R.M.S. v. F.P.C.S., 2011 BCCA 53

• Judge: Chiasson, D. Smith and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 09, 2010
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 53;(2011), 299 B.C.A.C. 186 (CA)

R.M.S. v. F.P.C.S. (2011), 299 B.C.A.C. 186 (CA);

    508 W.A.C. 186

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. FE.030

R.M.S. (appellant/plaintiff) v. F.P.C.S. (respondent/defendant)

(CA037599; 2011 BCCA 53)

Indexed As: R.M.S. v. F.P.C.S.

British Columbia Court of Appeal

Chiasson, D. Smith and Bennett, JJ.A.

February 8, 2011.

Summary:

The appellant (wife) appealed a corollary relief (divorce) order which provided for: (1) joint custody of the two children with primary residence with the wife and specified periods of custody for each party; (2) an equal division of the wife's RRSPs pursuant to Part 5 of the Family Relations Act (FRA), which were acquired before the marriage but were the only unencumbered family assets with value; and (3) spousal support to the husband in an amount and duration that exceeded the amounts under the Spousal Support Advisory Guidelines, subject to review after 48 months. (See [2009] B.C.T.C. Uned. 1323). The wife appealed, arguing that the trial judge erred in law in three respects: in failing to craft a parenting schedule that would provide the wife maximum contact with the children, in failing to reapportion the RRSPs in her favour, and in awarding an amount and duration of spousal support in excess of the ranges in SSAG based on an imputed income to the wife.

The British Columbia Court of Appeal, Bennett, J.A., dissenting, allowed the appeal in part. The court ordered that pursuant to s. 65 of the FRA the wife's RRSPs be reapportioned in her favour by dividing equally between the parties only the value of the RRSPs that represented their increase during the marriage, estimated at $9,000, and the review condition attached to the award for spousal support be varied.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 880.32

Husband and wife - Marital property - Distribution orders - Particular property - Registered Retirement Savings Plans, R.E.S.P.'s, Income Funds, unregistered investments, etc. - A married couple, with two children, separated after three years - The trial judge ordered an equal division of the wife's RRSPs pursuant to Part 5 of the Family Relations Act (FRA), which were acquired before the marriage but were the only unencumbered family assets with value - The wife appealed arguing that the trial judge erred in law in failing to reapportion the RRSPs in her favour - The RRSPs were worth $30,000 when the couple were married and had grown to $39,000 - The British Columbia Court of Appeal held that the trial judge erred in failing to consider all the factors in s. 65 of the FRA - The court ordered that pursuant to s. 65 the wife's RRSPs be reapportioned in her favour by dividing equally between the parties only the value of the RRSPs that represented their increase during the marriage (i.e., the $9,000) - See paragraphs 53 to 64.

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - The British Columbia Court of Appeal discussed the "maximum contact" principle as found in s. 16(10) of the Divorce Act - See paragraphs 45 to 48.

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - A married couple, with two children, separated after three years - The trial judge awarded joint custody of the children with primary residence with the wife and specified periods of custody for each party - The wife appealed, arguing that the trial judge erred in failing to craft a parenting schedule that would provide the wife maximum contact with the children - She claimed that the trial judge erred by failing to apply a balanced approach to maximizing the wife's custodial times with the children when he failed to consider the increase in her work schedule that she would have to obtain in order to increase her income to the level he imputed, and by requiring that only she provide make-up time to the husband when she had the children, outside her regular access, on Jewish religious holidays - The British Columbia Court of Appeal was unable to find any error of law by the trial judge in the custodial arrangement he awarded based on what he determined to be in the best interests of the children - The court stated that the maximum contact principle was not an absolute principle and was always subject to the best interests of the children - See paragraphs 45 to 52.

Family Law - Topic 4001

Divorce - Corollary relief - Maintenance awards - Jurisdiction of a court to grant maintenance (incl. automatic increases and reservation re future applications) - A married couple, with two children, separated after three years - The trial judge imputed income to the wife and ordered her to pay the husband support that exceeded the Spousal Support Advisory Guidelines (SSAG), subject to review on both entitlement and quantum after 48 months - The wife appealed - The British Columbia Court of Appeal noted that the trial judge did not identify the precise issue to be reviewed - The court stated that if a review condition was essential it was to be precisely circumscribed - The court varied the review condition accordingly - See paragraphs 86 to 91.

