Bonilla v. Bonilla

2009 BCSC 890 Bonilla v. Bonilla

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bonilla v. Bonilla, 2009 BCSC 890 Date: 20090702 Docket: E7168 Registry: Chilliwack Between: Janelle Lee Bonilla Plaintiff And Aristoteles Armando Bonilla, also known as Aristotelles Armando Bonilla Defendant Before: The Honourable Mr. Justice Grist Reasons for Judgment Counsel for plaintiff: R.W. Krentz Counsel for defendant: M. Walters Place and Date of Trial: Chilliwack, B.C. January 21 and February 20, 2009 Place and Date of Judgment: Chilliwack, B.C. July 2, 2009 [1] This 18A Summary Trial raises issues relating to child maintenance payable by the plaintiff in respect of two children who reside with the defendant, and the plaintiff's claim for division of the equity in the former matrimonial home. [2] The child maintenance issues arise on the defendant's application for maintenance for his two sons, born of previous relationships to his marriage to the plaintiff. The oldest is 19 years of age and graduated from high school in June 2008. He is presently working at least part-time and has applied to take courses at the local community college. He has had some indication that he will be accepted into the diploma program he has applied for, but may have to take some courses before commencing the program to deal with a learning disability. [3] The younger boy is 13 years of age and is attending public school. This boy is in the

joint custody of the defendant and his maternal grandparents who exercise frequent access and cover many of the boy's expenses. [4] The issue relating to the equity in the matrimonial home involves a separation agreement drawn up by the parties five months after separation. The agreement provided in part that the plaintiff would not claim an interest in the home, a property registered in the defendant's name. [5] Disposition of these issues will be by way of an order requiring the plaintiff to pay child maintenance for the younger boy, Christian, based on her Guideline income. Determination of maintenance for the oldest boy, Aris, will be adjourned until he actually begins a course of study such as indicated in the Letter of Acceptance from the college. In respect to the equity in matrimonial home, the provisions in the separation agreement will be varied pursuant to s. 65 of the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA], to provide that each party will have an equal interest in this family asset. Child Maintenance [6] The parties began to live together in December 1998, and were married March 16, 2002. There is one child born of their relationship, Alexandra, born August 6, 1999. She is now 9 years of age. This girl was the subject of Provincial Court proceedings after the parties separated in October, 2005. The outstanding court orders provide that the parties will

exercise joint custody and joint guardianship, with Alexandra to primarily reside with her mother. The defendant is given stipulated access and required to pay maintenance in accordance with his Guideline income. [7] The petitioner has asked that the issues relating to Alexandra remain in the Provincial Court where there is a history and because she feels that court provides a more convenient forum for resolution of issues. I think there is merit to this, and that Court should continue to have jurisdiction relating to Alexandra, notwithstanding the maintenance applicable to the two boys is to be settled by an order of this Court. [8] The younger of the two boys has lived with the two parties since early in 2000. The oldest boy came to reside with his father in the summer of 2002. The petitioner's relationship with the oldest is, and has been, a difficult one. She says in her affidavit that he has been defiant and resistant to her assuming any role as a parent, and accordingly, although he resided in their home until she left in October of 2005, she never assumed the position of a parent towards the child, and should not be responsible for his maintenance. Further, she says the boy's mother is able to contribute to his support but has not been joined in this maintenance application or otherwise been required to pay for his support. [9] The older boy, Aris, is presently 19 years

of age, living with his father but working at least part-time. He graduated high school in June 2008 and in September 2008 he applied to the local community college to be accepted into their Criminal Justice Diploma Program. He received a letter of acceptance but apparently was also required to undergo assessment and to take some preparatory courses to help him cope with the Program in light of a learning disability. During an adjournment in the proceedings I asked that there be better evidence of efforts made towards entry into the Program. Nothing more of significance has been provided and it is my view that it is not yet established whether he will continue with these studies. In other respects, notwithstanding the estrangement between Aris and the plaintiff, I am satisfied the evidence as a whole indicates she took on something of a parental role with this boy, albeit as a stepmother frustrated in her attempts because of the boy's resistance to her. [10] Should Aris proceed further with his intention to attend college, maintenance should then be assessed based on the factors listed in Farden v. Farden (1993), 48 R.F.L. (3d) 60, the support required, and the level of contribution appropriate to the step-parent relationship. This should be presented with better evidence of his enrolment and a better indication of what the natural mother can provide. [11] The plaintiff

