A.D.Z. v. R.T.Z. Date:, 2012 BCPC 383

Citation: A.D.Z. v. R.T.Z. Date: 20121018 2012 BCPC 0383 File No: 14799 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: A. D. Z. APPLICANT AND: R. T. Z. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: A. D. Z.

Counsel for the Respondent: K. A. Hedman Place of Hearing: Abbotsford , B.C. Date of Hearing: September 25, 2012 Date of Judgment: October 18, 2012 Introduction [ 1 ] The Applicant A. D. Z. and the Respondent R. T. Z. were married on September 24, 2005 and separated on February 24, 2010 (according to the dates agreed to in their Separation Agreement.) They had two children together and when they separated, they were able to do so amicably for the most part, with the assistance of the Family Justice Counsellor.

They executed a written separation agreement on August 22, 2012, in which they were able to reach agreement on matters of child custody, guardianship, primary residence of the children, parenting time, child support and special and extraordinary expenses. [ 2 ] The parties were unable to reach agreement on the issue of spousal maintenance for the Applicant. The Applicant asks for an order that the Respondent pay her spousal maintenance. The Respondent is opposed to this. He argues that the Applicant is capable of being self-sufficient.

The parties have agreed that the issue at this hearing will be a determination of whether or not the Applicant is entitled to spousal maintenance. If she is, the amount can be fixed at a later date either by agreement or by an order of this court. If she is not, that ends the matter.

Summary of Evidence [ 3 ] The parties began living together sometime in June of 2000. The Applicant testified that when she and the Respondent decided to have children, they agreed that she would work part-time while the children were in school and the Respondent would pursue his education and career. The Respondent was able to further his education in the field of aeronautical maintenance and he now has a much higher income-earning ability as the result of this. Prior to the birth of her first child, the Applicant was working full-time at a local credit union as a personal account representative.

She began working there in February of 2003. Before that she was working in the retail field. The Applicant has a grade twelve education. [ 4 ] In his evidence, the Respondent testified that when the second child was born, the plan that he and the Applicant had was for her to finish her maternity leave, work part-time at first, but return to full-time work about six months after her return from maternity leave. He expected that she would be back at work, full-time, by September of 2010. But when that time arrived, the parties had already been separated for seven months.

The Respondent testified that if they had been together and if the Applicant was working full-time, the plan would have been to combine day care and care giving by grandparents to care for the children when both of the parties were at work. [ 5 ] The Applicant testified that she would like to establish self-sufficiency by returning to school. She continues to work part-time at the same credit union, where she has worked for the past ten years. She earns $18.13 per hour and works between twenty and twenty- four hours per week. [ 6 ] The ages of the children are six and three.

Their school years are in front of them and the Applicant points out that if she was to work full-time, day-care expenses would double. The Respondent’s mother has been looking after the children one day a week. [ 7 ] The Applicant would like to better her life by taking part-time education at first, and eventually get an education leading to a career in the field of conflict resolution.

This requires a bachelor’s degree and she estimates that this would take her about six years, given the ages of the children and her limited time available for her studies. [ 8 ] The Applicant pointed out that the Respondent’s job is such that he sometimes is called away to work in another location for months, during which time he is unavailable to share in the child care responsibilities. When there is a conflict between his job and his child care obligations, his job takes precedence, whereas the reverse is true for her. The Respondent acknowledged that there are times when his work requires him to be away.

His work duties involve aerial fire-fighting and during forest fire season he may be required to be away for extended periods. [ 9 ] Presently, the Applicant is living in a rented farmhouse that sits on a five acre parcel of land. She has been living with her boyfriend since November of 2011. They began living there after she moved out of her former matrimonial home, at which time the Respondent moved back into the matrimonial home. She and her boyfriend have been in a relationship since May of 2011.

He is a self- employed falconer and he pays $1000 of a total rent of $1800 because he requires additional space to keep his birds. [ 10 ] The Applicant is asking for spousal support retroactive to November of 2010, which is when she returned to work after completing her maternity leave following the birth of her youngest child. She is also asking that the spousal support continue until 2017. [ 11 ] In cross-examination, the Applicant testified that she is open to having the Respondent care for the children more often, but she is skeptical about whether or not he would do so, given the demands of his employment.

She also stated that she would work longer if she had to, but she doesn’t consider it to be in the best interests of the children and it is not what she and the Respondent agreed to. [ 12 ] The Respondent is currently employed as a maintenance engineering apprentice for a local company. He began working for his current employer in 2005, but was laid off in 2007. He worked full-time doing sheet metal work and also attended school for several years and returned to his current employer in September of 2009.

[13] The Respondent is also in a new relationship and he has proposed that some of the care giving of the children could be providedby his girlfriend or by her parents, but this is not acceptable to the Applicant. He is agreeable to altering the current access arrangementsin order to lift as much of the burden of child care off of the Applicant as he is able to. [14] For the most part, the parties have reached agreement on the division of their matrimonial assets and liabilities, but they havenot entered into a formal agreement setting out the division of those assets and liabilities.

