N.P.T. v. L.M.E.D.

2016 BCSC 900 N.P.T. v. L.M.E.D.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: N.P.T. v. L.M.E.D., 2016 BCSC 900 Date: 20160520 Docket: E046303 Registry: New Westminster Between: N.P.T. Claimant And L. M. E. D. Respondent Before: The Honourable Mr. Justice Verhoeven Reasons for Judgment Counsel for Claimant: D.R. Greig Counsel for Respondent: E.T. Chapman Place and Dates of Trial/Hearing: New Westminster, B.C. January 18-22, 2016 March 11, 2016 April 21, 2016 Place and Date of Judgment: New Westminster, B.C. May 20, 2016 I. Introduction [1] The issues in this family case are: (1) the parenting schedule for two children, a girl, N., aged 13, (born in 2002) and a boy, C., aged 10 (born in 2005); and (2) the effect to be given to a separation agreement the parties made July 8, 2012. The primary issues in that respect are the claims of the respondent to spousal support and a share of the claimant's pension. [2] For ease of reference, I will refer to the claimant as the father and the respondent as the mother in relation to the parenting issues, and I will use the terms husband and wife in relation to the separation agreement, property and spousal support issues. [3] The parties have three children. The eldest, R., a girl, will be 19 years of age in June 2016. She was born in 1997. The parenting issues do not involve her directly. [4] The parties separated September 11, 2011, after a 19 year marriage. Although

their perspectives differ sharply, both parties say that the main reason the marriage ended was the effects of the mother's chronic alcoholism. [5] Upon separation, the mother moved out of the matrimonial home in Abbotsford that the parties had purchased together in 2007. [6] In the separation agreement the parties agreed that the mother would obtain the matrimonial home. Pursuant to the agreement she resumed residency there August 1, 2012. By then she had re-partnered. Her new partner, Mr. D., also moved into the home. They married a few months later, in January 2013. [7] When the mother resumed residency in the Abbotsford home pursuant to the arrangements agreed to in the separation agreement, the father moved to rental accommodation in Surrey, closer to his work in North Surrey. He has re-partnered as well. Since April, 2014 he has resided in South Surrey, with his new partner, Ms. J., in single family residence. [8] In the separation agreement the parties agreed to joint custody and joint guardianship of the three children, and that they would reside primarily with the mother. They agreed that the children would spend five nights per week with the mother and two nights per week with the father. [9] In April 2013 the father requested a change to the parenting schedule, whereby the children would reside with him three nights per week rather than two. The mother refused. She

says she spoke to the children and to Mr. D. about it, and the children were not in favour, so she refused. In April 2014 the father commenced these proceedings. The Notice of Family Claim ("NOFC") states that the father seeks primary residency of the three children with him. The NOFC refers to concerns for the children's welfare given the mother's chronic alcohol addiction. The mother's Response to Family Claim stated that there has been substantial improvement in relation to her past difficulties with alcohol. At the same time, she filed a Counterclaim seeking to preserve the existing five nights and two nights parenting schedule. She sought to have the separation agreement set aside under s. 93 of the Family Law Act, S.B.C. 2011, c. 25 [FLA], and sought spousal support in accordance with the Spousal Support Advisory Guidelines ("SSAG"), pursuant to both the FLA and the Divorce Act, R.S.C. 1985, c. 3 (2d Supp) [DA]. [10] In his Response to Counterclaim the father clarified his demand by stating that he sought three days per week with the children, and equal sharing of vacation times. At trial, the father submits that the two younger children should reside primarily with him (five days per week) and with their mother on weekends (two days per week.) He proposes that holidays, long weekends and vacation times be arranged between the parties in writing, with liberty to apply to

court in the event of disagreements. He relied on the separation agreement in answer to the spousal support claim. [11] In the separation agreement the mother gave up claims for spousal support and a share of the father's pension in exchange for the equity in the home. She also obtained a cash payment of $21,000 from the father, intended to reflect equalization of their RRSP savings. In the separation agreement the parties estimated the value of the equity in the home at the time at $24,000. [12] Dr. Michael Elterman was appointed by the court under s. 211 of the FLA to prepare an assessment with respect to the parenting issues. [13] In terms of overall decision-making responsibilities, Dr. Elterman recommends continuation of joint custody and guardianship. The parties do not disagree on this. The issue is the parenting schedule. [14] Dr. Elterman recommends an adjustment to the schedule, whereby C. would reside with the father from Friday afternoon to Monday morning on two weekends per month, then a weekend with his mother, and then return to his father for one full week (following the "off" weekend), thus residing with his father from Monday afternoon to the next Monday morning. N. would reside with her father for two nights on the three weekends per month that N. is with the father, from Saturday at 6 p.m. to Monday morning. [15] Dr. Elterman also strongly recommends that

both parents and their partners reduce the adversarial nature of their relationships by engaging in a three month counselling program. He states that the conflict is a stress on the children and harmful to them. There is no doubt that this is true. [16] The mother stated to Dr. Elterman that she would prefer primary residency of the children with her, with the children residing with the father on alternating weekends. In opening her counsel stated that she would be content with the schedule suggested by Dr. Elterman. [17] The father contends that the mother continues to have serious alcoholism problems and that she presents a risk of harm to the children, in particular with respect to driving. He argues that for this and other reasons the best interests of the children lies in a change to the parenting schedule so that N. and C. reside primarily with him and his new partner in south Surrey. A change in their schools would be required. [18] The father rejects the recommendations of Dr. Elterman as to the schedule. He says that Dr. Elterman has taken insufficient account of the mother's continued alcoholism and the associated risks of harm that she presents to the children. [19] He also contends that the schedule recommended by Dr. Elterman is impractical. The children attend school in Abbotsford. The mother refuses to drive the children for parenting exchanges. The father says

the suggested schedule would require him to drive an inordinate amount of hours. He states that during the week that C. is with him, he would be required to spend approximately 20 hours or more (depending on traffic and weather) driving to and from Abbotsford. He argues that the schedule is impossible for him to comply with given his own work hours and demands. II. Background [20] The father is a clinical social worker. He is employed by the Fraser Health Authority. He has not remarried yet but he indicates that he and Ms. J. have plans to marry. The mother is a qualified chef, but currently works as a cook at Abbotsford Regional Hospital, for a private company, Sodexo, that operates the kitchen facilities for the hospital. As noted, she married Mr. D. in January 2013. He works as a food service manager for the Salvation Army. [21] The parties agreed to a consent order for divorce made December 4, 2012, in separate proceedings. No collateral relief is provided for in the divorce order. The husband's NOFC filed in April 2014 relies on the FLA. The Counterclaim relies on the FLA as well as the DA. Counsel for the claimant contends that the issues in this case can be decided with reference only to the FLA. Counsel for the respondent made no specific submissions on this point, but as noted, the counterclaim seeks to have the separation agreement set aside under the FLA, and seeks

spousal support under the FLA and the DA. [22] The parties met in 1989 and began dating. They were married April 25, 1992. They began cohabiting at that time, in Vancouver. The father was 29, the mother was 22. [23] The father had obtained a diploma in radio broadcasting from BCIT in 1989. He worked as a nightclub disc jockey and a delivery driver but in the fall of 1992 he began studying for a degree in social work. He obtained a bachelor of social work in 1996 and a Master of Social Work at UBC in 2002. At that time he began working as a social worker with Fraser Health, where he continues to work to the present. [24] The mother became a qualified professional chef in 1994 after completing a three year apprenticeship. With the exception of a maternity leave after R. was born in 1997, she worked full time with a catering company until late 2001, several months before N. was born in May 2002. [25] The father says the mother's problems with alcohol began to manifest in the mid 1990's with what he characterized as "binge" drinking. The mother also characterizes her alcoholism as "binge" drinking. The mother says that in December 2001 her employer at the catering company noticed that she was under the influence while at work. She was pregnant with N. at the time. Her employer called the father to take her home. At the employer's suggestion she took early maternity leave. After N.

