J.B.B. v. W.J.B. Date:, 2014 BCPC 378

Citation: J.B.B. v. W.J.B. Date: 20140925 2014 BCPC 0378 File No: 14-45035 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: J.B.B. APPLICANT AND: W.J.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Appearing on their own behalf: JBB Appearing on their own behalf: WJB Place of Hearing: Prince George , B.C.

Date of Hearing: August 8, 2014 Date of Judgment: September 25, 2014 [ 1 ] JBB applies for retroactive child support and spousal support against her estranged husband, WJB. Both parties were self- represented. Both testified at the hearing but neither called any other witnesses. I reserved judgment at the conclusion of the hearing. [ 2 ] The Order I intend to make in this matter is attached as Appendix A. The following are my reasons for making this Order starting with an overview of the background. BACKGROUND [ 3 ] JBB and WJB are aged 66 and 68 years old, respectively.

They began to cohabit in 1969 and were married on January 30 th , 1971. Although their date of separation is somewhat in dispute (WJB says it was August, 2008, JBB says it was October, 2009) there is no doubt that this was a very long relationship of 40 years duration, or close to it. [ 4 ] The marriage was a traditional one. WJB was a road builder who, during part of his career, spent up to ½ the year out of town, or even out of the country, on jobs. He was a member of the Union of Operating Engineers and now receives a pension from that union. He was the principal bread-winner for the family.

At one point he suffered a workplace injury and he receives a small pension from WorkSafe BC (formerly Worker’s Compensation Board). He contributed to Canada Pension Plan throughout his career which, I gather, lasted until he was in his early 60’s. [ 5 ] JBB stayed at home raising their two children and looking after the house and the couple’s finances. They bought 4 rental properties and when WJB was away for work, JBB would help to manage those properties. JBB had two different part time jobs, over about 17 years, doing office work.

As a result of these part time jobs she did make some of her own contributions to Canada Pension Plan. [ 6 ] In about 2005, when they were in their late 50’s, the couple’s daughter died. She left behind twin girls, E and H, then about age 10. WJB and JBB took on the care of their grand-daughters and have raised them ever since. E and H graduated from high school in 2013 and turned 19 years of age this past March.

The parties agree that child support was no longer payable for the girls as of their 19 th birthday in March. [ 7 ] In August, 2008 WJB moved with E and H to Cherryville which is a small, rural community east of Kelowna, B.C. He had a plan to purchase a house from his brother and live there. JBB says it was a common plan, shared by both of them, and I accept her evidence on this point. The couple believed it would be good for their grand-daughters to live in the country.

I accept JBB’s evidence that the reason she stayed behind in Prince George for another year, until the summer of 2009, was so that they could sell the family home in Prince George. The sale took place in 2009 and a little over $150,000 was realized from the sale.

WJB drove up to Prince George and moved JBB and the family’s remaining possessions down to Cherryville in the fall of 2009. [ 8 ] Between 2007 and 2009 the couple had also sold their 4 rental properties, realizing the sum of about $423,000. [ 9 ] Once WJB and JBB began living together again, with their grand-daughters, down in Cherryville, it soon became apparent to JBB that “the marriage was at an end”. It is not entirely clear to me why she concluded this but it would appear that she believed WJB had formed a relationship with another woman and that he was drinking too much.

For his part, WJB thought that JBB was undermining his authority with the girls and that she was not interested in continuing to make the marriage work. [ 10 ] I find that the couple separated in November, 2009, about 40 years after they began co-habiting and about 38½ years after they were legally married. [ 11 ] A couple of months later, in January, 2010, JBB moved back to Prince George with the girls and she has remained here ever since. WJB has remained in Cherryville. He testified that his plan of buying a house from his brother fell apart and that he has lost all

the money he and JBB put into this scheme. In 2011 he moved out of the house and, as he had nowhere to live, he went to live with a female friend, DP. He says that he has a room in DP’s house and continues to live there to this day. [ 12 ] At the time of separation, in about November, 2009, JBB made a proposal to WJB about how she thought they should divide up their assets and what he should pay by way of support for her and the girls. JBB testified that they reached an “agreement” about these issues.

