Kammerer v. Kammerer

2024 BCSC 1838 Kammerer v. Kammerer

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kammerer v. Kammerer, 2024 BCSC 1838 Date: 20241007 Docket: Kamloops Registry: E60415 Between: Christine Joan Kammerer also known as Christine Joan Graham Claimant And Rusty Malcolm Kammerer Respondent Before: The Honourable Justice B. Smith Reasons for Judgment Counsel for the Claimant: M.S. Harrison Appearing in person: R.M. Kammerer Place and Date of Trial: Kamloops, B.C. March 6-8, 2024 Place and Date of Judgment: Kamloops, B.C. October 7, 2024 Introduction.. 2 Background.. 2 Credibility and Reliability. 3 The claimant 3 The respondent 4 The Claimant's Evidence. 5 The Respondent's Evidence. 8 Positions of the Parties. 8 Legal Principles. 9 Discussion.. 10 Is the claimant entitled to spousal support?. 10 Compensatory Basis. 10 Non-compensatory basis. 10 Should there be a retroactive spousal support?. 11 Reasonable excuse. 12 Conduct 12 Hardship. 13 What is the date of retroactivity?. 14 What Quantum and Duration?. 14 The Parties' Income. 14 SSAG Ranges. 15 Basis of payment 15 Quantum of retroactive support 16 Quantum of prospective support 17 Orders. 18 Costs. 18 Introduction [1] This is a family law dispute. The parties were married for 33 years and have three adult children. They have settled division of property, and the sole issue for determination involves spousal support - prospective and retroactive. The claimant

seeks spousal support on compensatory and non-compensatory grounds. The respondent does not dispute the claimant's entitlement, only the claimed amount and duration. Background [2] The parties were married on February 14, 1987. The claimant was 23 years old, the respondent was 28. She is now 61 years old, he is 66. They separated on July 18, 2019. They have three adult children - a daughter born in 1989 and two sons, one born in 1993, the other in 1996. The children are no longer children of the marriage within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). [3] Neither the claimant nor the respondent has post-secondary education. The claimant has grade 12, the respondent has grade 9. [4] During the marriage, the claimant stayed home with the children, first full-time, later part-time. The respondent is a carpenter and worked for various employers. The family moved around the province for the respondent's career: from the Fraser Valley to Prince George; then to Lillooet. [5] It is undisputed that during the marriage the claimant was a stay-at-home parent, and the respondent earned income for the family. After between 11 and 12 years off from paid employment, she worked part-time in various capacities, such as stocking shelves, and working cash registers. In recent years the claimant's income has averaged between $22,000 and $31,000 a year. She is presently

employed in the bakery of a local grocery store. [6] The respondent is a carpenter by trade. Between 1989 and 2002, he provided a good and stable income for the family. Since 2009, he has worked at B.C. Hydro. In recent years his income has consistently been well in excess of $100,000. [7] Since April 2022, pursuant to an order following a judicial case conference, the respondent has been paying the claimant spousal support of $550 a month. Credibility and Reliability [8] The assessment of credibility and reliability has been the topic of much judicial writing. The assessment process requires me to consider factors such as: a witness's ability and opportunity to observe events; the firmness of their memory; their ability to resist the influence of interest to modify their recollection; whether their evidence harmonizes with independent evidence that has been accepted; whether they change their testimony in direct and cross-examination; whether their testimony seems unreasonable, impossible or unlikely; whether they have a motive to lie; and their demeanour generally: Bradshaw v. Stenner, 2010 BCSC 1398; aff'd. 2012 BCCA 296. [9] Credibility determinations "may not be purely intellectual and may involve factors that are difficult to verbalize": R. v. M.(R.E.), 2008 SCC 51 at para.

