IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Evans v. Evans, |
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2019 BCSC 62 |
Date: 20190121
Docket: E47208
Registry: New Westminster
Between:
Jennifer
Juliet Webster Evans
also known as Jennifer Juliet Evans
Claimant
And
Darryl Sheldon Evans
Respondent
Before: The Honourable Madam Justice W.A. Baker
Reasons for Judgment
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Counsel for Claimant: |
G.A. Laughlin |
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Appearing on his own behalf as the Respondent: |
D. Evans |
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Place and Date of Hearing: |
Vancouver, B.C. August 20-24, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. January 21, 2019 |
Table of Contents
A. What is the date of the start of cohabitation?
B. How are the family assets to be divided?
1. Are any of the assets excluded property under the Family Law Act?
2. What is the appropriate distribution of family property and family debts?
3. What is the value of family property to be divided?
4. How are family debts to be divided?
Costs relating to the house paid by Mr. Evans after separation
C. What are the incomes of Mr. and Ms. Evans for the purposes of support calculations?
D. What child support obligations are owed?
E. What spousal support obligations are owed?
F. Reconciliation of support already paid and FMEP
[1] After a relationship of over 14 years, which produced two children, Jennifer and Darryl Evans now seek a divorce, division of assets, and determinations of child and spousal support.
[2] The parties agree that on December 18, 2013 they separated. They also agree that they were married on April 3, 1999. They do not agree on the date that they began cohabiting before they were married.
[3] Their first child, Jordan, was born on November 28, 1999. Their second child, Jasmin, was born on February 25, 2005. Both children live with their mother at present.
[4] The parties have been able to resolve two significant issues:
a) both parties consent to an order for divorce, and have met the test for divorce under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and
b) the parties reached an agreement on parenting arrangements which was confirmed in a consent order made on August 23, 2018.
[5] The primary issues in this litigation are:
a) What is the date of the start of cohabitation?
b) How are the family assets to be divided?
c) What are the incomes of Mr. and Ms. Evans for the purposes of support calculations?
d) What child support obligations are owed?
e) What spousal support obligations are owed?
[6] In addition, there are orders sought regarding the behaviour of the parties, which I will deal with following the substantive issues described above.
[7] In the fall of 1996 Ms. Evans moved from Saskatchewan to Vancouver. She and Mr. Evans began dating in 1997. In the fall of 1997 Ms. Evans’ home was broken into and she became afraid to live there. Mr. Evans asked her to come and stay with him in his house on Pinnacle Street, Port Coquitlam (“Pinnacle Property”) which he co-owned with his mother. Ms. Evans did move in with Mr. Evans and his mother in October 1997. In early October 1997 she entered into a purchase agreement for a condominium known as 205-2733 Atlin Pl., Coquitlam, BC (“Atlin Property”). The purchase of the Atlin Property closed on November 28, 1997 and she took possession of this condominium in early December 1997.
[8] The couple became engaged on December 18, 1997.
[9] Ms. Evans said that their cohabitation began when she moved into the Pinnacle Property in the fall of 1997. She said they moved into the Atlin Property together in January 1998. While Mr. Evans did not move his things into the Atlin Property until they were married, she said he lived with her at the Atlin Property in a marriage-like relationship beginning in January 1998.
[10] Mr. Evans denied that they began living together in January 1998. He said they did not begin living together until January or February 1999, after their wedding had been planned for April 1999.
[11] Shoshana Freedman, a friend of both parties and the godmother to their older child, testified. She confirmed the evidence of Ms. Evans that the couple began living together in the Atlin Property in 1998. She said that she attended at the Atlin Property in 1998 when both parties were living there. Further, she said that both Mr. and Ms. Evans told her in 1997 that they would be living together in the new property.
[12] I find the evidence of Ms. Evans and Ms. Freedman to be more consistent with the parties’ relationship than the evidence of Mr. Evans. While I do not accept that cohabitation began during their interim accommodation with Mr. Evans’ mother in the Pinnacle Property, I find that Mr. and Ms. Evans began living together in a marriage-like relationship in January 1998 when they moved into the Atlin Property, following their engagement in December 1997.
[13] There are a number of issues to be determined in relation to the family assets, including whether any property is excluded property under the Family Law Act, S.B.C. 2011, c. 25, the value of family assets at the time of separation and at trial, and how the family assets should be divided.
[14] Section 85 of the Family Law Act governs claims of excluded property. The relevant parts of section 85 are the following:
85 (1) The following is excluded from family property:
(a) property acquired by a spouse before the relationship between the spouses began;
(b) inheritance to a spouse;
…
(g) property derived from property or the disposition of property referred to in any of paragraphs (a) to (f).
(2) A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property.
[15] To succeed in establishing a claim of excluded property, the onus of proof lies on the party claiming the exclusion to prove their claim on the balance of probabilities. As stated by the Court of Appeal in Shih v. Shih, 2017 BCCA 37 at para. 43:
…in order for a party to establish excluded property, he or she must do so with clear and cogent evidence. If documentary evidence is not available, the party bearing the onus of proof will need to testify as to their recollection of the transactions in dispute. That evidence will be scrutinized for credibility.
[16] There are five assets which must be considered in the context of potentially excluded property under the Family Law Act. Ms. Evans brought an RRSP valued at approximately $22,000 into the relationship. Mr. Evans co-owned the Pinnacle Property prior to the relationship. Before the relationship Mr. Evans acquired a pension through his employment with Foremost Foods. He also partially accrued a pension through his employment with BCTel/Telus prior to his relationship with Ms. Evans, and through his employment with Bell after separation. Finally, Mr. Evans said he received an inheritance from his father’s estate in 2012 and 2013.
[17] Before the relationship, Ms. Evans had an RRSP valued at approximately $22,000. There is no dispute that $20,000 of the RRSP was used by Ms. Evans as a down payment on the Atlin Property. The remaining $2,000 was spent on unspecified expenses. The Atlin Property was sold during the marriage, completing in January 2004. The next home the family purchased was on West Street in Maple Ridge (“West Street Property”). The agreement to purchase the West Street Property was entered into on May 25, 2004.
