Date: 19991115
Docket: D109753
Registry: Vancouver
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
SUZANNE ELIZABETH BERRY
PETITIONER
AND:
TREVOR DONALD BERRY
RESPONDENT
AND:
ELIZABETH BATCHELOR
RESPONDENT
REASONS FOR JUDGMENT
OF THE
HONOURABLE MADAM JUSTICE HUMPHRIES
Counsel for the Petitioner: J.I. Solomon
The Respondent Trevor Donald Berry: In Person
Counsel for the Respondent Elizabeth Batchelor: M.A. Sandor
Date and Place of Hearing: October 19-22, 1999
Vancouver, B.C.
[1] Mrs. Berry petitions for orders for divorce, a change of
name, sole custody of the four children of the marriage,
spousal and child maintenance and division of assets. One
asset is the matrimonial home, built on property which also
contains a second small house built by her mother, Mrs.
Batchelor. Mrs. Batchelor is therefore also a respondent.
[2] Mr. and Mrs. Berry were married in 1984. At that time,
Mrs. Berry was divorced and had a child from a previous
marriage, Sara. Mr. Berry adopted Sara. Sara is 22 and is not
a child of the marriage as defined by the Divorce Act. The
Berry's subsequently had four children, ages 11, 9, 7, and 4.
[3] At the time of the marriage, Mr. Berry owned the
matrimonial home, and the lot on which he built it, free and
clear. He had purchased the lot for about $17,000 in 1976 and
built the home in 1980 for about $35,000. Mrs. Berry brought
assets of less than $5,000 into the marriage. The title to the
matrimonial home was eventually registered in joint tenancy.
[4] Mrs. Berry was employed as a clerk at the time of the
marriage, but left work shortly thereafter because the couple
agreed she would go to sea with Mr. Berry for six months, home-
schooling Sara. When she returned she took a hairdressing
course and taught at the hairdressing school for a short time.
When she became pregnant, the couple agreed Mrs. Berry would
stay home to look after the children and she did so. However
during the course of the marriage she completed her high school
equivalency and took courses in midwifery at Capilano College
in Sechelt, B.C. She has recently shifted her emphasis from
midwifery to social work and intends to transfer her credits to
the University of Victoria which offers a distance education
program in Social Work. She believes she will require 3 more
years to complete her courses and a further 1-2 years to become
self-supporting. She is 43 years old.
[5] Mr. Berry has worked in the marine industry since 1973,
and presently works with Seaspan International. He is required
to be at sea 2-3 weeks at a time, for a total of about 130 days
a year. He also puts in overtime which he has the option of
taking as money or time in lieu. He tends to take his overtime
as time in lieu in order to spend more time with the children.
He makes about $60,000/year, but with overtime taken as money,
he could increase his monthly income by about $300.00. He is
pursuing a marine pilot's Licence and has written the exam
twice, so far unsuccessfully. However, he intends to try again
and if he succeeds, his income will jump to $150,000/year.
[6] Mrs. Berry's mother, Mrs. Batchelor, lost her second
husband in 1987 and the Berrys invited her to consider
building a small home on their property in Sechelt. Mrs.
Batchelor lived in Langley at the time and took a year to
consider her plans for the future. She eventually decided to
accept the Berry's suggestion and the three of them put
considerable effort into the planning and construction of a
small house on the property about 100 yards from the
matrimonial home. A lot of the structural work on the house
was contracted out but Mr. and Mrs. Berry did most of the
finishing. Mrs. Batchelor paid for the entire house, although
the Berrys put in their efforts without expecting any
compensation. It was understood by all three parties that Mrs.
Batchelor would live in the house for the rest of her days. No
formal arrangement was entered into nor were any contingencies
discussed or considered. Mrs. Batchelor continues to live in
the house and, at 81, lives an active and independent life.
The Berrys do not use the little house at all - it is Mrs.
Batchelor's private domain. The parcel of land which contains
both houses is not subdividable.
[7] Although the parties began to go their separate ways
around 1994 or 1995, they continued to share the residence
until the petitioner obtained exclusive occupation of the
matrimonial home by a Court Order dated October 22, 1998.
