



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Westergard v. Buttress,









2012 BCCA 38




Date: 20120123

Docket: CA038547

Between:

Diane Betty
Westergard

Respondent

(Claimant)

And

Sidney William
Buttress

Appellant

(Respondent)




Before:



The Honourable Mr. Justice Lowry





The Honourable Madam Justice Neilson





The Honourable Mr. Justice Groberman




On appeal from: Supreme
Court of British Columbia, October 7, 2010
(
Westergard v. Buttress
, Prince George Registry 0422747)

Oral Reasons for Judgment




Counsel for the Appellant:



C.G. Fletcher





Counsel for the Respondent:



G.A. Petrisor





Place and Date of Hearing:



Vancouver, British
  Columbia

January 23, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 23, 2012








[1]

GROBERMAN J.A.
:
This
is an appeal from a chambers judgment on an application for termination of
child support in respect of the parties daughter, and for review of spousal
support.

Factual Background

[2]

The parties entered into a common-law relationship in 1989, which lasted
until they separated in 2004. They had two children together  a daughter born
in 1991 and a son born in 1997.

[3]

Following the birth of the couples daughter, Ms. Westergard left the
workforce temporarily. She returned to part-time work when the daughter was 1½  years
old. Later, when she became pregnant with the couples son, she took less
demanding employment. After his birth, Ms. Westergard left the workforce
completely to care for her children. She did not return to part-time employment
until 2003, and commenced full-time employment only shortly before the couple
separated in 2004.

[4]

A one-week trial was held in 2005 to deal with custody and access, child
and spousal support, and a claim for unjust enrichment; the judgment is indexed
as 2005 BCSC 622. With respect to spousal support, the judge recognized that
Ms. Westergard should receive support in order to become self-sufficient.
Support was ordered in the amount of $450 per month. With respect to duration,
the trial judge said:

[74]      Ms.
Westergard wishes to be economically self-sufficient. If she pursues her plan
successfully she will achieve that goal in three to four years time. I will,
therefore, order that she receive support payments for four years. On the
fourth anniversary of this order the spousal support order shall be reviewed.
Upon review, Ms. Westergard will bear the onus of showing that spousal support
should continue. The parties may in the meantime make application to vary,
suspend, or terminate this order due to a change of circumstance.

[5]

The terms of the judgment were somewhat modified when they were put into
a formal order. The relevant provisions were recorded as follows:

10.       The
defendant shall pay to the plaintiff spousal support of $450.00 per month
commencing May 1, 2005 and continuing on the first day of every month
thereafter until and including April 1, 2009.

11.       The
spousal support provisions of this Order may be reviewed after May 1, 2009. For
the purposes of the review, the plaintiff shall bear the onus of establishing that
spousal support should continue.

[6]

Thus, the mandatory review was transformed into an optional one, and the
soft termination date of spousal support transformed into a definite one,
subject only to an application for variation or review.

[7]

A consent order in October 2008 changed the end date for the support
order to February 1, 2009. It is common ground that this change was made in
order to account for Ms. Westergards obligation to pay costs to Mr. Buttress
in respect of a court application, and was not intended to reflect any genuine
change in the spousal support regime
per se.

[8]

It is common ground that at the time of the trial, Ms. Westergard was
attempting to obtain a mortgage brokers licence, and that it was her
expectation that once she secured such a licence, she would be able to become
self-sufficient. She did succeed in obtaining a licence, and worked, for a
time, as a mortgage broker. Ultimately, however, she was unable to make a go of
that profession, and had to search for other work. She is now employed in
part-time work as an administrative receptionist in a medical office, making
$17,225 per annum. In October 2010, she applied for the review of the 2005
spousal support order contemplated by that order.

[9]

At the same time, she applied for a change in child support payments.
She continued to be entitled to child support in respect to the couples son,
who was in her custody. The couples daughter had been residing with Mr.
Buttress until June 2010, when she moved out on her own. She had reached the age
of 19 in January, 2010, and had ceased to be a full-time student shortly before
her birthday. It was common ground between the parties that the set-off of
child support that had existed was no longer appropriate, but the parties
disagreed with respect to the date that the set-off should be discontinued. Mr.
Buttress contended it should be at the date that she ceased to reside with him,
while Ms. Westergard contended it should be the date of the daughters 19th
birthday.

