IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
Goriuk v. Turton,
2011 BCSC 652
Date: 20110519
Docket: E100071
Registry: Vancouver
Between:
Marianna Goriuk also known as Marianne Goriuk
Claimant
And
Chad Robert Turton
also known as Chad Robert Kroeger
Respondent
Before: The Honourable Associate Chief Justice MacKenzie
Reasons on Interim Application
Counsel for the Claimant:
A. E. MacLennan, Q.C.
Counsel for Respondent:
F. E. Maxwell, Q.C.
H. Dale
Place and Date of Hearing:
Vancouver, B.C.
May 2, 2011
Place and Date of Judgment:
Vancouver, B.C.
May 19, 2011
Overview
[1] This is an application for interim spousal support. The trial is set for August 15, 2011. The claimant’s, Ms. Goriuk’s, underlying action against the respondent, Mr. Turton, is based on unjust enrichment. She also seeks spousal support arising from the parties’ common-law relationship of the 6 years and 8 months from December 26, 2002 to about September 2009. They neither married nor had children.
[2] The parties’ relationship ended in August 2009, and on September 7, 2009 the claimant left the parties’ home. She has been living with her parents in Agassiz, British Columbia, at the “Kilby” property.
[3] Mr. Turton, now 36, is an extremely successful rock musician. Ms. Goriuk, 40 years old, is a horse trainer and hopes to pursue a career designing barns.
[4] Since separation in August or September 2009, the respondent has been paying interim spousal support of $10,000 per month on a “without prejudice” and tax-free basis. The method of payment includes a credit card with a limit of $5000 and access to a bank account with a withdrawal limit of $500 per day.
[5] Mr. Turton declared his income to be approximately $9,740,000 per year whereas Ms. Goriuk’s income is approximately $12,000 per year. The parties are content to proceed on that basis for this application.
[6] The claimant says the method of payment has been unduly restrictive, so the respondent has agreed to provide the entire amount at the first of the month.
[7] The respondent, for this application, concedes the Court can find entitlement to spousal support. However, he maintains that $10,000 per month net of taxes is ample in all the circumstances, especially given what he describes as a short term common-law relationship .
[8] The claimant, on the other hand, submits this amount is inadequate given the parties lavish lifestyle during the relationship and the respondent’s very significant means. She says the mid-range of $95,760 per month on a strict application of the Spousal Support Advisory Guidelines [SSAG] to his declared income of $9,740,000 is appropriate in the circumstances.
Issue
[9] What is the appropriate amount of interim spousal support in the circumstances?
Background
[10] The parties met on January 25, 2002 at a Nickelback concert in Edmonton. The respondent is the lead artist, singer and songwriter of the band. The claimant co-owned a hair salon in Camrose, Alberta. The salon where she worked as a stylist, operated in a private house co-owned with her partner. The claimant owned her home, a six-acre farm property outside Camrose (the “Duhamel Property”), where she kept two horses.
[11] During the first year of the relationship, the claimant lived in Alberta when she was not in Vancouver or travelling with the respondent on tour. As the parties became more involved in 2002, the claimant spent more time on tour with the respondent.
[12] In May 2002, the claimant agreed to move to Vancouver. The parties decided they needed a home on property which could house a barn for the claimant’s horses that the parties would move to British Columbia. The respondent supported the claimant’s interest in horses, even to the extent of purchasing a Dutch Warmblood mare for her birthday.
[13] In November 2002, the parties acquired a 20-acre property at 30709 Burgess Avenue, British Columbia. The barn on the property was to be renovated to house her horses. The claimant deposes it was a pre-condition to the parties’ relationship that she would keep her horses. In November 2002, the claimant moved her horses to British Columbia. The parties began to cohabit in Langley, British Columbia on December 26, 2002.
[14] The respondent was working in his studio in Burnaby and the claimant managed their home, spending time at the studio while he recorded. The parties went to the Burgess property every few days to map the progress of renovations. The claimant says she assisted the contractor in making choices and conveying ideas.
[15] On January 25, 2003, the parties decided to marry.
