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
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):(iv) intentional damage to property, and(e) in the case of a child, direct or indirect exposure to family violence;
"[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:
- 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;
- 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,
- 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.
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.
