The Canadian Abridgment eDigests - Family Law - Western · 2020-06-08 · The Canadian Abridgment...

The Canadian Abridgment eDigests -- Family Law - Western

2020-23June 08, 2020

FAM.VII.2.c

Subject Title: Family law

Classification Number: VII.2.c

Division of property -- Determination of ownership of property -- Miscellaneous

Pets -- During their cohabitation, parties purchased two dogs -- Defendant paid for dogs, as he had higherincome and paid for most expenses -- Claimant did most of care for dog as defendant worked while she stayedhome -- After parties separated, claimant and dogs stayed in parties’ residence and when defendant foundsuitable living arrangement, he asked to have dogs half-time -- Parties began exchanging dogs but claimant keptdogs for more than half time, so defendant refused to return dogs after last exchange -- Claimant brought actionfor return of two dogs and reimbursement for monies spent on vet bills, toys, licensing and food -- Defendantbrought counterclaim for custody of dogs and reimbursement for training expenses -- Claim and counterclaimallowed in part -- Each party was to keep one dog and all its possessions -- While defendant contributed morefinancially to acquisition of dogs and claimant cared for them more because she was home, parties acquireddogs by agreement, treated them as part of family and presented themselves as joint owners -- There was nocredible evidence that either party was unable to care for dogs -- Monetary aspects of claim and counterclaimwere dismissed.

Almaas v. Wheeler (2020), 2020 BCPC 51, 2020 CarswellBC 784, S.D. Frame Prov. J. (B.C. Prov. Ct.) [British Columbia]

FAM.VII.3.b


Classification Number: VII.3.b

Division of property -- Excluded assets -- Assets brought into marriage

Parties had two children and separated in 2015 after 12 years of marriage -- Wife was born in Russia, husbandwas born in Canada, and parties moved to Canada in 2003 -- Parties initially lived together at residence ownedby husband and his parents, and later moved into family home -- Family home, purchased in 2007, was placedinto parties’ joint names -- Husband was director of sales and business development with technology company-- Wife had law degree from Russia, and from November 2013 to present she taught yoga and Pilates at variousstudios -- Since October 2019, she had also worked part-time for meal delivery service and cleaning houses --Parties consented to final order addressing parenting issues -- Issues at trial included disposition of family homeat time of parties’ separation -- Wife claimed that house was family asset and sought equal division of proceedsof its sale in 2018, while husband claimed that significant portion of proceeds consisted of his excludedproperty -- Husband’s excluded property, whatever its value, became family property with registration of title tofamily home in joint names -- Both parties were to receive equal share of net proceeds of sale of family home --

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The Canadian Abridgment eDigests - Family Law - Western

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Only reasonable inference to be drawn from evidence as whole was that husband intended to gift his excludedproperty to wife in buying family home -- Parties were joint borrowers on first and second mortgages onproperty and mortgage payments were made out of parties’ joint bank accounts that contained their pooledincomes -- While there was dispute over extent of wife’s contribution to construction of family home, it wasclearly family undertaking -- At time of construction, parties had two young children and viewed property astheir long-term family home -- In face of parties’ growing financial interdependence over time, husband madeno attempt to keep his excluded property separate and took no steps before, during or after purchase of familyhome to formalize or document his intention to retain ownership of his excluded property.

Small v. Small (2020), 2020 CarswellBC 1159, 2020 BCSC 707, Horsman J. (B.C. S.C.) [British Columbia]

FAM.VII.3.d.i


Classification Number: VII.3.d.i

Division of property -- Excluded assets -- Business and employment assets -- Shares in private corporations

In 2017, parties began cohabitating when respondent moved into petitioner’s home on acreage -- At time,petitioner sold business to pursue other opportunities, and respondent supported transition -- Parties purchasedparcel of farmland using proceeds of respondent’s condominium sale -- Petitioner sold acreage, invested netproceeds of sale into new property and began construction of home on that property -- Construction of homewas joint effort and parties lived in camper purchased by respondent during that time -- In 2010, parties marriedand in 2013, respondent moved out of family home -- Parties brought application for distribution of property --Application granted -- Equalization payment by petitioner to respondent in sum of $223,149 was ordered --Family Property Act directed court to distribute on equal basis unless it would be unfair and inequitable to do sohaving regard to one or more factors enumerated in s. 21(2) of Act -- Date of application should be utilized forall personal debt and date value for indebtedness secured against family home -- Value of petitioner’s shares ondate of application were family property and value of those shares in July 2009 was relevant to any exemptionclaim -- Assets and debts of corporation informed determination of share value but were not, individually,property interests of husband -- Corporate indebtedness had been accounted for in valuation of husband’s sharesand parties agreed that their personal liabilities should be subtracted from value of their family property forpurposes of determining equalization amount payable.

Link v. Laturnus (2020), 2020 SKQB 115, 2020 CarswellSask 237, 53 C.C.P.B. (2nd) 163, G.V. Goebel J.(Sask. Q.B.) [Saskatchewan]

FAM.VII.6.j


Classification Number: VII.6.j

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Division of property -- Equal or unequal division -- Miscellaneous

Mother and father of three children separated after four years of marriage -- Mother operated company,providing occupational testing and safety training to oil field workers -- Mother was partially successful inapplying for relief including division of family property and child support; father successfully applied forunequal division of property and relief from order imposing weekly fine until his disclosure obligations weresatisfied -- Trial judge found that during short marriage, both parents worked outside home full time except forparental leaves and both contributed equally to welfare of family -- Father’s contributions to acquisition,conservation and improvement of matrimonial home, including mortgage payments, down payments, and costsof preparing property for mobile home, were materially disproportionate to mother’s contribution -- Fathercontributed directly and indirectly to both purchase and growth of mother’s company, as most purchasepayments were made during marriage when father was paying disproportionate share of matrimonial homeexpenses -- Mother appealed -- Appeal allowed -- Trial judge committed errors of law and fact in arriving atdecision to divide matrimonial property unequally, because trial judge did not have unfettered discretion todivide matrimonial property in manner she considered to be just and equitable -- Evidence demonstrated thatfather’s income was higher, and he admitted that in addition to paying for utilities, groceries, and day to dayexpenses, mother occasionally assisted with mortgage even after separation -- Trial judge engaged in type ofmicroscopic analysis of respective roles each party played during relationship that was warned against -- It waserror to make unequal distribution of matrimonial property based on reasons that included that one party paidmore of mortgage costs although other party paid other household expenses or on basis one party earned morethan other -- It was ordered that father would make equalization payment to mother in amount of $76,856.57.

MAK v. TJK (2020), 2020 ABCA 196, 2020 CarswellAlta 909, Kevin Feehan J.A., Michelle Crighton J.A.,Myra Bielby J.A. (Alta. C.A.); varying (2019), 1 Alta. L.R. (7th) 293, 2019 CarswellAlta 1480, 2019 ABQB 547, Susan L. Bercov J. (Alta. Q.B.) [Alberta]

FAM.VII.6.j


Classification Number: VII.6.j

Division of property -- Equal or unequal division -- Miscellaneous

Parties had two children and separated in 2015 after 12 years of marriage -- Wife was born in Russia, husbandwas born in Canada, and parties moved to Canada in 2003 -- Parties initially lived together at residence ownedby husband and his parents, and later moved into family home -- Family home, purchased in 2007, was placedinto parties’ joint names -- Husband was director of sales and business development with technology company-- Wife had law degree from Russia, and from November 2013 to present she taught yoga and Pilates at variousstudios -- Since October 2019, she had also worked part-time for meal delivery service and cleaning houses --Parties consented to final order addressing parenting issues -- Issues at trial included disposition of family homeat time of parties’ separation -- Wife claimed that house was family asset and sought equal division of proceedsof its sale in 2018, while husband claimed that significant portion of proceeds consisted of his excludedproperty -- House was family asset and equal division did not result in significant unfairness to husband -- Bothparties were to receive equal share of net proceeds of sale of family home -- Given length of parties’ marriage,sacrifices that wife made in coming to Canada and assuming responsibility for child care, parties’ financialinterdependence during marriage and after separation, and both parties’ contributions to construction and

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financing of family home, equal division did not result in significant unfairness to husband -- Although husbandbore disproportionate financial burden in post-separation period in effectively financing two family homes, thiswas offset by finding that parties’ post-separation expenses were largely financed by way of shareholder loansand by order for equal division of those loans.


FAM.VII.7.b.i


Classification Number: VII.7.b.i

Division of property -- Order for division -- Types of orders -- Equalization order

Parties married in 2005 and separated in November 2015 -- Parties were parents of 14-year-old child --Following separation, parties’ daughter lived on week-on/week-off basis with each parent -- In April 2017,father moved to be closer to work -- Since that time, child lived with mother on weekdays and with father onweekends -- Father was employed by large mining corporation and mother operated small cleaning business --Mother obtained interim order in February 2017 requiring father to pay child support of $902 per month andspousal support of $3,229 per month -- Parties had more debt than assets -- Father brought summary trialapplication for division of property, and determination of child and spousal support -- Application granted --Husband owned boat with value of $10,000 and wife had savings account of $5,141 -- To equalize value ofthose family properties, husband should pay wife amount of $2,429 -- Wife should pay husband amount of$31,947 to equalize family debt -- Prior to consideration of support arrears, wife owed husband equalizationpayment of $28,438.

