IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100108

Docket: E026122

Registry:
New Westminster

Between:

Janette Boucher

also known as Jeanette Gertrude Boucher

Plaintiff

And

Peter Christopher John Boucher

Defendant

Before:
The Honourable Mr Justice Harvey

Reasons for Judgment

Introduction

[1]          
The plaintiff, Janette Boucher, and the defendant, Peter Boucher,
married on December 24, 1983 and separated in October 2006.  On January 18,
2007, the parties received a declaration under s. 57 of the Family Relations
Act, R.S.B.C. 1996, c. 128 (“FRA”), stating that there was no reasonable
prospect of reconciliation.  They are before the Court for a number of matters
relating to the demise of their relationship. The parties have two children:
Lauren, who is currently 23 years old, and Jenna, who is currently 18 years old.

[2]          
Both children have remained in the former matrimonial home with the plaintiff
following separation. At present, Lauren is not a child of the marriage within
the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). Lauren
has been employed in various capacities since the separation in October 2006,
while residing in the family home. Jenna recently completed Grade 12 and is
hoping to attend Douglas College in January 2010. However, financial
constraints have made this difficult and she is currently working part-time and
earning minimum wage.

[3]          
There is no issue between the parties regarding Jenna’s residency. The
parties agree she should remain in the care of the plaintiff. Given her age,
there is no need for any orders relating to her custody or guardianship.

[4]          
The issues for determination are as follows:

(1) the
determination and division of the family assets, including claims for a
reapportionment of the assets in favour of each spouse and for compensation
orders arising from the disposition of family assets post-separation;

(2) the plaintiff’s
claim for spousal support;

(3) the amount
of child support payable and the parties’ proportionate contribution to the
child’s extraordinary expenses; and

(4) the
amount, if any, owed to the plaintiff by the defendant as arrears for non-payment
under previous orders and for the period between February and November 2008,
where no order was in place.

Background
Facts

The
Plaintiff’s Circumstances

[5]          
The plaintiff is currently 48 years old.  After completing high school,
she took one year of Business College before entering the workforce in a
clerical position in the insurance field. Following the parties’ marriage in
1983, the plaintiff continued to work in that field. Six months after marriage,
the defendant was transferred to Calgary and the plaintiff gave up her job to
accompany him. She found employment in Calgary shortly after arriving there and
worked full time until the birth of the parties’ first child in 1986.

[6]          
Shortly after the expiration of maternity leave, the parties returned to
British Columbia and the plaintiff returned to full time employment and worked
until the birth of Jenna in 1991. Thereafter, she gave up employment outside of
the house for approximately 12 years and concentrated her efforts on raising the
children and maintaining the family home. In 2002, she began an in-home daycare
business which produced a modest profit.

[7]          
In 2003, the plaintiff resumed working part time in the insurance field
and in 2004 she secured full time employment earning approximately $40,000 per year.

[8]          
In 2007, her last full year of employment, the plaintiff earned in
excess of $42,000. This is the wage she was earning when she was laid off in
August 2008.

[9]          
The plaintiff has not sought employment since being laid off. After a
waiting period which arose because of the severance package she received from
her former employer, she began receiving Employment Insurance payments of
approximately $22,000 per year. Those benefits expired in December 2009. The
plaintiff has neither upgraded her qualifications nor has she sought employment
since August 2008. Her explanation as to why she did not seek work or
retraining relates to this litigation. Sometime in 2009, she and her former counsel
parted ways and she began to act in person, albeit through an agent, and she
claims that this has prevented her from seeking work or training.

[10]       
The plaintiff testified that she was overpaid for the job she performed
for her employer and that she will be unlikely to obtain employment at a
similar compensation level in the future because her skill set in the insurance
industry is insufficient to command her former income with a new employer.

[11]       
She anticipated that upon her return to the work force, she expects to
locate employment as a “level one” insurance clerk. She stated the range of pay
for employees with her qualifications is $22,000 to $28,000 per year. This
pessimistic outlook is countered by the plaintiff’s previous employment at a much
higher salary.

[12]       
The plaintiff completed one half of the necessary training to obtain her
“level two” certification after separation. The outstanding requirement to
complete her accreditation is either a night school course of indeterminate
length or a one week immersion course costing $900. The course is also apparently
available online.

[13]       
The plaintiff acknowledged that with that additional qualification, her
anticipated salary range would be increased to $40,000 to $44,000 per year. The
defendant disputed this and opined that with the completion of her “level two”
accreditation, the plaintiff would increase her income earning capacity to earn
significantly more than she did at her last employment. He noted that his
former assistant, who held a “level two” qualification, just left his employ to
take up new employment at a salary of $87,000 per year.

[14]       
The plaintiff did not give a timeline as to her resumption of
employment. The defendant testified that there is a shortage of qualified
applicants for available positions in the area of the plaintiff’s
qualifications and opined that she could readily achieve employment at or near
the range of her earlier income.

The Defendant’s
Circumstances

[15]       
The defendant is currently 57 years of age and is an executive in the
insurance business.  He is a British citizen, but immigrated to Canada in the
early 1980s, has permanent resident status in Canada and has no intention of
returning to live in Britain.

[16]       
The defendant completed the British equivalent of Grade 12 and took
additional courses thereafter, but did not obtain a degree. He has worked in
the insurance industry all of his adult life for various employers, both in
Canada and in the United Kingdom.

[17]       
The defendant currently has a “level three” credential. His historic
earnings, prior to deduction of employment expenses, range from a high of
$166,000 in 2006 to a low of $154,000 in 2008. In 2004 through 2006, owing to a
change in his employer, Willis Canada (“Willis”), he received bonuses by virtue
of bringing in new clients and increasing his book of business. The evidence
from his recent financial information, confirmed by correspondence from Willis,
indicates that the defendant earned no bonuses in 2007 or 2008, and none has
accrued for 2009.

[18]       
The defendant’s book of business produces revenue in the order of
$1,000,000 per year for his employer. His book of business is based on
relationships developed over the course of his working life in the insurance
industry. Contact with clients is the lifeblood of his continued financial
success and as his contacts age and either retire or move on to other
positions, he has more difficulty maintaining their business. As a result, he
says that pressure has been exerted upon him by his employer to begin the
process of moving his clientele on to younger employees within Willis so that
that the continuum of personal contact can be maintained. He has been
encouraged to retire at age 62, although he does not know whether his present financial
circumstances would allow this.

[19]       
At present, the defendant’s income is confined to his salary and the car
allowance provided by his employer. He does not expect bonus income in the
future because servicing existing clients leaves with him with little time to pursue
new clientele.

[20]       
The plaintiff maintains the defendant’s income has been understated
throughout these proceedings for the purpose of determining his spousal and
child support obligations.

[21]       
Throughout the course of the parties cohabitation, various assets were
acquired, specifically employee stock plans with both his former and current
employer, and severance payments from his former employer, Marsh and Company (“Marsh”)
in 2004.

[22]       
The defendant provided cogent evidence as to the acquisition and
disposition of both the stock acquired in Marsh and Willis, such that I am
satisfied that prior to the s. 57 declaration, the stock in each company was
disposed of and the proceeds were utilized to pay family expenses. Any
remaining options in his name have no market value because the strike price is
well above current market value.

[23]       
Upon leaving Marsh in 2004, it was determined an overpayment had been
made into the defendant’s RRSP. His locked in RRSP account was transferred and
the overpayment of approximately $53,000, less withholding tax, was paid to
him. As a result, the defendant was assessed both penalties and interest which
resulted, ultimately, in an income tax liability which caused CRA to garnish
his wages for the taxation years 2005 through 2007. Approximately $12,000 was
garnished over these years.