WJB testified that it was not an “agreement” but rather a case of JBB telling him what to do. [ 13 ] Nothing was ever put in writing in the sense of a formal or even an informal Separation Agreement. Neither party sought independent legal advice. [ 14 ] As I understand the evidence - and, from the way the evidence was adduced in this case, it is certainly not entirely clear to me, the general terms of this “agreement” were as follows: 1. JBB would keep the proceeds from the sale of the family home in Prince George (about $150,000); 2.

WJB would keep what remained of the proceeds from the sale of the rental homes (originally, about $423,000); 3. Smaller assets such as vehicles, ATV(s), boat and trailer and furniture were divided up between them in ways that suited their particular interests and needs; and 4.

WJB would pay JBB $1,609 per month for the support of JBB and H and E. [ 15 ] JBB explained that the way she came up with the figure of $1,609/month for child and spousal support was by pooling the total or gross, income of both herself and WJB, which, by that point consisted only of the various types of pension income I have mentioned, and then dividing that sum in half.

As best as I can determine from the evidence, the figures she used were as follows: WJB’s Canada Pension Plan (CPP): $ 774.00/mo JBB’s CPP [1] : 213.00/mo WJB’s Old Age Security (OAS) [2] : 647.00/mo WJB’s WCB pension: 165.00/mo WJB’s Union pension: 1,712.00/mo Total $3,511.00/mo [ 16 ] ½ x $3,511.00 = $1,755.50.

JBB testified that she agreed that WJB pay her the lesser sum of $1,609 “due to his [WJB’s] commitments with buying the new house”. [ 17 ] Whether he agreed to this arrangement freely, or whether it was imposed upon him, the fact is that WJB did proceed to make monthly payments to JBB in the amount of $1,609.00 for the support of herself and the girls over the next two years, until October, 2012.

As he put it in his evidence: “I figured I owed her that after 40 years of marriage.” During this time the Bs continued to maintain a joint bank account and WJB testified that JBB had his consent to take money from this account for expenses for herself and H and E. Presumably this would have been in addition to the monthly payments of $1,609. [ 18 ] On October 25 th , 2012 JBB received an e mail from WJB ( Exhibit 1). The message was sent from DP’s e mail address. I was told that this was because WJB does not have his own e mail address.

He said “We have to make a change in our financial status.” He said that he was closing the joint account and opening a bank account in his own name. In the e mail he set out that, from now on, he would be paying her a reduced amount of support ($1,137/month) for herself and the girls, calculated on a different basis than previously. He paid this sum for the months of November, December 2012 and January to August, 2013. [ 19 ] In August, 2013 JBB turned 65 and began receiving Old Age Security of $647/month in her own right. WJB therefore reduced the sum he paid JBB still further to $706 per month.

He paid this sum for the months of September and October, 2013.

[ 20 ] WJB ceased paying altogether as of November, 2013. That situation continues to the present day, now a period of 11 months. [ 21 ] JBB responded first by applying to CPP for a “pension split”. The government now divides up the couple’s two CPP pensions according to a formula based presumably on the length of contribution of each and the length of their relationship. The result is that JBB now receives more each month from CPP and WJB now receives less each month.

Unfortunately, the evidence does not establish exactly how much each now receives, or when this “pension split” took effect. [ 22 ] As previously noted, the girls, H and E, turned 19 and ceased to be eligible for child support early in March of this year. [ 23 ] WJB had tried to get a formal Separation Agreement done up to resolve his and JBB’s affairs. In the spring of 2013 he consulted with a lawyer from Lumby. The lawyer forwarded a draft Separation Agreement to JBB in early July, 2013.

The draft Agreement recited that, as it concerned a property settlement, JBB would keep the proceeds of the sale of the house in Prince George (about $150,000) and WJB would keep the proceeds of the sale of the rental properties (about $423,000). This division of property sounds rather lop-sided in favour of WJB, however, I gather that there is little, if any, of the $423,000 still left. Apparently it was lost in the business deal with WJB’s brother over the house in Cherryville.