[18] While counsel for Ms. Evans urged me to infer that the down payment for the West Street Property included the $20,000 from the RRSP together with the increase in value in the Atlin Property, that inference was not supported by the evidence of Ms. Evans herself. Ms. Evans said that the proceeds of sale from the Atlin Property were used in a variety of ways. The proceeds were used to contribute to an RRSP, pay off a vehicle, pay bills, and some went towards purchase of the West Street Property. She was not able to say how much money was used towards the purchase of the West Street Property. I am not satisfied that Ms. Evans has met the burden on her of establishing clear and cogent evidence that any specific amount of the original RRSP funds, or the increase in value of the Atlin Property, can be traced to the West Street Property as excluded property.
[19] In 1994 Mr. Evans purchased the Pinnacle Property with his mother. Mr. Evans said that he contributed $90,000 to the purchase price of $250,000. This house was sold in 2005 for $406,178. Mr. Evans said that there was approximately $250,000 equity at the time of sale and that he and his mother each received $125,000. He said that the $125,000 he received from the Pinnacle Property was used in three different ways: some money went towards the mortgage on the West Street Property, some money went to pay a line of credit for vehicle purchases, and some money was left in the bank “for a rainy day”.
[20] Similar to the problem with the evidence regarding Ms. Evans’ RRSP contribution, Mr. Evans did not establish what amount from the sale of the Pinnacle Property purportedly went towards the mortgage on the West Street Property. No banking records for this period were provided, and Mr. Evans provided no specifics in oral testimony. He has not met the onus on him to establish a credible and cogent tracing of the proceeds of the sale of the Pinnacle Property to the West Street Property.
[21] Before he met Ms. Evans, Mr. Evans worked at Foremost Foods. He received a pension when Foremost Foods wound up its business in 1996. This is now a locked-in RRSP held by TD Canada Trust in account No. 8127252. At trial Mr. Evans presented a statement dated September 14, 2017 which he testified represented the Foremost Foods pension funds in the amount of $33,596.37. I am satisfied that the funds in the TD Canada Trust account No. 8127252 were obtained prior to the relationship and are excluded property.
[22] In 1996 Mr. Evans began working with BCTel/Telus and he continued to work there until October 2003. Mr. Evans received from his work with BCTel/Telus a pension converted to a locked-in RRSP now held by TD Canada Trust in account No. 8127211. At trial Mr. Evans presented a statement dated September 14, 2017 which he testified represented the BCTel/Telus pension funds in the amount of $45,050.95. I am satisfied that the pension credits for the BCTel/Telus pension which relate to the years 1996 and 1997 were obtained prior to the relationship and are excluded property. The pension credits for the years 1998 until October 2003 which have been converted to a locked-in RRSP are family property and are divisible.
[23] Mr. Evans began working at Bell during the marriage in November 2003, and was terminated on October 1, 2014. Mr. Evans received from his work with Bell a pension converted to a locked-in RRSP now held by TD Canada Trust. At trial Mr. Evans presented a statement dated September 14, 2017 which he testified represented the Bell locked-in RRSP in the amount of $113,464.49. I am satisfied that the pension credits in the Bell pension which relate to the years November 2003 to December 18, 2013, now converted to a locked-in RRSP, are family property and divisible. The pension credits for the period beginning December 19, 2013 are excluded property.
[24] I note that the values for the three locked-in RRSPs which Mr. Evans presented at trial varied significantly from those found in his 2018 Financial Statement (“F8”). I prefer Mr. Evans’ testimony at trial, which was supported by relevant documents, over the statements made in his 2018 F8.
[25] Mr. Evans’ father passed away in May 2011. He received an inheritance from his father which was deposited into his account in two instalments: the first in the amount of $28,517.52 on May 25, 2012 and the next in the amount of $29,000 on January 21, 2013.
[26] Mr. Evans’ evidence as to how these funds were used varied. At trial he testified that the inheritance monies were used to pay expenses while he was unemployed. On discovery Mr. Evans said that he used $29,500 to do some renovations on the home they were living in at that time, on McClure Drive, and to revamp Ms. Evans’ wedding ring at a cost of $6,500.
[27] The bank records show that virtually all of the $28,517.52 deposited on May 25, 2012 was withdrawn within one month through a series of internet transfers. It is not clear what these funds were actually used for and no evidence was led to link these transfers to specific work done on the home. No receipts for the renovations were provided. None of the transfers were in the amount of $6,500, indicating an expenditure on the ring as suggested by Mr. Evans.
[28] On discovery, Mr. Evans said the second instalment of the inheritance was put away for a rainy day. However, the bank records show that $22,000 was transferred out of the account within 8 days of the second deposit on January 21, 2013, and by March 22, 2013 all of the $29,000 had been withdrawn through a series of transfers and withdrawals. It is not clear what the funds were used for, but it does not appear the funds were held for a rainy day. The funds appear to have been rapidly spent and Mr. Evans provided no credible explanation for what the money was spent on other than ongoing expenses.
[29] I find that Mr. Evans has not met the onus on him of establishing that the inheritance remains excluded property that can be traced in some way to a present asset.
[30] Pursuant to s. 81(b) of the Family Law Act, each spouse has a right to an undivided half interest in all family property and is equally responsible for family debt. I have jurisdiction to vary from this presumptive division if I find that an equal division would be significantly unfair to either party, bearing in mind the considerations set out in s. 95(2) of the Family Law Act. There is nothing in the evidence before me which would cause me to find that an equal division of family property and family debt would be significantly unfair to the parties.
[31] As such, I find that the parties are each entitled to a 50% interest in family property and family debt.
[32] The parties agreed at trial that the six joint bank accounts at the date of separation were worth $49,859.82. These were comprised of two accounts with balances of approximately $23,000 each and four smaller accounts ranging from $694 to $1,206.
