Bateman v. Bateman, 2013 BCSC 2026

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bateman v. Bateman, 2013 BCSC 2026 Date: 20131107 Docket: 13-2883 Registry: Victoria Between: Andrea Margaret Bateman Claimant And: Douglas Frederick Bateman Respondent Corrected Judgment: The text of the judgment was corrected at paragraph 52 on November 14, 2013 Before: The Honourable Greyell Reasons for Judgment Counsel for the Claimant: N. M. Silzer Counsel for the Respondent: H. M. Jaeb Place and Date of Trial/Hearing: Victoria, B.C. October 31, 2013 Place and Date of Judgment: Victoria, B.C.

November 7, 2013 [ 1 ] The claimant, Andrea Bateman applies for interim child support, spousal support and for an order under s. 90 of the Family Law Act , S.B.C. 2011, c. 25 (the “ FLA ”) that she and the children of the marriage have exclusive occupancy of the family home located at 9165 Inverness Road, Saanich, BC (the “family home”). [ 2 ] The parties have agreed they will share joint guardianship and joint parenting responsibilities of their two children. Background [ 3 ] The parties married on August 6, 1995.

They separated September 30, 2012, thus ending a 17 year relationship. [ 4 ] They have two children, Sean Andrew born September 30, 1996 and Jackson Douglas born June 25, 1998. Sean is now 17 years old; Jackson is 15 years old. [ 5 ] Since separating on September 30, 2012 the parties continued to share occupancy of the family home with the respondent living downstairs. [ 6 ] In June, 2013 the parties commenced attending mediation in an attempt to resolve their outstanding family law issues: including child and spousal support and the division of family assets.

While they have made progress they have not been successful in resolving those outstanding issues.

They have put in place a temporary arrangement whereby the respondent has been paying $500 per month support to the claimant as well as all household expenses and expenses relating to the children. [ 7 ] The two main family assets are the family home (in which they have a joint equity of some $600,000) and a business which owns and operates a franchise in a local retail outlet. [ 8 ] Pending resolution of their outstanding issues the parties put in place what they refer to as a “nesting” arrangement whereby the children remain in the family home and the claimant and respondent take turns living in the home, caring for the children on a one week on/one week off basis. [ 9 ] During the time Ms.

Bateman is not residing in the family home with the children she stays with family or friends. Mr. Bateman resides with a new girlfriend during the period he is not residing with the children at the family home. [ 10 ] The arrangement has not proven satisfactory to Ms. Bateman. She says she has no real alternate place to stay, that she has been

relying of the generosity of her family and friends; that the arrangement forces her to “couch surf” with no reliable place for the children to contact her should they need to other than on her cell phone and no place to come and stay with her should they wish to do so.

She also says the resolution of the family law issues is taking longer to resolve than she had thought and this is having a negative impact on the children. [ 11 ] She says the financial arrangements she entered into with the respondent do not enable her to find suitable (or any) alternate accommodation. [ 12 ] Accordingly in early September, 2013, she advised the respondent she would be moving back to the family home on a permanent basis when the children started school and until the parties had resolved their financial issues. [ 13 ] She did so and in doing so this had resulted in an inevitable increase in tension between the parties. [ 14 ] Mr.

Bateman says the nesting arrangement is the best possible arrangement until the parties sort out their financial affairs and that the arrangement has not impacted on the children. He says there has been no noticeable impact on the children’s welfare; that he has a good relationship with both children and that he is able to fully attend to their needs while he is exercising his shared parenting responsibilities. [ 15 ] There is no doubt both parties are devoted parents.

Each is concerned with the health and welfare of their children and each is and wants to remain actively involved with them and to have maximum contact as possible with them. It is the desire which led to the nesting arrangement being entered into. [ 16 ] The only “hard” evidence which is before me about the effect of the “nesting” arrangement on the children is in Ms.

