Van Steinburg v. Van Steinburg, 2012 BCSC 1772

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Van Steinburg v. Van Steinburg, 2012 BCSC 1772 Date: 20121128 Docket: 28910 Registry: Penticton Between: Susan Van Steinburg Claimant And Allan Van Steinburg Respondent Before: The Honourable Mr. Justice Jenkins Reasons for Judgment Counsel for the Claimant: V. Bonga Counsel for the Respondent: I. McAndrews Place and Date of Hearing: Penticton, B.C. July 19, 2012 Place and Date of Judgment: Penticton, B.C.

November 28, 2012 Introduction: [ 1 ] This is an application in the first instance by the Respondent, Allan Van Steinburg, for an order determining spousal support pursuant to sec. 15.2 of the Divorce Act . Specifically, the respondent asks, “that spousal support payable by the Respondent shall be determined” or alternatively, “that spousal support pursuant to the terms of the Minutes of Settlement be varied”. The Notice of Application refers to Minutes of Settlement which the parties entered into on June 17, 2008.

These Minutes of Settlement purport to be a full and final settlement of all issues which had arisen between the parties save for the granting of a divorce which was heard and granted on an uncontested basis. The evidence and submissions of the parties leads me to believe that the Minutes of Settlement were not incorporated into the Divorce Order.

In addition to the terms of spousal support included in the provisions of the Minutes of Settlement were clauses dealing with the distribution of personal property, the distribution of the proceeds of sale of the family residence in Penticton, a sharing of the Claimant’s pension under the IWA Forest Industry Pension Plan, severance benefits from Weyerhaeuser and distribution of other assets owned or available to the parties. [ 2 ] The issues which must be addressed on this application are as follows: 1.

On what basis might this court make an order that is inconsistent with the Minutes of Settlement signed by the parties? 2. Given the answer to the above question, what is the appropriate amount of spousal support payable to the Claimant? [ 3 ] Before addressing each of these issues, I will provide a brief background of the parties’ circumstances during their marriage, and after their separation and divorce. Background of the Parties: [ 4 ] The parties married in 1972, separated in July of 2006 and were divorced in November 2008.

During the marriage, the parties had been living in the Penticton area. [ 5 ] The Claimant is currently 60 years of age. After the separation of the parties, the Claimant moved to Vancouver Island to live with her daughter, before eventually returning to Penticton in early 2008 to live with her parents. Due to health issues, she is unable to work. She receives a Canada Pension Plan Disability Pension and was receiving that pension prior to the separation of the parties in 2006. [ 6 ] The Respondent is currently 62 years of age and remarried in November of 2011.

He and his current wife reside in a rented apartment in Penticton. For many years, the Respondent worked for Weyerhaeuser at the Okanagan Falls mill as a heavy equipment operator, specifically operating a front-end loader, and earned a significant income from that employment until the mill at Okanagan

Falls was permanently closed by Weyerhaeuser in December of 2007, approximately 18 months after the separation of the parties. Hisincome in 2007 was approximately $65,000. [7] Since being laid off from his position at Weyerhaeuser’s Okanagan Falls mill, the Respondent has moved between many jobs,none of which offer a pay scale anywhere close to his historical income with Weyerhaeuser.

One issue in this application is that theClaimant is of the opinion that the Respondent is under-employed and capable of earning an income comparable to his final years atWeyerhaeuser. [8] The Respondent also has health issues and his family doctor has provided an opinion that the Respondent’s many problemswith his back were caused by his many years as a front-end loader operator and that his injuries preclude him from being able to return tothat line of work.

The Parties Agreement Prior to the Divorce [9] The portion of the Minutes of Settlement that are relevant to this Application are found in clause 17 of the Minutes are asfollows: Spousal Support 17. With respect to Spousal Support,

a) Pursuant to the terms of this Agreement, the Defendant has paid to the Wife as spousal support, the amount of $2,428.00 per monthfor each and every month from January 1, 2007 to and including July 1, 2007. (herinafter called the “Prior Spousal Support”)

b) Commencing on January 1, 2009, and continuing on the first of each and every month thereafter, the Defendant shall pay to thePlaintiff for her support all of the share of the Weyerhaeuser Pension that he receives (the “Weyerhaeuser Support”) which is currentlyanticipated to be approximately $725.00 per month.

