A. v. A. Date:, 2013 BCPC 25

Citation: A. v. A. Date: 20130207 2013 BCPC 0025 s 1225639 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: S.A. APPLICANT AND: M.D.A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. CHEN Appearing on their own behalf: S. A.

Counsel for the Respondent: M. Patton Place of Hearing: Vancouver , B.C. Date of Hearing: May 4, September 5, 6 & 7, 2012 Date of Judgment: February 7, 2013 [ 1 ] The Applicant seeks spousal support from the Respondent and child support for the benefit of her two children, J., now age 21 and J1, age 16. Both J. and J1 are the Applicant’s children from prior relationships. The parties co-habited continuously from at least December 2007 until their separation on the second week of October 2011. The Respondent opposes both applications on the basis that: 1.

He has never been a spouse to the Applicant, as defined under the Family Relations Act and, even if the Court were to find that he was a spouse, that he has no obligation to pay spousal support, 2. He has never been a parent to J. and J1, as defined under the Family Relations Act and, even if the Court were to find that he was a parent to them, that he ought to pay less than the amount required under the Child Support Guidelines. [ 2 ] The Respondent has agreed that J. remains dependent and qualifies as a “child” as defined by the Family Relations Act because of his disability.

Facts [ 3 ] The parties’ relationship began early in 2007. At that time, the Respondent resided in Victoria and the Applicant resided in Vancouver. From February 2007, the Respondent began travelling to Vancouver to spend each weekend with the Applicant in the home she shared with her children. He would usually bring his son M., who suffers from severe autism, on his weekend stays with the Applicant. At that time, J. was 15 and J1 was 9. M. would have been about 7 years old. [ 4 ] By the time the parties separated, J. was 20 years old and J1 was 14. M. is now 12.

J. is autistic but is relatively high- functioning and was able to attain good grades while in school. J1 suffers from Tourette’s Syndrome and has been diagnosed with Attention Hyperactivity Disorder. [ 5 ] The Respondent applied to his employer for a transfer to Vancouver, and in December 2007, moved into the Applicant’s home full-time. The parties separated when the Respondent moved out of the home during the second week of October 2011. [ 6 ] During their cohabitation, the Respondent contributed money towards the household expenses monthly.

Those contributions increased over time from about $1400 per month in 2007 to $1950 by November or December of 2008, to $2100 per month from December 2010 and to $2200 per month from July 2011 until the separation in October 2011. It does appear that the Respondent’s contributions increased as the Applicant’s health deteriorated. [ 7 ] The Respondent did not restrict how the Applicant used the moneys he contributed. They were applied to household expenses generally. [ 8 ] Respondent opened a joint payroll savings account with the Applicant to which he alone contributed.

The Respondent collapsed the joint account after the separation and appropriated all monies in the account. [ 9 ] The Respondent added the Applicant as a dependent spouse, and her children J1 and J. as his dependent children, on the extended medical and dental coverage he had from his employment. [ 10 ] The parties went on a number of vacations together with the children.

Their first vacation together as a family was in the summer of 2007, prior to the Respondent’s transfer to Vancouver. [ 11 ] After the family dog died in 2007, the Respondent chose the new family dog and decided that they would have a Labradoodle instead of the Golden Retriever the boys wanted.

The Respondent paid for half of the purchase price for the dog and half of the dog-care expenses. [ 12 ] The Respondent attended J1’s bar mitzvah and was called up with the Applicant to participate as a parent. [ 13 ] The Respondent and the Applicant both attended counselling sessions with a number of professionals for issues relating to their children. Dr. Joan PInkus, a psychiatrist, provided a letter confirming that the parties attended at her office during 2009 and 2010 to discuss parenting issues relating to J., J1 and M.

Sara White, a behavioural psychologist provided a letter confirming that the Applicant had contacted her to work with M., and that she saw M. at the Applicant’s house where he was spending weekends. Dr. White’s letter states that the Applicant “was involved with giving input on M.’s behavioural plan, obtaining behavioural interventionists, monitoring M.’s program and attending team meetings between August 2008 and May 2010”.

[ 14 ] The Applicant has been undergoing chemotherapy for 2 years since her cancer diagnosis. When she was in the hospital undergoing treatment, the Respondent was the adult in the house keeping the household running. [ 15 ] The Respondent determined who sat where at the dinner table with himself at the head of the table. [ 16 ] During the time that the Respondent was cohabiting with the Applicant , he upgraded his qualifications as a life coach and in green architecture.

