S.P.W. v. D.J.W.

2012 BCSC 371 S.P.W. v. D.J.W. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: S.P.W. v. D.J.W., 2012 BCSC 371 Date: 20120314 Docket: 07 2208 Registry: Victoria Between: S.P.W. Claimant And: D.J.W. Respondent Before: The Honourable Mr. Justice G.R.J. Gaul Reasons for Judgment Counsel for the Claimant: W. Murphy-Dyson Counsel for the Respondent: R. C. Doell Place and Date of Trial: Victoria, B.C. December 6 - 10, 2010; January 19 - 21, 2011; March 31 and April 1, 2011 Place and Date of Judgment: Victoria, B.C. March 14, 2012 Introduction [1] The claimant, S.P.W., is a 38 year old sales manager at a car dealership in Victoria, BC. [2] The respondent, D.J.W., is a 36 year old financial services manager at a car dealership in Richmond, BC. [3] The parties met and began dating in 1992. At the time, the claimant was a 19‑year old grade 12 high school student. The respondent was 16 years old and in grade 9. [4] In the fall of 1993, the respondent became pregnant with the parties' child. [5] On 9 June 1994, the respondent gave birth to the parties' son, A.S.W. [6] On 26 August 1995, the parties were married. The claimant was 22 years old and the respondent was 19 years old. [7] For the first few years of their marriage the parties resided in rental accommodations, owned by the respondent's grandparents and subsidized by the claimant's parents. [8] In June 2001, the parties purchased and moved into their new home in Brentwood Bay, BC (the "Family Home"). [9] In July 2006 the parties separated, with the respondent leaving the Family Home to live with her parents. A.S.W. continued to reside with the claimant in the Family Home. [10] The claimant began these proceedings when he filed his writ of summons and statement of claim on 28 May 2007. Issues [11] The following issues need to be resolved in this family law proceeding: a) Divorce; b) Custody, Guardianship and Access; c) Child Support d) Identification and division of family assets and debts; and e) Spousal Support. Divorce [12] The evidence presented on the first day of trial satisfied me the parties had been living separate and apart since 16 July 2006 and that there was no prospect for reconciliation. Consequently, there were justifiable grounds to grant the order for divorce both parties were seeking. [13] As counsel were in agreement that the divorce order should be made immediately, I granted the order pursuant to sections 8 and 12 of the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 ("Divorce Act"). Custody, Guardianship & Access [14] A.S.W. was 12 years old when his parents separated. He is now 17 years old; only two years away from the age of majority. [15] The claimant argues that custody, guardianship and access should not be issues in this case, given A.S.W.'s age and his ability to decide for himself what type of custody and care arrangements should be in place for his benefit. [16] The respondent maintains that she was A.S.W.'s principal caregiver when he was an infant. She also asserts that after the parties separated, they reached an understanding whereby they agreed they would share the care and custody of A.S.W. equally. With this as a foundation, the respondent argues there should be an order for joint custody and joint guardianship. Moreover, the respondent seeks an order establishing a detailed access schedule that imposes a structured co‑parenting regime where A.S.W. is in the care of each parent approximately 50 percent of the time. [17] Given A.S.W.'s age, it would have been helpful to have his views on the question of his custody, guardianship and access. Although his opinions or wishes would not have been determinative, in my view it is important for the court to consider the views of children, particularly older children such as A.S.W., on these types of issues. [18] By all accounts, A.S.W. is a healthy 17 year old. He has an established routine in Victoria that includes attending school and working part-time at a skateboard store. [19] A.S.W.'s principal residence since the parties separated, or at least since the respondent moved to Vancouver in 2009, has been with the claimant. Although A.S.W. has spent a significant amount of time with his maternal grandparents in Victoria, that does not alter the fact that his home has been and continues to be with the claimant. [20] While I accept that A.S.W.'s maternal grandparents have played a major and positive role in his upbringing, I am convinced it has been the claimant who has played the principal parental role in A.S.W.'s life. [21] The respondent, who lives and works in the Metro Vancouver region, sees A.S.W. on weekends and holidays. Either A.S.W. travels to Vancouver to be with the respondent, or the respondent travels to Victoria where she sees him at her parents' home. [22] While the claimant's position on custody and guardianship may reflect a practical reality given A.S.W.'s age and apparent maturity, in my view the circumstances of this case still dictate that those issues be addressed. [23] The respondent proposes joint custody and joint guardianship of A.S.W. I have taken the claimant's position as one that is not opposed to this proposal. [24] In my view, it is appropriate that the parties share the joint custody and guardianship of A.S.W. [25] On the issue of A.S.W.'s principal residence, I am of the opinion the status quo should be maintained. That is, A.S.W.'s principal residence and day-to-day care remain with the claimant. [26] As for the detailed access regime proposed by the respondent, I am declining to make such an order. Although A.S.W. is technically still a child, he is on the verge of becoming an adult. There should be as much contact between himself and the respondent as possible so that the parental relationship between the two remains strong. However, given