was born she suffered from postpartum depression. Her doctor prescribed anti-depressant medications. She acknowledges that she became a binge drinker at that time, although she knew that the medication and alcohol should not be used together. Initially she favoured wine, then she began drinking vodka as she thought it was less detectable. The parties separated for a few months in early 2004 due to her alcohol problems. The father remained in Vancouver. She took day treatment while living in Cawston. They reconciled in the summer of 2004 when she moved back to Vancouver. [26] However the mother resumed binge drinking. She was also taking prescription medications for anxiety. She was in a residential alcohol treatment program at Lydia House in late 2004 and early 2005, for three months. The parties separated again for several months in 2005. She went back to the residential treatment program for another three months in August 2005, to October 2005. C. was born in December 2005. The mother continued to binge drink. The Ministry of Children and Family Development ("MCFD") investigated another episode of the mother drinking and driving with children in her vehicle in September 2006, and drinking while taking care of the children in November 2006. [27] During 2005 to 2007, MCFD were involved with the family on approximately eight occasions as a result of the mother's alcohol

problems. A particularly frightening incident occurred in or about April 1, 2005 (the "upper levels highway incident"). The mother was driving in the wrong direction on the upper levels highway with her two girls in the car, and a third child. She was attempting to drive to the ferry terminal to take the ferry to Sechelt. She had been drinking vodka and was also taking prescription medications at the same time. The police received many 911 calls from motorists and pulled her over. She refused to provide a breath sample. She was arrested and charged. Provincial Court orders were made April 14, 2005, May 26, 2005 and August 18, 2005 at the instance of the Director, Child, Family and Community Service. Among other things the orders required her to attend residential alcohol abuse treatment. The orders resulted in her second stint of residential treatment at Lydia House from August to October 2005. For several months MCFD required a nanny to be employed to look after the children. [28] The mother states that she remained sober for a year after this. This appears at least to be an exaggeration. In September 2006, she admitted to MCFD social workers that she had been drinking and driving with children in her vehicle. In November 2006 when a social worker visited her, she admitted that she had been drinking recently, after first denying it. On that occasion she almost gave R., who is

diabetic, an overdose of insulin. R. prevented this. On March 29, 2007 the police were called to the Abbotsford Recreation Centre due to reports of a drunken parent there. The mother had driven to the Centre while drunk. She had intended to drive her children home. At trial she admitted that she had driven with her children in the car after drinking many times. [29] However despite the fact that the mother was not receiving further alcohol abuse treatment, there were no further reports to MCFD until April 28, 2012, after the separation. On that occasion MCFD received a report that the mother was drinking at home. N. noticed that her mother had been drinking, became upset, told the father, who called MCFD, who investigated. However MCFD social workers determined that, despite the mother's history, the children were not in need of protection. The social worker commented, "Although [the mother] has a history of alcohol misuse and is struggling with addiction, [the mother] has a number of strengths in managing her addiction to alcohol. She has problem recognition, resources and supportive relationships." [30] The mother's episodic or "binge" drinking continued in 2013. She estimated that she had five or six alcohol relapses in 2013. She testified that these episodes would generally last one day and she would consume six to eight drinks. (She understates or minimizes her alcohol

consumption so this is quite probably an underestimate). She testified at trial that she was sober for all of 2014, until December. [31] On December 19, 2014 the mother was stopped by police in Coquitlam after she had been involved in an accident with another vehicle. She had purchased a mickey of vodka and drank all or most of it en route to her work at Eagle Ridge Hospital. The police gave her an immediate roadside license suspension for 90 days. She was also arrested. She was heavily intoxicated. In addition to being prohibited from driving for three months, she was required to attend a responsible driver program, (for the second time). She was required to equip her vehicle with an alcohol detecting ignition interlock device, for a year. She must blow into a breathalyzer to start the car. The year ends in July 2016. [32] The mother asserts that the December 2014 incident was the last time she has consumed alcohol. [33] A test of a sample of the mother's hair obtained November 5, 2015 did not show evidence of excessive alcohol consumption over the prior 450 days. However the test only registers as positive in the case of average excessive alcohol consumption, for example a daily average of four to six alcoholic drinks in someone weighing 180 pounds. As a result it does not detect binge drinking of the type the mother is prone to. This must be so as the December 19, 2014

incident falls within the test result window. [34] Following the separation the children resided for some of the time with the father in the former matrimonial home (a single family residence in Abbotsford) and some of the time with the mother in a rented basement suite. In May 2012 the mother began residing with Mr. D. in a basement suite. The children resided with them and then moved to the former matrimonial residence with the mother and Mr. D. when they took possession of it effective August 1, 2012 in accordance with the recently made separation agreement. [35] After the separation agreement was made the children continued to reside with the father two days per week. [36] The email communications between the parents in early 2013 are civil and cooperative in tone. The father proposed taking the three children to Hawaii in the spring of 2014. The mother was fully supportive. [37] Things changed following late April 2013. At that time the father asked the mother to consider having the children reside with him three days per week instead of two days, beginning in the fall of 2013. The father states that the mother was initially somewhat receptive but this suddenly changed after they discussed the matter face to face on May 24. He received text messages from her rejecting the proposal. [38] Then on May 23, 2013 he received a lengthy email message from Mr. D. that can only be

described as wildly inappropriate. He had never been formally introduced to him and had had minimal contacts with him. In the email, Mr. D. emphatically rejected the suggestion of a change in the parenting schedule. He did not stop there. Mr. D. lectured the father about the then new FLA. He included some internet links and references. He accused the father of engaging in "excessive ex syndrome" behaviour, which included stalking, harassment, lies and manipulation. He said R. (the eldest) was distraught. He said, "[R] was informed that she has a choice whether she stays over at your place, and if she feels uncomfortable, she need only tell us so." [39] The mother read the email before it was sent. [40] The father responded a few days later in a lengthy email, rejecting the allegations. His tone was civil. He expressed shock at the email he received. He rejected the allegations but continued to press for three days per week. Among other things he said, "This is not an issue of life or death. I, as their father, simply want to spend more time with our children." [41] He referred to his very busy schedule and long hours. He added that he was not trying to take the children from their mother, adding, "She is a great mother and I would never consider doing this to her or the kids." [42] He hoped for a resolution not involving lawyers or courts. [43] He reiterated his request in

July. [44] In October, R. told the father that the mother had been drinking again. The father telephoned Mr. D. to request a meeting with the parents and their new partners. A meeting took place at a Tim Horton's restaurant. There is consensus that it did not go well. The father says he wanted to discuss the mother's drinking relapse. The mother and Mr. D. say that the father said he "wanted N. and C". Clearly Mr. D. was assertive at the meeting. He informed the father that if the mother were to drink again, he would take the children himself and the father would need a court order to retrieve them. The meeting ended abruptly. More emails ensued. [45] All three children had a very pleasant vacation with the father and Ms. J. in Hawaii in March 2014. In April 2014, Ms. J. acquired a large new residence in south Surrey. She and the father began cohabiting at that time, residing there. (Although in her evidence she stated that they purchased the house together, I note that the father does not claim ownership on his financial statement.) [46] In mid-April the parties were at odds over summer vacation plans. The mother informed the father in an email message on April 16 that she had filed the separation agreement in the Provincial Court "which makes it a binding legal agreement." She added, "You can have the kids 2 days per week, as per the agreement." Her purpose in filing the

agreement with the court was to enforce the parenting provisions. The father commenced this litigation April 17, 2014. The mother emailed the father telling him that after discussions with the children about the lawsuit, the children had all decided that they did not want to visit their father anymore. The eldest child R. seems to have taken the lead in this. The mother's email stated: [N.], After telling the kids we would be going to court, [R.] said she would rather stay home until we discuss this with a lawyer and get some legal advice for them. She said that she feels like she is always being pressured when she is there, and interrogated while she has to defend us to you. [N.] and [C.] soon agreed and asked to stay here as well. For the kids mental well being, the kids scheduled visits will be put on hold. Once we obtain a lawyer advise we will follow their recommendation. You are welcome to phone the kids anytime during this period. [47] Following this, the children did not see their father for a month. R. stopped staying overnight at her father's residence as of July 2014. Visits between her and the father have been sporadic and infrequent since then. In August, N. and C. stayed with their father for two weeks. In September 2014, N. advised her father in an email that she no longer wished to stay with him overnight. C. has continued to stay at his father's residence every

weekend. [48] There were more disputes between the parties about parenting schedules and access for N. and C. over the summer of 2015. [49] On September 4, 2015 Master Keighley ordered that N. and C. stay with their father from Friday afternoon until Monday morning, each week. They have continued to do so. [50] R. will be 19 in June of this year. She attends University in the Fraser Valley. She would like to be a nurse. She has a vehicle of her own. She works part time at a retail sporting goods store. It seems likely that her regular overnight weekend visits would have ended in any event due to her changing circumstances but it seems clear that the dispute has harmed the relationship between the father and both of R. and N. [51] Mr. D. was previously married and has two adult children. His adult son aged 25 and the son's girlfriend reside with the mother and Mr. D. in the D. household. [52] The children are active and healthy, and are good students. They have no particular behavioural or physical problems. III. Analysis A. Parenting Schedule [53] The Separation Agreement is an agreement respecting parenting arrangements within the meaning of s. 44 of the FLA. [54] Although the mother filed the Separation Agreement with the Provincial Court, filing a s. 44 agreement gives it the effect of a court order for enforcement purposes, but does not make the agreement a court order:

Nijjar v. Gill, 2015 BCSC 437; B.A.S. v. S.R.S., 2015 BCSC 878. [55] Accordingly FLA s. 44(4) rather than s. 47 is applicable. Section 44(4) provides: (4) On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child. [56] Section 47 provides that where there is a prior court order respecting parenting arrangements, the court must be satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including where the change is caused by a change in the circumstances of another person. [57] The order of Master Keighley of September 4, 2015 was clearly an interim order pending trial, intended to be replaced at trial, or earlier. It is of no force or effect once replaced by the order I make. Therefore it is not the type of prior court order contemplated by s. 47. [58] Section 37 of the FLA provides that the only relevant consideration is the best interests of the child, and sets out factors that must be considered in that respect. [59] As noted Dr. Michael Elterman prepared an assessment under s. 211 FLA assessment pursuant to an order made on the consent of both parties by Master Scarth October 29, 2015. He testified at the trial. [60] Dr. Elterman is one of

the most experienced and highly regarded professionals in this field. He has completed more than 2500 court reports. Unsurprisingly neither party criticized his qualifications or methodology. [61] In my view, Dr. Elterman's opinions and his report and evidence are thorough, careful, fair and reasonable. In particular in my view, his impressions of the family dynamics are highly insightful. My only significant disagreement is with respect to his specific recommendation as to the parenting schedule, as I will explain. [62] Naturally the information gathered by Dr. Elterman does not always perfectly align with the evidence presented at trial. That is inherent in the process. The parties are not required to adduce evidence supporting the opinion of the s. 211 assessor, as the facts set out in the s. 211 report are prima facie evidence of the truth of those facts, as I stated in J.A.F. v. J.J.F., 2016 BCSC 300 (para. 113); citing K.M.W. v. L.J.W., 2010 BCCA 572 (CanLII), at para. 50; L.D.K. v. M.A.K., 2015 BCSC 226. In such circumstances the party challenging the assessor's recommendations can be expected to adduce evidence not available to the assessor in an effort to demonstrate that the recommendations ought to have been different or to persuade the court to come to different conclusions. That occurred to some degree in this case. On the other hand, inevitably, the assessor has

much information not directly available to the judge hearing the case, such as information from collateral sources or field investigations such as the home visits. One of the purposes of such assessments is to provide the court with information that would not otherwise be available. Even more importantly, the assessor has professional expertise and experience which can be valuable to the court. [63] The father informed Dr. Elterman that he is concerned that the mother and Mr. D. are campaigning to keep the children from him, and that he wanted both younger children to live primarily with him, and especially C. as he is vulnerable. He stated that he feared that if they continue to reside primarily with their mother he would see them less and less. This in my view is the father's actual major concern at this point. [64] The mother stated to Dr. Elterman that the best arrangement for the children would be for them to stay with their father on alternate weekends. She told him that she believed her alcohol problems were in the past. She claimed that the December 2014 incident was an isolated relapse. Mr. D. told Dr. Elterman that the mother had been sober for a year prior to December 2014 and has been sober since then. He is a former alcoholic but stated that he has been sober since receiving treatment in 2008, with no relapses. [65] Dr. Elterman thought that perhaps Mr. D. felt he

should involve himself in the dispute between the mother and the father out of his perception that he needed to protect the mother. He said as much to Dr. Elterman. [66] However, in Dr. Elterman's opinion, the mother's relationship with Mr. D. has helped her to "largely" abstain from alcohol. The qualification relates to the December 2014 incident of course, but also any other recent relapses that the mother may not have revealed. [67] N. made clear to Dr. Elterman that she wishes to reside with her mother and spend some weekends with the father. [68] C. told Dr. Elterman that he feels that spending every weekend residing with his father is too much. [69] I met with both children, individually. Unprompted by me, both confirmed their wishes as expressed to Dr. Elterman. N. was especially emphatic. As I reported in a memorandum to counsel following these meetings, my sense is that N. attends the father's household more out of duty more than genuine desire, and that her link to the father's household is fragile. [70] Dr. Elterman's report and opinion focuses more on the father's concerns about a weakening relationship between himself and N. and C. than the risks associated with the mother's alcohol abuse. In my view he is correct in this. The father's concerns about a weakening relationship with his two younger children are legitimate but his concerns about alcohol abuse risks are

overstated and disproportionate to the actual level of risk. At trial the father acknowledged that when he commenced this action his primary concern was simply to increase the amount of his parenting time from two days to three days per week, although he continued to be concerned about the mother's alcohol abuse. This must have been a secondary concern as otherwise he would have sought full custody or parenting privileges rather than only an adjustment to the schedule. [71] Dr. Elterman recognized that there were a number of factors at play in relation to the views of the children about where they would like to reside. He rejects "alienation" as such but comments that the mother and Mr. D. could have been more supportive of the father's relationship, and that Mr. D.'s involvement in the dispute was unhelpful. I accept these views. [72] The key aspect of Dr. Elterman's report is as follows: The main issue in this case seems to be the residential arrangement. It is my opinion that placing [N.] and/or [C.] with [the father] is not in their best interests at this point because they derive a lot of positive from the sibling group as it stands and also to place [C.] away from his sisters, I think would be very hard for him. [73] He recommends that N. and C. continue to reside primarily with the mother. [74] The schedule he suggests is complex. It involves C. spending two weekends

(three nights) at the father's house, a weekend with his mother, and then from Monday of the next week, a full week with his father. On the three weekends out of four that C. is with his father, N. would spent two nights with him. In summary, C. would spend 13 nights (but only nine whole days) with his father out of 28 days and nights, and N. would spend six nights and three whole days out of 28. As C. would remain in school in Abbotsford, on the week that he is in school, he would need to be dropped off each morning and picked up every afternoon. The schedule would require 15 two way trips between Surrey and Abbotsford within each 28 day cycle. The father says the driving demands on him would be impossible given his work schedule and is unreasonable and not in the best interests of the children. [75] At trial the father's criticism of Dr. Elterman's recommendation falls into three areas: (1) Dr. Elterman did not have full and complete information regarding the mother's problems with alcoholism, and the parenting schedule he recommends takes insufficient account of the need to reduce the risk of harm this presents to N. and C; (2) the mother and Mr. D. are responsible for damaging the relationship between the three children and the father. Therefore the father argues that a change to the parenting schedule is in the best interests of N. and C, and (3) the schedule proposed by

Dr. Elterman is impractical and unreasonable. [76] I do not accept that Dr. Elterman did not have sufficient accurate information about the mother's alcoholism and the risks that it has and could present to the children. First, it must be observed that he has vast experience in dealing with alcoholic parents and the effects upon children. Second, his report shows that he had more than sufficient information about the history of the mother's condition and the specific incidents of concern to accurately assess the problem in the context of his recommendations regarding parenting. He had the overall picture clearly enough and did not need every detail. For example, he was aware of the role the mother's condition played in the breakdown of the marriage. He had detailed information from the father about that history. The father told him about the MCFD involvement after the upper levels highway incident, and her December 2014 impaired driving charges. Much of his interview of the mother was devoted to this topic. She admitted the essential facts and themes, including that she had driven with the children in her vehicle when she had been drinking. While he did not have the MCFD records that are in evidence at trial, I am satisfied that he had a good appreciation of the relevant history in that respect. He did not have the police records relating to the December 2014 incident but he

was aware of it. The police records do not add much relevant information in any event. The additional information presented at trial did not affect his opinion. [77] Dr. Elterman was concerned that the mother did not continue with any alcohol treatment after 2005. In fact, she did not undergo further treatment until after being ordered to do so by Master Keighley on September 4, 2015. Dr. Elterman formed the view however that her problems with alcohol were not as severe presently as they had been several years ago. He characterized the December 2014 incident as a relapse. [78] His views as to the present status of the mother's alcoholism are supported by the evidence. While December 2014 is relatively recent, there is no evidence of further relapses since then. Undeniably there is a risk of further relapses. The mother concedes this. However, Mr. D. is himself a recovering alcoholic and I accept that he is a steadying influence for her in this respect. I accept his evidence that he has been sober since 2008. The older children in particular are fully aware of their mother's alcohol problems. The ignition interlock equipment on her vehicle is highly tangible evidence of her problems. As noted, N. reported that the mother was drinking at home in April 2012, even though N. was only 9 years old at the time. R. reported to the father in 2013 that her mother had been drinking. This