[33] Ms. Evans testified that Mr. Evans threatened her not to take money out of the joint accounts. She said that she asked Mr. Evans for support around the time she moved out and he gave her $2,000 out of a joint account. She said he then transferred the remaining funds to his own personal use. The statements for CIBC account # 54-50697 and CIBC account # 53-47033 support Ms. Evans’ contention that significant funds were taken out of the accounts at or around the time Ms. Evans moved out of the family home.
[34] Mr. Evans said that all of the funds in the joint accounts were used to pay family expenses. I agree that the accounts were used for family purposes while the family was still living together in the same house. However, when Ms. Evans left the family home in July 2014, the situation changed and the funds were no longer used for family purposes.
[35] In testimony Mr. Evans agreed that he transferred at least $20,000 to his own accounts in the fall of 2014, but forgot to disclose this until very late in the litigation. Having reviewed the statements of the joint accounts and listened to both parties, I find that Mr. Evans converted the funds in these two joint accounts for his own purposes once plans for Ms. Evans to move out of the family home were confirmed. I find that on June 27, 2014 the value in CIBC # 54-50697 was $23,233.59 which Mr. Evans converted to his own use. I find that on June 30, 2014 the value in CIBC # 53-47033 was $15,500.33 which Mr. Evans converted to his own use.
[36] The funds in the amount of $38,733.92 in the joint accounts at the end of June 2014 are family property. As Mr. Evans took the funds in the joint accounts for his own use, he must return 50% of the value of the joint accounts to Ms. Evans in the amount of $19,366.96. Ms. Evans received $2,000 from the joint account at or about the time of separation. As this $2,000 came from family property, 50% ($1,000) is properly owing back to Mr. Evans and will be deducted from the joint bank account funds Mr. Evans must pay to Ms. Evans. In other words, the net amount which Mr. Evans must pay Ms. Evans from the joint bank accounts is $18,366.96.
[37] As discussed above, Mr. Evans’ pension credits that have been converted to locked-in RRSPs are equally divisible as family property as follows: BC Tel/Telus for the years 1998 until October 2003 and Bell for the years November 2003 to December 18, 2013.
[38] There is no dispute that the property in which the parties lived at the time of separation, the McClure Drive Property, was a family asset.
[39] No reliable evidence of value of the McClure Drive property at the time of separation was tendered at trial, although it was common ground that the property had increased in value from the date of separation to the date of its sale. Mr. Evans seeks to have the increase in value of the McClure Drive Property from the date of separation accrue to his sole benefit because of his ongoing payments towards the expenses of the property.
[40] The family home remains a family asset post-separation and I find that both parties are entitled to share in the increase in value of the McClure Drive Property: K.M.J. v. J.H.D.N., 2014 BCSC 1895 at paras. 140-143, 146 as cited in Bilawchuk v. Bilawchuk, 2014 BCSC 2067 at para. 24. Costs incurred to maintain the McClure Drive Property are properly assessed as family debt pursuant to s. 86 of the Family Law Act. I will consider the McClure Drive Property maintenance costs incurred by Mr. Evans in my assessment below.
[41] The family home on McClure Drive was sold on September 16, 2016. The net proceeds of sale were $436,406.22 and were immediately placed in the trust account of counsel for Ms. Evans. Since then, the following deductions have been made from the trust funds:
|
a) Advance to Mr. Evans |
$50,000.00 |
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b) Advance to Ms. Evans |
$50,000.00 |
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c) Security advanced to FMEP |
$50,000.00 |
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d) Advance to Ms. Evans for unpaid support obligations arrears and costs payable by Mr. Evans |
$52,583.08 |
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e) Conveyancing fees paid to counsel for Mr. Evans |
$280.00 |
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f) Advance to Ms. Evans for child support obligations payable by Mr. Evans |
$747.27 |
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g) Conveyancing fees paid to counsel for Mr. Evans |
$2,320.00 |
|
h) Payment to mediator |
$1,500.00 |
[42] Since the deposit of the sale proceeds into the trust account, there has been interest accruing, the exact amount of which was not available at trial.
[43] The proceeds of sale are equally divisible between the parties. The following distributions are to be shared equally: the $50,000 already distributed to each party, all conveyancing costs and fees, and the cost of the mediator. The following distributions must be deducted from the share otherwise payable to Mr. Evans: the $50,000 distributed to FMEP and the two advances for support paid to Ms. Evans in the total amount of $54,903.08.
[44] The parties have agreed on the distribution of most of the household effects. Mr. Evans takes issue only with the vehicles, which I will address separately, and jewelry, which he argues was worth $20,000.
[45] No evidence was called by either party to establish the value of jewelry held. No valuation of Ms. Evans’ ring was provided at trial. I find that Mr. Evans has failed to establish the value of the ring or any other jewelry and, as such, I dismiss Mr. Evans’ claim regarding the jewelry.
[46] From the date of separation until the McClure Drive Property was sold, Mr. Evans made mortgage, insurance, and tax payments on the house. He also paid life insurance and for supplies and services to maintain the property.
[47] The evidence of mortgage payments tendered at trial was lacking. Ms. Evans urges me to find that Mr. Evans paid $62,140 in mortgage payments since separation. Mr. Evans asks me to find that he paid $79,346.73. A mortgage statement was only provided for one year – 2014. This statement showed monthly payments in the amount of $2,390.59. No evidence was led to support any changes to this monthly amount. Considering the 2014 mortgage statement and the fact that Mr. Evans made monthly payments after separation commencing in January 2014 and completing in September 2016, I find that Mr. Evans made mortgage payments totalling $78,889.47.
[48] I find that the mortgage payments made by Mr. Evans maintained the McClure Drive Property. These payments allowed the mortgage to remain in good standing up until the date the property was sold. Both parties will benefit from the increase in value of the property and it is fair that both parties should share in the cost of maintaining the mortgage. As such, I find that Ms. Evans is responsible for 50% of the mortgage payments made by Mr. Evans. I have found that Mr. Evans made mortgage payments in the total amount of $78,889.47. Therefore, Ms. Evans must repay Mr. Evans $39,444.74.