He would study in his room in preparation for exams while the Applicant managed the household. [ 17 ] The parties lived together as a family, sharing meals and household duties. The Applicant would do the laundry, cooking and meal preparation while the Respondent would do the yard work and attend to electrical and plumbing issues that might arise.

They would sometimes cook meals together. [ 18 ] J.’s Representation Agreement named the Applicant as his representative and named the Respondent as his Monitor. [ 19 ] The Applicant testified that she and the Respondent presented themselves to the community and to extended family as spouses. [ 20 ] The Respondent testified that he never represented to the community or extended family that they were spouses. The Respondent testified that he had no idea what the role of a monitor was and signed the Representation Agreement simply because the Applicant asked him to.

Apart from the joint payroll savings account, which the Respondent collapsed, the Respondent kept his finances separate from those of the Applicant. The Respondent testified that he never considered the Applicant as his wife and did not consider her to be his spouse as that term is defined in the Family Relations Act . [ 21 ] The Respondent also testified that he never felt he was a parent to either J. or J1, that he never acknowledged to them, to the Applicant, or to the community, that he was their parent and that he never, in fact, co-parented with the Applicant.

Law Relating to the Definition of Spouse and Parent [ 22 ] Under the Family Relations Act ( FRA ), “spouse” is defined in

Section 1 as a person who: “(

a) Is married to another person, (

b) except under Parts 5 and 6, lived with another person in a marriage-like relationship for a period of at least 2 years if the application under this Act is made within one year after they ceased to live together and, for the purposes of this Act, the marriage- like relationship may be between persons of the same gender, (

c) applies for an order under this Act within 2 years of the making of an order, (

i) for dissolution of the person’s marriage, (ii) for judicial separation, (iii) declaring the person’s marriage to be null and void, or (

d) is a former spouse for the purpose of proceedings to enforce or vary an order, [ 23 ] The definition of “parent” in

Section 1 of the FRA includes: “(

a) a guardian or guardian of the person of a child, or (

b) a stepparent of a child if (

i) the stepparent contributed to the support and maintenance of the child for at least one year, and (ii) the proceeding under this Act by or against the stepparent is commenced within one year after the date the stepparent last contributed to the support and maintenance of the child;”

(2) For the purpose of paragraph (

b) of the definition of “parent” in subsection (1), a person is the stepparent of a child if the person and a parent of the child (

a) are or were married, or (

b) lived together in a marriage-like relationship for a period of at least 2 years and, for the purposes of this Act, the marriage- like relationship may be between persons of the same gender.”

[24] In Hryhoruk v. Hryhoruk 1994 109 D.L.R. (4th), our Court of Appeal dealt with the different criteria for determining liabilityfor child support under the FRA compared to the Divorce Act. At paragraph 15, the Court stated: “15. The appellant contends in his factum that he cannot be held liable because he did not stand in the place of a parent to therespondent’s children. That issue was discussed by Mr. Justice Spencer in Grohmann v. Grohmann, (BCSC), [1990] 67 D.L.R. (4th) 597 (BCSC), at pp. 602 – 605.

He concluded that the language of the Divorce Act, 1985 permitted the approach thatthere was no liability unless one stood in the place of a parent. But, in contrast, he concluded that a different test must be applied underthe Family Relations Act. He said, at p. 605: I must now consider the different test contained in the Family Relations Act. It does not speak of terms of quasi-parenthood but imposesa duty of support upon step-parents.. That is quite a different concept from being in the place of a parent. The position of step-parent isone imposed by the simple fact of a second marriage.

Applying that definition, s.2 of the Family Relations Act makes the child support requirements of S.56 applicable to a husband who, likethe plaintiff at bar, contributes to the support and maintenance of the child for not less than a year and has married the child’s mother. The concept of terminability of the relationship remains in the provision that the definition only applies where the proceeding inquestion, as this one has been, is commenced within one year after the step-parent last contributed to the maintenance and support of thechild.

