A.N.K. v. E.K.

2024 BCSC 1391 A.N.K. v. E.K.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.N.K. v. E.K., 2024 BCSC 1391 Date: 20240801 Docket: E182730 Registry: Vancouver Between: A.N.K. Claimant And E.K., K. Family 2017 Trust, Confidex Holdings Ltd., Certus Enterprises Ltd., Igenius Incorporated, West Quay Offices Inc. a.k.a Butcherson Investments Inc. Respondent And N.O. Respondent Before: The Honourable Justice Ahmad Reasons for Judgment The Claimant, appearing on her own behalf: A.N.K. The Respondent, appearing on his own behalf: E.K. Counsel for the Respondent N.O.: A.E. Thiele N. Nasser F. Wu E. Ptak K. Kang, Articling Student Representative for the Respondents Certus Enterprises Ltd., Confidex Holdings Ltd., Igenius Incorporated, West Quay Offices Inc., and K. Family 2017 Trust E.K. Place and Date of Trial: Vancouver, B.C. April 4-8, 11-13, 19-22, 25-29, May 2-6, 9-13, 24, June 13-16, Nov 14-18, 21-23, 2022, February 6-10, March 6-10, April 11-14, May 17-19, and June 19, 2023 Written submissions of the Claimant: Written submissions of the Respondent, E.K.: Written submissions of N.O.: July 18, 2023, August 8, 2023, November 24, 2023, January 9, 2024 August 4, 2023, October 25, 2023, December 8, 2023 August 4, 2023, October 25, 2023 Place and Date of Judgment: Vancouver, B.C. August 1, 2024 Table of Contents I. Introduction.. 6 II. Credibility and Reliability. 6 III. Background Facts and Evidence. 9 The

Parties. 10 Tan Grafik. 10 The Respondent's Pre-2005 Relationship. 12 Kensville UK /Kensville Cypress / Siber Technology / PowerNet 12 The Parties' Relationship and Pre-Marriage History. 12 Post-Marriage Events. 13 Purchase of the Gostick Properties. 14 Purchase and Sale of the St. Georges Property and the Spousal Loan Account 15 Purchase of the Biddesden Home. 15 TruWorks / Wishland / iGenius. 15 The Butcherman (2012) Trust 16 Purchase of the Esplanade Properties. 16 Certus and the Purchase of the Gostick Properties and the West Esplanade. 17 Marital Issues and Separation. 18 IV. Issues. 18 V. Orders Relating to M. 19 A. Background. 19 B. Guardianship, Parenting Time, and Decision-Making Authority. 29 1. Legal Framework. 29 2. Analysis. 30 C. Counselling. 42 D. N.O.'s Claim for Contact and Phone Access with M. 44 1. Legal Framework. 44 2. Discussion and Analysis. 44 VI. Property Division.. 47 1. Facts and Evidence. 47 2. Positions of the Parties. 50 3. Issues. 50 4. Discussion and Analysis. 51 A. Choice of Laws: Turkish or British Columbian law?. 51 B. Does the FRA or the FLA apply?. 52 C. Is the Marriage Agreement Binding on the Parties?. 53 D. What are the "family assets" to be divided?. 58 E. Is Equal Division of Family Assets Unfair?. 70 VII. In Trust Claims. 75 A. Express Trust Claims. 76 B. Resulting Trust Claims. 77 C. Constructive Trust Claims. 77 1. Legal Framework.

78 2. Discussion and Analysis. 78 VIII. The Parties' Income. 80 A. Legal Framework. 80 B. Respondent's Income. 82 1. Facts and Evidence. 82 2. The Parties' Positions. 86 3. Discussion and Analysis. 87 C. Claimant's Income. 97 1. Facts and Evidence. 97 2. Discussion and Analysis. 98 IX. Child Support / Section 7 Expenses. 101 A. Is the Claimant Required to Pay Child Support for Z.?. 101 1. Issue. 101 2. Legal Framework. 101 B. Child Support 102 1. Legal Framework. 102 2. Discussion and Analysis. 103 C. Section 7 Expenses. 104 D. Summary of Child Support Orders. 105 X. Spousal Support. 106 1. Legal Framework. 106 2. Discussion and Analysis. 107 a. Entitlement 107 b. Amount 109 c. Duration. 115 XI. Reconciliation of Retroactive and Prospective Amounts Owing to the Claimant. 117 A. Amount Owing to the Claimant 117 B. Set-off of Amounts Paid to the Claimant 118 C. Summary of Reconciliation and Related Orders. 121 XII. Divorce. 123 XIII. Costs. 123 1. Legal Framework. 123 2. Discussion and Analysis. 124 a. Claims for Costs Generally. 124 b. Claims for Special Costs / Contempt of Court 125 c. Conclusion and Comments on the Parties' Applications for Costs. 127 Schedule "A" - Summary of Orders. 129 I. Introduction [1] The evidence in this high-conflict family case was heard over 58 days commencing in April 2022 and ending in June 2023, after which the parties prepared and submitted

lengthy written submissions. [2] The numerous issues to be determined include parenting and other issues relating to the parties' now 13-year-old child, contact time with a grandparent, choice of laws, the validity of a marriage agreement, property division, imputation of income, and child and spousal support. Also in dispute is the ownership of the business legally owned by the respondent's mother, but which the claimant asserts belongs to the respondent.[1] The claimant claims entitlement to both the business and all property acquired with its proceeds as family property. [3] Given that claim, the respondent's mother is also a named respondent. She was represented at trial by counsel. The claimant and the respondent were self-represented. II. Credibility and Reliability [4] In assessing credibility, I rely on the principles as set out in the often-cited passages of Justice O'Halloran in Faryna v. Chorny, [1952] 2 D.L.R. 354, 1951 CanLII 252 (B.C.C.A.) at 357, and of Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff'd 2012 BCCA 296. [5] Related to, but distinct from, credibility is reliability. Credibility concerns the veracity of a witness; reliability involves the accuracy of the witness's testimony. Accuracy engages consideration of the ability of the witness to observe, recall and recount what occurred: R. v. Khan, 2015 BCCA 320 at para. 44. [6] In

this case, the claimant and the respondent provided differing accounts of many aspects of the issues in dispute. However, their accounts were most divergent in respect of matters relating to the acquisition, ownership, and operation of the adult entertainment website business purportedly owned by N.O. In that regard, the claimant alleges that the respondent and N.O. have conducted their business affairs deceitfully for their financial gain, including to avoid any significant payments to her on the dissolution of the marriage. The claimant argues that the respondent was a dishonest witness and essentially all of his evidence should be disregarded. [7] While there may be cases in which a party's credibility is such that all of their evidence must be rejected, this is not that case. [8] Indeed, based on my observations, neither the claimant nor the respondent were completely credible or reliable. The claimant was often evasive and, in my view, deliberately obstructionist on cross-examination. The respondent was not entirely thoughtful or precise in his responses, often giving answers, only to clarify them moments later. On at least one occasion in 2012, he fabricated a business document to advance his financial position. [9] Neither the claimant nor the respondent were prepared to give the other any credit, for example, in respect of parenting. Rather, both appeared to be focused

on painting the other in the most negative light possible. [10] On the other hand, I cannot conclude that either is wholly incredible or unreliable either. Given the broad number of issues, and the range of matters on which the claimant and the respondent gave evidence, it is not possible, nor is it appropriate, to make findings of credibility on a broad-brush basis. I decline to do so. Rather, where necessary, I will set out my findings of credibility as they relate to a specific issue in dispute. [11] Having said that, I find that N.O. was a forthright, credible and mostly reliable witness. On both direct and cross-examination, she took time to consider the questions and provided thoughtful answers, without being obstructionist, even in the face of allegations regarding physical violence toward M. and deceit in her business practices. Her evidence was consistent on both direct and cross-examinations. [12] The claimant's challenge to N.O.'s credibility and reliability on the basis that she could not recite details such as her specific ownership interests or her historical account balances is not compelling. That is true especially given that by the date of those events, N.O. relied on her business manager and other professionals to handle those details. [13] N.O. was a credible witness. I accept her evidence. [14] In addition to the parties, several other witnesses gave

evidence in respect of the numerous issues to be determined. Among them was Ayse Celik, the claimant's mother. As I have done with the claimant and the respondent, I have addressed my findings on her credibility in the body of these reasons as it relates to the specific issues to which it is relevant. [15] Finally, three witnesses gave evidence regarding various aspects of the respondent's and N.O.'s corporate transactions and business operations. They are: (a) Banu Ozkaran, the respondent's childhood friend who most recently was employed by a company legally owned by N.O., (b) Eric Vanderluit, an accountant who has provided accounting services for entities related to the respondent and N.O. since 2010; and (c) Frank Quo Vadis, a tax lawyer who first met the respondent in 2012 and acted in respect of the purchase of commercial properties by a company controlled by N.O. from a company controlled by the respondent. [16] Without pointing to any specific incidents that would undermine the credibility of any of these witnesses, the claimant suggests that their loyalty to the respondent alone makes them less than credible. I do not agree. Having observed all three witnesses, I am satisfied that all made a sincere attempt to give their evidence to the best of their recollection. In some instances, all three had the benefit of documents to assist in their recall. All conceded certain

points that they could not recall. There was no indication that any of them, including Ms. Ozkaran who was a lifelong friend, tailored their evidence to further the respondent's position in these proceedings. [17] I accept each of Ms. Ozkaran, Mr. Vanderluit, and Mr. Quo Vadis as credible and reliable witnesses. III. Background Facts and Evidence [18] In addition to 58 days of oral evidence of the parties and their witnesses and the multitude of binders of documents adduced at trial, the evidence included four expert reports with respect to parenting time, drug and alcohol analyses, a Guidelines Income Report, a business valuation report, two expert reports with respect to Turkish law, personal banking records, bank statements, financial statements and other corporate documents relating to not less than seven corporate entities and trusts. A significant portion of the trial was taken up with detailed evidence and cross-examinations relating to the respondent's and N.O.'s businesses dating back to 1979, their business practices, corporate structures, earnings and spending, accounting, and banking. [19] It is simply impossible to canvass the details of all of the evidence that was before me. Except where required to discuss a specific issue in dispute, I do not purport to do so. [20] In particular, there is evidence that consumed a lot of trial time (at times disproportionately

so) that I reference in less detail relative to the amount of time it occupied; some of which I have not expressly referred to at all. Such evidence includes, for example, a Christmas party hosted by the claimant in December 2019 in M.'s presence, the involvement of the claimant's former counsel, Anna Perry after the termination of her retainer on a professional and personal basis, the respondent's communications with the claimant's (now former) partner, an incident of alleged physical violence between the parties in January 2020, and circumstances surrounding the sale of the former family home. Notwithstanding the summary way in which I have referred to the evidence, or not at all, I have considered all of the evidence in its entirety. I have set out a general overview of the evidence below. The Parties [21] The claimant was born in Turkey in 1986. She is now 38 years old. Despite attending university for four years, she did not complete her education. Her work experience is limited to her part-time employment with the respondent's companies. [22] The respondent was also born in Turkey, in 1970. Having developed an early interest in website development and software design in the 1990s, until recently he was self-employed in that field through a variety of corporate entities since he was 18 or 19 years old. He is currently 54 years old. [23] The corporate respondents are

entities either established by the respondent or in which he holds an interest. [24] The respondent, N.O., is the respondent's mother, who raised the respondent as a single mother in Turkey. After graduating from high school, N.O. pursued post-secondary studies in the graphics department at a fine arts faculty in Istanbul, graduating with honours (second in her class) in 1970. N.O., currently 75 years old, is retired. Tan Grafik [25] In 1979, N.O. established Tan Grafik, her own graphic design company. The respondent was nine years old. [26] At the time, there were no computers and N.O. did the graphic design and printing manually. Having achieved success in graphic design, in 1986, N.O. expanded the business by purchasing a photocopier and providing photocopying services to professionals in the area. Around that time, the respondent, who was then 16 years old, began going to the Tan Grafik after school and assisting N.O. Initially, he was paid for his work "when he needed it". In 1989 or 1990, the respondent assumed the title of "operations manager" and began receiving a salary. [27] In 1990, N.O. further expanded the Tan Grafik business and sold her apartment so that she could purchase one and a half computers, which were then new and very expensive. Using her house as collateral, she obtained a line of credit and purchased other equipment for the business. [28] In 1995,

while employed by Tan Grafik, the respondent created a free website showing pictures of supermodels. Given the success of that website, drawing on her experience in the Netherlands, N.O. decided to further expand Tan Grafik's business to create websites selling adult content. [29] As websites were then new, there was little precedent for website-based businesses and N.O. had difficulty finding a business model to monetize the adult website content. N.O. reached out to Ms. Ozkaran, who was then a banker, for advice on setting up virtual sales accounts so that she could charge subscription fees for access to the websites. N.O. came up with the idea to generate revenue through the subscription fee model, which had to be created from scratch. [30] In 1996 or 1997, Tan Grafik launched its first adult website, which generated revenues from subscription fees. [31] N.O. testified that in 1997 or 1998, she purchased the domain name "Sextronix.com", inspired by the name "funktronix" which she saw while visiting her family in Amsterdam. She testified that, at the time, the respondent was serving in the military and that she continued to independently operate Sextronix.com using other employees during the time the respondent was conscripted. [32] Tan Grafik's adult website business was a lucrative one for N.O. which, at its peak, generated $20,000 a month in revenues. [33] In 2000, there

was a downturn in Turkey's economy and N.O. wound-up Tan Grafik and sold its hard assets, but retained ownership of the website domain names. At the time, the respondent was 20 years old. The Respondent's Pre-2005 Relationship [34] In the late 1990s, the respondent met and married Gunel Eskisari. They had one child together, Z., who was born in 2003. The respondent and Ms. Eskisari divorced in December 2003. Kensville UK /Kensville Cypress / Siber Technology / PowerNet [35] After Tan Grafik was wound up, N.O. incorporated Kensville UK, which took over ownership and operation of the websites previously owned by Tan Grafik. In 2009, N.O. wound-up Kensville UK and transferred its business to Kensville Cyprus. Both entities were able to expand their operations by purchasing more websites. [36] During the same time, the respondent established and operated two separate companies: in 1999, Siber Technology, which provided web hosting services and, in 2001, PowerNet, which provided software development services. PowerNet's offices were located in the Aegean Free Zone, providing tax advantages that made it favourable to use PowerNet to conduct international business. [37] Given that advantage, Kensville UK retained PowerNet to build its websites, for which PowerNet invoiced Kensville UK monthly. In addition to its payments to PowerNet, Kensville UK also paid the operating costs

associated with the websites that PowerNet built. That arrangement continued with Kensville Cyprus. The Parties' Relationship and Pre-Marriage History [38] The parties met in April 2005. The respondent was 35 years old; the claimant was 19 and in her last year of high school. At the time, she was residing with her mother, Ayse Celik. [39] By then, PowerNet had been established and generating profits. Those profits, together with his income from his business enterprises, allowed the respondent to acquire significant assets, including a house, bare land, a vehicle, a boat, and afforded him a very comfortable lifestyle. [40] The parties' evidence regarding when they commenced living together in a marriage-like relationship differs.[2] They agree however that the claimant spent many weekends at the respondent's home while attending university. Although she had no formal training, during this period, with the respondent's direction, she assisted the respondent in his business, editing videos, cleaning up content, and checking for fraud on the websites he maintained. [41] In October 2009, the parties went on an extended vacation, in part for business, to Los Angeles. On their return to Turkey in the spring of 2010, the claimant's estranged father learned of their relationship and objected to the claimant living with the respondent without being married. While the parties dispute the

specific details surrounding that issue, as a result, they decided to get married. [42] As a condition of marriage, however, the respondent required that they enter into a prenuptial agreement pursuant to which each would be entitled to only the assets in their name of the dissolution of the marriage. At the time, the respondent had a significant amount of assets; the claimant had none. [43] On March 2, 2010, the parties met with a notary to draft the prenuptial agreement (the "Marriage Agreement"). The parties signed it the same day.[3] They married on March 7, 2010. Post-Marriage Events [44] In the fall of 2010, the parties applied for immigration to Canada through the investor program, eventually deciding to move to Vancouver. To qualify for the investor program, the respondent had to demonstrate that he had at least 2 years of management experience and a net worth of at least $2,000,000. [45] The claimant left her university studies and did not complete her degree. [46] In anticipation of their move to Vancouver, the respondent opened bank accounts at the HSBC into which he transferred sums of $2,542,834.48 (USD) and $2,884,309.00 (CAD) prior to moving to Canada. The respondent testified that those funds were monies he had saved through PowerNet and $2 million he received from N.O. [47] In March 2011, the respondent incorporated iGenius Incorporated ("iGenius"), a federally

incorporated company for whom he was the sole shareholder. He transferred PowerNet's business operations to iGenius. [48] M. was born in Turkey in July 2011. [49] The parties finalized their emigration to Canada in November 2012. [50] Z. moved to Vancouver in 2016 and resided with the parties. Purchase of the Gostick Properties [51] Prior to finalizing their move to Vancouver, the parties travelled through Canada and the United States for several months starting in the fall of 2011. [52] Using funds that the respondent had transferred to the HSBC accounts from Turkey, in November 2011, iGenius purchased four commercial units located at 18 Gostick Place in North Vancouver (the "Gostick Properties") for $650,000. That purchase was subsequently assigned to Butcherson Investments Inc. ("Butcherson"), which the respondent had then incorporated and was the sole shareholder. [53] In 2012, iGenius leased the Gostick Properties for its business operations and paid rent to Butcherson. In March 2018, Butcherson changed its name to West Quay Offices Inc. ("West Quay"). Purchase and Sale of the St. Georges Property and the Spousal Loan Account [54] Also in November 2011, the respondent agreed to purchase property located at 4185 St. Georges Avenue, North Vancouver (the "St. Georges Property") for approximately $1.6 million. He completed that purchase outright from his personal savings. [55]