led to the meeting at the Tim Horton's restaurant. Therefore the children are alert to these concerns. [79] Now that the children are older and highly aware of their mother's alcoholism they are better able to protect themselves against the direct safety risks than were when they were younger. At trial the mother could not recall incidents of driving with the children in the vehicle while under the influence of alcohol since 2009, although her memory is vague, and her testimony unreliable. Nonetheless, she seems to have made some progress in controlling her addiction, and her family members are vigilant. [80] In 2012 the father agreed to allow the mother to have primary parenting of the children despite her alcoholism. He states that he hoped that Mr. D. would be a supportive influence. This has turned out to be true, at least insofar as her addiction is concerned. The father states that he thought it would be in the best interests of the children to remain with their mother and Mr. D. in the Abbotsford home, most of the time. Clearly, at the time he was fully aware of the mother's alcoholism. Dr. Elterman noted that her alcoholism must have caused dreadful suffering for him and the children for several years. I concur. The father states that he now regrets the decision that he made. However it was not an unreasonable decision at the time in my view. He is himself a trained

professional. In my view if the father thought that the mother's alcoholism presented undue risks to the children he would not have agreed to allow primary residency with her in 2012. There is now less risk to the children than there was in 2012, as the children are older and more aware, and the mother has made progress in dealing with her addiction. [81] The father began seeking more parenting time in 2013 within a year of the making of the separation agreement, when he said that he would like to have the children for three days per week instead of two days. That desire was not primarily motivated by concerns about alcoholism. Even when these proceedings were commenced in April 2014 the father was seeking only 3 days per week of parenting time. As he concedes, his alcohol concern was secondary at that time. In my view the father now over-emphasizes this concern for the purpose of strategic advantage. In fairness, no doubt the mother understates the concern for the same reasons. [82] The significant new event following the separation agreement is primarily the mother's December 2014 drinking and driving offence. That did not involve the children. It was a serious relapse. However I accept as did Dr. Elterman that this appears to have been an isolated event. [83] The father argues that the court has only the mother's word that she has not continued to drink, and that her

evidence cannot be trusted. It is true that she is an unreliable witness. On her first examination for discovery, she lied about the upper levels highway incident in 2005. She denied that she had been drinking alcohol. She attributed her difficulties to prescription anti-anxiety medication, Ativan. She denied ever having driven a vehicle with her children as passengers when impaired by alcohol. On her second examination for discovery she acknowledged that this was a lie. She said that she had consumed a "small amount" of alcohol. She admitted to another two such occasions, the details of which she could not be sure of. At trial she admitted that as stated in the MCFD records she had been drinking vodka at the time of the upper levels highway incident. She admitted that she lied on the first examination when she denied ever drinking Listerine or rubbing alcohol. She now acknowledges that in the past she also drank cooking sherry and vanilla extract. [84] She swore a false affidavit in these proceedings March 19, 2015 in which she deposed that she had "worked hard to remain sober since October 2013" and that she was "extremely proud of my successes in staying sober" thus clearly giving the impression that she had been sober since October 2013. This was false. She neglected to mention the December 2014 incident and that she had had several other relapses as well. [85] At trial and

on her extensive examination for discovery evidence read in at trial, while taking some responsibility for her actions, she also tended to make excuses, minimize, and to deflect blame onto others for her alcohol problems. She said initially her over consumption was driven by stress at work in the catering business in busy seasons such as Christmas. She referred to other circumstances which caused her to binge drink, for example the arrival of her sister and her sister's children into the home in 2006. She repeatedly blamed the father. She states that the bad marriage was part of the cause of her drinking. She said that she left the marriage because she could not stay sober while being married to the father. [86] In summary the mother's alcohol problems remain a very serious concern. It seems to me that she has not yet fully accepted personal responsibility for them. [87] The mother claims now to be sober. Standing alone the mother's evidence concerning her alcohol use would have to be considered with great skepticism, at best. However the evidence as a whole supports the conclusion that her relapses have become less frequent and that she has made progress. [88] I accept that Mr. D. and the older children are very alive to the risk of relapse. I accept the evidence of Mr. D. that the mother did not drink in 2014 to the present with the exception of the December 2014

incident. [89] I accept as did Dr. Elterman that her relationship with Mr. D. is helping her to abstain from alcohol, and from improper use of prescription medications. The mother denies using prescription drugs anymore. [90] A reality is that the concern is not entirely eliminated even if the children are with their mother less often. [91] The essential questions are: firstly, whether, and the extent to which the mother's alcoholism presents a present risk of harm to the children, either directly through risks to their safety, such as by driving with them or parenting while she is under the influence of alcohol, or indirectly by being a negative influence or poor role model; and secondly, the extent to which these concerns should influence the parenting schedule. [92] As I have said, Dr. Elterman was fully aware of these undeniably serious concerns in making his recommendations. However I agree with him that taking all the relevant factors and circumstances into account, this concern does not mean that N. and C. should reside primarily with the father. In summary, I do not place great weight on this factor in relation to the parenting schedule issue. [93] Dr. Elterman did not specifically address each of the specified considerations set out in s. 37(2) FLA but I am confident that he has in fact done so. I have also considered each of these considerations in coming to my

conclusions. [94] Of greater concern is the effect of the parenting schedule on the relationship between the father and N. and C. The father's relationship with R. is now limited and he is worried that his relationship with N. and perhaps C. could suffer the same result. [95] Dr. Elterman concluded that the mother has not done very much to encourage the children to have a positive relationship with their father. I concur. Her attitude and that of Mr. D. is that the children are free to decide for themselves as to how much or whether they should see their father. This is not appropriate. As Dr. Elterman stated in evidence at trial, there is a big difference between saying, "You need to see your dad" and "You can do what you want." The mother and Mr. D. have not been as supportive as they ought to have been in fostering strong and healthy relationships between all three children and their father. [96] The mother refuses to drive the children for parenting exchanges. She has not done so on even a single occasion. She says the father must do all of the driving as he made the decision to move from Abbotsford to Surrey. This is unfair, and is a vivid example of the mother's lack of support for the father's relationship with his children. [97] However, with respect, I view the schedule proposed by Dr. Elterman as impractical. It is complex. There are too many transfers and too much

driving. The father works long hours and simply cannot do that amount of driving. Even more importantly, I think it is unsustainable. It is not the schedule that either child wants. N. will soon be 14 years of age. I do not believe she wants to spend three weekends out of four at her father's residence. My sense is that she would resist complying with a schedule that she cannot agree with. Imposing such a schedule could impair rather than foster her relationship with her father. That is not in her best interests. In my view N.'s relationship with her father is more likely to thrive if she sees him on a schedule that she can agree with. The quality of their time together is more important than the quantity. [98] Dr. Elterman recognized the close bond between C. and his sisters, and this was a consideration for his recommendation that the time N. spends with her father should overlap with C.'s time. I agree with this consideration. [99] In my view a more practical and beneficial schedule is that the children stay with their father on alternating weekends, from Friday after school to Monday morning at school. This is in keeping with their wishes, which are reasonable and in the circumstances of this case should be respected. It minimizes transfers and driving time. It is clear and simple. The siblings would be together on the father's weekends, which is appropriate given their

close bond with each other. It preserves the integrity of the mother's household and their many joint activities the rest of the time. Weekend times are shared equally. (The mother works Sundays but unfortunately this cannot be adjusted for, and in any event the children are with her on weekdays.) Under this arrangement, both N. and C. would spend six nights and four whole days per 28 day cycle with their father. In the case of N. this is a slight increase over Dr. Elterman's proposal. As with Dr. Elterman's proposal, this schedule does not require the children to change schools and keeps them in proximity with most of their friends. [100] This very common schedule works well in most cases and in my view is appropriate in this case as well. [101] The weekend times will be extended in the event of statutory holidays or any other day that the schools of both children are not in session on the Friday or Monday of a weekend. [102] Dr. Elterman proposes equal sharing of Christmas and Spring Break, dividing the breaks in half and alternating them. There was no disagreement with this at trial. I would so order. [103] Dr. Elterman recommended that C. be with his father on alternating weeks from Friday afternoons in the summer, and that N. be with the father every other weekend, on the same weekend that C. is there. [104] I agree that C. should spend one-half of the summer vacation with

