Date: 19980330 Docket: CA021381 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA BETWEEN: ALLAN WILLIAM UNGERER PETITIONER (RESPONDENT) AND: SHEILA ANN UNGERER RESPONDENT (APPELLANT) Docket: CA023220 Vancouver Registry BETWEEN: ALLAN WILLIAM UNGERER PETITIONER (APPELLANT) AND: SHEILA ANN UNGERER RESPONDENT (RESPONDENT) Before: The Honourable Madam Justice Southin The Honourable Mr. Justice Goldie The Honourable Mr. Justice Finch D. R. Greig Counsel for the Sheila Ungerer G. B. Kaine Counsel for the Allan Ungerer Place and Date of Hearing Vancouver, British Columbia 16 March, 1998 Place and Date of Judgment Vancouver, British Columbia 30 March, 1998 Written Reasons by: The Honourable Mr. Justice Finch Concurred in by: The Honourable Madam Justice Southin The Honourable Mr. Justice Goldie Reasons for Judgment of the Honourable Mr. Justice Finch: [1] These two appeals arise from the same matrimonial proceeding in which the parties were divorced on 16 April, 1993. The first appeal is taken by Mrs. Ungerer from the order of Mr. Justice McKinnon pronounced 14 December, 1995. By that order he reduced the spousal maintenance payable by Mr. Ungerer from $1,200 to $800 per month. On her appeal, Mrs. Ungerer seeks to have the amount of $1,200 per month restored. Mr. Ungerer cross-appeals against the order of 14 December, 1995, and seeks to have his spousal maintenance cancelled, or alternatively, to have it reduced by $100 per month until it is nil. Mr. Ungerer also applies to adduce fresh evidence concerning the impending termination of his employment on 26 March, 1998 due to the announced permanent closure of the Eburne Sawmill where he has worked for the last 24 years. The application to adduce fresh evidence was not opposed. [2] The second appeal is taken by Mr. Ungerer from the order pronounced by Mr. Justice McKinnon 23 April, 1997 dismissing his application, brought as a result of Mrs. Ungerer's misconduct since the divorce, to terminate all spousal maintenance. [3] The facts underlying these two appeals are as follows. [4] The parties married in June, 1970. They have three daughters. The eldest is independent and married. The second, 17 years old, lives with her father. The youngest, Brenda, was born 27 October, 1981 and lives with her mother. [5] The parties separated in December, 1992. [6] Mr. Ungerer petitioned for divorce and the trial of the divorce proceedings ended with an oral judgment on 16 April, 1993 in which Mr. Justice Scarth ordered, inter alia, that Mr. Ungerer pay child support for Brenda of $500 per month, and spousal support of $1,200 per month. He also ordered generous specified access. [7] Mrs. Ungerer refused or failed to cooperate with respect to her ex-husband's access to Brenda with the result that he has had virtually no access to her at all for almost five years. [8] In the fall of 1995, Mr. Ungerer applied to vary the order for spousal maintenance. The application was based on Mrs. Ungerer's changed circumstances since the date of the divorce order, and upon her failure to take any steps to become economically self-sufficient. [9] Mrs. Ungerer conceded that she had made no efforts to find work. Her position was that she had been out of the work force since 1980, had no marketable skills, and that Brenda's condition of juvenile rheumatoid arthritis required her to be more or less fully occupied with her care. The judge found that: She is content to remain out of the work force and there is no valid reason for her to do so. [10] The chambers judge also found that there had been a change in Mrs. Ungerer's financial circumstances. At the time of the divorce order she was paying $1,200 a month for the rental of a four-bedroom house, unnecessarily large for her and Brenda. Subsequently, using her share of the proceeds from the sale of the matrimonial home and with the assistance of her parents, she bought a townhouse. She claimed she owed her parents $850 per month for monies they loaned to facilitate the purchase, but no mortgage is registered against the property, and in fact she has paid her parents nothing. As the judge noted, no obligation in that regard seemed to be accruing. [11] It was on the ground of Mrs. Ungerer's reduced living costs that the chambers judge ordered the reduction of monthly spousal maintenance from $1,200 to $800. [12] In declining to terminate spousal maintenance, either immediately or at some future date on a gradual basis, the chambers judge appears to have acted on the premise that Mr. Justice Scarth had made a finding that Mrs. Ungerer "would probably