T.J.M. v. C.R.M.

2009 BCSC 1122 T.J.M. v. C.R.M. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: T.J.M. v. C.R.M., 2009 BCSC 1122 Date: 20090817 Docket: E25667 Registry: New Westminster Between: T.J.M. Plaintiff And C.R.M. Defendant Before: The Honourable Mr. Justice Joyce Reasons for Judgment Counsel for the plaintiff: T.P. Harding Counsel for the defendant: R.L. Taylor Place and Date of Trial: New Westminster, B.C. August 20-22 and 28; November 17-21, 2008; and April 3, 2009 Place and Date of Judgment: New Westminster, B.C. August 17, 2009 INTRODUCTION [1] In this family law proceeding the plaintiff husband seeks a divorce and corollary relief including sole custody and guardianship of the parties' two children with supervised access to the defendant, lump sum child support and an unequal division of family assets in his favour. [2] The defendant wife counterclaims for a divorce and seeks joint guardianship of the children with their primary residence to be with the plaintiff, generous access including alternate weekends and one evening during the week, and an order that the plaintiff not remove the children from the Lower Mainland of British Columbia. She also seeks reapportionment of family assets in her favour, a compensation order for inheritance monies taken from her by the plaintiff, an order that the plaintiff pay a debt the defendant alleges is owing to her mother, and an order for retroactive and prospective spousal support. BACKGROUND [3] The plaintiff was born in 1955 in the Netherlands. He immigrated to Canada in 1995. The plaintiff is a cabinet maker by trade and is self-employed as a cabinet installer. [4] The defendant was born in 1953. While she has not been employed outside the home since 2002, she assisted the plaintiff to some extent with aspects of his business. The defendant has a long history of mental illness. Since 1990, the defendant has been committed under the Mental Health Act, R.S.B.C. 1996, c. 288, on ten occasions because of her mental illness. [5] The defendant has been diagnosed at various times as having schizoaffective disorder or bipolar disorder. Her current treating psychiatrist, who gave expert opinion evidence, has diagnosed bipolar affective disorder. [6] The parties met in December 1998 and married on August 28, 1999. [7] The plaintiff testified that when he met the defendant he noticed that her speech was a bit off and she seemed quiet at times but he said he was not aware of her psychiatric problems before the marriage. He said he learned of them shortly after the marriage. The defendant disputes this and testified that she told the plaintiff about her condition before they were married. In my view, nothing much turns on this dispute. [8] In 2002, the parties adopted two sisters from Russia, M.M., who was born December 25, 1993 and K.M., who was born on February 4, 1997. The children were orphaned in 1997, when their mother died in tragic circumstances. M.M. discovered her dead mother and took her baby sister to relatives who later placed the girls in an orphanage. [9] The plaintiff testified that there were a few times before they adopted their children when the defendant suffered episodes during which she became paranoid. She thought people were trying to break into their house, stealing her bank statements, watching house their house and tapping their telephone. He said that during these episodes the defendant thought people were listening to their conversations. There were other problems. Sometimes she accused the plaintiff of stealing her things. During these episodes the defendant was also fearful of her former boyfriend and of her brother. [10] In December 1998, the plaintiff took the defendant to Surrey Memorial Hospital because she was having an episode of paranoia. She was examined at the hospital but not admitted. [11] In May 2006, the defendant was committed to hospital and spent 6 weeks in the psychiatric department of the Surrey Memorial Hospital. [12] When the defendant was released from hospital at the beginning of July 2006 the family planned a camping trip. As they were preparing to leave, the defendant became very paranoid. While the plaintiff and children were in a store buying some ice the defendant tried to drive off in their van. A struggle ensued and the plaintiff was finally able to place the van in park and remove the keys. The plaintiff called 911 and Mental Health. The police initially let the defendant return home but she would not go into the house and continued to walk up and down the street until the police finally took her to the hospital where she was admitted and remained until September 2006. [13] It appears that while the defendant was in hospital on this occasion the plaintiff decided to separate from the defendant. On October 10, 2006, the plaintiff obtained an interim order without notice, restraining the defendant from any contact with him or the children, restraining the defendant from entering any residence of the plaintiff and children, and granting the plaintiff exclusive occupancy of the family home. [14] On December 13, 2006, the court made an order that the defendant have supervised access to the children with a person agreed to by the parties, at such times as agreed upon between the parties. [15] For a period of time access was exercised in the presence of the defendant's mother until an incident that occurred at Cultus Lake in July 2007. The defendant got into a dispute with M.M. when the defendant would not return M.M.'s cell phone to her and the grandmother got involved in the dispute. Since that time the children have not wanted to visit in the presence of their grandmother. [16] On December 18, 2007, a further order was made permitting the defendant to have telephone access once per day with the children, providing for some limited supervised access over the Christmas period, as well as supervised access commencing December 23, 2007, for six consecutive Sundays. The order provided that access could not be supervised solely by the defendant's mother. The order further provided that if the six access visits proceeded without incident the defendant would have unsupervised access for four hours on four consecutive Sundays. If those four visits proceeded without incident, the defendant would have unsupervised access for eight hours on four consecutive Sundays. Finally, if those four visits proceeded without incident, the defendant would have unsupervised access for ten hours every Sunday. The order further provided that a custody and access report was to be prepared pursuant to s. 15 of the Family Relations Act, R.S.B.C. 1996, c. 128. [17] The access arrangements contemplated by the Order of December 18, 2007 did not proceed as hoped and such access as