[1] After a marriage of almost twenty years Dr. and Mrs. Imrie were divorced in July 1998. At the time of the divorce no orders were made pursuant to sections 15.1 or 15.2 of the Divorce Act, R.S.C. 1985, c.3 (2^nd Supp.), concerning child or spousal support as the parties had agreed to these matters in an interim separation agreement dated April 30, 1997, and a separation agreement dated April 28, 1998.

[2] The agreement on child support was made immediately prior to the coming into force of the Child Support Guidelines and the child support payments of $1300 per month for each of the two children were taxable to Mrs. Imrie and deductible by Dr. Imrie.

[3] In this action Mrs. Imrie seeks child support pursuant to the Guidelines for the child of the marriage who resides with her, Sarah Imrie, born May 28, 1985. The parties agree that they will have joint custody and guardianship of Sarah Imrie and of their son, Douglas Imrie, born January 9, 1990, who now resides with his father. While the parties also agree that each will have generous access to the child who resides with the other parent, some definition of that access is required and will be considered below.

[4] By way of counterclaim, Dr. Imrie seeks an order reviewing, varying and reducing the spousal maintenance payable by him to Mrs. Imrie and an order imputing income to Mrs. Imrie pursuant to s.19 of the Guidelines.

[5] The April 28, 1998, agreement was amended June 15, 1999. The amendments included a variation of the spousal support payable to Mrs. Imrie and a provision that the quantum of spousal support would be "completely reassessed on October 1, 2001". While at the trial of this action both parties agreed that the court should carry out that review, the court's jurisdiction to do so requires some consideration.

[6] At trial the parties consented to an amendment to the counterclaim that would permit the defendant to seek an order to reduce spousal support pursuant to the Divorce Act, or pursuant to the terms of the parties' agreements. It is to be noted that s.15.2(1) of the Divorce Act permits a court "on application by either or both spouses" to make an order for spousal support.

[7] Payne on Divorce, 4^th ed. (Toronto: Carswell, 1996) states at p. 114 that, "[a]n application under section 15 of the Divorce Act is not limited to a dependent spouse."(see also Strong v. Strong (1986), 5 R.F.L. (3d) 209 (Ont. H.C.)).

[8] I am therefore satisfied that the court does have jurisdiction to consider Dr. Imrie's application for an order reviewing and reducing the amount of spousal support.

[9] The parties were married in Ontario in December 1978. Shortly after their marriage they moved to Ireland where Dr. Imrie undertook his medical training. They returned to Ontario during the summer breaks and Mrs. Imrie would return to her former employment in a florist shop. During part of the time that the couple resided in Ireland, Mrs. Imrie worked in an accounting office.

[10] Following medical school in Ireland, Dr. Imrie carried out his residency at a hospital in Toronto for two years and Mrs. Imrie continued some work in floral design. Their daughter was born in May 1985. Shortly after they moved to London, Ontario, where Dr. Imrie carried out a further residency. In 1988 Dr. Imrie was offered a position at a Vancouver hospital and the family moved to North Vancouver. Their son was born in January 1990.

[11] After the move to North Vancouver Mrs. Imrie did not work outside the home but did carry out bookkeeping work for her husband's medical practice. It was not full time work and most of it was done at home in the evenings. Mrs. Imrie also acted as a volunteer in fund raising events for the hospital for a period of seven or eight years.

[12] From the age of ten Mrs. Imrie has suffered Type I diabetes which has had a significant effect on her health. The medical evidence indicates that Mrs. Imrie has had frequent hypoglycemic reactions which have occurred suddenly in situations where she was not aware of their onset. She has been assisted in her condition by an insulin infusion pump since 1998. Her condition is adversely affected by stress. She has also had other health problems described in medical reports and records in evidence in the trial. They include hypothyroidism and 1999 surgeries for a carpal tunnel condition in each hand.

