Stones v. Stones

2004 BCCA 99 Stones v. Stones

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Stones v. Stones, 2004 BCCA 99 Date: 20040211 Docket: CA030892 Between: Peter Trevor Stones Respondent (Plaintiff) And Anne-Marie Stones Appellant (Defendant) Before: The Honourable Chief Justice Finch The Honourable Mr. Justice Lambert The Honourable Mr. Justice Hollinrake Oral Reasons for Judgment D. Hart Counsel for the Appellant J. Simon Counsel for the Respondent Place and Date: Vancouver, British Columbia 11 February 2004 [1] LAMBERT, J.A.: This is an appeal from an order of a judge of the Supreme Court in these matrimonial proceedings. The order in its specific terms read: 1. THIS COURT ORDERS that the Order of Mr. Justice Hutchinson, dated September 14, 1995, shall be varied such that the Plaintiff's monthly spousal support obligation shall be retroactively reduced to $1,400.00 per month commencing September 1, 2002; 2. AND THIS COURT FURTHER ORDERS that the Defendant is entitled to interest on arrears of spousal support pursuant to the Family Maintenance Enforcement Act which shall be calculated and are payable by the Plaintiff to the Defendant from the date that arrears began to accrue but only while the Plaintiff was resident in the Province of British Columbia; 3. AND THIS COURT FURTHER ORDERS that the Order of Mr. Justice Williamson made on March 10th, 2003, shall be cancelled and the funds held in trust by the

Plaintiff's counsel ($31,200.00) shall be paid to the Defendant's counsel towards the discharge the Plaintiff's arrears of spousal support; [2] Two issues were raised in the appeal. The first one relates to para. 1 of the Supreme Court judge's order and the second one relates to para. 2 of the Supreme Court judge's order. [3] Mr. Stones and Mrs. Stones were married in 1964. They separated in June 1992 and were divorced in British Columbia in September 1995. At the time of the divorce the parties consented to an order under the terms of which Mr. Stones would pay spousal maintenance to Mrs. Stones at the rate of $3,000.00 each month beginning on 1 October 1995 and continuing thereafter but with liberty to apply in the event of a material change in circumstances of either party. [4] At that time Mr. Stones operated a professional business as a quantity surveyor for building owners and architects in British Columbia. About two years after that original order the British Columbia business failed and after obtaining a work permit Mr. Stones took a salaried position with a company in San Francisco. About 18 months after that, the maintenance arrears had accumulated to $16,500.00 and Mrs. Stones decided to enrol in the Family Maintenance Enforcement Program which effectively took the enforcement of the maintenance order out of her hands and put it in the hands of the director under

the provisions of the legislation. [5] In September of 1999, Mr. Stones' wages in San Francisco were garnisheed and payments were being made under the reciprocal arrangement between British Columbia and California on both the maintenance as it accrued from month to month and apparently also in some respect in relation to the arrears. Mr. Stones changed his employment some time about the year 2000 and obtained other work in San Francisco in the same field. However, in July 2002, his work permit came to an end and he was compelled to return to Canada and give up that work. [6] At the time of the original order in 1995, Mrs. Stones agreed to pay $162,000.00 to purchase Mr. Stones' half-interest in their joint tenancy in the former matrimonial home. [7] Mrs. Stones brought up the two children of the marriage and was out of the labour force. Her opportunity to work for money was foregone while she carried out the work of managing a household and bringing up the children of the marriage. [8] The arrears of spousal support accumulated until they were variously calculated at $48,000 or $32,000, somewhere in those ranges by April 2003. [9] Because of the nature of the arrangements with reciprocating jurisdictions, the director of the Family Maintenance Enforcement Program did not seek to obtain the interest on the arrears of spousal support during the periods when the payor was living

outside of the province because each of the reciprocating jurisdictions, apparently, might have had different provisions about collectability, about whether the interest would be compound or simple, or of what the rates of interest would be. [10] Mr. Stones came back to British Columbia, I think in August 2002, and he has been unemployed since then. [11] The application was made by Mr. Stones for a variation of the amount of the spousal support payments and there was, combined with that in the hearing before the Supreme Court judge, a claim by Mrs. Stones for interest on the arrears of maintenance throughout the period that the arrears accumulated and remained outstanding. [12] Immediately after the order of the Supreme Court judge to which I have referred, the third paragraph of the order was carried out and the arrears were eliminated. [13] Two issues, as I said, have been raised in this appeal. [14] The issue in relation to para. 1 of Mr. Justice Oppal's order is that the appellant, Mrs. Stones, argues that there was no material change of circumstance which would justify and give jurisdiction to the court in relation to the agreed amount of maintenance at $3,000.00 each month. The material change in circumstance wording appears in the Divorce Act and the Family Relations Act and also in the consent order that was made in 1995. Counsel for the appellant argues that that means

