D.M. v. M.M. Date:, 2015 BCPC 222

Citation: D.M. v. M.M. Date: 20150730 2015 BCPC 0222 File No: F64801 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.M. APPLICANT AND: M.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Applicant: C. Hartwell

Counsel for the Respondent: C. Rivers Place of Hearing: Nanaimo, B.C. Date of Hearing: July 23, 2015 Date of Judgment: July 30, 2015 The Issue [1] Ms. M seeks an order for interim spousal maintenance pending the trial of this proceeding, which is scheduled for Novemberof this year. The parties have agreed on interim child maintenance. [2] Mr. and Ms. M married in 1995. Mr. M deposes that: We have had a problematic and stormy relationship with a number of breakups and reconciliations. Our first separation was in 2000 fortwo years and we split up for the last time in April, 2011.

Although we lived together on and off between 2000 and 2011, we livedseparately during those years more often than we lived together. In response, Ms. M deposes that the parties were separated for only two periods, one of 9 months and the other of 5 months, between2000 and 2011. Preliminary Objection: Delay [3] Ms. Hartwell, on behalf of Mr. M, submits that the application should be dismissed because of the four-year delay betweenApril, 2011, when the parties separated, and June, 2015, when Ms. M filed her application for interim spousal support.

In Kerr vsBaranow 2011 SCC 10 , [2011] 1 SCR 269 @ paragraph 208, Justice Cromwell said that “… concerns about notice, delay andmisconduct generally carry more weight in relation to claims for spousal support …” than in relation to claims for child support. However, it is important to note that he was then considering claims for retroactive support, which, in some cases go back over severalyears. In this case, Ms.

M seeks spousal support retroactive only to the beginning of this month. [4] Absent a statutory limitation period, delay, alone, is seldom sufficient to deprive a party of relief to which she would otherwisebe entitled. There is a body of legal and equitable jurisprudence which establishes a set of principles to determine whether an otherwisemeritorious claim should be dismissed because of delay in advancing the claim: M(

K) vs M(H) (SCC), [1992] 3 SCR 6@ paragraphs 96 – 99. [5] Ms. M’s claim may be barred by the Limitation Act SBC 2012, c 13. A decision on that point would require carefulconsideration of sections 6, 3(1) (

l) and 30 of that statute. Alternatively, Ms. M’s claim may be barred by the application of theprinciples discussed in M(

K) vs M(H), or by an analogue of those principles adapted to claims for spousal support. However, neither theLimitation Act nor the principles discussed in M(

K) vs M(

H) were addressed by counsel during their submissions. I do not think thatpoints of such importance should be decided without the benefit of carefully-considered submissions. No doubt, they will be addressedat the trial of this proceeding. [6] There is no evidence to support an inference that Mr. M has been prejudiced in any way by the delay in bringing theapplication. If Ms. M succeeds in her application, the order will be retroactive to the beginning of this month. If she had brought herapplication earlier, her entitlement to spousal support, if any, would have accrued earlier, and Mr.

M’s financial exposure would havebeen increased accordingly. For that reason, it would appear that Mr. M has benefitted from the delay in bringing the application. [7] Although a different result might have followed if the issue of delay had been more fully developed in the evidence or inargument, I am not prepared to dismiss this application on the ground of delay. The Circumstances [8] Mr. & Ms. M have two daughters, now age 18 and 20. The younger daughter has a daughter of her own, now age 3. Theyounger daughter and the granddaughter have lived in Ms. M`s home since 2011.

The elder daughter also resided there from 2011 untilDecember, 2014, when she moved to a home of her own. [9] Mr. M works as an insulator. Until 2008, he worked in southern British Columbia and earned about $12 per hour. In 2008, hebegan to work in northern Alberta. His total employment income in 2014 was $132,034.35. He deposes that he started a new job in July,2015, with an annual salary of $104,748. His employer does not reimburse him for travel between southern British Columbia, where Ms.M and his daughters live, and his worksite in northern Alberta. He estimates his annual travel costs at $15,000. [10] Ms.

M has worked as a restaurant server and manager, and has completed training as a legal assistant. She is not nowemployed, and is in receipt of social assistance. She deposes that she is not able to work at present because she suffers from generalizedanxiety disorder, and tenders in support of that assertion a letter from a medical doctor. The following is the full text of the letter: [Ms. M] consulted me on 20 Apr 2015 for illness. [Ms. M] was found unable to return to work due to a generalized anxiety disorder. She is currently receiving treatment for this. It is uncertain as to when [Ms.

