J.R. v. N.R.

2013 BCSC 516 J.R. v. N.R. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: J.R. v. N.R., 2013 BCSC 516 Date: 20130326 Docket: E110430 Registry: Vancouver Between: J.R. also known as J.M. also known as J.M.M.R. Claimant And N.R.F. also known as N.R. Respondent Before: The Honourable Madam Justice Hyslop Corrected Judgment: The reasons for judgment were corrected on October 22, 2013 at para. 171 and number 7 of the Summary Reasons for Judgment Counsel for the Claimant: P. Daltrop Counsel for the Respondent: S.N. Mansfield Place and Date of Trial: Vancouver, B.C. December 3-7 and 10-12, 2012 Place and Date of Judgment: Vancouver, B.C. March 26, 2013 INTRODUCTION [1] This is a family law case. The issues that arise from the pleadings, the evidence and the submissions are divorce, property division, spousal and child support, and the custody and guardianship of two young children. [2] The claimant/wife is J.R. The respondent/husband is N.R. The children are S. and W. [3] Before this trial, there were a number of orders that were made. In order to explain some of the positions taken by the parties in this litigation, I will first summarize those orders and the events that occurred after the making of those orders. [4] J.R. and N.R. separated May 27, 2011, when J.R., together with the children, S. and W., left the family home for a transition house. This occurred without the knowledge of N.R. Thereafter, there were a series of interlocutory and interim orders made by the court. Orders Master Donaldson's Order of June 14, 2011 [5] This order was to serve J.R. substitutionally with all documents, together with the application that started this family law case. Master Scarth's Orders of June 17 and 24, 2011 [6] The June 17, 2011 order ordered that N.R. pay J.R. a lump sum of $15,000.00 as a one-time payment for child and spousal support. By consent, it ordered the listing and sale of the Point Grey residence that had been the family home before the parties' separation, that J.R.'s identity card and passport be delivered to her forthwith by N.R., that the children's passports be delivered by N.R. to his counsel, and that the children not be removed from British Columbia, except by written agreement. Master Scarth also ordered that N.R. have access to the children at certain times and dates, and that N.R. was responsible for picking up and returning the children at a public location agreed upon by the parties. [7] On June 24, 2011, Master Scarth made orders that were adjourned from the June 17, 2011 date. Master Scarth ordered that J.R. have exclusive occupancy of the Point Grey residence commencing June 25, 2011, until further order of the court, and that the interim and primary residence of the children be that of J.R. Master Scarth ordered that N.R. have access to the children each Saturday and Sunday, and those Wednesdays, from 10 a.m. to 6 p.m., when N.R. was not working. Pick-up and drop-off of the children was to be undertaken by N.R.'s father, M.R., or another third party as agreed to by the parties if M.R. was not available to pick up the children. J.R. and N.R. were to communicate by email, through counsel, or otherwise as agreed. N.R.'s application for a shared use of the Point Grey residence was dismissed. Once N.R. had secured alternate accommodation, he could apply to the court regarding the children's primary residence and parenting schedules. Master Donaldson's Order, by Consent, dated July 27, 2011 [8] Pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), Master Donaldson ordered that N.R. pay J.R. spousal and child support in the respective amounts of $7,500.00 and $6,000.00 per month, starting August 1, 2011 and payable on the first day of each and every month thereafter until further order of the court. [9] Further, N.R. was to purchase J.R.'s interest in the Point Grey residence for $1.3 million and assume the mortgage of about $100,000.00, and J.R.'s covenant on the mortgage was to be released. J.R. was to use her best efforts to leave the family home by August 31, 2011, but not later than September 15, 2011. J.R. was to contribute $2,000.00 from her child and spousal support towards a description of costs relating to the Point Grey residence from June to and including August, and possibly 15 days in September 2011. If J.R. remained at the Point Grey residence past September 15, 2011, N.R. could seek an upward variation of the contribution of J.R.'s expenses to the Point Grey residence. [10] Lastly, J.R. could seek spousal and child support for June 2011, and characterize the payment of $15,000.00 as spousal and child support. Madam Justice Humphries' Consent Order as a result of the Judicial Case Conference held September 22, 2011 [11] This order varied Master Scarth's order of June 24, 2011 as to the drop-off and pick-up time for N.R.'s access to the children. Madam Justice Humphries ordered that J.R. would deliver the children to N.R. and that N.R. would return the children to J.R.'s residence. Transfer of the children would be done at the curbside. It was further ordered that: 3. Neither party shall disparage the other to or in the presence of the Children. [12] Email was to be the mode of communication with respect to the children. Madam Justice Gropper's Order of January 30, 2012 [13] N.R. and J.R. consented to the court making a declaration under s. 57 and an order for the preparation of the s. 15 report, all pursuant to the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA]. Madam Justice Gropper ordered that the cost of the s. 15 report be shared and that the parties could return to court if there were other terms to which they could not agree. J.R. sought to enforce her order for child and spousal support, but did not proceed with her contempt application against N.R. Madam Justice Gropper found that N.R. did not comply with the payment of the support orders for September, October and November, and that in the face of the contempt application, he paid the arrears. [14] Madam Justice Gropper found that N.R. unilaterally reduced his child support obligations based on an annual income of $150,000.00, and that the child and spousal support orders should be varied because that would be his income for 2012. N.R. argued that, as a result of the family breakup, he could not concentrate and he was suffering stress, that his access to his children was restricted, and that he would be a danger to his patients. Madam Justice Gropper found that there was no compelling circumstance or material change in circumstances that would justify a reduction of the interim orders of support. She ordered that N.R. provide J.R. with post-dated cheques of $13,500.00 per month, payable to her beginning on February 1, 2012. Order of Master Muir dated July 12, 2012 [15] Master Muir ordered that either Dr. Mary Korpach or Dr. Nicole Aubé prepare a s. 15 report. Order of Mr. Justice Butler dated September 27, 2012 [16] Mr. Justice Butler ordered that N.R. execute an assignment of the fees due to him under the Medical Services Plan ("MSP"). Failing this, it was ordered that the registrar of the court sign on behalf of N.R. He was ordered to pay the arrears of $24,000.00 accumulated for support payments due to J.R. for the months of May to August inclusive, and to pay $13,500.00 that would become due for October 2012. [17] Mr. Justice Butler ordered that N.R. quit video recording the pick-up and return of the children and that copies of all videos recorded be turned over to J.R.'s counsel within 14 days. [18] Mr. Justice Butler ordered that N.R. produce the following: · his rosters for both hospitals at which he works; · the written agreement between N.R. and the hospital that he worked at from 2006 to the present, which describes his hospital privileges; · the identification of his various income tax returns produced at his examination for discovery confirming his returns, and that the returns were true copies of his tax returns; · certain MSP summary reports and statements of earnings for certain years from the Medical Council of Canada and Fraser Health Authority; · Visa and bank statements for certain years; and · answers posed to him by counsel for J.R.. [19] Costs were awarded at $1,100.00. [20] In a separate order on the same day, Mr. Justice Butler made a no contact order pursuant to ss. 37 and 38 of the FRA, except for purposes of exercising access. He ordered that the police intervene in the event that they have reasonable grounds to believe that N.R. is disobeying the order by arresting him and bringing him before a Judge of the Supreme Court of British Columbia, who would conduct an inquiry to determine whether N.R. has committed a breach of the order. Discussion regarding the Orders [21] The need for an order for substitutional service was unnecessary in this case. There were so many ways service could be perfected without the involvement of the court, but with some cooperation from N.R. [22] N.R. was well aware that J.R. had no independent sources of income on which to support herself and the children. He blatantly refused to pay J.R.'s spousal and child support, and made unilateral decisions to reduce those amounts. When he did write cheques for support, the payees were either both the children or the children in their separate names and J.R. in her maiden name. In either case, they were impossible to cash. This was done with one cheque written in 2011, all cheques and post-dated cheques in 2012, and some 11 post-dated cheques for 2013. This failure to pay resulted in Mr. Justice Butler ordering that N.R.'s MSP fees be assigned to J.R. in order to meet the support obligations. [23] The court ordered a s. 15 report. N.R. and J.R. consented to the preparation of the