Natola v. Armstrong (2020), 2020 CarswellBC 987, 2020 BCSC 588, Funt J. (B.C. S.C.) [British Columbia]

FAM.VII.7.b.ii


Classification Number: VII.7.b.ii

Division of property -- Order for division -- Types of orders -- Order regarding pensions

In 2017, parties began cohabitating when respondent moved into petitioner’s home on acreage -- At time,petitioner sold business to pursue other opportunities, and respondent supported transition -- Parties purchasedparcel of farmland using proceeds of respondent’s condominium sale -- Petitioner sold acreage, invested netproceeds of sale into new property and began construction of new home on property, in which parties lived incamper purchased by respondent -- Construction of home was joint effort -- In 2010, parties married and in2013, respondent moved out of family home -- Parties brought application for distribution of property --Application granted -- Parties could request that pension benefits accumulated between July 2009 and date ofapplication be divided in specie by providing confirmation to wife and her pension administrator within 60 daysof date of this judgment -- Alternatively, petitioner may reduce equalization payment payable to wife bysubtracting sum of $17,556 from amount owed representing his share of wife’s pension pursuant to latter

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calculation discounted for tax at rate of 25 percent.

Link v. Laturnus (2020), 2020 SKQB 115, 2020 CarswellSask 237, 53 C.C.P.B. (2nd) 163, G.V. Goebel J.(Sask. Q.B.) [Saskatchewan]

FAM.VII.7.b.ii


Classification Number: VII.7.b.ii

Division of property -- Order for division -- Types of orders -- Order regarding pensions

Parties had two children -- Husband applied for relief, including dividing Canada Pension Plan (CPP) equallyfrom date of separation to date of divorce -- Application granted in part -- CPP credits of parties should bedivided equally -- Nothing rose to level of substantial unfairness that would justify unequal division as set outin s. 95 of Family Law Act.

R.A. v. W.A. (2020), 2020 CarswellBC 992, 2020 BCSC 584, Forth J. (B.C. S.C.) [British Columbia]

FAM.VII.7.g


Classification Number: VII.7.g

Division of property -- Order for division -- Miscellaneous

Parties lived together for almost four years before they married, but date of separation was disputed -- Partieshad children from prior relationships who lived with them -- Husband had existing plumbing business, and wifeworked with him in that business -- During relationship parties acquired property that was registered in theirjoint names -- Property was sold by court order in foreclosure proceedings, and sale proceeds were paid intocourt -- Husband was ordered to pay interim child and spousal support -- Wife’s child was now living with herbiological father, and parties agreed that child support should be terminated -- Husband applied for relief,including division of property -- Application granted in part -- There was no evidence that showed thathusband’s company had any substantial value at time of separation -- Only property to be divided was moneyfrom sale of property -- There were two sums paid from sale proceeds for which there was little evidence, and itwas not clear whose debts they were or when they arose -- Husband assumed that any remaining money shouldbe divided equally -- Wife’s claim for reapportionment, which she based on greater need for self-sufficiency,appeared to have substance given her minimal income and her disability -- There would have to be some furtherevidence and submissions on those issues.

P.J.L. v. C.A.L. (2020), 2020 CarswellBC 962, 2020 BCSC 563, Blok J. (B.C. S.C.) [British Columbia]

FAM.VII.12

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Classification Number: VII.12

Division of property -- Miscellaneous

Divorcing parties owned residential rental property -- Under 2018 consent order, parties agreed that husbandwould have option of purchasing wife’s interest in this property and he had until specified date to arrangefinancing to have her name removed from mortgage registered against property -- As part of order, wife agreedto move from marital home, to give possession of it to husband and to sign homestead release releasing herinterest in that property, which she did -- Husband paid wife for her interest in rental property but did not haveher name removed from mortgage and did not list property for sale, and because of her continuing liability forthis mortgage, wife was required to pay higher down payment to obtain her own mortgage for home for herselfand children -- Husband was found in contempt for not complying with consent order and property was orderedto be sold, with wife having carriage of sale -- Husband’s signature was required on transfer documentsrequired to complete sale and husband refused to cooperate to complete sale -- Husband appealed order for sale,did not perfect appeal, and received one extension but was denied further extension -- Husband appliedunsuccessfully for stay of order for sale pending appeal -- Husband appealed dismissal of his motion for staypending appeal of order made by motion judge directing sale of rental property and appealed dismissal of hismotion to extend time to file appeal materials -- Appeals dismissed -- Husband did not point to any errors madeby chambers judge -- Husband provided no evidence for assertion that sale price was unfair to him -- There wasno error in finding that husband did not have arguable grounds of appeal regarding motion to extend time toperfect appeal.

Usman v. Usman (2020), 2020 MBCA 54, 2020 CarswellMan 215, Christopher J. Mainella J.A., Holly C.Beard J.A., Jennifer A. Pfuetzner J.A. (Man. C.A.) [Manitoba]

FAM.VIII.1.a.ii.A


Classification Number: VIII.1.a.ii.A

Support -- Issues common to child and spousal support -- Determination of income -- Imputed income --Deliberate unemployment or under-employment

Parties had two children and separated in 2015 after 12 years of marriage -- Wife was born in Russia, husbandwas born in Canada, and parties married in Japan where husband was living before moving to Canada in 2003and living in home owned by husband and his parents -- Wife had law degree from Russia, and from November2013 to present she taught yoga and Pilates at various studios -- Since October 2019, she had also workedpart-time for meal delivery service and cleaning houses -- Husband had incorporated management consultingcompany in 2009 and wife became shareholder of company in 2014 -- Starting in 2010, husband took onemployment with series of companies through consulting company -- Between 2012 and 2018, husband,through his company, worked for three companies in marine energy sector -- Husband claimed to have beenpaid by his company through shareholder loans and occasionally through dividends and salary cheque --Husband did not work at all between April 2018 and November 2019, and, as of late 2019, he was director ofsales and business development with annual salary of $80,000 and potential for bonus -- Parties consented tofinal order addressing all parenting issues -- Issue for determination was finding of husband’s income for

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pre-trial period from November 2018 to January 2020 -- As of November 2018, husband had capacity to earnincome of $100,000 -- Although husband did make attempts to find employment after April 2018, he did not actwith diligence in pursuing either employment or business opportunities -- Someone with husband’s level ofeducation, business skills and employment history was able to earn more than $40,000 during this time --Injuries suffered by husband in accident did not significantly impact his ability to work in pre-trial period andother stressors in his life at time did not provide valid excuse for unemployment or under-employment.


FAM.VIII.1.a.ii.F


Classification Number: VIII.1.a.ii.F

Support -- Issues common to child and spousal support -- Determination of income -- Imputed income -- Miscellaneous

Parties married in 1993, had four children, separated in 2007 and divorced in 2009 -- When parties separated,father was earning $200,000 per year, but went on disability leave in 2008 earning $84,000 -- In 2009, fatherbegan working for security company owned by girlfriend (now wife) with salary of $52,000 -- Child supportorder was varied in 2012, and father’s income was set at $100,000 -- Father’s compliance with order to provideincome tax return annually was partial, and mother made formal demand in 2018 for further information --Mother brought successful application for order imputing income to father for purposes of child support,retroactive support, and contribution to extraordinary expenses -- Chambers judge imputed income of $250,000per year to father, retroactive to 2013, and held that father was responsible for 75 percent of extraordinaryexpenses -- Father appealed -- Appeal allowed in part -- Chambers judge held that father’s income did notrepresent his financial means available to pay child support based on father’s lifestyle and gifts by father’s wife-- Father’s income was $77,800 at time of application, and additional $50,000 was to be added to this, grossedup for taxes, and parties were ordered to perform these calculations to arrive at appropriate figure for father’sincome for child support purposes -- Father’s appeal of order requiring him to pay 75 percent of post-secondaryeducation costs was dismissed.

CRC v. DAJC (2020), 2020 ABCA 143, 2020 CarswellAlta 651, Frederica Schutz J.A., Ritu Khullar J.A.,Sheila Greckol J.A. (Alta. C.A.) [Alberta]

FAM.VIII.1.a.ii.F




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Parties had child together who spent time in foster care while father was incarcerated -- In 2019, father wasgranted custody and primary care and residence of child -- Father indicated that mother was located in Alberta,but provided no information about her including education, job experience or health -- Father broughtapplication for imputation of income to mother based on minimum wage in Alberta -- Application dismissed --Father was convicted of five separate assaults on mother, which could explain mother’s failure to appear andrespond in matter -- Father did not meet onus of establishing appropriateness or reasonableness of imputingincome to mother.

J.A.L. v. A.A.J. (2020), 2020 YKSC 7, 2020 CarswellYukon 15, R.S. Veale C.J.S.C. (Y.T. S.C.) [Yukon]

FAM.VIII.1.a.ii.F




Mother and father of three children separated after four years of marriage -- Mother operated company,providing occupational testing and safety training to oil field workers -- Mother was partially successful inapplying for relief including division of family property and child support; father successfully applied forunequal division of property and relief from order imposing weekly fine until his disclosure obligations weresatisfied -- Trial judge found mother did not fully explain or justify questionable corporate expenses, includingpayments to non-arm’s length, unusual marketing expenses and payment to patent lawyer -- When personalexpenses were added back in, mother’s income varied in past five years between $84,690.55 and $118,852.50 --Shortly before trial, father quit his job as gas field operator and took job as mechanic earning $65,000, which heexplained as response to mobility application, to be present in community full-time in anticipation that hewould be needed for primary parenting -- Mother appealed -- Appeal allowed -- Trial judge focused herattention on what she considered to be mother’s inadequate financial disclosure but did not considersignificance of notice to admit, father’s response and amended response to that notice -- In accordance with bestevidence rule, trial judge ought to have considered only evidence that was before her, including mother’sunchallenged evidence, and notices to admit and responses thereto -- Information garnered through trial judge’sinvitation allowed father to introduce new evidence that unfairly informed some of trial judge’s findingsrelative to mother’s guideline income that was contrary to evidence given at trial -- Accordingly, mother’sguideline income was calculated to be $60,593.43.


