A.A. v. H.Q.

2026 BCSC 36 A.A. v. H.Q.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.A. v. H.Q., 2026 BCSC 36 Date: 20260109 Docket: E201839 Registry: Vancouver Between: A.A. Claimant And H.Q., H.Q. Inc. and A.H. Inc. Respondents Before: The Honourable Mr. Justice Veenstra Reasons for Judgment Counsel for the Claimant: P. Sahota Counsel for the Respondents: M. Perry M. Lokshin Place and Dates of Trial: Vancouver, B.C. September 5-8, 11-15, December 11-15, 2023, March 14-15, May 23, 2024 and April 17, 2025 Written Submissions of the Claimant received: March 28, April 17, 2024, June 12 and July 17, 2025 Written Submissions of the Defendant received: April 4, 2024 and July 7, 2025 Place and Date of Judgment: Vancouver, B.C. January 9, 2026 Table of Contents Introduction.. 4 Facts. 5 Background. 5 Events After Marriage. 6 The Move to British Columbia. 15 Separation. 28 Events During Litigation. 29 The Trial 41 Death of The Respondent 42 Reliability and Credibility. 43 Guardianship. 49 Positions of the Parties. 49 Legal Context 50 Analysis. 53 Other Parenting Matters. 54 Child Support. 56 Positions of the Parties. 56 Legal Context 59 Analysis. 61 Spousal Support. 63 Positions of the Parties. 63 Legal Context 67 Spousal Support Generally. 67 Scope of Spousal Support Orders Available After Payor's Death. 69 Ability to Give Judgment Retroactively. 87 Analysis. 89 Entitlement and Duration. 89 Impact of the

Respondent's Death on Spousal Support 92 Division of Family Property and Family Debt. 94 Positions of the Parties. 95 Claimant's 2024 Submission. 95 Respondent's 2024 Submission. 96 Claimant's 2025 Submission. 98 Respondent's 2025 Submission. 99 Analysis. 99 Meeting the Objectives of Spousal Support. 110 Miscellaneous Additional Claims. 115 Conclusion.. 116 Introduction [1] The parties to this family law case were married in July 2008 and separated in August 2020. Their children were born in 2012 and 2019. This action was commenced in September 2020. Unfortunately, the parties' relationship post-separation was subject to a great deal of conflict, including multiple court applications. Although preparations for trial had been largely completed by November 2022, a trial scheduled for that time was adjourned as a result of the respondent's cancer diagnosis. The trial ultimately started in September 2023. Unfortunately, the time required for trial had been underestimated and the availability of continuation dates was limited by the respondent's medical treatments. [2] During the adjournments, I gave various interim directions with respect to parenting matters. With respect to those matters, the parties generally accepted the recommendations made in a s. 211 report, but did not agree on some of the specifics of implementation of that report, and in particular, how quickly the

recommended multi-stage process should be implemented. [3] The evidentiary portion of the trial ultimately completed in March 2024. Unfortunately, insufficient time had been reserved for closing submissions during the two days that were scheduled. The parties filed written submissions, followed by a further hearing in late May 2024 to hear objections to the written submissions that had been made. [4] Judgment was reserved, but prior to it being released, the respondent unfortunately passed away. The parties asked for leave to make further submissions to deal with issues arising from her death once counsel for the respondent had confirmed instructions from the respondent's executor. The executor appointed under the will is the respondent's brother, A.R. [5] The issues that require determination include: a) Guardianship, and in particular, whether the court can or should intervene with respect to the respondent's designation in her will of A.R. as a guardian of the children; b) Assessment of the respondent's claims for retroactive child support (including s. 7 expenses); c) The claimant's claim for spousal support, including the impact of the respondent's death on that claim; and d) Division of family assets and debts. [6] No formal application has been made to substitute parties. I understand that counsel for the respondent made the most recent submissions based on instructions

from A.R. A.R. would presumably be providing instructions in his capacity as executor with respect to financial issues, and in his personal capacity with respect to guardianship. Facts Background [7] The parties were born in Karachi, Pakistan, in 1978 and 1984 respectively. Both come from families that valued education, and both attended university - the claimant in business, and the respondent in medicine. [8] The claimant moved to the United Kingdom in 2004 to pursue further education and find work. By 2006, he was working full-time in a management role in a company in the security industry. [9] The respondent initially came to Canada with her parents in 2005 as part of the family obtaining permanent residence. She returned to Pakistan to complete her medical degree and returned to Canada after completing her degree in the spring of 2007. She then lived with her family in Edmonton until about mid-2010. [10] Both parties come from families in which arranged marriages were either accepted or expected (or both). The claimant was brought by his family to Pakistan in late 2006 and early 2007 to pursue such arrangements. Their respective parents arranged for them to see each other in early 2007, but they were not permitted to have a substantive conversation. A proposal was exchanged between the parents, and the engagement was confirmed through an engagement ceremony in the spring

of 2007. By the time of the engagement ceremony, the claimant had returned to the United Kingdom, so his parents attended on his behalf. [11] In early 2008, the respondent passed the Medical Council of Canada Evaluating Examination, which was one stage of becoming qualified to practice medicine in Canada. [12] The parties were married in Karachi, Pakistan, in July 2008, with a ceremony one day and a reception the next. The parties spent little time together at that point, as the claimant arrived from the United Kingdom a day before the ceremony, and the respondent had to return quickly to Canada to prepare for the next round of exams. Events After Marriage [13] For nearly two years after marriage, the parties lived in different countries - the claimant continuing to work in the United Kingdom, while the respondent lived in Canada where she pursued qualification in the medical field. [14] The respondent passed the Medical Council of Canada Qualifying Exam, Part 1, in late 2008. Also in late 2008, she began working at a medical clinic. Although her letter of employment described her position as a clinical aide, with wages starting at $14 per hour and then increasing after three months to $15.85 per hour, the respondent's evidence was that she very quickly began working as a physician assistant - a position she described as comparable to a nurse practitioner. She said that her

employment letter was not revised to reflect the change in position. She continued in that work until 2011. [15] The respondent passed the next stage of qualifying exams in 2009, which permitted her to apply for a residency position, which would allow her to pursue a medical specialization. There were very limited residency positions available to internationally qualified doctors at the time, and her initial application in 2010 was not successful. [16] As noted, the parties were living in different countries after marriage, although the respondent visited the claimant in the United Kingdom for about 10 days in late 2009. It was common ground that the claimant sent money to the respondent in respect of her purchasing a car; however, the parties had different recollections as to the amount. The claimant recalled that he was paying the cost of the car, which he thought was around $4,500 to $4,700. The respondent recalled that the amount sent was only $500 and covered only a small portion of the cost of the car which she said was around $5,000. [17] More generally, the claimant said that he paid for many of the respondent's expenses given that she was still pursuing her medical certification. The respondent disagreed with this. I note that throughout this time the respondent continued to live with her parents, so her expenses (other than for a car) would not have been

substantial. [18] In about 2009, the parties submitted an application for permanent residence status in Canada for the claimant. The application was approved in May 2010, and the claimant moved to Canada at the end of that month. [19] The respondent had an existing bank account at TD Bank. When the claimant arrived in Canada, the account was made a joint account. At some point, the parties also opened a joint account at Scotiabank. The parties had different recollections as to when that occurred - the claimant thought it was in 2012, in connection with a mortgage taken out from Scotiabank, while the respondent believed that it occurred in 2010 shortly after the claimant arrived in Canada. [20] The claimant's immigration documents indicated that he brought CA$25,571 with him when he came to Canada, which he said was money he had saved while working in the United Kingdom. The respondent had just over $17,000 in her bank account at this point in time, which she said she had saved from her work at the medical clinic. [21] After the claimant arrived in Canada, the parties continued living with the respondent's parents for a period of time, then moved into an apartment. The claimant started looking for a job of any sort, and found work at a Kentucky Fried Chicken ("KFC") outlet. This was initially minimum wage work, but he later became a duty manager so his wage increased slightly.

While the parties agreed as to these events, they disagreed as to how quickly they happened - the claimant recalled they moved out of the parents' home within about two or three weeks of his arrival, while the respondent thought it was three to four months; and the claimant thought he had found an initial job fairly quickly, while the respondent recalled that it was not until August or September of 2010 that the claimant began to work. [22] This difference in views was emblematic of a theme that emerged in the parties' evidence. There was no dispute that the respondent was highly motivated to pursue her chosen career and very hardworking. However, the respondent clearly viewed the claimant as being unambitious, lazy and overly social, and said that he had to be pushed to find employment suitable to his ability. The claimant, on the other hand, felt that he pursued appropriate and increasingly significant work as he built connections in a new country, and that he also supported the respondent in the pursuit of her career. [23] The parties had differing evidence about contributions to their home life after they moved to an apartment. The claimant's evidence was that they had mostly overlapping shifts, as his work was mostly regular daytime work and the respondent often started work in the afternoon and worked into the evening. He said that he ended up doing a lot of cooking and

other chores, which he said allowed the respondent to prepare for her examinations and residency applications. He said that he also started building relationships within the Pakistani-Canadian community, with a view to having connections that might help the respondent get a residency. [24] The respondent, on the other hand, portrayed the claimant as someone who did little at home, and that his supposed efforts at building local connections were more in the nature of finding friends for himself. [25] The claimant decided to pursue work in the insurance industry. He was hired to work for TD Insurance, on the understanding that they would work with him to prepare for the insurance agent exams. He continued to work at KFC as well. He did not pass the exam the first time he attempted it, but his recollection was that he passed it a few weeks later and continued working at TD Insurance, although his work was suspended between the two exam attempts. The respondent's recollection was that the claimant was fired when he did not pass the exam the first time through. [26] In May 2011, the respondent obtained a position as a research assistant at the University of Alberta. Although the work only paid $11.41 per hour, she viewed it as something that would help support her efforts to obtain a residency. This was in addition to her continued work at the medical clinic. [27] In the fall of

2011, the claimant moved from TD Insurance to AMA Insurance. His evidence was that by this time he was no longer working at KFC. He said that his work at AMA included selling travel insurance, which is commission-based, but it required him to work on Saturdays. [28] The first set of income tax information introduced at trial is the claimant's notice of assessment for 2011, which showed employment income of $29,119. [29] In January 2012, the respondent was offered a residency position at the University of Alberta, Department of Internal Medicine. Because she was an international medical graduate, she was required to first complete an "extern" position, which was a series of mandatory educational activities and clinical assessments that had to be successfully completed before final acceptance into residency. The respondent's evidence was that although she was paid for this externship, it was a very low amount of about $500 per month. [30] Also in early 2012, the respondent became pregnant with the parties' first child, A. The respondent arranged to take a maternity leave from the residency program from October 2012 to April 2013. That leave was later extended to October 2013. [31] In about September 2012, the parties purchased a duplex unit (the "Edmonton Duplex") for just over $300,000. They obtained financing from Scotiabank, and their down payment was about 5%. The claimant's

evidence was that it was at this time that they opened a joint bank account at Scotiabank. [As noted above, the respondent's recollection was that the Scotiabank joint account dated back to 2010; however, the earliest Scotiabank account statement in evidence was from 2013.] [32] At some point, the parties began depositing the claimant's employment income to the Scotiabank joint account while the respondent's employment income continued to be deposited to the TD joint account. The respondent suggested this happened shortly after the claimant arrived in Canada, while the claimant said that the Scotiabank account was not even set up until the fall of 2012 and it was at that point or later that his employment income began going to Scotiabank. Apart from a handful of the respondent's banking documents that predate the claimant's arrival in Canada, the earliest banking documents showing deposits of income are from July 2013. [33] It was common ground that the money for the down payment on the Edmonton Duplex (about $15,000 to $16,000) came from the TD joint account. The claimant says that was because they had been carefully saving up money in that account over the previous two years. The respondent says that the money in the TD joint account was her money, and that she ended up paying the down payment because the claimant "didn't bring a chequebook" (this assertion was predicated on

the Scotiabank joint account being the claimant's, even though it was joint). [34] It was also common ground that, once the parties had a mortgage to pay, the mortgage was paid from the Scotiabank joint account, while utilities, insurance, child care, groceries and gas were generally paid from the TD joint account. [35] The parties' 2012 income tax returns indicate the claimant having employment income of $47,310, while the respondent had employment income of $22,657 and EI maternity leave benefits of $4,365. [36] The respondent's maternity leave ended in October 2013. Her residency required long work hours and approximately four weeks per year when she would be out of town. The respondent's mother operated a daycare in her home, and A. began attending that daycare. The claimant said that he was a bit uncomfortable that the respondent's mother would not accept money, but that he acquiesced because the respondent was much more comfortable having A. in her mother's care. The respondent said that A. went there because the claimant would not pay for daycare and the respondent did not have "any money left over", so her only option was to impose on her mother. [37] The claimant's evidence was that because of the intense time requirements of the respondent's residency, he was primarily responsible for A.'s care outside of daycare hours. The respondent disagreed. She said the claimant

insisted that she make all arrangements for A.'s care, and that while the claimant would sometimes help with A. in the evenings, she was generally also there. She said that even before A. was born, she did the cooking and the cleaning. She said that the claimant did not help on weekends, and told her that she needed to arrange a nanny. In her evidence in chief, she said that there was always a nanny on Saturdays - even when the claimant did not have to work - because she needed time to study, and that the respondent was primarily responsible for A. on Sundays. On cross-examination, the respondent was referred to payroll documents that she had produced and acknowledged that it was pretty clear from the amounts paid that the nanny was not there every Saturday. The respondent said this was because the nanny was not always available. [38] For 2013, the claimant's T1 return and notice of assessment were both in evidence. They indicated his employment income from AMA was just over $56,000. The respondent's notice of assessment was in evidence, and indicated that she had employment income of just under $22,000, EI and other benefits of just over $24,000, and total income of just over $47,000. [39] In August 2014, the parties entered into a pre-sale contract to purchase a new home under construction in Edmonton (the "Edmonton Home") at a price of just under $540,000. The deposit of

just over $27,000 was paid by way of two cheques, both signed by the claimant. A $20,000 cheque was drawn on the TD joint account, and a cheque for $7,227.62 was drawn on the Scotiabank joint account. The respondent says that this shows that she paid a larger portion of the deposit. [40] For 2014, the claimant had produced a T4 slip summary and a notice of assessment, which indicated that his total income from employment at AMA was just over $57,000. The respondent produced a notice of reassessment for that year which indicated that her total income (almost all of which was employment income) was just over $69,000. From this point onward, the respondent's income always exceeded the claimant's. [41] At the end of March 2015, the claimant left his work at AMA and began work as a manager with the Heart & Stroke Foundation. This entailed a drop in his income. The parties had different explanations as to the reason for this. The claimant said that he left his work with AMA because the respondent had concerns about the number of hours that he was working, and wanted him to work less to be more available at home. He said that she would call him even before his shift at AMA had finished and demand that he come home. The respondent, on the other hand, said that it was not her requiring the claimant to leave AMA. She said that the claimant was very stressed by arguments with colleagues

at work, and that he was unable to meet his sales targets. She also said that he would leave work around 5:30 or 6:00 p.m. and not get home sometimes until 8:30 p.m. Sometimes she would see him parked in the driveway talking on the phone with people. The claimant denied this. [42] The construction of the Edmonton Home was delayed. The purchaser of the Edmonton Duplex wanted to move in quickly, and the sale of the Edmonton Duplex was completed in August 2015. The parties moved temporarily into a rental property. Net sale proceeds from the Edmonton Duplex of just over $77,000 were deposited to the Scotiabank joint account. [43] The net sale proceeds do not appear to have been directly used to acquire the Edmonton Home. Rather, it appears that the balance in that account was dissipated in small amounts over a period of many months, with payments going to pay TD Visa bills as well as some unidentified withdrawals. The respondent was asked about some of those withdrawals, which she denied knowledge of. Unfortunately, the claimant was only asked about them in a very general sense - agreeing with a general proposition that he was the one "primarily using" the Scotiabank joint account, and that there had been a "slow erosion" of that account, but not being asked about any of the withdrawals. [44] The respondent also said that the claimant was having problems with the lower income he

was then earning, so she allowed him to use "her share" of the proceeds of the Edmonton Duplex to cover expenses. [45] The parties completed the purchase of the Edmonton Home in about December 2015. [46] Each of the parties produced notices of reassessment for 2015, and the claimant also produced a T4 slip summary. The claimant's total income was just under $59,000, which included a small amount from KFC (where he did some work on the side), while the respondent's total income was just over $61,000. [47] The mortgage payments for the new mortgage in respect of the Edmonton Home came from the Scotiabank joint account. The respondent's evidence was that she paid house insurance, utilities, and grocery costs from the TD joint account, while the mortgage and property taxes were to be paid from the Scotiabank joint account. However, when directed to some of the Scotiabank joint account statements, she did acknowledge that the account was also being used to pay utilities. [48] The claimant left his work at the Heart & Stroke Foundation in January 2016. His evidence was that this was because of all the arguments he was having with the respondent. The respondent denied that she forced the claimant to leave the job, and said that the claimant told her he was leaving the job because the foundation was closing its Edmonton office due to the poor economy. [49] The claimant did not

initially find continuing work, but signed up with an employment agency and obtained some short-term contracts for administrative work. [50] The claimant's notice of assessment for 2016 showed total income of just under $30,000, while the respondent's T1 General return and notice of assessment for 2016 showed total income of just under $74,000. [51] The claimant had developed an interest in working in the health sector. In the spring of 2017, the claimant found a temporary contract to cover the position of someone who was going on a maternity leave in Hanna, Alberta, which was a three-to-four-hour drive from the parties' home in Edmonton. The respondent said that she had found the position on an Alberta Health job board and forwarded it to the claimant. The claimant's evidence was that this position lasted five to seven months, during which he would spend weekdays in Hanna, then return to Edmonton on the weekends. [52] The respondent's final exam for her certification in internal medicine was during the time the claimant was working in Hanna. The claimant says that because of this, the respondent insisted that he take A. with him to Hanna and care for her there during the week, in order to give the respondent time to study for the exam. However, there were issues with A. adjusting to the daycare that had been arranged in Hanna, and it was decided that she would have to return

to Edmonton. The claimant says that he met the respondent's father halfway between Hanna and Edmonton to get A. back to Edmonton. The claimant denies that the respondent ever asked him to delay the start of the maternity leave he was to cover. [53] The respondent's evidence was she had asked the claimant to delay the start of this position, but that he was insistent that he start as soon as the position was available. The respondent said that A. did not initially go to Hanna, but that after the first day of the exam she asked the claimant to take A. to Hanna for a day or two. However, A. was very unhappy there, so the claimant insisted that she come to pick up A. The respondent says that it was she and her brother who did this, and that the claimant insisted they come all the way to Hanna to pick up A. [54] The respondent did not pass the final exam, and as a result, she had to rewrite it again a year later. Her evidence was that this was because of her inability to concentrate arising from all the dealings with the claimant regarding the care of A. [55] The evidence as to the timing of all this was inconsistent. The respondent was quite clear that it was March that the position started in Hanna, and that that was when the exam took place. The claimant was less clear as to whether the position started in March or April. An income tax receipt for the examination fee said that

the date of the exam was May 10, 2017. [56] The claimant's evidence was that, at the respondent's request, he paid the exam fee of $4,820. The respondent did not respond to that evidence. The Move to British Columbia [57] Although she did not pass the examination, the respondent's residency had come to an end. She began to look for positions for which she was qualified, and ultimately found a position as a "hospitalist" in Abbotsford. This position would allow her to perform internist work under the supervision of others until such time as she passed the final examination. [58] In the meantime, the claimant had been able to obtain a continuing position with Alberta Health in Edmonton, which he took up after completion of the position in Hanna. [59] The claimant's evidence was that the respondent did not tell him that she had obtained the position in Abbotsford until just days before the respondent was to move. He says he learned of her new position when he received a note asking him to pick up some packing boxes, and that when he inquired as to why, the respondent told him that the movers were coming that weekend to move the respondent and A. from Edmonton to Abbotsford. He said that he later learned from the respondent's parents that they had known about the move for a month. He pointed to an advertisement that the respondent had placed on a nanny website describing herself as

a "single mother of a five year old" who was working in Abbotsford and looking for a nanny urgently. He said that once he learned of the move, he began applying for positions in British Columbia, but that because he understood they were struggling financially, he did not want to move until he had found a position. [60] The respondent says that the claimant was at home when she did the interview for the Abbotsford position, and that he knew right away that she had found the position. She said that things fell into place for the position very quickly, and that the claimant had helped her to find an apartment, encouraged her to take A. with her to Abbotsford, and actually drove them to Abbotsford. She said that the claimant said that he was just starting a new position in Edmonton that he was keen on, and that he did not want to have to start all over again in BC. The respondent said that she was quite upset about the claimant wanting to stay in Edmonton, and asked him multiple times to reconsider. [61] Before the respondent moved to Abbotsford, she and the claimant went to the TD bank. The claimant said that he was not told in advance as to why, but that when they got there, the respondent told the cashier that the claimant was to be removed from the TD joint account. The claimant said that, in order to avoid a scene, he told the cashier that he agreed to be removed from the

account. He said that after they left, he asked the respondent why, and was told that because of her new job, she needed to have her own account. He said that it was not until much later that she told him she thought he had been "stealing" what she thought of as her money. The claimant was also removed from access to the safety deposit box in which the respondent stored the family jewelry. [62] The respondent said that the claimant had the "privilege" of using "her" account, but that the privilege was "revoked" when he used her money without her knowledge. She denied that she had not told the claimant what was going to happen before they got to the bank, saying that the claimant would not do anything without a discussion in advance, and said that his removal from the account was done in a "very respectful" manner. [63] For clarity, I will now begin to refer to what was formerly the TD joint account as "TD account 3356". [64] The parties agreed that, due to financial constraints, the claimant would move into a small apartment in Edmonton and the Edmonton Home would be rented out. The rent covered most of the costs, and the claimant continued to make sure the mortgage was covered each month. [65] The respondent said that by the time all the approvals were in place for her to start work, there were no October shifts available. She worked one shift in November, then a few shifts in

