G.W.C. v. K.C.C., 2015 BCSC 1802

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: G.W.C. v. K.C.C., 2015 BCSC 1802 Date: 20151005 Docket: 41400 Registry: Vernon Between: G.W.C. Claimant And K.C.C. Respondent Before: The Honourable Madam Justice Young Reasons for Judgment Counsel for Claimant: D. Djordjevich Counsel for Respondent: J. MacArthur Place and Date of

Summary Trial: Vernon, B.C. August 21, 2015 Place and Date of Judgment: Vernon, B.C. October 5, 2015 [ 1 ] This matter came on before me by way of a

summary trial application on August 21, 2015. [ 2 ] The parties sought a divorce and based on the affidavit evidence and the registrar’s certificate of pleadings, I did grant the divorce on August 21, 2015. [ 3 ] The parties settled the issue of the determination of family assets and the issue of arrears of interim spousal support. [ 4 ] The following are the terms of the consent order reached prior to the hearing before me: 1) By consent, the respondent is to receive the entire locked-in RRSP in the amount of approximately $47,000.

The respondent will also receive the approximate amount of $11,000 still held in Jamie MacArthur's trust account.

In consideration the arrears plus interest charged by the Family Maintenance Enforcement Program (“FMEP”) with respect to spousal support in the interim order granted February 5, 2008, will be reduced to $0.00. (The record with FMEP as of today's date to show as $0.00 owing) 2) The two sums of court ordered costs owing by the respondent in the amounts of $2,900 on the contempt of court hearing and $650 in costs totaling $3,560, is waived or traded against the arrears. [ 5 ] On May 20, 2015, the respondent filed a cross-application for spousal support.

SPOUSAL SUPPORT ISSUE [ 6 ] That left the main issue in dispute which is an application for final spousal support payable to the respondent. [ 7 ] After an 18 year marriage the parties separated but did not resolve the issue of spousal support. They have been separated for nine years now and during that nine years the respondent has been involved in several motor vehicle accidents which have rendered her disabled.

The claimant says he is not responsible for her support needs arising from the post-separation deterioration of her health. [ 8 ] The respondent says that she left the marriage with a strong claim for compensatory support and her post-separation health deterioration does not negate that compensatory support claim. The post-separation health deterioration is an answer to her inability to attain self-sufficiency.

BACKGROUND FACTS [ 9 ] The claimant is 50 years of age and the respondent is 47 years of age. The parties lived in a common-law relationship for one year prior to their marriage and married on July 2, 1988. The respondent was 19 when the parties commenced their common law relationship and the claimant was 22. [ 10 ] The parties had two children. B.W.C. was born in December 1989 and B.R.C. was born in September 1993. The children are both now independent adults. [ 11 ] During the marriage, the respondent assumed the role of homemaker.

She has a grade 10 education. [ 12 ] The parties separated on June 30, 2006 when the respondent was 38 years of age, B.R.C. was 13 and B.W.C. was 17. The parties’ cohabitation was nearly 19 years. [ 13 ] The respondent and the children remained residing in the family home and the claimant resided at his worksite in the parties’ travel trailer for the first one and a half years of separation. [ 14 ] Initially the claimant voluntarily paid $1,400 every two weeks to the household account for the support of the respondent and the children.

In addition, he made payments on the parties’ consumer debts. [ 15 ] At the time of separation, the respondent was working. Just prior to separation she had obtained employment as a cashier at a beer and wine store and her income was modest.

She had very limited job experience. [ 16 ] In order to understand the six year hiatus in any activity on this file it’s necessary to review some of the unfortunate post-separation history and why the issue of spousal support has not been dealt with. [ 17 ] On February 5, 2008 the claimant applied for an interim order that he pay support when both children were still living with the respondent in the family home.

He was ordered to pay child support in the sum of $1,240 for the two children commencing January 1, 2008 and spousal support of $1,010 commencing January 1, 2008. [ 18 ] By approximately May 2008 neither of the children was residing with the respondent. B.R.C. moved in with the claimant and the obligation to pay child-support to the respondent was cancelled. [ 19 ] The respondent was unresponsive to settlement proposals in the first year of separation. She would not make the mortgage payments from the support that she was receiving.

She did not agree to list the family home for sale. [ 20 ] On the claimant’s application, an order was obtained to list the family home for sale. The claimant says the respondent would not cooperate with the realtor.

Although the respondent denies this, the court did make an order granting exclusive conduct of sale to the claimant so I concluded that the court was of the view that she was obstructing the sale. [ 21 ] Master Hyslop, as she then was, also made an order that the claimant be at liberty to pay the ongoing mortgage payments due in respect of the family home in the approximate amount of $1,608 per month from the $2,250 of interim child and spousal support payable to the respondent. [ 22 ] Master Hyslop also made an order that the 2003 Ford Expedition truck, currently in the possession of the respondent, be transferred to the claimant with liberty to the claimant to dispose of the asset in order to address the bi-weekly loan payment of $329.74. [ 23 ] On June 24, 2008 the claimant was granted exclusive occupancy of the family home and the respondent was ordered to vacate the family home effective July 15, 2008. [ 24 ] The respondent did not vacate the family home on July 15, 2008.