The parties seem content - or at least accepting - of the way in which their property has been divided up, and, in any case, as a Provincial Court judge, I have no jurisdiction over property issues. [ 24 ] As it concerned child and spousal support, the draft Separation Agreement proposed that WJB continue to pay $568/month for the support of the children, E and H, until their 19 th birthday. This is the correct figure under the Federal Child Support Guidelines given WJB’s total income of about $37,000 set out in his 2013 Tax Return

Summary and Notice of Assessment attached to his Financial Statement , although, as will be seen, I will use the slightly lower income figure of $36,800 for WJB for 2013 and the slightly lower child support figure for 2 children of $565/month. [ 25 ] For spousal support the draft Agreement proposed a monthly payment of $565/month to continue indefinitely (unless JBB formed a new relationship). [ 26 ] The total for child and spousal support proposed by the draft Agreement was $1,133/month until the children reached the age of 19 in March, 2014 and after that, the sum of $565 in spousal support, payable as noted, indefinitely (unless JBB formed a new relationship.) In his cover letter the lawyer wrote: “You will note that you are receiving half of WJB’s income.

WJB does not have any savings, any greater re-apportionment would cause financial hardship for WJB.” [ 27 ] JBB did not agree with the proposed spousal support set out in the draft Agreement. She felt that when the lawyer said she was already receiving ½ WJB’s income, he was calculating this on the basis of net income, after deductions for income tax, union dues and other deductions. In her view the apportionment should be made on the basis of gross income because WJB would be entitled to deduct any sum paid as spousal support from his income for tax purposes.

In terms of quantum, JBB also felt she was entitled to something closer to $1,000 in spousal support. [ 28 ] Unable to arrive at any agreement outside of court, WJB stopped paying altogether, and JBB, in due course, filed the application to court for an order for child and spousal support that is before me now. 1. RETRO-ACTIVE CHILD SUPPORT [ 29 ] JBB and WJB courageously took on the care of their granddaughters when the girls’ mother died. Once they separated the girls went to live primarily with JBB.

WJB therefore had a legal obligation to pay JBB child support for the girls in accordance with the Federal Child Support Guidelines. In 2013 WJB’s total income (less union dues) was $36,800 (see Financial Statement filed July 7 th , 2014). The amount of support payable for 2 children at that income level is $565/month. [ 30 ] WJB paid varying amounts ($1,609.00/month, $1,137.00/month and $706.00/month) to JBB from around the 1 st of January, 2010, following their separation, right up until October, 2013.

The law requires that where both child and spousal support is payable, any money be applied first to child support. I therefore find that right up until October of 2013 WJB faithfully paid a proper level of

child support for E and H and he owes no retroactive child support up to October 31st, 2013. [31] WJB had an obligation to continue to pay child support for the girls for 4 more months - November, 2013 to, and including, February, 2014. (The girls turned 19 on March 2nd, 2014). He did not do so. He therefore owes retroactive child support for those 4additional months: $565 x 4 = $2,260.00. 2. SPOUSAL SUPPORT A: ENTITLEMENT [32] JBB is clearly entitled to spousal support. Her entitlement is based on a compensatory rationale given the long, traditionalmarriage which she and WJB had. WJB summed it up when he said “I figured I owed her that for 40 years of marriage”. In the words ofs. 161(

a) of the Family Law Act, JBB suffered economic disadvantage by staying home and running the household and raising thecouple’s children. Had she been in the paid workforce all those years, instead of being at home, she would almost certainly have earnedseniority, increases in pay, benefits and a pension. She did not earn those things because of a joint decision by herself and WJB that shewould mostly stay home. John and JBB may not have sat down and discussed this.

They may simply have gone about their lives in theway that most couples went about their lives in the era in which they got together as a couple. [33] One of the other objectives of spousal support is to “as far as practicable …promote economic self-sufficiency”. However,judge made law has recognized that where there has been a long, traditional, marriage and the parties are older at the time of separation,economic self-sufficiency may not be a realistic goal. See for example Leckie v. Leckie, [1995] B.C.J. No. 671 (BCSC) which quotesextensively from Moge v.

Moge, (SCC), [1992] 43 R.F.L. (3d) 345 (SCC) at paras. 136 to 140. [34] JBB was about 61 years old at the time of separation in 2009. She is now 66 years old. In my view it is simply not“practicable” to expect her to attain economic self-sufficiency at this stage in her life. [35] On a different point, but still dealing with entitlement, JBB has argued that there is a contractual rationale for spousal supporthere. She says they had an agreement at the time of separation that he would pay her ½ of their pooled, pension incomes.