M] will be able to return to work due to her above medicalcondition and we are hoping it would be within the next 2-3 years. Mr. M asserts that Ms. M “… is a capable person who chooses not to work”. Governing Principles

[11] The approach to be adopted on an application for interim spousal support was stated by Justice Warren in Short vs Short (BC SC), [1996] BCJ No. 910; 21 RFL (4th) 429 @ paragraphs 11 - 12 (citations omitted, underlining added): In Johnson v. Johnson, … Master Joyce extensively reviewed Moge v. Moge … and considered the applicability of the Moge principlesto an application for interim spousal support.

He stated: It is obvious that the determination of entitlement to and quantum of spousal support upon the dissolution of the marriage under theDivorce Act, 1985 requires consideration of a variety of factors through an examination of the evidence relating to the whole history ofthe relationship, the spouses' roles in that relationship, the economic circumstances throughout the marriage and, most particularly, theeconomic consequences of marriage and its breakdown.

In many cases, perhaps in the majority of cases, there will be insufficientevidence available at the chambers hearing for interim support to enable the court to engage in this in-depth consideration. It will oftenbe too early to make determinations as to the probable degree of success of one spouse re-entering the work force and achieving self-sufficiency. It may be very difficult or impossible to attempt a determination of the economic advantages or disadvantages arising fromthe marriage or its breakdown and what degree of compensatory maintenance may be appropriate until the property division has beenresolved.

While it is an error for the chambers judge or master to consider only the parties' needs and means to the exclusion of otherrelevant factors, if they are shown to exist, it is my opinion that on in [sic] an interim application the factors of means and needs willoften assume the greatest importance. . . . This is a marriage of long duration and, in my view, the petitioner is entitled to enjoy a standard of living pending trial which isequivalent to that of the respondent and, provided there are sufficient resources, is entitled to enjoy a standard of living similar to thatwhich she enjoyed prior to separation.

I agree with the approach taken by Master Joyce. I am of the view that while the needs and means ought not to take a predominantposition in the considerations of the Chambers Judge or Master, they are factors which do provide some greater initial certainty at a timewhere there is still a lack of complete information and where there has not been a full opportunity for the court to determine whetherthere is some economic advantage or disadvantage or some economic hardship arising from the marriage or it's breakdown and theconsiderations to promote economic self-sufficiency.

These considerations must, in most cases, await a more fulsome consideration ofthe entire history of the marriage and, in all likelihood, an opportunity to hear the parties and their witnesses. Those comments are congruent with those of Master Keighley in Robles vs Kuhn 2009 BCSC 1163 @ paragraph 12 and of Justice Kirkpatrick in Loesch vs Walji 2008 BCCA 214; [2008] BCJ No 897; 81 BCLR (4th) 271; 52 RFL (6th) 33 @ paragraphs 17- 19.

Thepoint was made succinctly by Justice Ballance in I.F. vs R.J.R. 2015 BCSC 793; [2015] BCJ No. 953 @ paragraph 126: While the other relevant factors that inform the issue of spousal support are to be considered to the extent possible, the respective needsand means of the parties are ordinarily the central factors, if not the most prominent, on an interim application. The corollary is thatconsiderations such as compensatory factors and the need to achieve self-sufficiency often hold less significance ….

I have in mind also the following comments of the Alberta Court of Appeal in Peterson vs Ardiel 2007 ABCA 218; [2007] AJ No. 687; 39 RFL (6th) 41 @ paragraph 11: The law recognizes that interim awards are interim only and are often made on an imperfect record. Chambers judges do the best thatthey can to set an interim balance between the parties, until the matter can go to trial. The trial judge is expected to make all thenecessary findings of fact, and then to readjust the interim orders back to the point that they were made so that they accord with the factsas found by the court.

Analysis [12] The evidence tendered on this application is entirely insufficient to form any reliable opinion as to Ms. M’s entitlement tospousal maintenance, or as to the quantum of such maintenance if entitlement can be established. To take only one example, there is noevidence before me of the household income, or standard of living, of the parties when they separated in 2011. This application waspresented on the premise that the parties’ present incomes are those which determine entitlement to spousal support and the quantum ofsuch support if it is ordered.

