J.M. v. L.D.M.,


2008 BCSC 1235

Date: 20080411
Docket: E013106
Registry: Vancouver







Before: The Honourable Madam Justice Lynn Smith

Oral Reasons for Judgment

In Chambers
April 11, 2008

Counsel for Plaintiff

G.A. Lang
H. Dale


Counsel for Defendant

P.M. Daykin

Place of Trial/Hearing:

Vancouver, B.C.


[1]                THE COURT:  This is an application by the plaintiff, J.M., for review of a spousal support order.

[2]                The parties separated in 2001.  The terms of the settlement between them were set out in a consent order pronounced by Mr. Justice Harvey on December 2, 2002.  They were to share joint custody and joint guardianship of the children.  The family assets were divided, with J.M. retaining the matrimonial home and L.D.M. his practice and other financial assets.  The Federal Child Support Guidelines income of the defendant, L.D.M., was found to be $237,000 per year, and he was to pay child support of $3,000 per month so long as each child was a child of the marriage, and spousal support of $4,500 per month commencing December 1, 2002, with a review five years later.  The post-secondary educational expenses of the children were to be shared, proportionate to the parties’ Guidelines incomes, but the defendant was to pay the S… School tuition for one child and any private school expenses relating to a second child.  The parties were to jointly manage for the children’s benefit two National Bank accounts.  It was provided that in order to invoke a review, neither party would be required to demonstrate a material change in circumstances.  An order for divorce was also granted.

[3]                This is an application to review the relevant circumstances of the parties to determine whether an increase, or decrease, in spousal support is warranted.  It is not a variation application, and it is not necessary to establish a material change of circumstances:  Schmidt v. Schmidt, 1999 BCCA 701, 71 B.C.L.R. (3d) 113.

[4]                This review is to be conducted as a fresh application for spousal support under s. 15.2 of the Divorce Act, R.S.C. 1985, c. 3 (Monroe v. Monroe, 2006 BCSC 1758).  Accordingly, the court must take into consideration, as set out in s. 15.2(4) of the Divorce Act:  the condition, means, needs and other circumstances of each spouse including the length of cohabitation, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support.  The objectives of an order for spousal support as described in s. 15.2(6) of the Divorce Act must also be taken into consideration:  recognition of any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; apportionment of any financial consequences arising from the care of any child of the marriage over and above support for the child; relief of any economic hardship of the spouses arising from the breakdown of the marriage; and promotion of economic self-sufficiency of each spouse within a reasonable period of time.

[5]                The overarching question is, what is an appropriate order for spousal support, given the factors in s. 15.2(4) and the objectives for spousal support orders described in s. 15.2(6) of the Divorce Act?

[6]                The specific issues raised by the parties on this application are:  What is the defendant’s income?  What is the plaintiff’s income, including any amount that should be imputed to her?  To what extent should the order for spousal support take into account the plaintiff’s receipt of an award for damages for personal injuries received since the consent order?  Do the Spousal Support Advisory Guidelines: A Draft Proposal, (Ottawa, Dept. of Justice: 2005) [the “SSAG”] apply in these circumstances and, if so, what do those Guidelines indicate?

[7]                By way of background, the parties began cohabiting in 1978 and married in 1983.  They separated in 2001; thus, it was essentially a 23-year marriage.  The plaintiff is 49 years of age and the defendant 61.  The three children of the marriage (J.U.M., C.M. and Z.M.) were born in 1983, 1986 and 1987, respectively.

[8]                Prior to the marriage, the plaintiff had some business experience as well as a Bachelor of Arts degree and one year toward a Law degree.  She says that when the parties commenced cohabitation in 1978 she was 20 and the defendant was 31.  She deposes that the defendant wanted to have children as soon as possible, and therefore she discontinued her studies and devoted herself to becoming a mother and homemaker.  She says that she felt confident in doing so because the defendant was a successful professional, they both brought real estate assets into the marriage, and they both expected that they would be able to lead an affluent lifestyle (similar to the lifestyle she had enjoyed in her childhood, growing up in West Point Grey).  She did not work outside the home during the marriage.

[9]                The defendant worked throughout the marriage in his profession, earning income in the range of $200,000 a year or more.

[10]            There is evidence that the plaintiff and the defendant both brought real estate assets into the marriage and that the plaintiff used funds from her inheritance to support the purchase of the matrimonial home and other assets.  The division of family assets, according to the defendant in his affidavit of December 4, 2007, was such as to leave the plaintiff with $1,306,900 in value (including the matrimonial home which was valued at $1,100,000) and the defendant with $1,201,900 in value (including the corporation and the couple’s RRSPs).

