C.C.A. v. A.G.M., 2019 BCPC 145

Citation: C.C.A. v. A.G.M. 2019 BCPC 145 Date: 20190703 File No: 1830411 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.C.A. APPLICANT AND: A.G.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Applicant: F. Arbabi Appearing in person: A.G.M. Place of Hearing: Vancouver , B.C. Date of Hearing: June 14, 2019 Date of Judgment: July 3, 2019

Introduction [ 1 ] C.C.A., whom I will refer to as Mr. C., applies to set aside and replace a clause in a separation agreement dated March 14, 2017 so as to reduce the amount of spousal support he is required to pay. The basis for the application is that the parties made a common mistake regarding Mr. C.’s income at the time of the agreement, or alternatively, the agreement was significantly unfair pursuant to s. 164(5) of the Family Law Act . [ 2 ] A.G.M., whom I will refer to as Ms. G., opposes the application. Background [ 3 ] The separation agreement in question is dated March 14, 2017. The essential background facts are set out in the

preamble of the agreement, which I will reiterate. [ 4 ] The parties were married in 2009 and separated in 2016. [ 5 ] At the time of separation, Ms. G. was 29 years old and employed by a fitness club. She was earning approximately $7,500 per year. Mr. C. was also 29 years old. He was self-employed and ran a company called [omitted for publication]. The agreement stated that he was earning approximately $100,000 per year. [ 6 ] The parties have no children. There are no joint financial assets. [ 7 ] The

preamble goes on to state as follows: L. It is the intention and desire of the parties that Mr. C. will pay spousal support in the amount of $2,000 per month to Ms. G. for the period of 5 years. M. It is the intention and desire of the parties that there be a complete and effective settlement of their respective, rights, duties and obligations to one another arising from their relationship status as husband and wife at law, in equity, or by statute. [ 8 ] Clause 5 of the agreement states: Mr. C. will pay to Ms.

G. for her support $2,000 per month (the “Spousal Support”), on the first day of each month commencing September 1, 2016 until September 1, 2021 after which Ms. G. entitlement to further support from Mr. C. terminates forever. [ 9 ] Clause 20 says that the agreement is to continue in effect notwithstanding any change of circumstances including but not limited to the circumstances listed in clause 19. The listed circumstances included Mr.

C. becoming unemployed or ceasing to be financially self-supporting. [ 10 ] Also of note is clause 26 of the agreement which states: Subject to paragraph 70, the Supreme Court of British Columbia shall have exclusive jurisdiction over this agreement with the exception that the parties may enforce this agreement in the Provincial Court of British Columbia. [ 11 ] Although clause 26 refers to paragraph 70, there is no such paragraph in the agreement. [ 12 ] Clause 33 of the agreement states that Mr.

C. has “come to the conclusion that the terms of this Agreement reflect an equitable sharing of the economic consequences of the relationship and its breakdown…” The Applicant’s Circumstances [ 13 ] Mr. C. asks to set aside clause 5 of the agreement and replace it with a requirement to pay spousal support of $560 a month until September 1, 2021. No issue was taken with Ms. G.’s entitlement to support. Mr. C. says he was mistaken that he was able to earn $100,000 per annum income, which was the basis for the $2,000 a month support payment amount. [ 14 ] Mr. C. came to Canada in 2009 on a work permit.

His background at that time was as a carpenter. His first work in Canada was for a general contractor earning $22 an hour or about $38,000 per annum. When that job ended he obtained other work that paid about $40,000 per annum. In 2011, Mr. C. and a friend went to Fort McMurray, Alberta to seek work. In August 2011 he found employment with a company called [omitted for publication], where he was paid $35 an hour. He returned to Vancouver in late 2011 and started a new job. He returned to [omitted for publication] in February 2012 and worked for them until June 2014. [ 15 ] Mr.

