Foster v. Bell, 2017 BCSC 1821

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Foster v. Bell, 2017 BCSC 1821 Date: 20170928 Docket: E43943 Registry: New Westminster Between: Carolyn Joan Foster Claimant And Russell Charles Bell Respondent Before: Master Keighley Oral Reasons for Judgment In Chambers Counsel for the Claimant: S.J. Zukerman Counsel for the Respondent: M.J. Long Place and Date of Hearing: New Westminster, B.C. September 28, 2017 Place and Date of Judgment: New Westminster, B.C.

September 28, 2017 [ 1 ] THE COURT: I reserve the right to edit these reasons for judgment, brief as they will be, for clarity, style, and grammar, but I can assure that parties that any changes that I make will be editorial in nature and will not affect the substance of my decision. [ 2 ] This is a family law case. Before me today are several applications brought by the claimant, Ms. Foster. I am obliged to counsel for focusing their efforts and energy on the issue of interim spousal support, in view of the time we had for the hearing of this matter today.

I indicated that I did not feel that I could do the balance of the notice of application justice given the time restraints I had imposed upon counsel. I will deal with paragraph 1 of the notice of application. The balance of it will be adjourned generally. [ 3 ] The parties had, in temporal terms, a fairly curious relationship. It appears that they first got together in 1992 and they met through a mutual friend and began living together in 1994. They had separations. Their relationship was the subject of prior court proceedings which were resolved.

They reconciled and resumed cohabitation, only to separate again in 2013. [ 4 ] They are both getting on in years. The claimant is now 58 years of age and the respondent is 72. The plaintiff has some physical challenges. She suffers from muscular dystrophy, depression, and anxiety. Her particular form of muscular dystrophy is known as oculopharyngeal muscular dystrophy, and apparently affects her throat as well as her eyes, so she has some vision disruption and also is wont to choke from time to time when it affects her throat.

She says: My form of muscular dystrophy affects not only my ability to swallow, but also negatively affects my eye sight and causes my muscles to be weak. As a result, daily tasks such as lifting, sitting for long periods of time, or staring at a computer screen are incredibly difficult and sometimes near impossible for me. [ 5 ] She has worked at various jobs in her life. Most recently she worked for a time as a legal assistant, having taken a course sponsored by the Canada Revenue Agency, but was unable to maintain the pace of that employment, given her relative lack of experience.

She faces challenges both with respect to her age and with respect to her physical condition in both maintaining and even searching for employment, she says. Her income consists of EI and other minimal amounts. [ 6 ] As for the respondent’s circumstances, he is 72 years of age, as I indicated. He is self-employed as a log scaler. Mr. Long indicates that the respondent has been partly retired, at least, for some time now and intends to progressively become more so, due in part to the physical demands of a scaler's job. His income is a little difficult to determine at this point.

His income, it appears from his filings, has been reducing in the last several years, and that is consistent with what he says about his intention to continue to cease to work on a full-time basis. [ 7 ] But on an interim support application, I am not obliged to consider only his income, I can take into account his means. His means are significant. He has properties and other assets well in excess of $3 million, and this appears to be borne out by his Form 8

financial statement with respect to his real property holdings. [ 8 ] The trial of this matter is set to begin in May of next year, so any order that I make will be of relatively short duration but will no doubt, as I suggested to counsel, be of some significant assistance to the claimant in the intervening period until trial. [ 9 ] I am satisfied that the respondent has the resources, and by that I mean the means, to contribute the sum of $1,500 per month towards Ms.

Foster's support, and I am going to order him to pay spousal support in that amount on the first day of each and every month commencing October 1, 2017, continuing until further order of the court. That order, made without a great deal of precision, will be not only interim but also without prejudice, but I intend this order to see the parties through to trial in the event that the trial commences in May of 2018 as scheduled. [ 10 ] MR.

ZUKERMAN: Your Honour, I just want to point out, the notice of application was brought in July of this year and it was set for hearing in August and we got bumped in August, to get heard, to today's date. [ 11 ] THE COURT: Yes. [ 12 ] MR. ZUKERMAN: And also Mr. Bell, one of the reasons we got bumped, in addition to time shortages, was the night before, at 11 o'clock, the hearing of that, Mr. Bell delivered a responding affidavit and a financial statement in the first instance, which delayed matters. [ 13 ] THE COURT: Yes. [ 14 ] MR.

ZUKERMAN: So I wonder whether you might commence this from September 1st rather than from October 1st, given that the application -- or from -- [ 15 ] THE COURT: No, the order is interim and without prejudice, and without prejudice, of course, with respect to any claim that Ms. Foster makes or continues to make with respect to retroactive support. [ 16 ] Now, what about costs? [ 17 ] MR. ZUKERMAN: It seems to me that Ms. Foster had substantial success and ought to be entitled to her costs of today.

I ask -- I would ask, rather -- so we don't have to go to the expense of a registrar's hearing to fix them, that they be fixed at $2,000, which is costs for a full day plus GST, PST, and $60 for the notice of motion. So $2,060 plus tax is what I would be asking it be set for. [ 18 ] THE COURT: Okay. Mr. Long, what do you say about costs? [ 19 ] MR.

LONG: Well, I would just say that it should not be forthwith because I don't believe my client will have the -- the ability to pay a cost award forthwith, and it would be better dealt with as -- as part of a lump sum after the final order is -- is made after the trial. [ 20 ] THE COURT: Okay. Thank you. [ 21 ] Ms. Foster will have her costs of today's appearance for a full day of hearing. At least counsel were obliged to wait around for a full day to have the matter resolved. I will assess those costs, pursuant to the

schedule to the Supreme Court Family Rules, at $2,000 plus 60 for the filing of the application, for a total of $2,060. Those costs are payable forthwith and in any event of the cause. [ 22 ] MR. ZUKERMAN: Plus GST and PST? [ 23 ] THE COURT: Plus PST and GST. Thanks, yes. And are payable forthwith, irrespective of the cause. “Master Keighley”