[16] In February 2003, the claimant deposes that she became directly involved in the renovation of the entire home. The renovations completed and the parties moved in June 2003. They postponed the plans to move the horses into the existing barn which was instead turned into a studio for the respondent.
[17] During the next couple of years, the parties planned many parties in which the claimant maintains she performed considerable preparation and cleanup.
[18] The respondent released three albums during the parties’ co-habitation. The claimant and respondent lived on a private tour bus for periods after the release of each album.
[19] The claimant deposes she did the daily chores around the family home, (the “Burgess property”), and the studio.
[20] In January 2004, the parties purchased a recreational home with their friends in Cabo, Mexico. The claimant says she was actively involved in its renovation throughout 2004.
[21] In January 2005, the claimant began the design and construction of the Burgess barn. Upon completion, her horses were relocated there for short periods as there was no room to train them on the property.
[22] In October 2005, the parties began to plan an addition to their home. Planning carried through to February 2008. In 2008, the horses moved fulltime to the Burgess barn. The claimant increasingly trained her horses and participated in events as the landscaper took over some of her chores.
[23] The claimant rented her Duhamel property in Alberta until it was sold in 2005.
[24] The claimant’s parents were nearing retirement and she wanted them closer to her. She says the respondent supported this plan. She maintains that in addition to having her horses, she also stipulated at the beginning of the relationship her desire to take care of her parents in their retirement. In March 2007, she purchased the Kilby property in Kent to build her parent’s retirement home. She planned to use it as a summer cottage upon her parents’ passing. Her parents moved to the Kilby property in June 2009. The claimant was and remains solely responsible for the mortgage, insurance and property taxes totalling $3500 per month. She says her parents do not have resources to pay these costs.
[25] When the parties’ relationship ended, and on September 7, 2009 the claimant left the family home with her horses, pets and personal belongings. She began to live temporarily with her parents at the Kilby property. At the time of her affidavit, the claimant’s expenses with respect to her horses were $3,800; this has since increased. There are many expenses and issues associated with the claimant’s horses, including their accommodation, training and handling that will have to be explored at trial. Also, issues regarding the claimant having sufficient funds to establish a home and to maintain herself will be considered at trial.
[26] On April 6, 2010, the claimant borrowed $20,000 from her parents to meet her expenses.
[27] After separation, the claimant worked temporarily training her horses for the movie industry. She received $4,715 for a job with Virtue Studios. She wishes to continue to train her horses and to obtain training as a construction and interior designer, particularly in the field of farm properties and barns.
[28] The parties’ lifestyle was extravagant. According to the claimant, they spent unlimited amounts to improve their properties. They ordered expensive food and wine, took private jets to Mexico and other places, hired helicopters at the last minute to fly into Vancouver for the evening and travelled in limousines.
[29] During their relationship, the parties focused on the respondent’s career. The claimant maintains she was his partner in its continued development.
Law
[30] The obligation to support a common-law spouse is under s. 89 of the Family Relations Act, R.S.B.C. 1996, c. 128. Jurisdiction to make a support order is in s. 93(1) and the criteria for determining the quantum of spousal support is under s. 93(4).
89. (1) A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following:
(a) the role of each spouse in their family;
(b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other;
(c) custodial obligations respecting a child;
(d) the ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves;
(e) economic circumstances.
(2) Except as provided in subsection (1), a spouse or former spouse is required to be self sufficient in relation to the other spouse or former spouse.
...
93. (1) Subject to the Divorce Act (Canada), a court may make an order on application, or if the court makes or refuses an order for judicial separation or dissolution of marriage or a declaration that a marriage is null and void, requiring a party to the proceeding to discharge his or her liability
…
(b) under section 89 or 90, as the case may be, by paying to the person designated in the order the amount the court considers reasonable.
...
