IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Behl v. Behl, |
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2019 BCSC 400 |
Date: 20190320
Docket: E48319
Registry: New Westminster
Between:
Kamaljit Kaur Behl
Claimant
And
Jerry Behl
Respondent
Before: The Honourable Madam Justice B.J. Brown
Reasons for Judgment
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Counsel for Claimant: |
R. Shoker |
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The Respondent, appearing in person: |
J. Behl |
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Place and Date of Hearing: |
New Westminster, B.C. October 22, 2018 November 13, 2018 |
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Place and Date of Judgment: |
New Westminster, B.C. March 20, 2019 |
[1] Mr. Behl seeks a review and reduction of spousal support and a review of child support.
[2] This matter first came on for hearing before me in February 2018. After having heard the parties and reviewed the materials I determined that the record needed to be expanded to include earlier affidavits; that further evidence was required with respect to the finances of the parties’ two children who were in the course of secondary education; and the parties needed an opportunity to cross‑examine each other with respect to their affidavits: Memorandum to Counsel March 27, 2018.
[3] The parties appeared before me on November 13, 2018 to conclude the application.
[4] The Behls were married on March 15, 1992 in London, England. Mr. Behl is currently 54 years old and Mrs. Behl is 47 years old. They separated on January 1, 2015. They have two children. Joseph, who was born on March 24, 1996 and is soon to be 23 years old, and Micah, who was born on September 27, 1999 and is currently 19 years old.
[5] The parties were divorced on August 5, 2016. A certificate of divorce was issued in September 2016.
[6] On February 24, 2016, the respondent, who is a transportation engineer, was instructed to take stress leave from his job with the City of New Westminster. He returned to work part-time in June 13, 2016 and full time in June 27, 2016.
[7] On June 1, 2018 the City of New Westminster terminated Mr. Behl’s employment. He was offered employment by the City of Halifax. He started work in Halifax as a program engineer in September 20, 2018. His salary there is $96,000 a year. He also received eight months severance pay from the City of New Westminster, approximately $79,000.
[8] Each of their sons filed an affidavit.
[9] Joseph Behl attests that he is studying International Business at Dalhousie University. He is in his third year of study. He expects to complete his Bachelor of Commerce degree in May 2020. From January to May 2019 he will be studying at EM Strasbourg Business School in Strasbourg, France. He intends to work for two years after completing his bachelor’s degree. He then intends to pursue a Master of Divinity degree at Concordia Lutheran Theological Seminary in St. Catharines, Ontario. He has student loans of approximately $38,806. His father has been helping financially with school fees and living costs. His mother has not been in a position to help him financially. She did pay for a flight for him to spend Christmas in California with her and her parents in December 2016.
[10] Micah Behl deposes that he is in his second year of a business program at Simon Fraser University. He anticipates completing his bachelor’s degree in May 2021. He then intends to pursue a Master’s in Business Administration. He is currently employed working part-time. He has no student loans or debts. He has approximately $8,000 in savings. He lived with his father after his parents separated until his father moved to Halifax. His father has been contributing $500 a month toward living expenses.
[11] At the time of separation, Ms. Behl was not employed. She obtained a business degree from the University of Westminster in about 1992. She worked as a statistical assistant at the Association of British Insurers until she went on maternity leave with the parties’ first child. The parties moved fairly frequently throughout their marriage. In 2001 the parties moved to New Zealand for approximately six months. They then returned to London from 2001 to 2006. They returned to New Zealand again in 2006 and lived there for approximately one and one half years. While in New Zealand, Ms. Behl worked part-time as an accounting assistant at a law firm for approximately six months.
[12] In 2008 the parties and the children moved to Canada and have lived in Canada since. Mr. Behl found a position as an engineer with the City of Kelowna. He then found a position in the City of New Westminster and the parties moved to the Lower Mainland.
[13] In 2009 Ms. Behl was able to find part-time work at the University of British Columbia in an auxiliary temporary position as a financial coordinator. In 2009/2010 Ms. Behl took two accounting courses but decided not to pursue a CGA program. She worked as a tutor for approximately 12 weeks. She says that during the relationship she was primarily a homemaker and followed Mr. Behl to different countries for his career.
[14] In 2011 Ms. Behl enrolled part‑time in a diploma program in communications at Douglas College. She completed the diploma program in or about the end of August 2015. She then joined a three-week “Focus at Work” program at the YWCA. The purpose of that program was to assist women to find employment. On August 26, 2016, she obtained a casual position at the Justice Institute. At the time of the first hearing before me, she continued to work at the Justice Institute although her position was to end March 30, 2018. In July 2018, Ms. Behl acquired a position as a Program Assistant, Primary Care Paramedic Program at the Justice Institute. That is a full-time position with a salary of $1,670.85 biweekly. She is on probation for six months expiring January 2019.