FAM.VIII.1.a.ii.F


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Parties had two children and separated in 2015 after 12 years of marriage -- Wife was born in Russia, husbandwas born in Canada, and parties married in Japan where husband was living before moving to Canada in 2003and living in home owned by husband and his parents -- Wife had law degree from Russia, and from November2013 to present she taught yoga and Pilates at various studios -- Since October 2019, she had also workedpart-time for meal delivery service and cleaning houses -- Husband had incorporated management consultingcompany in 2009 and wife became shareholder of company in 2014 -- Starting in 2010, husband took onemployment with series of companies through consulting company -- Between 2012 and 2018, husband,through his company, worked for three companies in marine energy sector -- Husband claimed to have beenpaid by his company through shareholder loans and occasionally through dividends and salary cheque --Husband did not work at all between April 2018 and November 2019, and, as of late 2019, he was director ofsales and business development with annual salary of $80,000 and potential for bonus -- Parties consented tofinal order addressing all parenting issues -- Issue for determination was determination of parties’ incomes --Income of $35,000 was imputed to wife as of February 1, 2020 -- Wife had sacrificed law career in Russia tomove to Canada and start new life with husband and her career options were curtailed by fact that she had tolearn new language and engage in job retraining while caring for two small children -- Income of $100,000 wasimputed to husband -- Current annual income of $80,000 did not reflect husband’s reasonable earning capacity-- While his earnings were not linear, husband had generally been successful in pursuing diverse businessopportunities -- It did not appear that husband had earned less than $100,000 annually between 2003 and 2018,and in some years he earned significantly more -- Husband was at liberty to apply for re-determination ofincome for purpose of prospective support payments in event that his income was reduced by COVID-19related economic disruption.


FAM.VIII.1.a.v


Classification Number: VIII.1.a.v

Support -- Issues common to child and spousal support -- Determination of income -- Miscellaneous

Parties had three children and separated in 2005 -- By consent order in 2011, parties were granted joint custodyand shared residency of children, and were to share extraordinary expenses based on income -- Father did notprovide any financial disclosure from 2011 to 2019, and would not discuss extraordinary expensereimbursement requests from mother -- By date of hearing, neither party had provided full financial disclosure-- Mother brought application for order reversing arrears calculated by Maintenance Enforcement Program(MEP) or retroactive adjustment of support, and order confirming middle child remained child of marriage;father brought cross-application for order confirming primary residence of children since 2011, and order forretroactive and ongoing child support based on residency -- Applications granted in part -- Middle and youngerchildren change residency which was change in circumstances -- Middle child remained child of marriage whileaway at school -- Parties’ intention in consent order was that if child was over 18 years of age and attendingschool away from home, ongoing support was to cease but parties could still have duty to pay their

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proportionate share of extraordinary expenses -- Court had jurisdiction to retroactively adjust support to 2012based on father’s blameworthy conduct in not providing financial disclosure -- Parties were ordered to shareextraordinary expenses in proportion to their incomes retroactive to 2016, after consideration of reasonablewithdrawals from education savings plan -- Based on new disclosure, findings made regarding income ofparties -- Father’s income in 2016 was $219,163, $152,642 in 2017, $162,018 in 2018, $154,164 in 2019, and$156,608 in 2020 -- Mother’s income was $46,175 in 2016, $45,847 in 2017, $38,007 in 2018, $30,000 in2019, and $30,000 in 2020.

Damphouse v. Damphouse (2020), 2020 CarswellAlta 636, 2020 ABQB 236, A. Loparco J. (Alta. Q.B.);additional reasons to (2020), 2020 ABQB 101, 2020 CarswellAlta 260, A. Loparco J. (Alta. Q.B.) [Alberta]

FAM.VIII.1.b.i


Classification Number: VIII.1.b.i

Support -- Issues common to child and spousal support -- Interim support -- Entitlement

Parties were married in 2006, had two children, and separated in 2016 -- Children remained with husband afterseparation, and wife had not seen them since -- Wife’s application for interim spousal support was dismissed --Wife appealed -- Appeal allowed -- Chambers judge was faced with conflicting affidavit evidence that was notsubject to cross-examination -- Wife claimed that marriage was traditional and left matrimonial home afterattack that left her hospitalized and was "not legally entitled to work in Canada" and dependent on governmentagencies -- Husband claimed that wife was abusive and suicidal, lived in fully furnished apartment uponseparation, and questioned how she was not permitted to work in Canada but qualified for social programs --While deference was due to decision, complete denial of interim support to unemployed spouse after 10 yearmarriage could not survive appellate review -- Based on husband’s income of $134,000 and mother’s income of$0, appropriate interim support was $1,200 per month.

Furry v. Goodwin (2020), 2020 CarswellAlta 553, 2020 ABCA 127, Jo’Anne Strekaf J.A., Kevin Feehan J.A.,Thomas W. Wakeling J.A. (Alta. C.A.) [Alberta]

FAM.VIII.1.c.iii


Classification Number: VIII.1.c.iii

Support -- Issues common to child and spousal support -- Lump sum award -- Miscellaneous

Parties had two children and separated in 2015 after 12 years of marriage -- Wife was born in Russia, husbandwas born in Canada, and parties moved to Canada in 2003 -- Parties initially lived together at residence ownedby husband and his parents, and later moved into family home -- Husband was director of sales and businessdevelopment with technology company -- Wife had law degree from Russia, and from November 2013 topresent she taught yoga and Pilates at various studios -- Since October 2019, she had also worked part-time formeal delivery service and cleaning houses -- Parties consented to final order addressing parenting issues --

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Issues at trial included determination of whether lump sum support payment was appropriate -- Exceptionalaward of lump sum spousal support was not warranted -- Husband had history of failing to consistently paysupport orders in timely matter, however, there was broader context to consider -- Husband voluntarilysupported wife for almost three years post-separation, including payment of $2,200 towards her rent eachmonth, without needing court order -- In effort to avoid contested interim hearing over child and spousalsupport, he agreed to without prejudice support order that imputed income to him at level that exceeded what hewas found to be realistically capable of earning at trial -- Although there was animosity between parties, thiswas not basis for lump sum award -- Lump sum order would result in hardship to husband as it would consumemajor portion of his entitlement to proceeds of sale of matrimonial home, which was family asset of greatestvalue and would undermine his ability to obtain future self-sufficiency.


FAM.VIII.2.a.ii


Classification Number: VIII.2.a.ii

Support -- Child support -- Application of Child Support Guidelines -- Shared or split custody

Mother and father of three children separated after four years of marriage -- Mother operated company,providing occupational testing and safety training to oil field workers -- Mother was partially successful inapplying for relief including division of family property and child support; father successfully applied forunequal division of property and relief from order imposing weekly fine until his disclosure obligations weresatisfied -- There was equal parenting schedule, but set off approach was not appropriate -- Trial judge foundthat mother’s financial situation did not impact her ability to care for children or herself, given that she hadpurchased house and vehicle, taken university courses, and paid for orthodontic work -- Father had changedjobs because of mobility application and was now earning considerably less, and he would owe motherequalization payment, so his financial situation was more difficult -- No further child support would be owed tomother, and father, now earning less than mother, did not apply for child support that he would otherwise beentitled to -- Mother appealed -- Appeal allowed -- Trial judge was incorrect in determining set-off approachwas not appropriate and found that that both parties had increased costs, but seemed troubled by financialgenerosity of mother’s boyfriend towards mother -- Taking that generosity into account, judge she concludedthat father’s financial situation was more difficult as he would owe mother equalization payment and costpenalty -- Equalization payment was not punitive, but owed because father retained greater proportion ofparties’ matrimonial property -- Penalty was owed because father failed to comply with earlier court order toproduce undertakings he gave during questioning, and anything other than set-off approach was not supportableon this record -- Using revised guideline income for both parties and applying s. 9 set-off approach, it wascalculated respondent’s net child support obligation for years 2014 to 2019 was $44,168.


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FAM.VIII.2.a.ii



Support -- Child support -- Application of Child Support Guidelines -- Shared or split custody

Parties had two children and separated in 2015 after 12 years of marriage -- Wife was born in Russia, husbandwas born in Canada, and parties married in Japan where he was living before moving to Canada in 2003 andliving in home owned by husband and his parents -- Wife had law degree from Russia, and from November2013 to present she taught yoga and Pilates at various studios -- Since October 2019, she had also workedpart-time for meal delivery service and cleaning houses -- Husband had incorporated management consultingcompany in 2009 and starting in 2010, husband took on employment with series of companies throughconsulting company -- Between 2012 and 2018, husband, through his company, worked for three companies inmarine energy sector -- Husband did not work at all between April 2018 and November 2019, and, as of late2019, he was director of sales and business development with annual salary of $80,000 and potential for bonus-- Parties consented to final order addressing all parenting issues and had worked consensually toward sharedparenting regime -- Wife’s income was found to be $35,000 and income of $100,000 was imputed to husband --Beginning February 1, 2020, husband was to pay $960 monthly in child support.


FAM.VIII.2.b


Classification Number: VIII.2.b

Support -- Child support -- Determination of quantum

Parties were separated parents of three children, M, S and J -- M was eldest child and attended university, livingaway from home -- S would graduate high school shortly and would no longer be dependent -- There werechanges in primary residence -- S came to live with mother full time in October 2017 and J came to live withmother full time in August 2019 -- Child support payments from father did not change -- M owed $34,704.37on student loan -- Both parties contributed to priced of M’s books -- Mother brought application fordetermination of retroactive and prospective child support owed by father -- Application granted -- M remainedchild of marriage -- M was pursuing reasonable course of post-secondary education -- Mother was presentlycarrying load for M’s expenses and father must contribute -- Mother earned income of $83,008.75 and fatherearned income of $64,260 -- Father was ordered to pay child support in amount of $1,177 per monthcommencing September 2017 -- Child support would reduce to two-child rate of $892 per month when Sgraduated from high school -- Father was to pay arrears based on primary residence of S and J as calculated bycounsel at rate of $250 per month.