On August 18, 2008 Mr. Justice Barrow directed that a warrant be issued for the arrest of the respondent. [ 25 ] On August 21, 2008, the respondent did appear before Mr. Justice Barrow and he vacated the warrant. He ordered that the respondent vacate the former matrimonial home and he adjourned the contempt application to August 29, 2008. [ 26 ] The contempt application was adjourned to September 25, 2008 to give the respondent opportunity to retain counsel which she did.

She was found to have been in contempt of court for failing to produce a financial statement by February 19, 2008 and for failing to vacate the home by July 15, 2008. Costs of $2,900 were awarded against her. [ 27 ] In October 2008, the claimant applied for a restraining order against the respondent to prevent her from annoying and harassing him. That order was granted by Master Hyslop. [ 28 ] The claimant moved into the family home and continued to make mortgage payments until sometime in December 2008.

He was still occupying the property until it sold in the spring of 2009. [ 29 ] No spousal support payments were made to the respondent from June 2008 onward because the spousal support payments were being applied to the mortgage for the home that the respondent was occupying. After the respondent vacated the property no variation application was brought so that she would receive the spousal support payments. [ 30 ] Then in December 2008, the claimant inexplicably stopped making the mortgage payments so he was not paying spousal support and he was not making mortgage payments but he was occupying the family home.

His failure to make mortgage payments impacted the parties’ equity from the sale of the home. In fairness to him, I should also acknowledge that the respondent’s obstruction

may have also impacted the parties’ equity in the home because the real estate recession of 2008 significantly affected the value of residential real estate. [ 31 ] The house sold for $287,000. [ 32 ] By the spring of 2009, after the house sold, the claimant claimed to be stretched financially beyond what he could support and he was emotionally exhausted “by the respondent and her antics including her ongoing harassment”. He terminated the retainer with his lawyer and he took no further steps in these proceedings.

The respondent’s view is that the claimant got what he wanted and dropped the proceedings. [ 33 ] That is a long winded explanation for why this matter did not proceed to trial. The reason the matter was reactivated is because the respondent finally registered her spouse support order with the Family Maintenance Enforcement Program and they started collecting arrears of support from the claimant which led him to retain his lawyer and bring this application to conclude these proceedings.

Because the respondent had paid no spousal support between the summer of 2008 and sometime in 2012, the arrears were fairly substantial but the parties have reached an agreement to reapportion the division of assets in return for cancelling those arrears. CLAIMANT’S FINANCIAL CIRCUMSTANCES [ 34 ] The claimant was employed as a helicopter logging manager throughout the marriage. He worked for East-West Transportation 2000 Corp. for a number of years.

His line 150 income history from one year prior to separation to the present is as follows: (a) 2005 – $88,414 (b) 2006 – $83,411 (c) 2007 – $83,793 (d) 2008 – $73,759 (e) 2009 – $84,263 (f) 2010 – $81,260 (g) 2011 – $77,077 *no tax return or

summary provided (h) 2012 – $78,842 (i) 2013 – $113,272 (j) 2014 – $130,339 RESPONDENT’S FINANCIAL CIRCUMSTANCES [ 35 ] The respondent describes her life after separation as being very difficult. She had very limited funds, no real job skills or confidence in her ability to get a job and she was in emotional turmoil. [ 36 ] During the marriage she was a stay-at-home mother and homemaker. At the time of the marriage she was working as a golf course waitress. She became pregnant with B.W.C. shortly after the marriage and stopped working prior to his birth.

She worked briefly after B.W.C. was born on a part-time basis assisting seniors with cleaning cooking and homemaking. She has no former formal training in this regard. She stopped working prior to B.R.C.’s birth. Approximately six years after B.R.C. was born she did start working again on a part-time basis. Some of the work was as a cashier at a liquor store, a clerk at a post office and as a waitress.

At the time of separation she was working part-time as a cashier at a liquor store. [ 37 ] Shortly after the separation she was in a car accident and suffered neck, back and whiplash type injuries. [ 38 ] In 2011 she was a passenger in a city bus that was hit from behind. She suffered neck, back and whiplash type injuries and she has commenced a claim for personal injuries in relation to that accident. In 2014 she was injured again while as a passenger on a city transit bus which stopped suddenly and threw her and others from their seats.

She suffered neck, back and whiplash type injuries. [ 39 ] In February 2015 she fell on some ice and broke her leg. [ 40 ] She has two ongoing personal injury actions. At the time of swearing her affidavit there was a settlement offer of $40,000 on the table. She has been advised that the offer was not higher because she did not have a work history which could substantiate a claim for wage loss.

