IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Waldron v. Wong, |
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2018 BCSC 418 |
Date: 20180316
Docket: E170462
Registry: Vancouver
Between:
Lesley Elizabeth Anne Waldron
Claimant
And
Jackson Wong and Bo Yin Wong
Respondents
Before: The Honourable Madam Justice Forth
Reasons for Judgment
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Claimant Lesley Elizabeth Anne Waldron: |
Appearing in Person |
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Counsel for the Respondents: |
Sabina Beesley |
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Place and Dates of Hearing: |
Vancouver, B.C. February 14, 15 and 16, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. March 16, 2018 |
[1] The claimant in this family law action, Lesley Waldron, seeks a divorce, the division of family property, and an increase in spousal support.
[2] The claimant and the respondent Jackson Wong are wife and husband. The respondent Bo Yin Wong is the mother of the respondent Mr. Wong and the mother-in-law of the claimant. For ease of reading, I will refer to Lesley Waldron as the claimant; to Jackson Wong as the respondent; and to Bo Yin Wong as Mrs. Wong.
[3] On February 21, 2017, the claimant commenced these proceedings, filing a notice of family claim. Mrs. Wong has been included as a respondent because she is the registered owner of a property subject to the division of property claim.
[4] On May 8, 2017, Mrs. Wong responded to the claim.
[5] On May 15, 2017, the respondent responded to the claim and filed a counterclaim seeking child support for his and the claimant’s youngest child. He no longer seeks this relief.
[6] On September 11, 2017, the parties attended a judicial case conference with Madam Justice Watchuk in which an interim and without prejudice spousal support order was made in the sum of $2,000 payable to the claimant by the respondent. On November 30, 2017, Mrs. Wong brought a summary trial application to have the claim against her dismissed; however, that application was dismissed.
[7] The claimant was self-represented at the hearing.
[8] The claimant and respondent were married on August 5, 1989. The claimant was born in 1966 and the respondent in 1965.
[9] At the time of the marriage, the claimant was 23 years old. She did not graduate from high school, but she did attend hairdressing school and worked full‑time as a hairdresser.
[10] The couple’s first child was stillborn in 1990. Their second child was born in September 1991. Their third child was born in July 1994 and their fourth child in July 1997.
[11] Until 1996, they lived in a two-bedroom apartment in Richmond (the “Apartment”) that had been purchased by the respondent’s parents, Mrs. and Mr. Wong (collectively, “the Wongs”). The Wongs have two adult children: the respondent and a younger daughter.
[12] The claimant and respondent helped pay for the Apartment’s property taxes and strata fees by giving $400 a month to the Wongs. The claimant testified that Mrs. Wong told her that they should help one another cover costs, as they were family. The claimant testified that the couple increased their monthly contribution on their own volition to $650 a month; however, the respondent and Mrs. Wong both deny this.
[13] In 1996, the Wongs sold the Apartment in Richmond, and as a result, the couple needed a place to live. In April 1996, the claimant, the respondent, and their two children moved into a house located at 910 East 22nd Avenue in Vancouver, which was owned by the Wongs as joint tenants (the “Property”). The Property had been inherited from Mrs. Wong’s father-in-law and was only a block away from the Wongs’ own residence.
[14] The Property was much bigger than the Apartment with a backyard, a porch, and more bedrooms. The couple continued to pay the Wongs $400 a month. There was no written agreement detailing the terms of the couple’s occupancy. The Wongs paid for property taxes and insurance on the Property.
[15] The claimant testified that when they moved into the Property, the back stairs, porch, and porch railing were rotting and not safe for children. The respondent admits that the Property was “dated”, but disputes the claimant’s assertion that it was run down and poorly maintained. Mrs. Wong testified that it was clean and had been kept tidy. The couple bought lumber, and the claimant’s father rebuilt the deck, deck railing, and stairs, without payment. They also remodeled the kitchen, paying the claimant’s father for lumber, while he made the bottom cabinets and doors, and provided a dishwasher.
