Canadian Lawyer

LEGAL REPORT/family law "litigation conduct" relating to the sale of a property and to parenting arrangements. Supreme Court of British Columbia Justice Neill Brown's decision, released May 21, followed a series of actions on the part of the mother — the defendant — that Brown criticized as "intransigent and obstructive." The couple had a high-conflict divorce trial in August 2011, following the breakup of their 18-year marriage. The children were living with their mother in southeastern B.C. and the father was ordered to pay $900 a month in child support. The claimant, "an exemplary father," according to Brown, had to move to Vancouver out of financial necessity. The pair disagreed over the listing price for a jointly owned commercial property they needed to sell to stabilize their finances. Between June 2010 and January 2013, the mother consistently thwarted the father's attempts to sell the property for a realistic price, resulting in a string of legal actions. Examples of her "oppositional behaviour" listed in the 50-page decision included changing the locks, refusing to provide keys, ignoring e-mails, and failing to reveal in a timely fashion that her solicitor had placed a lien against the property for legal fees. On one occasion, the father travelled 33 hours by bus to see the children over the weekend, only to have to spend five hours finding a locksmith so an appraiser could value the property. The delays in selling the property occurred at the same time the market was declining. This meant it could have sold for $399,000 but was eventually sold for just $150,000, according to Brown's ruling. Taking account of the debts that had accumulated in this period, the sale left an equity loss of $79,000. "Had the [mother] acted more reasonably, with just a modicum of cooperation, the parties, between them, easily could have realized an estimated $600,000 from all the family assets, divided it, paid their debts, and re-established financial stability," said the ChildView 48 august 2013 hildview_CL_Aug_13.indd 1 www.CANADIAN L a w ye r m a g . c o m ruling. "This was a heavy and unnecessary capital loss for a young family to suffer; one that was surely avoidable." The father also had to argue for the right to see his 12-year-old son and teenage daughter one-on-one, after the mother ignored a court access order. The "needless litigation" led the claimant to receive counselling for stress, precipitated a "very painful medical condition that has needed surgical procedures," and hindered his capacity to spend time with the children, according to Brown. In weighing whether to grant the father's application for principal residency for his son, Brown turned to the Family Law Act, which replaced the Family Relations Act. Under s. 38 of the new act, a court must consider the presence, and seriousness, of family violence. Brown's ruling stated: "I find the [mother's] litigation conduct, related both to the selling of the commercial property and to parenting arrangements, considered in their totality, is a form of emotional abuse and harassment that constitute a form of family violence." Geeta Bains, Canadian Bar AssociationB.C. family law section co-chairwoman for Vancouver, says the case "sets out some guidelines for defining family violence, but went beyond what most lawyers, as well as a lay person, would think of as family violence." She says she will be highlighting the increased importance of good litigation conduct in discussions with clients. It is not unusual for a parent's conduct to be considered by a court if it substantially affects the best interests of the child, as it may be perceived as predictive of their future behaviour. This was seen in B.D.N v. D.A.N, a 2003 B.C. Supreme Court decision in which sole custody was granted to a plaintiff, against a mother who had formerly gone "into hiding" with her children. Justice R. Dean Wilson said: "Children's lives are not laboratories to provide a proving ground, by trial and error, for the determination of the capacity of a parent." If M.W.B had been tried under the old legislation, the defendant's litigation conduct would have been considered, but it probably "wouldn't have played as big a role," Bains contends. Her co-chairwoman 13-07-09 2:35 PM

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