He sold the St. Georges Property in April 2013, netting almost $1.6 million (the "St. Georges Property Proceeds"), $1 million of which he deposited into an HSBC investment account (the "Spousal Loan Account") in the claimant's name pursuant to the terms of a loan agreement dated November 21, 2014. During the marriage, the parties used the funds in the Spousal Loan Account to pay for family and business expenses. Purchase of the Biddesden Home [56] In December 2012, the respondent purchased the home located on Biddesden Place in West Vancouver (the "Biddesden Home") for $5,780,000, of which the respondent paid approximately $2.2 million from his savings. The balance of the purchase price was paid by way of a mortgage. The parties resided there during the marriage. TruWorks / Wishland / iGenius [57] In November 2012, N.O. established TruWorks in Cyprus to carry on the business of Kensville Cyprus running adult entertainment websites and generating revenue through same subscription based fee model that was used by its predecessors. [58] She incorporated Wishland Services Limited ("Wishland") in 2013 to operate a dating / friendship website. [59] Ms. Ozkaran joined TruWorks as one of its two directors in 2012 and was responsible for all of TruWorks management decisions. She reported to and took instructions from N.O. Ms. Ozkaran played a similar, albeit unpaid, role in

Wishland. [60] The respondent transferred PowerNet's business operations to iGenius when he moved to Canada. Pursuant to the terms of two separate services agreements, iGenius provided website maintenance, design, software development, and other related services to both TruWorks and Wishland, as it sole clients. iGenius invoiced TruWorks and Wishland and was paid for those services. [61] When iGenius entered into the service agreement with TruWorks, a separate entity, PowerNetX Group L.P. ("PowerNetX") entered into a licensing agreement with TruWorks. Pursuant to the licensing agreement, TruWorks had the right to commercially exploit certain websites said to be owned by PowerNetX in exchange for 10% of the profits. In fact, those websites were owned by the respondent. I discuss this purported agreement in more detail in Part VIII. of these reasons. The Butcherman (2012) Trust [62] When the respondent moved to Canada in 2012, N.O. wanted to establish a means to provide for her grandchildren (then Z. and M.) with a share of her assets upon her death. With the assistance of a professional trust company based in Cyprus, on May 28, 2012, she established the Butcherman (2012) Trust (the "Butcherman Trust") in Cyprus and later opened an account at the SYZ Bank in Switzerland for the trust. N.O. was the settlor of the Butcherman Trust, the respondent, "[the respondent's] spouse", and

"the respondent's children" were the named beneficiaries. Wanting to ensure that she, too, would have access to the trust's funds, N.O. was added as a beneficiary to the trust in December 2016. [63] Rather than paying herself a salary, from 2013 to 2015, a portion of TruWorks net revenues totalling $7 million (US) was paid as dividends to the Butcherman Trust. Purchase of the Esplanade Properties [64] In February 2015, Butcherson entered into a pre-construction contract to purchase four commercial units located on West Esplanade Street in North Vancouver for $4 million and paid a 10% deposit. Certus and the Purchase of the Gostick Properties and the West Esplanade [65] Commencing in 2015, TruWorks' revenues began to decline, and it (and Wishland) was eventually unable to pay iGenius' invoices under the services agreement. By 2017, iGenius began to struggle financially. Its April 2018 year end financials disclose a 50% decline in revenue.[4] [66] N.O. took several steps starting in February 2017, to financially assist the respondent by terminating the Butcherman Trust, closing its account, and transferring the funds, comprised of the $7 million (US) TruWorks dividends, to her personal account at the SYZ Bank in Switzerland. [67] In June 2017, she incorporated Certus Enterprises Ltd. ("Certus"), the shareholders of which are the K. Family 2017 Trust and N.O., with N.O. owning the

controlling interest. The respondent is the director of Certus. [68] The K. Family 2017 Trust was created in June 2017, with the respondent as the trustee and Ilkhan Ozel as the settlor. Its sole distribution was made in 2017 to the claimant for $135,000. [69] In or about September 2017: a) N.O. loaned Certus the $7 million she had after collapsing the Butcherman Trust to purchase the Gostick Properties and the West Esplanade Properties; b) Certus agreed to purchase 100 % beneficial interest in the Gostick Properties from Butcherson for $1 million; and c) Butcherson assigned the contract to purchase the West Esplanade Properties to Certus for $3.9 million. [70] Both the Certus' purchase of the Gostick Properties and the assignment of the West Esplanade Properties were adjusted to reflect their fair market values when retroactive appraisals were subsequently obtained. Marital Issues and Separation [71] Issues in the parties' relationship commenced in 2017. Prior to then, both parties had a history of drug and alcohol use seemingly condoned, if not encouraged, by the other. Both concede that, at times, their substance use was an issue. Each also had a history of mental health issues, some diagnosed, others not. However, until late 2017, those issues did not appear to affect their relationship or their outward functionality. [72] That appears to have changed by late 2017, when the

respondent discovered that the claimant had engaged in a number of self-destructing behaviours including engaging in sexual relationships with men, both online and in person. [73] In January 2018, the respondent moved out of the Biddesden Home, eventually moving into the downtown condominium (the "Homer Street Condo") purchased by N.O. [74] The claimant alleges that in the period after he moved out, he engaged in extra-marital affairs and continued his drug and alcohol use. Nonetheless, the parties kept an open mind to reconciliation. Despite those efforts, they finally separated in September 2018. IV. Issues [75] In that context, the issues to be decided are: a) With respect to M.: i. What guardianship, decision-making authority, and parenting time schedule are in M.'s best interests; ii. What ancillary or conduct orders, if any, should be made to facilitate the implementation of the parenting time schedule or decision-making authority; iii. Should counselling be ordered for M. and, if so, by whom; and iv. Is N.O. entitled to a contact order independent of the respondent's parenting time; b) With respect to property: i. Does Turkish or British Columbia law apply to determine the issues relating to property division; ii. Is the Marriage Agreement binding on the parties; iii. What property is to be divided; iv. Would equal division of the property or, alternatively, division

contemplated by the Marriage Agreement, be unfair; v. If so, what is the appropriate division of property; and c) Is the claimant entitled to property or assets legally owned by N.O. or her related entities; d) Should income should be imputed to the parties for the calculation of spousal and child support? If so, how much; e) What amounts are owing for retroactive and prospective child support and s. 7 expenses; f) Is the claimant entitled to spousal support? If so, how much and for what duration; g) How should the outstanding support payments be reconciled with post-separation payments and interim distributions of property; h) Should an order for divorce be granted; and i) Are the parties entitled to costs, either as party and party costs or special costs, against the other? V. Orders Relating to M. A. Background History of Parenting Time [76] Z. was not yet two years old when the parties met in 2005. At the time, the respondent had some overnight parenting time with Z., which was eventually increased to every weekend. Gunel continued her role as Z.'s primary caregiver. There was no suggestion that the claimant assumed any significant parental responsibilities for Z. in the early years of the parties' relationship. [77] M. was born in Turkey in July 2011, where the family lived until their move to Canada in March 2012. The claimant did not work after M.'s birth, and assumed

primary childcare responsibilities for M. until M. was 3 ½ years old. At that time, she started part-time work with iGenius. Although the respondent was not the primary caregiver during those years, there is no suggestion that he was not an involved and loving parent. [78] In 2016, Z. moved to Vancouver and commenced residing with the parties. She was 13 years old. [79] While the parties were in Turkey, both grandmothers, N.O. and Ms. Celik had positive relationships with Z. and M. and both assisted in their childcare. N.O. would occasionally visit the parties' home and assist the claimant care for M. and Z. by cooking and playing with them. She would also babysit when the claimant was not available. [80] N.O. remained involved with M. (and Z.), even after the parties' move to Canada. Between 2012 and 2017, N.O. visited Vancouver on a regular basis, spending 2 to 3 months in the summers and a couple of weeks during the Christmas breaks. She would bring Z. with her on those visits. She also had an extended stay with the parties for a 7-month period from November 2017 to June 2018, during which time she assisted with M.'s care. She stayed with M. alone during the parties' trip to Thailand in December 2017. [81] Around that time, the respondent had moved out of the Biddesden Home, and eventually moved into the Homer Street Condo, where he resided until December 2018. While at the

Homer Street Condo, the respondent visited the children once or twice per week at the Biddesden Home. [82] The claimant alleges that during that time, the respondent was also involved with other women and consumed both alcohol and drugs, including cocaine. The respondent does not deny those allegations but maintains that they did not rise to the level alleged by the claimant. [83] After the parties finally separated at the end of September 2018, M. and Z. resided with the claimant at the Biddesden Home for approximately two months, with parenting time afforded to the respondent. During that time, Ms. Celik was in Vancouver, also residing in the Biddesden Home. [84] Z. moved in with the respondent once he secured accommodation at his rental home in West Vancouver in December 2018. Z. has been residing full-time with the respondent since December 8, 2018. [85] For approximately eight months after December 8, 2018, the parties shared equal parenting time of M., on an alternating week basis. [86] In April 2019, the claimant commenced a new relationship, which lasted until approximately August 2019. On their break-up, the claimant's then former partner contacted the respondent with information regarding what he alleged was the claimant's alcohol and drug use. The claimant does not dispute that she was consuming alcohol and drugs, including cocaine during that time. On the basis of

that information, on October 8, 2019, the respondent obtained an ex parte order suspending the claimant's parenting time and granting primary care of M. to him. [87] To their credit, on October 11, 2019, the parties concluded the terms of a consent order (the "Muir Order") pursuant to which, among other things: a) Dr. Marie Durnin-Goodman was to be retained to provide independent medical examination reports for both parties to address whether either had a substance use disorder or any other substance use issues, and if yes, to provide a treatment plan; b) The claimant was to commence immediate daily drug and alcohol testing and the respondent was to commence random drug testing, to be terminated as determined by Dr. Durnin-Goodman or agreement of the parties; and c) Dr. Mary Korpach was appointed to conduct an assessment and prepare a report with respect to M. pursuant to s. 211 of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. [88] The Muir Order also provided that the respondent was to have parenting time. Limited supervised parenting time with M, which did not include overnight visits, was granted to the claimant. Both parties were required to abstain from consuming drugs or alcohol within 24 hours of and during their parenting time. [89] With the respondent's consent, Ms. Celik travelled from Turkey to act as the supervisor for the purpose of the supervised parenting

time. Dr. Durnin-Goodman's Substance Use IME Reports [90] In December 2019, Dr. Durnin-Goodman issued her reports. She concluded that the respondent met the criteria for moderate alcohol and stimulant use disorders and opined that he would benefit from an "intensive outpatient treatment program", continued counselling, and biological monitoring. [91] As recommended, commencing in May 2020, the respondent attended an "intensive" outpatient treatment program at the Edgewood Health Clinic. He was discharged at the end of July 2020. The discharge summary includes a positive assessment of his engagement with the treatment program noting, among other things, his "exemplary attendance record". The summary concluded: Over the period of the last 3 months, [the respondent] appears to have acquired more insight into his addiction disorder, including how it developed and expressed itself over his life. He is a willing participant in his own recovery and a pleasant and participating client in our program. [Edgewood's executive director and counsellor] concur that his participation in IOP was sincere. [92] Follow-up drug monitoring did not reveal any notable continued drug use. [93] Dr. Durnin-Goodman also prepared a report in respect of the claimant. She concluded that the claimant met the criteria for severe alcohol and stimulant use disorders and opined that she would benefit from a

residential treatment program of not less than 90 days, in a facility that has access to psychiatric follow-up. [94] The claimant also obtained two other independent medical reports; neither came to the same conclusion as Dr. Durnin-Goodman. Based on his assessment conducted on October 25, 2019, Dr. Ronald Joe wrote that he "cannot conclude that [the claimant] suffers from a [substance use disorder]". However, noting her "historical pattern of unhealthy and potentially unsafe drug and alcohol use", risk factors, and mental health conditions, he concluded that the risk of her developing such a disorder was a "significant concern". He recommended ongoing monitoring. [95] Dr. Robert Baker conducted blood and hair follicle testing for the presence of various drugs. By report dated February 1, 2020, he reported that tests were positive for cocaine use in the period July to October 2019 (which was consistent with her report of occasional cocaine use during that period) and amphetamines (which Dr. Baker appears to attribute to her prescription medication). The testing showed no illicit substance use in the period between October 2019 to mid-January 2020. Dr. Baker opined that the claimant did not meet the diagnostic criteria for a significant substance use disorder. He also recommended continued monitoring. [96] Again, to her credit, by consent order made by Master Cameron (as he then

was) on February 28, 2020, (the "First Cameron Order"), the claimant consented to random drug testing 2 to 3 times each week or, subject the requirements of any residential treatment program that she attended. [97] Follow-up drug monitoring did not reveal any concerns with drug or alcohol use. [98] The respondent continued to have primary parenting time with M., and the claimant had the limited supervised parenting time that had been set out in the Muir Order.. Dr. Korpach's s. 211 Reports (December 7, 2020 and January 21, 2022) [99] In late 2020 and then in late 2021, Dr. Korpach conducted two comprehensive assessments of M.'s needs and views as well as each parent's ability to exercise parental responsibilities and to meet those needs. As part of that assessment, Dr. Korpach interviewed M. and each of the parties, and reviewed, among other things, Dr. Durnin-Goodman's and Dr. Baker's reports. [100] In her report dated December 7, 2020 (the "First Korpach Report"), Dr. Korpach identified deficiencies in each of the parities' parenting and concluded that, at the time, "neither parent is yet capable of meeting [M.'s] needs". She nonetheless was of the view that both parents were capable of managing M.'s health needs on both a day-to-day and emergency basis. [101] Following the recommendations of Dr. Durnin-Goodwin, Dr. Korpach recommended that the claimant participate in an

inpatient substance abuse treatment program to completion, which she estimated was "usually 30-45 days". [102] At the time of the assessment, the claimant's parenting time had been limited to supervised visits. Noting that "[p]arenting day-to-day is difference from parenting for several hours at a time under the microscope of a supervisor", Dr. Korpach was not able to provide a reliable assessment of the claimant's parenting. However, Dr. Korpach was also of the view that "[M.'s] best psychological interests will probably be served by a shared parenting arrangement". She made a without prejudice recommendation that the claimant commence gradual unsupervised parenting time with M. after her discharge from a treatment program. [103] Within days of receipt of the First Korpach Report, on December 11, 2020, the parties agreed to a consent order which provided, in part, that the claimant enroll in an inpatient treatment program at Edgewood Treatment Centre, following which she would have unsupervised parenting time with M. on a gradually increased basis, both as recommended by Dr. Korpach. [104] The claimant commenced the treatment program on December 27, 2020. She was discharged on February 14, 2021. At the time, the claimant reported a desire to drink alcohol "occasionally" going forward, which was reported to be "not usually conducive to ongoing recovery ". She also did not

commit to full abstinence from all mood-altering substances, despite the recommendation to do so. The claimant did commit to a number of steps to assist in her recovery including, for example, attending a minimum of two recovery meetings per week. She did not follow up with those commitments. [105] Commencing on March 18, 2021, the claimant's parenting time with M. gradually increased as provided in the December 2020 Consent Order. Commencing on May 18, 2021, the claimant had parenting time 3 nights per week. That schedule continued until March 2022. [106] By report dated January 21, 2022 (the "Second Korpach Report"), Dr. Korpach updated the First Korpach Report. By then, she was of the view that there had been adequate progress on some concerns and she had additional data to contribute to more conclusive opinions and recommendations. [107] Among other concerns referenced in the First Korpach Report, she expressly referenced the claimant's decision to continue drinking alcohol, albeit "socially" despite an underlying mood disorder and the advice of several medical professionals to the contrary. On the basis of those factors, she opined that the claimant was at a "continued risk for substance abuse relapse". Nonetheless, Dr. Korpach noted that "there is yet no evidence that her continued drinking has harmed [M.]". She was of the view that "it appears unlikely that [the

claimant] will use substances while actively parenting [M.]". [108] Having reviewed the strengths and the deficits with respect to both parents, Dr. Korpach ultimately concluded that: Neither parent is yet capable of meeting [M.'s] needs in a manner which will ensure her long term best interests, safety, and well being. Both manifest significant impediments to their respective abilities to exercise parental responsibilities and to use adequate judgement which will protect [M.'s] interests to the greatest extent possible. Both require further parent coaching and therapy sessions, and [the claimant] need to participate in an aftercare program in order to parent [M.]. Both parties have been distracted from meeting [M.'s] needs through engagement in repeated court applications and reports to authorities. Going forward, it is recommended that, prior to either parent contacting authorities, they first vet their concerns through their respective parent coaches. The coaches will assist the parties' [sic] in using judgement which considers [M.'s] needs primarily. [Emphasis in original.] [109] Despite both parties' compromised judgment, of the two, Dr. Korpach was of the view that the claimant had shown the greater willingness to follow recommendations which were made to facilitate M.'s best interests and implement a more regulated and authoritative parenting approach which was attuned

to M.'s needs. [110] In addition, Dr. Korpach noted that "[M.] appears to have responded well to increased time with her mother, who appears to have made some important changes in her parenting approach and sense of responsibility with [M.] ". She also found that "[M.] was consistent across interviews in her expression of wanting to spend more time with her mother", although her relationship with the respondent remains loving. [111] However, Dr. Korpach opined that M. was "not [at] a level of maturity in which her views could be considered a reliable and valid representation of her needs". [112] Dr. Korpach ultimately recommended a parenting schedule in which the claimant had the majority of parenting time during the school year and that the parties share holiday parenting time equally. Dr. Korpach also recommended that [M.] be encouraged to spend pro-D or school holidays with the respondent or Z. provided she had completed her schoolwork. [113] In addition, she "strongly recommended" that M. continue her sessions with Ms. Ross, for at least another two years, the next year which should consist of weekly or biweekly sessions. [114] By order dated March 10, 2022 (the "March 2022" Order"), Justice Edelmann granted a parenting order that mirrored Dr. Korpach's recommendation, granting the claimant significantly more parenting time than previously provided. Briefly put, the

