M.E.P. v. S.L.F. Date:, 2011 BCPC 6

Citation: M.E.P. v. S.L.F. Date: 20110118 2011 BCPC 0006 File No: 04-18059 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: M. E. P. APPLICANT AND: S. L. F. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. F. GIARDINI Appearing on their own behalf: M. P. Appearing on their own behalf: S. F. Place of Hearing: Vancouver , B.C. Date of Hearing: December 3, 2010 Date of Judgment: January 18, 2011 [ 1 ] The Applicant, Mr. S.

F. (the Respondent in the originating application) applies to end spousal support of $150 per month which he is currently paying to the Respondent Ms. M. P. (the Applicant in the originating application). Mr. F. initially also raised child support issues in his application, however, those issues have been resolved. The only issue to be decided is whether he should continue to pay spousal to Ms. P. [ 2 ] Ms. P. opposes Mr. F.’s application to end spousal support. She says she is entitled to receive ongoing spousal support payments. She also claims payment for special expenses. She acknowledges that Mr.

F. is currently paying child maintenance for their two daughters in the appropriate amount set out in the Child Support Guidelines. However, Ms. P. claims that Mr. F. has not paid for certain special expenses relating to the children. Consequently, she asks this Court to order Mr. F. to pay his share of special expenses, in particular the cost for orthodontic dental work for both children and the cost for special diet food items for one of the children. BACKGROUND [ 3 ] Ms. P. and Mr. F. began living together in 1990. They have two daughters.

The oldest daughter, S. was born in 1992 and the younger daughter, B. was born in 1997. Ms. P. and Mr. F. separated in January 2004 when Mr. F. left the family home. Ms. P. remained in the family home with the children. [ 4 ] On February 22, 2005, Ms. P. and Mr. F. agreed to an interim order. Ms. P. was granted full custody and guardianship of the children and Mr. F. was granted access. [ 5 ] On January 18, 2006, the parties agreed to another interim consent order. That consent order provided that Mr. F. was to pay child maintenance of $710 per month for both children beginning February 1, 2006.

[ 6 ] A hearing was held on March 31, 2006, to determine the appropriate amount of child support payable and also to determine whether Ms. P. was entitled to spousal support and, if so, to what amount. [ 7 ] On May 17, 2006, Judge Tweedale issued a decision regarding child support and spousal support. The decision set out the history of the parties as well as their circumstances and their position on the application. Judge Tweedale concluded Ms. P. was entitled to spousal support: ... Balancing the objectives of the FRA and considering the case law, I have concluded that Ms.

P. has proven she is entitled to spousal support in order to assist her in becoming self-sufficient. She said [sic] will likely require up to three years to do so. I have also concluded that it is reasonable for Ms. P. to obtain at least part-time work. Her daughters are certainly old enough for her to work outside the home and she has special skills which may result in a better income than I have assumed... [see para 20] Relying on the Spousal Support Advisory Guidelines and based on Ms.

P.’s income of about $700 per month, Judge Tweedale concluded she required spousal support of $300 per month in addition to child support. [ 8 ] In that same decision, Judge Tweedale determined, for child support purposes, that Mr. F.’s income was almost $51,000 in 2004 and $59,789 in 2005. Accordingly, based on the revised Child Support Guidelines in force on May 1, 2006, Judge Tweedale found the child support payable was $904 per month for both children. [ 9 ] On September 11, 2009, Judge Romilly made an order dismissing Mr. F.’s application to cancel arrears of maintenance.

However, he reduced the spousal maintenance payable by Mr. F. to Ms. P. to $150 per month commencing October 1, 2009. He further ordered that the matter of spousal could be reviewed in one year’s time. THE CURRENT APPLICATION Mr. F.’s background [ 10 ] Mr. F. works as a truck driver for S. B. Ltd. In addition to working at S. B., he also does some work as a backyard mechanic. He is a member of the Musqueam Indian Band and as such receives income distributions from the property and investments of the Band. Mr.