report and to Dr. Korpach preparing it. Dr. Korpach prepared a report, but she did so without interviewing N.R. or having any input from him. N.R. argues that he asked J.R. to adjourn this trial so that it could be completed. J.R. refused. This report was not completed because N.R. at one point objected to Dr. Korpach preparing the report, then withdrew the objection, refused to participate and refused to make himself available despite Dr. Korpach's attempts to accommodate him. As a result, Dr. Korpach's report has limited value. Positions Children [24] It is against this background - the disobeyed orders and the alleged incidents of disrespect - that J.R. rejects a co-parenting scheme for the children and opposes orders for joint custody and joint guardianship of the children. She seeks guardianship and custody of the children, with access to the children by N.R. N.R. seeks joint custody and joint guardianship of the children. The joint guardianship sought is a modified version of the Joyce model, in that this agreement relating to the children will be mediated by a parenting co-ordinator; if there is no resolution when the parenting co-ordinator makes the decision, either party may have that decision reviewed by the court. [25] N.R. proposes that each parent have the children on a two-week rotating schedule, interrupted by the equal sharing of holidays and special occasions. Property [26] J.R. received from N.R. a payment of her equal interest in the Point Grey home, which was subject to a mortgage in the approximate amount of $100,000.00 and an interest or debt owing to N.R.'s father. The amount received by J.R. was $1.3 million. Together with the mortgage of $350,000.00, she used these monies to purchase a home in Lynn Valley, North Vancouver. She still has $323,000.00 left from that money. [27] J.R. proposes that the registered retirement savings plans ("RRSP") held by each of the parties be equalized by a spousal roll-over pursuant to the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), and that the children's registered education savings plans ("RESP") be placed jointly into the name of J.R. and N.R. and operated jointly for the benefit of the children. J.R. seeks the sum of $12,945.78, which is one-half of that deposited in N.R.'s Royal Bank account at the time of separation, and $2,286.73 on deposit in the joint account in the names of J.R. and N.R. Further, J.R. seeks $2,500.00, representing one-half of the value of the Honda motor vehicle that N.R. purchased using the family vehicle in exchange. [28] J.R. also seeks possession and title to two Persian carpets. N.R. claims that two of the carpets in the Point Grey residence do not belong to him, but rather that they belong to his father. [29] J.R. is prepared to divide her teacher's pension earned in Ontario in accordance with Part 6 of the FRA. It was never clear whether J.R. held a pension in British Columbia as a result of her teaching here. N.R. does not dispute that these are family assets. Rather, he proposes that the bank accounts not be divided, and that J.R. be compensated by keeping her teacher's pension. Child and Spousal Support [30] J.R. and N.R. do not disagree that the amounts should be determined pursuant to the Federal Child Support Guidelines (the "Guidelines"). They do disagree over the amount of N.R.'s income. J.R. further argues that N.R. was under paying the interim child support and that there is a shortfall that should be paid to J.R. for the support of the children. In addition, J.R. seeks special and extraordinary expenses for the children. [31] Both J.R. and N.R. agree that the determination of N.R.'s income should be made by averaging his income over the years. J.R. submits that it should be averaged over a five-year period; N.R. submits that it should be averaged over a three-year period. [32] N.R. does not dispute that J.R. is entitled to spousal support. He argues, however, that it should be reviewed both with respect to entitlement and amount three years from now, not in five years as proposed by J.R. J.R. argues that the amount for spousal support should be $12,000.00 per month. N.R. argues that the amount should reflect the marital standard, which was modest, and that the award should be $6,000.00 per month. Contingency Debt [33] N.R. is being audited by the provincial government for his MSP billings. He does not know the extent of that liability, if any. He has not yet shared any of the documents relating to this contingent debt with J.R. [34] As J.R. is an American citizen, she is presently attempting to file American tax returns for the years that she has been living in Canada and earning income. It is not known whether she owes the U.S. government any tax. She is seeking contribution for any tax debt from N.R. She argues that N.R. was responsible for making arrangements for the filing of J.R.'s income tax return. BACKGROUNDS OF J.R. AND N.R. BEFORE MARRIAGE J.R. [35] J.R. was born on December 19, 1973 in Louisville, Kentucky. She remains an American citizen. Her parents reside in the U.S., as does her brother and half-brother and other relatives. Her parents divorced when she was 10 years old, after which she and her brother resided with her mother. She had regular contact with her father. [36] At age 14 she started to work. She worked in an ice cream shop and bussed tables during high school and university. She then worked as a nanny in Europe, in a stained glass shop, and as a photographer's helper. [37] Before graduating with a degree in anthropology from the University of Louisville, she studied in France for a summer and spent one year of study at the University of Minnesota in 1997/98. While at university, at the age of 19, J.R. had a mental breakdown as a result of a number of stressors. She was hospitalized and diagnosed as bi-polar. [38] At the age of 15, J.R. first met N.R. in Flint, Michigan at a Bahá'í convention. N.R.'s family was Bahá'í, as was J.R.'s father, and her mother for a period of time. They met again when J.R. was 19 in Louisville when N.R. was visiting relatives. [39] In 1998, J.R. and N.R. were dating. J.R. had become Bahá'í by this time. J.R. travelled to Toronto in December of that year to visit N.R. In 1999, N.R. and J.R. became engaged. They were married on January 22, 2000 in Louisville, Kentucky. J.R. moved to Montreal to join N.R. N.R. [40] N.R. was born in Iran on March 21, 1967 of Iranian Bahá'í parents. N.R. has a sister. While living in Iran, his father, M.R., was a physician specializing in gynecology and obstetrics. N.R.'s family resided in northern Iran where M.R. headed a large maternity hospital. N.R.'s mother held a Master's degree in business administration. N.R.'s grandparents had little or no education. [41] As a result of the Iranian revolution, N.R. and his mother and sister moved to England with the intention of returning to Iran when the revolution blew over. It did not. With that, M.R. was given permission to leave Iran. [42] N.R. was almost age 12 when he and his family immigrated to Canada, settling in Toronto. M.R. obtained a position at a fertility clinic. [43] N.R. completed high school in Toronto. He enrolled at the University of Toronto and graduated with a Bachelor of Science. N.R. took two years off and worked in various positions in security at the Bahá'í World Centre. He then spent three more years at the University of Toronto studying nutrition, for which he was awarded a degree. [44] N.R. recalled meeting J.R. when she was 15 years old. He testified that she caught his eye. He recalls taking steps later, when J.R. was about 19, to date her. He testified that she was not interested. It was several years later when they renewed their friendship and eventually married, at which time J.R. was age 26 and N.R. was nearly 33 years old. [45] In 1994, N.R. entered Queen's University School of Medicine. After completing his degree in 1998, he entered a residency program at McGill University in obstetrics and gynecology. After his marriage to J.R. and while at McGill University, a spot became available at Queen's University, where he transferred to continue his studies. After the Marriage of J.R. and N.R. [46] N.R. was residing in Montreal and attending McGill University when the parties married. J.R. joined N.R. in Montreal. Initially, she did not work due to her immigration status, instead volunteering to teach English as a second language ("ESL"). She then found short-term employment in telephone sales. [47] In December 2000, N.R. and J.R. moved to Kingston, Ontario, so that N.R. could complete his specialty at Queen's University. J.R. applied for and was accepted into Queen's University's Bachelor of Education program, starting in September 2001. She was awarded her degree in education in June 2002. [48] In May 2002, N.R.'s mother was diagnosed with an aggressive form of cancer, which she eventually died from in 2004. J.R. was asked to go to Toronto to assist the family as N.R.'s parents cared for N.R.'s sister's children, while N.R.'s sister worked as an optician. After a month she returned to Kingston. In July 2002, due to his mother's illness, N.R. left his studies at Queen's University. He and J.R. moved to Toronto, where they lived with J.R.'s parents until around June 2003. [49] J.R. testified that she was not clear why N.R. quit his residency at Queen's. [50] J.R. testified that before she returned to Toronto, she wanted to see her family doctor in Kingston. She was not sleeping and was in distress. She was concerned that this would trigger her bi-polar condition. N.R. insisted they go to Toronto. When she arrived in Toronto, she was hospitalized for a period of three weeks. [51] J.R. had some employment as a receptionist in a car