IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

A.J. v. M.R.J.,

 

2019 BCSC 60

Date: 20190121

Docket: E172520

Registry: Vancouver

Between:

A.J.

Claimant

And

M.R.J. also known as M.R.H.

Respondent

Before: The Honourable Mr. Justice Kent

Reasons for Judgment

The Claimant appearing in person:

A.J.

The Respondent appearing in person:

M.R.J.

Place and Dates of Trial:

Vancouver, B.C.

January 7–11, 2019

Place and Date of Judgment:

Vancouver, B.C.

January 21, 2019


 

Table of Contents

INTRODUCTION. 3

FACTUAL BACKGROUND. 3

PLEADINGS AND LITIGATION TO DATE. 7

DIVORCE. 10

CUSTODY, ACCESS and GUARDIANSHIP. 10

General Legal Principles. 10

Assessment and Determination. 13

CHILD SUPPORT. 18

General Legal Principles. 18

Assessment and Determination. 22

SPOUSAL SUPPORT. 24

General Legal Principles. 24

Assessment and Determination. 26

FAMILY PROPERTY AND FAMILY DEBT. 26

General Legal Principles. 26

Assessment and Determination. 27

SUMMARY AND CONCLUSION. 31


 

INTRODUCTION

[1]             The trial of this action arises from the dissolution of a 24-year marriage.  The parties met in 1992 and were married in November 1994.  They have six children ranging in age from 3 to 15.  They have modest assets and little income.

[2]             The issues to be decided are divorce, custody/guardianship of and access to the children, child and spousal support, and division of family property and family debt.

[3]             The parties have no money for lawyers and conducted the trial as best they could without the assistance of legal counsel.  They conducted no research into and knew nothing about the law applicable to the issues to be decided.  Little effort was made to learn about trial procedure or basic principles of evidence, even though guideline materials were provided to them at a Trial Management Conference.  Disclosure and discovery of documents has been wholly inadequate.  No examination for discoveries were conducted.  Independent corroboration of the parties' oral testimony/submissions, whether through documents or witnesses, was largely absent.

[4]             I will do the best I can in fashioning a sensible judgment in these rather unsatisfactory circumstances.  For the benefit of the parties, I have set out applicable legal principles in plain language and without detailed analysis of case law.

FACTUAL BACKGROUND

[5]             What follows are my findings of fact based on the evidence adduced.  The factual background is largely undisputed, although the parties disagree about the characterization of certain events.  Where any relevant fact or event of importance is seriously contested, I will make specific findings of fact as necessary.

[6]             The father was born in Iran.  He fled that country in 1987.  He was a refugee in various places in southeast Asia for five years before coming to Canada in 1992.

[7]             During his refugee years, the father converted from the Islamic faith to Christianity.  In the ensuing years he has been heavily involved in various Christian ministries, locally and internationally, with particular emphasis on the Persian community and assistance to refugees.  His has been a roving ministry not without controversy.  His income has been modest.

[8]             The father has only a grade 9 education.  He has difficulty writing.  He says he has been "schooled by life".  He says he is a "hard worker" and "never ashamed" of doing whatever work might be required to get by.  His early employment in Vancouver was in gas stations, restaurants and vinyl/leather repair.  He also established a pizza business, which later failed.

[9]             The father met the respondent ("the mother") shortly after arriving in Vancouver in 1992.  They married in November 1994.  The mother has a high school education as well as two years' study in Arts at Capilano College.  She did not obtain a diploma.  Before becoming a stay-at-home mother following the birth of their second child, she had various jobs in retail, office work, and a supermarket.

[10]         The couple have six children:

·       K.E.J. born March 15, 2003 (15);

·       K.A.J. born February 5, 2005 (13);

·       M.M.J. born March 6, 2008 (10);

·       D.A.J. born April 8, 2011 (7);

·       R.G.J. born February 3, 2013 (5); and

·       K.S.J. born December 17, 2014 (3).

[11]         The youngest child is presently in daycare.  The cost is subsidized 100% by the government.  The other five children attend a private school, Lions Gate Christian Academy.  The youngest is in kindergarten and the eldest in grade 10.  The family pays discounted tuition fees of approximately $7,000 per annum.  The children are all good students, and according to the school principal are participating in a variety of intra- and extra-curricular activities, and "enjoying their LGA school life".  The mother is an active volunteer at the school chapel and at various school activities/events.

[12]         In the early years of their marriage, the couple owned and occupied a residence in Richmond.  The purchase was made possible, at least in part, by personal injury settlement proceeds paid to the father as a result of an earlier motor vehicle accident.  Precise figures and values were not tendered in evidence nor any documents relating to the purchase, financing and ultimately the sale of these premises.

[13]         In 2005 the couple moved to North Vancouver and purchased a property at 4370 Shavington Street, a seven-bedroom residence that they occupy today.  In April 2007, the title to the property was transferred to the mother alone, apparently as a creditor protection strategy.

[14]         The Shavington Street property is in poor condition generally and has major structural and water ingress problems.  The concrete foundation suffers from cracking, separation and subsidence.  Certain beams and joists are rotten.  A retaining wall at the rear of the property is failing and on the verge of collapse.  A solarium-type room, which is currently under tarp, has water ingress problems and needs to be replaced.  Wooden stairs at the back of the house are rotten and are falling apart  A structural engineer has provided a report that the house is not structurally sound and needs substantial repairs in the $200,000–$400,000 range.

[15]         A "market evaluation" provided by a local realtor opines that, upon sale, the home will most probably be torn down and the lot used to construct a new residence.  He assesses the current market value of the property, as is, at $1.3 million.  The property is subject to a mortgage with a current balance of approximately $380,000.

[16]         In 2001 the parties started attending a church in Lynn Valley.  The congregation was interested in the father's experience as a converted Muslim.  Other Christian Iranians also attended and the husband provided translation (English to Farsi).  As the Iranian congregation grew an initiative developed for music and ministry in Farsi, ultimately leading to a break-off group in 2005.  This in turn led to the organization of a church, Vancouver Christian Fellowship ("VCF"), which acquired formal charitable status and was run by a board of directors.  The father became the lead pastor for the church and the mother acted as the "children's minister" as well as performing various administrative and hospitality tasks.