the defendant has had with the children has been supervised. That access has been extremely limited, consisting of five or six access visits. [18] Unfortunately, the custody and access report was never prepared. [19] On February 22, 2008, the plaintiff was ordered to pay to the defendant spousal support of $1,200 per month commencing November 1, 2007 and the issue of retroactive spousal support was adjourned to the trial. The plaintiff is current with the support payments. [20] The plaintiff and children have continued to reside in the former family home, which the plaintiff values at approximately $425,000, against which is a registered mortgage with an outstanding balance of approximately $132,000. The defendant is currently residing with her elderly mother. She testified that she is supposed to pay her mother $925 per month but has not always been able to do so. [21] It is the plaintiff's desire to move with the children to Kamloops, where he has family, and to operate his cabinet installation business in that city. The defendant is opposed to the proposed move. DIVORCE [22] There has clearly been a breakdown of the marriage in accordance with s. 8(2)(a) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and the parties are entitled to a divorce. The divorce will take effect 31 days from this date. CUSTODY, GUARDIANSHIP AND ACCESS [23] During the course of the trial the defendant abandoned her claim for custody of the children. She concedes that the children wish to remain living with the plaintiff and that he is capable of properly parenting them. She does not contest his claim for sole custody of them. However, the defendant seeks an order for joint guardianship on the "Master Joyce" model. She also seeks generous unsupervised access. The plaintiff submits that access should continue to be supervised given the defendant's psychiatric illness and what he says was her mistreatment of the children as a result of her illness. [24] Whatever the precise diagnosis, I am satisfied the defendant has a long-standing and serious psychiatric illness, which affects her ability to function satisfactorily when she suffers acute episodes. She spent the following periods of time in hospital because of her psychiatric illness: · April 1990 - 14 days · October - November 1990 - 43 days · September 1995 - amount of time not in evidence · November - December 1995 - 30 days · December 1996 - 17 days · September 1997 - 14 days · May - June 2006 - 4 weeks · July - August 2006 - 4 weeks · April 25 - August 15, 2008 - 112 days [25] Dr. Luke began to see the defendant on September 26, 2006. Her report, dated October 31, 2008, contains the following: [C.M.] has a Bipolar Affective Disorder which goes into long remission with adequate medication. ... [C.M.] has been distraught at the thought of losing her girls because somehow the husband has managed to get a restraining order placed against her, for what reason is unclear, given that she was never unkind to the girls. Certainly, she had a Bipolar Disorder which began when she was 40, but was well controlled on medication, and she has always been compliant with her medication, and is appreciative of all the help she is getting from her past employers and friends. The separation and her concern about the children had caused her to become more upset and in January, 2007, she was going to a support group for persons with Mood Disorders and was attending twice a month. She was also taking a parenting course through Options ... I have been seeing her since her initial visit in September, 2006. She has always been pleasant, tidily dressed, and positive in her outlook, although there are periods when she has been distraught and greatly concerned as to the outcome of this situation. She has never been engaged in dangerous behaviour and I believe it is the stress of the marital situation which precipitated this last hypomanic attack in approximately January, 2007. She is not a threat to her children or any other person. [26] Dr. Luke testified at trial that the defendant's current medical condition does not interfere with her ability to have ongoing contact and a relationship with her children. She agreed, however, that stress is a trigger for relapse and that she could not say when the defendant might have another relapse. [27] I note that even though Dr. Luke stated that the defendant went into long remission with adequate medication, she suffered a significant relapse requiring prolonged hospitalization while she was under Dr. Luke's care. Further, whereas Dr. Luke stated in her report that the defendant has always been compliant with her medication, she testified at trial that there were occasions when she did not take her medication and Dr. Luke changed medications because the defendant was reluctant to take those that were initially prescribed. [28] It is my view, based upon all of the evidence, including that of the plaintiff that when the defendant is stable she does not pose any threat to the children. Furthermore, it appears to me that the incidents of mistreatment in the past as alleged by the plaintiff have been blown somewhat out of proportion. [29] The plaintiff testified that when the children were adopted the defendant took care of them on a daily basis and did a very good job at the beginning. The plaintiff conceded that the defendant had been active in the children's development by acting as a Brownie leader, maintaining their use of the Russian language, involving the children in piano and arranging for other extra-curricular activities. However, he testified that when the defendant suffered episodes of mental illness she was overly strict with the children and forced them to do more chores than was reasonable. [30] Over the objection of counsel for the defendant, I ruled that M.M. could give evidence at the trial. She was then almost 15 years old and is now almost 16. In describing the defendant's conduct towards the children, M.M. said that her mother made her and her sister eat everything on their plates when it was too much food, made them do too much housework and would scream at them when they did not do the work. She also said that the defendant screamed at K.M. and hit her or slapped her. She also said that her mother accused them of stealing her things. [31] M.M. also testified about an incident at a garage sale with her mother's friend when she got into an argument with her mother about whether her mother or her mother's friend should receive the money for an item that was sold. M.M. testified that mother screamed at her and hit her. Later, in response to my question to clarify, M.M. said that her mother grabbed her and tried to get the money from her and was "slapping my hand and stuff". Another acquaintance