December, and then got on a full-time schedule. [66] I note that beginning in October 2017, bank statements for the Scotiabank joint account were sent to the respondent's apartment in Abbotsford. [67] On December 4, 2017, there was a wire transfer of just over $12,000 to the Scotiabank joint account. The claimant said that this was a loan from his brother. He said that he needed these funds in order to pay the property tax for the Edmonton Home, because the respondent had refused to contribute to the cost. A bank draft was purchased that day, payable to the City of Edmonton, for $12,500. The claimant also signed a monthly payment plan form, providing for monthly payments of $397.43 toward property taxes, based on annual taxes of $4,769.10. [68] The claimant's 2017 T4 slip summary and notice of assessment show total employment income of just over $34,000, plus an RSP withdrawal of $6,428. It included some $655 of income from a pizza restaurant in Drumheller (near Hanna) - which the claimant said he did to earn extra funds while working in Hanna. [69] The respondent's 2017 notice of reassessment showed employment income (presumably from the residency) of $41,048, plus gross professional income of $26,676 and net professional income of $9,806. [70] The respondent successfully completed the final exam for the certification in internal medicine in the spring of 2018. Her

certification was effective as of May 2018. She began looking for positions in internal medicine, and found a temporary position in Burnaby, covering a maternity leave. [71] The claimant said that the respondent was insistent that he live with them in Abbotsford. She wanted him to help care for A. while the respondent worked to establish her medical career. In late 2017 or early 2018, the claimant had some interviews for British Columbia positions but did not obtain a position. In May 2018, he decided to resign his position in Edmonton and move to British Columbia even without having a new job ready to go. [72] There was a series of emails from May 30 to June 5, 2018, relating to a government position that had been offered to the claimant. The position would have started in Victoria, but the claimant said he had been told it would eventually be transferable to the Lower Mainland. The claimant said he had accepted the position verbally, but then documents were sent to him on May 30, 2018, for completion in order to finalize the position. An email sent from the claimant's account on June 5, 2018, apologized for the delay in responding but said that "I have to decline the job offer at this time due to my family and specially my daughter having separation anxiety. I had been living away from my family for nearly 1 year and it is very difficult for her to adjust." The claimant said

that this email was actually typed and sent by the respondent. The claimant said that he generally left a computer on in their home, with his email account readily accessible, and that the respondent accessed his account periodically. The respondent denied having sent this email. [73] Within a short time thereafter, the claimant found an administrative position with Fraser Health, and he was continuing with that work at the time of trial. [74] The claimant said that once the respondent completed her certification, she started working "crazy hours" in various hospitals in the Fraser Health region, and he took responsibility for much of A.'s care. The respondent disputed this. She said that, after the claimant began working with Fraser Health, he was not working on the weekends, but that he refused to care for A., which required her to arrange for a nanny. The records included a T4 slip for 2018 issued to one nanny for $881.45, which the respondent identified as the nanny who worked weekends. A second T4 slip for $2,421.98 was for another person who would pick up A. from school and feed her. [75] The claimant's T1 tax return for 2018 shows total income of $49,317, of which roughly half came from the Alberta government and half from Fraser Health. The claimant also claimed child care expenses totalling $3,312. [76] The respondent's T1 tax return for 2018 shows gross business

income of $411,956, and net income of $337,279. There was no deduction for child care expenses, but there was a deduction of $50,000 for RRSP contributions. [77] In February 2019, the respondent incorporated two companies, which I will refer to as "HQI" and "AHI". HQI was intended as an operating company for the respondent's medical practice, while AHI was intended as a holding company. The respondent was the sole director and officer of each company. All of the voting shares in each company were issued to the respondent, while Class "C" shares of each company were issued to the claimant. As well, HQI had Class "D" shares that were issued to AHI. [78] The claimant's evidence was that once the respondent moved to Abbotsford, she dealt with all financial arrangements without consultation with him. She retained accountants and financial advisors, who were not to take instructions from him and who were told what information they could share with him. He was required to hand over his tax slips to accountants working under the respondent's direction, and they would take care of his tax returns. He recalled having a couple of meetings where accountants and financial advisors would provide him with very limited information, including one from Manulife Securities. [79] At some point in early 2019, TFSA accounts were opened with Manulife Securities for both the respondent and the

claimant, and the respondent deposited $70,000 into each account. The claimant denied any knowledge of a TFSA account, and did not recall having authorized the opening of an account (although he did acknowledge having met with a representative from Manulife Securities). [80] The respondent's evidence was that she had at one point retained an advisor from Manulife Securities but then decided to fire that advisor. An email from the advisor to the respondent dated March 8, 2019, confirmed that "As discussed, we will have the Tax Free Savings Accounts withdrawn and the funds sent back to you. Due to the short term nature of the funds, Manulife will instead be mailing the cheques directly to your home " [81] On March 13, 2019, there were deposits of $63,492.94 to each of TD account 3356 and the Scotiabank joint account. The respondent said that this was the money that was returned from the two Manulife TFSA accounts. The claimant denied any knowledge of all of these dealings. [82] On March 14, 2019, a bank draft for $60,000 was withdrawn from TD account 3356. A handwritten note of the respondent on the bank statement says "to Holding Co". [83] Other transactions at about this time include: a) Two cheques of $2,800 each drawn on March 18, 2019, from TD account 3356, with handwritten notes on the bank statement saying they are for "Surrey rental"; b) A cash withdrawal of $7,000 on

March 18, 2019, from TD account 3356, with a handwritten note saying "for travel"; c) A cheque for $63,492.94 drawn on March 21, 2019, from the Scotiabank joint account; and d) A corresponding deposit of $63,487.94 on March 21, 2019, to TD account 3356. [84] It appears from the latter two transactions that the funds received from the TFSA that had been opened in the claimant's name and then closed, although initially deposited in the Scotiabank joint account, were within days transferred to TD account 3356 which was under the respondent's sole control. [85] On about March 25, 2019, the parties travelled to Pakistan. [86] The respondent's evidence was that they had done a lot of research online to understand the rules for international investments, with a view to investing in property in Pakistan. She said that the claimant had arranged for a friend - a Mr. Khan - to show them a number of properties, but that they were much more expensive than she was interested in purchasing. She said that she had brought a bank draft for about $60,000, to Pakistan with her, but that she ended up not using it. [87] The claimant's evidence was dramatically different. He denied that he and the respondent had been talking about investing in property in Pakistan, and denied even being aware that there were serious plans in place to purchase a property there. He said that he did not learn what all

had gone on with respect to a Pakistan property until 2021. He agreed that he and the respondent had been driven to one property, but said that he was not aware of a Mr. Khan having anything to do with that. He said that a friend named Naveed had lent them his driver and car, and that they used it to travel to an area known as Beriatown where there was one property that the respondent had said she wanted to look at. [88] On April 3, 2019, the parties attended along with a relative at a branch of HBL Bank in Karachi, Pakistan, to open a joint bank account. The parties were ad idem that the relative who joined them on the account was an aunt, but they did not agree whose aunt it was. I gather that the parties are related in some way, such that they have some common aunts and uncles, but each of the parties asserted that this aunt was closer to the other. [89] The claimant's evidence is that when the respondent suggested they open the account, he asked her why, and that she explained that she was looking for investments in Pakistan. The claimant said that he discouraged her from investing in Pakistan, but that she wanted to go ahead so he attended at the bank with her. The bank records show that the account was opened with an initial deposit from the claimant of 50,000 rupees (about CA$500). Any one of the three of the joint account holders was authorized to effect

transactions. [90] The respondent's evidence was that after this joint account was opened, she and the claimant had an argument, he slapped her, and she then decided not to use the bank draft she had brought with her to make an investment at that time. The claimant denied this. He agreed that the respondent and A. went to visit with her relatives, but denied that there had been an argument or that he had slapped the respondent. [91] The parties left Pakistan on April 5, 2019, and returned to British Columbia. [92] On April 8, 2019, the respondent deposited $60,000 to TD account 3356. While there was some confusion in the evidence about this, I infer that this was the $60,000 that had been withdrawn from the same account on March 14, 2019. [93] On April 10, 2019, the respondent opened a bank account for HQI. Upon opening the account, she transferred $351,127.63 from TD account 3356. She explained that prior to this point, all of her earnings as an internist were being deposited to her personal account (TD account 3356). Now that she was operating through a corporation, it was appropriate to transfer the funds to a corporate account. [94] On April 17, 2019, the respondent opened a bank account for AHI, and on April 23, 2019, she transferred $70,000 from the HQI account to the AHI account. [95] In the spring of 2019, the respondent became pregnant with the parties' second child.

As well, at some point in 2019, the parties moved to a rental home in Surrey. [96] In May 2019, the respondent paid $860 in fees for the claimant to take a business analyst course at SFU. The parties were in agreement that this was intended to help the claimant advance his career. The claimant suggested that this was only fair given that he had helped the respondent with her exam fee two years earlier. The claimant registered for further SFU business courses over the next year, for which the respondent paid. [97] On May 16, 2019, the respondent attempted to wire $70,000 from the AHI account to Pakistan. The respondent's evidence was that she initially asked the TD Bank to transfer funds to Pakistan, but that was unsuccessful. The money was returned to the AHI account, and TD Bank suggested she try another bank. [98] The respondent said that this money was intended to be used for a property investment in Pakistan. She said that the claimant was already dealing with paperwork for a property investment, and that he was coordinating with his aunt and his friend Mr. Khan to that end, but that he suggested that maybe she could take care of transferring the funds to Pakistan. The claimant denied any knowledge of any of these arrangements, and said that anything that happened in respect of the Pakistan property in 2019 was at the instance of and dealt with by the respondent. [99] On

June 5, 2019, $70,000 was transferred from the AHI account to the Scotiabank joint account. The respondent said that she did this by taking a withdrawal by cheque from a TD branch and depositing it immediately at the Scotiabank across the street. The claimant said that this deposit was made without his knowledge, and that he did not notice that funds of that magnitude had appeared for a 10-day period in an account he had access to. [100] On June 15, 2019, the respondent arranged for a wire transfer of $70,000 to the HBL Bank in Pakistan, using the funds from the Scotiabank joint account. The HBL Bank records show the funds arriving on June 20, 2019, in the form of €46,295.59, in the name of the claimant. The funds were converted to 8,159,597.74 rupees and deposited to the joint account. [101] In early August 2019, there were emails between the respondent and a Mr. Vickers, a financial planner. On August 1, 2019, Mr. Vickers noted having gone through financial data submitted and identified a "number of unknowns" that he "hoped you could clarify". With respect to retirement ages, the respondent wrote: I don't mind retiring at 59 years old, you can write [the claimant's] age of retirement at 65 also, although I want him to work more so he makes us less crazy haha [102] With respect to the Edmonton Home, the respondent said: Remaining balance on Edmonton house is $515,000, our 4

year lease is finishing on Edmonton house in 2020. Edmonton house is rented out for $1800/- our mortgage is usually $2300/-, which [the claimant] kindly pays remaining amount from his salary. [103] In response to questions about a Pakistan property, the respondent said: Pakistan house is not purchased yet, as new Govt had changed a lot of rules on investment for Overseas Pakistanis, however, after 4 months of extensive legal paperwork, I'm now eligible for investments in Pakistan. I will not be getting mortgage in Pakistan, every investment will be fully paid on cash. So, I used my minimal business sense and transferred $70,000 Canadian into Euro = 45000, which I then transferred to Pakistan as Euro, as it is more expensive in Pakistan then Canadian currency (as compared to Canada). I therefore earned 85,000,000 rupees in Pakistan which is equivalent to $85,000 /- Canadian. (In order to buy a good house in Pakistan in a good area you need 1M$, so my plan is to buy an apartment first and then sell it quick to earn unto 1M$, and my realtor friend in Pakistan is working on this plan). [104] The document indicates that it was forwarded to the claimant's email address on August 9, 2019. The claimant disputes that it was sent to him, saying that he located it two years later when he did a search under his "iCloud ID". The claimant's evidence is that the respondent never spoke to him

about the financial planning work she was doing, and insisted on filing his tax returns for him. The respondent, on the other hand, insisted that she was discussing all of these matters with the claimant before acting. [105] On September 5, 2019, an email was sent from a Hotmail account in the claimant's name to an official at the HBL Bank in Pakistan, saying "Hope you are doing well. Could you please email me the current bank statement and remittance certificate for my tax return." A return email from the bank attached a copy of an account statement, showing the current account balance of 8,209,097.74 rupees. [106] The claimant testified that he did not send this email - or the September 7 email I will reference below. Rather, he says that his email was always open on the desktop computer, to which both he and the respondent had access, and that she occasionally sent emails using his account. The respondent disagreed, saying that the claimant sent these emails himself and subsequently forwarded them to her. [107] The documents include an Agreement of Sale, which is dated September 6, 2019. It lists a Mr. Aslam as Vendor and the claimant, through his attorney Mr. Khan, as Vendee. It sets out that the Vendor has agreed to sell to the Vendee the sub-lease of a commercial shop in Karachi, Pakistan, for the price of 70 lakh 50,000 rupees, of which 10 lakhs has been paid by way of a

deposit and the balance is to be paid on execution. As well, the documents include a Receipt dated September 6, 2019, by which Mr. Aslam acknowledges receipt of the sum of 10 lakhs. [A lakh is equivalent to 100,000 rupees.] [108] The claimant denied any knowledge of this document, denied having appointed an attorney in Pakistan, and denied having known Mr. Khan. He said that he did not have the resources to purchase anything, and that he had consistently opposed investing in Pakistan. The respondent, on the other hand, said that the purchase of this shop was discussed both with her new financial advisor and with the claimant, and that they had agreed to go ahead with it. She said that the claimant made the arrangements, and that he eventually sent various documents related to these transactions to her by text. [109] A further email was sent on September 7, 2019, from the claimant's Hotmail account to the HBL Bank official. It was copied to Mr. Khan in Pakistan and to the respondent, and stated: I like to advise you that I have issued three cheques from my account of (1) PKRS 5,00,000 Lakh (2) PKRS 4,00,000 Lakh (3) PKRS 1,00,000 Lakh. You have my permission to process the cheques please. [110] A subsequent bank statement for the HBL account shows that the three cheques were processed through the HBL account on September 12, 2019. [111] The documents also include a General Power

of Attorney by which Mr. Aslam (who was the Vendor on the earlier document) appointed the claimant "to be my true and lawful General Attorney in respect of my commercial shop bearing No. A-3, on Ground Floor". The claimant denied having ever signed this document. He acknowledged that the identity card number and photograph on the document were his, but said that he had no knowledge of this document until 2021. [112] On October 3, 2019, a number of banker's cheques were processed on the HBL account, the amounts of which match the purchase price under the original agreement. They are made out to various people, mostly with the last name Aslam. [113] On October 16, 2019, an email was sent from the claimant's Hotmail account to the respondent's account, the subject line of which states "FW: Shop Property documents". The respondent acknowledged having received this email and the documents. The claimant denied having sent it or having been aware of it. [114] The respondent also produced a photograph with the words "your tenant", which she asserted had been texted to her by the claimant. The claimant denied having done so, and said he had searched his phone and found no record of either the photograph or the text. [115] The parties' son, H., was born in December 2019. The respondent went on maternity leave. [116] The respondent caused HQI to issue a T4 slip to a nanny, Ms. Collins, at

the end of 2019 for $2,597.40. The respondent says that she had to hire Ms. Collins because the claimant was unwilling to provide care for A. [117] The claimant's tax return for 2019 indicates income of just over $51,000 from Fraser Health Authority, plus $36,000 from HQI. It shows that the claimant had made TFSA contributions of $63,500 and withdrawals of $63,492.94. The claimant denied any knowledge of the $36,000 from HQI, or of the TFSA contributions and withdrawals. He said that he had never received the $36,000. He said that the respondent insisted on taking care of tax returns. [118] When asked about the $36,000 T4 slip issued by HQI to the claimant, the respondent said this reflected money that she had spent for the benefit of the claimant. [119] The respondent did not produce her T1 tax return for 2019. She did produce a notice of assessment, but that document had only limited information. It showed total income of $164,000. The claimant's counsel put to the respondent that records from the Medical Services Plan showed that her billings totalled nearly $800,000 - she denied that was the case, and said that made no sense to her. She noted as well that she had incorporated her practice during the 2019 year. [120] When the Covid-19 pandemic hit in the spring of 2020, the respondent was called back to work. The respondent said that she had originally only booked a

maternity leave until May 2020, and that when she asked to extend it, the request was declined. The respondent says that she was able to secure some benefit, as the hospital agreed that she would return as a full-time internist. [121] The claimant said that he was told by the respondent that he would have to take a paternity leave, because if she did not return to work, she would lose her job. [122] The claimant started a parental leave on May 3, 2020. He was scheduled to remain on leave until October/November 2020. [123] By July 2020, significant disputes had arisen between the parties. On July 25, 2020, the respondent arranged for her mother to come from Edmonton to be available to assist with the children. The respondent said that this was because she was unhappy with the claimant's availability to care for the children. The claimant was unhappy with having the respondent's mother come to live with them, and told the respondent that if she brought her mother to the family home, he would call the police. The respondent called the police herself, while en route to the airport, and an officer attended at the house and instructed the claimant to leave the home for 24 hours while the parties cooled off. [124] The claimant returned to the house the next day. His efforts to have a discussion with the respondent were rebuffed by the respondent's mother, who advised him that the

marriage was over. [125] On July 29, 2020, both parties called the RCMP again. Officers interviewed both of them, and once again asked the claimant to leave for a cooling-off period. Separation [126] Various texts from early August 2020 indicate efforts to arrange a time for the parties to talk by phone. It was common ground that their date of separation was August 5, 2020. The claimant found an available rental property nearby. He said that he was allowed into the house briefly, with the respondent's mother supervising him like a security guard, and that he filled one suitcase with clothing and personal items which he showed to the respondent's mother before he left. [127] On August 9, 2020, in response to efforts by the claimant to arrange time with the children, the respondent texted saying: Please don't come my lawyer has said that I can't let children go out with you. And please give me the house key, lease, garage door opener. You can meet [A.] today at house but please don't take her. [128] On August 20, 2020, the respondent made the first of many complaints to the Ministry of Children and Family Development ("MCFD") about the claimant's parenting. [129] On August 24, 2020, the claimant returned to work. He said he would have returned earlier, but there is a minimum two weeks' notice required because someone else had been assigned to fill his role. [130] Both parties

retained counsel. On August 25, 2020, the claimant's counsel wrote requesting parenting time and proposing a four-way meeting to attempt to resolve some of the interim issues without the need for court process. On August 27, 2020, the respondent's counsel responded advising that the respondent was not prepared to allow contact between the children and the claimant. Events During Litigation [131] This action was commenced on September 3, 2020. The claimant also filed a notice of application that day seeking an interim order for parenting time as well as a s. 211 report. [132] On September 8, 2020, the claimant agreed on an interim, without prejudice basis to supervised parenting time. However, on September 11, 2020, the respondent was diagnosed with Covid-19 and further visits were cancelled for a period of time. [133] On September 18, 2020, a consent order was pronounced by Associate Judge Vos for preparation of a s. 211 report, with the claimant's application for parenting time to be rescheduled after the Covid isolation period, if required. [134] The parties also agreed that A. would have counselling from an organization known as "Wishing Star". However, the respondent was unhappy with the counselling, and over the next few months change counsellors twice. The claimant said that these changes were made unilaterally. [135] The tenants of the Edmonton Home moved out in

September 2020. The claimant had arranged with a friend to check the house every few days and began efforts to find new tenants. However, the respondent through her family arranged to have the locks changed. The respondent said that the claimant had missed mortgage payments and she needed to assume control of the situation. [136] At some point in the fall of 2020, three representatives of the Pakistani community visited with the respondent at the request of the claimant, in an effort to see if there was anything that could be done to help repair the relationship. The respondent told them there was nothing that could be done; rather, it was the respondent's view that the matter was in court and should be dealt with in court. [137] In October 2020, the claimant closed the Scotiabank joint account. He said he did this because the respondent was continuing to use the account to make bill payments, even though she was not contributing any funds to it. [138] On October 7 and 8, 2020, the respondent filed her Response to Family Claim and Counterclaim. In the Counterclaim, she sought sole guardianship and all parenting time. [139] The claimant's 2020 T1 income tax return showed total income of $48,861, of which $8,205 was EI benefits from his paternity leave. [140] The respondent did not produce her T1 income tax return. Her 2020 notice of assessment shows line 150 income of $137,978,

but does not provide any further detail of where that income comes from. When asked about why she had not produced her income tax returns for 2020 and onward, the respondent complained that the document production requests from the claimant's lawyer were "infinite". [141] There was a further court application on January 20, 2021, before Associate Judge Harper. Both parties were represented by counsel. Associate Judge Harper ordered that the claimant have parenting time from 6:30 p.m. Fridays to 5 p.m. Saturdays and on Mondays and Tuesdays from 5 p.m. to 8:30 p.m., plus Skype parenting time at least three times per week. [142] On January 29, 2021, the claimant filed a notice of application seeking, among other things, orders for the sale of the Edmonton Home and for interim spousal support. The application was not ever heard, and as a result, there was never an order for interim spousal support. [143] The claimant made an F8 financial statement on February 4, 2021, which was filed on February 5, 2021. It did not contain any information about the Pakistan property. The claimant said that it was not until after this F8 financial statement was completed that he learned through his then-lawyer about the property in Pakistan. This apparently resulted from inquiries made by the respondent's lawyer, who provided copies of the various transaction documents described above. The

claimant's evidence was that he thereafter contacted the aunt in Pakistan who had been involved in the HBL bank account and learned from her what had been done with the money in the account. [144] The claimant said that he was surprised and upset by things he learned from the initial disclosure, which also included information about the TFSA account he was not aware of. He decided that if there was a property in his name, given his desperation for money to fund the litigation, he could just sell the property. He said that his brother helped him track down Mr. Khan, who prepared a document that could be used to sell the property. [145] On February 16, 2021, the claimant signed a new General Power of Sub-Attorney at the office of the Acting Consul General of Pakistan in Vancouver. That document appointed Mr. Khan as the claimant's attorney with power to sell the property. [146] The claimant's evidence was that he had no direct written, email or text correspondence with Mr. Khan; rather, he simply signed the General Power of Sub-Attorney, had it sent to Mr. Khan, and did not retain a copy. [147] On March 3, 2021, the respondent filed an F8 financial statement. Among the assets was listed "Pakistan property purchased at $70,000 cash in control of the Claimant". It also listed "Jewelry in Scotia Bank White Rock = 400 gm - value of $24,456". The respondent could not explain where

this latter number came from. [148] On March 5, 2021, Mr. Khan signed a Conveyance Deed to sell the Pakistan property for 17 lac 50,000 rupees. The claimant's evidence was that Mr. Khan used someone to send the money to his brother in California, but that he had no documents with respect to that - other than to refer to a handful of deposits from his brother to his bank account. The claimant identified two such deposits (March 25, 2021, for $7,392.60 and May 31, 2021, for $5,910) as being related to the sale of the Pakistan property. Although there were subsequent deposits from his brother, the claimant said that he believed those were monies loaned to him by his brother to help make ends meet. [149] There was a judicial case conference on March 8, 2021, with both parties represented by counsel. Orders were made to schedule a trial for November 2021, and deadlines were given for the parties to finalize the retainer for the s. 211 report and for the claimant to produce a list of documents. [150] On March 29, 2021, Associate Judge Muir made an order for the claimant to pay interim monthly child support of $600. The claimant, who was struggling to fund legal costs, was self-represented at this hearing. This amount was based on the claimant's T4 income from 2020 of $37,559.71, which was the only income noted in the claimant's F8 financial statement. This income amount was missing

the EI funds the claimant received during his parental leave. Questions of retroactive child support were adjourned to the trial. An order was made for the respondent to have conduct of the rental of the Edmonton Home, and that: The mortgage for the Edmonton Home shall be transferred to a bank in British Columbia and the parties shall do all things necessary to ensure that the mortgage is transferred accordingly forthwith; [151] On April 22, 2021, the respondent entered into a contract to rent out the Edmonton Home to a property management company that was going to use it for short term rentals, at a monthly rent of $2,000. [152] The order made by Associate Judge Muir on March 30, 2021, was entered on April 29, 2021. [153] There was a further court application on April 30, 2021, at which the claimant was again self-represented. Associate Judge Vos made orders for the claimant to provide a comprehensive list of documents within seven days, to include all documents relating to the Pakistan bank accounts and the Pakistan property. The claimant was also ordered to pay a $2,000 fine pursuant to s. 213 of the Family Law Act, S.B.C. 2011, c. 25 [FLA], as well as costs, payable forthwith and in any event of the cause. With respect to the fine, Associate Judge Vos explained that: [14] The court cannot condone the claimant's refusal to abide by the terms of a court order. The order

entered pursuant to the hearing that proceeded before Master Muir on March 29, 2021 indicates that the claimant participated in the hearing. Orders were made. The claimant refused to do tasks he was ordered to do, resulting in an application to follow up on a requirement that he "do all things necessary to ensure the mortgage is transferred". A fine will be assessed to ensure that the claimant will realize that he must abide by the terms of court orders. The fine is assessed in the amount of $2,000 and is to be paid by the respondent to the claimant within 30 days of today. [154] Associate Judge Vos also reset the trial to occur one month earlier, in October 2021, as a result of the changed availability of the respondent's then-counsel. [155] The fine was paid on May 1, 2021, and documents indicate that the claimant signed the mortgage application on May 3, 2021. Ultimately, however, it appears that the mortgage remained in Alberta - the exact reasons for this are not clear on the record. [156] On May 20, 2021, the claimant retained new counsel. [157] Financial statements for HQI for the year ending July 31, 2021, indicate gross revenues of $479,428.85, with net income of $172,470. Expenses include automotive expenses of $13,133.65, management fees of over $185,000 and "overhead and administration" costs of $48,258.18. [158] Both parties retained new counsel in the fall of

