N.M.F. v. H.B.F.

2023 BCSC 1936 N.M.F. v. H.B.F.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: N.M.F. v. H.B.F., 2023 BCSC 1936 Date: 20231106 Docket: E200111 Registry: Vancouver Between: N.M.F. Claimant And H.B.F. Respondent Before: The Honourable Justice E. McDonald Reasons for Judgment Counsel for the Claimant: T.K. Wolf H.B.F., appearing in person: H.B.F. Place and Date of Trial/Hearing: Vancouver, B.C. July 27 and September 28, 2023 Place and Date of Judgment: Vancouver, B.C. November 6, 2023 Table of Contents Introduction.. 3 Background.. 3 The Relief Sought.. 4 Declaration Regarding Arrears.. 5 Life Insurance.. 7 Documents Issue.. 8 Costs.. 11 Introduction [1] This application is the latest attempt by the claimant to enforce her entitlement to receive interim child and spousal support from the respondent. [2] The respondent agrees that he has not paid all of the interim support, but says that is because his income is much less than was contemplated in the interim support order and because he has been off work for a couple of years due to a serious medical issue. [3] The claimant seeks, among other things, declarations regarding the respondent's breach of the interim support order and stating the current arrears balance for child and spousal support. Background [4] The basic background facts concerning the parties' relationship is described by Justice Edelmann in reasons indexed at N.M.F. v. H.B.F., 2021 BCSC 221

at paras. 2-8 as well as in my reasons for the September 24, 2021 interim support order which are indexed at 2021 BCSC 1869 at paras. 2-12. I will not repeat those background facts here. [5] As indicated above, on September 24, 2021, I ordered the respondent, among other things, to pay the claimant interim child and spousal support (the "Interim Support Order"). Since that time, the support has not paid the claimant the interim support as required. As well, the claimant is concerned that the respondent has failed to produce documents as required by the Supreme Court Family Rules, B.C. Reg. 169/2009 [Rules]. [6] Recently, the respondent and his new family have apparently moved from Vancouver to live in Sweden. However, the respondent continues to own and operate a business in British Columbia which is the subject of the family law proceeding. [7] On February 17, 2023, the claimant filed a notice of application seeking various orders, including, enforcing the payment of interim child and spousal support. The application came on for hearing on July 27, 2023. While some relief related to life insurance was consented to, the application was adjourned with leave to reset it. [8] The application was reset for hearing on September 28, 2023, together with an application filed by the respondent on September 13, 2023 seeking variation of the Interim Support Order (the "Variation

Application"). As the respondent failed to serve the material for the Variation Application on the claimant in accordance with the Rules, it was adjourned generally. [9] Meanwhile, the hearing of the claimant's application proceeded and these reasons relate to the relief sought in the claimant's February 17, 2023 notice of application. The Relief Sought [10] From her February 17, 2023 notice of application, the claimant sought the following relief at the hearing on September 28, 2023: a) A declaration and finding that the respondent has breached the Interim Support Order by failing to pay support, with the current amount of support arrears being $123,075, and an order that the respondent pay the arrears forthwith. b) Pursuant to s. 222 of the Family Law Act, an order that the respondent forthwith, and then on the first day of every second calendar month thereafter, deliver to the claimant written proof that the respondent has maintained his life insurance policy as required by the terms of the order made September 24, 2021. c) Special costs. Declaration Regarding Arrears [11] The claimant's evidence is that as of October 1, 2023, the arrears of support owing to her by the respondent is $123,075. Included in the claimant's evidence are details about the financial and emotional stress on the claimant and the parties' children due to the non-payment of support. [12] In the

claimant's affidavit #10 made on September 22, 2023, she describes that the financial situation for her and the parties' four children has become dire. She states that she is expending considerable sums on legal fees in her efforts to enforce the respondent's obligation to pay child and spousal support. She also states that she is reliant on loans and family assistance to cover living expenses for herself and the parties' children. [13] The claimant's evidence indicates that while receiving no support from the respondent for over one year, she has solely paid expenses for the parties' children who are attending university. The children have taken out student loans, but the claimant is still having to cover some of their expenses. [14] In the respondent's application response, there is no dispute that he has not paid the claimant all of the support that he was ordered to pay. The respondent sets out a number of reasons for his non-payment of support, including that his annual income is less than the amount determined in the Interim Support Order. The respondent also submits that his failure to pay support is due to a mid-2022 diagnosis of cancer which led him to temporarily cease working and move back to Sweden for medical treatment. [15] The respondent's evidence is that when he stopped working, his new partner began financially supporting the family while he looked after their

