Clarke v. Babensee

2008 BCSC 468 Clarke v. Babensee

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Clarke v. Babensee, 2008 BCSC 468 Date: 20080328 Docket: 11188 Registry: Nelson Between: Ronald William Clarke Plaintiff And: Susan Elizabeth Babensee Defendant Before: The Honourable Mr. Justice Brooke Oral Reasons for Judgment In Chambers March 28, 2008 Counsel for the Plaintiff: J.K. Shkooratoff (Agent for D.W. Skogstad) Counsel for the Defendant: G.R. Green Place of Hearing: Kelowna, B.C. [1] THE COURT: This is an application by the plaintiff father to vary a consent order made on January 7, 2005, regarding child support and special expenses in accordance with the Guidelines and for an order that such variation be made retroactive to September 5, 2006. The parties have two children: Brian William Clarke, who was born on January 22, 1993; and Danielle Elizabeth Clarke, who was born on January 21, 1995. The consent order which was provided for by the separation agreement the parties entered into on October 6, 2004, provided that the plaintiff's Guideline income was $54,100 and the defendant's Guideline income was $382,000. [2] The parties share joint custody and joint guardianship, so that the children reside for equal periods of time with each of the parties, and each party has unrestricted access to the children when they are in the care of the other party. There is no question but that this regime has redounded to the

benefit of the children. The defendant mother pays net child support in accordance with the consent order of $1,000 dollars per month for each child, in all, $2,000. She pays, as well, 70 percent of the special and extraordinary expenses and the plaintiff pays 30 percent. [3] Since the order, the plaintiff has lost his normal employment and has obtained new employment at a salary considerably less than that of his former employment as administrator for the hospital foundation. He now earns a little less than $30,000 per year, in fact, $27,963 per year. The defendant's income at the same time has grown to $464,222. The plaintiff says there are other material changes as well. He has remarried and his wife has three children who live 50 percent of the time with her and the plaintiff, and the plaintiff and his wife now have a child, Mackenzie Grace Clarke, who was born on December 11, 2004. [4] The plaintiff submits that the defendant's increase in income and his change in employment and reduced income are material changes in circumstances sufficient to support an increase in child support, retroactive. The defendant says that there has not been a sufficient change in circumstances contemplated by s. 17(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and s. 14 of the Child Support Guidelines. Rather than, as the plaintiff says, there being a widening gap in the standard of

living the children enjoy when in the care of the plaintiff or the defendant, the defendant says that the standard of living that the children enjoy in their father's care is as good as or better than the standard of living they enjoy in her care. The defendant submits that the only question the court must address is whether the support the defendant pays satisfies the requirement of s. 9 of the Guidelines and that neither an increase in her income or a decrease in his determines the question. [5] Section 9 of the Guidelines says this: 9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [6] In Contino v. Leonelli-Contino, [2005] S.C.J. 65, the Supreme Court of Canada considered the application of s. 9 of the Guidelines. Justice Bastarache wrote for the majority, Justice Fish dissenting. Justice Bastarache, first of all, refers to the formula set out in paras. 3 and 8 of the Guidelines and notes that they are not for use under s.

9. Section 3(1) says: 3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. [7] At para. 3 of Contino, Justice Bastarache notes: ...Shared custody arrangements are not a simple variation of the general regime, they constitute by themselves a complete system. [8] The factors in s. 9 that I have read are to be read conjunctively, and no one factor should prevail (para. 27 of Contino). At para. 82, Justice Bastarache notes the difficulty inherent in determining an equitable division of the costs, and he says this: The determination of an equitable division of the costs of support for children in shared custody situations is a difficult matter; it is not amenable to simple solutions. Any attempt to apply strict formulae will fail to recognize the reality of various families. A contextual approach which takes into account all three factors enunciated by Parliament in s. 9 of the Guidelines must be applied. [9] I accept, as well, that the analysis should be contextual, and here I refer to para. 55 of Contino where this is said: The analysis should be

