Foster v. Foster, 2007 BCCA 83

• Judge: Prowse, Hall and Levine, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 15, 2007
• Jurisdiction: British Columbia
• Citations: 2007 BCCA 83;(2007), 236 B.C.A.C. 97 (CA)

Foster v. Foster (2007), 236 B.C.A.C. 97 (CA);

    390 W.A.C. 97

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. FE.034

Gloria Foster also known as Gloria Alcahuaman (respondent/plaintiff) v. John Michael Foster (appellant/defendant)

(CA034296; 2007 BCCA 83)

Indexed As: Foster v. Foster

British Columbia Court of Appeal

Prowse, Hall and Levine, JJ.A.

February 8, 2007.

Summary:

The parties met in 1997 in Peru where the wife lived and was attending university to obtain her teaching degree. In 1998, the husband sponsored the wife to come to Canada and the parties began living together in the husband's residence in British Columbia. They were married in 1999. A child was born in 2001. The parties separated in 2003 and divorced in 2006. At issue was the division of family assets and spousal and child support.

The British Columbia Supreme Court, in a decision at [2006] B.C.T.C. Uned. 554, ordered the husband to pay the wife $100,000 for her interest in the family property. The court also ordered the husband to pay $30,000 as lump sum spousal support and child support of $326 per month. The husband appealed, arguing that the trial judge erred: (1) in finding that all of the properties owned by the husband were family assets; (2) in awarding the wife a 1/3 interest in the husband's equity in those properties; (3) in finding that the wife was entitled to lump sum spousal support in the amount of $30,000; and (4) in finding that the husband's income for child support purposes was $35,000 per annum.

The British Columbia Court of Appeal allowed the appeal to the extent that it reduced the lump sum award for division of assets to $40,400 and the award of spousal support to $14,400, for a total lump sum payment of $54,800. The court dismissed the husband's appeal with respect to the order for child support. The court upheld an order made by the trial judge that any arrears of child and/or spousal support still outstanding would be added to the amount of the wife's lump sum award.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - The trial judge found that the family assets should be reapportioned in the husband's favour and he awarded the wife a 1/3 interest in the family assets - The British Columbia Court of Appeal held that the trial judge's finding that the wife was entitled to a 1/3 interest having regard to all of the factors set forth in s. 65 of the Family Relations Act could not be supported by the evidence and was clearly wrong - The court further stated that it appeared that the failure of the trial judge to clearly delineate the issues of division of assets, reapportionment, and spousal support contributed to that error - The appropriate approach was to divide property, including any reapportionment, before determining spousal support - Combining the analysis tended to create confusion and to blur the distinctions between the factors relating to division of property and those relating to spousal support - See paragraph 50.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - The parties married in 1999, separated in 2003 and divorced in 2006 - The trial judge found that the family assets should be reapportioned in the husband's favour and he awarded the wife a 1/3 interest in the family assets - The British Columbia Court of Appeal held that trial judge's finding that the wife was entitled to a 1/3 interest having regard to all of the factors set forth in s. 65 of the Family Relations Act could not be supported by the evidence and was clearly wrong - The court stated that while there was no doubt that the wife's need to become and remain economically self-sufficient was more pressing than that of the husband, the short length of the marriage and the fact that the husband was responsible for the acquisition, preservation, maintenance and improvement of the properties were significant factors favouring a more substantial reapportionment in his favour - The court concluded that the proper reapportionment was 80/20 in favour of the husband - See paragraphs 45 to 54.

Family Law - Topic 876

Husband and wife - Marital property - Distribution orders - Family or matrimonial assets - The parties married in 1999, separated in 2003 and divorced in 2006 - The triggering event was a declaration that the parties had no reasonable prospect of reconciliation, made pursuant to s. 57 of the Family Relations Act on April 26, 2004 - The husband had purchased an apartment in January 2002 for $61,900, derived almost entirely from a mortgage on that property in the amount of $60,000 - The mortgage was transferred to the matrimonial home in September 2002 - Rental income from the apartment was consistently used for family purposes from the time of purchase until the parties separated, and thereafter it appeared to have been a source of child and spousal support until it was sold in June 2005 for $95,000 - Part of the proceeds of sale were used to pay down the mortgage on the matrimonial home - The British Columbia Court of Appeal held that there was evidence to support the trial judge's conclusion that the apartment was a family asset at the time of the triggering event on the basis of ordinary use for a family purpose - See paragraphs 26 to 32.

Family Law - Topic 876

Husband and wife - Marital property - Distribution orders - Family or matrimonial assets - The parties married in 1999, separated in 2003 and divorced in 2006 - The triggering event was a declaration that the parties had no reasonable prospect of reconciliation, made pursuant to s. 57 of the Family Relations Act (FRA) on April 26, 2004 - The husband purchased an apartment (Apartment 305) in July 2005 for $72,000 with the proceeds of sale of another apartment (the Woodland Manor apartment) - Apartment 305 was not a family asset as of the date of the triggering event since it was acquired by the husband after that date - The British Columbia Court of Appeal held that Apartment 305 did not become a family asset by virtue of the fact that it was purchased in whole with the proceeds of sale of the Woodland Manor apartment, which was a family asset - The court held that the wife's remedy was not a declaration that Apartment 305 was a family asset, but, rather, a compensation order under s. 66(2)(c) of the FRA in relation to her share of the proceeds of sale of the Woodland Manor apartment which was used by the husband to purchase Apartment 305 - See paragraphs 33 to 38.