never become gainfully employed" and that that was a finding of fact with which he could not interfere on the application to vary. I draw these conclusions from the following comments of Mr. Justice McKinnon: I accept as I must, the requirement to give all four provisions of s.17(7) equal weight. Insofar as (b) - care of children - is concerned, I am troubled by Mrs. Ungerer's insistence that Brenda is virtually an invalid and that her ability to work outside the home is thereby compromised. I do not know to what extent that might have impacted upon the trial judge's decision but I had no difficulty concluding that Brenda is a relatively healthy teenager who attends school full-time and who does not require the extensive attention professed by her mother. The respondent has sustained an economic disadvantage arising from the marriage. She has limited skills but regrettably she has no interest in learning new skills nor in obtaining remunerative employment. She is content to remain out of the work force and there is no valid reason for her to do so. Scarth J. however, was cognizant of all these failings. A review of his judgment persuades me that he came to his conclusions accepting that Mrs. Ungerer would probably never become gainfully employed. He then made a division of assets with this in mind and in doing so at least implicitly rejected time-limited maintenance. I am therefore unable to accept that I can simply impose a limit because in my judgment it is appropriate. To do so would amount to an appeal from the decision of Scarth J., from which no appeal was taken. [13] What Mr. Justice Scarth in fact said on 16 April, 1993 with respect to Mrs. Ungerer's future employability was this: Mrs. Ungerer has not worked since 1980. Her married life has been devoted to raising her family. Prior to her marriage she completed Grade 12 and worked in various positions as a filing clerk and messenger and as a bookkeeper for a real estate firm. She continued that work for four months after the parties married in 1970, and was then laid off. Later she obtained employment as a bookkeeper for a wholesaler. Her last job, which lasted three years, was with the Bank of British Columbia as a micro machine operator. Her highest rate of pay, she stated, was between $7 and $8.50 per hour. She cannot operate a computer. She can type. In essence, what skills she had are outdated. Although intelligent, Mrs. Ungerer lacks motivation to become retrained or to obtain gainful employment. [14] He also referred to her evidence on examination for discovery where she said that because of her obligations in caring for Brenda, she was not able to work. [15] I do not think Mr. Justice Scarth concluded that Mrs. Ungerer was not employable either at the time of the divorce hearing, or in the future. Later in his reasons he said: I think if Mrs. Ungerer wishes to continue with that extravagance [rental of the four-bedroom house] she ought to obtain employment and help pay for it. [16] I am therefore of the view that Mr. Justice McKinnon erred in concluding that Mr. Justice Scarth had found Mrs. Ungerer to be unemployable. I am also of the view that even if the trial judge had made such a finding, Mr. Justice McKinnon was not precluded on an application to vary the order for spousal maintenance from deciding that issue afresh, based on the evidence before him. He was hearing the application to vary 2 1/2 years after Mr. Justice Scarth's order was made, when the evidence concerning Mrs. Ungerer's employability had changed. [17] He was clearly of the view that Brenda's condition was no bar to Mrs. Ungerer going back to work, and that her failure to do so was not supported by any other valid reason. [18] It seems to me that in those circumstances it was open to Mr. Justice McKinnon to exercise his discretion on the circumstances as then disclosed, and that his failure to do so resulted from a mistaken view of the law with regard to the effect of what Mr. Justice Scarth had found at trial. [19] The question then arises as to what this Court should order as remedy, whether to refer the matter back to the Supreme Court with a direction that the court exercise its discretion, or whether this Court should make the order that Mr. Justice McKinnon should have made if he had correctly instructed himself on the law. [20] Before deciding that issue I will set out the facts which underlie the second appeal. On 30 October, 1995, Mr. Justice McKinnon declared Mrs. Ungerer to be in contempt of the order of Mr. Justice Scarth made 16 April, 1993 for her