Certainly,WJB appeared to act in accordance with such an arrangement for about the first two years following their separation in the fall of 2009. However, I conclude that there is no enforceable “contract” for the payment of spousal support in this case. The agreement was informaland it included a large component of child support. It has not been established that there was a specific discussion about how spousalsupport would be calculated once E and H reached the age of 19 and child support was no longer payable.

For both these reasons I findthat there is no contractual rationale for spousal support in this case. [36] I find that entitlement to spousal support is established on a compensatory rationale. I turn now to the question of quantum (oramount). B: QUANTUM [37]

Section 162 of the Family Law Act provides the basic framework for calculating the quantum and duration of spousal support. The

section reads as follows: “The amount and duration of spousal support, if any, must be determined on consideration of the conditions, needs, means and othercircumstances of each spouse, including the following: (

a) the length of time the spouses lived together; (

b) the functions performed by each spouse during the period they lived together;

(

c) an agreement between the spouses, or an order, relating to the support of either spouse.” [ 38 ] Judges have interpreted this

section (or its predecessor) in various cases that have come before the courts. Some of these cases have particular relevance to the Bs’ situation. For example, in Dithurbide v. Dithurbide, [1996] B.C.J. 1261 (BCSC) at para. 29 , Justice Wilson commented that where there has been a long term, traditional marriage, the former spouses are entitled to a similar standard of living following the break-down of that marriage. See also Frederkind v.

Frederkind, [1999] B.C.J. 2476 (BCSC) . [ 39 ] The cases also recognize that self-sufficiency is not a realistic goal for a spouse that is older at the time of separation, as JBB was. See the Leckie and Moge decisions, cited earlier. [ 40 ] On the issue of duration, I have decided that any order that I make for spousal support should be indefinite. Again, this is because of JBB’s age (she was 61 when the couple separated in 2009, she turned 66 in August, 2014), the length of the marriage and its traditional nature.

Of course, it is always open to either party to apply to change the court order if there is some material change in circumstances. For example, if JBB were to re-marry, or co-habit in a marriage like relationship, WJB should seek legal advice about whether to apply to cancel or reduce spousal support. [ 41 ] It is clear that WJB paid a satisfactory level of spousal support up until October, 2012. JBB says as much in her evidence. WJB was paying $1,609/month.

If the child support portion ($565) is deducted, that means he was paying just over $1,000 in spousal support: $1609 - $565 = $1044/month. [ 42 ] Since WJB paid a proper, even generous, level of spousal support during those years I find that no retroactive spousal support is due up to and including October, 2012. [ 43 ] The focus of my analysis regarding spousal support will be on the 2 years since then. [ 44 ] Between November, 1 st , 2012 and August 30 th , 2013 WJB paid $1,137/month to JBB. When the child support portion is deducted that means he was paying about $572/month in spousal support.

In the months of September and October, 2013, after JBB started receiving Old Age Security in her own right, WJB paid $706/month. After deduction of the child support portion, he was paying about $141/month in spousal support. From November, 2013 to present, a period of 11 months, WJB paid nothing towards spousal support. [ 45 ] The Spousal Support Advisory Guidelines (‘SSAG’) provide guidance to the court in determining the quantum of spousal support. In addition to defining “income”, the SSAG also set out two formulas for calculating spousal support. One is a “with child support” formula.

This would be applicable in Mr. and Ms. B’s case for 2012 and 2013 and for the first two months of 2014. At that point E and H turned 19 and child support was no longer payable. The second formula - “without child support” - is applicable from March, 2014 on. [ 46 ] One of the issues in this case has been whether spousal support should be calculated on total income or on net income (after deduction of income tax and other deductions). While child support was still payable for E and H, it was correct to look at net disposable income as a basis for calculating spousal support (

Part 8, SSAG). However, now that child support is no longer payable for the girls, it is clear from

Part 6 of the SSAG that it is total or gross income which is to form the basis for the calculation, rather than net disposable income. [ 47 ] WJB’s total income has varied slightly from year to year as set out in the income tax information attached to his Financial Statement . For the year 2012 I will use the figure of $38,103 (total income less union dues). For 2013 and 2014 I will use the figure of $36,872 (total income in 2013 less union dues). All WJB’s income comes from pension sources (CPP, OAS, WCB and union pension).