Family Law - Topic 4019

Divorce - Corollary relief - Maintenance and awards - Awards - Appeals - The British Columbia Court of Appeal stated that "The standard of appellate review on family law matters is narrow in scope. An appellate court may not interfere with a trial judge's exercise of discretion absent a material error (where the trial judge forgot, ignored, or misconceived the evidence in a way that affected the outcome), a serious misapprehension of the evidence, or an error in law ..." - See paragraph 43.

Family Law - Topic 4021.5

Divorce - Corollary relief - Maintenance awards - Support guidelines - A married couple, with two children, separated after three years - The trial judge imputed income to the wife and ordered her to pay the husband support that exceeded the Spousal Support Advisory Guidelines (SSAG), subject to review after 48 months - The wife appealed - The British Columbia Court of Appeal held that there was an evidentiary basis for the trial judge's imputing annual income of $225,000 to the wife if she worked full time (she had been working part-time) - The court stated that the reasoning that a parent wanting to stay home to raise children might not be sufficient to justify the under-employment of that parent absent evidence of special needs of a child was equally applicable to the determination of income for the purposes of spousal support - The court held, however, considering the two relevant exceptions in chapter 12 of the SSAG (i.e., the compensatory exception and the non-primary parent to fulfil parenting role exception), that it was not persuaded that the trial judge erred in law in awarding an amount of spousal support outside the SSAG formulas - See paragraphs 65 to 85.

Family Law - Topic 4161

Divorce - Practice - Appeals - General - [See Family Law - Topic 4019 ].

Cases Noticed:

Yemchuk v. Yemchuk (2005), 215 B.C.A.C. 193; 355 W.A.C. 193; 2005 BCCA 406, refd to. [para. 41].

McEachern v. McEachern (2006), 232 B.C.A.C. 185; 385 W.A.C. 185; 62 B.C.L.R.(4th) 95; 2006 BCCA 508, refd to. [para. 41].

Redpath v. Redpath et al. (2006), 228 B.C.A.C. 272; 376 W.A.C. 272; 62 B.C.L.R.(4th) 233; 2006 BCCA 338, refd to. [para. 41].

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. 43].

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. 43].

Van Mol et al. v. Ashmore (1999), 116 B.C.A.C. 161; 190 W.A.C. 161; 168 D.L.R.(4th) 637 (C.A.), leave to appeal refused (2000), 252 N.R. 393; 138 B.C.A.C. 269; 226 W.A.C. 269 (S.C.C.), refd to. [para. 43].

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. [paras. 43, 95].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 46].

Orring v. Orring (2006), 232 B.C.A.C. 232; 385 W.A.C. 232; 276 D.L.R.(4th) 211; 2006 BCCA 523, refd to. [para. 46].

Mallen v. Mallen (1992), 11 B.C.A.C. 262; 22 W.A.C. 262; 65 B.C.L.R.(2d) 241 (C.A.), refd to. [para. 61].

M.S. v. W.S., [2008] 2 S.C.R. 263; 375 N.R. 318; 255 B.C.A.C. 11; 430 W.A.C. 11; 2008 SCC 35, refd to. [para. 61].

Llewellyn v. Llewellyn (2002), 165 B.C.A.C. 268; 270 W.A.C. 268; 212 D.L.R.(4th) 153; 2002 BCCA 182, refd to. [para. 72].

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. 75].

Leskun v. Leskun, [2006] 1 S.C.R. 920; 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 86].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 16(10) [para. 45].

Authors and Works Noticed:

Canada, Department of Justice, Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version - see Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version.

Canada, Department of Justice, Spousal Support Advisory Guidelines: The Final Version - see Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: The Final Version.

McLeod, James, Annotation to Phinney v. Phinney, [2002] N.S.J. No. 540, generally [para. 105].

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version, c. 6 [para. 73]; 12 [para. 68]; 12.2 [para. 69]; 12.5, 12.9 [para. 68]; pp. 46 [para. 73]; 133 [para. 80].

Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: The Final Version (2008), pp. 1 [para. 65]; 2 [para. 66].

Counsel:

K.F. Nordlinger, Q.C., for the appellant;

F.P.C.S., respondent, appeared in person.

This appeal was heard in Vancouver, British Columbia, on November 9, 2010, by Chiasson, D. Smith and Bennett, JJ.A., of the British Columbia Court of Appeal. Judgment of the court was rendered on February 8, 2011, when the following opinions were filed:

D. Smith, J.A. (Chiasson, J.A., concurring) - see paragraphs 1 to 91;

Bennett, J.A., dissenting - see paragraphs 92 to 109.