IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101224

Docket: E21194

Registry:
New Westminster

Between:

Trudy Irene Bain
(now known as Trudy Hovland)

Plaintiff

And

David Ian Bain

Defendant

Before:
The Honourable Mr. Justice Crawford

Reasons for Judgment

Motions

[1]          
Mr. Bain seeks increased access to his two children; Tyra, age 11,
and Alanna, age 8. As well he sought to vary child maintenance ordered by R. Holmes J.
on June 12, 2006. He also sought an accounting of monies held in trust although
no material was put in front of me regarding that and indeed not mentioned in
his outline.

[2]          
In a cross-motion, Trudy Irene Bain (now known as Trudy Hovland)
(“Ms. Hovland”) sought to vary the date Mr. Bain was to choose his
summer access from May 1 to March 15, and to specify a pick-up date and time
and a return date and time; that if he failed to make his choice he forfeit his
summer vacation; that any further applications to the Court by Mr. Bain be
subject to a security for costs; and for costs of the motion. No authority was
cited for the security for costs matter.

[3]          
An additional application was made by Ms. Hovland to be permitted
to travel outside of Canada without the defendant’s consent.

Background

[4]          
The parties had a lengthy relationship beginning in 1991 and marrying in
the fall of 1998. The marriage deteriorated after 2000, the year in which Mr. Bain
had a motor vehicle accident in October 2000. In August 2004 they separated
within the matrimonial home and in January 2005 Mr. Bain left the home. The
file paper reflects many attendances in court. The trial was held May 15 to 19,
2006, reconsideration was sought in September 2006, applications to vary in May
of 2007, and the matter went to the Court of Appeal in February 2008 where the
Court amended the trial judge’s property division but otherwise the trial
judgment remained intact. The trial judge awarded custody and guardianship of
the children to Ms. Hovland with access to Mr. Bain.

[5]          
Holmes J. heard further argument as to Mr. Bain’s access in July
2008 and made it clear that his fortnightly weekend access was suspended during
the holiday periods of Christmas, spring break and the summer.

[6]          
Mr. Bain brought a further motion seeking sole custody and
guardianship. In reasons given February 18, 2009 Holmes J. held there had been
no change in the circumstances before him and dismissed the application with
costs. Holmes J. did hold out some possibility of increased access should Mr. Bain
demonstrate more mature behaviour.

[7]          
In December 2009 Willcock J. heard Mr. Bain’s application to vary
child maintenance on the basis of reduced income and that application was
dismissed as well.

Evidence of Mr. Bain in support of his motion of April 23, 2010

[8]          
Mr. Bain said that due to the head injury he sustained in the motor
vehicle accident of October 2000 he was still on CPP permanent disability.

[9]          
He said in February 2010 he was receiving $817.59 per month. He said
$200 per month was being deducted for support of a 22 year old son of his first
marriage although there is no explanation why he was still supporting a child
over 19. He said therefore he had a net income of $617.59. He then said that
the plaintiff was receiving $429.70 of his Canada Pension Plan disability but
gave no explanation as to how that occurred. He said he was also paying $350
per month from his share of assets held in trust for child support court order
of $350 per month.

[10]       
He said he was renting a two bedroom suite in Maple Ridge for $800 per
month and had done so since October 2006. That was a change from his trial
evidence where he said he was living rent-free in exchange for handyman work.

[11]       
He gave no evidence as to why he had moved from his 2006 situation of
being rent-free. He gave no explanation as to why he was not working as a
part-time handyman as he had been at the time of trial in 2006. He filed no
Form 89 showing his financial circumstances (i.e. income and expenses, assets
and liabilities).

[12]       
He said he had a good relationship with the children and they were
telling him they wished to spend more time with him. He provided letters of
neighbours who said he was a good parent. All of the letters pre-dated the application
for custody made in 2009. He claimed he was not getting information regarding
school events in spite of his regular weekend attendances with the children.
None of the balance of the affidavit nor Mr. Bain’s outline dealt with the
monetary issues raised in the notice of motion regarding the disposition of the
family property. A reconciliation statement was provided to the Court and I am
satisfied with that and accordingly dismiss those aspects of Mr. Bain’s
application.

Ms. Hovland’s affidavit evidence

[13]       
Unfortunately much of Ms. Hovland’s affidavit as to Mr. Bain
was argumentative. It is difficult for in-person litigants to realize this but
the rules have always been that affidavits state evidence, not argument.

[14]       
She noted the letters from Mr. Bain’s friends and neighbours were
seen by Holmes J. in his 2009 judgment. She pointed out Mr. Bain has
access to the school calendar if he wants to attend the school events to see
the children.

[15]       
She raised the issue of Mr. Bain’s lack of judgment as he patently
continues to tell them that they have a right to make up their own mind with
whom they live when they are age 12 (i.e. he is talking to the children about
the litigation and particularly the access issue). She said he puts it as a
threat “the children will decide when they are 12”. She made reference to Dr.
England’s section 15 report of 2006 in which she noted Mr. Bain was
inconsistent, self-centred and lacking insight, and having shallow
relationships. In that context she noted the children had mentioned the several
different women that Mr. Bain had been associated with and now was
evidently in an internet relationship with a lady from South Africa.