49. They must not be based on emotional evaluations, stereotypes, guesswork, or impermissible reasoning, but grounded in reason and made as objectively as possible. [10] I must be cautious when considering demeanour, because I have no baseline for assessment, and know that courtrooms can be unfamiliar and intimidating environments, to which people react differently. [11] I may believe some, all, or none of a witness's evidence. [12] It is with these general principles in mind that I consider the evidence in this case. The claimant [13] The claimant was credible. The respondent did not challenge her credibility. [14] She was not argumentative. She acknowledged limitations in her knowledge about some areas of the evidence. She was polite in answering all questions, including those put to her by the respondent in cross-examination. She did not display any animus towards the respondent. She exhibited a pleasant demeanour. At no time did I get the sense she was attempting to mislead or deceive the court in any way. [15] I found the claimant's evidence reliable. She displayed a good ability to recall the events she testified about. When she was uncertain, for example, about some early date ranges, she did not hesitate to say so. She did not exhibit any significant memory deficiencies. Her evidence harmonizes with other evidence which I accept, for example, documentary evidence of her

income. The respondent [16] The respondent was credible. Although the claimant's counsel challenged his credibility in relation to his evidence about his assets, income and expenditures, I perceived the general purpose of the questions was not to impeach him, but to test his assertions that he has disclosed all sources of his income and is not hiding assets. I find that while the respondent occasionally struggled to provide detailed answers to these questions, his responses were credible. [17] Unlike many unrepresented litigants in his situation, he did not take the opportunity when cross-examining the claimant to try and engage in aggressive, angry or demeaning questioning; nor did he attempt to rehash irrelevant past grievances. [18] As with the claimant, I found the respondent's evidence reliable, except for his testimony about living out allowances, overtime and contributions to an RRSP. I found his testimony in this regard somewhat vague and confusing. This was unfortunate, because of its importance in the issues for determination. He otherwise displayed a good ability to recall the events he testified about. He did not exhibit any significant memory deficiencies. Except for some of his testimony about living out allowances, overtime and contributions to an RRSP, his evidence also harmonized with other evidence which I accept, for example, documentary evidence of his

income. The Claimant's Evidence [19] The claimant was born on April 4, 1963 in Saskatchewan. The respondent was born on September 20, 1958 in Vancouver. [20] In 1967, she moved to Kamloops. In 1981, she completed grade 12. In 1985 or 1986, she met the respondent at a party. She was 22 years old, he was 27. She believes he was self-employed doing drywalling and carpentry. [21] In 1986, they lived together with her sister in a duplex in Coquitlam. In 1987, they got married, and lived in Port Coquitlam for about a year. In 1988, they moved to his parents' farm in South Surrey, where they lived until 1991. [22] In 1991, they moved to Prince George, for better job opportunities for the respondent, and the possibility of buying a home. Their daughter was then two years old. In Prince George, the respondent started working for a local construction company. At first, he generally worked Mondays through Fridays and was home in the evenings. Then he took a job working for a company in Burns Lake, and started working out of town. [23] They lived in Prince George for approximately ten years, until 2001. The claimant did not work while they were in Prince George. [24] During this time, their two sons were born - the first in 1993, the second in 1996. The claimant stayed home with the children full-time. She took care of the children, and all domestic activities associated with the

household. As she explained in her testimony: "I stayed home to raise the kids". [25] The respondent was home quite a bit during this time, every night, for the first four or five years. [26] After the first four or five years, he changed jobs because there was little work at that time in Prince George. His job took him out of town for a week at a time doing carpentry. [27] They left Prince George after a friend got a job at a mill in Lillooet. The respondent went to Lillooet, worked there for a week, then came home and said "we're going to Lillooet". She did not feel she had a choice. He made it sound pretty good, and described Lillooet as a nice little town where they could be closer to family. [28] They moved to Lillooett. The respondent went to work for D.G. for two or three years, doing carpentry, plumbing and other general work. He worked in Lillooet. She did not work. The children were then eleven, seven and four years old. [29] The respondent then went to work for G.N. for about three years. He did carpentry. He worked in Lillooet. When G.N. moved his company to Kamloops, the respondent started to work out of town during the week, and came home on weekends. He did this for about a year. He stopped working for G.N. because he wanted to be home more. She did not work. [30] The respondent then went to work with G.F. for two or three years. He did carpentry. He worked in