C.’s 2012 T4 from [omitted for publication] showed income of $60,724.77. [ 16 ] While still working at [omitted for publication], Mr. C. formed his own construction company, [omitted for publication]. [omitted for publication] did not start operating until June 2014 when the [omitted for publication] work ended. [ 17 ] [omitted for publication] initially operated in Fort McMurray. In 2014, Mr. C. was the only employee. Work was obtained through the company. Mr. C. did not draw a salary and was instead paid through dividends. He said he was paid $30,000 to $40,000 in dividends in the first year.

Excess funds of $25,000 were kept in the company.

[ 18 ] Mr. C. further testified that [omitted for publication] would enter into contracts for the supply of workers, and that a second company called [omitted for publication] would pay those workers. The funds used to pay the workers were transferred by [omitted for publication] to [omitted for publication]. I was not told when this corporate structure was started. [ 19 ] Mr. C. returned to British Columbia. In June 2016, [omitted for publication] secured a contract to supply workers for a large construction project in Richmond, British Columbia.

The contract was first with a subcontractor and then later it was directly with the general contractor. [ 20 ] The Richmond project was completed in February 2017. In March 2017, the separation agreement was executed. [ 21 ] During the course of the project, Mr. C. realized that due to his inexperience in operating a business he failed to provide for various costs such as WCB and GST remittances. As a result, significant tax liabilities were incurred. [ 22 ] Mr. C. chose to only provide me with select financial records. Additional records were disclosed to Ms. G.

I asked her if she reviewed them and whether she wished to put any of the other records into evidence. Ms. G. confirmed that she did examine the records and did not wish to enter any of them into evidence. As such I can rely only on the records placed into evidence by Mr. C. [ 23 ] Mr. C.’s personal tax information is summarized as follows: 2014 Notice of Reassessment - Line 150 income $48,510 2015 Notice of Reassessment - Line 150 income $12,596 2016 Notice of Reassessment - Line 150 income $82,500 [ 24 ] Mr.

C.’s Financial Statement filed June 21, 2018 attached a 2017 T4 slip issued by [omitted for publication] showing employment income of $48,000. [ 25 ] The same Financial Statement filed June 21, 2018 listed current income as $56,500, derived from employment income of $13,900 and taxable dividends of $42,600. [ 26 ] An updated Financial Statement filed May 17, 2019 listed income as $60,320. The only personal debt listed was a credit card debt of $5,100. [ 27 ] Mr. C. said he owed on a bank line of credit $75,000 and a further $200,000 to friends and other investors.

No documents were provided to substantiate this and these items were not listed in the Financial Statement. These may have actually been corporate debts. [ 28 ] There is a discrepancy between Mr. C.’s 2015 Notice of Reassessment, which stated his income to be $12,596, and Mr.

C.’s evidence that he received a salary in 2015 of $31,607. [ 29 ] The financial statements for [omitted for publication] can be summarized as follows: 2015 2016 2017 2018 Revenues $190,746 $4,357,524 $1,880,492 $1,835,282 Cost of Goods Sold $29,062 $2,593,772 $1,342,236 $1,321,480 Gross Profit $161,684 1,763,752 $538,256 $513,802 Expenses $132,632 $1,447,448 $410,140 $283,752 Salary paid to Mr. C. $31,607 $30,000 0 0 Dividends paid to Mr. C. 0 $50,000 0 0 Net Income After Tax $25,130 $272,339 $125,175 $219,764 Retained Earnings $52,068 $150,702 $275,877 $495,641 [ 30 ] Mr.

C.’s 2016 Notice of Reassessment showed his income as $82,500 whereas Mr. C. testified that he received from [omitted for publication] total payments of $80,000. It is possible Mr.

