Place and Date of Hearing: Cranbrook, B.C.
December 3, 1998
[1] This decision follows Mr. Bibok's notice of motion:
1. To cancel arrears that accrued under the order of
Master Bolton November 13, 1996 both with regard to
child and spousal support.
2. Vary, rescind or cancel the spousal support and to
vary the amount of child support.
[2] Mr. Bibok is approximately 68 years of age and Ms. Bibok
approximately 52 years of age. They met in 1989 in Hungary and
again in 1992 when they were married. Ms. Bibok moved to
Canada in July of 1993 and the parties began living together.
Her two children came with her and one of them, Erik Somfai
born January 23, 1980 (almost 19 years of age), continues to
reside with her. The parties separated in May of 1996.
[3] The parties had entered into a marriage agreement in
November of 1992. This dealt with their property and Mr. Bibok
agreed to be responsible for the support of Ms. Bibok's
children. The agreement said nothing about spousal support.
[4] The parties appeared before Master Bolton on November 13,
1996 and Master Bolton ordered Mr. Bibok to pay to Ms. Bibok
interim spousal support and child support in the amount of $600
for the month of October and November for a total of $1,200
less $200 earlier ordered on October 3, 1996. This total
amount of $1,000 was to be paid on or before April 30, 1997.
Spousal support commencing on December 1, 1996 was ordered in
the amount of $1,000 per month and child support commencing
December 1, 1996 was in the amount of $500 per month.
[5] Master Bolton's reasons were filed February 21, 1997 and
were given orally in chambers on November 13, 1996. Master
Bolton noted that although Ms. Bibok was a registered nurse in
Hungary, her English was limited and her qualifications had not
been accepted in British Columbia. In dealing with Mr. Bibok's
income Master Bolton attributed income to him from the proceeds
of the sales of property. Mr. Bibok had sold some property in
the lower mainland and received approximately $300,000 net for
that property. His evidence at the time was that he then made
a gift to his daughter by way of an early inheritance of the
proceeds of that property. Master Bolton found that even if
this was an irrevocable gift it was unreasonable for him to
deprive himself of that asset and the income it could generate
and that he should bear the burden of those actions. Master
Bolton assumed that he could earn a rate of return of
approximately 5% or $15,000 per annum. The balance of income
consisted of approximately $1,600 per month in pensions and
some rental income. Master Bolton attributed rental income
from the properties in the amount of $3,000 per year.
[6] Mr. Bibok appealed Master Bolton's decision on the grounds
that Master Bolton had erred in determining that Mr. Bibok had
the financial ability to pay the amount of support and in
attributing income to Mr. Bibok. That appeal was dismissed and
the reasons are contained in the reasons of the Honourable Mr.
Justice Melnick filed April 24, 1997 and his corrigendum June
6, 1997.
[7] Mr. Bibok has made no payments pursuant to Master Bolton's
order.
[8] Mr. Bibok argues that in fact he did not receive
approximately $300,000 which he gifted to his daughter but
received approximately $304,000 net for the sale of the
properties in the lower mainland and from that paid $37,000 to
his son-in-law to reimburse his son-in-law for expenses
relating to the subdivision of the property and then made a
gift of $250,000 to his daughter. Mr. Bibok also argues that
he has had a reduction in his pension income of approximately
$257.80 per month and is not presently receiving his rental
income.
[9] It was argued that his only income now is:
Old Age Pension........................... $358.78
C.P.P...................................... 743.78
Company pension............................ 502.54
TOTAL............................(per month) $1,605.10
or.............................. (per annum) $19,261.20
[10] It was argued that I should make no allowance for
attributing income in the way in which Master Bolton did.
[11] Ms. Bibok argued that the only real reduction in income is
the reduction in the pension and that I should find his income
to be $21,561.71 per year plus the $15,000 per annum imputed
income for a total of $36,561.71.
[12] I agree with Ms. Bibok that Mr. Bibok is attempting to re-
argue the issue of attribution of income which has already been
decided by Master Bolton and the appeal of which has been
dismissed by the Honourable Mr. Justice Melnick.
[13] Master Bolton essentially found that Mr. Bibok had total
income of $37,200 per annum. Based on the present evidence
before me his income from pensions is still approximately
$1,600 per month which was what Master Bolton found, the income
attributed that Mr. Bibok was $1,250 per month and the rental
income was found to be $250 per month for a total of $3,100.
[14] Mr. Bibok's property is not presently rented although in
his property and financial statement he estimated $502.54 per
month as rental income. Even if the $250 rental income is
deducted Mr. Bibok still has income of approximately $34,200
per annum.
[15] The amount of child support for a person with one child
for a person with an income of $34,200 is $297 per month.
Based on the evidence before me and the earlier decision of
Master Bolton I find that Mr. Bibok has income of $34,200 per
annum and order that the child support be in the amount of $297
per month commencing as of September 1, 1998 and continuing on
the 1st of each and every month thereafter.
[16] The loss of the rental income effects a small change in
Mr. Bibok's income for the purposes of spousal support. The
spousal support will be reduced from the sum of $1,000 per
month to the sum of $800 per month. Again, effective as of
September 1, 1998 the support will be payable on the 1st of
each and every month commencing September 1, 1998.
[17] Mr. Bibok's application to cancel the arrears of support
is dismissed. He has made no efforts to make the payments
ordered nor has he demonstrated a change in his circumstances
except to the extent that I have varied the order commencing as
of September 1, 1998. Given the limited success on the
application the costs of the application will be to the party
or ultimately receive the costs of the proceedings.
"R. E. Powers"
R. E. POWERS
MASTER OF THE SUPREME COURT