A.S.W.'s age and current routine in Victoria and the fact that the respondent lives and works in the Lower Mainland, I do not think it is practical or advisable to order a structured access routine. [27] The claimant has shown himself to be quite reasonable with respect to encouraging and facilitating A.S.W.'s access with the respondent. I accept the claimant's evidence that he wants A.S.W. to have a strong and healthy relationship with his mother and I find there is no reason to believe that the claimant will alter his ways and prohibit that from continuing. [28] The respondent will be entitled to reasonable and generous access to A.S.W. Child Support [29] The claimant seeks an order that the respondent pay child support for A.S.W., retroactive to October 2009, the date when the respondent moved to Vancouver. [30] The respondent argues that the claimant should pay child support for A.S.W., retroactive to July 2006, the date when the parties separated. [31] The respondent's position is based on the assertion that the parties have been sharing the custody and care of A.S.W. on an equal basis. The claimant denies there has been a 50/50 parenting regime. [32] Both parties presented evidence relating to the amount of time each says A.S.W. has spent with them. A distinguishing feature of the respondent's evidence is the fact that she has considered and included the time A.S.W. has spent with her parents as time he has spent with her. [33] While I accept that A.S.W. has spent a substantial amount of time with his maternal grandparents in Victoria, I do not consider that a significant factor in determining who has had the principal custody of the child. [34] I find the respondent's evidence in support of her assertion that there was a 50/50 parenting regime for A.S.W. to be unpersuasive and at times unbelievable. The cross-examination of the respondent brought to light serious questions about the reliability and credibility of her evidence in general and her record keeping in particular. [35] The respondent's evidence relating to the creation of her calendars was inconsistent and after seeing and listening to her testify, I was left with the clear impression that she was often being less than candid in her evidence. The respondent's evidence at her examination for discovery and her cross-examination at trial is illustrative of this point. At her examination for discovery on 7 June 2010, the respondent had the following to say about the calendars that she claimed she kept: Q430: All right. Now, you said previously that you had records of all of the time that [A.S.W.] has stayed with you since July of 2006. Did I understand you correctly? A: I have a lot of records. I don't have every month because -- Q431: When did you compile these records? A: When did I compile them? Q432: When did you make the records? A: Each day that I had him. . . . Q436: When did you start keeping these records? A: Probably towards the end of July -- sorry, towards the end of 2006. Q437: You made a record every day, "[A.S.W.] is with me today," something like that? A: No. I would just -- every few days I would just write down whether I had [A.S.W.] or [S.P.W.] had [A.S.W.]. Really not a big deal. I'd write "O" for -- "O" [phonetic] which is what I call him, the days that I would have [A.S.W.]. It was as simple as that. Q438: Was it on a calendar or a piece of paper? A: Yes, it was on a calendar. Q439: Do you have those calendars? A: Most of them yes. [36] At that point in the respondent's examination for discovery, counsel for the claimant requested that she produce the calendars in question. The respondent indicated that complying with the request would be "no problem". [37] In my opinion, when cross-examined at trial on this evidence relating to her calendars, the respondent was evasive and non-responsive. In particular, her evidence on her failure to produce the calendars and her reasons for not doing so was not credible. The following portion of the respondent's cross-examination illustrates this point: Q: Then you will see, that you were asked by me to produce to me all of those calendars, you see that? A: Yes. Q: You never did, did you? A: Well I forgot your honour, sir, I -- Q: They do not exist ma'am, do they? A: They do not exist? You know what, honestly, this is the least of my worries in my life. Ok? Is producing to you original calendars. I have had [A.S.W.] fifty percent of the time since the day [S.P.W.] and I split up until October of 2009. Stop trying to say, I -- no, your honour Court: Ms. [D.J.W.] A: This is ridiculous. Like I'm telling you. I've been sick; I have been working extremely long hours, when I'm not working I'm with my son, I forgot to produce calendars, I'm not lying here. Court: Mr. Murphy-Dyson is suggesting to you that they don't exist. Do these calendars exist? A: I could probably find them; I've moved. Court: The question is, do the calendars exist? A: At one point they existed, yes. Court: At one point? A: But I've moved; and if you would like me to produce them I will look for them. . . . Q: You are also aware that since that time, you've received copy of a letter or letters that I sent to Mr. Doell reiterating all of the requests for information and documents that were made at this examination for discovery. You received those letters too, didn't you? A: I can't tell you if I received them all. Q: You received at least one, didn't you? A: I... honestly, I'm done, like -- Q: As a result madame -- Court: No, let -- I think I need to hear the answer. Did you receive at least one of those letters? A: Can he repeat the question? Q: Did you receive at least one letter from me to your counsel reiterating my request for you to produce documents, including these calendars? A: Well, I thought that I had produced the calendars. I really