[24]       
There is a suggestion by the plaintiff that the defendant became
entitled to the British equivalent of Canada Pension Plan during the 10 or so
years he worked there. The defendant disagrees and says that reciprocal
legislation between the two countries precludes him from making application for
a British pension because he has lived here for over 20 years and he is not a
resident of the United Kingdom, nor does he have any intention of returning
there to live after his retirement. The disputed pension entitlement arose
prior to the parties’ marriage in 1983.

Family Assets and Debts Pre-Separation

·        
Family Home

[25]       
The primary family asset of the parties is the matrimonial home, which
is jointly owned and located on Ulster Street, Port Coquitlam, British
Columbia. Prior to separation, the family home was encumbered with a mortgage
to the Bank of Montreal. The principal owing was approximately $82,500 at the
time of the s. 57 declaration. Payments of $443 were made weekly on an
accelerated payment plan.

·        
RRSPs

[26]       
Each of the parties accumulated RRSPs over the course of the marriage.
At separation, the value of these combined RRSPs exceeded $400,000. Since
separation, with the addition of further contributions through their respective
employment and investment gains, the combined value exceeds $500,000.

[27]       
Each of the parties made ongoing contributions to an RRSP associated
with their employment following pronouncement of the s. 57 declaration in
January 2007.

·        
Vehicles

[28]       
Prior to separation, the parties and their daughters had several
vehicles: a Honda Civic, a Jeep, and a leased vehicle operated by the
defendant.  In addition, the parties had a 1997 Prowler Trailer kept on the
family property.

[29]       
Lauren was involved in several motor vehicle accidents, one of which
caused extensive damage to the Honda Civic which the plaintiff now operates. The
Honda was purchased for Lauren prior to separation and was registered and
insured in her name. As the Honda was financed, collision insurance was
required by the lender. The insurance for the vehicle became prohibitively
expensive because of Lauren’s driving history and, as a result, the Jeep,
operated and owned by the plaintiff, was transferred into Lauren’s name. The
Jeep was fully paid for so there was no need to maintain collision insurance on
it.

[30]       
Some time following separation, the Jeep was stolen and not replaced.
The sum of $7,100 was paid to Lauren, the registered owner, by ICBC. Of the
$7,100 received from ICBC as a result of the theft of the Jeep, the plaintiff
received approximately $6,000 and Lauren retained the rest.

[31]       
The plaintiff maintains that the Honda is Lauren’s vehicle and the
change in ownership of the Jeep and Honda was occasioned solely by the
prohibitive cost of the insurance on the Honda if Lauren continued to own it.
The defendant asserts both vehicles are family property. The plaintiff and her
daughters continue to drive the Honda. The vehicle is registered in the name of
the plaintiff and she has listed it in her Statement of Property as her
vehicle.

·        
Lauren’s Credit Card Debt

[32]       
According to the defendant, the parties jointly approved Lauren
obtaining a Visa card with a $500 credit limit when she was 15 years old. The
card was only to be used for emergency purposes. The defendant says that it was
with full knowledge of the plaintiff that he guaranteed the credit card for
their daughter.

[33]       
Unbeknownst to both parties until well after separation, Visa, in
reliance on the defendant’s good credit record, simply raised the credit available
to Lauren every time she surpassed it. The account statements went directly to
Lauren and were not monitored by either of the parties. At one point in time,
the Visa card had a credit limit of $11,500.

[34]       
As a result, by the fall of 2007, Lauren was indebted to Visa in an amount
exceeding $6,000. She had no means to pay and called the defendant in despair.
This was the first time he became aware of the increase in credit. He
immediately advised the plaintiff of the situation.

[35]       
The defendant made payments on the card totalling $2,500 following Lauren’s
disclosure of the debt. However, Lauren promptly began using the card again,
returning the balance to its maximum.

[36]       
The defendant, after discussions with Lauren, withdrew his guarantee and
effectively took over the card and the debt attached to it. He considers that
debt, given the circumstances of its origin, to be family debt. The plaintiff
disagrees.

·        
Individual Debt of the Parties

[37]       
Each of the parties had debt in their own name at the time of
separation. The plaintiff operated credit cards in her own name and the
defendant maintained a line of credit. Other than a Sears account, the
plaintiff was unable to produce evidence of the status of her credit facilities
at either the date of separation or the s. 57 declaration. The total amount
which had accumulated by the time the family home was refinanced in September
2008 was $9,700.

[38]       
The defendant’s line of credit stood at approximately $29,000 at
separation, $31,000 at the time of the s. 57 declaration, and $34,250 when paid
out in September 2008. At the time of separation, there was also approximately
$1,300 owing to CIBC, approximately $12,000 owing in respect of the Honda, and
small amounts owed to Dell and Home Depot. In addition, in 2007, the defendant
discovered the debt incurred by Lauren on the Visa he guaranteed. He assumed
that indebtedness in the latter part of 2007 and still owes Visa in respect of
it.

Post-Separation Arrangements and Orders

[39]       
Following separation in October 2006, loose arrangements were made to
maintain the pre-existing division of financial responsibilities. Despite the
reasonably attractive incomes of both parties, money appears to have been
scarce. During most of the marriage, the defendant maintained a separate
account and made a prescribed payment of $800 a month into the joint account
which was operated by the plaintiff. Her salary was deposited directly into the
joint account.

[40]       
Each party historically maintained separate household responsibilities
from these separate accounts. The defendant paid the “major” expenses, including
the mortgage (which included the property taxes), home insurance, the line of
credit payments and the car payments. The plaintiff maintained the day to day
household expenses from the joint account.

[41]       
Following separation, the defendant moved the trailer, formerly situate
at the matrimonial home, to a trailer park in North Vancouver. He lived there
for almost a year. The plaintiff and two children continued to reside in the
matrimonial home to the date of trial, except for a brief period of time in
2008 when Jenna lived with the defendant in the apartment he currently rents in
North Vancouver.

[42]       
The parties’ first formal arrangement came at a Judicial Case Conference
on January 18, 2007, where the following consent order was pronounced by Master
Bishop (the “Bishop Order”):

1.    Pursuant to
Section 57 of the Family Relations Act, RSBC, 1996, c. 128 there is no
reasonable prospect of reconciliation between the Plaintiff and Defendant;

2.    The Defendant
provide to the Plaintiff authorizations to obtain:

(a)  monthly account statements
for the past 2 years relating to the Defendant’s Line-of-Credit account with
the Bank of Montreal and all credit cards of the Defendant;

(b)  current employments
contract; and

(c)  certified copies of the
Defendant’s Income Tax Returns for the years 2001 to date.

3.    The Defendant
shall continue to pay the mortgage with respect to the family home in the sum
of $1,720.00 and to pay to the Plaintiff $800.00 per month as contribution to
household expenses.

4.    The parties are
at liberty to set another Judicial Case Conference.

[43]       
The Bishop Order was to be a short term solution to maintain financial
stability until the exchange of complete financial information. Instead, it
endured until December 2007, when a further consent order was agreed to on the
eve of an intended Chambers application by the plaintiff (the “Consent Order”).

[44]       
The Bishop Order required the defendant to pay the mortgage, stated to be
$1,720 per month, together with a further $800 as his “contribution to the household
expenses”. In fact, the mortgage was payable weekly at the rate of $443 which
is $1,920 per month, not the $1,720 specified in the Bishop Order. The
defendant paid the full amount of mortgage directly to the Bank of Montreal and
$800 into the joint account in compliance with the Bishop Order. Neither
payment was characterized as spousal support thereby precluding the defendant
from deducting any of the money paid from his taxable income.

