G. v. T. Date:, 2012 BCPC 162

Citation: G. v. T. Date: 20120130 2012 BCPC 0162 File No: 13030 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: D.K.G. APPLICANT AND: T.L.A.T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Mr. S. Soll

Counsel for the Respondent: Mr. D. Komori Place of Hearing: Kamloops , B.C. Date of Hearing: January 5, 2012 Date of Judgment: January 30, 2012 A corrigendum was released by the Court on May 14, 2012; the corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] An interim spousal maintenance order was made in this matter on August 26, 2010 at which time Mr. G. was ordered to pay to Ms. T. the sum of $1,050.00 per month. The order was to be reviewed and has been adjourned from time to time. This is the review. [ 2 ] The issues before me are:

a) Whether Ms. T. and Mr. G. were in a marriage-like relationship for a period of two years. If they were not, should the application be dismissed;

b) Because Mr. G. entered into an interim without prejudice order and made subsequent payments of spousal support, is he then estopped from making the argument regardless of whether there was a marriage-like relationship;

c) If there was such a marriage-like relationship, then circumstances have changed since the order of August 2010 in that Ms. T. no longer has de facto custody of the child who is in the care of the Director;

d) If spousal support is owing, is the appropriate guideline amount the SSAG with child or the SSAG without child; and

e) For how long should the spousal support be payable. BACKGROUND: [ 3 ] Ms. T. is 41 years old and resides in Kamloops. She has a Grade 12 education as well has her legal secretary diploma and 18 university credits. Prior to meeting Mr. G., she had extensive experience as a legal secretary. [ 4 ] Mr. G. is a heavy equipment operator who works mostly out of town. He met Ms. T. in 2007 and their daughter, A., was born in March 2009. [ 5 ] Ms. T. reported that A.’s delivery was a complicated one resulting in A. having hip-dysplasia.

Since her birth, she has had a number of orthopaedic interventions requiring her to have 24 hour care, seven days a week. She was 19 months old before she could walk on her own and had to be carried everywhere. She will still require some surgery and has since been diagnosed with acute lymphoblastic leukemia for which she is now receiving chemotherapy. Her orthopaedic surgery is delayed until that chemotherapy is concluded. NATURE OF RELATIONSHIP: [ 6 ] There is a significant discrepancy in the evidence between Ms. T. and Mr. G. about the length of their relationship and the nature of it. Ms.

T. said that she met Mr. G. in March 2007 and they began living together in July 2007. Although the relationship was at the very least a tempestuous one, she maintained that they lived together until he moved out in November 2009. [ 7 ] Between the time they moved in together and the time he moved out, Mr. G. spent much of his time working out of town. They moved from a basement suite to an apartment to a home on [omitted for posting] and finally out to [omitted for posting]. Mr. G. assaulted Ms. T. in late March 2009, shortly after their daughter’s birth.

He was placed on a peace bond but was able to move back into the home in April 2009. However, he broke his ankle at work. Because Ms. T. was unable to care for him and the physical challenges of her daughter, he moved into the fifth wheel he had on his parents’ property in [omitted for posting]. He remained there until he was charged with impaired driving in September 2009. He pleaded guilty to those charges in October 2009. He was required to serve his sentence on weekends. [ 8 ] Mr. G. moved back in with Ms. T. and his daughter in part because it was closer to town. In part, he also relied upon Ms.

T. to get him to work out near Lafarge and to get him to jail to serve his weekends. When the weekends were over, he moved out fully and finally in November 2009. Until the final move in November 2009, Mr. G. did not remove his belongings from their property. [ 9 ] Mr. G. agreed that he met Ms. T. in the spring of 2007 but his version differs from there. He was living with a friend of his at the time. When he moved out of that space and into his basement suite, Ms. T., according to him, moved into the place he vacated. He said that he moved into the basement suite in mid-summer or August.

He continued to work in Cranbrook that summer and moved all of his possessions out into the basement suite through the assistance of family and friends. He said Ms. T. did not move into the basement suite until the end of 2007 or the beginning of 2008. [ 10 ] Mr. G. said they were constantly having trouble with their relationship so she would leave sometimes and stay with friends for maybe a week at a time, sometimes more. He said sometimes he would also leave. In part, this was due to the no contact restrictions on his Recognizance. Other times, he said he would leave when they were having trouble.

