Forest v. Forest

2014 BCSC 1861 Forest v. Forest

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Forest v. Forest, 2014 BCSC 1861 Date: 20141002 Docket: E50255 Registry: Vernon Between: Janette Hope Forest Claimant And Robert Yvon Forest Respondent Before: The Honourable Madam Justice Gray Reasons Supplemental to and Correcting Oral Reasons for Judgment originally given on July 23, 2014 In Chambers Counsel for the Claimant: P.A. Dyck Counsel for the Respondent: M.G. Miller Place and Date of Supplemental to and Correcting Oral Reasons for Judgment: Vernon, B.C. October 2, 2014 [1] I gave oral reasons for judgment on July 23, 2014 ("Oral Reasons"), in which I ordered first, that the respondent ex-husband pay the claimant ex-wife spousal support in the amount of $3,500 per month effective August 1, 2014; second, that the issue of spousal support was reviewable on or after July 1, 2019; third, that the ex-husband's application to vary Clause 15 of the Separation Agreement was dismissed; and fourth, that the ex-wife was entitled to her costs. [2] The ex-husband filed a notice of appeal on August 13, 2014. [3] Subsequently, a draft of the Oral Reasons was provided to me for editing. [4] On reviewing the draft Oral Reasons, I discovered that I had made a calculation error. I referred in paragraph 42 to evidence that the ex-husband admitted to a private investigator that he normally worked from 10:00 a.m. to around 2:30 p.m. as

being an admission of working five and one-half hours a day, when that is only a four and one-half hour period. [5] The order arising from the Oral Reasons has not yet been entered in the court records. Counsel agreed on a form of order and provided the order to the registry for entry. I asked the registry not to enter the order without my approval, so that I could consider whether it was necessary to vary it. [6] Where an order has not yet been entered in the court records, which is the case here, the court retains a discretion to vary the order, and even to change the result to the opposite of the original order. This was discussed by Finch C.J.B.C. (as he then was) in Harrison v. Harrison, 2007 BCCA 120, at paras. 28 and 29, as follows: [28] The scope of a trial judge's discretion to vary an order after pronouncement depends on whether a formal order has been entered. So long as the order remains unentered, the judge retains "an unfettered discretion" to re-open the matter. That discretion should be used sparingly: Sykes v. Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.). Although this discretion is sometimes treated as part of the discretion granted by Rule 41(24), the "Slip Rule", it is in fact a common law discretion recognized by this Court in Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257, [1935] 1 D.L.R. 432. [29] Once an order has been entered, however, the

court which made the order is functus officio with respect to the issues therein: Piyaratana Unnanse et al v. Wahareke Sonuttara Unnanse et al, [1950] 2 W.W.R. 796 (P.C.). Once the judge is functus, the power to re-visit an order is much narrower. Generally speaking, that power is confined to making corrections or amendments in two situations: first, under Rule 41(24) of the Supreme Court Rules where there has been a 'slip' in drawing up the order or where a matter should have been but was not adjudicated upon; and second, where there has been an error in expressing the manifest intention of the court: Buschau v. Rogers Communications Inc., 2004 BCCA 142; see also Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848. [7] Had I correctly referred in the Oral Reasons to the period as being four and one-half hours per day, the following paragraphs would have changed so that they were as set out below (with changes underlined): a) paragraph 45 would have been as follows: From 10 a.m. to 2:30 p.m. is four and one-half hours. Four days a week at four and one-half hours is 18 hours a week. Eighteen hours a week for 52 weeks would be $187,200 at $200 an hour. Presumably there would be days a person would not work, such as major holidays, so those calculations lead to a figure closer to about $183,000 per year, calculated at 48 weeks of work. b) paragraph 53 would have

been as follows: I have struggled to try to come up with a fair number to use for considering the ex-husband's income for the purpose of determining spousal support. One number that I have looked at is the annual income on the basis of the hours as reported to the private investigator. As I have said, that is a figure of about $183,000. Another figure I have looked at is the figure reported in the income statement to June 30th, which was listed as $58,000 gross and $51,000 net, so that would be somewhere between $102,000 and $116,000, depending on what expenses would be taken into account. As I said previously, the income tax documentation, even on its face, in my view, underreports the income available for spousal support because of claimed expenses, and I would tend to gross it up, if I accepted that, to more like $85,000 to $95,000 per year. c) paragraph 54 would have been as follows: I also considered what would be the earnings of the ex-husband if he reduced his work from four and one-half hours, four days a week, to four and one-half hours two days a week, and only three hours on two days a week. I calculated 15 hours a week, and multiplying that by 50 weeks at $200 an hour, I got $150,000 in gross income. d) paragraph 55 would have been as follows: I also considered taking 60 percent of 18 hours a week, if the ex-husband reduced his hours by 40 percent as suggested by

his family doctor. That is 10.8 hours per week, which would be $108,000 per year gross income. If that was done over four days, it would be about 2.7 hours a day. If it was done over three days, it would be 3.6 hours a day. [8] In paragraph 58 of the Oral Reasons, I concluded that I should consider the ex-husband's annual income, for the purposes of determining spousal support, to be in the range of $122,000. That was upon considering five amounts: first, the annual income on the basis reported to the private investigator, mistakenly stated in paragraph 52 of the Oral Reasons as "over $200,000"; second, the amount based on the income statement, which would be somewhere between $102,000 and $116,000; third, the income tax documentation, which I would have grossed up to $85,000 to $95,000 per year; fourth, the amount considering that the ex-husband might work reduced hours, mistakenly described in paragraph 53 as being "$170,000"; and fifth, the hours if the ex-husband worked 60% of the hours calculated on the basis of his report to the private investigator, mistakenly described in paragraph 54 as "$132,000". [9] I have attempted to determine what I would have concluded based on the corrected numbers. In other words, I have considered the following five figures: first, the annual income on the basis reported to the private investigator, in the corrected amount of $183,000;

second, the amount based on the income statement, which would be somewhere between $102,000 and $116,000; third, the income tax documentation, which I would have grossed up to $85,000 to $95,000 per year; fourth, the amount considering that the ex-husband might work reduced hours, in the corrected amount of $150,000; and fifth, the hours if the ex-husband worked 60% of the hours calculated on the basis of his report to the private investigator, in the corrected amount of $108,000. [10] Considering those five figures, and giving appropriate weight to each figure, in my view, the conclusion that, for the purposes of determining spousal support, the ex-husband's income should be considered to be in the range of $122,000 remains correct. I give little weight to the figures based on the tax returns and the income statement. I give the most weight to the figures resulting from the ex-husband's admissions to the private investigator, and I consider the possibility of reduced hours even though the ex-husband failed to provide admissible expert evidence demonstrating a need for reduced working hours. [11] As a result, I am not varying the order arising from the Oral Reasons. [12] I will therefore instruct the registry to enter the order in the form provided by counsel. "Gray J."