R.E.Q. v. G.J.K., 2012 BCCA 146

• Judge: Newbury, K. Smith and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 22, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 146;(2012), 319 B.C.A.C. 98 (CA)

R.E.Q. v. G.J.K. (2012), 319 B.C.A.C. 98 (CA);

    542 W.A.C. 98

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. AP.003

R.E.Q. (appellant/respondent on cross-appeal/claimant) v. G.J.K. (respondent/appellant on cross-appeal/respondent)

(CA039079; 2012 BCCA 146)

Indexed As: R.E.Q. v. G.J.K.

British Columbia Court of Appeal

Newbury, K. Smith and Neilson, JJ.A.

March 30, 2012.

Summary:

The wife petitioned for divorce, joint custody and joint guardianship of the two children of the marriage (born in 1997 and 2003), primary residence of the children with "liberal and general access" to the husband, and an order authorizing her to relocate with the children from Maple Ridge to Calgary. The parties, both lawyers, agreed on the division of certain assets. As for the other assets, the husband claimed an equal share in property that the wife either inherited or acquired by way of a family trust. That property included a house in Calgary worth $500,000, a $200,000 shareholder's loan, certain shares in Altus Energy, and various accounts, such as one with CIBC Wood Gundy, worth about $455,000. A determination of child and spousal support was also sought. The parties agreed on joint custody and guardianship.

The British Columbia Supreme Court ordered as follows: (1) the move to Calgary was not authorized; (2) the husband's claim to the Calgary house was dismissed as the house was not a family asset; (3) the other disputed assets were family assets and the husband was entitled to a 50% share; (4) the parties' incomes were imputed at $177,468.14 for the husband and $127,489 for the wife; (5) the husband was to pay the table amount for child support, or $2,396 per month, plus 58% of the s. 7 expenses; and (6) the husband was to pay to the wife a lump sum spousal support amount of $150,000, to reflect that having interrupted her career to raise the children, she was now unable to earn as much in the practice of law as the husband. The wife appealed against the denial of the authorization to relocate. She also appealed against the spousal support order and the division of the inherited family assets. The husband cross-appealed with respect to the spousal support order and the Calgary house.

The British Columbia Court of Appeal allowed the wife's appeal only with respect of the division of the inherited family assets. The court reapportioned those assets 75% in favour of the wife and 25% in favour of the husband. The appeal and cross-appeal respecting the spousal support order were dismissed. The cross-appeal respecting the Calgary house was also dismissed.

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 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - The parties, both lawyers, had a dispute respecting the reapportionment of family assets inherited by the wife - These assets included a $200,000 shareholder's loan, certain shares in Altus Energy, and various accounts, such as one with CIBC Wood Gundy, which were worth about $455,000 - The trial judge split these assets 50-50, saying that the 14-year marriage duration militated in favour of equal division - The British Columbia Court of Appeal substituted a 75-25 division in favour of the wife - The husband made no contribution to the maintenance or appreciation of these assets, whereas both he and the wife contributed to the appreciation of his skills and reputation as a lawyer, properties he now took with him - At the least, he allowed his wife to proceed on the assumption that he would not assert an interest in her inheritance should they ever divorce - While the parties (who were both presumably knowledgeable about the consequences of divorce) did not "contract out" of the Family Relations Act regime, the fact that the inherited assets were inherited by the wife and managed by her family without any assistance or expression of interest on the husband's part was a circumstance "relating to the acquisition, preservation, maintenance, improvement or use of property" for purposes of s. 65(1)(f) of the Act and that they were distinguishable from those discussed in Lodge (B.C.C.A. 1993) or Godding (B.C.C.A. 1981) - This factor did make the equal division of the wife's inherited assets unfair - See paragraphs 68 to 72.

Family Law - Topic 877

Husband and wife - Marital property - Distribution orders - Business, commercial or non-family assets - During the marriage, the parties' family home was in Maple Ridge - The wife also had a house in Calgary - The family stayed at the Calgary house when visiting the wife's relations - For a while, the parties owned the Calgary house as joint tenants - Eventually, the husband returned his interest to the wife - After the parties separated, the husband claimed an interest in the Calgary house - The trial judge denied the claim, ruling that the Calgary house was not a family asset - The British Columbia Court of Appeal upheld the decision - It was open to the trial judge to find that the family staying in the Calgary house when visiting did not amount to ordinary use - Also, there was no basis to interfere with the trial judge's finding of fact that the wife transferred only the legal and not the beneficial interest in the Calgary house to the husband when they became joint tenants - See paragraphs 78 to 82.

Family Law - Topic 1916

Custody and access - Appeals - Standard of review - The British Columbia Court of Appeal stated that the authorities made it clear that, with respect to child custody and access maters, including mobility issues, it was not for an appellate court to balance the factors differently than the trial judge - See paragraph 33.

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - The British Columbia Court of Appeal discussed the jurisprudence in "child mobility" cases since Gordon v. Goertz (S.C.C. 1996) - The court stated that the overarching principle in Gordon v. Goertz was that the best interests of the child were not merely "paramount" in mobility cases but were the "only consideration" - The Supreme Court of Canada's statement that the views of the custodial parent were "entitled to great respect" had evolved into a de facto presumption in favour of the wishes of the custodial parent, notwithstanding the fact that the majority rejected the imposition of a presumption - The Court of Appeal concluded that it could, with deference, be time for the Supreme Court of Canada to reconsider whether "child mobility" cases were to be determined with reference only to the children's best interests or whether the "mobility rights" of the parents were also a proper consideration - See paragraphs 34 to 59.

