



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Boekhoff v. Boekhoff,









2016 BCCA 33




Date: 20160125

Docket: CA42377

Between:

Jayne Kathleen Boekhoff

Appellant

Respondent on Cross Appeal

(Claimant)

And

Gerald Daniel Boekhoff

Respondent

Appellant on Cross
Appeal

(Respondent)




Before:



The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Tysoe

The Honourable Madam Justice Garson




On appeal from:  An
order of the Supreme Court of British Columbia, dated October 29, 2014 (
Boekhoff
v. Boekhoff
, 2014 BCSC 2027, Vancouver Docket D092660).




Counsel for the Appellant:



G.A. Phillips

O. Gavrilova





Counsel for the Respondent:



M.R. Slay

L.N. Marenco





Place and Date of Hearing:



Vancouver, British
  Columbia

December 3, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 25, 2016









Written Reasons by:





The Honourable Madam Justice Garson





Concurred in by:





The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Tysoe




Summary:

The
appellant appeals and the respondent cross appeals a summary trial judgment
cancelling spousal support arrears and ordering recommenced payment of monthly
spousal support. In 2001, the parties agreed to reduce monthly support
payments. The appellant did not object to the reduction until 2010, when her
counsel sent a letter demanding arrears and reinstatement of the full amount.
She took no further steps until commencement of these proceedings in 2014.
Held: The appellants appeal is dismissed. The respondents cross appeal is
allowed in part. Because no consideration passed between the parties, the 2001
agreement was not a contract. However, the appellant waived her right to full
support, and the waiver was not withdrawn unequivocally until she commenced
this proceeding. The summary trial judge did not expressly consider if there
was a material change in circumstances as required by the Divorce Act, R.S.C.
1985, c. 3 before cancelling arrears. However, the waiver and the
consequences arising therefrom satisfy the material change in circumstances
test. Arrears are cancelled until the date the waiver was withdrawn. In
reinstating spousal support, the summary trial judge erred by beginning from
the position that the parties income should be equalized without considering
their current means, needs and circumstances. This case is an appropriate case
for the application of the Spousal Support Advisory Guidelines. Support is
reinstated based on a reduced Guideline amount.

Reasons
for Judgment of the Honourable Madam Justice Garson:

Introduction

[1]

This appeal and cross-appeal arise under the
Divorce Act
, R.S.C.
1985, c. 3 (2nd Supp.). The appellant, Jayne Boekhoff, appeals a summary
trial judgment cancelling spousal support arrears of approximately $99,000 owed
by the respondent, Gerald Boekhoff, her former husband. Mr. Boekhoff
cross-appeals a second order requiring him to recommence payment of spousal
support in the amount of $800 per month.

[2]

The summary trial judges reasons are indexed at 2014 BCSC 2027 (the
2014 Reasons).

[3]

For the reasons that follow I would dismiss the appeal of the order
cancelling the arrears, and allow the cross-appeal in part by reducing the
spousal support to $424 per month.

Facts

Background

[4]

The appellant and respondent were married for over 20 years. Throughout
the course of their marriage, Ms. Boekhoff primarily remained at home to
care for the parties two children, D. and L. Both children had and continue to
have health and developmental difficulties.

[5]

The parties were divorced in 1997. Following a trial, Mr. Boekhoff
was ordered to pay $800 per month in spousal support on an indefinite basis:
Boekhoff
v. Boekhoff
, [1997] B.C.J. No. 838 (S.C.) (the 1997 Reasons).

[6]

In the fall of 2000 or early 2001, the parties met to discuss the
ongoing spousal support payments. There is some dispute about who was present
at this meeting, and about what (if any) agreement arose as a result. Ms. Boekhoff
says that her then common law spouse, Mr. White, one of her sons, and Mr. Boekhoff
attended. Mr. Boekhoff says that only he and Ms. Boekhoff were
present.

[7]

Mr. Boekhoff says that the parties agreed to reduce support payments
to $200. The $200 was intended to provide financial assistance for their son L.
Ms. Boekhoff says that she was pressured into agreeing by other people
present at the meeting.

[8]

Following the 2001 meeting, Mr. Boekhoff paid Ms. Boekhoff $200
per month, and from 2001 to 2008, Ms. Boekhoff provided him with receipts
for the full $800 amount. She took no issue with the amount of the support
payments for approximately 10 years.

[9]

On September 8, 2010, Ms. Boekhoffs counsel sent Mr. Boekhoff
a letter requesting immediate reinstatement of the full $800 amount, as well as
payment of the arrears said to have accrued in the period following the alleged
agreement. That letter reads, in part, as follows:

We act for Jayne Boekhoff who informs us
that you unilaterally reduced the permanent spousal support payments effective
January 1, 2001 from $800.00 per month to $200.00 per month. You should
immediately resume support payments of $800.00 per month.

