Yarmish v. Yarmish

2011 BCSC 1420 Yarmish v. Yarmish

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Yarmish v. Yarmish, 2011 BCSC 1420 Date: 20111024 Docket: E101255 Registry: Vancouver Between: Charmaine Ann Yarmish also known as Charmaine Ann McCarthy Claimant And Wayne Robert Yarmish Respondent Before: The Honourable Mr. Justice Greyell Reasons for Judgment Counsel for the Plaintiff: William A. McLachlan Counsel for the Defendant: David T. Paterson Place and Date of Hearing: Vancouver, B.C. August 31, 2011 Place and Date of Judgment: Vancouver, B.C. October 24, 2011 [1] These reasons concern two applications brought in this family law case. [2] The claimant's application of April 28, 2011 seeks an order the respondent pay his proportionate share of special and extraordinary expenses for their daughter Sydney for private school tuition and related expenses, for dental and orthodontic expenses and for ringette and softball fees and expenses. [3] The claimant also seeks an uninterrupted two-week period of access to Sydney each summer and winter for the purpose of a vacation. [4] The respondent's application of May 26, 2011 seeks: a declaration that the claimant's income is $100,000 per annum; a declaration that his income is $21,640 per annum; an order that the claimant pay spousal support; and production of financial documents for the past three years. Background [5] The parties were married April 25, 1998. They ceased

living together January 25, 2009 although they continued co-habiting in the same residence until August 2010 when the respondent moved out. Thus they had an 11-year relationship. [6] The parties have one child, Sydney Madilynn Yarmish, born July 8, 1998. Sydney is currently aged 13. [7] The claimant has two sons, aged 19 and 20, from a previous relationship, who reside with her. The eldest son is working and pays rent to her; the youngest son is attending college. [8] The current arrangement between the parties is that they share custody and guardianship of Sydney. Sydney alternates weeks staying with each of her parents. [9] At a Judicial Case Conference of May 31, 2010 the parties entered into a consent interim order (the "Order") providing for joint custody and guardianship of Sydney. The Order provides neither party is to pay child support to the other and that the "issue of section 7 special and extraordinary costs is reserved". The order is silent as to spousal support. [10] The parties were divorced May 17, 2001. The Claimant [11] The claimant is a realtor. She obtained her real estate licence in April 2006 and commenced employment as an associate with RE/MAX realty. Her income in 2009 as shown on her financial statements was $95,836. [12] The respondent says the court should attribute income to the claimant in 2010 in the amount of $100,000. [13] The claimant has

responded by filing a financial statement which shows her 2010 income is $41,381. She says the commission structure at the realty firm at which she worked in 2010 and the beginning of 2011 was dramatically altered and that real estate sales have declined, to produce a substantial reduction in her current income. Accordingly the claimant says she left that firm in May 2011 and is in the process of setting up her own independent real estate practice. She expects her 2011 income will be less that her 2010 income "with both greater expenses and less income." [14] The claimant has filed no information with the court showing her listings or sales in 2011 since setting up her practice. [15] The respondent disputes the claimant's position her income has declined and that she has left employment with her employer. He has annexed a copy of the claimant's Facebook page to an affidavit which he printed off on June 18, 2011. That page describes her employer as RE/MAX Real Estate Services, the employer from whom she said she had left. He also attached a newspaper article from a Richmond newspaper dated June 4, 2011 entitled "House Sales Rebound in May" to demonstrate the real estate market is not as bleak as the claimant says it is. The Respondent [16] The respondent's income was the main source of the family's income during the period he and the claimant lived together. [17] The respondent

worked for some 27 years as a driver with Loomis Courier and then its successor, DHL Express. His income since 2006 has been in the range of $44,000 to $46,000. [18] In December 2008 he sustained a back injury at work. He then performed light duties and was in a rehabilitation program at work until April 2010. He then received a severance payment from his employer approximating 12 months' salary. The respondent's income in 2010 was declared as $43,740 of which $29,414 was employment income and $14,334 was received as the result of a worker's compensation claim. In the same year he received $47,538 in severance which he placed into an RRSP. He says he has now withdrawn those funds to meet his living expenses. [19] The respondent applied for Employment Insurance ("EI") benefits in 2010 but was advised he was required to wait 12 months before he could apply: that is, the period represented by the severance payment. [20] In May 2011, after the 12-month period expired, he again applied for EI benefits. He was granted medical EI benefits of $420 per week for 15 weeks. He would then be required to apply for regular EI benefits. As at the date of the hearing of the application it was not known whether he would qualify for such benefits on an ongoing basis. [21] Mr. Yarmish says he has applied for at least one other job since losing his position at KLH. [22] Mr. Yarmish has produced two