[49] The remaining payments claimed by Mr. Evans are house insurance ($2,346.46), tax payments ($13,702.69), life insurance costs, and supplies and services for the general maintenance of the house, in the total amount of $23,390.27. In Bilawchuk the court considered whether such costs are properly assessed as family debts. The court found such costs were to be offset against occupational rent payable by the party remaining in the family home. I accept the reasoning in Bilawchuk.
[50] Mr. Evans remained in the McClure Drive Property after separation. While both parties lived in the McClure Drive Property until July 2014, for 25 months after July 2014 the sole occupant in the McClure Drive Property was Mr. Evans. Ms. Evans had to find new accommodation and pay rent and expenses for that new home. While Mr. Evans lived in the McClure Drive Property he took the full benefit of the jointly owned property and paid no rent to Ms. Evans. In January 2017 Mr. Evans swore an F8 affidavit in which he claimed he was paying $2,280/month in rent. If I assume that Mr. Evans would have had to pay a similar amount as occupational rent while he lived in the McClure Drive Property, Ms. Evans would have been entitled to 50% of his notional rental payment, or approximately $1,140/month during the time Mr. Evans lived in the McClure Drive property until it was sold.
[51] If Mr. Evans’ costs (other than the mortgage) were spread over the 25 months he lived in the McClure Drive Property alone before it was sold, his costs would have been approximately $935/month. I am satisfied that, using the reasoning in Bilawchuk, these costs paid by Mr. Evans are offset by occupational rent otherwise payable to Ms. Evans, and I make no order for repayment of these costs incurred by Mr. Evans.
[52] The parties had three vehicles at the time of separation: a 1999 Jeep, a 2006 Acura, and a 2007 Hyundai. Following separation, the parties agreed between themselves that Ms. Evans would take the Hyundai and Mr. Evans would take the Jeep and the Acura. The ownerships of the vehicles were transferred to reflect their agreement.
[53] At the time of separation both the Acura and the Hyundai had car loans, which Mr. Evans continued to pay until both were paid off. No evidence was led regarding the car loan on the Acura paid by Mr. Evans. With respect to the car loan on the Hyundai, a loan document was tendered which showed a monthly obligation of $254.18. From the date of separation in December 2013 until February 2018, when the parties agreed the loan was fully repaid, I find that Mr. Evans made 51 loan payments totalling $12,963.18. These payments were made to the benefit of Ms. Evans.
[54] Mr. Evans tendered evidence, which I accept, regarding his payment of the 2014 insurance on the Hyundai in the amount of $1,504.72, also to the benefit of Ms. Evans.
[55] The values of the vehicles are in issue; however, no reliable evidence of value was tendered by either party.
[56] I find that Mr. Evans will retain the Jeep and the Acura, and Ms. Evans will retain the Hyundai. There will be no adjustments for the value of these vehicles.
[57] Ms. Evans will repay $14,467.90 to Mr. Evans for the loan payments and car insurance he paid on her behalf.
[58] The incomes of the parties during the years following separation are in issue. Mr. Evans submits that Ms. Evans is underemployed and that her line 150 tax return information under reports her true income for the purposes of calculating child and spousal support. Ms. Evans submits that for a period of time Mr. Evans failed to take reasonable steps to obtain employment and that his line 150 tax return information must be adjusted to determine accurate child and spousal support obligations.
[59] A parent’s income for the purposes of child support obligations must be calculated pursuant to s. 16 of the Federal Child Support Guidelines, SOR/97-175 [Guidelines]. The starting point is the sources of income set out under the heading “Total Income” or line 150 on the parent’s tax return. This may be adjusted in accordance with the considerations set out in Schedule III of the Guidelines.
[60] Mr. Evans’ line 150 yearly incomes, as stated on his notices of assessment, for the years 2013 to 2017 are as follows:
|
a) 2013 |
$118,937 |
|
b) 2014 |
$116,244 |
|
c) 2015 |
$171,832 |
|
d) 2016 |
$48,587 |
|
e) 2017 |
$111,908 |
[61] Mr. Evans does not have a tax return for 2018 yet. His evidence was that he worked at Trail Appliances until January 2018 and received 2.5 months severance after he was let go. He then began working at Sysco in May 2018 at an annual salary of $85,000.
[62] The years which are the focus of the dispute between the parties are the years 2015 and 2016.
[63] Mr. Evans lost his job with Bell in October 2014. However, he received income continuation from Bell until February 2015 which totalled $22,936.67. He also received employment insurance payments in the amount of $23,056.00. In February 2015 he received a retiring allowance from Bell in the amount of $67,965. In addition, he received further settlement funds from Bell in September 2015.
[64] When Mr. Evans received the $67,965 from Bell, he used it to purchase an RRSP which would be applied against his 2014 income. This meant that he received a tax refund on his 2014 income. However, after receiving the tax refund for 2014, Mr. Evans then withdrew a total of $57,875 from his RRSP thereby compromising his tax position and his EI benefits. EI clawed back $14,713 of the benefits that Mr. Evans received in 2015. The $57,875 which he withdrew from his RRSP was counted as income in the 2015 year. Mr. Evans says that the $57,875 was effectively double counted in 2015 – first counted within the retiring allowance of $67,965 which was deposited into an RRSP and credited against his 2014 income and then counted as income when he withdrew it from his RRSP in 2015.
[65] Mr. Evans made a number of decisions regarding his severance payments which had an impact on his tax position in 2014-2015 and resulted in him having to repay part of his EI benefits. He will have to live with these impacts, which are of his own making. However, in terms of determining the appropriate income in the context of this litigation, I agree that the line 150 income in 2015 does “double count” the $57,875 he withdrew from his RRSP, as his line 150 income includes both that amount and the retiring allowance of $67,965 received from Bell in 2015. As such, I find that his income for 2015 should properly be stated as $114,000, an approximate income based on subtracting the amount he withdrew from his RRSP from his line 150 income.
