Before: The Honourable Mr. Justice Ehrcke

Reasons for Judgment

Counsel for the Plaintiff	Barbara E. Bulmer
Counsel for the Defendant	Phyllis M. Kenney
Date and Place of Trial/Hearing:	April 14-18, 2008
	Vancouver, B.C.

Introduction

[1] After 16 years of marriage, the plaintiff, Cynthia Burridge, and the defendant, John Burridge, separated on November 16, 2003. More than 3 years then passed before the plaintiff commenced an action for divorce and corollary relief. The divorce was granted by order of this court on August 10, 2007. The remaining issues, including the division of property, division of the defendant’s pension, and the plaintiff’s claim for spousal support, are the subject of the present trial.

Facts

[2] The plaintiff was born in the United States of America and is now a Landed Immigrant in Canada. After obtaining a Bachelor of Science degree from Fairleigh Dickenson University in 1977, she worked in a law office for 6 months as a receptionist. She married her first husband, who was a Canadian, and they had two sons, Cory, born in 1979, and Tyler, born in 1982. She and her first husband divorced in 1984. As part of the divorce settlement, she obtained 60% of the value of their former home and lump sum spousal maintenance. Her first husband did not maintain contact with the children, but did pay her child support, initially at the rate of $700 per month and then increasing to $1,400 per month.

[3] The plaintiff was in her early 30’s when she met the defendant. She was living rent-free with some friends and doing child care for them and other children, as well as looking after her own two boys.

[4] The defendant, at that time, was already established in his career as a pilot for CP Air, having started with the airline in 1972. He owned his own home, furniture and car. He also had an Ansel Adams print that he purchased in 1979 for $1,500. He had little debt other than a mortgage of about $25,000 on his home.

[5] The couple began living together in 1986. He sold his home, and they bought a house together as tenants-in-common. They married on October 24, 1987, and he assumed the role of a father for her two children. In 1988, the defendant inherited $75,000 when his father died. He bought a new car and used the remainder of his inheritance to pay down the mortgage.

[6] During their marriage, the plaintiff kept house and continued looking after her two sons, while the defendant continued working as a pilot. In the early 1990s, they sold their first home and bought a house on Roslyn Boulevard in their joint names.

[7] In 1989, the plaintiff started working two days a week at a friend’s cooking school. This work continued for 8 years. Then, some time around 1997, she started selling Japanese health products as a distributor for Nikken, a multi-level marketing company. She continues to operate that home-based business, working on average about 10 hours per week. The business has never shown a net profit, but over the years, the plaintiff used her business losses to offset other income, which generated some tax refunds for herself and the defendant. She now believes that the business is ready to start showing a real profit, and she expects to earn $1,000 per month from the business within the next year.

[8] Meanwhile, her children grew up. Tyler started university in California, but became ill with a serious liver disease and had to return home to live with the plaintiff and defendant. In July 2003 he received a liver transplant. The donor was his brother Cory. Tyler continues to require anti-rejection medication.

[9] The couple separated in the middle of November 2003, when the defendant moved out. They attended marriage counselling for a few months, but stopped when they both decided that reconciliation was not a possibility.

[10] The plaintiff continued to live in the Roslyn home with Tyler and Cory. Tyler returned to university in January 2004 and graduated in January 2005.

[11] The Roslyn home was sold on October 26, 2004. The mortgage and line of credit were paid off from the proceeds of the sale, and the balance was divided equally between the parties. Each received $493,589 from the net proceeds.

[12] At around the same time, the parties also divided their furniture and other personal effects. The two boys took their furniture, and the plaintiff and defendant each took the items they wanted. They did not keep a detailed record of what each one took, and there was no attempt to determine the value of what each wound up with. The plaintiff testified that they tried to divide things equitably. The defendant kept the Ansel Adams print that he had purchased before he met the plaintiff.