We calculate
arrears of support payments at $70,000.00 exclusive of interest. Kindly provide
your cheque in that amount payable to Phillips Paul in trust within fifteen
days of the date of this letter.

[10]

Mr. Boekhoffs counsel responded by stating that the parties had
come to an agreement respecting the amount of spousal support payments in 2001.
Ms. Boekhoff took no further steps for over three years until she commenced
the within application in March 2014.

[11]

In these underlying applications, Ms. Boekhoff sought payment of
$99,000 in arrears and reinstatement of the monthly support payments, increased
to an amount considered appropriate by the court. Mr. Boekhoff opposed the
application for payment of the arrears, and brought his own application to vary
the 1997 order by terminating or alternatively reducing spousal support.

Circumstances of the Parties

[12]

At the time of summary trial, Mr. Boekhoff was 61 years old and Ms. Boekhoff
was 59.

[13]

Prior to the parties marriage, Ms. Boekhoff obtained only a grade
10 education. She obtained no further education or training during the
marriage, working unskilled labour jobs for short periods. At the time of the
1997 trial she worked part time earning approximately $1,800 per month (1997
Reasons at para. 18). Mr. Boekhoff worked as a body shop manager and
automotive mechanic (2014 Reasons at para. 11). While not employed at the
time of trial in 1997, he was actively looking for work and expected to be
re-employed. I infer that the trial judge estimated his income in the $60,000
range (1997 Reasons at para. 21).

[14]

In the period following their divorce, Ms. Boekhoff has since
improved her education and is now employed as an educational assistant (2014 Reasons
at para. 41). Her employment income in 2013 was $23,000. Additionally, she
receives $7,200 in tax free income providing respite care, and approximately
$10,200 additional untaxed income (at para. 42).

[15]

Ms. Boekhoff purchased a home in 2003 with a market value of
$406,000 (at para. 43). As of the date of summary trial, she had
approximately $183,000 net equity in the home.

[16]

Without spousal support, the summary trial judge found Ms. Boekhoffs
annual income to be $48,700 (at para. 42.). He included income from her
current common law spouse, who had been contributing approximately $500 per
month to household expenses. She continues to provide limited financial
assistance to D. and L. Mr. Boekhoff does not provide any financial
assistance to the children.

[17]

Mr. Boekhoff operates a franchised restoration business with his
common law spouse (at para. 45). His net business income in 2013 was
$62,283. He owns a home which, at the time of summary trial, was worth $479,000
and in which he had net equity of $94,498.

Reasons for Judgment of the Summary Trial Judge

[18]

As may be inferred from the foregoing, the key issue before the
summary trial judge was whether the parties agreed to reduce spousal support in
2001.

[19]

After setting out the circumstances of the parties marriage and
divorce, the judge described the circumstances surrounding the 2001 meeting in
the following terms:

[17]      In either late fall of
2000 or early January of 2001, the parties met to discuss ongoing spousal
support. The respondent inquired about the duration of spousal support during
his meeting with the claimant. At that meeting the claimants then common law
spouse, Brent White, stated that she did not require the respondents spousal
support. The parties agreed that a reduced amount of $200 would be paid by the
respondent to the claimant to provide support to [L].

[20]

The judge noted that Ms. Boekhoff refused to put the agreement into
writing, or attend court to terminate the order, but that she continued to
provide Mr. Boekhoff with $800 receipts.

[21]

Ms. Boekhoff argued at trial that the agreement was obtained under
duress. The summary trial judge did not expressly consider this argument in his
reasons. However, he noted at para. 20 that initially, she claimed that Mr. Boekhoff
was abusive and intimidated her into accepting reduced support. He further
noted that Ms. Boekhoff later stated it was Mr. White who persuaded
her to accept the $200 per month.

[22]

Aside from the September 8, 2010, letter, the summary trial judge found
that Ms. Boekhoff made no attempts to seek arrears or otherwise enforce
the initial $800 payment order through the Family Maintenance Enforcement
Program (the FMEP), despite being registered with FMEP (at para. 22).

[23]

Ultimately, the judge concluded that the parties had come to an
agreement in 2001, stating the following:

[32]      I am
satisfied the parties agreed in 2001 to reduce the spousal support of $800 per
month to $200 per month.

[24]

It would appear implicit in this and subsequent findings that he
rejected Ms. Boekhoffs argument that the agreement was the result of
duress.

