Smith v. Smith

2015 BCSC 2290 Smith v. Smith IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Smith v. Smith, 2015 BCSC 2290 Date: 20151208 Docket: 51204 Registry: Vernon Between: Shirley Kathleen Smith Claimant And Wayne Paul Smith Respondent Before: Master Muir Reasons for Judgment Counsel for the Claimant: B.H. Kirkpatrick Respondent appearing on his own behalf: W.P. Smith Place and Date of Hearing: Vernon, B.C. November 17, 2015 Place and Date of Judgment: Vernon, B.C. December 8, 2015 introduction [1] This is an application by the respondent for orders for exclusive occupancy of the former matrimonial home located at 8970 Kalamalka Road, Coldstream, B.C. (the "matrimonial home"), interim spousal support, and interim possession of the German Shorthair Pointer dog, 'Kalamalka Lucyder' known as Lucy. Background [2] The parties were married on August 25, 1984 and separated on June 22, 2014. [3] The respondent is 57 years old and has been left with a disability resulting from a motor vehicle accident in 2012. As a result, he receives a permanent partial disability pension of $1,602 per month from WorkSafe BC. [4] According to a letter from his psychiatrist dated January 28, 2014, the respondent was approximately 50 - 60% disabled at that time. [5] The respondent received re-training as a security guard. [6] In 2015, he obtained employment as a commissionaire from May 5, 2015 to August 23, 2015, earning $3,798.25, and as a security officer with Gateway Casinos from May 15, 2015 to June 27, 2015, earning $2,448.87. Thus, absent additional earnings, his annual earnings for 2015, annualizing his pension and adding this employment income, will amount to $25,473.16. [7] The claimant points out that the respondent quit both positions. The claimant, thus, submits that the respondent is capable of working, but chooses not to do so. She urges me to impute an income to the respondent of $33,824 per annum. [8] The respondent says that he quit these positions because he was "unable to perform with any degree of satisfaction". The respondent also points to a letter from his family doctor dated June 5, 2015 which states the respondent is taking new medication to correct his sleep pattern and should not be working night shifts until his pattern is restored. [9] The respondent says that as he has no seniority at work, he will be required to work night shifts in any position that he is qualified for and that at present, he cannot do so as he states, "the late shifts were upsetting my medication routine". [10] I note that in submissions, the respondent indicated that he may be obtaining employment as a caretaker of Mackie House in Coldstream, B.C. [11] The claimant works for Interior Health. Her income is $42,396.35 per annum. [12] The claimant deposes that she suffers from global anxiety disorder and clinical depression and has been under the care of a doctor since 2005 for these conditions. As a result, she has had numerous sick days in 2015. Her ability to continue working is not assured. [13] At present, the parties' daughter, Bethany is residing with the claimant and working part-time. It is expected that she will complete a massage therapist course at college in 2016, but in the meantime, the claimant deposes that she continues to support her. [14] Lucy, the dog in issue, currently resides with the claimant and Bethany. [15] In his materials, the respondent provides the original bill of sale to prove that Lucy belongs to him. The claimant, however, says Lucy belongs to Bethany and produces the license for the dog, which is in Bethany's name. The respondent admits that, unless he is granted exclusive occupation of the matrimonial home, he cannot pursue his application for possession of Lucy. [16] The matrimonial home has two bedrooms and two basement rooms used as bedrooms. It is on an approximately one acre parcel of land. [17] The claimant says that the respondent left the matrimonial home voluntarily on separation in 2014. In response to that, the respondent says that he was hospitalized due to an overdose of alcohol and pills, and subsequently underwent several months of treatment. He says the claimant told his doctors that he was no longer welcome and that she had changed the locks. It is clear that the claimant has resided in the matrimonial home since. [18] The claimant points to several instances of interference by the respondent with her enjoyment of the matrimonial home. She deposes that she fears him and that he has in the past resorted to violence against her. At one point, she proposed a restraining order preventing him from attending the matrimonial home, but that was not pursued. [19] The respondent seeks exclusive possession of the matrimonial home as he says the claimant has allowed it to deteriorate and fall into disrepair which has negatively affected its value. He says it was valued in February 2013 for loan purposes at $550,000 and that, due to the lack of maintenance and flooding resulting from the claimant not activating a seasonal sump pump, the property value is decreasing. [20] The respondent provides an appraisal dated August 17, 2015, evidencing a value of $466,000, assuming the septic system is fully functional and less the cost of repair if it is not. [21] The respondent also provides two photographs, one showing a somewhat deteriorated garage roof with a broken vent and the other showing some long grass, in support of his assertions. [22] It is the respondent's position that the matrimonial home will have to be sold. He says he is fully capable of maintaining and improving the property such that the parties can sell it for the highest price possible. [23] The claimant denies allowing the matrimonial home to deteriorate. She says that she is