2021. The trial that had been set for October 2021, did not proceed. A letter dated October 13, 2021, from the claimant's new counsel to the respondent's counsel reported as follows: I have also attached two documents [the claimant] obtained from Pakistan after he paid a bribe to get them. These documents are not complete, as both seem to be missing the 1st page. One seems to be a power of Attorney, not a document having to do with the sale of any property. The notes to the side were made by a lawyer in our office that used to practice law in Pakistan. He tells me that bribes are a normal cost of doing business in Pakistan. There was a 3rd document that had nothing to do with either of our clients. [The claimant] still has an outstanding bribe with another person trying to get ahold of the complete Pakistan property documents. It has been outstanding so long he believes that he may never get a response. [The claimant] tells me that your client purchased the property in his name, which makes sense as [the claimant] never had the money to purchase the Pakistan property. You client also admitted to purchasing the property in one of her many affidavits. [The claimant] did not know for a long time that there was even a property in Pakistan in his name. He never collected any rents from the property and believes that any rents, if there was any would have been paid into your client's

Pakistan bank account. [The claimant] does not have a Pakistan bank account. [The claimant] sold the property upon knowing that the property existed. The sale is noted in his F8. He has not yet received any money from this sale. [159] That letter attached an updated F8 financial statement which identified the Pakistan property as property that had been disposed of. [160] On November 15, 2021, the respondent filed an application seeking to strike out the claimant's claim for non-disclosure, or alternatively to pay a fine. That application was ultimately heard in January 2022. [161] The claimant's T1 tax return for 2021 records his total income (all from employment) as $52,750.28. [162] The respondent did not produce her T1 tax return for 2021. Her notice of assessment records line 150 income of $187,238, but provides no further details. When pressed at trial on her failure to produce her T1 tax returns for 2021, 2022 or 2023, the respondent replied that she was not counsel's "administrative assistant", and was "tired of fulfilling your requests". [163] There was a further judicial case conference on January 14, 2022, with Justice Douglas. By this time, both parties were represented by the counsel who represented them at the eventual trial. Directions were given for the parties to make themselves available for psychological testing for purposes of the s. 211 report and for the

trial to be reset for 10 days in Abbotsford commencing November 21, 2022. [164] On January 26, 2022, the respondent's application to strike the claimant's claim was heard by Justice Kirchner. Both parties were again represented by counsel. Justice Kirchner issued written reasons for judgment on February 9, 2022, which are indexed at 2022 BCSC 203. He noted at paras. 2-4 that: [2] Under paragraph 2 of the April 30 Order, the claimant, A.A., was ordered to produce a "comprehensive" list of documents within seven days of the order, failing which his claim "will be struck and the claims therein dismissed as if heard on their merits." Under paragraph 4 of the April 30 Order, Mr. A. was required to produce "any and all documents in his possession and control" relating to specified matters, including documents relating to the purchase, sale, and lease of a property owned by the parties in Pakistan (the "Pakistan Property"). Paragraph 4 also states the claim will be struck if Mr. A. fails to produce the specified classes of documents but, unlike paragraph 2, it does not have the additional language of dismissing the claims as though heard on the merits. [3] Dr. Q. claims that Mr. A. breached the April 30 Order by failing to list or disclose documents relating to the Pakistan Property. She also, or alternatively, seeks an order that Mr. A. pay a penalty of $5,000 under s. 213 of the

Family Law Act, S.B.C. 2011, c. 25 and special costs. [4] Mr. A. claims the documents relating to the Pakistan Property were not in his possession or control at the relevant time and thus he did not breach the April 30 Order. [165] Justice Kirchner had before him affidavits containing several of the documents that were in evidence before me at trial. However, as he notes at various locations in his judgment (including paras. 20 and 27), some of the affidavits were simply of legal assistants and some of the factual questions that arose on submissions were not addressed by the parties. As well, Justice Kirchner referenced at paras. 29-30 certain texts that were not in evidence before me, which suggested that at the time he swore an F8 financial atatement on February 5, 2021, the claimant had at least some knowledge of the Pakistan property. [166] Of particular concern to Justice Kirchner was: [35] Significantly, in response to that application, Mr. A. swore an affidavit dated April 27, 2021 in which he stated "I am also agreeable to the respondent retaining the Edmonton property and I retaining the property located in Pakistan as proposed by the counsel for the respondent." Yet Mr. A. had already sold the Pakistan Property by this time. If this statement is not false, it is certainly misleading by implying the parties still had the property. Nowhere else in the affidavit did Mr.

A. disclose the fact that he had already sold the Pakistan Property. [36] He goes on to say in the affidavit: I do not have in my possession any documents regarding the purchase, sale or lease of the Pakistan Property except documents provided by the respondent in Affidavit #2 of Heather Cunningham filed February, 2021 and other communications by the respondent's counsel. The only documents in my possession pertaining to the Pakistan property is the Bank Statement of the joint account where the rent of the said property was deposited. Mr. A. does not disclose the fact that he had evidently executed a power of sub attorney at the Pakistan consulate earlier that year. As I have said, I struggle to believe that he would not have retained a copy of that document. Nor does he disclose the fact that he was engaged the text message correspondence with Kami. [167] Justice Kirchner commented at paras. 42-43 that, with respect to compliance with the April 30, 2021 order: [42] Mr. A.'s answer to this is that he did not have documents in his "possession or control" when the order was made or in the weeks afterwards. He claims not to have received any documents relating to the Pakistan Property until, I gather, September or October of 2021, shortly before his former lawyer sent them to counsel for Dr. Q. Mr. A. also asks the court to consider the fact that he was not represented by counsel when April 30 Order was made or when he produced a list in response to it. [43] Of course, documents in the possession of Farrukh Khan, as Mr. A.'s agent as sub attorney (or, for that matter, his real estate agent) would have been in Mr. A.'s control throughout, at least under the law of British Columbia: The Owners, Strata Plan No. VIS3578 v. Canan Investment Group Ltd., 2012 BCSC 607 at para.

121. Mr. A. claims he was unable to obtain these documents but I am not satisfied with the explanation he has given in his affidavit. [168] Justice Kirchner declined to strike the claim, but concluded at para. 51: [51] I will, however, grant Dr. Q. the alternative relief she seeks under s. 213 of the Family Law Act. That section allows the court to order a person who has provided "incomplete, false or misleading" information in the disclosure of documents or information in a family law proceeding to pay an amount "not exceeding $5,000 to or for the benefit of a party, or a spouse or child whose interests were affected by the non-disclosure of information or the incomplete, false or misleading disclosure". It is clear that Mr. A. has provided incomplete, false or misleading information about the Pakistan Property and has done so in a most egregious way by swearing a misleading or even false affidavit on April 27, 2021. I therefore order that he forthwith pay $5,000 to Dr. Q. pursuant to s. 213(2)(d)(iii) of the Family Law Act. [169] He also awarded special costs of the application to the respondent. [170] In March 2022, the respondent entered into an agreement to purchase a home in South Surrey for about $1.5 million. She withdrew $300,000 from the HQI bank account to make the down payment. There were issues, however, with obtaining occupancy as the property was broken into

before completion and significant damage was done. [171] In April 2022, the respondent changed the arrangement with the property management company in Edmonton. Rather than a flat $2,000 per month payment, with the company taking care of expenses like utilities, the new agreement provided for a monthly management fee with the respondent assuming responsibility for costs. The respondent says that this required her to spend about $32,000, to newly furnish the house - as the management company was no longer providing the furniture. This resulted in a greater return in busy months (for example, in May 2022 the net amount payable to the respondent was $3,223), although the return at other times of year was lower than before. [172] In July 2022, the claimant paid $1,000 toward the fine ordered by Justice Kirchner. [173] Financial statements for HQI for the fiscal year ending July 31, 2022, show shareholder's equity of $600,000, gross revenue of $679,000, and net income of $422,926. Expenses deducted are stated with less detail than the July 2021 financial statement, but they do include professional fees of $100,000 and $18,100 of vehicle expenses. [174] The respondent says that she continued to work long hours up to about July 2022, but that thereafter she reduced her work hours due to health issues. [175] In the summer of 2022, the claimant applied for an order permitting him to

take the children to California to go to Disneyland and to meet his family. The application was dismissed by Associate Judge Bilawich on the basis that any substantive change to parenting time should await completion of the s. 211 report. The order was made on August 12, 2022, with reasons to follow that were issued on September 12, 2022, and are indexed at 2022 BCSC 1599. [176] The s. 211 report was released to the parties on August 16, 2022. It recommended a multi-stage progression toward equal parenting time. [177] A few days later, the respondent was diagnosed with cancer. She began an initial round of chemotherapy in September 2022, and experienced complications. [178] On September 20, 2022, respondent's counsel suggested that the parties ask the court to tentatively hold new trial dates in February 2023, given that the respondent might not be able to participate in the scheduled November 2022 trial for medical reasons. The claimant's lawyer responded seeking documentary information about the respondent's medical condition. The claimant also pressed for urgent implementation of the first step of increased parenting time from the s. 211 report. [179] It had been decided in the summer of 2022 that the respondent would leave the medical clinic she had been previously associated with. In the fall of 2022, she made arrangements with a packaged office company to create a

business presence for her private practice. [180] At a trial management conference on October 11, 2022, the respondent submitted that the upcoming trial should be adjourned. The claimant opposed on the basis that it was urgent that the s. 211 report be implemented. Justice Crossin noted that there were no affidavits or medical reports and encouraged the parties to have discussions and, if an application was to be necessary, to bring it sooner rather than later. [181] An affidavit of the respondent filed October 19, 2022, expressed willingness to move to the first step as recommended in the s. 211 report. The claimant's counsel responded on October 21, 2022, with a request that a timeline be established in a consent order for each of the four stages. On October 28, 2022, the respondent declined to proceed on that basis, noting that the report recommended that movement between the stages be tied to therapeutic recommendations. [182] An application to adjourn the trial was heard on November 15, 2022. Although he had counsel of record at the time, the claimant represented himself at the hearing. The trial was adjourned generally, with the respondent to have costs in the cause. A new trial date was subsequently set for September 5, 2023. [183] The claimant then brought on an application to vary interim parenting time based on the recommendations in the s. 211 report. On November 21,

2022, Associate Judge Bilawich ordered that step one from the report be implemented. The parenting time schedule in the November 21, 2022, order was still in place at the start of trial some 10 months later. [184] The parties also began to negotiate over the selection of a parenting coordinator, which was one of the other recommendations in the s. 211 report. Those negotiations stretched over several months. [185] The claimant's 2022 T1 tax return was in evidence. It recorded his total income for 2022 as $53,740.33. However, the claimant did receive a promotion in late 2022 which increased his salary from that point onward to just over $60,000 per year. [186] The respondent did not disclose her 2022 T1 tax return, but her notice of assessment indicated total income of $202,222, which included dividend income (taxable amount) of $172,500 and employment income of $30,000. The respondent also reported net rental income of -$2,851. [187] In February 2023, the claimant advised the respondent that he would be out of town for work for two weeks, and thus would not be exercising his parenting time. In fact, he was accompanying his parents on a trip to Saudia Arabia, which the claimant said his parents paid for. [188] In March 2023, the respondent's applications for benefits under disability insurance and professional expense insurance plans were approved, with a date of disability of

August 19, 2022. [189] In May 2023, the respondent enrolled with the BC Family Maintenance Agency ("BCFMA") to enforce the existing order for interim child support. [190] On May 15, 2023, the responded finally moved into the new home she had purchased the previous year. [191] Also on May 15, 2023, an application by the claimant to move to stage 2 of the s. 211 report recommendations came on for hearing. Associate Judge Vos adjourned the application and directed that it not be brought on again until the Order of Associate Judge Bilawich from November 2022 had been entered. The latter order was eventually entered on May 19, 2023. [192] On June 6, 2023, on hearing a further application with respect to the s. 211 report, Associate Judge Nielsen appointed Dr. Elterman as parenting coordinator, and appointed a therapeutic counsellor for A. [193] Dr. Elterman's initial retainer request was $8,000. An informal arrangement was made by which the claimant was to pay the respondent's share of that retainer in lieu of the $4,000 that was outstanding from the fine imposed by Justice Kirchner. Unfortunately, the parties had disputes over the terms of Dr. Elterman's retainer agreement and his retainer was not finalized for some time thereafter. My understanding of the evidence was that the claimant paid $4,000 toward the retainer, and that Dr. Elterman agreed to commence work on that basis. Of

that $4,000, I understand that $2,000 should be considered payment toward the fine. [194] Financial statements for HQI for the fiscal year ended July 31, 2023, showed retained earnings of $614,460, gross revenue of $337,748, and net income of $164,179. Notable expense deductions include "Office" of $68,299, professional fees of $52,901, and vehicle costs of $18,100. The Trial [195] The trial commenced on September 5, 2023, with nine hearing days having been reserved. The claimant completed his case on the afternoon of the eighth day. The respondent then opened her case, but her direct examination was not completed by the end of the ninth day. A continuation was scheduled for a further five days commencing December 11, 2023. [196] One of the complications of scheduling continuations was the need to work around the respondent's chemotherapy schedule. [197] The respondent's cross-examination commenced on the afternoon of December 11, 2023, and had not been completed by mid-day on December 15, 2023. The final collateral witnesses gave their evidence on the afternoon of December 15, 2023, and a two-day continuation was scheduled for March 14-15, 2024. [198] A brief hearing was held on the morning of December 21, 2023, to provide interim directions to ensure that counselling was in place for the children. [199] The claimant's T4 slip for 2023 was available for the continuation in

March 2024. It confirmed that the claimant's 2023 income was $63,437.77. [200] While it had been contemplated that the two days in March 2024 would be sufficient for both the completion of evidence and final submissions, the respondent's evidence did not finish until the afternoon of the second day. The final hour was used for a brief reply case from the claimant. [201] Rather than schedule more trial days, the parties agreed to proceed on the basis of written final submissions. Those submissions were delivered over the course of the next several weeks. A hearing was then scheduled for May 13, 2024, at which the parties presented objections to some of the content of the written submissions. Death of The Respondent [202] I was advised by counsel in December 2024 that the respondent was hospitalized and, unfortunately, passed away on December 17, 2024. It was common ground that there should be further submissions to address the consequences of the respondent's death, but counsel for the respondent asked for time to determine who he would be receiving instructions from. [203] A brief hearing was scheduled for April 17, 2025. At that time, counsel for the respondent advised that he was taking instructions from the respondent's brother, A.R., who had been appointed as executor by her will and had submitted an application for a grant of probate. The will also appointed A.R. as a

guardian of the children. [204] I understood from what I was told by counsel that the children were now residing full-time with the claimant, although they were maintaining contact with the respondent's parents. [205] The parties asked to file written submissions, which were filed over the course of June and July 2025. In August 2025, I received a request to make further submissions in respect of the scope of the written submissions. I declined to hear that, as in my view both parties had made clear in their written submissions their concerns about the scope of what was being sought and advanced. Reliability and Credibility [206] Reliability and credibility are related but distinct concepts. The distinction between them was considered in R. v. Morrissey, 1995 CanLII 3498, [1995] O.J. No. 639, 22 O.R. (3d) 514 (C.A.). at para. 35, cited in United States v. Bennett, 2014 BCCA 145 at para. 23: Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the

witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. [207] In considering credibility, the evidence of a witness must be assessed for "its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions": Faryna v. Chorny, [1952] 2 D.L.R. 354, [1951] B.C.J. No. 152 at 357 (C.A.). [208] A frequently cited list of factors in assessing evidence as to both the veracity of a witness and the accuracy of that witness's evidence is found in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff'd 2012 BCCA 296. It includes: a) The ability and opportunity of the witness to observe events; b) The firmness of their memory; c) Their ability to resist the influence of interest to modify their recollection; d) Whether their evidence harmonizes with independent evidence that has been accepted; e) Whether the witness changes their evidence during cross-examination (or between examination for discovery and trial) or is otherwise inconsistent in their recollection; f) Whether their evidence seems generally unreasonable,

impossible or unlikely; g) Whether the witness has a motive to lie; and h) The demeanour of the witness generally. [209] A trier of fact may accept none, part, or all of a witness's evidence and may attach different weight to different parts of a witness's evidence: Gill Tech Framing Ltd. v. Gill, 2012 BCSC 1913 at para. 28. [210] I did not find either of the parties to be particularly reliable witnesses. [211] The claimant was a difficult witness both in direct and cross-examination. He had a firm idea of the narrative he wanted to create - a narrative that largely focused on himself as a victim. The claimant was reluctant to constrain what he said in his answers by the questions he was asked - and this applied to questions from his own lawyer as much as to questions from the respondent's lawyer. The claimant's answers were often long and rambling. He was unable to concede any fault, even though it was clear that there was plenty of fault to be shared. [212] The claimant produced a copy of the respondent's work schedule, showing the respondent's on-call availability. He insisted that the information was publicly available. When challenged on that in cross-examination, it became clear that the schedule was available to him because of his network access at work, yet he continued to insist that it was publicly available. [213] I have difficulty with both parties' evidence with

respect to the Pakistan property. With respect to the claimant, his insistence that the purchase of the property in his name, and the alleged use by the respondent of his email account, were all without his knowledge, does not seem to me to be in accordance with the preponderance of probabilities. [214] I accept that the purchase was made with money generated by the respondent. I also accept that, from 2017 onward, as her income began to dramatically eclipse that of the claimant, the respondent assumed control of all of her own finances - leaving the claimant with mostly just what his income generated, after payment of any mortgage shortfall for the Edmonton Home. It does seem to me to be clear that it was the respondent who was looking for investments and liaising with investment advisors. I accept as well that she may have seen placing a property in the claimant's name as having tax benefits to their family unit. But even accepting all of that, there is simply no reason for her to have effected the purchase in secret - especially where that would have required forging the claimant's signature on documents that he would have no reason not to sign voluntarily if asked. [215] I am also unable to accept the claimant's evidence that a financial advisor would open a TFSA in his name without his knowledge, or that an investment advisor would take the time to meet with the claimant

individually and not use that opportunity to explain what investments were being created in his name. [216] I also share some of Justice Kirchner's concerns about what the claimant said in his April 27, 2021 affidavit. I accept that the affidavit was made at a time when the claimant was self-represented, and that what is said in the affidavit is more in the nature of a proposal to resolve competing property claims than an assertion of fact. All of that said, in light of the existing orders for disclosure, the affidavit is at best disingenuous. [217] The respondent was a difficult witness. In direct examination, the respondent appeared thoughtful and responsive, with what appeared to be a reasonably good recall of details. Her demeanour was very different on cross-examination. She was combative, evasive and non-responsive. She was decidedly non-apologetic about her non-disclosure. She said that she destroyed receipts for her various tax-deductible expenses after her tax returns had been assessed. And her ability to recall the level of detail she seemed to recall in direct was dramatically reduced - suggesting that either her direct examination was overly scripted or that she simply refused to put her mind to matters that were not convenient to the position she wanted to advance. [218] The respondent was asked on cross-examination about her family's financial difficulties in

Pakistan before their move to Canada. She initially refused to accept that there were any. She sought to characterize financial assistance she had received during her initial medical degree as merit-based scholarships rather than need-based bursaries. Yet she acknowledged having told the s. 211 report author about financial reverses that her father's businesses in Pakistan had suffered due to changes in government policy, which impacted on her family's ability to support her education as much as they would have liked. [219] A substantial portion of the evidence at trial related to parenting matters. While that evidence is now of minimal relevance to the matters that remain in dispute, it had significant impacts on the respondent's credibility. In particular, the respondent made a substantial number of complaints to the police and to the MCFD. Some of those complaints were clearly false. For example, during one of the claimant's parenting times in late 2020, the claimant texted the respondent to let her know that A. had wanted to stop for ice cream and so they would be a bit late arriving home. The respondent was at work. A minute after this text arrived, the respondent called the RCMP to allege that she believed the claimant was attempting to remove A. from Canada. She neglected to advise the RCMP that she had A.'s passport, and it was clear that there had been no actual

threats to remove A. from Canada. [220] In January 2023, the claimant planned to take A. to a social event involving families from the Pakistan community in Surrey. The respondent was insistent that A. had to spend her Saturday evening doing homework, and had texted the claimant to say that if A. was not home by a specific time, she would call the police. The claimant's car was hit in the parking lot of a store at which he and A. had gone to purchase a dress for the social event, and he texted the respondent to advise her. The respondent called the police, and provided a very suspect story that a stranger at that store had called her to let her know that A. was wandering around lost and unsupervised. Again, the police responded. [221] These are but two examples from hundreds of pages of RCMP and MCFD reports, reflecting reports of questionable veracity from the respondent. This and other evidence with respect to parenting matters left me very concerned that the respondent was willing to say what she needed to say to obtain the result she wanted, regardless of the truth. [222] I also found the respondent's evidence with respect to the Pakistan properties difficult to accept. In my view, it was clear that she had assumed control over all financial matters relating to her own income and the wealth generated thereby. She clearly did not trust the claimant's financial management

ability. She was taking the lead on discussions with financial advisors, and the possibility of an investment in Pakistan was something she was discussing with them. The various transactions leading up to the wiring of $70,000 to Pakistan were all in accounts under her control. She is copied on the relevant emails. And while I do not accept that the claimant was unaware of those emails, it would not surprise me to find that the respondent was either the author or heavily involved in their preparation. [223] I simply do not accept, in the light of their financial situation, that in 2019, the respondent would simply wire a substantial amount of money to a foreign country and leave it up to the claimant to figure out how to invest that money. I do not accept that the mysterious Mr. Khan was someone only the claimant would or could deal with. [224] The respondent gave variable evidence with respect to family violence. When she initially called the RCMP to the family home on two occasions in July 2020, she informed the officers on both occasions that there had been no family violence. The respondent's explanation of this was that she told the officers all about the family violence, but that the officers told her that they would only record that information if the respondent had photographic proof. I do not believe that evidence. [225] In her direct evidence, the respondent gave

evidence of four or five specific instances of family violence, with the first incident being in 2012 and the final incident in 2020. The respondent tendered incident-specific evidence of her brother and mother which was intended to bolster the respondent's own evidence. These specific allegations were all put to the claimant, who denied them. Then, in cross-examination, the respondent made allegations of ongoing regular family violence which was in many cases used to explain her inability to recall or to explain various actions. This ever-changing evidence makes it difficult to know what to believe. [226] The claimant called two collateral witnesses. One was a friend who picked up the claimant and A. from the store in January 2023. The other was one of the members of the Pakistan community who went to meet the respondent in September 2020 to offer assistance in restoring the family relationship. Both appeared to be credible to me and I had no concerns about their evidence. [227] The respondent called her brother and her mother, primarily to provide evidence in support of the specific incidences of family violence that had been alleged and, more generally, to make negative comments about the claimant. Much of their evidence was in the nature of prior consistent statements. The mother's evidence was in many cases very general in nature. Each of them had difficulty responding to

questions on cross-examination, and I had concerns that much of what they had to say was rehearsed such that any departure from the rehearsed presentation was problematic for them. I approach the evidence of both with skepticism. Guardianship Positions of the Parties [228] Guardianship was one of the few areas of agreement between the parties in their 2024 trial submissions, as both agreed that they should both remain as guardians of their children. [229] The respondent, by her will, appointed her brother A.R. as a guardian of the children in her place in the event of her death. [230] The claimant says that the appointment of A.R. is not in the best interests of the children, given that he lives in Edmonton, Alberta, and has had little interaction with the children since October 2017 when the parties moved to British Columbia. [231] In response, the respondent says that the appointment was procedurally compliant with and authorized by s. 53 of the FLA, and that there is no basis for the Court to interfere with that designation. The respondent submits that there is no requirement for court approval of the appointment of a guardian by a will in accordance with s.