didn't -- I didn't -- I didn't --- I thought that what I was to do was put what I had taken and put it into something legible. I didn't -- like I don't understand how me taking my copies and putting them, transferring on something that is legible how that's not providing calendars. Court: Ms. [D.J.W.] I hear what you are saying; the question is: did you receive at least one copy of the letters? A: I don't remember. Court: See, that's the question and that's the answer. A: Ok. I don't remember. Court: So, the witness doesn't remember receiving copies of those letters. A: I could of and I couldn't of; I honestly don't remember. I've gotten hundreds of e-mails throughout this. . . . A: I had some calendars in Vancouver and some calendars in Victoria and to be honest with you, my parents were reading all of these e-mails, I wasn't, this is too much for me, you can have that back. I was not, most of these, most of this whole thing I have left in my parents' hands to look after the e-mails to let me know what they need and I provide it. [38] In contrast to the respondent's evidence on the amount of time A.S.W. spent with each of his parents, I found the claimant's evidence to be credible and reliable. He provided his evidence in a clear and coherent manner and his records, including the calendars he kept, are, in my opinion, much more accurate and reliable than those of the respondent. [39] In deciding the amount of time A.S.W. spent with each of the parties and the arrangement that was in place for A.S.W.'s custody and care, I accept the evidence of the claimant over that of the respondent. [40] I am satisfied that from the date of separation until 30 September 2009, A.S.W. was in the care and custody of his father at least 60% of the time and consequently there are no grounds for the respondent to seek retroactive child support for that period. [41] On or about 1 October 2009, the respondent moved to Vancouver. While A.S.W. visited with the respondent on weekends and spent time during the week with his maternal grandparents in Victoria, I am again of the view that the evidence of the claimant is more reliable than that of the respondent when it comes to calculating the percentage of time A.S.W. spent with each of his parents. In my opinion, A.S.W. has been principally in the care of his father since 1 October 2009. [42] In D.B.S. v. S.R.G., 2006 SCC 37, the Supreme Court of Canada provided helpful guidance on the question of retroactive child support. Trial judges are to address the issue from a holistic perspective. Speaking for the majority of the Supreme Court, Bastarache, J. articulated at paragraph 133 the following four factors that should be considered in assessing whether an order for retroactive child support is appropriate: a) Has the parent who is seeking the order provided a reasonable excuse for not seeking the order earlier? b) Has the payor parent exhibited any blameworthy conduct? c) Do the past and present circumstances of the child necessitate or warrant a retroactive award of child support? d) Will an award of retroactive child support cause undue hardship to the payor parent? [43] The claimant described how, following the respondent's departure from Victoria for Vancouver, he requested child support from her but none was ever paid. The respondent has acknowledged that the claimant made that request and that she has not made any child support payments. [44] The claimant further explained that he did not pursue his claim earlier because the respondent was making a similar claim for child support based upon a disputed 50/50 parenting regime which, according to the claimant, could only be determined at trial. I accept the claimant's argument on this point. [45] The respondent says she thought she did not have to pay child support because she believed she had the care and custody of A.S.W. for at least fifty percent of the time. I have rejected the respondent's evidence on this point and find she was either willfully blind or intentionally avoiding the issue of paying child support for A.S.W. This in my mind constitutes blameworthy conduct on the part of the respondent. [46] I also consider the manner in which the respondent chose to manage her personal finances post-separation and how that influenced her spending on A.S.W. to be blameworthy conduct on her part. The evidence at trial convinces me that the respondent purchased luxury items for A.S.W. and took him on trips to such places as New York simply to show the child that she could compete financially with the claimant. This perceived rivalry with the claimant contributed to the respondent's failure to recognize or accept that she had a child support obligation towards the child that went beyond providing him with gifts and trips. [47] There is no evidence to suggest that A.S.W. has suffered on account of the respondent's non-payment of child support. By all accounts he is a healthy, active teenager. He has been able to live a reasonably comfortable lifestyle in the care of his father, based principally on the fact that his father has been successful at work and has earned a comfortable income. In my opinion, there is nothing in the past or present circumstances of A.S.W. that necessitate the awarding of retroactive child support. [48] Finally, there is the question whether an order for retroactive child support would cause the respondent undue hardship. In 2008, the respondent earned an income of approximately $66,000. In 2009 she earned $69,000. The respondent's projected income for 2010 was $79,500. The respondent is obviously successful at her profession and is earning a comfortable income. I accept that the respondent is carrying a debt load, however I find most if not all of those debts are as a result of her own personal spending habits. [49] Ordering the respondent