Buck v. Buck, 2013 BCSC 449

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Buck v. Buck, 2013 BCSC 449 Date: 20130315 Docket: 11-3916 Registry: Victoria Between: Astride Buck Claimant And: Christopher James Buck Respondent Before: The Honourable Mr. Justice Macaulay Reasons for Judgment Counsel for the Claimant: S. Malan Counsel for the Respondent: No appearance Place and Date of Trial: Victoria, B.C. December 13, 2012; and March 1, 2013 Place and Date of Judgment: Victoria, B.C. March 15, 2013 [ 1 ] The claimant, Ms. Buck, and the respondent, Mr.

Buck, married in 1999 and have two children, Rachel Alexandra Buck, born January 6, 2004, now age 9, and Andrew Christopher Buck, born January 4, 2006, now age 7. Both children live with the mother in the matrimonial home in Victoria. [ 2 ] The parents separated in May 2011. Ms. Buck commenced this family law proceeding in September 2011. She seeks a divorce and ancillary relief, including for approval of her proposed parenting arrangement, child support, spousal support and an unequal division of family assets. The property issues are complicated by the fact that Mr.

Buck is not a Canadian resident and is entitled to substantial monies in pension-related accounts in the United States. [ 3 ] Mr. Buck did not retain counsel to act on his behalf in the proceeding. Nor did he participate in the trial. He has, however, attorned to the jurisdiction of the court. [ 4 ] After being served substitutionally outside of Canada, Mr. Buck responded to the claims by filing a counterclaim seeking, among other things, a reapportionment of family assets. Mr. Buck included the matrimonial home and his pension in his claim for reapportionment. In January 2012, Mr.

Buck attended a judicial case conference and agreed to an order that he pay interim child and spousal support totaling $9,978 per month. In June 2012, Mr. Buck completed and filed a Property and Financial Statement as required by the Supreme Court Family Rules. As I will set out below, by taking these steps, Mr. Buck attorned to the jurisdiction of this court over personal family assets held outside the province. [ 5 ] On June 26, 2012, after an application to which Mr. Buck failed to respond, the court varied the interim support order. The court concluded, at that time, that Mr.

Buck had a guideline annual income of $300,500 and that Ms. Buck had a guideline income of $8,580. As a result, the court ordered Mr. Buck to pay monthly child support of $4,116, commencing July 1, 2012, and interim spousal support of $6,785 per month. The court also ordered Mr. Buck to pay half the monthly property tax and mortgage payments respecting the matrimonial home, although he was, at the time, paying the total amounts. [ 6 ] Finally, the court ordered Mr. Buck to continue paying private school tuition for the two children as he had been doing since separation. Although Mr.

Buck has apparently continued paying the private school tuition to date, he has not otherwise complied directly with the January and June 2012 child support orders. [ 7 ] Nor has Mr. Buck complied with the spousal support orders. Instead, from January to November 2012, Mr. Buck transferred about $1,500 per month to an account for Ms. Buck’s use. He also paid the entirety of the mortgage and property tax obligation during that period before stopping all payments of any kind other than the private school tuition. If Mr. Buck had complied with the June 2012 order, Ms.

Buck’s share of the mortgage and property tax obligation would have been $2,005 per month. In the circumstances, I propose to credit Mr. Buck with $38,555 (11 x $3,505) as partial payment of his support obligations.

[ 8 ] Mr. Buck has made no further payments to be credited against his obligations to Ms. Buck under the orders. For a period of time, but no longer, Ms. Buck was able to access funds from a joint line of credit to offset Mr. Buck’s failure to pay. The line of credit is no longer available and the parties now owe about $20,560 to the bank lender. [ 9 ] Carrying forward the child and spousal support obligations under the orders through March 2013 results in total arrears, at this time, of $119,422 ($157,977 – $38,555).

In the circumstances, the credits for past and any future payments should be applied firstly, against the monthly child support obligation under the orders. [ 10 ] In addition, Ms. Buck claims retroactive child and spousal support for the period between the date of separation and January 2012. The evidence is inadequate to assess that claim and accordingly, I limit my finding of past entitlement as set out above. [ 11 ] Mr. Buck is not represented by counsel and has not participated otherwise in the proceeding.