[13] The plaintiff used her portion of the proceeds of the sale of Roslyn to purchase a home on Mahon Avenue in North Vancouver. She also took out a $200,000 mortgage. The 2007 property assessment shows a value of $625,100 for her Mahon Avenue home. The 2008 assessment shows a value of $708,300.

[14] Cory has continued to live with the plaintiff, except for the period from September to December 2007. Tyler moved back in with the plaintiff in March 2008. He has a part-time job, but does not pay her any rent. Cory works as a free-lance photographer and pays her $500 per month for food.

[15] Since the time of separation, the defendant has been making support payments to the plaintiff. He continued to pay the mortgage and line of credit on the Roslyn home, as well as making the car payments for the plaintiff, Cory and Tyler. Each month he reported to the plaintiff what was left of his income after paying the expenses, and they split the remainder.

[16] On December 22, 2006, the parties entered into a separation agreement, which included provisions for spousal support. The agreement acknowledged that he had paid the plaintiff $58,769 in spousal support for the year 2005, and $55,200 for the year 2006. This resulted in tax refunds for those years, which he split with the plaintiff. These refunds provided her with an additional net sum of approximately $600 per month.

[17] The parties are in agreement that the date of the first separation agreement should be treated as the triggering event for the purposes of s. 56 of the Family Relations Act, R.S.B.C. 1996, c. 128, that is, the date on which an interest vests in each spouse in the family assets.

[18] The parties entered into another similar agreement on March 20, 2008, which acknowledged that the defendant had paid $4,600 per month in spousal support to the plaintiff for a total of $55,200 for the year 2007. Once again, they agreed that he would split the resulting tax refund with the plaintiff and that he would also reimburse her for whatever tax she had to pay on her spousal support income.

[19] The parties obtained an order for divorce on August 10, 2007. The defendant has since remarried.

[20] The plaintiff has accumulated significant debt since separation. She does not pay off the full balance on her credit cards each month, and has adopted the practice of transferring debt from one credit card to another. On her most recent form 89 financial statement sworn March 20, 2008, she shows a total indebtedness of $239,617, including her mortgage in the amount of $160,620 and her line of credit in the amount of $24,700.

[21] The defendant, on the other hand, has managed to pay his credit card expenses as they arise. As a result, he has not accumulated as much debt. His form 89 financial statement sworn January 17, 2008, shows a total indebtedness of $168,462, including $144,133 on his current mortgage.

Issues

[22] The plaintiff seeks a reapportionment of the proceeds of the sale of the Roslyn matrimonial home in her favour, a 50% interest in the Ansel Adams print, and an equal division of the defendant’s pension, inclusive of his pre-marital contributions. She also seeks spousal support and an order securing that support for her lifetime. There is no application for child support.

The Matrimonial Home

[23] The division of property, including the plaintiff’s application for reapportionment, should be resolved before turning to the issue of spousal support: Narayan v. Narayan, 2006 BCCA 561, at para. 33.

[24] Although the matrimonial home has already been sold and the net proceeds equally divided between the parties, the plaintiff submits that she should have received a larger share, and she therefore asks for a reapportionment under s. 65(1) of the Family Relations Act or compensation. She says she should have received 60% of the net proceeds, which would have provided her with an additional $99,000. She submits that if she had received that additional sum, her level of debt would be similar to the defendant’s.

[25] Pursuant to s. 56 of the Family Relations Act, one starts with the presumption that the equity in the home should be divided equally, but that presumption is subject to reapportionment under s. 65, which provides:

65(1) If the provisions for division of property between spouses under section 56, Part 6 or their marriage agreement, as the case may be, would be unfair having regard to

(a) the duration of the marriage,

(b) the duration of the period during which the spouses have lived separate and apart,

(d) the extent to which property was acquired by one spouse through inheritance or gift,

(e) the needs of each spouse to become or remain economically independent and self sufficient, or

(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse,

the Supreme Court, on application, may order that the property covered by section 56, Part 6 or the marriage agreement, as the case may be, be divided into shares fixed by the court.