Since then, Mr. Berry has lived aboard a sailboat which was
left to both him and Mrs. Berry upon the death of Mrs. Berry's
father. In order for Mr. Berry to be able to exercise access,
which is, according to the Order, Saturday and Sunday, from 9
a.m. to 8 p.m., and Monday and Wednesday evenings from 6 p.m.
to 9 p.m., Mrs. Berry leaves the matrimonial home. Although
not required to do so, she has been leaving the home for the
entire weekend so Mr. Berry can have Saturday night with the
children, and she stays aboard the boat.
[8] There have been some problems surrounding access as the
Order provides for additional access as agreed to by the
parties. Because of Mr. Berry's schedule and his lack of a
house to which to take the children, it has been difficult for
Mrs. Berry to accommodate his requests for additional access on
short notice. I am of the view, however, that if Mr. Berry
obtains accommodation which facilitates access and the terms
are spelled out, this source of dispute will be alleviated.
[9] Despite the fact that the parents do not get along with
each other and have not been able to resolve the tension in
their own relationship, they have both made considerable
efforts to put the children first. Both support each other's
relationship with the children and wish to promote a healthy
connection with the other parent. This evidence of maturity
and good will on their part will go a long way towards ensuring
that the children are affected as little as possible by the
breakup of their home.
DIVORCE AND NAME CHANGE
[10] I am satisfied that the preconditions for a divorce have
been met. There will be an order for divorce. There will also
be an order that the petitioner's name be changed from Suzanne
Elizabeth Berry to Suzanne Elizabeth Thomas-Hart.
CUSTODY AND ACCESS
[11] Mrs. Berry seeks sole custody of the children and proposes
that Mr. Berry have the children on alternate weeks when he is
home from sea. Mr. Berry submits that he has always been a
major care-giver to the children and asks for joint custody,
with equal access - that is, he would have six months per year
with the children, worked around his schedule. He would
require the petitioner to spell him off from time to time,
however, to accommodate his study time for his pilot's licence.
[12] Given the high degree of responsible and appropriate
commitment to the children evident in both parents, it is not
desirable to establish a hierarchy of responsibility between
them. Both are equally fit to care for the children. However,
the logistics of their present jobs and pursuits together with
the tension between the parties necessitate the imposition of a
structured arrangement to avoid conflict and ensure the best
interests of the children.
[13] I was impressed by both Mr. and Mrs. Berry's recognition
of each other's importance to the children and their
willingness to sacrifice their personal considerations for the
sake of the children. Although their own relationship is
difficult, I am persuaded that they can communicate
sufficiently to allow a joint custodial arrangement to work.
It is my view that a fixed structure along with a sense of
shared and balanced responsibility will contribute to a
lessening of the tension between them. There will be an Order
for joint custody and guardianship. However, during the
periods when Mr. Berry is away at sea, Mrs. Berry will have the
sole responsibility to make necessary and immediate decisions
on matters respecting the children, and Mr. Berry will be fully
informed of these decisions upon his return.
[14] The practicalities of the situation demand that the
primary residence of the children be with Mrs. Berry, as Mr.
Berry is away at sea for several weeks at a time. Although Mr.
Berry's desire for six months access is understandable, it is
not, in view of his schedule, capable of the structure
necessary to the continued stability of the family. The
petitioner's proposal that Mr. Berry have alternate weeks with
the children when he is home from sea is predictable and
preferable. By my rough calculations, Mr. Berry is home about
33 weeks of the year and away about 19 weeks. He will
therefore have the children about 16 weeks on the regular
schedule. However, Mr. Berry will also have four additional
weeks with the children to be to be taken separately or
together, as arranged between the parties, either when Mr.
Berry is home for an extended period or for a period of
holidays. The remaining weeks will be available to accommodate
his overtime and study needs as necessary. Mr. Berry's weekly
periods of access will begin the Saturday following his return,
with Mrs. Berry receiving at least two days' notice of the
commencement of the access period.
[15] The parties are at liberty, by mutual consent, to
rearrange, amend, or add to this access schedule.