Fedak v. Mlynarski (2020), 2020 SKQB 93, 2020 CarswellSask 205, D.J. Brown J. (Sask. Q.B.) [Saskatchewan]

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FAM.VIII.2.c.i


Classification Number: VIII.2.c.i

Support -- Child support -- Extraordinary expenses -- Necessity and reasonableness

Mother and father of three children separated after four years of marriage -- Mother operated company,providing occupational testing and safety training to oil field workers -- Mother was partially successful inapplying for relief including division of family property and child support; father successfully applied forunequal division of property and relief from order imposing weekly fine until his disclosure obligations weresatisfied -- Trial judge found that mother’s claim for childcare expenses was not reasonable as father offered totake children if she needed to be away during her parenting time -- It was mother’s prerogative to pay forchildcare instead, but it was not reasonable to then ask father to pay and father would be ordered to pay 60 percent of children’s psychological expenses that had not already been reimbursed by mother’s company plan --No amount was owing for dental expenses as mother failed to exhaust available benefit coverage before seekingreimbursement and mother would not be entitled to recover expenses for martial arts and gymnastics as sheregistered children without informing father -- Mother appealed -- Appeal allowed -- Trial judge erred inrefusing childcare expense in circumstances where only evidence at trial was that childcare was required forpurposes of mother’s employment -- There was no principle that would require parent in shared parentingsituation to rely on in-laws to provide childcare to that parent for any number of reasons, least of which waspotential lack of stability in childcare arrangements -- Trial judge was also incorrect in denying father’sobligation to contribute to children’s medical and psychological expenses -- Trial judge was mistaken incalculating respondent’s s. 7 obligations relative to childcare and medical and psychological expenses andfather owed mother $10,956 for his proportionate share of s. 7 expenses.


FAM.VIII.2.c.ii


Classification Number: VIII.2.c.ii

Support -- Child support -- Extraordinary expenses -- Whether expense extraordinary

Parties had two children -- Order was made that set out father’s parenting time, and provided that father was topay child support based on imputed income -- Father applied for relief, including to adjust child support --Application granted in part -- Dental expenses of $8,403.94 were s. 7 expenses -- It was important for childrento have extracurricular activities such as music and martial arts, and expenses incurred of $8,554.20 were s. 7expenses -- Counselling expenses of $1,570 were s. 7 expenses -- Medical Service Plan family coverage of$1,275 should be reimbursed as s. 7 expense -- Parties were to pay s. 7 expenses in proportion to their incomes,with father paying 65 percent and mother paying 35 percent -- Father was to reimburse mother $12,872.04,which was 65 percent of $19,803.14 in s. 7 expenses mother incurred -- Father had overpaid support of

13





$12,196, and he could set off overpayment owed by mother against s. 7 expenses with result being that fatherowed mother $676.04.


FAM.VIII.2.c.ii


Classification Number: VIII.2.c.ii

Support -- Child support -- Extraordinary expenses -- Whether expense extraordinary

Parties had two children and separated in 2015 after 12 years of marriage -- Wife was born in Russia, husbandwas born in Canada, and parties married in Japan where he was living before moving to Canada in 2003 andliving in home owned by husband and his parents -- Wife had law degree from Russia, and from November2013 to present she taught yoga and Pilates at various studios -- Since October 2019, she had also workedpart-time for meal delivery service and cleaning houses -- Husband had incorporated management consultingcompany in 2009 and starting in 2010, husband took on employment with series of companies throughconsulting company -- Between 2012 and 2018, husband, through his company, worked for three companies inmarine energy sector -- Husband did not work at all between April 2018 and November 2019, and, as of late2019, he was director of sales and business development with annual salary of $80,000 and potential for bonus-- Parties consented to final order addressing all parenting issues and had worked consensually toward sharedparenting regime -- Issue arose as to what constituted special and extraordinary expenses -- Private schooltuition fees, contributions to children’s RESPs, and hockey registration fees and associated hockey fees werespecial and extraordinary expenses -- Children’s cell phone plans were not special or extraordinary expenses --Hot lunches, gym memberships, haircuts, school supplies were not special or extraordinary expenses -- Wifewas to pay 33 per cent of s. 7 expenses under Federal Child Support Guidelines on prospective basis andhusband was to pay 67 per cent of s. 7 expenses.


FAM.VIII.2.c.vii


Classification Number: VIII.2.c.vii

Support -- Child support -- Extraordinary expenses -- Miscellaneous

Parties had three children and separated in 2005 -- By consent order in 2011, parties were granted joint custodyand shared residency of children, and were to share extraordinary expenses based on income -- Father did notprovide any financial disclosure from 2011 to 2019, and would not discuss extraordinary expensereimbursement requests from mother -- By date of hearing, neither party had provided full financial disclosure-- Mother brought application for order reversing arrears calculated by Maintenance Enforcement Program(MEP) or retroactive adjustment of support, and order confirming middle child remained child of marriage;father brought cross-application for order confirming primary residence of children since 2011, and order for

14




retroactive and ongoing child support based on residency -- Applications granted in part -- Middle and youngerchildren change residency which was change in circumstances -- Middle child remained child of marriage whileaway at school -- Parties’ intention in consent order was that if child was over 18 years of age and attendingschool away from home, ongoing support was to cease but parties could still have duty to pay theirproportionate share of extraordinary expenses -- Court had jurisdiction to retroactively adjust support to 2012based on father’s blameworthy conduct in not providing financial disclosure -- Parties were ordered to shareextraordinary expenses in proportion to their incomes retroactive to 2016, after consideration of reasonablewithdrawals from education savings plan -- Based on new disclosure, findings made regarding income ofparties -- Father’s income in 2016 was $219,163, $152,642 in 2017, $162,018 in 2018, $154,164 in 2019, and$156,608 in 2020 -- Mother’s income was $46,175 in 2016, $45,847 in 2017, $38,007 in 2018, $30,000 in2019, and $30,000 in 2020.

Damphouse v. Damphouse (2020), 2020 CarswellAlta 636, 2020 ABQB 236, A. Loparco J. (Alta. Q.B.);additional reasons to (2020), 2020 ABQB 101, 2020 CarswellAlta 260, A. Loparco J. (Alta. Q.B.) [Alberta]

FAM.VIII.2.c.vii


Classification Number: VIII.2.c.vii

Support -- Child support -- Extraordinary expenses -- Miscellaneous

Parties had three children and separated in 2005 -- By consent order in 2011, parties were granted joint custodyand shared residency of children, and were to share extraordinary expenses based on income -- Father did notprovide any financial disclosure from 2011 to 2019, and would not discuss extraordinary expensereimbursement requests from mother -- By date of hearing, neither party had provided full financial disclosure-- Mother brought application for order reversing arrears calculated by Maintenance Enforcement Program orretroactive adjustment of support, and order confirming middle child remained child of marriage; father broughtcross-application for order confirming primary residence of children since 2011, and order for retroactive andongoing child support based on residency -- Applications granted in part -- Middle and younger children changeresidency which was change in circumstances -- Middle child remained child of marriage while away at school-- Parties’ intention in consent order was that if child was over 18 years of age and attending school away fromhome, ongoing support was to cease but parties could still have duty to pay their proportionate share ofextraordinary expenses -- Court had jurisdiction to retroactively adjust support to 2012 based on father’sblameworthy conduct in not providing financial disclosure -- Parties were ordered to share extraordinaryexpenses in proportion to their incomes retroactive to 2016, after consideration of reasonable withdrawals fromeducation savings plan.

Damphouse v. Damphouse (2020), 2020 ABQB 101, 2020 CarswellAlta 260, A. Loparco J. (Alta. Q.B.) [Alberta]

FAM.VIII.2.d.i.E


15





Classification Number: VIII.2.d.i.E

Support -- Child support -- Retroactive award -- Factors -- Miscellaneous

Mother and father of three children separated after four years of marriage -- Mother operated company,providing occupational testing and safety training to oil field workers -- Mother was partially successful inapplying for relief including division of family property and child support; father successfully applied forunequal division of property and relief from order imposing weekly fine until his disclosure obligations weresatisfied -- Father failed to provide financial disclosure, but mother also failed to accurately disclose financesgiven personal expenses run through her company and her lifestyle that did not match her submissions --Children’s needs were met with each parent and they did not experience hardship because of any failure to paychild support -- As father’s income had dropped with his new job allowing him to be home with children more,retroactive award would lead to hardship for him and it was found that it was not appropriate to awardretroactive support to mother -- Mother appealed -- Appeal allowed -- Trial judge failed to recognize that fatherhad mother’s financial information and had or could have taken position on expenses to quantify his childsupport obligations -- Instead, in his December 2016 affidavit, father tried to convince court that his incomewas significantly less than mother’s and on his own evidence, including his admission regarding mother’sguideline income in his reply to notice to admit, father knew his income exceeded mother’s -- This mistake wascompounded by trial judge having reversed onus to disprove receipt of child support through electronictransfers to mother -- Evidence on record relative to father’s payment of child support was insufficient to shiftevidentiary burden to mother to prove she had not received those funds.