(2) Additionally or alternatively, the court may order that other property not covered by section 56, Part 6 or the marriage agreement, as the case may be, of one spouse be vested in the other spouse.

(3) If the division of a pension under Part 6 would be unfair having regard to the exclusion from division of the portion of a pension earned before the marriage and it is inconvenient to adjust the division by reapportioning entitlement to another asset, the Supreme Court, on application, may divide the excluded portion between the spouse and member into shares fixed by the court.

[26] The test under s. 65(1) is not whether a reapportionment would be fair, but rather, whether the equal division presumed under s. 56 would be unfair: S.B.M. v. N.M., 2003 BCCA 300, at para. 23; Murchie v. Murchie (1984), 39 R.F.L. (2d) 385 (B.C.C.A.). The party seeking reapportionment bears the onus of showing that an equal division would be unfair: MacNeil v. MacNeil (1995), 14 R.F.L. (4th) 24 (B.C.S.C.).

[27] Of the factors set out under s. 65(1), the plaintiff emphasizes her need to become and remain economically self-sufficient under s. 65(1)(e). That factor, however, must be considered in the context of the other factors, and particularly the fact that the defendant made a greater financial contribution to the acquisition and maintenance of the property, including the inheritance he received when his father died. Taking into account, as I must, all the factors under s. 65(1), I find that the plaintiff has not satisfied the onus on her of showing that an equal division of the net proceeds of the matrimonial home would be unfair, and her application for a reapportionment or compensation is therefore dismissed.

The Defendant’s Pension

[28] The defendant has effectively worked for the same company since he started in 1972, although the corporate structure changed when Canadian Airlines (formerly Canadian Pacific) merged with Air Canada in 2000.

[29] According to the defendant’s testimony, the Canadian Pacific pension plan had a supplement, called the Pilot Equity Fund. In 1986, that fund was rolled into an Investors Group RRSP. The defendant has neither contributed to nor redeemed any part of that RRSP since 1986.

[30] The defendant’s Air Canada pension consists of two components: a registered portion (the “RPP”) and an unregistered supplementary plan (the “SPP”). The parties have presented expert evidence in the form of an opinion letter by Thomas Anderson, Q.C., as to how Air Canada’s administrative policies affect the division of Air Canada pensions. While most pensions in British Columbia can be divided pursuant to the provisions of Part 6 of the Family Relations Act, Air Canada apparently takes the view that its pensions are not subject to regulation by provincial law. This presents some practical difficulties for the parties to this case. They have agreed that what they seek from the court at this time is a ruling as to the period of time to be used for defining the portion of the pension that is subject to division. Once that has been determined, they believe that they can work out between them the most effective mechanism for effecting the pension division.

[31] The position of the plaintiff is that she is entitled to an equal share of the defendant’s pension from the date of its commencement in 1972 up to the date of the triggering event, December 22, 2006. She points out that s. 65(3) of the Family Relations Act specifically provides that the court may reapportion a pension if the division under the terms of Part 6 would be unfair.

[32] The defendant submits that only the portion of his pension that accrued during the marriage should be subject to division, that is, the period from October 24, 1987 to the triggering event, December 22, 2006. He submits that this is in accordance with the requirements of Part 6 of the Family Relations Act.

[33] A useful summary of the current law on the division of pre-marriage pension benefits may be found in H.E.D.C. v. R.M.C., 2003 BCCA 420 at paras. 55 to 60:

55 I will attempt a summary of the current state of the law concerning entitlement to pension benefits acquired pre-marriage.

56 The division of pensions is governed by Part 6 of the FRA and the Division of Pensions Regulation, which came into force on 1 July 1995. Prior to this legislation, pension benefits accrued up to the occurrence of a triggering event, including benefits acquired before the date of marriage, were considered to be a family asset and prima facie divisible in equal shares under the Act (s. 56(2)). The Court had (as it still does) the discretion under what is now s. 65 to reapportion the spouses' respective shares of the pension on the basis of fairness: see Mailhot.