[13] Dr. and Mrs. Imrie separated in March 1997. They made an interim separation agreement in April 1997. With the assistance of a mediator they achieved a fuller agreement on April 28, 1998. A short supplementary agreement was made November 16, 1998 and a further amendment was made June 15, 1999.

[14] The April 28, 1998, separation agreement contemplated that the primary residence of the children would be with Mrs. Imrie. Paragraph 2.02 of the agreement states:

[15] Spousal support for Mrs. Imrie was set at $4584 per month reducing to $4000 per month beginning September 15, 1999. It was to be "completely reassessed" in January 2003. The total family assets were valued at $538,558 and divided approximately 60/40 in favour of the wife.

[16] Child support was continued as provided in the April 1997 interim agreement in the amount of $1300 per month for each child together with medical and dental coverage which Dr. Imrie agreed to continue. The April 1997 agreement stated Dr. Imrie's income "for the purposes of Guideline calculations" at $194,353. The April 1998 agreement stated that Dr. Imrie had employment income of $210,000 for the year ending December 31, 1996 and approximately $260,000 for the year ending December 31, 1997.

[17] The amending agreement in June 1999 followed Mrs. Imrie's decision to move to London, Ontario, a move opposed by Dr. Imrie. Sarah moved with her mother. Douglas remained in British Columbia with his father. The amending agreement set out extensive arrangements for access to the children. Dr. Imrie was to continue child support payments for Sarah. Spousal support for Mrs. Imrie was reduced to $3500 per month commencing September 1, 1999, with the amount to be "completely reassessed" on October 1, 2001. Douglas subsequently moved to Ontario to live with his mother but returned to live with his father in March 2001.

[18] Mrs. Imrie moved to Ontario to be close to family who reside there. It was her view that, given the nature of her diabetic condition that she needed to have an adult residing with her should emergencies arise. For that reason Mrs. Imrie and her mother jointly purchased a new home in London, Ontario. The home is designed such that Mrs. Imrie and the children occupy one portion of the home and Mrs. Imrie's mother a separate portion. Mrs. Imrie's mother contributed cash for one-half of the purchase price. Mrs. Imrie contributed $30,000 cash and financed the balance of her half interest with a mortgage. The home has a value of approximately $400,000.

[19] While living in Ontario Mrs. Imrie's source of income has primarily been the spousal support paid by Dr. Imrie. She has received an inheritance from her grandfather's estate which was used in the purchase of the home and her mother has loaned her money as well. Mrs. Imrie has had only minimum employment income in Ontario. She is presently providing child care to two children and earning $240 per month. She has taken two pottery courses and is also attempting to turn her acrylic artwork into an income producing activity.

[20] In April 1999 Sarah Imrie was diagnosed as having diabetes. That condition made it necessary for Mrs. Imrie to provide additional care for Sarah, particularly throughout 2000 when Sarah missed a good portion of her school year.

[21] Dr. Imrie continues his specialist medical practice in North Vancouver. Following the parties' separation he maintained regular access to the children. After Mrs. Imrie moved to Ontario, Dr. Imrie has maintained regular visits with the children both in North Vancouver and Ontario on a schedule set out in the Amending Agreement of June 15, 1999. Douglas returned to North Vancouver to live with him in March 2001

[22] He remarried in July 1999. His wife has a 22 year old daughter who is a student and who resides in a basement suite of the couple's home. Dr. Imrie's wife is employed by his cardiology clinic as a cardiologist technician and by Dr. Imrie's professional corporation to do bookkeeping on a part time basis. Her income in 2000 was approximately $42,400 but may be less in 2001.

[23] Dr. Imrie's accountant gave evidence in the trial and estimated Dr. Imrie's 2000 income for Child Support Guideline purposes to be $248,863. Counsel for Mrs. Imrie challenged certain expense deductions claimed by Dr. Imrie and submits that the amount should be $259,666. Counsel referred to s. 18(12) of the Income Tax Act, R.S.C. 1985, c. 1 (5^th suppl.) dealing with a deduction for "work space" in Dr. Imrie's residence. In my view, the claimed deduction of $4,680 would not appear to be available to Dr. Imrie and should be added back to his income altering the total to $253,543.