[15] Ms. Behl has a number of health issues. She has type II diabetes, iron deficiency, fibromyalgia, fatigue, migraines, headaches, chronic neck and head pain, depression and sleep apnea.
[16] The parties entered a final order by consent August 5, 2016.
[17] Based on a guideline income of $116,309 per year and Ms. Behl having no income, the order provided that Mr. Behl would provide Ms. Behl support of $2,300 per month until September 2016 when it would be reduced to $2,000 per month. Spousal support was reviewable after January 1, 2018 to consider entitlement, quantum and duration as well as Ms. Behl’s efforts toward employment and self‑sufficiency.
[18] With respect to child support, the order provided that Ms. Behl would not pay monthly child support or contribute to s. 7 expenses until at least January 1, 2018 and the issue of future child support and s. 7 expenses would be reviewable after January 1, 2018.
[19] Is Ms. Behl entitled to ongoing spousal support and if so, in what amount?
[20] What contribution, if any, should Ms. Behl make toward the support of the two children of the marriage?
[21] Mr. Behl argues that Ms. Behl is not entitled to spousal support on any basis; that she is now fully employed and that after their expenses are taken into consideration the difference in their disposable incomes is approximately $700 per month.
[22] He acknowledges that when the children were little, she was probably the main caregiver. However, he says, over the last 10 years it was primarily him that looked after the household. Micah lived with him until this year when Mr. Behl moved to Halifax.
[23] Mr. Behl says that he has supported the children financially. He was terminated from his employment in New Westminster and received severance pay of eight months. He went to work as soon as possible in Halifax, starting work in late September.
[24] He says that during the marriage he financed all of Ms. Behl’s studies: music, music theory, English as a second language, management exams at Douglas College, etc. She has no loans and she has $150,000 in the bank. Meanwhile, she has paid nothing toward the support of the children.
[25] Ms. Behl argues that they were married in 1992 and separated in January 1, 2015. Ms. Behl meets the Rule of 65 and pursuant to the Federal Spousal Support Guidelines should receive spousal support for an indefinite period. Although Mr. Behl complains that he alone has supported the children, this was what was agreed in the final order, until reviewed by the court. He presumably shares expenses with his current spouse.
[26] Although Ms. Behl worked from time to time after receiving her business degree in 1992, she worked sporadically. Mr. Behl does not seem to take exception to her work history until they moved to Kelowna in 2008. She says that for the first several months after the move to Kelowna she was consumed with the children’s activities: looking for new schools for the children, dropping the kids off at school, groceries, errands, lessons, etc. She tried to meet the community through the church. She tried to keep the boys busy, which took time.
[27] Meanwhile, she tried to adapt to the new market and find employment. She found some part-time employment. The job did not go well. She could not grasp bookkeeping and accounting. She lost confidence. She stuck with this unrealistic goal but did not have success and ultimately left the job. She started another job search. Meanwhile, she continued with household responsibilities. She tried to find a suitable job. She thought perhaps music, but that too was not realistic.
[28] In August 2010, Mr. Behl again started looking for a new job in either Edmonton or the Lower Mainland. Ms. Behl then cut back on her own job search. For the last six months that they lived in Kelowna, she was very depressed, fatigued and Mr. Behl was doing more in the household than he had previously.
[29] They moved to New Westminster where she once again started settling the children to schools and building a new life in New Westminster. Joseph was not doing particularly well which factored into her decision not to jump back into work. She found it difficult to find programs. She was frequently in contact with his teachers. She hired a cleaner (without Mr. Behl’s knowledge) because she was so fatigued. By the end of the summer of 2011 she was depressed, with limited energy. She applied for work with no luck. She had little success in finding a job. In September 2011, she took coursework and networking. By August 2012 she was still responsible for the household. She was still struggling with depression and diabetes. In mid-2013 Mr. Behl was doing the cooking and cleaning and the boys were doing more. She still organized their education and tutoring but Mr. Behl was doing more in the household toward the end of the relationship.
[30] Ms. Behl refers to the opinion of Dr. Natrajan with respect to a particular type of job suited to her capabilities.
[31] She completed a diploma at Douglas College eight months after their separation.
[32] In August 2016, she obtained her first casual position, three days per week. She continued as a casual employee and struggled to adapt. She suffers from stress. She has continued at the Justice Institute. She obtained a full-time position but she is on probation until January 2019.
[33] She refers to new medical evidence which indicates that she should work part‑time rather than full‑time and that she may need to go on disability benefits. A lot in her future is uncertain. Her expenses exceed her income. She has $53,000 in expenses and $44,000 in income. She has no RRSPs. She has no vacations. Some of her medical expenses are covered but she cannot afford registered massage therapy. The assets she has are those from the relationship.
[34] She argues that she is entitled to support on compensatory, needs‑based and contractual basis. During the marriage Mr. Behl was the primary financial provider. She says she should receive indefinite spousal support that would be reviewable on material change or if her income decreases.