dealership belonging to N.R.'s cousin. J.R. eventually obtained teaching positions, first as an ESL teacher in January 2003, and then a full-time teaching position at Richmond Hill, Ontario. At this time, N.R. was uncertain about his future. He obtained some employment with a friend. N.R. then resumed his medical career in 2004 by moving to Vancouver and enrolling at the University of British Columbia. Within a year he completed his studies and earned his license to practice medicine. [52] In the summer of 2006, J.R. took a leave of absence from her teaching position at Richmond Hill and moved to Vancouver, where she and N.R. lived in rental accommodation. J.R. obtained work as a teacher-on-call with the Burnaby School District, which included a part-time contract teaching ESL. [53] N.R. obtained a position at the Royal Columbian Hospital and eventually he became a surgery associate. [54] J.R. became pregnant and S. was born on September 28, 2007. J.R. stopped teaching in June 2007. [55] Just before S. was born, N.R. and J.R. purchased the Point Grey home. The home was renovated. N.R. was by this time working at a Vancouver hospital as a surgery associate. He worked long hours and would be away from home for as long as twelve hours. He was also on-call. [56] At some point, after the move to the Point Grey home, the marriage started to unravel. During the renovations, J.R. testified that she could not make decisions on her own as N.R. was very particular. J.R. said that she was called stupid, incompetent, and incapable; N.R. then resorted to calling her courser names. N.R. insisted that J.R. produce receipts for Visa expenditures. He became angry at her if she overpaid at the grocery store. J.R. testified that N.R. constantly criticized her for little things. He was dismissive of her and gave her the silent treatment. J.R. testified that she was trying to please him and that she tried to make things perfect for him. He was unhappy and she felt that she was living "on a razor's edge". [57] In 2008, J.R. casually told someone she was speaking to on the telephone that S. was ill. N.R. told her that she was not to speak to anyone about S. [58] J.R. complained of physical acts of abuse. In Toronto, while preparing to attend a wedding and in the early morning while J.R. was applying mascara, N.R. slapped J.R. She recalls crying. In the Point Grey home, after J.R. exited the shower, N.R. punched her in the chest, arm and leg, and called her names. [59] In 2009, while nursing S., N.R. struck J.R. while yelling at her "What kind of a mother are you?" He then dragged her down three flights of stairs. When N.R.'s sister telephoned, J.R. told her that N.R. had hit her. N.R. then spoke to his sister in Farsi. N.R. hit J.R. in the stomach. J.R. called the police, but later told them that she had made a mistake by calling them. [60] J.R. testified that in 2009, she initiated the involvement of the Ministry of Children and Social Services. A social worker by the name of Mr. Y. came to see J.R. at the Point Grey home. Mr. Y. continued to have contact with J.R., and at times with N.R., up until J.R. and the children left the home. [61] J.R. testified that the name-calling continued. W. was born in October 2010. [62] On another occasion in February 2011, J.R. and S. were at a park when it began to rain. J.R. and S. returned home quite wet. As a result, N.R. berated J.R. for being out in the rain with S. and punched her in the back of the head. The police were called. [63] Shortly thereafter, in February 2011, this action was started and J.R. removed $20,000.00 from their line of credit. N.R. did not want the marriage to end. J.R. and N.R. agreed that they would go to counselling based on the principles of Bahá'í, and the $20,000.00 was to be returned. An old friend of N.R.'s did the counselling. The relationship did not improve. In fact, it continued to deteriorate. [64] In giving her evidence about the physical abuse that she says occurred, J.R. was not always able to give dates. Although she did give details, her evidence was at times confusing. J.R. was also at a disadvantage in that she was not aware of the exact dates when the police attended at the Point Grey home. These dates were sought by counsel and were obtained during this trial as a result of my order, which was granted by consent. [65] The police attended the Point Grey home on the following dates: February 6, 2010; July 19, 2010; February 6, 2011; April 17, 2011; May 27, 2011; and May 27, 2012. [66] When N.R. was asked whether he had ever assaulted his wife, he answered that it was "not in the manner she described." N.R. acknowledged that there had been physical altercations between them. N.R. described it as pushing, grabbing, and hitting the hand away. N.R. stated that his wife scratched him on the front and on the back of his arm. He said that when his wife got angry, she "digs her nails into my flesh." J.R. said that this occurred on one occasion and that she apologized to N.R. [67] In response to the allegation that he struck his wife when she came out the shower, he said he had no recollection of this occurring. He flatly denied dragging his wife down three flights of stairs. [68] N.R. recalled the incident when his wife took S. out to the park and it rained. He claimed that his wife was arguing with him, got angry, and that it was her who got in his face and that he pushed her away. [69] There was an incident on April 17, 2011 where J.R. lost her keys. N.R. testified that she had been dead-bolting the doors and leaving all the lights on in the house. She claimed to have seen shadowy figures in the back yard and to have heard voices. N.R. described J.R.'s behaviour as odd. J.R. called the police. They came and eventually took J.R. away under the Mental Health Act, R.S.B.C. 1996, c. 288, and she was admitted to hospital. J.R. returned home upon her discharge. N.R. had no concerns about his wife coming home and continuing to care for the children. [70] N.R. further stated that he has no concerns for his children as a result of his wife's bi-polar condition, so long as she keeps her medical appointments and takes her medication as prescribed. N.R. made it clear that it is not a matter that the court should consider as it relates to the children. [71] The name-calling and the criticism by N.R. was observed and heard by J.R.'s mother, M.M., and by her aunt by marriage, T.M. Both of these ladies had visited J.R. and N.R. in the Point Grey home, and then in J.R.'s home in Lynn Valley. [72] T.M.'s evidence was that N.R. constantly criticized J.R. about small things in front of her. T.M. said that she tried not to listen, but that she eventually told N.R. to stop it as it was embarrassing. T.M. stated that N.R. was critical of J.R. when he talked to S. As a result of N.R.'s conduct toward J.R., T.M. decided to keep in touch with J.R. She changed her telephone program so that she had unlimited telephone access to Canada. [73] T.M. and her adult children came to visit J.R. in June 2012. T.M. encountered N.R. at the door of J.R.'s home when N.R. came to pick up the children. T.M. testified that N.R. seemed glad to see her. N.R. told T.M. that J.R. was "crazy". On this occasion, S. was reluctant to go and was crying, which delayed N.R. and the children's departure for about 20 minutes. S. cried all the way to the car. J.R. was to pick up the children from N.R. T.M. was in the car with J.R., and their plan was that upon picking up the children they would proceed to dinner to meet other people. They waited in the parking lot near N.R.'s home. J.R. texted N.R. that they were waiting for the children. N.R. did not answer. N.R. was 50 minutes late in bringing the children down to J.R. N.R. was purposely late in retaliation for being held up for 20 minutes when he picked up the children. T.M. told N.R. that she could not believe this, to which N.R. responded, "I see so little of [the children]. You know how I feel." N.R. accused T.M. of being on J.R.'s side, to which T.M. stated, "I am on their side." T.M. testified that the next day N.R. came for the children and they were ready at curbside. [74] T.M. stated that she had been in N.R.'s company a number of times when he and J.R. visited in the United States. She said that she liked him. She stated that she saw a different side of him in Vancouver. [75] T.M. stated that S. was visibly upset with the constant criticism of his mother. N.R. told T.M. that his children were stolen from him. [76] M.M. visited her daughter a number of times while her daughter lived in Canada. She came to the Point Grey home when S. was born to help out and stayed for a period of two weeks. She next came to visit in 2008 or 2009 for two weeks. N.R. had paid for her airline ticket. She intended on staying for two weeks, but left early as she felt uncomfortable due to the tension in the household. For example, while there, a brunch was planned and M.M. and J.R. were making preparations for it. N.R. came in and said "You're incompetent, I'll do it." [77] M.M. said that she tried not to get in a confrontation with N.R., but occasionally lost her cool with him. She recalls an occasion when N.R. spoke in derogatory terms of her son and she became angry. On another occasion, N.R. came to the playroom, threw down receipts and demanded to know what they were about, despite it being obvious that J.R. was very busy. It is apparent from M.M.'s evidence that she dislikes N.R. [78] M.M. was aware that J.R. was leaving N.R. and going to a transition home. She came to Vancouver to help J.R. with those plans. She and J.R. met with Mr. Y. to discuss the plan. M.M. was under the impression that if there was no change in the home environment of J.R. and