[25]

The summary trial judge found the facts justified an order cancelling
arrears. He noted that the burden rested with Mr. Boekhoff to demonstrate
that it would be grossly unfair not to cancel arrears (at para. 34). He
found that there was no evidence indicating that Ms. Boekhoff had suffered
financially as a result of the reduction in support (at para. 35). As a
matter of principle, he stated that where support is reduced by agreement, a
court is entitled to take into account a partys failure to enforce the
agreement and make an order retroactively reducing support to the date of the
alleged agreement (at para. 36).

[26]

However, the summary trial judge considered the main point to be that Ms. Boekhoff
was estopped from alleging an entitlement to the arrears, having agreed to a
reduction (at para. 37). He cited public policy against hoarding, and
found that if arrears were ordered to be paid, it would work a hardship
against [Mr. Boekhoff] and be financially prejudicial to him (at para. 37).

[27]

Accordingly, the summary trial judge ordered arrears rescinded from
January 1, 2001 to September 1, 2014, the month in which the summary trial
occurred.

[28]

After reviewing the present circumstances of the parties, the
summary trial judge reinstated prospective spousal support of $800 on an
indeterminate basis from October 1, 2014. In making this order, he noted that
the parties income would be approximately equal if an $800 per month award was
made:

[49]      The respondents present annual income is $62,283
while the claimants is $48,700, of which approximately half is tax free.

[50]      If McEwan J.s spousal support order of $800 per
month tax free continues, the claimants annual income would be $58,400.

[51]      The respondents annual
income would then be $52,683 but his share of his business income is one-half
of the total. The other half is attributable to his wife and business partner.
His business and personal expenses are shared with his wife. Therefore the
income of the parties will be approximately equal.

[29]

He considered an indefinite award equalizing the parties income to be
fair given the duration of their marriage and the economic disadvantage
suffered by Ms. Boekhoff after its breakup (at para. 54).

Issues

[30]

The following issues are raised on appeal:

a)

Did the parties
reach an agreement in 2001, and if so, what is the effect of that agreement?

b)

Did the summary
trial judge err in cancelling the arrears that accrued between January 1, 2001
and September 1, 2014?

c)

Did the summary
trial judge err in reinstating prospective spousal support of $800 per month on
an indeterminate basis?

Discussion

Did the parties reach an agreement in 2001, and if so, what is the effect
of that agreement?

[31]

As already noted, there are differing accounts of the meeting between
the parties at which they agreed to reduce spousal support. In her first
affidavit filed in support of this application, Ms. Boekhoff deposed that Mr. Boekhoff
unilaterally reduced the amount of spousal support in January 2001. She made
no reference to a meeting, and said that she consented to a reduction because
she felt threatened by Mr. Boekhoff. In his responding affidavit, Mr. Boekhoff
deposed that the parties had a discussion in September 2000, and that Ms. Boekhoff
told him that she no longer needed support. He said that the ongoing payments
of $200 were intended to support L. In her next affidavit, Ms. Boekhoff said
that she did not agree to a permanent reduction in spousal support. She said
that she agreed to a temporary reduction because of Mr. Boekhoffs
bullying, and that at the time, she was also living with an abusive partner, Mr. White.
When cross-examined on this affidavit, she testified that the meeting in
question took place at her home, and that it was Mr. White who had said,
She doesnt need the money, she will take the 200. She said that Mr. White,
Mr. Boekhoff, and her son D. (who was also present) had agreed on her behalf
that she would take $200.

[32]

Mr. Boekhoff testified in his cross-examination that he could not
recall Mr. Whites presence at the meeting.

[33]

The summary trial judge accepted Ms. Boekhoffs
viva voce
account of the meeting in the sense that he found that Mr. White was
present and it was he who stated she did not require Mr. Boekhoffs
support.

[34]

However, it is clear that the judge found as a fact that Ms. Boekhoff
agreed to the reduced amount (at para. 32). There was ample evidence to
support this finding. Indeed, her differing accounts of the meeting were not
reconcilable. From the cross-examination on her affidavits, it seems she
finally settled on the assertion that it was Mr. Whites threats and
intimidation that constituted the duress, but that she ended that relationship
some time in 2001. As noted, she made no effort to enforce the terms of the
original support order until 2010, long after her relationship with Mr. White
ended or to enforce the arrears through FMEP.

[35]

While the summary trial judge found agreement as a fact arising out of
the 2001 meeting, he did not address the issue of whether this agreement was
legally binding. Arguments focussed on duress, apparently assuming that the
constituent elements of a legally binding contract were otherwise present.

[36]

It is clear from a review of the facts that the 2001 agreement was not a
legally binding contract. It is well established that a contract requires
consideration. The essence of a contract is a bargain, or an exchange of
promises by which each side receives something from the other (see: G.H.L.
Fridman,
The Law of Contract in Canada
, 6th ed. (Toronto: Thomson
Reuters, 2011) at 82). Accordingly, if one party to an agreement is neither
giving anything, nor promising to do or give anything, there is no
consideration and an agreement is not legally binding (see, e.g.:
Can West
Tree Fruits Ltd. v. T.G. Bright & Co
, [1990] 6 W.W.R. 89 (B.C.C.A.).