[66] Following his termination in 2014, Mr. Evans began his search for a new job. He did not pursue this aggressively until later in 2015.
[67] Mr. Evans has a B.Sc. in chemistry and an MBA. His work has generally been focussed on sales and marketing at the senior management level.
[68] While Mr. Evans could have more aggressively pursued a new job immediately after his termination in October 2014, I find that initially he did not act unreasonably in his efforts to seek new employment. Mr. Evans testified that he targeted jobs which would pay him a minimum of $80,000 annually. He stated that when he applied for lower paying jobs, or jobs for which he was overqualified, he was told that he would not be offered the position because he was overqualified. He also stated that he needed to make at least $80,000 to cover the expenses of his family.
[69] Given that Mr. Evans had access to the job continuation payments and severance payments he received in 2015, I find that Mr. Evans acted reasonably in his job search efforts in 2015, and that he was entitled to focus on senior management positions which would afford him at least $80,000 annually.
[70] In 2016 the situation changed for Mr. Evans. He no longer had access to income from his Bell employment and could no longer hold out for a job that would pay him in the $80,000 range. For 2016 he received $11,528 in employment insurance benefits, and withdrew $37,059.24 from his RRSPs, for a reported income totalling $48,587.24. Given that Mr. Evans had been off work for a full year and had a family to support, it was incumbent upon him to obtain some kind of employment while he continued his search for a more suitable job.
[71] While I accept that Mr. Evans was actively applying for senior sales, analyst and other senior management jobs of many different kinds in 2016, Mr. Evans ought to have found some other employment to create some kind of income stream. I find that Mr. Evans did not act reasonably in 2016 in failing to secure any employment at all. He did not make genuine efforts to obtain some kind of employment while he worked towards obtaining a senior management position.
[72] I find that additional income in the amount of $30,000 should be added to the $11,528 Mr. Evans received in employment insurance benefits in 2016 for a total of $41,528 as the amount Mr. Evans could or ought to have earned in 2016. I would therefore impute a total employment income of $41,528 for that year. This amount is to be added to the $37,059.24 amount that Mr. Evans reportedly withdrew from his RRSPs in 2016. As such, I impute income to Mr. Evans in the total amount of $78,587 for 2016.
[73] On December 14, 2016 Mr. Evans received an offer of employment with NorthwestTel in Whitehorse, Yukon to begin on January 16, 2017 with an annual salary of $98,000. Mr. Evans commenced with NorthwestTel on January 16, 2017. He also received $15,000 to compensate him for expected relocation expenses. Mr. Evans claimed that this money was used to reimburse him for expenses and that the $15,000 should properly be deducted from his income for 2017. However, Mr. Evans did not tender reliable evidence to prove that these expenses were incurred. As such, I find that the relocation funds are properly received as income and no deduction will be made to his line 150 income for 2017.
[74] On March 22, 2017 Mr. Evans received an offer to begin work with Trail Appliances commencing June 5, 2017 at an annual salary of $95,000, plus a bonus plan. Mr. Evans commenced work with Trail Appliances on June 5, 2017.
[75] Mr. Evans worked at Trail Appliances until January 2018 and received 2.5 months severance after he was let go. He then began working at Sysco in May 2018 at an annual salary of $85,000, plus a bonus plan.
[76] Mr. Evans agreed that over his career he received bonuses at his jobs, with the exception of one year. Most recently, at Trail Appliances, he received bonuses over his $95,000 income for a total annual income of almost $112,000.
[77] While at the time of trial Mr. Evans had not received his bonus at Sysco, I find that, more likely than not, he will receive a bonus in some amount. Mr. Evans worked with Sysco for seven months in 2018 and received two and a half months of severance pay from Trail Appliances in 2018. Mr. Evans argued that his income for 2018 for the purposes of support calculations should be set at $85,000. I agree.
[78] For the purposes of this litigation, I find Mr. Evans’ income for the years 2013 to 2018 to be as follows:
|
a) 2013 |
$118,937 |
|
b) 2014 |
$116,244 |
|
c) 2015 |
$114,000 |
|
d) 2016 |
$78,587 |
|
e) 2017 |
$111,908 |
|
f) 2018 |
$85,000 |
[79] Ms. Evans’ line 150 yearly incomes, as stated on her notices of assessment, for the years 2014 to 2017 are as follows:
|
a) 2014 |
$0 |
|
b) 2015 |
$10,505 |
|
d) 2016 |
$11,018 |
|
e) 2017 |
$28,000 |
[80] Ms. Evans received $20,000 of spousal support in 2017, which must be removed from her income at this stage for the purposes of establishing the appropriate level of support.
[81] Mr. Evans takes issue with the line 150 income of Ms. Evans in a number of respects. He argues that she is deliberately underemployed and argues that her line 150 income does not reflect her true income because of the employment-related deductions which she is able to claim.
[82] Before her marriage, Ms. Evans worked as a private investigator for a number of years. Once she moved to BC, she obtained work in that field and, in 1997, she began working for Fred Bodnar Investigations. She continued to work in that position until July 1999 when their first child was born. In her last year of full-time work, Ms. Evans reported income of just over $40,000.
[83] After their first child was born, the parties decided that Ms. Evans would be a stay-at-home mom and the family would be supported on Mr. Evans’ income. This situation continued until 2010 when their younger child began pre-school.
[84] In 2010 Ms. Evans began trying to find part-time work in the entertainment industry as a photo-double, stand-in, and silent actor due to her involvement in musical theatre as a teenager. Occasionally she would also try for singing roles where she would be paid at a higher rate. It would be an understatement to say her efforts yielded a moderate income. In fact, she reported no income from 2010 to 2014.