C. was not using precise language in his testimony. [ 31 ] The amount of retained earnings in [omitted for publication] steadily increased from $52,068 in 2015 to $495,641 in 2018. [ 32 ] The financial statements for [omitted for publication] can be summarized as follows: 2016 2017 2018 Revenues $1,289,048 $1,081,424 $253,582 Cost of Sale - Subcontracts $167,610 $103,374 $20,019 Gross Profit $1,121,438 $978,050 $233,563 Expenses $1,120,517 $936,663 $255,208 Net Income After Tax $801 $35,018 ($21,645) Retained Earnings $801 $35,819 $14,174 [ 33 ] Further evidence was submitted regarding corporate tax liabilities. [ 34 ] A Notice of Assessment dated April 3, 2018 issued to [omitted for publication] by the Canada Revenue Agency for the period April 1, 2017 to June 30, 2017 showed unpaid GST of $34,751.53. [ 35 ] A Requirement to Pay issued by the Canada Revenue Agency [omitted for publication] on April 5, 2018 sought payment of

$42,485.27. [ 36 ] A Notice of Assessment dated April 17, 2018 issued to [omitted for publication] for the period January 1 to December 31, 2017 showed taxes owed of $62,089.60. [ 37 ] A Notice of Arrears issued by Canada Revenue Agency to [omitted for publication] on May 8, 2018 stated that taxes owed were $33,719.77. [ 38 ] A Canada Revenue Agency Account Balance statement for [omitted for publication] showed that as of June 5, 2019, the amount owed was $41,922.39. [ 39 ] Mr.

C. said that between the two companies, total taxes owed were approximately $180,000, although the documents placed into evidence suggest an amount of about $84,500. [ 40 ] Mr. C. testified that a resolution was reached with the Canada Revenue Agency whereby [omitted for publication] would pay $5,000 a month starting sometime in 2018 towards the tax liabilities. As part of this settlement, there would be no personal liability against Mr. C. for unpaid GST, which had amounted to $42,583.16 as of April 2018. [ 41 ] Mr. C. said that since 2017, he has been seeking new clients but is living paycheque to paycheque.

In one instance, he secured a contract in Kelowna but was unable to complete it, causing [omitted for publication] to withdraw from the job. [ 42 ] Mr. C. gave evidence of unpaid accounts owing to [omitted for publication]. A judgment against one company for $14,926.95 remains unpaid. Another company that owed [omitted for publication] $60,438 went bankrupt. A

summary provided by Mr. C. shows that as of June 6, 2019 the invoices owed to [omitted for publication] totalled $464,912.19, although $310,317.86 of this has only been due 30 days or less. Four of the amounts listed as owing totalled $49,202.60 were described as bad debts. [ 43 ] Because of the delay in having invoices paid, Mr. C. said that a cash reserve must be kept to pay for ongoing costs such as wages and operating expenses. I was not told of the proper amount for a cash reserve. It stands to reason that the amount will fluctuate depending on how many workers are currently employed and what work is being undertaken. [ 44 ] Mr. C. also provided a

summary of unpaid bills owed by [omitted for publication]. The

summary includes some items that are not yet due. The total amount of the bills is $241,054.69. Under a description “Open Balance” is the amount $227,697.17. I was not told what “Open Balance” refers to. [ 45 ] Mr. C. also described personal lifestyle changes. He had to move to Richmond and then Langley in an effort to reduce his living costs. The office for [omitted for publication] has now moved to his home. He uses his garage for storage for the business.

Jurisdiction [ 46 ] As I set out previously, clause 26 of the separation agreement states: Subject to paragraph 70, the Supreme Court of British Columbia shall have exclusive jurisdiction over this agreement with the exception that the parties may enforce this agreement in the Provincial Court of British Columbia. [ 47 ] Both parties have agreed they will accept this court as having jurisdiction in this matter. Notwithstanding this, I will address whether clause 26 of the agreement prevents this court from hearing applications regarding the agreement. [ 48 ]

Section 193 of the Family Law Act sets out the jurisdiction of the Provincial Court as follows: Provincial Court jurisdiction 193

(1) Subject to the Divorce Act (Canada) and subsection (2) of this section, the Provincial Court has jurisdiction in all matters under this Act.

(2) The Provincial Court does not have jurisdiction to make an order under (

a) Part 3 [Parentage] , except as necessary to determine another family law dispute over which the Provincial Court has jurisdiction, or (

b) Part 5 [Property Division] , 6 [Pension Division] or 8 [Children's Property] .