Because the putative family assets include his employment and pension-related accounts held in the United States, before making any order or declaration respecting such property, I must determine whether Mr. Buck attorned to the jurisdiction of the British Columbia Court by filing pleadings, a Financial Statement and attending a Judicial Case Conference. [ 12 ] I am satisfied that Mr. Buck has attorned. In McKinney v. McKinney, [1980] B.C.J. No. 56 (S.C.) , followed in Jeske v. Jeske, [1982] B.C.J. No. 79 (S.C.) and Britten v. Britten, [1983] B.C.J.

No. 56 (S.C.) , as to the law, this court accepted jurisdiction over putative family assets consisting of personalty located outside British Columbia so long as the opposing party has attorned to the jurisdiction of the court. In McKinney, the husband lived outside the province but filed an appearance in the action and did not challenge jurisdiction. The assets at issue included an R.R.S.P., employment pension plan and shares in various companies. [ 13 ] Other similarities between McKinney and the present case include: 1. The wife resides in British Columbia; 2.

The last matrimonial domicile is in British Columbia; 3. The matrimonial home and some of the personalty is in British Columbia; 4. The husband deserted his wife from British Columbia; and 5. The husband has attorned to the jurisdiction of the court in British Columbia. [ 14 ] In Jeske, the assets included moveable and immoveable assets located in a neighbouring province. The court held that it only had jurisdiction to deal with moveable assets as they were personalty. The defence did not raise any issue as to jurisdiction over the moveable assets.

In Britten, the court declined to exercise jurisdiction over an out-of-province pension because the husband had not attorned. [ 15 ] In Boyd v. Boyd, 2001 BCCA 535 , the Court of Appeal affirmed that filing an appearance to an action is sufficient evidence of attornment. The Family Rules no longer require the filing of an appearance before filing other pleadings but the filing of the Counterclaim, Property and Financial Statement, and participating in the Judicial Case Conference are substantive steps and indicate conclusively, in my view, that Mr.

Buck attorned to the jurisdiction of the court. [ 16 ] In British Columbia, the law of matrimonial domicile governs movable assets, or personalty, regardless where the assets are situate ( Wong v. Wong , [1995] B.C.J. No. 1420, at paras. 30-37 ). I conclude that the matrimonial domicile here is in British Columbia because the family has resided in Victoria since the purchase of the matrimonial home in 2008. [ 17 ] Further, despite having the opportunity to do so under Family Rule 18-2, Mr.

Buck never challenged the court’s authority to deal with any personalty held outside the territorial jurisdiction of the court. [ 18 ] In his financial statement, Mr. Buck disclosed two United States accounts relating to his employment and pension. At the time of the statement, the account balances totaled almost $321,000 and, as will be seen, easily represent the most significant disclosed family assets. In addition to seeking a declaration of an undivided half interest in these accounts as family assets, Ms.

Buck seeks a substantial reapportionment of an additional 25 percent to prevent unfairness, having regard to the factors set out in s. 65 of the Family Relations Act, R.S.B.C. 1996, c. 128 (“ FRA ”). [ 19 ] The only other significant family asset disclosed is the matrimonial home. The home was appraised for mortgage purposes in November 2012 at $772,500. Mr. Buck continued to pay the mortgage for some time after separation but it is now in default and foreclosure proceedings are imminent if the mortgagee has not already commenced them. [ 20 ] Ms.

Buck received a demand letter dated February 8, 2013, informing her that the full amount of the mortgage, namely $631,141.78, together with daily interest of $40.62, is now due. Taking into account the costs associated with a foreclosure proceeding, it is likely that the parties’ present equity of about $141,000 will drop quickly. Ms. Buck seeks reapportionment of the declining equity entirely in her favour. [ 21 ] The other relevant facts are as follows. Ms. Buck is age 41. She is an Indonesian citizen with permanent residency status in Canada.

She is currently employed part-time as a food server at a local retirement facility. Mr. Buck is age 47 and is professionally trained as an engineer. [ 22 ] Throughout the marriage and leading up to a move to Victoria in 2008 where Mr. Buck’s extended family lives, the parties and their children essentially moved around according to Mr. Buck’s work assignments. Throughout that period, Mr. Buck was the sole financial provider for the family. Ms. Buck, on the other hand, was never employed but ran the family household and was primary parent to the children.

