Katz v. Katz

2000 BCSC 1293 Citation: Katz v. Katz Date: 20000829 2000 BCSC 1293 Docket: 8552 Registry: Smithers IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: BETTY WOOD KATZ PLAINTIFF/RESPONDENT AND: JASON ROBERT KATZ DEFENDANT/APPLICANT REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE MARTINSON MS. KATZ Appearing in person MR. KATZ Participating by telephone Date and Place of Hearing/Trial: August 4, 2000 Smithers, B.C. INTRODUCTION [1] This is an application for review of a spousal support order granted by Mr. Justice Warren on July 9, 1999, as directed by that order. The parties were married April 15, 1973 and separated July 4, 1994. Their son Gaelan is now 21 years old, and was born on July 24, 1979. He is going into his third year of university. I reserved my decision so I could review all the material on file as neither party had a lawyer. I am providing my reasons in writing so the parties do not have to return to court. [2] Mr. Justice Warren granted a divorce and made orders with respect to the matrimonial property. At the time of the hearing there was an interim maintenance order in place. That order, granted by Mr. Justice Errico and dated June 12, 1995, said that Mr. Katz was to pay interim child support of $400 per month and interim spousal support of $300 per month. Mr. Justice Warren left that order in place and his order said this: The child and spousal maintenance order of the Honourable Mr. Justice R.T. Errico of the 12th of June, 1995 herein, shall be reviewed in the month of July of the year 2000 unless the parties otherwise agree. [3] Mr. Katz asks that spousal support be eliminated. Ms. Katz opposes that application. REASONS WHY MR KATZ WANTS TO ELIMINATE SPOUSAL SUPPORT [4] In his affidavit filed in support of his claim to eliminate spousal support, Mr. Katz said this: 1. My income and monthly expenses have not changed with any significance since my last financial statement in Supreme Court on July 9, 1999. My current income as a log scaler ($24.00 / hr) is a result of a six-week course in 1994 to attain scaling licensure. 2. The plaintiff has, since our permanent separation in the summer of 1994 and our subsequent divorce granted July 9, 1999 proposed several different plans for employment pursuits, the last of which clearly delineated her proposal in testimony on July 9, 1999 to have earned licensure as a message therapist and to be practicing in that capacity by summer of the year 2000 in Kitwanga, B.C. It is my understanding that the Plaintiff has A) not earned a valid license in massage therapy B) will not any time soon be earning employment as a licensed massage therapist and C) continues to work in a cafeteria for low wages (+- $9.00 U.S. /hr) in the State of Washington, U.S.A. 3. The Plaintiff has now had six years in which to secure training for higher paying employment and did receive an equalization payment in the summer of 1999 of $50,000. As part of a Supreme Court ruling that I purchase the Plaintiff's interest in the family home at Cedarvale, B.C. 4. As I cannot afford to continue to provide the current level of support set in 1995 at $300 / month, I request that spousal support payments be discontinued. 5. I agree to continue to support our one child D. Gaelan Katz (Age 21 on July 24, 2000) who has completed his second year of College and who has indicated that he is eligible for over $16,000 U.S. in scholarships for the coming school year. Current child support is $400 /month. He provided a copy OF his 1999 income tax return and the return confirms what he says about his income. He also provided a copy of the reasons for judgment of Mr. Justice Warren. REASONS WHY MS. KATZ OPPOSES A VARIATION OF THE SPOUSAL SUPPORT ORDER [5] Ms. Katz says she needs the money and that the money has always been used for Gaelan's benefit. She in fact asked for an adjournment of this hearing to obtain a transcript of what Mr. Justice Warren said during the hearing of the case, but before he gave his reasons for judgment she thinks that Mr. Justice Warren intended that the $300 a month in issue be used for the benefit of Gaelan. [6] I advised her that it would be unlikely that anything Mr. Justice Warren said before he gave his Reasons for Judgment would override what he said in his Reasons for Judgment. I did say that I would grant the adjournment to the next civil sitting of the court on November 27, 2000. I also said that since we were ready to proceed and since we had court time available, I would suspend the spousal support payment until the matter next appeared. Ms. Katz then withdrew her adjournment application. [7] Ms. Katz says she is now making less money than she was in July 1999. She completed her massage therapy training but is having difficulty getting registered in the State of Washington for reasons she suggests are beyond her control. [8] She says that her son's college expenses are going up and his scholarships are going down. She said he is not eligible for a $16,000 U.S. scholarship. [9] She says she is still employed in the kitchen of the Upper Columbia Academy, a high school, and is being paid $9.00 /hr. (U.S.). She provided her 1999 U.S. Federal income tax return showing her income as $10,569, which is less than her 1998 return of $17,000. Her plans are to obtain a Ph.D. in Naturopathy, which will take another four years. DISCUSSION [10] In his oral reasons for judgment Mr. Justice Warren said this: [19] It is in my view neither practicable nor appropriate to transfer the husband's interest [in the family home] to Mrs. Katz. This is not a case for lump sum spousal support. Rather, it is a case for periodic support which will provide for the uncertainties and vagaries of Mrs. Katz's future. She is anticipating that by the fall of the year 2000 she will have finished her retraining and become employed. [20] I note that this has been a long marriage with a long period of cohabitation and during the marriage, Mrs. Katz stayed at home as a homemaker and provided for the child care in the broadest possible sense including home schooling. [21] Mrs. Katz has some medical problems, most noticeably her hearing, but I do not conclude that that disability significantly impairs her employability. Given her youth, energy, and commitment to retraining, I conclude that what she needs is periodic support. For at least the next 12 months, periodic support is required in order to enable Mrs. Katz to finish her retraining and find employment. Her prospects may be reviewed at that time and it may well be, but I do not conclude this, that permanent spousal support may be in order. That remains to be seen. [11] Mr. Justice Warren considered the question of child support and whether an order should be made under the Federal Child Support Guidelines. The Guidelines were not in force when the interim order was made in 1995. Mr. Katz was getting the benefit of the deductibility of that order. Mr. Justice Warren concluded that given that, and the "wife's minuscule income for the coming year," it made little sense to vary the existing order. CONCLUSION [12] I have considered the relevant provisions of the Divorce Act, the affidavits on file, the ruling of Mr. Justice Warren and the arguments made before me by Mr. Katz and Ms. Katz. I have concluded that Mr. Katz should continue to pay spousal support of $300 a month up to and including July 1, 2003. "D.J. Martinson, J." The Honourable Madam Justice D.J. Martinson Vancouver, B.C. 29 August 2000