c) The payment to the Plaintiff by the Defendant of his share of the Weyerhaeuser Pension shall be paid, commencing on January 1,2009 and continuing on the first day of each and every month until and including April 1, 2015. After April 1, 2015, the Defendant shallbe entitled to receive the payments from his share of the Weyerhaeuser Pension Plan.

d) The Weyerhaeuser Support payment shall be based on the amount of the payment that the Defendant receives from Weyerhaeuserafter usual deductions are withheld. The Defendant will not claim the Weyerhaeuser Support payments as a deduction on his IncomeTax Returns and the Plaintiff will not be required to Claim the Weyerhaeuser Support as income on her tax return.

e) Either party is at liberty to apply to the court for directions in the event that there is a dispute with respect to the amount of taxwithheld on the Weyerhaeuser Support Payments or as to the treatment of the claiming or deducting of taxes by the parties.

f) From May 1, 2015 until and including December 1, 2016 (when the Plaintiff reaches the age of 65), if the Defendant’s gross incomeexceeds the Plaintiff’s income by more than $300.00 per month, the Defendant will pay to the Plaintiff as spousal support an amountequivalent to one-half of the amount by which his income exceeds her income. After December 1, 2016, it is anticipated that the partiesincomes will be similar and no support shall be paid by either party to the other.

g) Either party may seek to vary spousal support if there is a material change in circumstances that affects the financial needsor abilities of either party.

h) Subject to sub-paragraph (

d) above, all spousal support paid since January, 2007 shall be i. included in calculating the Plaintiff’s income for the years that the Wife received it, and ii. deducted in calculating the Defendant’s income for those years. (Emphasis Added) [10] The Respondent now applies for this order relying on clause 17

g) of the Minutes of Settlement by claiming there has been “amaterial change in circumstances that affects the financial needs or abilities of either party.” As a result, it is necessary to determine onwhat basis this court may make an order for spousal support that is inconsistent with the Minutes of Settlement signed by the parties. Putanother way, does the parties’ clause 17(

g) govern the circumstances in which this court may interfere with the support set out in theMinutes of Settlement? Issue 1: The position of the parties [11] Counsel for Mr. Van Steinburg argues that the Minutes of Settlement “take this particular matter outside the confines of [Miglinv. Miglin, 2003 SCC 24 , [2003] 1 SCR 303 [Miglin]]”. In response to the Claimant’s reliance on Miglin he submits that “theinitial test of whether the agreement is in substantial compliance with the objectives of the Act is not applicable in this case”. From this Igather that the respondent argues that if Miglin applies at all, the threshold that must be met at the second stage of the analysis is a

“material change in circumstances” as set out in clause 17(

g) of the Minutes of Settlement. He notes that the variation clause “works both ways” meaning that Ms. Steinburg would have been able to apply for an increase in spousal support had Mr. Van Steinburg attained employment on par with his former employment at Weyerhaeuser. In terms of establishing a change as required by 17(g), the respondent argues that two material changes have occurred. First, the significant downturn in the economy was one which not even the best of economists could have foreseen, and second, that Mr.

Van Steinburg has been, and will continue to be, unable to find work operating a front-loader because of his back pain issues. [ 12 ] Ms. Van Steinburg’ counsel relies on Miglin for the proposition that, “unimpeachably negotiated agreements that represent the intentions and expectations of the parties and that substantially comply with the objectives of the Divorce Act as a whole should receive considerable weight”: headnote of Miglin .

The claimant says that, at the time the Minutes were entered into, the respondent knew that his income would be reduced; in other words, the current circumstances were contemplated at the time of the agreement. Ultimately, she argues that there has been no change in circumstances affecting the needs or abilities of the parties that support making an order inconsistent with the agreement. In making this argument the claimant submits that the respondent has voluntarily retired, and that his income should be imputed to take his under-employment into account.