[11]            The parties lived well during the marriage.  During the later years, according to the defendant, the cash flow for the family of five was about $12,000 per month.  According to the plaintiff, the estimated monthly living expenses for the family, excluding school tuition and holidays, were $12,000 to $14,000 per month. 

[12]            When the parties separated in January 2001 the plaintiff was 43.  It appears that some interim spousal support was paid by the defendant between then and the consent order in December 2002.

[13]            At the time that the parties agreed to the consent order of December 2, 2002, the three children were all still in school and were primarily or wholly living with their mother, the plaintiff.  J.M. had been in a motor vehicle accident in May 2000, during the marriage, but had not yet received compensation for her injuries.  At the time of the consent order, J.M. was unable to work because of the motor vehicle accident injuries, her responsibilities for the children, and depression.  She settled her claim for damages in the accident in November 2004, receiving about $100,000 net of legal fees and disbursements.

[14]            The plaintiff had begun a Masters program at U.B.C. in 2000, and recommenced it in 2003.  However, she was forced to discontinue her studies in 2004 because of medical problems, which I will refer to later. 

[15]            On August 6, 2004, Mr. Justice Rice made an order dividing the parties’ household effects, including works of art and chattels located at the Naramata property.  He also ordered that the defendant’s Guidelines income be confirmed at $237,000 per annum (the plaintiff had sought an increase in child support, arguing that the defendant’s income had increased), he reduced the child support payments to $2,578 since C.M. had gone to live with L.D.M., and ordered L.D.M. to pay 77% of J.U.M.’s post-secondary educational expenses and to reimburse J.M. about $9,500 she had already spent for J.U.M. to attend university.  He ordered that the plaintiff consult with the defendant and keep him informed on expenditures as they occurred.

[16]            When C.M. moved back to the plaintiff’s home in November 2004, the parties agreed on a consent order, entered January 15, 2005, setting the amount of child support the defendant was to pay for so long as the children or any of them “remain either residing with or in the charge of” the plaintiff.

[17]            On October 19, 2005, Madam Justice Loo heard applications from both parties.  C.M. had turned 19 and was living with her father.  J.U.M. had returned from C… University and was attending B… University and living with his mother.  Z.M. was attending W… University.  The plaintiff sought an order for increased child support due to an increase in the defendant’s income.  The defendant sought orders relating to the children’s National Bank account.  Loo J. made an order finding that the defendant’s Guidelines income was $237,000 and ordering the plaintiff to provide information regarding the National Bank account, to repay to each of the children a share of the amount the plaintiff had borrowed from that fund, and to hold a certain painting in trust until she had repaid those amounts.  She further ordered that the defendant pay to the plaintiff the base amount of Guidelines child support for Z.M. until he reached the age of 19, and then to pay that amount directly to Z.M. if he was living with the plaintiff or attending university, and made provision for the parties to divide Z.M.’s post-secondary expenses 77% to the defendant and 23% to the plaintiff.  Similar provision was made if J.U.M. was attending university and residing with the plaintiff.  Madam Justice Loo ordered that J.U.M. and Z.M. were to use a portion of their own money and inheritance to defray or contribute to their own clothing and spending money.  She dismissed the plaintiff’s application to increase the base amount of child support due to an alleged increase in the defendant’s Guidelines income and ordered costs to the defendant at Scale 3.

[18]            The current situation is as follows.

[19]            The plaintiff is still in the former matrimonial home, which is on a view lot in West Point Grey, with six bedrooms and about 2,400 square feet, not including the basement.  J.U.M. lives there with her.  He is 23, attending B… University and no longer dependent.  The defendant pays for J.U.M.’s educational expenses and contributes to his living expenses.  The defendant says that J.U.M. is planning to move to his own place and is likely to do so imminently.  C.M. is 21 and attending B… University.  The defendant deposes that C.M. is living with him; the plaintiff deposes that C.M. is living with her.  (It is not necessary for me to decide where C.M. is living.)  Z.M. is 21 and is in his third year of studies at W… University.  The defendant pays his proportionate share, that is 77%, of Z.M.’s educational and living expenses directly to him and says that Z.M.’s plan is to return to Vancouver for about two months this summer, spending one month with each parent.  The plaintiff says that at Christmas Z.M. came home and spent the entire time at her home.

[20]            In addition to the injuries suffered in the motor vehicle accident in 2000, which included fibromyalgia, the plaintiff also suffers from unrelated neurological disorders which were diagnosed in 2004.  Those disorders lead to neuropathic pain, progressive weakness and chronic fatigue.  Medical evidence produced by the plaintiff states that as a result of the neurological disorders she has a severe prolonged disability precluding her from seeking gainful employment and that treatment for these disorders is not possible.