contextual and remain focussed on the particular facts of each case. For example, an application that represents a variation of a prior support arrangement, will usually raise different considerations from a s. 9 application where no prior order or agreement exists. In the former case, the recipient parent, when he or she first got custody, may have validly incurred expenses based on legitimate expectations about how much child support would be provided. These expenses should be taken into [account] and a court should have proper regard to the fixed costs of the recipient parent. [10] In taking a contextual approach which encompasses the three factors in s. 9, I note that the consent order of January 7, 2005, reflected a comprehensive settlement between the parties of their property and financial issues. That settlement was recorded in the separation agreement of October 6, 2004. Setting off the plaintiff's Guideline income of approximately $54,000 against the defendant's Guideline income of $382,000 would have resulted in the defendant paying $3,265 per month rather than the $2,000 per month for the two children, which was agreed upon. [11] I accept that a consent order reflects the agreement of the parties and was seen by them as correct when it was made. As Mr. Justice Curtis noted in the recent decision of Amos Investments Ltd. v. Minou Enterprises Ltd., 2008 BCSC 332, a

consent order is to be interpreted as a contract between the parties that made it, using the usual methods of construing a contract. [12] Before making a variation order, s. 17(4) of the Divorce Act requires the court to be satisfied that "a change of circumstances as provided for in the applicable guidelines has occurred". Section 14 of the Guidelines defines what would constitute a change of circumstances for the purposes of s. 17(4) in this way: (a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof; (b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support... [13] Section 14(b) applies here, there being no table amount determination. The threshold question has been construed to mean a change that is material, substantive, unforeseen and of a continuing nature. Here, I refer to the decision of the Court of Appeal in T.L.A.T v. W.W.T, [1996] B.C.J. No. 1577, where Justice Newbury, writing for the court, quoted the Reasons of Justice Sopinka, writing for the majority, in Willick v. Willick, [1994] 3 S.C.R. 670, where this is

said at para. 33: In deciding whether the conditions for variation exists, it is common ground that the change must be a material change of circumstances. This means a change, such that, if known at the time, would likely have resulted in different terms. The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [14] Can it be said that the change in the plaintiff's income and employment and the increase in the defendant's income is a material change in that sense? I do not think so. First of all, some change of circumstances was specifically acknowledged to be foreseeable, in the separation agreement at para. 18, where this is said: The Parties acknowledge that they have both received professional legal assistance in the negotiation and finalization of this Agreement and the Parties acknowledge that some degree in the change of their circumstances is foreseeable and that they are aware that health, job markets, parental responsibilities, housing markets and values of assets are all subject to change and are contemplated by the Parties in coming to this Agreement. [15] While I accept that the plaintiff lost his former employment through no fault of his own, he has regained employment, and he has the academic and work experience and qualifications appropriate to more

remunerative employment. To the extent that the plaintiff's expenses have increased, that cannot be a factor to be taken into account where at least a significant part of the expense is attributable to the three additional children that he and his wife share responsibility for 50 percent of the time, and their own child who was, of course, born before the separation agreement was entered into and the order previously referred to was made. Despite the rise in her income and the accumulation of retained earnings in her professional corporation, the defendant continues to live in the same home that she and the plaintiff occupied with their children. She has no expensive hobbies or interests other than an interest in travel, and it cannot be said that her lifestyle and that of the children whilst in her care is lavish. She may buy the children designer clothes, but she buys them at a discount retailer, such as Winners. The plaintiff, it must be remembered, has added significantly to the size of his home, not to accommodate his two children with the defendant, but to accommodate his extended family. Similarly, while expensive vacations may not be a realistic prospect for him, he does have a lake cottage that all of his extended family enjoy. It must also be remembered that the plaintiff obtained the benefit of an unequal division of the family assets and that his net worth reflected

that. [16] In the result, I am not persuaded that there has been a material change in circumstances sufficient to justify a variation of the existing consent order. There is no basis for a variation of support, and perforce there is no basis for any retroactive change. In the circumstances, the application is dismissed with costs to the defendant. [17] Thank you. [18] MR. GREEN: Thank you, My Lord. [19] THE COURT: We will adjourn. [20] MS. SHKOORATOFF: Thank you. Brooke J.