[ 23 ] For a lengthy period of time, extending back before the marriage, Mr. Buck has worked for Occidental Petroleum Corporation (“Occidental”) in the oil industry. Occidental is a California based oil and gas exploration and production company. During the marriage, Mr. Buck worked outside British Columbia, including stints in Colorado, Texas, Abu Dhabi and Qatar. Currently, Mr. Buck is on assignment in Bahrain. He currently holds a supervisory or management level position. [ 24 ] Shortly after moving to Canada, the parties purchased the matrimonial home. Mr.

Buck nonetheless continued to work in the Middle East, traveling back to Victoria to spend his time off with the family. Sometimes the family travelled to the Middle East to spend time with him there. Throughout the marriage, Mr. Buck continued to be the sole financial provider. He transferred funds to Ms. Buck as necessary to cover household and property expenses, including amounts due for property taxes and private school tuition. He paid the mortgage on the matrimonial home directly. [ 25 ] These arrangements continued after the separation in May 2011 except that Mr.

Buck unilaterally reduced the amounts and interrupted the regularity of payments. Gradually, he ceased making any payments apart from the ongoing private school tuition. Apart from the mortgage default, the joint line of credit described above is also in default and the lender has threatened legal action. Home insurance has been cancelled as a result of non-payment and Ms. Buck’s leased vehicle has been repossessed. Ms. Buck is left without any effective access to credit in Canada. [ 26 ] There is no reason to doubt Mr. Buck’s ability to pay.

The expert evidence of an economist establishes that his equivalent annual income in British Columbia is about $300,500, consistent with the conclusion of the court at the time of the second order in June 2012. By contrast, Ms. Buck earns minimum wage at a low-level part-time position resulting in a monthly income of about $618 which she uses to buy groceries for the family and pay some basic utilities. By further contrast, the mortgage and property tax payments now in default total $4,010 per month. [ 27 ] The first of the retirement plans referred to earlier is known as a 401(

k) plan. Mr. Buck contributes a percentage of his Base Pay and Annual Bonus. For every dollar Mr. Buck contributes, his employer makes a matching contribution. The most recent statement in evidence is dated December 2009 and sets out a total of $255,223.70. I conclude that amount is likely substantially higher today. [ 28 ] The second consists of a Personal Retirement Account (“PRA”) and a Supplemental Retirement Plan II (“SRP II”) showing respective balances as at June 2009 of $62,456.78 and $8,893.74. These have also likely increased over the intervening time. [ 29 ] As to the children, Ms.

Buck has always been the primary parent responsible for their day-to-day care. She has made most of the important decisions respecting the upbringing of the children. The children appear to be thriving under her care. Mr. Buck has only seen the children once since separation and occasionally speaks with them over the Internet. In effect, he has abandoned his family in almost every way possible. Ms.

Buck would like him to, at least, have more frequent contact with the children. [ 30 ] In the overall circumstances, I accept that it is in the best interests of the children to continue in the primary care of the mother. Taking into account the extreme power imbalance, particularly on the economic front, it is in the best interests of the children that Ms. Buck make the important decisions respecting them, including ongoing arrangements for schooling. The power imbalance also leads me to conclude that Mr.

Buck should not remove the children from Vancouver Island, British Columbia, at any time without the express written permission of Ms. Buck or court order. As I understand it, Bahrain, where Mr. Buck apparently currently resides for work purposes, is not a signatory to the Hague Convention. [ 31 ] I am satisfied that Ms. Buck is entitled to a divorce with the order to take final effect on the 31st day after the date of filing these reasons. I am further persuaded that the mother should have sole custody and sole guardianship of the two children. Mr.

Buck will have reasonable access on Vancouver Island, but not overnight or away from Vancouver Island, unless Ms. Buck agrees in writing or the court otherwise orders. [ 32 ] I find that the annual guideline incomes of the parties are: Mr. Buck $300,500 and Ms. Buck $8,580. Pursuant to s. 4 of the Federal Child Support Guidelines, I order ongoing monthly child support in the table amount of $4,000.30. [ 33 ] It is obvious that the children can only continue in private school so long as Mr. Buck pays the tuition. Tuition expenses for the two children are about $26,000 per year. Even if Mr.

Buck honours his commitment to pay support, Ms. Buck would not be able to afford private school and meet other obligations respecting the children. I order that Mr. Buck pay 100 percent of the private school tuition and any other directly related school fees or expenses. With that exception, the parties will otherwise contribute proportionately to any other extraordinary expenses to which they both may agree. [ 34 ] It is also apparent that the family cannot afford to maintain the family home absent Mr. Buck’s direct financial contribution. In the result, they are at risk of losing their modest equity.

