Angus v. Angus

2016 BCSC 1286 Angus v. Angus

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Angus v. Angus, 2016 BCSC 1286 Date: 20160711 Docket: E10813 Registry: Chilliwack Between: Kristina Marie Angus Claimant And Jeramey Angus Respondent - and - Docket: E11798 Registry: Chilliwack Between: Maritza Verdun-Jones Claimant And Jeramey Angus Respondent Before: The Honourable Madam Justice B.J. Brown Reasons for Judgment Counsel for Claimant, Kristina Angus: C. Gleeson Counsel for Jeramey Angus: Appearing in Person Counsel for Maritza Jones Appearing in Person Place and Date of Hearing: New Westminster, B.C. November 5, 2015 March 23-24, 2016 Place and Date of Judgment: Chilliwack, B.C. July 11, 2016 [1] There are three applications before me. The matters were directed to be heard together and I am issuing one set of reasons with respect to actions E10813 and E11798 both out of the Chilliwack Registry. [2] In the first application, brought under action E10813 (the "Randall Action"), Mr. Jeramey Angus seeks orders that: 1. Child support be varied; 2. Spousal support be varied; 3. Paragraph 15 of the order of Mr. Justice Armstrong of March 5, 2014, be vacated and 4. Costs. [3] In the second application, also brought in the Randall Action, Ms. Kristina Randall (formerly Angus) seeks: 1. That Mr. Angus be found in contempt for failing to comply with the order of Mr. Justice Blok of July 14, 2015; 2. A penalty against Mr.

Angus in the amount of $10,000 enforceable by the Family Maintenance Enforcement Program ("FMEP"); 3. An order that Mr. Angus requires leave of the court before bringing any further application to reduce his Guidelines income. [4] In the third application brought in action E11798 (the "Verdun-Jones Action"), Ms. Verdun-Jones seeks : 1. An order pursuant to R. 11-3 fixing basic child support; 2. Retroactive child support; 3. Special costs; 4. A penalty pursuant to s. 213 of the Family Law Act, S.B.C. 2011, c. 25, against Mr. Angus in the amount of $5,000; 5. A declaration that Jeramey Angus is the sole owner and operator of Site Access Construction Ltd. Background [5] Kristina Randall and Jeramey Angus started cohabitating in October 2001. They married September 10, 2005, and separated January 11, 2013. They have two children, Kaylen who is 9 and Kenzie who will soon be 7. [6] Ms. Randall started the Randall Action on January 15, 2013. A trial was set for March 3, 2014, before Mr. Justice Armstrong. [7] The parties settled the matter on March 5, 2014, after three days of trial. That order provides in part that by consent Mr. Angus would pay child support for Kenzie and Kaylen in the amount of $2,500 based on the Guidelines income of $181,400. It also provided that by consent Mr. Angus would pay $4,000 per month in spousal support starting March 1, 2014. [8] In preparation for

that trial, the parties obtained a joint valuation report for Mr. Angus's business Wave Innovations Ltd. and a joint report as to Mr. Angus's Guidelines income. Those reports prepared by Gary Mynett, a chartered accountant and chartered business valuator. [9] Mr. Mynett's reports provide in part that Wave Innovations is the sole asset of Jeramey Angus. As at that the valuation date of June 30, 2013, Wave Innovations had a value of approximately $116,000. The report goes on to provide: Wave was founded by Jeramey Angus in 2006 and specializes in the augmentation, repair and testing of equipment used in wireless telecommunications. In addition to Mr. Angus, Wave currently employs two employees while a third is currently on short-term disability leave. The number of arm's-length employees generally fluctuates between three and five, depending on Wave's workload. Mr. Angus informed us that Wave generates approximately 80% of its revenues from Rogers wireless (although our review of certain supporting documents suggest that this figure was actually between 93% and 98% for the four most recent fiscal years). Other important customers include Bell, Shaw Communications and the Surrey Fire Department. Wave is heavily dependent on the individual efforts of Mr. Angus in order to generate revenues. This is on account of the following: · Mr. Angus is the only individual at Wave certified to