[21]            The plaintiff wishes to stay in the matrimonial home, saying that it is in the area close to her childhood home where she has always lived (the West side of Vancouver), that she has a community of friends and support nearby, and that it will be a good place for her to be if she needs live-in care.

[22]            The plaintiff’s income in her November 2007 Financial Statement, aside from the spousal and child support she has been receiving, is stated to be net rental income of $3,200 (temporary), which I believe relates to the past rental of a basement suite in her house.  She has no other income, aside from spousal support and child support payments.  The plaintiff deposes that she is going into debt borrowing against her equity in the home.

[23]            J.M.’s expenses are stated to be $15,000 a month, including housing (mortgage, taxes and insurance) at $1,174, legal expenses at $1,666, food at $2,070, gardening at $450, and vacation at $200.  As well, included are house repairs and maintenance at $1,000, furnishings and equipment at $650, furnace and water heater at $1,000, and stove at $83.  The latter items relate to anticipated expenses amortized over the next five years.

[24]            J.M.’s home was appraised as of January 2, 2008 at $2,500,000.  J.M. has in addition a motor vehicle worth about $22,000 and household furnishings and art of unknown value.  She lists debts totalling $100,008.  She states that in the previous two years she has disposed of property worth $236,386.38, including art at $125,000, investments and GICs.

[25]            There was no evidence as to how J.M. used the $100,000 settlement in the personal injury action, but it is fair to infer that it was spent on living expenses.

[26]            The defendant does not suggest that he is other than in good health.  He deposes that he does not intend to continue working past the age of 65 and would like to retire within the next few years.

[27]            The defendant’s Financial Statement sworn October 12, 2007, shows his total Guidelines income before adjustments at $137,394, and his Guidelines income at $124,444.  However, Mr. Daykin conceded in his submissions that his client’s income is higher than that, and says it is in the range of $200,000 to $230,000 per year when the income to the defendant’s corporation is taken into account.

[28]            The defendant deposed that the $237,000 Guidelines income was agreed to by the parties in 2002 after he had made full disclosure of his income documents, and the plaintiff’s independent expert had reviewed the documents and rendered an opinion.  The defendant says in his affidavit no. 10 that his gross billings in the past four fiscal years have been:  2004 - $469,131; 2005 - $444,538; 2006 - $270,461; and 2007 - $407,196.  He states that the corporation pays him a salary of about $102,000 per year and that in addition it has some profit.  He says that in the past four years the total salary and pre-tax profit amounts have been:  2004 - $205,497; 2005 - $231,924; 2006 - $22,460 (resulting from a $79,401 loss in the firm); and 2007 - $191,808.  He deposes that in the fiscal year ending January 31, 2007, he drew approximately $229,000, including the salary component.

[29]            The defendant’s expenses of $20,381 per month include mortgage, tax and insurance payments totalling $1,645, transportation at $1,597, food at $600, vacation at $250, savings (RRSPs) at $1,500, and debt payments of $350, as well as the child support and spousal support payments.  In addition he states $2,200 per month living and educational expense payments for C.M., $1,000 school-related expenses for Z.M., gifts to the children of $125, and spousal support of $4,500.

[30]            After the separation, the defendant bought a home which he says is now worth about $2,000,000.  It was appraised on December 6, 2007, at $1,800,000.  He has a leased motor vehicle (a 2005 Mercedes-Benz), financial assets worth $350,265, pensions and RRSPs worth $1,028,292, and business interests (that is, the corporation) worth $671,155.  He also has furniture, household effects and collections of unstated value.  The defendant’s only listed debt is a mortgage on his home, at $160,000. 

[31]            The plaintiff’s position is that the defendant’s actual income is $278,000 to $350,000 per year.  She bases this on his stated expenses (which are at a minimum $244,000 per year), on the level of expenditures shown in his credit card and banking records, and on adding together his salary and his draws from the lfirm. 

[32]            The plaintiff deposes that the defendant will realize or has realized something like $400,000 under his mother’s will, that he personally or through his corporation holds financial assets worth over $2,000,000, and that she estimates his total net worth as between $6,000,000 and $8,000,000.

[33]            The defendant deposes that he received one-third of $670,000 under his mother’s will and used some of the money to retire debt, depositing the balance in his personal investment account at BMO Nesbitt Burns.  He says that at the date of the settlement between the parties the corporation owned two properties in Naramata, which he later sold, resulting in a capital gain.  He used the money to purchase his current home.  He says he had to pay a significant amount of corporate and personal taxes, and in order to reduce those taxes, the money was paid out to him over two fiscal years, resulting in large dividends being declared in his hands in fiscal 2004 and 2005.