[85] By agreement, however, the family was supported on Mr. Evans’ income. Therefore, Ms. Evans’ work was not required to attain a level of self-sufficiency during the marriage.
[86] After the separation, Ms. Evans continued to audition and apply for work in the entertainment industry. She was able to get credit on enough films to obtain a union rate. Over the years she has developed a modest income in this line of work. I accept that, given her age (50 years old) and level of experience, and her childcare responsibilities, Ms. Evans has acted reasonably in attempting to become self-sufficient. She anticipates that her 2018 income will be approximately the same as her 2017 income.
[87] Mr. Evans suggested that Ms. Evans should have gone back into private investigation. Ms. Evans testified that she had made enquiries about that work but discovered her skills and qualifications were outdated. She also did not think that kind of work would be compatible with being a parent to her children. She also tried medical transcription, but her skills were outdated.
[88] I do not accept that Ms. Evans was obliged to pursue jobs in either private investigation or medical transcription. Mr. Evans did not provide a reasonable basis for me to conclude that she had such work available to her or that such work would provide her with a better income than she has obtained in the entertainment industry. I am satisfied that Ms. Evans is not deliberately underemployed.
[89] In relation to Mr. Evans’ concern that Ms. Evans’ business deductions artificially lower her reported income, I have considered Ms. Evans’ T1 tax returns and her claimed expenses.
[90] On her T1 tax returns in the years 2015 to 2017, Ms. Evans’ income, business expenses, and gross business income are described as follows:
|
Year |
Line 150 |
Spousal support received |
Net self employment income |
Gross business income |
Business expenses and business use of home expenses claimed |
|
2015 |
9,354.96 |
0 |
9,354.96 |
32,847.00 |
23,492.04 |
|
2016 |
11,371.28 |
0 |
10,651.28 |
32,076.69 |
21,425.41 |
|
2017 |
27,928.62 |
20,000 |
7,928.62 |
38,856.96 |
28,928.34 |
[91] The expenses were prepared by Ms. Evans’ accountant based on receipts provided by Ms. Evans. The expenses included: stationary, paper, commissions paid to agents, hair dressing, clothing and jewelry for costumes, car maintenance, gas, car insurance, Shaw cable bills, Fortis gas bills, meals, BC Hydro bills, rent, and parking. While these may be legitimate expenses for tax purposes, I am not satisfied they are all properly deducted for the purposes of support obligations.
[92] Section 16 of the Guidelines states that a spouse’s income is determined with reference to the sources of income set out under Total Income or line 150 of a tax return. However, s. 19(1)(g) of the Guidelines provides the court with discretion to impute an appropriate amount of income to a spouse where the spouse unreasonably deducts expenses from income.
[93] In the case of Ms. Evans, the source of her income is primarily her gross business income. In order to properly assess her income in relation to Mr. Evans’ income, I find I must attempt to put both parties in the same relative position with respect to allowable expenses. Mr. Evans is an employee and not entitled to claim the kinds of expenses available to Ms. Evans. Therefore, I have considered categories of expenses which in my view ought not to be deducted against her gross business income for the purposes of support calculations.
[94] In 2015 Ms. Evans had expenses totalling approximately $26,550 for hair maintenance, car maintenance and insurance, rent, hydro, meals, and clothing. In 2016 Ms. Evans had approximately $23,893 for hair maintenance, meals, cell phone, rent, hydro and car insurance. In 2017 Ms. Evans had expenses of $25,133 for clothing, car maintenance and insurance, rent, hydro, and meals. I find that these expenses must not be deducted from her gross income for the purposes of determining her income in these proceedings. These are all expenses which cannot be claimed by an employee such as Mr. Evans. To allow such expenses to be deducted from Ms. Evans’ income while not from Mr. Evans’ income would be unfair.
[95] The expenses I have identified above were not fully claimed or allowed against her business income. Ms. Evans’ accountant created a ratio for the claimed expenses based on the kilometers Ms. Evans drove her car. For example, if Ms. Evans drove her car 20,000 km in total one year and half of that 20,000 km total was travel for work, she would claim approximately 50% of all her expenses (vehicle and all other claimed expenses) against her business income.
[96] Based on the evidence before me, I was not able to determine with precision the exact amounts of different expenses claimed against business income in each year which ought to be treated as income for the purpose of determining support obligations. As such, I must make an assessment of how much income is to be added to Ms. Evans’ line 150 total income for this purpose. I am satisfied on the evidence before me that for each of the years 2016 and 2017, $15,000 should be added to Ms. Evans’ line 150 income. I further find that $15,000 should be added to her anticipated 2018 line 150 income. As such, I find that, for the purposes of determining support obligations, Ms. Evans’ income is as follows:
|
a) 2015 |
$25,505 |
|
b) 2016 |
$26,018 |
|
c) 2017 |
$23,000 |
|
d) 2018 |
$23,000 |
[97] While the parties separated on December 18, 2013, they continued to live in the same house until July 2014. The parties agreed that during this post-separation period when they lived in the same house, Mr. Evans continued to pay all family expenses as he had during the marriage. The parties agree that there are no claims for support of any kind prior to July 2014.
[98] From July 2014 until April 2016, the parties shared parenting equally with the children moving between parents one week on and one week off. Following an incident at Mr. Evans’ house in March 2016, both children decided to live solely with their mother beginning in April 2016. In June 2016 a court order was made appointing Ms. Evans guardian of both children with all parenting responsibilities set out in s. 41 of the Family Law Act, setting the children’s primary residence with Ms. Evans, and providing Mr. Evans with 48 hours of parenting time with the children each week.
[99] Jasmin was 13 years old at the time of trial. Jordan turned 19 years old in November 2018. Jordan is attending Kwantlen University at present and continues to lives at home with Ms. Evans. I am satisfied that he continues to be a child of the marriage while he remains living with Ms. Evans and is completing his program at Kwantlen University.