[ 41 ] The respondent admits that there have been periods of time where problems have been compounded by her abuse of alcohol. The issue arose at the time of the parties’ separation and became worse when she became involved in a relationship with a man named “D”. After she was ordered to leave the family home she did live with “D” and was employed by him at the dairy he owned. She describes her life as spiraling out of control during this period. “D” was “somewhat abusive”. She ended up in the woman’s transition house and woman’s shelter in Vernon after separating from “D”.

She lived there for two months. [ 42 ] After that, she moved in with a friend in Vernon for about three months and then returned to the woman’s shelter for a period of time. [ 43 ] In September 2010 she found a basement suite in Armstrong for rent.

B.R.C. lived with her there part-time. [ 44 ] In the summer of 2011 she moved to a smaller cheaper one bedroom basement suite in Armstrong where she stayed until 2012. [ 45 ] In 2012 she moved into a two-bedroom apartment that she shared with a friend. [ 46 ] In 2013 she found a basement suite in Vernon where she stayed until the spring of 2013. [ 47 ] She then moved into another shared basement suite until 2013.

In 2014, she moved into another suite with a roommate. [ 48 ] In 2014 she had a brief relationship with a man named “R” which was unstable and she ended up in the transition house again. [ 49 ] The respondent now lives in a room in a house on acreage near Armstrong. She pays $400 a month including utilities.

She has her own room but shares the bathroom and kitchen. [ 50 ] The respondent’s financial income since separation is as follows: (a) 2008 – $6,649; this income was from working as a cashier at a liquor store in Vernon and from working as a delivery driver for OTD; (b) 2009 – $4,087; employment income working as a delivery driver for OTD until May or June 2009 plus $936 and social assistance; (c) 2010 – $6,031.16 all in social assistance income; (d) 2011 – $11,557 all in social assistance income; (e) 2012 – $10,787; all in social assistance income; (f) 2013 – $1,770; social assistance income (there is also a small amount of investment income which is the interest on the sale of the proceeds held in trust and spousal support); and (g) 2014 – no income but the respondent did receive spousal support. [ 51 ] Following the end of her employment with OTD in 2009, her only income was from British Columbia social assistance in the approximate amount of $590 per month and the GST rebate.

On or about 2012 the Ministry of Housing and Development terminated the social assistance she was receiving. She did not explain why. [ 52 ] The respondent says one of the problems she has had in moving forward with her life has been significant financial instability since separation. She has been living in poverty. Initially the mortgage payments on the house were being paid from the support she was to receive.

After August 2008 she was no longer in the home and still she received no funds from the claimant. [ 53 ] In February 2008, the claimant took possession of the Ford Explorer vehicle the respondent had been using because she could not afford to make the payments on the loan. [ 54 ] She has moved a number of times because of her poverty. She had no vehicle and at times no money for public transit. At times she has not been able to afford a phone and at time she has not been able to afford food. She says one of the barriers has been her sense of helplessness.

These factors, together with an overall lack of confidence and work experience, has made finding meaningful work seem almost impossible to her. [ 55 ] In 2012 the claimant made sporadic spousal support payments to the respondent. The respondent did register the order with the FMEP in March 2013 and the claimant has made regular spousal support payments since then. [ 56 ] By her calculation, the respondent said that there was $52,880 of spousal support in arrears owing to her by March 2013 based on the previous order of $1,010 per month.

After September 2012, a further order should have been made to increase spousal support to take into account that the claimant was no longer responsible for supporting the children.

POSITION OF THE CLAIMANT [ 57 ] The claimant asked the court to determine that his spousal support obligations are fully discharged. In the alternative, the claimant asked that the support order be based on need only and not compensatory support and that his obligation be shared with the respondent and the state. [ 58 ] If the respondent is truly disabled then, the claimant says, she should apply for Canada Pension Plan disability benefits and one third of the support obligation would be apportioned to the state.

If the respondent is not found to be disabled, then she should be responsible for two thirds of her support and the claimant should only be responsible for one third of her support. He asks that his support obligation be concluded within five years. [ 59 ] The claimant also states that for spousal support purposes, the court should set his guideline income at $84,190 which was the average line 150 income for the last three years of marriage from 2004-2006.

He submits that the respondent should not benefit from the increased income he has enjoyed since 2013 when he took on new employment in a completely unrelated field as a construction superintendent with a company that deals with hydropower infrastructure. Unfortunately, he has chosen not to lead any evidence on that point and this information has all come from counsel’s submissions. [ 60 ] The claimant says the respondent’s dysfunction became linked to alcohol abuse in association with her poor relationship choices.

Her absolute apathy is not explained by any medically supported psychiatric condition but by her intentional failure of self- governance. Counsel for the claimant submits: The respondent didn’t work with us to sort things out. Instead she’s charged forward on a trajectory toward self-destruction and marginalization. The claimant was not responsible for what went on in the respondent’s mind. She is the one who seemed to invite a race to the bottom.