[17]         At its peak, VCF had a congregation of approximately 100 people.  It forged links with various other Christian ministries inside and outside the province, as well as abroad.  Operations were funded by tithes and other donations, some donors being more prominent than others.  However, controversy arose in 2010–2011 respecting the father's relationship with a female member of the congregation leading to a loss of trust, his resignation as pastor, loss of meeting space (at Lions Gate Christian Academy), and ultimately dwindling membership and much reduced finances.

[18]         After a period of "restoration" the father was "released" to resume ministry with VCF in 2013.  From that point forward, the church undertook domestic work with a small local congregation, often out of the parties' home, and also internationally, including speaking engagements at conferences (and related sales of the book authored by the father), and travelling to refugee camps in various parts of the world.  Activities in Germany ultimately led to the creation of the "House of Cyrus", a separate registered charitable/religious entity in Germany, which owns and operates two houses offering accommodations to refugees, the costs of which are paid, at least in part, by the German government.

[19]         The father's extensive international travel strained further the already troubled marriage.  The mother's breaking point was the father developing a relationship with a woman in Germany, E.K.S., who was also involved in establishing the House of Cyrus.  The father takes the position that in October 2015 a "biblical divorce" of the mother was performed (something the mother never accepted) and claims this date as the parties' separation date for the purposes of this litigation.  He says his relationship with E.K.S. only developed after that "divorce", ultimately culminating in a "biblical marriage" to her in July 2018 in Germany.

[20]         The father is neither formally divorced from the mother nor formally married to E.K.S. as a matter of law, whether in Canada or in Germany.  He says that the mother's constant refusal to dissolve their marriage led to his filing the Notice of Family Claim in September 2017 in which he seeks only a divorce.

[21]         The fracture of the parties' relationship also increased dissension in the remaining ranks of the VCF congregation whose numbers have since completely dwindled away.  Church operations in 2016–2018 were funded primarily by significant contributions from one or two major donors.  Almost all the revenue in those years was spent on the father's international travel and speaking commitments, refugee camp ministry, and development of the "House of Cyrus" initiative in Germany.  In each of 2017 and 2018, $2,000 of VCF funds were paid to the mother each month ostensibly as a salary for her (limited) ongoing domestic ministry, but in reality for the purpose of financially supporting the family.  These payments were made with the full support and authority of the charity's board of directors.  However, the VCF funds are entirely depleted and for all practical purposes VCF is now defunct in all but name.

PLEADINGS AND LITIGATION TO DATE

[22]         As indicated above, the action was initiated by the father on September 26, 2017 when he filed a Notice of Family Claim claiming separation on October 1, 2015 and seeking a divorce.  The following pleadings have been filed:

1.       the father's Notice of Family Claim––September 26, 2017;

2.       the mother's Response to Family Claim––October 30, 2017;

3.       the mother's Counterclaim––January 25, 2018;

4.       the mother's F8 Financial Statement––January 25, 2018;

5.       the father's Amended Notice of Family Claim––January 26, 2018;

6.       the mother's Amended Response to Family Claim––February 26, 2018; and

7.       the father's F8 Financial Statement––March 9, 2018.

[23]         The father sought a divorce on the ground that the parties have been living separate and apart for more than one year.  The mother denied this state of affairs in her October 30, 2017 Response to Family Claim, however, counterclaimed for divorce on grounds of uncondoned adultery.  During final argument, both parties agreed that a divorce order should be granted by consent.

[24]         In her Counterclaim, the mother asks for orders respecting the children under the Divorce Act, R.S.C. 1995, c. 3 (2nd Supp.), and the Family Law Act, S.B.C. 2011, c. 25.  She proposes that the children "reside" with her but that the father be given "reasonable access as agreed from time to time and depending on his travel schedule".  She seeks child support and spousal support based on an alleged estimated gross annual income on the part of the father in the amount of $155,000.  She also seeks unequal division of family property and family debt on the grounds that the father owns real estate and other property abroad.

[25]         The father did not file any Response to Counterclaim.  His Amended Notice of Family Claim repeats his claim for divorce and also seeks equal division of family property and family debt.  His pleading makes no claim for any orders respecting the children.

[26]         The parties did not update their respective Form 8 Financial Statements for the purposes of trial.

[27]         The mother's financial statement shows her annual income is $2,000 per month/$24,000 per annum.  She makes no disclosure of the substantial Canada Child Benefit she receives ($3,000 per month) nor of "rental" income derived from international home-stay students living in the home (at least $12,000 per annum and sometimes more depending on the number of students).  She attached her 2014–2016 tax returns and her 2017 T4 slip from VCF evidencing the $24,000 employment income for that year.

[28]         In his financial statement the father states his employment income as $0 but discloses "other income" in the following amounts:

·       "gifts received while engaged in international ministry"––$9,530;

·       rental income––$11,400;

·       income tax refund––$3,000; and

·       income from book sales––$18,456.

[29]         The most recent Income Tax Return ("ITR") attached to the father's financial statement is for the year 2016.  The line 150 total income stated for 2016 is $9,500 comprising net self-employment business income of $8,000 (book sales) and $1,500 "other income" ("lump sum payments").

[30]         At trial the father submitted what purported to be an updated financial statement disclosing income of $17,234 as per Schedule A.  That schedule actually discloses only $9,530 as "gifts given on trips".  All other financial information was filled with zeros.  No documents were attached.  Indeed, the financial statement was neither dated nor signed.  I give the document, such as it is, no weight.

[31]         The father's 2017 ITR was tendered into evidence at trial.  Line 150 total income for the year is stated to be zero.  A refund is claimed in the amount of $2,053 based primarily on a "working income tax benefit".

[32]         When he is not travelling, the father continues to reside in the family home.  Since 2015 or 2016, he has been sleeping in a bedroom in the basement.

[33]         In January 2018 the mother applied for exclusive occupation of the home on the basis that the father's demands for divorce and angry outbursts in front of the children were visibly upsetting the latter.  On January 29, 2018 this Court issued a conduct order under the Family Law Act, which, among other things, imposed limitations on communications and required the father to remain downstairs in the family home and the mother to remain upstairs (except insofar as household tasks required her to use the downstairs).  At trial the father admitted that he has breached this order by going upstairs almost daily when he is at the home.