MAINTENANCE
[16] Mr. Berry does not dispute his obligation to pay child or
spousal maintenance and has been paying $2,000 a month. Based
on an income of $60,000, for four children, the guideline
amount is $1,300. Mrs. Berry seeks $500/month spousal
maintenance to allow her to cover the expenses listed in her
Property and Financial Statement. Mr. Berry does not take
strong issue with her expenses, but does question the food bill
of $1,000/month as he was able to keep it to about $800 when he
was managing the finances.
[17] In my view, the amount of spousal maintenance sought by
the petitioner is reasonable, commensurate with the needs of
Mrs. Berry and the means of Mr. Berry and is in accordance with
the objectives set out in section 15.2 of the Divorce Act,
taking into account the result I have reached with respect to
the division of assets, below. There will be an Order that
spousal maintenance is set at $500/month and child maintenance
is set at $1,300/month, both commencing November 1, 1999. It
is early in Mrs. Berry's educational training, so rather than
set a time limit for spousal maintenance, I will leave it to
the parties to apply to vary these amounts if and when
circumstances change.
OTHER ISSUES
[18] Mr. Berry lists about $3,000 in miscellaneous credit card
debts. The parties agree they borrowed $15,000 from Mr.
Berry's parents. They also agree that Mrs. Berry's mother,
Mrs. Batchelor, supplied about $10,000 to assist the family in
buying a van and some appliances. Mrs. Berry says these were
loans; Mr. Berry says they were gifts. Particularly, Mrs.
Batchelor provided $8,000 - $10,000 to assist the Berry's in
buying a van. Mr. Berry says he was content to buy one within
their means but Mrs. Batchelor insisted that her daughter and
grandchildren have the advantage of the more expensive vehicle.
In these circumstances, Mr. Berry did not realize that Mrs.
Batchelor meant the money to be repaid. Mrs. Batchelor says
she did expect to be repaid when the family finances allowed
it, as she could not afford to simply give away this amount of
money.
[19] There is also an issue with respect to $7,000 which Mrs.
Berry removed from her RRSP account in 1997 or 1998 in order to
take a holiday. Mrs. Berry says she was under a great deal of
stress and invited Mr. Berry to take an equivalent amount for
himself but he declined.
DIVISION OF ASSETS
[20] Both parties have agreed to keep their respective vehicles
and expect to be able to divide the household effects without
difficulty. The respondent recently cashed in an RRSP of
$8,000 in order to pay off a debt of his adopted child Sara
which was listed on the petitioner's financial statement. The
family RRSP's now total $85,000, all of which are in the
respondent's name. As well, Mr. Berry has a pension fund
currently worth $71,000.
[21] The only other asset of consequence, outside of the sail
boat, which both parties wish to keep as a common possession,
is the matrimonial home. The division of this asset is
complicated by the presence of Mrs. Batchelor's home on the
property. The matrimonial property is appraised at $255,000,
which includes the value of Mrs. Batchelor's home, valued at
about $75,000.
Positions of the parties on division of assets
[22] Counsel for Mrs. Berry proposes that each party assume
responsibility for the debt to their respective parents, and
that Mrs. Berry retain the matrimonial property (valued at
$255,000 minus the value of Mrs. Batchelor's home of $75,000),
about $55,000 of the RRSP's and half the boat (roughly valued
at $75,000), resulting in a 65-35 reapportionment of assets in
her favour. This would leave Mr. Berry with about $30,000 of
RRSP's, his entire pension and half the sailboat. According to
Mrs. Berry's counsel, based on Mr. Berry's income and listed
expenses, with the addition of overtime, and the lessening of
maintenance, and the tax deduction on the spousal maintenance,
Mr. Berry should be able to afford to rent a house in the area
large enough to accommodate the children for his access visits.
[23] Mr. Berry, while recognizing his obligations to his wife
and children, feels he has worked very hard all his life to
become a good wage earner, and by doing so, not only provided
the family home but provided the means whereby Mrs. Berry could
pursue her education and training. He would have like to be
able to spend more time with the children himself and would
also have liked to be able to take the time to study thoroughly
and properly for his Marine Pilot's licence. However, he put
his efforts into supporting the family and now fears he will
have little to show for it in a material sense. He seeks an
equal division of assets, with reapportionment only if he
obtains the higher paying marine pilot's position. Of course,
that is a future event which may or may not occur and I have to
consider the situation before me at this time. Mr. Berry would
like to retain possession of the matrimonial house himself,
with Mrs. Berry moving into Mrs. Batchelor's house after they
buy Mrs. Batchelor out. He feels this would provide the best
arrangement for the children who would have both parents
nearby.
