claimant has a history of not paying support. I find that the respondent is also partially motivated by her need for her own emotional well-being, which is reasonable in the circumstances. The evidence of Dr. Waterman indicates that the respondent's increased emotional well-being will have a positive impact on the children's development. . . . [132] The claimant has used his financial control to push the respondent into a financial situation where she has had to borrow money in order to survive. He has failed to pay court ordered support, he has failed to pay for the PC and he has failed to pay for We Care. The claimant's conduct has caused the respondent to use up much of her emotional and financial resources and that is detrimental to the children. [133] I am also satisfied that the claimant's conduct of threatening to close up his dental practice, a threat he has made on many occasions, has adversely affected the respondent's emotional and financial well-being. [134] The respondent's family doctor and her psychologist are all of the opinion that the emotional harm suffered by the respondent has been caused by the claimant's conduct. This conduct is emotionally abusive and amounts to intimidation and harassment and I am satisfied that it constitutes family violence. [135] I find that the family violence perpetrated by the claimant is serious and that it has continued over the last two years, and that it is perpetrated by the claimant because of his controlling personality. Although the violence was not directed at the children, they have been indirectly affected because of the effect that family violence has had on their mother. [136] There is no expert evidence that this family violence has negatively impacted the children from a psychological or emotional point of view but it is obvious that it has a negative effect on these children. Allowing the children to move to Saskatchewan will separate them from the source of this family violence. Specifically, the relocation will help the respondent to become employed and to become economically self-sufficient. This relocation will also allow the respondent and the children to live in an environment where they will have a large family support system, and will avoid the frequent disastrous exchanges of the children that currently take place. [181] From the 2016 CA contempt reasons: 2016 BCCA 6: [35] In my view, the order should be set aside and the application for an order finding the appellant in contempt of court should be remitted to the Supreme Court of British Columbia, in the event the Director still seeks its determination. [36] By this conclusion I do not mean that the appellant is excused from compliance. He must comply with the order as varied from time to time, or he will face sanction from the court. [182] From the CA-VLA reasons: 2017 BCCA 216: [10] In June 2015, [the claimant] brought an appeal of the order dealing with the primary residence of the children. This court declined to hear that appeal in the absence of any "convincing explanation" as to why he remained in arrears with respect to support: see 2015 BCCA 268. We noted that in his argument, [the claimant] had "said little or nothing about the interests of his children in arguing that the appeal should proceed." [the claimant] then filed voluminous materials containing new evidence and lengthy arguments that were, we commented, "largely irrelevant to the question of whether the appeal should be reopened." We also observed: On March 21, 2016, the Registrar wrote to [the claimant] and Mr. Kahn directing that any further submissions should be of a summary nature and that although they were permitted to refer to evidence, evidence and affidavits should not be filed unless the Court agreed to reopen the appeal. Undeterred, [the claimant] then filed 58 additional pages of submissions including further evidence and arguments. Mr. Kahn again objected, observing that the submissions represented [the claimant]'s view of the evidence and had nothing to do with the underlying reasons for judgment of this court dated June 11, 2015 dismissing the mobility appeal. He added that without incurring substantial legal fees, he was unable to rebut the new submissions of [the claimant]. We view this situation as very unfortunate. From the material, it appears that [the claimant] is still in arrears (as to a very substantial amount) with respect to spousal support and the payment of certain expenses; yet, having discontinued his appeal of the support order, has not sought any variation of that order in the Supreme Court. This fact (which [the claimant] has not attempted to explain), together with his continued 'stonewalling' of the Court by filing obviously irrelevant material and flouting of the Registrar's directions, lead us to the conclusion that we should not exercise our discretion in favour of reopening the appeal. [At paras. 4-5.] The application was dismissed: 2016 BCCA 159. . . . [15] Mr. Kahn scheduled his client's application under s. 29 of the Court of Appeal Act to be heard in November, but it was adjourned to December 12. On December 8, [the claimant] applied for an adjournment and filed seven binders of material, provided to Mr. Kahn on December 8 at 4:30 p.m. The application was set to be heard the next day but was not. At 9:06 a.m. on December 12, [the respondent] received an email from [the claimant] purporting to serve her with thousands more pages of materials. Meanwhile, in chambers, Mr. Kirkpatrick appeared by telephone as a friend of the Court and told me as chambers judge that [the claimant] had been hospitalized in Vernon and could not appear. I adjourned the vexatious litigant application. Mr. Kahn has since obtained records from the hospital that indicate that [the claimant] left the hospital at 11:10 that morning, "driving self" after having been discharged without any prescriptions or medications. The hearing was re-scheduled for May 1, 2017. [16] On that date, [the claimant] did not address directly his record of misconceived applications and appeals, repeated adjournments, and voluminous and irrelevant filings in both courts. On this occasion, he was preoccupied with his belief that Mr. Justice Cole has committed "fraud" in his