DIVORCE

[34]         Both parties now consent to an order for divorce.  Both agree there has been a breakdown of their marriage within the meaning of the Divorce Act.  I am satisfied that none of the bars to divorce set out in s. 11 of the Divorce Act apply.  Accordingly, I grant an order for divorce.  Pursuant to s. 12 of the Divorce Act, the divorce takes effect on the 31st day following the date of this judgment.

CUSTODY, ACCESS and GUARDIANSHIP

General Legal Principles

[35]         Section 16 of the Divorce Act grants the court jurisdiction to make an order respecting the "custody" of and "access" to the children of the marriage.  Custody can be granted to one parent or jointly to both parents.  An order for sole custody grants the parent all the rights and responsibilities respecting the child including ultimate decision-making authority for the child's education, health and general well-being.

[36]         Subsections 16(8)–(10) of the Divorce Act make it mandatory for the court deciding custody and access issues to,

·       take into consideration only the best interests of the child as determined by reference to the condition, means, needs and other circumstances of the child;

·       not take into consideration the past conduct of any person/parent unless the conduct is relevant to the ability of that person to act as a parent of a child; and

·       to ensure that a child has as much contact with each parent as is consistent with the best interests of the child, also having regard to the willingness of each parent to facilitate such contact.

[37]         It is important to emphasize that in these cases the focus is on the best interests of the child and not on the interests and "rights" of the parents.  Matters that are often considered by the court include:

·       the nature of the relationship between the parents and the child;

·       plans for housing and education in the long and short term;

·       the health of the parents and the child;

·       the age of the child and the level of development;

·       the experience of each parent; and

·       the emotional and any other special needs of the child and the ability of the parents to satisfy those needs.

[38]         The Family Law Act also grants the court jurisdiction to make orders respecting care of and time with a child.  It does not talk of "custody" or "access".  Rather, it uses terms such as "guardianship", "parenting time", "parental responsibilities", and "contact" with a child and defines obligations associated with each of these terms.  In making decisions about such matters, the Family Law Act also makes it mandatory to "consider the best interests of the child only".  In that regard, s. 37(2)–(4) provides:

Best interests of child

...

(2)        To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

(a)        the child's health and emotional well-being;

(b)        the child's views, unless it would be inappropriate to consider them;

(c)        the nature and strength of the relationships between the child and significant persons in the child's life;

(d)        the history of the child's care;

(e)        the child's need for stability, given the child's age and stage of development;

(f)         the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g)        the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h)        whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i)         the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j)         any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3)        An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4)        In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

[39]         At the time of drafting these Reasons for Judgment a bill is before parliament to amend the custody/access provisions of the Divorce Act to include language very similar to the provisions of the Family Law Act set out above.  There is no conflict between the federal and provincial legislation; whether it be case law addressing the Divorce Act or the factors identified in the Family Law Act, specified considerations are merely inclusive and not exclusive and all of the factors mentioned should be taken into account as appropriate in each case.

[40]         Our Court of Appeal has made it clear, however, that trial courts should specify the legislation under which orders respecting children are made.  This is because the criteria applicable to review or variation of such orders in the respective legislation are not identical.  If no such provision is contained in the order and it is one that could have been made under either Act, then generally speaking the doctrine of "paramountcy" will apply and the order will be deemed to have been issued under the Divorce Act.

[41]         In this particular case, I am making orders for custody and access under the Divorce Act.  I point out, however, that the language of s. 16(1) of the Divorce Act is permissive.  There is nothing in s. 16 to preclude the court from considering issues of child care rights and responsibilities within the analytical framework set out in the Family Law Act.  The objectives of both statutes are identical, i.e. to protect and promote the best interests of the children.

Assessment and Determination

[42]         I have serious concerns respecting the unsettled nature of the father's future and consider it in the best interests of the children that sole custody be granted to the mother, albeit with generous access to the father and subject to a review and variation in the future should it be sought by either parent and considered appropriate by the court.

[43]         This is not the common situation where parents have physically separated following dissolution of their relationship and have established separate households.  Rather, they continue to reside in the same house, albeit technically "separated" at law, and little or no dislocation of the children has occurred.  There is thus no history of custody/access arrangements impacting the relationship between the children and each parent to date.

[44]         The father has no formal employment at present and has not been so employed in many years.  He has a calling to undertake Christian ministry, largely centered on refugee activity abroad.  While VCF was initially established as a local, domestic ministry before developing an international reach, that domestic ministry is now essentially defunct.  The past few years of the father's ministry has involved extensive travel abroad and, in particular, to Germany where a physical presence has been established by way of refugee housing and, of course, where his new "wife" lives and works.

[45]         The father gave inconsistent testimony respecting plans for the future.  He claims to have applied for local employment in retail businesses and restaurants without success, although he provided no corroboration.  He proclaimed he was not moving to Germany but then stated that his preference for the future was for the whole family to move to Germany where they could use their home sale proceeds to buy rental houses, where university would be free for the children and better health care available, and where his new partner's benefits plan would extend coverage to him and the children.

[46]         The father then testified that his second-best option would be to move to Winnipeg, where he has connections and support (for his international ministry) with a local church and where again house sale proceeds could be used to buy rental houses to support the family.

[47]         The father says his third and "least desirable" option would be to stay in Vancouver where none of the parties can really afford to live.  In this event, the house must either be sold or one party's interest in the house must be bought out by the other, and he claims (without corroboration) that he has financial supporters who would assist him in financing the purchase of the mother's interest.

[48]         After completion of his cross-examination by the mother and his testimony in reply, the court inquired of the father how the Winnipeg or Vancouver options would impact the relationship with his new partner.  He then, for the first time, disclosed that, if she was able to meet official requirements, his partner was "planning on moving to Vancouver" where she should be able to get work at a "German government school" near UBC and maintain her German government salary.  In this event, the father says he will use the Winnipeg purchase/rental option to fund the renting of a house in North Vancouver with sufficient bedrooms to accommodate the family.