[37]

A benefit accrued to Mr. Boekhoff as a result of the 2001
agreement. That benefit was in the form of Ms. Boekhoffs promise to
accept less than the amount of spousal support that she was legally entitled
to. However, Mr. Boekhoff neither undertook a corresponding obligation nor
provided any new benefit to Ms. Boekhoff in exchange for that promise.

[38]

Because no consideration flowed from Mr. Boekhoff to Ms. Boekhoff,
no binding contract was created as a result of the 2001 meeting.

[39]

In some limited circumstances, the law may hold a party to an agreement
despite the absence of consideration through doctrines such as promissory
estoppel and waiver. Promissory estoppel occurs where one party, by words or
conduct, makes a promise intended to affect the parties legal relationship,
and in reliance on that promise, the other party acts to his or her detriment:
Maracle
v. Travelers
Indemnity Co of Canada
, [1991] 2 S.C.R. 50 at 57
. A waiver is said to occur where
the evidence shows that the party waiving their rights had a full knowledge,
and an unequivocal and conscious intention to abandon them:
Saskatchwan
River Bungalows Ltd. et al. v. Maritime Life Assurance Co.
, [1994] 2 S.C.R.
490 at 499-500. The two doctrines are closely related; the principle underlying
both is that a party should not be allowed to go back on a choice when it would
be unfair to the other party to do so:
Saskatchewan River Bungalows
at
499.

[40]

On appeal, this Court raised the question of whether Ms. Boekhoffs
agreement in 2001 constituted a waiver. This in turn raised the question of
what the effect of the September 8, 2010, letter was, since a waiver can be
withdrawn on reasonable notice:
Saskatchewan River Bungalows
, at 502.

[41]

In my opinion, Ms. Boekhoff waived her right to receive $800
maintenance payments between January, 2001, and March 1, 2014.

[42]

The facts as found by the summary trial judge indicate that Ms. Boekhoff
was fully aware of her right to receive the $800 payments. She was a party to
the proceeding in which the order giving rise to that right was made. Mr. Boekhoff
brought (unsuccessfully) at least one application to vary the support
obligation before the 2001 meeting (2014 BCSC 2027 at para. 15) evidencing
Ms. Boekhoffs knowledge of her entitlement to spousal support. Prior to the
2001 meeting, Mr. Boekhoff paid Ms. Boekhoff the full amount of
support (at para. 16). The summary trial judges recognition that the
parties agreed to decrease the amount of support (whether or not that
agreement rose to the level of a binding contract) presupposes Ms. Boekhoffs
full awareness of her rights.

[43]

The facts likewise support a finding that Ms. Boekhoff consciously
and unequivocally intended to abandon her right to full payment. Again, in
accepting that the parties reached an agreement, the summary trial judge
accepted that Ms. Boekhoff communicated her willingness to receive less
than the full amount of payment. He rejected (if not explicitly) Ms. Boekhoffs
assertion that she was under duress when she agreed to the reduction. Moreover,
Ms. Boekhoffs conduct following the 2001 meeting indicates a conscious
intention to abandon her rights. As noted, she accepted $200 cheques, provided
receipts for $800, and made no attempt to seek arrears until 2010, long after
the end of her relationship with Mr. White.

[44]

This brings me to the question of if and when that waiver was withdrawn.
In my opinion, the September 8, 2010, letter did not have the effect of
withdrawing the waiver. A partys subsequent conduct can nullify what would
otherwise amount to reasonable notice: see, e.g.,
Chan v. Lorman
Developments Ltd.
, 2007 SKQB 173 at para. 45. While the letter might
have acted as reasonable notice in other circumstances, in my view, Ms. Boekhoffs
subsequent conduct nullified its effect. Upon receiving the letter, Mr. Boekhoff
responded by asserting the existence of the 2001 agreement. Ms. Boekhoff
made no further attempt to collect arrears until filing this application. However,
I view the filing of this application in March 2014 as an unequivocal
withdrawal of the waiver. Ms. Boekhoffs conduct in respect of this
application indicates a clear intention to reassert her legal rights.

[45]

In my opinion, the summary trial judge correctly concluded that Ms. Boekhoff
was estopped from asserting an entitlement to arrears arising as a result of
the reduced payments.

[46]

This does not, however, fully resolve the question of whether arrears
were appropriately
cancelled
. Since the authority to cancel arrears
arises under the
Divorce Act
, the waiver analysis should be incorporated
into an analysis of the requirements of that statute.

