J.M.S. v. R.B. Date:, 2015 BCPC 51

Citation: J.M.S. v. R.B. Date: 20150323 2015 BCPC 0051 File No: F15400 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.M.S. APPLICANT AND: R.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Applicant: C. M. Widdifield Counsel for the Respondent: N. Bulatovic Place of Hearing: Abbotsford , B.C.

Date of Hearing: September 30, 2014, January 16, March 16, 2015 Date of Judgment: March 23, 2015 Introduction [ 1 ] The Applicant J.M.S. has brought an Application asking for spousal maintenance pursuant to

Part 7 of the Family Law Act. She and the Respondent lived together for almost twenty-two years prior to their separation and she alleges that she is unable to support herself in any meaningful way because of ongoing significant health problems that she has. [ 2 ] In his Reply to the Application, the Respondent R.B. was opposed to paying spousal maintenance. The way he summed up the reasons for his refusal to pay spousal maintenance in his Reply was: “I have supported her and paid to raise her two kids.

She worked very little at her own choice and took 95% of the household items when she left.” [ 3 ] At the conclusion of the hearing of this matter, counsel for the Respondent conceded that there was likely an entitlement to spousal maintenance on the part of the Applicant, owing to the length of time the couple lived together and to some of the Applicant’s health issues. But counsel argues that the amount and duration of any support should be in a lesser amount and for a shorter duration than what the Applicant is asking for.

Counsel for the Respondent also alleges that the Applicant is capable of working in a minimum wage job and asks that an income in this amount be imputed to her. [ 4 ] Following is a

summary of the applicable law concerning the awarding of spousal maintenance, a

summary of the evidence heard during the hearing of this matter, the respective positions of the parties, and the reasons for making the order made in response to this Application. I.

Summary of the Law of Spousal Maintenance 1. The Duty to Pay Spousal Maintenance [ 5 ] The law concerning spousal maintenance has been codified and set out in

Part 7, Division 4 of the Family Law Act . When the Family Law Act replaced the Family Relations Act , some changes were made to the language which described the considerations to be made before making an order for spousal support. The former legislation, in

section 89, placed a duty on one spouse to support the other, based on considerations of the role of each spouse in their family, any express or implied agreement between the spouses concerning support, the custodial obligations respecting children, each spouse’s ability, capacity and efforts to support themselves, and “economic circumstances”.

The former legislation also provided that, subject to the considerations listed above, spouses were “required” to be self- sufficient in relation to one another. [ 6 ] One problem with the language in the former legislation was that it was potentially inconsistent with the language in the Divorce Act on the subject of spousal maintenance. It allowed for the possibility of different treatment of married and unmarried spouses and different outcomes of applications made under the differing legislation.

The Family Law Act now uses language that more closely matches the law concerning spousal maintenance as set out in the Divorce Act .

Section 160 of the Family Law Act directs a consideration of the objectives of spousal support that are set out in

section 161 before determining if one spouse has an entitlement to spousal support and if the other has a duty to provide support for that spouse.

Section 161 reads as follows: 161. In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives: (

a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship; (

b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child; (

c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (

d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. [ 7 ] Subsections (a), (b), (

c) and (

d) very closely match the language used in

section 15.2 (6) (a), (b), (

c) and (

d) of the Divorce Act , except that in the latter statute, the language presumes that there is a marriage in existence. Otherwise, the considerations are virtually identical. (The language of

section 15.2 (6) of the Divorce Act is set out below):

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

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. [8]

Section 162 of the Family Law Act next sets out what a court must base the amount and duration of spousal support on. Onceagain, this language is a near match to the language used in

section 15.2 (4) of the Divorce Act.

Section 162 says that the amount andduration of spousal support “must be determined on consideration of the conditions, means, needs and other circumstances of eachspouse, including the following: (

a) the length of time the spouses lived together; (

b) the functions performed by each spouse during the period they lived together; (

c) an agreement between the spouses, or an order, relating to the support of either spouse. 2. Who is a “Spouse”? [9] Whereas the Divorce Act uses the term “spouse” to refer to parties who were married, the Family Law Act gives a moreexpansive definition of the term. Under the Family Law Act the term “spouse” is defined in

section 3 as follows: 3

(1) A person is a spouse for the purposes of this Act if the person (

a) is married to another person, or (

b) has lived with another person in a marriage-like relationship, and (

i) has done so for a continuous period of at least 2 years, or (ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2) A spouse includes a former spouse.