Bateman’s affidavit of October 19, 2013 to the effect that in an interview with a child specialist in early July, 2013 neither child had any difficulty with the arrangement continuing although each wanted “the difficulties to be over as soon as possible”. That evidence, however, is dated and there is other evidence alluded to by Ms. Bateman that the boys are feeling the effect of the struggle between their parents. [ 17 ] Ms. Bateman is currently 50 years of age. Prior to the marriage she worked as a lab technician.

During the marriage she stopped working and performed the traditional role of homemaker, attending to the needs of the family as the children were young. [ 18 ] In 2011 she returned to part time work as a lab technician at Camosen College where she works part time in two departments. She works at the college between September and April and has received employment insurance during the summer months when she is not working. The parties agree her guideline income is $25,000 per annum. [ 19 ] Mr. Bateman is 49 years of age and is a businessman.

Through two holding companies he holds a franchise for the Marks Work Warehouse in Sydney, BC. Prior to January, 2013 the income earned from the business was distributed, either through employment income or dividends roughly equally to both Mr. and Mrs. Bateman. [ 20 ] Mr. Bateman has also been active in the raising of the two children and, in most recent years, has reduced his time at work in order to spend more time with the children. I am satisfied Mr. Bateman is an active and involved parent with his children. [ 21 ] As stated earlier Mr. Bateman is now paying Ms.

Bateman $500 per month support plus all child related and household expenses. On September 11, 2013 he paid her a lump sum amount of $10,000 ($15,000 less income tax). Discussion [ 22 ] In my view the claimant is clearly entitled to spousal and child support. There is no real issue over her entitlement to such support. The substantive issue between the parties is the amount of guideline income to be attributed to the respondent. 1. Guideline Income [ 23 ] I first turn to a consideration of Mr. Bateman’s guideline income. The parties agree Ms.

Bateman’s guideline income is $25,000 per annum. [ 24 ] The claimant says Mr. Bateman’s line 150 guideline income should be set at $228,800, an amount which is based on the average earnings distributed by the business to both parties over the last three years. [ 25 ] The total employment income shared between the claimant and respondent over those years was: 2010 $265,000 2011 $192,900 2012 $228,700 [ 26 ] Mr. Bateman says his guideline income should be set at $191,768. He arrives at this amount by taking a four year average of his earnings from the business. In his response affidavit he says : 11.

The best way to determine how much income from the business that is available to me for the purpose of paying child support is to look at the Work and Weekend Enterprises Ltd. statements over the last four years and add the management fees and corporate profit before taxes to arrive at the following totals:

Year 2009 2010 2011 2012Management fees ($) 282,000 307,500 191,500 241,500Profit before taxes ($) 26,305 13,307 20,537 13,170Total ($) 308,305 320,807 212,037 254,67012. There has been a downturn in the business each year since 2009 to date. 13. The total for the year 2010 is high and is not a good representation of the business income for that year as there were computersystem problems in 2010 which made it very difficult to establish correct inventory levels. 14.

The four year average from the table above is $273,954 and 30% is required to be retained by the business to ensure corporatestability in the event the store location is moved and to start planning for store renovations, which are long overdue. The store has notbeen renovated in 11 years and renovations are required if the business is to remain competitive. This leaves 70% of $273,954 or$191,768 that is available to me for the purposes of determining support obligations. [27] While the average from the table is $273,954 Mr. Bateman says he and Ms.

Bateman have been drawing too much from thebusiness over the past number of years, that 2010 year is not a representative year and that 30% of the above amount is required to beretained by the business to ensure “corporate stability”: that is, to plan for a possible store relocation and “to start planning for storerenovations which are “long overdue”. 2. Spousal Support [28] In assessing the amount of interim spousal support payable to Ms. Bateman I have considered the various factors set out in s.161 (

a) to (d), of the FLA (mirrored in s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) 161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives: (

a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or thebreakdown of that relationship; (

b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide supportfor the child; (

c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (

d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. [29] I have also considered the “conditions, means, needs and other circumstances of each spouse” as required under s. 162 of theFLA including: …

a) the length of time the spouses lived together; (

b) the functions performed by each spouse during the period they lived together; (

c) an agreement between the spouses, or an order, relating to the support of either spouse. [30]

Section 166 of the FLA provides that in determining the amount of spousal support payable the court must not have regard toany “misconduct” of the parties except in circumstances which do not apply in this case. That is, the cause or reason why the relationshipdid not succeed is not a factor to be taken into account in determining the amount of spousal support. [31] In Robles v.