[16] The Property also had drainage problems, which required the couple to dig up part of the yard. They rented a backhoe, and the respondent paid their friend to help with the work. The claimant testified to remodeling other living areas by removing carpets, refinishing small sections of the hardwood floor, removing wood panelling, replacing drapes with blinds, sealing the walls, and repainting. The respondent may have helped with the work. In cross-examination, the claimant agreed that the combined cost of the bulk of these initial improvements was around $7,200.
[17] In July 1997, the couple had their third child, who soon began suffering serious health problems including severe asthma. Between the three children, the couple dealt with at least 25 bouts of pneumonia, a collapsed lung, a lung tumour, and whooping cough.
[18] Leading up to her third pregnancy, the claimant had been working. After giving birth, she did not initially return to work. Instead, she spent time studying about the children’s health issues. She also went back to school to earn her GED, and then studied for 13 months to become a licenced practical nurse. Between approximately 2000 and 2004, she worked three-quarters’-time as a nurse.
[19] In 1998, the couple stopped making the $400 monthly payments to the Wongs. From 1998 to 2015, the couple did not make monthly payments to the Wongs. The claimant testified that the reason for this was that Mrs. Wong had told her and the respondent that the house and all its maintenance was their responsibility. Mrs. Wong testified that she never told them that they did not need to pay rent or that the house’s maintenance was all their responsibility. In cross-examination, Mrs. Wong stated that she did not ask the claimant for $400 monthly payment, but did ask her son. The respondent testified that after he and the claimant stopped making the monthly payments, the Wongs would request the funds, but he would tell them that he did not have the money. This strained his relationship with his parents.
[20] The claimant testified that the Wongs told her that the Property was “[her and Jackson’s] house” and that “[they] were going to inherit it”. She testified that she was always told “don’t worry about it, you’ll look after it, it’s going to be yours”, and that they would not leave the house to strangers. The respondent testified that he was not aware of this. Mrs. Wong denies ever saying these things.
[21] In July 2004, at age 38, the claimant had a stroke, which paralyzed most of her right side for a number of weeks. She did not return to work after the stroke for many years. She testified that in the long term, the stroke has affected the right side of her body, making it weaker than it previously was, although her right leg has recovered. The stroke has also affected her memory and her ability to express herself, and has increased her symptoms of depression, which she had suffered for many years prior. She was required to triple her medication for depression. She did not undergo physical rehabilitation following the stroke, but over the course of many years, she spent a significant amount of time on the back porch carving wood as a form of personal therapy.
[22] The claimant testified that until 2010, all household expenditures were paid jointly by her and the respondent. However, in cross-examination she stated that from 2004 until May of 2010, the respondent was the only one employed. She testified that the respondent “was good bringing the paycheck home” but that “she was responsible for all of the upkeep, gardening, looking after the children, grocery shopping, and cooking while [she] could”.
[23] In approximately 2009 or 2010, the claimant received two inheritances: one for $225,000 to $250,000 and one for $85,000. Some of this money was put into her and the respondent’s joint bank account. In December 2010, the claimant gave the Wongs a gift of $10,000. The claimant testified that this was to help pay for property taxes. She also gave $20,000 to the respondent to purchase a vehicle, and approximately $50,000 to her mother for debts and a vehicle.
[24] Around May 2010, the respondent was fired from his job. He remained unemployed for 13 months. Over this period, the claimant supported the respondent with money from her inheritances, and she also paid for household improvements. She testified that she bought a new hot-water heater; however, the respondent testified that the heater was purchased after he had returned to work and that it was paid for out of their joint account.
[25] In May 2011, the respondent began working as an automotive technician at a Mercedes Benz location in Surrey. After this, the respondent again contributed to household expenses.
[26] In 2013, the claimant attempted to return to work, gaining part-time employment in a medicinal marihuana dispensary, at $10 an hour. She did this for approximately nine months to a year, but testified that it took a great toll on her and paid too little for her to continue. The evidence of the respondent was that the claimant did not like how the business was run so she left. Since leaving the dispensary, the claimant has not worked.
