Jens v. Jens,

• Jurisdiction: British Columbia
• Judge: Levine, Chiasson and Smith, JJ.A.
• Neutral Citation: 2008 BCCA 392
• Citation: (2008), 260 B.C.A.C. 185 (CA),2008 BCCA 392,300 DLR (4th) 136,84 BCLR (4th) 250,57 RFL (6th) 31,260 BCAC 185,[2008] BCJ No 1886 (QL),260 B.C.A.C. 185,300 D.L.R. (4th) 136,[2008] B.C.J. No 1886 (QL),(2008), 260 BCAC 185 (CA)
• Date: 02 September 2008
• Court: Court of Appeal (British Columbia)

Jens v. Jens (2008), 260 B.C.A.C. 185 (CA);

    439 W.A.C. 185

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. OC.018

Douglas Calvin Jens (respondent/plaintiff) v. Terry Lynn Jens (appellant/defendant)

(CA035353; 2008 BCCA 392)

Indexed As: Jens v. Jens

British Columbia Court of Appeal

Levine, Chiasson and Smith, JJ.A.

October 7, 2008.

Summary:

The parties were married in 1996 and separated in 2004, after cohabiting for 10 years. In July 2006, Brooke, J., reviewed a consent spousal support order and extended support of $2,750 for the wife to June 15, 2007. The wife applied for a review of the order of Brooke, J., seeking a continuation of support until she obtained full employment.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. 613, found that there was a material change in the wife's circumstances where she required surgery which would involve an eight week recovery period. The court varied Brooke, J.'s order to extend the spousal support payments for three months, from July 15, 2007, to September 15, 2007. The wife appealed and applied to introduce new evidence respecting the development of her health issues.

The British Columbia Court of Appeal admitted the new evidence and allowed the appeal. The court set aside the order appealed from and substituted an order that the husband pay the wife spousal support of $2,000 per month, commencing on the 15th day of the month following the date of release of the court's reasons for judgment, and continuing for a period of five years.

Family Law - Topic 4021.4

Divorce - Corollary relief - Maintenance awards - Awards - Considerations - Ability to pay (incl. potential to earn income and calculation of income) - A husband argued that rental helicopter income of approximately $40,000 per year should not be included in his income for the purpose of determining his spousal support obligation - The husband noted that his interest in the helicopters was retained by him on the division of property, while the wife retained other assets - As the helicopters were a depreciating, income-producing asset, the husband argued that including the rental income in calculating spousal support would be "double dipping" as discussed in Boston v. Boston (2001 SCC) - The British Columbia Court of Appeal rejected the argument - The Boston case dealt with a pension - There was a difference in character between income producing capital assets (like the helicopters) and a pension - See paragraphs 49 to 50.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Awards - Support tables - [See Family Law - Topic 4022.1 ].

Family Law - Topic 4022

Divorce - Corollary relief - Maintenance awards - Awards - To wife - Considerations - [See Family Law - Topic 4022.1 ].

Family Law - Topic 4022.1

Divorce - Corollary relief - Maintenance awards - Awards - To spouse - Extent of obligation - The parties married in 1996 and separated in 2004, after cohabiting for 10 years - A July 2006 order extended support of $2,750 for the wife to June 15, 2007 - The wife applied for a review of the order - Meiklem, J., found that there was a material change in the wife's circumstances where she required surgery which would involve an eight week recovery period - Meiklem, J., varied the July 2006 order to extend the spousal support payments for three months to September 15, 2007 - The wife appealed and introduced new evidence respecting the development of her health issues - The British Columbia Court of Appeal allowed the appeal - The new evidence showed that Meiklem, J., made a material error in his assessment of the change in the wife's "condition, means, needs or other circumstances" by ordering that support be extended for only three months - The court held that it was appropriate to use the Spousal Support Advisory Guidelines as a guide to the appropriate level and duration of support - The husband's income was $130,000 for the purpose of determining his support obligation and the wife, who received a monthly government disability allowance, was treated as having zero income - The court stated that the determination of spousal support was based primarily on the wife's need for support in light of her frail condition, that it should also recognize the economic disadvantage to the wife from selling her business and ceasing to work during the marriage, and that it was not clear whether the wife would be able to be economically self-sufficient within a reasonable period of time, given her age (51), health, and lack of up-to-date work skills - The court ordered that the husband pay spousal support of $2,000 per month for five years - See paragraphs 35 to 66.