She further submits that the respondent has not made full financial disclosure as to his efforts to seek employment, and finally, she takes issue with the conclusions to be drawn from the medical evidence of the respondent. The Law: [ 13 ] The relevant portions of

section 15.2 of the Divorce Act provide: Spousal support order 15.2

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

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. Factors

(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 (

a) the length of time the spouses cohabited; (

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

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

(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 any obligation 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. [ 14 ] In Miglin v. Miglin the Supreme Court of Canada answered the question of whether a court on a 15.2 application could interfere with an agreement which was final as to support obligations.

In addition, the Court took the opportunity to address the broader question of assessing the proper weight to be given to any type of spousal support agreement where one party subsequently seeks to modify the terms thereof by pursuing an initial application in court for a determination of support under s.15.2 of the Divorce Act : at para 2. Justices Basterache and Arbour, for the majority, drew a clear distinction between the analysis on an initial application for an order ( s.15.2 ) and a variation application (s.17).

This distinction was recently clarified in the majority decision of the Supreme Court of Canada in L.M.P v. L.S , 2011 SCC 64 at paras 24-28 . [ 15 ] The Court in Miglin set out a two-stage inquiry to determine whether the court should exercise its discretion in making a support

order where there is a pre-existing agreement on the issue of support. Does Miglin apply to the circumstances of this case? In Miglin, at para 2, Abella J. and Basterache J., writing for the majority, stated: [2] In broader terms, the appeal raises the question of the proper weight to be given to any type of spousal support agreement thatone of the parties subsequently wishes to have modified through an initial application in court for such support.

In that sense, the matteris not restricted to spousal support agreements that contain a time-limited support arrangement or to agreements which contain a full andfinal release from support obligations by one or both parties. [16] It would appear from this early passage that the Court intended that agreements which had variation clauses, or were otherwise‘not final’ were to be governed by this new test. [17] This

interpretation was applied in Fitzgerald v. Gerlich, [2003] O.J. No. 1946, [2003] O.T.C. 425 (Ont. Sup. Ct.). In that case,the agreement between the parties was reviewable after a specified date, but also subject to variation in the event of a “material change incircumstances”. In discussing the basis for review, the Court stated: [48] The issue of spousal support for Ms. Fitzgerald is to be decided under s. 15.2 of the Divorce Act.

It is an application in the firstinstance, not a variation application, despite the existence of a separation agreement in which spousal support provisions are included.Therefore there is no requirement for a finding of a material change in circumstances before a court can alter the spousal supportprovisions in the agreement. (Miglin v.

Miglin, 2003 SCC 24 , 2003 S.C.C. 24) "... it is not the existence of change per se thatmatters but whether, at the time of the application, all the circumstances render continued reliance on the pre-existing agreementunacceptable." [18] In Fitzgerald, the Court applied Miglin and took into account the parties current circumstances, imputed income to theClaimant, and made an order which adjusted the Respondent’s spousal support obligation to take into account the priority of the childsupport ordered. [19] Since the Supreme Court of Canada’s decision in Miglin, there has been considerable confusion in terms of whether the Miglintest applies to all sec. 15.2 applications.

Specifically, some courts and commentators have questioned the applicability of Miglin toscenarios such as this; where there is an agreement on spousal support, but that agreement cannot be said to be “final” because it containsa variation clause. Henteleff v. Henteleff, 2005 MBCA 50 provides an example of how courts have questioned the applicability of Miglinin such cases. The following passage from Henteleff is apposite: 3 The parties were married in 1953, separated in 1987 and were divorced in 1996. There are four children of the marriage, all of whomhave long since become adults.

Following separation, the parties executed two settlement agreements; the first dated March 10, 1988,with an addendum dated May 25, 1988. (The two agreements will be referred to as the agreement.) 4 Under the agreement, the husband is obliged to provide spousal support of $2,000 per month. However, the agreement envisioned anautomatic reduction of spousal support based upon the wife's receipt of Canada Pension Plan payments.

Following execution of theagreement, she began to receive a share of the husband's CPP in the sum of $220 per month, thus reducing his obligation to $1,780 permonth. 5 The agreement contains a provision allowing an application to decrease spousal support on the basis of "a significant change incircumstances." 6 At the trial, which took place in May of 2003, evidence was presented that the husband's income from practising his profession as alawyer had dropped very significantly.

