Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Hughes v. Hughes, 2014 BCCA 196 

1. CASE SUMMARY

Areas of Law: Family law; Child support; Contempt of court; Change in circumstances

~ An order for a custodial parent to pay child support to the non-custodial parent pending the return of the child may be cancelled in circumstances where the child is not returned~

Background: At the beginning of the proceeding that gave rise to this appeal, the parties had joint custody and guardianship of their child. The child’s primary residence was with the Appellant, Ms. Hughes. The Respondent, Mr. Hughes, had reasonable and generous access. In December 2007, the child was hospitalized as a result of having ingested an adult tranquilizer, Clozapine, which the Appellant accused the Respondent of administering. In February 2009, the court ordered by consent that a doctor investigate the Clozapine incident and prepare a report. The doctor was unable to determine how the drug came to be in the child’s system, and found that both parties were loving and capable parents who would not harm the child intentionally. Following the report, the court granted the Respondent scheduled unsupervised access visits. The Appellant responded to this by taking the child to Italy. She ignored the court’s order for the child’s return and was found in contempt. The divorce trial took place in late 2009, with the Appellant participating sporadically from Italy by telephone. In December 2009 the Appellant was found in further contempt of court, and on December 16, 2009 a warrant was issued for her arrest. Two days later, the Respondent initiated Hague Convention proceedings in Italy for the child’s return. The matter was heard in Italy on January 13, 2010. On January 15, 2010, the trial judgment of the divorce proceeding was released. It gave the Respondent custody of the child, but noted that as there was no way to know when the child would be returned to Canada, it was reasonable to order child support from the Respondent until the child came into his care. The Hague Convention court subsequently refused to order the child’s return due to a risk of “serious physical or psychological danger or an intolerable situation for the child if returned”. The Respondent’s appeal of this decision was dismissed, and he subsequently ceased child support payments. Meanwhile, shortly after arriving in Italy the Appellant had begun custody proceedings in the Italian court. In March 2012, the Italian court awarded custody to the Appellant and revoked the Respondent’s parental authority. In November 2012, the Respondent brought an application for orders to cancel or reduce unpaid, accrued child support, to relieve him from his child support obligations for the future, and to pay to him money garnished by the Appellant. In February 2013, the Appellant applied for orders calculating arrears of child support owed, an increase in the monthly amount payable, and committal of the Respondent for contempt of the January 2010 child support order. On June 11 2013, a chambers judge granted the orders sought by the Respondent. He remarked that the Respondent’s decision to cease child support payments was not right, but found that the child support order had been intended as a pro tem order pending the child’s return. Furthermore, he found that the Appellant had deliberately removed the child from the protection of the BC courts, and that she must return to BC and purge her contempt before seeking her relief.

Appellate Decision: The appeal was dismissed. The majority found the chambers judge had correctly found that the Appellant’s refusal to return the child to the Respondent constituted a material change in circumstances. The trial judge’s award of child support was transitional pending the child’s return, after which the Respondent would be in a position to financially support his child. The Appellant’s conduct in refusing to comply with the order to return the child had the effect of thwarting the Respondent’s ability to support her. The majority noted that the Italian court saw the matter differently, and concluded that it would be in the child’s best interests to remain in the Appellant’s custody. This arrangement resulted in the Appellant bearing the responsibility of supporting the child.

Chiasson JA would have allowed the appeal in part. There had been no material change in circumstances. At trial, the judge knew the Appellant was in contempt of court, but allowed her participation anyway. She knew the child was in Italy and she had no idea when the child would return to Canada, but she expressly refused to disentitle the child from support because of the mother’s conduct. The Italian court’s custody order did nothing to supplant the BC child support order. Chiasson JA would have set aside the order cancelling child support and remitted the question of whether child support arrears should be cancelled to the Supreme Court. The order paying to the Respondent money garnished by the Appellant remained because the Appellant was not entitled to relief from the court.

2. COUNSEL COMMENTS:

Provided by Wesley Shields, Counsel for the Respondent

“The question the Court of Appeal was required to decide in this case was whether the husband should be relieved from paying child support and whether the arrears of child support should be cancelled. The basis for the relief sought was as a result of the wife’s conduct in removing the child from British Columbia to Italy in 2009, contrary to court orders granted in this jurisdiction, one of which granted Mr. Hughes custody of his daughter after a six-day trial.