Did the summary trial judge err in ordering arrears between January 1, 2001
and September 1, 2014 cancelled?

[47]

The statutory authority to cancel arrears of spousal support is found in
s. 17 of the
Divorce Act
. Section 17(1) provides:

17. (1) A court of competent jurisdiction
may make an order varying, rescinding or suspending, prospectively or
retroactively,

(
a
) a
support order or any provision thereof on application by either or both former
spouses; or

(
b
) a custody order or any provision
thereof on application by either or both spouses or by any other person.

[48]

Section 17(4.1) sets out a number of factors
considered on an application under s. 17(1), and reads as follows:

Before the court
makes a variation order in respect of a spousal support order, the court shall
satisfy itself that a change in the condition, means, needs or other
circumstances of either former spouse has occurred since the making of the
spousal support order or the last variation order made in respect of that
order, and, in making the variation order, the court shall take that change
into consideration.

[49]

An order cancelling arrears is a form of retroactive variation:
Earle
v. Earle
, 1999 BCSC 283, [1999] B.C.J. No. 383 at para. 21
(B.C.S.C.). Accordingly, s. 17(4.1) applies to applications to cancel
arrears (see for example:
Eichen v. Eichen
, 2012 BCCA 32;
Whyte v.
Whyte
, 2002 BCCA 433 at para. 49).

[50]

In making a variation order, the Court must take into account the
objectives set out in s. 17(7):

A variation order varying a spousal support order should

(
a
) recognize any economic advantages or
disadvantages to the former spouses arising from the marriage or its breakdown;

(
b
) apportion between the former spouses any
financial consequences arising from the care of any child of the marriage over
and above any obligation for the support of any child of the marriage;

(
c
) relieve any economic hardship of the former
spouses arising from the breakdown of the marriage; and

(
d
) in so far as
practicable, promote the economic self-sufficiency of each former spouse within
a reasonable period of time.

[51]

In
L.M.P. v. L.S.
, 2011 SCC 64, the Supreme Court of Canada
described the proper approach to variation applications. First, a court must
determine whether there has been a material change in circumstances since the
making of the original order. A material change is one that, if known at the
time the original order was made, would likely have resulted in different terms
(at para. 32). Other factors, such as the subsequent conduct of parties,
may provide indications as to whether they considered a particular change to be
material (at para. 35).

[52]

The test the trial judge applied to cancel the spousal support arrears was
whether it would be grossly unfair not to do so, relying on
Lewis v. Lewis
(1999), 2. R.F.L. (5th) 417, 1999 CarswellBC 2468 at para. 16 (S.C.). The
test for cancelling arrears of spousal support under s. 174(1) of the
Family
Law Act
, S.B.C. 2001, c. 25 is one of gross unfairness. However the
test to cancel arrears of spousal support arrears under the
Divorce Act
is
prescribed by s. 17(1) and 17(7)
.

[53]

This Courts decision in
Cawker v. Cawker
(1995), 18 R.F.L. (4th)
268, 1995 CarswellBC 658 (C.A.) highlights the significance of an agreement to
reduce support, and a recipients delay in seeking enforcement of the original
order.
In
Cawker
, the husband agreed to pay child and
spousal support totaling $2,100 per month following a divorce. After his income
decreased owing to fewer working hours, the wife agreed to reduce the total
maintenance to $1,800 per month. At trial, it was found that she consented to a
reduction for a period of three months, believing maintenance would be restored
to the previous level once the husbands hours increased again. However, the
husband continued to pay $1,800 monthly for approximately nine years, during which
time the wife never sought arrears. Following further unilateral reductions,
the wife sought enforcement of the $2,100 obligation and the husband brought a
cross application for variation of support and cancellation of arrears.

[54]

In deciding whether to vary the order
retroactively, this Court emphasized the significance of the wifes delay (at para. 25):

[I]
t is, in
my opinion, very significant that the wife never raised the question of the
payments going back to $2,100 a month
. She saw her husband pretty well
every month when he came to visit the children. There were opportunities for
her to raise that question. It may well be that she did not regard the
reduction as proper but decided that she would not insist on her rights because
she did not wish to provoke court proceedings or promote animosity and she
should not be penalized for taking those kinds of positions. But the fact
remains that the maintenance remained at $1,800 per month and there is no
reason to believe that the wife would ever have asked that it go back up to
$2,100 if the husband, ten years later, had not unilaterally sought to make
significant reductions in the maintenance. [Emphasis added.]

[55]

The Court ordered a
retroactive variation of arrears back to the date that the wife allegedly consented
to a reduction.