Moreover, he was 76 years of age or thereabouts at the time of trial and wished to retire. 7 In rejecting the application of the husband, the trial judge was invited to and did rely upon the decision of the Supreme Court ofCanada in Miglin v. Miglin, [2003] 1 S.C.R. 303, 2003 SCC 24. With respect, I do not think the Miglin decision has any application.

Itdealt with an application to reduce spousal support as set forth in a separation agreement which was final in nature and did not contain aclause comparable to the provision in the present agreement relating to "a significant change in circumstances." ... 9 In my view, there is no doubt that changes had taken place.

There was a drastic reduction in the husband's income from practising hisprofession, and the husband's desire to retire from active practice was entirely legitimate. [20] In that case, the Court of Appeal went on to explain why there were “offsetting reasons” to reject the husband’s application:para 10. [21] In a paper by Professor Rollie Thompson, who co-authored the Spousal Support Advisory Guidelines (SSAG), he writes, “thefull force of Miglin is only intended to apply to “final agreements”, agreements in which spousal support is waived or time limited”.

Hegoes on to say that agreements which are not incorporated into an order and that contain variation clauses are not final: See ProfessorD.A. Rollie Thompson, To Vary, To Review, Perchance to Change: Changing Spousal Support (Presented at the 5th Annual Family LawSummit, June 17, 2011), at p. 4-5. [22] However, in the Spousal Support Advisory Guidelines (“SAGGs”) Carol Rogerson and Rollie Thompson (Ottawa: Dept. ofJustice, 2008), have this to say on the issue of modifying spousal support: If spousal support has been negotiated, the result will be a separation agreement that deals with spousal support.

The possibilities for

reviewing or modifying spousal support that the spouses have agreed upon will depend on many factors, including the drafting of the agreement and whether or not the agreement has subsequently been incorporated into the divorce judgement. We will deal first with the situation where there has been no incorporation of the agreement. The effect of subsequent changes in the parties’ situation will be governed by the terms of the agreement.

If the agreement provides for reviews by the parties at specified times or if it includes a material change clause, and if the conditions for these are met, it is possible for the Advisory Guidelines to apply to determine amount and duration. However, the Advisory Guidelines will have no application if the agreement is a final agreement in which spousal support has been waived or time-limited . (Ch. 14, p. 142) (Emphasis added). [ 23 ] The pertinent question is whether the Van Steinburg’s Minutes of Settlement was a “final agreement” which triggers the application of Miglin .

I pause to note that there is some internal discrepancy on this point, which warrants a brief review. [ 24 ] The first paragraph of the Minutes of Settlement indicates that the agreement is a “full and final settlement of all issues”. In line with this notion, clause 17(

f) puts a time limitation of the period for spousal support. To review, that clause reads as follows: From May 1, 2015 until and including December 1, 2016 (when the Plaintiff reaches the age of 65), if the Defendant’s gross income exceeds the Plaintiff’s income by more than $300.00 per month, the Defendant will pay to the Plaintiff as spousal support an amount equivalent to one-half of the amount by which his income exceeds her income. After December 1, 2016, it is anticipated that the parties incomes will be similar and no support shall be paid by either party to the other. [ 25 ] However, clause 17(

g) provides a basis for variation of the amount of spousal support in the event of a “ material change in circumstances that affects the financial needs or abilities of either party”. [ 26 ] It is my view that, unfortunately, clause 17(

g) was inserted into the Minutes of Settlement without much thought to given to its meaning. Having said that, the words of the clause bear at least two possible

interpretations. [ 27 ] The first is that the parties intended this clause to recognize the “material change in circumstances” threshold for making an application for variation of an order under s.17. In other words, they were merely incorporating into their agreement the common law requirement of a “material change in circumstances” for a variation order under s.17. This

interpretation was advanced by Mrs. Van Steinburg’s counsel in closing submissions. [ 28 ] The other possible

interpretation is that the clause was meant to be interpreted more broadly, that is, to apply to the current situation where one party is seeking an initial order to determine spousal support under s.15.2. Under this broader

interpretation, it would appear that the parties anticipated the type of application currently before the court and that 17(

g) can be read to demonstrate the parties’ intention to establish a threshold for the parties to meet before applying to the courts on a s.15.2 application. [ 29 ] On the whole of the evidence, I find this latter