[34]            Counsel for L.D.M. referred to the decisions of Rice J. on August 6, 2004, and Loo J. on October 19, 2005, dismissing the plaintiff’s applications for increased child support, in both of which the plaintiff had contended that L.D.M.’s income had increased.  He referred to the reasons of Madam Justice Loo at para. 32 in which she accepted L.D.M.’s explanation that his income had increased because of the one-time sale of the Naramata properties. 

[35]            I turn to the principles governing orders for spousal support.  Those principles are set down in the leading cases of Moge v. Moge, [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, [1999] 1 S.C.R. 420.  Entitlement to spousal support may be on a contractual, non-compensatory or compensatory basis.  Contractual support is not an issue here.  Compensatory support is premised on the economic disadvantage suffered by one spouse as a result of the marriage, for example, because of taking on the lion’s share of home-making and childcare responsibilities.  The purpose of compensatory support is to distribute equitably the economic consequences of the marriage.  As was stated in Moge at p. 864:

In so far as economic circumstances permit, the Act seeks to put the remainder of the family in as close a position as possible to the household before the marriage breakdown.

[36]            Non-compensatory support may be premised on need alone.  I refer to the Supreme Court of Canada decision in Bracklow at paras. 40 and 43:

While the statutes contemplate an obligation of support based on the grounds of contract and compensation, they do not confine the obligation to these grounds.  The “ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves” (Family Relations Act, s. 89(1)(d)), suggests a concern with need that transcends compensation or contract.  Even if a spouse has foregone no career opportunities or has not otherwise been handicapped by the marriage, the court is required to consider that spouse’s actual ability to fend for himself or herself and the effort that has been made to do so, including efforts after the marriage breakdown.  Similarly, “economic circumstances” (s. 89(1)(e)) invites broad consideration of all factors relating to the parties’ financial positions, not just those related to compensation.  The same may be said for the broad injunction of the Divorce Act that the court consider the “condition, means, needs and other circumstances of each spouse”.   To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown.  But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application.  Thus, the basic social obligation model may equally be seen to occupy the statutory provisions.

In summary, nothing in the Family Relations Act or the Divorce Act suggests that the only foundations for spousal support are compensatory.  Indeed, I find it difficult to confine the words of the statutes to this model.  It is true that in 1986 the Divorce Act was amended to place greater emphasis on compensation.  This represented a shift away “to some degree” from the “means and needs” approach of the 1968 ActPayne on Divorce, supra, at p. 267.  But while the focus of the Act may have shifted or broadened, it retains the older idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation.  Need alone may be enough.  More broadly, the legislation can be seen as a sensitive compromise of the two competing philosophies of marriage, marriage breakdown, and spousal support.

[emphasis added by McLachlin J.]

[37]            In determining the appropriate order, the court must consider all available means of both spouses, including a spouse’s capital assets where those assets are capable of generating income.

[38]            In Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413, the Supreme Court of Canada addressed this issue in the context of a case in which the parties had divided the assets roughly evenly, with the wife receiving about $370,000 including the matrimonial home, surrounding lands, household contents and RRSPs as her share, and the husband receiving $385,000, of which about $333,000 was attributable to his pension.  In addition, the husband agreed to pay the wife $3,200 a month in spousal support, indexed to the cost of living.  Seven years later, the husband had retired and applied to reduce the amount of spousal support, claiming that his retirement, reduced income and systematic depletion of his pension amounted to a material change in circumstances.  The wife had invested her assets wisely and they were by then worth $493,000.  The Ontario Court (General Division) reduced spousal support to $950 per month, unindexed.  The Ontario Court of Appeal allowed an appeal and raised the amount to $2,000 a month, indexed.  The Supreme Court of Canada reinstated the original order, varying it so that it was indexed.

[39]            Major J. for the majority stated at paras. 54 and 58-60:

I agree with Czutrin J.’s reasons in Shadbolt and Professor McLeod’s comments in annotation to that case.  When a pension is dealt with by the lump-sum method, the pension-holding spouse (here the husband) must transfer real assets to the payee spouse (here the wife) in order to equalize matrimonial property.  The wife can use these real assets immediately.  Under a compensatory spousal support order or agreement, the wife has an obligation to use these assets in an income-producing way.  She need not dedicate the equalization assets to investment immediately on receiving them; however, she must use them to generate income when the pension-holding spouse retires.  The ideal would be if the payee spouse generated sufficient income or savings from her capital assets to equal the payor spouse’s pension income.  In any event, the payee spouse must use the assets received on equalization to create a “pension” to provide for her future support.