[56]

In this case, the summary trial judges reasons emphasize the importance
of the 2001 agreement and Ms. Boekhoffs delay in seeking arrears. He
considered questions of gross unfairness and delay, and relied on
Lewis
and
Cawker
in ordering arrears cancelled.

[57]

The summary trial judge did not structure his analysis around the
requirements of s. 17. He did not consider whether there was a material
change in circumstances that would justify a variation order. While he
discussed the parties present circumstances, and noted that there was no
evidence that Ms. Boekhoff had suffered financial prejudice as a result of
the reduction, he did not compare their present circumstances to those extant
in 1997.

[58]

Ms. Boekhoff submits that the summary trial judge erred in failing
to address any of the requirements of s. 17 prior to cancelling arrears,
and in applying the gross unfairness test.

[59]

Mr. Boekhoff submits that the summary trial judge made no error in
ordering arrears cancelled. He submits that the judge was not required to
explicitly analyze s. 17, that judges are presumed to know the law, and
that the analysis in this case was appropriate and satisfactory.

[60]

In my opinion, the judges failure to consider whether there had been a
material change in circumstances before making what amounted to a retroactive
variation was an error in principle. However, on appeal I do not understand
either party to dispute that there has been a material change in circumstances since
1997. (Both parties applications in the lower court were premised on a
material change.) Given the length of time between now and the original order,
it would be surprising if that were not so. Mr. Boekhoff is now
self-employed earning business income, and Ms. Boekhoff has improved both
her education and her income. These circumstances are different from those extant
in 1997, described in some detail above. I consider them to be such that if
known at the time the original order was made, would likely have resulted in
different terms:
L.M.P.


[61]

I likewise consider the fact of the 2001 agreement, Mr. Boekhoffs
reliance on it, and Ms. Boekhoffs failure to take steps towards enforcing
the original order, to be relevant to the question of a material change in
circumstances. I agree with the approach of the New Brunswick Court of Appeal in
P.M.B. v. M.L.B.
, 2010 NBCA 5. The court discussed the meaning of
material change in circumstances as applicable to both provincial legislation
and the federal
Divorce Act
. At paras. 18-19, the Court said the
following:

As a general proposition, it is safe to
conclude that under both the federal and provincial legislation, the right to a
retroactive variation with respect to reducing or eliminating arrears of either
spousal or child support, is dependent on the applicant payer establishing a
material change in circumstances during the period of retroactivity.

There is no reason why the concept of
change in circumstances cannot be viewed flexibly as it has in the past,
thereby accommodating a host of factual developments justifying the issuance of
retroactive orders that reflect a partial or full remission of support arrears.
Certainly, estoppel and detrimental reliance based arguments that the
support recipient led the payer to believe that the obligation to pay support
would not be enforced would fall within the ambit of the change in
circumstances test
.

[Emphasis
added.]

[62]

I have found that Ms. Boekhoff waived her right to full support
payments. She did so with full knowledge of her right to receive full support
payments. The effect of the 2001 agreement was to lead Mr. Boekhoff to
believe that he was only required to make reduced payments. In my view, the
waiver and the consequences arising from it must constitute a material change
in circumstances.

[63]

Taking into account s. 17(4.1), and the factors listed in s. 17(7),
in my opinion this was an appropriate case to order arrears cancelled.
Considering Ms. Boekoffs agreement to waive spousal support, and the
undoubted hardship that enforcement would impose on Mr. Boekhoff, as well
as the judges finding that Ms. Boekhoff did not suffer hardship in the
interim period, I agree with the judges conclusion that arrears should be
cancelled. I would cancel arrears up to the date Ms. Boekhoff filed her
application to enforce the original agreement, that is March 13, 2014, the date
she unequivocally withdrew the waiver.

Did the summary trial judge err in reinstating prospective spousal support
of $800 per month on an indeterminate basis?

[64]

As noted, in addition to her application for arrears, Ms. Boekhoff
applied for an order that Mr. Boekhoff pay spousal support on a monthly
basis, increased from $800 per month to an amount considered appropriate by the
Court pursuant to s. 17(1) of the
Divorce Act
. Mr. Boekhoff
applied to terminate spousal support.

[65]

The cross-appeal engages two separate enquiries. The first question is Ms. Boekhoffs
entitlement to ongoing spousal support. The second is the question of quantum
and duration.

[66]

Given the nature of the cross-applications, I would infer that the summary
trial judge construed the matter before him as an application to vary spousal
support pursuant to s. 17(1), based on a material change in circumstances.

[67]

Mr. Boekhoff submits that the summary trial judge erred in finding
that Ms. Boekhoff had a continuing entitlement to spousal support. He
submits that Ms. Boekhoffs conditions and means have significantly
improved, and that if the judge had considered these improvements he would have
found that no such entitlement existed.