[24] Unfortunately but understandably, Mrs. Berry would not
consider living in the little house in these circumstances.
She would attempt to rent accommodation elsewhere rather than
accept this proposition. As well, Mrs. Batchelor would require
to be bought out if Mr. Berry takes title to the house. This
would necessitate selling the sailboat.
[25] In the calculation of the worth of family assets, Mr.
Berry includes Mrs. Batchelor's home, while recognizing their
obligation to pay her out. He also seeks one half of the
measure of the value he and Mrs. Berry put into the
construction of Mrs. Batchelor's home through their efforts. To
arrive at that figure, he takes the assessed value of the home
($87,000) minus the cost of construction, which he puts at
$70,000, and halves the result, to get $8,500. Mrs.
Batchelor's counsel submits this claim should take the form of
a separate proceeding if the property is ever sold.
[26]Mr. Berry also seeks compensation for one-half the value
of the RRSP cashed by Mrs. Berry in 1997 or 1998.
Analysis
[27] Both parties realize they are going to have a difficult
time trying to support two households on one income, at least
until Mrs. Berry becomes self-supporting and/or Mr. Berry gets
his Marine Pilot's licence. It is clear that Mr. Berry will
have to take his overtime in money rather than time in lieu in
order to increase the income available to the family, but even
so, there will be no money to spare.
[28] This was a long-term marriage, and although not completely
traditional in that Mrs. Berry was able, through the
cooperation of her husband, to educate herself during the
marriage, there is no doubt that she was not able to pursue a
career which would have allowed her to have financial
independence upon the marriage breakdown, whereas Mr. Berry
was. She is, as a result, entitled to spousal maintenance, but
the amount is low and is predicated upon her having a home for
herself and the children which is mortgage and rent free. Mrs.
Berry does not claim to be in the situation in which many wives
and mothers find themselves after a long term marriage -
unemployable and unable to re-enter the work force. Mrs. Berry
is confident that she will become self-sufficient when her
training is complete.
[29] Mr. Berry came to the marriage with substantial assets,
including the house, and supported the family through his
career. His job permitted him to spend considerable time
caring for the children, and potential for career advancement
is good. Mrs. Berry came to the marriage with few assets and
substituted the responsibility of caring for the children for
career advancement, but was fortunate to have some time in
which she could enhance her education. Her potential for
career development, while not as great as her husband's, is
such that she will likely have a productive working life ahead
of her. She needs time to become self-sufficient and this
requires not only spousal maintenance but some reapportionment
of assets to equalize the effect of the marriage and its
breakdown and to enable her to realize her independence.
[30] In my view, the petitioner has met the onus of
establishing that an equal division of assets would be unfair.
Considering all of the factors in section 65 of the Family
Relations Act, an apportionment of assets of 60-40 in the
petitioner's favour accomplishes the objectives of the Act and
provides a fair and practical result for the family as a whole.
[31] The family assets are as follows:
house $180,000
RRSP's 85,000
boat 75,000
pension 71,000
________
TOTAL $411,000
I note that if the second dwelling were included to increase
the value of the matrimonial property, the family debt would
increase by the same amount, so its effect on the amount of
family assets is neutral.
[32] A division of 60/40 results in approximately $246,600 to
Mrs. Berry and $164,400 to Mr. Berry.
[33] The most practical option for the realization of these
amounts in terms of the division of the assets is to leave Mrs.
Berry and the children in possession of the family home, with
her mother in residence in the second dwelling. However, this
can only occur if Mr. Berry will be able to afford to rent a
home in the community; otherwise the only option is to sell the
property and have both parties rent accommodation with the
proceeds.