N.R., that the children would be taken from both J.R. and N.R. On May 27, 2011, J.R. and the children and M.M. went to the transition home. B.P., J.R.'s friend, went to the Point Grey home and told N.R. that the children were in a safe place. M.M. had left her suitcase behind and N.R. refused to release it to B.P. Later on, J.R. climbed up a ladder, got into the Point Grey residence, and retrieved her mother's suitcase. [79] I find that there was physical violence inflicted by N.R. on J.R. I cannot determine precisely how each event occurred. I accept J.R.'s evidence that she dug her nails into N.R.'s flesh and that this occurred on one occasion. I also find that N.R. called J.R. names and that this hurt J.R. [80] I find that there have been no further acts or threats of physical violence between J.R. and N.R. since their separation. I also find that there was no physical acts or threats of violence directed at the children, either before or after separation. DIVORCE [81] The evidence establishes the marriage, the grounds for divorce, and the absence of any bars. A divorce is granted. PROPERTY [82] There is little dispute over property. The assets to be divided that existed at the time of separation are RRSPs, bank accounts, employment pension, Persian rugs, and the value of the motor vehicle. Persian Rugs [83] I heard confusing evidence about the Persian rugs. M.R. testified that two of the rugs located in the Point Grey residence belonged to him. There was no evidence to the contrary. I accept M.R.'s evidence. This would leave the Persian rug that was given as a wedding gift by friends of N.R. I order that N.R. keep this rug and that J.R. keep the rug or wall hanging that she took after she left the Point Grey home. RRSPs [84] All RRSPs owned by J.R. and N.R. shall be divided equally by doing a spousal roll-over pursuant to the Income Tax Act. Bank Accounts and Motor Vehicle [85] N.R. shall pay to J.R. the sum of $17,732.51, which is one-half of N.R.'s RBC bank account, one-half of the parties' RBC joint account, and one-half the value of the motor vehicle ($25,891.56 + $4,573.47 + $5,000.00 = $35,465.03 ÷ 2 = $17,732.51). CUSTODY AND GUARDIANSHIP [86] This is the most important issue between the parties. Based on the evidence that I heard, neither J.R. nor N.R. lacked parenting skills. The skills to which I refer are feeding, bathing, supervising, and showing the children affection. Both parents wish to continue to raise the children in the Bahá'í faith, to which each adheres. While living together, they both participated in the day-to-day care of these two boys. Although J.R. spent more time with the boys than N.R., once he was working, this fact alone is not sufficient to consider co-parenting. The following sections of the Divorce Act must be considered when determining custody of S. and W: 16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. ... (4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons. (5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child. (6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. (7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child. (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. (10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [87] In making a determination under these provisions, I must consider the best interests of S. and W., free from any legal presumptions: Robinson v. Filyk (1996), 28 B.C.L.R. (3d) 21 (C.A.). [88] In J.S. v. G.J.S., 2005 BCSC 1373, Mr. Justice Rice stated: [39] Section 16 of the Divorce Act, expressly mandates that the best interests of the child is the only consideration in a custody or access dispute. The court must determine "best interests" by assessing "the condition, means, needs and other circumstances of the child" (s. 16(8)). Parliament singled out only two factors of special importance to guide the court in its assessment: First, the court is forbidden to consider the past conduct of a parent unless that conduct is relevant to the person's parenting ability (s. 16(9)). Second, the court must ensure that a child has as much contact with each parent as is consistent with that child's best interests. In applying this principle of maximum contact, the court must consider the willingness of the person seeking custody to facilitate such contact (s. 16(10)). [89] Joint custody requires both parents to share the responsibility of making decisions for the children. This requires consultation, co-operation, and above all else, communication. While communicating with each other and in order to make appropriate decisions for the children, each parent must listen to the other parent. This is called respect. [90] The Divorce Act cautions courts not to take into consideration past conduct: "... unless the conduct is relevant to the ability of that person to act as a parent of a child." Poor communication between parents in the past is not sufficient to preclude considering joint custody. However, it is not sufficient for the court to hope that communication will improve. There must be evidence before the court that the parents are able to communicate: J.S. v. G.J.S., para. 48. [91] In P.V. v. D.B., 2007 BCSC 237, Madam Justice Russell stated: [92] The ability of the parties to communicate, while not determinative of the issue of whether joint custody should be awarded, is an important factor to be considered by the court: see Massaar v. Klotild-Houser, [1999] B.C.J. No. 196 at [paragraph] 15-21 (S.C.). That case discussed the decisions of the Court of Appeal in Stewart v. Stewart (1994), 41 B.C.A.C. 213, 2 R.F.L. (4th) 53 and Robinson v. Filyk, supra, and concluded that while there is no presumption in favour of sole custody, the presence or absence of an adequate degree of communication to make joint custody workable is a factor to be considered in deciding whether to award joint custody. See also Gordo v. Gordo, [1996] B.C.J. No. 2685 at [paragraph] 15-16 (S.C.), where MacKenzie J. awarded joint custody where the relationship of the parties was strained but not acrimonious. [93] An important consideration in this case is the need to balance and preserve the relationship of the child with both parents. In this case, the attitudes and actions of the defendant have to some degree undermined the relationship between M. and her father, and the defendant has tried to limit his access in the past. Thus, this Court must consider that any order made regarding the custody of M. should not further interfere with the plaintiff's relationship with his daughter. This issue was considered, for example, in A.B. v. L.D., 2001 BCSC 629. In that case, the mother took several steps to frustrate the father's access to their child, denied that he was the child's father, frequently denigrated the father and his cultural heritage to the child, and used obscene language in front of the child. She also had a pattern of disregarding court orders, and as a witness was found to give testimony that was "manipulative, evasive and unresponsive, and less than forthright and candid" in addition to displaying "a cavalier attitude towards the judicial process and court orders which she readily breached or ignored when it suited her purposes" (at [paragraph] 57). In that case, the father was found to be truthful in his testimony, and to sincerely have his child's best interests in mind. Drossos J. awarded joint custody and joint guardianship in that case, notwithstanding the tensions between the parties, ... [92] In P.V., at para. 47, Madam Justice Russell further stated that "... the parties are capable of civil communications at times, and they have demonstrated this in the past." She ultimately ordered joint custody and joint guardianship. [93] N.R. taught S. how to ride a bicycle, to ski, and to swim. N.R. has a lot to offer his sons, which he has demonstrated. What prevents me from making a co-parenting order is not just the physical abuse of J.R., but the mental and emotional abuse that he has inflicted on J.R. by constantly criticising and undermining her. This abuse developed over time even though he knew that J.R. is bi-polar. Furthermore, it occurred in front of the children. J.R. testified that S. has picked up on this behaviour and that he has been rude to her, which she believes comes from N.R. [94] After separation, in order to further undermine J.R. and to further abuse her, N.R. has disobeyed court orders. He did so knowing full well that J.R. had no income and that J.R. was relying on N.R. to provide her with money in order to meet the children's and her day-to-day needs. He had to know that J.R.'s legal fees would increase with each application. [95] When picking up the children, N.R. has ignored ordered times and has retaliated against J.R. by making her wait and ignoring her texts advising him that she was there for the children. He also turned up at J.R.'s home at Halloween in 2012 dressed in a Halloween costume in direct contravention of Mr. Justice Butler's restraining order. Fortunately, having good sense and the best interests of the children in mind, J.R. did not call the police, who may very well have arrested N.R. in front of his children. [96] N.R.'s behaviour undermines J.R. and hurts the children. The children, when witnessing their father's abuse of their mother verbally, do not have a good role model in N.R. [97] N.R., when testifying before the court, offered no apologies for his behaviour. He simply said that his children disappeared and that he did not see them for a month. He also said that his behaviour is as a result of the stresses of this action and that there were times when the orders were granted when he was not represented by counsel. These excuses are lame. I can only conclude that N.R. is