It is on the technical definition of the Family Relations Act that I find the husband here liable to support the wife’s child by her formermarriage. Before assessing the quantum of support, however, I should deal with the wife’s own claim for support. 16. I agree with Mr. Justice Spencer that it is not necessary for liability to attach under the Family Relations Act to show that the step-parent stood in the place of a parent to the step-child. Liability is established on the facts of this case by the marriage and proof ofcontribution to the support and maintenance of the step-child for not less than one year.

The contribution must be significant, not trivial or sporadic, Goodwin v. Pawliw reflex, (1982), (ON CJ), 28 R.F.L. (2nd) 183. But the appellant contends in oralargument, that the contribution required under the Family Relations Act is one which is made necessary because the other spouse has,by reason of the marriage, become dependent. 17. The appellant contends that the provision of a home, payments on the mortgage on that home, and the creation of a joint bankaccount out of which payments are made for the support of the children, are insufficient to amount to a contribution.

Counsel for theappellant relies on a decision of Master Halbert in Cook v. Cook, No. 23833, Victoria Registry, 10 June, 1991 at p.14, and on Pearson v.Pearson, No A823121, Vancouver Registry (S.C.B.C.), 8 May, 1986 at p.7. Those decisions appear to hold that such payments areinsufficient unless accompanied by something else which, in Pearson, was described as a parent-child relationship. I cannot accept thatsubmission. 18. The Family Relations Act, unlike the Divorce Act, does not speak of assuming responsibility as a parent, or of providing a remedyfor a disadvantage arising from the marriage.

It speaks of making a contribution of support and maintenance of a child for not less thanone year. It need not be a full contribution. A partial contribution will suffice. Insofar as Cook and Pearson are understood to sayotherwise, I think they are not good law.” Was the Respondent a Spouse and/or a Parent with Respect to the Applicant and her children?

Is he a “step-parent”? [25] The Respondent testified that, in his mind, he was not in a marriage-like relationship with the Applicant because he kept hisfinances separate, did not consider the Applicant to be his wife and never referred to J. and J1 as his children. The Respondent testifiedthat he and the Applicant were merely a boyfriend and a girlfriend who were co-habiting. [26] How the Respondent now says he felt about his relationship with the Applicant during the period of cohabitation is notdeterminative as to whether they were in a “marriage-like” relationship.

According to the reasoning in Hryhoruk, how the Respondentnow says he felt about his role in regard to J. and J1, is not relevant to the issue of whether he stood in the role of a parent to them, asdefined by the Family Relations Act. [27] The fact that the Respondent kept his finances separate from those of the Applicant is also but one factor to be considered indetermining whether the parties were in a marriage-like relationship.

Other factors to be considered include their cohabitation, divisionand acceptance of family roles and duties, whether they ate their meals together, involvement in the care of the children, participation indecisions affecting the household, participation in family activities, and how the parties presented themselves to the community. [28] The Respondent submits that the facts in the case at bar are similar to those in R.A.G.R. v. J.R. 2002 BCSC 1838 where theDefendant mother of 2 children sought child support from a Plaintiff she had married in 1993 and separated from in 2000.

The Court inR.A.G.R. found that the Plaintiff was not a step-parent within the meaning of either the Divorce Act or the Family Relations Act. Withrespect to the Family Relations Act, I find this decision to be inconsistent with the reasoning of the Court of Appeal in Hryhoruk.

[ 29 ] I also find the facts of R.A.G.R. to be distinguishable from those in the case at bar. In R.A.G.R. , the parties had experienced significant periods of separation during which no claim for child support had ever been advanced. They had entered into two separation agreements, one in 1998 and one in 2000. In both agreements, the parties had expressly agreed that the Plaintiff was not to be considered a parent and that the Defendant would never seek child support against him.

There was no indication in R.A.G.R. as to how much financial support the Plaintiff provided to the family during their marriage and co-habitation except at paragraph 12 where the Court stated: “Although there was some financial provision for the children, it was indirect.

The Plaintiff never did provide any financial support, nor was he requested to do so during any of the several periods of separation.” [ 30 ] There was no mention in R.A.G.R. of regular significant monthly contributions towards the household expenses during the entirety of the relationship as took place in the case at bar. [ 31 ] I find the fact that the Respondent put the Applicant and her children on his extended medical and dental coverage from his employment, to be significant.