[24] The issues that must be addressed are:

1. Is Dr. Imrie obliged to pay child support for Sarah in the amount set out in the Child Support Guidelines?

2. Is Mrs. Imrie obliged to pay child support for Douglas under the Child Support Guidelines? If so, should income be imputed to her pursuant to section 19 of the Guidelines?

3. What revisions are required concerning arrangements for access to the children?

4. What spousal support is Dr. Imrie obliged to pay to Mrs. Imrie?

[25] No orders concerning child support have yet been made. Until now the parties have relied upon the child support provisions of the separation agreement as amended. The application therefore must be considered under section 15.1 and not section 17 of the Divorce Act.

[26] Counsel for Dr. Imrie submits that the separation agreements contain "special provisions" that directly or indirectly benefit the children and that the court should order child support that is lower than provided under the Guidelines. Discretion to do so is provided under section 15.1(5)(b) of the Divorce Act if the court is satisfied "that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions "

[27] Counsel for Dr. Imrie submits that special provisions are present in the separation agreements in three ways:

1. through a reapportionment of the family assets which permitted Mrs. Imrie to purchase a residence on the North Shore where the children would be closer to their father;

2. through payments from a family trust of up to $20,000 per year for special activities for the children;

3. in the obligation of Dr. Imrie to maintain life insurance coverage in which the children were named as beneficiaries.

[28] In my view it is significant that the reapportionment paragraph 24.01 of the separation agreement refers not only to "the Husband's desire to have the children's primary residence on the North Shore of the Lower Mainland" but also to "the need of the Wife to become economically independent and self-sufficient". Under that provision Mrs. Imrie gained $50,000 more than she would have received under an equal division of assets. This is not an uncommon reapportionment in favour of the spouse with whom the children of the marriage are to reside after divorce.

[29] I note that the family trust was wound up in 1999.

[30] The Guideline basic table amount for an income of $253,543 in relation to one child is $1742 per month. It is substantially higher than the $1300 provided for in the separation agreement.

[31] Even if it can be said that the provisions identified by counsel for Dr. Imrie are "special", I do not consider that they are of a financial value such that the need for ongoing child support is replaced or reduced (see Fung-Sunter v. Fabian, (1999) 69 B.C.L.R. (3d) 18, B.C.J. No. 1263 (C.A.). In my view it would not be inequitable to Dr. Imrie to require him to pay child support for Sarah in accordance with the applicable Guidelines.

[32] As a result, I conclude that Mrs. Imrie is entitled to an order that Dr. Imrie pay her child support for Sarah based upon a Guideline income of $253,543. Mrs. Imrie also seeks an order that Dr. Imrie continue medical and dental insurance coverage for Sarah, and pay pursuant to s. 7 of the Guidelines his proportionate share of the medical and dental coverage which exceeds the insurance reimbursement. It is my understanding that Dr. Imrie has been providing for this coverage. In any event, Mrs. Imrie is entitled to those orders. In addition, Dr. Imrie will be required to submit the medical and dental insurance claims promptly and forward the proceeds promptly upon receipt. He will also be required to pay promptly his portion of the uninsured medical and dental expenses for Sarah.

[33] Section 8 of the Guidelines provides:

The significance of s. 8 in this action turns essentially on whether income is to be imputed to Mrs. Imrie as is provided for in s. 19 of the Guidelines. Absent such imputation, Mrs. Imrie's income for Guideline purposes is very low.

[34] Counsel for Dr. Imrie submits that Mrs. Imrie is capable of undertaking employment and, has skills which she may use in such employment, but has intentionally refrained from seeking employment that would utilize the skills she possesses. For that reason, he submits that income of $36,000 per year should be imputed to her.