[49]         The court was not provided with any testimony from the father's new partner nor, indeed, any corroboration whatsoever of her intentions or opportunities.

[50]         By outlining the uncertain nature of the father's future intentions, I am not intending to disparage the validity of any of the options he suggests.  It is simply to highlight that the father has no firm plans.  It may well be, as he stated in his final comments to the court, that "the Lord will provide".  From a legal point of view, however, this is not a proposition that gains much traction in determining what might be in the best interests of the children.

[51]         In contrast to the father, the mother has more concrete plans for the future following divorce.  It was her hope that the court would award her ongoing possession of the matrimonial home without compensation to the father so that she can provide accommodation to the children into the future.  In the alternative, however, she has already secured permanent part-time employment with Lions Gate Hospital, which provides a salary of $23,000 per annum, and a generous benefits package for the family.  She has secured child care for the youngest child, which is subsidized 100% and allows her to work during the day while the other children attend school.  If the matrimonial home is sold, she will rent alternative premises in North Vancouver that will allow her to accommodate the children and also up to two international home-stay students.  She believes she will be able to get by financially through a combination of her salary, the home-stay income, the Canada Child Benefit, and her portion of any net home sale proceeds.

[52]         The mother's plan for the future addresses the children's need for stability.  There is no doubt that she has been the primary caregiver in the family throughout the years and particularly so in recent years when the father has been travelling internationally and has been absent from the home for lengthy periods.  The mother is better equipped by experience to deal with the myriad day-to-day needs and demands of looking after six children.

[53]         The court can also take into account the personality, character, stability and conduct of the parents in appropriate cases.  Here, it is clear that, while both parents love their children dearly, they have different personalities and approaches to parenting.

[54]         The differences were commented on extensively by the father in his testimony.  He says he has only "three simple rules", namely, "1.  Respect your elders.  2.  Listen. and 3.  Do your best."  It is clear, however, that the father has many rules.  He suggests that the parties' "cultures and standards are different".  He says "I do lay the law down" and "I do believe in spanking" although he has never hit the children.  Spanking is "in accordance with my beliefs", although "if you just refer to it, they [the children] will comply".

[55]         The father admits that he and the mother have often spoken angrily to each other and that she has even struck him physically on occasion.  He says one of his issues with the mother is "disrespect".  He says he is "more interested in education and homework" than the mother and he believes the children have "taken advantage of [the mother]'s relaxed attitude" to spend inappropriate amounts of time on games and T.V.

[56]         Another one of the father's rules is "no makeup at an early age".  In October 2017 their eldest daughter coloured her hair.  The father accuses the mother of permitting this so as to "provoke him".  As a result, he threw all her clothes outside.

[57]         On the morning of December 30, 2018 he upbraided the eldest daughter for not saying good morning to him.  He denies being aggressive but agrees he raised his voice.  He says that a relationship with him "requires respect".

[58]         Some of the independent witnesses expressed concern about the father's conduct.  One witness, a pastor to the family who disagrees with the father's "lifestyle changes", told him not to discipline his son in public, following certain occasions of "harsh verbal correction".  Another, godmother to the children who is present at all of the birthdays and other celebrations in the household, describes the mother as usually calm, steady and non-confrontational whereas the father is somewhat prone to "aggressive behaviour" particularly in terms of confronting the mother in the home and sometimes the children as well.  She used the words "insulting" and "demanding" in describing the style of communication.

[59]         Again, I raise these personality and parenting style differences not to disparage the character of either party but to illustrate how challenging joint decision-making between the parents may be in the future.  This is a factor that militates in favour of sole custody and the need for an ultimate decision-maker in respect of the children's education, activities, health and general well-being.

[60]         This Court has not had the benefit of any expert assessment by educators, psychologists, or social workers respecting the psychological health of the children or the capacity of each parent to nurture and satisfy their emotional needs.  There is some conflicting evidence respecting the views of the eldest child about moving to Germany and the extent to which the eldest daughter may have withdrawn from her father in recent times.  None of this evidence is sufficiently reliable to attract much weight in the overall analysis.

[61]         After weighing all of the evidence in the context of the appropriate factors, I am satisfied that an order granting sole custody to the mother at the present time would protect to the greatest extent possible the physical, psychological and emotional well-being and security of the children.  There is no doubt, however, that the father loves his children dearly and has much to offer.  He should have generous access to the children in Vancouver when he is not engaged in international travel, a proposition with which the mother agrees.

[62]         Given the uncertainties surrounding the father's future plans, including his employment and the geographical demands of his ministry, there is little sense in setting in stone, at this time, any rigid schedule respecting access.  The mother firmly believes that the father will be moving to Germany in the not-too-distant future and doubts very much that he will rent a home in Vancouver in order to accommodate access to the children.  I am satisfied, however, that were he to do so, the mother would exercise good faith and good judgment in permitting the father generous access to the children, including overnight visitations, and that she will also genuinely consult and attempt to reach agreement with him respecting any significant decisions affecting the children before exercising any final decision-making authority that the court grants her.

[63]         In the result, I order:

1.               the mother is granted sole custody of the six children of the marriage, including all parental rights and responsibilities respecting the children arising at law from such custody;

2.               the father is granted generous access to the children in such manner and for such time as the mother, acting responsibly, might agree;

3.               the mother will promptly inform the father of any matters of a significant nature affecting any of the children, including information respecting their health, education and general welfare, and the parties will discuss with each other any significant decisions and try to reach agreement on such decisions.  In the event the parties are unable to reach agreement on any such matters, the mother will be the ultimate decision-maker;

4.               pursuant to s. 39 of the Family Law Act both the mother and the father are guardians of the children; however, except for day-to-day care, control and supervision of the children during any times of access, the father is not entitled to exercise any parental responsibilities of the sort set out in s. 41 of the Family Law Act;

5.               this order respecting custody and access is subject to review and re-evaluation by the court at the end of the children's school year in June 2020.  Any such review will be a fresh inquiry into the best interests of the children having regard to all the relevant circumstances including, in particular, the father's employment, financial circumstances, place and nature of residence, and the manner in which access has been exercised to the date of the review.