(4) If a spouse will be living separate and apart from the spouse against whom the application is made, the court may, as it considers appropriate, adjust the amount of its order under subsection (1)(b) to take into account the needs, means, capacities and economic circumstances of each spouse, including the following:
(a) the effect on the earning capacity of each spouse arising from responsibilities assumed by each spouse during cohabitation;
(b) any other source of support and maintenance for the applicant spouse;
(c) the desirability of the applicant spouse having special assistance to achieve financial independence from the spouse against whom the application is made;
(d) the obligation of the spouse against whom application is made to support another person;
(e) the capacity and reasonable prospects of a spouse obtaining education or training.
[31] In D.R.M. v. R.B.M., 2006 BCSC 1921, Martinson J. described the nature of interim orders for spousal support at para. 7:
This Court, in a case decided before the publication of the SSAG, has referred to the differences between interim and "final" orders, emphasizing the summary nature of interim proceedings, the short term nature of interim orders, their purpose in bridging the gap between the time an action is commenced and the trial, and the different legal tests that apply: see X.(R.L.) v. X.(J.F.) and X.(S.L.) v. X.(J.F.), [2002] B.C.J. No. 1889, 2002 BCSC 1222:
[60] Interim orders are only intended to be short term, and their purpose is to bridge the gap between the time that a court action is started, and when the court can fully consider the issues raised and make a decision on the merits: Randhawa v. Randhawa (1999), 49 R.F.L. (4th) 144 (B.C.S.C).
[61] Because interim orders are only temporary, the legal tests applied when making them are not always the same as they would be in reaching a final order. If this were not so, there would in effect be two full hearings instead of one in every case. That cannot be the intention of the interim order provisions under either the Divorce Act or the Family Relations Act.
[62] The Court of Appeal has discussed the nature and purpose of interim applications in the family law context and confirmed that there is a difference between a hearing leading to an interim order and one leading to a final order: Newson v. Newson (1998), 65 B.C.L.R. (3d) 22 (C.A.). At para. 11, the court approved the following statement in B.(R.) v. B.(M.) (1989), 19 R.F.L. (3d) 92 (Ont. H.C.J.):
... Interim proceedings are summary in their nature and provide a rough justice at best. Interim proceedings cannot be bogged down and traditionally have never been bogged down with the merits of the case ... [Emphasis added.]
[32] The Court of Appeal in Newson v. Newson, 65 B.C.L.R. (3d) 22, [1998] B.C.J. No. 2906 (C.A.), cited Kolia v. Kolia, [1981] 5 W.W.R. 540 (B.C.S.C.), for the principle that interim support should be ordered without adjudicating the issues between the parties where the marriage is admitted and need is proved, unless the action is frivolous or vexatious (at para. 12). The Court of Appeal explained that a trial of the issues requires an assessment of the parties’ credibility which includes an assessment of evidence that is consistent and inconsistent with third party deponents not before the court in the interim proceedings, and could result in a decision conflicting with the trial decision (at para. 13).
[33] While it is an error not to consider other factors on an interim support application (Gibb v. Gibb, 2005 BCSC 1738) the main focus is on the parties’ needs and ability to pay, rather than on compensatory factors: See, R.C.J. v. C.L.G., 2010 BCSC 1596 at para. 11. In R.C.J., Mr. Justice Joyce adopted his own reasoning for this approach as stated in Johnson v. Johnson, [1993] B.C.J. No. 2140, 43 A.C.W.S. (3d) 627 (S.C.) at para. 16:
... It is obvious that the determination of entitlement to and quantum of spousal support upon the dissolution of the marriage under the Divorce Act, 1985 [the Family Relations Act, in this case] requires consideration of a variety of factors through an examination of the evidence relating to the whole history of the relationship, the spouses' roles in that relationship, the economic circumstances throughout the marriage and, most particularly, the economic consequences of the marriage and its breakdown. In many cases, perhaps in the majority of cases, there will be insufficient evidence available at the chambers hearing for interim support to enable the court to engage in this in-depth consideration. It will often be too early to make determinations as to the probable degree of success of one spouse re-entering the work force and achieving self-sufficiency. It may be very difficult or impossible to attempt a determination of the economic advantages or disadvantages arising from the marriage or its breakdown and what degree of compensatory maintenance may be appropriate until the property division has been resolved. While it is an error for the chambers judge or master to consider only the parties' needs and means to the exclusion of other relevant factors, if they are shown to exist, it is my opinion that on an interim application the factors of means and needs will often assume the greatest importance. [Emphasis added.]