57 The onus of proof lies on the spouse seeking reapportionment under s. 65: Toth v. Toth (1995), 17 R.F.L. (4th) 55 (B.C.C.A.). As the law stood prior to July 1995, the onus was therefore on the party seeking to exclude pension income accrued before the date of marriage to demonstrate that its inclusion would be unfair.

58 In 1995, the legislature excluded pension benefits acquired before the date of marriage from the pension base considered to be a family asset. Section 6(2) of the Division of Pensions Regulation sets out a formula for calculating a spouse's share in a pension. Under the formula, a spouse's share is proportionate to the pension benefits accumulated by the member from the date of marriage to the triggering event. Now, prima facie, a spouse is not entitled to share in pre-marital pension benefits. So, as a result of the 1995 legislation, the onus shifted to the spouse seeking an interest in pre-marital pension benefits under s. 65 to establish that a division in accordance with s. 6(2) of the Regulation operates unfairly.

59 In this way, the 1995 legislation changed in part the law as stated in Mailhot. Pension benefits acquired before the date of marriage are no longer considered to be a family asset and, consequently, the onus has shifted from the party seeking to exclude such benefits to the party seeking to include such benefits under s. 65.

60 Mailhot, and cases decided pursuant to Mailhot, may still be instructive insofar as the cases consider the concept of "fairness" having regard to the circumstances listed in s. 65(1). Regard must be had, however, to the shift in onus caused by the 1995 legislation. As a result, a case decided pursuant to Mailhot without a consideration of the 1995 legislation will not be determinative of similar issues raised after 1 July 1995.

[34] As H.E.D.C. v. R.M.C. makes clear, under the current legislation, a claimant's share of his or her spouse’s pension will prima facie be based on the pension benefits accumulated from the date of marriage to the triggering event. The onus is on the claimant spouse to establish that such a division would be unfair and that the pre-marital portion should also be divided.

[35] The plaintiff in this case submits that the defendant’s entire pension should be divided equally, from the time he started with his employer in 1972 until the triggering event. In support of her position, the plaintiff relies on Picone v. Thomas, 2007 BCSC 199. There, Wilson J. summarized some of the relevant factors to be considered in determining whether to include pre-marriage pension accruals in dividing a pension at para. 34:

Counsel have referred to many cases dealing with the issue of pre-marriage pension accruals, which I have reviewed. Some of the considerations which appear to bear weight in favour of division of the pre-marriage accruals are:

a) that the marriage was a lengthy one: Shirran v Shirran, [1999] B.C.J. No. 1195 (S.C.); Plant v. Plant, 2004 BCSC 1504;

b) that most of the pension accrued during the marriage, rather than being earned before the marriage;

c) where, if one of the spouses does not get a share of the pre-marriage accruals, the other spouse will have to pay maintenance: Shirran v Shirran, supra;

d) an intention that the pension be used for the benefit of both parties on retirement: C.F.G. v. A.A.G., 2006 BCSC 904.

[36] In that case, the trial judge concluded it would be unfair for Ms. Picone not to share in the portion of Dr. Thomas’ pension accrued before the marriage. However, an important factor in that case was that Ms. Picone had brought other valuable property into the marriage that would be subject to division between the parties. Thus, Wilson J. observed:

Further, I accept the submission on behalf of counsel for Ms. Picone that it would be unfair that she receive no credit for Dr. Thomas’ pension benefits brought into the marriage, while he obtains the benefit of her equity in the Condominium brought into the marriage.

[37] In the present case, there is no similarly valuable asset brought into the marriage by the plaintiff to offset the defendant’s pre-marriage pension contributions.

[38] As well, the second factor mentioned in Picone, namely, that most of the pension accrued during the marriage rather than prior to it, does not apply here. In the present case, the defendant earned 15 years of pension credits before marrying the plaintiff. As well, I note that the plaintiff will, in any event, be getting the benefit of more than 3 years of pension that accrued after separation and before the triggering event.