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - The two children of the marriage, born in 1997 and 2003, had their primary residence with the joint custodial wife - The wife sought permission to relocate from Maple Ridge to Calgary with the children - The trial judge stated that two alternatives were open to him: (1) moving to Calgary; or (2) staying in Maple Ridge (the status quo) - The trial judge denied permission to relocate - The British Columbia Court of Appeal upheld the decision - The trial judge properly considered the two realistic alternatives that were open to him in terms of the children's interests - He did not err in concluding that the factors in favour of the move to Calgary - the fact that the wife would find it easier to live as a single parent in a more supportive family environment and might be able to find employment more easily due to her father's contacts - were outweighed by the benefits of their remaining in Maple Ridge, where the children were doing well and were able to see their father much more often than would be the case if they were in Calgary - The result might be different if (assuming the wife's reasons for wishing to move could properly be considered) the wife were moving in order to obtain a professional qualification (as in Gordon v. Goertz, S.C.C. 1996) or to be with a new spouse (as in Hejzlar, B.C.C.A. 2011) or if the children were clearly suffering emotionally or otherwise in Maple Ridge - "Fortunately", this was not the case: the benefits that the children would experience by moving to Calgary were, as the trial judge suggested, only marginal, in that they already had strong relationships with their relations on their mother's side, and were "thriving" in good schools and able to participate in athletic activities in acceptable facilities in Maple Ridge - See paragraphs 60 to 64.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Lump sum - Both parties contested on appeal the trial judge's $150,000 lump sum spousal support award in favour of the wife - Both parties made "DivorceMate" calculations - The wife said that if only her employment income was considered, the lump sum award should be between $256,000 and $330,000 - The wife conceded that if her overall income was considered, she would not be entitled to spousal support - The husband argued that the trial judge was entitled to consider the wife's investment and property income and was entitled to impute income to her based on her disinclination to work full-time - The husband asked that the lump sum be reduced to $21,768, based on imputed income of $177,468 for the husband and $127,489 for the wife - The British Columbia Court of Appeal declined to interfere, stating that the wife's spousal support entitlement should not be calculated using solely her employment income, but should be based on her total imputed income of $127,489 - See paragraphs 73 to 77.

Cases Noticed:

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

S.S.L. v. J.W.W. (2010), 284 B.C.A.C. 27; 481 W.A.C. 27; 81 R.F.L.(6th) 38; 2010 BCCA 55, consd. [para. 11].

Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, consd. [para. 33].

R.M.S. v. F.P.C.S. (2011), 299 B.C.A.C. 186; 508 W.A.C. 186; 2011 BCCA 53, consd. [para. 33].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, consd. [para. 33].

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, consd. [para. 33].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 40].

Nunweiler v. Nunweiler (2000), 137 B.C.A.C. 1; 223 W.A.C. 1; 2000 BCCA 300, consd. [para. 41].

Falvai v. Falvai (2008), 263 B.C.A.C. 74; 443 W.A.C. 74; 2008 BCCA 503, consd. [para. 41].

Hejzlar v. Mitchell-Hejzlar (2011), 304 B.C.A.C. 305; 513 W.A.C. 305; 2010 BCCA 230, consd. [para. 41].

Robinson v. Filyk (1996), 84 B.C.A.C. 290; 137 W.A.C. 290 (C.A.), refd to. [para. 53].

D.P. v. R.B. (2009), 285 Nfld. & P.E.I.R. 61; 879 A.P.R. 61; 2009 PECA 12, refd to. [para. 58].

MacNeil v. MacNeil (1997), 98 B.C.A.C. 311; 161 W.A.C. 311 (C.A.), refd to. [para. 69].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 69].

Watts v. Watts, [1987] B.C.J. No. 2072 (C.A.), refd to. [para. 70].

Godding v. Godding and Heffelfinger (1981), 26 R.F.L.(2d) 220 (B.C.C.A.), refd to. [para. 70].

Lodge v. Lodge (1993), 31 B.C.A.C. 72; 50 W.A.C. 72; 79 B.C.L.R.(2d) 360 (C.A.), consd. [para. 71].

Davison v. Hendriks, [2009] B.C.T.C. Uned. 1771; 2009 BCSC 1771, refd to. [para. 72].

Murphy v. Murphy, [2000] B.C.T.C. 432; 2000 BCSC 974, refd to. [para. 73].

Jiwa v. Jiwa (1992), 19 B.C.A.C. 114; 34 W.A.C. 114; 72 B.C.L.R.(2d) 96; 97 D.L.R.(4th) 252 (C.A.), refd to. [para. 80].

O'Bryan v. O'Bryan (1997), 97 B.C.A.C. 62; 157 W.A.C. 62; 43 B.C.L.R.(3d) 296 (C.A.), refd to. [para. 80].

Authors and Works Noticed:

Thompson, R., Ten Years After Gordon: No Law, Nowhere (2007), 35 R.F.L.(6th) 307, pp. 315 [para. 57]; 316 [para. 58].

Thompson, R., Where is B.C. Law Going? The New Mobility, Continuing Legal Education Society of British Columbia, 2011 Update, p. 8.2.7 [para. 57].

Counsel:

R.D. Holmes, Q.C., and L.J. Muir, for the appellant;

E.I.B. Hayward, for the respondent.

This appeal and cross-appeals were heard at Vancouver, B.C., on February 22, 2012, by Newbury, K. Smith and Neilson, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered at Vancouver, B.C., on March 30, 2012, by Newbury, J.A.