medical letters from Dr. Hambleton, his family physician. The first, dated April 13, 2010 was to Worksafe BC. It contained the following: Following the injury, he attempted to return to light duty within 3 weeks, while still awaiting WorkSafe approval. He was unable to continue, and I believe his employer contested the claim. This [led] to an approximately 2 month period without any rehabilitation support, [by] which time he had difficulty even ambulating let alone performing any activities beyond this. Most pertinently, it is my opinion that the approximately 2 month delay in approving his claim and implementing appropriate active rehabilitation ahs significantly, negatively impacted his recovery. The relative inactivity due to pain and lack of WorkSafe supported rehabilitation [led] to deconditioning and muscular compensation. This subsequently result in predictably poor biomechanics that unmasked pain associated with previously undocumented degenerative changes in the spine and spinal stenosis. At this time, Mr. Yarmish has been back at work for some time under accommodations. Currently he is limited to lifting less than 60 lbs, carrying less than 50lbs., push / pull 200 lbs., and 5 minute stretch breaks every hour. Unfortunately, he is still unable to return to his prior activities; including jogging, or baseball. In my opinion, these ongoing symptoms and limitations are

pragmatic evidence of Mr. Yarmish's incomplete recovery and ongoing poor biomechanics that require further active rehabilitiation to resolve. [23] The second report, dated May 9, 2011, was obtained by his counsel in response to the claimant's application. Dr. Hambleton discussed four medical conditions which he wrote impacted on the respondent's current health status: his former alcoholism which makes him reluctant to take medication; a diagnosis of major depressive disorder; mechanical low back pain; and bilateral shoulder region pain. [24] Dr. Hambleton's opinion is that Mr. Yarmish is not able to engage in gainful employment as a result of his medical conditions at this time. [25] The claimant says the respondent is not medically disabled from working. It is her position the respondent is purposefully unemployed. She says that although she passed on the names of potential employers to him after he was terminated by KLH he did not pursue looking for work although he knew his employment was coming to an end. [26] The claimant refers to the fact the respondent is physically active in their daughter's sporting activities. [27] The claimant notes that Dr. Hambleton referred the respondent to Richmond Hospital Mental Health Outpatient Services in September 2010. She says she telephoned the hospital on June 1, 2011 and was advised the referral had been made but that the respondent

had not followed up with the hospital until recently. The claimant says the respondent only followed up on the referral in response to her application the respondent pay special or extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines, S.O.R./97-175 (the "Guidelines"). Analysis and Decision Spousal Support [28] In the affidavits filed in support of their respective applications, the parties take issue with each other on many if not all of the essential facts necessary to decide the issues which have been raised. There has been no cross-examination on the affidavits and neither party referred to examination for discovery evidence. There is no other evidence before me other than affidavits which contain conflicting evidence on material issues. [29] The respondent claims spousal support. On the facts before me it is not possible to determine, by imputation or otherwise, the income of either party. As stated, the claimant deposes she has changed firms and is in the process of setting up her own real estate firm and that her income will be much less in the future. The respondent disputes this fact. He suggests she is not acting as an independent realtor but that she is still in association with her former firm. The evidence he relies on in support of his position is hearsay evidence and unreliable. [30] The respondent challenges the amount the claimant