[35] With respect to child support, she argues that at most it should be from January 2018. Micah is now on his own and needs no support.
[36] With respect to Joseph, she says that she was not involved in the decision to move to Halifax. He has already done four years of university education. He has enough with student loans and employment to support himself. He should not be considered child of the marriage. He is not living with either parent.
[37] I accept that Ms. Behl is entitled to spousal support on both a compensatory and non‑compensatory basis: M.C.D. v. D.A.D., 2017 BCSC 1832 at para. 94.
[38] Although she was trained before the marriage, she had years out of the workforce while she looked after young children. In addition, the parties moved frequently. By the time that she was ready to re-enter the workforce, her employment skills were dated. Ms. Behl is entitled to support on compensatory grounds: see Chutter v. Chutter, 2008 BCCA 507 at paras. 50-51; T. (T.) v. H. (J.M.), 2014 BCSC 451 at para. 120.
[39] She made reasonable efforts to re-educate herself. However, that does not necessarily lead to employment and did not for her: see Jendruk v. Jendruk, 2014 BCCA 320 at para. 16. Some of her goals may well have been unrealistic, but these predated the separation. In addition, she has had a number of significant health issues which limit her employability and self-sufficiency: Tedham v. Tedham, 2005 BCCA 502 at para. 33. She made reasonable efforts to become employed: Hsieh v. Lui, 2017 BCCA 51 at para. 47. Ms. Behl’s means and needs establish her entitlement to non-compensatory support: Chutter at para. 54.
[40] Ms. Behl has since obtained full‑time employment. For the purpose of current calculations, it is my view that using their current employment numbers, i.e., $96,000 per year for Mr. Behl and $44,000 per year for Ms. Behl, is appropriate. Using the Federal Spousal Support Guidelines, that generates spousal support of $1,430 to $1,907 per month. I will set support at $1,600 per month, starting on April 1, 2019. Given the length of their marriage and their ages, the spousal support will be indefinite. However, it will be subject to review on a material change in circumstances, on Mr. Behl reaching 65 years of age or a drop in Ms. Behl’s income.
[41] Ms. Behl suggested that I should include Mr. Behl’s severance pay in fixing a new spousal support figure. In my view, that would not be appropriate. I have set indefinite spousal support based on Mr. Behl's current income. To use his severance pay to fix spousal support would distort his income and disproportionately advantage Ms. Behl. In addition, Mr. Behl will continue to pay spousal support at $2,000 per month until April 1, 2019 even though his lower income started in September 2018. This arrangement reflects Mr. Behl’s income and gives appropriate weight to employment related fluctuation. The Federal Spousal Support Guidelines do not set a specific figure, but instead provide a range. The Judge must consider the objectives of spousal support in conjunction with the circumstances faced by each spouse.
[42] With respect to child support, in the final consent order of August 5, 2016 the court ordered:
BY CONSENT, there are no arrears of child support and no arrears of section 7 expenses owing by the claimant. The claimant shall not pay monthly child support or contribute to section 7 expenses until at least January 1, 2018 and the issue of future child support and section 7 expenses shall be reviewable after January 1, 2018.
[43] Presumably the parties considered child support when determining how much spousal support Mr. Behl would pay and arrived at the conclusion that he would pay $2,300 per month, later reduced to $2,000 per month and Ms. Behl would pay no child support.
[44] As I have indicated above, Joseph is now 22 years old, soon to be 23 years old. Micah is 19 and will turn 20 in September 2019. Each of them has provided an affidavit for the Court and provided a budget of expenses.
[45] During his studies Joseph has received financial support from his father. His mother has not been in a position to help him financially. He has student loans of $38,806. It is my understanding that since Mr. Behl now lives in Halifax he intends to help Joseph with budgeting and get his finances in better order.
[46] Micah is employed part‑time. He has no student loans or debts. He has approximately $8,000 in savings. His father has been helping him financially with school fees and living costs. He also lived with his father until his father moved to Halifax. Micah remains in the apartment that his father rented and shares the rent with another person.
[47] The budgets prepared for each of the boys indicate that their father has contributed significantly to their education expenses. The budgets indicate that Mr. Behl paid approximately $9,000 to support Joseph in 2018/2019 and anticipates paying $8,000 in 2019/2020. He contributed $7,200 to Micah in 2018/2019 and anticipates a similar amount in 2019/2020.
[48] Ms. Behl in her most recent financial statement indicates that she has assets of $149,163.91. Her annual expenses are approximately $54,000. Her income, based on her most recent employment, is $44,000.
[49] She rents her accommodation. As indicated above, it is only in the last six months that she has obtained full‑time employment.