of her mother, who also testified at trial, said that the defendant yelled at M.M. but did not strike her. [32] M.M. also testified about an incident when, in jest, the defendant sprayed her with some water and got her homework wet. She got angry and kicked her mother and her mother kicked her back. [33] In response to my questions, M.M. confirmed that apart from the incident at the garage sale and the incident concerning the homework, there were no other occasions that she could recall when her mother struck her. [34] M.M.'s position with respect to access, while not determinative, is entitled to consideration, particularly given her age. When asked by plaintiff's counsel whether she would like to continue having visits with her mother, M.M.'s response was: Maybe once in a while, but not often ... because I don't want to see my mom all the time because every - most of the time I see her she's sick and she doesn't realize what she is doing. [35] It appears to me that M.M.'s greatest concern is that she not have to visit with her mother when her mother is not well. [36] I considered the evidence of the other witnesses who testified about the relationship between the children and the plaintiff and defendant. The witnesses called by the plaintiff, including his niece, a family support counsellor who worked with the plaintiff and children and counselled the children concerning access, his sister and a friend, spoke of the plaintiff's positive relationship with the children and of his capabilities as a parent. [37] The witnesses called by the defendant included an acquaintance whose children know M.M. and K.M., but who is not a close friend. She testified that she has never observed the defendant act inappropriately towards M.M. and K.M., and that she has left her own children in the defendant's care. An acquaintance of the defendant, who attends the same church and has supervised the defendant's access on two occasions in May 2007 and January 2008, testified that the access went well. The defendant seemed concerned for the children and the children responded to the defendant as though they respected her as their mother. The rector at the defendant's church spoke of the defendant's involvement with the children at church prior to the parties' separation and said they appeared to have a normal mother/child sort of interaction. He said he has not observed conduct on the defendant's part towards the children that put them in any danger but he did say that he considered that when he visited the defendant in hospital in 2006 she was not in a condition to be able to look after children. In his view, the children are the defendant's primary focus and she wants what is best for them. [38] Another witness, whom the defendant knows through the children's school said the defendant's interaction with the children seemed normal. This witness supervised one access visit in February 2008 when she thought there was a strain between the defendant and the children at first but they became more comfortable as the visit proceeded. [39] Another acquaintance who knew the family before the separation and who supervised some access visits testified that the defendant was very caring and giving towards the children and appeared to want to give them the best. She said that after the separation, when she supervised access, the children were not as open with their mother. [40] I am not persuaded that the defendant poses any real risk to the children, particularly when she is well. The evidence is that as long as she continues to take medication as prescribed she should do well. [41] M.M. impressed me as being quite mature for her age. It appears to me that she is also very capable of handling herself and her sister. It is clear that she has adopted a mothering role with regard to her sister. It was also my impression that M.M. had a considerable knowledge concerning the litigation between her father and her mother, and has been involved in the process. In any event, I am satisfied, given M.M.'s age, maturity and ability to look after herself, that she and her sister would not be at risk if they were to have day access with their mother. If any incident arose I have no doubt she would be able to take care of herself and her sister. In reaching this conclusion, I have considered the evidence of the family support counsellor, who thought that access should be in a controlled, supervised setting. However, supervised access has been very difficult to organize. Balancing what I consider to be the need for some ongoing access with the requirement to ensure the children's safety, taking into account the ages of the children and the defendant's current condition, I do not think supervision is required at this time. [42] Considering the fact that there has been almost no access for over two years, the ages of the children and the views expressed by M.M., I do not believe it would be in their best interest that frequent or prolonged access be forced upon them. In my view, such an order would very likely be met with rebellion and refusal and may very well cause a further deterioration in the relationship between the defendant and the children. [43] I have decided, therefore, that access should be for a period of six hours on each of two consecutive days each month. The access need not be supervised. I believe it is time for the children and their maternal grandmother, with whom they once had a good relationship, to bury the hatchet so to speak. Further, the defendant lives in her mother's home. Consequently, I will not order that access may not take place in the presence of the maternal grandmother. [44] As regards guardianship, counsel for the plaintiff submits that the defendant's mental health renders her incapable of exercising guardianship of the children. I agree that it would not be in the interests of the children that the defendant have custody sole guardianship but that is not what she seeks. She seeks an order of joint guardianship limited by the terms of the "Master Joyce" model, which would give her the right to have input with respect to major decisions and to have her view sought and considered by the plaintiff while leaving the ultimate decision making power with the plaintiff, subject to the right of review under s. 32 of the Family Relations Act. [45] In my view, it is not the defendant's health that makes a joint guardianship order unworkable; it is the inability of these two parents to communicate and cooperate to the extent necessary to make a joint guardianship order meaningful. Having seen and heard the two parties during this trial and having considered the history of this matter, I do not believe that they have the ability to deal with each other in the manner that is