The obligation of the payee spouse to generate investment income from the assets that she received on equalization is not an onerous one.  It is not predicated upon insensitive standards on how the payee spouse should have managed her finances from the point of separation.  Nor does it require investment-savvy decisions, premised upon an extensive knowledge of the marketplace.  The obligation on the payee spouse to generate income from her assets would be satisfied by investing in a capital depleting income fund which would provide a regular annual income.

When spousal support plays a compensatory role on marriage breakdown, it may be unreasonable to expect the payee spouse to generate investment income from the matrimonial home.  As far as is practicable, the support payments should provide a level of income sufficient to maintain a lifestyle that is comparable to that enjoyed during the marriage.  The ability to remain in the matrimonial home usually assists the payee spouse and the children in maintaining their previous lifestyle.

Each case depends on its own facts.  Generally, the payee spouse would not be expected to sell or leave the matrimonial home, particularly if there are dependent children.  However, in cases where the support order is based mostly on need as opposed to compensation, different considerations apply.  It is not impossible to envisage circumstances where the value of the family home has become disproportionate to the means of the parties so that equity requires that it be sold and replaced appropriately.  Such considerations do not arise in this appeal as the support agreement was mainly compensatory.

[40]            To similar effect, see also Vey v. Vey (1979), 11 B.C.L.R. 193 (C.A.); Serra v. Serra (2007), 36 R.F.L. (6th) 66 (Ont. S.C.J.) at para. 192; Corbeil v. Corbeil (2001),  21 R.F.L. (5th) 1 (Alta. C.A.) at para. 79.

[41]            In Bullock v. Bullock, 2007 BCSC 318, Macaulay J. declined to confirm a provisional order from Nova Scotia terminating spousal support.  He stated that it is appropriate to look to the payor’s capital assets, including those obtained through property division, to determine the payor’s ability to pay and that this “broad interpretation of means is especially compelling where two parties were married for a long time …” (at para. 25).

[42]            I turn to a review of the positions of the parties.  It was not disputed that J.M. has some need for spousal support and that L.D.M. has the means to make spousal support payments at some level.

[43]            Ms. Lang on behalf of the plaintiff pointed to the stark contrast between the financial positions of the parties.  She emphasized that the defendant has a number of investments and other sources of income, while the plaintiff does not.  Ms. Lang argued that the economic disadvantages from J.M.’s history as a traditional wife and mother have increased and will continue to increase over time.  She emphasized that J.M. has a long-standing and close connection to her home and neighbourhood, that she put her own resources acquired through inheritance into the acquisition of family assets, including the Naramata properties and the family home, and that it would be unfair for her to be required to move from that area or to exhaust her capital.

[44]            Ms. Lang argued that there is both a compensatory and non-compensatory basis for a spousal support order in this case.  She submitted that the original consent order in 2002 did not exhaust appropriate compensation.  The plaintiff’s position is that she received 50% of the assets and modest spousal support, with no compensatory element in the agreement.  Ms. Lang also argued that the settlement in the personal injury action does not displace the defendant’s obligation to pay compensatory support flowing from the disadvantage the plaintiff experienced during 23 years of marriage.  The plaintiff’s position is that there is no reason for the spousal support order to have a termination date, because it will be open for the parties to apply if there is a change in circumstances.

[45]            Ms. Lang referred to Yemchuk v. Yemchuk, 2005 BCCA 406, and Redpath v. Redpath, 2006 BCCA 338, and argued that the Spousal Support Advisory Guidelines calculations indicate that on an income of $278,000 the appropriate range for spousal support would be $7,933 to $10,577 per month.  On an income of $350,000, they would be between $10,003 and $13,337 per month.

[46]            The defendant concedes continuing entitlement to spousal support based on non-compensatory grounds.  His counsel, Mr. Daykin, agreed that the plaintiff cannot support herself in the marital standard of living from her own resources. 

[47]            However, Mr. Daykin argued that compensation was accomplished through the 2002 order since, he says, that in that settlement the plaintiff received slightly more of the family assets and, significantly, received the tax-free family assets, as well as five years of spousal support at $4,500 per month plus two years of previous interim spousal support.  Mr. Daykin says that the parties reached a comprehensive settlement embodied in the consent order and that to change one element of it would be unfair. 

