Kucko v. Summers

2011 BCSC 1436 Kucko v. Summers

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kucko v. Summers, 2011 BCSC 1436 Date: 20111025 Docket: 44985 Registry: Kamloops Between: Maciej Kucko Claimant And Crystal Gayle Summers Respondent Before: Master McDiarmid In Chambers Reasons for Judgment Maciej Kucko appearing on his own behalf Counsel for the Respondent (Applicant): J.A. Janzen Place and Date of Hearing: Kamloops, B.C. October 3, 2011 Place and Date of Judgment: Kamloops, B.C. October 25, 2011 [1] On September 8, 2011, Crystal Gayle Summers (the "applicant") filed a notice of application seeking: a) Interim spousal support commencing December 1, 2011, in an amount "as is appropriate under the Spousal Support Advisory Guidelines" [SSAG]; b) An order restraining the claimant, Maciej Kucko (the "claimant/respondent") from disposing of, encumbering, assigning or dealing with family assets; and c) An order that the claimant/respondent provide funds as an interim distribution of assets in a sufficient amount to obtain an expert report to be used to determine the appropriate income of the claimant/respondent and the value of the claimant/respondent's business know as Kucko Welding. [2] At the hearing, I heard no submissions with respect to the restraining order, nor the order that funds be provided as an interim distribution of assets. [3] The claimant/respondent appeared without legal counsel, but was accompanied

by Mr. A. Duczak. Mr. Duczak sat in the body of the courtroom. During breaks he met with the claimant/respondent. It seems to me that Mr. Duczak's assistance was useful in clarifying the claimant/respondent's submissions, and I thank him for his attendance and help he provided to the claimant/respondent. [4] During submissions, applicant's counsel clarified that she was seeking a restructuring of spousal support, with spousal support being requested to be paid for one year from August 2011, to and including July of 2012 in the sum of $1,500.00 per month. I was provided with a DivorceMate calculation based on income of $105,000.00 annually for the claimant/respondent, nil for the applicant, using a "without child support" formula, with a length of marriage/cohabitation of three years utilizing the applicant's age at separation (28) years and the claimant/respondent's age (33). [5] The DivorceMate calculation sheet provided to me shows a range of spousal support of $394.00 to $525.00 per month for the duration of 1.5 to 3 years from the date of separation. Applicant's counsel submitted that I should take into account the circumstances and restructure the payments so that they would result in a total payment of spousal support of $18,000.00, paid at the rate of $1,500.00 per month for 12 months. [6] The relevant facts, apart from the claimant/respondent's income, are not much in

dispute. The affidavits filed by each party contain many statements which are contradicted by the other party, but most of the contradictory statements are of limited relevance to this application. [7] The applicant deposes that she commenced cohabiting with the claimant/respondent in our about July, 2007. The claimant/respondent contradicts this; he states that he commenced living with the applicant at her grandmother's at the end of December, 2007. The applicant's 2007 income tax return is attached as exhibit A to her affidavit #2, dated 2008/06/02. In the section in this tax return entitled "Your marital status on December 31, 2007" there are six boxes; box 2, left blank, is for "Living common law"; box 6, marked with an X is for "Single". Based on the material before me, I find that the cohabitation commenced at the end of December, 2007. [8] The parties became formally engaged in mid-October, 2008. The applicant and the claimant/respondent used different words to convey the same plan with respect to having a family. The applicant states "I had advised Maciej that I did not want to start a family until we were married. My goal was that we would be debt free (apart from the mortgage) prior to having children. However, I became pregnant on or about July 15, 2009. [9] The claimant/respondent deposes "Neither I nor Crystal wanted to start a family until after we were married