[34] This principle was discussed by the Court of Appeal in Loesch v. Walji, 2008 BCCA 214 at paras. 19-20, citing Traber v. Traber, [1998] B.C.J. No. 2195, 82 A.C.W.S. (3d) 744 at para. 5:
Mrs. Traber argues that an interim order should take the following three criteria into account:
(1) needs;
(2) ability to pay or means;
(3) presumptive claim to an equal standard of living subject to an equal sharing of the consequences of the dissolution of the marriage.
The final criteria stems from the decision of the Supreme Court of Canada in Moge v. Moge (1992), 43 R.F.L. (3d) 345, and is a relevant factor on applications for interim spousal support: Carr v. Carr (1993), 46 R.F.L. (3d) 326 (B.C.S.C.) and Myers v. Myers [1996] B.C.J. No. 6805, Cranbrook Registry (B.C.S.C.). However, the extent to which the "equal standard of living" criteria, or any other factor found in s. 15(7) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) influences the amount of interim support will depend on the nature, extent and reliability of the evidence. It must be remembered that interim applications are based on affidavit evidence that is often conflicting and incomplete. Here, it is too early to fully address all the economic advantages or disadvantages arising from the marriage or its breakdown. It is also too early to fully determine whether Mrs. Traber is able to work full-time and achieve economic self-sufficiency. Accordingly, in spite of all factors being relevant, the evidence as to means and needs is more complete at this stage than the evidence respecting other factors. The difficulty this presents on an application for interim support was recognized in two authorities not referred to by counsel: Johnson v. Johnson, [1993] B.C.J. No. 2140, New Westminster Registry No. D031650 and Short v. Short (1996), 21 R.F.L. (4th) 429 (B.C.S.C.).
Thus, the central factors that are usually to be considered on an interim application for either child or spousal support are the means or ability to pay support, and the needs of the spouse and children.
[Emphasis added.]
[35] In Myers v. Myers (1995), 17 R.F.L. (4th) 298, 65 B.C.A.C. 226, Finch J.A. (as he then was) explained what is meant by “needs” at para. 10 (cited with approval in Loesch at para. 41):
"Need" or "needs" are not absolute quantities. They may vary according to the circumstances of the parties and the family unit as a whole. "Need" does not end when the spouse seeking support achieves a subsistence level of income, or any level of income above subsistence. "Needs" is a flexible concept and is one of several considerations which a trial judge must take into account in deciding whether any order for spousal support is warranted. [Emphasis added.]
[36] Joyce J. in R.C.J. explained that the SSAG apply to interim applications and final orders and are “useful in determining the appropriate quantum of an interim spousal support award” (at para. 16). Martinson J. in D.R.M. discussed the utility of the SSAG on interim applications at paras. 19-21:
They [the SSAG] are a useful tool to have when determining interim spousal support. By focusing on income differences they provide a helpful measure of needs and means. Their use is consistent with the purposes of interim orders: to bridge the gap between the start of the litigation and the time when a resolution is reached at trial or by agreement; to avoid lengthy and costly interim litigation; to move the litigation to a timely resolution; and to reduce conflict.
There are however differences between interim and "final" orders. The SSAG are based not just on quantum, but on a combination of quantum and duration, with the ability to restructure by adjusting quantum and duration. Interim orders generally deal with quantum only; there is not the same ability to restructure. The financial situation of the spouses may be in transition at the time of the interim hearing; that will usually not be the case once a final order is granted.
The more the financial situation of the spouses has stabilized at the interim stage, the more helpful the quantum found in the SSAG may be; adjustments can be made at trial. The more the situation is one of financial transition, where a spouse may be temporarily paying disproportionately more of or fewer of the ongoing financial obligations, the less helpful the quantum may be.
[Emphasis added.]