The application to cancel the child maintenance arrears and prospective support was initially heard before Justice McEwan on June 11, 2013. At the time of the application, the mother had not returned the child from Italy since moving there in 2009. The father had not seen the child since the mother left in 2009. The mother was in contempt of two court orders and had no intention to return to British Columbia. On June 11, 2013, the court ordered that all of the child support arrears would be cancelled, and no child support would be paid until further court order. Justice McEwan stated that: “I do so on the basis that the claimant’s (Mr. Hughes) responsibility is that of a custodial parent and that the exercise of that responsibility has been prevented by the respondent (Ms. Hughes) for three years.” Ms. Hughes appealed this order.

Prior to the appeal being heard on January 15, 2014, Mr. Hughes applied to have Ms. Hughes post security for costs, given that Ms. Hughes had no assets in British Columbia and was a resident of Italy. The matter was heard before Madam Justice Smith in the Court of Appeal on November 20, 2013. The Court of Appeal was called upon to balance competing interests, including that of a child to obtain support with the request by the husband for the posting of security for costs. The application of the father was ultimately dismissed, despite the unlikely ability of the mother to post security. The court felt that the important issues raised on the appeal required the matter to proceed. The court held that “where the issue involves the rights of a child to child support, an order for security for costs should not be ordered”. Justice Smith felt that the wife would be unable to continue her appeal if it required her to post security for costs.

On January 15, 2014, the husband also made a preliminary application to the Court of Appeal, requesting that the mother not proceed with the application until she had purged the two previous contempt orders made in the British Columbia Supreme Court. Mr. Justice Groberman acknowledged that the mother was in contempt of the orders granted by Mr. Justice Barrow and Madam Justice Beames, but exercised his discretion to hear the appeal, as the issues “concerned the rights of a child to financial support”.

When the appeal was ultimately heard on January 15, 2014, the court was required to revisit the well-established doctrine that child support is the right of the child. The argument is that it is generally inappropriate to link child maintenance to custody and access matters. In this case, the husband argued that a departure from the general proposition was justified in the circumstances which were before the Court of Appeal. The leading case of Turecki v Turecki, (1989) previously dealt with similar circumstances as this case. In Turecki, The British Columbia Court of Appeal cancelled child support arrears where the custodial parent deliberately thwarted court orders and denied the non-custodial parent access to the child. The court; however, held that the mother’s misconduct was not relevant to considerations with respect to further obligations of the father to pay prospective support.

In this appeal, the court was tasked with determining what was in the child’s best interest under the appropriate statutes. The Federal Child Support Guidelines, Divorce Act, Family Relations Act and Family Law Act specifically address the issue of child maintenance and the obligations of the parents to support children. The Divorce Act also empowers the court to make orders respecting access to children, and in making such orders, section 16(10) of the Divorce Act requires the court to ensure maximum contact with each parent. The British Columbia Court of Appeal was faced with the task of balancing these competing interests.

The decision of the Court of Appeal ultimately reaffirmed the decision reached by Mr. Justice McEwan in cancelling child support arrears and prospective child maintenance payments and held that: “…It is her conduct in refusing to return the child to the father’s custody that precludes the child from obtaining support from the father.”

At the conclusion of the hearing on January 15, 2014, the court directed supplemental written submissions be made to address how the conflicting custody orders made by the British Columbia Supreme Court (January 2010) and by the Italian court (March 2012), could be reconciled. The court requested submissions on the extent, if any, to which the order made by the Italian court has any impact upon this court in rendering a decision on the issue of child support.

Mr. Hughes argued that the British Columbia Supreme Court custody orders and the Italian court custody order do not expunge each other. Under the circumstances, the two conflicting orders appear valid in each of the jurisdictions where they were granted. Justice Smith in her decision for the majority of the Court of Appeal, addressed this issue and felt that the mother was “cherry picking those parts of orders from each jurisdiction the mother is in agreement” and held that: “Having chosen to pursue a claim for custody in Italy that is inconsistent with existing Canadian orders, in my opinion the mother can only look to the Italian courts for an ancillary order dealing with child support.”

The result is that Mr. Hughes pays no child support or any arrears, given the egregious conduct of Ms. Hughes. Mr. Hughes has yet to purge her contempt of British Columbia court orders, and if she returns to this jurisdiction with the child to purge the contempt orders, a court may revisit the maintenance issue. The reality is that Ms. Hughes is unlikely to return to British Columbia with the child, given the civil contempt and the fact that she would likely be required to return the child to Mr. Hughes.”