to pay the retroactive child support sought by the claimant will cause some hardship for the respondent; however I do not find that hardship to be of such a magnitude that it warrants denying the order. [50] Having considered the factors articulated in D.B.S., I am of the view the respondent should pay retroactive child support. I accept the claimant's argument that for the period from October 2009 until December 2010, inclusive, the respondent was liable to pay the claimant child support of $620 per month, based on a guideline income of $66,000. [51] For 2011 and as long as A.S.W. remains a child of the marriage as defined in the Divorce Act and continues to remain in the care of the claimant, the respondent will pay the claimant $735 per month, based on a guideline income of $79,500. [52] The respondent will also be responsible for her proportionate share of A.S.W.'s section 7 extraordinary expenses from 2011 until he ceases to be a child of the marriage. [53] Any arrears in child support owing by the respondent are to be deducted from her share of the Proceeds of Sale. Identification and Division of Family Assets & Liabilities [54] The claimant and the respondent have each identified a number of items they assert are family assets or debts. I will deal with each item individually. Family Assets Family Home [55] In June 2011, the parties purchased the Family Home in Brentwood Bay. The purchase was financed with $10,000 from the claimant's parents. The balance of the purchase price was financed by way of a mortgage. [56] This property was sold in November 2010 for $373,500 and the net proceeds of sale, approximately $152,000, have been held in trust pending the results of this litigation (the "Proceeds of Sale"). [57] The parties agree that the Proceeds of Sale are a family asset subject to division between them. [58] The claimant submits that the Proceeds of Sale should be divided equally between the parties after various amounts due and owing to him have been accounted for. [59] The respondent argues there should be an unequal division of the Proceeds of Sale in her favour, and that she should be awarded 75 percent of those proceeds. [60] Section 56 of the Family Relations Act, RSBC 1996, c. 128, ("FRA") creates a legal presumption that each party is entitled to an undivided one-half interest in the assets of the family. However, that presumption can be rebutted and an unequal reapportionment of a family asset may be made to a party if the criteria set out in s. 65 of the FRA are met. Section 65 reads, in part: 65. (1) If the provisions for division of property between spouses under section 56... would be unfair having regard to (a) the duration of the marriage, (b) the duration of the period during which the spouses have lived separate and apart, (c) the date when property was acquired or disposed of, (d) the extent to which property was acquired by one spouse through inheritance or gift, (e) the needs of each spouse to become or remain economically independent and self sufficient, or (f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse, the Supreme Court, on application, may order that the property covered by section 56, Part 6 or the marriage agreement, as the case may be, be divided into shares fixed by the court. [61] The respondent bases her claim for a reapportionment of the Proceeds of Sale on s. 65(1)(e) of the FRA. In particular, the respondent says that because of her bi-polar medical condition and the uncertainty she claims that creates in her employability, her on-going need for economic security justifies a greater share of the proceeds being awarded to her. [62] The respondent cites the case of Whitaker v Whitaker, 2010 BCCA 248 in support of her position for a reapportionment of the sale proceeds. In Whittaker, the appellant husband was 26 years old and the respondent wife was 16 years old when the parties married. The respondent had left high school and moved to Canada to marry the appellant. At the time of trial, the respondent had completed her high school education and had taken additional courses; however she continued to have limited employment skills. The court found that the respondent was entitled to compensatory spousal support because of the role she had assumed in the marriage. The court also found at paragraph 41 that there was a "considerable disparity between the parties' ability to become economically self sufficient." On account of that finding, the court concluded that a reapportionment of the family assets in favour of the respondent was appropriate. [63] In my opinion, the facts in Whitaker are quite dissimilar to those before me. The respondent in the case at bar has employment skills that have helped her earn an annual income of between $66,000 and $80,000. In my opinion, unlike the respondent in Whitaker, the respondent before me has been quite successful in reaching a state where she is or should be self-sufficient. [64] In his submission, counsel for the respondent suggested, "The single question is whose shoes would you want to be in after a twelve year marriage?" [65] In my respectful view, that is not the question to ask. The question to ask is whether an equal division of the Proceeds of Sale would be unfair to the respondent, given her financial circumstances and her ability to maintain a reasonable level of economic independence? [66] The respondent is working as an automotive financing and insurance manager at an auto dealership. She earns approximately $80,000 per year. She has chosen to live in an apartment in downtown Vancouver, notwithstanding the fact that she works in Richmond. She has accumulated a significant amount of debt, including monies she owes to her parents, but all of that debt has been incurred post-separation and it is principally attributable to lifestyle choices made by the respondent. Those debts cannot be attributed to the marriage. [67] I am not persuaded that a reapportionment of the Proceeds of Sale is called for in this case. In my opinion, the respondent has achieved a satisfactory level of financial independence and there are no grounds to justify a departure from the presumed equal division of the family assets, including the Proceeds of Sale. Furniture & Chattels [68] The furniture and chattels that were in the Family Home when the parties separated are family assets. [69] The claimant has had the items professionally appraised at approximately $2,800. I have no other evidence challenging this appraisal and therefore I accept it. [70] Given that these items are family assets, their value is to be divided equally between the parties. 