He named the Applicant on the plan as his spouse and named the children as his step-children. [ 32 ] If the true facts were as the Respondent now deposes, then the Respondent would have been perpetrating a fraud on the insurer. If the true facts were those reflected by his actions at the time, then his evidence to the court would be false. Neither

interpretation provides the Court any comfort with respect to the Respondent’s credibility. [ 33 ] In my view, the evidence of the Applicant was more convincing and more credible than that of the Respondent. The Respondent seemed unsure of his evidence during the Applicant’s cross-examination of him, answering many times with “I don’t know” or “I don’t recall” or “I don’t remember”. [ 34 ] I am also troubled by the fact that the Respondent would liquidate and appropriate the jointly-owned funds held in the payroll savings account he opened with the Applicant.

While he testified that there was not a lot of money in that account (the Applicant had no information as to how much money was in the account), I find that this conduct displays an absence of good faith and honesty on the part of the Respondent. [ 35 ] Where the evidence of the Respondent is inconsistent with that of the Applicant, I prefer the evidence of the Applicant. [ 36 ] After considering all of the circumstances, I find that the overwhelming preponderance of the evidence shows that these parties were in a marriage-like relationship from at least December 2007 until their separation in October 2011.

Accordingly, I find that the Respondent qualifies as a “spouse” as that term is defined in the Family Relations Act . [ 37 ] Accordingly, with respect to the question of whether or not the Respondent is a “parent” to J. and J1, the sole issue remaining to be determined is whether the Respondent contributed to their maintenance and support for over one year, while he was living in their home with their mother. [ 38 ] The contributions made by the Respondent to the Applicant commenced almost immediately upon the commencement of their cohabitation.

They increased significantly over the years from around $1400 per month to $2200 per month. The Respondent testified that these payments were not for the support of the children but merely for his share of certain specified expenses that were attributable to his use of the family resources. He suggested in his evidence that the amount of square footage he occupied in the house was a factor in the calculation. I find this evidence to be implausible. The Respondent admitted that he did not restrict how the money he contributed was to be spent.

I find that the contributions he made went towards the maintenance of the household generally. That would include the maintenance and support of the Applicant’s children. [ 39 ] As stated by our Court of Appeal in Hryhoruk , the contribution must be significant, not trivial or sporadic and it need not be a full contribution. A partial contribution will suffice.

I find that the contributions made by the Respondent to the household and towards the maintenance of the children, during his relationship with the Applicant, and throughout their entire period of cohabitation, to be regular, consistent and significant. [ 40 ] Accordingly, as a result of the parties having lived together in a marriage-like, common-law, relationship for over 2 years, and of the Respondent’s contributions to the maintenance and support of the Applicant’s children for not less than one year, the Respondent also qualifies as a “parent” to J. and J1 as defined in the Act . [ 41 ] I also find the Respondent to be a “step-parent” as defined in the Act , as he and the Applicant had been in a marriage-like relationship for over two years.

Child Support [ 42 ] The Applicant seeks child support and spousal support. Because of her children’s special needs, the Applicant also seeks contribution from the Respondent for Special or Extraordinary expenses. [ 43 ] According to the Respondent’s evidence, during the period of his cohabitation with the Applicant, he was earning between $77,000 and $79,000 per annum. Approximately two months after the separation, the Applicant changed jobs and is now employed as a project manager for a company earning a salary of $110,000 per annum.

[ 44 ] The Respondent has a son M., now age 12, who lives with his ex-wife. M. is profoundly autistic and cognitively low- functioning. According to the Respondent’s evidence, while he was living with the Applicant, he was paying his ex-wife $3200 in support for M. Since the beginning of this year, his payments, by agreement, have been reduced to $2100 per month. [ 45 ] The Applicant was diagnosed with breast cancer in January 2009. She began a program of chemotherapy during 2009. She has also had surgery for her cancer.

The treatment, the surgery and the cancer have compromised her ability to work and earn income. She had been a self-employed instructor in homeopathy, nutrition, organic skin care and pilates, working out of community centres. Her total income as shown in her Notices of Assessment were: 2008: $39,766 2009: $27,937 2010: $17,892 [ 46 ] Her gross professional income was $75,744 in 2009 and $55,910 in 2010. She has recently been diagnosed with a return of her cancer and more surgery was about to be scheduled after the end of the trial and may already have taken place.

