T.J.B. v. T.M., 2003 BCSC 502

In the Supreme Court of British Columbia Citation: T.J.B. v. T.M., 2003 BCSC 502 Date: 20030402 Docket: 03 0094 Registry: Victoria Between: T.J.B. Appellant And T.M. Respondent Before: The Honourable Mr. Justice Edwards Reasons for Judgment Counsel for Appellant L. Duhaime Counsel for Respondent J.

Bullick Date and Place of Trial/Hearing: March 31, 2003 Victoria, B.C. [ 1 ] This is an appeal from the November 15, 2002 decision of the Honourable Judge Kay, dismissing the September 26, 2002 application of the appellant to vary the terms of a separation agreement dated October 25, 2001. [ 2 ] The parties lived together from 1994 to 2001. They have a daughter aged 8. In 2001 they entered into a separation agreement with the assistance of a worker at the Family Justice Centre.

The agreement recited that the appellant’s income was $63,600 and the respondent’s was zero. [ 3 ] Based on his income, the appellant agreed to pay $525 monthly child maintenance as well as $120 monthly for unspecified “special and extraordinary” child care expenses. [ 4 ] The appellant also agreed to pay spousal maintenance of $1355, $801 of which went directly to pay the respondent’s rent in Canadian Forces housing.

Because it is directed to this purpose, the rent is not income tax deductible by the appellant. [ 5 ] The appellant also agreed that he was responsible for a $14,000 family debt incurred to pay for a vehicle now registered in the respondent’s name, and furniture she retained. He pays $600 monthly on this debt but testified at the trial that he could reduce the payment to $400. [ 6 ] The separation agreement provided for a review in September 2002.

At that time the appellant returned from serving for several months aboard a ship in the Arabian, where his living expenses were minimal and he received $900 monthly danger pay. [ 7 ] According to the evidence before the Honourable Judge Kay, the appellant proposed reducing spousal maintenance by $600.

The respondent did not agree, so the appellant applied to the Provincial Court to change the separation agreement. [ 8 ] In the financial statement attached to that application, the appellant stated his income was $64,494 and that he anticipated it would be reduced by $5,400 October 18, 2002, because of loss of a sea duty allowance. He also estimated annual rent and other living expenses, some of which he had not incurred because he was living with a woman in her apartment.

These were the only changed circumstances alleged by the appellant. [ 9 ] It was argued by his counsel that the order appealed from, by continuing the terms of the separation agreement, deprives the appellant of the financial means to set up his own household.

[ 10 ] The review clause in the separation agreement refers to “addressing the issue of retraining expenses” for the respondent. They have not been addressed because the respondent has not embarked on any retraining. Although she acknowledged at the trial that she recognized her obligation to become self-supporting, there was scant evidence she had done much to become self-supporting. She admitted she had become “unmotivated”. [ 11 ] The appellant’s counsel made three main points on the appeal.

First, the court order required him to retain the respondent on medical and dental coverage although the separation agreement did not provide for the appellant paying $24 monthly to keep the respondent on a medical and dental plan; second, that the court order required payment of $120 extraordinary child care expenses when the evidence showed some of these were not being incurred; third, the court order did not reflect the respondent’s obligation to become self-supporting. [ 12 ] Counsel were agreed the standard of appellate review in a case like this is the one set down in Hickey v.

Hickey 1999 CanLII 691 (SCC) , [1999] 46 R.F.L. (4 th ) 1 (S.C.C.) at paragraph 12 . [ 13 ] The Honourable Judge Kay reserved judgment and provided written reasons nine days after a 1½ hour hearing. I have carefully reviewed those reasons and the transcript which was extensively referred to by counsel in their appeal submissions. [ 14 ] No error of law in the reasons is alleged on behalf of the appellant. I am unable to find in either the reasons or the form of order any indication that the decision of the Honourable Judge Kay rests on a serious misapprehension of the evidence.

It was incumbent on the appellant to show a material change of circumstances. [ 15 ] Although the appellant's income and expenses changed from the date of the separation agreement it was not clear what the net extent of these changes was or might be, or that it was “material” in the sense that word is used in the authorities. The appellant agreed he could reduce his monthly loan payment by $200 and the order anticipates deductibility of the $801 rent paid on the respondent’s behalf once she ceases to occupy Canadian Forces housing.

This would also increase the appellant's monthly disposable income. [ 16 ] It is true that the separation agreement, which the order states “shall continue as the parties agreed”, does not require the appellant to retain the respondent on a medical and dental plan, although there was evidence that he had voluntarily done so. [ 17 ] In her written response to the application to change the separation agreement, the respondent indicated this coverage “will end” in August, 2003.

Counsel were unable to confirm that she would cease to be eligible for coverage as of that date. [ 18 ] It would be a material error for the court to modify the separation agreement to require the appellant to retain the respondent on the medical and dental plan if she becomes ineligible for coverage. The order appealed from, if read literally, has that effect “until further order of this court”.

This order is unenforceable if the terms of the plan terminated her eligibility for coverage. [ 19 ] To spare the parties a further application to the Provincial Court if they cannot agree when or if her eligibility for coverage ends, I would modify the Provincial Court order to provide that the appellant retain the respondent on the medical and dental plan so long as she is eligible for coverage under the terms of the plan or until further order of the Provincial Court, whichever is sooner. [ 20 ] As regards the $120 per month for the extraordinary child care expenses, these were not specified in the separation agreement.

The Honourable Judge Kay did not commit a material error by declining to add a term to the order that these be paid only for specified activities on presentation of receipts. [ 21 ] On the third and final point, the Honourable Judge Kay addressed the issue of the respondent’s obligation to become self-sufficient at paragraph 12 of her reasons for judgment, after a review of the evidence. [ 22 ] While another judge might have made a different decision or balanced the factors differently, that is not the standard of review.

The order imposed on the respondent the obligation of advising the appellant of “any events which would trigger a further review”, which would include enrolment in re-training, or full or part time employment.

It also provides for a further review, in any event, by June 30, 2004, fourteen months from now. [ 23 ] It was not a material error by the Honourable Judge Kay to conclude on the evidence before her that was reasonable further time to permit the respondent to move toward self-sufficiency. [ 24 ] The appeal is allowed in part and the order of the Honourable Judge Kay modifed in accordance with paragraph 19 of these reasons. The appeal is otherwise dismissed. [ 25 ] The respondent has been largely successful and is entitled to costs on scale 3. “E.R.A. Edwards, J.” The Honourable Mr. Justice E.R.A. Edwards