CHILD SUPPORT

General Legal Principles

[64]         Section 15.1 of the Divorce Act empowers the court to make an order requiring a spouse to pay for the support of any or all children of the marriage.  Pursuant to s. 15.1(3) of the Act, any order must be made in accordance with the Federal Child Support Guidelines, SOR/97-175.  Those Guidelines determine the amount of child support based upon the annual income of a spouse.

[65]         Quite apart from the Guidelines, the courts have articulated certain fundamental principles of law applicable to all child support matters:

1.       a parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to provide financial support for the child automatically arises at birth;

2.       parents have a joint and ongoing legal obligation to provide financial support for their child in a way that is commensurate to their income;

3.       this obligation and the child's concomitant right to support exists independently of any statute or court order;

4.       child support is the right of the child, not of the parent seeking support on the child's behalf;

5.       support payments are based on earning capacity and not just on what a parent actually earns – as a result, parents have a legal obligation to earn as much as they reasonably are capable of earning so that the child receives an appropriate level of support;

6.       a parent does not fulfil his/her obligation to his/her child if (s)he does not increase child support payments when his/her income increases significantly; and

7.       both parents must put their child's interests ahead of their own in negotiating and litigating child support.

[66]         The Guidelines provide for a three-step process for determining income for child support purposes.

[67]         First, reference is made to the spouse's "total income" as set out in line 150 of a standard form ITR.  That ITR requires the spouse to itemize income from a wide variety of sources including:

·       employment income;

·       pensions;

·       disability benefits;

·       (un)employment insurance benefits;

·       dividends from corporations;

·       interest and other investment income;

·       rental income;

·       taxable capital gains;

·       income received from RRSPs;

·       social assistance payments; and

·       any "other income".

[68]         The second step is to adjust the line 150 total income of a spouse in accordance with Schedule III of the Guidelines.  Among other things, adjustments are made respecting:

·       certain employment expenses;

·       social assistance;

·       dividends from taxable Canadian corporations;

·       capital gains and capital losses;

·       business investment losses;

·       employee stock options;

·       net self-employment income;

·       partnership or sole proprietorship income;

·       capital cost allowance for property.

[69]         The third step is to make any applicable adjustments/determinations under ss. 17–19 of the Guidelines, which address fluctuating patterns of income, consideration of pre-tax corporate income where the spouse is a shareholder, director or officer of a corporation, and imputing income to a spouse in a variety of circumstances including intentional under/unemployment, failing to use property to generate income, unreasonable deduction of expenses from income, and deriving income from dividends, capital gains or other sources taxed at a lower rate or not at all.

[70]         In the present case, the father's income has been extremely modest.  In the years 2015 to 2017, his "total income" set out on line 150 of his filed ITR was $15,920, $9,500 and zero respectively.  No information has been given respecting his income in 2018, but it is clear that he has been receiving "gifts" from supporters of his ministry as well as some income derived from sale of his book at conferences he has attended during the year.

[71]         Section 19(1)(a) of the Guidelines provides:

Imputing income

19(1)    The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a)        the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

[72]         Imputing income for intentional unemployment or under-employment does not require a finding of bad faith on the part of the payor, only that the payor is not earning to capacity.  In determining if a parent is earning to capacity, the court will apply these general principles:

1.               parents who are healthy and can work have a duty to seek employment;

2.               reasonable income-earning capacity will be based on consideration of a parent's age, education, experience, skills, health, and on the job opportunities that are reasonably available;

3.               limited experience and skills do not justify a failure to pursue employment;

4.               persistence in un-remunerative employment or unrealistic career aspirations will not be an excuse; and

5.               self-induced reduction in income will not justify the avoidance of child support obligations.

Assessment and Determination

[73]         The father is a Christian minister.  It is his calling, however, he is not formally employed as such and earns no employment income from that calling.  Instead, together with income from some book sales (which fluctuates but is generally in modest amounts), the father is financially supported by way of gifts and the largesse of others.

[74]         Laudable though it may be, the father's calling is not a proper legal justification for avoiding his obligation to earn as much income as he can to pay child support.  His obligation for child support takes priority over commitment to other activities that do not generate any meaningful income.

[75]         There is no doubt that the father confronts challenges arising from his background as a refugee and his poor education, and that his income‑earning capacity may well be modest.  His recent attempts to locate employment in retail or restaurant work have not proved fruitful.  Given the demise of VCF's domestic ministry, he may be confronting the unenviable choice of either a self-employment initiative locally or transferring to Germany in pursuit of the employment opportunities described in his evidence (including one which offered remuneration of €2,000 per month).

[76]         In his final submissions, the father stated that he "will definitely generate income one way or another".  He stated that he had earned $2,000 a month in the past and he expects to earn at least that amount in the future.

[77]         In these circumstances, it is fair and reasonable to impute an annual income to the father in the amount of $25,000 per annum for present child support purposes.  I hasten to add that, should the father secure any income above that amount, whether through formal employment or otherwise, he is obliged to increase the amount of child support accordingly.  He is also obliged to make fulsome disclosure to the mother on an annual basis of all documentation in his power or possession respecting any income he has received.

[78]         The amount of child support is determined by applying the mathematical tables in the Guidelines to the payor's income.  An income imputed to the father in the amount of $25,000 per annum generates a child support obligation in the (admittedly modest) amount of $621 per month.

[79]         I order the father to pay child support to the mother in the amount of $621 per month commencing February 1, 2019 and continuing on the 1st day of every month thereafter for so long as all the children remain "a child of the marriage" as defined by the Divorce Act.

[80]         I also order the father to maintain records of all income received each year, from any source, and to file an accurate and complete ITR with all relevant taxation authorities on an annual basis.  No later than May 31 of each year, he will provide to the mother a complete copy of his ITR including all attachments, a copy of the other income records referred to above, and any Notice of Assessment of the tax return subsequently received.  In the event the father's income from all sources increases beyond $25,000 per annum imputed by this order, the father's child support obligation for the subsequent year will be in the amount generated by the Guidelines, as applied to that increased income and will be payable effective July 1 of each year.

