M.E.K. v. M.K.K.

2014 BCSC 2037 M.E.K. v. M.K.K. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: M.E.K. v. M.K.K., 2014 BCSC 2037 Date: 20141022 Docket: E31891 Registry: New Westminster Between: M.E.K. Claimant And M.K.K. Respondent Before: The Honourable Madam Justice Harris Oral Reasons for Judgment Counsel for the Claimant: C. Hunter R. Robb Counsel for the Respondent: S. Nejat Place and Date of Trial/Hearing: Vancouver, B.C. October 15, 2014 Place and Date of Judgment: New Westminster, B.C. October 24, 2014 [1] In this application the plaintiff seeks to vary the order of Mr. Justice Bernard, pronounced March 12, 2012 to award spousal support to the plaintiff retroactive from July 2012 to October 2014, payable thereafter, monthly on an indefinite basis. [2] The plaintiff makes the application pursuant to s. 17 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.), on the basis of a material change in circumstances resulting from: 1. A marked decrease in the financial income of the plaintiff; 2. A significant deterioration in the plaintiff's mental health negatively affects the plaintiff's ability to work; and 3. An increase in the income of the respondent. [3] The plaintiff also claims that, having regard to the objectives set out in s. 7(7) of the Divorce Act that an award for spousal support is appropriate on both a compensatory and non-compensatory basis. Background [4] The decision of Mr. Justice Bernard, which the plaintiff seeks to vary, followed a four day trial. The plaintiff was self-represented and the respondent was represented by counsel. At trial, the relief sought included an order for a divorce, child support and spousal support. [5] In considering the plaintiff's claims for spousal support, Mr. Justice Bernard found that the respondent earned $40,000; owned no assets of any significance, owed over $30,000 in debt, lived alone, modestly, and had held his current position for ten months. With respect to the plaintiff, Mr. Justice Bernard found that she was a bright, articulate and capable individual who earned an income equivalent to $37,200. While he stated that she suffered from "chronic depression", "stomach ulcers", and "early stage arthritis in her hands" and had been committed under the Mental Health Act, R.S.B.C. 1996, c. 288, in 2007, he found that she was relatively well at the time of trial and was employed as a manager of an apartment building, which position she had held since December 7, 2010. [6] Ultimately, Mr. Justice Bernard concluded that there was no reasonable basis for a spousal support order or for the payment of arrears of support resulting from an interim spousal support order which had been made years earlier on an ex parte basis. He noted that the parties had, at present, "remarkably similar financial and living circumstances" and that, while he earned slightly more than she did, he contributed to the care of their youngest child, while the plaintiff had the benefit of some financial assistance from their adult daughter. [7] Significantly, in his decision, the learned trial judge commented that, given the unpredictability of the future and somewhat more precarious situation of the plaintiff, there may be a foundation for a future "needs-based" support claim. He, therefore, ordered the parties to exchange income tax returns and to inform one another of any contribution for the support of their younger child - who was living in Poland with her grandparents. Issues [8] The essential issues in this case are as follows: 1. Has there been a material change in circumstance since the decision of the trial judge? 2. Is the plaintiff entitled to spousal support on a compensatory or non-compensatory basis having regard to the factors set out in s. 17(7) of the Divorce Act? Law [9] The parties did not disagree on the legal principles which guide my consideration of these issues. [10] The test for variation of a spousal support order, as set out in s. 17 of the Divorce Act, engages a two-step process. [11] First, the court, must in accordance with s. 17(4), be satisfied that there has been a change in the condition, means, needs or circumstances of either former spouse since the prior order was made. The meaning of a "change in circumstance" was considered by the Court of Appeal in K.D. v. N.D., 2011 BCCA 513, where the court said it means a "substantial, unforeseen and continuing change that, if known by the judge who made the prior order, would have led to a different order". [12] If this test has been satisfied, the court must then consider whether the material change justifies a variation of the earlier order having regard to the four objectives in s. 17(7) of the Act: (a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [13] Having regard to these objectives, the court must consider the condition, means, needs and other circumstances of each spouse, including the factors set out in s. 15.2(4): (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. [14] In Bracklow v. Bracklow, [1999] 1 S.C.R. 420, the Supreme Court of Canada identified three grounds for spousal support: compensatory, non-compensatory and contractual. [15] As noted above, the claim for spousal support in this case was advanced on compensatory and non-compensatory principles, although the primary basis advanced was non-compensatory. [16] The purpose of compensatory and non-compensatory spousal support is summarized by our Court of Appeal in Chutter v. Chutter, 2008 BCCA 507 at paras. 