Date of Release: February 16, 1994          No. 5920/008981

                                          Nanaimo Registry

        IN THE SUPREME COURT OF BRITISH COLUMBIA

                               )

BETWEEN:                        )

                               )

MARIE ELIZABETH SENFT         )     REASONS FOR JUDGMENT

                               )

                   PETITIONER )

                               )     OF THE HONOURABLE

AND:                            )

                               )

RANDY JAMES SENFT             )     MR. JUSTICE VICKERS

                               )

                   RESPONDENT )

                               )

Counsel for the Petitioner:          Bruce K. Soloway

Counsel for the Respondent:          Barry Zacharias

Dates and Place of Trial:            February 8, 9, 10, 1994 at Nanaimo, B.C.

       

Introduction:

        In this action the parties seek a dissolution of their marriage, a resolution of custody and access for two children, a variation of the interim maintenance for the children, a declaration concerning the validity of a separation agreement and a disposition of family property issues.

Factual Background:

        The parties were married on June 1, 1990. When they separated on May 27, 1992 they had known each other for about six years and lived together for a little over four years. There are two children of the marriage, namely: Colby Daniel Robert Senft-McCallum, born June 26, 1897; and Daniel Alexander Ringo Senft, born Dec. 22, 1990.

        The children have lived with the petitioner since separation and the respondent has contributed to their support and maintenance by paying an agreed sum of $250 per month per child. There is an agreement that the petitioner should have the day-to-day custody and control of the children. The respondent seeks an order for joint custody which is opposed. He has enjoyed liberal access, all but five weekends, since the separation. He enjoys a good relationship with his sons, which the petitioner has continued to encourage. Both parties seek an order defining the details of access, the petitioner requesting that some weekend access be made available to her.

        The parties signed a separation agreement on June 12, 1992, 15 days after separation. The respondent says that when he signed the agreement he thought the separation was temporary and, in that context, the agreement was not a final resolution of property issues. As well, he said he signed the document for the sake of his wife, whom he continued to love, and in the hope his cooperation would lead to a reconciliation. He did not receive legal advice although he was aware of his right to do so. He now seeks a declaration that the written document is invalid or, in the alternative, an order varying the terms of the agreement and reapportioning the division of family assets.

        The petitioner is 27 years of age and is a full-time homemaker who works part-time as a hair dresser out of her home. Her income is partly the result of social assistance and a business development program while she struggles to establish her hairdressing business. I conclude her business income is less than $500 per month.

        The respondent is 35 years of age. He is employed by Canada Post as a postal clerk where he currently earns approximately $36,000 per annum. He was employed as such throughout the period of time the parties lived together. In this same period, the petitioner was employed outside the home on an intermittent basis and then only part time. She had limited earnings which she contributed to the maintenance of the household.

        When they began to live together the parties resided in a home which was partly owned by the petitioner's parents. After a period of time the home was sold and they moved to another home owned by her parents. In both of these situations, they paid a very favourable rent, as the petitioner's parents were anxious to help them out. In 1991 the petitioner's parents gifted property to her. The parties moved with their sons to this new home and she continues to live in this residence.

        The home was a gift to the petitioner. They were to set aside $450 per month which is what they had been paying for rent. This money was to establish a fund for taxes, insurance, household repairs and improvements. The home was not to be mortgaged, nor was it to be sold before the boys came of age. The entire purpose of the gift to the daughter was to provide a secure home for her and the children. At the time, the petitioner's father had some doubts as to whether his daughter's marriage would continue. The respondent believes the gift of the home was a gift to both of them. He felt hurt when title was placed in the name of the petitioner but did not raise any of his concerns at the time.

        After they moved to the new home, the respondent paid $3,600 for landscaping. There is a disagreement as to the amount of the husband's contributions to the household fund. He said he paid $150, twice a month, until he moved away. The petitioner said the monthly amount varied but it was not as much as $300 per month. In any event, these funds were used by the petitioner to pay the 1992 taxes. The respondent also paid for new blinds in the amount of $700. A new refrigerator was purchased with his money combined with the sale proceeds of the refrigerator he had purchased for the home in which they had been living. He also had the benefit of living with a low shelter cost throughout the entire period of cohabitation.