[39] The plaintiff has not shown that it would be unfair to divide the defendant’s pension pursuant to Part 6 of the Family Relations Act based on the accrual period from the date of the marriage to the date of the triggering event.

[40] Accordingly, I order that the plaintiff is entitled to an equal share in the defendant’s pension based on the period from October 24, 1987 to December 22, 2006, and as the parties requested, I leave it to them to work out the most effective mechanism for achieving that result, given the difficulties posed by Air Canada’s administrative policies. They are at liberty to apply to the court if they cannot resolve the appropriate mechanism for pension division.

[41] The evidence of Thomas Anderson, Q.C. is that at the present time, the administrative policies of Air Canada treat the RPP and SPP portions of the defendant’s pension differently, permitting direct payment to the plaintiff of her portion of the RPP, but not of the SPP. The defendant has therefore agreed to an order in the following terms:

At any point in time, should the legislation change or the administrative policies of Air Canada change which allow the division of the Supplemental Portion of the Plan (SPP) at source, the SPP shall be divided and paid directly to the Plaintiff by the Plan. Pending that change, the Defendant shall be a trustee of the Plaintiff’s share of the Supplement Portion of the Plan and shall pay her share of the benefits directly to her.

RRSPs

[42] The plaintiff has RRSPs worth approximately $12,000.

[43] The defendant has an RRSP with Investors Group currently valued at approximately $300,000, which was derived from his Pilot Equity Fund with Canadian Pacific. He has neither contributed to, nor redeemed any part of that RRSP since 1986, that is, prior to the marriage.

[44] In his counterclaim, the defendant sought a declaration that his Investors Group RRSP is not a family asset. In the alternative, he sought a reapportionment in his favour. At trial, however, he abandoned that position, and he now agrees to an order equalizing the parties’ RRSPs.

[45] Accordingly, there shall be an order that the RRSPs in the name of the plaintiff and the RRSPs in the name of the defendant shall be equalized by way of a tax free spousal rollover.

The Ansel Adams Print

[46] The defendant acquired his Ansel Adams print in 1979 for $1,500. When the parties sold the matrimonial home in October 2004, they divided their chattels, including the Ansel Adams print. Neither party made any attempt to list the values of the various items each one took, and no record was kept of what items each one took. The plaintiff testified that they were trying to divide things equitably. She did not, at that time, ask the defendant for compensation for her share of the Ansel Adams.

[47] The defendant concedes that the print should be classified as a family asset, because it hung in the family home for everyone to enjoy. However, he points out that it was a “passive asset” in the sense that he acquired it many years prior to marriage, and the plaintiff made no contribution either to its acquisition or its maintenance. As well, there is no evidence that the value of the print was ever treated as a financial asset; that is, there is no evidence that it was ever used as collateral for a loan, or that the parties ever discussed the possibility of selling it to provide cash for family purposes.

[48] In my view, it would be unfair to require the defendant now to compensate the plaintiff for the value of the print, when she agreed to his keeping it as part of their overall division of chattels in 2004. Although the defendant concedes that the print was probably the most valuable single item from among their chattels, it would be unfair to single out that one item for division without re-opening the division of all the other chattels, which would be an impossible task, given that there is no record of what each party took, or the values of any of the other items.

[49] Accordingly, each party is entitled to retain the chattels in his or her possession, including the Ansel Adams print, without further claim or compensation.

Spousal Support

[50] The defendant is now 58 years old. His current income as an Air Canada pilot and base manager is $267,845. A term of his contract requires him to retire at age 60, that is, about 20 months from now. At that time, he can apply for his pension. He also has the possibility of working part-time (at lower pay) for another employer until age 65, the internationally recognized retirement age for pilots.

[51] The plaintiff is 54 years old. On her most recent form 89 financial statement, she lists no income and annual expenses totalling $65,917. She seeks an order for spousal support.

