2008 BCSC 566 Stevens v. Stevens

Before: The Honourable Mr. Justice McEwan

Reasons for Judgment

Counsel for the Plaintiff	G. L. Harrison, Q.C.
Counsel for the Defendant	J. Ghilarducci
Date and Place of Trial/Hearing:	April 7, 2008
	Rossland, B.C.

[1] The parties were married December 21, 1983. It was a second marriage for both. The plaintiff is 62 and the defendant is 63. There were no children of the marriage, although each had children of their first marriages. One of the plaintiff’s children lived with the parties for a period of about four years, while one of the defendant’s children lived with them for somewhat longer period.

[2] The parties separated on September 16, 2005. The immediately precipitating cause was, according to the plaintiff, a disagreement over the return of the defendant’s adult daughter to the matrimonial home, together with her boyfriend, in April 2005. The defendant disputes this. In any event, the plaintiff moved out and the defendant continued to reside in the parties’ home with her daughter. Her boyfriend apparently moved out in the fall of 2005, shortly after the plaintiff’s departure.

[3] The parties have been able to resolve a number of issues. A consent order was entered following a judicial case conference in the following terms:

THIS MATTER COMING ON for Judicial Case Conference at Rossland, British Columbia this day; AND UPON HEARING WILLIAM WESTCOTT, Counsel for the Plaintiff; AND UUPON HEARING JENNY GHILARDUCCI, Counsel for the Defendant; AND UPON HEARING the parties;

1. THIS COURT DECLARES THAT There is no possibility of reconciliation between the Plaintiff JAMES DONALD STEVENS and the Defendant MYRNA ANNE STEVENS;

AND THIS COURT ORDERS, BY CONSENT, THAT:

2. The parties’ respective Canada Pension Plans as accrued during the marriage shall be divided equally between them upon the application of either party;

3. The Plaintiff’s Cominco Pension and the Defendant’s Municipal Pension Plan are each a family asset, and each shall be divided between the parties at source pursuant to the provisions of Part 6 of the Family Relations Act;

4. Either party shall be at liberty to apply in Chambers on November 24, 2006 for further directions with respect to the division of the parties’ pension plans if the parties are unable to agree on the specific pension division clauses;

5. The parties’ RRSP’s shall be divided equally between the parties such that the Defendant shall transfer $23,000.00 out of her RRSP to an RRSP in the name of the Plaintiff by way of spousal rollover;

6. The Plaintiff shall pay interim spousal support to the Defendant in the amount of $600.00 per month payable on the first day of each month hereafter, commencing the first day of November 1, 2006, without prejudice to either party at the final hearing of this matter;

7. The spousal support shall be subject to review by either party upon the division of the parties’ pensions;

8. The division and adjustment between the parties of the proceeds of sale of the parties’ former matrimonial home and the division of any other family assets between the parties shall be adjourned generally;

[4] The parties have since settled the property issues by dividing everything equally. This included a division of the parties’ pensions in accordance with the formula set out in Part 6 of the Family Relations Act.

[5] This requires a little elaboration. The plaintiff began working for Teck Cominco in 1964. When he settled the property and financial issues arising out of his first marriage, which lasted from 1967-1979, the plaintiff compensated his first wife so that he could retain the pension intact. He deposes that he “bought out” the pension by assuming all the debts arising from the relationship. The portion of his pension that was earned during the parties’ marriage runs from December 21, 1983 to January 4, 2003 when the plaintiff took early retirement from Teck Cominco. The court was advised that this meant that he went at the earliest point at which he could go with an unreduced pension, but a number of years before his last theoretical working day.

[6] The defendant was employed throughout the marriage. She worked as a kitchen manager at a hotel in Castlegar from 1983-1988, and then, briefly, at a restaurant in Trail before she was hired in the kitchen at a Trail extended care facility. A feature of the defendant’s employment there was that she was enrolled in the provincial municipal superannuation pension plan. The defendant retired in August of 2003, at the earliest time it was possible to do so. As with much else in this litigation, the parties disagree as to the circumstances of the defendant’s retirement. She says that they agreed that she would retire as early as possible, while the plaintiff says that it was entirely the defendant’s decision and that he would have preferred her to continue working. Her pension was, in the circumstances, reduced.