Family Law - Topic 4027

Divorce - Corollary relief - Maintenance awards - Awards - Effect of income or potential income of claimant - A wife received a disability allowance from the government of British Columbia of $1,143 per month - The husband's counsel told the court that it was his understanding that the allowance would be reduced dollar for dollar by any spousal support received by the wife, and he took the position that should not be taken into account in any award - The British Columbia Court of Appeal stated that "that position was consistent with [the Spousal Support Advisory Guidelines] SSAG: social assistance is not income for spousal support purposes, for either the recipient or the payor: see SSAG at 46-47" - As the wife had no income other than the disability allowance, she would be treated as a person with zero income - See paragraphs 55 to 57.

Family Law - Topic 4034

Divorce - Corollary relief - Maintenance awards - Awards - Effect of division of matrimonial property - [See Family Law - Topic 4021.4 ].

Family Law - Topic 4171

Divorce - Practice - Appeals - Admission of new evidence - A chambers judge varied an earlier order for spousal support to extend payments to the wife for a further three months - The wife appealed from the chambers judge's order - The wife applied to introduce evidence of the development of her health issues, in the form of reports of medical consultations and surgery that occurred after the hearing before the chambers judge - The British Columbia Court of Appeal discussed the approach to the admission of "new evidence" on appeal - The court concluded that this was one of the "rare cases" where the new evidence was admissible in the interests of justice - The new evidence showed that the chambers judge's assumption that a three-month extension of spousal support to the wife would "ameliorate her hardship" was incorrect - Refusal to admit the new evidence could lead to a long term injustice - It was in the interests of justice that the decision be reconsidered taking into account the new evidence - See paragraphs 20 to 34.

Cases Noticed:

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].

C.R.H. v. B.A.H. (2005), 212 B.C.A.C. 262; 350 W.A.C. 262; 42 B.C.L.R.(4th) 230; 2005 BCCA 277, refd to. [para. 24].

Scott v. Scott (2006), 232 B.C.A.C. 160; 385 W.A.C. 160; 61 B.C.L.R.(4th) 9; 2006 BCCA 504, refd to. [para. 24].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 25].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 25].

Struck v. Struck (2003), 189 B.C.A.C. 291; 309 W.A.C. 291; 20 B.C.L.R.(4th) 242; 2003 BCCA 623, refd to. [para. 27].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 28].

Spoor et al. v. Nicholls et al., [2001] B.C.A.C. Uned. 126; 90 B.C.L.R.(3d) 88; 2001 BCCA 426, refd to. [para. 28].

North Vancouver (District) v. Lunde - see North Vancouver (District) v. Fawcett et al.

North Vancouver (District) v. Fawcett et al. (1998), 110 B.C.A.C. 137; 178 W.A.C. 137; 60 B.C.L.R.(3d) 201 (C.A.), refd to. [para. 29].

Luney v. Luney (2007), 248 B.C.A.C. 267; 412 W.A.C. 267; 74 B.C.L.R.(4th) 203; 2007 BCCA 567, leave to appeal denied (2008), 386 N.R. 399 (S.C.C.), refd to. [para. 30].

Shabaga v. Shabaga (1992), 75 B.C.L.R.(2d) 128 (C.A.), refd to. [para. 30].

Levin v. Levin et al. (1996), 84 B.C.A.C. 73; 137 W.A.C. 73 (C.A.), refd to. [para. 34].

Grohmann v. Grohmann (1991), 5 B.C.A.C. 275; 11 W.A.C. 275 (C.A.), refd to. [para. 39].

Beninger v. Beninger (2007), 249 B.C.A.C. 193; 414 W.A.C. 193; 75 B.C.L.R.(4th) 228; 2007 BCCA 619, consd. [para. 45].

Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50; 2001 SCC 43, refd to. [para. 49].

Holmes v. Matkovich (2008), 258 B.C.A.C. 86; 434 W.A.C. 86; 2008 YKCA 10, consd. [para. 50].

Yemchuk v. Yemchuk (2005), 215 B.C.A.C. 193; 355 W.A.C. 193; 44 B.C.L.R.(4th) 77; 2005 BCCA 406, refd to. [para. 60].

Authors and Works Noticed:

Canada, Department of Justice, Spousal Support Advisory Guidelines: Report on Revisions (2008), p. 1-2 [para. 44].

Counsel:

T.L. Jens, appearing on her own behalf;

J. MacArthur, for the respondent.

This appeal was heard on September 2, 2008, at Vancouver, British Columbia, before Levine, Chiasson and Smith, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Levine, J.A., on October 7, 2008.