[48]            Mr. Daykin argued that the plaintiff, in her personal injury settlement, was compensated for the effects of the motor vehicle accident, presumably including future lost income-earning capacity, and that to the extent her inability to work arises from those injuries she should not again be compensated through spousal support.  He argued that if the plaintiff’s inability to work arises from her neurological condition which has genetic sources, spousal support should not be payable, because this is not an economic disadvantage arising from the marriage or its breakdown. 

[49]            Mr. Daykin submitted that the defendant should not have to pay $10,000 a month or more so that the plaintiff can maintain an expensive home in Point Grey which is much larger than she needs, given that only one of the children is currently living at home and is soon to leave, according to the defendant.  Mr. Daykin pointed out that of the plaintiff’s list of expenses, $4,658 per month relate to the maintenance of the home.  He questioned why one woman needed $2,070 per month for food and pointed to the fact that J.M. has had seven lawyers as helping to explain the average monthly $1,660 in legal expenses.

[50]            Mr. Daykin submitted that the plaintiff’s reasonable monthly expenses are in the range of $5,000 per month, for which the plaintiff would have to gross something like $6,500 per month in income.  He submitted that the plaintiff could receive $4,250 a month in interest if she were to sell her house and buy another home for about $1,500,000, investing $1,000,000 and earning $50,000 per annum.  He argued that income should be imputed to the plaintiff in the sum of $4,250 a month and that so long as the plaintiff remains in the matrimonial home, $10,000 per annum income should be imputed for rental of the basement suite. 

[51]            The defendant’s position is that spousal support should be reduced by 50% and terminate when the defendant ceases to work or reaches the age of 65 in four years.

[52]            Mr. Daykin submitted that the Spousal Support Advisory Guidelines do not apply on a review.  I will address this question later.

[53]            At my request, Mr. Daykin, without conceding that the Spousal Support Advisory Guidelines should be followed, provided calculations.  He argued that at $230,000 income for L.D.M. and $50,000 income for J.M., spousal support would be payable at the sum of $4,050 to $5,500.  However, at $205,000 for L.D.M. (which takes into account the $15,000 per year he says he pays to Z.M. for his university education), and $50,000 for J.M., the Guidelines would indicate $3,488 to $4,650 per month.

[54]            Ms. Lang disputes those calculations, which she says were (a) based on an incorrect number of years of cohabitation, that is 18 rather than 23; (b) premised on Z.M. continuing to be a child of the marriage, while in fact he will complete his undergraduate studies in 2009 (and the plaintiff does not accept that the defendant pays $15,000 directly to Z.M.); and (c) impute income to J.M. of $50,000, while the plaintiff argues that no income should be imputed.

[55]            Ms. Lang submitted that if the income of the defendant is $230,000, the income of the plaintiff is $2,078 and the cohabitation period is 23 years, the Spousal Support Advisory Guidelines indicate a range from $6,553 to $8,737.

[56]            Is the plaintiff entitled to a spousal support order?  Returning to the factors prescribed in s. 15.2(4) and the objectives for spousal support orders set out in s. 15.2(6), I note that the length of cohabitation was 23 years and the parties were married for 17 years.  The plaintiff assumed a traditional role during the marriage, taking care of the three children at home, and did not build up her income-earning potential.  The economic consequences of the marriage and its breakdown have been disproportionately visited on her.  I find that the plaintiff is unable to seek or hold employment, due mainly to the neurological condition from which she suffers.  She has a disabling illness and no source of income, other than spousal and child support payments and small amounts of rent from the basement suite.

[57]            The defendant has built a successful career, with a good income, and has assets of around $3,935,000 including his home (which assets, I note, will be necessary to see him through retirement since he is self-employed).

[58]            At the time of the divorce the assets were divided on a roughly 50/50 basis, with the wife retaining the matrimonial home and the husband retaining his corporation (which held the Naramata real estate) and all of the RRSPs.  In addition, J.M. has received spousal support from the time of separation to the present, about seven years.  Other than the tax advantage J.M. experienced in the division of assets due to receiving the matrimonial home, which is not subject to capital gains tax, the settlement does not show a significant reapportionment in her favour.  This was a lengthy marriage (23 years of cohabitation).  I do not find that the past division of assets and past payment of spousal support exhausts the plaintiff’s entitlement to compensation for the economic disadvantage flowing from her assumption of responsibility for the children and home during the marriage.

[59]            Further, there is no doubt that the plaintiff is in need of income, both because of her neurological condition, and because it would be difficult for her, even if in good health, to establish a career given her lengthy time out of the work force.  While she may be able to realize some income from a reallocation of her capital assets, spousal support payments will be necessary in order to enable her to live in anything close to the standard of living she enjoyed during the marriage. 