Family Law - Topic 884

Husband and wife - Marital property - Considerations in making distribution orders - Maintenance obligations - [See first Family Law - Topic 875 ].

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance and awards - Awards - Lump sum - The parties met in 1997 in Peru where the wife lived and was attending university to obtain her teaching degree - In 1998, the husband sponsored the wife to come to Canada and the parties began living together - They were married in 1999 - A child was born in 2001 - The parties separated in 2003 and divorced in 2006 - The wife was 35 years old at the time of trial - She did not work outside the home during the marriage - She had obtained part-time work as a chambermaid and was also taking courses to upgrade her teaching qualifications - The husband had discontinued work as a forestry consultant and began carrying on business buying and fixing up properties for resale - Although he was unemployed at the time of trial, the trial judge imputed an income to him of $35,000 per annum - The trial judge awarded the wife lump sum spousal support of $30,000 - The husband appealed - The British Columbia Court of Appeal allowed the appeal - The trial judge's reasons for judgment provided no basis for determining how he arrived at a lump sum of $30,000 - The court concluded that a lump sum award of spousal support assessed on the basis of a monthly payment of $400 per month for 36 months from the date of judgment would be appropriate - The total lump sum award would be $14,400 - See paragraphs 56 to 69.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance and awards - Awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - The husband discontinued work as a forestry consultant and began carrying on business buying and fixing up properties for resale through his company - Although he was unemployed at the time of trial, the trial judge imputed an income to him of $35,000 per annum for purposes of child and spousal support - The trial judge found that the husband had the ability to work full time and earn at least $35,000 per year - He found that the husband had made little effort to obtain gainful employment and that there was a basis for finding that he was avoiding employment in order to avoid paying proper support - He observed that the husband did much of his work of buying and selling properties through his company, that the company had retained earnings in 2004 of $22,370 and that there were grounds for suspicion that he deliberately left money in the company to reduce his personal income for support and taxation purposes - The British Columbia Court of Appeal held that the trial judge was justified in finding that the husband was intentionally unemployed and that he had the capacity to earn significant income - See paragraphs 60 and 70.

Family Law - Topic 4045.5

Divorce - Corollary relief - Maintenance - Support guidelines (incl. nondivorce cases) - Calculation or attribution of income - [See Family Law - Topic 4021.4 ].

Cases Noticed:

Laurence v. Laurence (1991), 56 B.C.L.R.(2d) 254; 33 R.F.L.(3d) 27 (C.A.), refd to. [para. 10].

Frydrysek v. Frydrysek (2002), 171 B.C.A.C. 143; 280 W.A.C. 143; 30 R.F.L.(5th) 321; 2002 BCCA 428, refd to. [para. 10].

Graff v. Graff (1987), 19 B.C.L.R.(2d) 234; 11 R.F.L.(3d) 392 (C.A.), refd to. [para. 10].

Joki-Hollanti v. Joki-Hollanti, [1990] B.C.T.C. Uned. 310 (S.C.), refd to. [para. 10].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165; 59 D.L.R.(4th) 591, refd to. [para. 10].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [para. 14].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 14].

Evetts v. Evetts (1996), 85 B.C.A.C. 19; 138 W.A.C. 19 (C.A.), refd to. [para. 30].

Halpin v. Halpin (1996), 83 B.C.A.C. 241; 136 W.A.C. 241; 27 B.C.L.R.(3d) 305 (C.A.), refd to. [para. 35].

Norton v. Norton (1989), 19 R.F.L.(3d) 181 (B.C.C.A.), refd to. [para. 36].

Billingsley v. Billingsley (1991), 4 B.C.A.C. 201; 9 W.A.C. 201; 83 D.L.R.(4th) 673 (C.A.), refd to. [para. 36].

Narayan v. Narayan (2006), 233 B.C.A.C. 261; 386 W.A.C. 261; 2006 BCCA 561, refd to. [para. 50].

Toth v. Toth (1995), 64 B.C.A.C. 81; 105 W.A.C. 81; 13 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 50].

Metzner v. Metzner (1997), 91 B.C.A.C. 241; 148 W.A.C. 241; 34 B.C.L.R.(3d) 314 (C.A.), refd to. [para. 50].

Tedham v. Tedham (2005), 217 B.C.A.C. 250; 358 W.A.C. 250; 2005 BCCA 502, refd to. [para. 50].

Dietz v. Sherpa, [2004] B.C.T.C. Uned. 371; 2004 BCSC 918, refd to. [para. 51].

Jasinski v. Jasinski, [2006] B.C.T.C. 878; 2006 BCSC 878, refd to. [para. 51].

Authors and Works Noticed:

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: A Draft Proposal (2005), generally [para. 64].

Counsel:

J.M. Foster, acting on his own behalf;

W.L. Scott, for the respondent.

This appeal was heard on January 15, 2007, at Vancouver, British Columbia, before Prowse, Hall and Levine, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Prowse, J.A., on February 8, 2007.