        At the time of separation, the family assets and their respective values included:

FAMILY ASSET	VALUE
-       Family Home	$ 158,200
-    Hockey Trading Card Collection	23,500
-    Hockey Jersey Collection	2,600
-    Miscellaneous Coins, Cards and Posters	1,000
-    1981 Pontiac Grand Prix	2,750
-    R.R.S.P. (estimated value of portion acquired after cohabitation began)	1,500
-    Furniture, Appliances and Business Assets (remaining with petitioner)	7,500
-    T.V., Stereo and V.C.R. (remaining with respondent)	1,000
-    Bank Accounts: - Petitioner                    - Respondent	1,400      1,400
-    Respondent's Income Tax and G.S.T. Refund	1,160

       

        In addition to the above, the respondent had some bonds which were not a family asset. Under the provisions of the agreement signed by the parties, the petitioner retained the family home, the furniture and furnishings in the home, the car and her bank account. The respondent retained the card, coin and poster collections, together with the T.V., stereo, V.C.R., the R.R.S.P and his bank account. He also had a collection of compact discs which had been improved upon during the period the parties lived together. It is not possible to put a value on this item from the evidence I heard. The income tax and G.S.T. return was also retained by the wife after the agreement was signed.

         

        The various "collections" noted above were all started by the respondent before the parties commenced living together. On separation the petitioner retained four hockey jerseys and the respondent retained the balance of ten. All of the remainder of the "collections" remained with the respondent, by agreement. These assets were improved upon with new acquisitions during the period of time the parties lived together. The respondent said the value of the hockey card collection did not increase more than 10 percent or $2,350.

        The car was purchased from the petitioner's mother. The petitioner transferred her older car to her mother and the respondent paid the balance of the purchase price and insurance in the amount of $4,700. The car was originally registered in the name of the respondent. In the early months of their separation they seemed to share its use, the respondent taking the car on the weekends when he had the care of his sons. In the fall of 1992 a dispute arose over the use of the car by a third party who was unlicensed and the respondent transferred title to the petitioner. She continues to operate the same car.

Divorce:

        The parties have lived separate for a period well in excess of one year and there is no hope of reconciliation. There will be an order that they be divorced from each other.

Separation Agreement:

        The agreement was intended to be a final disposition of all matters between the parties. When the document was signed by the respondent he read it over and I am satisfied he understood its contents. There was no duress or undue influence on him to sign. He hoped his cooperation with the petitioner would lead to reconciliation. It did not. In my view, failed expectations cannot be a ground for setting aside such an agreement. Nor does a poor agreement make the document invalid. Miura v. Miura (1992), 66 B.C.L.R. (2d) 345. I conclude there are no grounds to declare the agreement invalid.

Is the Agreement Unfair?:

        Whether an agreement in a family matter is unfair must be determined objectively, in a family law perspective. Common law principles developed in the context of commercial cases are not appropriate. Clarke v.Clarke (1991), 55 B.C.L.R. (2d) 273; Stark v. Stark (1990), 47 B.C.L.R. (2d) 99. The respondent calls on the provisions of Sec. 52 of the Family Relations Act which, in the context of this case require a consideration of the following:

(a)     the duration of the marriage;

(b)     the duration of the period during which the spouses have lived separate and apart;

(c)     the date when property was acquired;

(d)     the extent to which property was acquired by one spouse through inheritance or gift;

(e)     the needs of each spouse to become or remain economically independent and self sufficient; or

(f)     any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse.

        This was a short period of cohabitation with a marriage of less than two years. They were apart about two weeks when the agreement was signed. The principal asset was the family home and it was gifted to the petitioner from her parents a little over a year before they separated. The purpose of the gift was clear, namely, to provide a home for daughter and grandchildren that would be a safe and secure environment. The fact the petitioner can live free of a mortgage will make it easier for her to become economically independent. It will reduce shelter costs for her and the children.

       

        The respondent seeks an unequal division of the principal asset, the family home. He submits that in all of the circumstance it would be unfair to allow the petitioner to retain the whole of that asset and it should be reapportioned 80 percent in favour of the petitioner.

        In my view it would be unfair to reapportion the family home. The asset was in the petitioner's name for a little over a year at the time of separation. The Court should give considerable weight to the plan of the petitioner's parents in making the gift. To reapportion would defeat the purpose of the gift. It would also increase shelter costs for the petitioner and her sons. Low shelter costs for the children are a benefit to the respondent.

        When I consider the balance of the family assets in the context of a family dispute I am of the opinion their division was not unfair. The bank accounts were distributed equally and in my view the final disposition of the hockey jerseys should not be disturbed. Of the remaining assets the distribution was as follows:

PETITIONER		RESPONDENT
-Furniture, etc.	$ 7,500	-T.V., Stereo, etc.	$ 1,000
-Car	2,750	-R.R.S.P.s	1,500
-Tax Refund	1,160	-Increased value in cards, etc.	2,350
TOTAL	$11,410	TOTAL	$ 4,850

        It is not possible to be precise in matters of this sort. Accepting the increased value which the respondent placed on the hockey card collection, it appears the petitioner acquired assets valued at less than $7,000 more than the assets acquired by the respondent. If an adjustment were to be made it would be less than $3,500. In the present circumstances, such an adjustment would only impose a hardship on the petitioner, who is currently struggling to achieve economic independence.

