X v. Y, 2015 BCSC 1064

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: X v. Y, 2015 BCSC 1064 Date: 20150622 Docket: E44290 Registry: New Westminster Between: X Claimant And Y Respondent Before: The Honourable Mr. Justice J. Sigurdson Corrected Judgment: The signature line of the judgment was corrected on June 30, 2015 Supplemental Reasons for Judgment The Claimant X: Appearing in person on his own behalf Counsel for the Respondent Y: Brennan J. Clarkson Place and Dates of Trial: New Westminster, B.C.

November 3-7, December 1, 18, 19, 2014, and January 22 and 23, 2015 Written Submissions from the Claimant: March 20, 2015, April 9, 2015, April 10, 2015, May 8, 2015, May 15, 2015 and May 25, 2015 Written Submissions from the Respondent: March 18, 2015 and April 15, 2015 Place and Date of Supplemental Judgment: New Westminster, B.C. June 22, 2015 [ 1 ] In my reasons for judgment dated March 5, 2015 [2015 BCSC 336] I invited the parties to make further submissions with respect to the order I should make as to costs. [ 2 ] I then received a written submission from X on March 20, 2015.

Much of what he wrote was, I found, rearguing points he had earlier argued at trial. However, his submission gave me concern that I may not have properly understood his claim for spousal support, and, as the order had not been entered, I gave him and Mr.

Clarkson, counsel for Y, a further opportunity to make submissions on that point as well as the issue of costs. [ 3 ] I received a number of submissions from both parties, the final submission I received from X on May 25, 2015. [ 4 ] I will discuss the issues of spousal support, child support and then costs and any additional matters that I think should be dealt with. Spousal Support [ 5 ] In my earlier reasons for judgment I noted that X had made a claim for spousal support.

Initially in his argument he stated that he was reluctant to make a claim for spousal support, and he described that he was seeking spousal support for a year or two so that he could take two ten-week courses to retrain. However, based on what he told me in his submissions later that morning, I wrote at para. 100: Although X initially purported to make a claim for spousal support, based on X’s statements as to his job and the income he will earn, it is apparent that there is no basis for spousal support.

X now earns a similar amount to Y and he anticipates that he soon will be earning a greater amount than the respondent. As such the claim by X for spousal support for a period of time for re-training, if it was in fact still advanced, is dismissed.

[6] In terms of what I understood to be his employment situation I wrote at para. 8: Although during his evidence at trial his work plans were unclear, during submissions on January 23, 2015 he explained to the Court thathe had a job and would be making deliveries to non-government liquor stores. The job involves driving a truck and operating a forklift.He was starting on February 1 and will earn $56,000 per annum. The work will be mostly nights starting from 8 pm which allows him,he says, to be home with the children during the day. X anticipates that he will earn up to $72,000 within 3 to 4 years.

He is required topass an air-brake course and a driving course, something he says he is easily capable of doing. [7] However, based on what X wrote to me following my reasons for judgment, it appears that those representations, if Iunderstood them correctly, are from X’s perspective not correct.

He represents now that the job as a delivery person was conditionalupon him taking the training course and having spousal support to do that and his representation to me now is that he does not have thejob at the present time that I understood he had. [8] The parties’ positions at this point on the issue of spousal support claimed by X are as follows. [9] X seeks spousal support for a relatively short period.

He says that he sought it to cover the time in the Class 1 driving school.As to the appropriate amount, he submitted that if the parties’ roles were reversed the amount would be $500 per month over 3 years, andI take that to be his current claim. [10] Y’s position is that based on the representations by X during the closing submissions at trial that his employment was notconditional, his income should remain imputed at $52,000 and there should be no spousal support.

As I understood it, the submission ofY at trial was that if I ordered spousal support, it should be in the range of $89 to $119 per month for a period of a year. [11] I will now discuss the evidence in support of the claim for spousal support and whether I should revisit the issue, and if I do,whether I should award spousal support, and if so, in what amount and for what duration. [12] The relevant factors to consider in this claim for spousal support are set out in the Divorce Act. 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse tosecure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonablefor the support of the other spouse. …

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition,means, needs and other circumstances of each spouse, including o (

a) the length of time the spouses cohabited; o (

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

c) any order, agreement or arrangement relating to support of either spouse. …

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should o (

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

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; o (

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

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [13] In Chutter v. Chutter, 2008 BCCA 507, the Court of Appeal outlined that a spousal support order can be made on acompensatory or non-compensatory basis (as well as on a contractual basis).

Rowles J.A. said: [47] Based on the statutory provisions and the case authorities, the Supreme Court of Canada has identified three grounds for entitlementto 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 (Bracklow v.

Bracklow, (SCC), [1999] 1 S.C.R. 420 at paras. 15, 41-42, 44 R.F.L. (4th) 1). [48] The claim for spousal support in this case was advanced on compensatory and non-compensatory support principles. [49] Although the compensatory and non-compensatory grounds for spousal support are animated by different models of marriage, thecase authorities hold that there is no single basis of support or objective under the Divorce Act that supersedes the other, and that manyclaims involve aspects of both compensatory and non-compensatory principles (Bracklow, at para. 27; Moge, at 852).

A court is notcalled upon to decide on one basis for support to the exclusion of the other but rather to “[apply] the relevant factors and strik[e] thebalance that best achieves justice in the particular case” (Bracklow, at para. 32). Moreover, the doctrine of equitable sharing is theoverarching principle that must be borne in mind (Moge, at 864). [14] Rowles J.A. described compensatory support:

[50] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage orthe conferral of an economic advantage upon the other spouse.

The compensatory support principles are rooted in the “independent”model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receive compensation forlosses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, at paras. 24, 41).The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and householdresponsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, atpara. 39).

In Moge, the Supreme Court of Canada observed, at 867-868: The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. Thisgenerally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement whichjeopardizes her ability to ensure her own income security and independent economic well-being.

In such situations, spousal support maybe a way to compensate such economic disadvantage. [51] In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown,compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’sefforts.

As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdownunderlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse whomakes such sacrifices and the economic advantages conferred upon the other spouse” (emphasis added). [52] The Court in Moge discussed the relevance of the parties’ standards of living in the context of compensatory support at 870: Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of livingenjoyed during the marriage, this standard is far from irrelevant to support entitlement….

As marriage should be regarded as a jointendeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equalstandards of living upon its dissolution. [15] She also described non-compensatory support: [54] Where compensatory principles do not apply, need alone may be sufficient to ground a claim for spousal support (Bracklow, atpara. 43). Non-compensatory support is grounded in the “social obligation model” of marriage, in which marriage is seen as aninterdependent union.

It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of thedisadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims tonarrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the “meansand needs” approach to spousal support. [55] The concept of “needs” in the context of non-compensatory spousal support goes beyond basic necessities of life and variesaccording to the circumstances of the parties.

As stated by Finch J.A. (as he then was) in Myers v. Myers (1995), (BCCA), 17 R.F.L. (4th) 298, 65 B.C.A.C. 226, at para. 10: “Need” or “needs” are not absolute quantities. They may vary according to the circumstances of the parties and the family unit as awhole. “Need” does not end when the spouse seeking support achieves a subsistence level of income or any level of income abovesubsistence. “Needs” is a flexible concept and is one of several considerations which a trial judge must take into account in decidingwhether any order for spousal support is warranted. [56] The Ontario Court of Appeal in Allaire v.

Allaire (2003), (ON CA), 170 O.A.C. 72, 35 R.F.L. (5th) 256, heldthat self-sufficiency, a spousal support objective primarily related to non-compensatory support (Bracklow, at paras. 41-42), was arelative concept informed by the standard of living previously enjoyed by the parties: [21] … self-sufficiency is not a free-standing concept. It must be seen in the context of the standard of living previously enjoyed by theparties. Where, as here, the economic consequences of the marital relationship were to permanently reduce Ms. Allaire’s income, it isinappropriate to consider Ms.

Allaire’s annual income of $68,000 as “sufficient” without considering whether Mr. Allaire can financiallyassist her to live a lifestyle closer to what they shared as a couple. [57] In Yemchuk v. Yemchuk, 2005 BCCA 406 at paras. 41, 48-49, 16 R.F.L. (6th) 430, Prowse J.A. referred to Myers and further heldthat in the context of a long-term marriage involving a sharing of resources, the concept of “need” should take into account the relativestandards of living of the spouses following the marriage breakdown.

In Yemchuk, the husband had appealed the decision of the trialjudge dismissing his claim for spousal support on the basis that he had not established any need. While Prowse J.A. found that thehusband was entitled to spousal support on compensatory grounds, she also went on to state that the trial judge’s treatment of thehusband’s need for support had been “unduly restrictive”: [41] I am also satisfied that the trial judge erred in viewing Mr. Yemchuk’s “need” for support from too narrow a perspective. He treated“need” as solely a question of whether Mr.

Yemchuk could meet his stated expenses with the income available to him. After attributing$800-$1,000 per month to Mr. Yemchuk, the trial judge found that Mr. Yemchuk could meet his expenses and, therefore, was notentitled to support. [16] I have concluded that it is just in the circumstances to revisit my reasons for judgment and the claim for spousal support.

Ratherthan basing the decision on my understanding of X’s representations during argument, I will revisit the issue and decide the case on thebasis of the evidence that I heard at trial. [17] The claim for entitlement to spousal support is really done on the basis of compensatory and non-compensatory support. [18] While the children were young and before they were both in school, the understanding between the parties was that the fatherwould stay at home and the mother, apart from time taken off for maternity leave, would go to work.

The father was apparently workingon his documentary while at home and this continued.

[ 19 ] I think that the father has demonstrated that there was some sacrifice made by him in terms of forgoing future prospects of financial success. I also think that comparing the needs and means of the parties shows that in addition there is a basis for spousal support on a non-compensatory basis.

Taken together there is entitlement to some spousal support on both a compensatory and non- compensatory basis. [ 20 ] However, the respondent’s circumstances and the parties’ lifestyle while together are also modest and the claimant’s income- earning capability, as I will discuss, is more robust than he presently suggests. [ 21 ] As the claimant X apparently does not have the job that I thought he had following the trial, and as such it may not be appropriate to impute the amount of income to him that I did largely based on that job, I should review briefly the evidence of his income and expenses at trial.

His financial statement filed at trial showed income of $9,262 and expenses of over $24,000 with rent as part of those expenses of $1,350 per month. [ 22 ] The evidence led by the claimant at trial about his income-earning ability and attempts to find work was not very clear. He is an intelligent man, well-spoken and apparently a good writer. Although he worked on documentaries for many years, his ability to earn income in that field is at best unclear. His health is presently good.

He had worked part-time at several liquor stores and in his affidavit evidence in the Provincial Court proceeding has described his expectation to work as a cashier and warehouse worker but apparently he did not. He also stated he expected a full-time position in a rental assistance program.

In August 2014 he was required to produce his job applications and although he produced about 19 applications, he said he only produced the ones where he got interviews and not simply his applications, which he said were considerably more. [ 23 ] The respondent suggests that an adverse inference be drawn from X’s failure to produce all of his applications. I decline to do so as I accept that he produced what he understood was his obligation. [ 24 ] During the trial, before X’s submissions concerning his apparent new job, the respondent’s counsel submitted that I should impute income of $43,680 per annum to him.

At trial, based on the job I understood that he had and the evidence at trial, I imputed income of $52,000. The income of $43,680 that the respondent sought to impute is based on full-time work at the $21 he expected to make per hour in the fall of 2013. [ 25 ] The claimant in his submission now states that he has three years at BC Liquor Stores, is first on seasonal on-call, then regular on-call, and has completed the Air Brake test.

His recent comment is to the effect that with spousal support he could complete the 10-12 week Class 1 driving course and test and after a three-month probationary period he could start at $56,000 and earn up to $72,000 in six years.

The respondent’s counsel points out that X has offered no excuse for not taking the course, that he has not stated when he might take the course or start the job, and that all his submissions amount to are bare assertions that are contrary to his submissions at trial that he would soon be starting a job at $56,000. [ 26 ] In the circumstances, given that X’s representation to the Court during submissions apparently did not come to fruition, for whatever reason, it is in my view appropriate to revisit the question of spousal support and the income that I impute to X.

I do so based on the evidence that I heard at trial. I conclude that given my assessment of X, his apparent abilities, his expectations and the absence of a proper explanation from him why the jobs he has expected have not come through, I find that it is reasonable to impute income to him of $40,000 per annum for the year 2015. I expect that income will shortly increase. [ 27 ] There was a suggestion by X at trial that if he could access his work on the computer that is now in the possession of Y, it would be of value to him.

The parties were, I believe, in agreement with an order being made that at X’s expense the computer in the possession of Y can be examined by a third party agreeable to both parties and any files belonging to X may be copied and delivered to him. That provision in a form agreeable to both parties may be put in the formal order of the Court when it is submitted to me for signature and entry. [ 28 ] I find that in the circumstances X has established a modest claim for spousal support and I make a time-limited order in that respect.

