



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Eichen v. Eichen,









2012 BCCA 32




Date: 20120118

Docket:
ca038949

Between:

Hans Peter Eichen

Respondent

(Plaintiff)

And

Rachel Eichen

Appellant

(Defendant)

And

Michael Dobres

Defendant




Before:



The Honourable Madam Justice Saunders





The Honourable Mr. Justice Lowry





The Honourable Madam Justice Bennett




On appeal from: Supreme
Court of British Columbia, March 18, 2011
(Eichen v. Eichen, Vancouver Registry E041040)

Oral Reasons for Judgment




Counsel for the Appellant:



D. Dunn





Counsel for the Respondent:



J. Fairburn





Place and Date of Hearing:



Vancouver, British
  Columbia

January 18, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 18, 2012








[1]

LOWRY J.A.
: The question is whether Madam Justice Russell erred
in making an order on 18 March 2011 terminating spousal support and cancelling
arrears payable by Hans Peter Eichen to his former wife Rachel Eichen pursuant
to an order made by Madam Justice Ross in 2007. Ms. Eichen filed no affidavit
evidence and, although duly served, did not appear and accordingly did not
oppose the application that gave rise to the order she now appeals.
Nonetheless, she maintains the judge failed to apply the legal principles that govern
applications of that kind.

[2]

The application was made under s. 17 of the
Divorce Act
, R.S.C.
1985, c. 3 (2nd Supp.), which provides a court may vary spousal support
orders. Section 17(4.1) provides:

(4.1)  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.

[3]

When the application was made, Mr. Eichen was 64 years of age; Ms.
Eichen was 63. He filed an affidavit setting out the change in his circumstances.
Briefly they are that he was employed and earning $44,637 a year in 2007 when
he was ordered to pay $350 a month in support and $100 a month in payment of
arrears totalling $5,253. He lost his employment. He became bankrupt in 2009
and has no assets. At the time of the application, his sole source of income
was a CPP disability pension amounting annually to $10,176. Mr. Eichen suffers
from various physical ailments; he is unable to work in his former occupation;
and his medical prognosis is described by his treating physician as poor. He
lives in subsidized housing. He knew little of Ms. Eichens financial situation
but deposed he understood she had employment and had received a $30,000
inheritance from her mother over the past two years.

[4]

In making his application, Mr. Eichen sought no order for costs unless
the application was opposed which, as indicated, it was not.

[5]

The judge granted the order without giving reasons. Ms. Eichen says the
judge erred in not satisfying herself that there was a change in circumstances
sufficient to justify the termination of support and the cancellation of
arrears. But the evidence before her was clear in that regard and it was not
challenged. I see no basis on which Ms. Eichen can be heard to say the judge
erred. The fact the judge did not see fit to give reasons for the order she
made on what she was properly informed was an unopposed application does not
mean she did not apply the proper principles in granting the relief sought. She
is presumed to know the law.

[6]

I would dismiss the appeal with costs in this Court and in the trial
court.

[7]

SAUNDERS J.A.
: I agree.

[8]

BENNETT J.A.
: I agree.

The Honourable Mr. Justice Lowry