[34]Although Mr. Berry accumulates pension income every month,
he has no access to it for ongoing expenses so this amount
cannot realistically be considered in this context and I will
use the figures as set out in his Property and Financial
Statement of March 22, 1999, which set his net monthly income
at $3,300 and his expenses at $2,040, assuming he had to rent
other accommodation. After the maintenance payment of $1800,
he would have $1,500 left based on the income and expenses in
that statement.
[35]According to both parties, an adequate house could be
rented for $800.00. As well as the $1,500/month which was
available to Mr. Berry based on the situation as of March 22,
1999, Mr. Berry will have the additional $300/month from his
overtime, and the additional $150.00/month from the tax
deduction on the spousal maintenance. The amount for boat
moorage and expenses ($250) will now be shared with Mrs. Berry
and the interest on the debt for Sara's line of credit ($40)
should no longer be a factor. I can see that the boat expenses
might be difficult for Mrs. Berry, but in my view an
appropriate adjustment of the food bill of $1,000/month can be
made to accommodate this. That amount is high and the children
will be with Mr. Berry a substantial number of weeks. Mr.
Berry has, as well, $10,000 in banked overtime which he wishes
to keep for contingencies but which may have to serve from time
to time as a cushion for daily expenses. I am therefore of the
view that Mr. Berry will be able to afford to rent separate
accommodation in the community.
Practical Division of Assets
[36] The petitioner's proposal as to the realization of these
amounts in terms of the assets would leave Mr. Berry with
relatively few present assets but a large future benefit - his
entire pension and a significant amount of RRSP's. Mrs. Berry
would have a present benefit in the matrimonial home and the
sail boat, some RRSP's, but no entitlement to the future
pension benefits. Mr. Berry has his occupation, however, which
is a substantial asset now and may well get much bigger, and
Mrs. Berry has her future employability. Although reluctant to
order a trade-off of the pension benefit, it is necessary to
enable Mrs. Berry to take title to the matrimonial home, and in
these circumstances, I am prepared to accept the petitioner's
proposal for the division of assets: Mrs. Berry will receive
title to the matrimonial home, half the sailboat (using Mr.
Berry's estimated value of $75,000 which was accepted by the
petitioner) and $29,100 of RRSP's. Mr. Berry will receive half
the sailboat, $55,900 of RRSP's and an undivided entitlement to
his pension. These amounts are subject to the responsibility
for the debts as set out below, and the numerical calculations,
if in error, are subject to correction by agreement.
[37]Mr. Berry will make the necessary transfers to give effect
to these orders.
MISCELLANEOUS MATTERS
[38] Mr. Berry claims $8,500 for his work on the in-law house
which he claims is a family asset. Using a value of $75,000
for Mrs. Batchelor's contribution would reduce the difference
between the assessed value and her costs to $12,000 and Mr.
Berry's contribution to $6,000. I appreciate Mr. Berry's
request for repayment for his efforts, but they were made
because of family commitments and without expectation of
reimbursement. They were, in effect, a gift to Mrs. Batchelor,
and as a result of the whole arrangement, both the Berrys had
the advantage of having a member of their extended family
living nearby, something they both acknowledge was desirable.
I am not prepared to take this claim into account within the
context of this action.
[39] Does Mrs. Berry owe the family $7,000 for the RRSP she
cashed in 1997 or 1998? I have been unable to find any
documentary evidence as to the date on which the RRSP was
cashed in. However, it must have been used before any
triggering event, because the holiday was, according to Mrs.
Berry, taken in May or June and the section 57 declaration was
made on October 22, 1998. As the use of the money pre-dated
the triggering event, it does not form part of the family
assets for apportionment purposes.
[40] As for the debts to each party's parents, I accept that,
in view of the vague nature of the evidence on these debts, it
makes sense for each party to assume the debt to the respective
set of parents. However, the debt to Mr. Berry's parents is
$5,000 more than the amount alleged to be owing to Mrs.
Batchelor, which, as far as can be determined by the scanty
evidence before me, is about $10,000. Therefore Mrs. Berry
should assume responsibility for an additional $2,500. As
well, there are credit card debts of $3,000, according to Mr.
Berry's Property and Financial Statement, $1,500 of which would
be Mrs. Berry's responsibility.