[50] Mr. Behl in his most recent financial statement February 2, 2018 indicated income of $119,572.79 from the City of New Westminster. He indicated that he anticipated purchasing a house in Calgary as an investment property. He had assets of $103,868.84. There is also a disputed sum of £57,953 which he says he holds in trust for his father. Ms. Behl disputes this and says this was a family asset which was transferred to the benefit of his father.
[51] This court in Beninger v. Beninger, 2010 BCSC 1509, discussed the approach to child support for children over the age of majority attending post‑secondary education.
[9] There is no automatic rule that a child is no longer a child of the marriage once a first university degree is completed. As noted by Madam Justice Levine in Neufeld v. Neufeld, 2005 BCCA 7, WP.N. v. B.J.N. [2005] B.C.J. No. 12, at para. 30:
[30] The jurisprudence supports the view that there is a wide range of factors to be considered in the determination of whether a child is a “child of the marriage” and that individual factors will be of varying importance in different cases. All of the relevant factors must be considered. There is no arbitrary cut-off point based on the number of degrees or the eligibility of the student for financial assistance.
[emphasis added]
[10] A spouse may be ordered to pay for the support of a child of the marriage under s. 15.1(1) of the Divorce Act. The definition of a child of the marriage includes a child who:
2(1)(b) is the age of majority or over and under [her parents’] charge but unable, by reason of illness, disability or other cause, to withdraw from [her parents’] charge or to obtain the necessaries of life;
[11] While the pursuit of education qualifies as “other cause” for continuing dependence of a child over the age of majority, it is not on its own sufficient. As the Court of Appeal noted in Neufeld at para. 18:
In determining whether a child pursuing an education is unable to withdraw from her parents’ charge or obtain the necessaries of life a court must consider the surrounding circumstances.
[12] The relevant factors to be considered in determining whether a child pursuing an education cannot withdraw from her parents’ charge includes those listed by Master Joyce (as he then was) in Farden v. Farden, [1993] B.C.J. No. 1315 (S.C.):
(1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;
(2) whether or not the child has applied for or is eligible for student loans or other financial assistance;
(3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
(4) the ability of the child to contribute to his own support through part-time employment;
(5) the age of the child;
(6) the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.
[13] This list of factors is not exhaustive, and does not constitute a minimum set of criteria which must all be satisfied. As stated in Neufeld at para. 22: “They are relevant factors to be considered, along with others that are relevant in the circumstances. The determination is fact-specific.”
[14] In Neufeld, the court identified an additional factor: the ability of a parent to continue to support his child beyond a first degree:
[27] The father cited in support of his argument Maurice v. Maurice, [1993] B.C.]. No. 1461 (S.C.)(QL), where the Court found that daughters aged 26 and 21, pursuing “achievable, realistic and legitimate” educational goals in second degrees were no longer entitled to child support. The judge in that case considered the age, educational levels and abilities of the children, and also the “age of the respondent, his income and the state of his health”.
[28] In this case, the evidence is that the father has sufficient income to support J.‘s achievable, realistic and legitimate educational goals, and there is no evidence that anything about his age or health would limit his ability to assist her. Nothing in the separation agreement precluded post-graduate education. [emphasis added in Beninger]
[15] It is apparent from these factors that whether a child who is 19 years or older remains a “child of the marriage” cannot be determined simply by asking (as the language of s. 2(1) of the Divorce Act suggests), whether the child can support herself while attending school. The test is much broader; it requires the court to determine whether an “adult” child should be entitled to continued support from her parents given her particular academic, financial, and family circumstances. …
[52] I turn first to consider the Farden factors. Both Micah and Joseph are attending a full-time course of studies. Joseph has applied for and obtained student loans. Micah is in a position to do so. There is no suggestion that the career plans of these two young men are inappropriate. Each has the ability to contribute to his own support through part‑time employment. They are 19 and 22 years old presently. I understand that the children are doing well academically. They have demonstrated success in their courses of study. Although not addressed specifically, it appears that both parents anticipated that the children would continue in post‑secondary education. Neither has unilaterally terminated his relationship with his mother.
[53] The other factor that I must consider is Ms. Behl’s ability to support either of the boys. In my view she is not in a position to do so. She has only recently obtained full‑time employment. There is no certainty that she will be able to maintain this employment. She continues to have a variety of medical conditions. Her income is still below her expenses (without consideration of spousal support). She has limited savings. She is 47 years of age. She is simply not in position to support her sons’ post-secondary education.
[54] Each of the sons has a reasonable plan for completing his education. It is to his credit that Mr. Behl had and has been in a position to contribute to the boys’ education. Ms. Behl has not been so fortunate. Ms. Behl will not be ordered to pay child support nor s.7 expenses.
[55] Mr. Behl’s application also sought an order with respect to the balance of an RESP fund. That has been addressed and is no longer an issue.
[56] The parties may address costs, if necessary, in writing.
“B.J. Brown J.”