dealings with [the claimant]. Mr. Justice Cole is said to have "blocked" several of his applications and "targeted" him, but more importantly, is said to have "fabricated" oral "declarations" made by [the claimant]'s previous lawyer and another so-called "phantom lawyer" in some manner that I must admit is not clear to me. [the claimant] says he has launched complaints about the conduct of Cole J. to the Canadian Judicial Council and to the R.C.M.P., and said he was sure Cole J. would be "indicted". [the claimant] seemed to suggest as well that [the respondent] had "participated" in the "fabrications". [17] As I told [the claimant], until any "fraud" is proven on the part of a judge of the Supreme Court, I assume that the judge is speaking honestly and is not a fraudster. I also advised [the claimant] that if an order were to be made under s. 29, and it later turned out that [the claimant]'s allegations against Cole J. were correct, it is very likely he would obtain the permission of this court to reopen or appeal any orders of the lower court that were affected by such "fraud". [18] In his reply submissions, Mr. Kahn on behalf of [the respondent] admitted that [the respondent] has not always been the model of patience and has sometimes reacted strongly to [the claimant]'s conduct. Mr. Kahn also noted that because Cole J. is a supernumerary judge, his seizing himself of the family litigation has created problems in terms of scheduling applications. Overall, however, Mr. Kahn emphasized the extreme demands put on his client in terms of responding and attending to the constant stream of (misconceived) applications, the legal fees associated therewith, and the stress of attacks on her status as the primary caregiver to her children, not to mention financial pressure due to [the claimant]'s continued failure to pay his support obligations. I accept that [the respondent]'s feeling of stress is certainly justified by [the claimant]'s conduct, and I expect that the children also feel strain as well. (Emphasis added) . . . [22] While in this case the majority of vexatious conduct on [the claimant]'s part has taken place in the Supreme Court of British Columbia, there are two factors that amplify the seriousness of his conduct in this court - the extreme pressure that it has put on [the respondent] and the children; and the fact that [the claimant] insists on filing (usually very shortly before the relevant hearing) volumes - literally hundreds if not thousands of pages - of materials with every application, no matter how insignificant. Virtually every affidavit has attached to it other affidavits and their exhibits, with the result that any substantive issues he might raise or response he might make, are simply lost in a sea of paper. No judge can digest such a stream of irrelevancies on a regular basis; and few litigants could afford to pay counsel to review such materials carefully. Certainly [the respondent] cannot. [23] It is these factors, together with his filings in this court, that lead me to conclude that [the claimant] has been using the judicial process in a manner calculated to divert attention from the real issues outstanding between the parties - his annual income, the amount of support he should pay, and his rights and obligations as a parent. Even [the claimant] admits that he is "tired" as a result of the litigation, and there are more than a few judges who feel the same. [183] From the SC-VLA reasons: 2017 BCSC 1249: [28] It bears remembering that in the 2012 trial judgment, while unsuccessful in persuading the trial judge that his income for support purposes was significantly lower than that claimed by [the respondent], [the claimant] was successful in preventing the proposed relocation to Saskatchewan. [29] It was only following the 2014 summary trial that [the respondent] was able to move with the children to Saskatchewan. [30] I accept [the respondent]'s submission that the record establishes that since November 2014, when the relocation reasons were rendered by the trial judge, [the claimant] has essentially developed a "scorched earth" approach to the litigation. [31] And it is clear to me that no one, not the parties, the children, relatives, opposing counsel, nor this court, including the trial judge, has escaped being embroiled in this largely one sided barrage. [32] The impact of [the claimant]'s conduct on the children has been commented on by Francis Stewart, a child psychologist, who had seen them since November 2014. In his report of October 10, 2016 he states at pages 45 and 46: (a) The high conflict dispute between [the claimant] and [the respondent] has been ongoing for almost seven years' post-divorce. (b) ...[M]uch of the dispute has been fueled (sic) by the numerous Court Applications and Appeals filed by [the claimant]. (c) The most important reason for working out their contentious relationship is that their high level of conflict has far-reaching negative effects on their children. (d) If the above task proves to be too formidable for the parents, I recommend that the Court give consideration to [the respondent] having sole decision-making capacity for all matters that affect the direct care and upbringing of W. and E. . (e) As a means of further reducing conflict between the parents, the Court prohibit any Court Applications that are seen as vexatious, frivolous, or irrelevant. [33] For her part, [the respondent] has deposed to the significant negative impact which [the claimant]'s conduct has had on her life. Her counsel does concede that [the respondent]'s conduct has not always been free from criticism, a fact that was referred to in the CA-VLA reasons at para. 18, which is cited at paragraph 11 above. [34] Not surprisingly [the claimant]'s conduct in the litigation has also had a negative effect on his own health, with his family physician Dr. Pritchard diagnosing him with severe anxiety and severe depression in the fall of 2016. This has also been commented on by Dr. Carey, a psychiatrist, in his report of December 12, 2016. [35] [The claimant] has also advised me on more than one occasion of his being under significant stress and being "burned out" by the litigation. (Emphasis added) [184] From the February 2018 contempt