IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On March 4, 2014, the Applicant (then known as T.K.C., now known as T.K.M.), brought an application for spousal support. This application was opposed by the Respondent, D.C.C. His position was that the Applicant was working and was capable of supporting herself. He also said that when the marriage ended, he had assumed all of the family debts, making an award for spousal support unfair to him.

[2]           That application was heard by the Honourable Judge Point of this court on November 14, 2014. At that time, Judge Point made an order which required the Respondent to pay to the Applicant the sum of $500 per month commencing on December 1, 2014, and continuing on the first day of each month thereafter for the next twenty-four months. The order provided that it could be reviewed in advance of the twenty-four month period, but such a review was predicated on the Applicant finding employment. If that happened, the Applicant was to notify the Respondent of her employment and the parties could then apply for a review. Judge Point’s order provided “the parties may apply to the Court Registry for the earliest possible review date if [the Applicant] finds employment.”

[3]           The order seems to suggest that since the only grounds for review would be if the Applicant found employment, the purpose of the review would be to shorten the term or adjust the order based on the Applicant’s new circumstances. But on listening to what Judge Point actually said in court, this was not the case.

[4]           At the hearing before Judge Point, the Applicant testified that she was earning $16,000 as a school bus driver, and received another $9,000 from Employment Insurance. Her annual income was usually between $20,000 and $25,000 in total. She was fifty years of age at the time. Judge Point found that the parties met in 1990, began living together in 1992, and were married in 1997. They lived in Williams Lake. Judge Point found that the Applicant had worked at different jobs over the course of the marriage, but that for the past seven years she had worked as a school bus driver. She had attended college for secretarial training and had her class one driver’s license in 2006. The couple separated on October 1, 2012 when the Respondent left the family home. In March of 2013 the Applicant was hired by the Abbotsford school district, but did not move to Abbotsford until August of that year and started her new job when the school year began in the following month. She moved to Abbotsford because her sons lived here. The Applicant was a casual worker, meaning that she worked when called upon to do so.

[5]           Judge Point noted that the Applicant was having a difficult time financially because she was not working full-time. The Applicant believed that full time work would bump her income up to around $30,000 per year. The Applicant filed for bankruptcy in May of 2014 due to an inability to meet her debts. The couple tried to rent out their home, but had bad luck with tenants, who caused considerable damage to it.

[6]           Judge Point found that things were not so good for the Respondent either, although his income was better than the Applicant’s. The Respondent lived with his parents after leaving the family home. The Respondent was 56 years old at the time and planned to work until age 65. The parties did not have any separation agreement and had not begun any Divorce proceedings at the time that they were before Judge Point.

[7]           Judge Point considered each of the factors set out in section 161 of the Family Law Act. He concluded that the Applicant’s move to Abbotsford was not really a factor in the evaluation of the application because it resulted in virtually no change in the Applicant’s economic position. He went on to consider the objective of promoting the economic self-sufficiency of each spouse within a reasonable period of time, and told the parties the following:

[8]           On October 14, 2016, the Applicant filed an application for Judge Point’s order to continue past the two year period that he had set. In her Application, she wrote:

[9]           The Respondent filed a Rely to this Application on November 3, 2016 in opposition to the Applicant’s position. He wrote:

[10]        The parties appeared in front of the Honourable Judge Miller of this court on February 10, 2017. Judge Miller ordered that Judge Point’s order was to continue until this hearing could be set.

[11]        The Respondent filed a financial statement in advance of the hearing of this Application. He continues to have his employment as an equipment operator for a plywood company in Williams Lake. He has since filed for bankruptcy and his surplus income has been attached by his Trustee-in-Bankruptcy. He was discharged from bankruptcy in December of 2016. His financial statement discloses an annual income of $76,000.

[12]        The Applicant did not file a financial statement, but provided an unsworn copy. She puts her income at $29,477. She acknowledges that she was working at the time that Judge Point made his order, and says that she has continued to work, but the hours she works is not fixed. When Judge Point’s order was made, she was working every day, but her status was “casual.” Today she is working a bit more. She said that at the time of the first hearing, she had hoped that she would be working more than she is today. Now she works roughly 35 hours a week, whereas before she had worked about 26.25 hours a week (which is the minimum amount of hours that she is guaranteed in a week). The 35 hours per week is not consistent, the volume of her work depends on the number of field trips she is assigned to drive for. She is paid $22.57 per hour that she works.