Edelmann parenting order allowed the claimant parenting time approximately 70% of the time and the respondent approximately 30% of the time. Holidays were divided equally between the parties. M.'s Estrangement from the Claimant [115] The claimant reported that, at first, that schedule worked well. She saw positive changes in M.'s behaviour and their relationship was good. Unfortunately, that did not last long. The claimant reports that M.'s behaviour and their relationship started to change in May 2022, a date that the claimant says coincides with N.O.'s return to Canada. After that date, the claimant reports that M. rapidly progressed to a state of unregulated, variable, and aggressive behaviours. Noting that the changes in M.'s behaviours and her refusal to see the claimant were most notable after [116] Regardless, there is no dispute that M. began to refuse to be with the claimant's mother and took active steps to stay with the respondent during the claimant's parenting time. [117] Contrary to the March 2022 Order, M. spent the first 10 days of September 2022 with the respondent. Other incidents followed in October and November 2022 when M. simply refused to go with the claimant. In one incident, M. refused to leave with the claimant from school, running to the respondent's house instead. [118] By the end of October 2022, M. has refused to generally stay with the claimant

for extended periods of time. Other than some sporadic visits with the claimant for a couple of hours at a time, she had not stayed with the claimant since November 27, 2022. [5] Dr. Elterman's Views of the Child Report [119] By mid-trial order of the Court dated January 27, 2023, the parties retained Dr. Elterman to prepare a Views of the Child Report to (b) determine M.'s current views of the parenting schedule; (b) address the change in M.'s views towards the claimant since January 2022; (c) if possible, provide an opinion regarding the cause of the change. He spoke with M.'s counsellor to do so. [120] As set out in the report, M. reported to Dr. Elterman, among other things, that: a) She did not like living with her mom and she had not (then) seen her for a few months because she got tired of her mom lying. However, she said the main reason for not wanting to live with her mom is her worry that "she won't let me go back to dad"; b) She likes living with her dad because her grandmother and sister are there, it is peaceful, and she likes talking to her dad. There was nothing about living with her dad that she did not like; and c) What she most disliked about living with her mom was when they would argue, which she said was "pretty often, not every time". She said arguments would arise when she wanted to go to her dad's. However, she was able to identify activities that she

had previously enjoyed with her mother and that they had common interests. [121] M. also told Dr. Elterman that her dad and her grandmother said going to her mom's was her choice, and that she could go whenever she felt like going. When asked what schedule she thinks is best, M. replied "I think it would be better if I can go any time I want", or not at all if that is what she wanted. [122] Notwithstanding her reluctance to spend extended periods of time with the claimant, M. said she would be open to seeing the claimant as long as she could return to the respondent. She suggested a couple of hours on Saturdays. [123] Dr. Elterman saw that suggestion as progress but noted that both parents had to convey their support of that arrangement to M., both before, during, and after the visits. He suggested that coaching might be required for that purpose. He recommended that if M. started spending time with the claimant, it was important that she be assured that she would be allowed to return to the respondent's home. [124] Prior to the end of the trial, the claimant did spend a lunch with M. That lunch reportedly went well. B. Guardianship, Parenting Time, and Decision-Making Authority 1. Legal Framework [125] The respondent cites the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as authority for his claims for parenting time and decision-making authority. The claimant cites both the

Divorce Act and the FLA. In accordance with the doctrine of federal paramountcy, it is preferable to make the orders under the Divorce Act: Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 at para. 20; D.D.R. v. K.T.R., 2019 BCSC 1805 at para. 27. [126] Under the Divorce Act, the only consideration in making a parenting order is the best interests of the child, giving primary consideration to the child's physical, emotional and psychological safety, security and well-being: Divorce Act, ss. 16(1) and 16(2). [127] In determining the best interests of the child, the court is required to consider all factors related to the circumstances of the child, including those expressly set out in ss. 16(3) and (4). [128] Section 16(5) provides that the past conduct of any person should not be considered in this analysis, unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order. [129] Finally, s. 16(6) provides that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

2. Analysis [130] I will start by considering each of the s. 16(3) factors. Section 16(3)(a): Child's needs, given the child's age and stage of development, such as stability [131] As Dr. Korpach states in both reports, given the circumstances, M.'s needs are "significant". She includes factors such as attachment disruptions and ongoing conflict as facts for those significant needs. She further explains: Despite both parents' love for their daughter, [M.] appears to have developed generally insecure attachments with both. It is the writer's impression that, while [M.] loves and wants to spend time with each parent, the nature of the relationship with each is insecure, and this, along with each parent's own psychological and parenting challenges, underlies [M.'s] difficulties having her needs met by either parent. [132] Dr. Korpach also addresses the need for stability, emphasizing that "[r]elationship losses, parental emotional instability, poor judgement, by her parents, [M.'s] own emotional challenges, and her parents' conflicts have contributed to [M.'s] greater than usual need for stability". [133] While Dr. Korach emphasized "environmental stability", in my view, the need for stability, together with her greater needs, favours developing and nurturing a relationship with both parents. That conclusion is consistent with s. 16(6) of the Divorce Act, which expressly

contemplates the principle that "a child should have as much time with each spouse as is consistent with the best interest of the child." Section 16 (3)(b): The nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life [134] As her preferred and sole parental caregiver since the fall of 2022, the relationship and bond between M. and the respondent appears to be a strong one. The same is true about M.'s relationship with N.O. and Z. There is no doubt of the strength of those relationships. [135] Despite their more recent partial estrangement, in the past, M.'s bond with the claimant had been strong as well and, at one time, stronger than it had been with the respondent. In my view, M.'s suggestion and willingness to see the claimant, even if just for lunch, is a positive indication that the bond still exists. Section 16 (3)(c): Each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse [136] In her submissions, the claimant alleges that the respondent and N.O. have engaged in alienating conduct, primarily by their negative discussions of her, that has resulted in M.'s estrangement from her. [137] In the Second Korpach Report, Dr. Korpach discusses the concept of parenting alienation as opposed to

other forms of "child resistance to parent contact". At the risk of oversimplifying that discussion, Dr. Korpach explains the range of child resistance to parent contact as being on a continuum, ranging from affinity to alignment, realistic or justified rejections, and unjustified rejection, the latter of which amounts to alienation. [138] At the time (prior to M.'s current reluctance to spend time with the claimant), Dr. Korpach was of the view that both the claimant and the respondent engaged in alienating behaviours, however neither directly so. Dr. Korpach stated: It is the writer's opinion that [M.] is not alienated from either parent, but she has been emotionally damaged by both parents' alienating behaviours. Both parents' behaviours are seen as artifacts from their respective underlying unhealthy personality structures, rather than from any active attempt to turn [M.] against the other. [M.] is sensitive and reactive, and both parents must learn to contain any negative information about the other, and learn to make only positive or facilitative responses to [M.] about the other. [139] At the time of that report, Dr. Korpach was of the view that M. was at "increased vulnerability to alienation for at least another year". [140] There has been no professional assessment of the possibility of alienation since. [141] The respondent argues that M.'s reluctance to spend time

with the claimant is not due to any alienation. Relying on Dr. Elterman's report, he says the estrangement is "justified". He cites the fact that M. showed a willingness to have lunch with the claimant as evidence of no alienation. [142] However, without further evidence, including expert evidence, I am unable to come to any conclusion regarding either parties' theories regarding M.'s current refusal to spend any significant amount of time with the claimant, in particular relating to the serious allegation of alienation: Williamson v. Williamson, 2016 BCCA 87 at para. 47. [143] I do find, however, that it is likely that the respondent continues to engage in the indirect alienating behaviours described by Dr. Korpach. Section 16 (3)(d): History of the care of the child / Section 16(3)(h): Ability and willingness of parents to care for and meet the needs of the child [144] Prior to the separation, the claimant had been primarily responsible for M.'s care. With the exception of the time the claimant was at the inpatient treatment centre, from the date of separation to the fall of 2022, both parties provided care for M. to varying degrees. Since then, the respondent has had exclusive care of M. [145] Dr. Korpach addressed the parties' ability to meet M.'s needs: she concluded that neither was capable. However, she was able to point to strengths in each of the parties' abilities and

identified the ways in which of the parties had made positive changes in respect of their parenting. Ultimately, she recommended that the claimant have the majority of parenting time during the school year. While I acknowledge she made that recommendation prior to M.'s current reluctance to spend time with the claimant, in my view, it is indicative of the claimant's ability to care for M. [146] Notwithstanding that view, I remain somewhat concerned by the claimant's decision to continue to consume alcohol, even if only socially. Given the increased risk of the development of a substance use disorder, her decision is puzzling, especially given what I accept is her sincere desire to provide the best care for M. However, that concern is offset by Dr. Korpach's conclusion that her continued drinking has not harmed [M.] and that "it appears unlikely that [the claimant] will use substances while actively parenting [M.]". Section 16 (3)(e): The child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained [147] Prior to the spring of 2022, M. expressed a desire to spend time with the claimant. In December 2020, when M. was 9 ½ years old, she told Dr. Korpach that she preferred a one-week alternating schedule with both parents. Dr. Korpach qualified that view, stating she had a number of concerns regarding the reliability and

validity of M.'s expression of views. At the end of 2021, when M. was 10 ½ years old, she said she wanted to spend more time with the claimant than the respondent. In Dr. Korpach's view, that preference reflected each of her parents' approaches and responses to M. Dr. Korpach did not comment on the reliability or validity of those views. [148] When she was 11 ½ years old, M. reported a preference to spending time with the respondent, Z. and her paternal grandmother. As she expressed to Dr. Elterman and as demonstrated by her refusal to spend time with the claimant, it is her preference that she see the claimant when and if she wants. [149] At first blush, it would seem reasonable to give more weight to M.'s views as an older child. However, in my view, her current preferences are not in her best interest. [150] In light of her opinion regarding stability and the need for parental attachment, Dr. Korpach expressly opined that "[M.'s] best psychological interests will probably be served by a shared parenting arrangement", that is with both parents. Indeed, it is difficult to conclude that spending time with both parents, even if not M.'s preference, it is not in her best interest. [151] While it is appropriate to consider M.'s most recent views and preferences, in the circumstances, I do not give them excessive weight on this analysis of her best interests. Section 16(3)(f):

Child's cultural, linguistic, religious and spiritual upbringing and heritage [152] This factor is neutral. Both parents are dual citizens of Turkey and Canada and are able to promote the child's cultural background. Neither has expressed any specific preference in this regard. Section 16(3)(g): Any plans for the child's care [153] Having had sole parenting time with M. since November 2022, with the assistance of N.O. and Z., the respondent has established a routine and plans for M.'s care. While there is no evidence that the claimant has any specific plans, given M.'s age, this factor is less important than it would be if M. was an infant. I note, however, that the claimant remains unemployed. Section 16(3)(j): Any family violence and its impact [154] The claimant reported to Dr. Korpach that there had been some mutual physical violence "at times" during the marriage. She also reported that M. had been exposed to parental conflict, including mostly verbal arguments. There were no specific accounts of physical violence during the marriage, nor were there any reports of violence directed at either M. or Z. [155] The claimant testified about an incident that occurred in January 2019, after separation, in which she alleged that the respondent physically assaulted her. She also gave evidence of subsequent verbal abuse and threats of physical violence by way of text messages. While

the respondent does not deny these incidents, he does deny the extent of the violence described by the claimant. However, to the extent that the family violence occurred, it was limited between the spouses, and not directed at M. The parties' separation effectively eliminated the issue. Accordingly, any impact of that violence on M. has been ameliorated. [156] I have also considered the claimant's post-separation reports to the police and MCFD about the respondent's conduct toward M. (including a report that the respondent had twisted M.'s arm, left M. alone in the care of Z., who was then 16 years old, and for leaving M. hungry). Neither authority pursued any of those allegations. I am satisfied if incidents occurred as the claimant described, there is minimal, if any, risk of any re-occurrence or other impact on M. Conclusion on Guardianship, Parenting Time, and Decision-Making Authority [157] As the first observation, despite each of the parties' deficits and inability to meet all of M.'s needs to date, having observed the parties and having heard their evidence, I am satisfied that both parties love M. and want the best for her future. That said, the question is what parenting plan can best ensure that her best interests are achieved. [158] In that regard, I have considered all of the s. 16(3) factors set out above. Of those factors, M's needs, including the need for

stability and parental attachment and the parties' ability to meet those needs are most instructive. While I have considered that it is M.'s preference to choose when and if she spends time with the claimant, in my view, allowing M. that choice, especially at her relatively young age, does not achieve those goals. [159] In my view, allowing M. to dictate parenting time is exacerbating the issue. It is difficult to see how M.'s continued and prolonged separation from the claimant will do anything to mend their relationship or provide her with the stability and attachment that she requires from both parents. I cannot conclude that it is in M.'s best interest to allow that situation to continue, regardless of her stated preference. [160] In coming to that conclusion, I acknowledge that M. has "voted with her feet" - literally on at least a couple of occasions and figuratively by her refusal to spend significant amounts of time with the claimant. I also accept that forcing M. to spend time with the claimant may well build resentment that could hinder the re-establishment of their relationship. [161] However, M. was also slow to re-connect with the claimant after her return from the inpatient clinic in early 2021. They were able to rebuild their relationship by gradually increasing the claimant's parenting time. Crafting a parenting schedule that recognizes M.'s reluctance, but

emphasizes the importance of nurturing her bond with both parents, will put the parties in the best position to ensure that M.'s best interests are achieved. [162] That will require making a regular parenting schedule, with gradually increasing time afforded to the claimant, the default position, albeit with M.'s input; not the other way around in which M.'s preference for no parenting with the claimant is the default. [163] It will also require other orders recommended by Dr. Korpach to ensure that the parties have a system in place to implement the parenting schedule that I set out below. While such conduct orders made under Division 5 of the FLA typically arise on an interim basis to facilitate a final resolution, courts have made such orders on a final basis: R.A. v. W.A., 2018 BCSC 1910. I am satisfied that it is appropriate to do so. [164] Finally, recognizing the time that has elapsed and M.'s changing views and preferences, it is appropriate that either party may apply to the court for a review of parenting time any time after six months from the date of these reasons as required by s. 17(5) of the Divorce Act. If either party seeks a parenting time review, I suggest (but do not order) that the parties consider obtaining a report or letter from a child support professional, such as M.'s counsellor, to provide recommendations or comments to the court.

3. Summary of Orders for Guardianship, Decision-Making, Parenting Time, and the Parties' Conduct [165] I make the following orders: Guardianship [166] Pursuant to s. 39(1) of the FLA, the claimant and the respondent are the guardians of M. Decision-Making Authority [167] Pursuant to sections 16.3 and 16.1(4)(b) of the Divorce Act, the parties will share decision-making responsibility as defined in s. 2(1) of the Divorce Act for M. [168] The parties will exercise all parental responsibilities with respect to M. on the following terms: a) Each party will have the obligation to advise the other guardian of any matters of a significant nature affecting M.; b) Each party will have the obligation to discuss with the other guardian any significant decisions that have to be made concerning M. including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare; c) The parties will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; d) If the guardians cannot reach an agreement on a significant decision despite their best efforts: i. the parties will obtain the determination of the parenting coordinator to be appointed pursuant to these reasons; ii. if the authority of the parenting coordinator has ended, then the guardian with the majority of

parenting time with M. will be entitled to make those decisions and the other guardian will have the right to apply for directions on any decision the guardian considers contrary to the best interests of M.; and, e) Each party will have the right to obtain information concerning M. directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third-party caregivers. Appointment of Parenting Co-ordinator [169] Pursuant to s. 15 of the FLA, the parties shall appoint a parenting coordinator for the purpose of implementing this order, or any agreement the parties may make, respecting parenting arrangements, contact with a child or other prescribed matters, as follows: a) within 21 days of these reasons, the claimant shall provide the respondent with the names of 3 suitably qualified parenting co-ordinators, whose hourly rate shall not exceed $400 per hour; b) within 7 days of receipt of the claimant's list, the respondent shall choose a parenting co-ordinator from the list; and c) the parties shall use their best efforts to appoint the parenting coordinator within 14 days of the respondent's choice of parenting coordinator. [170] The following ancillary orders are made with respect to the parenting coordinator: a) Either party may raise issues regarding parenting arrangements, or any of the prescribed matters with the parenting

coordinator; b) In discharging their duties, the parenting coordinator may communicate with and directly receive information from M.'s counsellor; c) Except in urgent situations requiring immediate action, prior to reporting the other to the police or other government agency, the parties shall direct all complaints or concerns to the parenting coordinator for further recommendation or determination; and d) Neither party shall discuss with M. any discussions they have or intend to have with the parenting coordinator. [171] The cost of the parenting co-ordinator shall be borne by the parties in the proportionate amount of their income as determined in these reasons. Parenting Coaches / Therapy [172] Each of the parties is ordered at their own cost, to retain and consult with appropriately qualified: a) parenting coach; and b) therapist as recommended in the First and Second Korpach Reports, for a minimum of 18 months from the date of these reasons. Parenting Time [173] The following orders are made in respect of parenting time pursuant to ss. 16.1(1), 16.2, and 16.1(4)(a) of the Divorce Act: a) M. shall reside primarily with the respondent; b) Subject to the further orders set out below, the claimant shall have parenting time with M. as follows: i. For the month commencing on August 1, 2024: (1) for two consecutive hours once a week on day and time to be agreed between the

parties; and (2) on either Saturday or Sunday, or any other day as the parties may agree, from noon to 4 pm; ii. For the month commencing on September 1, 2024: (1) on Tuesdays, or other weekday as the parties may agree, from pick-up after school to 8 pm; and (2) on Saturday (or Sunday if the parties agree) from noon to 6 pm; iii. For the month commencing on October 1, 2024: (1) on Tuesdays and Thursdays, or two other weekdays as the parties may agree, from pick-up after school to 8 pm; and (2) on Saturday (or Sunday if the parties agree) from noon to 6 pm; iv. For the month commencing on November 1, 2024: (1) on Tuesdays and Thursdays, or two other weekdays as the parties may agree, from pick-up after school to 8 pm; and (2) on alternating weekends, on Saturday from 10 am to Sunday at noon; v. For the month commencing on December 1, 2024: (1) from pick up after school on Tuesdays to drop off at school on Wednesdays; and (2) on alternating weekends, on Saturday from 10 am to Sunday at 4 pm; and vi. Commencing on January 1, 2025: (1) from pick up after school on Tuesdays to drop off at school on Thursdays; and (2) on alternating weekends, on Saturday from 10 am to Sunday at 4 pm; and vii. Commencing on March 1, 2025, on an alternating week on - week off basis with the respondent (collectively, the schedule set out in paragraphs (a) and (b) is the "Regular Parenting Time"). c)