[45]       
The plaintiff complains that while making these payments, the defendant reimbursed
himself from the joint account for certain expenses, such as Jenna’s cell phone
bill and a portion of the line of credit.

[46]       
The defendant, while acknowledging that he did so, points out that in
addition to making the payments required by the Bishop Order, he was also
making significant payments on account of the Honda car loan, the parties’
medical and disability insurance, the home insurance, and other family related
expenses including payments on the line of credit. He interpreted the Bishop
Order as limiting his contribution to the family expenses to $800 per month. He
says he could not afford to maintain the additional expenses which he
historically paid when the parties were together and he did not have separate
living expenses for himself.

[47]       
The plaintiff seeks reimbursement for the money which, in her
submission, was wrongly taken from the joint account. The defendant seeks an
accounting and credit for all money expended by him outside the scope of the
Bishop Order as a credit against the arrears of spousal support which accrued
under the subsequent order of Master Taylor, pronounced in November 2008 (the
“Taylor Order”).

[48]       
The Bishop Order was replaced by the Consent Order, which was agreed to
in December 2007. The Consent Order was not entered until May 2008.

[49]       
The terms of the Consent Order provided that the defendant would pay the
plaintiff spousal support of $4,000 a month, in equal payments of $2,000 on the
1^st and 15^th day of each month, for a period of two and a
half months, provided that the plaintiff assumed payment of the mortgage and
one half of the line of credit payment to a maximum of $400 per month. The Consent
Order expired on February 15, 2008.

[50]       
The defendant made the first four required payments, but neglected to
make the last $2,000 payment, due February 15, 2008. The payments were made via
direct deposit into the plaintiff’s joint account. No provision was made in the
Consent Order for the payment of the Honda loan, house insurance or other debts,
which were paid by the defendant both before and after the pronouncement of the
Consent Order.

[51]       
The defendant testified that the plaintiff failed to make three of the
mortgage payments and two of the line of credit payments such that the amount
she was required to pay under the terms of the Consent Order exceeded the
amount he withheld by not making the last payment.

[52]       
However, the plaintiff testified that she had paid to the defendant, via
cheque, approximately $750 of the amount owing on the mortgage and line of
credit such that she was “shorted” $750 under the terms of the Consent Order.
There is also an issue as to who was to pay the mortgage on December 14, 2007.
The defendant says that the payment became due at midnight on the 14^th
but was a payment in respect of the 15^th of December and, according
to the terms of the Consent Order, the plaintiff’s obligation. During the time
the Consent Order was in effect, the defendant continued to make payments on
account of the Honda loan, the house insurance and other payments on loans
outstanding at separation.

[53]       
Upon the expiry of the Consent Order on February 15, 2008, no further
order was in place until the Taylor Order, pronounced in November 2008.

[54]       
Between February and November 2008, the defendant continued to pay some
family expenses but did not maintain the mortgage nor did he make any payment
to the plaintiff for her maintenance or for Jenna who has, at all times, been a
child of the marriage for whom child support should have been payable.

[55]       
In the fall of 2008, the mortgage was renegotiated with the bank and the
existing mortgage was retired, together with the line of credit, which at that
time exceeded $34,000, and the plaintiff’s outstanding credit card debt which
totalled, at that time, $9,700.

[56]       
The remaining sum of $55,009 from the renegotiation was placed into the
plaintiff’s solicitor’s trust account with the purpose, in part, of making needed
repairs to the house to ready it for sale. It remains there currently.

[57]       
After the re-financing, the defendant began paying the mortgage again.
The new mortgage terms required two payments per month of $464.83.

[58]       
There appears to have been considerable communication back and forth
between counsel and, once self-represented, the parties, about much needed
repairs to the roof. Other repairs are required, but none so urgently as
replacement of the roof, which is presently covered with tarps as a result of
leaks discovered post-separation.

[59]       
In November 2008, the plaintiff obtained the Taylor Order, which required
the defendant to pay both spousal and child support. Master Taylor made a
without prejudice determination of the defendant’s income and ordered spousal
support payable in differing amounts to reflect the drop in the plaintiff’s
income as a result of her severance pay coming to an end.

[60]       
The relevant terms of the Taylor Order are as follows:

1.    This Order is
made on an interim “without prejudice” basis.

2.    The Defendant,
payor, shall pay to the Plaintiff, recipient, the sum of $1,213.00 per month,
for the support of the child of the marriage, payable in two equal instalments
of $606.50, payable on the 1st and 15th of each and every month commencing
December 1, 2008 and continuing for so long as the child is “a child of the
marriage” as defined by the Divorce Act.

3.    The Defendant
shall pay to the Plaintiff spousal support for December 1, 2008 to December 31,
2008 in the amount of $2,099.00, based on the Plaintiff’s income of $43,204.49
and the Defendant’s income of $138,600.00 payable in two equal instalments of
$1,049.50 payable on the 1st and 15th of December, 2008.

4.    The Defendant
shall pay to the Plaintiff spousal support in the sum of $2,881.00 per month,
based on the Plaintiff’s income of $22,620.00 and the Defendant’s income of
$138,600.00, payable in two equal instalments of $1,440.50 payable on the 1st
and 15th of each and every month, commencing January 1, 2009.

5.    The Defendant
shall deposit the spousal and child support payments directly into the Plaintiff’s
Bank of Montreal Account […] at the Port Coquitlam Branch located at #101
Shaughnessy Street, Port Coquitlam, B.C.

6.    The Plaintiff
and Defendant shall contribute equally to the cost of the mortgage payments on
the Family Residence located at […] Ulster Street, Port Coquitlam, on or
before the date it becomes due each month commencing December 1, 2008.

[61]       
The defendant complied with the Taylor Order with regard to child
support payments, but made no payments on account of spousal support until
October 2009. Instead, he paid the whole of the mortgage and continued with
other payments that related to the maintenance of the home and the loan for the
Honda. At trial he submitted a detailed accounting of the expenses he
maintained since separation and seeks an accounting in respect of those
payments towards a reduction in the admitted arrears of spousal support which
have accumulated since the Taylor Order was pronounced.

[62]       
Arrears of spousal support under the Taylor Order totalled $28,028 at
the commencement of the trial. This amount differs from the amount calculated
by Family Maintenance Enforcement because it does not include any provision for
interest or penalty.

[63]       
Although a primary reason for the re-financing of the mortgage on the
home was to create a fund for the repairs, no such repairs have been
undertaken.

[64]       
Estimates of the needed repairs were forwarded to the defendant along
with the information disclosing that a deposit would be required before work
would start. Communication directly between the parties, who by this time had
charge of the litigation, did not result in the release of funds. The roof is
still in need of replacement, but the estimates are no longer current. Other
deficiencies in the home have been noted by the plaintiff and are described in
the building inspection report prepared just prior to the commencement of
trial.

[65]       
In July 2009, the plaintiff brought application seeking an order that
the defendant pay the arrears of spousal support which had accumulated under
the Taylor Order, that funds be released for the repair of the roof, that the
defendant provide further financial disclosure and an adjournment of the trial
scheduled to begin November 2, 2009. She also sought a declaration that the
defendant was in contempt of court.

[66]       
The defendant brought a cross application to vary the spousal support
provisions contained in the Taylor Order.