concedes that she is responsible for contributions towards Christian's maintenance. Christian's mother is incapable of contributions but her parents, the boy's maternal grandparents, have joint custody and exercise regular weekend, weekday and summer access. They also cover most of his recreational and school related expenses, and buy much of his clothing. [12] In my view, the expenses covered by the grandparents are in the most part special or extraordinary expenses that might fall under s. 7 of the Federal Child Support Guidelines, S.O.R./97-175 (the "Guidelines"). Their contributions to these expenses do not at law alter the plaintiff's obligation to provide the basic level of support indicated by the Tables. The plaintiff's present Guideline income is the sum of $58,000, and accordingly, the maintenance payable is $541 per month, which will first be payable June 1, 2009. Retroactive Maintenance [13] The plaintiff applied for maintenance for Alexandra in her Provincial Court application. Maintenance was accessed retroactive to September 2007, resulting in $4,435 payable on these retroactive arrears. It is appropriate here that retroactive maintenance for the two boys be established from the same date utilized in the Provincial Court. Accordingly, arrears will be calculated from that date at the rate applicable for two children to June 2008, when Aris graduated from high

school. Thereafter, arrears will be at the one-child rate from July 2008 until May 1, 2009. The plaintiff's Guideline income for this period of time will be established at $54,000. The Matrimonial Home [14] The parties signed a separation agreement in April 2007 which provided that the defendant would keep the matrimonial home and be responsible for the debt associated with the property. The plaintiff says she signed the agreement under duress with the defendant threatening to fight for sole custody of Alexandra, and as a result of fear of confronting the defendant stemming from previous assaults. The defendant acknowledges a role in physical confrontation prior to separation but says the plaintiff was equally physically aggressive and never in fear of him. I cannot resolve the question of whether the agreement can be avoided as a result of duress on this application, however, in my view the question is academic in that this situation requires that the agreement be varied to effect fairness under s. 65 of the FRA, in any event. [15] The agreement provides that the defendant was not to seek child support for Aris or Christian. This release appears to be the main financial advantage offered to the plaintiff for quitting her interest in the matrimonial home. The premise that maintenance can be set off against the interest in the matrimonial home has been lost through the course of

these proceedings. Further, although the equity in the home was likely significantly less in April 2007, the present equity is in excess of $100,000. Both parties are employed by Corrections Canada but the defendant is employed at a significantly higher rate of pay and his term of employment with Corrections Canada began before the date of marriage, whereas the defendant only became employed by the Federal Government in 2004. The separation agreement also contains a release by the plaintiff from any interest in the defendant's pension plan. In Hartshorne v. Hartshorne, 2004 SCC 22, fairness on an application for reapportionment is to be assessed when the application is made to the court. In determining fairness the court is to analyse: 1. whether the circumstances of the parties at the time of separation were within the reasonable contemplation of the parties at the time the agreement was formed; and if so, 2. whether at the time of the agreement's formation the parties made adequate arrangements in response to these anticipated circumstances. [16] Central to this analysis is whether: 1. the parties predicted accurately at the time of contract formation, their actual circumstances at the time of distribution; 2. the parties considered the impact of their decision; and 3. the parties adjusted the situation during the marriage to deal with different situations than expected,

either because the circumstances were different or simply because implications were inadequately addressed or provided to be unrealistic. [17] If the separation agreement were to be applied in respect of the question of division of family assets, the result would be unfairly in the defendant's favour. The plaintiff has a comparable need for financial independence and fairness requires an equal distribution of the major financial asset. This is effected, in my view, by an equal distribution of the equity in the matrimonial home. "W.G. Grist J."