[68]

Ms. Boekhoff submits that the summary trial judge made no error in
reinstating the $800 payments. She emphasizes the findings respecting the
disparities in the parties income and income earning capacity. She submits
that it is evident from the reasons that the summary trial judge found there
was no change in the parties relative means, needs or other circumstances that
would justify variation of the original support obligation of $800.

[69]

In this case, the summary trial judge simply ordered that spousal
support payments recommence at $800 per month. He did so without reference to statutory
authority. He did not explicitly consider the extent of the material change in
circumstances between those extant at the time of the application and the time
of the original order. He did not directly address the two separate enquiries
of entitlement and quantum.

[70]

Rather, the judge appears to have worked from the proposition that the
parties were entitled to approximately equal income, concluding that continuing
Mr. Boekhoffs $800 support obligation would achieve that end. The
relevant portions of his judgment (set out in part above) read as follows:

[49]      The respondents present annual income is $62,283
while the claimants is $48,700, of which approximately half is tax free.

[50]      If McEwan J.s spousal support order of $800 per
month tax free continues, the claimants annual income would be $58,300.

[51]      The respondents annual income would then be
$52,683 but his share of his business income is one-half of the total. The
other half is attributable to his wife and business partner. His business and
personal expenses are shared with his wife. Therefore, the income of the
parties will be approximately equal.

[52]      However, the respondents ability to generate more
income in the future will always be greater than the claimant.

[53]      Marriages of over 20
years duration with continuing economic disadvantage for one party after the
marriage break up carries with it long term and perhaps permanent spousal
support. It is therefore not unfair that the parties income be roughly equal.

[71]

In my opinion, the summary trial judge erred by
beginning
from
the proposition that the parties income should be equalized. While the judge
correctly stated that a lengthy marriage with continuing economic disadvantage
may carry a lengthy and perhaps permanent spousal support obligation, he did
not consider to what extent Ms. Boekhoff now enjoys a standard of living
comparable to that experienced by the parties during their marriage. He did not
consider the parties means, needs and circumstances as mandated by
Divorce
Act
s. 17(4.1), nor did he consider the factors listed in s. 17(7).
In my view, the summary trial judge erred in resting his analysis on the
primary criteria that the parties incomes should be equalized, some 18 years
following the initial support order without first considering Ms. Boekhoffs
(improved) financial circumstances.

[72]

There is little dispute on the facts of this case either as found by the
judge or on the uncontested evidence adduced by the parties. Both parties ask
that this Court avoid remitting the question of ongoing spousal support for a
new trial. I agree that this Court is in a position to address this issue.

[73]

As there is no question that there is a material change in circumstances,
it follows that the next question is Ms. Boekhoffs ongoing entitlement. That
question is addressed in large part by the findings respecting Ms. Boekhoffs
circumstances. The summary trial judge concluded that the original support
order was compensatory, and that the basis of a compensatory award continued
(at para. 40). He found that despite Ms. Boekhoffs best efforts to
educate herself, her income remained low, and her income earning potential
would always be lower than Mr. Boekhoffs (at paras. 41, 52). I do
not consider that these findings were made in error. They are supported by the
evidence. These findings indicate that Ms. Boekhoff has some entitlement
to spousal support.

[74]

I now turn to the quantum and duration of that support. In his
cross-application, Mr. Boekhoff submits that the summary trial judge erred
by not referring to the
Spousal Support Advisory Guidelines
, (Ottawa,
Dept. of Justice: 2008) (the 
SSAG
), and by making an order for support
outside the range of recommended outcomes under them.

[75]

Before I return to the application of
SSAG
, I shall address the
question of the relevance of the standard of living enjoyed by the parties
during the course of their marriage to ongoing support entitlement:
Tedham
v. Tedham
, 2005 BCCA 502 at paras. 51-60. In
Zacharias v. Zacharias
,
2015 BCCA 376 at paras. 54 to 57, this Court said the following:

Where entitlement to compensatory support is established,
and the marriage has been a long one, the marital standard of living is often a
reasonable measure of appropriate compensation.
It represents the standard
that the parties themselves established as a result of each individuals
sacrifices and advantages during the union, and will often represent the
standard that they could have expected to maintain if the marriage had not
broken down.

In saying this, I do not imply that this measure will always
be determinative of the amount of spousal support.
All of the factors set
out in s. 17(7) must be considered by a judge in fixing appropriate
spousal support
.

It should be remembered, as well, the payee spouse, no less
than the payor, is entitled, if possible, to maintain a standard of living
similar to that enjoyed during a long marriage.
Where the resources of the
parties are not sufficient to allow both to enjoy that standard, it will
usually be reasonable to equalize the deficit and allocate resources so as to
allow each party to enjoy a similar standard of living.