[60]            I find that the plaintiff is entitled to a spousal support order on both a compensatory and a non-compensatory basis. 

[61]            What is the defendant’s income?  The defendant’s Child Support Guidelines income was agreed to be $237,000 per annum in 2002.  Two subsequent reviews in 2004 and 2005 found that it had not increased.  L.D.M.’s level of expenditure shown in his November 5, 2007 Financial Statement is $244,000 per year and he does not appear to be going into debt.  He benefits from the coverage of some of his personal expenses by his corporation.  I find that the defendant’s Guidelines income is at least $244,000 per year, and I decline to deduct the amounts he is paying to Z.M. since Z.M. will soon cease to be a child of the marriage.  L.D.M.’s net assets, as I have said, are in the range of $3,935,000 aside from household furnishings, art and collections.

[62]            What is the plaintiff’s income?  The plaintiff’s income aside from spousal and child support payments is $3,200 and her net assets are around $1,890,000 aside from household furnishings, art and collections.  The plaintiff will be receiving little or no income from child support in this and ensuing years. 

[63]            Should income be imputed to J.M. on the premise that she can realize some income from her capital by selling her home and purchasing something less expensive, investing the balance? 

[64]            As is set out in Boston v. Boston and the other authorities referred to above, the plaintiff is obliged to take reasonable steps to contribute to her own support, which may include generating income from her assets.  While she is attached to the home, it is considerably larger than she needs and is very expensive to maintain.  However, remaining in the same neighbourhood would assist her in maintaining contact with her friends and community.  I find that income of $40,000 per year should be imputed to the plaintiff.  That is a conservative estimate of the pre-tax income she could receive if she sold the matrimonial home, purchased a less expensive home in the same neighbourhood and invested the proceeds.  I decline to impute notional rental income to the plaintiff, because that is inconsistent with the premise that she would sell the home.

[65]            To what extent should the spousal support order take into account the personal injury settlement?  As I have said, the defendant’s position is that to the extent the plaintiff’s injuries suffered in the motor vehicle accident have caused her inability to work, she has been compensated for her lost earnings. 

[66]            In Stang v. Stang, 2001 BCSC 975, the plaintiff, who had been a homemaker during the marriage, had obtained employment after separation but was then injured in a motor vehicle accident.  She received a substantial settlement for her injuries and was deemed unemployable.  Satanove J. found that because the plaintiff’s total incapacity was partly due to a tortious event for which she had been compensated, income of $2,000 a month (what she would have been earning but for the motor vehicle accident) should be imputed to her. 

[67]            That case is different from the one before me.  The evidence here is that J.M.’s inability to work into the future is predominantly caused by the hereditary neurological disorder rather than by lingering effects of the motor vehicle accident.  There is no treatment for the disorder.  The evidence does not support a conclusion that but for the motor vehicle accident J.M. would be earning more income than she is now or will earn in the future.  I do not find that her receipt of compensation for lost earning capacity (the amount of which is unknown) affects the appropriate quantum of a spousal support order. 

[68]            Should the Spousal Support Advisory Guidelines be considered on a review?  The Court of Appeal has held that in determining the appropriate level of spousal support on an initial application, the SSAG should be used as guide in determining both quantum and duration, assuming that entitlement has first been established:  Yemchuk v. Yemchuk, 2005 BCCA 406, 44 B.C.L.R. (4th) 77; Redpath v. Redpath, 2006 BCCA  338, 62 B.C.L.R. (4th) 233; McEachern v. McEachern, 2006 BCCA 508, 62 B.C.L.R. (4th) 95. 

[69]            However, Mr. Daykin argued that the Guidelines are not to be considered on a review such as this, referring to the decision of Slade J. in Bryant v. Gordon, 2007 BCSC 946, and to the SSAG, where the authors stated at para. 4.2.5:

4.2.5    Review and variation

The primary application of these advisory guidelines is to initial determinations of spousal support at the point of separation or divorce, whether through negotiated agreements or court orders. Ideally a truly comprehensive set of advisory guidelines would apply not only to the initial determination of support but also to subsequent reviews and variations over time. However, these issues have proven the most difficult to reduce to a formula given the uncertainty in the current law concerning the effect of post-separation income changes.

In the end, we chose a more modest course, identifying certain situations where the advisory guidelines will apply on reviews and variations, including increases in the recipient’s income and decreases in the payor’s income. We have left others, such as post-separation increases in the payor’s income, re-partnering, remarriage and second families, to discretionary determinations under the evolving framework of current law. Developing advisory guidelines to deal with some of these difficult issues may take place at a later stage of the project, after there has been some experience with these proposed advisory guidelines.

