P.D.E. v. A.J.E.

2009 BCSC 1712 P.D.E. v. A.J.E. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: P.D.E. v. A.J.E., 2009 BCSC 1712 Date: 20091214 Docket: E032402 Registry: Vancouver Between: P.D.E. Plaintiff And A.J.E. Defendant Before: The Honourable Mr. Justice Pitfield Reasons for Judgment The Plaintiff, Self-Represented: P.D.E. The Defendant, Self-Represented: A.J.E. Place and Date of Hearing: Vancouver, B.C. June 1, June 18 and October 30, 2009 Place and Date of Judgment: Vancouver, B.C. December 14, 2009 Introduction and Background [1] The parties, who are now both unrepresented, have been engaged in lengthy litigation resulting from the breakdown of their marriage. Some issues were initially resolved by Scarth J. following a 10 day trial in 2004, at which Mr. P.D.E. was represented by counsel and Ms. A.J.E. appeared in person. In written reasons (2004 BCSC 485) the learned trial judge granted a divorce, addressed issues of custody, access, and the division of property, and made directions with respect to child and spousal support. [2] On October 25, 2007, Mr. P.D.E. applied for, among other things, an order terminating the obligation to pay spousal support. Other issues, including the consideration of changes in the custody and access regime that had been ordered by Scarth J., questions surrounding child support, and issues with respect to section 7 expenses predominated. As a result, the hearing of Mr. P.D.E.'s application regarding spousal support was deferred until June 2009, and continued on October 30, 2009. [3] The parties were married on October 17, 1987. They separated on March 5, 2002. There were three daughters of the marriage, born April 18, 1991; April 14, 1993; and March 30, 1995. The learned trial judge awarded primary residence of the girls to Mr. P.D.E. notwithstanding that at the time of the trial, they were residing with Ms. A.J.E. The parents were granted joint custody and guardianship under what is commonly referred to as the "Joyce Model". In ruling as he did, the learned trial judge said the following at paras. 67, 82 and 83 of his reasons: [67] I accept Mr. P.D.E.'s evidence that anger characterized the parties' relationship during their cohabitation and was evident at the time he told her in March 2003 he was going to take an apartment and thereafter. I also accept Dr. Elterman's opinion to the effect that Mrs. A.J.E.'s level of anger toward Mr. P.D.E. is an emotion which the children will "buy into" and as a result eventually become alienated from their father. ... [82] I find it significant that in relating his concerns to Dr. Elterman and the Court about the children residing primarily with Mrs. A.J.E., Mr. P.D.E. said amongst other things that there would be ongoing and continuous undermining and excluding of him as their father, and an alienating influence on the children by Mrs. A.J.E. Mrs. A.J.E., on the other hand, did not express similar concerns in the event Mr. P.D.E. was granted sole custody and was living in the house with the children. [83] On the evidence before the Court I find that Mr. P.D.E.'s concerns are justified. [4] The learned trial judge ordered that the matrimonial home be sold and that the net sale proceeds be divided equally between the parties. Because the learned judge found there to be a shared custody arrangement, Mr. P.D.E. was ordered to pay Ms. A.J.E. child support of $505 monthly. [5] The learned trial judge addressed the matter of spousal support payable to Ms. A.J.E. under both s. 89 of the Family Relations Act, R.S.B.C. 1996, c. 128, and s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended. Having done so, the trial judge set forth his reasons for fixing spousal support at the sum of $700 per month commencing May 1, 2004: [123] Mrs. A.J.E. has, during the marriage, been out of the work force. She has a degree in P.[ ] and has worked as a camp director and realtor as well as in a coffee shop. Presently she works as a teacher's aide. But her role during the marriage was primarily one of being an "at home mom". [124] I do not agree with Mr. P.D.E.'s submission that Mrs. A.J.E. "could easily obtain full time employment". Mr. P.D.E.'s proposal that Mrs. A.J.E. have the children from 2:30 in the afternoon four days each week seems to rule out full time employment as a teacher's aide, assuming full time employment is available to her, at least until the youngest child, O.A.E., attends secondary school in about five years. Mrs. A.J.E. will be in her mid-forties at that point. [125] Whilst Mrs. A.J.E. must recognize that she is obliged to achieve economic self-sufficiency within a reasonable period of time, it is not appropriate to anticipate a change of circumstances and make an order for time-limited spousal support. If a change of circumstances occurs an appropriate application may be made. [126] I award Mrs. A.J.E. by way of spousal support the sum of $700 per month, commencing May 1, 2004. [6] The parties appeared before