1970 Buick Skylark [71] In or around 1999, the claimant purchased a 1970 Buick Skylark for approximately $2,000. The funds used to purchase the vehicle were family funds and while the vehicle's principal driver was the claimant, I find the vehicle was used for a family purpose. [72] The claimant invested approximately $2,000 reconditioning the vehicle; however it is not in "mint" condition. [73] The vehicle is a family asset and its value needs to be shared equally between the parties. [74] There is no evidence upon which I can decide the value of the vehicle. I will therefore order that unless the parties decide otherwise, a professional appraisal of the vehicle's value is to be obtained. The cost of the appraisal is to be shared between the parties. [75] The claimant has shown more interest in the vehicle than the respondent. Therefore he will have the first option to purchase the respondent's share of the vehicle. If he chooses not to, then the respondent may purchase the claimant's share of the vehicle. If neither party wants the vehicle, then it is to be sold and the proceeds of sale divided equally. 1998 Ford F-150 Truck [76] In 2005, the claimant and the respondent's father purchased a used 1998 Ford F-150 pick-up truck for $5,130. The purchase price was split evenly between the two of them. [77] The vehicle was used by the respondent's parents at their home. The vehicle's principal use was to pull horse trailers on their property. The truck was also used to tow a horse trailer to and from equestrian events that the respondent was involved in. [78] The respondent's father has, over the years, paid for a number of repairs to the truck. The claimant and the respondent have not contributed to those repairs. [79] Although I have little evidence relating to the present value of the vehicle, in my opinion it is safe to conclude its value is minimal. Nevertheless, a 50 percent interest in the vehicle was purchased with family funds and therefore that interest is a family asset. [80] The respondent's father testified that he is prepared to sell the vehicle. Moreover, he is prepared to share 50% of the proceeds of sale with the claimant and the respondent. In my opinion that is a sensible solution. When the vehicle is sold, the parties' 50% interest is to be divided equally between them. Family Debts Lines of Credit [81] During the course of their marriage, the parties had two lines of credit: one with the Royal Bank of Canada and the other with the Bank of Nova Scotia. [82] The parties have agreed that both lines of credit are family debts. The balances on those lines of credit have been paid off from the proceeds of sale of the Family Home. [83] There remains one last issue to address relating to the lines of credit. Upon separation, the parties agreed that the claimant would be responsible for the Royal Bank line of credit and the respondent would be responsible for the Bank of Nova Scotia line of credit. The claimant abided by this agreement and continued to make the necessary payments on the Royal Bank line of credit. The respondent also abided by the agreement, in that she continued to make the necessary payments on the Bank of Nova Scotia line of credit. However for reasons that are not particularly clear, in or around August of 2009, the respondent stopped making any payments on the Bank of Nova Scotia line of credit. At that point, the claimant began making the payments for the respondent and he continued to do so until November 2010. The total amount the claimant paid on the Bank of Nova Scotia line of credit from September 2009 until November 2010 was approximately $1,680. [84] The claimant seeks compensation from the respondent for the line of credit payments he made on her behalf. I accept the claimant's submission and find he is entitled to a reimbursement of the $1,680. This amount is to be deducted from the respondent's share of the Proceeds of Sale. Excess Mortgage Payments made by the Claimant [85] The evidence satisfied me that between the parties' separation in July 2006 and the end of September 2010, the claimant made additional payments on the mortgage on the Family Home in the amount of $20,400. The claimant seeks compensation from the respondent for those excess mortgage payments. [86] The respondent denies any responsibility for those excess mortgage payments. She argues the claimant should be barred from advancing this claim because his pleadings do not specifically seek such compensation. Moreover, she argues that by locking her out of the Family Home and refusing to allow her to return, the claimant had the exclusive use of the Family Home. [87] I do not agree with the respondent's position on this point. In my view, the claimant's pleadings did seek to advance this claim in that it did seek an order for compensation pursuant to s. 66 of the FRA. Moreover, while the final event that caused the parties' separation was an emotional and stressful one for all, including the parties' parents, I find there was an agreement