interpretation to be more plausible. While paragraph 17(

g) suggests that the parties intended their agreement to be treated with significant deference, the parties must have considered, or at least their counsel must have known, that despite entering into Minutes of Settlement, it remained open to either side to seek an initial order under s.15.2 . [ 30 ] Returning to whether to apply Miglin in this instance, a full reading of the Minutes of Settlement and specifically the whole of clause 17 suggests that the Minutes do not provide a final agreement with respect to spousal support. Relying on the Manitoba Court of Appeal decision of Henteleff , I conclude that clause 17(

g) should be followed to determine whether there is a basis for me to make an order that is inconsistent with the Minutes of Settlement. As a result, I must review the financial circumstances of the Respondent as of the date of the Minutes, ie. June 17, 2008, and compare those circumstances to his current situation to determine if there has been a material change in circumstances. Following that, it will be necessary to compare changes in the Claimant’s financial situation. If a material change is found, I will exercise my discretion to make an order which both gives due weight to the parties’ agreement and to the other considerations required of me by the wording of

section 15.2 . Application: Changes to the Financial Needs and Abilities of the Respondent [ 31 ] It was anticipated at the time the Minutes of Settlement were executed that the Respondent would likely be required to accept a significant reduction in his income and this anticipation was reflected in the reduction in spousal support reflected in clauses 17

a) and 17

b) of the Minutes. Prior to receiving notice of his termination by Weyerhaeuser, the Respondent had been paying spousal support of $2,428 per month for the first six months of 2007. [ 32 ] Then, on July 1, 2007, an order was made requiring the Respondent to pay $1,750 spousal support per month, which was based on either his income for 2006 or his current income in 2007 which was approximately $65,000. [ 33 ] By the time the Minutes were executed in June of 2008, the Respondent was not working and in clause 17

b) of the Minutes, the parties agreed on spousal support consisting of the Respondent’s share of his IWA pension which was estimated at the time to be approximately $725 per month. [ 34 ] I conclude from the events surrounding the termination of his employment by Weyerhaeuser and the two reductions in the monthly spousal support referred to above, that there were still uncertainties as to the Respondent’s future in the work force and as an interim measure, the spousal support payable would continue to be the funds available from the Respondent’s portion of the IWA pension. Clause 17

g) of the Minutes contemplated that the amount of spousal support would be adjusted depending on material changes to the parties affecting their financial circumstances which, in the case of the Respondent, would likely have been income which he would derive from any future employment. The only certain income available to the Respondent as of June 2008 would have been benefits received under the IWA pension and the Respondent was willing to accept the uncertainties surrounding future employment and

any income that may materialize. [ 35 ] Since the summer of 2008 the Respondent has worked very briefly as a front-end loader operator for Teck Corporation before he had to quit due to back pain. The Claimant has deposed that the Respondent has also worked at a gardening centre and for a chimney servicing company since 2008 however, if that is so, the time he spent on those jobs was minimal. Commencing May of 2011, the Respondent found employment performing miscellaneous tasks at the Days Inn Hotel in Penticton from which his income in 2011was $6,936.

He has continued to work at the Days Inn during 2012 and during January and February had earned $1,757 which, if that work continued, would amount to an annual income from employment of approximately $10,000. His current rate of pay is $12.50 per hour and so even if he did receive more hours of work, the total income from this employment would not increase significantly. [ 36 ] In the years 2009 - 2011 the income of the Respondent from all sources, which includes pension income, CPP benefits and nominal employment income, has ranged from $25,805 in 2009, $15,474 in 2010 and $23,904 in 2011.

From the evidence before me, I see no reason to anticipate that his income for 2012 will be significantly more than reported for 2011. [ 37 ] I also understand from counsel for the Respondent that the Claimant has not been required to claim as income the spousal support she receives from the Respondent’s IWA pension fund and also that such income is included in the Respondent’s declared income for income tax purposes. [ 38 ] I should also mention that there was a distribution of family assets provided for in the Minutes of Settlement which included funds from the sale of the family home, the termination benefits from Weyerhaeuser and receipt by the Claimant of a lump sum payment of her portion of the Respondent’s IWA pension.