Despite the Regular Parenting Time, the parties shall have holiday parenting time with M. as follows: i. If Mother's Day falls on a weekend for which the claimant does not have Regular Parenting Time, the claimant shall have parenting time on Mother's Day from 10 am to 6 pm; ii. If Father's Day falls on a weekend for which the respondent does not have Regular Parenting Time, the respondent shall have parenting time on Father's Day from 10 am to 6 pm; iii. The parties shall equally split the Christmas break, commencing at school pick-up on the last day of school and ending at 6 pm on the day before school re-commences in the New Year. The respondent will have parenting time for the first half of the Christmas break commencing in 2024 and in alternating years thereafter; the claimant will have parenting time for the first half of the Christmas break commencing in 2025 and in alternating years thereafter; iv. The parties shall equally split the March break, commencing at school pick-up on the last day of school before the break and ending at 6 pm on the day before school re-commences after the break. The claimant will have parenting time for the first half of the March break commencing in 2025 and in alternating years thereafter; the respondent will have parenting time for the first half of the March break commencing in 2026 and in alternating years thereafter; v. The parties

shall equally split summer breaks, however, each shall be entitled to one period of two uninterrupted, consecutive weeks (Monday to Sunday) of parenting time. Each of the parties will provide the other with their choice of two uninterrupted weeks by April 30 of each year and the parties will use their best efforts to accommodate the other's request (collectively, the schedule set out in paragraph (c) is the "Holiday Parenting Time"); and d) Each parent is entitled to have private, unrestricted telephone/video contact with M. while M. is in the care of the other parent outside school hours. The communication shall be directly through M.'s cellphone or computer. [174] The following additional orders are made with respect to the Regular Parenting Time and the Holiday Parenting Time: a) The respondent shall use all reasonable efforts to actively encourage M. to adhere to both the Regular Parenting Time and the Holiday Parenting Time, without indicating that either is M.'s choice; b) The Regular Parenting Time and the Holiday Parenting Time are subject to M.'s reasonable agreement; and c) The claimant shall abstain from consuming any non-prescription drugs or alcohol 36 hours before and during her parenting time. [175] At any time after 6 months from the date of these reasons, either party may apply for a review of parenting time without having to prove a change in circumstances as

required by s. 17(5) of the Divorce Act. Conduct Orders [176] To minimize the potential for conflict between the parties in the implementation of the Regular Parenting Time and the Holiday Parenting Time and otherwise, the following orders are made pursuant to Division 5 of the FLA: a) Pursuant to s. 227 of the FLA, the parties will: i. put the interest of M. before their own interests; ii. actively encourage M. to have a good relationship with the other parent and actively encourage her adherence to the Regular Parenting Time and the Holiday Parenting Time; iii. refrain from, and encourage their respective families to refrain from: (1) making any negative comments about the other parent and his or her extended family; (2) engaging in discussions concerning this litigation or any private or adult matters in front of M.; and iv. if any third-party speaks negatively about the other parent in the presence of M., each party shall use their best efforts to remove M. from the situation. b) Also pursuant to s. 227 of the FLA: i. the parties shall communicate via text message or email for non-urgent issues relating to M.; ii. the parties shall use phone calls only in relation to urgent matters with respect to M. If a party contacts a parent via telephone with respect to an urgent issue and the other parent is not available, that parent shall immediately follow up with a text message;

and iii. the parties shall use their best efforts to reply to communications from the other within 24 hours; and c) Also pursuant to s. 227 of the FLA: i. neither party shall take M. outside Canada without the other party's written consent, such consent cannot be unreasonably withheld. In the event a party refuses to consent, the other party is at liberty to bring an application to the Court; and ii. the claimant shall keep M.'s passport. C. Counselling [177] Dr. Korpach has "strongly recommended" that M. continue her sessions with her counsellor, Salley-Ann Ross, for at least another two years, the next year which should consist of weekly or biweekly sessions. The parties do not dispute that recommendation. [178] Based on Dr. Korpach's assessment of M.'s "complex psychological, cognitive, relationship and social needs and vulnerabilities", together with the parties' own issues, I agree that counselling is in M.'s best interest. The only issue is with whom. [179] With the parties' agreement, Ms. Ross started providing counselling services to M. at the end of 2019 and continued to see her on a bi-weekly basis until some time in 2022. The respondent severed that relationship, he says because M. chose not to go. He argues that, given M.'s resistance, it is more appropriate that a new counsellor be appointed. [180] While the claimant had previously expressed some reservations about

Ms. Jones, she argues that Ms. Jones is the appropriate person to provide counselling for M. In that regard, she points to M.'s and Ms. Jones' familiarity with one another and the progress that M. previously had. [181] I agree with the claimant's position. The complex nature of M.'s needs favours a counsellor who is familiar with M.s circumstances. In addition, M.'s specific need for stability makes finding a new counsellor now, while at the same time, gradually increasing the claimant's parenting time, less than ideal. In my view, it is in M.'s best interest to maintain the consistency and stability that seeing Ms. Jones provides. [182] Having said that, it may be that Ms. Jones concludes that M. may be best served by seeing another counsellor. I leave that determination to her. [183] For the purposes of this application, I order that, subject to Ms. Jones' availability and agreement, M. immediately resume counselling with Ms. Jones on a weekly or bi-weekly basis, as determined by Ms. Jones. [184] If Ms. Jones is unable to accept her appointment as M.'s counsellor, the parties will retain a new counsellor by using the following procedure: a) within 14 days of receiving notice that Ms. Jones cannot act, the respondent shall provide the claimant with the names of 3 suitably qualified counsellors; b) within 7 days of receipt of the respondent's list, the claimant shall choose a

counsellor from the list; and c) the parties shall use their best efforts to appoint the counsellor within 14 days of the claimant's choice of counsellor. [185] The cost of the counsellor shall be borne by the parties in the proportionate amount of their income as determined in these reasons. D. N.O.'s Claim for Contact and Phone Access with M. [186] N.O. seeks an order granting her reasonable and generous in-person contact time with M. independent of the respondent's parenting time, both while she is in Canada and when M. is in Turkey.

1. Legal Framework [187] Pursuant to s. 16.5 of the Divorce Act, the court may make an order providing for contact between a person who is not a spouse and a child. Section 16.5(4) expressly provided that in determining whether to make a contact order, the court must consider factors such as whether contact between the person seeking contact and the child could otherwise occur and lists "during the parenting time of another person" as an example. [188] Section 16(1), which requires the court to take into consideration only the best interests of the child, also applies to applications for a contact order. The factors set out in s. 16(3) to determine the "best interests of the child" are also applicable with primary consideration to be given to the child's physical, emotional and psychological safety, security and well-being.

2. Discussion and Analysis [189] As set out above, N.O. has been present in M.'s life from the time M. was born. Even after the parties moved to Canada, N.O. continued to be present in M.'s life, spending significant periods of time in Canada assisting with her care. N.O. continued to reside in the Biddesden Home with the claimant and M. after the parties' separation in September 2018. [190] Dr. Korpach commented on the importance of the relationship between M. and N.O., noting in both reports: [M.] loves both parents and both extended families. Among her extended family, [M.] is closest to her half-sister [Z.], and reports being next closet with her paternal grandmother. N.O. has reportedly resided within the home for approximately one-third of M.'s life and was available to [M.] during the separation. It will be important that [M.] maintain these bonds, as well as that with her maternal grandmother [191] There is no doubt of the significance of their relationship to M. [192] The history is somewhat marred however by the claimant's reports to the Ministry of Children and Family Development ("MCFD") and the police regarding statements that M. had allegedly made that N.O. had hit her. The first of those reports was made after separation when N.O. was living in the Biddesden Home. Neither resulted in any action against N.O. The MCFD closed its file within a day. [193] A report to

the police in November 2019 was significantly more serious. At that time, the claimant reported that M. had told her that N.O. had hit her and pulled her hair after an argument over computer use, and that several days later she had scratched her and hit her several times with a shoe. She arranged for M. to speak to the police. It does appear that M. wanted to do so. In fact, she told the police she did not want to say how she got the scratches. [194] N.O. denied the incident occurred as the claimant reported it. She testified that she and M. had a disagreement about M. washing her hands when M. began hitting, kicking, and pulling N.O.'s hair. When M. did not stop despite N.O.'s repeated requests, N.O. said she tugged on M.'s hair to demonstrate how it felt. During this incident, N.O. fell to the floor and lost consciousness. She denies hitting M. with a shoe or otherwise during this incident. [195] Z., who arrived home just after the incident, described her view of the incident to Dr. Korpach. She described various incidents of M.'s aggression and felt that N.O. was the victim. [196] N.O. was charged with assault with a weapon, and remained pending from November 14, 2019, to October 30, 2020, while the claimant took active steps to ensure that the police pursued the charges. During that time, N.O. was denied access to and communication with M. Put another way, M. lost the

support and the companionship of her grandmother. [197] On October 30, 2020, the charges against N.O. were stayed. N.O. resumed living with the respondent, M., and Z. the next day. [198] Regardless of the stay, the allegation of violence is relevant on this assessment. Having heard all of the evidence, including M.'s video recorded statements recorded by the claimant, and having observed and heard N.O.'s evidence, I am satisfied that the incident occurred in the manner N.O. described. [199] M. seems to acknowledge N.O.'s version of the incident. In the First Korpach report, Dr. Korpach noted that "[M.] continues to view her paternal grandmother with love and kindness", but was anxious about being alone with her, fearing that their interactions would digress into violence. However, Dr. Korpach attributed M.'s fear to her difficulty to trust herself and her own anger, rather than N.O. Dr, Korpach recommended that the respondent or Z. be present when N.O. was with M. until M. turned approximately 12 (she was 10 ½ when the report was written). [200] In the second Korpach Report, Dr. Korpach reported that: [M.] expressed that she loves both parents, her sister and both grandmothers, including her paternal grandmother. The incident of alleged physical violence between M. and her paternal grandmother of October, 2020 [sic] has resolved from M.'s perspective, and she was able to enjoy

a reasonably positive relationship with N.O. before N.O. returned to Turkey. [201] Given my findings regarding how the incident occurred and Dr. Korpach's assessment, the November 2019 incident does not negatively affect my consideration on N.O.'s application for contact time. I am of the view that M.'s continued relationship with N.O. is an important factor in providing M. with the stability and attachment that she needs. I cannot discern any basis on which it can be said that developing their bond, or having the opportunity to do so, could not be in M.'s best interest. [202] However, that is not the end of the analysis. Pursuant to s. 16.5(4) of the Divorce Act, I must also consider whether the contact time between N.O. and M. could otherwise occur. [203] Given the primary parenting time that I have ordered for the respondent, it can. That is particularly true given that, with the exception of the period in which she had no contact with M., N.O. has resided in the respondent's home for her visits to Canada. [204] I am also mindful of the limited parenting time that has been granted to the claimant in the first few months of the parenting time schedule. Ordering time for N.O. will take away from the claimant's time that will be required to re-establish her relationship with M. [205] In the circumstances, at this time, I dismiss N.O.'s claim for additional and separate contact

time. [206] However, that conclusion is not intended to diminish the importance of M. maintaining a close relationship with N.O. Rather, it is solely based on the parenting time order that I have made for the respondent. For that reason, N.O. has leave to seek a review of the contact order once and if the respondent has parenting time 50% or less, if it is then required. VI. Property Division 1. Facts and Evidence [207] When the parties met in 2005, the respondent had already started and established a career in the web hosting and software development industry which he was then operating through Siber Technology and PowerNet. By then he had acquired property in Turkey including a house (purchased with funds from his mother), several parcels of bare land (one of which was used to construct his home with his first wife and two of which were developed and sold), and a boat. [208] With the exception of bare land that was developed and sold, he continued to hold all of those assets in March 2010, as well as two vehicles. In addition, he had accumulated owner's equity in excess of $4 million in PowerNet, as well as significant personal savings from the profits generated by PowerNet. [209] By contrast, in 2005, the claimant was just completing high school and had no assets. Her financial position had not changed by March 2010. [210] In March 2010, the claimant's father learned for the

first time that she had been living with the respondent without being married. The claimant's mother, Ms. Celik, testified that on learning that information, the claimant's father threatened to kill the claimant, rather than have her live with the respondent outside of marriage. [211] The claimant testified that she perceived the threat as real. Both the claimant and her mother described the father as a strict and violent man who had physically harmed them and the claimant's sisters in the past and had a criminal record relating to gun possession. The claimant also testified that her father had previously confined her to her room for an extended period of time when he found out about her relationship with a boy. [212] The respondent denies that the claimant told him about the father's threats at the time. He says he was told only that the claimant had the choice to marry him or move in with her mother. She chose to marry him. He dismisses allegations of her father's threats as incredible and fabricated for the purposes of the trial. [213] The respondent told the claimant would marry her on two conditions: Z. would eventually live with them and that she sign a "prenuptial agreement". The latter condition, he said, was based on his perception of the claimant's mental health issues, the fact that he was a wealthy man and the claimant had nothing, and his desire to protect Z. [214]

Prior to having the Marriage Agreement drafted, the parties met with Levent Tunay, who at the time was a lawyer in Turkey and had represented the respondent in his first divorce. Mr. Tunay testified that in early March 2010, the parties attended at his office and told him they wanted to get married and asked him to draw a separation of assets agreement. He testified that he explained to them what that meant and that those types of agreements are done with a notary public. He said that the parties had made their decision consensually and expressed their wishes clearly. [215] Mr. Tunay testified that he went with them to the notary's office in case they had any questions or wanted some clarifications. He testified that the notary asked more than once to ensure that the parties understood what they were signing. Mr. Tunay said that the claimant appeared happy throughout their interactions. [216] The parties executed the Marriage Agreement on March 2, 2010. Its English translation provides as follows: 1. Each one of us will have the right within the limits permissible by law, to have administrative right, right to benefit, and right to act.

2. The one who claims that a certain property belongs to him/her, is obliged to prove his/her claim. Otherwise, properties that are not proved to be belonging (to him or her) will be considered as part of the properties that are shared by us.

3. Each spouse will be responsible for all the properties belonging to him/her with regard to the debts that he/she has.

4. In the event that the property restructuring regime comes to an end, each on of us will get back the properties found in the possession of the other. Moreover, the one who proves that a property has superior value for him/her, will request that the same property be given to him/her provided the he/she pays the price of the property belong to the other party based on the value of the property on the date of the transfer. [217] After March 2010, the respondent continued his business ventures and acquired more assets in Turkey and British Columbia. These business ventures and property acquisition's are discussed in more detail elsewhere in these reasons.

2. Positions of the Parties [218] On those facts, the respondent argues that the Marriage Agreement is fully determinative of all issues relating to the division of property. Specifically, he says its terms provide that all of the property and debts in his name are his and property and debts in the claimant's name are hers. Relying on the expert evidence, he argues that those terms are valid and enforceable under Turkish law, which he says is the applicable law to determine the property issues. [219] The respondent disputes this Court's jurisdiction to vary the terms of the Marriage Agreement. Alternatively, and in any event, he argues that the application of the family law legislation in British Columbia supports a division of assets 100% in his favour. [220] The claimant argues that given the circumstances in which the marriage was signed, it is invalid and unenforceable. Contrary to the respondent, she argues that this Court properly does have jurisdiction over the property claims and British Columbian law should apply. Like the respondent, she says that the application of the family law legislation in British Columbia supports a finding of unequal division of property. However, she says that any re-apportionment should be made in her favour.

3. Issues [221] In the circumstances and given the position of the parties, the issues to be determined are: a) Does Turkish law or British Columbian law apply; b) If British Columbian law applies, is the Marriage Agreement governed by the terms of the FLA or by the terms of its predecessor, the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA] which was in force when the Marriage Agreement was signed; c) Is the Marriage Agreement binding under the proper law; d) What property is governed by the Marriage Agreement; and e) Does the applicable law provide for division of property other than as contemplated in the Marriage Agreement?