F. explained that in 2009 he received an income distribution of approximately $5,250 from the Musqueam Indian Band. As well, he earned approximately $1,000 for work he did as a backyard mechanic. Mr. F.’s line 150 income (which is his total income) for 2009 was $70,410.59. His line 150 income for 2008 was $53,198.84. [ 11 ] Mr. F. is 52 years old. He now has a new partner and a three year old child whom he is supporting. Mr. F. said he made this application to end spousal maintenance to Ms. P. because of his financial situation. Ms. P.’s background [ 12 ] Ms. P. is 48 years old.

She completed Grade 12 and has a certificate in early childhood education which she obtained in 2005. Ms. P. said she has worked in various positions. Most recently, Ms. P. worked for a day care for six months in 2008. She left because she was offered a better position with H.C. in September 2008. The position with H.C. was that of coordinator. Ms. P. said H.C’s mandate is to promote early reading. Ms. P. left H.C. in February 2009. She said her work there involved too much travel and she was out of town for weeks at a time. [ 13 ] Ms. P. has not worked since February 2009 when she left H.C.

She said her children’s health had declined. Her oldest daughter, S., has gallstones. She said the people where she worked were not understanding. [ 14 ] Ms. P. said she applied to work as a school bus supervisor in October 2010. This was a part-time position on the Musqueam reserve; however, she was not the successful candidate. She was asked whether she had made other attempts to get employment. Ms. P. said she offered to provide childcare in her home but nothing has come of that so far. [ 15 ] In her financial statement dated December 3, 2010, Ms.

P. showed a total income of $1,800 and total expenses of $22,074. Ms. P. also provided income tax return information sheets from Revenue Canada Agency for 2008, 2009 and as of September 2010. In 2008 Ms. P. had exempt aboriginal income of $4,300; in 2009 she had exempt aboriginal income of $20,848; and in 2010 she had exempt aboriginal income of $3,989 and exempt employment insurance benefits of $9,648. Response regarding Mr. F’s financial circumstances [ 16 ] Ms. P. asks this Court to note that in 2009 Mr. F.’s total income was $70,410.59.

This was made up of income from employment of approximately $56,000, profit sharing payments from the company, year-end payout, sick leave, holiday pay, etc. As well she notes that Mr. F. is entitled to receive yearly payments from the Musqueam Indian Band. There was a lump sum payment in 2009 of approximately $5,000 plus leasehold land payments. She acknowledges that the current payments from the Band have been substantially reduced. [ 17 ] Additionally, Ms. P. asserts that Mr. F. owns at least three vehicles over and above the vehicles he listed on his financial statement.

Those vehicles are a 1998 Ford Mustang, a Firebird, and a 1956 Pontiac. In Mr. F.’ financial statement he listed a 1991 Ford F350, a 1991 Ford Mustang and a 1989 Harley Davidson. Ms. P. said that Mr. F. was also telling people he had bought a Cadillac. Ms. P. also points out that Mr. F. has a tow truck and in May and June 2010, he was handing out cards for that business. As well, in December 2009 and January 2010 he was towing people out of the snow. Special expenses [ 18 ] Ms. P. asks this Court to order Mr. F. to pay for the following special expenses for the children:

1. Dental expenses for B. – This consists of full fixed orthodontic appliances (braces) which would also require pre-molar extraction. Ms. P. produced an examination report dated February 25, 2010, from Dr. Derek Okamura. The doctor stated in his report that in order to undertake that work he needs to obtain x-rays and photographs as well as moulds of the teeth. He quoted a cost of $525 for these diagnostic records alone. Dr. Okamura briefly described the condition of B.’s teeth using medical terms, which are not explained for the lay person.

Consequently, it is not clear from the report what the problem is and whether braces are medically necessary or cosmetic. 2. Dental expenses for S. – A recall report from Dr. Okamura dated February 25, 2010, indicates that S. requires orthodontic appliances (braces) and possibly extractions. If the treatment is to go ahead, the doctor requires diagnostic records which include x-rays and photographs as wells as moulds of the teeth. The cost quoted for these diagnostic records was $525.