(3) Nothing in subsection (2) (

b) of this

section prevents the Provincial Court from making an order under

Part 9 [Protection from Family Violence] restricting access to a residence for the purpose of protecting the safety of a family member occupying the residence. [ 49 ] There are few court cases that deal directly with the question of whether parties to a separation agreement can prevent the Provincial Court from having jurisdiction over the agreement. [ 50 ] The decision Ball v. Carpentier , 2014 BCPC 319 was a Small Claims court action to enforce a provision of a separation agreement requiring the husband to pay the wife $20,000 to purchase her share of a condominium.

The separation agreement contained a clause stating that the Supreme Court of BC had exclusive jurisdiction over the agreement. The decision reads in part: [15] Paragraph 1.07 of the Separation Agreement makes it clear that the parties have agreed that the Supreme Court of British Columbia shall have exclusive jurisdiction over the Separation Agreement. I take that to mean both by way of

interpretation of the Separation Agreement and also the enforcement of any provisions contained within the Separation Agreement. In fact, what likely is an issue that the Supreme Court may be required to decide is whether or not the operative provision of

Part 6 of the Separation Agreement dealing with the Nanaimo Condo should be varied in some fashion in order to reflect the present situation that exist with respect to that condo, its

value, and the inability to obtain refinancing of the first mortgage. [16] I conclude that the provisions of s. 1.07 are determinative, and that the Supreme Court does have that exclusive jurisdiction.However, if I am wrong, I do note that only the Supreme Court of British Columbia has jurisdiction to make orders under

Part 5 of theFamily Law Act.

Part 5 of the Family Law Act deals with property division. Property division in this situation would include theNanaimo Condo. [51] The decision G.B. v. D.B., 2019 BCPC 69 involved an application to the Provincial Court to have only the SupremeCourt deal with support issues. The application was refused, and it was noted that this court had already made a number of supportorders.

This decision is distinguishable because it did not involve a separation agreement purporting to give the Supreme Court exclusivejurisdiction. [52] There are numerous cases recognizing the validity of exclusive jurisdiction clauses in agreements made in a commercial setting.An example of such a case is the decision in Pirrana Small Car Centres Ltd. v. Rumm, (BC SC). Such clauses havealso been enforced in a labour relations setting: see for instance the discussion in Viterra Inc. v Grain Workers' Union, Local 333, 2018BCSC 787 .

These cases are distinguishable since the matter before me involves a Family Law Act proceeding. [53] The decision Ward v. Ward, 2002 BCSC 252 dealt with a separation agreement that sought to give the Supreme Court thejurisdiction to vary the agreement. At the time, the governing legislation was the Family Relations Act which only gave the jurisdictionto vary an agreement to the Provincial Court. The court stated at paragraph 10: [10] I conclude that Mr. and Ms. Ward’s agreement does not (and cannot) give me that authority.

Firstly, there is compelling and long-standing authority that one cannot, by agreement, and in the absence of enabling statutory provisions, confer jurisdiction upon a courtwhere none exists. As Moss, C.J.O., stated in Re: Port Arthur and Rainy River Provincial Election (No.3) (sub nom. Preston v.Kennedy) (1907), 13 O.L.R. 17, at p. 19: It is probably quite correct to say that such a course would be a great convenience to the parties, and would result, in all probability, in avery considerable saving of expense to one of them.

But it must be borne in mind that consent cannot confer jurisdiction. [54] The decision Re McKittrick, (ON CA) also stands for the proposition that consent cannot give a courtjurisdiction. This case was cited with approval in British Columbia in the decision Nelson v. Rouilles, (BC SC), whereMr. Justice Romilly stated: [6] I note also that the fact that the parties agreed that the appeal should be on the merits of the case does not affect the this principlesince the court's jurisdiction cannot be conferred or enlarged by the consent of the parties: Schaff v. Schaff (1997), (BC CA), 38 B.C.L.R. (3d) 89 (B.C.Mr.