The Applicant is concerned that she may not be able to continue to work as a result of her cancer, the surgeries and her cancer treatment. [ 47 ] The Applicant’s cancer has been aggressive. The Applicant has undergone 18 rounds of regular chemotherapy and 58 rounds of naturopathic chemotherapy over the two years following her diagnosis. She had also undergone four surgeries; a partial mastectomy in February 2009, insertion of a port, or catheter to the heart for chemotherapy in March 2009, removal of the port and catheter in the spring of 2011 and a partial reconstruction in February 2012.

She was scheduled to have a full mastectomy and an axillary dissection in September but cancelled it because of this trial. By the end of the trial, the cancer had returned and the Applicant was facing more surgery. [ 48 ] Before and during their cohabitation, the Applicant was working as a teacher of courses in homeopathy, nutrition, organic skin care and pilates.

Her employment income as shown on line 150 of her tax returns and Notices of Assessment have dropped for the past few years as follows: 2008: $39,766 2009: $27,937 2010: $17,892 2011: $21,440 [ 49 ] Her gross business income dropped from $75,744 in 2009 to $55,910 in 2010, but increased to $63,854 in 2011. [ 50 ] The Applicant’s financial statement declares her current income to be $23,892, including $9,983 income from employment, $6000 child support from J1’s father and $7,909 disability income assistance. [ 51 ] The Applicant testified that she has not worked since the recurrence of her cancer was diagnosed in August, choosing to focus on her own health.

She has major surgery scheduled which may have already occurred by this time. [ 52 ] Dr. Donna Dryer, a psychiatrist with the B.C. Cancer Agency who has been working with both the Applicant and her son J. since November 2011, testified for the Applicant. She had diagnosed J. with general anxiety and obsessive-compulsive disorder as well as autism. She had diagnosed the Applicant with recurring post-traumatic stress syndrome (ptsd).

In her opinion, the ptsd has caused the Applicant cognitive dysfunction creating attention deficits and short-term memory loss in addition to impairing her executive functions in the areas of planning, delegating, scheduling, problem solving and prioritizing. According to Dr. Dryer, the Applicant’s prognosis is guarded and her ability to work has been compromised. [ 53 ] The Respondent submitted that the Court should give little weight to Dr. Dryer’s evidence. However, Dr. Dryer impressed me as a highly qualified professional.

I found her evidence to be persuasive. [ 54 ] I find that the Applicant’s future income is uncertain due to her failing health, her impending surgery and uncertain recovery time. [ 55 ] J.’s special needs have required therapies and treatments. In the past, these have included sessions with psychiatrists, osteopaths and special education assistants. The Applicant has cancelled some of these treatments because she cannot afford them. J.’s doctor has recommended cognitive-behavioural therapy to treat his obsessive-compulsive disorder but the Applicant cannot afford that either.

J. has also been prescribed a drug, Vyvanse, for his ADH disorder. Vyvanse is not covered by MSP and costs $4 per pill (2 pills per day). [ 56 ] J1 has also been prescribed Vyvanse. He has been placed in a private school because of racial bullying at school. The Applicant has been able to obtain a subsidy for the private school to reduce the cost to approximately $2000 per year. [ 57 ] J. receives government assistance from B.C. Benefits in the amount of $800 per month or $9,600 per year. He also has a part- time job from which he earns another $300 to $400 per month. The Applicant testified that most of the B.C.

Benefits are used to pay for J.’s therapies. J. is now enrolled in photography school and is ambivalent about continuing with his part-time job.

[58] J1’s father adopted J. after his marriage to the Applicant. He contributes maintenance of $500 per month or $6000 per yeartowards the support of both children. J.’s father paid child support for J. until the Applicant married J1’s father. The Applicant has notpursued J1’s father, her former husband for more child support. She has testified that J1’s father works at London Drugs earningapproximately $20,000 per year. [59] In U.V.H. v. M.W.H. 2008 BCCA 177 , [2008] B.C.J. No. 717, the Court of Appeal considered an appeal by a step-father of two children from an order regarding child support.

The step-father had co-habited with the mother of two children from a priormarriage for approximately 5 years. The appeal was allowed and the amount of support payable by the step-father was reduced. TheCourt held that primary responsibility for support was that of the natural father and that the mother could not “give the father a pass” infavour of pursuing the step-father for all the support the children required. [60] In the case at bar, the support obligations of J.’s natural father were extinguished when J. was adopted by Mr. K., the father ofJ1. The only evidence as to Mr.