[35] Apart from bookkeeping work performed by Mrs. Imrie in connection with Dr. Imrie's professional corporation in North Vancouver, Mrs. Imrie did not work outside the home after 1984. Her pre-1984 employment was in floral design and flower shops and in bookkeeping in Ireland while her husband was in medical school there.

[36] An expert's report and a deposition were provided by Jan M. Brooks, a Canadian Certified Rehabilitation Professional in London, Ontario. The report identified the skills developed by Mrs. Imrie from her work and volunteer experience and the transferability of those skills to a variety of occupations in which employment opportunities have been present in London. It concluded that "there are currently a variety of employment opportunities suitable for Ms. Imrie in London and area having regard to her education, employment history, self-expressed occupational interests and transferable skills".

[37] Impacting upon the pursuit of the potential opportunities has been Mrs. Imrie's medical problems and the limitations they have placed upon her. A medical report from Dr. Hugh Tildesley, called by Dr. Imrie as a specialist in internal medicine and endocrinology, also noted:

[38] In cross-examination Dr. Tildesley agreed that Mrs. Imrie was "the furthest thing from a malingerer".

[39] Counsel for Dr. Imrie submits that Mrs. Imrie's express intention not to seek employment using her bookkeeping experience as well as the absence of evidence that she had sought employment since moving to Ontario supports the imputing of income to Mrs. Imrie. In addition, counsel for Dr. Imrie submits that there is ample space for Mrs. Imrie to develop a rental suite in the basement of her new home and that this would be a reasonable use of her property to generate income.

[40] In discussing the legal principles that relate to the concept of imputing income under section 19 of the Guidelines, Martinson J. in Hanson v. Hanson [1999] B.C.J. No. 2532 (S.C.) stated at para. 8:

[41] Section 19(1)(a) of the Guidelines recognizes, however, that a finding of intentional unemployment may not be an appropriate basis for imputing income "where the under-employment or unemployment is required by the needs of a child of the marriage...or by the reasonable educational or health needs of the spouse".

[42] In my view, the circumstances in which it is appropriate to impute income to Mrs. Imrie are not present at this time. Mrs. Imrie moved to Ontario in mid-1999. I am satisfied that the move was made to secure an arrangement whereby there would be an adult present to attend to her if an emergency medical need arose. Such emergencies had arisen on more than one occasion in North Vancouver in 1998 and 1999. I conclude that the evidence also supports a finding that the move for this and additional reasons offered a prospect of reduced stress upon Mrs. Imrie, stress being a factor which exacerbated her diabetic condition. In noting Mrs. Imrie's diabetic condition I am not suggesting that the presence of diabetes alone makes her unable to pursue employment. What is of concern is that the presence of the hypoglycemic unawareness has compounded Mrs. Imrie's condition.

[43] The move to Ontario entailed the acquisition of a new home and an adjustment for Mrs. Imrie and her mother in taking up a joint residence. In addition, Sarah's development of diabetes required additional care from Mrs. Imrie, particularly in the early stages after diagnosis. Added to this was Mrs. Imrie's need for carpal tunnel surgery. While this surgery may not in itself have been a major concern, it was one more factor impacting upon Mrs. Imrie's move to Ontario. The cumulative effect of these factors makes a finding that Mrs. Imrie was intentionally unemployed and the imputing of income to Mrs. Imrie inappropriate.

[44] As a result, I would find Mrs. Imrie's Guideline income for purposes of s. 8 of the Guidelines to be the small amount she has earned from investment income, sale of her artwork and child care. If counsel are unable to agree on that amount they may make written submissions.

[45] The parties have agreed on most of the details of their access to the children. It is agreed that each parent will have generous and specified access to the child residing with the other parent. Counsel for Mrs. Imrie has set out her proposals for access in Tab 2 of the Plaintiff's Opening. Dr. Imrie's counsel has set out his proposals in the Defendant's Counterclaim. They are for the most part similar proposals and I propose to deal with those matters where the parties are not in agreement.