required under a joint guardianship order. I do not see in them the mutual respect that is required in order to have rational, meaningful discussions concerning the matters concerning the children. By all accounts the children have done well under the care and guidance of their father. I have concluded that it is in their best interests that the plaintiff have sole custody and guardianship of them. RESTRAINT ON PLAINTIFF MOVING WITH THE CHILDREN [46] I turn next to the issue of whether it is in the best interests of the children that the plaintiff be restrained from moving with them to Kamloops. The question of whether to impose a restriction on where the custodial parent may reside with the children must, of course, be decided based solely on the best interests of the children in accordance with s. 16(8) of the Divorce Act: 16. (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. [47] I must also have regard to the principle of maximum contact provided for by s. 16(10) of the Divorce Act. As stated by McLachlin J. in Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 24, "the 'maximum contact principle', as it has been called, is mandatory, but not absolute". In my view, having decided that access on two consecutive days per month is in the best interests of these children one of the questions to be considered is how a move to Kamloops will affect that access regime. [48] Madam Justice McLachlin also commented at para. 48 on the consideration to be given to the views of the custodial parent: 48 While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is like-wise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability. [49] While this case involves an initial determination of custody rather than a variation of an existing order as in Gordon v. Goertz, the principles enunciated in that case provide guidance with respect to the issue of relocation: Nunweiler v. Nunweiler, 2000 BCCA 300, 186 D.L.R. (4th) 323. In Nunweiler, Saunders J.A. stated at para. 28: 28 The significance of the reasoning in Gordon v. Goertz in an initial determination of custody is, I consider, three-fold. First, the decision directs the court to consider the motive for a parent's relocation only in the context of assessing the parent's ability to meet the needs of the child. This, in my view, is as relevant a direction on an initial custody hearing as on a variation hearing. Second, the decision confirms the significance of the instruction, found in s. 16(10), to consider the willingness of a parent to facilitate contact, but notes that this consideration is subordinate to over-all consideration of the best interests of the child. Third, and more broadly, it approaches the issue of a relocation of residence from a perspective of respect for a parent's decision to live and work where he or she chooses, barring an improper motive. [50] I will set out the well known factors that McLachlin J. identified for the court's consideration when determining this issue in Gordon v. Goertz, at paras. 49-50: 49 ... [T]he judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) disruption to the child of a change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [51] The children have now been in the de facto custody of the plaintiff for nearly two years. They have a close relationship with and attachment to their father. They have had little interaction with their mother during these past two years and their relationship with her is strained. Given their ages, it is my view that it is their own motivation that will be most important in determining whether and how their relationship with their mother changes. One hopes that if there is regular access and the defendant remains healthy and interacts positively with the children the relationship will improve. [52] I do not think that a move to Kamloops should adversely affect the ability to maintain the access regime that I have determined is appropriate, namely two consecutive days each month. I will order that the plaintiff ensure that the children are brought to the Lower Mainland one weekend each month so that the access can take place. [53] It is obvious that M.M. has been involved in discussions with her father about a possible move to Kamloops and she expresses a desire to move. I have to say that when giving this part of her evidence, I found M.M.'s testimony to be rehearsed and I suspect that she has adopted the views of her father and was, to a large extent, repeating them. That is not to say that they are not honestly held by her. [54] The plaintiff sets out a number of reasons why he believes a move to Kamloops would be in the best interests of the children. He says that he and the children have a close relationship with his niece and her family, who live in Kamloops. His niece would be able to provide after school care for K.M. if necessary. The plaintiff's brother and his wife will be moving to Kamloops as well. The plaintiff and children would be moving away from the plaintiff's two sisters, who live in the Lower Mainland, but it appears the children are more closely connected with their father's cousin and her family than with their aunts. [55] The plaintiff has investigated the possibility for work in Kamloops and has made a number of contacts with cabinet manufacturers in that area. He believes there is a high demand and that he could earn as much money there as he does in the Lower Mainland. He does not, however, have any firm job offer. It must be appreciated that the plaintiff gave his evidence nearly a year ago and, with the serious downturn in the economy, the demand for cabinet installations may well have fallen in both Kamloops and the Lower Mainland. [56] The plaintiff believes that he could purchase a house in Kamloops for considerably less than he would have to pay in the Lower Mainland and has done some looking at houses in the Valleyview area of Kamloops where his niece resides. [57] The plaintiff and children enjoy outdoor activities, including camping, boating, fishing and "quading", which he says are more accessible in the Kamloops area. [58] There is no issue here of a change of custody. Clearly the plaintiff would not move unless the children can move with him. [59] There will be some disruption to the children as a result of the move. They will have to enrol in new schools and make new friends. However, both children have demonstrated an ability in the past to adapt quickly to new environments and learn new things. M.M. is anxious to make the move and I expect K.M. is as well. They will have the support of family in Kamloops which should help with their adjustment. [60] On balance, I am satisfied that it is in the interests of the children that the plaintiff be permitted to relocate with them to