and a little more caught up financially. Sometime in July we found out that we were pregnant. Even though we were not ready for it I was extremely happy." [10] From this I conclude that both parties planned on having children although the applicant became pregnant prior to when both parties had been planning for children. [11] The parties married on August 29, 2009. At that time, the applicant was working in her own hair salon in Barriere, B.C. On her 2007 tax return, the applicant reported gross business income of $84,402.00 and net business income of $8,649.00 for that year. For 2008 she reported gross business income of $93,757.00 and net business income of $25,989.00. For 2009 she reported gross business income of $76,973.00 and net business income that year of $14,807.00. [12] In 2008, the claimant/respondent was assessed tax based on total income of $36,092.00 and net income of $34,479.00. In 2009, the claimant/respondent was assessed tax based on total income of $50,528.00 and net income of $48,410.00. For 2010, he has provided a statement of business or professional activities which showed gross sales of $123,628.26, and net income of $79,976.68. The difference of $43,651.58 includes deductions for motor vehicle expenses of $13,137.74, a claimed capital cost allowance of $11,935.87, a claim for business use of home expenses of $2,837.56 and deductions of telephone and

utility expenses of $1,625.65. These deducted amounts total $29,536.82. The applicant submits that I should impute approximately $25,000.00 of these deducted amounts as income, to arrive at claimed net income in the amount of $105,000.00, which the applicant submits ought to be the income to be used to determine spousal support. [13] The affidavits depose to respective views of events following the marriage which indicate problems prior to January of 2010. On January 9, 2010, Lukasz was born three months premature. His birth weight was one pound eight ounces. He was on life support for the next six and a half months [14] Following Lukasz's birth, the applicant deposes that she was diagnosed with severe post partum depression. [15] After what must have been an agonizing mutual decision to cease life support, Lukasz passed away on July 21 (the claimant/respondent deposes July 23) 2010. The claimant/respondent deposes "It was the hardest day of my life". [16] After Lukasz's death, the applicant deposes to severely strained relations with members of the claimant/respondent's family. Similar animosity on the part of the applicant's family toward the claimant/respondent is deposed to by him in his affidavit [17] Shortly after Lukasz's death, the parties (unsurprisingly given the grief and resulting stress that event must have caused to both of them) had altercations and briefly

separated. With the assistance of friends they reconciled in early August of 2010. That reconciliation was short lived. On November 10, 2010, the parties separated. Although both parties depose in their affidavits to events leading up to the separation those events are not particularly relevant to the application before me. [18] Since the separation, the applicant has sought assistance from the reproductive mental health clinic at Surrey Memorial Hospital. Exhibited to her affidavit is a letter dated November 26, 2010, from Dr. S.C. Saffy, a psychiatrist, who writes "Crystal is naturally still mourning the loss of her son, and the bereavement process has compounded her depressive symptoms". On December 3, 2010, her family physician, Dr. Clare, wrote a brief note stating "THIS PATIENT IS MEDICALLY UNFIT TO WORK". That note was followed up by another note dated April 27, 2011 where Dr. Clare writes: THIS IS TO CONFIRM THAT THIS PATIENT IS SUFFERING FROM A MAJOR GRIEF REACTION WITH ASSOCIATED ANXIETY. SHE IS IN NO FIT STATE TO BE ABLE TO CONFRONT HER EX-HUSBAND OR DEAL WITH ONGOING LEGAL ISSUES AT THIS STAGE. [19] Attached to the applicant's affidavit is a medical/legal report from Dr. Wesley Buch, a psychologist. He writes: Ms. Summers has just begun psychological treatment with me following a period of burnout related to a series of tragic events - the death of her baby due to

respiratory failure over a 6.5 month period, the breakup of her marriage and the dissolution of her business. The consequence of these stressful life events led not only to burnout but then to depression. Ms. Summers is currently clinically depressed. The severity of her depression is moderate... Ms. Summers' depression has marked anxiety features. She cannot tolerate normal stresses and strains, such as those associated with her work as a hairdresser/aesthetician. She requires a period of respite from the workforce while she undergoes psychological and medical treatments for her depression. During this time, she would benefit from a hopeful and encouraging focus, such as some upgrading to her profession. This use of her time would be entirely under her control and would therefore counter her emotional experience of helplessness - an important contributor to the maintenance of her depression. Schooling will also provide Ms. Summers with a sense of accomplishment during a time when she questions herself and needs something to look forward to. [20] The applicant had a successful business in Barriere, B.C. with a large clientele. Although she tried to work following the death of Lukasz, she was not able to earn any appreciable income. Her gross business income for 2010 was $2,657.00. I am satisfied that her inability to earn appreciable income was directly related to the

