A.M.D. v. E.L.V., 2018 BCPC 126

Citation: A.M.D. v. E.L.V. 2018 BCPC 126 Date: 20180529 File No: 13004 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A. M. D. APPLICANT AND: E. L. V. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK

Appearing in person: A. M. D. Appearing in person: E. L. V. Place of Hearing: Abbotsford , B.C. Date of Hearing: May 25, 2018 Date of Judgment: May 29, 2018 Background [ 1 ] On November 3, 2009, the Honourable Judge B. G. Hoy of this Court made an interim order for spousal support which required the Respondent E. L. V. to pay to the Applicant A. M. D. (formerly known as A. M. V.) the sum of $600 per month commencing November 1, 2009 and continuing thereafter until further order of this court. The order was based on an annual income imputed to the Respondent in the sum of $47,643.

This order also required the Respondent to pay the Applicant the sum of $723 per month for the support of two children. [ 2 ] The order for child support was adjusted on April 28, 2016 by the order of the Honourable Judge J. I. Solomon of this court, but the order for spousal support remained unadjusted. Along the way the parties had disputes concerning the Respondent’s parenting time, and it also appears that the Respondent had to be ordered to make financial disclosure on two occasions. [ 3 ] The Respondent has brought an application for spousal support to end.

Because the parties were each self-represented and had differing opinions of what took place in the hearing before Judge Hoy, judgement was reserved on this matter in order to allow me to access the recording of the proceedings before Judge Hoy in 2009. Original Order [ 4 ] These parties had a 10 year marriage according to the evidence of the Respondent. The Applicant did not dispute this. The parties did not have much recollection of the circumstances under which the original order was made.

In order to ascertain the reasons that the original order was made, the audio recording of the proceedings when the order had to be accessed. It could not be accessed on the day of the hearing because of its age. Rather than making the Respondent return to court from Kitimat on another day, it was decided that this would be done while judgement was reserved. [ 5 ] The original order for spousal support was made at a first appearance in Family Remand Court on November 3, 2009.

The Respondent had been served with notice of the application for child and spousal support, but did not file a reply within the prescribed time. Accordingly, the only person appearing before Judge Hoy at the first appearance on this matter was Counsel for the Minister under the BC Employment Act , representing the Applicant. [ 6 ] The information given to Judge Hoy was somewhat different than the evidence given at this hearing.

Counsel suggested that the parties began living common-law in 1997, that they were married in 1999, and that they separated in 2005, but that the Respondent continued to support the Applicant. Counsel suggested that the Spousal Support Advisory Guidelines required the Respondent to pay monthly spousal support at a range of between $592 (the low end of the range) and $801 (the high end of the range). Counsel asked Judge Hoy to order the Respondent to pay child support for the two children in the amount of $723 per month and spousal support in the amount of $600 per month.

Judge Hoy made the requested order, in his words, “based on the submissions of counsel and the father’s non-appearance.” [ 7 ] Because it was a brief appearance on a Family Remand day and because the order was being made by default as a result of the Respondent’s non-appearance, Counsel did not set out the numbers used in arriving at the calculations under the guidelines. No “DivorceMate” calculation sheet was filed. Counsel also did not indicate what the duration of the order suggested by the guidelines was, and this is understandable because this was only an interim order.

I make this comment because I have subsequently had someone make the calculations under the guidelines based on the information that was testified to at the hearing before me, on the information in the financial statement filed by the Applicant at the time, and from the Respondent’s income tax information. The range of spousal support payable by the Respondent using this information is much lower than that presented to Judge Hoy (with a range between a low of $0, a mid-range of $332 and a high of $668 per month).

I suspect that the calculations made at the time were based on the Applicant having no income, but this was not stated on the record. Developments Since The Interim Order [ 8 ] At the time of the making of Judge Hoy’s order the parties had been separated for approximately two years according to the Applicant’s evidence. The Applicant recalls that she was not working at the time that Judge Hoy made his order, and that she did not return to the work force until 2010 or 2011.

Previously, she had worked at the same job for 15 years, but she left that employment on the advice of her doctor because of the state of her emotional health. She recalls that she was diagnosed with manic-depression and was not able to work. She testified that today this is no longer an impediment to working and that she has benefitted from the therapy she received.

In her words, “my diagnosis was based on my relationship.” The Respondent found this amusing for some reason, but would not elaborate why when he was asked about this. [ 9 ] The Applicant says that she returned to the work force in 2010 or 2011 and that she has had that employment since then.

She has secure employment as a senior dispatcher and in her financial statement she has attached her Notices of Assessment from the Canada Revenue Agency, which show income from that employment for the past three years as follows: 2015-$49,152; 2016-$49,600; 2017- $45,121. [ 10 ] In November of last year the Applicant had a fire in the kitchen of her home. She suffered burns to her hands and face and was off work for several months. She received medical employment insurance benefits while recovering from her injuries. She has returned to work this year, but her hours have been reduced.

She is caring for her ailing mother who has had a series of serious health incidents, including two strokes and a heart attack. Her father was also recently diagnosed with cancer and she is helping to care for him as well, so

this has been a very difficult time for her. The Applicant has a very understanding employer and the recent cut in her hours has been at her request in order to allow her to spend more time with her parents. [ 11 ] The Applicant is concerned that the Respondent has been very secretive about his income throughout these proceedings. She says that he has refused to disclose particulars of his income and has only done so when ordered to do so by the court. [ 12 ] The Respondent wants the order for spousal maintenance completely terminated.

He says that the Applicant has entered into a new marriage-like relationship and that she has been in that relationship since 2009. He says “we were married for ten years and I’ve been paying for nine now.” [ 13 ] The Applicant agrees that she is in a new relationship, but says that she began that relationship in either 2011 or 2012. Her new partner is employed as an electrician. He contributes to the household expenses, but she claims that she does not know what he earns. He has children from his previous relationship but his child support obligations have expired.

She says of her new partner, “Whatever the kids need, he’s there for them.” He is not working at present, but generally his layoffs are for short periods. [ 14 ] The Respondent complains that his financial circumstances are not as they appear in his financial statement. He works in the construction industry and his income depends on the availability of projects. His Notice of Assessment for 2015 shows net taxable income of $97,631, and for 2016 it was $92,837. According to his 2017 Tax Return

summary, his net income for that year was $95,297.08. But he says that after payment of past debts, as well as his support obligations, he has difficulty making ends meet and had trouble finding enough money to make the trip down from Kitimat to attend these court proceedings. [ 15 ] Despite having the greater income level, the Respondent says that he has had a lot of non-deductible expenses including paying rent for his mother, who has recently passed away. He says that he is struggling financially himself.

He says that for this year he worked until the first week of March, when he was laid off from his current job. He has been receiving employment insurance benefits until recently, when he returned to work in April. Applicable Law [ 16 ] At issue in this case is whether or not spousal support should continue indefinitely, whether it should continue for a set time, or whether it should terminate. It has already been found by Judge Hoy that the Applicant was entitled to spousal support. There are three grounds of entitlement to spousal support: (1) compensatory; (2) contractual; and (3) non-compensatory.

Judge Hoy did not specify on which ground his entitlement was justified in this case, but from the context of the comments made in court, it appears to have been based either on need or to compensate the Applicant for economic disadvantages which she found herself at as a result of the marriage. [ 17 ] Compensatory support is intended to give a remedy to a spouse who has suffered an economic disadvantage from the marriage or who has made sacrifices in order for the other spouse to gain an economic advantage.

It is based on the idea that if a spouse suffers an economic loss as the result of the marriage or the breakup which would not have otherwise occurred, that spouse is entitled to be compensated for that loss. It recognizes sacrifices made by a spouse in order to assume primary childcare and household responsibilities. Compensatory support can also address economic advantages which one spouse acquires at the expense of the other spouse’s sacrifice. [ 18 ] If there is no compensatory basis for an order of spousal support, a spouse may still be entitled to support based on need.

For example in some circumstances such as where a spouse is sick or disabled, spousal support may be on a non-compensatory basis. [ 19 ] The objectives of spousal support are set out in

section 161 of the Family Law Act as follows:

a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship;

b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child;

c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses;

d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 20 ] Once entitlement has been established, the court is guided by the Spousal Support Advisory Guidelines (SSAG). These guidelines are a guide developed with the intention of bringing more certainty and predictability to the determination of spousal support. The BC Court of Appeal has said that the guidelines should be used to determine if a proposed award for spousal support is in the range of what should be a pattern of predictable maintenance awards across the province.

Analysis [ 21 ] In this case I have used had the guidelines calculations made to determine what a proper order under the guidelines would have been at the time of the making of Judge Hoy’s order, and more specifically, how long such an order might have lasted. At the time Judge Hoy made his order, the Applicant was 39 years of age and the Respondent was 45. His guideline income at the time was $47,653 and hers was $15,360. The Respondent has testified that they were married for 10 years and the Applicant did not dispute this.

At the time of the order, their children were then 9 and 7 years of age. [ 22 ] According to the calculations under the guidelines as they existed at the time, the range of spousal support payable by the Respondent at the time would have been a low figure of no maintenance payable, a mid-range of $83 and a high of $225 per month. The guidelines also would have prescribed duration for spousal support of between five and eleven years.

If the calculations are made based on the parties’ current incomes, the range is still between a low of no spousal maintenance, a mid-range of $332 per month, and a maximum of $668 per month. Using today’s numbers, the guidelines suggest a maximum duration of ten years from the date of separation for the obligation to pay spousal support.

[ 23 ] On a consideration of all of these factors, I find that it is equitable to grant the application to now terminate the Respondent’s spousal support obligations for the following reasons: 1. The Respondent has met (and in fact has likely exceeded) his obligation to provide for the support of his spouse over the period in which she was expected to achieve self-sufficiency and return to the work force. 2. The Applicant did in fact return to the work force, and did so reasonably soon after the interim order was made. 3.

The Applicant now has a second income in the household to help her to meet expenses, in addition to what she is able to earn from her employment. 4. The time period set out as the maximum end of the range under the guidelines has now passed. It has been over 10 years since the parties have separated. [ 24 ] Given that the Respondent has been ordered to meet a spousal support obligation equal to or greater than others in his position, and given that time has now surpassed the maximum period for spousal support set out in the guidelines, it is unfair for the payment of spousal support to continue.

It is unfortunate that this comes at a time when the Applicant is confronted which a number of personal challenges concerning her family. However the Respondent is entitled at law to the relief that he now asks this court for. [ 25 ] Similarly, the Respondent may feel hard done by over the fact that for much of the duration of the 2009 order he was making a spousal support payment in excess of the high range of the guidelines. However on a review of the court file, it appears that the Respondent was not always prompt or willing when it came to disclosure of his financial information.

Had he been more cooperative, it probably would have worked to his advantage. I would also note that he chose not to reply to the initial application and did not appear at the first appearance before Judge Hoy because of his failure to respond to the initial application. Sometimes people assume that if they ignore court proceedings, this will somehow work in their favour.

It would have been wise for the Respondent to file a Reply to the original application. [ 26 ] It should also go without saying, that nothing said in these reasons for judgement affects either the Respondent’s obligations to pay child support or the existing orders for the amount of that support, and nothing relieves him of his obligation to pay any existing arrears. Orde r [ 27 ] For the foregoing reasons, it is ordered, pursuant to section 167 (1) of the Family Law Act , that the obligation of the Respondent E. L. V. to pay spousal support to the Applicant A. M. D. (formerly known as A. M.

V.) as ordered by the Honourable Judge B. G. Hoy on November 3, 2009, shall terminate as of May 31, 2018. Dated at the City of Abbotsford, in the Province of British Columbia, this 29 th day of May, 2018. ___________________________________ (The Honourable Judge K. D. Skilnick)