50 - 61. [17] In essence, the compensatory basis for relief recognizes the sacrifices made by a recipient spouse in assuming primary childcare responsibilities, often resulting in lower earning potential and future financial success, as well as the economic advantages enjoyed by the other partner as a result of the recipient spouse's efforts. [18] Non-compensatory support is grounded in the social obligation model of marriage and embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls in her former partner rather than the state. Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown. "Needs" go beyond the necessities of life and varies according to the circumstances of the parties, including the relative standards of living following marriage breakdown. Has There Been a Material Change in Circumstances of Either Spouse Since the Time of Trial? [19] As noted above counsel for the plaintiff relies on three main events which she submits constitute a material change in circumstances: the decrease in income of the plaintiff; the deterioration in the mental health of the plaintiff; and the respondent's increase in income. [20] Counsel for the respondent does not dispute that the plaintiff's income has decreased and that her health has deteriorated, but argues that the circumstances were known by the trial judge. The evidence at trial was that her income has always fluctuated. With respect to the increased income of the respondent, counsel submits that the respondent's financial situation has not changed significantly given his increased cost of living and debt obligations. [21] I will consider the evidence in relation to each of these circumstances. 1. Income of the plaintiff [22] The evidence of the plaintiff supports the conclusion that the plaintiff's income has decreased significantly since the trial in 2012. At the time of trial her 2012 income was determined to be $37,200. Shortly after trial she lost her job, so her actual income in 2012 was $23,163. Her income further declined in 2013, when she earned $12,606, largely consisting of CPP Disability payments. [23] In 2014, she is projected to earn $22,906, which amount includes $4,200 in social assistance which the plaintiff contends should not be included in determining her income for the purpose of calculated spousal support under the Spousal Support Advisory Guidelines. [24] It is significant that, following the loss of her caretaker job in 2012, she sought other employment but was unable to maintain steady employment and was terminated from the three positions she obtained after trial, including the last position she held at Paladin Security working nights as a security guard. She is currently unemployed, and given her serious mental health condition, there is evidence that she is not presently able to work. 2. Mental health of the plaintiff [25] The evidence of the plaintiff's psychiatrist, Dr. Rana is that the plaintiff suffers from schizoaffective disorder and post-traumatic stress disorder (PTSD). In Dr. Rana's opinion, the plaintiff's mental health condition deteriorated as a result of the marital breakdown and her subsequent involvement in this family law litigation, which caused significant stress, and led to a significant decline in her mental health. Dr. Rana explained that, in her opinion, participation in the adversarial process of litigation is particularly problematic for a person like the plaintiff, who suffers from schizoaffective disorder. [26] In the plaintiff's case, Dr. Rana stated that the plaintiff was fixated on her relationship with the respondent and the progress of her litigation. This resulted in an exacerbation of her condition to the extent that, following the trial, Dr. Rana considered it necessary to civilly commit the plaintiff for treatment at the Burnaby Hospital in May 2013. She was again committed in September of 2014. [27] In Dr. Rana's opinion the plaintiff's mental health situation remains "precarious" and she "continues to suffer from extreme emotions and paranoia", requiring regular monitoring and treatment. Dr. Rana states that she does not consider the plaintiff is presently able to work. She is now on CPP Disability pension and lives in subsidized housing for persons with mental health conditions. 3. Respondent's circumstances have improved [28] At trial, the respondent was found to have an income of $40,000. His income for the following year was $56,273. Since the trial, the respondent has now remarried and has been living with Ms. Chavez, who is employed as a teacher. The respondent deposes that he and Ms. Chavez keep their finances separately. Nevertheless, the evidence from the respondent's daughter supports the conclusion that his standard of living in Arizona has improved significantly since the time of trial. His expenses have increased accordingly. He resides in a two bedroom gated community with a pool and gym. Although he continues to have significant debts, he is able to share living expenses with Ms. Chavez. [29] I conclude the evidence supports that there has been an improvement in the respondent's financial situation. There is now a significant disparity in the economic circumstances of the parties. Material change in circumstances established [30] Based on the above state of affairs, I am satisfied