or understanding between the claimant and the respondent that it would be best if she were to move out of the Family Home and reside with her parents. In other words, I reject the respondent's assertion that she was evicted from the Family Home. [88] In my opinion the additional mortgage payments benefited both parties in that they went towards reducing the amount owing on the Family Home. The Family Home was used by the claimant after separation; however it cannot be forgotten that it was also the principal residence of the parties' son. [89] In my view, the respondent should reimburse the claimant for half of the excess mortgage payments he made on the Family Home and that the reimbursement should come from the respondent's share of the Proceeds of Sale. Repairs / Renovations to the Family Home [90] The claimant seeks compensation from the respondent for the expenses he incurred in getting the Family Home ready for sale. Those expenses totalled $1,140. [91] The respondent argues those expenses were necessary because of the usual wear and tear associated with the claimant's occupation of the house. [92] I agree with the respondent on this point and will not make the order sought by the claimant. Canadian Imperial Bank of Commerce ("CIBC") VISA Judgment [93] During the course of the marriage, the respondent accumulated significant debt on her CIBC VISA credit card. At one point the balance owing on that credit card was paid off by using funds drawn from the Bank of Nova Scotia line of credit. [94] After the parties separated, the respondent's parents attempted to assist the respondent with her financial management, especially her debts. Notwithstanding those efforts, the respondent again accumulated a significant balance on her CIBC VISA. [95] On 19 January 2011, the respondent was asked in cross-examination about the $39,749.41 balance that remained outstanding on her CIBC VISA as of September 2009: Q: What is the present status of that credit card so far as the CIBC VISA is concerned? A: What is the status? Court: How would this witness know what the CIBC position is? Q: Do you still owe the money? A: Yes. Q: Do you get monthly statements from them? A: No. Q: What... presumably CIBC has said to you, you owe us this money what are you going to do about it. Have they? A: Yeah, like they... quite a while ago, over a year ago. Q: And what did you say in response over a year ago? A: I told them that I couldn't pay it. Q: And did they say "fine, we'll forget about it"? A: Eh, no. But they haven't contacted me in a year. Q: Did you threaten to go into bankruptcy, madam, if they pursued you for it? A: Absolutely not. Q: Alright. Do you know if CIBC VISA is still expecting you to pay this account, not having heard from them for a year? A: Unless it's been written off, I don't know. [96] In re-direct examination, the respondent further explained: Q: Can you tell us what your intentions are with respect to that bill, that debt? A: To pay it out of the proceeds of the house. [97] After the respondent had completed her testimony, and to the surprise of both counsel for the respondent and counsel for the claimant, evidence surfaced indicating that the CIBC had commenced legal proceedings against the respondent on account of the outstanding debt and had registered the default judgment it had obtained against the title to the Family Home. [98] By agreement of the parties, the pleadings and associated court documents relating to the CIBC lawsuit were presented to me as evidence on this trial. From these documents, I have been able to glean the following: · On 2 November 2009, the CIBC filed a writ of summons and statement of claim alleging the respondent owed it $39,749.41on account of the outstanding balance on her CIBC VISA credit card. · The CIBC attempted to personally serve the respondent with the writ of summons and statement of claim; however it was unsuccessful. The process server had contacted and had spoke with the respondent on her cell phone, however she did not make herself available to be served. · As of early November 2009, the respondent knew the CIBC was pursuing her for the outstanding balance on her VISA credit card. · For reasons only known to the respondent, she evaded personal service, thus compelling CIBC to obtain an order for substitutional service. · The respondent did not file an appearance to the writ of summons and consequently on 30 April 2010, the CIBC took default judgment against the respondent in the amount of $39,749.41, plus $5,032.93, plus costs of $1,231.95 for a total of $46,014.29. · That judgment was registered on the title to the Family Home on 18 May 2010. [99] The fact that the judgment had been obtained against the respondent only came to the attention of counsel in this action when the sale of the Family Home was being finalized in late 2010. [100] I do not have any evidence from the respondent explaining the glaring discrepancy between her evidence at trial that she did not know whether CIBC expected her to pay the outstanding balance on her VISA and the fact that the CIBC had taken legal action and had obtained a judgment against her in late April 2010. [101] The respondent's failure to reference the debt collection action commenced by the CIBC reflects badly on her credibility and reliability as a witness. I accept that the respondent has been under significant strain on account of this family law litigation. However I do not accept that as an acceptable excuse or explanation for her failure to mention this important fact during her evidence. I can only conclude that she was being intentionally evasive when questioned about her CIBC debt in the hope that the judgment against her would not come to light. [102] In any event, I accept the submission of the claimant on this point and find that the