Kamloops. CHILD SUPPORT [61] Because of her health issues the defendant has not had any significant employment for some time. In 2007, she earned a total of about $7,500. At the time of trial the defendant was unemployed. Counsel for the plaintiff concedes that the defendant's income is such that she is not obliged to pay periodic child support in accordance with the Child Support Guidelines Regulation, B.C. Reg. 61/98 (the "Guidelines"). He submits, however, that she should be obliged to pay, in effect, lump sum child support by using her share of the value of the family assets. He refers to my decision in Aubry v. Thurber, 2008 BCSC 1060, 58 R.F.L. (6th) 94, as authority for such an order. That case is clearly distinguishable. In Aubry v. Thurber, I found that the defendant had the capacity to work and earn income but was unlikely to do so and that the only realistic way to enforce his obligation was to make an order for lump sum support based on his notional earning capacity. [62] In the present case, the defendant does not have the capacity at this time to earn income. The child support regime under the Guidelines is based on income. The defendant has no obligation under the Guidelines to pay child support at this time. It is unfortunate that the full burden of supporting the children must be on the shoulders of the plaintiff but it is my view that in these circumstances the defendant is not required to deplete her modest assets. [63] There will be no order for child support at this time. DIVISION OF FAMILY ASSETS [64] Apart from automobiles of modest value, household furnishings and other chattels, the only family assets in issue are the former family home valued at approximately $425,000; an RRSP in the name of the plaintiff worth approximately $7,000 - $8,000; and an investment account with Raymond James worth approximately $500. There are some family debts, including a mortgage, which I will deal with after determining the issue of reapportionment. [65] The house was purchased in 1999. The parties obtained funds for a down payment from the defendant's mother. She advanced a total of $33,000. The characterization of this advance as a gift or a loan is in dispute and I will deal with that issue after determining the issue of re-apportionment. [66] The plaintiff submits that the real property should be reapportioned one hundred percent in his favour "in order both to recognize the need of the plaintiff to maintain the family home for himself and the children, and as lump sum child support." [67] The defendant submits that the real property be reapportioned sixty-forty in her favour in light of the contributions made by her and the fact that the plaintiff has received rental income from the property while he had exclusive possession of it. [68] An order for reapportionment of family assets can be made only if the Court determines that an equal division would be unfair having regard to the factors set out in s. 65 of the Family Relations Act: (a) the duration of the marriage, (b) the duration of the period during which the spouses have lived separate and apart, (c) the date when property was acquired or disposed of, (d) the extent to which property was acquired by one spouse through inheritance or gift, (e) the needs of each spouse to become or remain economically independent and self sufficient, or (f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse. [69] The parties were married for seven years prior to their separation. The plaintiff did not bring any significant assets into the marriage but was employed steadily during the marriage and it was he who provided the bulk of the income for the family during the marriage. [70] There is no doubt that the defendant also made contributions during the marriage, both direct financial contributions and indirect contributions, which assisted them in acquiring assets. In addition to providing household services, the defendant assisted the plaintiff to some extent in his business by doing some bookkeeping. Further, in June 2001, the defendant received $45,632.23 by way of inheritance and those monies were used for family purposes. [71] In my view, there is nothing in terms of the parties' respective contributions to the property that would warrant reapportionment of the house. [72] After the parties separated the plaintiff had exclusive possession of the house. For a time, from about May 2007 until April 2008, he rented the basement suite in the home for $625 per month, inclusive of utilities. The defendant submits that the plaintiff's receipt of this rental income makes an equal division of the house unfair. I do not accept that submission. While the plaintiff had the use of the house, including the ability to rent the suite, he had the full burden of supporting the parties' two children. In my view, his receipt of the rental income does not create any unfairness in these circumstances. [73] The plaintiff's claim for reapportionment essential rests on his argument that he has the burden of caring for the children and should receive one hundred percent of the equity in the home so that he can continue to provide a home for them. I have already decided that the plaintiff is not entitled to lump sum child support payable from the defendant's equity in the home. The plaintiff's claim must rest on the factors set out in paragraph (f), or possibly (e), of s. 65(1) of the Family Relations Act. [74] The defendant's claim for reapportionment similarly must rest on those same factors, particularly her need to become and remain economically self-sufficient. [75] The plaintiff will likely continue to bear the financial burden with respect to the children. However, he has a trade from which he can earn a reasonable income. The defendant's income prospects are not good because of her age, lack of training and mental health problems. In my view, the competing claims of the parties for reapportionment cancel each other out. I am not persuaded that an equal division of family assets would be unfair. FAMILY DEBT Advance by the defendant's mother [76] I will deal first with the issue of the proper characterization of the advance from the defendant's mother that the parties used to purchase the family home. The plaintiff submits it was a gift while the defendant submits it was a loan. [77] The plaintiff relies on a document, dated June 29, 1999, addressed to "The Mortgage Source" and signed by the defendant's mother that stated: This is to confirm that I, [F.G.] am giving $28, 500.00 as a gift to [T.M.] towards the purchase of a residence. This is a gift and not repayable. I further declare that: a) I am an immediate relative of the purchaser b) the money is a genuine gift and does not ever have to be repaid c) no part of the financial