FAM.VIII.2.e.i.D


Classification Number: VIII.2.e.i.D

Support -- Child support -- Variation or termination -- Change in circumstances -- Miscellaneous

Parties were together for almost 15 years and they had two children -- Parties entered into consent order thatprovided that parties were to have joint custody, established time parties would have children in their care,provided that father was to pay child and spousal support based on his income of $100,000 per year andmother’s imputed income of $22,000 per year, and father was to pay tuition fees for children to attend privateschool -- Mother applied to vary child support -- Application adjourned -- There had been number of materialchanges in circumstances since support orders were made -- Older child was no longer attending private school;father had new position with increase in income; father remarried and his wife was nurse; and mother hadre-partnered and her partner was truck driver -- Spousal support review was contemplated by order, andmother’s application to vary child support should be adjourned to same date -- In order to ensure fair andappropriate outcome, all of financial circumstances ought to be considered together -- It was very difficult toisolate any one aspect of support orders from others -- By review date parties would be in position to providefurther evidence that court needed to ensure children enjoyed similar standard of living in both homes -- Partieswould have filed tax returns and received notices of assessment, father would be settled into new position, andmother would be more settled in both her work and educational plans -- Court would be able to retroactively

16





adjust child support, spousal support and s. 7 expenses so adjournment of mother’s application would not causeundue prejudice to parties or children.

L.C.C. v. C.B.C. (2020), 2020 BCSC 627, 2020 CarswellBC 1041, L.S. Marchand J., In Chambers (B.C. S.C.)[British Columbia]

FAM.VIII.2.e.ii


Classification Number: VIII.2.e.ii

Support -- Child support -- Variation or termination -- Miscellaneous

Parties had two children -- Order was made that set out father’s parenting time, and provided that father was topay child support based on imputed income -- Father applied for relief, including to adjust child support --Application granted in part -- Child support ordered was based on income imputed to father -- It would be moresatisfactory to use what father actually earned in 2019, but due to COVID-19 crisis, that might not be knownuntil June 15, 2020 since government allowed for extension of time for individuals who were self-employed tofile income tax returns -- There was no basis on which to vary child support payments until father produced hisfiled 2019 income tax return -- Father was to continue to pay child support of $1,457 per month based onimputed income of $95,191.66 per year -- Some of father’s arguments for variation were based on sharedcustody arrangement but that had not happened -- It would not be appropriate to order reduction of childsupport on shared custody basis when parties were not sharing custody.


FAM.VIII.2.f.i


Classification Number: VIII.2.f.i

Support -- Child support -- Arrears -- Calculation of arrears

Parties married in 2005 and separated in November 2015 -- Parties were parents of 14-year-old child --Following separation, parties’ daughter lived on week-on/week-off basis with each parent -- In April 2017,father moved to be closer to work -- Since that time, child lived with mother on weekdays and with father onweekends -- Father was employed by large mining corporation and mother operated small cleaning business --Mother obtained interim order in February 2017 requiring father to pay child support of $902 per month andspousal support of $3,229 per month -- Father brought summary trial application for division of property, anddetermination of child and spousal support -- Application granted -- Child support arrears to December 2019were $23,309 -- That amount was set off against equalization payment owed by wife.


17





FAM.VIII.2.f.iii.A


Classification Number: VIII.2.f.iii.A

Support -- Child support -- Arrears -- Enforcement -- Support enforcement programs

Parties had two children -- Order was made that set out father’s parenting time, and provided that father was topay child support based on imputed income -- Father applied for relief, including for Family MaintenanceEnforcement Program (FMEP) to release $20,000 held in trust -- Application granted in part -- Money beingheld by FMEP came from equity father had in his condominium which mother had no right to -- Purpose of$20,000 holdback was security if father did not pay court-ordered child support, but he had been fulfilling hisobligation -- There was no basis for continuing to require that holdback be maintained -- Father also hadobligation to support his two young children with his new wife -- Holdback with accrued interest should beimmediately released to father.


FAM.VIII.2.i


Classification Number: VIII.2.i

Support -- Child support -- Miscellaneous

Parties were together for almost 15 years and they had two children -- Parties entered into consent order thatprovided that parties were to have joint custody, established time parties would have children in their care,provided that father was to pay child and spousal support based on his income of $100,000 per year andmother’s imputed income of $22,000 per year, and father was to pay tuition fees for children to attend privateschool -- Father applied for relief, including order compelling mother to apply for Catholic rate discount forschool -- Application granted in part -- Mother’s explanation that she was not attending church enough toqualify and that she could not afford annual $200 donation to church that was required to qualify was entirelyreasonable -- Mother was not ordered to make application that would have no effect unless she was also orderedto attend church more often and make charitable donation, and such orders would be completely inappropriate-- As joint custodian and guardian of children, father was free to apply for discount himself.


FAM.VIII.3.a.ii


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Support -- Spousal support -- Entitlement -- Non-compensatory support [needs-based support]

Interim support -- Parties were married for 26 years and had two adult children not relevant to proceeding --Wife experienced mental health problems that impacted her ability to work and she now earned $25,000 --Husband experienced drop in income when he changed employers and now earned $78,000 -- Wife broughtapplication for interim spousal support -- Application granted -- Husband was ordered to pay $1,600 interimmonthly spousal support, in lower end of Spousal Support Advisory Guidelines range -- Parties had long-termmarriage and wife’s income was substantially less than husband’s so she was economically disadvantaged bybreakdown of marriage -- Wife needed support and husband had ability to pay -- Husband was carrying costs ofmatrimonial home, though living in it so receiving benefit, as well as larger proportion of family debts, whichimpacted his ability to pay support -- There was no evidence husband took lower-paying job to evade support,and he gave evidence he was facing lay-off so changed employers -- Parties’ current incomes were used forpurpose of interim support.

Trenker v. Trenker (2020), 2020 CarswellSask 172, 2020 SKQB 94, D.J. Brown J. (Sask. Q.B.) [Saskatchewan]

FAM.VIII.3.a.iv


Classification Number: VIII.3.a.iv

Support -- Spousal support -- Entitlement -- Miscellaneous

Parties had two children and separated in 2015 after 12 years of marriage -- Wife was born in Russia, husbandwas born in Canada, and parties moved to Canada in 2003 -- Parties initially lived together at residence ownedby husband and his parents, and later moved into family home -- Husband was director of sales and businessdevelopment with technology company -- Wife had law degree from Russia, and from November 2013 topresent she taught yoga and Pilates at various studios -- Since October 2019, she had also worked part-time formeal delivery service and cleaning houses -- Parties consented to final order addressing parenting issues --Issues at trial included determination of spousal support -- Husband’s income was imputed to be $100,000 andwife’s was imputed as $35,000 -- Amount of $19,500 was reasonable estimate of s. 7 expenses under FederalChild Support Guidelines for purposes of Spousal Support Advisory Guidelines -- This was sufficient to coverestimates of children’s tuition, medical expenses, RESP contributions, and modest amount of hockey-relatedexpenses -- Spousal support award in mid to upper range was appropriate -- Wife had strong claim tocompensatory spousal support in light of career sacrifices she made to support family and husband’s variousbusiness activities -- Wife faced inherent employment disadvantage relative to husband resultant of sacrificesshe made in giving up established career in moving from Russia to Canada -- In circumstances, payment byhusband to wife of monthly spousal support in amount of $850 was fair -- Spousal support obligation was tocontinue for six year period.


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FAM.VIII.3.b



Support -- Spousal support -- Determination of quantum

Parties married in 2005 and separated in November 2015 -- Parties were parents of 14-year-old child --Following separation, parties’ daughter lived on week-on/week-off basis with each parent -- In April 2017,father moved to be closer to work -- Since that time, child lived with mother on weekdays and with father onweekends -- Father was employed by large mining corporation and mother operated small cleaning business --Mother obtained interim order in February 2017 requiring father to pay child support of $902 per month andspousal support of $3,229 per month -- Father brought summary trial application for division of property, anddetermination of child and spousal support -- Application granted -- Mother was entitled to spousal support oncompensatory basis -- Mother sacrificed years supporting father’s career by taking care of parties’ child andserving as home-maker, at expense of own career -- Mother was awarded amount of $2,594 per month inspousal support -- Father was to pay spousal support until December 2026.


FAM.VIII.3.b



Support -- Spousal support -- Determination of quantum

Parties had two children and separated in 2015 after 12 years of marriage -- Wife was born in Russia, husbandwas born in Canada, and parties married in Japan where husband was living before moving to Canada in 2003and living in home owned by husband and his parents -- As of late 2019, husband was working as director ofsales and business development with technology company and had annual salary of $80,000, with potential forannual bonus -- Wife had law degree from Russia, and from November 2013 to present she taught yoga andPilates at various studios -- Since October 2019, she had also worked part-time for meal delivery service andcleaning houses -- Wife’s gross business income for 2019 was $39,000 -- Issue arose as to determination ofparties’ incomes for purposes of spousal support -- Impact of COVID-19 pandemic on issue of prospectivesupport was relevant issue for consideration -- Trial concluded in January 2020 and since then there had beenpublic health directives greatly restricting business operations in British Columbia, including mandated closuresof fitness centres and yoga studios -- These events were not part of trial record and there was no evidence as toimpact, if any, of COVID-19 restrictions on income of either party, but determination of income was issue thatwould influence parties’ future financial positions and it was not appropriate to ignore post-trial events thatsuggested there might already have been material change in circumstances for one or both parties sinceconclusion of trial -- Amount of $100,000 was fair and reasonable estimate of husband’s annual income forsupport purposes as of trial date, and income was imputed to him in such amount -- Commencing February 1,2020, husband was to pay wife $850 monthly in spousal support -- Both parties were given leave to return tocourt to ensure that any prospective support orders reflected any COVID-19 related impacts on incomes thatwere of more than temporary nature.