53. Rather, the only provision that would permit the court to terminate the appointment of a guardian appointed in that manner is s. 51, which requires an application based on sworn evidence establishing that it is not in the children's best interests for that person to be a guardian. The respondent says that the assertions of fact in submissions of counsel from June 2025 are matters of disputed fact. The respondent says that the only proper basis for court intervention in the appointment of A.R. as guardian would be an application, properly brought pursuant to s. 51, and supported by admissible evidence. [232] In any event, the respondent submits that the alleged lack of connection between A.R. and the children, even if found to be true, would not meet the requirements of s. 51. [233] In the most recent reply submission, the claimant also raised concerns that A.R., who holds the respondent's estate in trust for the children, has ignored requests to help pay for counselling costs for the children. Because this allegation was only raised in reply, I do not know the respondent's position on it. Legal Context [234] A number of provisions of Part 4 of the FLA are of significance to the parties' dispute with respect to guardianship. I begin with the relevant portions of s. 39 of the FLA, which state: (1) While a child's parents are living together and after the child's parents

separate, each parent of the child is the child's guardian. (2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian. [235] Section 50 of the FLA provides that: A person cannot become a child's guardian by agreement except (a) if the person is the child's parent, or (b) as provided under this Division, the Adoption Act or the Child, Family and Community Service Act. [236] The provision relied upon by the respondent in this case is s. 53: (1) A child's guardian may appoint a person to be the child's guardian on the death of the appointing guardian (a) in a will made in accordance with the Wills, Estates and Succession Act, or (b) in the prescribed form, (i) signed at its end by the guardian, or the signature at the end must be acknowledged by the guardian as the guardian's, in the presence of 2 or more witnesses present at the same time, and (ii) signed by 2 or more of the witnesses in the presence of the guardian. (2) For the purposes of subsection (1) (b), (a) a witness may not be a person appointed to be the child's guardian, and (b) a reference to the signature of a guardian includes a signature made by another person in the guardian's presence and by the guardian's direction, and the signature may be either the guardian's name or the name of the person signing. (3)

If a child's guardian dies without having made an appointment under subsection (1) of this section or under section 55 (1) [appointment of standby guardian], and there is (a) one surviving guardian who is also the child's parent, the surviving guardian has all parental responsibilities with respect to the child, unless an order provides otherwise, or (b) more than one surviving guardian who are also the child's parent, each of the surviving guardians has the parental responsibilities that the deceased guardian had with respect to the child, unless an agreement or order provides otherwise. [237] Section 56 constrains the scope of an appointment under s. 53: In making an appointment under section 53 [appointment of guardian in case of death] or 55 [appointment of standby guardian], the appointing guardian (a) must consider the best interests of the child only, and (b) may not grant greater parental responsibilities than the appointing guardian has with respect to the child. [238] Section 51 permits the court to intervene with respect to guardianship as follows: (1) On application, a court may (a) appoint a person as a child's guardian, or (b) except in the case of a director who is a child's guardian under the Adoption Act or the Child, Family and Community Service Act, terminate a person's guardianship of a child. (2) An applicant under subsection (1) (a) of this section must

provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court Family Rules, respecting the best interests of the child as described in section 37 [best interests of child] of this Act. (3) Subsection (2) of this section applies regardless of whether there is consent to the application under section 219 [persons may consent to order being made]. (4) If a child is 12 years of age or older, a court must not appoint a person other than a parent as the child's guardian without the child's written approval, unless satisfied that the appointment is in the best interests of the child. [Emphasis added.] [239] Section 37(1) provides that: (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. [240] In N.H. v. D.H., 2013 BCPC 413, the parties could not agree whether the mother should be permitted to designate a testamentary guardian in her will. Judge Dhillon commented with respect to the relevant provisions of the FLA that: [97] The mother does not need permission of the court to appoint her sister as a testamentary guardian because she can do so by virtue of the provisions of the FLA. To the extent that the court is required to opine, I accept and find that making such a provision for a guardian in

the event of the death of a parent and guardian is in the best interests of the child. It preserves the maternal family connections for the child. There is no basis in law for the father to oppose such a designation. He is also able to appoint his own testamentary guardian. [241] Both parties referenced the comments of Justice Verhoeven in B.S.W. v. W.F.W., 2023 BCSC 1925 at paras. 349-351: [349] The claimant seeks an order that the parties may appoint guardians in the event of their death, as provided for in s. 53, FLA. She contends that she should have this authority over all three children, but the respondent should have this authority only for B and C. The respondent opposes this, and seeks an order prohibiting the appointment of a guardian by either party. [350] I decline to make any order in this respect. I note that joint parenting orders (for example the Joyce Model, and variants) commonly include a provision stating that the surviving guardian will be the only guardian of the child. However, it is not clear to me that I have authority to make such an order, in view of s. 53, which does not contain language such as "unless the court otherwise orders". This point was not argued. [351] In my view, on the evidence in this case, there is no reason that the surviving guardian should not be the sole guardian of the children, and it would not be in the best interests of any of

the children to introduce a third party as guardian. If I have authority to make such an order, I would make the order sought by the respondent. However, as I decline to make any order in this respect, the issue of guardianship in the event of the death of either guardian will if necessary be decided by the court under s. 51 of the FLA. Under s. 51, the court has authority to appoint or remove a guardian. [242] With respect to applications under s. 51, there is a convenient summary of relevant authorities and guiding principles in Lessard v. Mahoney, 2019 BCSC 551 at paras. 143-148, which culminates in the following: [148] Accordingly, I accept that an application to remove a parent, presumptively a guardian, under s. 51(1)(b) will be granted only in extreme or rare circumstances and provided that it is in the best interests of the child. In that regard, as an alternative, the court should consider whether it is in the child's best interest to maintain the relationship to a lesser degree by still allowing that parent's involvement in a more limited fashion by the re-allocation of parental responsibilities as set out in ss. 40 and 41 of the FLA. Analysis [243] I begin by noting that the respondent's submission that s. 51(2) requires that an application to remove a guardian be supported by affidavit evidence is not consistent with the actual wording of s. 51(2), which specifies

that it applies to applications under s. 51(1)(a) (i.e., to appoint a guardian) rather than to applications under s. 51(1)(b). That said, even with respect to an application to remove a guardian pursuant to s. 51(1)(b), it is in my view difficult to see how an order of such significance would be made other than on the basis of evidence of some sort. [244] I note as well that Lessard, and the authorities it relies on (including M.A.G. v. P.L.M., 2014 BCSC 126 at paras. 41-45), require that there be "extreme or rare circumstances" to justify removal of a parent as guardian. It does not necessarily follow that extreme or rare circumstances would be required for removal of a non-parent appointed as guardian pursuant to s.

53. I have not been directed to any authority directly on that point. [245] That said, it is my view that there is no basis in any evidence before the Court to terminate the appointment of A.R. as a guardian of the children. The claimant may well be unhappy with A.R.'s participation in the trial of this matter, but that is not a reason to remove him as a guardian. I do not have any actual evidence about the relationship between A.R. and the children. There was, however, evidence that the respondent worked to maintain continuing strong ties between her children and her family despite the move to British Columbia. [246] I accept as well that there will, in most cases, be merit to the suggestion in N.H. that having a member of the deceased parent's family as a guardian may help maintain maternal family connections. In addition, A.R. will be a trustee for the children holding funds that can be used for their benefit, and in that role, there may well be benefit to him maintaining connection as a guardian. [247] I would therefore not grant an order that A.R. be removed as a guardian pursuant to s. 51(1)(b). Other Parenting Matters [248] Significant portions of the evidence and submissions at trial were aimed at parenting time and parental responsibilities. That evidence and those submissions are now largely moot, given the death of the respondent. [249] I understand that it is common

ground that the children will be primarily resident with the claimant going forward. Having reviewed the s. 211 report, and in light of the respondent's death, I accept that as an appropriate order to make. [250] I understand that there have been informal arrangements for the children to have contact with their maternal grandparents, but so far as I am aware there has been no request for any order to formalize that relationship. There was a submission made that I should require that any contact with the maternal grandparents be supervised. Apart from concerns about the lack of the usual sort of affidavit evidence supporting such an application, it does not seem to me appropriate or necessary to put conditions on something that is not itself the subject of a court order. [251] I also have no information about what sort of ongoing connection A.R. seeks to have with the children, and nothing in the submissions made to me seeks any order for A.R. to have specified time with the children. [252] With respect to parental responsibilities, in their 2024 submissions, the parties agreed to shared parental responsibilities. The only difference between their submissions was whether the respondent should have the final say, subject to application to court, or whether a parenting coordinator should have final say where the parties cannot agree. [253] Nothing in the 2025 submissions addressed

parental responsibilities. Given the claimant's request that A.R. be removed as guardian, I doubt that the failure to address parental responsibilities reflects an acceptance that A.R. should have full parental responsibilities. [254] Section 40(2) and (3) of the FLA provide that: (2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances. (3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by (a) one or more guardians only, or (b) each guardian acting separately or all guardians acting together. [255] In light of these provisions, and given that both the claimant and A.R. are now guardians, it is my view that an order should be made so that there is clarity as to the exercise of parental responsibilities. [256] My initial view is that given A.R.'s status as both a guardian and as trustee for the children, there would be significant merit in providing him at minimum with parental responsibilities pursuant to the following subsections of s. 41: (i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (j) requesting and receiving

from third parties health, education or other information respecting the child; [257] Given the absence of any specific request for some other order, I would direct that all other parental responsibilities would be exercised by the claimant, with the claimant to have an obligation to advise A.R. of any matters of a significant nature affecting either child. [258] If the parties seek some other order with respect to parenting time and parental responsibilities, they should bring an application forthwith to clarify this issue. [259] The claimant and A.R. are going to have to work together for the benefit of the children. One thing that is clear to me from the s. 211 report in this case is that the children - and in particular, A. - have been significantly impacted by the conflict between the claimant and the respondent. It is clear that A. was placed in the middle of the conflict. The report reflects significant concerns about "coaching" of A. to support one party's narrative. It is also clear from the evidence that A. was at times asked to communicate information between the parties. Neither was appropriate. I would encourage the claimant and A.R. to avoid conflict and seek to find common ground in the best interests of the children, but even more importantly, I strongly encourage them to avoid at all costs implicating the children in any way in any conflict that may

exist. Child Support [260] I turn now to the outstanding financial matters. I note that, in light of the death of the respondent and the provisions of her will, what remains is in effect an accounting exercise, by which the FLA will be applied to determine what portion of the net family assets will be paid into the respondent's estate, and thereafter held in trust by A.R. for the benefit of the children, and which portion will be paid to the claimant, to be used for himself and the day-to-day needs of the children. The claimant will have the responsibility to provide for the children without any future entitlement to child support, while I gather that A.R. will have a power under the will to make payments for the children's benefit from the funds he will be holding, but at his discretion. Positions of the Parties [261] From the time of separation until December 2024, the children were primarily resident with the respondent. The respondent also covered most if not all expenses that might be considered special or extraordinary expenses. As a result, what is in issue with respect to child support is the respondent's claims to arrears of basic child support pursuant to the tables in the Federal Child Support Guidelines, SOR/97-175 [FCSG], and of contributions to special and extraordinary expenses. [262] While various BCFMA statements were put in evidence, the most recent is a May

22, 2025 calculation which accrues child support payments of $600 per month up to and including December 2024, plus interest both before and after that time. BCFMA calculates an arrears balance of $22,969.03. [263] The respondent's 2024 submission noted that the $600 per month payment, ordered on an interim basis in March 2021, was based on only part of the claimant's 2020 income - the order was based on his T4 for 2020, which did not include his paternity leave benefits from 2020. The respondent sought an order for child support arrears to be calculated based on the respondent's actual income from August 1, 2020, to date. [264] The respondent submitted that the proper income figures and related basic child support amounts were: a) $37,559.71 for 2020, giving rise to monthly payments of $600; b) $52,750 for 2021, giving rise to monthly payments of $818; c) $53,740 for 2022, giving rise to monthly payments of $834; and d) $63,437 for 2023 and 2024, giving rise to monthly payments of $984. [265] As noted above, the claimant's actual income for 2020 was $48,611, including his paternity leave benefits. It is not clear why the respondent used the lesser amount in the 2024 submissions, although the net effect of this difference (about $136 per month for five months) is not substantial. [266] With respect to s. 7 expenses, the respondent said that receipts in her book of documents at

trial indicated that expenses totalled about $1,600 per month, of which daycare was the largest portion. The respondent submitted that the claimant's proper contribution was: a) For 2020, 12% of $8,000 (based on 5/12 of total expenses of $19,200), for a total of $960; b) For 2021, 14% of total expenses of $19,200, for a total of $2,688; c) For 2022, 7% of $19,200, for a total of $1,344; and d) For 2023 and 2024, 18% of $19,200, for a total of $3,456 for each year. [267] The percentage allocations for each year were calculated based on attributing income to the respondent based on her net corporate income plus the amount of her salary for each year, which the respondent said was $277,423 for 2020, $359,708 for 2021 and $677,420 for 2022. The respondent noted that there was no evidence as to income in 2023 and 2024, but submitted that given the respondent's reduced capacity and reliance on disability benefits, it would be reasonable to use the $277,423 figure from 2020. [268] With respect to child support, the claimant disputed the records of the BCFMA and said that he had made additional payments beyond those reflected in the BCFMA summary. [269] With respect to special expenses, the claimant says that the receipts that have been put into evidence do not support the alleged costs of $19,200 per annum. The claimant further submits that the respondent chose to enroll H. in a very

expensive daycare, knowing that he had limited funds available, and that he should not be required to contribute based on the full costs. The claimant also argues that the respondent's mother lived with her almost full-time from separation onwards, and says that it was unreasonable to incur child care costs of that magnitude. The claimant submits that he was not consulted with respect to any of the special or extraordinary expenses. [270] The claimant submits that he was required unnecessarily to incur supervision costs and that he should be provided a credit for those costs against any amount owing. The evidence indicates costs totalling $1,245 over the course of three months in the fall of 2020. [271] In his 2024 reply submission, the claimant referenced the jurisdiction under s. 10 of the FCSG to depart from the guidelines amount if the regular award would give rise to undue hardship. The respondent pointed out that this claim should have been made as part of the claimant's primary submission, and was not properly advanced by way of reply. That said, the claimant's initial submission did raise at para. 159 the facts underlying his hardship claim. However, the legal brief portion of that submission did not reference s. 10 of the FCSG. Legal Context [272] The FCSG provides for base child support payments to be determined based on specified tables for each province. It further

provides in s. 7 for special or extraordinary expenses: (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. (1.1) For the purposes of paragraphs (1)(d)

and (f), the term extraordinary expenses means (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (v) any other similar factor that the court considers relevant. (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. [273] The

general rule for determining income is set out in s. 16 of the FCSG: Subject to sections 17 to 20, a spouse's annual income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III. [274] Section 18 provides that: (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse's annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse's annual income to include (a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation's pre-tax income. (2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm's length must be added to the pre-tax income, unless the spouse

establishes that the payments were reasonable in the circumstances. Analysis [275] It is clear that the children were residing primarily with the respondent from separation to just before her death. As such, the claimant had a duty to pay child support in accordance with the FCSG. [276] Base child support is properly determined based on the FCSG table amounts. The claimant has not seriously disputed the respondent's calculation of base child support - in fact, as noted above, the respondent's calculation for 2020 is slightly low. Nor is there any dispute that, given the timely bringing of an application for interim child support dating back to separation, the amount due should be calculated from the time of separation. It is notable that Associate Judge Muir, on March 29, 2021, decided to adjourn the respondent's claim for retroactive spousal support to trial. [277] With respect to end date, I understand that the claimant had the children for half of December 2024. As a result, I do not think it appropriate to order child support in respect of that month. [278] By my calculation, accepting the amount of $600 per month for 2020, the total base child support that should have been paid is $45,456 (5 x $600, 12 x $818, 12 x $834, 23 x $984). This is more than the 45 months (April 2021 to December 2024) at $600 per month (total of $27,000) that the BCFMA has used for its calculation

of arrears. The difference between these two numbers is $18,456. [279] The evidence at trial indicated that the claimant made payments of $600 for each of April, May, September and October 2021, January, February, March and June 2022, and June to September 2023. In my view, the BCFMA statement to May 2023, which was reviewed with the claimant at trial, understated the amounts paid by $1,400. A more recent statement from the BCFMA was provided along with the 2025 submissions. That statement is missing a September 2023 payment of $600. It also records payments of $63.28 in December 2023, $600 in February 2024, $63.30 in March 2024, $110 in July 2024, and $132.94 and $133.05 in January 2025. [280] The BCFMA calculates the net amount owing as $20,697.43, plus interest of $2,271.60, plus default fees of $800, for a total of $23,769.03. By my calculation, this should be reduced by $2,000 to reflect the payments that were demonstrated in evidence but do not appear in the BCFMA summary, plus $600 for December 2024. There should also be a proportionate reduction of about 12% in the interest charges calculated. I would therefore adjust the BCFMA calculation of arrears, including BCFMA fee, to $20,899. To that should be added the $18,456 I referenced above in respect of the amounts owing beyond the $600 amount used by the BCFMA, for a total arrears of $39,355. [281] With respect to

special expenses, I do not think it appropriate to accept the respondent's rough estimate that she spent $1,600 per month on special expenses. The receipts that were actually put in evidence amount to much less. They indicate that she spent $11,410 on child care in 2022, but do not provide child care costs for any other year. The evidence indicates that the respondent was on disability and worked little after December 2022, and her mother was living primarily with her in order to assist with the children. I do not think it appropriate to assume that similar expenses were incurred in other years. [282] The receipts for counselling costs total $3,163. They relate primarily to a counsellor who the respondent retained to work with A. without the claimant's consent, who the claimant opposed throughout, and who appeared at times to take on an advocacy role against the claimant, although she never met him. There are receipts totalling $3,700 for taxi costs - the respondent explained this as costs her mother incurred to travel to A.'s school to pick her up. There were tutoring receipts totalling $3,244, and receipts for horseback riding and various summer camps totalling just under $7,000. I accept that all of these were arranged without consultation with the claimant. As well, the horseback riding and summer camp expenses are matters that were substantially beyond the claimant's

means. [283] In my view, it is appropriate in the circumstances to assess special expenses at $25,000. The respondent had asserted percentages attributable to the claimant ranging from 7% to 18%. However, DivorceMate calculations prepared on the basis discussed in the next section, which are premised on the respondent having received spousal support, provide ranges from 17.5% to 25%. I would assess the claimant's contribution as 20%, for a net amount payable of $5,000. [284] I would thus calculate the total arrears incurred pursuant to the FCSG to be $44,355. I will deal with the appropriate treatment of these arrears below. Spousal Support Positions of the Parties [285] The claimant seeks spousal support from the respondent. He claims entitlement on both compensatory and non-compensatory grounds, and submits that the award should be made binding on the respondent's estate. [286] The submissions made in 2024, prior to the death of the respondent, can be summarized as follows: a) The claimant suggested that the respondent's income was higher than what was reported in her income tax returns, pointing to government records showing that fees paid in respect of the respondent's work were greater than the deposits appearing in the banking records produced. The claimant sought imputation of annual income of $600,000 to the respondent, with retroactive spousal support dating back to

the date of separation, spousal support being assessed at the high end of the range provided by the Spousal Support Advisory Guidelines [SSAG], and an order that the award of spousal support be made binding on the estate of the respondent pursuant to ss. 170(g) and 171 of the FLA. b) The respondent submitted that: i. The evidence does not support a strong compensatory claim, and that in light of the claimant's failure to advance the application for interim spousal support, there should be no award of retroactive spousal support. Rather, the Court should conclude that the claimant is self-sufficient with a steady government position. ii. Even if an award of spousal support is to be made, the appropriate award would be at the low end of the SSAG range, and for a duration of half the length of the relationship. As well, there should be provision for a review given the uncertainty as to the respondent's future. iii. With respect to quantum, as previously argued in respect of child support, the respondent's income for calculation purposes should be based on pre-tax net corporate earnings of HQI, adding back any salary paid to the respondent that was deducted as an expense from those corporate earnings. Other than possibly some vehicle expenses, there were no other corporate expenses that should have been added back to the corporate net income. Further, it was not appropriate to rely