[27] The claimant testified that in 2013, she spent $8,000 of her inheritances on a new roof for the Property and for improvements to the porch. She spent around $6,000 of her inheritances to remodel the bathroom, a project that was not completed until recently. She also gave approximately $2,500 to her son to purchase a car. On cross-examination, the claimant admitted that the bank account from which these amounts were paid was a joint account that the respondent’s wages were also paid into.
[28] In 2013, the claimant and respondent began living in separate bedrooms at the Property. The respondent testified that later in 2013, the two tried to make their relationship work; however, by December 2014 it was clear to him that the relationship would soon be at an end. In May 2015, the claimant permanently moved out of the Property, leaving behind most of her possessions, except for some clothes and photo albums.
[29] On May 27, 2015, Mr. Wong passed away, after which Mrs. Wong became the sole registered owner of the Property. An unsigned “Last Will and Testament” of Mr. Wong was submitted into evidence. It purported to pay and transfer the residue of his estate to Mrs. Wong, or, if Mrs. Wong predeceased him, to pay and transfer the Property to the respondent.
[30] Prior to Mr. Wong passing away, he had serious health problems. The claimant testified that neither she nor the respondent were involved in caring for Mr. Wong while he was sick. The Wongs only lived a block away or a two-minute or so walk.
[31] Since 2014, the claimant had no net taxable income. Currently, her only source of money is spousal support in the amount of $2,000 a month, which she receives pursuant to a September 2017 court order. Prior to that order, she had received $1,700 a month, and prior to that, $1,200 a month, both amounts by consent. The claimant has applied for disability, but testified that because she already gets over $800 a month, she is not eligible to receive disability payments. She currently lives with her boyfriend, who is permanently disabled because of a serious head injury. She pays about $400 a month to help with groceries and household necessities.
[32] The claimant testified to having severe osteoarthritis, which was diagnosed by her family doctor in 2016. Her left knee is bone-on-bone and her right knee is almost bone-on-bone. She is much weaker than she used to be. She can only walk about eight blocks with a cane, which she has been using consistently for the past three years. She takes Tylenol to manage her pain, which is most significant in her knees, but also present in her shoulders, hips, and one ankle. The claimant also testified to having chronic migraine headaches, which she gets three times a month.
[33] According to the respondent, he now pays $900 a month to Mrs. Wong to live in the Property. According to Mrs. Wong, she only collects $750 of this, and the respondent owes her an extra $150 each month. A BC Assessment submitted into evidence provides an assessed value of the Property as of July 1, 2016 of $1,536,000.
[34] The claimant seeks the following orders:
1. a divorce;
2. the division of family property entitling her to a 50% stake in the Property either through an interest or compensation, and a 50% stake in a fixed-benefit RRSP;
3. a certificate of pending litigation (“CPL”) against the Property; and
4. spousal support entitlement in the amount of $2,685 a month based on the respondent’s most recent annual income and pursuant to the Spousal Support Advisory Guidelines [SSAG].
[35] The respondent does not oppose the divorce claim. The respondent does not oppose the division of the RRSP, but the respondent and Mrs. Wong oppose the division of the Property.
[36] The respondent acknowledges that the claimant is entitled to spousal support, but he opposes the amount sought.
[37] Counsel for the respondents also submits that the credibility of the claimant as a witness and the reliability of her evidence are in question.
[38] Pursuant to s. 81 of the Family Law Act, S.B.C. 2011, c. 25, [FLA] spouses have the right to an undivided half interest in “family property” upon separation. “Family property” includes all real property and personal property that at least one spouse holds a beneficial interest in on the date the spouses separate: s. 84.
[39] The two assets subject to the claim are: (1) a locked-in RRSP in the name of the respondent, which had a value of $52,338.81 as of January 2018; and (2) the Property.