The Chambers Judgment

[10]

The
chambers judge who heard the applications provided a compromise solution in
respect of child support, saying:

[12]      In
the circumstances, I conclude that a most fair outcome requires a midpoint to
be taken. The former arrangement, that is whereby the respondent pays $347 per
month, will be in effect up to March 31, 2010. As of April 1, 2010 the
respondent shall pay $691 per month going forward.

[11]

With
respect to spousal support, the judge noted that there was a real expectation
that the claimant would be able to achieve economic self-sufficiency within
three to four years. He noted, however, that:

[24]      The
claimant's career as a mortgage broker has not worked out, partly due, I
expect, to the general economic malaise. She testifies that she continues to
look for full-time career employment, primarily by online checking. She says
she has been unsuccessful to date. She observes that most administrative jobs,
those to which she aspires, require a business degree, which she does not have.
She also says that she has made inquiries about upgrading her qualifications to
enhance her employability.

[12]

With
respect to the review provision of the order, he said:

[28]      I
commence by observing that the claimant's right to claim spousal support from
the respondent has not been extinguished, if that somehow might be thought to
be the situation. The order of Mr. Justice Rogers did not stipulate that
the spousal support obligation ended after four years. Rather, it established a
structure for the first 48 months, and left open what might follow. The
mechanism provided was the review.

[13]

The
judge appears to have been of the view that he should approach the issue of
spousal support afresh, though he acknowledged that he would take into account
the findings and conclusions of Mr. Justice Rogers as to the structural
underpinnings of the relationship of these parties.

[14]

The
judge considered the efforts made by Ms. Westergard to obtain more remunerative
employment. He made the following observations:

[34]      In
terms of the claimant's efforts to achieve self-sufficiency through
appropriately remunerative employment, it is regrettable that she has not
managed to attain that. Undoubtedly, the current economic doldrums and the
somewhat limited scope of her qualifications are factors. That said, while the
evidence provides some support for a contention that she has been looking for
work, I would think it not unreasonable to expect that her efforts can and
should be improved.

[35]      The
search should be active. It should certainly extend to banking-type jobs, an
area where she has previous experience, and it may be that a second part-time
job to complement her current part-time situation should be considered.

[36]      As
well, it may be that, if she feels upgrades to her skill package are required,
she should be pursuing that while she is working in her current part-time
arrangement.

[37]      In
short, the claimant is obliged to make reasonable efforts to achieve
self-sufficiency. In the present case, that entails bringing a serious
determination to the business of finding a job.

[15]

Crucially,
he reached the following conclusion:

[38]      As
for the claimants application, I have concluded that the circumstances at bar
warrant the Court making an order for spousal support. Entitlement has been
established.

[16]

The
judge then turned to quantum, apparently uninfluenced by the original support
order. He made an order for spousal support at the rate of $800 per month. He
did not stipulate an end date, saying That will be informed by events as they
develop. He provided that the support issue may be reviewed at any time after
January 1, 2013, and said For the purposes of that review, the claimant has
the onus of establishing that spousal support should continue.

Analysis

[17]

I
find no error in the judges reasons with respect to the issue of child
support. Section 87 of the
Family Relations Act
, R.S.B.C. 1996,
c. 128 provides that child includes a person who is 19 years of age or
older and, in relation to the parents of the person, is unable, because of
illness, disability or other cause, to withdraw from their charge or to obtain
the necessaries of life. The chambers judge recognized that the daughter
required at least a brief transition period after leaving school in order to be
capable of obtaining the necessaries of life on her own. In my view, the period
of two months that the chambers judge applied was a transition period that was
not unreasonable on the evidence in this case. I find no error on the part of
the judge in choosing that period.

