Henderson Heinrichs LLP

Weekly Family Law Roundup #1

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio) Published: July 14, 2015

Categorized: Case Analysis, Child Support, Commentary, Costs, Divorce, Family Court, Procedure.

On July 7, 2015, the Supreme Court of BC gave judgment on K.T. v. D.C.P., 2015 BCSC 1179, a family case involving two self-represented litigants and, in my view, a clear call for increased funding to Legal Aid BC. The full text of the decision can be found here.

Both parties were unemployed and unable to afford counsel for the three day trial. The Honourable Mr. Justice Ball begins his reasons with “This family litigation has an extensive history of conflict” and notes that the Respondent “has adopted a policy that there is ‘no detail too small’ to be brought to the attention of the court”. Indeed, this is shown by the 25 affidavits he filed since 2009.

The volume of material was not the only problem. Legal issues were poorly defined and, at best, a moving target. In final argument, the Respondent introduced new issues, some involving absent third parties, which he had not led evidence on and the Claimant had no opportunity to address. All told, the Respondent sought 17 orders and the Claimant sought 11.

Mr. Justice Ball rejected most of the Respondent’s evidence as meritless and ascribed very low credibility to him. Most of his evidence was categorized as unsupported allegations, disingenuous claims, and claims lacking sufficient evidentiary basis. Some of the Respondent’s claims were truly absurd, such as blaming the Claimant for market changes that adversely affected property values. Other claims were rejected because the Respondent led no expert evidence, which he was specifically told to obtain at the trial management conference. The Respondent also sought to effect sweeping changes to the child’s care arrangement without leading any evidence or cross-examining the Claimant on the matter.

The Respondent sought several relatively novel claims as well. First, he sought reimbursement for a child support overpayment of $1581. Mr. Justice Ball noted that these funds were in fact used for support and the error was made over three years ago, and therefore refused to deviate from the general rule of rejecting such claims. What makes this claim unusual, though, is that the Respondent unsuccessfully sought an order to have the bulk, $900, returned on a prior occasion. This is clearly a res judicata situation.

Next, the Respondent sought an order that if he ever incur a child support obligation, his liability should be offset against the Claimant’s household income, including the income of all persons living under the same roof. The Claimant, who was unemployed and received a personal injury annuity, lived with her parents and at least one produced an income. Mr. Justice Ball rejected the Respondent’s argument because “household” under Schedule II of the Child Support Guidelines captures only spouses.
Next, the Respondent argued he was eligible for spousal support because he contributed financial resources “into what he believed was a Christian covenant lifetime marriage commitment.” Mr. Justice Ball did not address this argument and instead examined Bracklow, Moge, and the Divorce Act’s objectives in dismissing his claim.

Lastly, Mr. Justice Ball awarded costs to the Claimant, which is interesting because both were self-represented. Skidmore v. Blackmore (1995), 1995 CanLII 1537 (BCCA) is the authority for this decision. It reverses the practice of not awarding costs to self-represented litigants.

Overall, this is an extremely frustrating case because of the significant waste involved. One can’t help but conclude that if both parties had representation, a much greater level of reasonableness would prevail and thereby expedite matters. Three days is quite a long time for a judge and courtroom to be occupied by matters that probably don’t require trial or, at a minimum, compel a much shorter trial.

Jeffrey L. Hartman

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