She is the one who seemed to let thoughts of destroying the claimant prevail over for self-preservation and self- guidance. [ 61 ] In support of this conclusion, claimant’s counsel cites two paragraphs of affidavit number five of the claimant which don’t support the conclusion at all. [ 62 ] At page paragraph 12 of his affidavit number five, sworn April 7, 2012, the claimant says: Based on the Respondent’s conduct with me, with our children, with the Court and with her substance abuse (which has engaged the RCMP on numerous occasions), I believe that some psychological illness may be at play, and that this may explain her resistance to rational resolution. [ 63 ] Claimant’s counsel also cites paragraph 21 of the same affidavit where the claimant says: When the Respondent remained unresponsive to settlement proposal, eventually I provided my lawyer instructions to commence the divorce proceeding.

This was recommended to me to capture the tax benefit of paying spousal support pursuant to either a court order or separation agreement. To that point, I had been unable to claim my voluntary support as spousal support. My lawyer was concerned with the limits on retroactive claims vis-à-vis the Income Tax Act, and cautioned me against delay that would lose me the option of claiming the voluntary support paid during 2007.

At the time, it was already apparent that I would be losing out on the tax benefit from claiming the voluntary support paid in 2006. [ 64 ] I have read the affidavits of the claimant filed in 2008. The respondent has not provided any of her 2008 affidavit material. [ 65 ] Some facts I can take from the claimant’s affidavits are that the respondent was of the view she did not have to pay the mortgage payment and household expenses from the child and spousal support she received. She was resistant to list the house for sale.

Although she denies that, I suspect she was in fact resistant to cooperating with the listing realtor given that the presiding judge did order sole conduct of sale. She did not file a financial statement when ordered to do so and she did not vacate the property when she was ordered to do so and was found in contempt of court for this. [ 66 ] It appears that the respondent had a significant alcohol problem in 2007 and 2008 which led to the breakdown of her relationship with her children. Her daughter moved in with the claimant in June 2008.

Her stated reason was because of the respondent’s relationship and nonstop drinking in the home. [ 67 ] The claimant deposed in October 2008 that the respondent would, when under the influence of alcohol, call him on the telephone incessantly or attend at his home in Vernon. At that time, his home in Vernon was a rental premises which she had never lived in. [ 68 ] On September 25, 2008, the day Mr. Justice Barrow made the ruling that the respondent was in contempt of court, the claimant deposes that the respondent attended at the home he rented in Vernon. B.W.C. and B.R.C. were at the home at the time.

The respondent showed up at the back door apparently drunk. B.W.C. and B.R.C. then got into a dispute with the respondent with the respondent yelling at the children. This incident escalated to the point where the RCMP had to be called. [ 69 ] The claimant says he is not responsible for the choices the respondent made. She is taken no initiative to make something of her life. There is no evidence that she sought counselling or treatment or high school equivalency training or college training. There is no evidence that she prepared a resume.

The claimant asks to either dismiss the application for ongoing spousal support or order a nominal amount on the basis or need. As an alternative, counsel submits that I should impute an income to the respondent given her intentional underemployment.

RESPONDENT’S POSITION [70] The respondent’s position is that this is a compensatory support application. The only unusual factor is the delay in seeking theorder. When the parties separated, they separated in an enormously unequal financial position. The respondent acknowledges that shebreached court orders during a time when she was emotionally unstable and not represented by counsel. The claimant does not come tocourt free of malfeasance because he did not pay the court order of $1,100 a month in spousal support for many months.

He stoppedpaying the mortgage payment without any explanation in December 2008 and still did not make support payments. The respondentasked him for money but it wasn’t until 2010 that he made some payment to her. [71] Ten thousand dollars has been sitting in Mr. MacArthur’s trust account and could have been applied toward arrears of support toassist the respondent but no consent was reached. [72] Compensatory factors have contributed to the respondent’s unemployment. She has limited education, virtually no jobexperience and significant lack of confidence.

These factors can be linked to the role she played in the marriage which she entered intoat the age of 19 years with a grade 10 education. [73] The parties were under financial pressure at the time they separated and the respondent had agreed to a consolidation loan to tryto pay off some of the high interest short-term debt.

This contradicts the claimant’s statement that the respondent was determined tocause his financial ruin. [74] The physical injuries from the post-separation motor vehicle accidents have exacerbated her employment barriers. [75] The respondent does agree that alcohol abuse has contributed to her problems but there is very little evidence on that point andso I cannot determine whether alcohol abuse is still an issue for her.

There is no evidence that she has sought any treatment orcounselling. [76] I note the claimant’s suspicion that some psychological illness may be at play but there is no evidence from a physician orcounsellor to support this. [77] In May 2013, the respondent completed an application for disability benefits to the Ministry of Social Development. Shedescribed her motor vehicle accidents and then says at page 4: I live with headaches, neck pain, back pain, hip leg, feet pain. Muscle spasms, tension, stress, insomnia, depression, anxiety, due to notfunctioning in a normal healthy life.