[37] Some people have misinterpreted the “ceiling” of $350,000 in the SSAG to mean that spousal support is not payable for income beyond that amount. In D.R.M., Martinson J. noted that the SSAG applies to the first $350,000 and there is discretion thereafter (at para. 22). In Smith v. Smith, 2008 BCCA 245, Madam Justice Newbury confirmed that a trial judge has discretion to depart from the SSAG. She said at paras. 31-32:
The remaining two grounds of Dr. Smith’s cross-appeal are that the trial judge erred in failing to award support based on an application of the “ceiling income” referred to in the Guidelines and in failing to consider the fact that Dr. Smith continued to support Ms. Smith, with no apparent diminution in her expenses, for seven years after he moved out of the matrimonial home. Again, I agree with Mr. Marzban’s submission that the trial judge specifically recognized that the $350,000 “ceiling” in the Guidelines, was not an absolute one, a principle emphasized by Profs. Rogerson and Thompson, authors of Spousal Support Advisory Guidelines: A Draft Proposal (2005). The trial judge said at para. 39 of her reasons that the Guidelines are advisory only “and in the case of higher incomes, such as here, they may not be applicable.” ...
...
I acknowledge that the trial judge had a discretion to depart from the Guidelines both with respect to the quantum and duration of the spousal support award. ...
[38] Kirkpatrick J.A. for the Court in Loesch discussed the difficulty in applying the SSAG to high income earners at paras. 45 and 47:
The chambers judge recognized (at para. 17) the "ceiling" of payor income of $350,000 under the Spousal Support Advisory Guidelines. The difficulties posed by very high incomes such as the one at bar were considered by Professors Carol Rogerson and Rollie Thompson in The Spousal Support Advisory Guidelines: A Draft Proposal, (Ottawa: Dept. of Justice, 2005) at p. 87:
If the payor earns more than $350,000, a court can decide to go higher or not. Under the with child support formula the operation of the ceiling is complicated by the fact that child support increases as incomes rise above the ceiling. We can suggest two possible approaches for these very high income cases using the with child support formula. The first approach uses the formula to determine a minimum amount for spousal support, an approach we can call "minimum plus". A notional calculation would be required to calculate spousal support at the $350,000 ceiling, using the child support payable at the ceiling. This would determine the "minimum" spousal support range. [...] There would be discretion to add to that minimum for incomes over $350,000, after taking into account the actual amount of child support being paid by the payor at that higher income level. This approach might make more sense where the payor's income is closer to the ceiling. The second approach would be one of pure discretion. Once the payor's income exceeded the ceiling, then there would be no "minimum" for spousal support, just a dollar figure that would take into account the actual amount of child support paid, an amount which can be very large for cases well above the ceiling.
[Emphasis in original.]
...
The Spousal Support Advisory Guidelines were recently discussed in McEachern v. McEachern, 2006 BCCA 508, 62 B.C.L.R. (4th) 95, 33 R.F.L. (6th) 315 at para. 64:
As has been stated by this Court on prior occasions, the Advisory Guidelines are simply guidelines; they are not law. The formulas need not be slavishly adhered to by judges, who must always have regard to the particular facts before them. Those facts may disclose valid reasons why the Advisory Guidelines are not of particular assistance in a given case, or why an award may justifiably be greater or less than that set out in the applicable formula. But, it is fair to say that the Advisory Guidelines have been accepted by this Court, and by the trial courts, as a useful tool in determining the appropriate range of awards in most cases. In Redpath v. Redpath, [2006] B.C.J. No. 1550, 2006 BCCA 338, this Court went so far as to indicate that an order of spousal support which falls substantially above or below the suggested range could give rise to an error in law, unless a reasonable explanation was provided for the discrepancy. This is understandable since, as stated by this Court in Yemchuk v. Yemchuk, [2005] B.C.J. No. 1748, 2005 BCCA 406 (at para. 64): "... the Advisory Guidelines are intended to reflect the current law, rather than to change it." At this stage in their development, the Advisory Guidelines are not a substitute for relevant authorities, but a supplement to them.