Lillooet. She did not work. [31] In approximately 2007, the respondent got a job with B.C. Hydro as a carpenter. He worked out of town all the time during the week and sometimes on weekends too. The B.C. Hydro office was based out of Vernon or Kamloops. He also worked at Seaton Portage. He thought he would be home every night when they moved to Lillooet, and he was for the first few years, but then he worked out of town. [32] She did not want to move to Prince George. She felt life was fine in the Fraser Valley, where his parents' farm was located. She also did not want to move to Lillooet. She agreed to do so because she thought it was best to keep the family together. [33] Before the claimant had children, she worked full-time. [34] For about three years after the claimant completed grade 12, she worked at her mother's coffee shop and catering business; then at a restaurant; and then as a host for home parties, selling cosmetics. In 1984 or 1985, she again worked at a restaurant. Then, until 1987, when she and the respondent were married, she worked at a pizza restaurant. At some point before she and the respondent moved to his parents farm in 1988 or 1989, she worked at K-Mart. [35] In 2000 or 2001, she got a job in Lillooet working part-time at a feed store to cover someone else's holiday leave. She worked there for only two weeks. It was her first job since working at

K-Mart. [36] After her job at the feed store, she got a part-time job at a restaurant, working as a cook. She was there for just over a year until the restaurant shut down. She then got a job at a grocery store, working as a cashier and stocking shelves. She left after about eight years due to a back injury. She then got a part-time job at a pharmacy, where she worked for about two years, followed by other part-time jobs at a doctor's office and at a hospital, where she worked as a cleaner. She then went back to work part-time for the pharmacy, until July 2019, when she moved to Kamloops. [37] About six months after moving to Kamloops, having obtained a Food Safe certification, she started working part-time, then full-time, at Costco. She worked in a variety of capacities: as a cashier; in the bakery; at the front door checking receipts; and doing security, in which she had to patrol the parking lot. She found it difficult to work in the bakery because the large racks were too heavy to lift. Doing security made her feel unsafe. [38] She left Costco and started working for a grocery store, four days a week. After some time, her hours were reduced to better accommodate hours for student staff, and she left to take her current position where she works three or four eight-hour shifts a week in the bakery. [39] She lives in a condominium townhouse, which she owns following the

settlement of division of property. She and the respondent bought it when their daughter attended university in Kamloops. All of her children lived there when they attended university. [40] They separated on July 18, 2019. One of their sons and his partner had just had a baby, and she moved to Kamloops to help with the newborn. The respondent did not want her to leave Lillooet, but she did not want to remain there. When she moved to Kamloops on July 18, 2019, she did not know that it would end up being her separation date. [41] In January 2023, she was diagnosed with [condition omitted], for which she takes medication. Until December 2023, the respondent's medical insurance plan paid for the medication. She now has no insurance coverage for the medication expenses. [42] The claimant's evidence is undisputed. The Respondent's Evidence [43] Much of the respondent's testimony was simply confirmation of the claimant's testimony about their years together, so I will not repeat it. [44] The respondent testified about matters relevant to the issue of hardship in regards to retroactive support. He said he wishes to retire, that his earnings will drop off when he does, that he will then not be able to pay support, and will have to either re-mortgage his property in Lillooet, or sell it and get something smaller. [45] In cross-examination, counsel for the claimant mostly asked the

respondent questions pertaining to his income, assets and expenditures. Positions of the Parties [46] The claimant says she is entitled to spousal support: retroactively and prospectively. [47] The respondent does not dispute the claimant's entitlement to spousal support, but says he cannot afford to pay at the amounts the claimant is seeking. He says he wishes to retire. Legal Principles [48] The issues for determination are: · whether the claimant is entitled to support on a compensatory or non-compensatory basis; · if yes, the appropriate amount and duration of support. [49] The cases distinguish support ordered on "compensatory" or "non-compensatory" grounds: Chutter v. Chutter, 2008 BCCA 507 [Chutter] at paras. 47-61. [50] I must first determine whether the claimant is entitled to an award on a compensatory or non-compensatory, or both. If yes, I must then consider the amount and duration of the award, on the assumption of an award paid as a series of monthly payments. [51] I must consider the Spousal Support Advisory Guidelines [SSAG], which includes formula ranges based on the income of the spouses calculated in accordance with the Federal Child Support Guidelines, SOR/97-175 [Guidelines] subject to certain adjustments; recognizing the SSAG does not have the force of legislation, but are a useful tool: Redpath v. Redpath, 2006 BCCA at para. 42; Chutter at para. 101;