C.); Barreiro v. Stewart (1997), (BC SC), 32 R.F.L. (4th) 388 (B.C.S.C.).In Re McKittrick, (ON CA), [1926] 4 D.L.R. 44 (Ont. Mr. C.) Riddell J.A. stated at p. 45: We are not to be considered as assenting to the proposition advanced by the vice-chairman of the board that, while the board might nothave jurisdiction without consent, it would have with consent.

This is a dangerous doctrine, and it cannot be made too clear that consent does not give jurisdiction, unless the statute says so - the boardeither has or it has not jurisdiction, and consent has nothing to do with the question. [55] The caselaw is clear that parties cannot by consent confer jurisdiction upon a court.

In my view, the converse is also true andparties cannot by consent remove jurisdiction granted to this court by the Family Law Act. [56] The Family Law Act provides that this court has jurisdiction in all matters under the Act subject only to the Divorce Act and theexceptions listed at s. 193(2) of the Family Law Act.

There is no provision in the Family Law Act allowing the parties to contract out ofthe jurisdiction of the Provincial Court. [57] Furthermore, any agreement to deprive this court of jurisdiction granted to it by legislation would be contrary to s. 2(3) of theProvincial Court Act, which states: The court and every judge have jurisdiction throughout British Columbia to exercise all the power and perform all the duties conferred orimposed on a judge of the Provincial Court, a magistrate, justice or 2 or more justices sitting together, under an enactment of BritishColumbia or of Canada. [58] I conclude that notwithstanding any agreement that the Supreme Court has exclusive jurisdiction over the separation agreement,the Provincial Court is still entitled to exercise such jurisdiction as granted to it by legislation. [59] I distinguish the decision in Ball v.

Carpentier on the basis that the case dealt with compensation in relation to a propertydivision, which would clearly be in the jurisdiction of the Supreme Court pursuant to s. 193(2). [60] Given my conclusion, I am satisfied that I have the jurisdiction to deal with this application notwithstanding clause 26 of theseparation agreement. Common Mistake [61] Mr. C. argues that the term of the separation agreement setting the amount of spousal support was based on a common mistakethat his earnings would be $100,000 per annum. The $100,000 income was an amount estimated by Mr. C. Ms. G. said she simplyaccepted Mr.

C.’s estimate of income. Both parties were thus proceeding on the assumption that Mr. C.’s income would be $100,000 perannum.

[62] The decision Hannigan v Hannigan, 2007 BCCA 365 discussed the law of mistake at paragraph 63: [63] A useful discussion of the law of mistake is found in the decision of Chief Justice Fraser, speaking for the court, in Ron GhitterProperty Consultants Ltd. v. Beaver Lumber Co. (2003), 2003 ABCA 221 , 17 Alta. L.R. (4th) 243 (Mr. C.) at paras. 12–13: There are three types of mistake: common, mutual and unilateral: see Cheshire, Fifoot & Furmston, Law of Contract, [14th ed. (London:Butterworths, 2001)], supra, at 252-53 for a

summary of each. Common mistake occurs when the parties make the same mistake. Forexample, one party contracts to sell a vase to another when unbeknown to both, the vase was destroyed and no longer exists. Mutualmistake occurs when both parties are mistaken, but their mistakes are different. In this event, the parties misunderstand each other andare, to use the vernacular, “not on the same page”. Unilateral mistake involves only one of the parties operating under a mistake.

If theother party is not aware of the one party’s erroneous belief, then the case is one of mutual mistake but if the other party knows of it, ofunilateral mistake. What adds to the confusion is that the distinction between mutual and common mistake is sometimes blurred whencourts use the two terms interchangeably. The presence or absence of an agreement is one of the foundational differences amongst the three types of mistake. With commonmistake, the agreement is acknowledged. What remains to be determined is whether the mistake was so fundamental as to render theagreement void or unenforceable on some basis.