failure or refusal to comply with the requirement for Mr. Ungerer's access to Brenda. He ordered Mrs. Ungerer imprisoned for twenty-one days to purge her contempt, but suspended imposition of that penalty in the event that Mrs. Ungerer complied with Mr. Justice Scarth's order for access for a period of thirty days. When Mrs. Ungerer did not comply, steps were taken to commit her to prison. She applied in this Court for a stay and was refused. She went to prison in January, 1996 as ordered. [21] Upon her release, the denial of access to Mr. Ungerer continued. Mr. Ungerer then made a further application for an order declaring Mrs. Ungerer in contempt for her continuing refusal or failure to comply with the access order. That application came before Mr. Justice McKinnon on 2 April, 1996. Mr. Justice McKinnon declined to make a further order for contempt because the evidence satisfied him that by then Brenda did not wish to see her father. He said in part: Mrs. Ungerer, the mother, who is the custodial parent, in my view, and I have certainly found in the past, has consistently refused to cooperate in access. It also is my view still and has been that she has poisoned the child's mind against her father. I do not think there is any question about that, and if there is a finding of fact that has to be made in that regard, then I am making it. . . . The problem that I am facing and the conclusion that I have arrived at is that the time has come, as Mr. Greig says, that the Court is just completely frustrated, and I just do not see anything useful that the Court can do any more, bearing in mind my conclusion that the decision to refuse to visit or give access to Mr. Ungerer has now become the child's decision. I have indicated how I believe that came about, but I do not think it matters much at the end of the day, because the child has adopted or has come to this conclusion and simply refuses to visit. . . . I do not see any useful purpose in continuing this cycle of contempt/imprisonment. It does not seem to be having any effect. I am not so concerned that it does not have any effect: If I was satisfied that Mrs. Ungerer was still completely in control, I would keep imprisoning her until she changed her mind, but it seems to me it has reached the point where Brenda is making her choices, if not independently, at least she is making them to the extent that she refuses to have any contact with her father, and so I am unable at this juncture to make the finding of contempt that is being asked, for the reasons that I have advanced. (my emphasis) [22] So he refused to make a further order of contempt. [23] Then in April, 1997, Mr. Ungerer brought an application to reduce the child maintenance for Brenda, and to further reduce the spousal maintenance for Mrs. Ungerer. The application was made under s.17 of the Divorce Act, and the grounds for the application was Mrs. Ungerer's reprehensible conduct in frustrating all attempts by Mr. Ungerer to exercise the rights of access which remained in place under the order of 16 April, 1993. The learned chambers judge dismissed the application to reduce child support. With respect to the application to further reduce spousal support, the learned chambers judge said: I am cognizant of the provisions of the Divorce Act and the submissions that have been made to me by counsel for Mr. Ungerer, but even having regard to those provisions, I am just unable to accept that there has been the kind of change in circumstance to the detriment to the applicant that is intended or that is meant by those sections. Yes, he has increased some of his expenses. He has bought a house. He has done various other things but his income certainly has not been reduced. He has a good job. He is earning good money, and I think Mr. Greig makes a good point when he says it is better to be Mr. Ungerer than it is Mrs. Ungerer in terms of income. The amount that she is receiving on a reduced basis, which I reduced in 1995, seems to me is not something that one could live on in terms of substituting a salary for the years of marriage, if one wants to refer to it that way. I cannot imagine how she can live on the amount of money that she is getting in maintenance, without getting some sort of part-time employment, and if I was to reduce it further, it seems to be impossible for her to meet her expenses. I have considered the issue -- and I use the word misconduct, but Mr. Greig is right, this is not the outrageous kind of conduct that obviously took place in Day v. Day where Mrs. Day fortuitously did not kill her