(3) A relationship between spouses begins on the earlier of the following: (

a) the date on which they began to live together in a marriage-like relationship; (

b) the date of their marriage.

(4) For the purposes of this Act, (

a) spouses may be separated despite continuing to live in the same residence, and (

b) the court may consider, as evidence of separation, (

i) communication, by one spouse to the other spouse, of an intention to separate permanently, and (ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently. 3. Entitlement to Spousal Support [10] In determining whether or not a spouse is entitled to support, all of the considerations in

section 161 must be taken into accountand no single consideration is paramount. In Bracklow v. Bracklow (SCC), [1999] 1 SCR 420, the Supreme Court ofCanada held that the law recognizes three grounds for entitlement to spousal support: (1) compensatory; (2) non-compensatory, and (3)contractual. (

a) Compensatory Support [11] Compensatory support is intended to give a remedy to a spouse who has suffered an economic disadvantage from the marriageor who has made sacrifices in order for the other spouse to gain an economic advantage. It is based on the notion that if a spouse suffersan economic loss as the result of the relationship or the breakup, which would not have otherwise occurred, that spouse is entitled to becompensated for that loss. It recognizes sacrifices made by a spouse in order to assume primary childcare and household responsibilities. [12] In Moge v.

Moge (SCC), [1992] 3 SCR 813, Madam Justice L’Heureux-Dube of the Supreme Court of Canadamade this observation at pages 867-8: 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 which

jeopardizes her ability to ensure her own income security and independent economic well-being. In such situations, spousal support may be a way to compensate such economic disadvantage. [ 13 ] Compensatory support can also address economic advantages which one spouse acquires at the expense of the other spouse’s sacrifice.

Madam Justice L’Heureux-Dube wrote in Moge (at page 864): The doctrine of equitable sharing of the economic consequences of marriage or marriage breakdown upon its dissolution... which, in my view, the Act promotes, seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse. [ 14 ] The Supreme Court went on to conclude that equitable distribution between spouses who separate can be achieved by an award of spousal support, by the division of assets or by a combination of both.

But the court went on to say that in many, if not most cases, the absence of accumulated assets may require that one spouse pay support to the other in order to effect an equitable distribution of resources. (

b) Non-compensatory Support (Need) [ 15 ] If there is no compensatory basis for an order of spousal support, the Supreme Court of Canada, in Bracklow , held that need alone may be enough to establish entitlement to spousal support. For example in some circumstances such as where a spouse has a significant health problem such as an injury, an illness or a disability, spousal support may be based on need. (

c) Contractual [ 16 ] The obligation to pay spousal support may also arise out of the agreement of the parties. This is not a factor in this case. The law respecting agreements to pay spousal support and the setting aside of such agreements is set out in

section 163 and 164 of the Family Law Act respectively. 4. The Obligation to Become Self-Sufficient [ 17 ] In Moge , the Supreme Court of Canada stated that the goal of self-sufficiency should not become the “pre-eminent objective in determining the right to, quantum and duration of spousal support.” The court went on to say that it is to be made a goal “only in so far as practicable.” The court cautioned against taking a “sink or swim” approach to promoting a spouse’s self-sufficiency. 5.

Using the Spousal Support Advisory Guidelines [ 18 ] In fixing the specific amount of spousal support, once entitlement has been established, the court can be guided by the Spousal Support Advisory Guidelines (SSAG). Unlike the Child Support Guidelines, the court is not bound to follow the SSAG. The SSAG are a guide developed with the intention of bringing more certainty and predictability to the determination of spousal support. The SSAG have not been legislated and operate on an advisory basis only.

They are intended as a practical tool to assist spouses, lawyers, mediators and judges in determining the amount and duration of spousal support in typical cases. [ 19 ] In a number of decisions of our Court of Appeal, the SSAG have been described as “a useful tool to assist judges in assessing the quantum and duration of spousal support”. See Yemchuck v. Yemchuck 2005 BCCA 406 at para. 64 ; Tedham v. Tedham 2005 BCCA 502 at para. 75 ; Redpath v Redpath 2006 BCCA 338 at para. 38 ; Chutter v. Chutter 2008 BCCA 507 at para 100 .