judgment amount that had to be paid in order to complete the sale of the Family Home was not a family debt but one that was the sole responsibility of the respondent. [103] The claimant is entitled to compensation in the amount of $47,300 from the respondent, that being the total amount necessary to have the judgment removed from title. This amount is to be deducted from the respondent's share of the Proceeds of Sale. Spousal Support [104] The respondent seeks an order that the claimant pay her retroactive and permanent spousal support. In advancing this claim, the respondent argues such an award is justifiable on both compensatory and non-compensatory grounds (Chutter v. Chutter, 2008 BCCA 507). [105] Counsel for the respondent articulated the respondent's position in his submissions as follows: The Respondent seeks permanent and retroactive spousal support to equalize the parties' standards of living, as well as to address the economic hardship suffered by the Respondent in assuming a supportive role during the marriage, as well as on a needs basis due to her bi-polar disorder and its impact on her ability to obtain and maintain employment. Her lack of job experience and training, as well as education, creates a real possibility of future unemployment. . . . The Respondent submits that she has suffered an economic disadvantage by the marriage breakdown and that the Claimant has been advantaged by the marital dissolution... The question to be asked is whose shoes would you rather be in after a 12 year relationship. The answer clearly is the Claimant's, as he has a secure future and the Respondent is encumbered with all of the risks going forward into the future and substantial debts. [106] I do not agree with the respondent's characterization of the parties' marriage relationship or their present circumstances. [107] While it is true that the respondent was compelled to leave high school prior to graduating on account of her pregnancy, she and the claimant received significant support from both the respondent's family and the claimant's family when A.S.W. was born. After the parties were married that support continued. [108] I specifically reject the respondent's contention that the marriage prohibited or limited her from pursuing whatever career goals she had. [109] During the early years of the marriage, the claimant worked long hours at multiple jobs, while the respondent remained at home with A.S.W. Ever present were the respondent's parents, who played a significant supporting role in those early days. [110] At the age of 3, A.S.W. began attending Montessori kindergarten. It was around this time that the respondent began focussing her attention on her passion for horses and all things equestrian. She generally rode or trained with her horses five-days per week. She also worked part-time in her mother's retail store. [111] The parties purchased their Family Home in 2001. At this time, the respondent continued to work part-time with her mother and continued riding her horses on a daily basis. Around this time, the respondent also began socializing in the evening outside of the home on a regular basis without the claimant. [112] In April 2002, the respondent left the claimant and A.S.W. in Victoria and travelled to Europe with some of her friends for a month-long holiday. [113] In September 2002, the respondent moved out of the Family Home and into an apartment of her own, ostensibly on the advice of an unnamed psychologist who encouraged her to "take a sabbatical from the marriage" in order to regain her lost youth. The claimant asserts the respondent left him and A.S.W. and was away from the Family Home for close to 10 months. The respondent says it was less. The respondent's evidence with respect to dates was unreliable and I accept the evidence of the claimant on this point. [114] The respondent returned to the Family Home in or around June 2003. According to the evidence of the respondent's mother, it was around this time that the respondent began concentrating more on her equestrian career. The respondent completed the course work to obtain her coaching certificate, but did not write the necessary exams. The respondent also returned to her regular socializing outside of the home without the claimant. [115] In July 2006, the parties separated and the respondent went to live with her parents. The claimant and A.S.W. remained in the Family Home. [116] The respondent lived with her parents from July 2006 until the end of September 2009 and during this period she paid her parents little to no rent. [117] In the fall of 2006, the respondent completed a course in automotive financing and insurance. Shortly afterwards she obtained part-time employment in Victoria with a motor vehicle dealership. The respondent's hours of worked increased over time and she eventually obtained full time employment with the dealership in the spring of 2008. [118] In the fall of 2009, the respondent chose to quit her job in Victoria and relocate to Vancouver where she secured full‑time employment as a financial and insurance manager at an auto dealership in Richmond. The respondent continues to work full‑time at this dealership and earns an income of between $70,000 and $80,000. [119] In my opinion, there are no grounds for the respondent to assert that her ability to obtain employment that will provide her with financial independence has been prejudiced by the marriage or that the marriage has put her in an economically disadvantaged position. Furthermore, the evidence presented by the respondent fails to convince me that she played as much of a "supportive role" during the relationship as she would want me to believe. [120] The respondent was principally responsible for the care of A.S.W. during the child's first years, while the claimant was at