that the change of circumstances must be material, must be unforeseeable and it must be ongoing. He argues that in this case the change was such that the parties ought to have had it in contemplation and was foreseeable and therefore not a material change of circumstances. [15] In my opinion, the question of what is a material change of circumstance may vary from one case to another. That is particularly so in relation to foreseeability. There are a group of cases which decide that retirement from employment, even at the retirement age set by the employer, or by collective agreement, can be a material change of circumstances, although clearly it would be foreseeable. [16] I suppose that the question should really be asked in each case of whether the circumstance in question was one which the parties must have had in contemplation and built into the framing of their agreement. Perhaps it is a change that the parties were prepared to leave out of contemplation in the agreement because of complexity or some other reason, so that when it occurs it is a material change of circumstances, even though the parties knew it must be going to happen at some time or another. [17] In this particular case where Mr. Stones was self-employed at the time that the agreement was made, with all the vagaries that go with success in a small professional undertaking and with no definite concepts of

employment or unemployment or employability after that, it would have been a very complicated and unreliable process to try to set down in advance what would be the kind of change that should be one that the parties did contemplate or should be one which the parties did not contemplate. In my opinion in this particular consent order, the complete lapse of Mr. Stones into unemployment from mid 2002 for one year until the matter came before the Supreme Court judge and for a further six months since then must be regarded as a material change in circumstances. Accordingly, I would not accede to the first part of the argument on behalf of the appellant. [18] The second point raised in this appeal relates to the second paragraph of the Supreme Court judge's order. We were referred to the provisions of the Family Maintenance Enforcement Act and the Family Maintenance Enforcement Act Regulations. In my opinion, the provisions of s. 4 of the Family Maintenance Enforcement Act spell out the discretion that is given to the director in relation to the enforcement of arrears and in my opinion, the director was within his authority in not claiming in the enforcement endeavours in California the arrears of interest at that time. [19] There are questions of fact in relation to the make-up of the payments that were made pursuant to the garnishment proceedings in California. There are questions

in relation to calculation and questions in relation to the director's view of the entitlement of Mrs. Stones to interest arrears and indeed there are questions about whether the director has authorized Mrs. Stones to collect interest on arrears in a personal action as distinct from having the director collect them. We were pointed to the provision which could be used to authorize Mrs. Stones to collect personally in the appropriate proceedings the interest on arrears if the order had been made to permit her to do so. [20] The Supreme Court judge, when he made para. 2 of his order, (as one can tell from his exchanges with the counsel and the witnesses), was not satisfied that the amount of the interest on the arrears had been proven either as to any entitlement to any amount or as to the amount to which there was any entitlement. Accordingly, he made the limited order which I have set out at the beginning of these reasons indicating the dates from which interest could be calculated but making no order for any other interest amount or other interest dates. [21] I think that the Supreme Court judge's order in its precise terms sets out the result of the hearing before him. No further factual evidence was laid before us through an application for leave to adduce fresh evidence and we are left in the same situation with respect to the facts as confronted the Supreme Court judge.

Without a full and accurate basis of facts, there is no opportunity to work with the applicable law to reach any conclusion different from the conclusion reached by the Supreme Court judge. In those circumstances, it is my opinion that any variation of the order made by the Supreme Court judge cannot be made by this Court. [22] Accordingly, I would dismiss both grounds of appeal in this case. I would make an order for costs once I know whether my colleagues agree with my conclusions. [23] FINCH, C.J.B.C.: I agree with the disposition of both issues on this appeal articulated by my colleague and I agree with his reasons in support of those conclusions. [24] I would add only this with respect to the first ground, that is, as to whether there was a material change in circumstance justifying a reduction. Counsel for the appellant, Ms. Stones, argued in the alternative that even if there had not been a material change in circumstance, the reduction made by the trial judge of monthly support from $3,000.00 to $1,400.00 was too great. Counsel said that the judge did not give any reasons to support a reduction of that magnitude and that there was no analysis in justifying it. I think counsel's observations are well taken but with respect, the judge had before him all of the affidavit material that is in the appeal book and he had the benefit of the submissions not only of counsel for

both Mr. and Ms. Stones but also for the director of Family Maintenance Enforcement. On this appeal, I have not been directed to anything in the evidence or in the submissions to suggest that a lesser reduction would have been justified or more appropriate. So for that reason as well I am unable to say that the first order is in error and as I have said, for the reasons given by my colleague on that issue and on the other issue I too would dismiss this appeal. [25] HOLLINRAKE, J.A.: I agree with what has been said by the Chief Justice and Mr. Justice Lambert and the result that this appeal must be dismissed. [26] LAMBERT, J.A.: I would add that I agree with the additional reasons given by the Chief Justice. [27] With respect to costs, I would say that I consider that there were two separate issues. With respect to the second issue the matter was very confused and in my view the proper order would be not to impose the burden of costs with respect to that issue on either of the parties. With respect to the first issue of whether there was a material change in circumstances, I feel that the usual rule should apply that the successful party should have costs paid by the unsuccessful party but in view of the fact that we have two issues the result would be in my opinion that Mr. Stones should receive one half of his taxable costs in relation to this appeal. [28] FINCH, C.J.B.C.: I agree. [29] HOLLINRAKE, J.A.: I agree. [30] FINCH, C.J.B.C.: The appeal is dismissed and the respondent will have one half of the costs of successfully resisting the appeal. "The Honourable Chief Justice Finch" "The Honourable Mr. Justice Lambert"