H.C.F. v. D.T.F., 2017 BCSC 1226 at para. 220. [52] The premise of the SSAG is that entitlement has already been established. The basis of entitlement is important, not only as a threshold issue, but also to determine location within the formula ranges or to justify departure from the ranges as an exception: SSAG, s. 3.2.2. An analysis of the basis of entitlement is a necessary underpinning to the determination of the amount and duration of support: SSAG, s. 4.2. Discussion Is the claimant entitled to spousal support? [53] The respondent conceded at trial that the claimant is entitled to spousal support. While I acknowledge his concession, he made it as an unrepresented litigant, and I have made my own determination of this important issue. Compensatory Basis [54] I find the claimant has established strong entitlement to spousal support on a compensatory basis, because she experienced economic loss or disadvantage as a result of her role during the marriage; while the respondent experienced career advantage as a result. [55] The claimant was unable to work full-time on an uninterrupted basis, because she first stayed home when the children were young, then took part-time jobs to accommodate their school schedules. Her employment history shows she has worked for relatively short periods at a time in various capacities in the service industry. Most of her jobs have been

part-time. She had to move to smaller communities for the respondent's career, because his job opportunities as a carpenter were limited. [56] Conversely, the respondent was able to develop his career in smaller communities with better job opportunities. He was able to regularly work out of town, away from home, during the week, and sometimes on weekends, while the claimant stayed home with the children. Non-compensatory basis [57] I find the claimant has also established entitlement to spousal support on a non-compensatory basis, because she was in a long-term marriage in which there was financial interdependence, and she has experienced a drop in her standard of living and economic hardship since separation. [58] The parties were married for 33 years, in which they appear to have mostly enjoyed a comfortable lifestyle. The claimant is now of modest means. She owns and lives in a condominium townhouse with an assessed value of $410,900, with a mortgage of approximately $93,000, as at the time of trial. It appears from the evidence that this property is her only asset of significant value. She owns a vehicle of little value. [59] The claimant is not doing well financially. She earns $17.35 an hour. Based on her expenses, as listed on her Form F8 financial statement, it appears she lives a modest lifestyle, yet her listed expenses still exceed her income. She has had to rely on

credit cards to pay her expenses. As at October 2023, she had $21,000 in credit card debt. As at the time of trial in early March 2024, she had reduced that debt to approximately $14,000, but was only able to do so by cashing in a tax-free savings account. [60] The claimant is 61 years old, has a grade 12 education, and a history of interrupted employment which has provided only modest income. I find her age, level of education, and work history are such that she now has limited career prospects. There is no evidence she has re-partnered, or that she receives support or income from any source apart from her employment, CPP pension of $465 a month, and spousal support of $550 a month. Should there be a retroactive spousal support? [61] The issue for determination is whether I should exercise my discretion to order retroactive spousal support. This requires me to consider the factors in D.B.S. v. S.R.G., 2006 SCC 37 [D.B.S.] at paras. 100-117; Michel v. Graydon, 2020 SCC 24 at para. 10. [62] In D.B.S. the issue was child support. The same factors apply in the context of spousal support, although the weighing of the factors will differ: Ducharme v. Rempel, 2016 BCCA 198 at para. 17. [63] Here, in the context of spousal support, I must consider: · reasonable excuse for why the claimant did not seek support earlier: D.B.S. at paras. 100-104; · conduct of the respondent: D.B.S. at

paras. 105-109; · hardship to the respondent occasioned by a retroactive award: D.B.S. at paras. 114-117. Reasonable excuse [64] I find that although the claimant could have sought support earlier than she did, she has a reasonable excuse for the delay in doing so. [65] The claimant delayed slightly more than two years in seeking support: the separation date was July 19, 2019; she filed her notice of family claim seeking spousal support on August 5, 2021. [66] The claimant has a reasonable excuse for the delay in seeking support, for two reasons. First, I find the claimant did not make a voluntary and informed choice not to apply for support earlier. I make this finding because, although the respondent paid some of the claimant's housing-related and other expenses post-separation, it is more likely than not that the claimant did not know the full extent of her potential claim until she had the benefit of legal advice from counsel, and realized she might be entitled to significantly more than she was receiving. Second, I find the claimant lacked the financial means to bring an application. I make this finding because her testimony clearly establishes her financial situation was tenuous, as corroborated by her income information. Conduct [67] I find the respondent did not comply with his disclosure obligations. [68] Non-compliance with disclosure obligations in family law

