



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Cameron v. Cameron,









2016 BCCA 10




Date: 20160107

Docket: CA42809

Between:

Shannon Marie
Cameron

Appellant

(Plaintiff)

And

Gary Craig Cameron

Respondent

(Defendant)




Before:



The Honourable Madam Justice Newbury

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Dickson




On appeal from:  An
order of the Supreme Court of British Columbia, dated April 22, 2015 (
S.M.C.
v. G.C.C.
, April 22, 2015, Vancouver Docket E123621)

Oral Reasons for Judgment




Counsel for the Appellant:



J. Predovic





Counsel for the Respondent:



M. Brandon





Place and Date of Hearing:



Vancouver, British
  Columbia

January 7, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 7, 2016








Summary:

The appellant appeals from a
chambers judges decision on a review of a spousal support order. The original
support order contemplated the appellant re-training and being able to generate
income, and provided for a review of spousal support in 2015. On the review,
the chambers judge imputed income of $1000/month to the appellant, based on the
judges assessment that the appellant should now be earning that amount. The
appellant argues that the chambers judge misapprehended the evidence or placed
undue weight on the need for the appellant to achieve self-sufficiency. Held:
appeal dismissed. The judge considered the difficulties encountered by the
appellant, but, after assessing the evidence, concluded that she ought to be
earning $1000/month. There is nothing in her judgment to suggest that she
misapprehended the evidence or misapplied the law.

[1]

GROBERMAN J.A.:
The appellant appeals from an order of the
Supreme Court on a review of spousal and child support orders. She contends
that the judge erred in imputing income of $1000 per month to her and in limiting
the special or extraordinary expenses payable under s. 7 of the Federal
Child Support Guidelines.

[2]

The original spousal support order was made in September, 2013. At that
time, the appellant had lost her employment as an office assistant, and had
decided to re-train as a jewellery designer. While she was not making any money
as a jewellery designer at that time, the judge concluded that her decision to
re-train was a reasonable one. He declined to impute any income to her, and
ordered the respondent to pay $1359 per month as spousal support. He directed
that the spousal support award would be reviewable no earlier than January 1,
2015. It is clear that the issue to be reviewed was the appellants income. It
was anticipated that she would be able, with time, to earn income as a
jewellery designer.

[3]

The review application was heard in May, 2015. It appears that the
appellant was still not earning any income. The respondent argued that income
should be imputed to her on the basis that she had not made reasonable efforts
to secure employment. The appellant, on the other hand, contended that her lack
of income was reasonable, given that she had suffered certain health
difficulties and emotional challenges, and given that she was the primary
caregiver for the couples child, who has special needs.

[4]

The judge imputed income to the appellant, but at a level well-below
that contended for by the respondent. Her reasoning was succinct:

[15]      Having considered the
evidence, I am of the view that while there is no doubt that the claimant has
had some very unfortunate circumstances with respect to her health, Justice
Sewell did consider her health and [P.'s] special needs in structuring an order
that allowed the parties to move forward and ultimately achieve
self-sufficiency, as contemplated under the Divorce Act. He did anticipate, in
my view, that by January 2015, that would have provided a reasonable opportunity
for the claimant to obtain employment.

[16]      I am of the view,
however, that given the history of this relationship and considering [P.'s]
special needs and the health difficulties of the claimant, it is far too early
to consider terminating the spousal support provision.

[17]      I
am of the view overall that, given all of the circumstances, it is appropriate
to impute an income to the claimant at this time of $1,000 per month or $12,000
per annum. I have considered her graduation from the jewellery design course
and the success that she is capable of a jewellery designer. I have also
considered the inventory that she currently has in her business, along with the
tools to develop that business or to obtain employment. In my view, this is an
appropriate amount that balances her need for flexible employment, her need to
provide care for [P.] in a manner that allows her some flexibility, recognizes
her health difficulties, but also recognizes the needs of the parties to move
forward and become self-sufficient.

[5]

The judge, accordingly, reduced spousal support to $900 per month,
effective July 1, 2015. She was obviously concerned about the appellants
efforts to secure employment, noting that her affidavit indicated that she had
applied for approximately 14 jobs, but that, in the course of argument, it was
conceded that she had simply reviewed 14 jobs, and had not made applications.

[6]

With respect to special expenses, the judge determined that counselling
and dental expenses, and one extra-curricular activity would constitute special
expenses for the purpose of the
Federal Child Support Guidelines
. In
doing so, she commented that she wished to acknowledge the needs of [the
child] but  also put a limit on these expenses, because  both parties have
some financial challenges. Special expenses payments are divided, with the
respondent paying 70.4%.

[7]

Canadian courts have recognized that significant deference is afforded
trial judges in respect of support orders. In
Hickey v. Hickey
, [1999] 2
S.C.R. 518, LHeureux-Dubé J., for a unanimous court said:

[11]      Our Court has often emphasized the rule that appeal
courts should not overturn support orders unless the reasons disclose an error
in principle, a significant misapprehension of the evidence, or unless the
award is clearly wrong .

[12]      There are strong
reasons for the significant deference that must be given to trial judges in
relation to support orders. This standard of appellate review recognizes that
the discretion involved in making a support order is best exercised by the
judge who has heard the parties directly. It avoids giving parties an incentive
to appeal judgments and incur added expenses in the hope that the appeal court
will have a different appreciation of the relevant factors and evidence. This
approach promotes finality in family law litigation and recognizes the
importance of the appreciation of the facts by the trial judge. Though an
appeal court must intervene when there is a material error, a serious
misapprehension of the evidence, or an error in law, it is not entitled to
overturn a support order simply because it would have made a different decision
or balanced the factors differently.

[8]

The appellant alleges that the judge erred in three ways:

(1) by focussing on the appellants lack of success in
obtaining employment rather than on the reasonableness of her efforts to obtain
employment;

(2) by misapprehending the evidence pertaining to the
appellants medical and other difficulties which impeded her search for
employment;

(3) by failing to increase the
amount of spousal support as provided for in s. 12.10 of the
Spousal
Support Advisory Guidelines
for cases involving children with special
needs.

[9]

I am unable to find errors in the judges assessment. She cited
Jordan
v. Jordan
, 2011 BCCA 518 as setting out the nature of her task  the review
did not depend on a finding that there was a material change in circumstances,
but did require that she identify the issues to be reviewed and to determine
those issues. She identified the appellants income as the issue of focus. She
reviewed the evidence, and concluded that the appellant, even with her health
difficulties and the special needs of her child, ought to be able to generate
an income of $1,000 per month. I see nothing in her reasons that suggests that
she misapprehended the evidence or applied the wrong legal tests.

[10]

The judge carefully assessed the special needs of the child, and took
them into account in determining the appropriate amount of income to impute to
the appellant. I am unable to find that there was any error on the part of the
judge in declining to further adjust the spousal support based on the childs
special needs.

[11]

While the grounds of appeal do not specifically address the judges
reasons for finding that payment for only one extracurricular activity should
qualify as an extraordinary expense, the relief sought by the appellant
includes overturning that order. I would not accede to that request. I am
unable to find any error in the judges analysis of the question. After considering
the needs of the child and the financial position of the parties, she found
that it was reasonable to include only one extracurricular activity as an
extraordinary expense. There is no basis to challenge that finding.

[12]

In the result, I would dismiss the appeal.

[13]

NEWBURY J.A.
: I agree.

[14]

DICKSON J.A.
: I agree.

[15]

NEWBURY J.A.
: The appeal is dismissed.

The
Honourable Mr. Justice Groberman