[7] The parties were approaching 40 years of age when they married. There is no suggestion that sacrifices made during the marriage affected the economic circumstances of the defendant. She worked throughout in a form of employment that apparently conformed to her work experience and the skills she had developed before the marriage. This is not a case for compensatory support as that term is used in Bracklow v. Bracklow, [1999] 1 S.C.R. 420. There, at paragraph 49, the Supreme Court of Canada, per McLachlin J. (as she then was) summarized three basis upon which a claim for spousal support may be made:

In summary, the statutes and the case law suggest three conceptual bases for entitlement to spousal support: (1) compensatory, (2) contractual, and (3) non-compensatory. Marriage, as this Court held in Moge, is a "joint endeavour", a socio-economic partnership. That is the starting position. Support agreements are important (although not necessarily decisive), and so is the idea that spouses should be compensated on marriage breakdown for losses and hardships caused by the marriage. Indeed, a review of cases suggests that in most circumstances compensation now serves as the main reason for support. However, contract and compensation are not the only sources of a support obligation. The obligation may alternatively arise out of the marriage relationship itself. Where a spouse achieves economic self-sufficiency on the basis of his or her own efforts, or on an award of compensatory support, the obligation founded on the marriage relationship itself lies dormant. But where need is established that is not met on a compensatory or contractual basis, the fundamental marital obligation may play a vital role. Absent negating factors, it is available, in appropriate circumstances, to provide just support.

[8] In Bracklow the parties had been married before and both worked. For a time, the wife made more money than the husband, but she also brought two children into the relationship from her first marriage. The parties ultimately settled on an equal expense sharing arrangement. The wife made certain career choices which were supported by the husband, but which, when she became ill, had a negative effect. Two years into the parties’ marriage (which lasted 7 years), the wife became disabled for psychiatric reasons and stopped working. These problems were not a surprise to the husband who was aware that the wife had health problems at the outset of the relationship. The husband was making $3764 per month following their divorce, and the wife was living on a disability pension benefit of $787 per month. The husband was obliged to pay spousal support.

[9] The defendant in this case suggests that she is at least partly disabled, a characterization that the plaintiff disputes. The defendant deposes, in answer to a sworn assertion by the plaintiff that she could have continued to add to her pension by working beyond the earliest date she could retire with some pension, as follows:

In response to paragraph 4, James is well aware that I was very ill when I retired. I had hepatitis and worked for at least three years immediately prior to my retirement while suffering from nausea, vomiting and diminished bowel control. Despite my illness I struggled to work until I qualified for a minimum pension. I was finally diagnosed with a stone in my liver duct just shortly after my retirement. I had to have emergency surgery in Kelowna to correct the problem. I still suffer recurring bouts of bowel irritations and related problems.

[10] She attaches a letter from her family doctor that reads as follows:

Currently Mrs. Stevens’ major medical problems consist of the following. She has had hypertension over several years and at times this has been quite difficult to control. She is currently on Atenolol at 75 mg a day as well as Diovan at 160 mg a day. Her blood pressures can be labile and particularly go up with significant changes to her mood. Associated with her hypertension is the development of significant protein in her urine. She has also had a reduction in her kidney function with a reduced GFR. I have made a referral to a local specialist Dr. Chi Zhang in further evaluation of the above.

Other medical problems include gout with episodic bouts of gouty arthritis. She is currently maintained on Allopurinol on a daily basis to prevent these episodes. She has had some associated osteoarthritis. She has diverticulosis of the large intestine and she gets episodic flares of diverticulitis, which require antibiotics. Additionally in 2003, she underwent an ERCP because of an abnormal ultrasound of the liver. At that time they were able to remove a stone in her common bile duct. After the procedure she did develop an increase of her liver enzymes compatible with a mild hepatic injury, which can commonly occur after the above said procedure. She underwent total abdominal hysterectomy in 2000 because of a large fibroid tumor. She has elevation of her cholesterol, which is currently being managed with dietary therapy. She has episodic gatroesophageal reflux disease for which she takes Nexium on a daily basis and this seems to keep things controlled. In her chart previously there have been episodes of mood disturbance, which seem to be brief.