[16]       
Ms. Hovland’s motion of May 8, 2010 sought to vary Mr. Bain’s
date of choice of summer vacations from May 3 to March 15 each year; that on
making his choice he stipulate the pick-up date and time and return date and
time, and should he fail to abide by the deadline he forfeited his choice for
the summer holidays. As well, given the number of applications made by Mr. Bain
without success, she sought an order for security for costs in advance of any
further application.

[17]       
By further motion on September 30, 2010 she sought Court permission to
travel with the children outside British Columbia at any time without consent
of Mr. Bain.

Mr. Bain

[18]       
During the course of the hearing, Mr. Bain had difficulty
maintaining lines of thought and argument. I have carefully reviewed a number
of the affidavits that have been filed and they are repetitious and often
argumentative.

[19]       
During the court proceedings he advised he would not be able to see the
children on Father’s day and cited surgery as the reason. In fact he
subsequently advised the Court that he had gone to South Africa to participate
in a wedding ceremony with a South African lady and said all the costs were paid
by “Wendy”.

[20]       
His documents attached to the affidavits indicate he still has
difficulty communicating in a civil manner and indeed called Ms. Hovland
some terrible names in the course of some of the correspondence. As well Ms. Hovland
lost her father rather suddenly, and sought an adjournment by consent. Mr. Bain
would not grant that and a court appearance was required. Mr. Bain also
put in evidence a letter from Wendy that I note is typewritten, not signed, has
an incorrect date and no address.

Discussion

[21]       
Regrettably I see no change in Mr. Bain’s behaviour which is
consistent with the observations of Dr. England, and Holmes J. in previous
judgments. I see no point in repeating the observations of those commentators.

[22]       
His behaviour in front of me in the courtroom also showed his
difficulties in seeing the need to act in a responsible manner regarding the
children. While he describes the many court applications as being “for the
children and in their best interests”, in fact they are not. They are
repetitious. They are time-consuming and costly to Ms. Hovland. They do
not reflect any material change in circumstance save the reality that the
children are getting older.

[23]       
He has involved the children in discussions about their mother. There is
a line to be drawn about asking what their ongoing activities are and what
their mother is doing. In terms of the children’s activities he has access to
the school calendar and he says he has a good relationship with the children so
there is no reason why he cannot plan out a calendar each year so he can see
them during school activities and their sports events.

[24]       
With respect to Ms. Hovland’s application that Mr. Bain give
notice of his choice of weeks in July and August I order Mr. Bain to give
notice in writing by March 15 each year of which weeks in July and August he
intends to have the girls in his care. He is to stipulate the date and time of
pick-up and date and time of return of the children to Ms. Hovland.

[25]       
Should Mr. Bain fail to make his choice by March 15 each year, then
Ms. Hovland may specify any weeks that she wishes the children for July
and August and leave one week in each month open for Mr. Bain to have the
children in his care.

[26]       
I further order that Ms. Hovland is permitted to travel anywhere
outside of British Columbia with her children without need or authorization or
permission of Mr. Bain and she may produce a copy of the order I sign to
any government official as proof of the order.

[27]       
I further order that Ms. Hovland is to give Mr. Bain 21 days
notice of any trip outside British Columbia exceeding seven days including a
brief itinerary of a proposed trip (e.g. Los Angeles and Disneyland with the
children).

Income and Child Maintenance

[28]       
I note Mr. Justice Holmes found Mr. Bain earned approximately
$22,000 without taking into account free rent in 2005.

[29]       
Mr. Bain has sought to vary his child maintenance several times,
the last before Willcock J. in December 2009.

[30]       
He does not appear to be making any effort to obtain any income other
than his CPP disability. He has no visible means of support as plainly his
income does not meet his most basic living expense.

[31]       
I note in his affidavit materials Mr. Bain is proud of being an
outdoorsman. As well he spoke glowingly of his previous experience at the Ontario
SPCA so he is good with animals. At trial he gave evidence of being a handyman
and carpenter. If indeed he has sustained a head injury which makes the
insurance adjusting or collection agency work that he previous did not as
feasible, there is still no reason why he cannot obtain other employment
part-time as he had at trial. There is no up to date medical assessment to
support his incapacity. To the contrary on his appearances in court he seemed
very fit. Indeed the judgmental issues he has seemed to be confined to his
relationship issue with Ms. Hovland which would surely have no place in
any workplace. And last I note again to the extent he has divulged income and expenses,
sparse as they are, they make no sense.

[32]       
Accordingly I dismiss the application to vary his child maintenance.

[33]       
Ms. Hovland is entitled to her costs.

Successive Applications and Case Management

[34]       
There are now two boxes full of court records on this matter, reflecting
application after application by Mr. Bain. Evidentially court orders have
been made for costs and Mr. Bain has no means of paying those.

[35]       
Accordingly given this matter was referred to me for case management I
will seize myself of the file for two years (i.e. 2011 and 2012). Should an
application be made by either party, I direct the registry to bring the
application before me to see whether there are grounds for the matter to
proceed to hearing.

“The
Honourable Mr. Justice Crawford”