The DivorceMate software will make the necessary adjustments to arrive at his net disposable income for 2012 and 2013 when the “with child support” formula is applicable. [ 48 ] The second step in the “with child support” formula is to determine JBB’s total income (not including child and spousal support payments received from WJB.)

[ 49 ] As I understand the evidence, JBB’s only sources of income in 2012 apart from the monthly child and spousal support payments made by WJB ($1,609/month dropping to $1,137/month on November 1 st , 2012), was a small CPP pension of $200 to $300/month for a total of about $3,600 in a year ($300 x 12 months). JBB was likely also receiving child-related benefits from the government for H and E, such as the monthly Child Tax Benefit.

Though the amounts received are not in evidence, nor itemized in JBB’s Financial Statement or attachments, it is my understanding that the software does factor these common, child-related benefits into the “with child support” calculation. [ 50 ] In 2013 JBB’s income from sources other than the child and spousal support payments received from WJB, increased somewhat. I understand that this was because she applied for and received a share of WJB’s CPP pension. The parties were not clear on the precise amount each now receives from CPP.

I will estimate that after the “pension split” JBB began receiving about $480/month from CPP. This is a little less than ½ of the total of the amount the two of them together draw from the CPP ($774 + $213 = $987 see para. 15). As well, starting in September, 2013 she began receiving the OAS pension which I understand, from the evidence, amounts to about $647/month. Thus, from September, 2013 on, JBB’s total income from sources other than WJB’s payments of child and spousal support, was in the range of $1,100/month ($480 CPP + $647 OAS = $1,100/month). In

summary, for 2013, I estimate that JBB received income, from sources other than WJB, totalling about $8,240 ($480 x 8 months + $1,100 x 4 months). Throughout the year she likely also received child-related benefits such as the Child Tax Benefit which the software will factor into the calculation. [ 51 ] In 2014 JBB continued to receive about $1,100/month ($13,200/year) from CPP and OAS (not including child and spousal support payments received from WJB). [ 52 ] With these findings concerning income and the applicable formulas for each year, I proceed now to the calculations.

The software produces the following results: 2012 * his total income was $38,103 * her total income (from sources other than WJB’s payments) is estimated to be about $3,600 * “with child support” formula is applicable * calculation applies to months of November and December only as I have found adequate spousal support was paid up to the end of October, 2012 Spousal support payable: $710 to $884/month (midpoint of $796), payable indefinitely. [ 53 ] As noted in paragraph 44 above, WJB effectively paid JBB $572/month in spousal support for the months of November and December, 2012, continuing through until August, 2013.

The difference between the mid-point figure of $796 and the $572 paid is $224/month. I therefore find that WJB owes retroactive spousal support for November and December, 2012 of $448.00. 2013 * his total income was $36,872 * her total income (from sources other than WJB’s payments) is estimated to be about $8,240 (see para. 50 above) * “with child support” formula is applicable Spousal support payable: $445 to $635/month (midpoint of $538), payable indefinitely.

[ 54 ] As noted in paragraph 44 above, WJB effectively paid JBB $572/month in spousal support for the months of January to August, 2013. This is a little more than the midpoint figure of $538 produced by the “with child support” formula. I therefore conclude that WJB owes no retroactive spousal support for the months of January to August, 2013. [ 55 ] For the months of September and October, 2013 WJB effectively paid $141/month (see paragraph 44 above). The difference between the mid-point figure of $538 and the $141 paid is $397/month.

I find that WJB owes retroactive spousal support for September and October, 2013 totalling ($397 x 2) = $794. [ 56 ] For the 4 remaining months of 2013 WJB paid no child or spousal support. I find that he owes retroactive spousal support of $538/month (the midpoint figure) for those 4 months, totalling ($538 x 4) = $2,152. [ 57 ] In

summary, for 2013, I find that WJB owes JBB retroactive spousal support of $794 plus $2,152 = $2,946.00. 2014 * his total income is estimated to be $36,800 * her total income (from sources other than WJB’s payments) is estimated to be about $13,200 (see para. 51 above) * “with child support” formula is applicable for January and February * “without child support” formula is applicable for March to present day and going forward Spousal support payable for January and February, 2014: $304 to $510/month (midpoint $407/month) Spousal support payable for March, 2014 to present and going forward: $747 to $925 (midpoint $871/month) [ 58 ] WJB paid no spousal support in 2014.