[52] Section 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that the court may make an order requiring a spouse or former spouse to pay maintenance to the other spouse either for an indefinite period, or for a definite period, or until a specified event occurs.

[53] Subsection 15.2(4) sets out some of the factors to be taken into account on an application for spousal support. That subsection provides:

15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

[54] Subsection 15.2(6) sets out the objectives of a spousal support order:

15.2(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;

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

[55] In Moge v. Moge, [1992] 3 S.C.R. 813, the court noted that the objective of self-sufficiency is only one of the considerations and emphasized that all of the objectives in s. 15.2(6) must be taken into account.

[56] In Bracklow v. Bracklow, [1999] 1 S.C.R. 420, the court observed that entitlement to spousal support is not limited to compensatory principles, but may also be justified on needs-based and contractual principles.

[57] The plaintiff submits that she is entitled to support on compensatory principles. The defendant agrees that the plaintiff is entitled to spousal support, but says it is only on the basis of need. He submits that the plaintiff did not suffer any economic disadvantage from the marriage, and in fact, benefited economically from it. The plaintiff did not give up a career to marry the defendant and raise his children. Rather, she was already raising her own children when she met the defendant, and her economic circumstances improved with her marriage to him. On the facts of this case, I agree with the defendant that the plaintiff’s need for economic self-sufficiency is the primary basis for an award of spousal support.

[58] The parties disagree about the appropriate quantum and duration of support.

[59] The plaintiff seeks a lump sum award of $75,000 plus ongoing support in the amount of $8,070 per month, with liberty to review the quantum after the defendant retires.

[60] The defendant submits that there is no basis for a lump sum award. He has offered to pay monthly maintenance at the rate of $6,597, which he describes as generous. He submits that spousal support should be at that amount until he becomes eligible to receive his pension, at which point his payments should be reduced to an amount that is 29.75% of the difference between their annual incomes.

[61] I will deal first with the plaintiff’s request for a lump sum award of $75,000. The plaintiff advances two considerations in support of her position. First, she submits that the amount she has received from the defendant from the time of separation until today has been inadequate, which is shown by the fact that she has accumulated significant debt. She says she now needs the $75,000 lump sum payment to address the debt issue. As well, she says that the defendant made an agreement to pay her $100,000 per year in spousal support, and he has not lived up to that agreement.

[62] I do not agree with the plaintiff that her accumulation of debt justifies an award of lump sum spousal support. Both parties retired most of their outstanding debts when they sold the former matrimonial home. Since that time, the plaintiff, unlike the defendant, has allowed her debt level to rise significantly, particularly by not paying off her credit cards in full.

[63] The defendant should not be responsible for debts incurred by the plaintiff after separation unless she incurred those debts for a family purpose: Jung v. Jung (1998), 14 R.F.L. (3d) 430 (B.C.C.A.); Gerhardt v. Gerhardt, 2004 BCSC 413.

[64] On the evidence before me, it is apparent that most, if not all, of the debts accumulated by the plaintiff since separation are due to expenses she has incurred in running her business. The defendant suggested to her long ago that she should give up her business and find another pursuit because it had no realistic hope of ever becoming profitable. She says she still believes that it can become profitable, and in fact, she believes that within one year, she will be earning a net profit of $1,000 per month.

[65] I find that the plaintiff’s debts after separation were not incurred for a family purpose, and they do not provide a justification for an award of lump sum spousal support.

[66] As well, I find that there never was an agreement between the plaintiff and the defendant for him to pay her $100,000 per year in spousal support. The plaintiff’s argument in this regard is based on a note that the defendant faxed to a representative of the Royal Bank on September 14, 2004, when the plaintiff was applying for a mortgage. It reads: “Dear Vicky, As per our conversation this morning, this letter confirms my commitment to pay Cindy Burridge $100,000 per annum in equal monthly payments. Sincerely, John R.A. Burridge”.