his father. However weekly transfers do not allow for extended holidays. As summer schedules have been a source of friction in the past, it might be best if the parties work out a system providing for some flexibility and planning. [105] In the absence of an agreement for a different order between the parties, I order that C. will spend the first half of the summer vacation (that is, beginning with the end of school in June and ending with the resumption of school in September) with his father and the second half with his mother in 2016, with the order being reversed in the next year, and so on. [106] As N. is less willing to spend time at the father's house than is C., in the absence of an agreement as to the form of order between the parties, I order that she reside with her father on the weekends (Friday p.m. to Monday a.m.) during the summer, on the weekends that C. is with his father. [107] The parties have liberty to apply with respect to the summer schedule order. [108] The parties will continue to be joint guardians under the FLA. Dr. Elterman recommended joint parenting responsibilities, and I agree. The parties will have liberty to apply if they cannot agree on the specific terms of the order, having regard to ss. 40 - 45 of the FLA. [109] The parties agreed to "joint custody", a DA term, in the separation agreement. The FLA was not yet in force. The term appears to

have been intended to mean what would now be considered joint parenting responsibilities under the FLA. As noted, the father's NOFC sought relief under the FLA, only. In closing submissions the father submits that only the FLA needs to be relied upon for purposes of the parenting arrangements. The parenting order could be made under either statute in this case. However as it is important to have jurisdictional clarity as to the basis upon which the court is making the order, I consider that the parenting order can be made with reference only to the FLA in this case, in the circumstances, including the separation agreement, the prior proceedings, the pleadings, the submissions of the parties, and the needs of the children. [110] I order that the mother is prohibited from driving with the children in the vehicle if she has consumed any amount of alcohol within the preceding 24 hours. [111] I also agree with Dr. Elterman that the parties and their partners could benefit from counselling to assist them with communications. In my view these four persons are quite capable of respectful, positive communications in the best interests of the children. I order that the parties arrange for such counselling as recommended by Dr. Elterman in his report. The cost will be shared equally. [112] It may seem that these parenting arrangements are unfair as between the mother and the father,

particularly in view of the mother's appalling behaviour relating to alcohol, lack of appropriate support for the relationships between the children and their father, and her untruthful testimony. However I must emphasize that the only consideration for me is the best interests of the children, and not fairness as between their parents. B. Separation Agreement [113] For purposes of this issue, I will refer to the claimant as the husband, and the respondent as the wife. [114] The wife argues that the separation agreement should be set aside, or varied. The jurisdictional basis of the wife's claim is somewhat ambiguous. As noted, the wife's counterclaim refers specifically to s. 93 of the FLA, but seeks spousal support under both the DA and the FLA. Section 93 of the FLA allows the court to set aside an agreement respecting the division of property and debt, or to replace the agreement in whole or in part. Effectively, then, under s. 93 FLA the court may set aside or vary the property and debt provisions of a separation agreement. Her submissions at the conclusion of trial also referred DA authorities such as Miglin v. Miglin, 2003 SCC 24. [115] The separation agreement provides that any dispute concerning the agreement will be governed by the laws of the Province of British Columbia, and that the Supreme Court of B.C. shall have exclusive jurisdiction. I received no submissions

from the parties on the possible application of this provision. It seems to me that if the parties intended to mean that only the provincial legislation should apply, this provision could have said so clearly. [116] As in my view whether I apply the DA or the FLA the result is the same, I do not need to resolve the jurisdictional issue. In either case, the analysis is similar: H.J.S. v. K.C.S., 2013 BCSC 998, at para. 39; Halliday v. Halliday, 2015 BCCA 82, at para. 39 (regarding FLA s. 164). [117] Neither party had legal advice regarding the separation agreement. It was negotiated over a period of several months prior to its signing on July 8, 2012. They used the services of a family mediator, Ms. Nicholette D'Angelo, who drafted the agreement. Ms. D'Angelo testified at trial. [118] As noted, when the separation agreement was made July 8, 2012, the wife had been in a new relationship with Mr. D. for some months. They were residing in a basement suite together. Under the terms of the separation agreement the husband agreed to vacate the matrimonial home as of August 1, 2012, so that the wife and Mr. D. could move in to the home. Primary residency of the three children was agreed to be with the wife for five nights out of seven, so the children would be able to continue to reside in the same home they had lived in since it was purchased in early 2007. [119] The wife argues that

the property provisions of the separation agreement are unfair to her in that: 1. The parties did not share in each other's employment pensions; and 2. She gave up any claim to spousal support. [120] The separation agreement states that the husband agrees to give up his equity in the matrimonial home, in exchange for the wife's agreement to give up her claim for spousal support, and her claim to a share in his employment pension. [121] The husband agreed to remain liable for the mortgage of approximately $326,000 for an additional six months so as to provide time for the wife to refinance the home as she was obliged to do. At some point in 2013 Mr. D. supplanted the husband as borrower on the mortgage. They continue to reside there. [122] Although the wife submits that the agreement and in particular the property provisions of the separation agreement should be set aside entirely, she recognizes the practical impossibility of that. She proposes to keep the home that she and Mr. D. have resided in for several years now. The $21,000 cash she received for RRSP equalization was spent by them on home renovations. [123] However the wife argues that the parties' pensions should be divided in accordance with the statute (FLA part 6) and she should receive a lump sum payment of spousal support in the amount of $25,000. I received no submission as to the manner in which the $25,000 is

calculated. [124] The wife argues that the SSAG would (or perhaps should) not be applicable, as she has remarried. [125] The equity in the home was modest. The separation agreement states that the value of the home was $350,000, and the mortgage amount was $325,990, so the equity was about $24,000. [126] The parties had modest RRSP savings of about $44,732, in total. Most were in the husband's name. He agreed to withdraw $25,264, pay the tax, and make an after tax payment to the wife of $21,000. They had personal debts totaling about $20,000, which they agreed to share equally. [127] There were no undisclosed assets. However, the wife argues that she did not have full information as to the value of the husband's pension. She argues that he understated his income, that she had inadequate disclosure, no legal advice, and that she felt fearful of the husband. She testified that she "was coming out of an abusive relationship" at the time. [128] The income of both parties was understated. The agreement states that the father was employed by Fraser Health Authority as a mental health clinician, where he receives a gross income of $79,600. His employment income for 2012 was $80,880.94. However he had also done extra work for several years in presenting a Responsible Driver program and Parenting after Separation programs. He earned net income of $10,650 for this work in 2012. Thus, his

reported net income for 2012 was $91,531, not including the RRSP withdrawals. [129] The separation agreement states that the wife is employed at the Salvation Army as a Chef, and receives a gross income of $16,800 per year. However this was only a temporary, part time position. As of 2011, she had been working at two jobs, one at Eagle Ridge Hospital in Port Moody, for Fraser Health, and she also worked casually at Chilliwack Hospital. She had surgery for carpal tunnel syndrome in late 2011. She received medical employment insurance for three months. She could not work at her regular hospital cook work for several months. In the meantime she worked part time at the Salvation Army. She signed the separation agreement during this period of time. In September 2012 she returned to her cooking work at the two hospitals, Eagle Ridge in Port Moody and Chilliwack Hospital. Her declared income for 2012 was $31,028, including Employment Insurance benefits of $2,874. In 2013 she earned employment income of $32,305 and received EI of $7,014. She is underemployed as a hospital cook rather than a chef. [130] Both parties were aware that the employment and income information set out in the separation agreement was incomplete. The wife knew that the father had been doing extra work and earning extra pay for years, but this was not recorded in the separation agreement. The husband knew that the

wife had worked in hospitals and that her Salvation Army income was not representative of her true normal income. [131] There is no evidence that the parties exchanged information as to the value of their pensions when they made the separation agreement. The husband had been accumulating pension benefits through his employment with Fraser Health since 2002. A pension benefit statement states that his total contributions and interest amounted to $83,397.92 as of December 31, 2013. The wife had been accumulating pension benefits with Fraser Health since April, 2010. Her pension contributions and interest stood at $5,914 as of December 31, 2013. C. Analysis - Separation Agreement [132] It is necessary that I set out further background information regarding the parties in order to address the separation agreement, property and spousal support issues. [133] The mother graduated from high school in 1987. She was a good student, earning A's and B's. She spent one year in college, earning a B average. She chose not to continue her college education. She met the husband in Vancouver in 1989 when she was 20. She began taking an apprenticeship as a chef, which she earned in 1994 after three years. She worked as a chef for a leading Vancouver catering company until late 2001. At that time her employer noticed she was under the influence of alcohol on the job, and called the husband. She