blind to the effect that his behaviour has on his children. [98] N.R. seems to adhere to the philosophy "don't get mad, get even". For example, before their separation, J.R. wanted to discuss with N.R. a budget for her own personal items. She discussed this with a relative of N.R., who encouraged N.R. to permit this. Instead, N.R. reduced J.R.'s then-unrestricted use of the Visa to $1,000.00 per month. Another example, which I have already described, is making J.R. and T.M. wait for 50 minutes for the children because N.R. lost 20 minutes when picking up the children. A last example is writing support cheques so they are impossible to cash. [99] There is some evidence that N.R. continues to use derogatory terms when speaking of J.R. to the children. This is a continuation of his behaviour towards J.R. when they were living together. This "conduct is relevant to the ability of that person to act as a parent of a child." [100] In seeking a two-week rotating schedule, N.R. does not take into consideration that S. goes to school in the Lynn Valley area. Nor does the schedule take into consideration that N.R. works long hours. [101] The appointing of a parenting co-ordinator would provide N.R. with another opportunity to undermine J.R. and the children's relationship with their mother. [102] Until N.R. understands that S. and W. love their mother and that his behaviour is undermining their relationship with her, awarding joint custody is not in the best interests of S. and W. [103] I have concluded that J.R. would like to have a good relationship with N.R. as it relates to the children. I did not detect that she would use her custody order in any way to interfere with the access that I have ordered for him. It is my hope that these parties can make new arrangements for the children as time goes by. [104] I stated earlier that Dr. Korpach's report was of limited use. It has further limited use, as she referred to affidavits sworn by J.R. and N.R. that were not before me; and neither J.R. nor N.R. were cross-examined on them. [105] Dr. Korpach's report states that J.R. would prefer to return to Louisville. This was not raised in evidence at the trial. [106] Dr. Korpach observed the children with J.R. and she interviewed S. She had this to say: S. believes his parents don't live together because they "don't get along." He feels sad about this, and wishes he could live with both of them. He finds it hard going between his mother and father's home but was unable to describe this further. Asked about sleeping at his father's home he stated "not until mommy lets us." He believes his mother will not let them because she does not know if W. wants to stay at his father's home. Asked his feelings, he stated he likes to stay with his mommy. He paused then added "and daddy at the same time." He stated he loves his toy cars and does not have many at his father's home. Asked if he might like to sleep over at his father's home, he stated "sometimes I miss him at night and if I sleep at his house I will miss mommy a lot," emphasizing the word "lot." Asked his perceptions of his parents' relationship, S. believes that his mother likes his daddy. Asked if his daddy also likes his mother, he stated "yes" then retracted this stating his father does not like his mother because they fight. He volunteered that they fight with words only not with punching. He explained that his parents were "saying bad stuff to each other." His explanation was somewhat confusing, as he stated that he called his mother "stupid mommy," that he told his daddy to stop doing that, and that his mommy yelled "we're fighting - stay away." He stated he felt happy and sad about that because his parents moved. He stated his "daddy says mommy is a idiot" and it makes him feel bad when his father says this. Asked what his mother says bad about his daddy, he stated she does not say anything bad but tells him "if daddy says bad things to just say stop daddy." He stated he had tried this, but does not remember how his father reacted. ... S. presents as a sensitive child of above average intellectual abilities although these were not formally assessed. He is inquisitive and reactive, and responds well to [J.R.'s] nurturing, non-judgmental, and respectful guidance. He is closely bonded with his brother, although alert to his perceptions of differential treatment by both parents. It was my impressions from the interview and observation that S. is a less socially gregarious child relative to his brother, although his friendships are important to him. He has a good capacity to access and express many of his feelings, and has apparently been well schooled in this area. However, he also appears to manifest conflicted feelings about his parents' separation which cause him confusion and sadness. He is particularly distraught with his perception of his father's negativity toward his mother, his perception of greater sibling conflict at his father's. His discussion of his mother being the parent who meets most of his needs resulted in psychomotoric fatigue and apparent sadness. He appeared more stressed when discussing his father, and concurrently demonstrated lethargy, confusion of thoughts and loss of words. [107] Dr. Korpach states this about W.: ... It was my impressions that his understanding of verbal language far exceeds his expressive abilities, even more so than what would generally be expected at this age. This discrepancy appears to promote quick frustration and behavioural outbursts, which may become more pronounced should speech delays remain with age. While [J.R.] has identified W. seems behind relative to S. I would recommend the parents consider a speech/language assessment to identify any specific deficits and further strategies to assist W. in this area. From what I observed he requires constant positive modelling of cooperative social interactions, gentle redirection, and constant and continuous labelling and repetition to help with language acquisition skills. ... [108] Dr. Korpach makes some recommendations. She recommends that W. be referred for a speech assessment and that S. be referred for therapy with a child therapist who specializes in high conflict divorce situations. She says: S. would benefit from play/talk therapy that helps him resolve conflicting feeling about the separation, and that allows him a forum in which to discuss concerns about his parents. There are several therapists in Ms. Newell's office, such as Ms. Perrotta who are well-qualified for this work. [109] I would expect that J.R. would arrange for W. to be referred for a speech assessment. In doing so, she must advise N.R. of the date of the assessment and who is going to be assessing W., and she must permit N.R. to obtain all information regarding the assessment, together with any recommendations. [110] I expect that J.R. will arrange for S. to obtain the therapy as recommended. The parties must abide by the therapist's rules for providing information as to what S. tells the therapist. [111] At the same time, there is no plausible reason why S. and W. should not spend overnight with their father. [112] Accordingly, J.R. shall have custody of S. and W. N.R. shall have access to S. and W. as follows: 1) Every second weekend from Friday at 3 p.m. until Sunday at 6:30 p.m. In the event that that weekend includes a statutory holiday or an in-service day, N.R.'s access will include the statutory holiday or the in-service day as the case may be; 2) Despite the alternative weekends, the children will be with J.R. on Mother's Day from 9 a.m. to 6 p.m., and with N.R. on Father's Day from 9 a.m. to 6 p.m. 3) J.R. and N.R. will each have time with the children on the children's birthdays; 4) When exercising his access, N.R. shall be responsible for picking up the children from J.R.'s home and returning the children to J.R.'s home; 5) In the week when N.R. does not have the children, N.R. shall have the children on Tuesday overnight until Wednesday morning. N.R. shall pick up W. at 9 a.m. and S. after school and from the school. S. shall be returned to school at the time he is required to be there and S. is to be returned by 9 a.m. to J.R.'s residence; 6) J.R. must provide all medical and dental care providers, teachers, and counsellors with an irrevocable authority to provide N.R. information about the children; 7) N.R. and J.R. must communicate about the children by email, except in the case of an emergency; 8) Both N.R. and J.R. must provide each other, and continue to provide each other, with their current address, telephone number and email address; 9) The children's passports will be in the possession of J.R. J.R. will release the passports to N.R. when he travels with the children outside of Canada; 10) Each party may travel with the children within North America each year for a period of 14 days. The other party will co-operate to ensure that the appropriate travel documents and travel letters are made available to the travelling party; 11) Neither party shall obtain passports for the children from any country other than Canada or the United States of America; and 12) Should J.R. intend to change her place of residence outside of British Columbia, J.R. must notify N.R. of her intended change of residence 90 days before the intended change. J.R. must notify N.R. when the intended change will be made and where the new place of residence of S. and W. is located. RESTRAINING ORDER AND POLICE ASSIST CLAUSE [113] I am adjourning the application for these orders for a period of one year with the hope that such orders will not be needed. GUARDIANSHIP [114] I have not dealt with guardianship. I have purposely not done so because of the new Family Law Act, which is to become law in British