Scarth J. again on May 14, 2004. At that time, the obligation which had been imposed upon Mr. P.D.E. to pay Ms. A.J.E. child support was vacated, Ms. A.J.E. was ordered to pay Mr. P.D.E. $351 monthly for the support of the children based on a guideline income of $17,560, and the obligation to pay spousal support was varied so that Mr. P.D.E. was obliged to pay Ms. A.J.E. $1,200 monthly commencing on the 1st day of the month following completion of the sale of the family home, subject to review by Scarth J. upon completion of the sale. Mr. P.D.E. alleges that Ms. A.J.E. owes $4,741 on account of child support up until June 30, 2007. [7] The family home was eventually sold and the parties, this time both represented by counsel, appeared before Scarth J. once again to address the amount and duration of the obligation to pay spousal support. Mr. P.D.E. sought an order reducing his obligation to pay from $1,200 to $600 monthly until December 1, 2005, at which time the obligation should terminate or in the alternative, an order reducing the obligation to $600 per month until December 1, 2005, and to $300 per month from January 1, 2006 to March 1, 2006, when the obligation would terminate. Ms. A.J.E., on the other hand, sought an order that spousal support be increased to $2,000 per month. [8] On September 30, 2005, Scarth J. ordered that Mr. P.D.E. pay Ms. A.J.E. spousal support of $600 monthly commencing November 1, 2005. Mr. P.D.E.'s application to set a date for termination of spousal support was dismissed: see P.D.E. v. A.J.E., 2005 BCSC 1381. [9] The reasons of the learned trial judge provide the base from which Mr. P.D.E.'s current application must be considered. A number of findings or observations made by the learned trial judge are relevant in the present context: 1. Fundamental to the award of spousal support are ss. 15.2 and 15.3 of the Divorce Act, principally, ss. 15.2(4) and (6) and s. 15.3: Spousal support order 15.2 ... 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 rising 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. Priority to child support 15.3(1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications. Reasons (2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so. Consequences of reduction or termination of child support order (3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be. 2. Mr. P.D.E. was employed as a vice-principal at an elementary school. Between 1994 and 1999, while the parties were married and cohabiting, he completed the course requirements and thesis leading to a masters degree in education. His income approximated $81,204. 3. Ms. A.J.E. was employed as a special education teaching assistant. During her marriage to Mr. P.D.E., she earned a degree in physical education. She obtained her real estate licence during the marriage and sold real estate for a year, but did not retain her licence. The licence could be regained upon passing a test. 4. The access regime imposed on the parties placed some constraints upon the nature and the amount of work Ms. A.J.E. was able to do but she had been able to undertake full time employment as a special education teaching assistant. 5. Following completion of the sale of the matrimonial home, net proceeds of $307,927.75 were payable to Mr. P.D.E. in the amount of $186,659.78 and to Ms. A.J.E. in the amount of $121,893.93. The difference resulted from certain compensatory orders made by the court on the division of assets. 6. As a result of discharging accounts for litigation, repaying the loan obtained from his parents, and discharging his line of credit, Mr. P.D.E. was left with approximately $65,000 as his share of proceeds from the sale of the matrimonial home. 7. Ms. A.J.E. applied more than one-half of her share of the proceeds from the matrimonial home to the purchase of a sail boat "as an investment". Start-up expenses, including membership in a yacht club, moorage and insurance, raised the total acquisition cost to somewhat more than $75,000. At the date of the application, the boat had not been used for the purpose of generating income although Ms. A.J.E. expressed that to be her intention. 8. Income that could be derived from the chartering of the boat ought to be considered as additional income available to Ms. A.J.E. when considering the application for spousal support. 9. The household expenses of Mr. P.D.E. and Ms. A.J.E. were comparable in nature and amount. 10. Ms. A.J.E. had omitted to pay child support for seven months. 11. Mr. P.D.E. claimed that his means and needs in his role as primary parent of the three children meant that he could not afford to pay the $2,000 monthly claimed by Ms. A.J.E. or the $1,200 monthly sum that he was required to pay under the then prevailing order of the court. 