[67]       
The application was heard by Preston J. on September 18, 2009 and the following
order resulted (the “Preston Order”):

1.    The Plaintiff shall retain a registered real estate appraiser to
appraise the matrimonial home located at […] Ulster Street, in the city of Port
Coquitlam, British Columbia, the cost of which will be paid out of the trust
account held by Schwarz & Co. The Defendant shall authorize the release of
funds from the trust account held by Schwarz & Co. to the Plaintiff for
payment of the appraisal. The real estate appraiser shall be familiar with
properties located in the area of the matrimonial home. Both parties shall
receive copies of the appraisal.

2.    The Plaintiff shall retain a licensed building inspector to inspect
the matrimonial home, the cost of which will be paid out of the trust account
held by Schwarz & Co. The Defendant shall authorize the release of funds
from the trust account held by Schwarz & Co. to the Plaintiff for payment
of the inspection. Both parties shall receive copies of the inspection report.

3.    The Defendant shall provide authorization to the Ministry or
Ministries of the UK Government to which the Defendant’s applications for his
National Insurance Number and his UK pension information are addressed, to
release to the Plaintiff’s information regarding the Defendant’s National
Insurance Number and his UK pension respectively. The Defendant shall do this
within 3 days.

4.    The Defendant shall file a new application with the UK Government
requesting a pension forecast once he receives his UK National Insurance
Number.

5.    The Defendant shall provide a copy of his Notice of Assessment
relating to his 2007 Income Tax return from Canada Revenue Agency to the
Plaintiff.

6.    The Plaintiff and the Defendant shall both authorize the release of
funds from the trust account held by Schwarz & Co. to pay out the following
amounts to the City of Port Coquitlam, British Columbia:

a.    $2,535.86 in overdue property taxes

b.    $120.76 in fines as a result of overdue property taxes

c.    $636.46 in overdue municipal utilities

7.    The Defendant shall authorize the release of funds in the amount of
$6,103.00 from the trust account held by Schwarz & Co. to the Plaintiff for
the cost of the roof repairs and replacement of the shingles of the matrimonial
home located at […] Ulster Street, in the city of Port Coquitlam, British Columbia.

8.    The motion to vary the spousal support order of Master Taylor dated
November 21, 2008 is adjourned until trial. In the interim, the Defendant shall
immediately pay to the Plaintiff $10,188.00 in arrears of spousal support. The
$10,188.00 shall be credited to the Defendant against the arrears of spousal
support determined at trial. The Defendant must also continue to pay to the
Plaintiff $2,881.00 per month in spousal support as ordered by Master Taylor on
November 21, 2008 until the matter is decided at trial.

9.    The motion to adjourn the trial is dismissed generally. The trial
shall remain scheduled for November 2, 2009.

10.  The motion for contempt of court is adjourned generally.

11.  The Defendant’s motion for
disclosure of documents is adjourned generally.

12.  Costs of these applications
will be costs in the cause.

[68]       
The defendant did not comply with the Preston Order for the release of funds
to repair the roof and he also failed to pay the sum of $10,188 to the
plaintiff on account of spousal support arrears. He also failed to pay half of
the costs associated with the appraisal of the home or the building inspection.
He began complying with the Taylor Order in October 2009 and has paid the
required spousal support in October and for the first portion of November.

[69]       
The plaintiff has filed the order with Family Maintenance Enforcement,
but they monitor, and do not enforce, payment. Its calculation of arrears
includes penalties and interest.

[70]       
Child support for Jenna is current. The plaintiff seeks a contribution
by the defendant to Jenna’s prospective extraordinary expenses. These consist
of tuition, in an amount not yet ascertained, and orthodontic expense of $7,400
as per a treatment plan submitted by the plaintiff.

[71]       
The defendant is covered by a dental plan through his employment which
will cover $2,500 to $5,000 of the treatment sought for Jenna.

[72]       
Jenna, according the plaintiff’s evidence, wishes to attend Douglas
College. The defendant supports her further education and says he will
contribute what he can afford once a course of study is commenced.

[73]       
On December 4, 2009, at the conclusion of this trial, I ordered that the
defendant release $12,000 from the trust fund immediately for the repair of the
roof and replacement of shingles for the family home. In addition, I ordered
that the defendant immediately pay the plaintiff $10,188 in arrears of spousal
support out of the trust fund, which would be credited to the defendant against
the arrears of spousal support as I found them at trial. I assume that these
payments have been made out of the trust fund and will deduct these amounts
accordingly in these reasons.

Analysis and Findings

Issue 1 – Division
of Family Assets

·        
The Law

[74]       
Under s. 56 of the FRA, each spouse is entitled to an interest in
each family asset in existence at the time of a triggering event.  In this
case, the triggering event was the s. 57 declaration in the Bishop Order of
January 18, 2007.

[75]       
The presumptive division of family assets is an equal division. However,
s. 65(1) of the FRA allows for a reapportionment of assets where
the presumptive equal division would be unfair.

[76]       
Section 65(1) of the FRA was
considered by the British Columbia Court of Appeal in S.B.M. v. N.M.,
2003 BCCA 300. Donald J.A., writing for the court, held as follows, at
paras. 23-24:

The Legislature created a presumption of equality – a
presumption that can only be displaced by a demonstration that an equal
division would be unfair. So the issue of fairness is not at large, allowing a
judge to pick the outcome that he prefers from among various alternative
dispositions, all of which may be arguably fair. He must decide, in accordance
with the language of s. 65(1), that an equal division would be unfair before he
considers apportionment.

[…]

The correct approach was well described by Mr. Justice
Lambert for the majority (Madam Justice Southin dissenting, but not on this
point) in Lockhart v. Lockhart (1989), 19 R.F.L. (3d) 359 at 362:

The general rule is the rule provided by the
legislature in s. 43 [now s. 56]. The family assets must be divided equally.
The exception to that rule occurs only where equality of division would be
unfair and then only when the unfairness arises from the specific factors set
out in the lettered paragraphs of s. 51 [now s. 65].

In my opinion, in this case, equality of division would not
have given rise to unfairness. The question of whether equality is unfair is
not to be decided on the basis of narrow distinctions. The determining factor
is whether equality is offensive to a sense of fairness and justice, having
regard to the circumstances of the parties.

[77]       
Another factor that can be considered under s. 65 of the FRA when
determining the appropriateness of reapportionment of family assets is the
existence of current debts, both individual debt and those incurred for family
purpose: Mallen v. Mallen (1992), 65 B.C.L.R. (2d) 241 (C.A.).

·        
The Parties’ Debt

[78]       
When determining the division and possible reapportionment of the family
assets, I will first consider the whether the debt in existence at the time of
the triggering event will affect that division and reapportionment.

[79]       
The line of credit in the sole name of the defendant was outstanding at
the time of separation and the triggering event. It is clear from the evidence
that this debt accumulated for the benefit of the family and must be taken into
account in the division of assets.

[80]       
The line of credit was paid out in September 2008 from the proceeds of
the re-financing of the house. The amount paid out was approximately $34,500.

[81]       
At the same time, credit card debt in the amount of $9,700, in the sole
name of the plaintiff, was retired. Certain other joint debts, including
arrears in the mortgage, were also paid from the proceeds of the refinancing.
The plaintiff conceded that much of this debt accumulated after separation. Not
surprisingly, she blames this on the defendant’s non-compliance with the
support orders.

[82]       
Also outstanding at the time of both separation and the triggering event
was the Honda loan, which was a debt incurred for the benefit of the family,
and the CIBC loan for the amount owing on the Prowler trailer. There was also
the Visa debt in Lauren’s name assumed by the defendant in late 2007.