But in the case of a mutual or unilateral mistake, the existence of an agreement isrejected. As explained in Cheshire, Fifoot & Furmston, supra at 253: Where common mistake is pleaded, the presence of agreement is admitted. The rules of offer and acceptance are satisfied and the partiesare of one mind. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy.Where either mutual or unilateral mistake is pleaded, the very existence of the agreement is denied.

The argument is that, despiteappearances, there is no real correspondence of offer and acceptance and that therefore the transaction must necessarily be void. [Emphasis added.] [63] Common mistake is a legal basis to set aside a separation agreement. The question is whether a common mistake exists hereand whether it was so fundamental that it rendered all or part of the agreement void or unenforceable. [64]

Preamble E of the agreement makes clear that the agreement was based upon Mr. C. earning approximately $100,000 a year.This assumption was shared by the parties. [65] Because Mr. C. is self-employed and can control how or when he is paid, the determination of his income is not simple. Heestimates his current income at about $60,000. The evidence does satisfy me that the corporate income of [omitted for publication] is lessthan what it was believed to be when the separation agreement was executed.

The tax liabilities are significant and had those liabilitiesbeen paid when originally due, the available income would have been reduced. [66] Of concern is that the retained earnings have increased over time from $52,068 in 2015 to $495,641 in 2018. I am mindfulthough that there are current tax liabilities of about $84,500 based on the documentary evidence or $180,000 based on Mr. C.’s evidence.There are unpaid invoices of about $230,000 to $240,000.

I also accept that [omitted for publication] must maintain a cash reserve tocover ongoing operating costs. [67] After ignoring those items described as “bad debts”, there are about $415,000 in accounts receivables payable to [omitted forpublication]. [68] A court is entitled to consider corporate pre-tax income when determining spousal support: see Aelbers v. Aelbers, 2010 BCSC1574 at para. 11. [69] Given the evidence of the corporate liabilities that were unknown to Mr.

C. at the time the separation agreement was signed, Iam satisfied that the income available to him to pay spousal support was not $100,000 as estimated. However, I am not prepared toaccept his estimated income as $60,000 given that the retained earnings have increased so significantly and there are still significantaccounts receivables payable to the company. I have concluded that I will impute to Mr. C. income at $80,000. [70] Even at an income level of $80,000, the difference between the estimate of $100,000 and $80,000 remains considerable.

I findthat the parties did make a common mistake about the level of Mr. C.’s income and that this was a fundamental error allowing the courtto set aside and replace the spousal support provision of the agreement: see Brandt v Brandt, (BC SC), [1998] B.C.J.No. 448 at paras. 39 to 41. Family Law Act s. 164(5) - Was the agreement significantly unfair? [71] Given my finding of a common mistake, I need not consider whether the separation agreement was significantly unfair to Mr.C. The unexpected assessment of the taxes though would be a change of circumstances as referred to at s. 164(5)(

b) and a basis to setaside or replace the agreement. Amount of Spousal Support Payable [72] There is no issue regarding entitlement to support. What is left to be determined is the amount and duration of support. [73] At present Ms. G. estimates her income to be between $2,800 and $3,000 a month. Using a mid-range of $2,900, her annualincome is $34,800. This is significantly better than the income she was earning at the time of separation. [74] Mr. C. paid spousal support of $2,000 a month until May 2018 when he paid $650 a month for two months.

Since July 2018, hehas paid $560 a month toward his spousal support obligation. He proposes to pay spousal support of $560 a month until September 1,2021 based on an income of $60,000.

[ 75 ] This court receives guidance about the amount and duration of spousal support payable by way of reference to the Spousal Support Advisory Guidelines . The decision H.S.S. v. S.H.D ., 2018 BCCA 199 states that clear reasons are required if an award of spousal support departs from the range set out in the Guidelines . In the decision T.K.M. v.

D.C.C. , 2017 BCPC 193 , this court stated at paragraph 27: In fixing the specific quantum of spousal support, a court can be guided by the Spousal Support Advisory Guidelines, which are “a useful tool to assist judges in assessing the quantum and duration of spousal support. The court is not bound to follow these guidelines, but should generally view them as setting out whether or not a proposed amount of spousal support is “within the range” of acceptable awards. [ 76 ] I have considered that the amount of spousal support that should have been paid based on Mr. C. earning an income of $80,000 and Ms.