[67] The evidence is clear that the defendant sent this note at the plaintiff’s request in order to facilitate her obtaining a mortgage. It does not, however, constitute an agreement or contract between the plaintiff and the defendant. It lacks the essential ingredients of a contract. First, there is no consideration flowing to the defendant. Second, the note is not signed by both parties. Third, it is not even addressed to the plaintiff. Although the letter mentions the plaintiff, it does not purport to be a promise to her, but rather is simply a representation made by the defendant to the bank. Finally, there is no evidence that the plaintiff and defendant ever intended that letter to be a binding agreement as between themselves.

[68] I am satisfied that the amount of support the defendant has provided to the plaintiff in previous years was appropriate given his income from year to year, and given the two agreements between the parties whereby the plaintiff shared in the tax benefits of their arrangement. There is no basis in this case for making an award of lump sum spousal support.

[69] In terms of ongoing support, the plaintiff and the defendant have both provided calculations based on the Spousal Support Advisory Guidelines. The plaintiff’s calculations are based on an 18-year marriage, and assume an annual income of $269,000 for the defendant, and no income for the plaintiff. They show a range of support from $6,053 to $8,070 per month. The plaintiff submits that she is entitled to support at the top of the range.

[70] The defendant’s calculations are based on a 17-year marriage, and assume an annual income of $267,845 for the defendant, and no income for the plaintiff. They show a range of support from $5,654 to $7,539 per month. The defendant submits that the mid-range figure of $6,597 is appropriate.

[71] The assumptions used in the defendant’s calculations are more accurate, both in terms of the defendant’s income, and the length of time the parties lived together, than the assumptions of the plaintiff.

[72] The plaintiff submits that spousal support should be at the top of the range, based on her needs, means and circumstances. She emphasizes the fact that her two sons are living with her, and this increases her monthly expenses. Although she has not made a claim for child support, she relies on s. 15.2(6)(b) of the Divorce Act, which provides that a spousal support order should “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.”

[73] That submission depends, however, on the proposition that the plaintiff’s two sons continue to be children of the marriage. As they are both now well over the age of majority, they are not children of the marriage unless they come within the definition in s. 2 of the Divorce Act, namely:

"child of the marriage" means a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

[74] In Darlington v. Darlington (1997), 32 R.F.L. (4th) 406 (B.C.C.A.) the court held at para. 16 that the burden of proof lies on the party asserting that a child over 19 years remains a child of the marriage. In the present case, the plaintiff led no medical evidence to establish that either of her sons are unable to withdraw from her care or are otherwise unable to obtain the necessaries of life.

[75] Even if one or both of the plaintiff’s sons were still a child of the marriage, it would be unfair to require the defendant to bear the entire burden of their support without also looking into the obligation of the boys’ natural father: H.(U.V.) v. H.(M.W.), 2008 BCCA 177. The evidence before me is that he stopped paying child support in 2004.

[76] I am unable to conclude, therefore, that there is a legitimate basis for awarding spousal support at the top of the range suggested by the Spousal Support Advisory Guidelines.

[77] In my view, the quantum suggested by the defendant is fair, and perhaps generous, given that it is based on the questionable assumption that the plaintiff can earn no income. Even by her own evidence, she expects to be earning $1,000 per month from her business within the next year.

[78] Accordingly, there will be an order that the defendant pay spousal support to the plaintiff in the amount of $6,597 per month, commencing January 17, 2008. That date was requested by the defendant, because it will simplify the parties’ tax situation. As the defendant has been paying $4,600 per month for the first 4 months of this year, I fix the arrears that have accrued from January to April 2008 at $7,988, which shall be payable at the rate of $1,000 per month commencing May 17, 2008 until fully paid.

[79] The order for spousal support is of indefinite duration, but either party is at liberty to seek a review upon the defendant’s retirement from Air Canada. By that time, the plaintiff should be earning at least $12,000 annual income of her own, either from her Nikken business, as she now anticipates, or from some other endeavour if she decides it would be more profitable for her to direct her energies elsewhere.