[11] The limitations of letters from physician attached to affidavits in this manner are obvious. Despite the complex of symptoms and conditions described, there is no indication that these conditions interfere in any particular way with the defendant’s employability.

[12] It is implicit in defendant’s material and submissions that she has no plans or feels no obligation to seek employment or to attempt to make any further contribution to her own support. She does point out that the plaintiff earns some money in addition to his pension, as a lounge or pub musician.

[13] Given the state of the evidence, it is not possible to equate the present case with Bracklow on medical grounds. The evidence does not establish this to be a case of disability. That is not, of course, determinative.

[14] There are two questions that must be addressed. The first, arising out of the fact that the parties settled their issues over property is what this means in relation to the spousal support claim. The defendant did not seek a reapportionment of the assets. In relation to the plaintiff’s pension, this means that she effectively acknowledged that the proportionate distribution provided under Part 6 of the Family Relations Act was “fair”.

[15] Just over half of the plaintiff’s working life was before the marriage. This resulted in a pension calculation (based on a fraction of 18.199 years of marriage/36.747 years of earning the pension) that apportioned the plaintiff’s $2527.35 monthly pension $625.84 to the defendant, and $1901.51 to the plaintiff. The defendant’s $649.88 monthly pension was divided equally, $324.94, because it was all earned during the marriage. Each pension will be further adjusted at age 65 to reflect receipt of statutory benefits.

[16] The result of the Part 6 pension and CPP distribution is summarized by the defendant as follows:

Plaintiff:	Canada Pension	$ 544.86
	Municipal Pension	324.93
	Cominco Pension	1901.51
		$2771.30

Defendant:	Canada Pension	$ 461.75
	Municipal Pension	324.94
	Cominco Pension	625.84
		$1412.53

[17] As set out in the Consent Order, the plaintiff has been paying $600 per month as interim spousal support “without prejudice to either party at the final hearing of this matter.” The plaintiff says that his understanding was that he would pay the interim support until his Cominco pension was divided at source, while the defendant says that the understanding was that spousal support would be subject to review after the pension division “so that we could reassess the situation once we knew how much income we would each receive after the pensions were all divided,” but that it was not expected to terminate. The difference between the parties’ income if the plaintiff pays $600 per month is less than $60 ($2171.30 – $2012.53).

[18] The plaintiff’s submission has focussed on the fact that half of his pension was not only earned before the parties were married, but that, in effect, he purchased the share of that portion of his pension that his first wife was entitled to at the time of their divorce. He submits that both parties were receiving their pensions at the time of the separation so that the division was not, as is often the case, prospective. The defendant knew what she was going to receive, and failed to seek a reapportionment under s. 65, which specifically provides a mechanism to address “the needs of each spouse to become and remain economically independent and self-sufficient.” The terms the parties agreed to are located in the consent order and in oral terms they both acknowledge. The law is that division of assets precedes the determination of spousal support. The difficulty here is may be that the parties have effectively contracted that the Part 6 distribution of their present incomes is “fair” because they are actually receiving their pensions.

[19] The defendant’s submission is that notwithstanding whatever has been done in this regard, spousal support must be paid either on a contractual basis or a non-compensatory basis.

[20] As I have noted, despite some effort to characterize the case as one requiring compensatory compensation, the defendant’s position on that basis is not strong.

[21] Section 15.2(6) of the Divorce Act sets out the objectives of a spousal support order:

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

…

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[22] This is not a case within subsections (a) or (b). It was a second marriage and the parties’ economic circumstances continued in settled patterns. The defendant did not suffer any career compromises as a result of the role she took in the marriage.

[23] Subsections (c) and (d) are engaged to the extent that there are economic consequences arising from the breakdown of the marriage in the sense that the parties will not experience the economies of sharing expenses.