[83]       
The plaintiff asserts that the car, despite its registration in her
name, belongs to Lauren, and the payment of the Honda loan by the defendant
ought to be of no consequence in determining the division of the family assets.
The plaintiff adopts the same position when it comes to determining the effect
of the Visa debt in Lauren’s name guaranteed by the defendant and eventually
assumed by him to be his debt. Some of the amount remains owing as of the date
of trial.

[84]       
For the purposes of dividing assets, I will not consider the debt
associated with the Honda or Lauren’s Visa. The payments have come from the
defendant’s income, as have the payments made by him until September 2008 on
the line of credit. However, these payments have relevance, as do the interest
payments made on the line of credit, when considering the retrospective spousal
support obligation of the defendant, particularly in the period between
February and December of 2008 when there was no order or agreement governing
the parties’ financial arrangements.

[85]       
With regard to the line of credit and the credit cards, both of which
were paid out in full from the September 2008 re-financing, I conclude that no
adjustment of the family assets is necessary to try and apportion these debts
as at the triggering event. While each debt increased slightly from the date of
the triggering event until payment, the increase in each was of a similar
amount. I consider it fair, from both an accounting sense and with regard to
the provisions of s. 65(1) of the FRA to simply treat the totality of
the debt as “family debt” which has been paid from the joint equity in the
family home. As such, there is no need to further consider the individual debts
of the parties in apportioning the equity in the remaining assets.

[86]       
Each of the plaintiff and defendant shall remain responsible for the
debt in their own name as at the date of trial and jointly responsible for the
mortgage on the family home.

·        
Reapportionment

[87]       
The plaintiff seeks an unequal division of the family assets on the
basis of her need to become and remain economically independent of the
defendant, while the defendant seeks the sale of the matrimonial home and,
thereafter, equal division of the net proceeds of sale.

[88]       
This was a long marriage. The plaintiff is entitled to, and will be
awarded, spousal support to deal with the presumed economic disadvantage which
arises from a long, traditional marriage where one spouse, in this case the
plaintiff, removes themselves from the work force for an extended period of
time.

[89]       
As a result, I can find nothing in the circumstances of the parties
which would make an equal division of the family assets unfair, except for the
accretion made to their respective employment RRSPs after the triggering event.

·        
Family Home

[90]       
The former matrimonial home on Ulster Street is encumbered by a mortgage
in favour of the Bank of Montreal. The current amount outstanding is approximately
$162,500, as a result of the September 2008 re-financing.

[91]       
The appraisal tendered in evidence by the plaintiff sets the current
value of the home at $475,000. The appraisal makes no reference to anticipated
repairs and I therefore assume that the value opined is on an “as is” basis.

[92]       
It is clear that the appraiser was aware of the condition of the roof.
He references an approximate amount of $5,000 needed to repair the roof.

[93]       
It may be that the home, once upgraded to conform to the building
inspection report, will fetch a significantly higher price. It may be, however,
that the costs of the needed repairs will not fetch an increase in price
sufficient to justify the expenditure.

[94]       
I have concluded that the home must be sold and I leave it to the
parties to agree as to what repairs might reasonably be done so as to bring the
best value from the sale. By “best value”, I mean that the parties should only
consider such repairs as are either necessary to sell the home or,
alternatively, any modest enhancement which can shown to effectively return a
profit to the parties by investing funds to upgrade the property cosmetically.
The roof clearly needs repair and, as mentioned, I ordered that $12,000 be
released from the trust in order to make this repair as soon as possible. I am
not satisfied that the plaintiff has proven that the enhanced cost of repairs
is as a result of the delay in attending to the repairs earlier in time. The
cost of the roof repair will be shared equally between the parties and the
surplus, if any, in excess of the $12,000 released to the plaintiff shall be
divided equally.

[95]       
The parties may agree that further repairs and/or improvements are
required after they have obtained the opinion of the realtor they select to help
them list the house. Any further repairs and/or improvements shall be paid from
the money held in trust. Thereafter, the remaining funds held in trust shall be
divided equally between the parties subject to the adjustment made in respect
of the payment of arrears of support ordered by me to have been paid from the
defendant’s share.

[96]       
From the sale proceeds, the encumbrance to the Bank of Montreal shall be
discharged and, thereafter, the remaining sale proceeds, after selling costs
and the usual vendor’s adjustments, shall be divided equally between the
parties, subject the adjustments which follow.

[97]       
There will be joint conduct of sale to the parties with liberty to apply
for directions, if necessary. I will remain seized of this matter to deal with
any applications which may arise in respect of the intended sale.

·        
RRSPs

[98]       
The evidence disclosed that each party made ongoing contributions,
matched in some measure by their employer, to their RRSPs after the triggering
event of January 18, 2007.

[99]       
The defendant’s “employment pension” with Willis Canada (“Manulife RRSP”),
had a value of $30,758 at the end of December 2006, the date closest to the
triggering event. The defendant and his employer made contributions of approximately
$74,500 after that date. The fund, now worth $66,000, has experienced negative
growth over the period of time since separation.

[100]     The
plaintiff’s employment pension (“Sunlife RRSP”) had a value at separation of
$6,000. It is not clear what further contributions have been made, as all
evidence tendered by the plaintiff relates to the historical value, rather than
its present value.

[101]     I order a
reapportionment of the parties’ respective employment pensions as follows: the
defendant shall transfer, by way of spousal rollover pursuant to the Income
Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (“ITA”), the sum of $12,500 from his
Manulife RRSP. This represents one half of its value at separation, less his
notional one half share of the plaintiff’s Sunlife RRSP. The growth since then
shall be retained by him.  The accretion to the Sunlife RRSP is less than the
combined post separation contributions of the defendant and his employer. The
plaintiff will retain for her use the Sunlife RRSP. The remaining RRSPs, with a
value exceeding $500,000, will be divided equally by utilizing the rollover
provisions of the ITA. The parties may have liberty to apply for
directions if required and I shall remain seized of such application.

·        
Vehicles

[102]     In respect
of the automobiles, the plaintiff will retain the Honda Civic registered in her
name. The defendant shall retain the Prowler trailer.

[103]     I order
that the plaintiff pay the defendant $3,550 from her share of the sale of the
family home for his interest in the insurance proceeds representing the value
of the Jeep.

·        
Contents of Family Home

[104]     Little by
way of evidence was adduced to identify, let alone value, the contents of the
family home.

[105]     The
defendant gave evidence that he would like some china which was given to the
parties by the defendant’s mother. The plaintiff acknowledged during the trial
that it was appropriate that he have the china, but did not agree that it was
excluded as a family asset. Any division of the contents of the home will
require that the defendant have the china as agreed. However, if an overall
agreement is not achieved concerning the division of the house contents, then
the china will be but one of the assets of the parties sold at auction. There
is nothing to prevent the defendant from acquiring the china at auction in the
event the parties do not agree to a mechanism for the division of the house
contents.

[106]     I urge the
parties to come to an overall agreement concerning the division of the house
contents. Failing agreement within 60 days from the date of release of this
judgment, the contents, save for the personal property of either of the
children, shall be placed for sale with an auctioneer mutually agreed to by the
parties and the net sale proceeds divided equally. The children’s furnishings
shall remain in the possession of the plaintiff for use by the children as they
will continue to reside with her.