on BC government figures showing total amounts paid in respect of the respondent's work, as those amounts would have covered the entirety of the respondent's practice and would not necessarily have all been payable to either the respondent or her professional corporation. [287] In their 2025 submissions, the parties' positions can be summarized as follows: a) The claimant acknowledged that there may be issues with a claim for spousal support where the payor passes away and there has not been at least an interim order obtained. The claimant referenced Kumagai v. Campbell Estate, 2018 BCCA 24, which deals with s. 171 of the FLA. The claimant suggested that if the Court concludes that it cannot order spousal support after the respondent's death, the Court could still make such an order by pronouncing an order nunc pro tunc as of the conclusion of trial. The claimant says the court has jurisdiction to backdate a judgment in exceptional circumstances, where the litigant would otherwise be prejudiced by the delay between conclusion of the hearing and the issuance of a judgment. The claimant relies for that proposition on Medina v. Bravo, 2008 BCSC 1307 and Garrett v. Garrett, 2000 BCSC 545. b) In response, the respondent submitted that the court's jurisdiction to backdate a judgment is not available in the present case. This is because the case has been, in effect, reopened in order

to admit the fact of the respondent's death and so that submissions can be provided on the impact of that fact on the various relief sought. c) The respondent further submitted that backdating the order to provide for spousal support could not be done fairly without also backdating the order for division of the Edmonton Home. The respondent notes that the evidence at trial indicated that the equity in the Edmonton Home was in the range of $116,000 at the time of trial. d) Rather, the respondent says that any prejudice to the claimant can be addressed under s. 95(3) of the FLA, through adjustment of the property division to account for the unmet spousal support objectives. The respondent noted that, at the time of the respondent's death, the Edmonton Home remained in joint tenancy, and that the respondent's legal interest has been transmitted to the claimant. It is submitted that by simply treating this as a transfer of the beneficial interest as well, the court can do justice. e) In any event, the respondent argued that the claimant does not meet the criteria in s. 171 of the FLA that would have been required to make an order for spousal support binding on the estate. The respondent submits that: i. the claimant will not have a significant need for support once family property is divided; ii. the Court has no basis to determine whether the respondent's estate is sufficient to

meet that significant need; and iii. it is not the case that no other practical means exists to meet that significant need. The respondent points to the alternative approach of an unequal division of family property pursuant to s. 95(3). [288] The respondent further submitted that, should the Court choose to follow the claimant's proposed course of action and issue a backdated judgment, the Court should consider that: a) The parties' minor children are the only beneficiaries of the respondent's estate, and their claims to the estate are the only support they will be able to receive from the respondent; b) The estate is not in a position to generate income and thus will have no ability to generate ongoing periodic support, while the claimant appears to be on an upward trend in his income; and c) As a result, any award of spousal support that is to be made should be a lump sum that is of an amount that will ensure the interests of the estate and its beneficiaries (the children) are not prejudiced. [289] In reply submissions, the claimant said that: a) The claimant will continue to have a limited income and struggle to provide the children with a lifestyle comparable to what they had previously; b) The respondent will continue to have substantial assets available, which assets will presumably be converted to liquid assets that are more than sufficient to cover an appropriate award

to the claimant; and c) There are no other practical means to meet the claimant's need. While s. 95(3) does permit reallocation of family property, the Edmonton Home is no longer available for such reallocation, given that it was held in joint tenancy, has passed to the claimant through right of survivorship, and the respondent's estate no longer has an interest in it. Legal Context Spousal Support Generally [290] Sections 161 and 162 of the FLA provide that: Objectives of spousal support 161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives: (a) to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship; (b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child; (c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. Determining spousal support 162 The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following: (a)

the length of time the spouses lived together; (b) the functions performed by each spouse during the period they lived together; (c) an agreement between the spouses, or an order, relating to the support of either spouse. [291] The principles governing entitlement to compensatory and non-compensatory spousal support are well established. They are set out in the leading cases of Chutter v. Chutter, 2008 BCCA 507 and Parton v. Parton, 2018 BCCA 273. Compensatory support is explained in Chutter at paras. 50-51: [50] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other spouse. The compensatory support principles are rooted in the "independent" model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receive compensation forlosses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, at paras. 24, 41). The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39). In Moge, the Supreme Court of Canada observed, at 867-868: The most

significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well‑being. In such situations, spousal support may be a way to compensate such economic disadvantage. [51] In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse's efforts. As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support "seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse" (emphasis added). [Emphasis in original.] [292] With respect to non-compensatory support, referring to paras. 54-56: [54] Where compensatory principles do not apply, need alone may be sufficient to ground a claim for spousal support (Bracklow, at para. 43). Non-compensatory support is grounded in the "social obligation model" of marriage, in

which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the "means and needs" approach to spousal support. [55] The concept of "needs" in the context of non-compensatory spousal support goes beyond basic necessities of life and varies according to the circumstances of the parties. As stated by Finch J.A. (as he then was) in Myers v. Myers (1995), 17 R.F.L. (4th) 298, 65 B.C.A.C. 226, at para. 10: "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. [56] The Ontario Court of Appeal in Allaire v. Allaire (2003), 170 O.A.C. 72, 35 R.F.L. (5th) 256, held that self-sufficiency, a spousal support objective primarily related to non-compensatory

support (Bracklow, at paras. 41-42), was a relative concept informed by the standard of living previously enjoyed by the parties: [21] self-sufficiency is not a free-standing concept. It must be seen in the context of the standard of living previously enjoyed by the parties. Where, as here, the economic consequences of the marital relationship were to permanently reduce Ms. Allaire's income, it is inappropriate to consider Ms. Allaire's annual income of $68,000 as "sufficient" without considering whether Mr. Allaire can financially assist her to live a lifestyle closer to what they shared as a couple. [293] With respect to quantum, the following is summarized in Parton at paras. 43 and 46: [43] Once entitlement is established, the amount and duration of spousal support are determined based on consideration of the conditions, means, needs and other circumstances of the spouses: s. 162, Family Law Act. The "means" of a spouse include his or her capital base, employment income or earning capacity and any other available source of benefits or gains: Leskun v. Leskun, 2006 SCC 25 at paras. 29-32. The duration of spousal support may be for a limited term or indefinite, depending on the length of the marriage and self-sufficiency considerations: Chutter at paras. 108-109; McIntire v. McIntire, 2012 BCCA 214 at para. 17. [46] The SSAG is a useful tool in guiding the determination of the appropriate quantum and duration of spousal support. While advisory only, it is generally consistent with the law in British Columbia: Chutter at para.

100. The SSAG formulas provide a range for periodic payment or lump sum spousal support awards taking into account case-specific factors, such as the length of the marriage, the parties' ages and their respective incomes or capacities to earn. Scope of Spousal Support Orders Available After Payor's Death [294] The Notice of Family Claim sought spousal support pursuant to the FLA. The general provisions of the FLA governing spousal support are ss. 160-162. Section 160 provides that: Duty to provide support for entitled spouse 160 If, after considering the objectives set out in section 161 [objectives of spousal support], a spouse is entitled to spousal support, the other spouse has a duty to provide support for the spouse in accordance with section 162 [determining spousal support]. [Emphasis added.] [295] The term "spouse" is defined in s.

3. Section 3(1)(a) confirms that a person is a spouse for purposes of the FLA if the person is married to another person, while s. 3(2) provides that: A spouse includes a former spouse. [296] The process to obtain spousal support is provided for in s. 165(1): On application, the court may order a spouse to pay to a designated person the amount the court considers appropriate as spousal support after taking into consideration section 160 [duty to provide support for entitled spouse]. [297] Section 170 sets out certain matters that "may be provided for in support orders". They include: In an order respecting child support or spousal support, the court may provide for one or more of the following: (g) subject to section 171 (1) [support obligations after death], that a duty to pay child support or spousal support continues after the death of the person having the duty, and is a debt of the person's estate for the period fixed by the court. [298] Section 171(1) sets out various factors for the court to consider before making an order under s. 170(g): (1) Before making an order under section 170 (g) [matters that may be provided for in support orders], the court must consider all of the following factors: (a) that the person receiving child support or spousal support has a significant need for support that is likely to continue past the death of the person paying child support or

spousal support; (b) that the estate of the person paying child support or spousal support is sufficient to meet the need referred to in paragraph (a) after taking into account all claims on the estate, including those of creditors and beneficiaries; (c) that no other practical means exist to meet the need referred to in paragraph (a). [299] The analysis under s. 171 should be based on an understanding of the various factors rooted in the evidence: Joffres v. Joffres, 2014 BCSC 1778 at paras.183-187. [300] The balance of s. 171 sets out procedures for the court to deal with support obligations after a payor spouse has died: (2) If an agreement, or an order under section 170 (g), is made and the person having a duty to pay child support or spousal support dies, the person's personal representative may make an application, and the court may make an order, to (a) set aside or replace with an order made under this Part all or part of the agreement, or (b) change, suspend or terminate the order. (3) If a person having a duty to pay child support or spousal support under an agreement or order dies and the agreement or order is silent respecting whether the duty continues after the death of the person and is a debt of the person's estate, (a) the person receiving support may make an application under section 149 [orders respecting child support] or 165 [orders respecting spousal

support], and (b) if, on consideration of the factors set out in subsection (1) of this section, an order is made, the duty to pay child support or spousal support continues despite the death of the person and is a debt of the person's estate for the period fixed by the court. [Emphasis added.] [301] The leading appellate authority dealing with a claim to spousal support after death of the payee spouse is Kumagai, which was referenced by both parties in their 2025 submissions. In Kumagai, the parties had started living together in 2005 and separated in 2013. The wife commenced proceedings in July 2013 and obtained an order for interim spousal support on August 13, 2013. The husband died on August 21, 2013. [302] In an initial trial judgment, published at 2016 BCSC 450, Justice G.C. Weatherill had concluded that he was precluded from making a support order as against the estate. He changed that decision on an application for a reconsideration, published at 2016 BCSC 1161, accepting that the spousal support issue had not been fully argued. He concluded at para. 17 that "the legislative intent behind s. 171(3) of the FLA was clearly to provide a mechanism for ongoing payment of spousal and/or child support upon the death of a payor spouse". He drew this conclusion despite what he described as problematic language in ss. 165 and 171(3): [19] While an application under s. 149 (for

ongoing child support) may be made by a child's parent, guardian or another person acting on the child's behalf, an application under s. 165 (for ongoing spousal support) can only be made by a "spouse". Once the payor has died, the survivor is, by definition, no longer a "spouse". [20] However, I agree with counsel for the claimant that, where the object and intent of the Legislature is clear, as it is here, it would be an absurd result if that object and intent was thwarted by inclusion of redundant and needless verbiage. [303] This conclusion was upheld on appeal, with Justice D. Smith stating: [96] The Estate submits the judge erred in finding that Ms. Kumagai was entitled to spousal support against the Estate pursuant to s. 171 of the FLA. It relies principally on the jurisprudence under the common law that held the payment of support is a personal obligation that does not survive the death of the payor unless an order or agreement was made during the lifetime of the payor that reflected an intention to bind the payor's estate. (See McLeod v. McLeod, 2013 BCCA 552.) The Estate also submits the judge's initial interpretation of the provisions correctly found that the FLA did not permit an existing support obligation of a payor before death to survive after his or her death as the language of those provisions do not expressly refer to a deceased spouse. The Estate further

submits that the judge erred by finding that the word "order" in s. 170(g) and s. 171 could include an interim order, and, in any event, that none of the factors that must be considered under s. 171(1) were met in this case. [97] On reconsideration of whether the interim spousal support order could survive the death of Mr. Campbell, the judge found that the object and intention of the Legislature was clear and to not give it effect would result in an absurdity (at paras. 9-21). I agree. In my respectful view, the judge correctly applied the well-known principles of statutory interpretation set out in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 and reiterated in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, in determining that the legislative intent of these provisions was to provide a mechanism for the ongoing payment of spousal and child support upon the death of the payor spouse based on the factors listed in s. 171(1). The Legislature has clearly and expressly changed the common law principles with respect to support under the FLA. I find no error in the judge's reconsideration of this issue. [98] I similarly find no error in the judge's determination that the reference to an "order" in s. 170(g) and s. 171 includes an interim order. As the judge noted in his initial reasons (at paras. 167-169), the FLA does not define or limit the meaning of the word

"order". In comparison, the Supreme Court Family Rules define a "final order" as an order that finally resolves the family law claim and the Supreme Court Civil Rules define an "order" to include "a judgment and a decree". [99] Section 216(2) of the FLA requires a court to make an interim order "in accordance with any requirements or conditions of this Act that would apply if the order were not an interim order." Sections 161 and 162 of the FLA set out the objectives for determining entitlement to spousal support, and the factors to be considered in determining the amount and duration of spousal support, respectively, which a court is required to consider in making a spousal support order. Although the Estate asserts that entitlement is often not determined when making an interim support order, entitlement is an express consideration under s. 161 and therefore for an interim order under s.

216. In short, an order is an order absent language in a provision that limits the nature and scope of an order that can be made after the death of a payor. [100] I also find no error in the judge's determination, based on all the evidence before him, that the factors he was required to consider under s. 171(1) were met. The judge found that, despite the compensatory award for property division Ms. Kumagai would receive and her monthly bequest of $5,000 under the Will, Ms. Kumagai had demonstrated a significant need for further support. It was open to the judge to make such a finding based on the evidence before him. The evidence of all the claims against the Estate was also before the judge, and he determined that the Estate was sufficient to meet Ms. Kumagai's need for spousal support in light of those claims. The Estate submits that s. 171(1)(c) is not met as the $5,000 monthly bequest Ms. Kumagai receives represents a practical means of meeting her need; however, the judge clearly stated in his initial reasons that Ms. Kumagai "demonstrated a significant need for support beyond the $5,000 per month that she is entitled to receive under the provisions of the Will" (at para. 184). As a result, I find no merit to the argument that her bequest under the Will could be a practical means of meeting the need she demonstrated. [Emphasis in original.] [304] None of the judgments in

Kumagai reference s. 150 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 [WESA], which came into force in 2014. Section 150(1) provides a general rule: (1) Subject to this section, a cause of action or a proceeding is not annulled by reason only of the death of (a) a person who had the cause of action, or (b) a person who is or may be named as a party to the proceeding. [305] Section 150(2) through (4) and (11) provides for continuations of claims where the deceased was or could have been the plaintiff or claimant, and permits the personal representative to commence or continue a proceeding, subject to certain listed exceptions (none of which exceptions involved the FLA). [306] Section 150(5) through (8) deals with situations in which the deceased was or would have been a defendant or respondent to a claim: (5) A person may commence or continue a proceeding against a deceased person that could have been commenced or continued against the deceased person if living, whether or not a personal representative has been appointed for the deceased person. (6) A proceeding under subsection (5) may be commenced naming as defendant or respondent (a) the personal representative, if any, or (b) the deceased person. (7) A proceeding under subsection (5) in which the deceased person is named as defendant or respondent is valid despite the fact that the deceased person is not

living when the action or proceeding is commenced. (8) All proceedings under this section bind the estate of the deceased person, despite any previous or subsequent appointment of a personal representative. [307] Both Kumagai and s. 150 of the WESA were considered in the context of a claim for child support in Bouchard v. Bouchard, 2018 BCSC 1728. After the parties separated, the wife obtained an order in Provincial Court for interim child support, and a proceeding was commenced in Supreme Court seeking division of family property. The husband's primary asset was a personal injury settlement which was held in trust by a law firm, and the wife obtained an order freezing that asset. The husband died intestate in 2015. [308] No steps were taken to administer his estate, and the funds remained in trust. In 2017, the wife filed an application in the family law proceeding seeking an order that the funds in trust be paid to her as lump-sum child support pursuant to s. 170(g) of the FLA. Justice Donegan (as she then was) held that this was not an appropriate procedure, and that steps would have to first be taken to have the estate administered. [309] Justice Donegan described the applicable legal framework, noting: [24] Section 150 of the WESA allows for the commencement or continuation of proceedings that could have been commenced or continued by or against a deceased person, whether

or not a personal representative has been appointed, with certain exceptions. Either the deceased person or the personal representative can be named. [25] Section 151 of the WESA allows a beneficiary or an intestate successor, with leave of the court, to commence or defend proceedings on behalf of a personal representative if the personal representative fails to do so. [26] Rule 8-2 of the Supreme Court Family Rules, B.C. Reg. 169/2009 [Family Rules] allows a family law case to continue in spite of a litigant's death if the claim survives and allows for the court to add or substitute parties as necessary to ensure that all matters are properly adjudicated. A personal representative, executor, or administrator on behalf of the deceased's estate, as the case may be, is often substituted as a party for the deceased. [27] Rule 20-6 of the Family Rules provides a mechanism through which litigants can start or continue family law proceedings if one of the parties has died and there is no personal representative for a deceased's estate, such as the case here. In that case, the court may, on application, appoint a person as a litigation representative to start, conduct or defend a family law case on behalf of the deceased. [28] Ms. Bouchard's application is brought under s. 170(g) of the FLA, found in Part 7, which deals with child and spousal support. Very generally, with respect to

child support, s. 147 defines when there is a duty to provide it, s. 149 describes who may apply for it and provides the authority for the court to order it and s. 150 establishes what a court must consider in determining the amount. [29] Sections 170 and 171 pertain to both child and spousal support. Section 170 sets out matters that may be provided for in support orders and s. 171 establishes rules relating to support when a payor dies. [310] After quoting from ss. 170 and 171, Justice Donegan continued: [31] Part 3, Division 1 of WESA sets out how an intestate estate must be distributed. Very generally, if the intestate deceased leaves no spouse (which Ms. Bouchard concedes is the case here), but leaves descendants or relatives, s. 23 provides for the distribution process. [32] After a parent dies, their estate may be liable for outstanding and continuing child support payments. The personal representative of the estate plays a role in determining whether the estate is liable for these things. This role is summarized in the British Columbia Probate and Estate Administration Practice Manual, 2nd Ed. (Vancouver: The Continuing Legal Education Society of B.C., 2007) (loose-leaf updated 2018), §11.27: If the deceased was, immediately before death, liable for payment to an estranged spouse or child under a separation agreement or a court order, any arrears outstanding immediately

before death will be a debt payable out of the estate. The personal representative will also have to determine whether the estate is liable for ongoing maintenance for the period following death. If so, the estranged spouse or child will rank as an ordinary creditor of the estate for the future installments, and the personal representative will be obliged to provide for that claim before distribution to beneficiaries. Failure to do so will render the personal representative personally liable for devastavit (see §11.12). [33] In the past, under the common law, a payor's child support obligation ended upon death (see Milne v. MacDonald Estate, 1986 CanLII 931 (B.C.C.A.) and R.M.R. v. H.V., 2005 BCSC 52 at paras. 16-22), unless the parties reached an agreement or there was a court order specifying that the payor's support obligations would continue beyond his or her death. If there was such an agreement or court order in existence at the time of death, these obligations could continue as a liability of the estate: Crain v. Crain, 1996 CarswellBC 1174 (S.C.) at paras. 11-15. [34] The common law I have just described has now been changed by the FLA. In the situation where a payor who has a duty to pay support under an agreement or order dies and the agreement or order is silent about whether that duty continues after the payor's death and is a debt of his/her estate, s. 171(3) of

the FLA now allows the recipient of that support to apply for an order that the duty to pay support continues despite the death of the payor and is a debt of the estate, based on the factors in s. 171(1). [311] Justice Donegan reviewed the Kumagai judgment that had been released a few months earlier, then summarized the governing principles as follows: [43] To reiterate, under the old common law, unless the parties had agreed or a court had ordered that support obligations would continue after death, support obligations ended upon the payor's death. Under the FLA, it remains the case that the parties can agree or a court can order that a payor's support obligation continues after death and is a debt of the estate: s. 170(g); however, the legislation now allows for a recipient of support to apply to have that support continue as a debt against the payor's estate, even if the original support agreement or order was silent about support continuing after death: s. 171(3). [312] Justice Donegan concluded that seeking to apply directly for payment of the funds held in trust for the estate, without the estate being administered, was something not authorized by s. 170(g). Rather: [48] The purpose of s. 170 of the FLA is to provide the court with an avenue to make child and spousal support orders with some flexibility in order to provide or secure support in a way that is suitable to

the circumstances of individual cases. While not explicitly stated, when I consider the words of the section in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the legislation and the intention of the legislature, it is clear that orders under s. 170 of the FLA are intended to be used while the parties are living. [49] The words of the section themselves reflect an intention that such orders be made while both parties are alive. For example, s. 170(e) allows the court to order a person who has a life insurance policy to designate a spouse or child as a beneficiary and pay its premiums. Such an order would not be possible after the payor's death. Another example can be found in s. 170(g), which permits a court to order, after consideration of factors outlined in s. 171(1), that the payor's support obligation will continue after his or her death and is a debt of his or her estate. To have the authority to order support will be binding on a payor's estate if he or she were to die, necessarily implies the payor is alive at the time of the order. [50] This intention seen in the language of the section itself is reinforced by existence of, and language used in, the following section, s.