disputes is deplorable. It impedes the resolution of family law disputes; while also increasing cost to the parties, financial and emotional. [69] The respondent, by his non-compliance, privileged his own interests over the claimant's right to an appropriate amount of support. Adopting the expansive view approved of in D.B.S. (para. 106), I find that by doing so he engaged in blameworthy conduct. [70] The respondent filed his response to family claim and a counterclaim on March 16, 2022. The respondent was represented by counsel when he did so, and I find it is more likely than not that by then he had received the benefit of counsel's advice about the claimant's entitlement to spousal support, and the quantum and duration of support payable. [71] Until the April 2022 order that the respondent must pay the claimant spousal support of $550 a month, he was only paying some of her housing-related and other expenses - totalling approximately $1,700 a month. Although the respondent complied with the April 2022 order, his monthly payments were significantly less than he should have been paying, such that I find he cannot rely on the presumption of reasonableness arising from his compliance with the April 2022 order. [72] As counsel for the claimant outlined in her submissions, the history of the proceedings makes clear the respondent's disclosure has been neither timely, nor complete.

His two filed Form 8 financial statements were both late, and incomplete. The respondent offered no explanation for the lateness and incompleteness of disclosure, and cannot claim ignorance of his obligations. He was afforded time and opportunities to comply. When he filed the first financial statement he was represented by counsel. At a judicial case conference on November 22, 2023, the presider, Associate Judge Keim, directed him to file his second financial statement by December 22, 2023. At a trial management conference on January 23, 2024, the presider, Justice Hori, noted he still had not filed his second financial statement. He finally filed it on January 29, 2024. Hardship [73] I find a retroactive award would not lead to hardship for the respondent, because he has the means to pay. [74] The respondent owns real estate in Lillooet with a 2023 assessed value of $640,000, and a mortgage of approximately $31,000, as at the time of trial. He does not have obligations to a new family. His income from employment is consistently well in excess of $100,000 a year. He has money in savings accounts and RRSP. Even if a retroactive award did mean some hardship for the respondent, I find this is less of a concern, because it arises from his own blameworthy conduct. What is the date of retroactivity? [75] I find the date of retroactivity is August 1, 2019. [76] The claimant gave the respondent formal notice on August 5, 2021, when she filed her notice of family claim. The separation date was on July 19, 2019, which is significantly less than the three years of retroactivity beyond which courts usually find it inappropriate to make a retroactive support order: D.B.S. at para.

123. What Quantum and Duration? The Parties' Income [77] There is a significant disparity of income between the parties. Historically, the claimant's income has been much less than the respondent's income, which I find is attributable to the claimant's role in the marriage. 2019 [78] In 2019, the claimant had income of $21,607. The respondent had income of $114, 941, net of union dues paid. 2020 [79] In 2020, the claimant had income of $26,284. The respondent had income of $112, 397, net of union dues. 2021 [80] In 2021, the claimant had income of $31, 917. The respondent had income of $93,342. 2022 [81] In 2022, the claimant had income of $22,148. The respondent had income of $103,248. 2023 [82] In 2023, the claimant had income of $25,696. The respondent had income of $118, 028. SSAG Ranges [83] Application of the SSAG "without child support" formula from 2019 to 2023 results in the following ranges, for an indefinite duration: Low Mid High 2019 $2,917 $3,403 $3,748 2020 $2,691 $3,140 $3,471 2021 $1,920 $2,239 $2,488 2022 $2,534 $2,957 $3,273 2023 $2,885 $3,366 $3,726 [84] I find that locating spousal support at the high end of the range is appropriate, because, for the reasons already stated, I find the claimant has a strong compensatory claim. Basis of payment [85] I find the retroactive support is payable as a lump sum, because this will lessen any hardship on the