gift is being provided by any third party having any interest (direct or indirect) in the sale of the subject property. [78] The defendant relies on a demand promissory note dated July 9, 1999, executed by the plaintiff by which he promised to pay the defendant's mother the sum of $33,000.00 with interest at 3% per annum. The defendant testified that she made payments on account of the loan, which were made from family income. She testified and her mother confirmed that the following payments were made: Date: Amount: September 15, 1999 $2,704.68 July 28, 2001 $5,000.00 August 24, 2002 $600.00 August 28, 2002 $780.00 August 14, 2003 $1,300.00 November 27, 2004 $6,500.00 September 12, 2005 $1,500.00 Total: $18,384.68 [79] The defendant produced documentary evidence, including copies of bank drafts and money orders and receipts signed by her mother, confirming a number of those payments. [80] The defendant's mother testified that the transaction was in reality a loan and that she received the payments as set out above. She said that she signed the "gift" letter to satisfy the bank but she had no intention of making it a gift. [81] Notwithstanding the "gift letter" that was provided to the bank, I am satisfied the advance by the defendant's mother was, in fact, a loan and that the letter was provided to satisfy the bank that the parties had the financial ability to purchase the house and in order to qualify for the mortgage. In my view, the fact that periodic payments were made to the defendant's mother confirms that the true nature of the advance was a loan. According to the defendant's calculations, which were not challenged by the plaintiff, the amount owing to the defendant's mother on the loan as at April 7, 2008 was $23,076.45. [82] Even though the plaintiff alone signed the promissory note the loan was used to purchase a family asset. The defendant's mother must look to the plaintiff alone to satisfy the debt but the plaintiff is entitled to be indemnified by the defendant for one-half of the obligation. As it is likely that the house will have to be sold, it seems to me that the most expeditious way of dealing with this debt is to have it repaid from the proceeds of sale prior to distribution of the net proceeds to the parties. As the parties filed written submissions and I have not had the opportunity to raise this matter with counsel but I am prepared to receive further submissions on this point if necessary. Other family debts [83] Each party has listed other debts in their Form 89 Property and Financial Statements but I heard very little evidence about when and why they were incurred, or the amounts owing at the date of separation. Counsel have not provided me with submissions concerning these issues. Without more, I am simply unable to determine which of them should be taken into account in the division of the family assets and in what amount. I hope that counsel will be able to reach an agreement on this relatively minor issue, but if not, the parties will have to make arrangements to make further submissions. HOUSEHOLD FURNISHINGS AND CHATTELS [84] The plaintiff says that the defendant's personal belongings are stored at the house and she can pick them up at any time. With regard to household effects, he suggests that the defendant provide a list of those household chattels that she wishes to receive as her share of the division of all matrimonial household chattels and that if the plaintiff agrees with that list, arrangement can be made to have them picked up. If there is disagreement, he suggests the parties choose items in turn. [85] The defendant says she cannot recall at this time all of the contents of the house and seeks an opportunity to have an inventory prepared. [86] The parties have already spent a great deal of time and money in this litigation and I would hope that with the assistance of counsel, arrangements can be made to prepare an inventory and a suitable method can be devised to effect an equitable split of the things in the house. If not, the parties have liberty to apply to me for further directions as to the division of the household chattels. DEFENDANT'S CLAIM FOR COMPENSATION [87] The defendant seeks compensation for money that she says the plaintiff took from her inheritance and used for his own purposes. The defendant received $45,632.23 by way of inheritance on June 19, 2001. The letter from the lawyer accompanying the cheque indicated that an additional amount of approximately $10,000.00 was expected to be paid once the administration of the estate was complete. The defendant testified that approximately half of the inheritance was used to pay expenses incurred by the parties in adopting their children. She said that she also used $3,500 of the inheritance to purchase a piano for the children and $3,800 to buy a van for the family leaving about $19,000. Initially in her direct examination, the defendant testified that the remaining $19,000 was used for everyday expenses. Subsequently, she testified that the plaintiff removed $19,000 from the parties' joint bank account on January 3, 2001, and asserted that he used the funds for his own purposes. [88] Banking records of the parties' SurreyMetroSavings Credit Union joint account, into which the inheritance funds were deposited, show the following transactions (ignoring interest payments): Date: Transaction: Withdrawal: Deposit: Balance: 25/07/01 Deposit of inheritance (less $1,000) $44,632.18 $44,632.18 25/07/01 Transfer to term deposit T1 $25,000.00 $19,632.18 25/07/01 Transfer to term deposit T2 $15,000.00 $4,632.18 19/09/01 Withdrawal $3,000.00 $1,632.18 30/11/01 Deposit (I cannot tell if this is the balance of the inheritance referred to in the letter from the lawyer) $8,838.26 $10,470.44 29/12/01 Transfer from term deposit T1 $9,000.00 $19,470.44 29/12/01 Withdrawal $9,000.00 $10,470.44 15/01/02 Withdrawal $8,000.00 $2,470.44 15/01/02 Withdrawal $996.90 $1,473.54 17/04/02 Withdrawal $200.00 $1,273.54 22/06/02 Transfer from term deposit T1 $3,000.00 $4,273.54 22/06/02 Withdrawal $2,500.00 $1,773.54 22/06/02 Withdrawal $500.00 $1,273.54 25/07/02 Transfer from term deposit T2 $15,555.00 $16,828.54 12/08/02 Transfer from term deposit T1 $4,465.48 $21,294.02 12/08/02 Transfer to term deposit T3 $19,000.00 $2,294.02 24/08/02 Withdrawal $600.00 $1,694.02 19/11/02 Transfer from term deposit T3 $19,085.03 $20,779.05 19/11/02 Transfer to term deposit T4 $19,000.00 $1,779.05 03/01/03 Transfer from term deposit T4 $19,046.85 $20,825.90 03/01/03 Withdrawal $19,046.85 $1,779.05 09/01/03 Withdrawal $1,785.00 ($5.95) [89] The plaintiff admitted that he withdrew the funds from the joint account but testified that he deposited the funds into another joint account over which