McClaughry v. McClaughry

2008 BCSC 982 McClaughry v. McClaughry

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: McClaughry v. McClaughry, 2008 BCSC 982 Date: 20080724 Docket: Vancouver Registry: E072326 Between: Maureen Wing Che McClaughry Plaintiff And Lester Andrew McClaughry Defendant Before: The Honourable Madam Justice Allan Reasons for Judgment The Plaintiff Appeared on her own behalf The Defendant Appeared on his own behalf Date and Place of Trial: July 21, 22, and 23, 2008 Vancouver, B.C. [1] This matrimonial action came before me on Monday, July 21, 2008 and was set for seven days. The issues include custody, access and guardianship, child and spousal support, and division of assets. Both parties are representing themselves. [2] The parties were married on July 15, 1990 and separated on May 16, 2007. They have two sons: Connor aged 13 and Liam aged 11. The plaintiff, Ms. McClaughry, is 53 years of age and works part-time as a hairdresser, with an annual income of $20,690. The defendant, Mr. McClaughry, is 51 years old and works as an automotive instructor. He estimates his Guideline income as $52,046. [3] In March 2008, the parties entered into a care plan by consent. Since that time, they have shared custody of their sons who spend Sunday, Monday and Tuesday with their mother, transfer on Wednesday, and spend Thursday, Friday and Saturday with their father. The defendant is still entitled to reside in the basement of the

matrimonial home where he spends part of his time when he has the children. He spends part of his time at the home of his girl friend, both with and without the children. [4] I determined on July 22, 2008 that it was impossible to proceed with the trial. Ms. McClaughry was 10 minutes late for trial on July 21; 50 minutes late for the morning session on July 22, and 65 minutes late for the afternoon session, despite being told repeatedly that she must attend on time. She was unprepared and unable to locate or produce documents that would advance her case. By the end of the second day of trial, Ms. McClaughry had not completed her evidence in chief. [5] On July 22, I granted the divorce subject to s. 12 of the Divorce Act. I ordered that the care plan regarding the children remain in place on an interim basis. I advised the parties that I would hear submissions from them on July 23 with respect to the issues of interim spousal and child maintenance. The balance of the issues would be adjourned. I noted that as Mr. McClaughry had filed a counterclaim, he was in a position to reset the matter for trial and, in essence, pursue the matter as the plaintiff. Spousal support [6] Spousal support is determined primarily by the spousal support advisory guidelines, which take into account, the age of the recipient, the length of the marriage, and the incomes of the parties. In this case, I

fix the guideline income of the plaintiff at $20,540.35. The defendant submits that she is under-employed and that a greater income should be imputed to him. The plaintiff responds that she has been unsuccessful in her attempts to find additional employment. She also produced a recent letter from an orthopaedic surgeon to her family doctor indicating that she requires a rotator cuff repair surgery, which would necessitate about a four and one-half month absence from hairdressing. [7] I fix the Guideline income of the defendant at $56,000. That was both his approximate income in 2007 and approximates his average annual income over the past three-year period. The plaintiff notes that Mr. McClaughry earned $90,091 in 2004 and suggests that he could be earning that amount at present. She suggests that a greater income should be imputed to him, both because of that factor and because he should not be entitled to the deductions he claims because he is a self-employed contractor. However, the defendant submits that 2004 was an anomaly where he worked in excess of 50 hours a week because of the absence of other instructors to teach automotive courses. He says that his expenses claimed, such as his travel expenses are legitimate deductions. [8] Applying the relevant factors, the amount of spousal support under the Guidelines would range from $0 to $252. In this case, Mr. McClaughry

continues to pay the monthly mortgage payments of $946 and at least some of the utilities. He has extensive debts, partly because of this litigation and partly because of his continued contribution to the expenses of the household in which the plaintiff and children reside. In those circumstances, I find that he should not be required to pay any interim spousal support. Child Support [9] If Liam and Connor lived primarily with their mother, Mr. McClaughry would be required to pay $848 monthly under the Child Support Guidelines. However, as the parents share custody, the appropriate amount is $522 per month using the "simple setoff" method. I would reduce that amount to $350 as long as Mr. McClaughry continues to pay 100% of the mortgage. The statutory scheme for calculating child support presumes that the mother is paying the expenses of one household and the father is paying the expenses of yet another household. Mr. McClaughry should commence those payments on August 1, 2008 and continue them on the first of every month until further order of this court while Liam and Connor continue to be children of the marriage. [10] Until any further order of the court, the parties should pay for the children's special expenses, as defined in the Child Support Guidelines, according to their Guideline incomes as fixed above. [11] I note that Mr. McClaughry is making a disproportionately

high contribution to the family's expenses each month, even taking into account the fact that he need not pay interim spousal support and pays reduced child support. He is paying the plaintiff's portion of the mortgage which is approximately $500 and other expenses and preserving her share of the home. This inequity should be taken into account subsequently when the family assets are divided. Costs [12] As I indicated, the defendant is entitled to his costs for the three days of trial. Using the tariff in Appendix B, I find he is entitled to 45 units and at $110 a unit at Scale B, I award him costs in the amount of $4,950. They are to be paid to Mr. McClaughry when the division of the parties' assets is determined either by court order or settlement. The Solicitor's Lien [13] On July 18, 2008, Mr. Justice Halfyard granted the application of Mr. Jonas Dubas, former counsel for the plaintiff, a solicitor's lien for fees owing. It was a term of the order that Mr. Dubas return his client's file to her, which he did that day. It was a further term of the order that the parties notify Mr. Dubas of any adjournment of the trial. A copy of these reasons should be delivered to Mr. Dubas. "M.J. Allan J." _________ The Honourable Madam Justice Allan