[39] Rogerson and Thompson later wrote The Advisory Guidelines Three Months Later: Cases, Criticisms and Responses, Revisions, May 31, 2005, where they explained at page 7:
The Formulas Don’t Work Above the Ceiling
The “Ceiling” is set at a gross annual income for the payor of $350,000. ... When the payor’s income exceeds that ceiling, the formulas no longer operate and you are into the wild blue yonder of individual decision-making. Some lawyers for recipients incorrectly attempt to use the formula ranges to push for very high amounts in these “above-ceiling” cases. This is a misuse of the formulas, as the Draft Proposal makes clear. The use of the formulas in such cases only serves to discredit them, even though they work reasonably well in typical cases. [Emphasis added.]
[40] In Loesch, while the Court of Appeal found the chambers judge’s award of $50,000 per month exceeded the husband’s admitted income of $900,000, the court considered that the uncontradicted evidence indicated that his income was actually much greater and there were sufficient assets such that any disadvantage to him could be adjusted at trial (at para. 50). The appeal was dismissed.
[41] In Halliday v. Ermantrout, 2009 BCSC 1454, Madam Justice Ross, citing Naku v. Chertkow, 2003 BCSC 1285, explained that in certain circumstances, despite conflicts in affidavits, the materials before the court will be sufficient to make an interim spousal support order; however, in some circumstances the material will be so conflicting or deficient that an order cannot be made without a full hearing (at para. 43). In that case, the parties co-habitated for 13 years and never married. Ross J. declined to order interim spousal support as she found that every allegation of fact in the affidavit materials was disputed by the other party. There was no benefit of cross-examination or examination for discovery. Even if she accepted the materials as presented, she found that while there was a need shown by the applicant, there was no corresponding ability for the husband to pay (at para. 44).
Discussion
[42] The claimant must demonstrate entitlement to interim support within the framework of s. 89(1) and (2) of the Family Relations Act, with “needs and means” assuming importance. Section 89(2) has particular application in that a spouse or former spouse is required to be self-sufficient in relation to the former spouse.
[43] The respondent says that through the relationship, he encouraged the claimant to pursue whatever employment opportunities she chose, and on three occasions, offered to finance a business venture if she chose to pursue it.
[44] The respondent deposes that the claimant resented his touring, was not musically inclined in any way and made insignificant contributions to his business endeavours. She did not spend a lot of time at the studio, nor was she close to any of the staff or musicians. She contributed nothing to the creation of his songs.
[45] The respondent claims that as a “manager” of the renovations, the claimant was massively over budget, had no concept of negotiating a good price, and engaged contractors or workers who were overcharging or misleading. The respondent says he loaned the claimant’s parents $360,000 to fund the construction of the Kilby property. He did not agree to fund Kilby but the claimant continued to remit invoices for payment, according to the respondent.
[46] The respondent asserts that the claimant was not responsible for cleaning the house, as he had staff.
[47] The respondent claims the claimant has not shown that she made any contributions to a joint effort of the parties. Instead, she was only a “companion” to the respondent. She gave up nothing and gained considerably from the relationship. These issues are not properly determined on an interim application where the evidence cannot be tested, but are better suited to be determined at trial.
[48] The respondent concedes that “means” is not in issue, but the claimant cannot establish need as the respondent is providing more than adequate financial assistance to meet her reasonable needs, and the claimant is capable of supporting herself. He claims that she has adequate skill, talent and experience to successfully pursue any number of career paths and has been a successful businessperson in the past.
[49] The respondent provided several calculations for interim support. While I appreciate the efforts of counsel, none were applicable in these circumstances.
[50] The claimant says that she is unable to accurately estimate her expenses as she has not received the relevant documents from the respondent. Her budget, she says, is based upon a combination of her current actual expenses which are limited due to her restricted access to funds, and an estimate of her expenses during cohabitation. The claimant’s current income is difficult to estimate due to the nature of her freelancing work with the film and television industry. The claimant says that she does not have the resources to establish an independent home.