4. Discussion and Analysis A. Choice of Laws: Turkish or British Columbian law? [222] Each of the parties adduced expert evidence of Turkish law regarding the validity and enforceability of the Marriage Agreement under Turkish law. However, that evidence is only relevant if Turkish law applies. [223] That issue can be determined by reference to ss. 106 - 108 of the FLA that governs jurisdiction and choice of law in family law proceedings. [224] As the starting point, s. 108 sets out three choice of law rules, including at ss. 108(3) - (6) as follows: (3) Subject to subsection (4), if spouses make an agreement respecting the division of property or debt, the substantive rights of the spouses in a proceeding under this Part are determined by the agreement. (4)The enforcement of an agreement under subsection (3) is subject to any restriction that the proper law of the relationship places on the ability of spouses to determine the division of property or debt by agreement. (5)Subject to subsection (3), if the spouses' first common habitual residence during the relationship between the spouses was in a jurisdiction in which a regime of community of property applies, property owned or acquired and debt owing or acquired during the relationship between the spouses that is property or debt to which the regime of community of property applies must be divided at the end of the

relationship between the spouses according to that regime of community of property. (6)If neither subsection (3) nor (5) applies, the substantive rights of spouses in a proceeding under this Part must be determined according to the proper law of the relationship. [Added emphasis.] [225] Those rules are to be applied in a "hierarchical manner", the first step in the hierarchy being the rule set out in s. 108(3): "if the parties have made an agreement respecting the division of property, the substantive rights of the parties are governed by the agreement": Jiang v. Shi, 2017 BCCA 276 at paras. 31 - 34. [226] In this case, by way of the Marriage Agreement, the parties have made an agreement respecting the division of property. Pursuant to the hierarchy set out in s. 108, that agreement governs the rights of the parties, however, subject to any restrictions of the "proper law of the relationship": FLA, s. 108(4). [227] Accordingly, the next issue to determine is the "proper law of the relationship". In that regard, s. 107 applies. It states: 107 The proper law of the relationship between the spouses for the purposes of section 108 [choice of law rules] is (a) the internal law of the jurisdiction in which the spouses had their most recent common habitual residence, (b) if the jurisdiction under paragraph (a) is outside Canada and is not the jurisdiction most closely associated with

the relationship between the spouses, the internal law of the jurisdiction that is most closely associated with the relationship between the spouses, or (c) if the spouses did not have a common habitual residence, the internal law of the jurisdiction in which the spouse making an application for an order under this Part was most recently habitually resident. [228] In this case, the parties most recent common habitual residence was the Biddesden Home in West Vancouver. Section 107(a) applies such that the internal law of British Columbia is the proper law to apply in determining the validity and enforceability of the Marriage Agreement. [229] In sum, issues relating to the division of property will be determined by the Marriage Agreement, subject to any restrictions imposed by the laws of British Columbia. The next question is: Which law of British Columbia applies - the FLA or the FRA? B. Does the FRA or the FLA apply? [230] The Marriage Agreement was signed on March 2, 2010, prior to the enactment of Part 5 of the FLA respecting property division, and at that time, the FRA was in force. Section 252 of the FLA contemplates such situations. It provides: 252 (1)This section applies despite the repeal of the former Act and the enactment of Part 5 [Property Division] of this Act. (2)Unless the spouses agree otherwise, (a)a proceeding to enforce, set aside or replace an agreement

respecting property division made before the coming into force of this section, or (b)a proceeding respecting property division started under the former Act must be started or continued, as applicable, under the former Act as if the former Act had not been repealed. [Added emphasis.] [231] I am satisfied that s. 252 of the FLA applies in this case such that the validity and enforceability of the Marriage Agreement are governed by the relevant provisions of the FRA. I now turn to that consideration. C. Is the Marriage Agreement Binding on the Parties? [232] As a general principle, "courts should respect private arrangements that spouses make for the division of their property on the breakdown of their relationship": Hartshorne v. Hartshorne, 2004 SCC 22 at para.

9. There is an exception to that deference, however, based on fairness to be assessed by reference to the parties' expectations at the time the agreement was made, and whether those expectations were borne out by the time the marriage had broken down: Xie v. Yuan, 2020 BCCA 45 at paras. 16 - 18. [233] However, a pre-condition to that assessment presumes the absence of duress, coercion, and undue influence: Hartshorne at para.

44. As noted by the Court in Xie at para. 19: " provided there is no indication of duress, coercion or undue influence in the making of the agreement, the Court should focus on the time that has elapsed between the making of the agreement and the breakdown of the marriage to determine whether the agreement has become unfair as a result of unforeseen consequences". [Added emphasis.] [234] In this case, it is difficult to conclude that the claimant had sufficient information to adequately form an informed expectation of the respondent's financial situation or what she was giving up by signing the Marriage Agreement. [235] First, the Marriage Agreement itself contains no financial information regarding the respondent's income, assets, or debt obligations. While it may have been reasonable for the claimant to conclude that the respondent was a person of means, without any confirmation of his financial status, she could not have known with any certainty the specifics of his financial position. There is no suggestion that she was privy to any of that information. [236] Second, any legal advice that she may have obtained, either from Mr. Tunay or the notary, was in the presence of the respondent. Mr. Tunay was the respondent's lawyer. Regarding his advice, given the time that has elapsed since the Marriage Agreement was signed, it is exceedingly difficult to accept that Mr. Tunay had

any specific recall of a seemingly routine transaction that transpired 13 years ago. [237] The fact that he purports to recall the claimant's demeanor from that long ago detracts from his credibility. [238] Regardless of Mr. Tunay's advice, there is no dispute that the claimant did not receive any independent legal advice. Without independent advice, I cannot conclude that she was aware of what her entitlement may have been absent from the Marriage Agreement. The five days she had from the time the respondent asked her to sign the agreement to its execution did not afford her adequate time to obtain legal advice regarding any entitlement she may have given up by signing the agreement. It is not even clear she had access to a lawyer or notary who could give her that advice. [239] Based on the above, I conclude that the claimant did not have any properly informed expectations of the circumstances, or the entitlement that she may be foregoing, when the Marriage Agreement was signed. She simply did not have the basic information she required on which to base her expectations. [240] I have also considered the other circumstance in which the Marriage Agreement was signed, that is, the threats made by the claimant's father. [241] As noted, the respondent does not accept that any such threats were made, but were concocted by the claimant and her mother to bolster her claim in this

action. He argues that the claimant's mother was an incredible and unreliable witness and that her evidence should not be accepted. [242] I do not agree with that assessment. [243] I accept that as the claimant's mother, Ms. Celik was not a disinterested witness. I also accept the possibility that Ms. Celik may directly benefit from a finding that the Marriage Agreement is invalid or otherwise unenforceable. However, absent evidence that suggests otherwise, I am not satisfied that interest is, by itself, enough to discount the veracity or credibility of Ms. Celik's testimony. [244] The respondent argues that her evidence does suggest otherwise. For example, the respondent argues that the "superlative and over-exaggerated phrasing" she used suggested that her evidence is "heavily skewed and detrimentally biased". For example, he notes that when speaking about her former husband, Ms. Celik testified " He always used violence and he always said that I will kill you all. There will be a massacre". By contrast, when cross-examined on the level of violence, Ms. Celik testified that he would slap them. On re-direct, she testified that her former husband would batter her, but that the claimant got between them and he battered her even more. [245] I do not take her use of the word "always" in that context to mean that the physical violence or even the threats of physical violence

occurred every day, but that the violence was consistent and pervasive in the home. I accept that is the case. It is consistent with the undisputed evidence that no contact had been made to prevent her former husband from contacting the family and, more generally, with his arrest for gun violence. It is also consistent with Ms. Celik's reply evidence that the claimant's attempts to diffuse violence against her mother were met with more violence. [246] Moreover, I take the respondent's argument to suggest that a "slap" does not rise to the level of violence to which both Ms. Celik and the claimant testified. I do not accept that to be the case. [247] As another example of her purported exaggeration, the respondent notes that with respect to her supervision of M., Ms. Celik testified she was "always" there when needed. To question her credibility, the respondent points to one incident on November 10, 2019, in which it appears that the claimant entered the home with M. alone. Even accepting the respondent's view of that incident, in my view, it is a wholly insufficient basis on which to discount Ms. Celik's evidence as incredible. [248] Having observed Ms. Celik and having heard her evidence, I am satisfied that she made a sincere attempt to give her evidence to the best of her recollection and in a manner that reflected the truth. I accept her evidence, including with respect to

the violence that her former husband perpetrated against the family and the threats that he made on learning that the claimant was living with the respondent. [249] I also accept the claimant's evidence that her motivation in getting married when they did was her fear of her father's threats of harm. Based on her past experiences with her father, and his criminal conviction, she had every reason to believe that he would, in fact, make good on his threats to harm, or even kill her. The fact that the threats were relayed to her by her mother does not make them less real. [250] It may be, as the respondent argues, that he did not directly coerce the claimant to sign the Marriage Agreement. However, his suggestion that the claimant could have chosen to live with her mother is illusionary. At the time, the parties had been dating for five years, and cohabitating in a marriage-like relationship for six months. The suggestion that she would have simply returned to live with her mother ignores the reality of the stage of the relationship they were in. From the claimant's point of view, the only real option to address her father's threats was marriage; signing the Marriage Agreement was a pre-condition to marriage imposed by the respondent. In that way, she had no choice but to sign the Marriage Agreement. [251] I find that the father's threats of violence, combined with the

respondent's requirement that she sign the Marriage Agreement, amount to duress. Collectively, that duress, the lack of adequate financial disclosure, and the absence of any independent legal advice are sufficient to invalidate the Marriage Agreement. That being the case, subject to s. 65 of the FRA, each spouse is entitled to an undivided half interest in the family assets as a tenant in common: FRA, ss. 56(1) and (2). [252] In any event, given my conclusion that the claimant did not have sufficient information on which to base her expectations, it is appropriate to consider whether it would be unfair to enforce the Marriage Agreement: FRA, s. 65. [253] Either conclusion requires an assessment of the fairness of the division of family assets. To resolve that issue, consideration must be to the family assets to be divided. [254] In terms of the valuation date for the family assets, the default is the date of trial: Wallace v. Pichichero, 2021 BCSC 1642 at para. 48, citing S.M.S. v. D.M.T., 2015 BCSC 1335 at para.

27. Notwithstanding that default, as the court emphasized in S.M.S., "it appears there is discretion to fix another date, not earlier than the triggering event, if that is necessary in order to achieve fairness". The Court at para. 27 gave the following as an example of a situation in which a different value date may be necessary to achieve fairness: Where it is established that one spouse has disposed of a family asset or caused it to decrease significantly in value it is open to the court to order compensation for that loss. Such a compensation order will be based on the loss in value and will necessarily involve determining the value of the asset prior to the loss. [255] In this case, since the date of separation, the value of some of the family assets has been decreased by court ordered distributions or disposed of by sale. Most, but not all, of those distributions have been made in favour of the claimant. [256] An order for compensation to account for those interim distributions and sales will be required, and like the example in S.M.S., will necessarily involve determining the values prior to the interim distributions. This is an appropriate case in which to value the assets as of the separation date. D. What are the "family assets" to be divided? "Family Asset" [257] Section 58 of the FRA defines "family assets". They include: a) pursuant to s. 58(2), "[p]roperty owned

by one or both spouses and ordinarily used by a spouse or a minor child of either spouse for a family purpose"; b) pursuant to s. 58(3)(a), an interest in trust or corporate property if the trust or corporation owns property that would be a family asset if owned by a spouse; and c) pursuant to s. 58(3)(e), a venture to which a spouse has directly or indirectly contributed. [258] Pursuant to s. 59, property owned by one spouse but used primarily for business purposes, and for which the other spouse did not make a direct or indirect contribution to the acquisition or the operation of the business is not a family asset. [259] Pursuant to s. 59(2), an "indirect contribution includes savings through effective management of household or child rearing responsibilities". [260] In Haring v. Haring, 2011 BCCA 65, the court discussed the meaning of "ordinarily used for a family purpose" as directly contemplated by s. 58(2) and by the reference to "family asset" in s. 58(3)(a). As summarized, the case authorities at para. 32 provide that: a) " 'Ordinary use' means use in the course of a customary mode of life of the family, rather than special, occasional, or casual use"; b) "Occasional or incidental use of an asset, including capital property, does not 'taint' an asset so that it becomes a family asset"; and c) "However, where both the income and the capital of an asset are used for a

family purpose, the asset may be considered a family asset." [Citations omitted.] [261] At para. 33 of Haring, the court gave specific consideration to the issue of when a capital asset will be considered to be a family asset: In Evetts v. Evetts, 1996 CanLII 2712 (BC CA), [1996] B.C.J. No. 2614 (C.A.) at para 23, Justice Lambert summarized some guidelines for the determination of whether a capital asset will be considered to be a family asset: . . . The fact that income from a capital asset is used occasionally for a family purpose does not of itself make the capital asset a family asset (Stuart v. Stuart). The fact that capital from the asset is used from time to time, when required, for a family purpose may be an indication that the asset is a family asset (Brainerd v. Brainerd). But the distinction between income being used for a family purpose and capital being used for a family purpose is not, in itself, determinative (Starko v. Starko). So the fact that only income is used for family purposes does not necessarily mean that the capital asset itself is not used for a family purpose. The use of the asset to provide financial security and protection against erosion of income or other family misadventure in the future may constitute a present ordinary use for a family purpose (Tezcan v. Tezcan; Folk v. Folk). The fact that the words "ordinarily used...for a family purpose"

are the governing words in the statute means that the use pattern must be examined in each case to determine whether, in the ordinary course, the present use commitment to meet a present or future need includes a use for a family purpose. Ordinary use for a family purpose is not inconsistent with ordinary use for other purposes." The Undisputed Family Assets [262] In this case, the parties have prepared Scott Schedules identifying the property that each says falls within the definition of "family asset". Common to both parties' schedules are the parties' savings, chequing, and investment accounts (the claimant does not include their debts; the respondent does), the parties' vehicles, the sale proceeds of the Biddesden Home, and the value of the respondent's interest in iGenius. There is disagreement with respect to the valuation of the vehicles and the shares in iGenius. [263] The only evidence regarding the value of the vehicles is list prices for similar vehicles and the parties' own estimates. Doing the best I can, I value each of the vehicles at the mid-point of the values offered by the parties. They are: a) Bentley (currently used by the respondent): $160,000 b) Range Rover (currently used by the claimant): $82,500 c) Jeep Wrangler (currently used by Z.) $36,500 [264] A BMW motorbike was sold by court order for $15,000. [265] By a valuation report dated January 15, 2021

(the "Business Valuation Report"), Kiumars Ghanavizchian of Blair Mackay Mynett, an independent chartered business valuator, valued each of the entities in which the respondent has an interest, including iGenius. Mr. Ghanavizchian also prepared a Guidelines Income Report. As I discuss in more detail below, the claimant challenged the conclusions set out in the Guidelines Income Report, primarily on the basis of her allegation that the respondent has undisclosed income that Mr. Ghanavizchian did not consider. [266] Notwithstanding the challenge to the Guidelines Income Report, on her Scott Schedule, the claimant records $272,000 as the value of iGenius, as set out in the Business Valuation Report. In any event, as discussed more fully in respect of the Guidelines Income Report, I reject the allegation of undisclosed income, and accept the values set out in both reports. [267] The respondent does not dispute that iGenius had a value of $272,000 in January 2021. However, he argues that circumstances have changed since then including what he argues is the "almost non-existent" likelihood of recovery of approximately $225,000 now owing to it by Confidex and West Quay, the latter of which he suggests is "on the verge of bankruptcy". Taking that into account, he argues that iGenius' value is closer to $85,000. [268] I reject that submission. As I describe below, the respondent has

continued West Quay's business as his primary source of income, presumably intending to earn a profit. He argues that it is reasonable for him to do so. In that light, his assessment of its inability to repay amounts owing to iGenius is inconsistent, at best. I am unable to conclude that iGenius will not be able to recover the amount due from West Quay. [269] I accept that iGenius is appropriately valued at $272,000. The Disputed Family Assets [270] The respondent disputes that some of the property included on the claimant's schedule are "family assets". They are: (a) the Spousal Loan Account; (b) the respondent's interest in the K. Family Trust (and its interest in Certus); (c) the respondent's interest in Butcherson / West Quay; (d) the respondent's property in Turkey including real property, a boat, and bank accounts; (e) TruWorks and Wishland; (f) the Gostick Properties and the West Esplanade Properties; (g) the Homer Street Condo; and (h) an SYZ Bank account in N.O.'s name. (a) The Spousal Loan Account [271] During the marriage, the parties used the funds in the Spousal Loan Account to pay for family expenses. [272] Given its use for the payment of family expenses, the Spousal Loan Account is a family asset. As of the separation date, $597,372 was in the Spousal Loan Account. (b) Interest in the K. Family Trust (and its interest in Certus) [273] The K. Family Trust was

created by trust agreement dated June 8, 2017, between N.O. as settlor and the respondent as trustee. The assets of the K. Family Trust are a 100% interest in Confidex (an inactive company with no assets) and a 1% share in Certus. Certus is the owner of the Gostick Properties and the West Esplanade Properties. [274] Since its creation in 2017, the K. Family Trust has made one distribution, that being a distribution of a $135,000 dividend received from Certus to the claimant in 2017. The trust has made no other distributions of income or capital. [275] As the court noted in Evetts v. Evetts, [1996] B.C.J. No. 2614 (C.A.), 1996 CanLII 2712 (BC CA), even occasional use of income from a capital asset for a family purpose does not of itself make the capital asset a family asset. In Devine v. Devine, 2012 BCCA 509, the court found that the use of dividends from a company on two occasions during the eight year marriage could not reasonably be said to constitute "ordinary use" as contemplated by s. 58(2): Devine at para. 39. [276] The one-time distribution of income, even if used for family purposes, is not enough to make the K. Family Trust (and its 1% share of Certus) a family asset. It is not a family asset. (c) The Respondent's Interest in Butcherson / West Quay [277] Prior to Certus' purchase of the beneficial interest in the Gostick Properties in 2017, Butcherson (later West