On the basis that the respondent’s annual income is $55,137 and the claimant’s imputed annual income is $40,000, I direct that the respondent pay the claimant the sum of $250 per month for three years commencing July 1, 2015, after which time spousal support shall cease. Child Support [ 29 ] I received further submissions on the question of child support from the respondent.

I also received submissions from the claimant which although unclear raise issues related to retraoctive child support and the child tax benefit. [ 30 ] I direct that child support is payable in accordance with the order that I have made as to the living arrangements for the children. [ 31 ] The starting point under s. 9(

a) of the Federal Child Support Guidelines is the claimant’s obligation to pay for two children in the respondent’s care set off against her obligation to pay for the one child in his care 50% of the time.

Section 9(

b) of the Guidelines invites the court to examine whether the total cost of raising children in a shared custody arrangement may be greater and under s. 9(

c) of the Guidelines the court should conduct an analysis of the conditions, means, needs and other circumstances of each spouse and of any child. [ 32 ] The respondent argues that the parties have similar standards of living with apartments in close proximity and that there is no change in the standard of living when the children go from one parent to the other.

The respondent’s counsel says that Y’s monthly expenses are $420 greater than her monthly income and that in those expenses are minimum amounts on family debts which, realistically, the respondent may end up paying despite the fact that they are family debts. I think that is a realistic possibility and I agree with the respondent’s counsel that the analysis called for in ss. 9(

b) and 9(

c) of the Child Support Guidelines do not result in an adjustment of the table amount set-off.

[33] Accordingly, on the basis that the claimant’s imputed annual Guideline income for 2015 is $40,000 and the respondent’s annualGuideline income for 2015 is $55,137, the claimant shall pay the sum of $612 to the respondent and the respondent shall pay the sum of$519 to the claimant. The set-off will result in a payment of $93 per month by the claimant to the respondent. [34] I am also satisfied on the evidence before me that the claimant’s income for the year 2013 was approximately $10,000 and Iwould impute the sum of $20,000 for the year 2014.

I am confident that the parties will be able to work out retroactive child support forthe period after this proceeding was commenced to which the claimant is entitled and submit the amount in the final order on this basiswhen it is submitted for entry.

If not, the claimant may make submissions for retroactive child support when the parties appear beforeme to settle the formal order should that be necessary. [35] Finally, on the issue of the child tax benefit, another matter raised by the claimant, I direct that the parties are to claim the childtax benefit for A on alternating years going forward on the basis that they will have shared parenting. For the years 2013, post-separation, and 2014, the respondent shall pay to the claimant the amount of child tax benefit that she received for A.

This order is madeon the basis that A lived primarily with the claimant during those years, as stated in my earlier reasons for judgment at para. 27: The evidence indicates that A has generally lived with his father…Notwithstanding the current interim order, however, the son haslargely been spending his time at and sleeps at his father’s home. Costs [36] The usual rule for costs is that they follow the event unless the court otherwise orders: Gold v. Gold, (BCCA), [1993] 82 B.C.L.R. (2d) 180 (C.A.).

A recent discussion of the relevant principles in family cases and when the court shouldexercise its discretion to depart from the general rule that costs follow the event was done by Fitzpatrick J. in Walburger v. Lindsay, 2015BCSC 959. [37] In terms of costs I find the respondent was generally successful at trial. The parenting issues, as opposed to property and supportissues, were the most significant issues and took up the largest amount of time at trial. Y was substantially successful in terms ofobtaining an order for sole custody of both children and with regard to parenting time she proposed for B.

She was unsuccessful in termsof her parenting proposal for A. [38] The respondent obtained orders prohibiting the claimant from contacting her unless replying to a request for his input on animportant decision affecting the children.

The child support orders followed the living arrangements that I directed and the livingarrangements in the period up to trial. [39] The family property and debt issues were not particularly contentious and success was generally divided except that theclaimant failed to establish that the respondent had taken more than 50% of chattels. [40] The claimant was initially unsuccessful in his claim for spousal support although on reconsideration he received a modestaward. [41] On the whole the respondent was generally successful, and taking into consideration those areas where success was divided orthe claimant succeeded, I award her 70% of her costs on the scale for ordinary difficulty. [42] The respondent’s counsel will now prepare a formal order of the Court for entry.

If there is any disagreement on what that ordershould provide given these reasons and my earlier reasons, the parties may arrange to appear before me to resolve those issues. “The Honourable Mr. Justice J. Sigurdson”