Issue 2 – Spousal
support

[107]     The
plaintiff seeks support based on both the compensatory and non-compensatory
models.  The parties cohabited for twenty three years, from 1983 until 2006. The
entitlement to spousal support is not contested by the defendant; rather it is
an issue of quantum and duration. When considering spousal support, the
principles enunciated by the Supreme Court of Canada in Moge v. Moge (1992),
3 S.C.R. 813 at 848-849 apply:

[T]he purpose of spousal support
is to relieve economic hardship that results from "marriage or its
breakdown". Whatever the respective advantages to the parties of a
marriage in other areas, the focus of the inquiry when assessing spousal
support after the marriage has ended must be the effect of the marriage in
either impairing or improving each party’s economic prospects.

[108]     Once a
decision has been reached that a spouse is entitled to spousal support, the
quantum and duration should be determined with reference to the Spousal
Support Advisory Guidelines: A Draft Proposal, (Ottawa, Dept. of Justice:
2005) ("SSAG"). There has been repeated endorsement of the SSAG
by the Court of Appeal in recent years. In Yemchuk v. Yemchuk, 2005 BCCA
406, Prowse J.A. stated at para. 64, that "I have no hesitation in viewing
the Advisory Guidelines as a useful tool to assist judges in assessing the
quantum and duration of spousal support." In Redpath v. Redpath, 2006
BCCA 338, Newbury J.A. observed, at para. 42, that while using the SSAG
is not mandatory as a matter of law, if the quantum of the award was
substantially outside the range provided for by the SSAG it could, in
the absence of some explanation for the difference, constitute an error of law
reversible on appeal.

[109]     In this
case, owing to the length of the marriage and the age of the plaintiff, the duration
for the payment of support under the SSAG is indefinite.

[110]    
However, as was stated by the British Columbia Court of Appeal in Chutter
v. Chutter, 2008 BCCA 507 at para. 118:

The length of the marriage is defined in the Guidelines
as the period of cohabitation. However, for marriages over 25 years in length,
the duration of spousal support is indefinite (Guidelines at s. 7.5).
The authors of the Guidelines, however, emphasize that
"indefinite" does not mean permanent (Guidelines at s. 7.5.2):

In using the term
"indefinite" we simply adopted a word that had been used for years in
spousal support law to mean "an order for support without a time limit at
the time it is made". Under the Advisory Guidelines an order for
indefinite support does not necessarily mean permanent support, and it
certainly does not mean that support will continue indefinitely at the level
set by the formula.

Under the current law, orders for
indefinite support are open to variation as the parties’ circumstances change
over time and may also have review conditions attached to them. The Advisory
Guidelines do nothing to change this: "indefinite" support means
support that is subject to the normal process of variation and review.

Through the process of review and
variation the amount of spousal support may be reduced, for example if the
recipient’s income increases or if the recipient fails to make reasonable
efforts to earn income and income is imputed. Support may even be terminated if
the basis for entitlement disappears. It is true that current law supports the
idea that after long marriages spousal support will often be permanent, even if
the amount is subject to reduction to reflect the recipient’s obligation to
pursue self-sufficiency.

[Emphasis
in original.]

[111]     In order
to determine the obligation of the defendant under the SSAG, it is
necessary to assess the income of both parties. I am satisfied that the
defendant’s income can be determined with some precision by reference to his
current situation. While it is true he has received bonus income in the past, I
am satisfied with the defendant’s explanation as to how the bonuses came to be
and as to why they are unlikely to be achieved in the foreseeable future.

[112]     The car
allowance he receives amounts to $800 per month. Against this income, the
defendant has traditionally deducted approximately $14,000 per year in car
related expenses. The result is a taxable income of between a low of $140,000
for 2008 and a high of $152,000 in 2006. He volunteered during examination in
chief that he had made errors in the calculation of the Schedule III expenses
such that the proper amount of his income in 2008, according to his view of his
expenses, was $139,600.

[113]     The
defendant’s “revised T1 General 2008 tax return” indicates employment income of
$153,752 (which includes his lease allowance), together with a further sum of
$903 for commission income, for a total income of $154,655 before deductions.

[114]     The
defendant’s employment requires travel by automobile. The deduction claimed for
his automobile expenses on his taxes is proportionate to the business, as
opposed to personal, use of the vehicle. Additionally, he has claimed, as a
deduction from income, certain office expenses and capital cost allowance
relating to the leasing costs of his vehicle. The defendant does not own
another automobile for personal use. Clearly, he derives personal benefit from
the operation of the leased vehicle. He, for tax purposes, sets that personal
benefit at 27.8% of usage.

[115]     On the
evidence before me, it is unclear how that figure was arrived at. While the
bare assertion of the proportionate use for business purposes may satisfy the
Canada Revenue Agency, it is not sufficient for the purposes of determining the
propriety of the deduction in terms of how it relates to the obligation of the
defendant to pay both child and spousal support.

[116]     Nonetheless,
I accept the proposition that the vehicle has a business purpose. Given the
paucity of evidence, I would allow the sum of $7,000 to be deducted from the
defendant’s income for the totality of his business expenses (including arctic
gear) so as to arrive at a guideline income of $147,655.

[117]     With
regard to the plaintiff’s income, she has an obligation under the governing
legislation, both the FRA and the Divorce Act, to make reasonable
efforts to achieve self sufficiency.

[118]     Her
unemployment for the past 14 months may have initially been involuntary, but
she has perpetuated the situation by not seeking out employment or upgrading
her qualifications.

[119]     In the
absence of evidence of concrete efforts to seek employment since August 2008, I
conclude, on the whole of the evidence, that employment is available to her at or
near her former rate of compensation and that she has chosen instead to rely on
Employment Insurance and the enhanced support she ought to have received from
the defendant to meet her expenses.

[120]     For the
purposes of establishing the defendant’s spousal support obligation, commencing
January 1, 2010, I find that the defendant’s income is $147,655 and the
plaintiff’s income is $42,000.

[121]     Using
those income amounts, and taking into account the defendant’s support
obligation for Jenna, the SSAG provides for a lower amount of $2,134 per
month, a midpoint amount of $2,577 per month, and an upper amount of $3,031 per
month.

[122]     There is
no reason to depart from the midpoint amount and I accordingly set the amount
of spousal support payable in the amount of $2,577 per month, payable
in equal instalments of $1,288.50 on the 1^st and 15^th of each
month, commencing January 1, 2010 and thereafter until further order of the
court.

[123]     Each of
the parties shall provide the other with a complete copy of his/her income tax
return by May 15^th of each year, commencing May 2010, and thereafter
for so long as either child or spousal support is payable by the defendant.

[124]     Additionally,
each party shall provide the other with their Notices of Assessment once
received from the Canada Revenue Agency for so long as support remains payable.

Issue 3 – Child support

Generally

[125]     Child
support is determined with reference to the Federal Child Support Guidelines,
S.O.R./97-175 (the "Guidelines").  Section 3(1) of the Guidelines
sets out the approach for children under the age of majority:

3 (1) Unless otherwise provided under these Guidelines, the
amount of a child support order for children under the age of majority is

(a)  the
amount set out in the applicable table, according to the number of children
under the age of majority to whom the order relates and the income of the
spouse against whom the order is sought; and

(b)  the amount, if any, determined
under section 7.

[126]     Having established
the income or the defendant, for support purposes, at $147,655 and the income
of the plaintiff at $42,000, the amount of child support payable by the
defendant is $1,284 per month. Child support will be payable in equal
instalments on the 1st and 15th day of each month, commencing January 1, 2010,
for so long as Jenna remains a child of the marriage within the meaning of the
legislation.