Quay) leased those premises to iGenius, thereby generating revenues, although minimal net income. [278] Commencing in 2022, West Quay leased the Gostick Properties premises from Certus for use in its shared office space business. Although it has generated some revenues since then, continues to experience significant losses. [279] However, to the extent that Butcherson / West Quay had earned an income, I accept that income would have been available to the respondent for the payment of personal and family expenses. The respondent's interest in Butcherson / West Quay is a family asset. [280] As of January 15, 2021, West Quay had a fair market value of $121,000. (d) Turkish Assets [281] In Moradkhan v. Mofidi, 2013 BCCA 132, the court \ summarized the approach taken by B.C. courts regarding foreign property division and evaluation under the FRA: [52] The general rule is that domestic courts have no power to make orders pertaining to rights and title to lands not situated within the jurisdiction: [citation omitted] Duke v. Andler, 1932 CanLII 32 (SCC), [1932] S.C.R. 734, [1932] 4 D.L.R. 529; Tezcan. However, domestic courts do have the power to consider whether foreign property is a family asset under the Family Relations Act, and can assess the respective interests of the parties in order to account for the foreign property's value: Laurence v. Laurence (1991), 1991 CanLII 1705 (BC

CA), 56 B.C.L.R. (2d) 254, 33 R.F.L. (3d) 27, and Pocock v. Pocock (1992), 1992 CanLII 366 (BC CA), 20 B.C.A.C. 55, 43 R.F.L. (3d) 210. [53] The approach taken in most cases is for the trial judge to value the foreign property, and then offset the value using the domestically held property. In some cases, the offset may be in the form of a cash payment [citation omitted], while in others the court may grant an additional interest in jointly held property [citation omitted] (see Liu v. Liu, [1995] B.C.W.L.D. 830 (trial judge granted wife 100% interest in Vancouver family home to compensate for husband's real estate interests held in Taiwan)). [282] In this case, property in Turkey consists of: real property including a condominium, the former family home and adjoining lands, another house; a boat; and funds in various bank accounts. [283] Given the parties' residence in Canada since March 2012, I am unable to conclude that they ordinarily use either the real estate or the boat in the course of a "customary mode of life of the family". They are not family assets. [284] As of the date of separation, $697,061 remained in those bank accounts. Since then, the respondent has used $485,662 for payment of various expenses, including for the payment for various of the claimant's expenses The remaining balance, roughly $215,000 ($697,061 - $485,662 = $211,399), is a family asset. (e)

TruWorks and Wishland [285] Despite N.O.'s legal ownership of TruWorks and Wishland, the claimant claims both entities, and their incomes, as "family assets", broadly asserting that the respondent is their true owner. The broad nature of the claim is summarized in the claimant's written submissions in which she challenges the suggestion that N.O. had $2 million to loan or gift to the respondent in 2012. She claims: [ N.O.] has never had that amount of money neither before [the respondent] and I moved to Canada nor later on after we moved to Canada. Nothing earned from website membership sales, none of the revenue TruWorks made, none of the funds accumulated in Butcherman Trust accounts, none of the funds used to purchase Esplanade and Gostick commercial units and Yaletown condo belong to N.O. All those funds earned via sale of website memberships, all of them earned after 2005 after [the respondent] and I started marriage like relationship. Court should determine that all the assets transferred in N.O.'s name are family assets and should be included property division. All the properties purchased by using those funds are family property. [286] Simply put, the claimant alleges that all of N.O.'s business operations and earnings, starting with the establishment of Tan Grafik in 1979 to the winding down of TruWorks and Wishland in 2019, belonged to the respondent. More bluntly,

she claims that N.O.'s ownership interest in those business operations was a sham. [287] In my view, that claim is not supported on the evidence, but rather is based on speculation, hearsay, and bald assertions with no evidentiary foundation. [288] The claimant challenges N.O.'s ownership interest, which dates back to Tan Grafik, a company she established in 1979 when the respondent was 9 years old and that was wound up in 2000 when he was 20 years old. Despite N.O.'s business experience and acumen, the claimant nonetheless attributes Tan Grafik's success in securing the "Sextronix" domain name and establishing the subscription fee model in the adult website industry to her 19-year old son. [289] To support that claim, the claimant draws on what she characterizes as the inconsistencies in the evidence regarding the year in which the respondent left Tan Grafik to serve in the military (1997 or 1999) and the date that Tan Grafik acquired the domain name "Sextronix.com" (1998 or 1999). It is unclear to me how those relatively minor inconsistencies (relating to events that occurred some 25 years ago) are conclusive proof of the respondent's interest in the adult website business established by Tan Grafik. It is clear that by the late 1990s, Tan Grafik had the resources and the infrastructure, and N.O. had the relevant business experience and expertise, to establish and develop the

adult website business using the subscription fee model created by N.O. [290] While there is no dispute that the respondent's initial website design was the impetus for the development of that model, at 18 or 19 years old, he did not have the resources and was unlikely to have the know-how to create the business model that ultimately led to its success. There is no evidence that he did. There is ample evidence that N.O. had both the resources and the expertise. The respondent's involvement, even if an important one, was limited to his technical work supporting Tan Grafik's computer systems as an employee. [291] I find that that the acquisition of the Sextronix.com domain name, and the development of the adult website business using the subscription fee model, is solely attributable to N.O.'s vision and Tan Grafik's resources. [292] The claimant alleges, however, that N.O. "retired" [6] from Tan Grafik, presumably leaving its operations to the respondent. The claimant asserts: After [the respondent] returned from [the] military, [he] continued his website business and N.O. retired at that time. N.O. receives retirement pension since Tan Grafik closed. [293] The basis of that assertion appears to be the double hearsay evidence of Ms. Celik that N.O. told her that after serving in the army, "[the respondent] came and took over the business". That double hearsay evidence is not

admissible for its truth. In any event, it is completely contradicted by N.O.'s establishment of Kensville UK and, later, Kensville Cyprus, both of which carried on the adult website business that originated at Tan Grafik. I accept N.O.'s evidence that she remained actively involved in the continued operations of those businesses. I also accept that the respondent's involvement with those business operations was limited to the website maintenance services provided primarily through PowerNet. The claimant has failed to produce any evidence to the contrary. [294] The claimant's evidence that the respondent told her in 2005 that he had between 70 to 80 websites operating under the umbrella name Sextronix is not compelling. Even assuming he made that statement (I make no finding on that point), there is no dispute that he was involved with Sextronix by the provision of PowerNet's website maintenance services. In my view, the statement attributed to the respondent is a wholly insufficient on which to conclude that he, not N.O., was the owner of that business. [295] With respect to TruWorks, the claimant baldly asserts that "TruWorks is a money holding company, only purpose is helping [the respondent] to evade high income taxes in Canada". There is no evidence to support that assertion. [296] As Ms. Ozkaran testified and as disclosed on TruWorks' financial statements, TruWorks'

ability to generate revenues was dependent on various vendors and service providers other than iGenius, including its website hosts and affiliates. There is no evidence, nor does the claimant suggest, that those relationships were also a sham. I find that TruWorks (and Wishland) were operating entities. [297] The claimant's argument also appears to be based on the structure under which TruWorks operated, including its use of related agency companies who collected fees on its behalf, her understanding that TruWorks, Wishland, iGenius (and their predecessors) operated in a manner to minimize tax payable, and the fact that N.O. and Butcherman Trust (to which TruWorks paid dividends) held accounts at SYZ Bank in Switzerland, a jurisdiction known for its privacy laws. She suggests that those circumstances give rise to an inference of a sham. [298] I do not agree. There is no evidence to suggest that there was anything untoward or sinister in the manner in which TruWorks, Wishland, or iGenius operated. I do not accept that there was. [299] First, Ms. Ozkaran explained, and I accept, that the agency companies were required given the number of credit card transactions processed by TruWorks. As disclosed on TruWorks financial statements, I accept that the funds the related agency companies collected were paid to TruWorks. Second, businesses and individuals structure their affairs for a

myriad of reasons, including to minimize taxes payable. There is nothing untoward or deceitful about their doing so. Finally, the suggestion that holding a Swiss bank account, by itself, gives rise to an inference of improper conduct is simply unwarranted. There is no merit to the claimant's reliance on these factors as evidence of the respondent's ownership of TruWorks or Wishland. It is pure speculation. [300] It was open to iGenius to provide services to TruWorks and Wishland (and for PowerNet to do the same for Kensville UK and Kensville Cyprus). The fact that iGenius only provided services for entities owned by N.O. is an insufficient basis on which to conclude that the respondent had any form of ownership interest in those entities. The relationship is consistent with how they had divided their expertise (N.O. on the business operations side and the respondent on the website development and maintenance side) since the days at Tan Grafik. Without any evidence to the contrary, I am satisfied that the related but distinct relationship between N.O.'s companies and the respondent's company is not proof of his interest in TruWorks or Wishland. [301] Finally, I do not accept that, regardless of legal ownership, the respondent had de facto control of TruWorks or Wishland, in respect of their decisions to stop paying iGenius' invoices or wind down their business operations or at

all. As set out in more detail in Part VIII. of these reasons, I find that there were legitimate business reasons for them to stop making payments to iGenius and that Ms. Ozkaran made those decisions with input from N.O. There is no basis to the suggestion that the respondent directed any aspect of TruWorks' or Wishland's operational decisions. [302] That N.O. could not recite her specific ownership interest in Certus or could not recall the historical balances in her accounts is an insufficient basis on which to conclude that she does not exercise control over those matters. Indeed, it may be that N.O.'s involvement in TruWorks' operations, and in her general business affairs, had diminished over the years. However, having employed Ms. Ozkaran and relying on various professionals both in Canada and abroad, there was no need for N.O.'s day-to-day involvement. I accept that she relied on Ms. Ozkaran, not the respondent, to assist her in those operations. I also find that the respondent's involvement was limited to accompanying his mother to various appointments and to provide English translation for her when required. [303] Neither TruWorks nor Wishland nor their revenues or profits are family assets. (f) Gostick Properties & West Esplanade Properties [304] Certus purchased the Gostick Properties and the West Esplanade Properties with funds loaned to it by N.O.. N.O. obtained

those funds on the collapse of the Butcherman Trust which, in turn, had received dividends from TruWorks. [305] Following on her claim that the respondent, and not N.O., was the true owner of TruWorks, the claimant also claims the Gostick Properties and the West Esplanade Properties as family assets. [306] As I have concluded that N.O. is, in fact, the true owner of TruWorks and entitled to its proceeds, the claimant's argument fails. [307] Neither the Gostick Properties nor the West Esplanade Properties are family assets. (g) Homer Street Condo [308] In March 2018, N.O. purchased the Homer Street Condo and gifted it to the claimant. Based on the allegation that the respondent, and not N.O., was the true owner of TruWorks and its proceeds, the claimant claims the Homer Street Condo as a family asset. Having rejected that allegation, this claim fails. [309] Moreover, the parties did not live at, or otherwise use, the Homer Street Condo for a family purpose, nor was it used as security to obtain funds for a family purpose. The claimant made no contribution to the preservation or maintenance of the property. [310] The Homer Street Condo is not a family asset. (h) SYZ Bank Account Held by N.O. [311] This is another claim relating to the allegation that the respondent, and not N.O., was the true owner of TruWorks and its proceeds. For the same reasons set out above, this argument

fails. [312] N.O.'s SYZ bank account is not a family asset. Summary of Family Assets [313] Based on the above, I find that the following property are "family assets": Family Asset Subtotals Total Value Bank and investment accounts HSBC chequing account (respondent) $17,382 HSBC savings account (respondent) 127,711 HSBC chequing account (claimant) 5,673 HSBC investment account (respondent) 201,993 Spousal Loan Account 597,372 Turkish bank accounts 211,399 $1,161,530 Less: HSBC Mastercard (respondent) (14,513) AMEX (respondent) (15,685) Costco credit card (6,252) (23,946) Personal Property Jeep Wrangler 36,500 Less: Loan (16,299) 20,201 Bentley 160,000 Range Rover 82,500 BMW Motorbike 15,000 277,701 Biddesden Home Net Sales Proceeds 2,676,338 Holdback paid to Kinman & Associates in trust for the claimant pursuant to the Order of Justice Basran dated May 14, 2021 64,000 Holdback paid to FMEP on sale 409,217 3,149,555 Respondent's Interest in Related Entities iGenius $272,000 West Quay 121,000 393,000 Total Value of Family Assets $4,957,840 E. Is Equal Division of Family Assets Unfair? [314] I have concluded that the Marriage Agreement is invalid. That being the case, subject to s. 65 of the FRA, each spouse is entitled to an undivided half interest in the family assets as a tenant in common: FRA, ss. 56(1) and (2). [315] However, where the standard division of family property

would be unfair given certain enumerated factors, the court may order that the property be re-apportioned. The court is granted the same discretion in determining whether the terms of a valid marriage agreement would be unfair: FRA, s. 65(1). [316] Sections 65(1)(a) to (f) set out the factors to consider in determining unfairness. They are: (a) the duration of the marriage, (b) the duration of the period during which the spouses have lived separate and apart, (c) the date when property was acquired or disposed of, (d) the extent to which property was acquired by one spouse through inheritance or gift, (e) the needs of each spouse to become or remain economically independent and self sufficient, or (f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse. [317] By contrast with the more quantitative analysis contemplated by the FLA, the FRA requires more of a qualitative analysis that focuses on the nature of the property and the relationship between the parties: Bradley v. Callahan, 2017 BCSC 2266 at paras. 11 - 12. [318] In this case, an equal division of family assets will result in each party's entitlement to $2,478,920 ($4,957,840 / 2), subject to the deduction of interim payments and other distributions that have been made. The question is, in light of the s. 65(1) factors,

would that distribution be unfair? [319] I turn to that analysis. Section 65(1)(a): Duration of the Marriage [320] Notwithstanding the period of the parties' cohabitation, under the FRA, "marriage" includes only legal marriage. Here, the marriage lasted 8 ½ years. While not short, it was not a long-lasting marriage. [321] The court has found unequal division to be unfair in marriages in the same range. For example, in Arnold v. Arnold, 2009 BCSC 1384, the husband brought substantially all of the assets into the 7-year marriage. The court ordered 2/3 re-apportionment of the matrimonial home in favour of the husband having regard, in particular, to the circumstances relating to its acquisition, preservation, maintenance and improvement. [322] In Kolasky v. Kolasky, [1991] B.C.J. No. 3765, 1991 CanLII 1563 (BC CA), the court upheld a re-apportionment of the matrimonial home to 75% / 25% in favour of the owning spouse after a 7-year marriage. [323] While the parties' 8 ½ year marriage in this case may not, by itself, be sufficient to justify an unequal division of family assets, it is not so long so as to preclude that outcome. That is particularly true when combined with the other more significant factors that I discuss below. Section 65(1)(b): The duration of the period during which the spouses have lived separate and apart - and - Section 65(1)(e): The needs of each spouse to

become or remain economically independent and self-sufficient [324] The concepts in s. 65(1)(e) and (f) of the FRA have a similar focus to the entitlement to compensatory spousal support in the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). As a result, the principles from Moge v. Moge, [1992] 3 S.C.R. 813 are relevant to a determination under s. 65(1)(e) and (f): Toth v. Toth, 13 B.C.L.R. (3d) 1 (1995), 1995 CanLII 1917 (BC CA) . In Toth, the court said: [39] The important first question will be whether in the context of the division of family assets it can be said, in the words of s. [65(e)], that the allocation of child­raising and housekeeping functions more heavily, or wholly, to one spouse has in the particular case resulted in that spouse being less financially "independent" and "self-supporting" on the breakup of the marriage than would be the case had those tasks been wholly undertaken by the other, or equally shared between them. Only to the extent that it can be said to be likely that the more domestically-burdened spouse would, but for the unequal sharing of that burden, have acquired employment advantages no longer available can this factor play a part in the allocation or apportionment of family assets. [325] I discuss the effect of the claimant's role in the marriage on her employment opportunities in detail under the consideration of her claim for spousal support.

