Easton v. Easton

2005 BCCA 245 Easton v. Easton COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Easton v. Easton, 2005 BCCA 245 Date: 20050415 Docket: CA032267 Between: Paula Elizabeth Easton Respondent (Plaintiff) And Jay Robert Easton Appellant (Defendant) Before: The Honourable Madam Justice Southin The Honourable Madam Justice Prowse The Honourable Mr. Justice Hall Oral Reasons for Judgment J.R. Easton Appearing on his own behalf P.E. Easton Appearing on her own behalf Place and Date: Vancouver, British Columbia 15 April 2005 [1] SOUTHIN J.A.: This is an appeal by Mr. Easton, the defendant below, from the order of Mr. Justice Burnyeat pronounced 13 August 2004. That order was in these terms: THIS COURT ORDERS THAT: 1. Subject to s. 12 of the Divorce Act (Canada), the Plaintiff, Paula Elizabeth Easton, and the Defendant, Jay Robert Easton, who were married at Burnaby, British Columbia on August 3, 1991, are divorced from each other, the divorce to take effect on the 31st day after the date of this order. UPON THE COURT being advised that the name and birthdate of the child of the marriage is SCOTT ROBERT EASTON, born June 29, 1994 ("Scott"). AND UPON the Defendant (Payor) having been found to have a guideline income of $68,721.00 per annum and the Plaintiff having been found to have a guideline income of $9,828.00 per annum. THIS COURT FURTHER ORDERS THAT: 1. The Defendant shall pay to the Plaintiff the sum of $461.18 per month for the support and maintenance of Scott commencing September 3, 2004 and continuing on the 3rd day of each and every month thereafter for so long as Scott is eligible for support pursuant to the Divorce Act (Canada) or otherwise at law. 2. Any extraordinary expenses pursuant to section 7 of the Child Support Guidelines for Scott, which currently is his tutoring expense, shall be paid 88% by the Defendant and 12% by the Plaintiff, except that the Defendant shall pay 100% of Scott's sports activities. 3. The Defendant shall maintain Scott on any medical and dental plans available to him through his employment for so long as such coverage is available. 4. The Defendant's applications for a declaration that the Plaintiff has failed to become self-sufficient and to cancel spousal support are hereby dismissed. 5. The Defendant shall pay to the Plaintiff for her support, the sum of $267.79 on August 20, 2004 and commencing September 03, 2004, the Defendant shall commence payments of $450.00 every two weeks and such payments shall continue with no end date. 6. The Defendant shall have liberty to apply to the court to revisit the issue of spousal support after January 01, 2006. 7. The Plaintiff shall give notice to the Defendant if she makes an application for employment in the future, and such notice shall include whom she is applying to and the nature of the work applied for. 8. The Plaintiff shall give notice to the Defendant if she receives a change in prognosis from her family doctor or her psychiatrist, Dr. Pole. 9. Each party shall provide the other party with their current T4 statements by April 15 of each year and a copy of their current income tax return including all schedules and attachments by May 15 of each year. 10. The Defendant shall provide the Plaintiff with copies of his pay stubs from employment as a firefighter and an ambulance attendant on a quarterly basis each year. 11. The provision 3(g) in the Order of Mr. Justice Chamberlist made March 17, 2004 requiring the parties to mediate any major decision regarding Scott before proceeding to court is hereby deleted. 12. Mr. Justice Burnyeat is hereby seized of any future applications made by either party relating to custody and access of Scott, spousal support, child support or for special costs in this action. 13. The Defendant's application for costs as it relates to spousal and child support is dismissed. 14. The Defendant's application for double costs pursuant to Rule 37 of the Rules of Court relating to custody, guardianship and access is dismissed. 15. Each party shall bear their own costs, including costs on this application. 16. Either party is at liberty to bring an application for special costs. [2] Mr. Easton is troubled by a number of the terms. The first term which concerns him is the fifth term which deals with the question of spousal support. Mr. Easton has argued that the learned judge erred in his conclusion that Mrs. Easton was incapable of being self sufficient. His primary attack on that finding is that the medical evidence should not have been accepted for a number of reasons. That evidence was of a psychiatrist, Dr. Pole. There was, however, no contrary evidence. Mr. Easton is not without some justification in criticizing the scope and tenor of Dr. Pole's reports. Dr. Pole did in my view go beyond what he was asked to comment on into aspects that really are not within the expertise of a psychiatrist consulted in this way and it would have been better had he been more restrained in his reports. But be that as it may, the core issue is one which the learned judge had to decide and he concluded that, taking everything into account, Mrs. Easton was not disentitled to spousal support and this Court is not able to interfere with that finding of fact. [3] A further term that concerns Mr. Easton is the sixth term. I think I can say that we are all of the view that a term of that kind does not exclude an application before the fixed date if there is a material change in circumstances. But though that is our view, in order to make it clear, I would allow the appeal to the extent of amending the term by adding to it "or before that date if there is a material change in circumstances". [4] The next matter I wish to address is the tenth term. In my view, that is imposing an unnecessary amount of paperwork on Mr. Easton. Every year he must file his income tax return. If his income has risen substantially and he has not informed Mrs. Easton of that, especially on the matter of child support, then he may find an order being made which is retroactive in order to see that he pays according to the Guidelines. [5] The eleventh term is one that seems to me to do no harm to anyone. If after all there is to be mediation, it could only be by consent of the parties and if they consent, no term in any order is necessary for the purpose. [6] I note that I should have dealt with term 2 which deals with the matter of extraordinary expenses. As I understand it, since the hearing below, Scott is no longer receiving tutoring so that whatever may be said about the correctness or otherwise of the distribution of those expenses is essentially now a dead letter and under those circumstances I see no reason to do anything about the term in issue. If as and when there are ever any extraordinary expenses in the future and the parties cannot agree on how they are to be paid, they may have to go back to court and at that time the judge will have to address the facts as they are before him then, not as they were at the time that this order was made which was on 13 August 2004. [7] The only other matter that I think should be addressed is term 16 of this order. It should be deleted. I do not know quite what its point was since the learned judge ordered that the parties should each bear their own costs and that being so, anything further on the subject was an irrelevancy. [8] So the order will be the appeal will be allowed and the order amended in the manner which I have addressed. Apart from that, it will remain as the judge made it. [9] PROWSE J.A.: I agree. [10] HALL J.A.: I agree. [11] SOUTHIN J.A.: There will be no costs of this appeal. "The Honourable Madam Justice Southin"