[40] With respect to the RRSP, the respondent does not oppose an equal division, and so this asset is to be divided. To effect the division, the claimant shall open a registered investment vehicle into which the apportioned half can be transferred.
[41] With respect to the Property, the claimant submits that Mrs. Wong holds the Property in trust for her and the respondent. She submits that Mrs. Wong has been unjustly enriched, without reason, as a result of her contributions to the Property, including, but not limited to, the new roof. She submits that she used her inheritances to help with the Property, that she looked after the Property like it was her own, and that she now has nothing left. She relies on the principle of constructive trust, and cites the following cases: Peter v. Beblow, [1993] 1 S.C.R. 980; Kerr v. Baranow, [2011] 1 S.C.R. 269 [Kerr]; Cowper-Smith v. Morgan, 2017 SCC 61; and Sorochan v. Sorochan, [1986] 2 S.C.R. 38.
[42] As submitted by the respondents, an unjust enrichment requires three elements:
1. an enrichment of the defendant by the plaintiff;
2. a corresponding deprivation to the plaintiff; and
3. the absence of a juristic reason.
(Pettkus v. Becker, [1980] 2 S.C.R. 834, at 848) [Pettkus]
[43] The respondents rely on Garland v. Consumers’ Gas Company Limited, 2004 SCC 25 [Garland], in which the Court confirmed a two-step approach to the juristic reason analysis. First, the plaintiff must show no juristic reason from an established category, such as a contract, a disposition of law, a donative intent, or another valid common law, equitable or statutory obligation. If there is no juristic reason from an established category, the reasonable expectations of the parties and public policy may also be considered to deny recovery by the plaintiff.
[44] The evidence before me does not satisfy the test for unjust enrichment. I will discuss each step of the analysis below.
[45] In Garland, at para. 31, the Court notes that an “enrichment” is a “tangible benefit which has been conferred on the defendant”. It may either be a positive benefit, such as the payment of money, or a negative benefit, such as the sparing of an expense that would have otherwise been incurred. Overall, courts should take a “straightforward economic approach” to the concept of “enrichment”; for example, “[w]here money is transferred from plaintiff to defendant, there is an enrichment” (at para. 36). Any other moral or policy considerations should be deferred to the “juristic reason” stage of the analysis (at para. 35).
[46] Applying a “straightforward economic approach”, you could say that Mrs. Wong did gain an “enrichment”. The claimant’s evidence supports that over the claimant’s 19-year occupancy of the Property, she made total contributions to the Wongs in relation to the Property of approximately $40,000. I arrive at this amount by adding the following figures:
· $4,800 — 24 payments of $200 (half of the monthly payment amounts from 1996-1998);
· $7,200 — combined cost of initial improvements to the Property;
· $8,000 — roof repair;
· $10,000 — further porch repairs and unfinished bathroom improvements (after the return of monies for the purchased tools);
· $10,000 — direct cash payment to the Wongs for property taxes.
[47] The respondent’s evidence was that the costs towards the various repairs, aside from the roof, was in the range of approximately $9,000 and not the approximately $17,000 the claimant estimated. Further, he claims that some of the payments came from the joint account to which the respondent contributed his employment income.
[48] I am well aware that in the background of this is the fact that over 17 years of her occupancy at the Property, the claimant made no monthly payments towards rent or property taxes, and that when taking into account the net contributions and benefits flowing from the Property over that period, it is difficult to comprehend how Mrs. Wong’s economic position in reality was actually improved. However, for the purposes of a principled analysis, I will accept that there was an “enrichment” in the most straightforward economic sense, and I will address the other considerations at the juristic reasons stage.
[49] Applying a straightforward economic approach, as explained above, there was a corresponding deprivation to the claimant, proportionate to the enrichment of Mrs. Wong.