12. Ms. A.J.E. claimed that she had been "an at-home mom" while Mr. P.D.E. advanced his career by furthering his education and becoming the primary income earner and that fact, in conjunction with the economic disparity between the spouses and their incomes, entitled her to a spousal support award based upon the principles of compensatory support in order to achieve a rough equivalency in standard of living. 13. The learned trial judge expressed his conclusion with respect to the appropriate level of spousal support at paras. 35 and 36: [35] In my judgment both $4,000 and $2,000 are out of the question. As primary custodial parent Mr. P.D.E.'s first responsibility is to provide for the parties' three children. While Ms. A.J.E.'s role may not be that of co-parent, she too has a pivotal parenting role which requires her to be able to provide appropriately for the children when they are with her and for herself. Absent the need to give paramount consideration to the children I would, in awarding spousal support, likely do so on the basis of the principles of compensatory support. But at this point in time means and needs must be the primary focus. [36] In the result I set the amount of spousal support payable to Ms. A.J.E. at $600 monthly commencing 1 November 2005. I dismiss Mr. P.D.E.'s application to set a date for the termination of spousal support. [10] The concern expressed by Dr. Elterman and referenced in the reasons of the learned trial judge came to pass. The eldest daughter migrated to Ms. A.J.E.'s home. In due course she was followed by the second daughter and ultimately by the third. Ms. A.J.E. did not bring any application before the court with a view to varying the custody and access order which had been granted by Scarth J. Rather, Mr. P.D.E. brought an application seeking to enforce the custody and access order and to have Ms. A.J.E. found in contempt. [11] Following lengthy and difficult proceedings involving two judges of this court, a new report from Dr. Elterman, and the assistance of counsel appointed to represent the children, the custody and access regime was varied so that primary residence was granted to Ms. A.J.E. Concurrently, Mr. P.D.E. became obliged to pay monthly child support of $1,727 from and after July 1, 2007, by reference to a guideline income of $91,050. [12] When the parties appeared before me again on June 18, 2009, I ordered Mr. P.D.E. to pay child support in the amount of $1,839 monthly from and after June 1, 2009, based on guideline income of $97,770. I determined that Ms. A.J.E. was under-employed and imputed income to her so that section 7 expenses would be payable 68% by Mr. P.D.E. and 32% by Ms. A.J.E. [13] While the order to pay spousal support has remained unchanged to this point, Mr. P.D.E. has omitted to make payments since October 2007 when he applied to vary the spousal support order. The only payments which appear to have been made since October 2007 are those that I ordered Mr. P.D.E. to pay into his counsel's trust account in order to ensure that half of the cost of the Elterman Report required in relation to the variation of the custody and access regime would be paid by Ms. A.J.E. Ms. A.J.E. alleges that the arrears total $15,212. [14] Ms. A.J.E. continues to work as a teacher's assistant. There is no evidence that she has made a conscientious effort to improve her income-earning capacity subsequent to the release of the reasons of Scarth J. in April 2004. She has not taken any steps to resume her career as a real estate agent. There is no evidence to support a claim that that her ability to earn income is restricted. Nor has she adduced any evidence by which to realistically measure her income-earning capacity. [15] The Form 89 financial statement filed by each party in May 2009 suggests a shortage of funds. Mr. P.D.E. reports gross income of $97,770 and annual expenses, including income tax, of $106,132. Ms. A.J.E. reports gross income of $19,918 without reference to spousal support and child support. With taxable spousal support of $7,200 per year and non-taxable child support of $22,068, available funds would approximate $46,000. She reports annual expenses of $58,680. Neither party explained the manner in which the excess of expenditures over income is being or will be covered. Neither party adduced reliable evidence of the relationships in which either might now be involved, or the impact any new relationship might have upon respective means and needs. [16] The application to cancel spousal support with effect from October 2007 must be assessed in the context of the background as I have described it. Analysis [17] Section 17 of the Divorce Act provides for the variation of a spousal support order: 17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) a support order or any provision thereof on application by either or both former spouses; (3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. (6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought. [18] The factors to be considered in assessing an application to vary are those taken into account in deciding to award spousal support at the outset. Those factors are the length of time the parties cohabited, the functions performed by each during the marriage, any contract or agreement between them, the economic advantages and disadvantages arising from the marriage and its breakdown, the financial consequences of childcare over and above the duty to support children, relief from economic hardship, and the promotion of the economic self-sufficiency of each spouse. [19] The consideration of any application to vary or cancel spousal support is premised on a material change in condition, means, needs or other circumstances of one or both spouses. In this case, there have been material changes. The original order recognized that Mr. P.D.E. would provide the primary residence for the three children and obliged Ms. A.J.E. to pay child support. The children now are in the primary care of their mother and Mr. P.D.E. is obliged to pay child support. [20] The other material change pertains to Ms. A.J.E.'s circumstances. The learned trial judge concluded that Ms. A.J.E. had the ability to become economically self-sufficient, but she would be constrained in her pursuit of employment because of the need to care for the children for a few hours at the end of each day in accordance with the access arrangement. That obligation has ended. Ms. A.J.E. has been free to pursue better employment. She is no longer constrained and has not been constrained in the recent past by the need to care for children on a daily basis. Nonetheless, she has not attempted to maximize her employment prospects since the separation and divorce. Her failure to do so is a material change from the circumstances considered by the trial judge in 2004. [21] Ms. A.J.E. was 35 at the time of the divorce. She is now 42. She has a university degree. She held a real estate licence which she allowed to lapse. While she possessed the skills that would permit her to earn income during the marriage, her principal contribution was to the care of the couple's children. As a result, she had a legitimate claim to compensatory support. Ms. A.J.E. has the skills, education and comparative youth that should have combined to allow her to earn substantially more income than she now earns. Nonetheless, the reality is that she will not be able to earn income of an amount comparable to that earned by Mr. P.D.E. The spousal support order made at trial took into account the need to compensate Ms. A.J.E. for her contribution to the marriage, and to provide her with income while she made the transition to the workplace. [22] At the time the original support order was made in 2004, the spousal support advisory guidelines had not been developed. Had they been in place, they would have provided some guidance with respect to spousal support. They can be used now to provide some kind of benchmark for the appropriate level and duration of spousal support. [23] The marriage endured for approximately 15 years. Mr. P.D.E. presently earns guideline income of approximately $97,770. He is obliged to pay child support of $1,839 monthly or approximately $20,068 annually. Ms. A.J.E. earns income of approximately $20,000 which is substantially less than the amount she should be capable of earning having regard for her age, her education, and her demonstrated work accomplishments. [24] Based on income to Ms. A.J.E. of $20,000, the advisory guidelines suggest support of $264, $561, and $843 at the low, mid, and high ranges for a period of 7.5 to 15 years. With income of $40,000, the comparable amounts are $17, $365, and $661. With income of $50,000, the comparable amounts are nil, $92 and $390. [25] Having regard for the compensatory nature of the spousal support award at trial, I think it unlikely that Mr. P.D.E.'s support obligation would have been eliminated as of the date of the motion served in October 2007 had the application been heard earlier. I am persuaded that the amount of the obligation would have been reduced because of Ms. A.J.E.'s unwillingness to pursue more remunerative employment than that in which she was engaged. [26] The delay in hearing the application to vary or eliminate spousal support resulted from the pressing nature of the more important issue with which these parties and the court were concerned, namely custody, access, and the best interests of the parties' three daughters. [27] In all of the circumstances, including the compensatory nature of the original spousal support order and the existence of an obligation on the part of Ms. A.J.E. to take steps to become economically self sufficient, I conclude that the spousal support obligation should be reduced to $450 per month effective January 1, 2008, and further reduced to $300 per month effective January 1, 2009. The obligation to pay spousal support will terminate on June 30, 2010. Arrears, together with interest, shall be computed accordingly, and if necessary, by reference to a registrar. [28] Mr. P.D.E. is entitled to costs at Scale A of Schedule B. "The Honourable Mr. Justice Pitfield"