husband, but certainly intended to kill him and the Court considered that it would just be contrary to every principle of law to reward somebody in those kinds of circumstances. We are not talking about those kinds of facts, and I do not consider that that case or those lines of cases would be relevant to the issues. The reduction that I ordered in 1995 in my view, on my recollection was that it contemplated all of the things that were talked about at trial, and considered whatever obligation Mrs. Ungerer had to supplement her income, and I simply cannot reduce it any further, and I am not prepared to do so, so the application is dismissed. (my emphasis) [24] The question raised in the second appeal is whether misconduct by a former spouse after the marriage has ended by divorce can be considered as a basis for varying or cancelling an earlier order for spousal support. [25] I come then to the resolution of these various issues. Mrs. Ungerer's appeal against the reduction of spousal support by the order of 14 December, 1995 can be dealt with shortly. The issue for the learned chambers judge was whether there was evidence of a material change in circumstances sufficient to warrant a variation in the order of 16 April, 1993. The judge relied upon evidence as to the change in Mrs. Ungerer's housing arrangements, and the consequent reduction in her cost of living expenses. She went from paying $1,200 per month rent to living, in effect, rent free by virtue of the purchase of her townhome, with her parents' assistance. Although she said her parents loaned her money to make the purchase, she was not making any payments to them. The chambers judge concluded that she had received the benefit of her parents' largesse, and that she was under no obligation to repay them. In my view, there was an adequate foundation in the evidence for the reduction in spousal support ordered by the judge. He made no error of law or in principle, and I can see no basis for interfering with the order reducing spousal support which he made. [26] I would dismiss Mrs. Ungerer's appeal. [27] On his cross-appeal, and on his appeal from the order of 27 April, 1997, Mr. Ungerer seeks termination of his obligation to pay spousal support altogether. His cross-appeal is based on Mrs. Ungerer's failure to take any steps to become economically self-sufficient, and his appeal is based upon her misconduct in frustrating the court's order for Mr. Ungerer's access to Brenda. In addition, Mr. Ungerer asks the Court to consider the fresh evidence concerning his impending loss of employment in connection with his cross-appeal. In my view all of these matters should be considered together. [28] Under s.17(7) of the Divorce Act an order for spousal support should recognize or take into account the four factors specified in subparas.(a) to (d). The promotion of economic self-sufficiency of a former spouse within a reasonable period of time is the fourth of those factors. In Moge v. Moge, [1992] 3 S.C.R. 813, [1993] 1 W.W.R. 481, 43 R.F.L. (3d) 345, 145 N.R. 1, 99 D.L.R. (4th) 456, the Supreme Court held that promotion of economic self-sufficiency, as provided for in s.15(7) and s.17(7) was not a paramount or pre-eminent consideration, and that it was to be weighed along with the other three factors in order to achieve an equitable sharing of the economic consequences of marriage breakdown. In that case, the court noted that "Mrs. Moge had failed to become economically self-sufficient notwithstanding her conscientious efforts to do so" (my emphasis). [29] In this case Mr. Justice Scarth found that Mrs. Ungerer's work skills were outdated, and that "although intelligent she lacked motivation to be retrained or to obtain gainful employment". In her affidavit of 25 September, 1995 Mrs.Ungerer affirmed that she had "made no efforts to become self-sufficient or obtain employment". She went on to say that "I am unable to work as was argued and found as fact at trial". The latter part of that statement is not correct. Mr. Justice Scarth did not find that she was unable to work. Unlike Mrs. Moge who made conscientious efforts to become self-sufficient, Mrs. Ungerer has done absolutely nothing. [30] Mr. Justice McKinnon affirmed that there was "no valid reason" for her to remain out of the work force, but felt that he could not act on that view because he held the opinion that Mr. Justice Scarth concluded that she would "probably never become gainfully employed". As indicated above, I do not read Mr. Justice Scarth's reasons as containing such a finding, and, in any