This lump sum payment would otherwise have been payable to the Claimant as income; the significance of which I will return to later in these reasons. The Respondent has provided an accounting of his use of the funds allocated to him under the Minutes of Settlement which appears reasonable including the purchase of a pick-up truck to which the Claimant has objected.

The Respondent does have some savings remaining which amount to approximately $40,000 but owns no real property or other assets of significant value save the pick-up truck which now has a purported value of $10,000. [ 39 ] Other than his remaining half of the IWA pension which was a family asset and was divided equally under the Terms of Settlement in 2008, the Respondent will have no further pension income other than his CPP and, in the future, his Old Age Pension. [ 40 ] Counsel for the Claimant has also urged me to take into account the fact that the Respondent has remarried as of November 2011 and his current wife has income which should be considered in this application.

It is not appropriate to take Mr. Van Steinburg’s spouse’s income into account in determining his ability to pay spousal support except insofar as Ms. Van Steinburg argues that Mr. Van Steinburg has voluntarily retired without concern for his spousal support obligations and that income should therefore be imputed to him. Should additional income be imputed to Mr.

Van Steinburg? [ 41 ] The Claimant continues to assert that the Respondent is employable in his former occupation as a heavy equipment operator, that there is considerable work available in that field for experienced operators and he is not so incapacitated due to his back injuries so as not to seek and maintain employment as a heavy equipment operator.

In the alternative, the Claimant argues that the Respondent should be working close to full-time hours at his current rate of pay. [ 42 ] With respect to the first assertion, I do not agree with the Claimant’s position and my conclusion in that respect is based on several factors including:

a) An opinion from Mr. Van Steinburg’s doctor that his back pain has been caused by many years as the operator of a front-end loader and that the Respondent should not continue in that line of work considering his injuries.

b) Employers are unlikely to hire an injured 62 year old front-end loader operator when there would most likely be many healthy, younger qualified operators who would be available for an employer for an extended period of time.

c) Even if the Respondent were to obtain employment as a front-end loader, he would most likely never be able to reach an income close to what he was earning as a long-tem, unionized front-end loader operator with seniority of 37 years.

d) Shortly after execution of the Minutes of Settlement, the economy took a serious downturn which meant that there were fewer jobs available and those that were being taken were resulting in lower pay rates. [ 43 ] Realistically, considering the Respondent’s age, health and work history, the likelihood of him obtaining a position earning considerably more than he now earns is very small. [ 44 ] I also do not agree with the Claimant’s position that he has not made adequate efforts to seek more lucrative employment.

There is nothing in the evidence before me to indicate that the Respondent has voluntarily “retired” so as to avoid his spousal support obligations. [ 45 ] The fact that the Respondent continues to work at a part-time job earning, initially $10 per hour and more recently $12.50 per hour, indicates that he has accepted what is available to him within his community and in a difficult labour market.

As well, he reasonably sought employment opportunities in the circumstances including those itemized by me above. [ 46 ] Given the variation in the Respondent’s income over the last four years and when considering his current rate of pay and the hours he is capable of working, as evidenced by the pay-stubs submitted in his financial disclosure, I find that the Respondent should be able to earn an annual employment income of $16,250.

I base this figure on his current rate of pay coupled with an expectation that he work between 20-30 hours per week over the course of the year. [ 47 ] I also find that to include the Respondent’s pension income as part of his income for the purposes of determining spousal

support would constitute “double-dipping” as explained by Justice Punnet in Szczerbaniwicz v. Szczerbaniwicz , 2010 BCSC 421 : see paras. 33-35. This issue was explained by the Supreme Court of Canada in Boston v. Boston , 2001 SCC 43 , [2001] 2 S.C.R. 413 at paras. 34-37 . Changes to the Financial Needs of the Claimant [ 48 ] The Claimant has remained unemployable and continues to receive a CPP disability allowance of $847.07 in addition to the monthly payments of $971from the Respondent’s half interest in the IWA pension which together amount to $1,818 per month.

The funds received by the Claimant from the IWA pension of the Respondent is tax free and as a result, the pre-tax income of the Claimant is greater than $1,818 per month or considered annually, $21,816. [ 49 ] The Claimant lives with her parents in Penticton and according to her financial statement has no expenses for housing, i.e. rent or mortgage and no payments for utilities.