test the equipment after a job is completed in order to ensure that the equipment is operating within specified parameters. · Mr. Angus is the only individual at Wave who submits a formal bid (referred to by major cellular carriers as a "pricing matrix") with respect to any potential work. · Trust and dependability are critical factors when cellular carriers decide which civil contractors to hire. In that regard, we understand that Mr. Angus is the only individual at Wave approved by Rogers and other key clients to serve as a "Prime". A Prime is the primary contact individual who represents the client's (e.g., Rogers) at a jobsite and with whom technical and other subcontractors working at the site must regularly communicate. · Many of Mr. Angus's current client contacts are individuals with whom he has worked in the industry since before the founding of Wave. Mr. Angus is also the sole individual responsible for business development. In addition to establishing contacts and developing business, Mr. Angus is also actively involved in the installation, repair and various other activities performed at Wave's job sites. [10] The report also goes on to state that the industry in which Wave Innovations operates is highly cyclical. [11] It is my understanding that because Wave Innovations was essentially Jeramey Angus, it did not have any goodwill value and its fair market value was

determined as its assets minus its liabilities, leaving a net value of $116,000. [12] In the Guidelines income report, Mr. Mynett reached the conclusion that Mr. Angus' Guidelines income was $335,000 or $375,000, depending on the approach taken. [13] I am advised that to achieve a settlement, Ms. Randall was prepared to accept a Guidelines income figure of $181,400 for Mr. Angus, rather than the more than $300,000 that Mr. Mynett opined was appropriate. [14] Mr. Angus began a relationship with Ms. Verdun-Jones in or about April 2013. In or about the beginning of August 2013 Ms. Verdun-Jones became pregnant with their son Jack Verdun-Jones. At some point they became engaged, but that engagement was terminated in October 2013. Jack was born April 11, 2014. Mr. Angus did not accept paternity. Ms. Verdun-Jones began the Verdun-Jones Action to prove paternity and seek child support. In August 2014 Mr. Justice Saunders ordered that Mr. Angus participate in paternity testing. Following further Chambers procedures, Mr. Angus eventually completed paternity testing and the paternity results became available in July 2015 which determined that Mr. Angus was indeed Jack's father. [15] On September 8, 2014, Mr. Justice Joyce ordered that Mr. Angus's income for child support purposes for Jack would be set at $80,000 per annum and that Mr. Angus must pay child support of $748 per month for

Jack. It also provided that Ms. Verdun-Jones was at liberty to commence an application for retroactive child support on a without prejudice basis. To that point in time Ms. Verdun-Jones had not had production of Mr. Angus financial information. He had not provided her with a Form F8 or, as I understand it, any disclosure. [16] On August 10, 2015, Mr. Justice Joyce ordered that Ms. Verdun-Jones's application for child support from Mr. Angus would proceed by way of a summary trial for two days in the week of November 2, 2015, to be heard at the same time as the application in the Randall Action. It also provided Ms. Verdun-Jones with the right to cross-examine Mr. Angus at that hearing and that the documentary evidence produced in the Randall Action may be shared in the Verdun-Jones Action. [17] On February 24, 2016, Master Baker adjourned Ms. Verdun-Jones application for a declaration that the respondent Jeramey Angus is the sole owner and operator of a company named Site Access Construction Ltd. to the summary trial scheduled now before me for March 23, 2016. [18] The two-day hearing that Mr. Justice Joyce contemplated to take place in the week of November 2, 2015, came on for hearing before me in that week and was adjourned to the March 2016 dates, also before me. I had seized myself of these related applications. Discussion Variation of Child and Spousal Support in the

Randall Action [19] I will deal first with Mr. Angus's application to vary the order of Mr. Justice Armstrong with respect to child and spousal support. [20] The relevant provision is s. 47 of the Family Law Act, which reads as follows: 47 On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person. [21] The term "change" in the provision has been interpreted as requiring a material change in circumstances: Williamson v. Williamson, 2016 BCCA 87 at para.