writes off against her income, asserting she overstates her expenses and that some of the expenses, such as automobile, are for her personal use. The claimant denies this. The respondent says the claimant has some 10 different bank accounts and that notwithstanding his requests for production she has not produced any records of such accounts. [31] The claimant says an income should be attributed to the respondent because he is purposefully under-employed. She says he is capable of working but chooses not to do so. [32] In this case I am unable, based on the conflicting information contained in the affidavits, to make any determination as to either party's income. Both claimant and respondent are in a position where their income appears to be fluctuating significantly downward. Each challenge the genuineness of the other's position and maintain the other's income should be or will be significantly higher. [33] As a result I refer this matter to the trial list for determination. Section 7 Expenses [34] The settling of the s. 7 expenses requires the court to consider the appropriateness of the expense as a s. 7 expense and then, if appropriate, to apportion the payment of the expense between the parties. [35] Section 7(1) and (1.1) read: 7. (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following

expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. Definition of "extraordinary expenses" (1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account

that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (v) any other similar factor that the court considers relevant. [36] Section 7 provides the court with discretion whether to order the payment of extraordinary expenses depending on a number of criteria. The section provides for a two-part test: the expense must be necessary in relation to the child's best interests; and it must be reasonable in relation to either the "income" (as in the case of the expenses enumerated in s. 7(1)(a)-(c) and (e)) or the "means" (as in the case of s. 7(1)(d) and (f)) of the

Guidelines. Private School Education Costs [37] The respondent says the claimant assured him early on in their relationship that she would be responsible for the cost of Sydney's private Catholic school education, that she is aware he has been opposed to her registration in a private school and that he has always wanted Sydney registered in the public school system. The respondent says he should not be required to pay such expenses, particularly given his level of income. The claimant disputes that the respondent has objected to Sydney attending private school. She says he has supported such fees in the past. [38] The cost of sending Sydney to a private Catholic school is approximately $3,120 per year. [39] In my view, given the present status of the parties' work situations, the income they each purport to make, and the inability of the court to determine or attribute additional income to either party, it is wholly unreasonable for either of the parties to support the additional expense of a private school. [40] This situation, of course, may change in the future as the parties' means change or upon motion as documents are produced or as income may be imputed at trial. Orthodontic and other s. 7 expenses [41] The respondent also says he has contributed to Sydney's sporting events. He has produced a list of expenses he incurred as a result of a recent trip he accompanied her on

relating to a sporting activity. The fact the respondent could pay these expenses satisfies me he has sufficient income or means to pay them. I am of the view the claimant and respondent should share these s. 7 expenses equally. [42] The respondent says the claimant has never informed him or given him the opportunity to consult with her about the requirement for Sydney to have orthodontic treatment. I do not accept the respondent's position. The evidence establishes the claimant advised him of Sydney's acceptance into the UBC Graduate Orthodontic program in or about October 2010. The respondent made payments to assist in her treatment in February and March 2011. He deposed in his affidavit of May 12, 2011 he stopped payment because that "is all I could afford." The expenses incurred in the previous paragraph were incurred after March 2011. [43] The orthodontic expenses are necessary. In my view they are expenses which should be shared equally. Production of Documents [44] The respondent says the claimant holds a number of bank accounts in her name which she has not disclosed. The claimant disputes this. To the extent such documents may exist they are relevant to both the issues of the claimant's income and her means. Accordingly I order production of any banking records pertaining to any and all accounts held by the claimant. Conclusion [45] In summary: 1. The matter of spousal support is referred to the trial list. It is with some regret I do so as the Rules require there be a "just, speedy and inexpensive determination of a proceeding on its merits...". Unfortunately that cannot be achieved because the parties are in significant disagreement on many of the issues necessary to make the determination they seek.

2. I dismiss the claimant's application that the respondent contribute to the cost of Sydney's private school education; 3. I order the respondent to contribute equally to the orthodontic expenses and other s. 7 expenses claimed by the claimant; 4. The parties are ordered to produce all financial information relevant to the determination on their respective incomes on an ongoing annual basis immediately. The respondent will produce an updated financial statement including any assets held in his name as well as any updated information he has concerning his Employment Insurance application. The claimant will provide particulars of any assets held by her (including a listing of any bank accounts in her name and the balances of those accounts) as well as particulars concerning her present real estate business. The above list is not intended to limit the scope of any further production that may be requested or required during the course of this action. The parties, of course, have their usual recourse under the Rules concerning disclosure.

5. The parties consent to and I order that each will have an uninterrupted two-week period with Sydney in both the summer and winter of each year. The parties will provide the other with two months' notice of the two-week period. "GREYELL J."