Extraordinary expenses

[127]     In
addition to an order for child support, the court may make an order in relation
to s. 7 expenses.  Section 7 expenses are “special or extraordinary” expenses
that may be included in a child support order, depending on their nature,
reasonableness and the spending habits of the family prior to separation.

[128]     I order
that the parties share Jenna’s extraordinary expenses in proportion to their
incomes, as determined herein.  This results in the defendant being responsible
for 78% of the extraordinary expenses and the plaintiff for the remaining 22%.

[129]     The only
extraordinary expense that has been proven is the requirement for orthodontics
in accordance with the treatment plan adduced in evidence. The parties should
contribute proportionally to the initial payment and, thereafter, make the
required monthly payments in the same proportion. To the extent the dental plan
associated with the defendant’s employment can be paid directly to the
orthodontist so as to reduce the monthly payments and/or down payment, the
parties will enjoy the benefit of that reduction proportionately.

[130]     Should
Jenna attend Douglas College, or any other post-secondary institution, while
remaining a child of the marriage under the Divorce Act, the parties
shall share costs relating to tuition, student fees and textbooks associated
with her courses in the same proportion.

[131]     If the
plaintiff seeks contribution for any other extraordinary expense on behalf of
Jenna, she shall first discuss it with the defendant and seek his agreement as
to his proportionate contribution. In the event he declines, then she is at
liberty to apply for an order.

Issue 4 – Arrears from
Previous Orders

[132]     It is
clear from the evidence that the defendant has failed to comply with the various
court orders directing payment of support.  However, he has made a number of
voluntary payments not contained in the orders. In order to determine what, if
any, arrears the defendant should pay to the plaintiff, I will examine each
order and the payments made while that order was in effect.

The Bishop Order

[133]     The initial
order after separation was the Bishop Order, pronounced January 18, 2007. This
order endured for approximately one year until replaced by the Consent Order,
which came into effect December 15, 2007.

[134]     The Bishop
Order required the defendant to pay the mortgage payment on the family home and
deposit $800 per month into the plaintiff’s bank account. The defendant
complied with the Bishop Order, but withdrew funds from the joint account to
pay for expenses he felt were to be shared. These included cable bills, payment
on the line of credit and expenses for the children’s cellular phones.  These
withdrawals totalled approximately $3,790.

[135]     In
addition to the payments mandated by the Bishop Order, the defendant made other
substantial payments, which included the payments on the Honda, the monthly
house insurance, payments on the line of credit used for family purposes, as
well as payments to the Canada Revenue Agency in respect of the garnishment of
his wages that arose from the overpayment into his pension.

[136]     I do not
find that the defendant should be ordered to reimburse the plaintiff for sums
he withdrew from the joint account during this period. The amount paid by the
defendant on account of family expenses exceeded, by a large measure, the
amount to which he withdrew from the plaintiff’s account.

[137]     In
addition, the terms of the Bishop Order were vague as they related to the
parties’ ongoing responsibility for expenses related to the household. The
defendant fairly interpreted the $800 payment as his sole obligation as his
contribution towards those expenses.

[138]     Furthermore,
the payments made by the defendant were tax neutral. None of the payment was
characterized as spousal support such that the defendant was entitled to tax
relief.

[139]     For these
reasons, I find that for the period between the pronouncement of the Bishop Order
and its replacement by the Consent Order of December 2007, the defendant does
not owe the plaintiff any payment for funds withdrawn from the joint banking account.

The Consent Order

[140]     In
December 2007, the Consent Order was entered into. It provided for spousal
support in the amount of $4,000 per month payable on the 1st and 15th of each
month from December 15, 2007 to February 15, 2008.  In total, five payments of
$2,000 were required for a total of $10,000.

[141]     From the
support received, the plaintiff was to pay the full amount of the mortgage and
one half of the amount owing on the line of credit, to a maximum of $400 per
month.

[142]     The
defendant made the first four required payments. He did not make the last payment
due on the 15th of February.

[143]     By that
time, the plaintiff had closed the joint account.  According to the defendant,
the plaintiff was in arrears of payments on the mortgage and the line of credit
such that by him assuming those payments, he was in compliance in substance, if
not to the letter, of the Consent Order.

[144]     However, it
was demonstrated by the plaintiff that she had reimbursed the defendant, by two
separate cheques totalling $747.52 in early February 2008 such that the
defendant was, in fact, short in the required payments by this amount.

[145]     For the
period covered by the Consent Order, I find that the defendant is in arrears in
the amount of $747.52 and order him to pay that sum to the plaintiff from his
share of the sale of the matrimonial home.

February 15, 2008 – November 21, 2008

[146]     Following
the expiry of the Consent Order, no financial arrangements were in place and
the defendant did not pay any support directly to the plaintiff or on behalf of
Jenna. Nor did he pay, as he had been paying, the mortgage on the house.

[147]     From February
15, 2008 until the re-financing of the matrimonial home in September 2008, the
defendant paid the Honda financing charges, serviced the line of credit, paid
the house insurance and made payments either directly to or for the benefit of
Jenna and Lauren. He also made payments on Lauren’s credit card debt.

[148]     The
refinancing of the family home in September 2008 resulted in the payment of the
line of credit and of the plaintiff’s outstanding credit card debt.  The avowed
purpose of the re-financing was to create a fund to deal with the needed house
repairs, most notably the leaking roof, to ready the home for sale.

[149]     The
monthly mortgage payment was reduced from the previous $1,920 monthly to approximately
$930 per month.

[150]     From
September 2008 forward, the defendant paid the mortgage on the home as well as
the Honda payment and house insurance. He continued to pay modest sums either
on behalf of or directly to his daughters.

[151]     Given the
payments made by the defendant between during this period and the plaintiff’s
occupation of the house coupled with her failure to make bring forward an application
for support, I decline to award any sum for spousal support for this period.

[152]     Child
support, however, should have been paid by the defendant given he had
unilaterally ceased paying the mortgage on the home. Accordingly, for the
period between March 1, 2008 and November 30, 2008, I find that the defendant
should have been paying the plaintiff the sum of $1,200 per month child support
and direct that the sum of $10,800 be paid to the plaintiff from the
defendant’s share of the house sale proceeds on account of child support.

The Taylor Order to Present

[153]     In
November 2008, the Taylor Order was pronounced. The Taylor Order was
controversial to the extent that the defendant took the position that it, like
its predecessors, was time limited. The transcript of Master Taylor’s reasons
for judgment does not restrict the duration of the order and on February 20,
2009, the Taylor Order was settled by Registrar Blok.  The defendant’s counsel
attended at the hearing and was heard on the issue of the duration of the
order.

[154]     The
defendant declined to adhere to the terms of the Taylor Order as they related
to spousal support.  He did, however, pay the entirety of the mortgage during
this time, rather than only paying half as required.

[155]     I find the
defendant’s explanations for non-payment of support under the Taylor Order wanting.
The excuse that he could not pay support without first having the order to
alter his source deductions with his employer ignores the fact that the Taylor
Order was settled in February 2009.

[156]     The non-payment
of spousal support was the subject of an application in September 2009, where
the plaintiff sought a determination that the defendant was in contempt of the
Taylor Order and sanctions against him. The application was adjourned by Preston
J. on the condition that the defendant immediately pay the sum of $10,188 to
the plaintiff.  The defendant did not make that payment. I subsequently ordered
that this sum be paid to the plaintiff from the defendant’s share of the trust
fund.