31. A material change alters the child's needs or the ability of the parents to meet those needs in a fundamental way and were unanticipated at the time the order was made: Gordon v. Goertz, [1996] 2 S.C.R. 27 at paras. 12-13. [22] Mr. Angus bears the burden of satisfying the court that there has been a material change in circumstances such that his child support and spousal support obligations should be varied. [23] Mr. Angus has not satisfied me that there has been a material change in circumstances. Mr. Angus's evidence in this regard is inconsistent, lacks detail, and is not forthright, credible or persuasive. [24] There were many instances in which Mr. Angus's evidence was false, or obviously designed to mislead the Court. I do not propose to review all of them, but one of the most significant involves the ownership and business operations of Site Access. [25] When Mr. Angus appeared before me in November 2015 and I adjourned the matter to the hearing dates in March 2016, Mr. Angus advised me that he wanted the hearing to take place in March 2016 because his former business had dried up and he needed to find a job. He did not advise the court that his father, Mr. Brett Angus, and wife, Ms. Angela Angus, were now running a business known as Site Access, providing services to Wave Innovation customers largely if not entirely similar to those provided by Wave Innovations;

that Wave Innovations employees were now employed by Site Access; that Wave Innovations equipment was now used by Site Access; that he had trained his wife, Angela Angus, to fill a role like that of his with Wave Innovations and that she was drawing from the company Site Access approximately $5,200 per month from Site Access. He did not disclose Site Access's existence until the applicants Ms. Verdun-Jones and Ms. Randall learned of its existence following production of third-party records as ordered by this Court between November 2015 and February 2016. [26] As noted above, Mr. Angus at the hearing in March 2016 told me that his role with Wave Innovations was simple, that anyone could do it and that he had simply trained his current wife Angela Angus to fill that role. This is completely contrary to the findings of Mr. Mynett on which the orders in the Randall Action were based. Moreover, in her affidavit sworn May 11, 2015, Ms. Angela Angus states: I am currently employed full-time by Van Mark Constructions Inc. But I have given my notice to pursue working full-time in nursing. I currently work part-time in nursing. There is no suggestion in this affidavit that she is involved with or intends to become involved with Site Access. Further, according to documents produced by Mr. Angus and by his trustee in bankruptcy (pursuant to a court order) Site Access was incorporated in

August 2014. [27] Regarding Mr. Brett Agnus, Mr. Angus said his father had advanced funds to him from time to time. He produced evidence of funds received from his father of approximately $52,000 in 2013 in two instalments of $2,500 and one instalment of $47,000. I understand that the $47,000 was used as a down payment on a residence known as the Majuba Hill property that Mr. Angus acquired after his divorce from Ms. Randall. In any event, Mr. Angus said that his father anticipated that he would be repaid from the proceeds of the family assets in the Randall Action. When he was not, his father insisted on security from Mr. Angus. Mr. Angus complied by providing Mr. Angus with a general security agreement over his personal property; a promissory note in which he personally promised to pay his father Brett Angus $50,000 dated May 7, 2014, and a general security agreement from Wave Innovations to Brett Angus also dated May 7, 2014. That was registered at the PPSA security registry on May 8, 2014. Mr. Angus deposed that his father had never lent any funds to Wave Innovations, he had only made loans to Mr. Angus personally. This would suggest that a security agreement over the assets of Wave Innovations was either a fraudulent preference or a fraudulent conveyance, as other creditors of Wave Innovations would be deprived of these assets. Mr. Angus's father was preferred by this

transaction. It may be that the trustee did not have the information currently available to me. [28] In any event, the general security agreement over Wave Innovations was the vehicle by which the assets of Wave Innovations came to be used by Site Access, as I understand Mr. Angus's evidence before me. That is, when Mr. Angus personally filed in bankruptcy, his trustee made no claim to the assets of Wave Innovations because they were fully secured to his father. Those assets are currently used by Site Access. Site Access also employs the former employees of Wave Innovations, Scott Rempel and Scott Weddell. Site Access does business for Wave Innovations' former clients, that it is Rogers, the City of Surrey, etc. Wave Innovations' bookkeeper is the bookkeeper for Site Access. Site Access' registered and records office has always been located at Mr. Jeramey Angus's residence. Ms. Randall deposes that Mr. Brett Angus has lived in New Zealand for the past 30 years and does not have money to spare. These security agreements give his address as 579 Waihau Road in Gisborne, New Zealand. Nonetheless, Mr. Jeramey Angus in his submissions insisted that Site Access is his father's business and that he, Brett Angus, employs his wife Angela to do a job similar to or the same as that Mr. Jeramey Angus performed for Wave Innovations. [29] This is inconsistent with Mr. Angus's submissions to

me in the fall of 2015 that because the industry was in a slump and Wave Innovations' business had dried up, he was going to need time to "find a job". If one were to assume that Site Access is, as Mr. Angus asserts, his father's business, it beggars understanding that rather than simply work for his father and be paid as Angela Angus now is, Mr. Angus would instead choose to train his wife for this more lucrative line of work, while he pursues other work through J. Angus Consulting (which he says is a consulting business that he is operating) in which he hopes to earn approximately $3,700 per month. [30] The bank records produced from third parties with respect to the income and expenses paid by Site Access indicate that Rogers and the City of Surrey are significant customers of Site Access, as they were for Wave Innovations. In a 15 month period between November 2014 and February 2016 Site Access had gross revenues of approximately $425,000. While that would not be as much as Wave Innovations earned in its largest producing year, it is a significant amount of income and does not show that the industry for the business has "dried up" as Mr. Angus suggested to me in court in November 2015. [31] Finally, in July 14, 2015, Mr. Justice Blok ordered Mr. Angus to provide Ms. Randall with documents set out in a letter from counsel for the claimant dated May 26, 2015. That included:

"Rent-Mortgage Payment Receipts for the Majuba Hill home and the Abbotsford rental." [32] It is appears that there were no rent receipts per se for the Abbotsford home. Rather, the rent was being paid by Site Access as the subsequent production of bank records indicates. Instead of producing cancelled cheques (as the landlord was subsequently able to do) or advising the court of the true circumstances, Angela Angus engaged in a series of emails with the landlord seeking rent receipts for "the recipient Angela Armstrong". [33] Amongst the documents produced on the third party records application by Rogers were a series of emails. These indicate that, at least from Rogers' perspective, Wave Innovations and Site Access are the same entity. On October 16, 2015 an internal email from Samer Ghabbour to Daniel McDonald says: Hi Daniel, please find attached the last quote from "Wave Innovations Ltd." and screen shoot of their PO's for the last three years. Attached is an email from them confirming that they will be changed to "Site Access Construction Ltd." I did not receive any official request with the change from NI West. [I understand NI West to be a division within Rogers]. I do not have a copy of the email from Wave Innovations indicating that they will be changed to Site Access Construction. [34] On June 30, 2015, Angela Armstrong, signing as project manager for Site Access,

advised Samer Ghabbour: Jeramey of Wave Innovations has joined forces with our company Site Access Construction and we are happy to have his skill sets available to us. [35] Mr. Angus himself asserts that this was mere puffery attempting to get business from Rogers. [36] On January 6, 2016, Kevin Brett of Rogers emailed Samer Ghabbour saying: "Please advise if there are any concerns with Site Access. As you know, we experienced some major performance issues with them back when they were called Wave Innovations." One of the documents produced by Rogers indicates Jeramey Angus is with the company Site Access, it provides business and mobile phone numbers for him there as well as an email registered to him at the company's domain "siteaccess.org". I do not know if this was provided to Rogers as the contact information for Site Access. [37] Site Access has made the following payments: 1. To Jeramey Angus: $20,700; 2. To Lormel Holdings for rent: $32,500, representing 13 months of rent at $2,500 per month; 3. To Angela Angus: approximately $50,350; 4. To Brett Angus: $20,000. [38] These payments (together with personal expenses charged to Site Access) suggest that Site Access has funds beyond that required to carry out its business in the order of at least $142,000 per year. In other words, were Mr. Angus continuing to operate the business as he had done, he would have income in the

order of $142,000 per year. [39] In addition, Mr. Angus has been able to earn an additional $4,800 through J. Angus Consulting. [40] Accordingly, Mr. Angus has failed to persuade me that there has been a material change in circumstances such that his Guidelines support income should be reduced and his payments for child support and spousal support should be reduced from the amount agreed in March 2014. [41] Further, if I were to impute an income to Mr. Angus, I would impute an income of $181,400, on the following basis: 1. This is the amount that Mr. Angus agreed as his income for spousal and child support purposes in March 2014; 2. Although he asserts that the industry has had a downturn and that he could not earn this amount, that is not established on the evidence. Moreover, Mr. Mynett found his income to be more in the order of $335,000 to $375,000. The agreement to $181,400 is already a substantial reduction beyond that contemplated by Mr. Mynett; 3. On the evidence before me, the only conclusion I can reach on the balance of probabilities is that Site Access is simply a vehicle for Mr. Angus to continue with the business that he was formerly operating as Wave Innovations, without the obligations that he owed to his creditors. I do not accept that his father is operating the business from New Zealand. Although Mr. Angus asserted that he does not live in New Zealand, there

is no evidence that he lives anywhere else. Mr. Angus has not produced an affidavit from his father. The letter from his father is insufficient to persuade me that this is his father's business. No documents have been produced by Mr. Angus or by his father to satisfy me that this business is being run by Mr. Brett Angus. Nor is it being run by his wife Angela Angus. As Mr. Mynett's opinion demonstrates, Mr. Angus has a skill set that is personal to him; that was the value behind Wave Innovations. There is no evidence to satisfy me that it is anyone else's skill set that is bringing the business into Site Access; 4. Even if I were persuaded that Site Access is a business owned and operated by Mr. Angus's father, there is no reason that Angela Angus would be earning the amount that she is from Site Access, as much as $7,100 per month, while Mr. Angus has chosen to go elsewhere and do other work. Mr. Angus was the one who had the skill set, not his wife. If one were to assume that to operate a business such as Site Access, Site Access required access to a line of credit that Mr. Angus can no longer provide (and there is no documentary evidence to show that Site Access has such a line of credit), then surely it would make sense for Site Access to employ Mr. Angus as an employee and to pay him a reasonable sum for his services. Instead, apparently Angela Angus is paid a substantial

amount by Site Access and Mr. Angus receives a very modest amount as a "consultant". I am not persuaded by the evidence that this is correct; and 5. Even if I were wrong in my conclusions as reached above, Mr. Angus has the capacity to earn far more than he does as a consultant. Ms. Angus has produced various job postings for which Mr. Angus would be appropriate and which would pay him significantly more than he earns as a "consultant". When asked about these in cross examination, the tenor of Mr. Angus's evidence was that he was not going to do that type of work and that he was going to develop his own business. Of course, for child support purposes, this is not adequate. A payor is obliged to take reasonable steps to find employment commensurate with his skills and circumstances: Van Gool v. Van Gool, (1998), 44 R.F.L. (4th) 314 (B.C.C.A.). If Mr. Angus hopes to change careers or develop a business, he cannot impose the costs of that change onto his children: Pierce v. Pierce, 2004 BCSC 245. [42] In short, Mr. Angus' income will continue as set at $181,400. [43] Accordingly, Mr. Angus's applications in E10813 are dismissed. Contempt Allegation in the Randall Action [44] Turning now to the second application brought in Action E10813, the Randall Action, Ms. Randall seeks orders that Mr. Angus be found in contempt for failing to comply with the order of Mr. Justice Blok; that

he be penalized $10,000 and that he be precluded from bringing further application to reduce his Guidelines income without leave of the Court. [45] On July 14, 2015, Mr. Justice Blok ordered that, amongst other things, Mr. Angus provide Ms. Randall with a document set out in a letter attached as Schedule "A" to the order. The letter detailed various bank account statements that were sought and the dates for those statements. The letter also specified for example documents relating to rent/mortgage payment for the Majuba Hill home and Abbotsford rental. [46] On August 10, 2015, Mr. Justice Joyce extended the deadline for compliance with Mr. Justice Blok's order to September 10, 2015. On November 5, 2015, Mr. Angus not having provided all of the documents as sought, I ordered that, amongst other things, Laurmel Holdings Ltd. and Sands & Associates (trustee in bankruptcy for Mr. Angus) produce documents. [47] On December 7, 2015, Master Caldwell ordered that the Bank of Nova Scotia, Royal Bank of Canada, Bank of Montréal provide copies of the documents to Ms. Randall. [48] Mr. Angus' explanation for failing to provide the documents, or his statements that he had provided all the documents, were incredible. If Mr. Angus had any difficulty obtaining the documents from any of the financial institutions, all he need do was make an application, as he did to reduce his child and spousal

support. He did not do so. Moreover, as I have noted above, rather than obtain cancelled rent checks which were available to them, Ms. Angela Angus asked the landlord to produce receipts suggesting that the payments have been made by her personally. These were then produced by Mr. Angus. [49] I conclude that Mr. Angus intentionally failed to comply with the order of Mr. Justice Blok. He did so as part of his complicated efforts to avoid paying child and spousal support to Ms. Randall and child support to Ms. Verdun-Jones. He was thus in contempt. [50] However, I will require further argument from the parties as to whether it is appropriate to pursue a contempt order. Both Ms. Randall and Ms. Verdun-Jones seek a penalty under the Family Law Act. To my mind the penalty provisions of the Family Law Act are designed to achieve the same goal as civil contempt -- that is, to achieve compliance with court orders. I draw the parties' attention to H. v. H., 2015 BCSC 2196. I will require further submissions from the parties on these points. Child Support in the Verdun-Jones Action [51] I turn now to Ms. Verdun-Jones' application in Action E1178, the Verdun-Jones Action. Ms. Verdun-Jones seeks an order fixing basic child support; retroactive child support; special costs and a penalty in the amount of $5,000 as well is a declaration that Mr. Angus is the sole owner and operator of Site

Access Construction Ltd. [52] I accept Ms. Verdun-Jones' submissions that Mr. Angus' children should be supported on same Guidelines income. Mr. Angus' income that should have been set at $181,400, as it was in the Randall Action. Had Mr. Angus be more forthcoming with financial disclosure, undoubtedly it would have been. As it was, Mr. Angus did not make financial disclosure and Mr. Justice Joyce permitted Ms. Verdun-Jones to seek retroactive child support once financial disclosure was complete. [53] As I have indicated above, based on the evidence before me and on Mr. Angus' cross-examination, I fix Guidelines income for Mr. Angus for child support purposes at $181,400. It will be retroactive to the date of the original child support order in the Verdun-Jones Action. [54] With respect to the application for special costs as well as a penalty under the Family Law Act, as I have indicated above, these penalty provisions to my mind seem addressed to achieve similar goals. Again, I will require further submissions from the parties on these points. [55] Finally, turning to the application for a declaration that Mr. Angus is the sole owner and operator of Site Access Construction Ltd., I am not able to make that declaration based on the evidence before me. I do consider that Mr. Angus has participated in a sham in an attempt to avoid paying child and spousal support. I cannot say

that he is the sole shareholder or owner and operator of Site Access Construction Ltd. Conclusion [56] In conclusion, Mr. Angus' applications are dismissed. [57] Ms. Randall's application to find Mr. Angus in contempt of the order of Mr. Justice Blok of July 14, 2015 is adjourned, with further submissions to be made. The application for a penalty in the amount of $10,000 is adjourned. I am not willing to order that Mr. Angus requires leave of the court before bringing any further application to reduce his Guidelines income. He has only brought one application to do so to this point in time. [58] With respect to Ms. Verdun-Jones' applications, child support will be fixed on the basis of the Guidelines income for Mr. Angus of $181,400. Child support will be retroactive to the date of the original order for child support. Ms. Verdun-Jones' applications for special costs and a penalty are adjourned pending further submissions. The application for a declaration that Mr. Angus is the sole owner and operator of Site Access Construction Ltd. is dismissed. "B.J. Brown J."