I have a Mental Health counsellor who is assisting me with dealing with the daily stressors and painmanagement. My health is fairly well considering the long-term health issues I’ve been having. I have chronic pain to which I am notstabilizing without the help of my Doctors, therapists, Specialists etc. [78] In the same report, her doctor describes her as having chronic neck and low back pain after multiple MVAs in 1988, 2007 and2011 with progression of pain over the time. Activity is limited due to increasing pain with activity.

He says that she also has somecomplaints of coordination and balance that are difficult to quantify. Mostly she gets pain with increased activity or lifting and herphysical activities are slowed. [79] She has seen specialists in orthopedics, neurology and physiatry and is scheduled to see pain clinic consultants. [80] The problem having a case like this proceed on a

summary trial basis is that I have not had the benefit of seeing the respondenton the witness stand or seeing her cross-examined. There are large gaps in her evidence and the onus is on her to explain why I shouldn’tfind against her because she has made no efforts toward self-sufficiency. [81] The respondent’s position with respect to the claimant’s income is that spousal support should be based on his actual income.

He worked for many years throughout the marriage as a helicopter manager gaining expertise and experience throughout those yearswhile the respondent stayed home, kept the house and cared for the children, relieving the claimant of his obligation to do so. Thoseyears of experience had to have contributed to his ability to obtain his new employment. LEGAL AUTHORITIES [82] This is an application under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

Section 15.2 of the Divorce Act is the mainprovision governing entitlement to spousal support. Subsection 15.2(6) provides that a spousal support order should meet the followingobjectives: (

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above anyobligation for the support of any child of the marriage; (

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [83] In order to achieve a fair and equitable distribution of resources, all four of these objectives should be examined: Moge v. Moge, (SCC), [1992] 3 S.C.R. 813 at pp. 850-853. [84]

Section 15.2(4) of the Divorce Act requires the court to consider the condition, means, needs and other circumstances of each

spouse: (

a) the length of time the spouses cohabited; (

b) the functions performed by each spouse during cohabitation; and (

c) any order, agreement or arrangement relating to support of either spouse. [85] In Bracklow v.

Bracklow, (SCC), [1999] 1 S.C.R. 420 at paras. 15, 41 and 42, the Supreme Court of Canadahas identified three grounds for entitlement to spousal support: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support [86] When these parties separated, the respondent had a strong compensatory support claim because of the economic disadvantageshe suffered as a result of the marriage breakdown and because of the financial consequences arising from the care of the children of themarriage prior to and after separation. [87] I find support for this conclusion in Moge and the quotations from Madam Justice L’Hereux Dube’s review of the social scienceliterature in that decision describe a picture very similar to the one this respondent has painted for me in her affidavit material. [56] Given the multiplicity of economic barriers women face in society, decline into poverty cannot be attributed entirely to the financialburdens arising from the dissolution of marriage: J.

D. Payne, "The Dichotomy between Family Law and Family Crises on MarriageBreakdown" (1989), 20 R.G.D. 109, at pp. 116-17. However, there is no doubt that divorce and its economic effects are playing a role. Several years ago, L. J. Weitzman released her landmark study on divorce, The Divorce Revolution: The Unexpected Social andEconomic Consequences for Women and Children in America (1985), and concluded at p. 323: For most women and children, divorce means precipitous downward mobility -- both economically and socially.

The reduction inincome brings residential moves and inferior housing, drastically diminished or nonexistent funds for recreation and leisure, and intensepressures due to inadequate time and money. Financial hardships in turn cause social dislocation and a loss of familiar networks foremotional support and social services, and intensify the psychological stress for women and children alike.

On a societal level, divorceincreases female and child poverty and creates an ever-widening gap between the economic well-being of divorced men, on the onehand, and their children and former wives on the other. [57] The picture in Canada seems to follow a similar pattern.

In the federal Department of Justice (Bureau of Review), Evaluation of theDivorce Act -- Phase II: Monitoring and Evaluation (1990), it was found, based on client interviews that, following divorce, 59 percentof women and children surveyed fell below the poverty line, a figure that dropped to 46 percent when support was included [page855] inthe calculation of their incomes (see pp. 92-93).

However, a more realistic picture, as it is not restricted to the more affluent segment ofthe divorcing public, is probably revealed by an analysis of court files, which determined that in 1988, overall two-thirds of divorcedwomen had total incomes which placed them below the poverty line. When support was excluded, 74 percent of divorced women fellbelow the poverty line (see pp. 94-95). It is apparent that support payments, even assuming they are paid, are making only a marginalcontribution to reducing economic hardship among women following divorce.

In contrast, a previous study released in 1986, Evaluationof the Divorce Act -- Phase I: Monitoring and Evaluation, found that only 10 percent of men were below the poverty line after payingsupport, and the average income was $13,500 above the poverty line in such one-person households after the payment of support. [88] To say that the respondent’s failure to succeed post-separation cancels her entitlement to compensatory spousal support ignoresthis research and the principles articulated by Madam Justice L’Hereaux Dube in Moge.

