D.B.M. v J.C.M.

2003BCSC1622

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: D.B.M. v J.C.M., 2003 BCSC 1622 Date: 20031024 Docket: 10094 Registry: Cranbrook Between: D.B.M. Plaintiff And J.C.M. Defendant Before: The Honourable Mr. Justice Melnick Reasons for Judgment Counsel for plaintiff R. Buddenhagen Counsel for defendant D.F. Collins Date and Place of Hearing: October 6 and 8, 2003 Cranbrook, B.C. [1] This is the application of D.B.M. ("Mr. D.B.M."), pursuant to Rule 18A, for a division of the family assets he holds with his former wife, J.C.M. ("Ms. J.C.M."). Ms. J.C.M., in turn, seeks a reapportionment of those assets in her favour. She also seeks spousal support. Mr. D.B.M. seeks an award for occupational rent for the period Ms. J.C.M. has occupied the matrimonial home since separation. I. BACKGROUND [2] The parties were married in 1976, separated in June 1999, and divorced in November 2000 after a trial before Madam Justice Allan. That trial was principally concerned with the issue of custody of the parties' two children. Sole custody of the children was awarded to Ms. J.C.M.. [3] After separation, Ms. J.C.M. resided in the matrimonial home in J.[ ] with the two children until July 2002 when their now 14 year old daughter commenced living with Mr. D.B.M.. Ms. J.C.M. was employed as a chambermaid, or a chambermaid supervisor, earning approximately $11 per hour until early 2001. At this time, she

left her employment allegedly because of stress (medical evidence filed by her to that effect, however, is of no probative value as it is essentially hearsay). She has been largely unemployed since then. There was some evidence of opportunity for her to work that was not pursued. She circulated a resume that she had left her previous employment because of stress. That did little to assist what little searching for employment that she did undertake. [4] Mr. D.B.M. is employed as a planerman at T.[ ] plant and earns about $70,000 a year. He has remarried. [5] As part of an earlier application, Ms. J.C.M. swore an affidavit in which she included that she was living with a Mr. C.L. ("Mr. C.L.") and that Mr. C.L. contributed to her overhead expenses. In a more recent affidavit dated August 2003, she denied ever having lived with Mr. C.L. and denied having read the earlier affidavit before signing it. Mr. C.L. also denies living common-law with Ms. J.C.M.. He says that he spends at most two weeks at a time at her home, contributing only to groceries. [6] The matrimonial home is mortgage-free. It was appraised by Mr. Kim Farrow at the request of counsel for Mr. D.B.M. at $117,500 as of December 20, 2000, and later at $111,800 as of February 19, 2003. Ms. J.C.M. has not provided any evidence as to the value of the home other than to say she'd like to get $130,000 for it. [7] The

parties are at odds over the value of chattels, responsibilities for family debts, and what became of certain investments or retirement plans. [8] Mr. D.B.M. has submitted evidence that the rental value of the home is about $500 a month. He claims half of that as occupational rent. He asks to be given credit for taxes he has paid on the home (or will have to pay on the home). Ms. J.C.M. says that she did not sooner pursue spousal support because, until she had to leave her employment in 2001, she considered that her then income, together with her being able to occupy the matrimonial home, was sufficient support. She now says that she wants spousal support of $700 a month indefinitely. If she is required to pay occupational rent, she wants the spousal support back-dated to the time of separation. [9] The material filed by each party details a variety of allegations, responses and counter-allegations designed, I expect, to cast doubt on the credibility of the other. Both parties express widely differing views as to the value of their assets. They both do agree, however, that these issues be determined summarily. II. DISCUSSION [10] Ms. J.C.M. is not in a position to purchase the matrimonial home. Nor are there sufficient assets for it to be allocated to her, even if I were to order a reapportionment in her favour. Mr. D.B.M. is prepared to purchase the home. He will have the

right to do so for a period of 60 days following the date of these reasons based on a value of $115,000. [11] Ms. J.C.M. has not made out a case for reapportionment. This is not a case where Ms. J.C.M. has been deprived of a capital asset by losing the opportunity to better her education or employment as a result of the marriage. The matrimonial assets should be divided equally. Thus, Mr. D.B.M. can purchase Ms. J.C.M.'s interest in the home, legally described as [ ], Plan [ ], District Lot [ ], Land District [ ], PID# [ ], for $57,500. [12] Mr. D.B.M. should be responsible for all property taxes since separation. I conclude that there was an understanding that Ms. J.C.M. would be able to live in the matrimonial home in lieu of spousal support, at least while she was employed. I note, however, that after she ceased being employed in February 2001, she did not pursue spousal support until this application. [13] Given her work history, Ms. J.C.M. is, at best, capable of earning one-third that of Mr. D.B.M.. The marriage was a lengthy one, 23 years. It was a traditional marriage in many respects, although Ms. J.C.M. worked throughout most of the marriage. There is no evidence, that I accept, that Ms. J.C.M. is not presently capable of employment. There is an imbalance in the earning capacities of the parties. This difference in their situations will be soon exacerbated if and when

Mr. D.B.M. completes the purchase of the matrimonial home. I regard what has been the status quo for the past four years - namely, that Ms. J.C.M. has had the exclusive occupancy of the family home, as being sufficient payment by Mr. D.B.M. of spousal support (provided he pays all real property taxes) while Ms. J.C.M. continues to live in the home. When he purchases the home, and when she will have to seek alternate accommodation, Mr. D.B.M. should pay her spousal support of $500 a month. His continued responsibility to do so should be assessed in two years from the date of these reasons. I add that I am not convinced that Ms. J.C.M.'s relationship with Mr. C.L. in any way disentitles her to spousal support. [14] I would value and divide the family assets and debts as follows (assuming each party is entitled to an equal share of the assets and is equally responsible for the debts):

ASSETS MR. D.B.M. MS. J.C.M.

1. Matrimonial Home $ 57,500 $ 57,500 2. [ ] Chevette 500 3. Lawn tractor 800 4. Jewellery 300 5. Gun(s) 200 6. Household contents 2,170 7. Radial arm saw 100 8. Hand tools 500 9. Hunting and fishing equipment 100 10. Elk and deer mounts 200 11. IWA pension 24,100 12. [ ] Firebird 1,500 13. 1996 Neon (net) 4,000 14.

RRSP 5,900 15. RRSP's withdrawn 22,400 15,400 16. B.N.S. chequing account

NIL

TOTAL ASSETS $107,500 $ 85,670

DEBTS 17. Sears (130) 18. Canadian Tire (160) 19. Income tax arrears (2,530) 20. B.N.S. line of credit (5,130) 21. B.N.S. Visa NIL 22. Real property taxes (1,060) 23. A.H. (paid) (owing) (5,180) (9,960) 24. J & L M. (2,000)

TOTAL DEBT PAID OR FOR WHICH SHOULD ASSUME RESPONSIBILITY $(25,860) $ (290) [15] Thus, the sum required to be paid by Ms. J.C.M. to Mr. D.B.M. to achieve an equal distribution is $3,740. That is apart from his payment to her for her share of the matrimonial home. If he is not able to finance the purchase of the home, it should be listed for sale. Liberty to apply to speak to terms of sale. III. CONCLUSION [16] There will be judgment in the above terms. As each party has had a measure of success, each party will bear his or her own costs. "T.J. Melnick, J." The Honourable Mr. Justice T.J. Melnick