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FAM.VIII.3.e.i.C


Classification Number: VIII.3.e.i.C

Support -- Spousal support -- Variation or termination -- Change in circumstances -- Miscellaneous

Parties lived together for almost four years before they married, but date of separation was disputed -- Partieshad children from prior relationships who lived with them -- Husband had existing plumbing business, and wifeworked with him in that business -- During relationship parties acquired property that was registered in theirjoint names -- Property was sold by court order in foreclosure proceedings, and sale proceeds were paid intocourt -- Husband was ordered to pay interim child and spousal support -- Wife’s child was now living with herbiological father, and parties agreed that child support should be terminated -- Husband applied for relief,including terminating spousal support -- Application granted in part -- Parties separated on September 26, 2012,and duration of relationship was five years -- Wife was disabled from working during parties’ relationship, andthat disability continued at time interim support order was made and after -- Husband had not countered any ofwife’s evidence, and wife’s evidence remained uncontradicted -- Despite absence of opinion or other evidencefrom qualified physician, wife was presently disabled from earning any income other than disability income,and her disability manifested itself prior to separation -- There was no contractual or compensatory entitlementto spousal support -- Evidence indicated no sacrifice or disadvantage to wife associated with relationship, and tocontrary relationship allowed wife to enhance her accounting credentials -- Wife’s entitlement wasnon-compensatory, based on need -- Wife had not proven that there was causal relationship between her mentalhealth issues and husband’s treatment of her while they were together -- Spousal Support Advisory Guidelines(SSAG) indicated spousal support duration to maximum of five years -- Taking into account short duration ofrelationship, absence of any compensatory factors, relative independence of parties during relationship, and factthat spousal support had been paid near upper end of SSAG range of amounts, balanced against wife’scompelling need, spousal support should not continue for any substantial amount of time beyond rangeindicated by SSAG -- Husband’s obligation to pay spousal support was terminated effective August 31, 2018,which would mean he would have paid spousal support at upper end of SSAG amounts for period of five yearsand two months, and that was sufficient to discharge his obligation to pay spousal support.

P.J.L. v. C.A.L. (2020), 2020 CarswellBC 962, 2020 BCSC 563, Blok J. (B.C. S.C.) [British Columbia]

FAM.X.3.a


Classification Number: X.3.a

Custody and access -- Interim custody -- Status quo

Parties separated in October 2019 -- Parties were parents of two children, ages seven and six -- Father claimedto have played major parenting role prior to separation but said that post-separation, access allowed by mothernarrowed and eventually disappeared -- Mother did not dispute father’s central role pre-separation but said

21




father was unfit share parenting of children, particularly in light of pending criminal charges stemming fromrelationship, including uttering threats and assault -- Father brought application for shared parenting --Applicant granted in part -- Change sought by father was not to order or formal agreement, but to status quo onground -- Accordingly, only interim parenting order could be granted -- Evidence of pre-sentence status quowas incomplete and imprecise, but both parties played major parenting role -- No real status quo developedafter separation -- End of relationship was tumultuous, partly reflected in criminal charges against father --No-contact order was in place followed by period of supervised access -- After February 2020, father wasvisiting children three or four times per week for three of four hours after school -- It was in children’s bestinterests to remain in primary care of mother, at least until conclusion of father’s criminal charges -- Father wasto continue with same level of access, three to four visits per week -- Parties were to have joint decision-makingauthority -- Custody would be revisited after conclusion of father’s criminal trial.

AMD v. KG (2020), 2020 CarswellAlta 940, 2020 ABQB 325, M.J. Lema J. (Alta. Q.B.) [Alberta]

FAM.X.6


Classification Number: X.6

Custody and access -- Shared custody

Parties were together for almost 15 years and they had two children -- Parties entered into consent order thatprovided that parties were to have joint custody, established time parties would have children in their care,provided that father was to pay child and spousal support based on his income of $100,000 per year andmother’s imputed income of $22,000 per year, and father was to pay tuition fees for children to attend privateschool -- Father applied for relief, including declaration that parties had shared parenting arrangement withinmeaning of s. 9 of Child Support Guidelines -- Application granted in part -- Father sought declaration toadvance his dispute with Canada Revenue Agency regarding his entitlement to receive share of Canada ChildBenefit, and court declined to make declaration -- Final order and reasons spoke for themselves so nodeclaration was necessary -- Court’s power to make declarations should generally be reserved to settle disputebetween parties to litigation and not to advance interests of one party to litigation against third party.


FAM.X.9.b


Classification Number: X.9.b

Custody and access -- Terms of custody order -- Counselling and therapy

Child was almost 18 years old and was living independently with assistance of children’s aid society -- Motherclaimed that child suffered from brain injury, post-traumatic stress disorder, attention deficit hyperactivitydisorder and depression, and that he had been alienated from her primarily by society -- Child claimed he was

22




happier, healthier and more successful in his independent life, and he strenuously opposed any continuedcontact with mother and compelled joint counselling -- Mother brought application to compel child toimmediately commence counselling and reunification counselling -- Application dismissed -- Medicaldocuments provided by mother did not resemble sort of detailed, recent, investigation-based reports that wouldbe expected where involuntary therapeutic intervention was sought -- Accepting all of medical informationprovided on its face established only that child had psychological challenges that were not acute or uncommon,but that he could likely benefit from individual therapy -- There was no factual support in medical evidence formother’s contentions that child was depressed, suffered cognitive deficits, was unable to reason or lackedcapacity -- Based on evidence, mother’s relationship with child was abusive -- Emails sent by mother werevulgar abuse; attacked child’s basic agency and self-conception; asserted child was mentally ill for deviatingfrom mother’s perception of reality; sought to manipulate child to mother’s will by promises of money andgifts; made veiled, collateral threats of litigation and involvement of police against child; and threatened thatchild’s social and friendship networks were at risk if he acted contrary to mother’s wishes -- Emails providedcomplete explanation for why child wanted nothing to do with mother -- Best interests of child were to have nofurther contact with mother at this time -- Mother’s history and description of her parental relationships wasunreliable -- Only demonstrated source of alienation appeared to be mother’s own behaviour -- Compelledattendance at counselling was not medically required for child and need for it had not been factually established-- No legal basis for compelled therapy was demonstrated -- Child was mature minor of high intelligence oncusp of adulthood, and his wishes should be accorded same respect and deference extended to adults --Evidence did not establish any risk of harm to child if he failed to reunite with mother or if he failed to engagein individual therapy -- Given child would be adult in matter of days, granting order for compulsory therapyunder auspices of court’s parens patriae jurisdiction was pointless and inappropriate.

SP v. BP (2020), 2020 ABQB 331, 2020 CarswellAlta 978, N.E. Devlin J. (Alta. Q.B.) [Alberta]

FAM.X.10.a.vi


Classification Number: X.10.a.vi

Custody and access -- Mobility -- Relocation with child -- Miscellaneous

Parties had one child, four years old, who primarily lived with mother in Abbotsford, British Columbia, whilefather lived on Sunshine Coast where child was born -- Mother had two older children who were now in care oftheir biological fathers, with one child being removed from mother’s care by children’s aid society -- There wasgreat deal of acrimony between parties and police involvement, and mother had been charged with utteringthreats against father’s partner -- Father applied to relocate child back to Sunshine Coast -- Applicationdismissed -- This was relocation case and should be determined under comprehensive relocation provisions inDivision 6 of Family Law Act rather than s. 46 -- Section 69(4) of Act applied, and if relocating parent showedthat move was being made in good faith and that there were reasonable and workable arrangements forpreserving child’s relationship with other parent, then there was presumption that move was in best interests ofchild -- Both parties were acting in good faith, they both had good reasons for their proposed or actual moves,they were genuinely focussed on enhancing child’s life, and they both were proposing reasonable and workablearrangements for other party’s parenting time -- Decision about where child was to reside was difficult --Mother established herself with child in Abbotsford area for last two years and she had supports, and mothercould meet child’s daily needs at this time -- Concerns about some of people frequenting mother’s home had

23



been addressed, and there were no current drug issues -- Father had good home with family supports -- Statusquo was child living with mother, he had strong bond with mother, and his siblings lived in Lower Mainland --Father and his partner had strong bond with child and father’s plan was good, but it involved wholesale changewhere mother’s role would be greatly diminished -- There was concern that father had propensity to reportmother to society not simply out of concern for child but to gain advantage -- Both parties could give childstable home -- Mother was able to parent child and meet his needs notwithstanding concerns regarding herparenting of child who was removed from her care, and society was content with mother’s parenting of thischild -- Father had role in discord between parties, he was equal participant in domestic violence, and it wasconcerning that he had withheld child from mother in past -- Conflict between parties had to stop -- Weighingall factors, status quo was favoured with mother as primary caregiver for child.

S.F.D. v. A.L.B. (2020), 2020 CarswellBC 1009, 2020 BCPC 76, G.J. Brown Prov. J. (B.C. Prov. Ct.) [British Columbia]

FAM.X.10.c


Classification Number: X.10.c

Custody and access -- Mobility -- Travelling with child

Parties were together for almost 15 years and they had two children -- Parties entered into consent order thatprovided that parties were to have joint custody, established time parties would have children in their care,provided that father was to pay child and spousal support based on his income of $100,000 per year andmother’s imputed income of $22,000 per year, and father was to pay tuition fees for children to attend privateschool -- Father applied for relief, including orders regarding children’s passports -- Application granted in part-- Mother applied and paid for passports and she would continue to hold them, but orders were made to ensureboth parties had confidence that they could make and fulfill plans to travel with children, which both partiesacknowledged was in children’s best interests.