It also places too much emphasis onself-sufficiency. [89] Had the trial taken place two years after separation when it should have, I predict that the court would have awarded mid-tohigh-range spousal support on a compensatory basis to the respondent for a period of nine to 19 years. [90] The respondent is not solely responsible for this nine year delay in proceedings. She did take a passive role throughout theproceedings.

She was living in poverty, living with alcoholism and likely depression and so it was highly unlikely that she was capableof advancing the case to trial. [91] The claimant is deserving of credit for advancing the case as far as he did. He requested the spousal support order so that hecould receive a tax deduction for voluntary payments. He promoted the sale of the home. He also housed and cared for the childrenafter they abandoned their mother likely due to her alcoholism. He provided them with financial and emotional support until theyconcluded their education.

He then gave up with the court process and terminated his retainer with his lawyer and then did nothing untilfamily maintenance enforcement started to collect support from him again. [92] Due to these unhappy circumstances, I find that the parties are equally to blame for the delay and now I must determine whatimpact the delay has had on the respondent’s compensatory support claim. [93] Ignoring the intervening events which occurred since separation, for the purpose of this discussion, the respondent would beentitled to mid-range spousal support for a period of nine to 18 years.

But for the intervening events, it would be fair to impute a modestincome to her at the level of part-time minimum wage given that, prior to the accidents, she showed an ability to earn modest income andthe claimant had taken over the responsibility for the children. [94] If the claimant’s income was set at $84,200 and the imputed income for the respondent was set at $10,000, and if this matter

had proceeded to trial expeditiously, it is likely that the court would have ordered support in the range of $1,400 to $1,900 per month. This calculation takes into account the fact that the payor had primary care of the child. [ 95 ] B.R.C. turned 19 in September 2012 and the claimant supported her up until then. The compensatory support should have increased in 2012 when B.R.C. was no longer dependent on her father. At that time, if matters had proceeded normally, I would have expected the court to increase support to within the range of $1750 to $2340 if the parties’ incomes remained the same.

Post Separation Disability [ 96 ] The next question is whether the respondent has done anything to lose the right to compensatory support. I do not see her lack of employment efforts to be grounds to cancel her compensatory spousal support but I do see lack of reasonable employment efforts to be grounds to impute income to the respondent. [ 97 ] By 2012 the respondent had been in two motor vehicle accidents and was complaining of neck, back and hip pain which apparently developed into a chronic pain situation. These physical limitations arose after separation. [ 98 ] Mr.

Justice Schultes considered the impact of post-separation disability in Firth v Firth , 2012 BCSC 857 . He adopted the principles articulated in Fyfe v. Juppien , 2011 ONSC 5462 which are set out below: 72 In Fyfe v. Jouppien , 2011 ONSC 5462 , Justice Chappel reviewed cases from across Canada that involved claims for spousal support based on post-separation disability and distilled some essential principles from them, at para. 54. Of those principles, the ones applicable to this case are: a.

The starting point for analyzing non-compensatory support claims based on need arising post separation is whether there is evidence during the period prior to separation to rebut the presumption of mutuality and interdependence arising from the marriage relationship itself. Where there is no evidence to rebut this presumption, it may be reasonable to expect that the parties will support each other for a reasonable period of time in the event of need that does not exist at the time of separation but that arises at a later date. b.

The existence of mutuality and interdependence prior to separation is not, however, a determinative factor favouring a spousal support obligation in the event of need arising post separation. As the Supreme Court of Canada stated in Moge and Bracklow , all of the objectives underlying a spousal support order must be considered, including the objective of promoting self sufficiency within a reasonable period of time.

The question that must be determined is whether, taking into account all of the circumstances of the particular case, it is reasonable on an objective analysis to expect the parties to continue to be "safety nets" for each other in the event of post separation need, and if so, for how long. c. The passage of time may be an important consideration, particularly where the parties both take steps post separation to unravel their interdependencies and to effect a clean break from each other.

In these circumstances, the mutual obligation of support arising from the marriage itself may wane with the passage of time, and the objective of promoting self sufficiency within a reasonable time frame may come more to the forefront of the analysis. This would include an expectation that former spouses implement plans for their own care in the event of possible disability in the future. d.

On the other hand, the passage of time may be given less weight in the analysis of entitlement if, despite the passage of a number of years, the parties have not effected a clean break, and their relationship continues to be characterized by mutuality and interdependence.

In such circumstances, an objective analysis of the situation may lead to the conclusion that the expectation of mutual support and dependency arising from the marriage relationship has continued... [Emphasis added.] [ 99 ] Unlike the cases discussed by Justice Shultes, in this case, the respondent already had entitlement to spousal support on a compensatory basis.

The mutual obligation of support arising from the marriage itself still existed at the time the respondent became disabled. [ 100 ] Applying the Fyfe principles to the present case, I would conclude that there was no evidence prior to the parties’ separation to rebut the presumption of mutuality and interdependence. This was a traditional marriage and there was a strong compensatory support claim.