[13]        The Applicant was asked about other employment opportunities that might be available to her by virtue of her possessing a class 1 driver’s license. She said that at this point in her life, it is not feasible for her to start a new career as a truck driver, and other than that, being a bus driver seems to be her best option.

[14]        The Applicant provided a summary of the calculations which result from the application of the Spousal Support Advisory Guidelines. These calculations were done in February of 2017. They take into account the ages of the parties at the time (the Applicant was 52 and the Respondent was 58), their incomes based on their financial statements (the Applicant’s is set at $30,000 and the Respondent’s is set at $76,000), the length of the cohabitation at twenty-years, and the Applicant’s age at separation as being 48 years of age. Under these parameters, the range for spousal support is a low point of $1,150, a medium range of $1,342, and a high range of $1,533. The Guidelines call for an order of indefinite duration.

[15]        The Applicant also takes issue with the fact that Judge Point made an order below the range in the Guidelines because of her receipt of a portion of a matrimonial asset, namely a share of the Respondent’s pension. It is her position that as this is a matrimonial asset, it is something that she was entitled to at law in any event. She says that it was wrong to discount the quantum of the spousal support because of her receipt of this asset, and that by doing so, she has been required to pay for something that should have been the Respondent’s responsibility. She adds that, in any event, this amount has long since been used up for her to move to Abbotsford and to get settled.

[16]        The house that the parties lived in was foreclosed on. Judge Point had taken into account the possibility that the Respondent might have to pay all of the cost of any shortfall in the mortgage debt, because the Applicant had declared bankruptcy. But the Respondent later made his own assignment in bankruptcy, and what Judge Point thought might happen never happened.

[17]        The Applicant said that her circumstances have changed for the worse since the hearing before Judge Point. At that time she was living with her adult son. Her rent was $975 and the son paid $300 of that. He has since moved out of the home and her rent has now increased to $1,025. She pays all of this herself. She says that another rental increase is scheduled for July of 2017.

[18]        The parties were divorced on May 2, 2016. The Respondent said, in his evidence, “I helped support her five years before we split up to get her class 1. When she got the job she was a spare at the bus garage, and she was, it’s called a full time/part time position.” He argues that if the Applicant had remained in Williams Lake, she would have a full-time position. He says that she made things worse for herself by moving to Abbotsford. He believes that the Applicant has the training and experience to get a better job, adding, “Is twenty years’ marriage a life sentence for me?”

[19]        The Respondent testified that he expects to retire in six years and feels that it is unfair to make him responsible to continue to pay spousal support. He said “Am I supposed to look after her from the time we’re divorced, or from the time we’re separated, until I retire?” He says that when he retires, his pension will be 21% smaller because of the division of the pension asset that took place when that asset was divided. He calculates that this will cost him $460 a month in pension income.

[20]        The Respondent is 58 years old and works full-time for a plywood company. His salary is $76,000, not including overtime. He does not have a new family and has no dependants. He filed for bankruptcy and was discharged in December of 2016. He is also upset because he says that the Applicant misled him about a life insurance policy on his life that he believed was cancelled, but that the Applicant paid for a time. It was not a policy that allowed for any refund of the premiums. It has now been cancelled. No advantage is gained by either party either from its past existence or by its cancellation.

[21]        Both parties have children from previous relationships, but they have none together. The children are now adults.

[22]        The Respondent was upset that the Applicant did not co-operate in obtaining the uncontested divorce. She says that she did not do so because she received advice that doing nothing would not affect her right to spousal support. She also did not appreciate the fact that the Respondent refused to attempt resolution of this matter through the Family Justice Counsellor.

[23]        The Applicant acknowledges that she had made an offer to settle this matter which she believes to be more favourable to the Respondent, but that he did not accept that offer and she now brings this application seeking both an increase in the amount of support, and for the support order to continue. She also disagrees with the Respondent’s contention that she would be in a better position financially if she had remained in Williams Lake.

[24]        When asked what order she was seeking, the Applicant said that she is asking for the spousal support to be in an amount at the mid-point of what the Guidelines recommend and for it to continue until the Respondent retires. She is confident that by then she will be, or at least should be, in a position where she is capable of supporting herself. The Respondent will reach the age of retirement on December 24, 2023.