Kuhn, 2009 BCSC 1163 at para. 12 Master Keighley summarized the principles applicable on an application forinterim spousal support: [12] On interim support applications, the application of these provisions must be qualified by certain established considerations: 1. On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance: Gibb v.Gibb, [2005] B.C.J. No. 2730 (S.C.); 2.

An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior toseparation if the payor’s ability to pay warrants it: Grossi v. Grossi, [1993] B.C.J. No. 878 (S.C.); 3. On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left totrial. The court achieves rough justice at best: Randhawa v. Randhawa, [1999] B.C.J. No. 3299; Newson v. Newson, (BC CA), [1998] B.C.J. No. 2906, 65 B.C.L.R. (3d) 22 (C.A.); 4.

The courts should not unduly emphasise any one of the statutory considerations above others; 5. On interim applications the need to achieve economic self-sufficiency is often of less significance; 6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptionalcircumstances indicate otherwise: Ladd v. Ladd, [2006] B.C.J. No. 1930, 2006 BCSC 1280 (S.C.); …

[32] In my view the respondent’s guideline income should be set at the figure close to his past average income. There is no evidencebefore me other than that of Mr. Bateman to support the validity of the 30% discount he suggests is necessary for “business stability”purposes. In particular the court has no evidence to support store renovations are necessary, the extent or cost of such renovations or thatplans have been made for them to actually be done or when they will be done. It is often in the interests of a payer spouse to seek toreduce the amount of his obligation to pay support.

Whether that is so in this case is within the realm of the trial judge who will have anopportunity to fully examine whether and to what extent any allowance should be made for such renovations. [33] Based on the evidence before me I accept $228,800 as Mr. Batemans guideline income for the purposes of interim spousal andchild support. [34] The parties lived together for some 17 years. They were together for what would be described as a lengthy relationship. Ms.Bateman gave up her job to stay at home to be a homemaker and to raise the parties’ two young boys. Her role in the marriage allowedMr.

Bateman to concentrate on and build a successful business to the economic benefit of both. Mr. Bateman has looked after thefinances and has played a role in the upkeep of the home. As stated, he also has been active in the raising of the children. Particularly inlater years. [35] I find Ms. Bateman had been significantly disadvantaged by the breakdown of the relationship. Since January, 2013 the partieshave been living under an arrangement in which Mr. Bateman controls the disbursement of funds based on the provision of receiptsprovided to him by Ms. Bateman.

This control had resulted in her economic disadvantage and, in my view, has been a significant obstacleto the parties moving forward in the settlement of their outstanding financial issues including dealing with the family home. [36] Counsel for Mr. Bateman refers to the fact that Mr.

Bateman had met his obligations to his wife and children by paying $500per month support as well as all expenses relating to the children and family related expenses and by the further payment of theapproximate payment of $10,000 to the claimant this September. [37] The issue in my view is not particularly the amount the respondent has paid but rather the manner in which it has been paid.Under the arrangement the parties currently have in place, Ms. Bateman is required to produce receipts for all expenditures. Consistentwith the principles upon which spousal support is based Ms.

Bateman is entitled to spousal support free from having to account to Mr.Bateman for what she spends. [38] One of the objectives of awarding interim spousal support is to move the litigation toward a timely resolution and to reduce theconflict between the parties: see M. (D.R.) v.

M. (R.B.), 2006 BCSC 1921 at para. 19. [39] Given the length of the parties relationship, the role played by the claimant in the marriage, her current position of having to“couch surf” while she is not in the family residence, the claimant’s need to find alternate accommodation pending sale (or otherresolution) of the family home and that the parties appear to have stalled in their discussions toward reaching a settlement to theiroutstanding issues as well as the respondent’s ability to pay, I award interim spousal support at the high end of the range set out in theSpousal Support Advisory Guidelines in the amount of $5,064 per month. [40] The claimant seeks an order that such support commence September 1, 2013.

In my view, to make the order retroactive wouldunduly interfere with arrangements the parties put in place during mediation, and would unduly complicate an accounting of what hasbeen received to date. Mr. Batemans spousal support will commence November 1, 2013 and continue on the first of each monththereafter. 3. Child Support [41] Based on the guideline income of both parties as discussed above, interim child support payments, offset for the claimant’sincome, results in support payable from Mr. Bateman in the amount of $2,706 per month.

Child support payments will commenceNovember 1, 2013 and continue monthly thereafter. 4. Ms. Bateman’s Application to remain in the Family Residence. [42] Section 90(2) of the FLA authorizes the court to make the order sought by the claimant. [43] The relevant sections of the FLA read: 90

(1) For the purposes of this section, "family residence" means a residence that is (

a) owned or leased by one spouse or both, and (

b) the ordinary place of residence of the spouses.

(2) The Supreme Court may make an order granting a spouse, for a specified period of time, (

a) exclusive occupation of a family residence, or (

b) possession or use of specified personal property stored at the family residence, including to the exclusion of the other spouse. … [44] The claimant for such relief must establish the shared use of the family home is a practical impossibility and that she is thepreferred occupant of the premises on the balance of convenience: see Rinta v. Rinta (1980), (BC SC), 19 B.C.L.R.287; Dennis v. Regehr, (BC SC), [1996] B.C.J. No. 237.

[ 45 ] While this is a difficult matter, and care must be taken not to prejudice Mr. Bateman, the principle which must guide the court in determining this matter must be what is in the best interests of the children. Ms. Bateman moved back into the family home in September when the two boys returned to school after the summer holidays and she felt they needed more of her attention and to fulfill the role she had as their homemaker.

This is a significant factor underlying the terms of my order. [ 46 ] Another factor which influenced her to do so was she had no permanent place to stay when she was not present at the home. She also felt a resolution of the parties’ outstanding family law issues was not progressing.

In my view these were all legitimate concerns. [ 47 ] I am of the view that the current financial arrangement between the claimant and respondent has presented a significant obstacle to their ability to move forward in the settlement of the financial affairs arising from the breakdown of their relationship. [ 48 ] There is evidence before me that the two children are feeling the effect of the unsettled relationship between their parents and the lack of care of their mother. I do not mean by this to suggest Mr. Bateman is not providing for their proper care.

The care provided by the claimant is of a different nature. Cohabitation on those days Mr. Bateman has shared parenting responsibility has the potential to be increasingly harmful to the boys and their ability “to successfully weather their parent’s divorce”: Smith v. Rennie , [1997] B.C.J. No. 1374 at para. 12 . [ 49 ] Further, on the evidence before me it is easier for Mr. Bateman than it is for Ms.

Bateman, during the period this order will be in effect, given his income, to find alternate accommodation for exercising his times of sharing parental responsibilities until the issues concerning the family assets are resolved. [ 50 ] In my view, while there should be an order for exclusive occupation of the family residence, such order should be of limited duration so as not to prejudice each party’s ability to proceed and settle their outstanding differences and to proceed with their lives independently of one another. [ 51 ] As described above the parties have two main family assets: the family residence and the interest in the franchise.

The family residence has a small mortgage and the parties have a large equity in it (some $600,000). It is my understanding they have agreed on a valuation of the two companies who hold the franchise. In other words, the issues left remaining outstanding between the parties are not insurmountable and should be capable of resolution.

If not they should proceed to trial. [ 52 ] Accordingly I order the claimant will have exclusion occupation of the family residence at 9165 inverness Road, North Saanich, BC until April 30, 2014 pending, in the interim, the parties resolving the disposition or otherwise of the family home and other issues concerning their family assets. [ 53 ] As the claimant has been successful on this application she is awarded costs. “Greyell J.”