[81]         Given the uncertainty surrounding the father's future plans and the possibility he may leave the country, it is appropriate that the mother be provided with some modest security for the father's child support obligations in the immediate future.  In a later section of these reasons for judgment, I will direct the sale of the matrimonial home and a distribution between the parties of the net sale proceeds following settlement of all debts and expenses (para. 108).  As security for his future child support obligation, I also order that the sum of $20,000 be paid to the mother from that portion of the net sale proceeds that would otherwise be payable to the father.

[82]         The mother has made a claim for past and future "special and extraordinary expenses" pursuant to s. 7 of the Guidelines in addition to the "basic" child support referred to above.  As all of the parties' debts, including those that may have been incurred in respect of items that might otherwise have qualified as such special or extraordinary expenses, will be paid off by the net proceeds from the matrimonial home, I make no award for past expenses in that regard.  Special and extraordinary expenses within the meaning of s. 7 of the Federal Child Support Guidelines will include only expenses for childcare, primary and secondary school education, and significant health‑related expenses that exceed insurance reimbursement by at least $100 annually, and will be borne by the parties, 60% by the mother and 40% by the father.  In future years, after the parties have exchanged their respective income information on or before May 31 of each year, the said expenses will be shared for the following year in proportion to their respective incomes for the past year commencing July 1 of each year.

SPOUSAL SUPPORT

General Legal Principles

[83]         Section 15.2 of the Divorce Act permits the court to require one spouse to pay spousal support to the other.  There are three dimensions to a spousal support claim:

1.       entitlement;

2.       duration; and

3.       amount.

[84]         Entitlement is determined with reference to certain "objectives" set out in the Act, including:

·       recognition of any economic advantages or disadvantages to the spouses arising from the relationship between them or its breakdown;

·       apportionment between the spouse of any financial consequences arising from the care of their child(ren), beyond the duty to provide support for the children;

·       relieving any economic hardship of the spouses arising from the breakdown of their relationship; and

·       as far as practicable, promoting the economic self-sufficiency of each spouse within a reasonable period of time.

[85]         Marriage alone does not automatically entitle a spouse to support upon its dissolution.  Generally speaking, however, any significant disparity in incomes or standards of living at the end of a marriage will usually give rise to an entitlement to some spousal support for some period of time.

[86]         In practice, the Federal Spousal Support Advisory Guidelines (SSAG) issued by the Federal Department of Justice are usually applied in most cases to determine the amount and duration of spousal support.  While the SSAG are only advisory in nature, British Columbia is one of the provinces that strongly endorses their use.

[87]         The SSAG provide two basic formulas for determining the amount and duration of spousal support.  The first is the "without child support formula" and the second is the "with child support formula".  As the name suggests, the dividing line between the two is the absence or presence of a dependent child and a concurrent child support obligation at the time spousal support is determined.

[88]         Both formulas use income sharing as the method to determine the amount of spousal support.  The formulas then produce ranges for the amount and duration of support, not just a single number.  The precise number chosen within that range will be determined by the court depending upon the facts of any particular case.

[89]         The starting point under both formulas is the definition of income used in the Federal Child Support Guidelines.  The various steps in determining income are the same as those referred to above in the Child Support section of these Reasons for Judgment.  The SSAG give priority to child support obligations and where income is modest, the result may be that no spousal support is payable in addition to child support.  Entitlement may exist but there is simply no money available for spousal support.

Assessment and Determination

[90]         In this particular case, while the marriage is of a fairly lengthy duration, the father's income has been modest and, given the number of children and the amount of the child support obligation, the formulas do not generate any payment of spousal support.

[91]         To her considerable credit, the mother has been able to secure permanent part-time employment paying a fairly high hourly wage notwithstanding considerable caregiving duties related to the six children.  While she is not yet self-sufficient at this stage of the proceedings, in that regard, her income is considerably greater than her husband's once her salary is combined with the "rent" paid by international home students and the receipt of the Canada Child Benefit.

[92]         In the circumstances, the mother's claim for spousal support is dismissed.  Note however, her claim for spousal support may be revived in the future under s. 15.3 of the Divorce Act if the requisite circumstances exist.

FAMILY PROPERTY AND FAMILY DEBT

General Legal Principles

[93]         The Divorce Act does not address division of the divorcing parties' property or debt.  Rather, the Family Law Act governs such matters.

[94]         Section 81 of the Family Law Act provides that on separation each spouse has a right to an undivided one-half interest in all family property as a tenant in common and is equally responsible for all family debt regardless of the spouses' respective uses or contributions.

[95]         The separation date is the event that creates the entitlement to the interest in family property and responsibility for family debt.

[96]         Ordinarily, the court will be called upon to specifically identify the family property and the family debt as at the date of separation.

[97]         Family property is defined by the Family Law Act as all real and personal property owned by one or both of the spouses or in which at least one spouse had a beneficial interest at the time of separation.  The definition of family debt includes all debts or financial obligations incurred by either spouse during the course of their relationship through to separation.  Debts or financial obligations incurred after separation are generally not considered to be family debts, unless they were incurred for the purpose of maintaining family property.

[98]         The Family Law Act provides for equal division of family property and family debt.  Such property will generally be valued on a fair market value basis as of the date of any trial, and the parties presumptively share in any post-separation increases in the value of family property to the date of trial.

[99]         The court may order an unequal division of family property and/or family debt if it would be "significantly unfair" to divide it equally.  Factors that the court may consider in making such an unequal division can include the duration of the parties' relationship, contributions to each other's career, and the like.

Assessment and Determination

[100]     In this case, the matrimonial home in North Vancouver is the most significant asset of the parties.  The mother seeks unequal division of family property and, in particular, seeks to retain for herself the matrimonial home and the related mortgage.  Her position is that the house, even in its dilapidated condition, will provide accommodation for the children and the current mortgage payment is less than the likely cost to rent a similar residence elsewhere in North Vancouver.  She says she also wants to retain the home "as an inheritance for the kids".

[101]     In seeking unequal division of property, the mother claims that the father owns properties in Germany (the House of Cyrus Initiative) together with two motorcycles, a trailer, and a large recreational vehicle which recently appeared in their front driveway.