psychiatric and psychological problems suffered by her following the birth and subsequent passing of Lukasz; these problems disabled her. [21] The applicant deposes that she has made arrangements to return to school to the Blanche MacDonald Centre to take a one year Global Make-up Artistry Diploma Program. She deposes "I am now able to do this, but not work, because I will have more control over my student life than my work life and it will give me a sense of accomplishment." [22] The claimant/respondent continued to work in his welding business in Fort St. John, B.C. until he received notice of this application. He deposes: After I read Crystal's statement and her application I almost had a nervous breakdown and was forced to stop working. At this point I was becoming a danger to myself and my co workers. I have since moved back to Kamloops to try and get the help that I have needed for a long time. I am currently under the care of Dr. J.F. Malan in Kamloops and have been advised not to work, and have been prescribed two medications. Venlafaxine which is an anti depressant and Zopiclone to help me sleep. I have also attended Kamloops Mental Health and Substance Use Intake and have been referred for counselling. [23] He attaches to his affidavit a doctor's note dated September 20, 2011, which states: "Maciej is going through an extremely stressful time period unable to work for

an undetermined time period - currently under medical supervision with medication use." [24] He attaches the prescription note for the two pharmaceuticals. He also attaches a letter sent to "Legal Aid" dated September 21, 2011 stating: "This letter is to confirm that Mr. Kucko has attended Kamloops Mental Health and Substance Use Intake for an assessment and has been referred for counselling services." [25] In his affidavit, he deposes to being unable to repay a debt to his parents in the amount of $32,000.00. No mention is made of this debt on his form F8 affidavit sworn July 15, 2011 before his then counsel. The debt appears to be corroborated by the form F8 affidavit sworn by the applicant on July 6, 2011, where on page nine she deposes to "claimant's debt to Stanislaw Kucko and Jolanta Kucko - $42,000.00." The claimant/respondent deposes that he has transferred assets to his parents as partial payment of the loan. [26] Although not in his affidavit, the claimant/respondent, in response to a question from the bench, stated that he had to come back to Kamloops and had to quit his lucrative self-employment in Fort St. John. He says he doesn't know when he will return to work. He advised the court that he has a welding ticket that allows him to work as a qualified welder in British Columbia and will be seeking welding work in the Kamloops area. [27] Based on the evidence before

me, it seems that there was a loan from the claimant/respondent's parents to him. However, the cessation of employment and the timing of transferring assets to repay this loan, occurring right after the claimant/respondent was served with this notice of application, is troubling. When I consider all the facts here, the medical evidence put forth by the claimant/respondent, it does not satisfy me that he is unable to work, and unable to generate income at or near the level achieved prior to his cessation of work. [28] In order to make a determination of spousal support, I first need to consider the issue of entitlement. [29] I find that the applicant cannot work at present. I also find that the reason she cannot work is because of an illness (depression) that is related to the marriage. On the evidence before me the depression arises from the premature birth, short life and passing of Lukasz. I find also that there is a need for support. That need arises from the marriage. During the 10 months prior to separation, there was a significant income disparity between the parties and that disparity continues. [30] Based on these facts, I find the applicant is entitled to make a non-compensatory claim for spousal support. [31] Compensatory claims arise when there is an economic loss or disadvantage because of the marriage. Here the economic loss is because of the post-partum depression