The house must be sold as quickly as possible to stop the financial hemorrhaging. Judicial reapportionment under the FRA attempts to avoid unfairness having regard to the factors enumerated in s. 65(1) , including the needs of each spouse to become or remain economically independent and self-sufficient as well as any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse. [ 35 ] I take into account that Mr. Buck is a far-away target for the mortgage lender.

While the mortgage debt, as well as the costs of the proceeding will be paid first, out of the value of the property, if that is insufficient, any shortfall will be met by way of the personal judgments. In that event, the natural tendency on the part of the judgment creditor, or its assignee, will be to proceed first against Ms. Buck in spite of her limited means. As I have already set out, on the evidence before me, Ms. Buck’s needs are much greater than those of Mr. Buck. If she receives the whole of the property, she may be able to offset some of the losses already sustained due to Mr.

Buck’s failure to pay support as ordered. [ 36 ] Ms. Buck will have few means, if any, of enforcing the orders for support, whether for her or the children. The accumulated arrears are already $119,422. A history of refusing to pay support or an unlikelihood that future support will be paid is a legitimate consideration under s. 65 ( Crooker v. Crooker, [1988] B.C.J. No. 162 (S.C.) ). Ms. Buck’s best hope for some level of security in place is found in the identifiable properties, both the matrimonial home in this jurisdiction and the pension-related plans in the United States.

[ 37 ] An undivided half interest in those assets is insufficient to achieve fairness in the circumstances. Even after reapportionment, there is a real risk of continuing unfairness. Mr. Buck continues to enjoy a very substantial annual income. He apparently has many productive years still ahead. His income would place him close to the top percentile in Canada whereas Ms. Buck is currently close to the bottom. It is also possible that Mr. Buck has been able to accumulate other assets since the commencement of these proceedings which he has not disclosed.

There is no present way of knowing. [ 38 ] In the circumstances, I reapportion the matrimonial home entirely to Ms. Buck. As to the retirement plans, I take into account that the plans are intended to fund eventual retirement. I also take into account that some of the contributions likely predate the marriage. I find that the current balance of the plans is a family asset of which Ms. Buck is entitled to an undivided half interest. I decline to order any reapportionment of the plans under s. 65 .

The final order in this matter should identify all necessary particulars of the accounts so that enforcement or registration can occur in California as required. I grant liberty for Ms. Buck to apply respecting the terms of any further order necessary in that regard. [ 39 ] The reapportionment of the house and the award of an undivided half interest in the retirement plans will not place the parties on an equal economic footing. Ms. Buck continues to bear the responsibility and day-to-day costs of raising the children.

It is very unlikely that she and the children will continue to live in housing of similar quality to the matrimonial home. As a recent immigrant, it appears likely that she will suffer economic hardship due to her limited education and employment skills. She wishes to upgrade her education and skills training but that will, at a minimum, cause an interruption in her earnings and it is doubtful that she will ever receive an income comparable to that which Mr. Buck enjoys. [ 40 ] Finally, I take into account that this was a traditional marriage of moderate length. Ms. Buck followed and provided for Mr.

Buck and the children while he advanced his career. I am satisfied that Ms. Buck has been disadvantaged by the marriage and its breakdown. [ 41 ] Based on the parties’ respective incomes set out above, the Spousal Support Guidelines “with child” suggest a range for spousal support of $6,091 to $7,494 per month. I agree with counsel that the award here should be in the high end of the range and order monthly spousal support of $7,000, effective April 1, 2013, and continuing on the first day of each month thereafter. [ 42 ] In

summary, based on the parties’ respective guideline incomes of $300,500 and $8,580, I make the following orders: 1. Divorce to take effect on the 31st day after today; 2. Mother to have sole custody of the two children of the marriage; 3. Mother to have sole guardianship of the two children of the marriage; 4. Father to have reasonable and generous access to the children, the arrangements for such access to be agreed upon by the parties; 5. Father to have reasonable telephone and Internet access to the children, the arrangements for such access to be agreed upon by the parties; 6.