Although the SSAG are not binding on the court, the BC Court of Appeal has shown great deference to the guidelines. In the words of Justice Newberry in Redpath at para. 38 : [T]he Guidelines may indicate whether a proposed award is "in the range" of what should be a pattern of predictable maintenance awards across the province. 6. Imputing Income under the SSAG [ 20 ] In most cases, judges rely on counsel to perform the appropriate calculations under the SSAG using software such as the Divorcemate program. In this case both counsel have done so.

Counsel for the Respondent has based her calculations presuming an imputed minimum wage income to the Applicant. In an appropriate case, an income can be imputed to a spouse where the court believes that the spouse is either intentionally unemployed or under-employed.

Section 3.3.2 of the SSAG states as follows: In determining income it may be necessary, as under the Federal Child Support Guidelines, to impute income in situations where a spouse’s actual income does not appropriately reflect his or her earning capacity. In some cases the issue will be imputing income to the payor spouse. On variation and review the issue may be imputing income to the recipient spouse if it is established that the he or she has failed to make appropriate efforts towards self-sufficiency. [ 21 ] In Hanson v.

Hanson [1999] BCJ No. 2141 , Justice Martinson of the BC Supreme Court considered when income should be imputed, within the context of the obligation to pay child support. At para. 14, she set out the following principles applicable to the determination of the capacity to earn an income: 1. There is a duty to seek employment in a case where a party is healthy and there is no reason why the party cannot work.

2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the party are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations. 3. A party's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job.

While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal to take reasonable steps to meet one’s support obligations simply because the party cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5. A party cannot be excused from his or her support obligations in furtherance of unrealistic or unproductive career aspirations. 6.

As a general rule, a party cannot avoid support obligations by a self-induced reduction of income. [ 22 ] The considerations set out above refer to child support obligations. Under the former legislation a spouse was “required” to become self-sufficient. Under the new legislation, self-sufficiency is something that is promoted within a reasonable time, in so far as is practicable. This is a goal, but the Supreme Court of Canada has cautioned against a “sink or swim” approach to requiring self- sufficiency.

In my view, the considerations set out by Justice Martinson in Hansen may be considered, within this framework. 7.

Summary [ 23 ] From these authorities, I would summarize the law of entitlement to spousal support in British Columbia as follows: 1. A spouse may be entitled to spousal support based on three grounds: (

a) Contractual (i.e. where they have entered into a contract in which one spouse agrees to pay the other support following a breakdown of the relationship), (

b) Compensatory or (

c) Non-compensatory. 2. In cases in which an agreement for spousal support is being considered or challenged, reference should be had to the considerations set out in sections 163-5 of the Family Law. 3. Compensatory support is intended to give a remedy to a spouse who has suffered an economic disadvantage from the marriage or who has made sacrifices in order for the other spouse to gain an economic advantage. 4.

In those situations where the raising of children requires one of the spouses to cut back on his or her participation in the labour force in order to care for the children, jeopardizing that spouse’s ability to ensure his or her own income security and independent economic well-being, economic disadvantage may be said to exist. In such situations, spousal support may be a way to compensate such economic disadvantage. 5. Compensatory support can also address economic advantages which one spouse acquires at the expense of the other spouse’s sacrifice. 6.

Even where there is no compensatory basis for an order of spousal support, a spouse may still be entitled to support on a non- compensatory basis where the need for support is established. For example in some circumstances such as where a spouse is ill, injured or disabled, spousal support may be based on need. 7. In determining whether or not a spouse is entitled to support on a compensatory or non-compensatory basis, the analysis must begin with a consideration of the factors set out in

section 162 of the Family Law Act. 8. Achieving self-sufficiency is not the pre-eminent objective in determining the right to, quantum and duration of spousal support. It is to be made a goal only in so far as practicable and the court should not take a “sink or swim” approach to the achievement of self- sufficiency on the part of the receiving spouse. 9. In fixing the specific quantum of spousal support, a court can be guided by the Spousal Support Advisory Guidelines, which are “a useful tool to assist judges in assessing the quantum and duration of spousal support.

