Yemchuk v. Yemchuk (2005), 215 B.C.A.C. 193 (CA);
355 W.A.C. 193
MLB headnote and full text
Temp. Cite: [2005] B.C.A.C. TBEd. AU.024
Eugene Morris Yemchuk (appellant/plaintiff) v. Marlene Patricia Yemchuk (respondent/defendant)
(CA032450; 2005 BCCA 406)
Indexed As: Yemchuk v. Yemchuk
British Columbia Court of Appeal
Prowse, Hall and Saunders, JJ.A.
August 5, 2005.
Summary:
The parties separated in 2001 after a 35 year marriage. A divorce proceeding was commenced. The family assets were divided equally. The husband applied for spousal support.
The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. Uned. 635, dismissed the husband’s application. The husband appealed, seeking spousal support, including retroactive support, until the wife’s anticipated retirement in 2007.
The British Columbia Court of Appeal allowed the appeal. The court ordered the wife to pay spousal support of $1,100 per month, commencing February 2004. That amount would reduce to $800 on June 1, 2005 when the husband became entitled to his old age security pension. Support payments would continue until the wife’s retirement.
Family Law – Topic 4001.1
Divorce – Corollary relief – Maintenance and awards – Retroactive awards – A husband’s application for spousal support was contained in a notice of motion dated September 26, 2002 – The application did not come on for hearing until February 2004 – It was continued in October 2004 when it was dismissed – The husband appealed, seeking support, including retroactive support – The British Columbia Court of Appeal allowed the appeal and ordered that spousal support payments commence as of February 2004 when the application first came on for hearing – The husband had established a need for some relief by way of a retroactive order and the wife had a corresponding ability to pay – The effect of the order was to place the consequences of the delay on both parties and to take into account the parties’ overall financial circumstances – See paragraphs 73 to 76.
Family Law – Topic 4009.1
Divorce – Corollary relief – Maintenance and awards – Effect of retirement of spouse – [See
Family Law – Topic 4022.2
].
Family Law – Topic 4021
Divorce – Corollary relief – Maintenance and awards – Awards – Considerations – General – The parties separated after a 35 year marriage – Both parties had worked throughout the marriage – The husband retired in 1997 in order to relocate for the wife’s employment – The wife continued to work – Her annual income was $75,000 – The husband’s income was $37,000 – The trial judge dismissed the husband’s application for spousal support on the basis that he had not established a need for support – The British Columbia Court of Appeal allowed an appeal – The court held, inter alia, that the trial judge viewed “need” too narrowly by treating need as solely a question of meeting expenses – The court stated that the concept of “need” in the context of a long-term marriage involving a sharing of resources should take into account the relative standard of living of the spouses following the marriage breakdown – See paragraphs 48 to 49.
Family Law – Topic 4021.2
Divorce – Corollary relief – Maintenance and awards – Awards – Considerations – Leaving labour market for family responsibilities – [See
Family Law – Topic 4022.2
].
Family Law – Topic 4021.5
Divorce – Corollary relief – Maintenance and awards – Awards – Support tables – The British Columbia Court of Appeal discussed the Spousal Support Advisory Guidelines – The court stated, inter alia, that “I have no hesitation in viewing the Advisory Guidelines as a useful tool to assist judges in assessing the quantum and duration of spousal support. They do not operate to displace the courts’ reliance on decided authorities (to the extent that relevant authorities are forthcoming) but to supplement them. In that regard, they do not constitute evidence, but are properly considered as part of counsels’ submissions” – See paragraphs 61 to 64.
Family Law – Topic 4022.1
Divorce – Corollary relief – Maintenance and awards – Awards – To spouse – Extent of obligation – [See
Family Law – Topic 4022.2
].
Family Law – Topic 4022.2
Divorce – Corollary relief – Maintenance and awards – Awards – To husband – Considerations – The parties separated in 2001 after a 35 year marriage – The family assets were divided equally, including the parties’ employment pensions – The husband sought spousal support – Both parties had worked throughout the marriage – The husband retired in 1997 in order to relocate for the wife’s employment – The wife continued to work and would retire in 2007 – Her annual income was $75,000 – The husband’s income was $37,000 – The British Columbia Court of Appeal held that the husband was entitled to spousal support – There was a significant disparity in the spouses’ economic circumstances and standards of living, which arose directly from the marriage breakdown – The principal reason for that disparity was the husband’s early retirement in 1997 to accommodate the wife’s employment – The circumstances and effect of the husband’s retirement raised a compensatory aspect to his support claim – He had also demonstrated need for support – The court ordered the wife to pay $1,100 per month, commencing February 2004 – That amount would reduce to $800 on June 1, 2005 when the husband became entitled to his old age security pension – Support payments would continue until the wife’s retirement – See paragraphs 20 to 52.
Family Law – Topic 4027
Divorce – Corollary relief – Maintenance and awards – Awards – Effect of income or potential income of claimant – The trial judge dismissed the husband’s application for spousal support on the basis that he had not established a need for support – In addition to the husband’s annual income, the trial judge attributed further income of $800-$1,000 per month to the husband on the basis that he would have received that amount if he had invested the lump sum he received as his share of the wife’s employment pension in an annuity, instead of in short term investments – The British Columbia Court of Appeal held that the trial judge’s attribution of $800-$1,000 to the husband was not justified in the circumstances – The husband was in a disadvantaged position in relation to the wife because he had retired early in 1997 in order to relocate for the wife’s employment – The wife shared in the benefit of the lump sum he received at that time and she shared in his pension income – The trial judge’s decision to impute income to the husband resulted in the husband bearing the full burden of a decision which was made by the parties for their mutual benefit – See paragraphs 43 to 47.
Family Law – Topic 4034
Divorce – Corollary relief – Maintenance and awards – Awards – Effect of division of matrimonial property – The British Columbia Court of Appeal found that a husband was entitled to spousal support – In approaching the issue of quantum, the court considered whether the wife’s income from the husband’s pension should be taken into account – The court’s concern was whether including that income in the wife’s overall income gave rise to the possibility that the husband was seeking to “double dip”, i.e., having lost 50% of his pension income to the wife through division of assets, was he seeking to regain it through an order of spousal support? – The court concluded that the husband’s pension income should be treated in the same manner in the hands of both parties, i.e., it should be either included or excluded from both parties’ incomes – In this case, the court held that it should be included as income to both parties since that accorded with practical realities – It did not result in “double dipping” – See paragraphs 56 to 57.
Cases Noticed:
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. 17].
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. 19].
Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, consd. [para. 19].
Myers v. Myers (1995), 65 B.C.A.C. 226; 106 W.A.C. 226; 17 R.F.L.(4th) 298 (C.A.), refd to. [para. 48].
Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50, refd to. [para. 57].
W. v. W., [2005] B.C.T.C. 1010; 2005 BCSC 1010, refd to. [para. 64].
L.S. v. E.P. (1999), 126 B.C.A.C. 28; 206 W.A.C. 28; 67 B.C.L.R.(3d) 254 (C.A.), refd to. [para. 74].
Authors and Works Noticed:
Rogerson, Carol, and Thompson, Rollie, Spousal Support Advisory Guidelines: A Draft Proposal (2005), generally [paras. 4, 61].
Counsel:
K. Pepper, for the appellant;
P. Daltrop, for the respondent.
This appeal was heard on June 9, 2005, at Vancouver, British Columbia, before Prowse, Hall and Saunders, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Prowse, J.A., on August 5, 2005.