FAM.X.11.a


Classification Number: X.11.a

Custody and access -- Variation of custody order -- Material change in circumstances

Cooperation between parties -- Interim order provided mother with custody of children and father withsupervised access -- Father brought application for shared custody and decision-making authority, equalparenting time, order that mother could not relocate with children without approval and access to garage informer matrimonial home -- Application granted in part -- Main reason for issuance of interim decision wasopen child protection file and decision of family services that forbade contact between father and foster child --

24




File was now closed and father was permitted limited contact with foster child, which was material change incircumstances -- Father had begun counselling, there were no reports of negative behaviour from accesssupervisors and one child’s tantrums and accidents had subsided -- Level of trust and communication betweenparties was not yet sufficient for joint custody and decision making to work, and there were past concerns withfather holding one child by neck and fleeing with children that he had not demonstrated insight into -- Motherexpressed concerns with father’s questioning of children, which she thought would get worse if access wereunsupervised -- While some positive changes had occurred, it had only been four months since interim orderwas made and father had just begun counselling so changes to custody and access order were not yetappropriate -- Order was made to require mother to give 90 days’ notice if she intended to change father’sresidence -- Given lack of trust between parties, it would not be appropriate to grant father regular access to garage.

J.C.E. v. C.D.G. (2020), 2020 CarswellYukon 27, 2020 YKSC 11, S.M. Duncan J. (Y.T. S.C.) [Yukon]

FAM.X.11.b.vi


Classification Number: X.11.b.vi

Custody and access -- Variation of custody order -- Best interests of child -- Miscellaneous

Mother brought application for order staying case management judge’s child-custody and access orders relatingto two-year old child of and an interim parenting and maintenance order -- Application dismissed -- Applicanthad not satisfied court that any of terms of orders to which she objected will cause son or herself irreparableharm -- She did not assert that father will harm their child -- Indeed, interim parenting order she proposedgranted father regular access to child -- Any additional costs applicant incurred as result of orders under appeal,and there probably are not any, are readily calculable and can be taken into account in future if appeal wassuccessful -- She had not establish irreparable harm.

Jonzon v. Yuill (2020), 2020 CarswellAlta 991, 2020 ABCA 219, Thomas W. Wakeling J.A. (Alta. C.A.) [Alberta]

FAM.X.13



Custody and access -- Enforcement

Parties were together for almost 15 years and they had two children -- Parties entered into consent order thatprovided that parties were to have joint custody, established time parties would have children in their care,provided that father was to pay child and spousal support based on his income of $100,000 per year andmother’s imputed income of $22,000 per year, and father was to pay tuition fees for children to attend privateschool -- Father applied for relief, including leave to apply for further conduct orders, orders for enforcement orfine on short notice to mother -- Application granted in part -- Leave was not necessary to make applications

25




contemplated, and father was free to make such applications if he considered mother to be in noncompliancewith orders -- Court was not prepared to prejudge whether short leave would be appropriate or necessary -- Itwas premature to make types of orders father sought -- Mother must understand that she was to comply or faceconsequences which could include fine or worse, but at this stage there was no reason to believe that motherwould not comply with orders.


FAM.X.13



Custody and access -- Enforcement

Parties had two children -- Order was made that set out father’s parenting time, and provided that father was topay child support based on imputed income -- Father maintained that mother had not complied with parentingtime and counselling required by order -- Mother claimed older child did not want relationship with father andthat younger child chose to stop mid week visits -- Father applied for relief, including enforcement of orderrespecting parenting time -- Application granted in part -- Mother had been in breach of parenting scheduleorder -- It was not appropriate for mother to allow nine-year-old child to make decision of whether he attendedcourt-ordered parenting time -- At minimum mother should immediately put back in place parenting timerequired by order -- Move toward equal shared parenting of younger child should occur after child receivedcounselling -- At this time, it was not in best interests of older child to be forced to see father -- Older childrequired counselling to assist him in resuming relationship with father -- While children were getting somecounselling at school, mother had not complied with order in respect of counselling for children -- Mother didnot have freedom to seek alternate counselling programs in lieu of what was agreed to and ordered, and sheneeded to immediately take steps to cooperate in having children attend counselling sessions with agreed upon counsellor.


FAM.X.15



Custody and access -- Appeals

Parties had short relationship, they had one child together and mother had teenage child from prior relationship-- Father was helicopter pilot who offered services on contract basis, and he was often offered contracts on shortnotice -- Father had limited access to child -- Order was made that provided that after graduated period, fatherwould have parenting time on week-on, week-off basis, that during party’s parenting time child may be caredfor by party’s immediate family, and that pick up of child by person other than one of parties was allowed --

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Mother appealed -- Appeal dismissed -- Informed person, viewing matter realistically and practically andhaving thought matter through would not conclude that trial judge, whether consciously or unconsciously, didnot decide fairly, and there was no reasonable apprehension of bias on part of trial judge -- Trial judge madecomment that mother had "done the worst job of any co-parent I have had the pleasure of dealing with" must beviewed in context -- In context, trial judge viewed mother as fully capable parent but she was resistant toensuring parenting time with father -- Where each parent was capable of exercising parenting responsibilities inbest interests of child, sharing of parenting time should, over time, be divided approximately equally --Right-minded person would view order providing more parenting time for father as well within bounds ofreason, and would view trial judge as having decided matters fairly -- In context, right-minded person wouldview mother’s inflexible approach to frustrating child’s best interests as warranting strong and direct judiciallanguage -- Trial judge’s finding of lack of credibility was not material because it was not relevant -- If trialjudge had found mother to be credible, reasonable order would have been order that was made -- Mother hadnot established that she had lack of competent counsel, and there was no unfair trial or miscarriage of justice --Order served child’s best interests by providing certainty for her -- After graduated period had passed, childwould know with certainty whose home she would be at, and involvement of father’s mother and partner ascaregivers helped address reality of father’s uncertain work schedule while ensuring parenting time required tobuild bond between father and child -- Order did not represent parenting by proxy, and it was not directed atserving interests of father over best interests of child -- Trial judge did not err in principle or significantlymisapprehend evidence, and decision was not clearly wrong.

De Medeiros v. Helgesen (2020), 2020 BCSC 589, 2020 CarswellBC 1006, Funt J. (B.C. S.C.) [British Columbia]

FAM.XIV.1


Classification Number: XIV.1

Protection orders under provincial legislation -- Conduct orders

Parties were together for almost 15 years and they had two children -- Parties entered into consent order thatprovided that parties were to have joint custody, established time parties would have children in their care,provided that father was to pay child and spousal support based on his income of $100,000 per year andmother’s imputed income of $22,000 per year, and father was to pay tuition fees for children to attend privateschool -- Father applied for relief, including conduct orders -- Application granted in part -- Based on textmessages shared with court, proposed conduct orders were appropriate and necessary -- Mother’scommunications had been inappropriately rude, demeaning and vulgar -- Both parties had threatened to drawchildren into adult dispute to get what they wanted -- These types of communications between parties andbetween parties and children had to stop.


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FAM.XVII.1.d


Classification Number: XVII.1.d

Practice and procedure -- Jurisdiction -- Parentage, custody and access

Director of Child, Family and Community Service first became involved with parties in 2013 due to concernsof drinking in home and domestic violence -- Director obtained interim suspension order in 2018 followed bysix-month temporary supervision order which was cancelled after parties ended their relationship and fathermoved out of family home -- Parents were engaged in Family Law Act (FLA) proceeding with interim order inplace allocating access and parenting time between them, and mother took added step of obtaining protectionorder in FLA proceeding due to concerns father was stalking her -- Children were removed from parents byDirector pursuant to s. 30 of Child, Family and Community Service Act (CFCSA) due to protection concernsregarding father -- After removal, children were returned to their mother under supervision of Director, andfather’s access to children had been at discretion of Director -- Director sought order pursuant to s. 35(2)(b) ofCFCSA that children remain in care of mother under supervision of Director -- Presentation hearing began andwas underway, with balance of evidence to be completed by affidavits and interrogatories due to recent publichealth emergency declared by Province as result of COVID-19 pandemic -- Pending conclusion of presentationhearing, father applied pursuant to s. 55 of CFCSA for increased access in line with his parenting time underexisting FLA order -- Application dismissed -- On plain reading of s. 55 of CFCSA, triggering event for accessapplication was "order", which would include interim order under s. 35(2) -- Father’s application for furtheraccess to children could not proceed until either order or interim order was made at completion of presentationhearing -- As this was statutory court, parens patriae power was not available to judge of Provincial Court --Court did not have jurisdiction to hear father’s access application at this time.

British Columbia (Child, Family and Community Service) v. S.M.S. (2020), 2020 BCPC 87, 2020 CarswellBC 1093, D.L. Dorey Prov. J. (B.C. Prov. Ct.) [British Columbia]

FAM.XVII.6.b


Classification Number: XVII.6.b

Practice and procedure -- Discovery -- Order for production or disclosure

Director of Child, Family and Community Service first became involved with parties in 2013 due to concernsof drinking in home and domestic violence -- Director obtained interim suspension order in 2018 followed bysix-month temporary supervision order which was cancelled after parties ended their relationship and fathermoved out of family home -- Parents were engaged in Family Law Act (FLA) proceeding with interim order inplace allocating access and parenting time between them, and mother took added step of obtaining protectionorder in FLA proceeding due to concerns father was stalking her -- Children were removed from parents byDirector pursuant to s. 30 of Child, Family and Community Service Act (CFCSA) due to protection concernsregarding father -- After removal, children were returned to their mother under supervision of Director, andfather’s access to children had been at discretion of Director -- Director sought order pursuant to s. 35(2)(b) ofCFCSA that children remain in care of mother under supervision of Director -- Presentation hearing began and

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was underway, with balance of evidence to be completed by affidavits and interrogatories due to recent publichealth emergency declared by Province as result of COVID-19 pandemic -- Pending conclusion of presentationhearing, father applied pursuant to s. 55 of CFCSA for increased access in line with his parenting time underexisting FLA order -- Father further sought order for complete document disclosure in relation to Ministry ofChild and Family Development’s child protection investigation in matter -- Applications dismissed -- Section64 of CFCSA defines statutory minimum disclosure requirements that apply to all parties to protectionproceeding equally -- Father’s complaint of inadequate disclosure lacked specificity needed to properly assesswhether there was basis for complaint -- Disclosure provided by Director to date was more than sufficient tomeet minimum standard required by s. 64 of CFCSA and, in fact, Director exceeded disclosure guidelines setout in 1996 judgment.