K.’s means is the evidence of the Applicant that he works for London Drugs, earning approximately$20,000 per year and does not own a car. Since Mr. K.’s contributions of support of $500 are in excess of the table amount under theGuidelines ($323), there is no concern with giving Mr.

K. a “pass” if support were to be ordered for the Respondent. [61] Newbury, JA on behalf of the Court of Appeal in U.V.H. emphasized that the Guidelines are based on a “children-first”perspective, and set out the principles to be followed when considering a fair standard of support from a step-parent at paragraph 41: “Given the “children-first” perspective of the Guidelines (see D.B.S. supra, at para. 43), primacy should be given to the children’sstandard of living.

Where for example the stepparent provided a standard to the children during the period of cohabitation that wasmaterially higher than that which the natural parents can provide by means of their Guidelines amounts, a court might find itappropriate to make an order against the stepparent that is designed to provide the higher standard, or something approximating it, “ontop of” the other parents’ support.

However, where the piling on of Guidelines amounts would result in a standard beyond one that isreasonable in the context of the standard the children have previously enjoyed, such a ‘windfall’ or “wealth transfer” (see Francis v.Baker, supra, at para. 41) is unlikely to be “appropriate”. At the other end of the spectrum, where the three (or more) parents’Guidelines “contributions” together are needed to provide the children with a reasonable standard of living, then both the step-parentand the non-custodial parent(

s) may well be required to pay full Guidelines amounts. Or, where one of the natural or adoptive parentsis not present or is unable to pay any support, the stepparent may well have to pay his or her full table amount. The Legislature has leftit to the judgement of trial and chambers judges in the first instance to fashion orders that are “appropriate” under s.5. At the sametime the Guidelines system is not thereby jettisoned in favour of a ‘wide open’ discretion.

The inquiry must, like the Guidelinesthemselves, focus on the children and their needs.” [62] In the case at bar, I find that the children’s standard of living has deteriorated greatly since the parties’ separation, not onlybecause of the loss of the Respondent’s support, but also because of the Applicant’s loss of income due to her failing health. [63] Even after considering the maintenance paid by Mr. K., J.’s B.C. Benefits and the maintenance the Respondent pays for M.,there still remains a significant disparity between the parties in terms of their means relative to their needs.

In my view, ordering theRespondent to pay the full table amount under the Guidelines would not result in a “windfall” for the Applicant nor a “wealth transfer”and is necessary to ensure a reasonable standard of living for the children. Accordingly, I order that the Respondent pay the sum of $1,606.00 per month for the maintenance and support of the children, J. and J1.

These payments will be on the 1st day of each month, retroactive to May 1st, 2012, the month the trial started and will continue for so long as the children remain children as defined under theFamily Relations Act. [64] I am not prepared at this point to order special or extraordinary expenses to be paid by the Respondent because of the incomeavailable from J.’s B.C. Benefits and employment. Spousal Support [65] The Act sets out the basis of spousal support in

Section 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 andmaintain 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 supportthemselves; (

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.” [66] Section 93(4) of the Act sets out the criteria to be considered in an application for spousal support:

“If a spouse will be living separate and apart from the spouse against whom the application is made, the court may, as it considers appropriate, adjust the amount of its order under subsection (1)(

b) to take into account the needs, means, capacities and economic circumstances of each spouse, including the following: (

a) The effect on the earning capacity of each spouse arising from responsibilities assumed by each spouse during cohabitation; (

b) Any other source of support and maintenance for the applicant spouse; (

c) The desirability of the applicant spouse having special assistance to achieve financial independence from the spouse against whom the application is made; (

d) The obligation of the spouse against whom the application is made to support another person; (

e) The capacity and reasonable prospects of a spouse obtaining education or training.” [ 67 ] The Applicant’s claim for spousal support is clearly based on her current economic circumstances including her needs as a mother of two children with special needs, and her current means and capacity to earn income. [ 68 ] The Applicant was quite resourceful and successful in her self-employed teaching businesses for most of the period of cohabitation. I find that her income began to deteriorate towards the end of the relationship after the onset of her cancer and the effect that the illness had on her ability to work.