The court is not bound to follow these guidelines, but should generally view them as setting out whether or not a proposed amount of spousal support is “within the range” of acceptable awards. 10. In situations where the court finds that a spouse’s actual income does not appropriately reflect his or her earning capacity, the court may impute income to that spouse for the purpose of applying the Spousal Support Advisory Guidelines. II. The Facts in This Case [ 24 ] The Applicant was born on (D.O.B.) and is now 51 years of age. The Respondent was born on (D.O.B.) and will be 53 years of age in less than two months.

The Applicant has two adult daughters from previous relationships. They were born in 1982 and 1986 respectively. The Applicant’s previous marriage lasted from July of 1984 until 1989 when she and her husband separated. She and the

Respondent began living together in September of 1990. [ 25 ] The Applicant’s two daughters lived with her and with the Respondent. By all accounts he made no distinction for the fact that he was not the biological father of these children, and he generously provided for their support and was in all respects a good and loving father to these children. The older daughter left the home when she was 16 and the younger child remained in the home a year after her high school graduation. [ 26 ] At the time when the Applicant moved in with the Respondent, she was not working outside of the home.

Previously, she had a obtained a grade 9 education and received her G.E.D. when she was 19. She worked briefly as a waitress and at a Woolco store. At around the time of her first marriage she had worked in retail at a lingerie store, and for a time after living with the Respondent, she worked at a gas station. It was then that she attended BCIT where she completed a four month computer training program. Following that, she worked at a temporary employment agency, working sporadically at assignments.

That led to a job as an administrative assistant in a bookkeeping office where she worked full-time for about two years, ending in 2001. After that job ended, she worked at a temporary employment agency. That was her last job during the relationship. [ 27 ] The Applicant testified that the Respondent wanted her to find employment outside the home to help make ends meet. When she was not working, she was responsible for all of the household chores and for looking after her children. The Respondent testified that he helped with some of these chores, but he described the Applicant as a “clean freak”.

The Applicant’s period of unemployment led to considerable tension in the home. The Respondent also testified that the family finances were very bad and that the family would often resort to short-term “payday loans” and the family moved a lot. [ 28 ] On August 14, 2005, the Applicant suffered a serious knee injury when she slipped and fell in a grocery store. She ended up receiving a settlement from the store that netted her about $27,000. She testified that this money was used to buy furniture for the house and a motorcycle that the Respondent drove.

The Applicant testified that her knee injury remains a problem to this day, as she continues to experience pain in her knee and is unable to climb stairs without experiencing pain.

It was her evidence that the pain resulting from this injury rules out most kinds of work because she is unable to lift, or sit for long periods of time. [ 29 ] The Respondent conceded in his evidence that this was “a nasty injury” but that in spite of this, the Applicant was still able to attend to her household chores, “it just took her longer.” However the Respondent disputes the Applicant’s description of the injury and he testified that in a few years the Applicant’s injury was “mostly better”.

He testified that, while the Applicant continued to complain about her pain, it did not prevent her from riding on the back of his motorcycle on long rides. [ 30 ] The parties separated in April of 2012. The Applicant testified that she began experiencing problems with depression prior to the separation and by the time the parties separated, they were not communicating well with one another. The Applicant went to live in an apartment in Abbotsford. She continued to suffer from significant health problems.

In August of 2012 she experienced problems with a condition she described as aspirin toxicity, from which she suffered kidney problems. [ 31 ] According to a medical report prepared by the Applicant’s physician, Doctor W. P. Rebeyka, an examination of the Applicant conducted on September 13, 2013 was consistent with the complaints the Applicant had about her knee pain.

The doctor concludes “that as a consequence of that injury, gainful employment would be difficult.” [ 32 ] There is some confusion about many of the medical reports and clinical notes because these refer to the Applicant’s ability to play the drums in a band, when, according to everyone’s evidence, she has never been a drummer. Counsel for the Respondent has asked me to infer from the repeated mention of this, that the Applicant has made a number of false statements to her physician and that I should generally draw an adverse inference about the Applicant’s credibility.