171. This provision establishes rules relating to support obligations after the death of a payor. [51] Section 171(2) speaks to the situation where an order under s. 170(g) exists and then the payor dies. In that case, the deceased's personal representative is permitted to apply for an order to set aside, replace, change, suspend or terminate the s. 170(g) order. [52] Section 171(3) speaks to the situation where a payor who has a duty to pay support under an agreement or order dies, but the agreement or order is silent about whether the support obligation binds his or her estate. In that case, the recipient may apply for support to continue and to bind the estate. If such an application is brought under this section, the court is required to consider the factors outlined in s. 171(1). These factors include whether there is significant need, whether the estate is sufficient to meet the need after taking account of all claims of the estate, including those of creditors and beneficiaries, and whether no other practical means exist to meet the need. [53] If s. 170(g) allowed for orders of the nature sought by Ms. Bouchard in this application, then s. 171(3) would be rendered obsolete. [54] In summary, counsel for Ms. Bouchard is in error in pointing to s. 170(g) of the FLA as an avenue to obtain an order securing the Trust Funds directly to her client in these circumstances. [55]

As there is a prior order for child support that is silent respecting whether the order continues and binds the estate in this case, s. 171(3) would provide an avenue for Ms. Bouchard to apply for an order for the ongoing payment of child support as a debt of the estate. Ms. Miller does not rely upon this particular provision, but even if it could be said that her submissions implied its application, there is insufficient evidence before the court to address the s. 171(1) factors. [56] Further, even if it could be said that all of the correct procedural requirements had been met, that the estate of Mr. Bouchard was represented, that the application was properly brought under s. 171(3), and that sufficient evidence was adduced persuading the court to award an amount of lump sum child support in Ms. Bouchard's favour, the quantum of such an award could not be determined in the unusual manner suggested by Ms. Miller. [57] Finally, it must be noted that any award for child support in Ms. Bouchard's favour would only create a debt against Mr. Bouchard's estate. Establishing a debt against the estate of a deceased person does not entitle a litigant to a court order for the amount of the debt. Debts against an estate must still be considered in terms of priority by the executor or estate administrator, as the case may be. This is one of the reasons why administration of Mr. Bouchard's

estate is critical. [313] In both Kumagai and Bouchard, there had been an interim order for support made prior to the death of the payor spouse. As a result, there was a "person having a duty to pay support under an agreement or order" who had died, which brought the situation within the wording of s. 171(3). As a result, although Bouchard referenced s. 150 of the WESA in connection with issues of estate administration, that provision did not form part of the analysis of Ms. Bouchard's entitlement to child support under the FLA. [314] In the present case, while spousal support had been claimed in the original Notice of Family Claim and an application for interim spousal support had been filed, the application had not been heard and there had thus been no interim order or agreement reflecting a duty to pay spousal support. Does that mean that the common law rule continues to apply? [315] Some four years after Kumagai, the Court of Appeal considered the interplay between the FLA and s. 150 of the WESA in the context of a claim for division of family property and debt under the FLA in Weaver Estate v. Weaver, 2022 BCCA 79. In Weaver, the parties had married in 1993, then separated in 2005. There were divorce proceedings, but no agreements or orders dealing with other issues arising from their separation. Ms. Weaver died in 2020. [316] Four months after her death, the appointed

administrator of her estate filed a claim for division of family property and family debt. Justice DeWitt-Van Oosten began by noting that s. 81 of the FLA provides rights to property division to a "spouse", and that spouse is defined in s. 3(2) to include a "former spouse". She noted as well Supreme Court Family Rules 8-2 and 20-6(1), which contemplate a family law case continuing even if a spouse dies. She then referenced s. 150 of the WESA, noting that: [20] WESA exempts certain causes of action or proceedings from the application of s.

150. None of those exemptions are engaged in this case. [317] Mr. Weaver had argued that the use of the term "spouse" in s. 198, which provided for a "spouse" to commence a proceeding under Part 5, was intended to exclude a former spouse who was deceased. Justice DeWitt-Van Oosten described the analysis of the chambers judge as follows: [23] The chambers judge rejected Mr. Weaver's argument that, based on the wording of s. 198 of the FLA, only a living spouse can bring a claim for the division of family property and family debt (at paras. 14-16). She also rejected the submission that s. 150 of WESA has no application to this case (at paras. 22-26). [24] Mr. Weaver argued that no cause of action survived Ms. Weaver's death. Ms. Weaver died before the NOFC was filed. Her status as a spouse terminated with her death. As a result, submitted Mr. Weaver, any cause of action arising from and, more importantly, dependent on that status, ceased to exist (at para. 17). Consequently, there was no "spouse" to invoke the Supreme Court's jurisdiction under s. 94(1) of the FLA. There was only an estate. Furthermore, the Administrator could not rely on s. 150 of WESA because there was no cause of action to preserve. [25] The chambers judge agreed with the Administrator's interpretation of the "interplay" between the FLA and WESA, and held that s. 150 of WESA "clearly preserves causes of action

for property division on behalf of deceased spouses" (at paras. 18, 26). She concluded that had Ms. Weaver been alive in November 2020 when the NOFC was filed, she could have personally commenced the proceeding. The time limit prescribed in s. 198 of the FLA had not expired. Consequently, ss. 150(1) and (2) of WESA were properly engaged (at paras. 19-20). [26] In reaching this determination, the chambers judge relied on the Family Law Sourcebook for British Columbia, 3rd ed. (Vancouver: The Continuing Legal Education Society of British Columbia, 2002) (loose-leaf updated 2021), which opines that "[t]hrough the combined operation of the Family Law Act and the WESA, where a spouse dies after separation, an action can be commenced by the estate of the deceased against the surviving spouse" (at para. 21, emphasis added). She also cited R. 20‑6 of the SCFR in support of her ruling (at para. 22) and various cases she understood to affirm the principle "that where spouses have separated, a spouse's claim to family property survives the death of the spouse" (at para. 23). [318] Justice DeWitt-Van Oosten then set out her own conclusion: [40] I agree with the chambers judge that the "interplay" between the FLA and WESA allows the administrator of the estate of a separated and deceased spouse to commence a claim for the division of family property and family debt against the surviving

spouse, assuming the time limits prescribed by s. 198 of the FLA have not expired. The fact that the deceased spouse did not personally commence that proceeding during their lifetime is not a bar to the action. [41] In my view, the cause of action that survives death and is preserved by s. 150 of WESA is the "right to an undivided half interest in all family property as a tenant in common, and [equal responsibility] for family debt" (FLA, s. 81(b)). The interest underlying the cause of action would have crystallized and accrued to the benefit of the deceased spouse on separation (FLA, s. 81). It does not abate on death. In commencing a Part 5 claim for division, the administrator of the estate is supported, procedurally, by R. 20‑6 of the SCFR. [319] In support of that conclusion, she noted that: [44] The FLA seeks to "expand protection for different types of spouses": Li at para.

70. It is also intended to make family property law "simpler, clearer, easier to apply and easier to understand for the people who are subject to it": Ministry of Justice of British Columbia, The Family Law Act explained, Part 5 - Property; V.J.F. v. S.K.W., 2016 BCCA 186 at paras. 5-6. [45] The policy rationale underlying s. 150 of WESA is that "valid claims should not be barred by the death of the deceased": Ministry of Justice of British Columbia, The Wills, Estates and Succession Act Explained, Part 6 Administration of Estates, s.

150. To that end, s. 150 allows the personal representative of a deceased person, "a distinct legal entity from the deceased", to pursue "a cause of action that the deceased would otherwise have had if [they] had not died": Lougheed Estate v. Wilson, 2017 BCSC 1366 at para. 600; rev'd on other grounds, Wilson v. Canwest Publishing Inc./Publications Canwest Inc., 2018 BCCA 441. [48] None of ss. 3, 94 or 198 of the FLA specify that only a living spouse may bring a claim for the division of family property and family debt. Had that been the Legislature's intention, one would expect to see explicit language to that effect, given the obvious implications for the successors of a separated and deceased spouse. [320] She went on to note at paras. 64-67 that: [64] Section 150 of WESA is a provision of general application and broadly worded. It has been characterized as similar to England's Law Reform (Miscellaneous Provisions) Act, 1934 (UK), 24 & 25 Geo. V, c. 41, s. 1(1), which "allows for all causes of actions to survive for the benefit of a deceased's estate, except as specifically excluded": Grant v. Winnipeg Regional Health Authority et al., 2015 MBCA 44 at para. 51 (emphasis added). [65] The Legislature has exempted libel, slander and certain actions under the Privacy Act, R.S.B.C. 1996, c. 373, from the ambit of s. 150 (WESA, s. 150(3)). It has also stipulated that the right to

commence a proceeding as a personal representative of a deceased does not include recovery for damages for non‑pecuniary loss or loss of future income following death (s. 150(4)). Section 150 has been rendered subject to the Family Compensation Act, R.S.B.C. 1996, c. 126, and to certain provisions of the Workers Compensation Act, R.S.B.C. 2019, c. 1 (ss. 150(9), (10)). [66] However, the Legislature did not exclude family property and family debt claims. Section 150 came into force in March 2014, after the enactment of the FLA. The Legislature would have been aware of s. 81 of the FLA and the vested interest that flows from it on separation. In not excluding the FLA from s. 150, I infer that the Legislature intended family property and family debt claims to be captured by the provision. This is not surprising in light of the state of the law as reflected in Dowell Estate and the fact that at common law property claims were generally considered exempt from the actio personalis rule. [67] There is no language in the FLA excluding the application of s.

150. Nor is there a provision in the statute that bars the estate of a separated and deceased spouse from commencing an action for division. [321] There is some indication in Justice DeWitt-Van Oosten's analysis that a claim for support might be treated differently than a claim for division of family property and family debt. In distinguishing some of the older authorities relied on by Mr. Weaver, she commented: [53] The "personal obligation" cases relied upon by Mr. Weaver (such as Price and Carpentier v. British Columbia (Director of Family Maintenance Enforcement), 2017 BCSC 250, aff'd 2018 BCCA 109), do not assist him. [54] First, this appeal is not about a claim for accrued or prospective spousal or child support, the type of action at issue in those cases. Rather, the Administrator seeks to advance a property and debt claim that is grounded in Ms. Weaver's statutory entitlement to "an undivided half interest in all family property as a tenant in common, and [equal responsibility] for family debt" (FLA, s. 81(b)). These are substantively different actions. [55] Second, at common law property claims were generally considered exempt from the actio personalis rule: Monahan Estate at paras. 9, 61. Indeed, the binding law of this jurisdiction holds that Ms. Weaver's family property interest is a statutory claim to property rights that did not abate on her death: Dowell Estate

v. Dowell, 2009 BCCA 175 at para. 31. [56] In his factum, Mr. Weaver argued that the s. 81 interest does not vest until a spouse has personally commenced a court action for division and the claim has been judicially determined. At the hearing of the appeal, he moved away from that position, submitting that the s. 81 interest does not vest until the claimant spouse has personally filed an NOFC. Of course, that is a step that can only be taken while living. [57] Mr. Weaver's position is contrary to Dowell Estate, which is binding on us. Under s. 81 of the FLA, there is only one triggering event--separation. The statute does not require that a spouse start a court proceeding before the undivided half interest in family property takes effect. It is only a final valuation of the interest that awaits determination under Part 5: Dowell Estate at para.

31. The s. 81 interest "crystallizes" on separation: Howland at paras. 19-20, 23, 27. [58] On this point, I find the White Paper on Family Relations Act Reform (Victoria: Ministry of Attorney General, Justice Services Branch, July 2010) [White Paper] instructive. As explained in Li, the White Paper "proposed various, sweeping recommendations to family law in British Columbia and included a discussion on a draft Family Law Act" (at para. 27). This Court has used the White Paper as an extrinsic aid for statutory interpretation purposes in recognition of the fact that the Legislature adopted many of its recommendations when enacting the FLA (Li at paras. 27-28). The White Paper describes separation as a triggering event that eliminates the need to start a court action before the property entitlement arises (at 86): The proposed Act will replace the existing triggering events with one triggering event - the date of separation. Spouses would not be required to go to court to trigger entitlement to an interest in family property. Using the date of separation accords with most people's expectations; that is, it makes intuitive sense for spouses to use the date of separation as the point from which to disentangle their overlapping financial lives. The recommended approach should also eliminate problems that can arise in the existing model if, for example a spouse dies or declares bankruptcy between the date of separation and the occurrence of the triggering event. [Emphasis added.] [59] The notion of an immediate vesting is also consistent with government's published explanatory notes to the FLA. In my view, The Family Law Act explained also meets the criteria for an extrinsic aid to statutory interpretation: Reference re Firearms Act (Can.), 2000 SCC 31 at para.

17. These notes indicate that upon separation "spouses will not be required to go to court or negotiate a separation agreement to trigger entitlement to an interest in family property" (Part 5 - Property, s. 81, emphasis added). [60] It is clear that a court application to enforce the s. 81 interest is not a legal precondition to its crystallization. In crafting s. 81, the Legislature intentionally moved away from entitlement depending on a future occurrence. Under the former Family Relations Act, R.S.B.C. 1996, c. 128 [FRA], which was replaced by the FLA, a spouse's entitlement to an interest in family assets was not realized until there was a separation agreement; a declaratory judgment of no reasonable prospect of reconciliation; a court order for dissolution of the marriage or judicial separation; or an order declaring the marriage null and void (s. 56(1)). Such is no longer the case under the FLA: Newton at para. 45. [322] These observations do not directly answer the question of whether, notwithstanding the very general provisions of s. 150 of the WESA, the common law rules continue to apply to claims for support except as specifically modified by s. 171 of the FLA. [323] In my view, much of what Justice DeWitt-Van Oosten had to say about property claims could be seen as equally applicable to claims for support. The definition of "spouse" is the same for both. If the term

"former spouse" is not restricted to a living former spouse for one purpose, then as a matter of statutory interpretation one would think it would not be limited for the other purpose either. None of the exemptions to s. 150 in the WESA apply to any claim under the FLA. And the policy rationale that she quotes and adopts from the government's publication explaining the WESA - that valid claims should not be barred by the death of the deceased - is arguably equally applicable to claims for child and spousal support. [324] There are differences in the wordings creating the rights with respect to property division. As noted in Weaver, a party's claim to family property is expressed in s. 81 of the FLA as being an entitlement and a right - the specific words used are: (a) spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and (b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt. [Emphasis added.] [325] The language underlying an entitlement to spousal support in s. 160 of the FLA is somewhat different - s. 160 says that a "spouse has a duty to provide support" where entitlement exists, while s. 161 sets out factors underlying entitlement, and s. 162 sets out factors to be considered with respect

to quantum and duration. [326] Section 147 uses similar "duty" language with respect to entitlement to child support, while s. 150 sets out how child support is to be determined. [327] Another issue that may differentiate spousal support from property division for this purpose is a potential argument that s. 171(3) - by specifically providing a process and an applicable test for some parties with claims as against a deceased former spouse - was intended to implicitly maintain the common law prohibition on such claims for others with such claims, notwithstanding s. 150 of the WESA. [328] As I read the cases, there seem to be two primary policy rationales for the common law rule: that the legislative scheme for spousal support is intended to provide for maintenance during the lives of the parties [Milne v. MacDonald Estate, 1986 CanLII 931, 5 B.C.L.R. (2d) 46 (C.A.) at para. 23], and that, as explained in British Columbia (Public Trustee) v. Price, 1990 CanLII 705, 43 B.C.L.R. (2d) 368 (C.A.): A person is a spouse only while married. After the marriage ends a former marriage partner becomes a former spouse. But once a person dies, all that is left is a corpse, an estate, and a personal representative. The corpse is not a person at all. The estate is only a legal concept. The personal representative could be a corporation. None of them is either a spouse or a former spouse. I note

parenthetically that this latter judgment is one of the ones referenced in Weaver at para. 53. [329] Thus, as summarized in McLeod v. McLeod, 2013 BCCA 552 at para. 25 - a decision that predates the WESA: Support terminates on the death of the payor absent an agreement or order specifying continuation of the payments after death: Crain v. Crain, [1996] B.C.J. No. 1155 (S.C.); Despot v. Despot Estate (1992), 95 D.L.R. (4th) 62, 42 R.F.L. (3d) 218 (B.C.S.C.) [330] However, as explained at para. 24 of McLeod, under the prior law: a court will attempt to give effect to the intention of the parties to an agreement or court order, even in the absence of an express clause providing that they intend for the obligation to pay support to survive the death of the payor. [331] The Crain judgment, relied on in McLeod, is referenced in CLEBC, Family Law Sourcebook for British Columbia at §13.16: In Crain v. Crain, 1996 CanLII 2328, the court held that an application to retroactively vary support or reduce arrears abates on death and the applicant's personal representative may not pursue it. The court considered and rejected the argument that the provisions of the repealed Estate Administration Act allowed the personal representative to pursue claims after the death of the deceased. This may need to be revisited in light of s. 150 of the WESA, which provides that a cause of action or

proceeding does not abate by reason only of the death of the person who had the cause of action or who is or might be named in the proceeding. [Emphasis added.] [332] The other judgment cited in para. 53 of Weaver is Carpentier v. British Columbia (Director of Family Maintenance Enforcement), 2017 BCSC 250, aff'd 2018 BCCA 109. In Carpentier, the recipient spouse had died several years after obtaining a child support order in the British Columbia Provincial Court. The Director had continued to pursue the child support obligation. At para. 45, Justice Kent noted that: [45] The effect of death of a party in litigation is addressed by a combination of both legislation and rules of court which have been repealed and replaced since the date of the mother's death. At common law death was once regarded as terminating most legal rights other than contractual rights. That rule has been almost completely eroded by legislation. [333] Justice Kent went on at paras. 45-47 to note that the Estate Administration Act, which applied at the time of the mother's death in 2012, had since been repealed and replaced by the WESA. He referenced s. 150 of the WESA, but commented that: [47] Neither the EAA or the WESA expressly addressed or addresses proceedings in respect of child or spousal support. [334] He noted as well that: [56] Neither the FRA nor the FLA specifically address the effect of death

on child support arrears. Sections 170 and 171 of the FLA expanded former s. 93(5) of the FRA to expressly provide for the possibility of a duty to pay child or spousal support continuing after the death of the payor. Neither act addressed the effect of the death of the payee. [335] Justice Kent referenced the judgment in Price as well as an earlier judgment in Hampton v. Hampton, 1985 CanLII 505, 64 B.C.L.R. 264 (C.A.), a case in which the recipient spouse had died, and in which the Court had concluded that "The right to maintenance is a personal right to be enforced by the wife during her lifetime". Having referenced these judgments, Justice Kent referenced changes in the common law in the Estate Administration Act, and commented that: [62] The WESA went even further in 2014 to specifically provide that death did not by itself annul causes of action vested in or proceedings taken by the deceased at the time of his or her death. The same rules of court, albeit since substantially amended, apply to substitute the personal representative of a deceased or some other appropriate party to be named as the claimant in the legal proceeding in substitution for the deceased. [336] Justice Kent then set out a series of propositions including that: · support claims are personal to the claimant payee and hence claims for future support do not survive death of the payee, and the payor's

obligation to pay such future support beyond death is extinguished; · however, arrears of support which have accumulated to the date of death constitute a judgment debt for the amounts involved, are not extinguished by the death, and are collectible for the benefit of the deceased's estate; · so long as the payor parent is alive, his/her legal obligation to support his/her children survives the death of the payee parent who had custody of the children; · once the custody arrangements for the children have been determined following death of the payee parent, the guardian or other person having custody of the child is entitled to enforce any ongoing obligation of the payor parent to provide financial child support, [337] Although the judgment in Carpentier was appealed, the appeal was limited to a jurisdictional issue, with the Court of Appeal concluding that the "application was within the jurisdiction of the Supreme Court notwithstanding the related proceedings in the Provincial Court" (para. 11). The Court of Appeal judgment thus provides no insight with respect to Justice Kent's conclusions on the four propositions noted above. [338] Finally, I note what is said in The Family Law Act explained about s. 171: - Section 171 establishes rules and promotes a consistent approach relating to support obligations where the payor dies. - The section provides factors the court must

consider before a court may make an order that support binds the estate under section 170. These factors balance the obligation of the party to provide support to their child or spouse with other factors, such as the size of the estate, the prejudice to other beneficiaries of the estate and whether the child is entitled to part of the estate. - If the court orders that support binds estate, upon death of the payor, the personal representative may apply to set aside, change, suspend or terminate the order. This ensures the personal representative has the authority to resolve any issues or claims. - If an order or agreement is silent respecting whether support binds the estate, the recipient of support has standing to request support continue and bind the estate. - This section allows for a flexible, yet consistent, approach on this issue. It provides for ongoing support after death where appropriate without unduly constraining the estate. It requires a court to turn their mind to the issue of what happens if the payor were to die, and make an order appropriate to the circumstances. For instance, a court could decide it is more effective to order a party maintain life insurance to secure support than to bind the estate. Ability to Give Judgment Retroactively [339] The primary case relied upon by the claimant is Medina v. Bravo, 2008 BCSC 1307. An interim order for child and

spousal support was made, by consent, at a hearing on September 5, 2008. One issue was reserved for written submissions due to time constraints: whether the interim order should be made binding on the estate of the defendant husband, who had been diagnosed with terminal cancer. The husband passed away on September 18, 2008, prior to judgment being given. By reasons for judgment dated September 29, 2008, Justice Russell ordered that the interim order be binding on the estate of the husband, with the judgment backdated so as to take effect as of September 5, 2008. She explained her rationale at paras. 21-24: [21] It is a long-standing principle that a litigant should not be prejudiced by an act of the court - actus curiae neminem gravabit: see Turner v. London & South-Western Railway Co. (1874), 17 L.R. Eq. 561; and Monahan Estate v. Nelson, 2000 BCCA 297, at para.

