12 November 2013

Failure to Pay Child Support may Constitute "Family Violence" under the Family Law Act

In the recent decision of J.C.P. v J.B. the Provincial Court has characterized as person's failure to "pay child support on time and in the full amount" as "family violence" within the meaning of s. 1 of the Family Law Act, and then applied this finding to determine the appropriate arrangements for the care of the parties' child. This decision continues a trend toward the broad interpretation of "family violence" I last remarked on in my discussion of M.W.B. v A.R.B. in my post "Litigation Conduct may Constitute 'Family Violence' under the Family Law Act."

In J.C.P., Judge Merrick was asked to determine a range of issues including child support, parenting arrangements for a four-year-old and whether family violence had occurred. Each of the parents made allegations of physical and sexual violence against each other, with the conflict in the evidence provided which is commonplace when such claims are raised, such that the court could not determine what had actually happened. The court was, however, able to conclude that the father had committed family violence as a result of a combination of his failure to pay the full amount of child support owing and his other behaviour. 

Before getting to the case, a quick review of the meaning of family violence will help to explain where the judge was coming from. This is the definition found at s. 1 of the new act:
"family violence" includes
(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, 
(b) sexual abuse of a family member, 
(c) attempts to physically or sexually abuse a family member, 
(d) psychological or emotional abuse of a family member, including 
(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, 
(ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, 
(iii) stalking or following of the family member, and 
(iv) intentional damage to property, and
(e) in the case of a child, direct or indirect exposure to family violence;
As you can see, this definition is very broad and can include inflicting psychological harm and restricting funds. Now let's look at Judge Merrick's decision (important bits in bold):
"[15] With respect to [the father's] failure to pay child support on time and in the full amount, I am satisfied that this failure, combined with his other actions and words, constitutes family violence. I am satisfied that his failure to pay was a calculated and deliberate act designed to inflict psychological and emotional harm and to control [the mother's] behaviour. I am satisfied that [the father's] goal was to destabilize [the mother's] parenting of [the child]. 
"[16] I have come to this conclusion based on the following:
(a) [the father's] repeated failures to pay monthly child support, as ordered, for more than a year despite having an ability to do so; 
(b) [the father's] communication to [the mother] that other than child support, what could he do to assist her in parenting [the child]; 
(c) [the father's] actions in placing $20 in [the child's] backpack which went back and forth with [the child] as if it was some form of an allowance for [the mother]; 
(d) [the father's] view that child support was not due on the 1st of the month, as ordered by the court, and that he could choose to pay it within the month and whenever he chose to within the month
(e) [the father's] initial reluctance to contribute to the cost of [the child's] required dental care; and 
(f) [the father's] steadfast refusal to pay child support despite the considerable number of urgings and the explanation by the court as to the importance of child support.
"[17] While it is true that, recently, [the father] has been fulfilling his obligation to support [the child], I have concluded, based on the repeated urgings of the court and the repeated warnings to [the father] about the provisions of [the extraordinary enforcement remedies] of the Family Law Act, that his recent compliance is due to the fact that he reasonably believed he would be imprisoned if he did not pay child support in accordance with the court order. 
"[18] While I am of the view that the failure to pay child support will not often constitute an act of family violence, when the failure is the result of a determined decision not to pay, knowing the impact it would have on [the mother], who had limited income, and my rejection of [the father's] explanation for failing to pay, I have concluded that this was designed to inflict psychological and emotional trauma to [the mother] and is therefore an act of family violence
"[19] I am also of the view that this has impacted [the child's] well-being and that [the father's] ability to care for [the child] is impaired. 
"[20] [The father] used a secret surveillance camera to record a parenting time exchange and then used those images in court to show how well the exchange went. [The father's] submitted that he did this to rebut any suggestion that a third party was required at the exchanges. If this was, in fact, the case, however, why would he not have advised [the mother] of that? The use of the images in court created a real concern for [the mother] as to what else has been secretly recorded. I am of the view that the use of the images in court was designed to inflict emotional trauma on [the mother] This does raise concerns about the appropriateness of an arrangement that would require the parties to cooperate. 
"[21] Finally, I agree that [the father's] recent breakfast invitation to [the mother] in [the child's] presence, without prior notice to [the mother], was designed to be coercive and controlling behaviour. [The father] knew that if he had asked [the mother] in advance, [the mother] would likely have declined the invitation. This, too, demonstrates that [the father's] ability to care for [the child] is impaired. In [the child's] presence, [the mother] had no choice but to agree. 
"[22] [The father] suggested that this showed that he and [the mother] could act as a family. It was controlling behaviour which, in the context of all of the evidence in this case, demonstrates [the father's] poor decision-making in matters relating to [the child]."
After determining that the father's behaviour constituted family violence and that the violence impaired the father's ability to care for the child, the court then concluded that:
  1. the parties would share decision-making authority on matters related to the child's social upbringing, giving or refusing consent for medical treatments and the receipt of information related to the child's health and education;
  2. the mother would have sole decision-making authority for determining where the child would live, extracurricular activities, passports and licences, the child's legal interests and the child's financial interests, as well as "any other responsibilities reasonably necessary to nurture" the child's development; and,
  3. the father would have parenting time with the child on a schedule more or less as proposed by the mother, which included plans for overnights and holidays.
If there are lessons to be drawn from this case, and I suggest there are, they are these.