It is therefore reasonable to expect that each would provide safety nets for the other at least in the period post-separation and prior to trial. [ 101 ] It is a nine year separation but neither party has sought a final resolution until now. At the time of this hearing they had not unraveled their interdependence to borrow language from Fyfe. They had not divided their assets yet and interim spousal support was still payable albeit in arrears.

I therefore have to conclude that the injuries post-separation have not negated the respondent’s entitlement to compensatory support. [ 102 ] It appears that the post-separation alcohol abuse, motor vehicle accident injuries have impacted the respondent’s efforts to become self-sufficient. Her lack of education, lack of work experience and low self-confidence may be linked to the role she played in the marriage. With the passage of time, the mutual obligation of support arising from the marriage wanes and the objective of promoting self-sufficiency within a reasonable time becomes more prominent.

Although in an interdependent marriage there is an expectation of support from one’s former spouse for a period of time, marriage is not to be considered an insurance policy for all future crises in one’s life. [ 103 ] The self-sufficiency factor in the Divorce Act no longer has a predominant position since Moge , but it is still a factor that must be weighed if the court is to equitably divide the consequences of marriage and its breakdown. [ 104 ] When a clean break can occur depends on the facts of each case.

At this stage in the parties’ separation, some expectation that respondent progress toward her own self-sufficiency is reasonable. That could be through part-time employment, disability benefits or

from her personal injury award. For that reason, I would impute income to the respondent at the level of part-time minimum-wage employment. In essence, I am apportioning responsibility for the respondent’s support between herself and her former spouse.

It is not fair to the claimant to expect the respondent to do nothing to promote her self-sufficiency and to provide no explanation for her lack of effort. [ 105 ] The claimant still has an obligation to pay compensatory support over and above that base level income. [ 106 ] I impute income of $10,800 which is about what the respondent might receive from CPP disability benefits after dividing credits with the claimant.

THE CLAIMANT’S GUIDELINE INCOME [ 107 ] The claimant says that it would be unfair to use his actual income at trial because he worked hard to achieve that income with no contribution from the respondent. [ 108 ] In Judd v Judd , 2010 BCSC 153 , Justice Punnett considered whether to rely on post-separation increases in income to determine spousal support.

At paras. 21 and 22 he reviewed a number of authorities and concluded at para. 23 that the resolution of issues of post-separation wage increases is clearly fact- based and that there needs to be a connection between the increase in the payor’s salary and the recipient’s contribution during the marriage. The increase in income can be founded on expertise and seniority that the payor developed during the marriage.

If the recipient was in a supportive traditional role during the marriage, freeing up the time of the payor to develop that expertise, then the post-separation increase in income may be attributable to the marriage.

If an event occurred after separation that benefited the payor and had no relationship to the spouses’ roles, then it might not be attributed to the marriage. [ 109 ] In a long traditional marriage I think it would be hard to find no connection between the marriage and the wage increase. [ 110 ] In Judd , the husband, trained before the marriage but developed his expertise and seniority during the marriage.

The wife subordinated her career to the needs of the family by working part-time, becoming a full-time stay-at-home mother for a number of years, and, perhaps most significantly, moving to and remaining on the Sunshine Coast, for the benefit of their children. Justice Punnett, found that the couple divided their family responsibilities to make a joint investment in one career. [ 111 ] In the present case, the respondent didn’t have a career when the parties got married.

The claimant had already trained in the field of helicopter logging either before the parties married or shortly after and he worked as a helicopter logging manager for the same company throughout the marriage. The respondent stayed home and took care of the children and the home. She did not continue her education or start a career.

At the end of the marriage the claimant had many years managerial experience and a good job and the respondent had a grade 10 education and very limited work experience. [ 112 ] The claimant continued to work at the same job for a few more years after the parties’ separation and then switched companies and received a substantial raise in his salary. Clearly, he drew from his years of experience gained during the marriage to make him an attractive candidate for the new position. The contributions the respondent made are indirect. [ 113 ] The claimant referred to D.B.C. v.

R.M.W. , 2006 ABQB 905 , a decision of the Court of Queen’s Bench of Alberta which contains a review of several authorities dealing with post-separation increases in income. The cases reviewed looked for a direct link between the income increase and the contribution of the spouse. [ 114 ] The way to reconcile the cases is to look at the facts. The sharing of post-separation income increase should not be automatic.

The facts in the case before me are not as strong as the facts in Judd because the wife didn’t have a career to subordinate and didn’t move to advance her husband’s career, but she did put all development of a career on hold as she played a supportive role in the family. [ 115 ] Post-separation, the claimant ‘held the fort’, so to speak, while the respondent fell apart emotionally, drank heavily and was involved in abusive relationships. Her daughter left the respondent’s residence because she couldn’t bear to live in that environment.

I suspect these bad choices had a lot to do with compensatory factors (young age at marriage, limited education, no work experience and low self-confidence) and may have had something to do with the respondent’s personality type. It appears from the limited evidence that I have that this respondent had a complete breakdown when the marriage ended. She then was injured and she developed a chronic pain disorder from her injuries. She sounds like a person who is not resilient and doesn’t adapt to adversity well.