She continues to have significant funds remaining from the distribution of family assets and those funds amount to approximately $300,000, including funds in RRSPs, a Guaranteed Investment Certificate of slightly more than $100,000 and other investments; however she has not declared any investment income. Based on the financial statement provided by the Claimant, it would appear as though she is in a better financial position than she was in the summer of 2008, at least from the point of view of assets.

Has the threshold been met? [ 50 ] Based on the foregoing discussion, I conclude that there has been a material change in circumstances which affects the financial needs and abilities of the parties. I find that the current employment opportunities available to the Respondent combined with his health issues as detailed by his physician amount to a significant and material change in the Respondent’s financial circumstances as required by the Minutes of Settlement.

The amount and means of spousal support agreed to in the Minutes of Settlement were based upon circumstances anticipated in the summer of 2008; this quantum has become inappropriate given the current situation. Issue 2: Determination of Spousal Support: [ 51 ] As I have outlined above, subsection15.2(4) of the Divorce Act requires that I take into consideration the condition, needs, means and other circumstances of the parties when making an initial order for spousal support. I have already reviewed much of this information above.

However, I note that I am to consider the length of cohabitation, the functions performed by each spouse during the marriage and any agreement between the parties. [ 52 ] Here, the parties cohabited for at least 34 years and were married for roughly 36 years. The parties have not provided me with extensive information on the functions performed by each during their marriage; however what evidence I do have suggests that the Claimant has been on disability for some time and that the Respondent was the primary bread-winner, at least during the years leading up to their separation in 2006.

The parties entered into Minutes of Settlement prior to their divorce. This settlement was intended to provide for an equitable division of assets and also set out the basis for support, which I have determined is in need of some adjustment. [ 53 ] In making this order I must also consider the objectives as set out in subsection 15.2(6). I find that the Claimant’s argument for support is primarily needs-based and that in making this order I am to be mindful of my goal of relieving any economic hardship arising from the breakdown of the marriage.

Here, neither party appears to have high-value assets or streams of income, although, as I have mentioned above the Claimant has some $300,000 in funds and I would expect that she be able to derive some investment income from the sources from which those funds are comprised. Conclusion: [ 54 ] In

summary, I find that the Respondent has met the material change in circumstances threshold as set out in clause 17(

g) of the parties’ Minutes of Settlement. I have determined that the Respondent’s employment income for the purposes of spousal support is $16,250.

The Spousal Support Advisory Guidelines are of little assistance in this case due to the low income levels of both the Respondent and Claimant. [ 55 ] Taking into account the above-mentioned factors outlined in 15.2 and my understanding of the parties’ agreement as reflected in the Minutes of Settlement entered into on June 19, 2008 as compared to their changed circumstances, I find that the Claimant is entitled to receive $430 per month in spousal support payable by the Respondent for the period beginning December 1, 2012 and ending December 1, 2016; this date matches the date that the Minutes of Settlement anticipated, and which I expect, that the parties’ income will have substantially equalized.

However, given the length of the marriage and the needs-basis for support, either party may apply for a review of spousal support at that time. [ 56 ] If I am wrong in finding that the sec. 15.2 order should be determined on the basis of clause 17(

g) then I note that I would have come to the same conclusion under the second stage of the Miglin framework. [ 57 ] Neither party suggested that there was any concern with the negotiation process or the substance of the agreement at the time of execution. However, in focussing on the “agreement’s continued correspondence to the parties’ original intentions as to their relative positions and the overall objectives of the Act ” ( Miglin at para 90 ) the evidentiary record supports a finding that the current circumstances are such that the Minutes of Settlement no longer reflect the parties’ original intentions. Further, because I accept that

Mr. Van Steinburg’s back pain has worsened and now prevents him from seeking and attaining employment commensurate with his previous employment it is clear that Mr. Van Steinburg’s current employment prospects were not anticipated by the parties. Following Miglin , the parties’ current circumstances would permit me to make an order which realigns Mr. Van Steinburg’s support obligations with the objectives of the Divorce Act . [ 58 ] Each party shall bear their own costs. “Jenkins J.”