V.A.G. v. J.S.H. Date:, 2016 BCPC 295

Citation: V.A.G. v. J.S.H. Date: 20160914 2016 BCPC 295 File No: 1240482 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: V.A.G. APPLICANT AND: J.S.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.W. CALLAN Appearing on their own behalf: V.G. Counsel for the Respondent: Ms. K. Pavao Esq. Place of Hearing: Prince George , B.C.

Date of Hearing: June 1 and July 20, 2016 Date of Judgment: September 14, 2016 Issue [ 1 ] Ms. G. comes to court to seek spousal support beyond what is set out in the Separation Agreement (copies of which have been entered into evidence at Exhibits 1 and 2), with her former spouse, Mr. H. Background [ 2 ] The parties met in 1989, married in 1991. They were together until Mr. H. left the relationship in December of 2010. During the time they were together, some 21 years, the Applicant took care of the family home, a trailer on 80 acres of land near Hixon, B.C. The couple had a blended family of four children. Ms.

G. had a son and a daughter from a previous relationship and Mr. H. had two little girls. Ms. G. had the primary responsibility of raising the children due to Mr. H.’s work schedule. From Ms. G.’s testimony, which is not contradicted, the children appear to have grown up to be hard working and successful. [ 3 ] Mr. H. is a truck driver who the evidence showed was constantly on the road, so a lot of the family responsibilities fell to Ms. G. As she was also in charge of the family finances, Mr.

H. would give her his earnings to manage for the benefit of the family. [ 4 ] The parties separated on December 4 th 2010. Ms. G.’s Case [ 5 ] Ms. G. testified she has training as an addictions counsellor and when she was working earned $2,500-$3,000 per month. She now works as a server at a burger drive-in in Hixon and sometimes in an antique store. She is dependent on employment insurance for a good part of her income. [ 6 ] Ms. G. has suffered from Hepatitis C and had treatment for this condition the year before the separation.

She is 58 years old and testified that due to the Hepatitis condition she will have difficulties when she has to renew the mortgage on the property where she still lives. The mortgage payments are $420.00 per month. The annual mortgage statement on the property indicates that as of December of 2014, the principal balance on the property was $33,877.00. [ 7 ] She put her copy of the Separation Agreement into evidence as Exhibit 1. The Separation Agreement is dated October 1, 2011 and signed by both parties. Ms.

G. testified she saw a lawyer to get advice concerning the use of a separation agreement form which she obtained from a stationary store. She was told such documents are of little legal value in that there are difficulties in enforcing them. [ 8 ] She pressed ahead and used the separation agreement form to set out the terms by which she and Mr. H. would share the financial liabilities and determine any future obligations. I would note in Exhibit 1 the liabilities were very carefully enumerated.

These liabilities consisted mainly of credit card debt and lines of credit. [ 9 ] Paragraph 8 sets the terms of the spousal support to be paid by Mr. H. Payments would be in the amount of $1,600.00 a month from October 1, 2011 to September 1, 2014. This would represent a total according to my arithmetic of $57,600. The couple’s personal property was divided between them. The children had all grown up and left home by the time of the separation. [ 10 ] Mr. H. would retain the following personal property: a. 1998 Dodge 4 x 4 pickup truck valued by Mr. H. at $5,000; b. 2007 Harley Davidson Dyna; Mr.

H.’s valuation is $10,000; c. boat and canoe (both were used, no value provided); d. Mr. H. would accept sole and exclusive liability for the debts to CIBC ($20,000) and the line of credit at HSBC ($19,000) for a total of $39,000. [ 11 ] Ms. G. would retain the following property: a. 2001 Chrysler Neon - Ms. G. suggested the vehicle is worth between $3,000 - $3,500. b. Honda Quad All-Terrain Vehicle purchased for $16,000. An amount of $8,000.00 was remaining to be paid at the time of separation. Ms. G. said she sold the quad to pay a tax debt. c.

Photos, gardening/yard maintenance tools, woodworking power tools and hand tools would be shared between the parties. d. Ms. G. would have sole and exclusive liability for the Canadian Tire MasterCard, the HBC MasterCard, the Sears card, the Source card and American Express. e. She would have the matrimonial home which is described as being at address [omitted for publication], East Hixon, British Columbia.

The Separation Agreement states: “forthwith upon execution of this agreement the wife shall purchase from the husband all interest entitled to and in the matrimonial home upon the following terms and conditions:

(

i) the payment to the husband of the sum of $0 (ii) (other terms and conditions) when the mortgage has been paid in full J. will remove his name from the land title.” [ 12 ] It should be noted at the time of separation there was $45,000 outstanding on the mortgage. [ 13 ] At the end of the paragraph 8 on Exhibit 1 is a hand written note: “This is to be reviewed at the end of the three years.” [ 14 ] As stated before, the portion of paragraph 8 that refers to the $1,600.00 payments is duly initialled by the parties.

The added handwritten sentence that says this term will be subject to future review is not initialed. [ 15 ] The Agreement was signed off at Mr. H.’s daughter’s home. Ms G.’s sister, L.K. signed as witness to Ms. G.’s signature. Mr. H.’s Case [ 16 ] Mr. H. placed his copy of the Separation Agreement which is dated October 1, 2011, into evidence as Exhibit 2. His paragraph 8 does not contain any hand written note saying the spousal support is to be reviewed after three years. [ 17 ] In his testimony Mr.