Custody, Access and Maintenance:

        The parties have both requested a fixed access regimen. Such an arrangement is not unusual in situations where parents experience difficulty in communication or where there is acrimony or a lack of trust following separation.    In this case the request is unusual because the respondent seeks an order for joint custody. In Anson v. Anson (1987), 10 B.C.L.R. (2d) 357, Huddart C.C.J., as she then was, said at page 367:

In essence, in a joint custody arrangement, the parents continue to share the same duties, rights, responsibilities and input as cohabiting parents save and except for those responsibilities of everyday parenting that go with physical care and control. Usually, neither custodian is given final decision-making authority. The parties have to consult with each other and decide what is best for the child. If they cannot agree, they can seek the help of a professional third party or apply to the court for direction. Because it involves such an equal sharing, the order is rarely made without some indication that the parents can co-operate.   

        My first reaction to the mutual request for a fixed access schedule was that it suggested an inability to resolve differences on a threshold question of access. As the trial progressed the parties listened to each other and, except for mid-week access, they were able to agree to an access schedule. There will be an order providing the following access schedule unless the parties by agreement decide otherwise:

1.       To the respondent, access every weekend except the third weekend of each month and on each Wednesday of the month, with Daniel from noon to 4:30 p.m. and Colby from 2:30 p.m. to 4:30 p.m.;

2.       Christmas shall be divided into two periods, the first from school closure to noon on Christmas day and the second from noon on Christmas day to 4:30 p.m. on the day before school resumes. The parties will alternate these periods so that whoever had the first period last year would have the second period this year;

3.       Other school breaks will be divided equally between the parties; and

4.       Each party to have the children for a month in the summer during which period the regular access schedule will be suspended.

        Both parties are good parents. The petitioner wants to encourage her sons to have a good relationship with their father. The dilemma is that the period of separation to date has been characterized by a lack of trust and cooperation. At one point the respondent engaged in the taping of telephone calls and attempted to pry into the petitioner's private life by questioning the boys. I am satisfied this conduct has ended. The separation has been difficult for the respondent but he has grown to understand that the petitioner is entitled to her privacy and he must get on with his own life. He does not seek joint custody as an instrument of power. I would not hesitate to deny his request if that were the motivation. In my view, he wants to take an active and constructive role in the lives of his sons because he considers that to be in their best interests.

        If the parties began to communicate and rebuild the mutual trust they once enjoyed, it would be in the best interests of their children. They are both eager to accept the parenting responsibility. It is a mutual responsibility which is best discharged in a cooperative manner.

        Grandparents can assume a special supportive role in cases like this. I sense strong support for the grandchildren. Grandparents can also support the interests of their grandchildren indirectly, by encouraging the parties to develop a mature and responsible relationship based on mutual trust and respect.

        In the end joint custody will only succeed if the parties are willing to communicate, with an understanding that communication involves the art of both sending and receiving. If they are unable to communicate and build a cooperative and trusting relationship, in the interests of their children, an order for joint custody will simply fail.

        I have concluded it would be in the best interests of the children to grant an order for joint custody. I urge both the petitioner and the respondent to work to establish a new relationship in the short and long term interests of their children. I am satisfied they are capable of making joint custody succeed.

        Counsel for the petitioner argued that the respondent's income warranted maintenance of $450 per month per child. Maintenance is a sharing of costs involved in the raising of children. The petitioner's current costs do not warrant such a contribution. The low shelter costs enjoyed by the petitioner must also benefit the respondent. When I consider the current income levels of both parties, the expenses involved in raising the children and the fact that the respondent has them in his custody for lengthy periods in each month, I am of the opinion maintenance should be set at $300 per month per child.

       As success has been divided, there will be no order for costs.

Summary:

        There will be an order as follows:

        1.      Dissolution of the marriage;

        2.      Declaration that the agreement is valid;

        3.      Declaration that the division of property is fair;

        4.      Joint custody;

        5.      Maintenance of $300 per month per child; and

        6.      Each party to bear their own costs.

                            Signed: "Mr. Justice Vickers"

Nanaimo, British Columbia

February 15, 1994