[102]     If the house is to be sold, the mother makes the same arguments in favour of an unequal division of the net proceeds claiming an (unspecified) larger portion of the money.  She also argues that these net proceeds could and should be used to fund a lump sum advance payment of the father's future support obligations.

[103]     The evidence respecting the father's interest in German property is unsatisfactory.  It comprises four sheets of paper in German (ostensibly extracts from two sale/purchase agreements and two mortgage commitments), the father's oral testimony, and various materials extracted from the father's Facebook page.  The father's testimony is that,

·       the House of Cyrus comprises two separate rental buildings, one with four apartments and the other with three rental units;

·       the properties were purchased by his new partner, E.K.S., and are owned by the House of Cyrus church;

·       the first house was purchased in August 2017 for €450,000 with a cash payment of €27,000 and a mortgage of €423,000;

·       the second property was purchased at a later date for €170,000 and was funded by a cash payment of €14,000 and a mortgage of €156,000;

·       while he has a power of attorney in respect of one of the properties, he does not directly or indirectly own either;

·       in any event, these properties were acquired after the date of separation posited by the mother (May 2017 at the latest), were not purchased with any of his own money, and hence cannot and do not constitute "family property" in this case.

[104]     The father takes the position that the matrimonial home must be sold.  He says that with the assistance of some of his supporters, he may be able to purchase the mother's net interest in the property but his evidence on this point is vague and entirely uncorroborated by supporting documents of any sort.  He agrees that all debt that the parties had in their respective names to the date of this judgment should be paid off from the proceeds of sale (along with the mortgage on the property and any necessary sale expenses such as commissions, fees, et cetera) and the remaining balance divided equally between the parties.

[105]     Insofar as personal assets are concerned, the father says the mother should be given the Mercedes van in order to ensure transportation for her and the children.  He says that one of the motorcycles in the trailer is registered in his name but the other, and the trailer itself, is owned by a friend and supporter, D.R.  He says the R.V. that is parked in front of the home is actually owned by his new brother-in-law, although it has yet to be registered in someone's name.

[106]     Neither party provided any evidence respecting the nature, extent or value of furnishings or other assets within the matrimonial home.

[107]     I generally agree with the division of assets and debts proposed by the father.  There is simply no evidence that he acquired any sort of legal interest in property in Germany before the fall of 2017, the latest possible date of separation of the parties.  The monies generated through housing refugees at the House of Cyrus properties are used to pay mortgages and otherwise fund initiatives by that church.  There is no evidence that the father is receiving any employment income from that enterprise, a state of affairs consistent with the previous practice at VCF in recent years.

[108]     The mother's suggestion that she be permitted to retain the house as accommodation for the children without any obligation to pay out the father's one-half interest would represent an unequal division of property without meeting the necessary pre-condition of significant unfairness.  To the contrary, it would work a significant unfairness to the father who has a legitimate and substantial claim to one-half of the equity in the property.  In the result, I make the following orders:

1.               the parties' matrimonial home at 1043 Shavington Street, North Vancouver, British Columbia, (Lot 9, Block 8, District Lot 272, Plan 3875) will be sold;

2.               the parties will jointly retain a real estate agent for the purposes of listing and selling the property and will jointly decide on the listing price with the advice of that agent;

3.               the parties will comply with all reasonable recommendations of the real estate agent respecting minor improvements to and cleaning up of the property for the purposes of sale;

4.               the parties will have joint conduct of the sale of the property and must make decisions concerning the sale together;

5.               all offers to purchase the property will be presented to both parties;

6.               if offers are made to purchase the property and the parties are unable to agree which or whether to accept and on what terms, then either party may apply to court for approval of any sale and any necessary further directions in that regard;

7.               the parties will jointly retain a lawyer to document and execute any sale of the property and to receive and disburse all sales proceeds in accordance with this order;

8.               upon the sale of the property, the sale proceeds will be applied firstly to the payment and discharge of all registered financial charges against title including the mortgage, fees and commissions payable to real estate agents, legal fees and disbursements, outstanding property taxes and/or utilities, and any other usual costs of sale;

9.               the remaining balance of sale proceeds will then be applied to pay off all family debts as agreed between the parties, including without limitation their lines of credit with Vancity and CIBC, any outstanding motor vehicle financing, and their credit cards with CIBC, Scotiabank, and American Express; and

10.           all remaining net proceeds from the sale will then be distributed equally to each party; however, $20,000 of the father's proceeds will be paid to the mother as an advance payment of child support for the period commencing from the date of this judgment to May 31, 2020.

[109]     Pending the sale of the property, the parties shall not increase the current level of indebtedness on their credit cards excepting only for matters reasonably incidental to or necessary for the usual household needs of the parties and their children including without limitation, food, utilities, gas, clothing and regular pre-authorized debt payments.

[110]     The mother will have exclusive possession and ownership of the following property from the date of this judgment:

1.               the Mercedes Sprinter;

2.               the CIBC RESP account number **22 administered by CIBC Securities Inc.; and

3.               all furnishings and contents of the matrimonial home except for clothing and other assets the parties agree belong to the father.

[111]     The father will have exclusive possession and ownership of the following assets from the date of this judgment:

1.               the motorcycles, trailer, recreational vehicle and other vehicles located on the matrimonial property;

2.               the remaining inventory of his published book; and

3.               all clothing or other assets within the household that the parties agree belong to him.

[112]     The parties will take all steps necessary to formally transfer as between themselves title to assets such as vehicles, motorcycles or trailers in order to comply with this order.

SUMMARY AND CONCLUSION

[113]     The parties ultimately consented to a divorce.  The mother prevailed with respect to her claim for custody and child support but not for spousal support.  The father's position largely prevailed with respect to the division of family property and family debt.

[114]     The following are the orders of this Court:

Divorce

Subject to s. 12 of the Divorce Act, the claimant A.J. and the respondent M.R.J. who were married at Richmond, British Columbia on November 10, 1994, are divorced from each other, which divorce will take effect on the 31st day after the date of these Reasons for Judgment;

Custody and Access

1.       The respondent M.R.J. will have sole custody of the children of the marriage, namely:

·       K.E.J. born March 15, 2003;

·       K.A.J. born February 5, 2005;

·       M.M.J. born March 6, 2008;

·       D.A.J. born April 8, 2011;

·       R.G.J. born February 3, 2013; and

·       K.S.J. born December 17, 2014.