I find, with the new diagnosis of the recurrence of the cancer and the more aggressive treatment that will require, that there has been a more precipitous decline in her ability to earn income. [ 69 ] The Respondent has submitted that the Applicant’s most recent diagnosis should not be considered by the Court as it has occurred some 10 months after the parties’ separation. No cases were provided to support this position. [ 70 ] The seminal case of Bracklow v Bracklow , [1999] 1 S.C.R. 240 considered non-compensatory spousal support in the case of a 7-year relationship, including 3 years of marriage.

The Applicant wife had become disabled and unable to work at the time of the separation. The Court found that there was nothing in the marriage or relationship which contributed to the Applicant wife’s inability to work and become self-sufficient. Despite that the Supreme Court of Canada emphasized that in a marriage, spouses may owe each other a mutual duty of support that may survive divorce and the end of the relationship.

The Court found that, in some circumstances, the law may require that a healthy party continue to support a disabled former spouse, absent contractual or compensatory entitlement, “because justice and considerations of fairness may demand no less”. [ 71 ] Similar approaches applying the principles in Bracklow were taken by our own Supreme Court in Firth v. Firth , 2012 BCSC 857 , where the Applicant wife sought spousal support 8 years after the separation. The parties had been in a relationship for 10 years.

The application referenced medical conditions restricting the Applicant wife’s ability to pursue employment. The Court found that it was possible the Applicant wife’s needs due to medical disability arose entirely post-separation. [ 72 ] The Court in Firth considered the case of Skoreyko v. Skoreyko , 2002 BCSC 1042 , aff’ed 2004 BCCA 554 . In Skoreyko , the parties had been married for 15 years. Five years after separation, the plaintiff lost most of her sight. Eight years after separation, a small lump sum was paid to her by consent on the basis that her ability to remain employed was uncertain.

Nine years after separation the Plaintiff applied for support on the basis she was totally unable to work and reliant solely on disability benefits.

Lowry, J. awarded spousal support of $400 per month based on a non-compensatory mode of support. [ 73 ] At paragraphs 12 and 13 of Skoreyko , Lowry J. stated his reasons as follows: “[12] What emerges is that the governing legislation, in this instance s. 15.2 of the Divorce Act ... requires that an inquiry be undertaken at the time of the application to determine what, if any, amount of spousal maintenance is required to meet the statutory objectives, while recognizing that no time limits are prescribed and that spouses may have an obligation to contribute to the needs of their former partners where they have the ability to do so.

The courts can be seen to be increasingly willing to order that disabled spouses receive some maintenance rather than subscribe to having the consequences of a serious disability be borne entirely by the state. The quantum to be awarded will be determined by considering the statutory factors in light of the circumstances prevailing to strike a balance that best achieves justice in each particular case. [13] In the context of this case, the primary objective to be considered must be relieving (the plaintiff) from the economic hardship arising from the breakdown of the marriage (s.15.2(1)(d)).

The concept is non-compensational. It is a matter of relieving her from the loss of the intra-spousal support she enjoyed prior to the end of the marriage.

The factors to be considered are the condition, means, needs, and other circumstances of both [the plaintiff and the defendant], as well as the period of their cohabitation and the functions each performed during the marriage (s.15.2(4)).” [ 74 ] While the Court in Firth noted that the award in Skoreyko seemed to be at the higher end of the reasonable range, it also found that this was reasonable under the type of fact-driven analysis required in such situations. The Court awarded Ms.

Firth the sum of $10,000.00 as lump sum spousal support. [ 75 ] In the case at bar, we have a much shorter relationship than in the cases cited above, and a common-law relationship without marriage. Nonetheless, I take these cases I have cited for the authority that Ms. A.’s current medical condition is relevant and must be considered, notwithstanding that the most recent diagnosis occurred some 10 months after the separation.

[ 76 ] Ms. A.’s current medical condition, while not encouraging, is still unsettled. I accept that her earning ability has been compromised and that she has become increasingly dependent on government assistance. She has been resourceful in the past. She also has the ability to earn an additional $600 per month by renting out one of the rooms in her house. [ 77 ] Considering all of the current known circumstances of both Mr. A. and Ms. A. and the length of their relationship, I find the appropriate amount of spousal support to be $250.00 per month.

That will also be retroactive to the date of the filing of this application and will be payable on the first day of each month commencing May 1 st , 2012. _______________________ P. Chen Provincial Court Judge