Parenting time right of first refusal; court find disruptive to children when parent only away for short time – Family Law

Hannaford v. Hannaford, 2016 BCSC 398

One issue dealt with in this decision was whether a “right of first refusal” (regarding parenting time) adopted by the parties first in Minutes of Settlement, and later incorporated into a consent order remained appropriate.

The “right of first refusal” required that if one parent was unable to care for the children for a period of at least four hours during their parenting time they must offer the other parent the opportunity to care for the children during that period. At the time of this decision the children were 15, 13, and 9 years old.

The father argued that the “right of first refusal” was impairing his ability to normally parent the children when combined with his work schedule and required commuting time. The mother maintained that it was best for the children if they were with her while the father was not available. A section 211 report prepared by a psychologist recommended that the “right of first refusal” be abandoned. There was no concern about whether the children would be adequately cared for in the absence of the father.

Justice Gray found that requiring the “right of first refusal” after only four hours was disruptive to the children under the circumstances decided that the period for invoking it should be extended from four hours to twenty-four hours. How this number was arrived at was not explained.

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Court clarifies child support calculations for disabled adult children – Child Support

Sindaco v. Sindaco, 2016 BCSC 389

This case involved the determination of the appropriate amount of child support for an adult who remained a child of the marriage due to psychological disability. The adult child was estranged from his father, who was the payor, and lived with his mother, who was the recipient.

The father earned approximately $53,000 per year, and the mother $10,890. Their proportionate split of their incomes were 83% and 17% respectively. If the Federal Child Support Table were applied the father would pay table child support of $488 per month.

The adult child received $906 per month in disability benefits.

Justice Steeves applied the approach from Kohlmuss v. Kohlmuss, 2015 BCSC 1101 in determining appropriate child support, which requires the

-calculation of reasonable costs of the child;

-deduction of the amount of the disability benefit; and

-division between the parents proportionate to income of any shortfall.

One topic of discussion was to what extent the adult child should be afforded discretionary spending money. Justice Steeves determined that inclusion of some spending money was an appropriate expense, despite the child’s history of using such money wastefully, or in some case for purposes harmful to himself.

Ultimately, Justice Steeves found that the current situation where the child was allowed to spend much of his disability benefit as discretionary funds was not appropriate; however, determined that an amount of $50 per week for discretionary spending was appropriate.

The child’s expenses were calculate as $1,140 per month leaving a shortfall of $234 after the disability benefit was applied. The father’s proportionate share based on income was therefore $194.

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Tenant’s grow-ops and knowledge: when will your insurance be invalid? Insurance Law

Bahniwal v. The Mutual Fire Insurance Company of British Columbia, 2016 BCSC 422

The plaintiff’s owned and operated a garden center in Oliver, BC, which was severely damaged by fire. The plaintiff’s also operated a residential rental suite on the property. In the course of responding to the fire it was discovered that the rental suite contained a marijuana grow-op conducted by the suite’s tenant.

There was no indication that the fire was at all related to the grow-op, though the cause of the fire was undetermined. The plaintiff’s insurer refused to cover the fire damage on the basis that they believed the plaintiff was aware of the grow-up, but failed to disclose it to the insurer. The insurer maintained that had the grow-up been disclosed they would have declined to renew the plaintiff’s insurance.

Statutory conditions 1 and 4 of fire insurance policies allow the insurer to void the insurance where there is a misrepresentation, or a failure  to disclose a material change to the risk to insured property.

The main issue was whether the evidence supported a finding that the plaintiff was aware of the grow-op either directly, or through her husband. The plaintiff denied any such knowledge.

While neither the plaintiff or her husband conducted period inspections of the suite, they had on one occasion attended to inspect the suite to determine whether it would be suitable for housing seasonal farm workers, and on other occasions attended to complete repairs and modifications to the suite. The evidence supported that the plaintiff’s husband attended the suite roughly every few months, and either entered the suite, or looked in through the window. The plaintiff and the defendant denied that anything ever appeared amiss.

The hydro bills for the suite went directly to the plaintiff’s husband, who then gave them to the tenant to pay. Some of these bills showed substantial fluctuations in the power used by the suite, which a police officer indicated was consistent with a grow-op existing many months before the fire. The husband testified that as the tenant always paid the bills he did not pay attention to the amounts.

Justice Joyce found the plaintiff and her husband to be credible, and accepted their testimony that they were not aware of the grow-op. As such, the insurer was required to honour their insurance contract.

The plaintiff sought punitive damage based, however they were not successful as Justice Joyce found that the insurer had not acted in bad faith, or with undue haste, and that based on the evidence they had a reasonable, though ultimately incorrect, basis for denying coverage.

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