[18]

With
respect to spousal support, while I agree with the appellant that the evidence
provided by Ms. Westergard with respect to her efforts to obtain more
remunerative work was not particularly impressive, I do not agree that the
evidence was such that the chambers judge was compelled to find that she no
longer required spousal support, or that she had reached a stage where she
should have been self-sufficient. It was open to the chambers judge to find
that, despite her efforts at re-training, Ms. Westergard had not succeeded in
attaining self-sufficiency, and continued to be entitled to spousal support.

[19]

The
difficulty that I have with the chambers judges reasons is that he seems to
have considered his jurisdiction on review to be unlimited, and to include a
fresh evaluation of the appropriate quantum of support.

[20]

In
general, review provisions of support orders should be tightly circumscribed,
to indicate the precise issue that is being reviewed 
Leskun v. Leskun
,
[2006] 1 S.C.R. 920, 2006 SCC 25. While
Leskun
arose under the
Divorce
Act
, R.S.C. 1985, c. 3 (2nd Supp.), its dicta concerning
review orders have been applied by this court to review orders under the
Family
Relations Act
, as well:
Uren v. Reambeault
, 2010 BCCA 332.

[21]

As
I read the trial judgment in this matter, and particularly para. 74, the judge
did circumscribe the review. His purpose in providing for a review was to allow
a determination to be made as to whether Ms. Westergard had realized her goal
of achieving self-sufficiency and whether she continued to be entitled to
support. To the extent that any review of quantum was contemplated, it could
only be a consequence of Ms. Westergards partial achievement of
self-sufficiency, or her failure to comply with the requirements of s. 96(4) of
the
Family Relations Act
to make reasonable efforts to achieve
self-sufficiency. Any change to quantum of support that was not related to
efforts to achieve self-sufficiency could only be accomplished through a
variation application under s. 96(1) of the
Family Relations Act
.

[22]

In
the result, I would hold that the chambers judge erred in treating his
jurisdiction as including a
de novo
assessment of the appropriate
quantum of support. Having found that Ms. Westergard continued to be entitled
to support, he should simply have reinstated support at the rate provided for
in the original trial order. This does not, of course, leave Ms. Westergard
without a remedy if she considers that there has been a material change in
circumstances  she can bring a proper application for variation, if she
wishes, under s. 96(1) of the
Family Relations Act.

[23]

The
judges decision to provide for a further review of the support order is not
fully in keeping with the general rule that judges should, where possible,
fully and finally determine support obligations, subject only to variation for
material changes in circumstances (see
Leskun
). This said, his decision
to do so was understandable given the limited evidence before him and the
continuing uncertainty as to Ms. Westergards employment prospects. Given these
factors, I would amend the conditions of review to ensure that they are more
tightly circumscribed. In my view, the sole issue to be reviewed should be Ms.
Westergards continued entitlement to spousal support in light of her progress
toward self-sufficiency. To this end, she will have the onus of demonstrating
continued entitlement to support. She should be prepared to provide detailed
evidence to show that she is making reasonable efforts to become
self-sufficient.

Conclusion

[24]

In
summary, I would vary the order of the chambers judge by changing the monthly
spousal support amount back to $450 per month. I would amend the review
provision by limiting it to the issue of Ms. Westergards continued entitlement
to spousal support in light of her progress toward self-sufficiency. In all
other respects, I would dismiss the appeal.

[25]

LOWRY J.A.
: I agree.

[26]

NEILSON J.A.
: I agree.

[27]

LOWRY J.A.
: The appeal is allowed to the extent of varying the
order of Mr. Justice Williams to reinstate the original order of Mr. Justice
Rogers providing for spousal support of $450 a month. The parties will be at
liberty to apply for a review of the order for spousal support after 1 January
2013, such review being limited to the issue of Ms. Westergards entitlement to
continuing support in light of her progress toward self-sufficiency.

(discussion with
counsel re. costs)

[28]

LOWRY J.A.
: Given the success, there has been overall on both
sides, we are not disposed disturb the order for costs in the trial court and
we would order that there be no costs in this Court with each party bearing
their own.

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Lowry