[100] On the basis of the Guidelines and the incomes I have established above, Mr. Evans was obliged to pay child support from 2014 through 2017 in the following amounts:
|
Period |
Parenting |
Income of Ms. Evans |
Income of Mr. Evans |
Child support payable by Mr. Evans (monthly) |
|
July to December 2014 |
Shared |
0 |
$116,244 |
1,686 |
|
2015 |
Shared |
$25,505 |
$114,000 |
1,258 |
|
January to March 2016 |
Shared |
$26,018 |
$78,587 |
781 |
|
April to December 2016 |
Ms. Evans |
$26,018 |
$78,587 |
1,188 |
|
2017 |
Ms. Evans |
$23,000 |
$111,908 |
1,678 |
[101] Based on my conclusions with respect to the incomes of the parties in 2018, child support is payable in the monthly amount of $1,314 and will remain payable in that amount until the parties receive their tax assessments for the 2018 year. At that time, child support will be adjusted if necessary in accordance with the Guidelines.
[102] The total child support payable by Mr. Evans from July 2014 up to and including September 2018 is $70,209.
[103] Ms. Evans also makes a claim for s. 7 expenses, both retroactive and prospective. These expenses relate to dance expenses for Jasmin, dental expenses, after school and summer activities, dance photos, hockey jersey deposits, school supplies, school lunch costs, hockey expenses, and school field trips. Receipts were tendered in evidence for many of these expenses. In addition, Ms. Evans paid up to $500 each year for costumes for Jasmin’s dance, as well as $176 per month for lessons. Ms. Evans testified that Jasmin requires orthodontic work. In April 2018 she received a cost estimate in the amount of $7,400 ($375 per month for 14 months). Ms. Evans paid $450 for a diagnostic assessment in 2016 for Jasmin’s orthodontic work.
[104] Section 7 expenses will be paid by the parties proportionate to their incomes as I have determined them. The following expenses are s. 7 expenses to be shared between the parties: Jasmin’s orthodontic work, Jasmin’s dance expenses, all dental expenses, after school and summer activities, and hockey expenses. As I was not provided with adequate evidence to assess these costs with any degree of precision, the parties will have to make adjustments between them to account for payments made by each of them to the date of this decision.
[105] During the course of the marriage, Ms. Evans made few financial contributions. By agreement between the parties, Ms. Evans stopped working and became a full-time caregiver for the family in April 1999. In around 2010 she began attempting to find work in the entertainment industry. However, this was only marginally successful for a number of years. Ms. Evans’ income during the marriage was never relied on to provide for the family.
[106] It was only after the parties separated that Ms. Evans began attempting to support herself in the entertainment industry in earnest. By 2015 Ms. Evans made a modest income from her work, and this has continued through to the present. Without any spousal support, Ms. Evans’ income would be in the range of $25,000.
[107] In contrast, Mr. Evans was always a very successful breadwinner for the family. His income during the marriage rapidly grew to over $100,000. If his employer offered bonuses, Mr. Evans typically received them. He was and is hard working with an ability to earn a good income.
[108] While Mr. Evans did work out of a home office for a number of years during the marriage, I find that he was not the primary caregiver of the children. He certainly participated in their upbringing; however, the primary responsibility for the children and housekeeping fell to Ms. Evans during the marriage.
[109] Since April 2016 Ms. Evans has also had primary care of both children. While Jordan is now an adult, Jasmin is still quite young, at 13 years old, and requires her mother’s attention.
[110] The parties’ relationship lasted 16 years. This is a long marriage.
[111] During the marriage Ms. Evans enjoyed a standard of living based on Mr. Evans’ income of approximately $110,000 or higher. Post-separation Mr. Evans has enjoyed a higher standard of living than Ms. Evans due to his higher earnings. Since separation, Ms. Evans has lived on a combined employment and spousal support income of approximately $45,000 and for a number of years she got by on much less.
[112] I find that Ms. Evans is entitled to receive spousal support from Mr. Evans on both a compensatory and non-compensatory basis.
[113] I have applied the Spousal Support Advisory Guidelines in my assessment of the appropriate spousal support order in this case, using the income figures I have determined above. I do not consider that this case is appropriate for support at the high end of the range. Ms. Evans is able to work and the children are getting older. She is 50 years old and will be able to continue to develop her career over the next 15 or more years. I have considered both the low and the mid range of spousal support. I am satisfied that support at the mid range is appropriate in this case. Entitlement to spousal support up to and including 2018 is:
|
Year |
Monthly amount |
Total payable |
|
2014 (July to December) |
$2,546 |
$15,276 |
|
2015 |
$1,741 |
$20,892 |
|
2016 (January to March) |
$692 |
$2,076 |
|
2016 (April to December) |
$182 |
$1,638 |
|
2017 |
$1,534 |
$18,408 |
|
2018 (January to September) |
$789 |
$7,101 |
|
Total payable by date of trial |
|
$65,391 |
[114] Ms. Evans’ work success is still developing. Mr. Evans’ 2018 income was based on a year where he changed jobs and had no work for a short period. I expect his income will increase in the years to come. In addition, Jordan may cease being a child of the marriage in several years as he finishes school and this may have an impact on quantum payable. For these reasons, I find that it is appropriate to require a review of spousal support. The spousal support order I have made will be reviewed not earlier than September 2021 to assess Ms. Evans’ earnings and efforts to attain self-sufficiency, Mr. Evans’ income, and any changes to Jordan’s entitlement to support as a child of the marriage. The parties may, by agreement, waive or postpone this requirement to review spousal support.
[115] Based on my findings above, Mr. Evans was required to pay a total of $135,600 in child and spousal support from July 1, 2014 up to and including September 2018.
[116] Up to and including September 1, 2018, Mr. Evans had paid a total of $71,269 in combined child and spousal support.
[117] Mr. Evans must pay to Ms. Evans $64,331 in outstanding retroactive support.