In brief, I find that she forewent the opportunity to establish herself independently of the respondent. [326] However, it is also relevant that 3 ½ years elapsed between the date of separation and the commencement of the trial. It has now been almost 6 years from the date of separation. Nonetheless, the claimant has taken no steps to achieve the self-sufficiency that would reduce the need for a division of property in her favour. [327] Together, ss. 65(1)(b) and (e) are neutral on this analysis. Section 65(1)(c): Date property was acquired [328] The respondent had acquired significant assets by the time the parties met in 2005 and then by March 2010. With the exception of the boat in Turkey, all of the Turkish assets which the claimant counts as family assets were acquired before the marriage. [329] In May 2011, the respondent transferred approximately $2.5 million (US) and $2.9 million from his pre-marriage savings in Turkey to Canada. From those funds, he purchased the St. Georges Property and was able to make a down payment on the Biddesden Home. The Spousal Loan Account was opened with $1 million from the net sales proceeds of the St. Georges Property. The two most valuable Canadian assets were acquired with pre-marriage funds. [330] This factor militates significantly in favour of an unequal division of property in favour of the respondent. Section 65(1)(f): Any other

circumstances relating to the acquisition, preservation, maintenance, improvement or use of property [331] Section 65(1)(f) has been relied on to justify unequal division in varying circumstances including where: an asset was acquired solely through the efforts of one spouse, with minimal or no direct or indirect contribution from the other spouse: Johnstone v. Johnstone, [1981] BCJ No 2187,1981 CanLII 701 (BC SC); an asset was preserved wholly through the efforts of one spouse, without contribution from the other: Kopejtko v. Kopetjko, [1985] B.C.J. No. 1961, 1985 CanLII 852 (BC CA) and Day v. Day, [1981] B.C.J. No. 66, 1981 CanLII 748 (BC SC); an asset is maintained after separation solely through one spouse's efforts: Palmer v. Gutsche, [1998] B.C.J. No. 1269, 1998 CanLII 3876 (BC SC) (in that case, a house that was maintained after separation solely through the wife's efforts was re-apportioned 70% in her favour); and one spouse has paid the mortgage and improved the residential property post-separation (Olson v. Olson, [1995] B.C.J. No. 294, 1995 CanLII 1447 (BC SC); Watts v. Watts, [1996] B.C.J. No. 1490, 1996 CanLII 2492 (BC SC)). [332] While I do not discount the claimant's contributions to the home through her non-financial effort in the home, I have no difficulty in concluding that the respondent's financial contributions far outweighs the value of her work in the

home. It is also significant that his contributions continued well past the date of separation, when the respondent did not receive any benefit from her role in the home. [333] The respondent's contributions to the Biddesden Home, particularly post-separation, significantly favours the conclusion that an equal division of family assets would be unfair. Conclusion on Unequal Division of Family Assets [334] Having concluded that the Marriage Agreement is invalid, pursuant to s. 56 of the FRA, presumptively, each of the parties have an equal interest in the family assets. Having regard to all of the factors to be considered in s. 65, I find that the outcome would be unfair. [335] While I have taken into account all of the factors, I am most significantly guided by the respondent's pre-marriage acquisition of many of the assets and his sole contribution to their post-separation preservation. Those contributions are even more striking when compared to the fact that the claimant came into the marriage with nothing. In Venables v. Venables, 2018 BCSC 1736, aff'd 2019 BCCA 281, Justice Marchand, as he then was, considered similar circumstances, albeit under the s. 95(2)(i) of the FLA. Like s. 65 of the FRA, s. 95 of the FLA allows the court to order an unequal division of "family property". Notably, the test for unequal division under the FLA in Venables is "significant"

unfairness. [336] More specifically, s. 95(2)(i) allows the Court to consider "any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness". The consideration under s. 95(2)(i) is limited to factors that relate to the "economic characteristics of the spousal relationship": Singh v. Singh, 2020 BCCA 21 paras. 138-139. In my view, the similarity of that provision to s. 65(f) makes the decision instructive. [337] In the Venables case, Mr. Venables came into the marriage with assets of almost $300,000 and subsequently inherited over $160,000, much of which went into joint savings and became family property. On an equal division of family property, he would end up with one-half of the family property worth $236,345.50, plus his excluded savings of $92,889, for a total of $329,324.50. [338] By contrast, Venables came into the marriage with "no savings, a car loan, and some personal property of unknown value". On an equal division of family property, she would end up with one-half of the family property worth $236,345.50. [339] As the Court summarized at para. 126: "[i]f the family property were divided equally, as a result of their eight years together, Mr. Venables would largely be in the same financial position as when the parties began living together while Venables would be in a substantially better position." In part on

that basis, the Court concluded that an equal division of property would be "significantly unfair", as contemplated by s. 95 of the FLA. That Court of Appeal upheld that decision. [340] In this case, if the family assets are divided equally, the respondent will receive the equivalent of $2,478,920 ($4,957,840 / 2), less than ½ of the funds he had when the parties moved to Canada. The claimant, on the other hand, would be in a substantially better position than she was. I have no difficulty in concluding that result would be unfair. [341] However, there is one more important consideration on this analysis, which is my conclusion that the respondent may have assets that he has not disclosed. As set out in more detail in Part VIII. of these reasons, the evidence suggests that TruWorks paid licence fees in respect of domain names owned by the respondent. The respondent, however, has not disclosed any accounts, or provided any other information, regarding where those fees may have been paid. While I am unable on the evidence to ascertain the value of any such payments or accounts, the respondent's failure to disclose that account information is a factor that favours an increased distribution of family assets to the claimant. [342] Having considered all the above, in my view, the unfairness can be addressed by dividing the family assets on a 75% / 25% basis in favour of the

respondent. That division is subject to the deduction of interim payments and other distributions that have been made. [343] I will address how this division will be implemented in Part XI. of these reasons. VII. In Trust Claims [344] In addition to the claimant's assertions that various of N.O.'s property, including her interest in TruWorks and Wishland and her indirect interest in the West Esplanade Properties and the Gostick Properties (collectively, the "Alleged Trust Property"), are family assets, the claimant also asserts an "express, constructive, and/or resulting trust" against that property, both on her own behalf and as a "derivative" claim on behalf of the respondent. [345] In my view, none of those claims can succeed. A. Express Trust Claims [346] The well-established elements of an express trust were recently summarized in Ishrat v. Anwar, 2023 BCSC 1838: [220] An express trust is created where a person (a settlor) transfers legal title to a property to a transferee (the trustee) with the express intention that title is to be held for the benefit of another (a beneficiary). To establish an express trust, the settlor must use words indicating that the trustee is to hold title for the beneficiary. The three essential elements of an express trust are (i) certainty of intention, (ii) certainty of subject matter, and (iii) certainty of beneficiaries and objects of the

trust: Bradshaw v. Stenner, 2010 BCSC 1398 (CanLII), 2012 BCCA 296 at para. 135. [221] On the findings of fact set out in paragraphs 180 to 192 above, Nabeela's express trust claim must fail on the first element of the test, that is, an absence of certainty of intention. The case law indicates that certainty of intention is ascertained based on an examination of the settlor's words and acts, construed against the background facts, to determine the objective goal or aim of the transaction: Xu v. Hu, 2021 BCCA 2 at paras. 16-17; Virk v. Singh, 2022 BCCA 153 at para. 48. [347] Although intention is a matter of substance over form, it is not enough for the purported settlor to intend for another party to benefit; they must have intended for the other party to benefit on trust: Xu v. Hu, 2021 BCCA 2 at paras. 15 - 16. [348] In this case, the claimant's claim of an express trust, either in favour of herself or the respondent, fails on the first element of certainty of intention. There simply is no evidence that N.O. expressed any intention, direct or otherwise, to create a trust in respect of the Alleged Trust Property. [349] Notably, for the property for which N.O. did intend to create a trust, she did so expressly by retaining a professional trust company to establish the Butcherman Trust and naming the respondent, his spouse, her grandchildren, and later herself, as beneficiaries.

Clearly, N.O. was aware of the concept of a trust, had the resources to engage professionals to assist in creating a trust, and, in fact, had established a trust, with the necessary documentation to evidence her intentions. If she had intended to create a trust for the Alleged Trust Property, it is not clear why she would not have done so. [350] The onus of establishing each of the certainties lies with the party asserting the trust's existence: Xu at para. 13, citing McInerney v. Laass, 2015 BCSC 1708 at para.

36. The claimant has not met the burden of proving N.O.'s intention to create a trust, either in favour of her or the respondent, in respect of the Alleged Trust Property. [351] The claimant's claim for an express trust interest in the Alleged Trust Property is dismissed. B. Resulting Trust Claims [352] A resulting trust can arise in circumstances involving the gratuitous transfer of property. In J.L. v. B.L., 2015 BCSC 2052, the Court described the doctrine as follows: [101] A resulting trust arises by operation of law "whenever legal or equitable title to property is in one party's name, but that party is under an obligation to return it to the original title owner, or to the person who paid the purchase money for it": Waters, Gillen and Smith in Waters' Law of Trusts in Canada (4th ed., 2012) at 394. In such circumstances, the party holding the property has received it gratuitously and equity presumes that it was intended that the property would be held in trust for the transferor or the party who paid for it... [353] In this case, there is no evidence that either the claimant or the respondent transferred property to N.O. or any of her related entities [7], nor is there any evidence that either contributed to the acquisition of any of N.O.'s assets, including N.O.'s interest in TruWorks, Wishland, or Certus. [354] Simply, the facts do not disclose any transfers of property

to N.O., the essential element required to invoke the presumption of a resulting trust. The claimant's claim for a resulting trust in the Alleged Trust Property is dismissed. C. Constructive Trust Claims [355] Relying on the principles of unjust enrichment, the claimant seeks to impose a remedial constructive trust over the Alleged Trust Property on two bases: (a) on the basis of her alleged contributions to that property, and (b) derivatively, on the basis of the respondent's alleged contributions to that property.

1. Legal Framework [356] To succeed in a claim for unjust enrichment, the claimant must establish three elements: (a) that N.O. was enriched by the claimant or the respondent, (b) that either the claimant or the respondent were correspondingly deprived, and (c) that there was no juristic reason for the enrichment: Kerr v. Baranow, 2011 SCC 10 at para. 32. [357] Established categories that can constitute juristic reasons for the enrichment include the intention to make a gift, a contract, or a disposition of law: Kerr at paras. 41, 43. [358] If unjust enrichment is established, the Court may impose a constructive trust as a remedy, but only if a monetary award would be inadequate and the claiming party made a "sufficiently substantial and direct" contribution to the property in which the trust is claimed: Kerr at paras. 46, 50; Pettkus v. Becker, [1980] 2 SCR 834, 1980 CanLII 22 at 852.

2. Discussion and Analysis [359] In that legal framework, I will turn to the specific claims made in this case, starting with the claim made in respect of the claimant's alleged contributions to N.O.'s business enterprise. [360] In respect of that claim, I need not go further than the first element. Even on her evidence, the claimant was not involved in any of N.O.'s businesses in any capacity. Significantly, I have found that N.O., not the respondent, is the true owner of TruWorks and its income stream. Accordingly, the claimant's non-financial contributions to the respondent during the marriage are not relevant on this analysis. The claimant has not established that N.O. was enriched or received any benefit from her. [361] The remaining question is whether the claimant can succeed in her derivative claim for unjust enrichment on the basis of the respondent's alleged contributions to N.O.'s business enterprises. To succeed on that claim, the claimant has to prove both that: (a) N.O. was unjustly enriched by the respondent, entitling him to a remedial constructive trust, and (b) if so, the claimant has an interest in that constructive trust claim. [362] In my view, she cannot succeed on either. [363] First, there is no basis to support the assertion that N.O. was unjustly enriched by the respondent. To the extent that the respondent contributed to her adult entertainment

website business over the years, he did so either as an employee at Tan Grafik or indirectly through the PowerNet and iGenius services agreements. He was paid for his work as an employee; PowerNet and iGenius were paid for the services they provided under the services agreements. There is no evidence that any of those payments were made for less than fair market value. [364] Those payments are the juristic reason for any benefit that N.O. received. Any claim of unjust enrichment must fail. [365] Second, and in any event, a finding that N.O. was unjustly enriched would not necessarily give rise to the respondent's entitlement to a remedial constructive trust. Unlike express trusts and resulting trusts, which arise automatically by operation of law, remedial constructive trusts are discretionary and will only be awarded if other equitable remedies are inadequate: Kerr at paras. 46, 50; BNSF Railway Company v. Teck Metals Ltd., 2016 BCCA 350 at para. 43 [BNSF Railway]; Pettkus at 852. As the Court of Appeal has noted, a remedial constructive trust is therefore "a remedy, not a doctrine of substantive property law": BNSF Railway Company at para. 47. [366] Simply put, even if N.O. had been unjustly enriched by the respondent, it would not necessarily give rise to a property right to which the claimant could claim an interest. At most, a finding of unjust enrichment would give rise

to the respondent's possible interest in property on a constructive trust. [367] This Court has categorically denied derivative unjust enrichment claims brought against parents of a former partner on the basis of the former partner's "inchoate claim": Sidhu v. Sidhu, 2023 BCSC 449 at para. 211; Russo v. Russo, 2002 BCSC 554 at para. 26; Douglas v. Douglas, 2017 BCSC 921 at para. 111; Gaerber v. Gaerber, 2020 BCSC 2080 at para. 69. [368] Given the absence of authority or principle supporting a derivative unjust enrichment claim, extending the law to allow the claimant an interest in N.O.'s property on that basis would be akin to "entering uncharted waters without the compass of principle": Russo at para. 26; Douglas at para. 111. [369] I decline to do so. [370] The claimant's trust claims against N.O. are dismissed. VIII. The Parties' Income A. Legal Framework Determining Income [371] Pursuant to s. 16 of the Federal Child Support Guidelines, SOR/97-175 [Guidelines], a spouse's income is determined using the "total income" in that spouse's T1 general form, as may be adjusted in accordance with Schedule III and as further provided in ss. 17 to 20. [372] Sections 18 to 20 of the Guidelines allow the court to adjust a spouse's income where it is of the opinion that the s. 16 "total income" does not fairly reflect all of the money available for the payment of child support. [373]

Pursuant to s. 18(1), where a spouse is a shareholder, director or officer of a corporation, the court may determine the spouse's annual income to include, among other things, "all or part of the pre-tax income of the corporation for the most recent taxation year". Section 18(2) sets out the non-arms' length payments that must be added to the pre-tax income. Imputing Income [374] Pursuant to s. 19(1)(a) of the Guidelines, the Court can also impute such amount of income as it considers appropriate in the circumstances including where: the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage [375] The test is set out in Marquez v. Zapiola, 2013 BCCA 433 at para. 37 as follows: The test for imputing income for intentional under-employment or unemployment is one of reasonableness, having regard to the parties' capacity to earn income in light of their age, education, health, work history and work availability. A spouse's capacity to earn income will include that person's ability to work or to be trained to work [citations omitted]. [376] Ultimately, "the test for imputing income for intentional under-employment or unemployment is one of reasonableness, having regard to the parties' capacity to earn income in light of their age, education, health, work history and work

availability": Marquez at para. 37; Van Gool v Van Gool, 59 B.C.L.R. (3d) 395, 1998 CanLII (BCCA) 5650 at para. 34 [377] The "important question is whether the payor spouse has demonstrated an intention to be underemployed, with the consequence that his children do not benefit from his potential earning capacity .": Barker v. Barker, 2005 BCCA 177 at para. 18. [378] There must be an evidentiary basis for attributing or imputing income to a party under s.19(1) of the Guidelines. The party seeking to impute income to the other spouse bears the burden of establishing an evidentiary basis for the imputation: MacCarthy v. MacCarthy, 2015 BCCA 496 at para.

35. Adverse Inference [379] Finally, pursuant to s. 213(1)(a)(i) and (2)(b) of the FLA, where a person fails to disclose information, the court may draw an adverse inference, including by attributing income to that person in an amount that the court considers appropriate. B. Respondent's Income 1. Facts and Evidence a. History of the Respondent's Employment and Income [380] In the years prior to the separation in 2018, the income the respondent earned through various related entities including his primary operating company, PowerNet, and its successor, iGenius was sufficient to provide him and the claimant with a comfortable, if not lavish, lifestyle. [381] Between 2013 and 2018, iGenius earned net revenues of almost $9 million providing website design and maintenance services exclusively to TruWorks and Wishland. [382] However, TruWorks' revenues began to diminish in 2015, a decline that Ms. Ozkaran attributed in part to the rise of free erotic content on the internet. She testified that the more complex database management required in the dating industry also made it more difficult for Wishland to succeed. [383] In addition to those external issues, in 2015, iGenius' key programmer experienced mental health issues and subsequently left the company in 2017, leaving millions of lines of undocumented computer code. The respondent testified that as a result, iGenius fell behind

in the production of the software that TruWorks and Wishland required to make their businesses viable. [384] Ms. Ozkaran testified that by 2017, TruWorks was concerned about its ability to pay all of its bills. As a result, it gave priority to paying hosting companies and affiliates, and other third-party suppliers and vendors, other than iGenius, whose relationships were crucial to TruWorks' ability to generate revenues. [385] By 2019, TruWorks and Wishland stopped making payments to iGenius. By then, TruWorks owed iGenius approximately $500,000(US). iGenius made no efforts to recover the amounts owing to it. [386] Between its company year end on April 30, 2017 and April 30, 2018, iGenius' revenue dropped from approximately $2.2 million to approximately $1.2 million. Its revenues were $415,000 and $27,000 in 2019 and 2020. It has recorded no revenue since 2020. [387] The following chart sets out iGenius' revenues and net profit as well as the respondent's employment income for the years 2015 to 2020: Year iGenius Revenue iGenius Net income/ (loss) Respondent's employment income 2015 1,964,573 ** 512,495 unknown 2016 1,871,179 425,732 unknown 2017 2,175,969 646,663 253,650 2018 1,176,588 75,748 253,049 2019 413,847 (480,905) 170,866 2020 26,747 (35,653) 63,250 ** The iGenius' figures are as of its company year which ends on April 30; the respondent's income is for the calendar

year, January to December. b. The Guidelines Income Report [388] Pursuant to the parties' joint retainer, by report dated January 15, 2021, Kiumars Ghanavizchian of Blair Mackay Mynett, an independent chartered business valuator assessed and prepared a report (the "Guidelines Income Report") setting out his estimate of the Guidelines income available to the respondent for 2017, 2018 and 2019. [389] The Guidelines Income Report included income available to the respondent by virtue of his employment and ownership and beneficial interests in iGenius, West Quay, Confidex, Certus, and the K. Family (2017) Trust (collectively, the "Related Entities"). [390] For the years ended in 2017, 2018, and 2019, the respondent reported line 15000 income of $284,517.85, 268,040.27, and $85,845, respectively. However, based on the Related Entities' financial statements, applying the adjustments contemplated by ss. 16 and 17 of the Guidelines resulted in estimated Guidelines income for 2017, 2018, and 2019 of $320,604, $311,397, and $154,796, respectively.[8] [391] The author sets out a number of assumptions and qualifications for the conclusions set out in the Guidelines Income Report all of which assumed the accuracy of the financial reporting. The report did not contemplate any income from sources outside of Canada. c. Post Separation Income [392] With the demise of iGenius in 2019, the

respondent decided to leave the adult entertainment industry, and embarked on three distinct ventures to earn income. To date, none have generated any substantial revenues or resulted in the respondent earning income approaching what he had earned during the highest income earning years at PowerNet / iGenius. [393] The first venture was in music production, not only as a business, but as a means to deal with his anxiety and depression. [394] The respondent's second venture involved using the technical skills he had developed over his career at PowerNet and iGenius, creating various applications, programs, and computer platfor However, he says that given his continued financial support of the claimant, he did not have the funds required to market this business. Although not financially successful to date, he intends to pursue this work. [395] Finally, through West Quay, the respondent has started a business providing co-working/co-sharing workspace for rent in the West Esplanade Property it currently leases from Certus. His efforts to launch that business started in 2019 by conducting renovations to the West Esplanade Property, updating and improving West Quay's website and conducting other marketing efforts, creating the technical capacity required to support the business operation, and generally conducting all of the "extras" required to improve the physical space. He did much

of that work himself. [396] Unfortunately, the launch date coincided with the commencement of the COVID-19 pandemic. Despite that setback, in 2021, West Quay commenced renting the West Esplanade Property from Certus and launched its workspace business. [397] Since 2021, West Quay has generated revenues of $162,915 (2021), $198,213 (2022) and $289,207 (2023).[9] [398] The respondent hopes to expand the West Quay's business to the Gostick Properties. [399] No Guidelines Income Report is available after 2019. However, the respondent's line 15000 income was recorded on his income tax returns for 2020, 2021, and 2022 as follows: a) 2020 - $23,472.84 (comprised of employment income of $855.33, other income, and business losses of $41,370.84 relating to his music business); b) 2021 - $88,144.76 (comprised of employment income of $884.04; taxable dividends of $103,500, and business losses of $16,239.28 relating to his music business); and c) 2022 - $77,243.25 (comprised of employment income of $60,967.12, interest of $12,683.79, net rental income of $9,816.05, and business losses of $6,233.71).