It is not fair to penalize her or consider fault. [ 116 ] Having said that though, if she is not making any effort toward self-sufficiency, it is also not fair that she be rewarded with an increased level of support solely because the claimant continued to work hard and as a result enjoyed some economic success. [ 117 ] I might not come to this conclusion if I have more evidence of what the respondent’s circumstances are. Neither medical report refer to mental health issues or alcoholism. They just refer to chronic pain and this was caused by the post-separation accidents.

The Ministry of Housing did not find the respondent to be disabled and did not award her a disability income. She has not applied for Canada Pension disability benefits because the benefits received would be deducted from her personal injury settlement. [ 118 ] I find it equally unfair however to not acknowledge that the claimant didn’t waver. He kept his job, got the house sold in spite of the respondent’s efforts to thwart him, paid off debt, took his daughter in and parented her through her remaining years of high school and provided a home for their son while he finished university.

The claimant has remained on that steady path for the last nine years. He obtained a new job with a higher income because of his skills and perhaps because he is a responsible, consistent and reliable person. Some of his work experience came during the marriage when the respondent was caring for the home and children but seven years of it came after when he was doing everything on his own. The nine year separation and the claimant’s efforts post-separation could be considered as an intervening event that partially contributed to the increase.

[ 119 ] I don’t intend to penalize the respondent for her adverse reaction to divorce. I believe she is entitled to support but I do not believe she is entitled on these facts to share in the increased income of the claimant. [ 120 ] I find that the fairest guideline income for the claimant is the $84,200 which was his average line 150 income for the last three years of the marriage. If a standard of living is to be shared after a 19 year marriage, I find on these facts that it should be the marital standard of living. Do the Federal Spousal Support Guidelines Apply ? [ 121 ] The claimant says that I should not use the Federal Spousal Support Advisory Guidelines (the “SSAG”).

Section 3.2.6 of the SSAG says: 3.2.6 REVIEW AND VARIATION The primary application of the Advisory Guidelines is to initial determinations of spousal support at the point of separation or divorce , whether through negotiated agreements or court orders. Ideally a truly comprehensive set of guidelines would apply not only to the initial determination of support but also to subsequent reviews and variations over time.

However, these issues have proven the most difficult to reduce to a formula given the uncertainty in the current law concerning the effect of post-separation income changes, remarriage and re-partnering, and subsequent children. In the end, we chose a more modest course, identifying certain situations where the Advisory Guidelines can apply on reviews and variations, including increases in the recipient’s income and decreases in the payor’s income.

We have left others, such as post-separation increases in the payor’s income, re-partnering, remarriage and second families to more discretionary determinations under the evolving framework of current law. The application of the Advisory Guidelines in the context of review and variation is dealt with more extensively in c. 14. (italics added) [ 122 ] I have reviewed c.14 and I conclude that the SSAG can be used on a variation with some caution. The court needs to first make a determination on what a fair income might be before plugging the numbers into the SSAG calculator.

That is where discretion is to be exercised. Once the court either imputes income or selects a different Guideline income for the payor, then I find that the SSAG is still helpful in determining a range of spousal support. [ 123 ] According to c. 14, the cross-over from the With Child formula to the Without Child formula does not alter the range of the duration of support. [ 124 ] I must emphasis thought that this is not a variation case. It is a determination of support at the point of divorce. It is however, an unusual initial determination given that so much time has elapsed.

I have exercised discretion in determining income taking the unusual facts into consideration. I have used the Divorcemate calculator to determine a range and then I will exercise my discretion to determine if I believe the amount is fair given the circumstances of this unusual case. [ 125 ] The range of support using the Divorcemate program (for income of $84,200 and $10,800) is between $1,743 and $2,324.

The duration is still in the range of nine and half to 19 years. [ 126 ] I find that the mid-range is the proper award of spousal support and I order the claimant to pay to the respondent spousal support of $2,000 a month commencing October 1 2015.

The claimant has been underpaying spousal support since the youngest child reached independence but the parties have reached an agreement regarding arrears of supports with which I do not wish to interfere. [ 127 ] Given that the claimant has underpaid spousal support, I order that there will be no variation of this order for five years unless the claimant suffers a significant drop in his income. This will give the respondent five years to get on her feet with employment, education or disability benefits.

After five years, if there is a variation application and she has not done so, she should anticipate a reduction or even a cancelation of her support. COSTS [ 128 ] The issue of costs was not addressed at the hearing. If the parties wish to make submissions as to costs they may do so in writing and have them directed to me at the Vancouver Registry. The claimant’s submission, if he chooses to make one, must be filed and delivered to counsel for the respondent by October 16 th , 2015. The respondent’s reply must be filed and delivered by October 30 th, 2015.

If the claimant intends to file a response it must be filed and delivered by November 6, 2015. “Young J.”