[50] Simply put, the absence of a juristic reason means that there is no reason in law or justice for Mrs. Wong’s retention of the benefit incurred by the claimant, making its retention “unjust” in the circumstances of the case: Pettkus, at 848. As previously mentioned, juristic reasons may flow from an established category, such as a contract or donative intent, or they may flow from the reasonable expectations of the parties. Overall, the test for juristic reason is flexible, and the relevant factors to be considered depend on the situation before the court: Kerr, at para. 44.
[51] The evidence in this case overwhelmingly shows that there was a juristic reason for Mrs. Wong’s enrichment, and therefore there is no injustice in her retaining it. The circumstances of this case do not fall within a clearly established category; however, the reasonable expectations of the parties provide for more than enough juristic reason.
[52] The evidence supports that the Wongs initially expected to receive $400 a month from the respondent and the claimant, but that the couple did not pay this amount after 1998. The respondent offered no better reason than that they “just didn’t have the money at the end of the month, just overspent, didn’t budget for it” even though the amount charged was “not at all” excessive.
[53] The claimant testified that the reason for stopping the payments was that Mrs. Wong had told her and the respondent that the house and all its maintenance was their responsibility. She also testified to a meeting with Mrs. Wong’s sister-in-law, in which there was a disagreement about the benefits being derived from Mr. Wong’s estate in relation to the Property.
[54] I do not find this version of events believable. First, this was denied by both the respondent and Mrs. Wong. Their testimony supports that after the respondent and the claimant ceased making the $400 monthly payments, the Wongs continued to request the amounts from their son, who told them that he and the claimant did not have the money. The respondent testified that this strained his relationship with his parents, and that he would get into arguments with them and “avoid them at all costs”. He testified that he informed the claimant of these situations. The respondent also testified that in December 2010, he and the claimant “had discussed it and we said yeah, the least we could do is, we haven’t paid rent, let’s just give them $10,000 to do whatever they want to do with it”.
[55] With respect to the Wongs’ expectation of payment, I prefer the version of events put forward by the respondent and Mrs. Wong. They testified in a credible fashion, and the details put forward are consistent with the overall narrative of the relationship between the parties, for example, the fact that neither the claimant nor the respondent assisted in caring for an ailing Mr. Wong even though they lived only one block away.
[56] Over 17 years, $400 a month equals a total of $81,600, half of which, $40,800, would have been attributable to the claimant. The respondents have submitted as exhibits the annual property tax amounts from 2008 to 2014, which total $26,097 for that period. In 2008, taxes on the Property were $3,083.53, which equates to $257 a month. I can only infer that this amount would have been incrementally lower the further back in time, and therefore $400 a month in the 1990s and early 2000s would have been in excess of the property taxes. However, I am satisfied that even if only half of the monthly payments were attributable to property taxes, $400 a month to occupy a full house in Vancouver was a paltry sum even in 1998.
[57] As the claimant’s total contribution to the Property over 19 years (approximately $40,000 on a best case scenario for her) is less than her share of unpaid monthly payments ($40,800), I am unable to see how it would be unjust in any way for Mrs. Wong to retain the claimant’s contributions. If anything, the claimant derived the greatest net benefit from the Property as a result of Mrs. Wong’s great generosity over 17 years, although that is not a claim before me. As a result, I find that the test for unjust enrichment fails.
[58] The claimant also seems to advance a claim that the Property was subject to a trust as a result of Mrs. Wong’s assurances that the Property was “theirs’” and that the claimant and the respondent would eventually inherit it. I must reject this claim on its face, as these conversations, which were contested in evidence, and the possibility of a future testamentary disposition fall well short of establishing any beneficial interest. There is no evidence that the Wongs took any steps or executed any documentation purporting to transfer any legal or equitable interest in the Property to the claimant or respondent. Furthermore, it is irrelevant that Mr. Wong’s last will and testament stated that the Property would pass to the respondent had Mrs. Wong predeceased him. This event did not happen.
[59] Overall, the claimant’s claim for an interest in the Property is denied.