that there has been a material change in circumstances since the time of trial. [31] Although counsel for the respondent says that the evidence before Mr. Justice Bernard was that her income varied from year to year, in my view, the relative decline in her income compared to the respondent's increase in income was so significant that it can no longer be said that their incomes and living expenses are "remarkably similar". I accept counsel for the plaintiff's submission that the decline in the plaintiff's income is sufficient, by itself, to constitute to a material change in circumstance: Powell v. Levesque, 2014 BCCA 33. [32] However, I note that in this case the change in the parties' income is not the only circumstance that has changed since trial. The plaintiff's decline in income in this case must be considered in the context of her mental health condition, which according to Dr. Rana, has deteriorated such that she has been committed twice in the last two years and can no longer work. [33] Although counsel for the respondent submits that her history of mental health problems was known to Mr. Justice Bernard and referred to by him in his judgment, I note that the mental health conditions referred to in his judgment were not the same as have been diagnosed by Dr. Rana following the trial. At the time of the trial, the court referred to her having "chronic depression" whereas the subsequent diagnosis was schizoaffective disorder and PTSD, which conditions in Dr. Rana's opinion, were caused by the stress associated with her involvement in the litigation as well as the breakdown of her marriage. [34] In coming to the conclusion that the plaintiff's worsening mental health condition and present inability to work constitute a material change in circumstance. I have considered the judgments of this Court in Basi v. Basi, 2007 BCSC 1814 and the Ontario Supreme Court of Justice in Echlin v. Echlin, 2005 CanLII 35682. [35] In the Basi case the court accepted that the defendant's decline in mental health condition was a material change in circumstance and relied on the defendant's eligibility for a disability pension following trial in relation to his schizophrenia. [36] Similarly, in Echlin, the court found that there was a material change in circumstance where, even though the plaintiff's mental health condition was known at the time of settlement, it was not anticipated at that time that she would become unemployable due to her worsening mental health. In that case, the court also found that the plaintiff's obsession with how she was treated in the divorce proceeding was a "direct result of the breakdown of the marriage". [37] As I am satisfied that the plaintiff in this case has established a material change in her financial means, her mental health and the respondent's financial means which is substantial, unforeseen and continuing, I turn to the issue of the plaintiff's entitlement to spousal support. Entitlement to Spousal Support [38] I recognize that compensatory and non-compensatory grounds for spousal support are overlapping and that I am not called upon to decide on one basis for support to the exclusion on the other. Rather, I am to strike a balance that best achieves a just result. [39] In considering the claim for spousal support on compensatory principles, I have considered the nature of the marriage between the parties. [40] The parties had a 15 year marriage. They were married in 1988 in Greece and moved to Canada in 1990. They separated in 2003 and were divorced in 2012. The respondent moved to Arizona following the separation. [41] There were two children of the marriage, the first child was born in 1989 and the second child was born in 2001. [42] The respondent holds a Masters degree in Forest Engineering, which he obtained in Poland. The respondent has been employed for the last 11 years as a "senior checker" with Stringer Bridge and Iron. [43] The respondent was the primary income earner during their marriage. The plaintiff maintained the household and took care of the children. She worked part-time in low skilled jobs as a cleaner, dishwasher, janitor and caretaker. Their marriage was a "traditional" one. [44] Following separation, the respondent did not have regular contact with the children. He has not seen his oldest daughter since 2006. The younger daughter has lived with her grandparents in Poland since 2006. [45] In my view there is some basis in the evidence to support an award of spousal support on compensatory principles: · The plaintiff was the primary caregiver for the two children during the marriage and responsible for maintaining the household. · The respondent gained economic advantage by having the plaintiff remain as the primary caregiver. · The respondent was able to advance his career during the marriage, for example, by taking a "consulting detailing" course which is the type of work he has done for most of the time he has lived in Canada and the United States. [46] The plaintiff has not had the opportunity to advance her career and was effectively confined to low skilled, part-time work as a consequence of her role during the marriage. Applying the principles in Skelly v. Skelly, 2007 BCSC 810, there is evidence which suggests spousal support on compensatory grounds. [47] That said, the primary basis advanced for spousal support was on a non-compensatory needs