[157]     After the
Preston Order, the defendant did begin paying spousal support in addition to
the child support he had been paying throughout.  In addition, he began paying
only one half of the mortgage, rather than the entire payment.  The plaintiff
has complied with the provision that she pay the other half of the mortgage
since the defendant began paying spousal support.

[158]     The
plaintiff asserts that there are current arrears of spousal support owing under
the existent order totalling over $32,000. I have calculated the arrears,
exclusive of interest or penalty, at $28,028. I arrived at this sum by taking
the missed December 2008 payment of $2,099 and adding it to the nine payments
of $2,881, for January 2009 to September 2009, missed by the defendant.

[159]     The
defendant’s position is that he should receive credit as spousal support for
the “other payments” made on behalf of the plaintiff and the court should
arrive at the arrears of spousal support by doing an accounting of all of the other
payments which the defendant made. These include voluntary payments made to the
children, payments for house insurance, the Honda loan (now paid off) and other
miscellaneous payments laid out in great detail in the defendant’s presentation
of evidence.

[160]     The
defendant also raises the notion of occupational rent noting that for three
years post separation the plaintiff has had exclusive benefit of the home while
the defendant has contributed to, or outright paid, the various payments
necessary for the home’s operation.  However, occupational rent is not a standalone
remedy in matters as between spouses: Donovan v. Donovan (1986), 7
B.C.L.R. (2d) 221 (S.C.).

[161]     In
appropriate instances, the property may be divided other than equally, to take
into account the occupancy of the family home by one of the parties.

[162]     Here, I
have not reapportioned the property with a view to taking into account the
plaintiff’s ongoing use of the family home since separation. No evidence was
led by which to determine the appropriate rental value of the home. However,
the plaintiff was undoubtedly advantaged by the delay in the sale of the home.
The payments of $443.00 weekly on the mortgage resulted in a considerable
reduction in the mortgage principal. Both parties enjoyed the accretion to the
equity in the home. Some of that gain was lost when the defendant failed to
make any payment of the mortgage but, overall, the effect of the weekly
payments made by the defendant for approximately one year following separation
had a positive net effect on the parties’ equity in the home.

[163]     I will
allocate the payments made by the defendant, from December 1, 2008 to October,
31, 2008, on account of the plaintiff’s share of the mortgage, totalling
$4,648.30, towards the payment of spousal support. None of the other payments
made by the defendant on account of the plaintiff or the children will reduce
the outstanding arrears. Accordingly, the sum of $4,648.30 shall be credited to
the arrears of support as if that amount had been paid by the defendant to the
plaintiff in the month the mortgage was paid. The defendant shall be entitled
to the appropriate deduction from his income for the taxation year 2009 and the
plaintiff shall declare the sum paid on account of her share of the mortgage as
income for the taxation year 2009.

[164]     Subtracting
the sum of $4,648.30 from the arrears of $28,028, results in an amount still
owing to the plaintiff of $23,379.70.  Adding the $747.52 owed under the
Consent Order results in the defendant owing total arrears of $24,127.22 of
spousal support in addition to the $10,800 owed in child support arrears.  This
is a total of $34,927.22 in arrears.  However, it is necessary to subtract the
$10,188 I ordered the defendant to pay out of the trust fund at the conclusion
of the trial.  Assuming that payment has been made, the arrears are reduced to
$24,739.22, of which $13, 939.22 constitutes arrears of spousal support and
$10,800 constitutes arrears of child support.

[165]     This
amount shall be paid forthwith to the plaintiff from the defendant’s share of
the home sale proceeds. That sum which is attributable to spousal support, when
paid, shall be deducted from the defendant’s income and added to the
plaintiff’s income.

[166]     In recognition
of the plaintiff’s current state of unemployment, the parties shall continue to
share the mortgage payment in respect of the home until its sale or June 1,
2010. If the home has not sold by that time, the plaintiff shall assume sole
responsibility for the monthly payment in respect of the mortgage. Also, for so
long as the plaintiff remains in occupation of the home, she shall be
responsible for the expenses relating to day to day upkeep including the home
insurance, utility charges and any other municipal levies.

[167]     The
plaintiff proposed that support payments, both child and spousal, for the next
three years should be capitalized to their present value and paid as a lump
sum. The plaintiff says this is necessary to ensure the defendant complies with
the terms I have ordered. The plaintiff also expresses a fear that the
defendant may return to the United Kingdom and reside there.

[168]     In
declining to do so, I note firstly the difficulties this will pose with respect
to the treatment of the spousal portion for taxation purposes and, secondly,
for the defendant’s capital position. He, too, may wish to secure accommodation
from his portion of the sale of the home.

[169]     While I am
mindful of the defendant’s non-compliance with the Taylor Order, any rebuke
from the court should be in the form of sanctions in costs. The defendant has
been steadily employed at the same employer for the past five years. The plaintiff
has enrolled with the Family Maintenance Enforcement Program, but they have
been unable to pursue collection because of uncertainties over the order and
the defendant’s outstanding application to vary the order. In the future, there
should be no impediment to enforcement proceedings if they become necessary.

Summary

[170]     In
summary, I make the following orders:

·        
The parties will have joint conduct of sale of the family home,
and that sale proceeds, after discharging the mortgage and the usual vendor’s
adjustments, will be split evenly between the parties;

·        
The defendant shall pay the plaintiff the sum of $21,189.22 after
receiving his share of the sale proceeds of the family home as a result of the $24,739.22
he owes in arrears, less the $3,550 the plaintiff owes in regard to the Jeep.
The adjustment for the Jeep proceeds will be a reduction in the arrears of
child support owing

·        
Any funds remaining in the defendant’s solicitor’s trust fund
after the two disbursements ordered on December 4, 2009 and any further funds
needed to repair the family home will be divided evenly between the parties;

·        
The arrears of support in the amount of $10,188.00 paid by the
defendant shall come from his one half of the trust fund proceeds;

·        
The defendant is to transfer, by way of spousal rollover, $12,500
from his Manulife RRSP to the plaintiff;

·        
The plaintiff is to retain the value of the Sunlife RRSP;

·        
The remaining RRSPs will be divided equally between the parties;

·        
The plaintiff will retain the Honda Civic registered in her name
and the defendant shall retain the Prowler trailer;

·        
The defendant shall pay the plaintiff spousal support in the
amount of $2,577 per month, made in payments of $1,288.50 on the 1st and 15th
of each month, commencing January 1, 2010, until further order of the court;

·        
The defendant shall pay the plaintiff child support for Jenna in
the amount of $1,284 per month, made in payments of $642 on the 1st and 15th of
each month, commencing January 1, 2010, until Jenna is no longer a child of the
marriage under the Divorce Act; and

·        
The defendant shall be responsible for 78% of extraordinary
expenses relating to Jenna and the plaintiff responsible for the remaining 22%
so long as she remains a child of the marriage under the Divorce Act.

Costs

[171]     I find
there to have been divided success on the issues that have been decided in this
proceeding. Neither party had counsel at the trial of the matter although each
has substantial legal bills owing to their former counsel.

[172]    
Despite the divided success, the behaviour of the defendant in flaunting
the payment provisions in the Taylor Order is worthy of rebuke. The plaintiff
has scheduled an application seeking a declaration that the defendant is in
contempt of the orders of both Master Taylor and Preston J. I propose to
reserve the matter of costs until the conclusion of that application and will
hear both parties on the issue of costs either at the scheduled hearing on
January 8, 2010, or through written submissions to be filed at a date to be
arranged.

“The Honourable Mr.
Justice Harvey”