[51] Based on the respondent’s declared income of $9,740,000 a year, the claimant advances as appropriate the mid-range of $95,760 gross or $71,932 net of taxes per month on a strict application of the SSAG.
[52] The affidavit evidence is most conflicting as to the claimant’s contributions to, and the nature of, the relationship. However, those matters fall to be resolved at trial by assessments of credibility and reliability.
[53] The respondent relies on Lafleur v. Connor, [1997] B.C.J. No. 202, to say that interim support in a short marriage need not be sufficient to support the lavish lifestyle enjoyed during cohabitation. However, in that case, the respondent’s income was only $80,000 a year and the parties co-habitated for only nine months.
[54] The claimant has provided a budget that the respondent says is extravagant. He relies on D.L.M. v. T.M.C., 2003 BCSC 667, McLeod v. McLeod, 2001 BCSC 843, S.O. v. C.S.O., 2008 BCSC 283 and Bailey v. Whitmarsh, 2010 BCSC 806, to urge the Court to reduce the claimant’s expenses to what, he says is ‘reasonable’.
[55] The respondent submits the claimant’s projected monthly budget of approximately $25,000 suggests she is living beyond her means, or has unreasonable expectations of a luxurious lifestyle. He claims that pursuant to McLeod, amounts for vacation and furnishing are generally not included in the calculation of interim support. Pursuant to Bailey, excessive amounts for food were deemed inappropriate and expenses for a dermatologist/esthetician were considered unnecessary. The respondent claims he is not required to support the claimant at the amount she expects or desires.
[56] In the cases cited by the respondent, the income of the defendant ranged from $171,000 to approximately $1,000,000 with interim spousal support orders of $4000 to $25,000 per month. Those cases reflect incomes much less than the income of the respondent. Here, I find the claimant has not submitted an inappropriate ‘wish list’ as in S.O. v. C.S.O. Her expenses represent a certain continuation of important and reasonable elements from the parties’ previous lifestyle. An interim support order of $25,000 does not amount to a continuation of the lavish lifestyle that the parties enjoyed, including private jets to Mexico and helicopters to Vancouver.
[57] The respondent relies on Campbell v. Campbell, 2008 BCSC 154, for the principle that the Court can impute income to the claimant for the purposes of interim support if she is not working to her ability. In Campbell, Mr. Justice Warren examined the plaintiff ‘s expenses, item by item, to determine what was reasonable. He eliminated expenses which the plaintiff was not actually paying, were inappropriate or excessive (at paras. 68-69). He reduced vacation, clothing and household equipment to $0, and reduced meals outside the home, toiletries and cosmetics and various other items. He imputed income to the plaintiff of $60,000. However, at paragraph 77, he explained that the court should endeavour to maintain the status quo on an interim application unless there are exceptional circumstances. The exceptional circumstances in that case were the plaintiff’s drug addiction which caused his expenses to be inflated and his failure to work to his ability.
[58] There are no exceptional circumstances in this case. It is important to note that need is relative, and $25,000 is likely much below the status quo in this case. The claimant’s budget of $25,000 does not appear unreasonable in the circumstances of the parties’ very lavish lifestyle during their relationship. The claimant allots $5,100 alone to pet care, and $3,400 to the mortgage on the Kilby property. These two expenses total $8,500 net per month. I find $10,000 net per month to be unreasonable in all the circumstances.
[59] On the totality of the evidence, such as it is on this application, I have determined the net amount of interim spousal support payable on the first of each month is $25,000 net of taxes. It will start May 1, 2011 and continue until the issue is resolved at trial. This amount satisfies the factors on an interim application, including those in ss. 89 and 93 of the Family Relations Act and, significantly, the parties’ means and needs. The order is only for approximately four months and any potential unfairness to the respondent can be remedied at trial.
[60] I leave it to the parties to determine what $25,000 amounts to after “gross up” for taxes.
“A. MacKenzie A.C.J.”
____________________________
Associate Chief Justice MacKenzie
http://www.courts.gov.bc....C/11/06/2011BCSC0652.htm
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