He said she should not let him take his stuff out of the house and believed that she knew what she was doing by building up time for the relationship to qualify as a marriage-like

relationship. [11] He said he moved into the fifth wheel on his parents’ property when he broke his ankle. He said the relationship with Ms. T.was one where they were “just the parents of a child at that point”. He tried to help her financially by giving her money for rent, billsand diapers. [12] Mr. G. said that when he was serving his intermittent sentence, he stayed in the basement at her place. He denied she tookhim for every intermittent weekend sentence but agreed she did take him sometimes. When it was over, he moved out of their house. [13] Ms. T. filed for child and spousal support in January 2010. Mr.

G. was aware as of that date she was seeking spousal support. He appeared in court on his own on March 10, 2010 at which time child support and residency were dealt with, but not the spousalsupport. A case conference was set. Spousal support remained a live and disputed issue. [14] A hearing was set for August 23, 2010 which he says he vaguely recalls. One of the issues for the hearing was spousalsupport. The hearing did not proceed because a consent order was entered including a consent to pay spousal support. The order wasinterim and was made without prejudice. [15] Mr.

Soll argued that because the payments of spousal support Mr. G. made were pursuant to an interim without prejudiceorder he is not estopped from arguing that spousal support is not payable. The relationship was not a marriage-like one for the requisitetwo year period and therefore no amount of spousal support is payable. He argued that the evidence of the length of the relationship is,at best, equivocal and falls short of the standard of proof. [16] Mr. Soll argued further that the words and conduct ended the relationship in August 2009 when Mr.

G. moved himself to thefifth wheel at his parents’ property in Rayleigh. He only returned for a temporary arrangement following his conviction in the fall of2009. He slept on the couch and did not resume the relationship. Mr. G. paid Ms. T. to take him to and from work. [17] The concerning part about Mr. G.’s evidence is that very little of these important elements were put to Ms. T. in cross-examination. As such, they are untested and unanswered by her. Further, Mr. G. was vague and uncertain about most of the dates. Unlike Ms.

T., he paid little heed to the timelines or the circumstances which made them up. [18] Counsel produced to me the decision of Markin v. Gysel 2004 BCSC 364 , [2004] B.C.J. No. 560. In that case, thecourt dealt with whether Ms. Markin was entitled to spousal support in that she brought her application after the one year when they“ceased to live together”. The couple had lived together in a marriage-like relationship for well over the two year required time. Thatwas not in issue.

The court found as follows: 68 I am of the opinion that the legislature intended the one year period to commence when the persons ceased living together in amarriage-like relationship, not when they stopped residing under the same roof. In my view, living together must mean something morethan sharing the same residence. It is the marriage-like relationship that gives rise to the statutory right to support. In my view, it must bethe cessation of that relationship that starts the clock running... 71 In my view, to interpret the

section as not including "in a marriage-like relationship" would extend greater rights to non-marriedcouples than to married ones, a result that could not have been intended. Where persons have been married a person qualifies as a"spouse" under subsection 1(

c) for only two years after an order ending the marriage. The simple act of cohabitation in the sense ofsharing a residence has no effect on the meaning of spouse. If the current

section were interpreted as meaning simple cohabitation (i.e.,not in a marriage-like relationship) it would prevent the one-year period from starting and the liability of a person for spousal supportwould be indefinite so long as the parties cohabited. Such an

interpretation would lead to an absurdity as it would potentially protect theinterests of common-law spouses to a greater degree than married ones. [19] In the Markin case, the couple continued to share meals and the same bed for some period of time. Then Mr. Gysel movedinto a spare bedroom at some point before moving out. [20] In that case, though, Mr. Gysel had voluntarily paid spousal support.

The court specifically rejected the decision of Pierce v.Pierce (1997), (BC SC), 29 B.C.L.R. (3d) 111 which provided that the payment of spousal support postponed thecommencement of the one year limitation period in the definition of “spouse” because the payments confirmed the cause of action. However, the court felt bound by and followed W.A.S. v.

D.W.T. (2003), 2003 BCSC 865 , 40 R.F.L. (5th) 389 which held thatpayment of the spousal support served as estoppel to the payor from relying on the limitation period contained in the definition ofspouse. [21] How that translates to this case is that I cannot extend the two year life of the marriage-like relationship merely by reason ofthe spousal support payments. However, I have to determine whether the consent order and subsequent spousal support paymentsconstitute estoppel. [22] I find on the evidence before me that Ms. T. and Mr.

G. commenced residing in a marriage-like relationship in July or Augustof 2007 and ceased to live in a marriage-like relationship in November 2009. The distinctions observed in the Markin case do not existin the case before me. Although Mr. G. was working out of town in 2007, he and Ms. T. were a couple in a relationship residing in thesame home. Although the relationship was tempestuous, it continued to be a marriage-like one even when Mr. G. moved onto to hisparents’ property. The relationship continued after he returned home to the place he shared with Ms. T. and his daughter.