MRS. BATCHELOR'S CLAIM
[41] Mrs. Batchelor advances a claim in proprietary estoppel
or constructive trust to enable her to remain in the house
until she dies. In the alternative she asks to be paid out for
the value of her home.
[42]The informal agreement at the time the house was built was
that she could live out her days there. As well, Mrs. Berry
asked her not to will it out of the family. There is a small
shrine on the property which is of significance to Mrs.
Batchelor as her mother and husband's ashes are buried there.
[43] There seemed to be a reluctance during the trial to
confront Mrs. Batchelor about what she intended to do with the
property, and her counsel attempted to establish that there was
no certainty Mrs. Batchelor would leave it to anyone in
particular. The only other potential beneficiary is Mrs.
Berry's brother, but Mrs. Batchelor says she would not consider
leaving the home to him as he lives elsewhere and has a
different lifestyle. It seems self-evident that the house will
be left to Mrs. Berry or her children. As well, Mrs. Batchelor
is involved in a relationship with an American gentleman who is
attempting to move to Canada where his daughter lives, and with
whom she wishes to spend the remainder of her life. Although
Mrs. Batchelor says that the little house would be too small
for both of them, she did not acknowledge that her future plans
might include a move.
[44] At present, however, Mrs. Batchelor lives in the little
house and her life has become stressful because of the
uncertainty over the future of the property. She has no other
assets, other than a savings account which she uses to support
her daily needs, and if she cannot remain in the house, asks to
have her interest bought out so that she could buy another
place. Although there appeared to be an issue as to whether
Mrs. Batchelor had paid her share of the taxes, Mr. Berry did
not press this and I am satisfied that she did discharge her
obligations to the Berry's in this respect.
[45]The parties do not dispute that Mrs. Batchelor should
receive value in some form for the little house. $75,000 is a
fair valuation of the house, based on Mrs. Batchelor's evidence
and the invoices and cheques provided. In the unusual
circumstances of this case, and considering the family context
in which Mrs. Batchelor's house was built, the fact that Mrs.
Berry and the children will remain on the family property, and
the possibility of Mrs. Batchelor's future plans changing, I
prefer to approach her claim from the perspective of
constructive trust rather than proprietary estoppel. Given
Mrs. Batchelor's contribution to the house through the payment
for its construction, the consequent enrichment of the Berry's
property value, and the lack of any juridical reason for the
enrichment, I am of the view that Mrs. Batchelor is entitled to
a constructive trust over the property to the value of $75,000.
In view of the fact that Mrs. Berry will remain on the
matrimonial property, I intend to go no further, leaving it to
Mrs. Berry and Mrs. Batchelor as to how they wish to deal with
the house in the future.
COSTS
[46] Success has been divided, but the petitioner has been
successful on more issues than the respondent Mr. Berry. It is
unfortunate that legal fees had to be incurred in order to
settle all of these issues, especially in circumstances where
money is so scarce, but I cannot say that either party took an
unreasonable position. After considering the amount of court
time spent on each issue and the relative success of the
parties, Mrs. Berry should have three-quarters of her costs at
Scale 3 from Mr. Berry.
[47] As for Mrs. Batchelor's claim, Mrs. Berry supported her
mother's position and Mr. Berry also agreed that Mrs. Batchelor
should at least be paid out for the money she put into the
house, which was an alternative remedy sought by Mrs.
Batchelor. The addition of Mrs. Batchelor as a respondent was
made necessary by the marriage break-up, not by the fault of
either individual party. In these circumstances, Mrs.
Batchelor should have her costs at Scale 3, divided between the
petitioner and the respondent Mr. Berry.
SUMMARY
1. Order for Divorce;
2. Order for change of name;
3. Joint custody, primary residence with the petitioner;
4. Access as set out on pages 7 and 8;
5. Spousal maintenance of $500/month; child maintenance of
$1,300/month;
6. Assets reapportioned 60-40 in petitioner's favour;
petitioner to remain in matrimonial home;
7. Mrs. Batchelor to have constructive trust in amount of
$75,000;
8. Costs as set out on pp. 20 and 21.
"Hunphries, J."