Columbia on March 18, 2013. Guardianship, as sought, is under the FRA. If I were to deal with guardianship, I may be making unintended orders after March 18, 2013. [115] The Continuing Legal Education Society of British Columbia Family Law Act Transitions Guide states the following: C. GUARDIANSHIP [§1.25] The Family Relations Act concepts of custody, guardianship, and access are not continued in the Family Law Act. In their place is a refashioned and expanded concept of guardianship, similar to the common law concept of guardianship, under which guardians have "parental responsibilities" that they are required to exercise in consultation with one another, and have "parenting time" with their children. ... A. CHILDREN [§1.90] Section 251 provides for the transition of orders and agreements for custody, guardianship, and access into the conceptual scheme of the Family Law Act: (1) if a party has custody or guardianship of a child, the party is a guardian under the Act and has parental responsibilities and parenting time with the child; (2) if a party has access to a child but is not a custodian or guardian of a child, the party has contact with the child; and (3) a party's parental responsibilities, parenting time, or contact are as described in the order for custody, guardianship, or access. However, counsel may wish to address me on this matter. I adjourn generally the matter of guardianship of S. and W. Child Support [116] Child support is governed by the Divorce Act and the Guidelines. The relevant sections under the Divorce Act are: 15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. ... (3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines. (4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just. [117] The applicable Guidelines are as follows: 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. (2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. (3) The applicable table is (a) if the spouse against whom an order is sought resides in Canada, (i) the table for the province in which that spouse ordinarily resides at the time the application for the child support order, or for a variation order in respect of a child support order, is made or the amount is to be recalculated under section 25.1 of the Act, (ii) where the court is satisfied that the province in which that spouse ordinarily resides has changed since the time described in subparagraph (i), the table for the province in which the spouse ordinarily resides at the time of determining the amount of support, or (iii) where the court is satisfied that, in the near future after determination of the amount of support, that spouse will ordinarily reside in a given province other than the province in which the spouse ordinarily resides at the time of that determination, the table for the given province; and (b) if the spouse against whom an order is sought resides outside of Canada, or if the residence of that spouse is unknown, the table for the province where the other spouse ordinarily resides at the time the application for the child support order or for a variation order in respect of a child support order is made or the amount is to be recalculated under section 25.1 of the Act. (4.) Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is (a) the amount determined under section 3; or (b) if the court considers that amount to be inappropriate, (i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates; (ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and (iii) the amount, if any, determined under section 7. ... 6. In making a child support order, where medical or dental insurance coverage for the child is available to either spouse through his or her employer or otherwise at a reasonable rate, the court may order that coverage be acquired or continued. [118] J.R. has no income at this time. N.R.'s income for the following years is as follows: 2007 $517,501.00 2008 $485,201.00 2009 $442,446.00 2010 $477,850.00 [119] I see no need for averaging N.R.'s income. At the end of the trial, I asked whether N.R. could prepare and file his 2012 tax return. I was provided with N.R.'s return in a timely manner. Counsel for the parties then came before me on February 26, 2013 to determine N.R.'s income for 2012. N.R.'s tax return had an error in it, in that N.R.'s accountant missed income from the Fraser Health Authority. This was not deliberate. In determining N.R.'s professional income, counsel for J.R. argued that certain deductions permitted by the Canada Revenue Agency should be added back to N.R.'s income: Baum v. Baum (1999), 182 D.L.R. (4th) 715. These expenses are car and home expenses and depreciation. N.R. does not disagree. [120] Besides professional income, N.R. has rental income from the Point Grey residence. J.R. does not dispute the expenses deducted from that income to arrive at a net income from the rental residence. J.R. does argue that the rental income for 2013 will be different, as it will be a 12-month period as opposed to 2012, which was for an 8-month period. N.R.'s counsel reminded me that N.R. testified that he would be moving to the Point Grey residence in the spring of 2013. [121] I find that N.R.'s Guidelines income for 2012 is $471,814.34, while J.R.'s is nil. [122] The issue of the rent from the Point Grey residence should not pose a problem. It may be that N.R. will rent out the Waterfall residence. All of this can be resolved, however, by ordering that so long as there is a court order and an obligation to pay child support, that J.R. and N.R. exchange tax returns, assessments, and re-assessment notices for each year. Upon this disclosure the child support may be adjusted. If there is no agreement, then either party may make an application to the court to adjust child support. This exchange of tax returns should commence by June 1, 2014 and on June 1 of each and every year thereafter. I also order that N.R. shall provide to J.R. a copy of his new tax return filed for the year 2012, together with all assessments and re-assessments. [123] Both parties seek to fix the child support amount based on the Guidelines, although the amount sought is different because they are based on a different estimated income of N.R. Using the Guidelines and in particular the tables, the amount that J.R. must pay for the support of S. and W. is $6,158.86 per month. [124] At the time child support was determined on an interim basis, N.R.'s 2012 income was unknown. Thus, he was obliged to pay interim child support in the amount of $6,000.00 per month. As this is very close to the amount that I have ordered, I am not prepared to order any retroactive child support for the year 2012. [125] N.R. must pay to J.R. the sum of $6,158.86 each month commencing January 1, 2013, and payable on the first day of each and every month thereafter so long as S. and W. are children pursuant to the Divorce Act. [126] Both N.R. and J.R. show as an expense an annual amount of $5,000.00 (or $400 or $500 per month) as a contribution to a RESP for the children. It is not disputed that N.R. regularly made those contributions. J.R. and N.R. shall equally contribute to the children's RESPs the amount of $2,500.00 for each child. The contributions can be made annually, quarterly, or monthly. N.R. and J.R. shall provide each other with proof of their contributions. Special Expenses [127] N.R. shall continue to maintain S. and W. on his MSP. He shall provide to the plaintiff proof of such payment annually. [128] J.R. testified that there is available to N.R. additional insurance plans for medical and, I assume, dental expenses. I order that N.R. maintain an extended medical plan and dental plan for the children, so long as the children are children as defined by the Divorce Act. He shall provide J.R. with all necessary cards relating to these plans, together with any notices of any changes to the plans as they occur. In the event that J.R. directly pays for some of the fees covered by the extended medical and dental, N.R. shall provide J.R. with letters of authority for direct reimbursement for any fees paid by her. N.R. and J.R. shall pay, in proportion to their incomes (J.R.'s spousal support), S.'s therapy and W.'s speech assessment and any treatment that is not covered by plans of insurance. [129] N.R. shall advise and provide documents to J.R. as to the cost of maintaining the children on a medical and dental plan and the MSP, and J.R. shall pay her proportionate share. [130] At this time, J.R. does not need a nanny. It is possible in the future, however, upon J.R. returning to work, that she may need one. It is also possible, and I am not making this order, that J.R. and N.R. will share the nanny when they are working. Extraordinary Expenses [131] J.R. stated that she would like to enroll the children in the Waldorf School at a cost of $11,000.00 per year. S. is in kindergarten. W. will not be in kindergarten until 2015. [132] J.R. testified that S. was doing well in kindergarten, but not excelling. S. turned five in September and, at the time of trial, had been in school three months. There was no evidence before me that public school does not meet S.'s needs. There is no evidence before me that S. has special educational needs. J.R. shall not place the children in a private school and seek N.R. to pay its costs, without his consent. Spousal Support [133] The following sections of the Divorce Act govern spousal support: 15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. ... (3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. (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. ... (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 arising 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. [134] The Spousal Support