[25]        At the beginning of this hearing I was concerned that the Applicant was really asking to appeal Judge Point’s order by changing his two-year order to something longer. If that was the case, the Applicant was in the wrong court and she would have to appeal his decision to the Supreme Court. However in listening to the reasons for judgement given by Judge Point, it is clear to me that it was not his intention to say to the Applicant, “you’re only entitled to spousal maintenance for two years and then you’re done.” While it is true that he did contemplate an earlier review if the Applicant found a better job at an earlier date, he also planned to have the order reviewed at the end of two years in any event. He said: “But in twenty-four months we will review it again to see where [the Applicant is] at in relation to [her] situation.”

[26]        Judge Point found that the Applicant was entitled to spousal support because the breakdown of the marriage had left her in a position of economic hardship. The Applicant and Respondent were coming out of their relationship such that he was earning roughly three times as much as the Applicant. The Applicant came out of the relationship facing a lower standard of living than that of the Respondent. Judge Point concluded that it was appropriate under the law to seek to correct this with an order for spousal support.

[27]        I will summarize the law concerning the payment of spousal support as follows:

[28]        Judge Point concluded that the Applicant was entitled to spousal support on a non-compensatory basis (in other words, based on need.) He considered the requirement of the Applicant to try to become self-sufficient, but did not take a “sink or swim” approach. Rather, he ordered that the matter could be reviewed in two years. He also considered the Spousal Support Advisory Guidelines, but also considered his discretion to depart from those guidelines and gave reasons for departing from them.

[29]        The Spousal Support Advisory Guidelines address the question of how long a spousal support order should last for. The factors that a court must consider in deciding how long such an order should last include the length of the relationship. These parties had a twenty-year relationship, which by modern standards can be considered to be a longer relationship. In cases where there are longer relationships, spousal support orders usually continue for an indefinite period and are not time-limited unless there is evidence that the applicant should be able to achieve financial independence within a set period of time.

[30]        The Supreme Court of Canada, in a case called Bracklow v. Bracklow (1999) 1994 CanLII 132 (SCC), 4 R.F.L. 1, explained the rationale for spousal support obligations continuing for so long. Chief Justice McLachlan wrote, at paragraph 57:

[31]        Even where, as in this case, the Applicant has acquired marketable work skills over the course of the marriage, this does not mean that spousal support will be time-limited. There may be factors such as the age of the spouse, the availability or work in that field, or the continuing economic imbalance that exists even where the spouse finds work. For example, in Story v. Story (1989) 1989 CanLII 5317 (BC CA), 23 R.F.L. (3d) 225, Justice Proudfoot of the British Columbia Court of Appeal wrote, at page 245:

[32]        The power to review spousal support orders is set out in section 168 of the Family Law Act, which reads as follows:

[33]        On a review of a spousal support order the court can adjust the order, either in quantum or duration, or in an appropriate case, the order can be terminated. These adjustments should be based on the circumstances as they exist. When an order for spousal support is made, it is impossible for the judge making the order to see into the future. The review process gives a judge the ability to make the necessary adjustments to the order, based on changes in circumstances that have occurred, and based on facts as they have unfolded.

[34]        The Applicant is asking for two changes to be made to Judge Point’s order. First she is asking for it to continue indefinitely, and secondly, she is asking for the amount to be adjusted to conform to the guidelines. The Respondent simply wants his support obligation to come to an end.

[35]        A review of Judge Point’s order satisfies me that it was not his intention for the order to expire at the end of two years, but rather to review the order and assess the Applicant’s employment situation at the time. Referring to the Applicant, Judge Point said: “But in twenty-four months we will review it again to see where you are at in relation to your situation.” He gave the Applicant the right to apply to have the order to continue, and he gave the Respondent the right to apply to have the order come to an end if the Applicant’s financial position improved. The Applicant now has the right to apply to have the amount of the spousal support increase (and the Respondent has the right to apply to have the order decrease) because of section 168 of the Family Law Act.

[36]        Any adjustment in the order should be based on the circumstances as they now exist. What has changed since the parties appeared before Judge Point? The Respondent’s circumstances have improved for the better. His income has gone up from $61,197 to $76,000, not including overtime. His debt load has lessened because of his bankruptcy.

[37]        The Applicant’s position has changed only slightly. She is earning approximately $30,000 per year and there are no immediate prospects that anticipate any significant income change for her. She is now 53 years of age and is competing for jobs with persons who are both younger, but who also have significantly more work experience. At this point in her life, it is not reasonable to demand that she embark on a new career as a truck driver. The Respondent has not had to make any such drastic changes in his life, and it would be unreasonable to expect him to do so at this point in his life.