had been drinking cooking sherry in the kitchen. At trial she said the company had "financial difficulties" and she was "laid off" and took early maternity. However I think it likely that this work ended due to the alcohol problems. [134] She remained at home after N. was born in May, 2002. She worked on a casual basis for some caterers but was continuing to binge drink in 2002 and 2003. [135] As I have stated the parties separated for a few months in early 2004 due to her alcohol problems. She was in a residential alcohol treatment program at Lydia House in late 2004 and early 2005, for three months. The parties separated again for several months in 2005. In early 2005 she discovered that she was pregnant. C. was born in late December, 2005. She went back to the residential treatment program for another three months in August 2005, to October 2005. The parties moved from Vancouver to Abbotsford when they bought the Abbotsford home in January 2007. The wife did some catering jobs in 2007, but her drinking was a problem. In 2008 she worked for the Salvation Army in Abbotsford in the soup kitchen, part time, two days per week. The pay was low at $13 per hour. She did some catering work such as weddings but could not stay sober. Her drinking problems continued in 2008 and 2009. In 2009 she was asked to teach at a culinary school associated with the Salvation Army. The work was

nearly full time, at 35 hours per week, and the pay was better, at $20 per hour. [136] However that job ended after about two months when the students reported that she was drinking wine, and she was asked to leave. Thus, in the period between 2002 and 2009, rather than continuing with her chef career, either as an employee, a caterer, or a teacher, the wife's career fell apart. [137] She did not work again until the fall of 2009 when she obtained a casual position at Mission Hospital, working 2 to 3 shifts per week. She obtained a permanent part time position as a relief cook at Chilliwack Hospital in January 2010, earning about $20 per hour. She acknowledges that in 2010 her well established pattern or cycle of alcohol abuse continued, with periods of sobriety ended by another drinking binge. In December 2010 she moved from Chilliwack Hospital to another health care facility, Queen's Park in New Westminster, as the food services at Chilliwack were being taken over by a private company, Sodexo, and she wanted to remain with the public employer, Fraser Health. The husband encouraged her to stay with Fraser Health for reasons of better pay and benefits including pension benefits. She worked full time, earning about $20 per hour. However she was "bumped" out of that job and was given other work at Langley Hospital in February 2011, as a dietary aid, earning $16 to $17 per hour.

She was bumped again from that job, and obtained work (still with Fraser Health) at Eagle Ridge Hospital in Port Moody. In 2011 while working at Eagle Ridge Hospital she continued to work casually at Chilliwack Hospital. [138] She continued to binge drink in 2011. The parties separated September 11, 2011 after another drinking binge. The wife left the home and stayed in a women's shelter for three weeks. Despite the separation the parties and their three children went on a pre-planned vacation at Disneyland in October 2011. Upon their return the wife moved into a rented basement suite. [139] In October 2011 she had another drinking and driving incident. She had consumed vodka and prescription medications when she had a minor accident. [140] As noted, in late 2011 she had successful surgery for carpal tunnel problems and was unable to work at her hospital jobs for several months. In January 2012 while recovering she asked Mr. D. for work at the Salvation Army kitchen. Mr. D. is the manager at the Salvation Army. He is the only full time worker there. [141] In May, 2012 she and Mr. D. moved into a rented basement suite together. In September 2012 she returned to her cooking work at the two hospitals, Eagle Ridge in Port Moody and Chilliwack Hospital. In early 2013, she resigned from her job with Chilliwack Hospital. As of September 2014 she was working at Eagle Ridge Hospital,

part time, about 30 hours per week, for $21 per hour. She resigned the Fraser Health Eagle Ridge Hospital job in 2015. She took a lower paying job working as a cook for 37.5 hours per week at Abbotsford Regional Hospital. The employer is a private contractor, Sodexo. She earns $18.66 per hour. She does not earn pension benefits (as she did with Fraser Health). [142] Part of the reason for giving up her work at Eagle Ridge Hospital and taking the lower pay and benefits work at Abbotsford Hospital was the three month driving suspension she received due to the December 2014 drinking and driving incident. [143] She works from 8 a.m. to 4 p.m. Sunday to Thursday. Thus her earnings not including overtime would be approximately $36,400 per annum. A pay statement in evidence shows that she has worked a significant amount of overtime. I conclude that she earns approximately $40,000 per annum currently; however her most recent financial statement sworn Dec. 1, 2015 declares employment income of $30,505. This is understated. [144] The husband's income as stated on his most recent financial statement sworn January 5, 2016 is $104,640, including $14,110 for extra work. [145] At separation in September 2011, the wife was 42 years of age, and the husband was 49. They are both in good health. [146] The wife states that her current work at the hospital kitchen is not her ideal job. She notes that in the past she worked as a chef at the best catering company in Vancouver. But the work is local, low stress, and stable. She indicates that she is "looking at things" for the future but her present work is acceptable for now.

1. Unconscionability [147] The first position of the wife is that the agreement should be set aside in its entirety for unconscionability. As noted, that remedy is impractical, as the wife has taken the benefit of some parts of the agreement, in that she received the home and cash. These were important terms for her at the time. She does not propose undoing that. [148] She also does not seek to undo the parenting aspects of the agreement that she has relied upon and continues to rely on at this trial. She relied upon the parenting aspects of the agreement by filing it in the Provincial Court at about the same time as these proceedings were commenced, in order to render them enforceable as an order of the court. She continues to rely on them at trial, in that she argues that the husband agreed to allow primary residency of the children with her in 2012 despite her known and severe alcoholism. [149] The leading decision in relation to setting aside a separation agreement for unconscionability is Rick v. Brandsema, 2009 SCC 10. [150] I adopt my comments as to the application of common law principles including unconscionability set out in my recent decision in J.A.F. v. J.J.F., 2016 BCSC 300, at paras. 161-162, where I quoted at length from the decision of Madam Justice Wedge in Akkor v. Roulston, 2009 BCSC 258 (CanLII). [151] There, Wedge J. provided the following convenient summary of Rick: 127 Since the time of this hearing, the Supreme Court of Canada issued its judgment in Rick v. Brandsema, 2009 SCC 10 (CanLII). That decision clarifies the general principle that spouses have a "duty to make full and honest disclosure of all relevant financial information" when negotiating separation agreements: Rick at para.

47. Madam Justice Abella explained the underlying rational of this duty at para. 48: Such a duty in matrimonial negotiations anchors the ability of separating spouses to genuinely decide for themselves what constitutes an acceptable bargain. It also helps protect the possibility of finality in agreements. An agreement based on full and honest disclosure is an agreement that, prima facie, is based on the informed consent of both parties. It is, as a result, an agreement that courts are more likely to respect. Where, on the other hand, an agreement is based on misinformation, it cannot be said to be a true bargain which is entitled to judicial deference. 128 At para. 49, Abella J. went on to outline the factors a court will consider in deciding whether it is appropriate to intervene in a situation where a separation agreement has been negotiated on the basis of misinformation: (i) the extent of the defective disclosure; (ii) the deliberateness of the non-disclosure; and (iii) the extent to which the negotiated terms differ from the goals of the relevant legislation. 129 As noted by Abella J. at para. 51, "[i]n British Columbia, the operative legislative presumption for the division of family assets is an equal division, as set out in s. 56 of the [FRA]". Pursuant to s. 65 of the FRA, a court may order an unequal division of family assets in situations where an equal division

would prove unfair. 130 In Rick, a married couple entered a separation agreement with the stated mutual intention of dividing their assets equally. However, the husband undermined the negotiation process by writing a hidden cheque to himself from the couple's joint bank account, covertly transferring funds to his brother-in-law, deliberately undervaluing assets and exaggerating debts, and purposely preying on his wife's mental and emotional fragility. Consequently, the separation agreement departed significantly both from the objectives of the FRA and the intentions of the parties; the wife received approximately $650,000 less under the separation agreement than she would have otherwise been entitled to under an equal division of the couple's property. The Court concluded that the combination of the misleading financial information and the husband's psychologically exploitive conduct amply supported the trial judge's decision to render the agreement unconscionable and unenforceable. [152] As I will explain in more detail below, bearing in mind the factors set out in Rick, at para. 49, summarized above, in my view the agreement cannot be set aside as unconscionable. There was no misrepresentation. There were no non-disclosed assets. There was no vulnerability or power imbalance that was taken advantage of. The negotiated terms do not differ substantially from the goals of the relevant legislation.