work. However, the evidence indicates that the respondent relied upon her parents regularly to assist with the care of the child. More often than not, the respondent was at her parent's residence with A.S.W. where the respondent and her mother would care for A.S.W. jointly. A.S.W. began kindergarten when he was three years old and this permitted the respondent to work in her mother's retail store and also engage in her equestrian pursuits. [121] The assertion made by the respondent that the claimant obtained his employment in the automotive industry on account of her and her family's efforts and personal connections is unsubstantiated by the evidence. [122] After the parties separated, the respondent resided with her parents. She paid no rent and had all or most of her expenses, including those for A.S.W. when he was with her, paid for by her parents. At the same time, the respondent continued her equestrian activities, including riding five days per week. [123] In the fall of 2006, a few months after the parties had separated, the respondent sought the advice of her family physician. [124] Dr. Ann van der Linden testified on behalf of the respondent. Dr. van der Linden is a medical doctor who has been the respondent's family physician since 2000. [125] Dr. van der Linden testified that in September 2006 when the respondent came to see her, the respondent exhibited depressive symptoms. Dr. van der Linden prescribed an anti-depressant for the respondent. In February 2007, Dr. van der Linder referred the respondent to a psychiatrist. [126] Dr. Gordon Johnson, is a psychiatrist who saw the respondent in early 2007 and eventually diagnosed her as suffering from a bi-polar 1 disorder. [127] Over the course of the next two years, a number of medications were prescribed for the respondent to assist her in managing her manic and depressive episodes. [128] A significant amount of evidence was presented relating to the respondent's physical and mental condition. I have no difficulty in accepting that the respondent suffers from a psychiatric illness that necessitates her taking medication. I also accept that these medications have side effects and that those side effects can have an impact on the respondent's job performance. [129] However, the evidence before me does not convince me that the respondent is disabled from being gainfully employed or achieving financial independence and security. [130] After the parties separated and following her diagnosis of a bi-polar illness, the respondent was able to pursue and complete the necessary training for her to become a qualified automobile financing and insurance manager. In short order, she was able to secure employment in her chosen career and she has been able to earn annual incomes of between $66,000 and $80,000 for the past 5 years. [131] I do not accept the respondent's argument that her bi-polar diagnosis and the risk that she may have future manic or depressive episodes justifies an order for spousal support. In reaching this conclusion, I have taken note of the following evidence of Dr. Johnson, a witness who testified on behalf of the respondent: Q: So long as [D.J.S.] continues with her medication and given [D.J.S.'s.] history in 2007 of being asymptomatic despite it being an extremely stressful time, you would agree with me, would you not, sir, that the chances of [D.J.S.] having any kind of a relapse are extremely low as compared to other patients that you diagnose with bipolar 1 disorder? A: Yeah. Q: That would that be a fair statement? A: If she remains on medication, yes. Q: Right. A: Yes. Q: And you certainly recommend that she do remain on medication? A: Yes. [132] More recently the respondent has been attending at the University of British Columbia Psychiatric clinic for treatment. Although the respondent has described what the doctors at the clinic have been doing for her, I have no evidence from anyone associated with the clinic regarding the respondent's condition, diagnosis, or prognosis. [133] Overall, I am satisfied the respondent has embarked upon a career path that should provide her with economic security. While it is true that she is earning less than the claimant, that fact alone is not justification to automatically order spousal support. [134] In summary, I agree with the argument of the claimant that there are no grounds to support the respondent's claim for spousal support. From a compensatory perspective, I do not accept that the respondent has been disadvantaged or that the claimant has been unfairly advantaged by the marriage. The respondent was able to complete her high school during the marriage. She was also able to work at her mother's store and focus on developing her equestrian skills. After the parties separated, the respondent was able to complete a course in automotive financing and insurance and she has successfully embarked on a career in that field. From a non-compensatory perspective, I reject the respondent's assertion that because of her bi-polar condition and the possibility that she may lose her employment on account of this condition, she has a justifiable need for spousal support. It would be speculative on my part to say that the respondent might lose her employment. What is clear is that the respondent is gainfully employed, with an employer who is aware of her condition. The respondent is earning a respectable annual income and is living is downtown Vancouver. In my opinion, all signs point to the fact that the respondent is, or should be, reasonably financially independent and secure. [135] The respondent's claim for spousal support is dismissed. Costs [136] If the issue of costs needs to be addressed, then the parties may set the matter down for hearing before me on a mutually convenient date obtained through the registry. "G. R. J. Gaul, J."