basis. Significantly, the prospect of the plaintiff making such a claim was recognized by Mr. Justice Bernard in his decision at para. 50, where he stated that "there may be a foundation for a future 'needs-based' support claim". [48] I find the relative circumstances of the plaintiff and respondent are now "remarkably dissimilar". Since the trial the plaintiff has become unemployed and lives on disability benefits. She is presently unable to work due to the deterioration in her mental health. She has been homeless for periods and resides in subsidized housing. Since the trial, she has twice been committed to hospital for extended periods due to her schizoaffective disorder and PTSD. [49] In contrast, the respondent's income has significantly increased, he has significantly improved his living accommodations, he has remarried and is able to share expenses in their dual income family. While he has significant debts, I note that a large component of his debt is to his former girlfriend, Cynthia McDaniel ($25,000) and to his current wife ($16,000) for legal fees and emergency dental work. No particulars were included as to the debt to Ms. McDaniel. [50] Further, as counsel for the plaintiff points out, the respondent has inflated his expenses by including a salary advance as an expense and by stating that he pays $350 a month as support for his youngest daughter. His cheques for child support disclosed payments averaging $164 in 2012, $211 in 2013 and $250 in 2014. I conclude he has the ability to pay spousal support to the plaintiff, whereas the plaintiff is currently unable to support herself. Entitlement to spousal support established [51] Counsel for the respondent submits that the respondent should not be burdened with the responsibility for the deteriorating mental health of the plaintiff and refers to the decision of this court in T.N.P v. R.P., 2004 BCSC 1627. He submits that the "thin-skull" doctrine applies in this case, as the plaintiff was particularly vulnerable to mental health problems throughout the marriage. [52] However, that case involved a very short marriage, where the parties lived together for only one year. Whereas in this case there was a 15 year marriage with two children, and there is no evidence that the plaintiff had mental health issues prior to the marriage. Further in that case, despite the short duration of the marriage, the court awarded spousal support for a period of time. [53] I conclude that, in all of the circumstances, the plaintiff is entitled to spousal support and that the Spousal Support Advisory Guidelines should be used to determine the quantum of support, which I conclude should be at the mid-point of $1,047 per month. Although the plaintiff is relatively young and should be able to return to work in the future, given the precarious nature of her mental health currently, I consider that this amount should be paid on an indefinite basis, with the plaintiff having an obligation to provide the respondent with an update as to her mental health before November 1st each year and both parties having an obligation to report their income by November 1st of each year. [54] In considering the plaintiff's claim for a retroactive award, I have considered the guiding factors as described in Miolla v. Miolla, 2014 BCSC 587 at paras. 84 - 88. [55] First of all, I note that while the plaintiff filed her initial variation application in July 2012, she did not have the requisite material to support her application - until February 2013 at the earliest. And although the plaintiff clearly had financial need, which favours a retroactive support order, I must also consider the hardship on the respondent of paying over two years of retroactive spousal support as sought by the plaintiff. In that regard, I note that the plaintiff withdrew her request for lump sum spousal support in light of the information provided on the respondent's financial situation, including the evidence of his poor credit rating and debts. [56] I have also considered that it is the respondent who has been making support payments for his youngest daughter and that she is living with his parents in Poland. An award for retroactive spousal support must not compromise the respondent's ability to pay child support. [57] In these circumstances, I exercise my discretion to set the plaintiff's retroactive award to commence from March 1, 2014 to October 31, 2014 payable at $100 per month. In my view, this date and the graduated payment schedule balance the plaintiff's financial need for support, the continued needs of their youngest daughter, and the respondent's financial situation. Conclusion [58] The plaintiff's application to vary spousal support is granted and the plaintiff is entitled to spousal support in the amount of $1,047 per month from November 1, 2014. There will also be a retroactive award of spousal support from March 1, 2014 to October 31, 2014, payable at $100 per month, for a total monthly amount of spousal support owed by the respondent to the plaintiff of $1,147 - until such time as the retroactive award is satisfied. [59] The parties shall provide information as to their respective incomes to one another by November 1st of each year, and the plaintiff shall provide to the respondent an update as to her mental health from her treating psychiatrist by November 1st of each year. "Madam Justice Harris"