[60] There is a CPL registered against the Property by the claimant. It cannot be discharged at this time because of the potential for an appeal. If an appeal is filed then the release of the CPL must wait until the appeal has been heard. In Sun Wave Forest Products v. Xu, 2018 BCCA 63, Saunders J.A. wrote at paras. 32 and 33:
[32] As part of the appeal, the plaintiffs also challenged the order cancelling the certificates of pending litigation. The application to dismiss the action for want of prosecution was heard on May 29, 2017. The judge reserved and then gave oral reasons on June 16, 2017. After she had given her reasons dismissing the action for want of prosecution, defence counsel asked for an order cancelling the certificates of pending litigation. That relief had not been sought in the notice of application. The trial judge agreed to make the order. Counsel did not bring to the judge’s attention s. 254 of the Land Title Act:
254 If an action in respect of which a certificate of pending litigation is registered has been dismissed, the registrar must cancel the registration as provided in the regulations, or, on
(a) application, and
(b) production of a certificate of the registrar of the court that issued the certificate of pending litigation, endorsed by the registrar of the Court of Appeal, certifying that
(i) the action has been dismissed and that the time limited for appeal has expired and no notice of an appeal has been filed with the registrar of the Court of Appeal, or
(ii) a notice of appeal has been filed and has been finally disposed of, and the dismissal of the action has not been set aside by the Court of Appeal or the Supreme Court of Canada.
[33] I consider the appellants are correct in saying the certificates of pending litigation ought not to have been cancelled. In the recent decision Bilin v. Sidhu, 2017 BCCA 429, this court addressed the jurisdiction of the trial court to cancel certificates of pending litigation as part of an order ending proceedings in the Supreme Court of British Columbia. Yesterday this Court released Berthin v. Berthin, 2018 BCCA 57, discussing Bilin. It is clear from these two cases that the Supreme Court of British Columbia’s jurisdiction to cancel a certificate of pending litigation, outside of an application under ss. 256 and 257 of the Land Title Act is narrow. When a claim that supported the filing of a certificate of pending litigation is dismissed, the certificate of pending litigation must remain on title until the requirements of s. 254 are satisfied or a subsequent application under s. 256 establishes hardship or inconvenience. In Berthin, Justice Fenlon for the Court explained:
[32] A CPL is an extraordinary pre-judgment mechanism intended to protect a valid claim to an interest in land until the issues in dispute can be resolved. It prevents a plaintiff’s claim from being defeated by the defendant transferring the property in dispute to a third party. Section 254 of the Land Title Act continues that protection throughout the appeal process, thereby ensuring the property remains available in the event an appeal is successful. Section 256 protects the interests of the defendant property owner by providing for removal of a CPL if it is causing hardship or inconvenience. Section 252 provides a further avenue for removal where the plaintiff fails to pursue a claim diligently.
And:
[44] I conclude that a judge has jurisdiction to make an order immediately cancelling a CPL when the claim does not meet the threshold requirements of s. 215, or when the property owner affected by the CPL establishes hardship or inconvenience under s. 256. A judge does not have jurisdiction to make an order cancelling a CPL when a claim is dismissed under Rules 9-5, 9-6, 9-7, or following a full trial. In those circumstances, s. 254 of the Land Title Act governs and an order purporting to immediately cancel a CPL cannot be given effect and should not be made. In short, when a claim underpinning registration of a CPL is dismissed, the CPL must remain on title until the requirements of s. 254 are satisfied or a subsequent application under s. 256 establishes hardship or inconvenience.
[Emphasis added.]
[61] Mrs. Wong will have to comply with s. 254 of the Land Title Act, R.S.B.C. 1996, c. 250 to have the CPL cancelled.
[62] Mrs. Wong, and her late husband Mr. Wong, should be commended for the generosity they showed their adult son and daughter-in-law over the years, by providing them and their children a place to live for minimal compensation. The Wongs also provided ongoing childcare for their grandchildren without any expectation of payment.