I find that he owes JBB retroactive spousal support in the mid-point amount of $407/month for January and February, 2014 totalling $814.00. For March to present (including September, 2014) he owes JBB retroactive spousal support of $871/month x 7 months = $6,097.00. [ 59 ] In

summary, for 2014, I find that WJB owes JBB retroactive spousal support totaling $814.00 plus $6,097.00 = $6,911.00. [ 60 ] Total Retroactive Spousal Support: 2012: $ 448.00 2013: $ 2,946.00 2014: $ 6,911.00 $10,305.00 GOING FORWARD

[ 61 ] I will order WJB to pay JBB the sum of $871/month spousal support commencing October 25th, 2014 and continuing on the 25th day of each and every month thereafter. This is the midpoint figure using current income information for both parties. [ 62 ] The result of such payment should be to bring JBB’s income up to approximately $23,600 and to reduce WJB’s income to approximately $26,300.

This is not an absolutely equal sharing of the couple’s somewhat limited resources, but it is close to it and, in my view, achieves the compensatory goal of spousal support in a case such as this where the couple has had a long, traditional marriage. [ 63 ] I will also order that the parties provide each other with copies of their Income Tax Notices of Assessment and Income Tax Summaries not later than May 30 th of each year, starting with 2015. This will allow them to keep track of each other’s income position. If there are significant changes in either parties situation then, as noted, Mr. and Ms.

B should seek legal advice about whether there should be a change in the amount of spousal support payable. [ 64 ] My draft Order is set out in Appendix A to this reasons. [ 65 ] Finally, during the proceedings WJB expressed his earnest desire to get all matters concerning himself and JBB settled, once and for all. He would have liked me to grant them a divorce in addition to dealing with the issues of child and spousal support. Unfortunately the Canadian court system - at least in British Columbia - does not allow such ‘one stop shopping’.

As discussed during the hearing, this level of court, the Provincial Court, has no jurisdiction to grant a divorce. The parties will have to apply to the British Columbia Supreme Court to obtain a divorce. The proceedings here in Provincial Court have dealt only with child and spousal support. However, Mr. and Ms. B may find it easier to obtain a decree of divorce now that they have a court order concerning the support issues. ______________________ E. L. Bayliff Provincial Court Judge Appendix ‘A’ Draft Order THIS MATTER coming on for hearing on August 8 th , 2014 at Prince George, B.C.

AND UPON hearing the evidence of the parties, THIS COURT ORDERS:

Child Support 1. The parties agree and the court finds that HMM and ESM, both born [omitted for publishing] (“the children”) are the grand children of the parties, to whom, by way of adoption, both owed a duty of support, pursuant to s. 88 of the Family Relations Act, R.S.B.C. 1996, c. 128 , and s. 147 of the Family Law Act, S.B.C. 2011, c. 25 , up to and including the children’s 19 th birthday, on [omitted for publishing] . 2.

The court finds that WJB had an income for Federal Child Support Guideline purposes of $36,800 and that he owes JBB retroactive child support for the months of November, December, 2013 and January and February, 2014 of $565 per month for a total of $2,260 in retroactive child support, payable forthwith, unless some other payment

schedule is agreed to in writing by WJB and JBB. Spousal Support 4. The court finds that WJB owes retroactive spousal support to JBB for the period November 1 st , 2012 to September 30 th , 2014 totaling: $10,305.00, which sum is payable forthwith, unless some other payment

schedule is agreed to in writing by WJB and JBB. 5. WJB shall pay to JBB spousal support commencing October 25 th , 2014 in the sum of $871.00 and continuing on the 25 th day of each and every month thereafter. 6. WJB and JBB shall exchange their Canada Revenue Agency Notice of Assessment and Income Tax

Summary for the preceding taxation year not later than May 30 th of each year commencing in 2015. ***