event, it was open to Mr. Justice McKinnon to draw his own conclusions as to Mrs. Ungerer's employability at the time of the application to vary. [31] In my view, if Mr. Justice McKinnon had not misapprehended the reasons of Mr. Justice Scarth, and if he had not held the mistaken view of the law that he could not make his own finding as to Mrs. Ungerer's employability based on the evidence before him, he ought to have imposed a time limit on the duration of spousal support either by fixing an end date, or by reducing the monthly payments to nil over a period of months, as was done in Jones v. Jones (1 December, 1986), Victoria V000178 (B.C.C.A.). A proper order, given the length of time Mrs. Ungerer had been out of the work force, and the period of voluntary inactivity since the divorce in April, 1993, might have been to allow her a period of from two to four years from December, 1995 in which to retrain and find work. Spousal support should therefore have been terminated somewhere between December of 1997 and December of 1999. [32] Mr. Ungerer's appeal is from the order of 23 April, 1997 refusing his application to terminate spousal support based on Mrs. Ungerer's misconduct post-divorce. Section 15(6) of the Divorce Act says that in making support orders "the court shall not take into consideration any misconduct of a spouse in relation to the marriage". [33] Section 17(6) of the Act provides: In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought. [34] Mr. Ungerer's argument is that, read together, these sections prohibit consideration of spousal misconduct during the marriage, but that they do not prevent the court from considering spousal misconduct which occurs after the marriage has been dissolved. He says that Mrs. Ungerer's post-divorce misconduct in this case has been so reprehensible as to make continuation of spousal support "repugnant to any one's sense of justice" (per Denning, M.R. in Wachtel v. Wachtel, [1973] 1 All E.R. 829 at 835). Counsel points to Mrs. Ungerer's intransigent refusal to facilitate access, her consequent committal for contempt of the court's order, the continuing refusal to obey the access order after her time in jail, the judge's conclusion that she had poisoned Brenda's mind against her father and completely alienated her affections for him, and the resulting frustration of the court's powers. Counsel also pointed to evidence that Mrs. Ungerer had put Brenda up to saying falsely that her father had molested her, and had told others that Mr. Ungerer was suffering from the onset of Alzheimer's disease. [35] The learned chambers judge took the view that this was not the sort of "outrageous" conduct that was found to justify termination of spousal support under the Family Relations Act in Day v. Day (27 November, 1995), Smithers No. 6500 (S.C.), where the wife had attempted to murder the husband by shooting him four times. [36] The learned chambers judge did not direct his attention to the decision to the New Brunswick Court of Appeal in McGregor v. McGregor (1994), 3 R.F.L. (4th) 343. In that case the trial judge found that the mother had frustrated the court's order for access to two children, and held that to be sufficient reason for terminating spousal support. The Court of Appeal agreed with that conclusion and Hoyt, C.J.N.B. for the court said at 348: I see no reason to disturb the conclusion of the trial judge. There is not sufficient evidence to conclude that Mrs. McGregor is entitled to indefinite spousal support. She was 42 at the time of the divorce. After her return to Scotland, she obtained a position as a medical records officer. Although it is unlikely that her career will be as successful as if it had not been interrupted by the marriage, it is reasonable to terminate spousal support. I would not, however, as Dr. McGregor suggests, terminate it retroactively or even as of the date of the hearing. Spousal support has been paid since 1983. Mrs. McGregor is entitled to notice that it will be terminated at a date in the future so that she can arrange her finances accordingly. The judge's decision resulted in nine months' notice, which, in my view, is appropriate in the circumstances. For that reason, I would not disturb the decision of the trial judge to terminate spousal support on June 15, 1994. (my emphasis) [37] I do not overlook the fact that, unlike Mrs. Ungerer, Mrs. McGregor was employed at the time her support was terminated. [38] That is the only case cited to us where spousal support has been terminated for misconduct. [39] In Turecki v. Turecki (1989), 35 B.C.L.R. (2d) 51, 57 D.L.R. (4th) 266, 19 R.F.L. (3rd) 127 (B.C.C.A.) a majority of this Court held that the mother's conduct in defeating an access order in the father's favour would not justify termination of child support. Whether spousal support could be terminated for misconduct was not at issue in that case. [40] In my view, s.17(6) of the Divorce Act is no bar to considering misconduct in such a case as this, because it is misconduct which has occurred outside the marriage and after its termination, and could not be considered misconduct "in relation to the marriage" in the language of s.15(6). [41] As to the nature of Mrs. Ungerer's misconduct, it is true that it does not equate with that of Mrs. Day because her conduct was not violent, and it was not criminal, as was Mrs. Day's. However, I think the question to be asked where misconduct is alleged as a reason to terminate post-divorce spousal support is whether that misconduct is of such a morally repugnant nature as would cause right-thinking persons to say that the spouse is no longer entitled to the support of her former husband, or to the assistance of the court in compelling the husband to pay. [42] Although the reasons on this issue in McGregor supra are brief, they support the view that conduct which has the effect of frustrating a court order can be sufficient to deprive a former spouse of her right to continue to receive support. In this case, I think Mrs. Ungerer's conduct is sufficiently egregious to disentitle her to continued support. To turn a child against her father is reprehensible in the extreme, and that together with her other misconduct summarized earlier in para. 34 of these reasons would be more than sufficient to warrant termination of support in the eyes of right-thinking citizens. Most people would be offended by the prospect of a court compelling the husband to continue paying spousal support in such circumstances, and would consider it unjust to do so. [43] I am therefore of the view that the learned chambers judge could, and should, have terminated spousal support when the matter came before him on 23 April, 1997, although he would not necessarily have been bound to order immediate termination, and could have provided "a notice period" as was done in McGregor. [44] Finally, there is the matter of Mr. Ungerer's impending termination of employment. He has been employed at the same mill by the same employer for 24 years. While the mill's closure seems certain, it is unknown whether his seniority will entitle him to a job at another mill by the same employer, whether there will be a termination package, and if so, how much, or whether Mr. Ungerer will be successful in finding employment elsewhere. If the imminent termination of his present job were the only matter for consideration it would not, in my respectful view, suffice as a ground for terminating Mrs. Ungerer's support. More information would be required than is presently available on that score. [45] Having concluded that the learned chambers judge erred in his order of 14 December, 1995, by failing to give effect to his view that there was no valid reason for Mrs. Ungerer's continuing unemployment, and erred as well in his order of 23 April, 1997 by deciding that her misconduct did not justify termination of support, the question is what order this Court should make. While it is open to us under s.21(5) of the Divorce Act to order a new hearing of the husband's applications, I do not think it either necessary or appropriate to do so. Having regard to Mrs. Ungerer's deliberate refusal to take any step at all to make herself employable, and for her gross misconduct in respect of the access order, the proper course is to direct that her spousal support cease. I would fix the end date as 30 June, 1999, after which time Mr. Ungerer's obligation to pay spousal support will be at an end. That date is about 3 1/2 years after the order of 14 December, 1995, and a little more than two years after the order of 27 April, 1997. It will also be more than six years after the date of the divorce order. [46] In fixing the end date as 30 June, 1999, I would not rule out the possibility of a further application in the Supreme Court of British Columbia by either party as and when the further information referred to in para.44 is available. [47] I would dismiss Mrs. Ungerer's appeal, and allow Mr. Ungerer's appeal and cross-appeal as indicated. "The Honourable Mr. Justice Finch" I AGREE: "The Honourable Madam Justice Southin" I AGREE: "The Honourable Mr. Justice Goldie"