two infant children. There is no information as to how his new partner supports the family financially and whether her income is from corporations, or assets derived from corporations, claimed as family assets in these proceedings. The claimant suspects that the respondent is arranging his affairs to avoid holding assets in his name, including by having his new partner hold corporate assets and operate corporations that are claimed as family assets in these proceedings. [16] When previously ordered to pay arrears of support, the respondent paid the claimant arrears of $124,300 in July 2023. The respondent submits that he funded that payment of arrears by cashing out investments and exhausting his financial resources. The respondent submits it is impossible to pay anything additional towards arrears because he only recently started working again at his usual annual salary of $120,000 through the laboratory company he operates in British Columbia. [17] Since the respondent returned to work, he has paid some support to the claimant in September 2023. However, as already mentioned, he submits his annual income is insufficient for him to be able to pay the claimant the full amount of interim support. [18] While I appreciate that the respondent disagrees that the Interim Support Order accurately reflects his income and he disputes the support calculation, there is no evidence from

the respondent establishing that his support obligations have been met at this point. In other words, this is not a situation where the respondent submits that the calculation of support arrears is incorrect based on, for example, the claimant not giving him credit for support paid. [19] Rather, the respondent's overarching position is that the Interim Support Order should be varied because his income was, and is, lower than the amount determined. In short, the respondent submits that the support payable to the claimant ought to be drastically reduced or eliminated altogether. I have already described the circumstances that led to the respondent's Variation Application not proceeding. [20] As there is no dispute that interim support has not been paid, I declare and find that the respondent has not complied with the Interim Support Order by failing to pay the monthly child and spousal support up to October 1, 2023, in the amount of $118,795, and failing to pay a $5,000 fine that was automatically imposed for failing to pay the arrears previously declared. For clarity, the total declaration of arrears is $123,795 as of October 1, 2023. This amount credits the respondent for the September 2023 support he paid to the claimant in the amount of $4,000. [21] I further order that the respondent pay the claimant $123,795 within 30 days of the date of this order, unless the parties agree

to a different date or payment arrangement, or the court otherwise orders. Life Insurance [22] On April 24, 2021, I ordered the respondent to reinstate the claimant as a beneficiary on his Doctors of BC Group Life insurance policy with $4,000,000 coverage with an exclusive entitlement for the claimant to $1,000,000 of any death benefit payable and to maintain the policy in good standing. [23] On July 27, 2023, the parties consented to an order that the respondent supply the claimant with an authorization for her to obtain information regarding the life insurance to confirm it is being maintained pursuant to the terms of the Interim Support Order. [24] In her affidavit made September 22, 2023, the claimant attaches the document that the respondent supplied to her. That document is a July 30, 2023 email from the respondent to the insurer. It states that the respondent provides his consent to the insurer disclosing information to the claimant regarding her "beneficiary status on the above insurance", including the history of her beneficiary status, her current status and the percentage/amount allocated to her. [25] The claimant's concern described in her affidavit is that she cannot tell from the email whether the respondent has named irrevocable beneficiaries or the identity of the person who is named as the trustee for their daughters' share. The claimant states that she lacks

permission from the respondent to see the full insurance details. [26] The claimant's counsel submits that the authorization provided by the respondent must be expanded to include access to other information, such as whether the parties' children are beneficiaries, for what amount, and who the trustee(s) are. The claimant's counsel states that such information is important to concerns about securing the unpaid child support. [27] Unfortunately, the claimant does not specify whether she attempted to use the respondent's authorization to obtain information and if so, what information was she able to obtain. It is important to note that the Interim Support Order requires the respondent to reinstate the claimant as a beneficiary with entitlement to $1,000,000 of the proceeds. It further requires the respondent to provide the claimant with an authorization to contact the insurer to confirm whether the order had been complied with. [28] There is no order requiring the respondent to include the parties' children as beneficiaries. However, at the hearing, the respondent did submit that he has named one of the parties' children, namely, their youngest child, as a beneficiary. [29] While the claimant raises concerns about the respondent's insurance coverage, these concerns are different from what was addressed and ordered on April 24, 2021 and July 27, 2023. There is no application

before me to require the respondent to reinstate or maintain certain insurance coverage for the parties' children as security for unpaid child support or otherwise. [30] In my view, the respondent has complied with the Interim Support Order and the July 27, 2023 consent order that required him to supply an authorization for the claimant to access certain information held by his insurer. Documents Issue [31] During submissions, each party alleged that the other party has failed to produce documents as required by the Rules. [32] There is evidence in the record concerning the respondent's requests for documents made to the claimant. For example, in Ms. Peralta's affidavit #1 made September 21, 2022, the respondent's April 15, 2023 request for documents is attached as an exhibit. [33] On May 24, 2023, the claimant's counsel emailed the respondent a link to the documents that the respondent requested. The claimant also served the claimant's second supplemental list of documents on the respondent. [34] The claimant is concerned that despite making numerous demands, the respondent has not provided information, including highly relevant information concerning the respondent's current income and the corporations that are at issue in this family law proceeding. [35] As a result, the claimant submits that I ought to order that the respondent's Variation Application may not be set for