Father shall not remove the children from Vancouver Island, Province of British Columbia, without the Mother’s written consent or Order of the Court; 7. On finding that the father has a guideline income of $300,500, the Father shall, commencing April 1, 2013, and on the first day of each month thereafter, pay child support to the Mother of $4,000.30 per month; 8. On finding that the Mother has a guideline income of $8,580, the parties shall contribute to the following extraordinary expenses, as hereafter set out: (

a) Rachel Buck’s tuition at St. Margaret’s School in the amount of $12,000.00 per year and Andrew Buck’s tuition at Glenlyon Norfolk School in the amount of $14,095.00 per year; (

b) The children’s Medical Services Plan premiums in the amount of $122.00 per month; (

c) Any health-related expenses that exceed insurance reimbursement by at least $100.00 CDN annually, including orthodontic treatment, professional counseling provided by a psychologist, social worker, psychiatrists, or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) Child care expenses incurred as a result of Astride Buck’s employment, education or training for employment, illness or disability; (

e) Expenses associated with the children’s private schooling including books, uniforms and extracurricular activities; and (

f) Any other expenses arising in the future that qualify within the meaning of

section 7 of the Federal Child Support Guidelines . 9. The Father shall pay 100 percent of the tuition for the children’s private school fees directly to St. Margaret’s School and Glenlyon Norfolk School; 10. The Father shall pay 100 percent of the children’s Medical Services Plan premiums directly to the Ministry of Health (currently $122 per month);

11. The Father shall make medical, extended health and dental insurance available through his employment for the children so long as he is liable for child support; 12. The parties shall share the costs of the remaining extraordinary expenses referred to in paragraph 8 above in proportion to their respective incomes (currently, the Father shall pay 97 percent; the Mother shall pay three percent); 13. Commencing May 31, 2013, and continuing each year in which the Father is liable for child support, the parties shall each provide the other with: (

a) A photocopy of their most recent personal and corporate income tax returns, with all tax information slips and schedules; (

b) Their notices of assessment, when received; (

c) Particulars of the children’s special or extraordinary expenses anticipated for the coming year; and (

d) Their most recent annual statement of earnings, including overtime. 14. Declaration that the matrimonial home, legally described as: PID 002-216-507, Lot C,

Section 86, Victoria Land District (“the Family Residence”) has a value of $772,500; 15. The Father shall transfer to the Mother, for her own use absolutely, all his interest in the matrimonial home; 16. The Registrar of the Court, in place of the Father, shall execute any documents necessary to effect the transfer to the Mother; 17. The Mother will have leave to apply for any further order or direction necessary to complete the transfer or to effect a sale of the matrimonial home; 18.

As between the parties, the Mother shall have exclusive conduct of any sale of the matrimonial home that may occur before completion of the transfer; 19. In the event of any sale of the matrimonial home before the transfer, any sale proceeds, less the costs of sale and commission, shall be the sole property of the Mother; 20.

Until such time as the transfer or sale completes, the Mother shall have exclusive occupancy of the matrimonial home together with the exclusive possession and use of all of the personal property located therein, provided that the Father may, upon reasonable advance notice to the Mother, attend at the residence for the sole purpose of removing his personal articles; 21. The Mother may apply for the division of unadjusted pensionable earnings under the Father’s Canada Pension Plan, on divorce; 22.

The Father shall maintain the CIGNA Group Universal Life Insurance Policy and designate the Mother as the irrevocable beneficiary so long as he is liable for child support; 23. The Father shall be solely responsible for the joint line of credit at the Royal Bank of Canada, and shall indemnify the Mother against any claims arising from the line of credit; 24. Declaration that the Father’s accrued division of benefits under the Occidental Petroleum Corporation Savings Plan and the Occidental Petroleum Retirement Plan are family assets to which the wife is entitled to an undivided one-half interest; 25.

The Mother will have leave to apply for any further order or direction necessary to give effect to the division of the Plans described in the preceding paragraph; 26. Effective April 1, 2013, and continuing on the first day of each month thereafter, the Father shall pay spousal support to the Mother of $7,000 per month; and 27. Declaration that the current arrears of child and spousal support total $119,422 and grant judgment in favour of the Mother in that amount. [ 43 ] Finally, I award costs to Ms. Buck on Scale B. Counsel may speak to a lump sum award for costs if she prefers. “M.D.

Macaulay, J.” The Honourable Mr. Justice Macaulay