2. Divorce Act [153] In part the wife seeks to set aside or vary the part of the separation agreement dealing with spousal support. The leading decision with respect to the weight or deference given to a separation agreement in relation to an application for spousal support under the DA is Miglin v. Miglin, 2003 SCC 24. That case dealt with an initial application for spousal support under s. 15.2(1) of the DA. [154] I summarized the analysis required by Miglin in J.A.F., as follows: [176] The approach prescribed in the majority judgment (Bastarache and Arbour JJ. in Miglin was summarized by by Bastarache J. (for the majority) in Hartshorne, as follows: 41 At paras. 79 to 91, we set out a two-stage approach requiring that courts look first to the circumstances of the negotiation and execution of the agreement to determine if one party took advantage of the other's vulnerability, or if the substance of the agreement at formation failed to comply substantially with the general objectives of the DA. Second, viewed from the time the application is made, courts should inquire if the agreement still reflects the original intentions of the parties and if it is still in substantial compliance with the objectives of the DA. [177] In the first stage, then, there are two inquiries: (1) the court must examine the "the circumstances in which the agreement was negotiated and executed to

determine whether there is any reason to discount it." (Miglin, para. 80.), and (2), if the court is satisfied that the conditions under which the agreement was negotiated are satisfactory it must examine the substance of the agreement, in order to determine the extent to which the agreement takes into account the factors and objectives listed in the DA, thereby reflecting an equitable sharing of the economic consequences of marriage and its breakdown. [178] With respect to the first stage one inquiry, the court provided no definitive list of factors to be considered, but stated: We simply state that the court should be alive to the conditions of the parties, including whether there were any circumstances of oppression, pressure, or other vulnerabilities, taking into account all of the circumstances, including those set out in s. 15.2(4)(a) and (b) [the length of time the spouses cohabited, and the functions performed by each spouse during cohabitation] and the conditions under which the negotiations were held, such as their duration and whether there was professional assistance. [179] Issues of vulnerability and the role of legal counsel or availability of legal advice are clearly relevant. In respect of this first inquiry, the court summarizes as follows: 83 Where vulnerabilities are not present, or are effectively compensated by the presence of counsel or other professionals

or both, or have not been taken advantage of, the court should consider the agreement as a genuine mutual desire to finalize the terms of the parties' separation and as indicative of their substantive intentions. Accordingly, the court should be loathe to interfere. In contrast, where the power imbalance did vitiate the bargaining process, the agreement should not be read as expressing the parties' notion of equitable sharing in their circumstances and the agreement will merit little weight. [180] Where the agreement is not impugned in the stage one analysis and was in substantial compliance with the general objectives of the DA at the time it was made, it should be afforded "great weight": para.

87. Nevertheless, the court must assess the extent to which, at the time of the application for spousal support, enforcement of the agreement still reflects the original intention of the parties, and the extent to which it is still in substantial compliance with the objectives of the DA: para. 87. a) Miglin Stage One Analysis [155] I do not find that there were any significant circumstances of oppression, pressure, or exploitation of vulnerabilities in the circumstances of the making of the separation agreement. [156] The agreement was negotiated over the course of several months. Both parties had known the mediator, Ms. D'Angelo, for several years. She met each party separately several times. Mr. D. was present on one occasion when she met with the wife at the wife's residence although he did not participate in the discussions. [157] Ms. D'Angelo had been a family mediator for several years but did not conclude her process of qualification until later that year. She is not a lawyer. She recognizes that she overstepped her proper role somewhat in actually drafting the agreement rather than simply having the parties sign a memorandum of understanding. Nothing turns on this point, in this case. The document erroneously indicates in a preamble that "the Separation Agreement is meant to be a working draft and it is the responsibility of the parties through their respective lawyers

to put the contents into a legally binding document" when this was clearly not the intention of the parties at the time. Nothing turns on this either, in my view. The document as a whole is inconsistent with this statement. Numerous provisions indicate that the document was intended to be binding. The parties both signed as if the document were a deed. The mediator witnessed their signatures. The wife does not argue that the document was not legally binding. She filed it with the court in April 2014, as I said. [158] I reject the wife's contention that she was "afraid" of the husband or "afraid of losing her children" at the time she negotiated and signed the agreement, or that she was vulnerable in any way, including her statement that she was "coming out of an abusive relationship." On matters such as this she has shown that she is prepared to lie under oath for perceived legal advantage. [159] She alleges that the relationship was abusive in that the husband has a forceful personality. Of more concern, she states that on several occasions he pushed her, and she may have fallen over. The husband denies this. I reject the suggestion that there was ever any physical violence of any kind. She acknowledges that there were many occasions when she fell due to intoxication. There is no corroboration of any violence. There are no corroborating witnesses, or any other evidence such as

medical evidence or reports to the police or the MCFD. [160] By the time the agreement was signed, she had been in a new relationship for several months. She consulted Mr. D. about the agreement. He is not a reticent or unassertive person. She says he told her not to sign it. She signed it anyway. [161] The wife is intelligent, and has no difficulty with reading or comprehension. She does not suggest that she was incapable of reading or understanding the agreement. She acknowledges that she received the document before it was signed and must have read it. She acknowledged that in the agreement. She says that it "would not have meant anything" but was unspecific about that. No doubt there would be legal terms and phrases that neither party would have fully understood, but I find that the wife was fully capable of understanding all material aspects of the agreement if she had wanted to do so. [162] Neither party had legal counsel. The agreement states both in the recitals and in the body of the agreement that the parties have been advised of their right to obtain independent legal advice. In the agreement they acknowledge that they have been encouraged by the mediator to seek independent legal advice and have had a full opportunity to do so. Ms. D'Angelo testified that she did indeed urge the parties to obtain independent legal advice, as is her practice. The wife states that Ms.

D'Angelo said, "You can get a lawyer" but she did not see the need. I find that the wife and the husband were both advised by the mediator to obtain independent legal advice, had every opportunity to obtain legal advice, and chose not to do so. [163] As noted, the husband's income was understated, but the wife would have known that. She knew that he had done extra work for several years, beyond his Fraser Health employment. She understated her own income, and the husband would have known that too. [164] There was no misrepresentation. There were no undisclosed assets, although the parties did not, as they should have, investigate and refer to the pension values. Only the husband's pension is mentioned in the separation agreement. However the wife was aware of the existence of the husband's pension and clearly could have asked questions concerning its value, but did not do so. [165] As I have said, the wife was not suffering from any vulnerability at the time the agreement was made. There was no power imbalance. However, the wife was eager to obtain the benefits that the agreement provided, which were immediate possession of the house and title to the house, and primary residency of the children, despite the then recent further involvement and investigation by MCFD related to another alcohol episode. [166] In terms then of Miglin stage one, part one, the circumstances in which

the agreement was negotiated and executed do not lead me to conclude that there is any reason to discount it. [167] The next question is whether the agreement was in substantial compliance with the general objectives of the DA at the time it was made, thereby reflecting an equitable sharing of the economic consequences of marriage and its breakdown. [168] The relevant factors and the objectives of a spousal support order under the DA are set out in s. 15.2(4) and (6) of the DA, which are as follows: Factors (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (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. Objectives of spousal support order (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the 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 spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [169] In practical terms the issues of concern are: 1. The husband's retention of his pension, without apportionment; 2. No provision for spousal support. [170] In exchange, as the agreement states, the husband gave up the equity in the home, worth about $24,000. He also agreed to remain liable on the mortgage for up to six months but this had no practical consequence to him, and it was probably not expected to. [171] From the point of view of asset division, the pension benefit the wife gave up was worth more than $24,000. His pension benefit was valued at $83,397.92 as of December 31, 2013, hers was $5,914 as of December 31, 2013. The difference is $77,484. The difference would have been somewhat less when the agreement was made. To achieve equal sharing, the wife ought to have received a pension value of something less than $38,741. She received only $24,000. By itself this is a relatively small difference. [172] The next question is whether the wife ought to have received spousal support. [173] While neither party provided me with SSAG calculations or relied upon the SSAGs in their submissions. The SSAGs can be a useful starting point for purposes of the Miglin analysis: S.E. v. J.E.,