[38]        The Respondent sees it as unfair to him to be required to continue to pay child support. He sees his income as entirely his, and believes that with the divorce, he has jettisoned all of his responsibilities for his former spouse. He also considers the pension that was accumulated during the course of their cohabitation to be entirely his asset and considers that the portion which was divided should stand in place of his obligations to support his former spouse in her time of need. This may be what seems right under his moral code, but it does not match what the law expects of him.

[39]        In cases where there are longer relationships, such as this one, spousal support orders usually continue for an indefinite period and are not time-limited. If there was evidence that the Applicant should be able to achieve financial independence within a set period of time, the case may be otherwise. Here the only evidence in that respect is that she is confident that she can achieve self-sufficiency by the time the Respondent reaches the age of retirement. As the Supreme Court of Canada has stated, the spousal support obligations acquired are not subject to any “magical cut-off dates” (to use the language of that court).

[40]        In this case, even with the work skills that the Applicant has acquired over the course of the marriage, this does not mean that spousal support must be of a short-term duration. This is especially so here where the breakdown of the marriage has resulted in such an imbalance in the financial position of the spouses, and where no realistic options for improvement of the Applicant’s financial position present themselves. Factors such as her age, the availability of better work in her field, and the continuing economic imbalance that exists means that the obligation of the Respondent to support the Applicant must continue. Unless the Applicant is fortunate enough to find better paying work beforehand, it is not unreasonable for her to ask for this to continue up to the time when the Respondent is expected to retire.

[41]        The Applicant asks that the spousal support order be increased to comply with the Spousal Support Advisory Guidelines, meaning that they should be increased to somewhere in the range of between $1,150 per month and $1,533 per month. Judge Point felt that it was appropriate to order spousal support in an amount below this range. He did so essentially for two reasons:

[42]        On the first issue, Judge Point noted that “the pension fund is an asset, so it’s not considered under child or spousal support guidelines.” If the Applicant had received a sufficiently larger share of any property division, then the Guidelines allow for that factor to be taken into consideration in deviating from them. This is not the case here. Whatever benefit the Applicant received from the portion of the pension that she was paid has long since passed, and if it justified a reduced spousal support payment in the first place, there is no justification for it to continue.

[43]        The second consideration for departing from the guidelines also no longer applies. While the Respondent had once been on the hook for joint spousal debts, this is no longer a consideration since his bankruptcy and discharge. This consideration can no longer be a valid reason for reducing the amount of spousal support that the Applicant is entitled to.

[44]        These parties should be treated in the same manner as other former spouses in this province. The Applicant is entitled to spousal maintenance within the range set out in the guidelines, and the Respondent is responsible for paying that support, just like every other payor spouse in this province. These rules would apply if the situation was reverse and he was the one in need.

[45]        The question then becomes where, within the range, the Respondent should be ordered to pay spousal support. I take into account that the Applicant has some work skills and is capable of earning a modest income, though one that is less than 40% of what the Respondent is able to earn. I also take into account that these parties are of modest means, but that the Respondent is now in a much healthier financial position because of his discharge from bankruptcy and his increased income. The children are now adults and the joint debts have been paid or discharged through bankruptcy. This is not a case where one spouse has been burdened by a disproportionate share of the financial fallout left over from the marriage or is faced with having to meet additional child care expenses. I also note that the Respondent has, for over two and a half years, been making spousal support payments well below the level expected of persons in his position.

[46]        Under these circumstances, a proper application of the law calls for a spousal support payment near the middle of the range set out in the Spousal Support Advisory Guidelines. No reason has been shown for treating these parties any differently from others in this province in their position. This may come as a shock to the Respondent, but he needs to understand that when a relationship of this duration breaks down, both of the parties share in in the financial change of circumstances, good and bad. Their marriage was a partnership. He cannot simply walk away from a twenty year relationship, having advanced to a good earning position, and say to the Applicant, “now you’re on your own.” Judge Point explained the situation very well. The breakdown of a long-term relationship brings with it economic fallout that must be shared.

[47]        For these reasons, it is ordered that the Order of the Honourable Judge Point dated November 14, 2014, as amended by the Order of the Honourable Judge Miller on February 10, 2017, be varied as follows: