A.F.R. v. L.J.R. Date:, 2016 BCPC 392

Citation: A.F.R. v. L.J.R. Date: 20161201 2016 BCPC 392 File No: 100044 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: A.F.R. APPLICANT AND: L.J.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.V. HOGAN Counsel for the Applicant: Self Represented

Counsel for the Respondent: Self Represented Place of Hearing: Kelowna , B.C. Date of Hearing: November 24, 2016 Date of Judgment: December 1, 2016 [ 1 ] A.R. is 57 years old; L.R. is 54 years old. They started living together in 1983, married in 1985 and started living separate and apart in 2008. They have an adult son. [ 2 ] They signed a separation agreement in 2012, drawn by lawyers, which was filed in Provincial Court in 2013.

It contains a term that ‘A.R. will pay to L.R. for her support the sum of $1,012.00 per month commencing on April 1, 2011 and continuing on the first day of each month thereafter for an indefinite (unspecified) duration.’ The parties agreed ‘that their financial circumstances may be affected by changes in…their employment and subsequent reduction in income for a reason beyond that party’s control…’ For the purposes of the separation agreement the parties agreed that L.R.’s 2011 gross income was $26,800.00 and A.R.’s gross income was $60,000.00. [ 3 ] A.R. applied to the court in July 2016 to: 1) reduce the monthly spousal support to zero while he is unemployed, and 2) eliminate or vary his arrears during his period of unemployment. [ 4 ] The applicant’s circumstances include living with a female partner, who works on a permanent part time basis, but who presently has a disability income, based on 60% of her regular income.

Her two sons live with them. She owns a home in another community which she rents out to tenants. A.R. has a diploma in Engineering Technology and an MBA from an Ontario university. In January, 2010 he lost his job due to restructuring with a major player in the telecommunication sector. In November, 2010 he went to work for a software company where he was restructured out of a job in June, 2015. He was on Employment Insurance until July of 2016 when his eligibility ran out. His income at the moment is made up of approximately $1,000.00 in yearly stock dividend pay outs.

He continues to look for work but says that he may have to take a minimum wage job. [ 5 ] A.R. has an interest in his mother’s estate which is presently tied up in litigation over the distribution of the assets between him and his two sisters. He received a $100,000.00 interim distribution of the proceeds in April, 2016. He has an expectation, depending on the litigation outcome, of receiving between $300,000.00 and $500,000.00. He owns the former matrimonial home, with an undetermined amount of equity of approximately $150,000.00, and an RRSP with about $400,000.00 in it. He owns a Mustang race car and races it.

He has assets of almost $600,000.00. On the liability side he has two lines of credit owing perhaps $313,000.00 on them with perhaps another $20,000.00 available to draw on. FMEP has placed liens on everything; FMEP has restricted his driver’s license and his passport. At this point he owes $5400 in arrears. [ 6 ] L.R. remains single. She has some health problems and in June of 2016 she was restructured out of her clerical job, although she is hopeful that she can find work for $16.00 per hour.

She lives in low cost housing, does not have medical or dental coverage, although she discloses in her financial filings that she has assets of $436,000.00. She has, from time to time, forgiven A.R. for some of his monthly support payments, and that is why FMEP is after him for a relatively small amount of arrears. [ 7 ] What is to be done? [ 8 ] Both parties are unemployed and in need of an income. A.R. the applicant has no income for now but is seeking employment; when his mother’s estate is divided he will receive a substantial sum.

He has a $400,000.00 RRSP which he is reluctant to draw from despite the fact that as he presently has no income and withdrawals will have minimal income tax repercussions for him. In his 2015 tax filings he reveals he drew out $15,000.00 from his RRSP for other needs. In April of 2016 when he received $100,000.00 as an instalment on his estate benefits he paid off debt with those funds which is commendable. However in doing so he put his spousal support obligations last on his priority list.

He decided not to deal with his support obligations although FMEP was the only body that had the power to take away his driver’s license, seize his passport, seize his federal income tax refunds, put liens on his house and potential estate pay outs and garnish any free cash he might have temporarily have. [ 9 ] It is obvious that this is a stressful situation for A.R. Long periods of unemployment are difficult.

Moreover long term erosion of a citizen’s financial situation is a well-recognized consequence of marriage breakdown. [ 10 ] However there are many good and valid public policy reasons why separation agreements should be upheld. Included among those reasons is the belief that the certainty of the agreement prevents unnecessary court applications in the future between the parties. This application is premature. It is now only 4 years since the separation agreement, which concluded a 23 year marriage, was entered into, and it should not be easily interfered with by the court.

A.R. has the ability to meet his legally binding financial obligations; there are no financial criteria in A.R.’s circumstances which call for court ordered relief. [ 11 ] The application is dismissed.

_____________________________ The Honourable Judge P.V. Hogan