His evidencethat he moved there solely for its proximity to [omitted for posting] and to gain her assistance with transportation challenges was notcompelling. I did not find his testimony compelling that he was forced to sleep on a couch or in the basement or that he had no key togain entry to the home. I am not satisfied on the evidence before me that this was merely a relationship of two parents of one child

residing under the same roof for a matter of convenience as existed in the Markin decision. [ 23 ] Even if the relationship did not exist for the requisite two years, I find that Mr. G. is estopped from arguing that Ms. T. is not entitled to spousal support. I make this finding on the basis of Mr. G.’s evidence that he continued to pay rent and provide funds to Ms. T. for diapers and groceries as he saw fit after he moved onto his parents’ property in August 2009. While he did not characterize these funds as spousal support, he did characterize them as providing funds to assist her financially.

It was not just a replacement for child support either but assistance for Ms. T. as well. Had Mr. G. not made these payments, I would not have found that he was estopped from arguing Ms.T. was not entitled to spousal support. He willingly entered into the consent order knowing that the claim of spousal support was a live and contested issue. [ 24 ] Mr. Komori said that he challenged the meaning of “without prejudice” when the order was made but received no satisfactory commitment at that time. The challenge was rightly made but absent a commitment on the record that Mr.

G. was waiving his right to an estoppel argument, the without prejudice order must not preclude it being made. Although the order is made by consent, the payments cannot be said to be made voluntarily when the right to argue that they should not be made at all is being reserved for the ultimate hearing. [ 25 ] Parties are encouraged to enter interim without prejudice orders to maintain some kind of peace and order pending the hearings of the claims made. To prejudice a party for doing so where the consent was given without prejudice would seriously undermine that extremely valuable process.

MATERIAL CHANGE IN CIRCUMSTANCES: [ 26 ] On July 30, 2011, A. was apprehended by the Ministry of Child and Family Services. Ms. T. opposed the Director’s application at the presentation hearing. She was unsuccessful. The matter is now set for trial for three days in July 2012. Ms. T. hopes that A. will be returned to her care. However, Mr. G.’s parents have made an application for custody in separate Family Relations Act proceedings which are apparently scheduled or will be scheduled to be heard at the same time as the Director’s application. In the meantime, Ms. T. has only had supervised access to A.

The Director’s primary concerns are mental health and drug addition issues. It is by no means certain that the child will be returned to Ms. T. in July or in the foreseeable future. [ 27 ] Mr. Soll argued that this amounts to a material change in circumstances and therefore spousal support should come to an end. Mr.

Komori is more confident of return of the child but says that ending spousal support would affect her ability to seek return of the child. [ 28 ] Since the order was an interim one only and was subject to review, I do not need to determine whether there is a material change in circumstances which would justify varying the spousal support order. Additionally, being subject to review, the standard is whether Ms. T. made any efforts in the interim to find work. If not, should spousal support continue? However, the change in circumstances goes to the issue of what spousal support order should be made, if any.

If the child is no longer in Ms. T.’s care, there should be no obstacle to her re-entering the work force and obtaining employment that will support her. [ 29 ] At this point, however, it is unknown to the parties whether Ms. T. will have the care and custody of the child on an ongoing basis once the hearing is concluded in July 2012. Any order I make must be subject to review following the outcome of that hearing, which should be on the merits of all of the issues in all of the proceedings. SPOUSAL SUPPORT ADVISORY GUIDELINES: WITH CHILD OR WITHOUT CHILD [ 30 ] Mr.

Soll argued that the appropriate Spousal Support Advisory Guidelines applicable to this case is the without child model. He submitted that the appropriate amount would be $150.00 per month. [ 31 ] He further argued that if Ms. T. was a spouse, any child support payment would address the needs that she has for the child’s care. The spousal support should terminate in any event unless the child is returned to her care. If the child is returned to her care, and the Spousal Support Advisory Guidelines with child apply, Mr.

Soll submits that it should not exceed beyond the commencement of school at the age of five, rather than continuing on to the end of school at the age of 17. To be clear, Mr. G. is not seeking return of the money paid. He is seeking to limit his continuing exposure to spousal support. [ 32 ] Mr. Komori argued that the Spousal Support Advisory Guidelines without child only makes sense when looking at this particular snapshot in time. Those Guidelines only apply where there are no dependent children. [ 33 ] Perhaps one of the most compelling factors is that Ms.