H. is quite adamant that he did not agree to a term of further review for spousal support and the hand written note was added by Ms G. after he signed the Agreement. Had it been raised with him, he would not have agreed to any such review. [ 18 ] It is clear from his testimony that at the time the Separation Agreement was executed he no longer wished to be in the marriage with Ms. G. He agreed to pay spousal support for three years because: a. the mortgage on the family residence would be paid off at the end of the 36 month period; b. his name would be removed from the mortgage; c. Ms.

G. would own the property and have a roof over her head. [ 19 ] Ms. M.T., Mr. H.’s aunt and witness to his signature, testified that Mr. H. intended the spousal support to pay down the mortgage. Mr. H.’s name would be at taken off the mortgage at that time. [ 20 ] Neither Ms. K. nor Ms. T. could provide evidence as to whether the hand written term at paragraph 8 was there when the signatures were witnessed nor was there discussion in front of either witness about future review.

Whether there is agreement on October 1, 2011 for the parties to review spousal support after 1 September 2014 [ 21 ] The Family Law Act states: Setting aside agreements respecting spousal support 164

(1) This

section applies if spouses have a written agreement respecting spousal support, with the signature of each spouse witnessed by at least one person

(2) For the purposes of subsection (1), the same person may witness each signature.

(3) On application by a spouse, the court may set aside or replace with an order made under this Division all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement: (

a) a spouse failed to disclose income, significant property or debts, or other information relevant to the negotiation of the agreement; (

b) a spouse took improper advantage of the other spouse's vulnerability, including the other party's ignorance, need or distress; (

c) a spouse did not understand the nature or consequences of the agreement; (

d) other circumstances that would under the common law cause all or part of a contract to be voidable.

(4) The court may decline to act under subsection (3) if, on consideration of all of the evidence, the court would not replace the agreement with an order that is substantially different from that set out in the agreement;

(5) Despite subsection (3), the court may set aside or replace with an order made under this Division all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following: (

a) the length of time that has passed since the agreement was made; (

b) any changes, since the agreement was made, in the condition, means, needs or other circumstances of a spouse; (

c) the intention of the spouses, in making the agreement, to achieve certainty; (

d) the degree to which the spouses relied on the terms of the agreement;

(

e) the degree to which the agreement meets the objectives set out in

section 161 [objectives of spousal support] .

(6) Despite subsection (1), the court may apply this

section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances. [ 22 ] I do not have any evidence before me that would support a finding of any of the criteria at s. 164(3). I do not find the Agreement was unfair or that one party or the other was at a disadvantage in the negotiations. [ 23 ] I note from the evidence that Ms. G. dealt with the family finances and she prepared the Separation Agreement for signature.

I find the parties had full disclosure of assets and liabilities at the time the Agreement was executed. [ 24 ] I am satisfied from the evidence that Mr. H. had no intention of agreeing to a review of spousal support after September 2014. This is based on Mr. H.’s testimony and the fact that his copy of the Agreement (Exhibit 2) has no term concerning a review of spousal support. Mr. H. said he did not even find out about the hand written term until recently when he obtained a copy of the Separation Agreement from the registry where Ms. G. had filed the document as part of the court record. Whether Mr.

H. has an obligation to continue paying spousal support over and above the terms of the Separation Agreement [ 25 ] It was clear from Mr. H.’s evidence, both expressly and by implication, that he wanted out of the marriage and that he looked upon the Separation Agreement as setting out all his obligations and that there would be no further review. Looking at the assets and liabilities of the couple at the end of their marriage it is apparent the Ms. G. had the lion’s share of the assets and Mr. H. undertook $100,000 in liabilities (including the $57,600.00 spousal support to Ms.

G.). [ 26 ] The intention of the payment from the $57,600 as stated by Mr. H. was to pay off the mortgage. By implication Mr. H. would have finished any liability to the lender and Ms. G. would own the family property free and clear of any encumbrances. He testified that he did get the boat, truck, motorcycle and his personal goods from the matrimonial home. Ms. G. received everything else including the property, the backhoe and a portable sawmill. [ 27 ] I find that even if there was no Separation Agreement limiting spousal support, Mr. H.’s payments of $1,600.00 per month over three years to Ms.

G. and his assumption of the other liabilities was not only fair in all the circumstances, but placed Ms. G. in an advantageous position. [ 28 ] I do not find that Mr. H. has any further financial obligations to Ms. G., given his past payments and current health. [ 29 ] I note from the evidence both parties are having health difficulties. At the trial Mr. H. testified he began having back problems in 2009. He now has been diagnosed as suffering from critical pulmonary obstruction. As a result he can no longer work as a truck driver. Ms.

G., who has been dealing with the effects of her recent illness, is able to work on a part-time basis in Hixon. She stated she is reluctant to move to Prince George to seek other employment opportunities. [ 30 ] According to Mr. H.’s Financial Statement filed May 19, 2016, his total income is $13,100 and he has expenses of $35,829.28. He is still liable for the HSBC line of credit which is a debt of $18,206.67. This line of credit had been used for his living expenses. Ms.

G.’s Financial Statement filed December 11, 2015, reveals an income of $14,386.28 being a combination of the employment income and unemployment insurance benefits in the amount of $5,981. She still owes the outstanding debt under the mortgage. [ 31 ] Even without the Separation Agreement, I would conclude that any obligation on Mr. H.’s part to pay spousal support has been extinguished. [ 32 ] For those reasons Ms. G.’s Application for spousal support is dismissed. ________________________ R.W. Callan Provincial Court Judge Province of British Columbia