capable of and does maintain the property in good condition. [24] She says the septic system for the property is inadequate and requires replacement. Her evidence is that there were two floods in the property, one due to the malfunctioning of the washing machine and the other due to the failure of the sump pump. Her evidence is that repairs and restoration of the property in both instances were done and paid for by the property insurer. [25] It is the claimant's position that the respondent was simply unhappy with the valuation he obtained from the appraisal of the property and that he has refused to cooperate in a prompt resolution of all of the parties' issues as a result. Analysis and findings Interim Spousal support [26] In Robles v. Kuhn, 2009 BCSC 1163, at para. 12, Master Keighley listed relevant considerations on an interim support application: 1. On applications for interim support, the applicant's needs and the respondent's ability to pay assume greater significance: Gibb v. Gibb, 2005 BCSC 1738; 2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it: Grossi v. Grossi (1993), 48 R.F.L. (3d) 413 (B.C.S.C.); 3. On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances, which is better left to trial. The court achieves rough justice at best: Randhawa v. Randhawa (1999), 49 R.F.L. (4th) 144 (B.C.S.C.); Newson v. Newson (1998), 65 B.C.L.R. (3d) 22 (C.A); 4. The courts should not unduly emphasize any one of the statutory considerations above others. 5. On interim applications the need to achieve economic self-sufficiency is often of less significance. 6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise: Ladd v. Ladd, 2006 BCSC 1280; 7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out: LG.B. v. M.A.C.M., 2005 BCSC 1786; 8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support: L.G.B. [27] The claimant pays the mortgage and other expenses for the matrimonial home. Her evidence is that, at least a part of the funds secured by that mortgage were used to purchase a Land Rover for the respondent and that he has retained that vehicle. She is also assisting the parties' daughter while she completes her schooling. The claimant lists expenses of $42,686 per annum on her Form F8 Financial Statement. [28] Looking at the respondent's Form F8 Financial Statement, he indicates expenses of only $10,200 per annum. His low expenses are in part due to his having a significant reduction of income in June 2014 when he was hospitalized. His income at that time was a permanent partial disability pension of $712.08 per month from WorkSafe BC. As noted, that has now increased to $1,602 per month. [29] Regardless, the claimant submits that the respondent has not made out any entitlement to spousal support. Further, the claimant submits that the respondent has not shown any need. [30] As noted, it is the claimant's position that the respondent is capable of working, but chooses not to do so. She submits that he has not shown any need for spousal support and that she has very limited means. Further, as noted, she submits that she is already paying for all the expenses on the matrimonial home, carrying the respondent's vehicle debt and supporting the parties' daughter. Interim spousal support [31] I am satisfied that the respondent is capable of working, even if in a limited capacity. I agree that some employment income is to be imputed to him. [32] The claimant provides a Spousal Support Advisory Guidelines calculation showing a support figure of $35 per month if income is imputed to the respondent as urged. [33] Given the ability of the respondent to work, the employment income he has made this year, the pension benefit he is receiving and his minimal expenses, I am not satisfied that he has established the need for spousal support. Further, I agree with the claimant that her means are minimal. I conclude that an order for interim spousal support is not warranted at this time. [34] The parties have indicated they want to resolve the matters between them quickly. The respondent indicated that he intended to have the matter set for trial. If there is a trial, the issue of the parties' circumstances can be more fully canvassed. [35] The application for interim spousal support is therefore denied. Exclusive occupancy of the former matrimonial home [36] Cohabitation in the matrimonial home was suggested by the respondent, but rejected by the claimant due to her fear of family violence. I am satisfied that cohabitation is a practical impossibility. [37] The question then becomes one of the balance of convenience. [38] The claimant has indicated that she would like to purchase the respondent's interest in the matrimonial home. Whether that is still a possibility or not is not before me. It is entirely possible that the matrimonial home will have to be sold. [39] The claimant and the parties' daughter have resided in the matrimonial home since separation. I do not believe that the matrimonial home is deteriorating under their care. [40] The parties have both expressed a desire for a quick resolution of the issues between them. In my view, the balance of convenience favours the claimant remaining resident in the matrimonial home until matters are resolved. I can see no rationale for uprooting the claimant and installing the respondent for what I expect will be only a short period of time. [41] As a result, the application by the respondent for exclusive occupancy of the matrimonial home is denied. Interim possession of Lucy [42] As the respondent conceded that the application for possession of the dog, Lucy, turned on his being granted exclusive occupation of the matrimonial home, that application too is denied. [43] The claimant will have her costs in the cause. "Master Muir"