British Columbia (Child, Family and Community Service) v. S.M.S. (2020), 2020 BCPC 87, 2020 CarswellBC 1093, D.L. Dorey Prov. J. (B.C. Prov. Ct.) [British Columbia]

FAM.XVII.6.b


Classification Number: XVII.6.b

Practice and procedure -- Discovery -- Order for production or disclosure

Parties separated after 40 years of marriage -- Wife brought application for disclosure, including informationabout accounts receivable for cattle -- Husband died and litigation continued against estate -- Son was executorof husband’s estate and was in cattle business with him until death -- Chambers judge dismissed wife’sapplication to direct son to provide his personal records in context of matrimonial property action withhusband’s estate -- Wife appealed -- Appeal allowed in part -- There were stark omissions from 2003-2007 --Chambers judge erred in interpreting minutes of settlement for purposes of assessing production requests --Whether wife was entitled to any further monies for accounts receivable for cattle was question ofinterpretation, which was ultimate question underlying dispute, and should not have been left for trial.

Tolton v. Tolton (2020), 2020 CarswellAlta 995, 2020 ABCA 218, Barbara Lea Veldhuis J.A., ElizabethHughes J.A., J.D. Bruce McDonald J.A. (Alta. C.A.) [Alberta]

FAM.XVII.9.a


Classification Number: XVII.9.a

Practice and procedure -- Procedure on appeal -- Time to appeal

Child was at centre of intrafamilial dispute -- Application was brought by child’s maternal grandparents --Applicants applied for various forms of relief, including to extend time to appeal order of chambers judge --Application dismissed -- Direction to parties that they proceed to viva voce hearing was absolutely correct -- Itwas patently obvious that any judge deciding underlying legal and factual issues will need to reconcileconflicting evidence, and will be called upon to make difficult findings of mixed fact and law.

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RD v. LT (2020), 2020 ABCA 179, 2020 CarswellAlta 853, Frederica Schutz J.A. (Alta. C.A.) [Alberta]

FAM.XVII.11.f.i


Classification Number: XVII.11.f.i

Practice and procedure -- Costs -- Factors -- Conduct of party

Parties had two children -- Order was made that set out father’s parenting time, and provided that father was topay child support based on imputed income -- Father maintained that mother had not complied with parentingtime and counselling required by order -- Father applied for relief, including costs -- Application granted in part-- Mother breached parenting schedule and counselling orders and breaches were significant -- Father shouldnot have had to return to court to seek enforcement of court orders -- Father was denied parenting time withyounger child and he had no relationship with older child -- Given mother’s breaches, father was awarded costs.


FAM.XVII.11.f.v.A


Classification Number: XVII.11.f.v.A

Practice and procedure -- Costs -- Factors -- Success -- Divided success

Father applied for variation of parenting for parties’ child -- Father claimed success on parenting issues, whichwas large portion of trial -- Father sought costs of counsel and second counsel -- Mother claimed motivationwas pure in resisting father’s application -- Mother said success at trial was mixed as mother continued toreceive support -- Mother alleged award of costs would cause hardship -- Hearing was held to determine costsof application -- Father awarded costs in amount of $12,000 -- It was not highly difficult case, factually orlegally -- No novel arguments were raised -- Trial was not overly long and counsel shortened same substantiallythrough organization and manner in which evidence was called -- Mother succeeded on support issue, but fatherwas substantially successful on issue of parenting of child which was undoubtedly main focus of trial -- Therewas no basis to award second counsel fee for trial -- Alleged offer to settle by father was not valid formal offerwithin meaning of Rules 4-26 and 4-31 of Queen’s Bench Rules -- There was lack of information from motheron hardship -- Award of costs in favour of father was appropriate -- Father was awarded costs in amount of$12,000, inclusive of disbursements and taxes.

George v. Penner (2020), 2020 CarswellSask 201, 2020 SKQB 99, R.W. Danyliuk J. (Sask. Q.B.) [Saskatchewan]

FAM.XVII.11.f.v.A

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Classification Number: XVII.11.f.v.A

Practice and procedure -- Costs -- Factors -- Success -- Divided success

Parties were together for almost 15 years and they had two children -- Parties entered into consent order thatprovided that parties were to have joint custody, established time parties would have children in their care,provided that father was to pay child and spousal support based on his income of $100,000 per year andmother’s imputed income of $22,000 per year, and father was to pay tuition fees for children to attend privateschool -- Father applied for relief, including increased or special costs -- Application granted in part -- Asmother’s application had been adjourned, it was premature to award costs in relation to that application --Mother had consented to some of orders father sought, and there was divided success with respect to otherorders -- No party was substantially successful, and each party was to bear own costs -- Even if father had beenfully successful, there would have been no basis to award increased or special costs as matters in issue were ofordinary difficulty and special costs may not be used to punish mother for her non-litigation behaviour --Mother’s litigation conduct had not been reprehensible.


FAM.XVII.11.f.vi


Classification Number: XVII.11.f.vi

Practice and procedure -- Costs -- Factors -- Miscellaneous

Parties were in common-law relationship for 13 years, they had three biological children, and mother had olderchild from previous relationship that father stood in loco parentis to -- Consent order provided that motherwould have primary parenting of children with father having specified parenting time -- Father was ordered topay child support of $2,019 per month based on his income of $90,000 per year and mother’s income of$30,000 per year, 75 percent of s. 7 expenses, and $103 per month in spousal support -- Mother successfullyapplied for order imputing income to father and setting retroactive arrears, as well as for prospective childsupport, and father brought unsuccessful cross-application for change in parenting and reduction in spousalsupport -- Parties made submissions on costs -- Father was ordered to pay costs to mother in amount of $2,000,to be paid in amounts of $50 per month, and was to pay additional 5 per cent of his stock vesting and bonuspayments towards costs -- Fact that mother could have acted on her own behalf without counsel was not reasonsto depart from usual practice of awarding costs to successful party -- Father’s conduct did not warrant award ofsolicitor and own client or solicitor and client costs against him -- Positions that father took were not frivolousor vexatious and there was no basis for awarding enhanced costs.

KAB v. TSP (2020), 2020 CarswellAlta 956, 2020 ABQB 242, L. Bernette Ho J. (Alta. Q.B.); additional reasonsto (2020), 2020 CarswellAlta 635, 2020 ABQB 174, L. Bernette Ho J. (Alta. Q.B.) [Alberta]

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FAM.XVII.11.h


Classification Number: XVII.11.h

Practice and procedure -- Costs -- Special costs

Revisiting issues -- Parties had three-year-old child and separated after two years of marriage -- Court orderprovided parties with shared parenting and specifically provided that father could leave child in care of thirdparty during his parenting time -- Mother brought application to vary order because she wanted to be able topick up/drop of child at preschool when father was unable to, instead of his family members doing so -- Motherrefused to sign preschool form authorizing father’s family members to pick up/drop off child -- Mother’sapplication was dismissed on basis court order already addressed this issue and there had been no materialchange -- Father brought application for special costs -- Application granted -- Special costs were warrantedgiven father’s right to have third parties assist him during his parenting time was expressly addressed in order --Mother’s position she could veto father’s family members because preschool sought her consent was effectiverefusal to honour terms of court order -- Notwithstanding judge’s clear and direct comments on credibility andnature of mother’s allegations and evidence about care provided by father’s family members, mother continuedto pursue same and similar allegations, in significant part in reliance on very evidence previously before court --Judge gave mother benefit of doubt about her intentions at that time and she was not entitled to sameconsideration again in light of express terms of order and express warning about possibility of special costs.

G.S.G. v. N.C. (2020), 2020 CarswellBC 990, 2020 BCSC 582, Tucker J. (B.C. S.C.) [British Columbia]

FAM.XVII.12


Classification Number: XVII.12

Practice and procedure -- Miscellaneous

Application filed on behalf of respondent alleged that applicant was refusing to permit respondent to have herparenting time because of COVID-19 -- Respondent brought application for urgent hearing -- Applicationdismissed -- Respondent could reapply if applicant continued to deny her parenting time after receiving copy ofruling -- Respondent based her claim for urgency on two grounds, being applicant’s refusal to return child, andfact that applicant lived in home with his mother, who performed elder care in care home -- On first ground,respondent did not provide details of alleged denial of parenting time -- On second ground, mere possibility thatperson in someone’s home may have been in contact with someone carrying virus was not valid reason fordenial of parenting time -- In order for COVID-19 concerns to prevent contact between parent and child, theremust be more substantive reason for denial of contact, supported by some form of objective medical evidence,rather than lay opinion of one of parties themselves.

J.R.K.P. v. L.A.S. (2020), 2020 CarswellBC 991, 2020 BCPC 73, K.D. Skilnick Prov. J. (B.C. Prov. Ct.)[British Columbia]

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The Canadian Abridgment eDigests - Family Law - Western · 2020-06-08 · The Canadian Abridgment...

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