there were internet banking privileges and that he told the defendant what he had done. He said the defendant was ill at this time and he wanted to be able to know what was happening with the banking. He did not provide any documents with respect to this account. The plaintiff said that he and the defendant used to do the banking together. He denied using this money for his own purposes. [90] The defendant testified that she knew nothing about the transfer until she received a bank statement from SurreyMetroSavings. [91] The monies were withdrawn about two and one-half years before the parties separated. On the whole of the evidence, I am not satisfied that the plaintiff used the defendant's inheritance monies for his own benefit. Rather, I find that the money was used for family purposes. The defendant is not entitled to a compensation order in respect of those monies. SPOUSAL SUPPORT [92] The plaintiff submits that having paid spousal support totalling $25,200 (21 months since November 2007 at $1,200 per month) his spousal support obligation should be at an end. [93] The defendant submits that she is entitled to permanent spousal support on both compensatory and needs-based grounds. She submits that she devoted herself during the marriage to assisting the plaintiff with his business and taking care of the children. Her medical condition presents significant challenges for her in terms of achieving any degree of self-sufficiency. She seeks permanent spousal support of $1,800 per month, retroactive to September 2006. [94] In Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577, the Supreme Court of Canada recognized three bases upon which spousal support could be ordered: contractual, compensation and need. The facts in Bracklow were similar to the present case in that the parties lived together for seven years prior to separation, four of them in a common-law relationship and three as a married couple. The claimant suffered psychiatric problems and was hospitalized a year before the marriage. She had not worked since then and it was unlikely she would ever work again. The question to be decided was stated by the Court at para. 1 as follows: 1 [W]hat happens when a divorce -- through no consequence of sacrifices, but simply through economic hardship -- leaves one former spouse self-sufficient and the other, perhaps due to the onset of a debilitating illness, incapable of self-support? Must the healthy spouse continue to support the sick spouse? Or can he or she move on, free of obligation? [95] The Court held that when two spouses are married they owe each other a mutual duty of support. However, when a marriage breaks down the presumption of mutual support that existed during the marriage no longer applies. The Court concluded that both the Divorce Act and the Family Relations Act contain provisions that go beyond principles of contract and compensation and support a non-compensatory or needs-based foundation for spousal support. At para. 49 the Court stated: 49 In summary, the statutes and the case law suggest three conceptual bases for entitlement to spousal support: (1) compensatory, (2) contractual, and (3) non-compensatory. Marriage, as this Court held in Moge (at p. 870), is a "joint endeavour", a socio-economic partnership. That is the starting position. Support agreements are important (although not necessarily decisive), and so is the idea that spouses should be compensated on marriage breakdown for losses and hardships caused by the marriage. Indeed, a review of cases suggests that in most circumstances compensation now serves as the main reason for support. However, contract and compensation are not the only sources of a support obligation. The obligation may alternatively arise out of the marriage relationship itself. Where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the obligation founded on the marriage relationship itself lies dormant. But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support. [96] The Court in Bracklow made it clear that even though a former spouse may be entitled to support on the basis of need it does not inevitably follow that the support must fully meet those needs or must continue for so long as the need persists. At paras. 53-54 the Court said: 53 ...The quantum awarded, in the sense of both amount and duration, will vary with the circumstances and the practical and policy considerations affecting particular cases. Limited means of the supporting spouse may dictate a reduction. So may obligations arising from new relationships in so far as they have an impact on means. Factors within the marriage itself may affect the quantum of a non-compensatory support obligation. For example, it may be difficult to make a case for a full obligation and expectation of mutual support in a very short marriage. (Section 15.2(4)(a) of the Divorce Act requires the court to consider the length of time the parties cohabited.) Finally, subject to judicial discretion, the parties by contract or conduct may enhance, diminish or negate the obligation of mutual support. To repeat, it is not the act of saying "I do", but the marital relationship between the parties that may generate the obligation of non-compensatory support pursuant to the Act. It follows that diverse aspects of that marital relationship may be relevant to the quantum of such support. As stated in Moge, "[a]t the end of the day ..., courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act" (p. 866). 54 Fixing on one factor to the exclusion of others leads Mrs. Bracklow to an artificial distinction between amount and duration. The two interrelate: a modest support order of indefinite duration could be collapsed into a more substantial lump-sum payment. It also leads her to the false premise that if need is the basis of the entitlement to the support award, then the quantum of the award must meet the total amount of the need. It does not follow from the fact that need serves as the predicate for support that the quantum of the support must always equal the amount of the need. Nothing in either the Family Relations Act or the Divorce Act forecloses an order for support of a portion of the claimant's need, whether viewed in terms of periodic amount or duration. Need is but one factor to be considered. This is consistent with the modern recognition, captured by the statutes, of the variety of marital relationships in modern society. A spouse who becomes disabled toward the end of a very short marriage may well be entitled to support by virtue of her need, but it may be unfair, under the circumstances, to order the full payment of that need by the supporting spouse for the indefinite future. [97] In Bracklow itself, having determined that the claimant was