Advisory Guidelines [SSAG] are not law. However, in British Columbia the ranges provided by the SSAG are intended to guide the court. There is a ceiling of $350,000.00 in the SSAG when calculating spousal support: 11.1 The Ceiling The shorthand term "ceiling" may be misleading. Under the Federal Child Support Guidelines, there is no absolute ceiling, just an income level above which the standard fixed-percentage-of-income formula can be varied, to generate a lesser percentage of income above that level. We propose a similar approach here. Under the Spousal Support Advisory Guidelines, a ceiling could be based on the payor's income, or the monthly amount of support paid, or the recipient's income, or some form of standard of living test. Our preference is to use the payor's gross income as the basis for the ceiling. The ceiling is a gross annual payor income of $350,000. After the payor's gross income reaches the ceiling of $350,000, the formulas should no longer be automatically applied to divide income beyond that threshold. But the $350,000 is not a "cap" either, as spousal support can and often will increase for income above that ceiling, on a case-by-case basis. Below, we discuss possible approaches for cases above the ceiling. [135] J.R.'s claim for spousal support is $12,000.00 per month. J.R. relies on the following authorities: Bockhold v. Bockhold, 2010 BCSC 214; James v. James, 2009 BCCA 261; Y.J.E. v. Y.N.R., 2007 BCSC 509; Loesch v. Walji, 2007 BCSC 1807; Loesch v. Walji, 2008 BCCA 214; and Janmohamed v. Janmohamed, 2012 BCSC 611. [136] Bockhold was a review of a spousal support order. In Bockhold, the marriage to the date of separation was 17 years. The husband was described as a high-income earner and he had earned considerably more money since the first order for spousal support. Both the husband and wife, at the time of separation, were close to their mid-40s. The wife had been out of the workforce for many years and she had a permanent medical problem. At the time of marriage, she gave up certain career aspirations. Mrs. Bockhold was awarded $10,000.00 per month. [137] In James, the husband and wife at the time of the order were each age 52. The marriage was 19 years up to the date of separation, at which time one child was attending university. The wife had ended a career as a flight attendant shortly before the marriage ended. It was found that she had not much in the way of career options to produce any significant income. The original consent order had ordered that the husband pay $5,750.00 per month in spousal support. The husband's income had increased considerably. The court ordered $9,000.00 per month to the wife as spousal support. [138] In Y.J.E., the husband and wife were each 52 years old. Before their marriage, both were chartered accountants. They lived together for two years before marrying. The parties separated after 20 years of marriage. Despite the birth of the children, the wife maintained her chartered accountancy designation and maintained a practice, which eventually over time ended. The court found that the wife could earn $35,000.00 in part-time employment. The husband's income was found to be $602,400.00. The court applied the SSAG and awarded the wife $15,128.00 per month for a period of time and, with her imputed income of $35,000.00, awarded her $14,148.00 per month thereafter. [139] In Loesch, the court awarded the wife and children interim support - $30,000.00 per month for child support and $50,000.00 per month for spousal support. The court discussed a number of cases where the SSAG had been applied, and had been applied in cases of interim spousal support. At the time of the hearing, however, the trial was five months away, and the court found that these amounts had been paid and that the status quo should remain until the trial. This decision was appealed by the husband. The Court of Appeal recognized that the chambers judge had used her discretion in coming to the orders made. The appeal was dismissed. I do not find this case helpful. Similarly, I find Janmohamed unhelpful. The support orders sought, which was spousal and child support was interim. [140] However, the SSAGs were used in calculating spousal support for income above the level of $350,000.00 per year in Chutter v. Chutter, 2008 BCCA 507, Bockhold, James, Y.J.E., and Janmohamed. [141] Madam Justice Rowles, in Chutter, when considering the amount of spousal support, said the following: [121] The award of spousal support chosen should reflect the objectives in the Divorce Act. The Guidelines identify a number of factors for consideration in determining the appropriate amount of spousal support within the calculated range, which can be summarized as follows (see Guidelines at s. 9): 1. A strong compensatory claim may be a factor that favours a support award at the higher end of the ranges for amount and duration. 2. Where the recipient has limited income and/or earning capacity due to age or other circumstances, the recipient's need may warrant an award at the higher end of the ranges for amount and duration. An absence of need may suggest an award at the lower end. 3. An absence of property to be divided might suggest an award at the higher end; an unequal division in favour of the recipient may indicate an award at the lower end is more appropriate. 4. The need and limited ability to pay of the payor spouse may push an award to the lower ends of the ranges. 5. Self-sufficiency incentives may push in either direction. 6. Low work incentives for the payor may push an award to the lower ends of the ranges, in that the marginal gain in net income from additional income earned may be negligible. [122] The foregoing summary is not intended to exclude consideration of other factors. In other words, it is an inclusive, not a closed, list. [142] J.R. is age 40 and N.R. is 46; both parties are university educated; both parties are settled in their careers. J.R. completed her Bachelor of Education in 2002 during the marriage, and obtained a full-time teaching position sometime after 2003. In 2005, N.R. obtained his license to practice medicine. [143] They moved from Kingston to Toronto and then N.R. moved to Vancouver to further his education. J.R. remained teaching and eventually held a permanent position teaching in Richmond Hill, Ontario. She took a leave of absence in the summer of 2006. Due to N.R.'s career move, J.R. did not go back to that position in Ontario and moved to Vancouver instead. [144] J.R. worked in British Columbia as a teacher-on-call and stopped that position as a result of the birth of S. J.R. stayed at home with the children and she eventually lost her position as teacher-on-call because she was not available to teach. [145] J.R's claim for spousal support is based on both compensatory and non-compensatory support. J.R. needs spousal support as she does not have any income. J.R. gave up a full time teaching position in Ontario so that she could follow her husband, who moved to British Columbia to complete his medical degree, become a doctor, and work in British Columbia. [146] While in Vancouver, J.R. became a teacher-on-call, but stopped taking work before the birth of S. Due to N.R.'s decision to move to Vancouver and given the decision of J.R. and N.R. to have children, J.R. left the workforce and has been out of the workforce since June 2007. [147] J.R. testified that she has decided to make a career change and obtain a degree in counselling psychology, which she anticipates will take five years. She testified that she will require some pre-requisites in order to complete this degree. [148] There is no evidence before me regarding what J.R. intended to do before the marriage, other than the employment she has had prior to marriage and to which I have referred. [149] J.R. provided no evidence of the amount of income she could expect after obtaining a counselling psychology degree, and how she would use this education. Her plans are vague. [150] J.R. testified that she is able to teach and qualified to teach in British Columbia. She has taken no steps to make any inquiries into opportunities in teaching. [151] J.R. has been disadvantaged by the marriage for a period of six to seven years, which disadvantage arose from leaving full time employment in Ontario and then having children and remaining at home to care for those children. [152] J.R.'s compensatory claim must be satisfied in determining the amount of spousal support. In doing so, non-compensatory support will be met. [153] N.R. argues that the parties' lifestyle was modest during the period they lived together. That is so. N.R. was paying $13,500.00 per month in mortgage payments on the Point Grey home. This was beneficial to J.R. when her interest in the family home was purchased by N.R. for $1.3 million. [154] N.R. testified that his lifestyle continues to be modest. He drives an older second-hand car, and he cuts his own hair. Relatives provide him with clothing as gifts. His luxury is owning a second residence, which provides him with income and upon which child support and spousal support is calculated. [155] N.R. argues that J.R.'s expenses are higher than the expenses she had when she lived with him. This is true. J.R. has a woman come into the home three times a week to perform duties that J.R. would normally perform. J.R. does need childcare when running errands and attending appointments, but this woman does not provide childcare services. [156] N.R. has gone through J.R.'s budget and has attributed amounts to the children that approximate the amount that N.R. was suggesting as child support for S. and W. This leaves the amount of approximately $5,000.00 for spousal support. This is the amount that