G. earning an income of $7,500, which is the amount referred to in the separation agreement. Using the Spousal Support Advisory Guidelines as calculated by way of the DivorceMate software program, the range for spousal support using the “Without Child Support” formula, is from a low of $634 to a high of $846 for a duration of 3.5 to 7 years. [ 77 ] Based on Mr. C. earning an income of $80,000 and considering Ms. G.’s current income of $34,800, the Spousal Support Advisory Guidelines provide a range for spousal support from a low of $396 to a high of $527 for a duration of 3.5 to 7 years. Mr.

C.’s proposal to pay $560 a month thus exceeds the highest monthly amount set out in the Guidelines . [ 78 ] Mr. C.’s payment of $2,000 a month from September 1, 2016 to April 1, 2018 was well in excess of the suggested spousal support amount. He then paid $650 a month for May 1 and June 1, 2018, which is at the low end of the range based on Ms. G.’s income of $7,500. It is still above the suggested range when Ms. G.’s income is set at $34,800. [ 79 ] Starting July 1, 2018, Mr. C. has been paying $560 a month, which is higher than the range based on Ms.

G.’s current income of $34,800. [ 80 ] I have considered the excess payments of support by Mr. C. and that he is also not seeking any repayment of the excess amounts. Given the circumstances, I will set the amount of support payable to coincide with the amounts actually paid. The amount of ongoing support will be fixed at $560 a month. Duration of Spousal Support [ 81 ] As for how long support should be paid, the mid point in the range suggested by the Spousal Support Advisory Guidelines is not a default choice.

Many factors come into play in determining the appropriate duration of the spousal support, including the strength of any compensatory claim, the recipient’s needs, the needs and ability to pay of the payor, work incentives for the payor, property division and debts, and self-sufficiency incentives. [ 82 ] Ms. G. testified that during the marriage she remained home and attended to household matters so that Mr. C. could focus on work. Ms. G. had some minor involvement in trying to operate the business but did not really have any knowledge or experience to contribute to it.

Although the separation agreement provided that Ms. G. was waiving any entitlement to a share in the business, at the time of separation the business was only of limited value. [ 83 ] Ms. G. testified about having emotional or panic attacks and depression after the separation, including one suicide attempt, but there was no medical evidence that this was due to the separation. [ 84 ] Since the separation, Ms. G. has taken steps to become self-sufficient.

She is holding down two jobs, one of which involves product demonstrations and has the potential for more pay. [ 85 ] Spousal support has been paid since September 1, 2016. [ 86 ] Furthermore, the parties did reach an agreement that payment of spousal support for a period of five years was appropriate. [ 87 ] Given all the factors set out above I conclude that a term of five years is appropriate starting from the date of separation. [ 88 ] Spousal support of $560 a month will continue up to and including August 1, 2021.

The support obligation as set out in the separation agreement was for five years and accordingly the last payment is actually due August 1, 2021 with no support payable September 1, 2021 and thereafter.

Summary [ 89 ] I order as follows: Clause 5 of the separation agreement dated March 14, 2017 is set aside and replaced with the following:

a) Mr. C. will pay to Ms. G. for her support $650 per month (the “Spousal Support”) for May 1 and June 1, 2018.

b) Mr. C. will pay to Ms. G. for her support $560 per month (the “Spousal Support”) on the first day of each month commencing July 1, 2018 up to and including August 1, 2021 after which Ms. G. entitlement to further support from Mr. C. terminates forever. [ 90 ] I direct counsel for Mr. C. to draft the order for filing with the registry. Pursuant to Provincial Court (Family) Rule 18(4) , the applicant is not required to sign the order and so there is no need to dispense with any requirement for her signature on the form of the order. [ 91 ] I am no longer seized of this file.

_____________________________ The Honourable Judge Lee Provincial Court of British Columbia