[46] The parties differ on their proposals for the Christmas vacation. Dr. Imrie's proposal would have the children spend one-half of the vacation period with each parent. It has the advantage of the children being together with each other for the whole of the vacation. For that reason Dr. Imrie's proposal should be adopted.

[47] The parties also differ on their proposals for the Spring Vacation. The difference is on what arrangement should be made in a year when the Spring Vacation in Ontario coincides with that of British Columbia. In my view Dr. Imrie's proposal, while creating a potential for the children to be together if the vacation coincides, becomes complex in subsequent years. Mrs. Imrie's proposal should be adopted.

[48] While the parties have set out somewhat different proposals for summer vacation, Dr. Imrie is willing to adopt Mrs. Imrie's proposal that each child travel to the home of the other parent for a period of six weeks, Sarah to Vancouver for the first six weeks of the summer vacation and Douglas to Ontario for the last six weeks. This proposal will, therefore, be adopted.

[49] Each party proposes additional access times. Although the proposals differ, they recognize that such visits are desirable. Mrs. Imrie's proposal appears to limit the visits to occasions when she is in British Columbia or Dr. Imrie is in Ontario and to occasions when the children would not miss school. Dr. Imrie does not mention such restrictions. While liberal access is the objective, for purposes of this order there will be additional times for Dr. Imrie to have access to Sarah if he is in Ontario and Mrs. Imrie to have access to Douglas if she is in British Columbia. Each visit will not exceed 5 days and will not entail the children's absence from school for more than two days of each visit.

[50] The parties also agree that there will be such other access visits as they may agree upon.

[51] In addition, the parties agree on a "Communication" provision which will provide for access by telephone, e-mail, video, internet and mail and a "Removal from Province" provision concerning vacation travel outside of Ontario or British Columbia.

[52] The parties also agree that because Sarah is now 16 years old that they will carefully consider her views and wishes insofar as they relate to access in relation to her.

[53] The parties disagree on who should bear the cost of the children's travel. Dr. Imrie takes the position that because Sarah has been removed from her home in British Columbia he should not be required to pay the cost of her transportation to British Columbia. Mrs. Imrie proposes that she should pay for Douglas' travel to Ontario and Dr. Imrie for Sarah's travel to British Columbia. I have considered the cases referred to by counsel for Dr. Imrie. In my view the appropriate order is that Mrs. Imrie will be responsible for Douglas' airfare and Dr. Imrie for Sarah's airfare.

[54] The parties may by agreement in writing alter the provisions relating to access set out above.

[55] Dr. Imrie raises one further matter concerning travel expenses related to access. In September 2000 he incurred a cost of $682.12 for Douglas' airfare to Ontario for Christmas 2000. It is his position that this expense was an obligation of Mrs. Imrie and remains unpaid. The position does not appear to be disputed. While there is some question as to whether this claim can be said to come within the scope of the pleadings, in the circumstances it is appropriate to find that it is a debt sufficiently related to these proceedings that Dr. Imrie is entitled to deduct it from any amounts otherwise owing to Mrs. Imrie.

[56] It is Dr. Imrie's position that the amount of spousal support of Mrs. Imrie should be reduced from the present amount of $3500 that has been payable under the separation agreement. His position on this issue is closely related to his position on child support. In the context of the child support application the issue was whether income should be imputed to Mrs. Imrie. In the context of spousal support the issue is whether Mrs. Imrie has made any reasonable effort toward self-sufficiency and, if not, what bearing such a failure to do so should have upon the amount of spousal support Dr. Imrie should be required to pay.

[57] As I have noted above, the consideration of spousal support in this action must be made pursuant to s. 15.2 of the Divorce Act. Section 15.2(4) requires the court to take into consideration:

[58] Earlier in this decision I noted that the parties were married for almost twenty years and identified the functions that each of them performed during cohabitation. The separation agreements they made provided for monthly spousal support of $4584 reducing to $3500 on September 1, 1999. The quantum of maintenance was to be "completely reassessed" on October 1, 2001.