and then further disabling depression following Lukasz's death. The economic loss arises out of the marriage and is sufficiently proximate to entitle the applicant to make a compensatory claim for spousal support as well. [32] Next, I need to determine the relative earnings. I am not entitled to take into account social assistance received by the applicant. I am satisfied that she has no income as that term is used in determining spousal support. [33] Imputing income involves different considerations for spousal support than for child support. [34] The evidence before me is that the claimant/respondent lived in Barriere and operated his business out of that community. The bulk of his work was in Fort St. John. Undertaking work so far from the home base undoubtedly involved significant motor vehicle expenses, significant telephone expenses, and significant wear and tear on capital equipment justifying a deduction for imputation of income purposes of approximately half of the capital cost allowance. No doubt some of the expenses associated with occupying the home were utilized as cash outlays for the use of the business. [35] Corporate payments and expenses that are reasonable can be recognized in determining income for interim spousal support. Examinations for discovery have not taken place, and I have limited materials before me. I think it is appropriate to add back in

$2,000.00 from the business use of home expenses deduction, $6,000.00 (approximately one-half) of the capital cost allowance deduction, $3,000.00 from the motor vehicle deduction and $1,000.00 from telephone and utilities. This results in an addition of $12,000.00 to the approximate net income claimed of $80,000.00, resulting in imputed income of $92,000.00. [36] I am doing the best I can with the evidence before me, I find that for the purposes of determining spousal support, the claimant/respondent has an annual income of $92,000.00. The SSAG use 1.5% to 2% of the difference between the spouses' gross incomes for each year of marriage/cohabitation to determine the range of support. In this case, the period of cohabitation was two years and ten months. That calculates to a low of $3,910.00 per annum ($325.83 per month) to a high of $5,213.33 (434.44 per month) per annum. [37] The duration is .5 to one year of spousal support for each year of marriage/cohabitation, so the range is 17 months to 34 months. That calculates to total support of $5,539.17 to $14,771.10. [38] These calculations were done without taking into account income tax or other considerations, for the purposes of determining a rough range of support. [39] Typically, there are limited support obligations for a marriage of this short duration without children. I am entitled to look at compensatory exceptions. I

am also entitled to look at restructuring and in particular, restructuring taking into consideration the applicant's disability. I am also entitled to look at the applicant's basic needs and hardship being experienced by the applicant. [40] Taking all of these factors into account, and keeping in mind the submission of the applicant's counsel, that the support should be restructured to dovetail with the one-year diploma program, which the applicant is attending, I order that the claimant/respondent, to pay to the applicant spousal support in the amount of $1,200.00 per month, commencing October 1, 2011, for a total of 12 months, with the last payment to be paid September 1, 2012. [41] Although not spoken to, the notice of application seeks a s. 67 declaration. [42] One matter which is troubling has to do with a dispute over Lukasz's cremated remains. The applicant does not share the claimant/respondent's religious beliefs. He and his family are devout Roman Catholics; her religious beliefs are not stated, but it is clear that as was stated by her counsel, the applicant has a "different belief system" than that of the claimant/respondent and his family. There was some evidence about what was supposed to happen with Lukasz's cremated remains. The applicant has retained Lukasz's ashes and has refused to provide a share of the ashes to the claimant/respondent. During a break,

counsel for the applicant obtained instructions from her client that the applicant was prepared to provide one-half the ashes to the claimant/respondent "when this is all over" presumably referring to the court proceedings which are set for trial in January, 2012. [43] In the circumstances, there will be an order that both the applicant and the claimant/respondent be restrained and enjoined from disposing of, encumbering, assigning or in any similar manner dealing with family assets or of any assets in which the applicant or the claimant/respondent has or may have an interest pending final determination of this action without the consent in writing of the other party without further order of this court. While this order is directed primarily at the claimant/respondent, who holds the bulk of the financial assets, is also directed at the applicant, particularly with respect to Lukasz's ashes. While it is in many ways disrespectful to refer to those ashes as an asset of the marriage, for the purposes of this restraining order, I think they should be considered such. This does not describe their true importance to both parties. [44] I heard no submissions with respect to the order sought with respect to provision of funds. That part of the application is dismissed with liberty to the applicant to reapply on notice. [45] The applicant has been largely successful in obtaining an order for spousal support. She is entitled to the costs of the application in any event of the cause. "R.W. McDiarmid"

MASTER MCDIARMID