They have some equity in their matrimonialhome, but whether there would be any surplus after payment of a realtor’s commission and other sale expenses is unclear. They have alsoreached agreement on splitting of their debts and assets. An exception to this is with regard to the Respondent’s pension benefits. TheApplicant has acknowledged that she is seeking further advice on this.

Based on the limited evidence presented on this point, this doesnot appear at first glance to be a situation where any economic imbalance which might be found to exist can be remedied from anadjustment in the division of matrimonial assets. Position of the Parties [15] The Applicant argues that she has been economically disadvantages at the result of her adherence to an agreement which shemade with the Respondent in which she made sacrifices in her career, while the Respondent bettered his career. The decision, she says,was made for the benefit of the children.

She argues that the breakdown of the marriage has caused additional hardship to her in that shehas acquired a share of the family debt that she is unable to meet to the same degree as the Respondent because of the sacrifices shemade in her career in order to care for the children which have resulted in an economic imbalance. [16] Counsel for the Respondent argues that the Applicant has suffered little or no economic disadvantage arising from the breakupof the marriage.

She points out that the Applicant remains in the same career with the same employer, and is able to work fulltime in thatcareer if she is willing to make the same choice that many other working mothers make in availing herself of day care providers andchild care by members of the extended families and new partners. She argues that the Applicant is under a duty to become self-sufficient.She also notes that this is a marriage of short duration and argues that the Applicant has become disadvantaged by choice. Applicable Law [17] The law regarding spousal support in British Columbia is codified in

section 89 of the Family Relations Act which reads asfollows: 89

(1) A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following: (

a) the role of each spouse in their family; (

b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other; (

c) custodial obligations respecting a child; (

d) the ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves; (

e) economic circumstances.

(2) Except as provided in subsection (1), a spouse or former spouse is required to be self sufficient in relation to the other spouse orformer spouse. [18] In determining whether or not a spouse is entitled to support, all of the considerations in section 89(1) must be taken intoaccount and no single consideration is paramount. In Bracklow v.

Bracklow (SCC), [1999] 1 SCR 420, the SupremeCourt of Canada held that the law recognizes three grounds for entitlement to spousal support: (1) compensatory; (2) contractual; and (3)non-compensatory. [19] Compensatory support is intended to give a remedy to a spouse who has suffered an economic disadvantage from the marriageor 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 aneconomic loss as the result of the marriage or the breakup which would not have otherwise occurred, that spouse is entitled to becompensated for that loss.

It recognizes sacrifices made by a spouse in order to assume primary childcare and household responsibilities.In Moge v. Moge (SCC), [1992] 3 SCR 813, Madam Justice L’Heureux-Dube of the Supreme Court of Canada made thisobservation at pages 867-8: The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. Thisgenerally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement whichjeopardizes her ability to ensure her own income security and independent economic well-being.

In such situations, spousal support maybe a way to compensate such economic disadvantage. [20] Compensatory support can also address economic advantages which one spouse acquires at the expense of the other spouse’ssacrifice. Madam Justice L’Heureux-Dube wrote in Moge (at page 864): The doctrine of equitable sharing of the economic consequences of marriage or marriage breakdown upon its dissolution... which, in myview, the Act promotes, seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes suchsacrifices and the economic advantages conferred upon the other spouse.

[ 21 ] The Supreme Court went on to conclude that equitable distribution between spouses who separate can be achieved by an award of spousal support, by the division of assets or by a combination of both. But the court went on to say that in many, if not most cases, the absence of accumulated assets may require that one spouse pay support to the other in order to effect an equitable distribution of resources. [ 22 ] In W. V. W. 2005 BCSC 1010 , Madam Justice Martinson described a typical scenario in which entitlement to spousal support arises. It is very similar to the case of these parties.

She wrote: [15] Raising children is a round the clock endeavour. The primary income earner is in a position to earn money to accumulate assets often in large part because that person is relieved of many aspects of that 24 hour a day job. When the relationship ends, it is not just the secondary earner who receives assets.

The primary earner also receives a share, often half, of the assets. [16] Therefore, in a typical case, the primary earner has three benefits: the benefit of a share of the assets; the benefit of having had children; and the benefit of a higher income earning ability because of full participation in the work force, substantially unencumbered by child care responsibilities. The secondary earner has two of these benefits: the benefit of a share of the assets accumulated; and the benefit of having had children.

However, that spouse often does not have the same income earning ability at the time of separation because of the role played in the marriage. It is that disadvantage, and the concurrent advantage to the other spouse, that can be addressed by a compensatory spousal support award. [ 23 ] If there is no compensatory basis for an order of spousal support, the Supreme Court in Bracklow held that need alone may be enough to establish entitlement to spousal support.

