IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Jaggs v. Jaggs, |
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2018 BCSC 1578 |
Date: 20180912
Docket: E171518
Registry: Victoria
Between:
Clara Jane Jaggs also known as Clara Jane Burke
Claimant
And
Timothy Arthur Laker Jaggs
Respondent
Before: The Honourable Madam Justice Murray
Oral Reasons for Judgment
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Counsel for the Claimant: |
N. Hamilton |
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Counsel for the Respondent: |
F.M. McQueen |
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Place and Date of Trial/Hearing: |
Victoria, B.C. August 30, 2018 |
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Place and Date of Judgment: |
Victoria, B.C. September 12, 2018 |
[1] The claimant seeks to have October 2017 orders for interim child and spousal support set aside and replaced with orders for greater support. Alternatively she seeks to vary them.
[2] The respondent opposes the application arguing that there is no basis for setting aside or varying the orders.
[3] The claimant’s application is concerned entirely with a bonus received by the respondent in the course of his employment and how it impacts his income for support calculations if at all.
[4] By way of background, the parties commenced cohabitation in 2002, married in 2004 and separated on October 25, 2016.
[5] They have two children, aged 10 and 12.
[6] The parties married in the UK and moved to Canada several years ago.
[7] The respondent is an insurance broker. When the parties moved to Canada he secured employment with Integro Canada Ltd., the Canadian branch of the firm he worked for in the UK. During his employment with Integro Canada the respondent earned a monthly wage of $12,500 and received a yearly bonus based on his sales which was paid in a lump sum usually in March of the year following the year he earned it. In 2014, 2015 and 2016 he received bonuses of approximately $250,000 for work done during the previous year.
[8] After the parties separated in October 2016 the claimant went on a spending spree racking up debt on the parties’ joint credit cards and regularly withdrawing large sums from their joint bank account. As a result the parties’ joint line of credit and credit cards increased significantly to the point that when the respondent received his 2016 bonus in March of 2017 a large portion of it had to be used to pay down the debt.
[9] Because the bonus was effectively pre-spent by the claimant with her excessive spending the parties had only the respondent’s salary of $12,500 a month to live on.
[10] In the summer of 2017 Integro Canada was taken over by another company and the respondent lost his job. The respondent formed his own company, renegotiated his working relationship with his former employer, Integro UK and through his new company, entered into an employment contract with them. Since September 2017 the respondent has earned $12,500 per month gross before deducting business expenses.
[11] On October 5, 2017 the parties, after two days of mediation, entered into an order before Madam Justice Forth (the “Forth order”). Under the negotiated order the respondent is to pay to the claimant child support in the amount of $2,102 per month and spousal support of $2,498 per month. These amounts were based on the respondent’s salary of $150,000 per annum but not his bonus.
[12] At the time of the Forth order the 2016 bonus (received in the spring 2017) had been spent on the claimant’s extravagant spending. Also at the time of the mediation and order, the parties knew that the respondent would be getting his 2017 bonus in the spring of 2018 but because he was working for a different company, did not know how much it would be.
[13] On April 11, 2018, the respondent was advised by Integro UK that his bonus for 2017 would be approximately $137,000.
[14] The application before me was originally scheduled by the claimant to be heard April 17, 2018. A settlement of the issues was reached shortly before the application was to be heard. The terms of the settlement as reflected in the April 17, 2018 consent order of Bracken J. (the “Bracken order”) were that the whole of the respondent’s 2017 bonus was to be paid into his counsel’s trust account and out of that the claimant would be paid $30,000 as support without prejudice to the amount of support ultimately determined to be payable to her. There was also an order that the respondent continue to pay child and spousal support as per the Forth order.
[15] In May 2018 the respondent received $131,489 in pre-tax dollars as his 2017 bonus. As per the Bracken order, on May 3, 2018, the claimant received $30,000 for child and spousal support.
[16] The respondent has continued to pay monthly support as required under the Forth order.
[17] The claimant is unemployed. She has failed to make any meaningful effort to gain employment since separation although she worked as an interior designer in the UK and has taken design courses since moving to Canada. She is living in the parties’ waterfront house in Maple Bay, is travelling and is insistent that the children attend private school. She is living beyond her means and is continuing to accrue debt.
[18] The respondent rents a small house near the family home for $2,250 per month.
[19] The respondent has experienced high stress and anxiety since starting his own business. On August 6, 2018, he suffered a heart attack and had to undergo surgery. His doctor has advised him that he is at risk for another heart attack if he does not reduce his stress level.
[20] On July 5, 2018, a trial date of July 22, 2019 was set.
[21] Since setting the trial date counsel for the parties have agreed to a mediation/arbitration of all issues. They have dates set in February and March 2019 on the agreement that they will use the earliest date available to counsel.
[22] The lone issue to be decided is whether the interim spousal and child support orders should be set aside and/or varied.
[23] In order to set aside an order the claimant must show that the Judge was clearly wrong in making it: Herr v. Herr, 2006 BCSC 1097 at para. 11. As stated above, the orders the claimant seeks to set aside were reached at mediation after much negotiation. They were drafted by her counsel. Accordingly this application fails.
[24] Now turning to the claimant’s application to vary the support orders.
[25] The threshold for varying an interim order is high. As stated by Donegan J. in Janmohamed v. Janmohamed, 2014 BCSC 107:
[45] The law seems very clear here. There is no statutory provision in the Divorce Act to vary an interim order for support. Such an order can only be varied pursuant to the court’s inherent jurisdiction. This jurisdiction should only be exercised in compelling circumstances that are urgent and cannot wait for trial. The onus upon the applicant is a heavy one.
[26] In order to vary a support order a court must be satisfied that there has been a material change in circumstances since the making of the order. That is a change that if known at the time would have likely have resulted in different terms: Willick v. Willick, [1994] 3 S.C.R. 670.
[27] Having considered all of the circumstances I am not satisfied that the claimant has met the onus of showing a material change or compelling circumstances.
[28] In fact I find that the claimant has shown no change whatsoever. There are several reasons for coming to this conclusion. First, the order was one that was mediated, so entered into with her consent. Second, the claimant was aware at the time of the Forth order that there would be a bonus paid to the respondent as was always the case – she just did not know how much that bonus would be. Third, the claimant received her share of the respondent’s 2017 bonus in May 2018 in the amount she consented to in the Bracken order. To now apply to have the bonus form part of his income in the calculation of support would be to count it twice.
[29] The onus on varying interim orders is high for a reason – so courts do not get bogged down and resources of the parties to the litigation expended, changing and revisiting orders that are, by their very nature, temporary. This is particularly so when a mediation/arbitration is scheduled in the near future as it is in this case.
[30] Interim orders are not meant to be perfect. They are intended to provide a bridge until trial.
[31] In conclusion I find that the claimant has not met the onus for setting aside or varying the Forth order. Accordingly her application is dismissed.
[32] As I have found the claimant’s application to be without merit there shall be costs to the respondent in any event of the cause.
“The Honourable Madam Justice Murray”