There is insufficient evidence for me to conclude how this theme of drumming has worked its way into the medical notes and who is to blame for it. In the final analysis I am unable to draw the inference requested by counsel, and while there are a number of curious aspects to the medical evidence, the evidence satisfies me that the Applicant has a number of serious unresolved health issues. [ 33 ] The Applicant testified to having a number of other medical and dental problems.

These included some recent surgery to remove a benign growth on her fallopian tubes, treatment for nodules on her thyroid gland, an unexplained significant weight loss, pneumonia, a staph infection, and continuing problems with anxiety and depression. [ 34 ] The Applicant testified that she has attended a job search program and has also conducted her own job search. In order to receive government assistance, she is participating in a job search “Action Plan”, a copy of which was marked as exhibit 4 in these proceedings. [ 35 ] The Applicant has demonstrated proficiency as an artist.

She recently completed an airbrush course, but although she completed the course, she was unable to obtain the proper certification required for employment due to problems with the course provider’s legitimacy. It was her evidence that having the proper certification is a pre-requisite to obtaining employment. She has done some unpaid work as an artist illustrating a children’s book written by her mother’s husband. She has also sold some of her artwork and has drawn designs for tattoos and for motorcycle helmets and gas tanks, but this has not generated any significant income.

She is interested in taking a web design course, but is unable to afford it. [ 36 ] At present, the Applicant subsists on receipt of benefits in the sum of $610 per month. She has had problems with homelessness in the past, and for a time she “couch surfed” at the homes of friends. She is living in a trailer at present, but has experienced some problems with having her home broken in to.

From time to time the Respondent has helped her out financially, but the parties do not agree to what extent that has occurred, and any assistance the Respondent did provide came to an end when this application was commenced. [ 37 ] In cross-examination, the Applicant was asked about an incident in which she claims she was misdiagnosed with a terminal form of cancer. The misdiagnosis was discovered by a doctor in Seattle that she was able to see, thanks to financial assistance from members of a group of friends who belonged to a motorcycle riders group.

She was unable to furnish any medical records to substantiate any of this, and she says that these may have been lost following the break-in to her trailer.

[38] The Applicant also testified in cross-examination that she has been unable to afford therapy for her knee because, even withinsurance, the deductible for the physiotherapy visits cost her $45 a visit and she doesn’t have the money to pay even that. [39] The Respondent is employed as a bus driver in a unionized company. It is a stressful position and in the past he has taken stressleave from time to time. In 2014 he earned an income of $52,292.55 during the time that he worked, and he was also paid another$10,681 in benefits during the time that he was on stress leave.

Over the past five years, his income has usually been in the high $50,000range. He currently earns an hourly wage of $30.38 and is due for a 1.75% increase in April of this year. [40] The Applicant’s younger daughter was called to give evidence on behalf of the Respondent. Unfortunately, this mother-daughter relationship is a strained one and the daughter testified that she is supportive of the Respondent in this litigation. Her chiefcomplaint was that she believes that the Applicant is to blame for much of the family’s financial problems.

Conversely, the Respondenthas been very generous to the Applicant’s daughter. He regularly buys her groceries and he has paid to take her and her children toMexico and to Las Vegas. He has also paid for a number of other expenses for her children. III. Position of the Parties 1. The Applicant [41] On behalf of the Applicant, counsel seeks an order for spousal support in the range of $1,664 to $2,218 per month. This range isbased on calculations under the SSAG arrived at using the Divorcemate Software program. It is based on the annual income shown onthe Respondent’s T-4 information from the 2014 tax year.

Counsel notes that the parties were together for 21.85 years, and that theRespondent has not made any regular voluntary contributions towards the Applicant’s support. She also notes that at age 51, having beenout of the job force for a long time, and with a myriad of significant health problems, the Applicant’s prospects for finding employmentare not good. These include her ongoing knee problems, her depression and anxiety, her unexplained weight loss and the other problemsfor which she continues to seek medical treatment.

Counsel points out that the Applicant’s unsuitability for employment is supported bythe medical opinion of Doctor Rebeyka. The Applicant has undergone a period of homelessness and is receiving a very meagre income. [42] Counsel for the Applicant argues that entitlement can be founded both on compensatory and non-compensatory principles. Onthe former ground, the Applicant performed the household duties and cared for the children while the Respondent pursued his career asa professional driver.

On non-compensatory grounds, a need for spousal maintenance has been established by the Applicant’s poverty,her fragile health and her many impediments to self-sufficiency. She argues that the ability of the Respondent to pay spousal support isamply demonstrated by the many things he buys for his daughter and her children, including extravagant vacations. She describes theRespondent’s spending priorities as misplaced. [43] The Applicant’s counsel asks that the amount of spousal support should be set in the mid to high range of the Divorcematecalculations. In support of this argument she relies on Saaro v.

Saaro 2011 BCSC 1010, in which the court considered that factors such asa lengthy relationship and the vast disparity in the parties’ post-separation incomes justify an award of spousal support at the higher endof the range set out in the SSAG. 2. The Respondent [44] Counsel for the Respondent argues that the Applicant has contributed to her current situation by not being more diligent duringthe marriage in preparing for a return to the work force.

She also argues that the medical information does not support the Applicant’sclaim about the severity of her injuries and argues that the Applicant has exaggerated her injuries. She also states that the court shouldhave serious concerns about the Applicant’s credibility because of the absence of any medical reports corroborating the claim of amisdiagnosed cancer and the inaccuracies in the medical reports which suggest that the Applicant was purposely giving false informationto her physicians. [45] Counsel for the Respondent argues that the 2005 injury has not rendered the Applicant unemployable.

She reasons that if theApplicant is able to perform free artwork for her friends and family, there is no reason why she should not be able to earn some incomewith the talent she possesses. She argues that the Applicant has made no real effort to become self-sufficient in the time that she has beenseparated from the Respondent. [46] Respondent’s counsel also argues that the Applicant is purposefully unemployed and asks that in any calculation of theappropriate level of spousal support, the Applicant should have an annual income inferred at a minimum wage level.

When this incomeis imputed, the Divorcemate software calculations suggest a range of between $1091 and $1451 per month as the proper spousal supportamounts. Counsel for the Respondent argues that the low end of this range should be adopted because of the Respondent’s modestmeans. She argues that the Respondent cannot afford to support two households on his modest earnings, especially while the Applicantmakes no effort towards self-sufficiency. She also notes the BC Supreme Court decision of Kripps v.

Kripps , in whichJustice Drossos stated at para. 32 that the law does not require that the quantum of an order for spousal support must match theApplicant’s need. IV. Analysis [47] On a consideration of the factors set out in

section 161 of the Family Law Act, I find that in the case of these spouses, thebreakdown of the relationship has resulted in a significant economic imbalance between the parties. The Applicant presently finds herselfliving in poverty without any support from the Respondent, while the Respondent earns a good income from which he is not only able tosupport himself, but he is also able to show extreme generosity towards the Applicant’s daughter and her children.

It is particularlytroubling that, at a time when the Applicant is attempting to survive on $610 per month, the Respondent is paying for $4000 vacations.Whereas during the time that the parties lived together the Respondent’s earnings provided for the support of both spouses, now theRespondent is able to purchase extravagances for his adult stepdaughter who herself is a government employee, while the Applicantlives well below the poverty line. There is clearly an economic disadvantage that has arisen from the breakdown of this relationship thatmust be recognized and addressed.

Economic hardship on the part of the Applicant has flowed from the breakup of this relationship andit must be addressed.

[ 48 ] One of the issues in this case is whether or not the Applicant has made reasonable efforts towards achieving self-sufficiency. If, as the Respondent alleges, the Applicant is making a deliberate choice not to work, then her entitlement to and amount of spousal maintenance can be adversely affected. On the evidence before me however, I am unable to conclude that this is the case. While the evidence may not be able to precisely identify the degree of severity of the Applicant’s various medical problems, it is clear from the medical reports that she continues to experience a number of serious medical issues.

The Respondent acknowledged that for years after her knee injury, the Applicant continued to complain of pain. A recent medical report from Doctor Rebeyka dated May 12, 2014 states that the doctor’s examination is consistent with the Applicant’s complaints of ongoing knee pain. The doctor concludes that as a consequence of the knee injury, “gainful employment would be difficult.” Her surgery to remove a sizeable mass this past November is documented in a medical report. Her unexplained significant weight loss is noticeable even to the Respondent.