[63] The claimant currently receives $2,000 a month in spousal support from the respondent, pursuant to a September 2017 court order. She now seeks spousal support for $2,685 a month.
[64] The respondent disputes the increase. In addition, he submits that the Court should impute some income to the claimant based on the fact that she does not work at all but is capable of earning income, whether by working at a marihuana dispensary or by selling her wood carvings. In the alternative, the respondent submits that should this Court not impute income to the claimant, the spousal support amount should remain at the current level. He points out that he is supporting his two sons who reside with him.
[65] The respondent submits that pursuant to both s. 15 of the Divorce Act and s. 161 of the FLA, the promotion of economic self-sufficiency is an objective of spousal support. Further, he submits that there is a lack of evidence to confirm whether the claimant is permanently disabled from working, and that she could earn an annual income of $20,000 if she was motivated.
[66] The respondent cites Hanson v. Hanson, 1999 CanLII 6307 (B.C.S.C.) [Hanson], for the proposition that a person’s capacity to earn income is based on a consideration of that person’s age, education, experience, skills, and health. At para. 14 of Hanson, Martinson J. outlined the following principles related to the capacity to earn income:
[14] The following principles apply when determining capacity to earn an income. (See Dr. Julien D. Payne, Imputing Income, “Determination of Income; Disclosure of Income”, Child Support in Canada, Danrab Inc., August 3, 1999.)
1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is “no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor.” (Van Gool at para 30.)
2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.
3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.
4. Persistence in unremunerative employment may entitle the court to impute income.
5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.
6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.
…
[19] How does the court decide whether a person is earning to his or her capacity? The court should be provided with information about the parent’s capacity to earn and the parent’s present income earning situation. The two can then be compared.
[20] There are two aspects to a parent’s capacity to earn. The first is what the parent is capable of earning based age, education, experience, skills and health. The second is the job opportunities that are realistically available.
[67] The claimant submits that she is unable to work because of her physical conditions, which cause her constant pain. The claimant submitted a doctor’s note written by her family physician. It states that “I verify that Lesley is permanently medically disabled from being able to pursue gainful employment since her stroke in 2004.” It also notes that the claimant has severe osteoarthritis of her left knee, moderately severe osteoarthritis of her right knee, chronic knee pain, problems walking and standing for prolonged periods, and depression that affects her energy, concentration and motivation, which all prevent her from being able to pursue even sedentary work.
[68] The contents of the doctor’s note are relatively consistent with the claimant’s testimony regarding her physical condition. Taking into account the claimant’s age, education, experience, skills, health, and the clear struggles she had with cognitive issues while testifying, I agree that she is not able to obtain any type of gainful employment.
[69] The claimant testified to having carved wood as a pastime for number of years. The respondent has submitted a picture of one of the claimant’s carvings, which the claimant testified to being partially finished. In cross-examination, when questioned on the topic of her selling carvings, the claimant stated that she “lacked the ability” and “wouldn’t even know where to begin”. The suggestion that the claimant has the ability to market her wood carvings is not sustainable. It is also not clear if, in her current living space of a 450-500 square foot apartment, which she shares with a disabled individual, she could establish the space to set up a wood-carving business.
[70] The respondent’s SSAG income for 2017 was $71,987 (comprised of employment income: $69,993; and employment insurance benefits: $1,994). Pursuant to the SSAG “without child support” formula, the low range for support payments is $2,250; the mid range is $2,625; and the high range is $2,858.
[71] The respondent relies on Beninger v. Beninger, 2009 BCCA 458 at para. 28, for the proposition that:
While it is preferable for a court to organize its analysis by reference to the Guidelines as well as the statutory requirements and authorities applying them, neither the Divorce Act nor the authorities require justification for deviation from them. The appellant’s proposition does apply to the Child Support Guidelines because of the requirements in s. 17(6.1) and 17(6.3) of the Act to apply the Guidelines and to give reasons for deviating from them where deviation is permitted. Nowhere in the Divorce Act are there comparable provisions requiring compliance with the Spousal Support Advisory Guidelines or reasons for deviating from them. As their name indicates, they are advisory and without statutory effect. That said, they provide helpful advice and this Court has been clear that their advice must be taken seriously and that best practice would include an explanation of any deviation from them.