T. has a final order for custody as it relates between her and Mr. G. Therefore unless the court orders otherwise, if the child is to be returned by the Director to the parent entitled to custody, that parent will be Ms. T. [ 34 ] Mr. Komori’s submission is very compelling in that regard. Too little evidence was led on this hearing to make a final order that could potentially affect not only A.’s standard of living but her standard of care. A snapshot during a period of crisis cannot determine ongoing spousal support which could seriously undermine this child’s care. However, Ms.

T. needs to take her search for employment seriously and practically. She is not entitled to be supported by Mr. G. indefinitely. His obligation for spousal support must come to an end at some point. [ 35 ] In the meantime, given the decision I am rendering on this application, I see no basis for changing the amount of spousal support from that contained in the order of August 23, 2010. DURATION OF SPOUSAL SUPPORT: [ 36 ] Seeking employment has not been a priority for Ms. T. On one hand, Mr.

Komori argued that the failure to obtain employment is justified by her child’s significant health problems; the stress and anxiety produced as a result of the child’s removal by

the Director; and then the child’s subsequent hospitalization. [ 37 ] Nonetheless, Ms. T. did obtain some temporary and some casual labour employment. She is still listed with a temporary agency and hopes to continue in her search for either employment with the government or other minimum wage work which would give her the flexibility to work only at night. [ 38 ] Mr. G. argued that Ms. T. needed to show she made reasonable efforts to become financially independent. While he understands the limitations in place when his daughter was originally facing her orthopaedic difficulties, he argued that Ms.

T. should have found employment at the least after the child’s removal in July in 2011. He also argued that full time employment is not precluded by child care responsibilities. Ms. T.’s counselling and treatment can be scheduled around any work obligations she obtains. She has significant skills and experience as a legal assistant, having worked with the federal government for approximately 10 years.

She is not seeking working in that field because she does not like it and does not believe it would give her the flexibility to care for her child. [ 39 ] The long range plan of care for the child is to continue with the chemotherapy treatment. This will require some trips to the coast to Children’s Hospital for follow-up. This medical requirement should not prevent Ms. T. obtaining full time employment, whether it is in the day time or evenings. Any additional costs related to the health care, the child’s treatment or her day care will be borne by both parents.

That child support obligation will continue so long as A. remains a child under the Family Relations Act . [ 40 ] This relationship lasted barely more than two years. Ms. T. did not work from May 2008 until the end of the relationship in November 2009. For part of that time, she drew employment insurance and took maternity employment insurance as well. This lasted for approximately 50 weeks. [ 41 ] Ms. T. has the ability to obtain full time employment with her considerable skills.

While she has lately made some effort, her efforts fall far below the expectations when the original reviewable order was made on August 23, 2010. There is no question that A.’s considerable medical problems have historically been very demanding on Ms. T.’s time. However, Ms. T. has at the very least been free to obtain full time employment since July 30, 2011 and ought to have done so not only because of the very serious protection proceedings she was facing but also because of her ongoing obligations as a parent to support her child.

A.’s ongoing medical concerns will not be inconsequential but may not be as demanding as they have been in the past. If the child is returned to Ms. T., this should not preclude Ms. T. obtaining full time employment. [ 42 ] I am satisfied that Ms. T. ought to have been given a period of time after the child’s removal to secure full time employment without limiting herself to only night time hours. Without more fulsome evidence with respect to whether it is practical for both of A.’s parents be working full time given her expected limitations, and given the uncertainty of whether Ms.

T. will be the custodial parent following the protection hearings, I am suspending the interim order for spousal support effective December 31, 2011. Commencing January 1, 2012, the August 26, 2010 order is suspended pending the outcome of the child protection proceedings and/or the custody application, whichever occurs first. Ms. T.’s entitlement to spousal support may be reviewed then if she regains custody of A. [ 43 ] Spousal support owing up to December 31, 2011 pursuant to the order of August 23, 2010 is due and payable immediately. ____________________________ S.D.

Frame Provincial Court Judge CORRIGENDUM: RELEASED MAY 14, 2012 [1] Please note the corrected change to Paragraph [42] of the original Reasons for Judgment issued January 30, 2012 as per the following: [42] I am satisfied that Ms. T. ought to have been given a period of time after the child’s removal to secure full time employment without limiting herself to only night time hours. Without more fulsome evidence with respect to whether it is practical for both of A.’s parents be working full time given her expected limitations, and given the uncertainty of whether Ms.

T. will be the custodial parent following the protection hearings, I am suspending the interim order for spousal support effective December 31, 2011. Commencing January 1, 2012, the August 26, 2010 order is suspended pending the outcome of the child protection proceedings and/or the custody application, whichever occurs first. Ms. T.’s entitlement to spousal support may be reviewed then if she regains custody of A.