2013 BCCA 540, at para. 42, where Harris J.A. stated: I pause to note that I am not suggesting that when a court is assessing whether an agreement substantially complies with the objectives of the DA, the effect of the agreement must be explicitly compared to the results indicated under the SSAG. Parties can legitimately negotiate valid agreements that depart from the Guidelines, particularly when other issues are being resolved. But in this case, such a comparison does illuminate, in broad terms, the degree to which this agreement shows a significant variation from what the SSAG suggests as an appropriate award. [174] At their 2012 incomes of $91,532 for the husband and $31,642 for the wife, with child support, a 19 year relationship and recipient age of 43, [in 2012], the SSAGs suggest spousal support ranging from a low of zero, to a high of $735 per month, with a mid-range of $378 per month. Duration is suggested at 9.5 years to 19 years from the date of separation. [175] However the SSAGs do not contain any formula to account for the effect of remarriage. [176] Section 14.7 of the SSAG states, in the context of variation and review: 14.7 The Recipient's Remarriage or Re-partnering The remarriage or re-partnering of the support recipient does have an effect on spousal support under the current law, but how much and when and why are less certain. There is little consensus in

the decided cases. Remarriage does not mean automatic termination of spousal support, but support is often reduced or suspended or sometimes even terminated. Compensatory support is often treated differently from non-compensatory support. Much depends upon the standard of living in the recipient's new household. The length of the first marriage seems to make a difference, consistent with concepts of merger over time. The age of the recipient spouse also influences outcomes. We have been unable to construct a formula with sufficient consensus or flexibility to adjust to these situations, despite considerable feedback that a formula would be desirable. In this final version, we still have to leave the issues surrounding the recipient's remarriage or re-partnering to individual case-by-case negotiation and decision making. [177] In my view at the time of separation the wife had a very weak claim for spousal support. While she was not working steadily outside the home from late 2004 until the fall of 2009, that had at least as much to do with her alcohol problems as the marriage. At times she was in treatment. At times the family had to employ a nanny. Looking at the whole history of the wife's career, it cannot be said that she made significant sacrifices in terms of her own career for the benefit of the marriage or the career of the husband. [178] As a cook in a hospital, earning

relatively low wages, the wife is clearly underemployed in consideration of her qualifications and skills as a chef. The reason for this is her problems with alcohol, not the marriage. She left the catering company job in 2004 in circumstances related to alcohol consumption, and did not return. Since then she might have had success in establishing a catering business but for her addiction. She left the Eagle Ridge Hospital job which had somewhat higher pay and pension benefits due in part to the loss of her license. The evidence does not allow me to assess what the wife could have earned in 2012 in order to impute an income as a chef, but it is reasonable to suppose that her income would have been substantially higher than the roughly $31,000 she earned in 2012. She remains underemployed now. She has the potential to earn more than her present income. Had the wife established entitlement to spousal support in 2012, the quantum would have been driven to the low range in recognition of the need to incent the wife to re-establish her career as a chef, and her re-partnering. [179] In the result, in my view the separation agreement did not fail to "comply substantially" with the general objectives of the DA. As a result, the agreement should be given great weight: Miglin, para. 87. b) Miglin Stage Two [180] In the second stage Miglin analysis the court must assess the extent to

which, at the time of the application for spousal support, enforcement of the agreement still reflects the original intention of the parties, and the extent to which it is still in substantial compliance with the objectives of the DA: Miglin para. 87. [181] This is not a case where much time has passed since the making of the agreement or where circumstances of the applicant spouse have materially deteriorated since the agreement was made. The wife contends, and I have accepted, that she has made significant progress in her dealing with her alcohol addiction. Her relationship with Mr. D. has solidified. In 2013 and 2014 she earned more than she earned in 2012. She is no longer working two jobs. Her income for 2015 is similar to that she earned in 2012. However as I have said she has an ability to earn much more than she presently earns. Overall, there are no new circumstances which render the agreement no longer substantially compliant with the objectives of the DA.

3. Family Law Act [182] Section 93 of the FLA is as follows: Setting aside agreements respecting property division 93 (1) This section applies if spouses have a written agreement respecting division of property and debt, with the signature of each spouse witnessed by at least one other person. (2) For the purposes of subsection (1), the same person may witness each signature. (3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement: (a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement; (b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress; (c) a spouse did not understand the nature or consequences of the agreement; (d) other circumstances that would, under the common law, cause all or part of a contract to be voidable. (4) The Supreme Court may decline to act under subsection (3) if, on consideration of all of the evidence, the Supreme Court would not replace the agreement with an order that is substantially different from the terms set out in the agreement. (5) Despite subsection (3), the Supreme Court

may set aside or replace with an order made under this Part all or part of an agreement if satisfied that none of the circumstances described in that subsection existed when the parties entered into the agreement but that the agreement is significantly unfair on consideration of the following: (a) the length of time that has passed since the agreement was made; (b) the intention of the spouses, in making the agreement, to achieve certainty; (c) the degree to which the spouses relied on the terms of the agreement. (6) Despite subsection (1), the Supreme Court may apply this section to an unwitnessed written agreement if the court is satisfied it would be appropriate to do so in all of the circumstances. [183] It follows from what I have already said that I am not satisfied that one or more of the circumstances set out in s. 93(3) applied to the separation agreement. [184] I do not consider the agreement significantly unfair within the meaning of s. 93(5). As I have said, the length of time since the agreement was made is not very long, but more importantly there have not been material changes since then that would render it unfair today. I am confident that the parties wanted to resolve the issues and achieve certainty by making the agreement. The wife gained things that were important to her, and also gave up things, such as pension equalization and spousal support claims. The

parties clearly both relied on the agreement. D. Child Support Arrears [185] The agreement provides that the husband will pay child support of $1,530 per month, and the monthly payments shall be reviewed on June 1st of each year to ensure compliance with the Federal Child Support Guidelines ["FCSG"]. The amount of child support was understated as the father's income was understated. He acknowledges that he is obliged to pay child support arrears. [186] He argues that the arrears should be payable only to the date of the counterclaim, May 21, 2014. He argues that at a Guideline income of $100,000 for him for 2014 and 2015, he should have been paying been paying $1,906 a month, versus the $1,530 that he paid under the terms of the agreement, and that to January 2016 the amount of arrears for 20 months from May 2014 to January 1, 2016 is $7,520. [187] The leading authority in Canada concerning whether a retroactive order for payment of child support should be made is D.B.S. v. S.R.G., 2006 SCC 37. The judgment of the majority was delivered by Bastarache, J. [188] At para. 99, Bastarache J. stated: "At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix." [189] Similarly, at para. 135, Bastarache J. stated: Courts must strive to resolve such situations in the fairest way possible, with utmost

sensitivity to the situation at hand. But there is unfortunately little that can be done to remedy the fact that the child in question did not receive the support payments (s)he was due at the time when (s)he was entitled to them. [190] Bastarache J. set out four factors to be considered in determining whether a retroactive order is appropriate. These factors were summarized by Madam Justice Kirkpatrick in McKenzie v. Perestrelo, 2014 BCCA 161 at para. 106, as follows: The four factors to be considered are: a) whether there is a reasonable excuse for why support was not sought earlier; b) the conduct of the payor parent; c) the circumstances of the child or recipient spouse; and d) any hardship occasioned by a retroactive award on the payor spouse. [191] As noted, the father does not contest the question of whether an award of retroactive child support is appropriate. The amount of child support paid to date has not complied with the FCSG as the father's income was understated in the separation agreement. The annual adjustments to ensure compliance with the FCSG have not occurred. The only issue is the date of retroactivity. [192] The general rule is that the order should be retroactive to the date of effective notice of the claim, but generally not more than three years prior to the filing of an application to court: D.B.S., at paras. 118 - 123. [193] There is no evidence in

this case that the mother provided effective notice of her claim for retroactive child support prior to the filing of her counterclaim. Therefore the issue in this case is whether the father should be required to pay child support recalculated from July 8, 2012 (the date of the agreement) or from May 21, 2014 (the date of filing of the mother's counterclaim). [194] It may be appropriate to order retroactive child support from the point in time when increased support should have been paid, most notably where the payor parent engages in blameworthy conduct. If the payor parent engages in such conduct, there can be no claim that he or she reasonably believed his or her child support obligations were being met. Blameworthy conduct includes withholding information or not disclosing a material change in circumstances, such as increases in income that could be expected to alter the amount of child support payable: D.B.S. para. 124. [195] In this case, the husband should not have the benefit of his failure to accurately state his income and to adjust the payments annually as required by the separation agreement. At all material times he knew that the payments he was making were based upon understated income, therefore he knew that the child support payments he was making were not in accordance with the FCSG. This was blameworthy conduct within the meaning of D.B.S. Therefore arrears of

child support should be paid on his income calculated in accordance with the FCSG from the date of the separation agreement. [196] The parties have liberty to apply in the event that they cannot agree on the amount of the child support arrears. IV. Conclusion [197] The parties have liberty to apply with respect to any matter that may be necessary to resolve all terms for the order arising from these reasons. [198] Subject only to any relevant matter of which I am unaware, it seems to me that success has been divided and there should be no order as to costs. The mother was largely successful on the parenting issue, but did not succeed in obtaining variation to the property division and spousal support terms of the separation agreement. The child support issue was very limited and took up very little time. There is also a basis to deny the mother costs, in that she gave false testimony on her examination for discovery and in her affidavit. [199] In the absence of an application to address costs commenced within 30 days, there will be no order as to costs. "The Honourable Mr. Justice Verhoeven"