respondent and allow him greater ability to manage his financial affairs. [86] I recognize that retroactive lump sum spousal awards have tax consequences. I do not have the necessary evidence upon which to make findings of fact about the tax consequences for the respondent, but given his income over the past five years, I consider it fair to discount the lump sum award by 35% in order to avoid prejudice to him. [87] I find the prospective support is payable monthly, for an indefinite duration, because of the length of the relationship. Although the respondent testified he wishes to retire, he is still working, and I consider it inappropriate to base my decision on the duration of his obligation to pay spousal support on an event which has yet to occur, and may not actually occur for some time. Quantum of retroactive support 2019 [88] For 2019, the respondent will pay $3,748 a month for the months of August through December, less credit of $1,700 a month for payments he made for the claimant's housing-related and other expenses. His total obligation for 2019 is $10,240, less 35% discount to account for taxes, for a total of $6,656. 2020 [89] For 2020, the respondent will pay $3,471 a month for the months of January through December, less credit of $1,700 a month for payments he made for the claimant's housing-related and other expenses. His total obligation for 2020 is $21,252,

less 35% discount to account for taxes, for a total of $13,814. 2021 [90] For 2021, the respondent will pay $2,488 a month for the months of January through December, less credit of $1,700 a month for payments he made for the claimant's housing-related and other expenses. His total obligation for 2021 is $9,456, less 35% discount to account for taxes, for a total of $6,146. 2022 [91] For 2022, the respondent will pay $3,273 a month for the months of January through December, less credit of $1,700 a month for payments he made for the claimant's housing-related and other expenses; as well as for his payments pursuant to the April 2022 order. His total obligation for 2022 is $12,276, less 35% discount to account for taxes, for a total of $7,979. 2023 [92] For 2023, the respondent will pay $3,726 a month for the months of January through December, less credit of $1,700 a month for payments he made for the claimant's housing-related and other expenses; as well as for his payments pursuant to the April 2022 order. His total obligation for 2023 is $12,312, less 35% discount to account for taxes, for a total of $8,003. 2024 [93] For 2024, the respondent will pay $3,726 a month for the months of January and February, less credit of $1,700 a month for payments he made for the claimant's housing-related and other expenses; as well as for his payments pursuant to the April 2022 order. His

total obligation for January and February is $2,952, less 35% discount to account for taxes, for a total of $1,919. [94] In total, the respondent will pay the claimant $44,517 for retroactive spousal support. Quantum of prospective support [95] For the purposes of prospective support from the time of trial, I consider it fair to set the claimant's income at $30,000 a year, based on her employment in 2022 and 2023, and her pension income; and the respondent's income at $110,000, based on averaging of his income between 2019 and 2023. [96] The respondent's average annual income from 2019 to 2023 was $108,391. In 2021, it was $93,342. Counsel for the claimant noted in her submissions that it is curious that the respondent's income in 2021 was lower than in other years, which I took as a reference to the fact that 2021 was the year in which the claimant filed her notice of family claim. I draw no inferences and make no finding about the reason the respondent's income was lower in 2021, but because it was significantly lower than in the other years, I consider it appropriate to treat it as an outlier year, and exclude it from his income for averaging purposes. [97] The respondent's average annual income for 2019, 2020, 2022 and 2023 was $112,153. [98] I find that setting the respondent's income at $110,00 a year is fair, because it is almost exactly mid-point between $108,391 and

$112,153. [99] Application of the Guidelines "without child support" formula results in the following ranges, for an indefinite duration: Low Mid High $2,500 $2,916 $3,242 [100] For the reasons already stated, I find it appropriate to locate spousal support at the high end of the range. Orders [101] I make the following orders: 1. Rusty Malcom Kammerer is a resident of British Columbia, and has a gross annual income of $110,000.

2. Christine Joan Kammerer, also known as Christine Joan Graham, is a resident of British Columbia, and has a gross annual income of $30,000.

3. Rusty Malcolm Kammerer will immediately pay Christine Joan Kammerer, also known as Christine Joan Graham, the sum of $44,517, for retroactive spousal support.

4. Commencing March 1, 2024, Rusty Malcolm Kammerer will pay Christine Joan Kammerer, also known as Christine Joan Graham, the sum of $3,242 a month, for prospective spousal support, for an indefinite period of time. Costs [102] I award costs to the claimant. "B. Smith J." B. SMITH J.