[59] The objectives of a spousal support order are set out in section 15.2(6). The manner in which they are to be considered is set out in Moge v. Moge, [1992] 3 S.C.R. 813 (S.C.C.). Section 15.2(6) provides:

(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 time.

[60] Dr. Imrie does not suggest that Mrs. Imrie is not in need of some measure of spousal support. Counsel for Dr. Imrie submits that the court should consider support of $3500 for a period of 4 months, reducing to $2500, then $1500, then $1000 over a period of three months. Such an order would permit Mrs. Imrie to gain employment that would draw upon the "transferable skills" she possesses and to earn income in the range of $34,000 to $36,000.

[61] In my view such a position places far too much emphasis on the promotion of self-sufficiency for Mrs. Imrie and fails to recognize the compensatory nature of the support to which she is entitled. The marriage was a long marriage. In the course of the marriage the functions performed by Mrs. Imrie and the moves which the parties made to Ireland, within Ontario and then to British Columbia were carried out to facilitate the establishing of Dr. Imrie's successful career. I am satisfied that in this relationship Dr. Imrie was assisted in gaining economic advantages and that Mrs. Imrie suffered economic disadvantages as a result of the marriage.

[62] It is clear from Dr. Imrie's Property and Financial Statement that he has the ability to pay spousal support. It is equally clear that Mrs. Imrie is in need of financial support and suffers economic hardship from the breakdown of the marriage.

[63] The details of Dr. Imrie's income are set out above. While there is some evidence that his income could be reduced when a new cardiologist takes up practice in North Vancouver, such evidence is speculative and it is likely that Dr. Imrie will continue to earn a substantial income in the future.

[64] In Rogers v. Rogers, (1999), 67 B.C.L.R. (3d) 315 B.C.J. No. 849, 1999 B.C.C.A. 238 Esson J. A. considered the objective of self-sufficiency. At para. 46 he stated:

[65] What will constitute "reasonable efforts" will depend on a number of circumstances. For the reasons I have declined to impute income to Mrs. Imrie for child support purposes, I conclude that there has been an insufficient opportunity for her to seek to achieve the goal of self-sufficiency. In reaching this conclusion I am not suggesting that Mrs. Imrie does not have such an obligation. I am satisfied, however, that as a result of the economic loss she sustained from the breakdown of the marriage and of her need for financial support that Mrs. Imrie is entitled to an order that Dr. Imrie pay her spousal support.

[66] Taking into consideration the separation agreements that the parties have made since their separation and the financial circumstances of both parties, I conclude that the appropriate amount of support is the amount that the parties earlier agreed to, that is $3500 per month.

Other matters

[67] Dr. Imrie seeks an order reducing the amount of life insurance to be provided by him as security for spousal and child support pursuant to the parties' agreements of April 28, 1998 and June 15, 1999. While it appears that Dr. Imrie holds a term policy for $800,000, the agreement requires him to hold insurance "in an amount sufficient to replace his anticipated spousal and child support obligation". Little or no evidence was adduced on what would be a reasonable amount of insurance to be maintained. It is clear that Dr. Imrie no longer has a child support obligation for Douglas. It would appear that there is at least this basis for reducing the amount of life insurance to be held and it may well be that the amount relating to Mrs. Imrie and Sarah could be reduced as well. If counsel cannot agree on an appropriate reduced amount and they wish the court to determine the matter they may make written submissions.

[68] Mrs. Imrie seeks an order requiring Dr. Imrie to provide her with post-dated cheques for the child and spousal support he is required to pay. Dr. Imrie does not oppose that order.

[69] The parties also agree that there should be an order that except for those matters contained in the separation agreements which have been altered by the decisions in this action all other provisions of the agreements will continue in force.

[70] No submissions were made on costs. If counsel cannot agree on this issue they may make submissions.

"Bryan F. Ralph, J."
The Honourable Mr. Justice Bryan F. Ralph