That said, there is no specific formula that can be applied
to these cases, and specific factors unique to individual cases may justify
other measures of support.

[Emphasis added.]

[76]

Returning to the applicability of
SSAG
, this Court addressed the
proper approach to the applicability of the
SSAG
on variation
applications in
Beninger v. Beninger
, 2007 BCCA 619 at paras. 51-55:

A question which arises in this appeal is what use, if any,
a court may make of the
SSAG
on a
variation
application.

This question is answered, to some extent, by the authors of
the
SSAG
who indicate in their proposal that the
SSAG
should be
approached with considerable caution on variation applications. They state that
the
SSAG
were not designed to address some of the more complex issues
which can arise on variation proceedings, including the impact of remarriage,
second families and retirement. In some cases, entitlement may also have become
an issue since the initial order was made. In certain circumstances, however,
the
SSAG
can be used on a variation application, albeit with care.

In my view, however, the more significant complications
referred to by the authors of the
SSAG
arising on a variation
application are not a barrier to using the
SSAG
as a tool in determining
either the quantum or duration of spousal support in this case. At the time of
the initial award of support, the
SSAG
were not available and,
therefore, were not a factor in Mr. Justice Curtis determination of
support.

In short, almost all of the same factors which were relevant
with respect to Ms. Beningers application for spousal support in the
first instance continue to apply with equal force.

In the particular circumstances of these parties, I am
satisfied that it is appropriate to use the
SSAG
as a guide to the
appropriate level and duration of support. In so doing, I wish to make it clear
that the decision whether to use the
SSAG
as a guide on variation
applications will have to be made cautiously and on a fact-specific basis.

[Emphasis in original.]

[77]

In summary,
SSAG
may serve as a useful tool on variation
applications provided that its use is approached with caution and advertence to
context. Where the factors giving rise to a partys initial entitlement to
support remain essentially unchanged on the variation application,
SSAG
may be applied.

[78]

In my opinion, this is an appropriate case for the application of
SSAG
.
This is because I view the factors giving rise to Ms. Boekhoffs
entitlement
are somewhat attenuated but largely unchanged. The judge making the original
support order noted that Ms. Boekhoff exited the marriage at a
considerable economic disadvantage arising from her having foregone educational
and employment opportunities to raise the children of the marriage (1997
Reasons at para. 27). The summary trial judge found that the basis for the
original compensatory award continued. As noted, Ms. Boekhoff remains
economically disadvantaged despite her best efforts to retrain.

[79]

Based on Mr. Boekhoffs earnings of $62,283 and Ms. Boekhoffs
earnings of $45,700, the
SSAG
calculations suggest payments at a low
range of $394 per month and a high range of $424 per month. On appeal Mr. Boekhoff
did not strongly contend that the calculation should include the contribution
of Ms. Boekhoffs present common-law spouse to household expenses. The
summary trial judge did not make a finding of fact about the likelihood of his
continuing support. On cross-examination, Ms. Boekhoff said that their
relationship had become less close due to her deteriorating health, and that he
was contributing something less than the $500 amount initially deposed to. I
would therefore exclude it.

[80]

Given the summary trial judges finding that Mr. Boekhoff has
greater potential to increase his earnings, and his conclusion respecting Ms. Boekhoffs
continued entitlement to compensatory support, it seems to me reasonable to
order support at the high end of the calculation. The
SAAG
calculations
result in monthly support of $424. Payment of this amount should be retroactive
to March 13, 2014.

[81]

I would make this order on an indefinite basis. It is well-established
that a compensatory spousal support order should continue until the economic
consequences flowing from the marriage are redressed, even if the spousal
support payee has, in the interim, achieved some self-sufficiency as is the
case here:
Morigeau v. Moorey
, 2015 BCCA 160 at para. 37. As I have
noted, the economic disadvantages accruing to Ms. Boekhoff as a result of
the breakdown of the marriage have not yet been (and may never be) wholly
ameliorated. I consider this order to be consistent with the parties changed
circumstances, as well as the objectives listed in
Divorce Act
, s. 17(7).

Disposition

[82]

I would dismiss Ms. Boekhoffs appeal of the judgment cancelling
the arrears of spousal support.

[83]

I would allow in part Mr. Boekhoffs appeal of the order
reinstating spousal support by varying that amount to $424 per month commencing
on March 1, 2014.

[84]

I would order costs to Mr. Boekhoff on the appeal. As success has
been divided on the cross-appeal, I would order that each party bear their own
costs of the cross-appeal.

The Honourable Madam Justice Garson

I agree:

The
Honourable Mr. Justice Lowry

I agree:

The Honourable Mr. Justice
Tysoe