[70]            Ms. Lang argued that the Bryant case was wrongly decided and that the SSAG do apply on a review.

[71]            The decision of the Court of Appeal for British Columbia in Beninger v. Beninger, 2007 BCCA 619, has come to my attention since the hearing.  In that case, the Court discussed whether the SSAG should be used as a guide on variation applications, stating at para. 50-51, 55:

Based on the factors I have described, I agree with Ms. Beninger that the baseline for a spousal support order in this case should not have been less than the order of $6,500 per month made by Mr. Justice Curtis in 2003 based on Mr. Beninger’s then income of $312,000.  Since that time, Mr. Beninger has paid off his bankruptcy debt, his income has increased, and he has remarried such that he has a home (in his wife’s name) and reduced expenses.  Further, Carling is now living on her own and is no longer a dependent. 

In determining the appropriate level of spousal support on an initial application, this Court has said that the Spousal Support Advisory Guidelines: A Draft Proposal (Ottawa, Dept. of Justice: 2005) (the “SSAG”) should be used as a guide in determining both the quantum and duration of support, assuming that entitlement has first been established.  (See, for example, Yemchuk v. Yemchuk, 2005 BCCA 406, 16 R.F.L. (6th) 430; Redpath v. Redpath, 2006 BCCA 338, 33 R.F.L. (6th) 91; Tedham v. Tedham, 2005 BCCA 502, 47 B.C.L.R. (4th) 254; and McEachern v. McEachern, 2006 BCCA 508, 62 B.C.L.R. (4th) 95.)  A question which arises in this appeal is what use, if any, a court may make of the SSAG on a variation application. 

In the particular circumstances of these parties, I am satisfied that it is appropriate to use the SSAG as a guide to the appropriate level and duration of support.  In so doing, I wish to make it clear that the decision whether to use the SSAG as a guide on variation applications will have to be made cautiously and on a fact-specific basis.

[72]            See also the commentary on Beninger v. Beninger and Fisher v. Fisher, 2008 ONCA 11, by the authors of the Spousal Support Advisory Guidelines in Carol Rogerson and Rollie Thompson, “The Spousal Support Advisory Guidelines Three Years Later” (8 February 2008).  They state at p. 7:

In Fisher the Ontario Court of Appeal emphasized the need to use the Guidelines carefully and with attention to their specific limitations and qualifications.  In this respect the British Columbia Court of Appeal decision in Beninger v. Beninger provides a nice counterpart.  A common misunderstanding, and one repeated in Fisher, albeit in a passing reference, is that the Advisory Guidelines have no application on variation.  In Beninger, where the issue was directly raised on the facts, the British Columbia Court of Appeal provided a careful analysis of the application of the Guidelines on a variation application.  Dispelling the common misunderstanding that the Advisory Guidelines have no application on variation, Beninger offers a more accurate reading of the Advisory Guidelines.  The decision recognizes that the Advisory Guidelines may be applicable on variation, but not in all cases, and that their use in the variation context must be approached with some degree of caution and an awareness of their possible limitations.

[emphasis in original]

[73]            The Spousal Support Advisory Guidelines are only guidelines, even on an initial application.  The Court of Appeal has stated that it is appropriate to use them, cautiously and on a fact-specific basis, on a variation application.  On a review such as this, similar caution and advertence to the context should apply. 

[74]            In conclusion, I have found that the plaintiff is entitled to an order for spousal support, on both a compensatory and non-compensatory basis.  After 23 years, the intertwining of the economic circumstances of the parties was very substantial.  In determining the amount and duration of the award, I take into account the length of the marriage and cohabitation, the roles assumed by the parties in the marriage, and their current means and needs, including the medical evidence regarding J.M.’s neurological disorder.  Other specific factors are the previous division of assets and payment of spousal support since the separation and that the children are now virtually independent.  L.D.M. is approaching the age of possible retirement, and J.M. will likely not be able to re-embark on her career for the reasons I have referred to. 

[75]            In these circumstances, I find that an order of indefinite duration is appropriate. 

[76]            I have found that J.M.’s income should be imputed to be $40,000 per year and that L.D.M.’s income is $244,000 per year.

[77]            I note what the Spousal Support Advisory Guidelines would suggest, though with caution and adverting to the context of this case, which is a review following a consent order made five years previously.  The Spousal Support Advisory Guidelines amount for support in this case provides a range of $5,865 to $7,820 monthly.  Considering the factors and objectives defined by s. 15.2 of the Divorce Act, I will order spousal support commencing May 1, 2008, at $6,500 per month.

“The Honourable Madam Justice Lynn Smith”