10. In instances where the plaintiff has died following the conclusion of the trial, but prior to judgment being rendered, courts have entered judgment nunc pro tunc to the date the trial concluded or, in other words, antedated the judgment in certain circumstances: see Monahan Estate; Hubert et al. v. DeCamillis et al. (1963), 41 D.L.R. (2d) 495; and Gunn v. Harper (1902), 3 O.L.R. 693 (C.A.). [22] In Monahan Estate, the majority of the Court of Appeal backdated the judgment in order to "do justice between the parties" in following the principles set out by Hall, V.-C. in Turner (at para. 61). Mr. Justice Hall, while varying the trial judge's decision in part, agreed with the trial judge's decision to antedate the judgment as the plaintiff had died after trial, but prior to judgment being rendered. In the trial decision, Mr. Justice Coultas stated that in exceptional circumstances, such as the death of a party prior to judgment, Rule 41(14)(c) "empowers but does not mandate the court to antedate a judgment": Monahan v. Nelson (1998), 50 B.C.L.R. (3d) 396 at para. 13. [23] Based on the foregoing principles, it is clear that the court has the power to backdate a judgment in exceptional circumstances. Given the circumstances surrounding this case, namely the lack of time to hear submissions from counsel on September 5th, subsequent scheduling conflicts, the successful adjournment

application brought by the Defendants and the inability of the Wife and her son to obtain any financial assistance from the estate until the trial, it is appropriate to antedate the judgment to the date of the hearing in order to ensure justice is done between the parties. Furthermore, the statement by Sloan J.A. in Barker v. Westminster Trust Co., [1941] 4 D.L.R. 514, is relevant to the present situation: A few days after the appeal had been heard, when we reserved judgment, the appellant died, and because of the principle that no one shall be prejudiced by an act of the Court I would follow the course adopted in a similar situation by Vice Chancellor Hall in Turner v. London and South-Western Railway Co. (1874), 43 L.J. Ch. 430, and by the Court of Appeal of Ontario in Gunn v. Harper (1902), 3 O.L.R. 693 and deliver the same judgment now as I would have delivered had we given judgment at the conclusion of the appeal, that is, I would allow the appeal and direct judgment be entered nunc pro tunc as of the date when arguments were concluded (at 515). [24] It is also important to understand the effects of antedating a judgment on both parties. In Monahan Estate, Hall J.A. notes that the defendants could not have "rationally expected to escape liability for damages under this head of relief sought in the action" (at para. 61). In her dissenting reasons in Monahan Estate, Madam

Justice Newbury quotes part of V.-C. Hall's reasons in Turner, which also addresses this issue, at para. 11: I cannot think that any injustice can accrue to anybody else in doing that, either as between different judgment creditors or persons having the benefit of judgments in the present state of the law .Therefore there is apparently no benefit or loss to accrue to anybody by the course being taken of antedating the judgment. [Emphasis added in Monahan Estate] [340] The other judgment referenced is Garrett v. Garrett, 2000 BCSC 545. The father of the husband in a family case, in which the valuation of the husband's interest in a family business was a substantial issue, had died while judgment was under reserve. Justice Chamberlist refused to reopen the case, noting at para. 33 the following comments of Justice Spencer in Lankenau v. Dutton (1988), 27 B.C.L.R. (2d) 234 at pp. 235-236: The plaintiff relies upon a number of well-established authorities for the proposition that where a trial is concluded but judgment is reserved and where the plaintiff dies before reasons for judgment are published, the claim does not abate but judgment may be entered nunc pro tunc, as of the date when the trial was concluded. The common rationale behind those authorities is that the parties should not be prejudiced by an act of the court, including the court's delay in delivering its reasons for

judgment. [Referencing various cases cited by the plaintiff] all adopt the same principle that where the court is responsible for a delay the parties should not suffer from it. [Emphasis added in Garrett.] [341] Justice Chamberlist continued to note that: [34] Given the possible far reaching impact of the death of George Garrett on all aspects of this trial, one could well imagine additional expert opinion reports to be required as well as further discovery processes and considering more court time being required for those purposes. [35] The long standing practice is that valuation take place at time of trial generally in matrimonial actions. [36] It is also important to note that this is not a case of one of the parties dying but rather a fact of a witness dying notwithstanding that that witness' existence is relevant to various issues to be resolved in this action. [342] Justice Chamberlist declined to reopen the case to receive evidence of the death of the defendant's father. Analysis Entitlement and Duration [343] In my view, it is appropriate to determine the nature and extent of the claimant's entitlement to spousal support, and the approximate magnitude of the claim, before considering the difficult legal issues that arise as a result of the respondent's death. I will consider these questions in light of the evidence at trial, considering the impact of the respondent's

death separately. [344] The parties each gave evidence as to the nature and extent of the claimant's contributions to the family unit. My comments on reliability and credibility are set out above. It is my view that there was exaggeration in what each of them had to say. [345] I am satisfied that the claimant has established entitlement to spousal support on a compensatory basis, although it is not as strong as in some cases. I accept that he provided a greater financial contribution to the family unit in the early days when the respondent was largely focused on working towards and then completing her residency. When she obtained her final certification in internal medicine in 2019, it was the culmination of a work that had been going on for over a decade. [346] It is not as clear to me that the claimant sacrificed his career substantially beyond what it would have otherwise been as a result of his support of the respondent. I do accept that his departure from the insurance industry was at least in part with a view to having more time to spend with family, including assisting with the care of A. I do not think the evidence establishes on a balance of probabilities that his departure from the Heart & Stroke Foundation was for similar reasons. That said, the fact that he did not return to the insurance industry when he had opportunities to do so, but rather has pursued a career

in health services administration that he seems to find fulfilling, suggests that the direct impacts on his career progression were primarily temporary in nature. [347] I do not accept the respondent's evidence that the claimant provided virtually no care for A., and that she had to hire nannies if she wanted to be free to pursue her work and studies. The evidence does indicate that nannies were hired from time to time, but the amounts reflected in the T4 slips that have been produced are of a magnitude that suggests that for the most part, nanny services were occasional. While I accept that there may have been times that the claimant was not available when the respondent thought he should be available, I also am of the view on the entirety of the evidence that the claimant did provide a significant amount of care for A. prior to separation and for H. in the months prior to separation. [348] All of this leads me to the view that the claimant did make contributions that contributed to the respondent's economic advantages. [349] I am also satisfied that the disparate standard of livings of the parties after separation was such as to give rise to a non-compensatory entitlement as well. [350] In the circumstances, it is my view that the duration of an award of spousal support would have been in the range of six years, and that quantum would have been informed by the SSAG, although

more toward the lower end of the range. [351] I have prepared rough calculations in order to ascertain the approximate magnitude of the claimant's claim. I start the calculation at the beginning of 2021, given that the claimant delivered his application for interim spousal support in January 2021. I adopt for this purpose the respondent's proposed quantum based on pre-tax net corporate earnings of HQI, adding back any salary paid to the respondent that was deducted as an expense. I calculate approximate monthly amounts at the lower end of the range of $2,900 for 2021, $6,200 for 2022, $2,500 for 2023, and $1,900 for 2024, which gives an approximate total quantum up to the respondent's death of $160,000. [352] Had I been giving judgment prior to the respondent's death, the award would have been of approximately that amount. [353] I would not have concluded that the claimant's failure to obtain a hearing of the application for interim spousal support should disentitle him to an award of support from the time the application was delivered. In my view, there was clear notice to the respondent of the claimant's claim from January 2021 onward (and even earlier given that a claim for spousal support was referenced in the Notice of Family Claim four months earlier). With respect to the fact that the claim was never actually set down for hearing, I note that: a) There was, from the time

of the first judicial case conference onwards, always a trial scheduled within a few months; b) It is likely given the extent of contested facts that an application for interim spousal support would have required at least one hearing day and perhaps more - while the claimant struggled for much of the time to keep counsel and pay his own living costs, he would have had to dedicate substantial resources to properly present such an application - resources he simply did not have; and c) The parties had disputes over document production that continued up to the time of trial, which would have impacted at the very least on the court's ability to assess spousal support. Impact of the Respondent's Death on Spousal Support [354] I have reviewed a number of cases above in respect of the impact of a payor spouse's death on a claim for spousal support. It is clear, based on s. 171 of the FLA as applied in Kumagai, that had there been an interim order for spousal support in this case, it would have been open to me even after the respondent's death to make an award of spousal support, having given due consideration to the factors in s. 171(1) of the FLA. [355] Given the policy underlying s. 150 of the WESA, and the fact that ss. 160-162 of the FLA use the term "spouse" for which the current interpretation seems to clearly include a deceased former spouse, I have difficulty with the approach

that allows a claim for property division to remain upon death of a spouse, while a claim for child or spousal support would abate in the absence of an interim or final order or an agreement. In my view, neither Kumagai nor Weaver expressly decide that point, as it was not expressly in issue in either of those cases. That said, Kumagai seems to assume it to be the case (although that was of no moment on the facts before it), while Weaver takes care to distinguish spousal support cases. [356] The text from The Family Law Act explained that I have quoted does not explain why s. 171(3) includes a requirement that there be a pre-existing order or agreement. I have been unable to discern the policy reason why the enabling provision in s. 171(3) was limited to such cases. It may well be that there was a desire at the time to change the availability of spousal support only incrementally. I have difficulty, however, seeing a principled basis for excluding those cases where a party has given formal notice of a claim for spousal support but not obtained an interim order, given that: a) Those seeking spousal support are often working from a position of economic disadvantage; b) Interim spousal support applications are not straightforward, as they require evidence on which to establish at least a prima facie case to entitlement as well as to assess quantum; c) Difficulties obtaining

disclosure will often impact on a party's ability to put together the appropriate factual basis for such an application; and d) It is not unusual for a party with limited resources to either prefer or to have little choice but to await trial to seek a spousal support order. [357] All of that said, it seems to me that the factors set out in s. 171(1) are factors that, from a policy perspective, should be considerations on any application to award spousal support after the death of the payor spouse. [358] Neither party provided me with substantive submissions as to whether the court might be able to make such an order even in the absence of an interim order for spousal support. Neither party referenced s. 150 of the WESA in their submissions. Rather, each party simply jumped to submissions on their proposed "workaround" (the giving of a retroactive order in the case of the claimant, the making of an order under s. 95(3) of the FLA in the case of the respondent). The respondent, before jumping to that solution, commented that "the situation" was "a bit complicated". [359] I have decided that the most appropriate course of action in the circumstances of this case is to make my decision on the basis of the two alternative approaches presented by the parties. I do so for three reasons: a) The lack of fulsome submissions from the parties with respect to s. 150 of the WESA; b) At the

very least, Kumagai appears to have proceeded on the assumption that it was s. 171 of the FLA, and not s. 150 of the WESA, that permitted an order for spousal support to be made after the death of the payor spouse, and that the court's ability to make such an order was limited by the scope of s. 171(3); and c) Had I proceeded to consider the factors set out in s. 171(1), it is not clear to me that I would have concluded that the factor in s. 171(1)(c) was met ("no other practical means exist"), given the availability of a possible approach to meeting the goals of spousal support pursuant to s. 95(3). [360] Given that one of the possible approaches to be considered involves s. 95(3), it is my view that the question of the most appropriate approach to dealing with spousal support issues is best dealt with after I have reviewed the parties' positions with respect to division of family property and family debt. Division of Family Property and Family Debt [361] Section 84(1) of the FLA provides that: Subject to section 85 [excluded property], family property is all real property and personal property as follows: (a) on the date the spouses separate, (i) property that is owned by at least one spouse, or (ii) a beneficial interest of at least one spouse in property; (b) after separation, (i) property acquired by at least one spouse if the property is derived from property referred to

in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either, or (ii) a beneficial interest acquired by at least one spouse in property if the beneficial interest is derived from property referred to in paragraph (a) (i) or from a beneficial interest referred to in paragraph (a) (ii), or from the disposition of either. [362] The real and personal property owned by at least one spouse as of the date of separation includes the following: a) The Edmonton Home, net of mortgage; b) Their respective interests in HQI and AHI; c) Their bank accounts and investment accounts; d) The claimant's pension entitlements; e) The Pakistan property; f) Jewelry; and g) Personal effects. Positions of the Parties Claimant's 2024 Submission [363] The claimant sought an unequal division of the equity in the Edmonton Home, with equal division of all other assets and each party to bear all debts in their respective names. [364] With respect to specific items, the claimant asserted that: a) The jewelry that the respondent had in her safety deposit box was family property as well. The claimant asserts that just because the jewelry was given to the respondent, it does not mean that it was a gift to her individually. With respect to value, the claimant notes that the respondent valued that jewelry at $28,000 in her 2021 F8 financial statement and

$41,000 in her 2023 F8 financial statement. He says that it was actually worth $80,000 to $100,000, and that the respondent should account for this amount. b) The only evidence of the value of the Pakistan property are the two deposits from his brother, which he says totalled about $13,000, and that is the amount for which he should account as part of the division of family property; c) At the time of separation, the respondent had the following amounts in her various bank accounts: i. HQI (#1619): $246,427.44; ii. AHI (#1511): $22,167.50; and iii. Personal - $22,946.14 (#3356) and $3,130 (#7980) plus investments including: iv. RESP - $17,045.04; v. TFSA - $56,563.02; and vi. RRSP - $80,601.60. d) The claimant, on the other hand, did not have an RRSP at the time of separation. He says that his income tax records show that all RRSP contributions (from 2011 to 2014) total less than $10,000 and are balanced by withdrawals from 2015 to 2017 totalling just over $10,000. [365] The claimant disputes the respondent's claim that distributive tax needs to be accounted for with respect to the funds in the corporations. He notes that the claimant also owns shares in each company. He says there should have been expert evidence as to the distributive taxes, and that the respondent's assertion that the applicable tax rate was 40% was not reliable and does not meet the onus of proof. [366] The

claimant says that he has disclosed "the document" for his registered pension plan, although he does not point to any specific document in evidence. Respondent's 2024 Submission [367] The respondent sought an unequal division in her favour in light of (a) the claimant's dissipation of the Pakistan property, and (b) the claimant's failure to provide meaningful disclosure with respect to his pension plan and RRSP. [368] With respect to the Edmonton Home, the respondent submitted that the equity was modest, given a June 2023 appraised value of $590,000 and a mortgage statement showing a balance owing of $457,440. The respondent submitted that because she had been "burdened" with "the entirety of the responsibility" for the property since March 21, 2021, it would be fair to reapportion the equity in her favour - either fully or in part. [369] The respondent claimed that the jewelry that she received at the time of the wedding was a gift to her from a third party and was thus excluded property: FLA s. 85(1)(b.1). She submitted that there was no evidence that the jewelry had increased in value, and as such, there was no family property to be divided in respect thereof. [370] With respect to the Pakistan property, the respondent says that there was no evidence on which the Court could accept that the Pakistan property had dropped in value between the time of its purchase in the fall

of 2019 and its sale in the spring of 2021. As a result, the claimant should account for the full value of the property. [371] With respect to RRSP's and pensions, the respondent argued that the claimant had failed to disclose a pension statement and RRSP statements, and that as a result, an adverse inference should be drawn. The respondent further submitted that a fair approach in light of the claimant's non-disclosure would be to allow each party to retain their own retirement funds. [372] With respect to the companies, the respondent submits based on the authority of Phillips v. Saunders, 2018 BCSC 960 at paras. 48-72, that the growth in HQI's value post-separation is a reflection of her income earned. She submits that the value of HQI should be based on its value at the time of separation. [373] The respondent argued that to the extent the funds in the two companies (HQI and AHI) were considered a basis to value those companies, the value needed to be adjusted downward to account for the distributive tax that would be incurred in order to withdraw those funds from the company: Sanai v. Mahmoud, 2017 BCCA 155 at paras. 39-54; Hopson v. Hannon, 2021 BCSC 99 at para.

65. The respondent relies on her evidence that based on her income level, the taxation of such funds would be at an effective rate of 40%, and submits that this figure should be used. She says that the funds in the two companies were $22,167.50 and $246,427.44 respectively, and that after reducing the value to 60% of the funds, the claimant's entitlement would be $80,578. [374] Similarly, the respondent submits that the home that she purchased, financed and maintained post-separation should not be considered family property as it was acquired through funds that she earned post-separation: Collins v. Lindahl, 2018 BCSC 1344 at paras. 51-57; Gutierrez v. Del Fierro, 2020 BCSC 679 at para. 107. [375] The respondent sought compensation in respect of the car driven by the claimant, which she valued at $10,000. The claimant's evidence was that while the vehicle may have been originally purchased for more, after several years of use it was now worth only about $3,000. Claimant's 2025 Submission [376] The claimant reported in this submission that the Edmonton Home, which had been placed in the respondent's control in March 2021, was no longer being rented and that all of the furniture had been removed - presumably by the respondent's family. [377] The claimant advanced an argument that the Surrey home the respondent purchased in 2022 was acquired with funds from HQI, including $300,000

withdrawn from HQI's account in June 2022. The claimant submitted that because HQI is a family asset, those funds are family property, and submits that they can be traced into the Surrey home which makes it family property. [378] Finally, the claimant advanced a claim for half of the chattels in the Surrey home that were removed by the respondent's family after her death. The claimant submits that the chattels in the home were held by them as joint tenants, citing McMillan v. Nordahl, 2010 BCSC 1929 at para. 39, that he now owns the chattels by right of survivorship, and that as a result, A.R. should be accounting to the claimant for the value of those chattels. Respondent's 2025 Submission [379] The respondent submits that any order made with respect to family property needs to account for the fact that the equity in the Edmonton Home is already in the claimant's hands, as a result of land title filings made after the respondent's death. The respondent notes that the claimant has unilaterally listed the Edmonton Home for sale, without consultation or notice. The respondent seeks an appropriate adjustment for the fact that the mortgage for the Edmonton Home continued to be drawn from the respondent's account, which has continued to increase the equity in the Edmonton Home five years after separation. [380] With respect to the Surrey property, while noting that this was an

argument that has not changed since the 2024 submissions, the respondent pointed out that to divide both the value of the corporate accounts as of the relevant date and to also consider that the deposit on the Surrey home was a family asset because it came from HQI funds would give rise to double recovery. The respondent submits that the evidence was clear that the funds in HQI's accounts when the deposit was paid in June 2022 represent income earned by the respondent after separation. [381] With respect to the claim for the value of chattels, the respondent says that there was no evidence of value; rather, used furniture has been held in other cases to be of nominal value: G.L.N. v. C.L.N., 2005 BCSC 768 at para. 46; Bilawchuk v. Bilawchuk, 2014 BCSC 2067 at para.

58. Analysis [382] I will begin with the parties' exclusion claims. Neither party seriously pursued an exclusion claim in respect of any funds the parties had at the time of their marriage in 2008. There was no evidence of what funds the parties may have had at that time - which would be the relevant time for determining an exclusion claim. There is evidence that when the claimant came to Canada nearly two years later, in 2010, he brought with him about $25,000, while the respondent had savings of just over $17,000. The evidence indicates that all of those funds were used either for family expenses or invested in the Edmonton Duplex. Then, when the Edmonton Duplex was sold, the net sale proceeds were dissipated through their use for various family expenses over a period of several months. In my view, no exclusion claim arises in respect of pre-relationship cash assets. [383] The only exclusion claim seriously pursued was the respondent's claim in respect of jewelry. While there was much argument about the jewelry, there was not a lot of evidence. The claimant testified that he and his family gave jewelry to the respondent at the time of marriage. In accordance with the custom of their culture, the jewelry was taken to the bride's house and handed to her. The respondent's evidence on this point was consistent with the claimant's. When challenged on cross-examination, she was

clear that the jewelry was given to her as a gift, and that was in accordance with her understanding of tradition. [384] The respondent identified one receipt (p. 1242) as representing a piece of jewelry that he purchased. His evidence was that, by custom, it is the groom who buys the main set of jewelry for the wedding day. The respondent did not dispute this evidence. Unfortunately, there was no helpful evidence as to the separate value of the jewelry that the claimant purchased. [385] Section 85(1) of the FLA lists various categories of property that are excluded from family property. Among them is the following: (b.1) gifts to a spouse from a third party [386] The evidence provided at trial confirms that the great bulk of the jewelry was gifts from third parties. In my view, that jewelry falls squarely within the scope of s. 85(1)(b.1). [387] The parties did not provide me with legal authorities dealing specifically with jewelry. I note that the conclusion I have reached is similar to that reached on somewhat similar facts in two cases. The first is Sattar v. Shahid, 2024 BCSC 2350: [51] Mr. Shahid submitted that Ms. Sattar owned many pieces of jewelry that remained in Pakistan with her mother. He asked for a finding that it, or its increased value, was family property and that she be ordered to bring it to Canada for valuation. He put in evidence photographs of these

pieces - some of Ms. Sattar wearing the jewelry herself and some just of the pieces of jewelry themselves. [54] I accept Ms. Sattar's evidence that most if not all of the valuable jewelry she owns were wedding gifts to her from her parents or Mr. Shahid's parents, in accord with the parties' cultural traditions. I accept her evidence that she and Mr. Shahid received gifts from the other side's parents of about equal value. The evidence from both parties was that Mr. Shahid received as wedding gifts from Ms. Sattar's parents a Rolex watch, a diamond ring (which was subsequently lost), and gold bracelets. Mr. Shahid testified to valuing the watch now at around $17,000. [55] Mr. Shahid argued that the wedding jewelry Ms. Sattar received from his side of the family should be considered family property because he, not his parents, paid for it. He put in evidence receipts from an Islamabad jeweler in 2016, some in his name and some in his mother's. He said those in his name totalled around $5,800 but that there was another $2,800 for which he had no receipts. Even if Mr. Shahid did pay for some of these items received by Ms. Sattar, I accept her evidence that they were given to her as wedding gifts from his parents, according to the parties' cultural traditions, just as Mr. Shahid's gifts were from her parents. [56] In sum, I find that Ms. Sattar's valuable jewelry were wedding gifts from her parents and Mr. Shahid's parents. These gifts, like those received by Mr. Shahid from her family, were thus gifts to each of them from third parties, and so excluded property under s. 85(1)(b.1) of the Family Law Act, S.B.C. 2011, c.

25. I find that none of her jewelry was purchased by the parties during the relationship. I accept Ms. Sattar's evidence that the family gifts exchanged at the wedding were of roughly equal value. There being no admissible evidence of increase in value of these items during the relationship, in my view the fair and reasonable outcome is for each party to retain their own jewelry. [388] To similar effect is the recent judgment in S.D. v. S.A., 2025 BCSC 835: [178] The claimant seeks to have a collection of family jewellery--including a diamond necklace, earrings, bangles, and gold, classified as family property. The respondent maintains that the jewellery was gifted to her personally and is therefore excluded property under British Columbia law. [179] The claimant submits that, consistent with Hindu traditions, the parties received significant jewellery from friends and family as blessings and a form of financial security. He states--and the respondent does not dispute--that in Hindu culture, gold jewellery is commonly given to newlyweds as a tax-free investment and safeguard. [185] Under s. 85(1)(b) of the FLA, gifts received by one spouse from a third party are excluded property, unless there is clear evidence that the gift was intended to benefit both spouses or was used for a family purpose. [186] In Sohi, the Court held that jewellery gifted on the occasion of marriage may

constitute family property where it was intended to support the couple jointly or serve as financial security. The Court considered both cultural context and practical use in determining whether the jewellery should be divided. This analysis confirms that the intention of the giver, the cultural context, and the post-gift use are central considerations. [187] Similarly, in Shen v. He, 2023 BCSC 1417, the Court found that jewellery gifted during a relationship is presumed to be family property unless there is evidence that it was intended to be excluded. However, the courts have consistently recognized that jewellery given exclusively to the bride as part of cultural or religious traditions may be excluded property (see D.I. v. S.I., 2011 BCSC 1788 at para. 71; Ghuman v. Ghuman, 2014 BCSC 254 at para. 119). [188] The key factor is the intention of the giver, which may be inferred from the timing of the gift, the nature of the items, cultural expectations, and how the items were used after the gift. Where jewellery is given solely to the bride in accordance with established cultural or religious practices--such as Stridhan in Hindu tradition--it is generally treated as excluded property. [189] In assessing whether gifted jewellery is excluded property, the court must examine the intention of the giver(s) at the time of the gift. (Shen at para. 139). That intention may be informed

by cultural traditions and expectations surrounding the marriage. Where such traditions clearly indicate that the jewellery was intended solely for the bride, the courts have generally classified those gifts as excluded property. [200] On the evidence before me, I am satisfied that the jewellery in dispute was a mixture of personal bridal gifts and general gold assets intended to provide financial support to the couple. While some items were clearly intended for the respondent's exclusive use--such as designed necklaces, earrings, and bangles--there was also a portion of undifferentiated gold gifted with the apparent intention of supporting the parties jointly. [201] Accordingly, I find that: a) Excluded property: All designed, ornamental, or ceremonial jewellery gifted to the respondent in accordance with Hindu wedding customs is her excluded property under s. 85(1)(b) of the FLA; and b) Family property: The remaining portion--undifferentiated gold jewellery intended to provide joint financial support--is family property under s. 84 and subject to equal division. [389] In this case, there was no evidence that jewelry was provided for financial security. Rather, the evidence was that all of the jewelry was provided to the respondent by way of gift, and that all but the pieces from the claimant were gifts from third parties. Unfortunately, while the jewelry provided by the