Recent clinical notes all support the position that she is unemployable. None of this even addresses her depression, anxiety or other recent medical problems. [ 49 ] It may be that some of these issues could be addressed or improved with therapy or other methods, but the Applicant does not have any income to attend to this. She cannot be faulted for this. I am unable to accept that the Applicant is living in her current economic circumstances by choice. [ 50 ] The suggestion that the Applicant is intentionally unemployed or is underemployed is not supported by the medical evidence presented in this case.

Any alleged support for this notion comes from the Respondent’s suspicion and the daughter’s resentment. The evidence in this case does not present any basis for concluding that the Applicant is able to become self-sufficient at this time or that any income should be imputed to her for reasons of intentional unemployment or for any other reason. [ 51 ] I find that the need for spousal maintenance has been established both on a compensatory and a non-compensatory basis.

The Respondent’s secure employment and his discretionary spending on his stepdaughter’s groceries, vacations and other expenses, establish his ability to support his spouse. Under these circumstances, the Spousal Support Advisory Guidelines establish a range of support between $1,664 (low), $1,941 (mid) and $2,218 (high). Though this court is not bound to follow these guidelines, the comments of the BC Court of Appeal in Redpath suggest that this should be taken as the proper range of the appropriate level of support in this case.

Neither counsel has suggested that an order outside of the ranges set by the SSAG is justified in this case. [ 52 ] In determining where, within the range, the amount of spousal maintenance should be set, I am mindful of a number of factors. This was a relationship of considerable duration. When it ended, it resulted in a very significant economic imbalance between the parties. The Applicant has lived in poverty since then. Her ability to return to the work force has been adversely affected by poor health, depression and an absence of employment experience for a considerable amount of time.

Her participation in a job search program has not helped. [ 53 ] The Respondent has shown himself to be a poor money manager. He has paid for expensive vacations for others, while not leaving himself in a good financial position, and while leaving the Applicant in a much tougher financial position.

A number of community and government agencies offer free budget counselling, such as the Credit Counselling Society of BC, and the Respondent would be wise to avail himself of such services in order to help him to meet his obligations while living within his means. [ 54 ] Under the circumstances, taking into account the factors which guide the court as to where, within the range, an appropriate level of spousal support should be fixed, I am satisfied that it is appropriate in this case to fix a level of support in the middle of the suggested range.

Setting the award at the low end of the range disregards the extreme economic imbalance that the parties have operated under since their separation and in particular the poverty that the Applicant has experienced. Setting the award at the high end of the range results in an imbalance too great in the other direction and would be more or a punishment than an attempt to address inequalities. It is not as if the Respondent has himself been living extravagantly or has been squirrelling away piles of money.

It is his failure to appreciate his responsibility to share the relationship’s economic resources equally with the Applicant that needs to be addressed. [ 55 ] Finally, the parties have raised the subject of a review of this order. While I believe that receipt of a fair amount of spousal support will assist the Applicant in being able to support herself, I do not believe that this will occur any time soon, given what she has had to endure since separation. I will fix the time for review of this order as being in four years.

In the meantime, the parties will be required to exchange their financial information on an annual basis. V. Order [ 56 ] For the foregoing reasons, it is ordered as follows: 1. The Respondent R.B. shall pay to the Applicant J.M.S., as spousal support pursuant to

Part 7 of the Family Law Act , the sum of $1,941 per month. At the Respondent’s option, this amount may be payable either by payment of the sum of $1941 on the first day of each month commencing April 1, 2015 and continuing on the first day of each moth thereafter until further order of this court, or alternatively by payment of the sum of $895.85 payable on every second Friday commencing on Friday, April 3, 2015 and continuing on every second Friday thereafter until further order of this court. 2.

On or before the 1 st day of May of each year, commencing in 2016 and continuing each year thereafter, the parties shall file deliver to each other a financial statement in Form 4, together with all required attachments, 3. This order may be reviewed at the option of either party at any time after May 1, 2019. Dated at the City of Abbotsford, in the Province of British Columbia, this 23 rd day of March, 2015. ________________________________________ (The Honourable Judge K. D. Skilnick)