N.R. submits should be paid. [157] J.R.'s Form 8 states that her expenses are $13,000.00 per month. J.R. is seeking spousal support in the amount of $12,000.00 per month based on N.R.'s income at $547,602.00 per year. That is not the amount that I found N.R.'s income to be. [158] As stated above, the use of the SSAGs is not mandatory, but should be considered: Yemchuk v. Yemchuk, 2005 BCCA 406. Madam Justice Stromberg-Stein in Bozak v. Bozak, 2008 BCSC 1458, stated: [37] The court must have regard to the statutory provisions governing support, the relevant authorities, and the Spousal Support Advisory Guidelines (the "SSAG"). The SSAG are a useful tool in determining spousal support, but they are guidelines and not law: Yemchuk v. Yemchuk, 2005 BCCA 406, 44 B.C.L.R. (4th) 77; McEachern v. McEachern, 2006 BCCA 508, 62 B.C.L.R. (4th) 95; Beninger v. Beninger, 2007 BCCA 619, 75 B.C.L.R. (4th) 228; Jens v. Jens, 2008 BCCA 392. In McEachern, at para. 64 the court commented: As has been stated by this Court on prior occasions, the Advisory Guidelines are simply guidelines; they are not law. The formulas need not be slavishly adhered to by judges, who must always have regard to the particular facts before them. Those facts may disclose valid reasons why the Advisory Guidelines are not of particular assistance in a case, or why an award may justifiably be greater or less than that set out in the applicable formula. But, it is fair to say that the Advisory Guidelines have been accepted by this Court, and by the trial courts, as a useful tool in given determining the appropriate range of awards in most cases. In Redpath v. Redpath, [2006] B.C.J. No. 1550, 2006 BCCA 338, this Court went so far as to indicate that an order of spousal support which falls substantially above or below the suggested range could give rise to an error in law, unless a reasonable explanation was provided for the discrepancy. This is understandable since, as stated by this Court in Yemchuk v. Yemchuk, [2005] B.C.J. No. 1748, 2005 BCCA 406 (at para. 64): "... the Advisory Guidelines are intended to reflect the current law, rather than to change it." At this stage in their development, the Advisory Guidelines are not a substitute for relevant authorities, but a supplement to them. [38] Further, in Jens the Court of Appeal commented, at para. 60: As this Court has made clear, the SSAG are a useful tool in determining spousal support, but they are guidelines and not law: see Yemchuk v. Yemchuk, 2005 BCCA 406, 44 B.C.L.R. (4th) 77; Beninger. The ranges are intended to guide the court in the determination of the appropriate award. The authors of the SSAG point out that the most difficult aspects of spousal support arise in "medium length marriages" (6 to 19 years) (SSAG at 64-66), and where illness or disability are involved (SSAG at 121-124). It is ultimately for the court to determine, based on all the circumstances of the particular case, the appropriate amount and duration of spousal support. [159] In this case, I intend to use the SSAG to calculate and award spousal support. [160] When considering need (non-compensatory), support should be measured against the standards of living and the marital background in the case of long-term marriages: Tedham v. Tedham, 2005 BCCA 502. In the case of J.R. and N.R., this is not a long-term marriage - from its beginning to separation is 11 years. It was upon J.R.'s move to Vancouver and the birth of the children that J.R. suffered the economic disadvantage arising from the marriage and its breakdown. [161] Based on an income of $471,814.00, and taking into consideration child support payable for S. and W., the SSAG with child formula sets out the following ranges: Low Mid High $10,197 $11,209 $12,247 [162] According to the SSAG, these amounts are payable for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of 5.5 years and a maximum duration of 16 years from the date of separation. [163] J.R. is unemployed and she has not started the process of looking for employment. W. is aged 2 and S. is in kindergarten. [164] N.R. proposes that a review of spousal support take place within three years. J.R. suggests that it take place in five years, a time which is based on completing her education for her career change. The amount of spousal support for J.R. should focus on compensatory support. [165] N.R. shall pay to J.R. the sum of $11,750.00 per month commencing January 1, 2013, payable on the first day of each and every month thereafter pursuant to the Divorce Act. [166] The SSAG says this about time limits with a child support formula: 13.6 Time Limits: The with child support formula Implicit in Moge is that the Court's concerns about "deemed self-sufficiency" were largely focussed upon the compensatory setting. Time limits will operate differently in compensatory cases, especially in those cases that fall under the with child support formula. Individual orders will be indefinite in duration, unlike the time-limited orders found in most cases under the without child support formula. The upper and lower ends of the durational range under the with child support formula provide the outer limits of the process of review and variation. At some point, the recipient's disadvantage may be fully compensated and complete "self-sufficiency" attained, such that spousal support can terminate in a compensatory case. Under the with child support formula, any termination of support will usually happen through the process of variation or review, as there must be evidence on these issues before a court can terminate or time limit support. In this sense, time limits under the with child support formula are "softer", more flexible than in most cases under the without child support formula. Even in this "softer" form, however, the time limits under this formula encourage self-sufficiency, in a more structured way than a succession of indefinite orders with no defined end-point. [167] I order a review of the spousal support to take place in June 2015. J.R. must provide evidence to the court of her efforts to obtain employment, including all efforts she has made to find a teaching position. J.R. has the ability to become self-sufficient, which is a factor that should be considered at the review that I have just ordered. At that time, should J.R. have employment, the hiring of a nanny should be considered. Payment of Child and Spousal Support [168] N.R. shall provide J.R. with post-dated cheques payable to her for a period of a year for child and spousal support commencing April 1, 2013, and continuing for each year thereafter until further order of the court. CONTINGENT DEBTS [169] J.R.'s American citizenship is personal to her. J.R. provided no evidence as to her knowledge of her obligations for the payment of tax to the U.S. government when she left the U.S. and became a resident of Canada. N.R. could not possibly have known that the U.S. government would look beyond its borders to non-resident American citizens to tax. In fact, this caught many U.S. citizens and long-time residents by surprise. Should J.R. pay tax to the U.S. government, N.R. is not responsible for any part of that tax. MSP ASSESSMENTS [170] Should N.R. be assessed or negotiate an amount to be paid to MSP, then J.R. shall pay one-half of that amount. As a result of the payment of the assessment, should N.R. receive any income tax refunds as a result of the assessment, N.R. must pay J.R. one-half of the refund or refunds. However, N.R. must provide to J.R. all documents relating to MSP assessments, together with all advice provided to N.R. by his solicitors. J.R. must not disclose the contents of the documents or the advice of N.R.'s solicitors, except to her own solicitor. COSTS [171] Unless counsel wishes to address me on costs, J.R. will have her costs and disbursements pursuant to Appendix B of the Supreme Court Family Rules. Those costs shall include all interim and interlocutory applications except where the costs were fixed. N.R. must pay for Dr. Korpach's report in its entirety. I find this case was of ordinary difficulty pursuant to Appendix B of the Supreme Court Family Rules. SUMMARY J.R. and N.R. are divorced; J.R. shall have custody of S. and W.; N.R. shall have access to S. and W. as set out in para. 112 of these reasons; The application for a restraining order and a police assist clause is adjourned for a period of a year; The guardianship of S. and W. is adjourned generally; J.R. and N.R. must exchange their income tax returns annually in accordance with para. 122 of these reasons; N.R. must pay J.R. child support of $6,158.86 each month pursuant to the Divorce Act and commencing January 1, 2013; Both N.R. and J.R. shall contribute equally to S. and W.'s RESPs in accordance with para. 126 of these reasons; J.R. and N.R. shall pay and apportion special expenses for the children in accordance with paras. 127-129 inclusive of these reasons; N.R. shall pay J.R. spousal support of $11,750.00 each month commencing January 1, 2013; Review of spousal support shall take place in June of 2015 - para. 167 of these reasons; N.R. shall provide J.R. with post-dated cheques for the payment of child and spousal support in accordance with para. 168 of these reasons; N.R. shall maintain the MSP, extended medical and dental coverage for the children with J.R. contributing her proportionate share pursuant to paras. 127 and 129 of these reasons; The RRSPs shall be divided by spousal roll-over; J.R.'s pension shall be divided pursuant to Part 6 of the FRA; J.R. shall pay to N.R. one-half of any re-assessment by MSP and N.R. shall pay to J.R. any income tax refund rebates as a result of such re-assessment; J.R. shall have her costs. "H.C. Hyslop J." HYSLOP J.