entitled to support based on her need, the Supreme Court of Canada remitted the matter to the trial court to determine quantum and duration. Smith J., as she then was, decided that the payor's obligation would be met by an award of $400 per month for a period of five years (Bracklow v. Bracklow (1999), 181 D.L.R. (4th) 522, [2000] 3 W.W.R. 633 (S.C.)). [98] The principle that ongoing need does not necessarily entitle a souse to indefinite support was recognized in a number of cases, including T.N.P v. R.P., 2004 BCSC 1627; M.A.S. v. F.K.M., 2003 BCSC 849; Wise v. Wise, 2006 BCSC 945; and Rayvals v. Rayvals, 2008 BCSC 176. [99] In the present case, it does not appear to me that the decisions made by the parties as to their respective roles created an economic disadvantage arising from the marriage that gives rise to an entitlement for a compensatory award. However, when the interdependency created during the marriage came to an end, the defendant suffered an economic disadvantage as a result of the breakdown of the marriage. It is clear that the defendant has a need for support and the plaintiff has the capacity to provide support. I am satisfied, therefore, that the defendant is entitled to support. The more difficult question is the quantum of support, both as to amount and duration. [100] With regard to income earning capacity, the plaintiff is self-employed and, as a consequence, is able to deduct for income tax purposes some expenses that have a personal component, such as part of his motor vehicle expense, telephone and utilities, home office expenses, and health care premiums. Based on his income tax returns, I have determined the plaintiff's available income from self-employment during the past few years to be approximately as follows: Year: Income: 2007 $61,500 2006 $65,700 2005 $55,300 2004 $68,200 2003 $60,100 [101] The plaintiff's average available income appears to be in the area of $62,000 per year. [102] As long as she is healthy, the defendant ought to be able to earn some income from employment, at least at the same level as she earned in 2007. That level of income will not enable her to meet her reasonable expenses, even if she continues to reside with her mother and pay room and board of $925 per month, which is the amount her mother would like her to pay. The defendant may be entitled to a CPP pension when she reaches age 60, but there is no evidence what that amount might be. [103] Using incomes of $62,000 for the plaintiff and $7,500 for the defendant the Spousal Support Advisory Guidelines (SSAG) suggest a range of spousal support of between a low of $337 and a high of $449, for a period of between 3.5 and 7 years. While regard may be to the SSAG as a useful tool, they remain "guidelines" and are not binding on this Court. Individual circumstance may require deviation from the Guidelines such as cases where the recipient is disabled and unemployable or unlikely ever to achieve full employment (see, e.g. Wise v. Wise, supra). [104] I consider the amounts suggested by the SSAG are too low considering the limitations of the defendant, her need for support and the ability of the plaintiff to pay spousal support. On the other hand, the plaintiff will no doubt have to bear the cost of raising the children, which will be ongoing for a number of years. In these circumstances, and considering the length of this marriage and the support the plaintiff has already paid, it would not be fair to require the plaintiff to support the defendant for the rest of her life. [105] Using gross income figures of $62,000 and $7,500 per year for the plaintiff and defendant respectively, if the plaintiff were to pay spousal support of $800 per month the SSAG indicate that the defendant would have a net disposable income of $1,460 per month or $435 over and above her room and board expense. Support of $800 per month would go a considerable way to enabling the defendant to meet her reasonable expenses. [106] In all of the circumstances, I have concluded that an appropriate award of spousal support is $800 per month for four years. RETROACTIVE SPOUSAL SUPPORT [107] The defendant seeks retroactive spousal support from September 2006, until November 1, 2007, when the interim support order came into force. I am not prepared to make such an order for a number of reasons. In the first place, the plaintiff has no ability to pay retroactive support without depleting his assets, which he needs to provide a home for the children. Secondly, while the plaintiff did not pay spousal support until November 2007 he has had the financial burden of providing for the children without contribution from the defendant since the parties separated. Thirdly, for a period of nearly 4 months in 2008 the defendant received spousal support even though she was in the hospital and not incurring any significant expenses. COSTS [108] Counsel may make arrangements to speak to the issue of costs, if necessary. SUMMARY OF ORDERS FLOWING FROM THESE REASONS [109] In accordance with these reasons, I make the following orders: (a) The parties are divorced effective 31 days from today's date; (b) The plaintiff will have sole custody and guardianship of the two children; (c) The defendant will have access to the children on two consecutive days each month for six hours per day and the plaintiff is to ensure that the children are delivered to the defendant at the beginning of each access period and to pick the children up at the end of each access period; (d) There is a declaration that the parties are entitled to an equal division of all family assets including the former family home; the RRSP in the name of the plaintiff; and the Raymond James Account in the name of the plaintiff; (e) There is a declaration that the monies advanced to the plaintiff by the defendant's mother and not yet repaid constitute a family debt and that the defendant must indemnify the plaintiff for one-half of the amount that is unpaid; (f) The parties have liberty to make further submissions regarding any other debts that either of them alleges to be family debts; (g) The parties have liberty to apply for further directions concerning the manner in which the equal division of family assets, including household furnishings and chattels, is to be effected and the manner in which family debts are to be taken into account; (h) The plaintiff is to pay to the defendant spousal support in the amount of $800.00 per month commencing September 1, 2009, at which time the order for interim spousal support shall cease, and spousal support shall be paid for a period of four years; (i) The defendant's application for retroactive spousal support is dismissed; and (j) The parties may make further submissions with respect to costs. "B.M. Joyce J."