[72] I am cognizant that the SSAG are not binding on me, and that in determining the amount of spousal support I must consider the conditions, means, needs, and other circumstances of each spouse, including the length of time they lived together, the functions performed by each spouse during this time, and any agreement between the spouses: FLA, s. 162. I have also considered the objectives of spousal support at s. 161 of the FLA.
[73] The circumstances of this case support an award of spousal support at the mid range of the SSAG. I order that monthly payments be increased to $2,625. This amount is justified based on the length of the marriage (over 25 years) and the conditions, means, and needs of the claimant. As indicated, the claimant is in poor physical shape, and her financial statement sworn January 29, 2018, shows total assets of $4,500, and total debts of $3,614. Although she has received over $300,000 in inheritance within the past ten years, that money is all gone. I note that much of this money was spent on the respondent and the family. As stated by the respondent, “we were living the good life, we just spent and bought whatever we wanted … we went out for dinners, kids basically got whatever they wanted”.
[74] The respondent submits that this additional increase would result in more than half of his monthly income going to the claimant. I note, however, that the respondent continues to have gainful employment and resides at the Property at a far below current market rent, which is owned by his mother and is valued at over $1.5 million. The claimant, on the other hand, must rely on the generosity of her disabled boyfriend for accommodation, and is undoubtedly at risk of future financial hardship as a result of her non-existent savings. For all these reasons, I find the increase in spousal support appropriate.
[75] Counsel for the respondents raised as an issue the credibility and reliability of the claimant as a witness, submitting that the claimant’s evidence was disputed by both the respondent and Mrs. Wong, and was in conflict with her own affidavit materials, with respect to the following topics:
· whether the couple was asked to pay “rent”, and the amounts of such;
· the circumstances of the move in 1996 and whether the couple was told that the Property was “theirs”;
· the claimant’s inheritances, the joint bank accounts, and specific purchases made from the inheritances;
· the claimant’s reasons for leaving her job at the dispensary; and
· the claimant’s memory.
[76] Overall, I found the claimant credible in her testimony, and I am not persuaded that she was being untruthful. Although the claimant seemed to struggle with parts of her memory while giving testimony, I found her recollection of the key facts upon which I have based my determination reliable. I find that her memory issues and the struggles she experienced were consistent with her evidence of having a stroke and the difficulties that she faces from the residual consequences of that medical event.
[77] I have considered the relevant contested factual details in my determination, and have weighed them accordingly.
[78] I grant the following orders:
1. Subject to s. 12 of the Divorce Act (Canada), the claimant, Lesley Elizabeth Anne Waldron, and respondent, Jackson Wong, who were married at Vancouver, British Columbia, on August 5, 1989, are divorced from each other, the divorce to take effect on the 31st day after the date of this order.
2. The RRSP be divided evenly between the claimant and respondent Jackson Wong.
3. For purposes of calculating spousal support payments under the Spousal Support Advisory Guidelines, the respondent Jackson Wong’s income is set at $71,987 for the year 2018.
4. The respondent Jackson Wong will pay to the claimant for her support the sum of $2,625 per month, commencing in April 2018 and continuing each and every month thereafter in two installments payable on the 15th and 30th of each month until further order of the court or written agreement of the parties.
5. The claim for a constructive trust is dismissed.
[79] The respondents were successful in defeating the claimant’s claim against the Property. The claimant was successful in increasing the amount of spousal support. I am cognizant of the adverse financial situation that the claimant finds herself in and that all of her inheritance has been depleted. Some of that inheritance was used to make improvements to the Property, which is now solely owned by Mrs. Wong. As such, I find that each party is responsible for their own costs.
“The Honourable Madam Justice Forth”