P.G.A. v. B.M.A.

2012 BCSC 1631 P.G.A. v. B.M.A. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: P.G.A. v. B.M.A., 2012 BCSC 1631 Date: 20121102 Docket: E64791 Registry: Kelowna Between: P.G.A. Claimant And B.M.A. Respondent Before: The Honourable Madam Justice Hyslop Reasons for Judgment Counsel for the Claimant: C.G. Johnson Counsel for the Respondent: L. Kennedy Place and Date of Trial: Kelowna, B.C. October 26, 2012 Place and Date of Judgment: Kelowna, B.C. November 2, 2012 [1] The claimant, P.G.A., seeks to vary the order of Mr. Justice Barrow granted October 1, 2006 (the "Barrow Order"), pursuant to s. 17(4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp). [2] Mr. Justice Barrow ordered that the claimant pay spousal to the respondent, B.M.A., in the amount of $725.00 commencing October 1, 2006 until further order of the court. [3] The respondent opposes varying this order. [4] The claimant has made all the payments pursuant to the Barrow Order. [5] The claimant and the respondent agree that the test to vary an order for spousal support is stated in Willick v. Willick, [1994] 3 S.C.R. 670. Willick deals with child support and the same test was adopted for spousal support in L.G. v. G.B., [1995] 3 S.C.R. 370. [6] The test is: There must be a material change of circumstances, that is, a change that, if known at the time, would likely have resulted in different terms. If the matter which is relied on as constituting a change was known at the relevant time it thus cannot be relied on as the basis for variation. [headnote of Willick] [7] It is assumed that the Barrow Order was correct and accurately assessed the needs of the recipient spouse. POSITIONS The Claimant's Position [8] The claimant's position is that there is a change of circumstances, and it has occurred as the respondent can work and he is not working because he chooses not to do so. [9] The claimant relies on case law such as Canada (Minister of Human Resources Development) v. Scott, [2003] F.C.J. No. 80, 300 N.R. 136; Mills v. Mills, [1990] O.J. No. 2491, 31 R.F.L. (3d) 83; Moge v. Moge, [1992] 3 S.C.R. 813; L.M.P. v. L.S., [2011] 3 S.C.R. 775; Bracklow v. Bracklow, [1999] S.C.J. No. 14; and Bambrick v. Bambrick, [1999] N.J. No. 344 to support his position. The Respondent's Position [10] The respondent's position is that his circumstances have not changed since the Barrow Order. He argues that Mr. Justice Barrow predicted what did happen and his order is based on that prediction. Findings in the Barrow Order [11] At the time of this summary trial, Mr. Justice Barrow found the following: 1) The claimant and respondent were married March 29, 1986 and separated on May 17, 2003; 2) The claimant and respondent were in their early 50s; 3) The claimant and respondent have two children, the eldest is almost age 20 and the youngest age 17; 4) The eldest child was living independently in Vancouver; 5) The youngest child was in high school and, at the time, living in Denmark on a Rotary exchange program which, on her return from Denmark, she would complete high school and graduate in June of 2009. This daughter hoped to pursue post-secondary education and qualify as a teacher; 6) The respondent has not contributed to child support since the date of separation; 7) The younger child will continue to be a child of the marriage, and that the claimant "... will continue to support her and, if possible, assist her in her educational endeavours" [para. 32]. Mr. Justice Barrow anticipated that given the younger child's educational plans, she could remain a child of the marriage for as long as seven years; 8) The respondent was receiving Canada Pension Plan ("CPP") disability benefits; 9) The respondent has the ability to earn more income than he does; 10) The respondent, prior to separation, worked operating a marihuana grow operation with the claimant, did collection work, and some yard work; 11) The respondent is not totally disabled, but is unable to work "on a 'regular' basis. ... All of this supports the notion that whatever his disability, B.M.A. has some residual ability to earn income"; 12) The respondent is able to earn $500.00 a month above and beyond his CPP benefits; 13) For purposes of child support, the respondent is able to earn $19,229.00 per year; 14) The respondent was ordered to pay $172.00 per month commencing October 1, 2006; 15) Spousal support was awarded "based on need, as opposed to compensation or agreement, ..."; 16) The respondent resided in Ontario with his then 84-year old mother; 17) The claimant earns $49,000.00 per year inclusive of bonuses. [12] The claimant argues that she has been and continues to assist her daughters financially for their best possible future, and that of her grandson. [13] The claimant states that the respondent's medical reports of Dr. Li Wan Po dated August 28, 2012 and Dr. Rodrigues dated May 9, 2007 contain subjective complaints made by the respondent. [14] Further, the respondent is able to work and has not gone out and obtained work. [15] The claimant relies on Klabouch v. Canada (Minister of Social Development), [2008] F.C.J. 33. This is a case in which the claimant, Mr. Klabouch, sought to review the Minister's decision not to award a disability pension to him. This case is not helpful as the respondent in this case has been awarded his disability pension. [16] At the time of the Barrow Order, the claimant argues that it was anticipated that the respondent would work and that it was his obligation to do so. [17] The claimant relies on Mills, which applied legal principles of self-support as a goal and the clean break principle upon a marriage breakdown. The respondent states that Mills is a case from 1990, and there has been considerable change in the law since then. ANALYSIS [18] At the time of the Barrow Order, the court determined that the respondent's income from the CPP disability benefits was $12,229.00 a year, and that the respondent could earn additional income as he was not completely disabled and he could earn $7,000.00 a year for a total of $19,229.00. Based on this income of $19,229.00, Mr. Justice Barrow ordered that the claimant pay $725.00 per month for spousal support knowing that the respondent's income would be as high as $19,229.00. It is not known whether in the past the respondent has earned income to supplement his CPP benefits. [19] The medical opinions of Drs. Li Wan Po and Rodrigues do not change the medical findings relied on by Mr. Justice Barrow in making his order. [20] The claimant focuses, in her affidavit, on the help that she wishes to give her adult children. [21] The eldest child, who was not a child of the marriage at the time of the Barrow Order, has worked and lived in Vancouver, married, had a child and separated from her husband in the space of approximately three years. In 2010, she started a two-year course which she has not completed, and she has accumulated $30,000.00 in student loans. The eldest daughter now lives in a neighbouring city with her child and works part-time. [22] The younger daughter graduated from high school in January of 2008, travelled to Europe, returned to Kelowna, and then attended post-secondary school in September of 2009, residing with the claimant and then later her boyfriend. She then ended that relationship, returning to her mother's home, went back to Europe, and then enrolled again and attended school for the 2011/2012 year. As of September 2012, she is enrolled at the University of British Columbia. [23] The claimant has provided some financial support to her daughters. This is not a change of circumstances that is contemplated by the Barrow Order. In fact, Mr. Justice Barrow said: [32] ... There is no dispute that N.A. is a child of the marriage and given her educational plans it is likely that she will remain one for perhaps as long as seven years to come. I have no doubt that, as she has to this point, P.G.A. will continue to support her and, if possible, assist her in her educational endeavours. [24] Mr. Justice Barrow concluded the above in response to the respondent's claim to an unequal division of the matrimonial home. CONCLUSION [25] The claimant has not met the test set out in Willick and L.G.; that is, since the Barrow Order there has been no change of circumstances such to vary this order. [26] I award costs to the respondent which I fix at $670.00 inclusive of disbursements and taxes. "H.C. Hyslop J." HYSLOP J.