As in the case with B., the orthodontist’s report is not clear (at least not to a lay person) about the nature of the problem and whether braces are medically necessary or cosmetic. 3. Special diet for S. – This relates to a claim for additional money to cover special diet food items for S. who has gallstones and requires a fat free (or reduced fat) diet. [ 19 ] Ms. P. said the proposed dental expenses for S. and B. were denied by Health Canada. She was told by Health Canada that the orthodontic expenses would not be covered because such expenses should be covered under Mr. F.’ dental plan. [ 20 ] Mr.

F. said his extended health insurance carrier, Great West Life, may cover some of the expenses. As well, he said the Department of Indian Affairs may possibly cover some of the expenses or provide access to a dentist who could perform the dental work needed. ANALYSIS Spousal maintenance [ 21 ] The Family Relations Act governs the application made by Mr. F. to cancel spousal support.

Section 20 of that Act provides that if a court has made an order under the Act , the court may vary or rescind the order “if circumstances have changed since the order was made or last varied”. [ 22 ]

Part 7 of the Family Relations Act sets out maintenance and support obligations in relation to children and in relation to spouses.

Section 89, which falls under

Part 7 of the Act , provides that one spouse is responsible and liable for the support and maintenance of the other spouse having regard to: (

a) the role of each spouse in their family; (

b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other; (

c) custodial obligations respecting a child; (

d) the ability and capacity of, and the reasonable efforts made by either or both spouses to support themselves; (

e) economic circumstances. Section 89(2) provides that except as provided in s. 89(1) (set out above) a spouse or former spouse is required to be self-sufficient in relation to the other spouse or former spouse. [ 23 ]

Section 89 of the Act , also provides that if an application is made to vary or rescind a maintenance order (except a maintenance order regarding children), the court must consider changes in the needs, means, capacities and economic circumstances of each person affected by the order and make the appropriate change, if any. [ 24 ] Section 96(4) provides that a spouse or former spouse receiving maintenance under an order must make reasonable efforts to become self-sufficient as required by s.89(2) without prejudice to the continuing application, if any, of s. 89(1).

Furthermore, s.96(5) provides that if the court finds a spouse or former spouse is not making reasonable efforts under s. 96 (4) the court may reduce the amount of maintenance payable on behalf of the spouse or former spouse under a maintenance order. [ 25 ] In this case, Mr. F. and Ms. P. were not married. However, they lived together for a number of years and therefore qualified to be classified as “spouses” under the Family Relations Act . [ 26 ] When Judge Tweedale first considered whether Ms.

P. was entitled to spousal support he took into account the following: - The length of the relationship, which was 14 years; - The role of Ms. P. in caring for the children while earning some income outside the home; - The role of Mr. F. as the main income earner during the relationship; - The burden of debt that Mr. F. had taken primary responsibility for; - The new relationship Mr. F. had formed since separation from Ms. P. which brought with it new financial and other responsibilities; - The fact that Mr. F.’ new partner was in good health and worked full-time outside the home.

Judge Tweedale noted in his decision that Ms. P. thought she would need up to three years to become financially self-sufficient. [27] Ms. P. was awarded spousal support from Mr. F. beginning May 1, 2006. Accordingly, she has now been receiving spousalsupport for approximately four and a half years, albeit at a reduced rate since October 2009. The question which I must answer iswhether, in all the circumstances, it is now appropriate to terminate the spousal maintenance paid to her by Mr. F. altogether. [28] In Bracklow v. Bracklow (SCC), [1999] 1 S.C.R. 420 the court identified the conceptual basis on which ordersof spousal support may be made: (

a) compensatory – such support may arise where a spouse has sustained losses as a result of the marriage or the marriage break-up (

b) contractual – such support may flow from express or implied agreements made by the parties about support (

c) non-compensatory – such support may arise in situations where need is established that is not met on a compensatory orcontractual basis The court also noted that in most cases compensation is the main reason for support. [29] In the case before me, on the evidence I am satisfied there was no contractual obligation and non-compensatory factors, in myview, are not applicable. In many cases where non-compensatory orders are made, illness and/or disability of the receiving spouse havebeen a factor; see E.A.C. v. LAC 2009 BCPC 49. [30] Ms. P. is healthy and able to work.