hearing, unless: a) the respondent provides a response to the claimant's demand for documents in accordance with the Rules; b) 60 days have elapsed from the date when the respondent provides the claimant with an updated list of documents, copies of any documents, and his responses to the outstanding respondent examination for discovery requests; and c) a joint guideline income report has been prepared. [36] The claimant submits that all of this information will be necessary in order for the Variation Application to be heard and determined. [37] I agree with the claimant that lack of proper disclosure tends to have a corrosive effect on the timely and fair adjudication of family law disputes. In Michel v. Graydon, 2020 SCC 24 at para. 96, the Supreme Court of Canada notes that in particular, women can face certain disadvantages, including financial, which can make them badly placed to evaluate their ex-partner's financial situation. [38] In Colucci v. Colucci, 2021 SCC 24 at para. 49, the Supreme Court of Canada notes the child support system, which includes applications to vary, depends on adequate, accurate and timely financial disclosures by the payor. The court also recognizes that the system in the Federal Child Support Guidelines creates an "informational asymmetry" between the parties because it is the payor who knows and controls the information needed to accurately

calculate support. [39] In my view, the claimant is rightly concerned about the respondent's lack of response to her demands for documents and for responses to his outstanding discovery requests. While some documents are attached to the respondent's recent affidavits, there is no evidence in the record to indicate that the respondent has supplied the information and documents sought by the claimant. [40] The respondent submits that he has met his production obligation, including when his former counsel provided a list of documents in 2021. However, it seems unlikely that a list produced in 2021 would include his current financial information. This issue might turn out to be an obstacle for any application, including an application to vary the Interim Support Order. [41] At present, there is no application to require the respondent to produce documents, to respond to outstanding examination for discovery requests, or, to require the preparation of a joint guideline income report. For the reasons already explained, I determined that the respondent's Variation Application would not be heard with the claimant's February 17, 2023 application. [42] While I understand the claimant's frustration over the respondent's lack of response to her document demands, I am not prepared to prohibit the respondent from setting his Variation Application down for hearing until he fulfill the

conditions suggested by the claimant's counsel. Both parties are required to comply with the Rules, including in respect of document production. If they fail to do so, that is a factor the court may take that into account when adjudicating the claim or any application. [43] I leave it to the chambers judge hearing the Variation Application to decide the impact, if any, of document disclosure issues. To be clear, I am not seized in respect of the Variation Application, or any future applications in this proceeding, even if the application involves enforcement of the Interim Support Order. Costs [44] The claimant seeks special costs of the application payable forthwith in any event of the cause. [45] The claimant submits that she has been required to bring multiple applications to enforce compliance with the Interim Support Order all while facing long periods without receiving any support from the respondent. The claimant's evidence is that the respondent has told their youngest child that he is moving from Vancouver to Sweden to avoid having to pay the claimant support. [46] During submissions, the respondent has pointed out that there are reasons to close the British Columbia laboratory business and move its operation elsewhere because that would be more lucrative. The respondent's submissions were also to the effect that if he does not succeed in lowering his support

obligations and if he is ordered to pay the support arrears, he will not participate in these proceedings any further. He submitted he might give up his Canadian citizenship and have nothing further to pay. [47] The respondent also pointed out during submissions that his support obligation under the Interim Support Order cannot be enforced against him in Sweden because the law is different there. He submitted that it would be much better if a "reasonable" amount of support could be agreed to. [48] I agree with counsel for the claimant that the respondent's submissions responding to the claimant's application include a threatening element. That is, if things do not go his way, the respondent is signalling that he will put himself and his assets beyond the reach of the claimant and the court. [49] In my view, this represents the kind of reprehensible conduct in the litigation that is deserving of rebuke and which requires the court to disassociate itself from the conduct. I say this because, for example, the response to the application included submitting that the respondent's move to Sweden made enforcement of the Interim Support Order effectively impossible. [50] I therefore, grant the claimant's request for special costs in any event of the cause, to be assessed, for the July 27 and September 28, 2023 hearings of the claimant's February 17, 2023 application. The assessment of special costs shall include the assessment itself, on a special costs basis. Once assessed, the special costs shall be payable by the respondent within fourteen days. "E. McDonald J."