[118] FMEP continues to hold as security for Mr. Evans’ support obligations a $50,000 advance from the proceeds of sale of the family home and $3,383.40 which was an overpayment by Mr. Evans. The amounts presently held by FMEP shall be released to Ms. Evans as partial payment of Mr. Evans’ outstanding obligations.
[119] Counsel for Ms. Evans made extensive submissions regarding Mr. Evans’ noncompliance with disclosure orders and sought a fine of $5,000 for each incident of noncompliance. Of the issues raised by Ms. Evans, the misrepresentations of Mr. Evans regarding bank accounts and his employment give rise to significant concerns. In particular:
a) On January 5, 2015 Mr. Evans swore an F8 which had significant misrepresentations. Mr. Evans disclosed only four bank accounts and stated that they had a combined value of $4,800. In fact, he had 12 bank accounts with a combined value of $46,124.74, many of which were opened in the months prior to swearing the affidavit.
b) On June 29, 2015 Mr. Evans swore an affidavit where he stated that he withdrew $67,500 from a line of credit, when in fact that money was received by him as part of his severance package from Bell and was properly considered income for the purposes of determining interim support.
c) On September 4, 2015 Mr. Evans was ordered to pay any further settlement funds arising from his termination dispute with Bell to be placed in trust. Mr. Evans later received $37,000 from his settlement with Bell, but he failed to comply with the court’s order and used the funds for his own use.
d) On January 13, 2017 Mr. Evans swore an F8 which was provided to the court on a support application made on February 20, 2017. In that affidavit Mr. Evans stated he was unemployed and had no employment income to be used for support calculations. In fact, Mr. Evans had already started working at Northwest Tel at the time he swore this affidavit and was receiving an annual income of $113,000. Mr. Evans failed to disclose to the court on the February support application that he was working full-time.
[120] It is my view that the incidents outlined above are serious. These false statements of Mr. Evans, sworn under oath, had a serious impact on the court’s ability to ensure that Ms. Evans and the children were receiving adequate support.
[121] Section 213 of the Family Law Act provides me with authority to issue a penalty in the maximum amount of $5,000 against a person who fails to comply with a requirement to disclose information in accordance with the Supreme Court Family Rules or who provides information that is incomplete, false or misleading.
[122] I am satisfied that, in the three sworn statements referred to above, Mr. Evans provided false information and failed to disclose information as required by the Rules. I order him to pay to Ms. Evans $5,000 pursuant to s. 213(2)(d)(ii) of the Family Law Act.
[123] A penalty under s. 213 of the Family Law Act is not available for breaches of court orders that do not pertain to disclosure and no application for contempt was brought by Ms. Evans. As such, while I am satisfied that Mr. Evans willfully failed to comply with a specific court order respecting his settlement funds, I make no specific order against him in this respect.
[124] Mr. Evans made submissions to the effect that an order should be made restraining Ms. Evans from making defamatory statements about him.
[125] There was no allegation in the pleadings regarding defamation and insufficient evidence was led to support such an order in any event.
[126] I decline to make any “cease and desist” orders as sought by Mr. Evans.
[127] Subject to s. 12 of the Divorce Act, the claimant Ms. Jennifer Juliet Webster Evans and the respondent Darryl Sheldon Evans, who were married in Hawaii on April 3, 1999, are divorced from each other. The divorce is to take effect on the 31st day after the date of these Reasons for Judgment.
[128] Mr. Evans will pay Ms. Evans $18,366.96 in relation to funds he took from their joint bank accounts in 2014.
[129] Mr. Evans’ pension credits that have been converted to locked-in RRSPs are equally divisible as family property as follows: BC Tel/Telus for the years 1998 until October 2003 and Bell for the years November 2003 to December 18, 2013. The remainder of the pension credits are Mr. Evans’ excluded property.
[130] The proceeds of sale of the family home are equally divisible between the parties. With respect to distributions already made from proceeds of sale, the following distributions are to be shared equally: the $50,000 already distributed to each party, all conveyancing costs and fees, and the cost of the mediator, and following distributions must be deducted from the share otherwise payable to Mr. Evans: the $50,000 distributed to FMEP and the two advances for support paid to Ms. Evans in the total amount of $54,903.08.
[131] Ms. Evans shall repay Mr. Evans $39,444.74 in respect of the mortgage payments he paid to maintain the McClure Drive Property.
[132] Mr. Evans will retain the Jeep and the Acura. Ms. Evans will retain the Hyundai.
[133] Ms. Evans will repay Mr. Evans $14,467.90 in respect of the loan payments and car insurance he paid on her behalf in relation to the Hyundai.
[134] Mr. Evans will pay Ms. Evans $64,331 in retroactive child and spousal support, which may be partially satisfied through the release of funds now held by FMEP as set out below.
[135] Mr. Evans will continue to make the following monthly support payments to Ms. Evans: $1,314 in child support and $789 in spousal support. Child support payments will be adjusted each year in accordance with the Guidelines. Spousal support may be reviewed after September 2021.
[136] The parties are responsible for paying special and extraordinary expenses in proportion to their incomes as I have determined. The following are special or extraordinary expenses: Jasmin’s orthodontic work, Jasmin’s dance expenses, all dental expenses, after school and summer activities, and hockey expenses. Either party incurring a special or extraordinary expense shall provide the other party with a receipt for reimbursement.
[137] Outstanding special or extraordinary expenses incurred up to the date of the issuance of these Reasons shall be presented by each party to the other within 60 days and any reimbursements required by either party shall be paid within 30 days of presentation of such claims. Future claims will be reimbursed within 30 days of presentation of a claim and all claims are to be supported by receipts as proof of payment.
[138] All funds presently held by FMEP shall be released to Ms. Evans and credited against the outstanding child and spousal support payments owing to Ms. Evans by Mr. Evans.
[139] Mr. Evans shall pay Ms. Evans $5,000 as a penalty for his non-disclosure in this action.
[140] The parties have liberty to speak to costs. If the parties wish to speak to costs, they must make arrangements with the registry within 45 days of these Reasons.
“Baker J.”