reasons, 2018 BCSC 183: [8] In addition to the Appendix, there are certain other matters that occurred in 2017 which provide context for the filing of the contempt application on October 27, 2017, and what occurred thereafter. [9] On March 6, 2017, the parties appeared in the Court of Appeal before Madam Justice Smith on [the claimant]'s application pertaining to disclosure of various documents. Justice Smith was a member of the division that heard the appeal from the 2014 contempt order, which resulted in Justice Saunders' reasons for judgment indexed at 2016 BCCA 6 referred to elsewhere in these reasons. [10] During that application, [the claimant] indicated that "the number one thing is I have to be able to vary my income". Justice Smith then stated: That is your pathway to dealing with this. So you know, your pathway is to, first of all, apply for a recusal, and I suspect it would be granted; and secondly, to apply to vary, because your income is not at $600,000 I think the very first thing that needs to happen is a recusal application, I think it is best done by an application with a letter from Mr. Kahn saying that he takes no position. I think that is all you need to do [the claimant] .I don't think there is any way this litigation can move forward in these circumstances. So that first needs to be done. The second thing that needs to be done, [the claimant]--and we did tell you this in November [2015] and you've given me your reason for not having done it--is the application to vary. I think you have an arguable case there that your income level was--that the finding that your income level was in error and it seemed closer to half that amount, at least it did to a division of our court, and that would assist you, give you some relief. But right now I feel that you're spinning your wheels [11] Mr. Kahn then received instructions that [the respondent] would take no position on [the claimant]'s recusal application, a position that was repeated by her counsel on this application. [12] I am advised the trial judge was informed that [the respondent] would not be taking a position on [the claimant]'s recusal application. [185] From the June 2018 contempt reasons: 2018 BCSC 1086: [79] In considering whether A.N.H. is in contempt of court for his conduct in relation to the May 9, 2018 notice of application and the May 23, 2018 Relocation Leave application, I take into account what Justice Newbury stated in the CA-VLA to which I referred at para. 53 of the SC-VLA reasons being: [53] It is these factors, together with his filings in this court, that lead me to conclude that A.N.H. has been using the judicial process in a manner calculated to divert attention from the real issues outstanding between the parties - his annual income, the amount of support he should pay, and his rights and obligations as a parent. [80] And at para. 49 of the SC-VLA reasons, I noted: [49] A.N.H. also submits that any negative effects of his conduct can be appropriately dealt with through proactive and effective case management. While this may be superficially attractive, I have decided that in these circumstances, case management alone will be insufficient moving forward. [81] I conclude that A.N.H.'s conduct which resulted in the court bringing its own motion was in contempt of court. [82] I am mindful that a finding of contempt is to be made sparingly and is a sanction of last resort. But the point has come where the court has no other option but to sanction this vexatious litigant who is now acting essentially in open defiance of the court. [83] In reaching my conclusions I have considered A.N.H.'s conduct after May 1, 2018, and, in particular, May 9 and May 23, 2018, within the following context. Since the February 2018 Reasons, the JMC and the memorandum of March 22, 2018, I have no doubt that A.N.H. knew that the Variation application was to proceed before any Relocation application. A.N.H. was also well aware, as the JMC transcript indicates, that the process in relation to the Variation application was to proceed in stages. In fact, A.N.H. indicated at the JMC that he agreed with the simplified process outlined by the court at that time to move the application forward. He also expressed concern that the application could not proceed in May 2018. [84] Rather than follow the court's orders, which were focused on facilitating a Variation application, in particular A.N.H.'s income and expenses and how this was materially different from the $610,000 found by the trial judge, A.N.H. then proceeded in a manner indicative of his intent to re-litigate under the guise of a Variation application the perceived injustices which he believes he has been subject to by the trial judge and others over the years. [85] While there were certain indications at the JMC that A.N.H. was prepared to conduct himself in a manner that would assist the Variation application in proceeding properly, his conduct since, in particular on May 9, 2018, and May 23, 2018, has demonstrated that, in fact, the opposite is now the case. [86] I am satisfied beyond a reasonable doubt, that is, I am certain that A.N.H. has no intention of conducting himself within the context of "proactive and effective case management". Rather, his conduct is deliberately designed to challenge the authority of the court and its process, and to prevent justice from being properly administered in this proceeding; in particular at this stage, the Variation application. [87] My reasons include the following. [88] I indicated to A.N.H. on May 1, 2018, that I had considerable difficulty with his explanation for having not complied with the JMC orders. Notwithstanding those concerns, I essentially provided him with the opportunity to cure his non-compliance. [89] In my view, the record is to the effect that the court is attempting to have the Variation application proceed in an orderly way which, when it is heard, may go a long way to address A.N.H.'s financial concerns including arrears, CRA, FMEP and the like. But A.N.H.'s conduct in refusing to follow the court's orders and directions are a deliberate attempt to thwart the process in order to re-litigate his dissatisfaction with the actions of the trial judge and the Director of FMEP.