2.       M.R.J. is granted all parental rights and responsibilities respecting the children arising at law from such sole custody;

3.       A.J. is granted generous access to the children in such manner and for such time as M.R.J., acting responsibly, might agree;

4.       M.R.J. will promptly inform A.J. of any matters of a significant nature affecting any of the children, including information respecting their health, education and general welfare, and the parties will discuss with each other any significant decisions and try to reach agreement on such decisions.  In the event the parties are unable to reach agreement on any such matters, M.R.J. will be the ultimate decision-maker in that regard;

5.       pursuant to s. 39 of the Family Law Act both M.R.J. and A.J. are guardians of the children, however, except for day-to-day care, control and supervision of the children during any times of access, A.J. is not entitled to exercise any parental responsibilities of the sort set out in s. 41 of the Family Law Act;

6.       this order respecting custody and access is subject to review and re-evaluation by the court at the end of the children's school year in June 2020.  Any such review will be a fresh inquiry into the best interests of the children having regard to all the relevant circumstances including, in particular, A.J.'s employment, financial circumstances, place and nature of residence, and the manner in which access has been exercised to the date of the review.

Child Support

7.       A.J. is to pay child support to M.R.J. in the amount of $621 per month commencing February 1, 2019 and continuing on the 1st day of every month thereafter for so long as all the children remain "a child of the marriage" as defined by the Divorce Act.

8.       A.J. is to:

a.       maintain records of all income received each year from all sources;

b.       file an accurate and complete income tax return with all relevant taxation authorities on an annual basis, and that no later than May 31 of each year he will provide to M.R.J. a complete copy of that income tax return including all attachments, together with a copy of the income records referred to above, as well as any Notice of Assessment of the tax return subsequently received.

In the event A.J.'s income from all sources increases beyond $25,000 per annum imputed by this order, A.J.'s child support obligation for the subsequent year will be in the amount generated by the Federal Child Support Guidelines, as applied to that increased income and will be effective on July 1 of each year.

9.       Special and extraordinary expenses within the meaning of s. 7 of the Federal Child Support Guidelines will include only expenses for childcare, primary and secondary school education, and significant health‑related expenses that exceed insurance reimbursement by at least $100 annually, and will be borne by the parties, 60% by the respondent and 40% by the claimant.

10.     M.R.J.'s claim for past "special and extraordinary expenses" pursuant to s. 7 of the Guidelines is dismissed.

11.     In future years, after the parties have exchanged their respective income information on or before May 31 of each year, the said expenses will be shared for the following year in proportion to their respective incomes for the past year commencing July 1 of each year.

12.     As security for A.J.'s future child support obligation, the sum of $20,000 will be paid to M.R.J. from that portion of the net sale proceeds that would otherwise be payable to A.J.

Spousal Support

13.     M.R.J.'s application for spousal support is dismissed.  However, M.R.J.'s may be revived in the future under s. 15.3 of the Divorce Act if the requisite circumstances exist.

Family Property and Family Debt

14.     With respect to the matrimonial home:

a.       the parties' matrimonial home at 1043 Shavington Street, North Vancouver, British Columbia, (Lot 9, Block 8, District Lot 272, Plan 3875) will be sold;

b.       the parties will jointly retain a real estate agent for the purposes of listing and selling the property and will jointly decide on the listing price with the advice of that agent;

c.       the parties will comply with all reasonable recommendations of the real estate agent respecting minor improvements to and cleaning up of the property for the purposes of sale;

d.       the parties will have joint conduct of the sale of the property and must make decisions concerning the sale together;

e.       all offers to purchase the property will be presented to both parties;

f.        if offers are made to purchase the property and the parties are unable to agree which or whether to accept and on what terms, then either party may apply to court for approval of any sale and any necessary further directions in that regard;

g.       the parties will jointly retain a lawyer to document and execute any sale of the property and to receive and disburse all sales proceeds in accordance with this order;

h.       upon the sale of the property, the sale proceeds will be applied firstly to the payment and discharge of all registered financial charges against title including the mortgage, fees and commissions payable to real estate agents, legal fees and disbursements, outstanding property taxes and/or utilities, and any other usual costs of sale;

i.        the remaining balance of sale proceeds will then be applied to pay off all family debts as agreed between the parties, including without limitation their lines of credit with Vancity and CIBC, any outstanding motor vehicle financing, and their credit cards with CIBC, Scotiabank, and American Express; and

j.        all remaining net proceeds from the sale will then be distributed equally to each party; however, $20,000 of the father's proceeds will be paid to M.R.H. as an advance payment of child support for the period commencing from the date of this judgment to May 31, 2020.

15.     Pending the sale of the property, the parties shall not increase the current level of indebtedness on their lines of credit or credit cards excepting only for matters reasonably incidental to or necessary for the usual household needs of the parties and their children including without limitation, food, utilities, gas, clothing and regular pre-authorized debt payments.

16.     M.R.J. will have exclusive possession and ownership of the following property from the date of this judgment:

a.       the Mercedes Sprinter;

b.       the CIBC RESP account number **22 administered by CIBC Securities Inc.; and

c.       all furnishings and contents of the matrimonial home except for clothing and other assets the parties agree belong to A.J.

17.     A.J. will have exclusive possession and ownership of the following assets from the date of this judgment:

a.       the motorcycles, trailer, recreational vehicle and other derelict vehicles located on the matrimonial property;

b.       the remaining inventory of his published book; and

c.       all clothing or other assets within the household that the parties agree belong to him.

18.     The parties will take all steps necessary to formally transfer as between themselves title to assets such as vehicles, motorcycles or trailers in order to comply with this order.

[115]     In the circumstances, success has been divided there will be no award of costs to either party.

[116]     The parties are at liberty to apply to court for further directions that may be necessary with respect to any matters ordered by this Court and upon which they are unable to agree.  Justice Kent is not seized with the case and any such applications may be brought before any other member of the court including any Master of the Supreme Court.

"KENT J."