I am not sure that is correct: L.A.H. vs B.D.H. 2014 BCPC 184; [2014] BCJ No. 2180. On the premisestated, counsel agree that, if an order for interim spousal maintenance is to be made, the quantum of interim spousal maintenanceindicated by the application of the Spousal Support Advisory Guidelines is in the range of $2200 - $2700 per month.

Because thepremise may be faulty, I think that I should consider the appropriate quantum by reference to the evidence before me and the principlesreviewed above. [13] I am conscious of the admonition, in the cases cited, that I should do the best I can with the evidence I have. However, I amalso conscious that I should refrain from expressing conclusions of fact or law which might inhibit the trial judge from reaching better-informed conclusions on those issues. For that reason, I think that I should refrain from a consideration of the merits of Ms.

M’s claimand focus my attention on the question of relative standards of living pending trial. [14] On that approach, the analysis is as follows. Mr. M’s gross income is about $105,000 annually, which will yield about $65,000after tax. So, he has about $5500 per month to spend. Interim child support is agreed at $960 per month. He will incur travel expensesof about $1200 per month, leaving him about $3300 for his personal expenses. Ms.

M receives about $700 per month in governmentbenefits, and will receive child support of $960 per month, for a total of $1660 per month, from which she must provide a home forherself, her younger daughter and her granddaughter. In those circumstances, having regard to the fact that living expenses for a

household of three are higher than those of a single person, roughly equivalent standards of living would be achieved by an interimspousal support award of $1200 per month. [15] Because the first effective notice to Mr. M of the claim for spousal support was Ms. M’s notice of motion filed on June 16,2015, interim spousal support should commence on July 1, 2015: D.B.S. vs S.R.G. 2006 SCC 37 , [2006] 2 SCR 231. [16] There is an additional factor which I think worthy of consideration, although I have not found it mentioned in any of theauthorities.

In many cases, of which this is one, the claim to spousal support faces serious challenges. In the end, the trial judge mayconclude that interim spousal support should not have been ordered. If that is the result of the trial, the trial judge may think it right toorder Ms. M to refund the interim payments which I am about to order: see Peterson vs Ardiel, quoted in paragraph 11, above. It appearsfrom her affidavit that Ms. M has no financial resources from which she could refund those payments. In some cases, that might be areason to refuse an order for interim spousal maintenance.

I do not think that it is so in this case because interim spousal maintenancewill be payable for only 5 months, if the trial proceeds as scheduled. As a result, Mr. M’s financial risk is unlikely to exceed $6000. However, if the trial is adjourned for any reason, Mr. M should have liberty to apply to set aside or vary this order on 14 days’ notice toMs. M. Disposition [17] I think it appropriate to comment on an issue of terminology. Counsel asked me to make an interim order for spousal supporton a “without prejudice” basis.

The phase “without prejudice” has a well-defined meaning which has nothing to do with interim orders: Middelcamp vs Fraser Valley Real Estate Board (BC CA), [1992] BCJ No. 1947; 71 BCLR (2d) 276; 96 DLR (4th)227. When a court makes an order of the kind applied for in this case, the order is for payments on account of a claim which has yet tobe established, and is subject to retroactive adjustment by the trial judge, as described in in Peterson vs Ardiel. The order should not bedescribed as “without prejudice”, nor should that phrase appear in the order.

Rather, the order should be in the following form: This court orders that: 1. X pay to Y the sum of $Z on the first day of each month, commencing on [date] and continuing until further order of this court,as interim payments on account of Y’s claim for spousal support; 2. Y’s entitlement to spousal support, and the quantum of spousal support, if any, be determined at the trial of this proceeding; 3.

X’s claim for a refund of part or all of the interim payments required by this order, and Y’s claim for additional spousal support,retroactively or not, be determined at the trial of this action. [18] In the result, there will be an order for interim spousal support in the amount of $1200 per month, commencing July 1, 2015, onthe terms set out in paragraph 17, with liberty to Mr. M to apply, on 14 days’ notice to Ms. M, to set aside or vary the order if the trial isadjourned for any reason. July 30, 2015 _______________________T. Gouge, PCJ