[24] The question of economic self-sufficiency has not been adequately developed. The defendant is of an age when it is not realistic to expect her to embark on a new career, but it has not been established that she is incapable of contributing to her own support or that she has tried. I have already said that the medical evidence includes a rather extensive iteration of conditions, no combination of which is identified as disabling. The defendant points out that the plaintiff makes some money casually as a musician, as a “circumstance”, without outlining her own best efforts. She is not obliged to make such efforts if she is content to live on her retirement entitlements. If she expects to be supplemented by the plaintiff out of the difference between those entitlements, however, she would have to establish that she has been doing the best she can. If that is so, it is not fully apparent.

[25] Although I have some difficulty with the proposition that one can accept the Part 6 distribution of pensions that are actually being paid as “fair”, that is, without making an economic case for reapportionment, and then turn around and seek spousal support on the basis of “need”, I do not think the understandings upon which spousal support was paid in this case are not completely clear, such that the case should be decided on the basis of whether there was, in effect, an agreement or a contract respecting support. A negative finding would not, on the facts of this case, preclude consideration of the non-compensatory basis of spousal support in any event.

[26] The defendant’s means are limited. In Bracklow, the Court showed that “need” is but one of the factors a judge must consider. The Court went on to say, at paragraph 53:

… The quantum awarded, in the sense of both amount and duration, will vary with the circumstances and the practical and policy considerations affecting particular cases. Limited means of the supporting spouse may dictate a reduction. So may obligations arising from new relationships in so far as they have an impact on means. Factors within the marriage itself may affect the quantum of a non-compensatory support obligation. For example, it may be difficult to make a case for a full obligation and expectation of mutual support in a very short marriage. (Section 15.2(4)(a) of the Divorce Act requires the court to consider the length of time the parties cohabited.) Finally, subject to judicial discretion, the parties by contract or conduct may enhance, diminish or negate the obligation of mutual support. To repeat, it is not the act of saying "I do", but the marital relationship between the parties that may generate the obligation of non-compensatory support pursuant to the Act. It follows that diverse aspects of that marital relationship may be relevant to the quantum of such support. As stated in Moge, "[a]t the end of the day ..., courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act" (p. 866).

[27] Here, the marriage did not cause the defendant economic hardship. Her circumstances are enhanced by something over $400 per month by virtue of her function in the parties’ shared enterprise. Her position is essentially that she is entitled to equality of income with the plaintiff by virtue of marriage. When the amount of income involved is relatively modest, apparent need can seem compelling. It may not provide a reason to depart from principle however.

[28] The particular feature of this case is that the essential difference between the parties’ means is in the portion of the plaintiff’s pension earned before the marriage. That money is presently available to the defendant because he bought it out from his first spouse at the time of their separation. The difference the defendant is seeking ($600 more or less) is almost precisely the amount that is attributable to that fraction. The defendant’s submission is essentially that the plaintiff should now deliver that half of his pre-marital pension to the defendant. Having paid for half of it once, delivering half of it now to the plaintiff is the equivalent of his entire pension for those 18 years going to his respective spouses. That does not seem fair.

[29] This is a case where the parties distributed their assets equally, and acknowledged that to be fair. It leaves the defendant somewhat better off than she might have been had she not married. The defendant can show no disadvantage arising out of the marriage and no sacrifices that interfered with her ability to work and earn an income in accordance with her intents and abilities. The economic consequences of marriage were positive for her. The negative after effects relate not to sacrifices made during the marriage, but to the inevitable consequences of there being two households and of a disparity in income, which predated the marriage, and from which the defendant no longer takes the benefit because of the separation. She is not disabled in the Bracklow sense. She comes out of the marriage better off, but in a position where she could obviously use more money. Absent a principled reason for redistributing what has “fairly”, and to the defendant’s economic advantage, been distributed, however, the fact that this is so, does not justify the order the defendant seeks.

[30] The defendant’s claim for spousal support is dismissed.

[31] At the hearing, counsel sought a decree of divorce. It then became apparent that the plaintiff testified and was granted a divorce, subject to the filing of a Registrars Certificate, by another judge earlier this year. In the circumstances, I will simply leave it open to the parties to apply for directions, if necessary, to deal with anything arising.

[32] This issue was far from foregone. I do not think it appropriate that costs be awarded unless there are pertinent circumstances of which I am presently unaware.

“The Honourable Mr. Justice McEwan”

Citation:	*Stevens v. Stevens,*
	2008 BCSC 566