Security

[80] The only remaining issue is the plaintiff’s request that the order for support be secured for her lifetime. She asks that the support order be made binding on the defendant’s estate.

[81] In Ripley v. Ripley (1991), 30 R.F.L. (3d) 41 (B.C.C.A.) and again in Hillhouse v. Hillhouse (1992), 43 R.F.L. (3d) 266 (B.C.C.A.), our Court of Appeal noted that the question of whether there is jurisdiction to make a support order enforceable after the death of the payor spouse is not free from doubt. Although such an order was made in Leckie v. Leckie, [1995] B.C.J. No. 671 (QL) (S.C.), that case made no mention of Ripley or Hillhouse.

[82] More recently, in Waters v. Conrod, 2007 BCCA 230, the Court of Appeal discussed the correct approach to this issue at paras. 33-34:

33 The parties do not dispute the court's jurisdiction to secure an order for support enforceable after the payor's death in the proper circumstances. Rather, they disagree as to whether the circumstances of the instant case warrant such an order. In Jackh v. Jackh (1980), [1981] 1 W.W.R. 481 (B.C.S.C.), cited by this Court in Hillhouse v. Hillhouse (1992), 74 B.C.L.R. (2d) 230 at paras. 54-55, the court remarked as follows, at 499:

A number of cases have held that the court has power under s. 11 of the Divorce Act, R.S.C. 1970, c. D-8, to make maintenance orders which extend beyond the lifetime of the spouse ordered to pay maintenance. Three reported cases are: Huff v. Huff (1971), 4 R.F.L. 258, 16 D.L.R. (3d) 584 at 587 (Man. C.A.); Snively v. Snively, [1971] 3 O.R. 132, 6 R.F.L. 75, 19 D.L.R. (3d) 628 (Co. Ct.); Sandeford v. Sandeford (1977), 2 R.F.L. (2d) 330 (B.C.S.C.).

In Sandeford v. Sandeford, Spencer L.J.S.C. observed that the question of the court's jurisdiction to direct maintenance payments against the estate is not yet free from doubt and he went on to deal with the matter on the alternative course based on Cotton v. Cotton (1966), 58 W.W.R. 65, 60 D.L.R. (2d) 117 (B.C.C.A.).

Assuming that the power exists, I do not consider this to be an appropriate case in which to exercise it. The cases in which it has been exercised appear to have had the common elements of a wife in extremely necessitous circumstances and a husband in relatively affluent circumstances with assets available which could conveniently be charged with the payments ....

[Emphasis added]

34 In Ripley v. Ripley (1991), 52 B.C.L.R. (2d) 362, this Court accepted Jackh as "the correct approach". In rejecting the submission that the maintenance award should be secured, the Court considered that the payee was not in extreme necessitous circumstances, and that the payor had responsibilities to both a second spouse and his child by that second spouse.

[83] In the present case, although the defendant has enjoyed a comfortable income, he has not amassed a large estate. He now has a new family. As well, I do not find that the plaintiff is in extremely necessitous circumstances. I do not consider this to be an appropriate case for an order that the spousal support obligation should bind his estate after his death, even if jurisdiction to make such an order exists.

[84] The defendant has offered, however, to use his Investors Group RRSP as security until he is 71, and has agreed to such an order. Accordingly, it is ordered that as security for spousal support and the plaintiff’s share of the SPP portion of the pension, the defendant shall, until he reaches his 71st birthday, not dispose of his share of his RRSP with the Investors Group and shall name the plaintiff as the beneficiary of that RRSP.

Conclusion

[85] Apart from the orders set out above, all other claims and counterclaims are dismissed.

[86] The parties may speak to costs if they cannot agree on the appropriate order.

The Honourable Mr. Justice W. F. Ehrcke

Citation:	*Burridge v. Burridge,*
	2008 BCSC 588