For example in some circumstances such as where a spouse is sick or disabled, spousal support may be based on need. [ 24 ] From these authorities, I would summarize the law of entitlement to spousal support in British Columbia as follows: 1. A spouse may be entitled to spousal support based on three grounds: (

a) contractual (i.e. where they have entered into a contract in which one spouse agrees to pay the other support in the event of a breakdown of the relationship), (

b) compensatory or (

c) non- compensatory. 2. 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. 3. In those situations where the birth of children requires one of the spouses to cut back on his or her participation in the labour force in order to care for the children, jeopardizing that spouse’s ability to ensure his or her own income security and independent economic well-being, economic disadvantage may be said to exist.

In such situations, spousal support may be a way to compensate such economic disadvantage. 4. Compensatory support can also address economic advantages which one spouse acquires at the expense of the other spouse’s sacrifice. 5. Even where there is no compensatory basis for an order of spousal support, a spouse may still be entitled to support on a non- compensatory basis where the need for support is established. For example in some circumstances such as where a spouse is sick or disabled, spousal support may be based on need. 6.

In determining whether or not a spouse is entitled to support on a compensatory or non-compensatory basis, the analysis must begin with a consideration of the factors set out in

section 89 of the Family Relations Act. Application of the Law to these Facts [ 25 ] In deciding if this Applicant is entitled to spousal support, there must first be a consideration of the factors set out in

section 89 of the Family Relations Act. The first consideration is the role of each spouse in the marriage. Regardless of whether or not there was any express agreement between the parties, the reality of the situation is that, following the birth of their children, it was the Applicant who made sacrifices to her working hours and career. The Respondent remained on his career path, pursuing his education for the betterment of his career opportunities.

The Applicant assumed the greater share of the child care responsibilities, working part-time when her maternity leave had expired, thereby reducing her opportunities for advancement within her employer’s organization. [ 26 ] The parties differ in their recollection of what their express agreement was concerning how long the Applicant would remain a part of the labour force on a part-time basis only.

Possibly each had a different understanding of the agreement, possibly they never expressly addressed the matter to the same degree as they might have, each operating on assumptions of what they believed their understanding to be. Regardless of this, the reality of the situation is that the Applicant made sacrifices to her career in order to care for the children.

It is also clear that the parties conducted themselves such that the Respondent’s career was given priority over the Applicant’s career, likely because he had the higher income earning potential. [ 27 ] The parties have conducted themselves reasonably in addressing the issues of child custody, shared parenting time and child maintenance. The Respondent has met all of his obligations in supporting his children financially and the parties have reached agreement on the division of their assets and liabilities, with the exception of the Respondent’s pension asset.

Because of the requirements of his career, the Respondent has had to be less flexible that the Applicant in cases of conflict between work and child care. [ 28 ] The Applicant acknowledges that there are obligations on her to become economically self-sufficient. She is not asking for an order for permanent spousal support. It must be recognized that because of the ages of the children, some period of time is reasonably required before the Applicant can transition from the current regime to one in which she returns to full-time employment.

Having said that, there are options for alternative child care that bear further exploration as the parties build new relationships with extended families

and an expanded familial network for the children. [ 29 ] Economically, both of the parties are intelligent persons with marketable job skills. The Applicant’s career growth has been hampered by her reduction from full-time to part-time employment, but given appropriate time, she should be able to recapture a significant portion of what has been lost during the period that the parties were together. [ 30 ] On a consideration of all of these factors, I find that the Applicant has established a basis for compensatory spousal support.

The Applicant has experienced an economic disadvantage arising out of the marriage. She has made sacrifices in order for the Respondent to gain an economic advantage in the furtherance of his career. The birth of the children of this relationship has required the Applicant to cut back on her participation in the labour force in order to care for the children. Whether it was part of an express agreement or not, the reality of the situation is that her ability to earn income, her security and her independent economic well-being has been jeopardized to some extent.

Accordingly I find that the Applicant has established an entitlement to spousal maintenance. [ 31 ] The Applicant, at this stage, is only seeking a finding on the issue of entitlement to spousal maintenance, which I have now made. By agreement of the parties, I will not make any findings on the issues of quantum and duration of maintenance in order to afford them the opportunity to resolve these issues either among themselves or with the assistance of a mediator such as the Family Justice Counsellor.

I will therefore adjourn the Applicant’s application for spousal support generally, and if the parties are unable to resolve that issue among themselves, either party may apply on five days notice to the other to set this matter down for hearing before me on the issue of quantum and duration of spousal support. The parties have conducted themselves with a high degree of civility and reasonableness greater than that shown by the average litigants in family court.

While there have been issues on which these reasonable people have disagreed, it is obvious that the Applicant and the Respondent love their children much more than they love their conflict and I am hopeful that they can resolve this matter, now that the issue of entitlement has been decided. Otherwise, this court remains willing and ready to decide those issues as well. Dated at the City of Abbotsford, in the Province of British Columbia, this 18 th day of October, 2012. _______________________________________ The Honourable Judge K. D. Skilnick