First, the courts take a very dim view of any sort of manipulative behaviour that can be characterized as falling into the very, very broad scope offered by the definition of family violence at s. 1 of the act. This certainly includes efforts to control someone's life by playing around with child support. I have seen this sort of petty, juvenile behaviour far too often, usually by male payors of support who feel pissed off and aggrieved that they have to pay money to their ex and fail to understand that the money is actually being paid for the benefit of their children. Here are the some of the rules.
Child support is almost always due at the beginning of the month. If it's due at another time, the order or agreement will say so. You don't have the right to delay your payments because you're mad at the other parent or for any other reason.
Speaking of orders and agreements, you don't have to have an order or an agreement to pay child support to have to pay child support. You are liable to pay for the support of your children the moment you separate and you stop paying for common expenses.
You do not have the right to withhold or shortchange a payment for revenge because you haven't seen the children, because you are short of cash or for any other reason.
Second, the sort of scheming behaviour some people engage in, intended to show the weak points of the other parent, is rarely effective. More often than not, the surreptitious taping or recording of events makes the person doing the taping or recording look far worse than the person being taped or recorded. The court does not appreciate this sort of thing, especially when it is clear that what is being taped or recorded is actually a set up or has been provoked.

Let me wrap this up with one more quote from the decision:
"[49] For the reasons I have given, I am of the view that [the father] needs to change his behaviour. The family violence must stop. There must be increased cooperation. Conflict must be minimized. This is an example of the type of conflict and criticism that must stop. At the conclusion of this case, [the father] submitted, 'I maintain and present that what the sum of the evidence shows is that there was an intention to run the clock as long as possible to make me have as many mistakes, to reduce and imperil, even with the most serious complaints, completely imperil my relationship and the ability to have a relationship, a fulfilling relationship, a complete parental involvement with [the child]'.
"[50] I do not agree that there is any evidence to support that what occurred here was the 'running of the clock'. I think this is again but one illustration of the conflict and criticism that must end. 
"[51] Therefore, pursuant to s. 199(1)(b) of the Family Law Act, [the father] shall attend, participate in, and successfully complete counselling, including psychological counselling and parenting courses, and provide proof of his attendance at counselling. Such proof must be filed no later than 3 p.m., May 31, 2014, at the court registry in North Vancouver."
My thanks to my colleague Laura Track for bringing this case to my attention.

11 comments:

  1. Wow! I am excited to read this, as I am a mother going through the same thing. I will use family violence via child support in my argument!

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  2. What are the consequences if someone does not make the first child support payment on an interm consent order made by the parties lawyers?

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    1. Normally not much, although it doesn't reflect very well on the payor. The cheapest course of action for the recipient would be to enrol in the Family Maintenance Enforcement Program. They're not so fast, but they'll take care of enforcing the payments.

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    2. FMEP have been great for me. Yes it takes awhile to get enrolled but they sure do enforce. I am dealing with a very difficult payor who is definitely using the withholding of monies owed as a form of control. He hopes it will distress me and result in me not being able to do fun things with the kids. I will definitely point this case out next time in court, and I am so glad to see psychological violence being recognized by the courts. It has been invisible and elusive for so long.

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    3. Im dealing with payor with holding support to force final orders settlement . Do the courts see this ? We are really going without , its been 7 months . I am with Fmep but my orders are not current as one daughter is of age now and another one came back to live with me . The payor should pay for how many ate in my care just out of good faith and not to cause hardship ?

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    4. The courts won't see that the payor is withholding money unless you make an application to court. You could make an application to change the old order to bring it up to date, and let the court know about the money that's being withheld along the way. FMEP should enforce the old order until it gets changed.

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    5. I just did this and had court on Tuesday but we did not get heard . Just after i posted this and checking my account thier was a payment made for July . I guess the court action changed things and i hope i see the rest of the arrears , i have no problem with another application with costs if i have to . Im having a difficult time dealing with getting final orders , retro active support with a more fair updated income and the divorce . 6 1/2 yrs into it . This is for my kids and the payor should feel the same

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  3. The definition of violence is in the criminal code and lawyers,law makers etc should be following and respecting the criminal code!

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    1. Actually, the Criminal Code does not define "violence." The Family Law Act talks about "family violence," which it defines at s. 1. If you believe the Family Law Act should not defined family violence, you should talk to your MLA or the Minister of Justice.

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  4. My daughters biological father left me when I was pregnant it's taken 4 years for them to locate him. He finally has been served. Since she was 5 months old my boyfriend helped me look after her. We split and he had to pay support for her. We are back together now I'm just wondering how this affects things. Do I still get the 4 years of back pay or minus what my boyfriend has paid?

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    1. A parent owes child support because he or she is a parent. It's got nothing to do with whether the parent is in the child's life or not, and nothing to do with the other parent's living arrangements. Nothing at all. And when two people owe child support, they each pay according to their income... what they pay isn't offset against each other or anything.

      As far as retroactive child support goes, the limit is usually three years, but there are a bunch of factors that can extend or shorten the time.

      You really just speak to a family law lawyer in your neighbourhood. If you can't afford to pay the full freight for an hour of a lawyer's time, you might be able to see a lawyer for free through Access Pro Bono, or get a half hour of a lawyer's time for $25 through the Lawyer Referral Service.

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