She has worked in the past and since the dissolution of her relationship with Mr. F. she hasobtained a certificate in early childhood education. In his 2006 decision Judge Tweedale noted that, at that time, the children were oldenough for her to work outside the home and she has special skills which may have resulted in better income than he assumed. On theevidence I find that Ms. P. is capable of being employed but she has not made reasonable efforts to find employment since early 2009when she left H.C. I appreciate that her teenage daughters need her guidance and support.

However, they are now old enough that Ms.P. ought to have the time to focus on finding employment and to make reasonable efforts to become fully self-sufficient. Accordingly,the current spousal support of $150 per month will only continue until May 1, 2011, at which time spousal support for Ms. P. will end. Special expenses [31] Issues relating to child support are addressed in the Child Support Guidelines issued by the Federal Government. BritishColumbia has adopted the Guidelines.

Accordingly, a judge making an order relating to child support is governed by the provisions ofthe Guidelines. [32] Section 7(1) of the Guidelines defines special or extraordinary expenses. Special expenses include: − that portion of the medical and dental insurance premiums attributable to the child; (s. 7(1)(b)) − health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment and otherhealth related expenses. (s. 7(1)(c)) [33] Special expenses must meet the test of necessity and reasonableness but need not be extraordinary; see: Abelson v.

Mitra 2008BCSC 1197. Section 7(2) of the Guidelines provides that expenses which qualify as special or extraordinary expenses are shared by theparents in proportion to their incomes after deducting any contribution to those costs made by the child or the government. [34] The fact that an expense falls within the categories listed in the definition of special or extraordinary expenses does not mean thatthe parent incurring the expense can automatically claim a contribution from the other parent.

Section 7(1) of the Guidelines providesthat a judge must also consider whether the expense is necessary having regard to: the child’s best interests, the reasonableness of theexpense in relation to the means of the parents and those of the child, and the family’s spending pattern prior to separation. [35] In Thomas v. Thomas, [2000] B.C.J. No. 788 Master Baker wrote: There is no doubt that orthodontic treatment for children in this sense comes within the category of allowable, special or extraordinaryexpenses.

However, it must be evident that the expense is necessary, in the child's best interests, and reasonable. Those requirements areprefatory. There is no evidence whatever as to the medical necessity of the orthodontic treatment in this case. The fact of the orthodontictreatment itself and its cost are not in dispute, but there is no supporting evidence as to the advisability or requirement.

In thatcircumstance, I am not prepared to accept that the simple fact of the expense being incurred automatically demonstrates its necessity orits reasonableness. [at para 24] In the case before me the orthodontic expenses have not yet been incurred but the comments in the Thomas case apply nevertheless. [36] The information provided by Ms. P. does not establish the necessity of the proposed orthodontic expenses. It is not clearwhether the braces for the two daughters are medically necessary or for cosmetic purposes. Additionally, Ms. P. has not established thatthe proposed expense is reasonable.

I heard evidence that payment for some or all of the orthodontic expenses may be available throughother sources (e.g. Health Canada, Mr. F.’ extended health plan or other resources available to First Nations). All of these other sourcesshould be explored before a decision is made to order Mr. F. to pay his proportionate share (assuming all other elements are met). Itwould be in everyone’s best interests if both parents discussed the proposed orthodontic expenses and made an effort to jointly agreehow they should be handled. It appears that they have not done that, nor looked at other options.

Therefore, I am not prepared to grantMs. P’ application to order Mr. F. to pay those costs. [37] Ms. P. also asks this Court to order Mr. F. to pay the cost for special diet items for S. There is no medical evidence before meabout the need for a special diet to deal with S’s gallstone problems. Additionally, there is no evidence that the special diet items she

apparently requires cannot be covered by the monthly child support payments made by Mr. F. Those child support payments are meant to cover basic necessities such as food. Ms. P. request for an additional payment for special diet items is dismissed. CONCLUSION Mr. F.’s application [ 38 ] Mr. F. must continue to pay spousal support of $150 per month up to and including May 1, 2011; once that payment is made, spousal support for Ms. P. ends. [ 39 ] Ms. P.’s application for an order for the payment of special expenses for orthodontic costs and special diet items is denied. ________________________________ The Honourable Judge M. F. Giardini Provincial Court of British Columbia