claimant may well be family property, I do not have a proper evidentiary basis on which to value that jewelry, and thus am unable to take it into account. I will thus treat the jewelry as excluded property, and not family property. [390] The respondent alleged that the claimant had taken some of the jewelry. The claimant denied this. In light of the evidence that (a) the jewelry was primarily stored in a safety deposit box to which only the respondent had access, (b) the claimant gave evidence - which makes sense given the state of the parties' relationship at the time - that he was carefully supervised on the few occasions he accessed the former family home in late 2022, and (c) the lack of evidence of any certainty from the mother that would contradict the claimant's evidence of careful supervision, I conclude that the respondent's claims that the claimant took some of the jewelry are not established on the balance of probabilities. [391] I turn to various issues dealing with the Edmonton Home. [392] The claimant takes the view that the Edmonton Home ceased to be family property upon the respondent's death because it was held in joint tenancy. I do not agree. As noted by the respondent, s. 81 of the FLA provides that "on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common" (emphasis added). The judgment in Weaver made

clear (para. 41) that the rights granted by s. 81 are crystallized and accrue upon separation. The impact of all this on a property held in joint tenancy where one party dies after separation was confirmed by Justice Kent in Sushnyk v. Meyer, 2023 BCSC 275: [32] Weaver Estate is clear, however, that s. 81 of the Family Law Act creates an undivided half interest in family property that takes effect upon separation and that litigation under the Family Law Act is not a legal precondition to crystallization. [33] Put another way, the Family Law Act provides for presumptive equal entitlement to and sharing of family property, a presumption which will prevail following the expiry of any two-year limitation period unless one of the spouses brings a claim in the interim for an alternative disposition of the property. In the present case, neither spouse issued such litigation under the Family Law Act and Mr. Sushnyk's "crystallized" statutory entitlement to an undivided half interest in the Condominium as a tenant in common prevailed from the date of the assumed separation to his death and beyond through to his estate. [34] Assuming separation did occur, the parties' interests as joint tenants in the Condominium were severed and statutorily transformed into undivided half interests as tenants in common. Ms. Meyer was not entitled to file documents at the land title office registering

title to the Condominium in her name alone. She was no longer a joint tenant and the survivorship rule was inapplicable. [393] Whatever the property's status may be under Alberta law, it is my view that for purposes of division of family property and family debt in this proceeding, I must consider the Edmonton Home to be family property. [394] The same analysis would apply to the parties' chattels. The McMillan case relied on by the claimant is an estate case, and thus s. 81 of the FLA was not applicable. [395] With respect to the value of the Edmonton Home, evidence indicated that at the time the trial commenced, there was equity in the Edmonton Home of just over $132,000. I have no evidence as to whether the value has increased in the two years since, but the mortgage balance would have decreased over that time. I will proceed on the assumption that the equity is now in the range of $150,000. [396] The respondent submitted in 2024 that the Edmonton Home should be reapportioned to her given the efforts she made to manage it from March 2021 onward. However, it was the respondent who insisted on excluding the claimant from management. As well, she effectively downloaded all management responsibilities to a paid property management agent. While there was some evidence that she purchased furniture for the house in 2023, when the management arrangement was varied, it appears that

the furniture is no longer there. And while the mortgage balance may well have been reduced after March 2021, the rental proceeds covered most, if not all, of the mortgage payments. In my view, there is no basis to reapportion any of the equity in the Edmonton Home in the respondent's favour. [397] As noted earlier, the respondent's 2025 submission was that the Edmonton Home should be reallocated to the claimant pursuant to s. 95(3), in reflection of the unmet spousal support needs. I will discuss that question further below. [398] I turn to the valuation of the two corporations (HQI and AHI). What is to be valued, of course, is the interest of the parties in those two corporations. The controlling shares were owned by the respondent, and it is primarily her interest as a shareholder that is being valued. [399] The first question is as to the time of valuation. I accept the respondent's submissions that the corporations should be valued at the time of separation: a) With respect to HQI, this case is very similar to the Phillips case cited by the respondent, in that it is a professional corporation with one owner, the income and assets of which are entirely the result of the respondent's professional fees. There are no other underlying assets and no market value that would be captured by a valuation at the time of trial. As in Phillips at para. 72, the facts are such that it

would be significantly unfair to assess the value of HQI at the time of trial. b) AHI, on the other hand, although intended as a holding company, was not used as such. The funds that were in the AHI bank account (its only asset) were actually less in 2023 than they were at the time of separation, due to the ongoing impact of bank service charges. [400] The parties disagreed on whether distributive taxes should be taken into account in valuing the companies, and on whether those taxes have been adequately proven. As I have noted, what is being valued is the respondent's interest in the companies. These are small, closely held corporations, with no assets other than cash and a few accounts receivable, and thus no independent market value. In this case, the evidence indicated that there would be no way to distribute the value held in the two companies without incurring taxes, and I can see nothing in the corporate financial statements that would call that evidence into question. It is my view that the legal principles summarized in the Hopson case, cited by the respondent, at paras. 65-66 are applicable: [65] In Sanai v. Mahmoud, 2017 BCCA155 at para. 32, a case in which the Family Relations Act applied, Justice Saunders, for the Court, explained that assets are put on the same level with respect to tax status in order to ensure "a clear view of the equivalence of wealth

distributed": This does not mean that taxes will only be taken into account in circumstances where the asset in question must be sold to effect the property division; rather, an adjustment should be made where the evidence establishes that a tax liability is "inherent" and there is no evidence of any way to avoid that result or attract a smaller tax burden: Sanai, at paras. 33 - 34. These statements seem to me to apply with equal force to the division of family property under the FLA. [66] In my view, the principle that emerges is that a tax liability should be taken into account where it is inherent (or put another way, inevitable), whether or not it arises directly from the property division order (such as where the asset must be sold to give effect to that order), but not where it is speculative. Ultimately, the question is whether the evidence establishes that the tax liability is inherent. [401] I accept that the tax liability with respect to the funds in these two corporations is inherent and not speculative, and should be taken into account if the evidence to ascertain the amount is sufficient. [402] I do not agree that a business valuator would be necessary to value corporations of the type in issue in this case. The claimant, in his 2024 reply submission, referenced McKenzie v. McKenzie, 2015 BCSC 241, where at para. 8 the court described the requirement as being of

"sufficient evidence to satisfy the Court of tax consequences or other costs" that are inherent. [403] Other cases referenced in the Family Law Sourcebook at §4.40 are to similar effect, including D.Z. v. M.Z., 2022 BCSC 706 at paras. 163-165: [163] The court can pick a percentage it thinks reflects distributive taxes. The proper amount is not a precise accounting nor an exact science: Cochrane v. Cochrane, 2013 BCSC 2114 at para.

40. In Cochrane, it was proposed that there would be distributive taxes of 34% but the court noted that there was a strong likelihood that only a portion of the value to be distributed would be taken immediately with the balance taken at some later indeterminate time. The court selected 20% for distributive taxes. [164] In L.F. v. B.F., 2012 BCSC 1073, the valuator opined that he expected distributions from the company to attract a tax of 33%, but the court selected a rate of 30%. [165] Where a payor of a compensation payment has failed to discharge their onus to provide evidence on the issue of distributive taxes, the court may ignore the issue entirely. It is not open to the payor to require ongoing litigation because of a failure to provide the court with proper evidence. It may be an error for the court to include distributive taxes when such evidence is not led: Weintz at paras. 47 and 49. In that case, the respondent was a 50% owner of a company, the business of which was not identified in the reasons. Justice MacDonald ordered (para. 193) that distributive taxes be 30%. [404] In T.M. v. C.V.M., 2022 BCSC 1783, the respondent's medical professional corporation had retained earnings of just over $440,000. Justice Kirchner dealt with the distributive tax issue as follows: [270] I do not have the benefit of expert evidence on how to make a tax adjustment for the retained

earnings and the parties' evidence provides little assistance on this. As the company's financial statements indicate, corporate taxes have been paid on the earnings. When money is paid out of these corporate accounts as income to the recipients it is taxed as income. The amount of tax will depend on the amount withdrawn and the recipient's income for the year in which it is withdrawn. Thus, there is considerable uncertainty in determining the amount of adjustment to account for taxes. I also note my understanding is that a dividend tax credit is given when money withdrawn from the corporation to account for the corporate taxes already paid. [271] C.V.M. argues I should apply a 30% reduction to the value of the retained earning to account for the tax consequences. T.M. argues I should apply a 21.25% deduction. Both of the proposed deductions appear to be arbitrarily chosen. T.M.'s analysis appears to have some methodology behind it but I have not examined that since it was not in evidence. In Sanai, cited by C.V.M., the Court of Appeal applied a 27% reduction based on the expert evidence in that case and said the resulting diminution in value should be shared by the parties. [272] Doing what I can without the assistance of expert evidence, I would reduce the value of the retained earnings based on distributive taxes at a rate of 25%. I set this amount closer to T.M.'s proposal

because C.V.M. has not accounted for a dividend tax credit. On this basis, I would assess the value of the retained earnings for the purpose of property division at $330,936 to be divided equally. [405] The respondent gave evidence that she understood distributive taxes would be 40%. There was no explanation provided for that. Her counsel argued that it was a number that "made sense". While I accept that distributive taxes should be accounted for, I am not required to accept the unsupported number provided by the respondent. I would adopt a reduced proportion of distributive taxes by choosing the amount of 25% from T.M. On this basis, the value of the respondent's interest in these companies is $201,446. [406] The next question is whether funds in HQI can be traced to the house that the respondent purchased in 2022. I accept that there is merit to the respondent's position that providing for the claimant to be compensated for the value of the companies while also providing him with compensation in respect of the house would be, in effect, double counting. [407] More fundamentally, however, it is clear to me on the evidence that the funds that were withdrawn from HQI in June 2022 were in fact funds generated by the respondent's work post-separation. In that regard, I note that: a) For the fiscal year ended July 31, 2021, HQI recorded gross revenue of $479,429 and net income of

$172,470; and b) For the fiscal year ended July 31, 2022, HQI recorded gross revenue of $679,325 and net income of $422,926. [408] The July 2022 fiscal year-end was just a few weeks after some $300,000 from HQI was used to pay the deposit on the home being purchased by the respondent. [409] In my view, these are not the sort of circumstances that would give rise to a tracing claim, and the claimant is adequately compensated for the family asset in question through the compensation he will receive in respect of HQI's value as of the date of separation. [410] Much time was spent at trial dealing with the Pakistan property. Each party had different views about the value of the property. The failure of the claimant to produce the sort of records that would show where the sale proceeds went is of significant concern. I accept that there is, as suggested by the respondent, some basis on which to draw an adverse inference. But the response to the claimant's unilateral sale of the property, and the lack of documentary evidence to demonstrate what happened with sale proceeds, must be within reason. [411] In my view, the appropriate response in all the circumstances is to deem the full amount invested in Pakistan - that is, the $70,000 that was originally wired to Pakistan - something that has accrued to the benefit of the claimant. [412] I have similar disclosure concerns with respect

to the claimant's pension entitlement. The claimant worked for the Alberta government for about a year, although a portion of that was in a temporary position. He then worked for Fraser Health for two years prior to separation. He did not dispute that he made contributions to a registered pension plan during that time. However, he has not produced a pension statement or statements to show the status and value of his pension, which would have permitted division pursuant to Part 6 of the FLA. [413] The respondent has suggested that we simply set off her $80,000+ RRSP against the claimant's pension entitlement, allowing each to keep the asset in their own name without compensation. I do not see that as a reasonable approach, given that I think it unlikely that the claimant's pension entitlement would have reached anywhere near that magnitude given the short time he held government positions, and in light of my earlier comments with respect to non-disclosure by the respondent. I will set aside for the moment the question of how to deal with the claimant's registered pension plan. [414] With respect to personal effects, it is clear on the evidence that the respondent kept all of the furniture and other personal effects in the former family home when the claimant moved out in August 2020. That said, personal effects are typically of nominal value. I note as well that I have not

otherwise accounted for the over $5,000 from the parties' joint Scotiabank account that the claimant transferred to his new account in November 2020. In my view, these amounts are appropriately set off against each other. [415] Finally, in light of the age of the motor vehicle in question, I would accept the claimant's evidence of a $3,000 value. [416] Excluding for now questions related to the Edmonton Home and the claimant's pension entitlements, and accepting as did the parties in their submission that, other than the Edmonton Home mortgage, there is no family debt of significance, I calculate the adjustment of the family property as follows: a) To the claimant's credit, $70,000 in respect of the Pakistan property, and $3,000 in respect of the car; b) To the respondent's credit: i. $201,446 in respect of her interest in HQI and AHI; ii. $26,076 in respect of her personal bank accounts; iii. $56,563 in respect of her TFSA; and iv. $80,602 in respect of her RRSP, which presumably has an after-tax value of about $40,000. [417] By my count, these assets would give rise to a balancing payment of $125,500. [418] I note that, as did the parties in their submissions, I have used the value of the respondent's TFSA and RRSP at the time of separation. There was little evidence of post-separation values of these assets. In law, any increase in value of those assets at the time (other

than from post-separation contributions) would be family property. In light of the lack of evidence, I have simply adopted the values shown on the statements from the time of separation. [419] I assume in this calculation that the RESP would be held in trust for the benefit of the children. I did not receive any submissions specific to the RESP. Meeting the Objectives of Spousal Support [420] I return to the question I left earlier - that is, determining the most appropriate response to the respondent's death and its impact on the appropriate award of spousal support. As I explained, given the submissions that were made, I will proceed on the basis that it is no longer open to me to make an award of spousal support. I do so without drawing any conclusion as to whether s. 150 of the WESA might have changed the pre-WESA law in that regard. [421] I am thus in the position of deciding between: a) the claimant's proposed response - that I issue a judgment nunc pro tunc effective as of the conclusion of trial, which would be decided on the basis that the respondent was still alive, or b) the respondent's proposed response - that I reapportion the interest in the Edmonton Home in the claimant's favour, with jurisdiction to do so found in s. 95(3) of the FLA. [422] I discussed above the cases relied upon by the claimant in support of his proposed response, under the subheading "Ability

to Give Judgment Retroactively". I have concerns about that approach. The Garrett case seems to be predicated on the court declining to give any consideration to facts arising after the parties had closed their respective cases. Making decisions in family law cases, in my view, requires consideration of the real needs of the parties and especially of their children. As well, a decision that ignores the fact of the respondent's death would most likely lead directly to an application pursuant to s. 215 of the FLA to vary the trial order based on a material change - a change that would have been known but intentionally ignored. The Medina case makes clear that the court may, but is not required, to antedate a judgment. In my view, the appropriate course of action is to consider whether the court can come to an appropriate result through other means. [423] I turn then to the respondent's proposed response. Section 95 of the FLA provides for limited circumstances in which the court may divide family property on an unequal basis: (1) The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to (a) equally divide family property or family debt, or both, or (b) divide family property as required under Part 6 [Pension Division]. (2) For the purposes of subsection (1), the Supreme Court may consider one or more of the

following: (a) the duration of the relationship between the spouses; (b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division]; (c) a spouse's contribution to the career or career potential of the other spouse; (d) whether family debt was incurred in the normal course of the relationship between the spouses; (e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt; (f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends; (g) the fact that a spouse, other than a spouse acting in good faith, (i) substantially reduced the value of family property, or (ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse's interest in the property or family property to be defeated or adversely affected; (h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order; (i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness. (3) The Supreme Court

may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal support, the objectives of spousal support under section 161 [objectives of spousal support] have not been met. [424] In Cook v. Cook, 2021 BCCA 194, the Court of Appeal concluded that (per the Court's Summary at the start of the judgment): The trial judge erred in law in finding that it would be significantly unfair to equally divide family property because of a financial disparity arising from an inheritance, an excluded asset under the Family Law Act. Financial advantage alone, unrelated to the economic characteristics of a spousal relationship, does not justify departing from the standard division of assets directed by the Act. [425] While much of the analysis in Cook centred on reallocation pursuant to s. 95(2), s. 95(3) was discussed at paras. 51-52: [51] Subsection 95(3) of the Family Law Act clearly contemplates orders for the division of property as a means of providing compensatory spousal support where the objectives of the Act cannot be achieved by an order for periodic payments. Such an order hinges upon findings that compensatory support is warranted and that allocation of a lump sum for the purpose will more effectively serve the objectives of the Act than an order for periodic payments: Parton at para.

47. After a judge determines that a spouse is entitled to spousal support, the Spousal Support Advisory Guidelines can assist the judge to determine the quantum and duration. Though the Guidelines are not mandatory, the judge can use the resource to calculate an appropriate lump sum support award based on the parties' incomes. See, e.g., Venables v. Venables, 2018 BCSC 1736. [52] The judge in this case, after concluding that the family property should be divided unequally because of unfairness in light of the s. 95(2) factors, also held that unequal division could be ordered to effect a lump sum payment of compensatory support. The lump sum amounted to $175,000 ($140,000 representing Mr. Cook's share of the equity in the Mount Baldy property and $35,000 representing 25% of the total $140,000 in savings). That amount appears to have been settled upon by determining what net allocation of property appeared to be fair. It was not apparently determined by reference to the net present value of a fixed stream of income for the respondent, and there was no attempt to calculate lump sum spousal support based on Guidelines incomes and the Spousal Support Advisory Guidelines calculation for a lump sum award. [426] While I have not been referred to any cases in which the death of a payor spouse has been the cause of the court's inability to meet spousal support objectives, there are cases

where s. 95(3) has been applied on other grounds, including where the spousal support available is minimal or non-existent due to the need to prioritize child support [C.M. v. M.S., 2015 BCSC 1031 at para. 38; S.A.H. v. J.J.G.V., 2021 BCSC 2132 at paras. 249-250]. [427] In the present case, I have reviewed the claimant's claim for spousal support above under the heading "Entitlement and Duration". I concluded that the claimant has established entitlement and that his claim for spousal support up to the time of the respondent's death would have been of an order of magnitude of $160,000. That conclusion gives rise to concerns as to the adequacy of the respondent's proposed approach of simply reallocating the respondent's entitlement to the equity in the Edmonton Home to the claimant - if the equity is only valued at $150,000, then reallocating the respondent's share ($75,000) of that equity would only partially meet the objectives of spousal support. [428] In my discussion above of child support, I calculated the claimant's total liability to be $44,355 (net of payments actually made). Of course, in a "Custodial Payor" situation like the present, had there been an order in place for periodic spousal support, the spousal support liability calculated pursuant to the SSAG would have been substantially more than the child support liability, and there would have been no arrears. [429]

In the present case, the children now reside with the claimant, whose financial resources are substantially less than those that were available to the respondent. He will struggle on his income to be able to provide the children with the same advantages they had previously. In such circumstances, it seems incongruous that the claimant would receive a reduced amount in order to provide funds to the respondent's estate in the name of child support. [430] One of the difficulties in this case is that each of the parties, in their 2025 submissions, focused primarily on advancing their own proposed response to issues that arise as a result of the respondent's death. Neither focused on how the other's proposed response might be adjusted in order to provide a fair result for the parties. [431] I have jurisdiction under s. 152 of the FLA to terminate an order for child support, and to do so retroactively. While neither side advanced such an application, it is my view that in the unique circumstances of this case, and where I am doing so in connection with an order aimed at addressing spousal support objectives that would otherwise be unmet, and which if known before the respondent's death would have been set off against the child support liability, such an order is an appropriate response that would obviate the need to have recourse to a nunc pro tunc order. [432] Specifically, it is my

view that I can adequately address the unmet spousal support objectives in this case through a combination of the following: a) Reallocating the net equity in the Edmonton Home to the claimant; b) Cancelling the $44,355 liability for child support that I calculated above; and c) Permitting the claimant to retain his registered pension plan entitlement without adjustment in connection with the division of family property. [433] While this may net the claimant slightly less than he would otherwise have been entitled to, in light of the claimant's failure to disclose a proper pension statement, I see this as an appropriate and measured response. Miscellaneous Additional Claims [434] The respondent sought to have included in the final order outstanding amounts for fines and costs. With respect to fines, there was an April 30, 2021, order of Associate Judge Vos for a $2,000 fine, and a February 9, 2022, order of Justice Kirchner for a $5,000 fine. As I understood the evidence, the fine imposed by Associate Judge Vos was fairly quickly paid, while a total of $3,000 was paid in respect of the fine imposed by Justice Kirchner. By my calculation, $2,000 remains outstanding. [435] With respect to costs, it is my understanding that two interlocutory costs awards remain outstanding: $2,000 awarded by Associate Judge Vos on April 30, 2021, and the $11,832.99 assessed in respect of Justice

Kirchner's order for special costs of February 2022. [436] A trial judge does not have the power to change or vary an earlier costs order made in a proceeding: 567 Hornby Apartment Ltd. v. Le Soleil Restaurant Inc., 2020 BCCA 69 at paras. 101 and 108. Nor does anything in the orders made with respect to fines suggest that they are subject to review at trial. All of these orders created binding and enforceable debts that are to be accounted for in respect of any balancing payment. [437] Finally, the claimant sought reimbursement of $1,245 that he paid for supervision fees unnecessarily. Having reviewed the events of the fall of 2020, in light of what was concluded in the s. 211 report, and having considered the many unsupported reports made to the MCFD, it is my view that it is reasonable to require those fees to be reimbursed by the respondent. [438] By my calculation, the amounts calculated in this section give rise to a net payment of $14,587.99 to the claimant. Conclusion [439] I have made the following orders with respect to parenting time: a) The children shall be primarily resident with the claimant; b) The claimant shall have all parental responsibilities, but shall advise A.R. of any matters of a significant nature affecting either child; c) A.R. shall have those parenting responsibilities provided for in s. 41(i) and (j) of the FLA; and d) The parties have liberty to

apply to me should I have misunderstood their positions with respect to parenting matters. [440] The claimant shall have no further liability to the respondent's estate in respect of child support. [441] The claimant shall hold the entire beneficial interest in the equity in the Edmonton Home and shall be solely responsible for costs related thereto, including the mortgage. [442] The claimant shall retain his registered pension plan without further adjustment. [443] The RESP shall be held in trust for the children. If the parties cannot agree on how the RESP shall be held, they may apply for directions. [444] The respondent shall make a balancing payment to the claimant of $125,500, to be reduced by $14,588 in respect of costs and fines, for a net payment of $110,912. [445] Thereafter, each party shall hold all assets in their own name free and clear of all claims of the other. For clarity, the claimant has no claim to jewelry or to the respondent's Surrey home. The claimant will take all steps required to transfer all shares in his name in HQI and AHI as directed by A.R. The various declarations and payment provided for above include all necessary adjustments to meet the goals of spousal support. [446] The parties have liberty to make submissions as to costs. [447] Any submission seeking costs, or on a matter for which I have given liberty to apply, should be made through

Supreme Court Scheduling within six weeks of today's date. Any submission in response should be made within three weeks thereafter. The applicant may submit a brief reply submission within seven days of the other party's submission. I will determine after reviewing the submissions whether a hearing is necessary. [448] If neither party applies for costs in accordance with this timeline, then the parties shall each bear their own costs. [449] If I have failed to deal with any matter that was properly before me, or if there are any mathematical errors in the calculations I have made, those can be drawn to my attention by way of submissions that should be made in accordance with the same timeline as for submissions on costs. "Veenstra J."