2. The Parties' Positions [400] The respondent submits that, with one exception, there is no basis on which to reject the income valuations for 2018 and 2019 as set out in the Guidelines Income Report. The exception, he says, is the $154,796 attributed to him for 2019, which includes the $28,948 salary iGenius paid to the claimant for that year. Deducting that amount from the income imputed to him for 2019 results in a 2019 income of $125,848 ($154,796 - $28,848). [401] He argues that given the demise of TruWorks and Wishland, it was impossible to maintain the revenue stream that PowerNet / iGenius had enjoyed in the past. Doing the best that he could, and given his limited resources, he argues that he has taken adequate steps to earn income, particularly through West Quay's co-sharing business. He says that the income earned through his efforts post-separation properly represents the income that is available to him for those years. [402] The claimant disputes the valuation of the respondent's 2018 and 2019 income as set in the Guidelines Incomes Report and as reported on his tax returns for 2020 to 2022 on two primary bases. [403] First, the claimant alleges that the demise of TruWorks and Wishland, and the resulting decline in iGenius' revenue in 2018, was deliberately orchestrated to diminish income and assets that would otherwise be available to her on separation. [404]

Second, based on the amount of the respondent's personal expenditures, she argues that the revenue generated by iGenius was not the respondent's only source of income. Rather, she suggests that he had, and continues to have, undisclosed income, including income from TruWorks relating to sales from the Sextronix website. As that income was not contemplated in the Guidelines Income Report nor reported on his subsequent income tax returns, she argues that neither accurately reflects his income. [405] Maintaining her position of continued undisclosed income and assets, the claimant argues that his post-separation efforts to earn income do to reflect his earnings, but rather are used to cover his actual income.

3. Discussion and Analysis [406] I will start this discussion with my analysis of the claimant's position. Was iGenius' post-2017 decline in income deliberately orchestrated to diminish income available on separation? [407] As noted, for the corporate years ends on April 30, 2014, to 2017, iGenius consistently earned revenues in the $2 million range, resulting in net incomes ranging from roughly $425,000 to $750,000. The first significant decline in revenues occurred between April 30, 2017 and April 30, 2018. In that time, the revenues had decreased by almost 50%, going from roughly $2.2 million to $1.2 million. The net income over that same period decreased from $650,000 to $76,000. The decreases in revenues escalated from there. [408] The question is whether there is any basis on which to conclude that the significant decrease was deliberately orchestrated in an effort to deprive the claim of any benefit of that income. I cannot conclude that it was. [409] First, the timing is not consistent with the claimant's theory. Most notably, while there was some evidence of an issue in the relationship in mid-2017, there is no suggestion that the issues were so significant that a separation was inevitable. In fact, the parties travelled to Thailand together in November 2017. It was only in December 2017 when the respondent learned of the claimant's infidelity that the respondent moved

out of the Biddesden Home and the parties physically separated for the first time. It would not be for another ten months that the parties would finally separate in September 2018. [410] In assessing the timing of the separation relative to the decline in revenues, it is important to consider that the company's year-end was April 30. The significant decrease in revenue recorded as of April 30, 2018 reflected declining revenues that occurred between May 1, 2017 and April 30, 2018. In other words, the decline commenced seven months before the claimant left the home in December 2017 and was recorded five months before they finally separated in September 2018. [411] Second, the evidence discloses two explanations for the decline in iGenius' revenues: the loss of its key programmer and the changing landscape in the business conducted by its primary client. While I accept that the loss of its key personnel would have an impact on its ability to operate, it is not entirely clear to me that that loss could be overcome, or at least largely mitigated, by hiring other capable programmers. [412] More compelling is the change in the adult website business in which TruWorks operated. TruWorks was based on the same subscription fee model originally developed at Tan Graphik in the late 1990s. The uncontroverted evidence is that by 2015 or 2016, other website providers were offering free access

to adult entertainment on the internet. With no evidence to the contrary, I accept that the changing landscape in which TruWorks operated was a factor in its, and therefore, iGenius', demise. [413] On the evidence before me, I am satisfied that there were legitimate business reasons for the decline in iGenius' revenue unrelated to the parties' separation. Did the respondent have undisclosed income other than from PowerNet or iGenius? [414] The claimant compares PowerNet's income from 2004 to 2013 ($6.3 million (US)) to what she alleges are the respondents' expenditures that same period ($7.5 million (US)). She argues the difference ($1.2 million (US)) is an indication that he must have undisclosed income other than his earnings from PowerNet. [415] She makes a similar comparison to the period around separation. By the claimant's calculation, for the period 2017 to 2020, the respondent reported income of approximately $661,874; his combined credit and charges and withdrawals from his chequing account for the same period were approximately $2.8 million. [416] Going one step further, she calculates that the sum of: (a) the respondent's 2010 - 2013 expenditures and PowerNet revenues[10] ($13 million); (b) the amount of the 2013 TruWorks dividends and receivables ($2.5 million (US)); and (c) unknown revenues for TruWorks (2012) and iGenius (2011 - 2013) roughly equals the revenues

earned by the Sextronix subscription fee revenues. On the basis of that calculation, she concludes that the "undisclosed income" she attributes to the respondent is derived from the Sextronix website sales. [417] While there is some elegance in the simplicity of her argument, the calculations are so rudimentary that it is impossible to make anything of them at all. For example, the premise of the "income v. expenditure" calculation assumes that the income reported on PowerNet's financial statements represents all of the cash that was available for distribution to the respondent. Without any expert evidence, or a more critical analysis, I cannot conclude that is the case. Indeed, without expert evidence, it is easy to think of common non-cash expenses, such as depreciation or amortization, that decrease income but do not affect cash flow. [418] The analysis also fails to consider savings, not reported on an income statement, as a potential source of funds available to the respondent. [419] Other issues arise on the expenditure side of her analysis. For example, although the claimant derives the income figures from the respondent's document disclosure, the expenditure amounts are less reliable. For example, she includes $1.2 million (US) as the amount the respondent paid for a boat. Other than her (presumably hearsay) evidence that the respondent paid €1 million for that boat,

there was no documentary evidence to support that amount. Even assuming the purchase price is correct (the respondent did not indicate otherwise), the claimant testified that the amount was paid in instalments. There is no evidence of the timing of those instalment payments. Moreover, this purchase was made as an upgrade to the respondent's previous boat which was sold at the same time. The claimant does not account for how the proceeds of that sale may have reduced the cash required for the new purchase. In short, there are simply too many variables to come to any conclusion regarding the amount of this expenditure. [420] As another example, the claimant includes $350,000 as the respondent's expenditure for the Canadian investment program fees. In fact, those fees were $220,000, thereby further reducing the amount of his expenditures. [421] There are also issues regarding the claimant's "income v. expenditure" comparison for the period around the separation. [422] On the expenditure side, the claimant's calculation of the balances incurred on the respondent's credit cards appears to include not only his expenses, but the expenses incurred by the claimant as well. For example, for 2018, the claimant lists $154,743 as the amount of the respondent's spending on his Amex credit card. However, adding the expenditures from the statements themselves reveals that of the total $154,000

charged, $119,000 was attributable to the respondent; $35,000 was incurred by the claimant. [423] It is true that the respondent paid the claimant's credit card expenses. It is not incorrect to say that his expenditures included payments made on her behalf. However, in my view, the claimant's characterization of all payments, including those made to cover her expenses, as "his spending", is somewhat disingenuous. While technically correct, the characterization is not a fair representation of the "respondent's spending" and, in my view, diminishes the reliability of the claimant's submissions. [424] More substantively, a review of the bank statements reveals that some of the withdrawals from the respondent's bank account were made to pay the credit cards. For example, on May 11, 2018, the respondent withdrew $8,253 from his chequing account to pay his HSBC Mastercard. On May 22, 2018, he withdrew $9,084.59 to pay the Amex card. Including both credit card balances and the withdrawal of funds to pay for them double counts the respondent's expenses. The error also diminishes the reliability of the claimant's calculations. [425] More notably, however, the calculations assume that the respondent's income from iGenius was the respondent's only source of funds. It was not. In particular, as the documents confirm, he had access to savings and loans including: (a) approximately $400,000

from his accounts in Turkey, (b) approximately $190,000 from his HSBC investment account, and (c) approximately $275,000 from his shareholder loan in Butcherson. The claimant's failure to account for these other sources also diminishes the impact of her argument. [426] The above represents only some of the issues with the claimant's calculations and arguments made in support of her allegations that the respondent had undisclosed income. They are enough to satisfy me that the calculations are unreliable and are a wholly insufficient basis on which to conclude that is the case. [427] However, I accept that there is other evidence to support that allegation. [428] As noted, in November 2012, when iGenius entered into the service agreement with TruWorks, a separate entity, PowerNetX entered into a licensing agreement with TruWorks. Pursuant to the licensing agreement, TruWorks had the right to commercially exploit certain websites said to be owned by PowerNetX in exchange for 10% of the profits. In fact, those websites were owned by the respondent. [429] The respondent's ostensible sale of the websites to PowerNetX for $7,250,000 was fake. The respondent testified that he drafted the agreement to create value if the domain names were subsequently sold. He came up with the purchase price with no formal valuation and no monies were paid. In fact, he recruited a relative to sign the

purchase agreement "on behalf of" PowerNetX. He testified that, other than as "evidence" of value, he did not use the sale agreement for any other purpose, nor did he provide a copy to the government or other agencies. [430] The purported transaction is notable in several ways. First, the respondent's blatant deception, including on discovery, in respect of the document does not assist his credibility. However, having heard the respondent's evidence on this matter, and more generally throughout the trial, I cannot conclude that it affects his credibility on all issues. As noted, many of the corporate issues on which he gave evidence are supported by third-party professionals and documentary evidence. [431] Second, the sale agreement is notable for the fact that the list of websites owned by the respondent does not include "Sextronix", the umbrella website under which Tan Grafik started its adult website business and that was continued under TruWorks. While not conclusive, it supports the conclusion that the respondent did not own, or purport to own, the Sextronix domain name. [432] Finally, I return to the issue of undisclosed income. As PowerNetX did not own the websites, it follows that it was not entitled to the licence fees payable by TruWorks under the licence agreement. The respondent was. As he testified, those licensing fees were paid, including in 2014. Ms. Ozkaran

testified they were paid in 2015. [433] TruWorks financial statements for 2013, 2014, and 2015 record expenses of €190,000, €100,000, and €155,000 respectively for "Licenses". With no evidence on the point, it is difficult to conclude with certainty that those expenses relate to the licence agreement. If so, it is impossible to know how much was paid under the "PowerNetX" licence agreement. However, I do conclude on the balance of probabilities that some of that amount represented income attributable to the respondent, either to him or to a related company, perhaps PowerNetX. That income does not appear to be disclosed on his tax returns. [434] In coming to that conclusion, I have considered that the respondent did report foreign income for each of 2013, 2014, and 2015 (as well as other years). However, without any direct evidence on the point, I am unable to determine whether that reported income is the income that was paid under the PowerNetX licence agreement. [435] Having said that, the terms of the licence agreement expired in 2017. I have found that TruWorks' business came to an end around that same time. I cannot conclude that there is any undisclosed income to be attributed or imputed to the respondent after that date. [436] However, as set out above, I am satisfied that the failure to disclose evidence of the payment to him gives rise to an inference that assets may

exist, specifically in the form of PowerNetX bank accounts. I have taken that into account on the analysis of property division. Was the Respondent underemployed post-separation such that income should be imputed to him? [437] As her final argument regarding imputing income, the claimant addresses the respondent's post-2018 foray into music production, computer services, and the workspace rental business. She does not argue that those ventures are unreasonable, but that they operate as a "cover" to what she alleges is his continued involvement in the adult entertainment website business. With respect to the workspace rental, her written submissions include the following: West Quay Offices Inc. is occupying in this building and seems like renting office space. This new office space renting business is a shell to cover up the operations of website business. All his previous employees who were working on website business are located into his new building and they are continuing the operation of the websites. [The respondent] says he shut down the website business. This is not completely true. [The respondent] has enough sources and experience to continue doing the same business. It is highly possible that he continue his websites business under a different brand name and with the employees working remotely. It is so easy to get new domains [Added emphasis.] [438] She offers no

evidence that the workspace rental is operating as a "cover up" as she suggests. Her arguments amount to nothing more than bald assertions and speculation with no evidentiary foundation. As set out above, on the evidence, I am satisfied that there were legitimate business and technical reasons for TruWorks' and Wishland's (and iGenius' corresponding) demise in 2016. I do not accept that these businesses were resurrected under the guise of West Quay's workspace rental business. [439] However, that is not to say that the respondent's income should be limited to the net income he derives from his post-iGenius businesses. [440] With respect to a change in employment, it is well established that (a) persistence in unremunerative employment may entitle the court to impute income; and (b) a parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations: Beissner v. Matheusik, 2015 BCCA 308 at para. 44 citing Donovan v. Donovan, 2000 MBCA 80, as adopted by this Court in Watts v. Willie, 2004 BCCA 600 at para. 16, and followed in McCaffrey v. Paleolog, 2011 BCCA 378 at para. 46 [441] In Beissner, the father was a "well-educated experienced and capable businessman with substantial earning capacity" with experience in the hospitality and resort real estate business. After incurring a significant decline in income during

the economic downturn in 2008, he invested in a new business in 2012 that involved the sale of nutrition bars at local farmers markets. The chambers judge held that "his purported reduction in income of $97,653 (in 2008) to "essentially nothing" in 2013" was well below his actual earning capacity and simply not believable". He was imputed income of $65,000. The Court of Appeal upheld that decision. [442] In Boyko v. Fitzgerald, 2022 BCSC 614, the payer spouse had earned between $157,000 and $206,000 before being laid off from her employment as a director of investment development for SNC-Lavalin. She eventually found new employment, earning $67,000 but with the opportunity to earn commissions which had not then materialized. She subsequently received an offer to work for the company that had laid her off, but she declined, preferring to pursue work in the commission-based sector which she believed would lead to greater overall earnings. The court held that it was not unreasonable for her to do so, but concluded that she could not do so indefinitely. The spouse was given a year from the date of the hearing in which to earn the income she anticipated she could earn on a commission basis, failing which the court imputed income to her of $150,000, being slightly below her lowest historical income. [443] In this case, given the demise of iGenius, I am satisfied that it was

reasonable for the respondent to pursue alternative business ventures including the workspace rental business he now conducts through West Quay. I am also satisfied that he has incurred costs and taken steps to establish his business and, not unlike the spouse in Boyko, is now some considerable distance in that endeavour. [444] However, especially given his Guidelines income of $320,000 in 2017 and $310,000 in 2018 [11], the question is whether his current income is what he is capable of earning. Again, the question is one of reasonableness having regard to his capacity to earn income in light of his age, education, health, work history, and work availability: Marquez at para. 37 [445] Presumably, because she has chosen to focus on what she alleges is the respondent's hidden income, the claimant has not adduced any evidence of the employment or income that the respondent could have earned had he chosen to pursue work in the software development and technology industry, a field in which he had over 20 years experience. However, the respondent's own conduct in proving work in 2019 in the computer industry, creating a host of applications, programs, and computer platforms provides some evidentiary basis for the potential availability of that type of employment. It is also indicative of the transferability of his skills. [446] While the respondent was not able to get that business

off the ground (he says because he was financially drained having to support the claimant), his intention to pursue that line of work is a good indication that he thinks he eventually will be able to earn an income in that field. The question is whether he could earn more income in that field than he is earning with West Quay. [447] The claimant has adduced no evidence to suggest that he could. However, his income at iGenius provides an evidentiary basis on which to conclude that he is capable of earning more than his 2022 line 150 income of $77,243 (or the $60,967 recorded as his employment income from West Quay). By comparison, his 2017 and 2018 Guidelines income while at iGenius was $320,604, and $311,397, respectively[12]. He recorded employment income of approximately $250,000 in each of those years, at a time when that business was on the decline. [448] In assessing what income the respondent is capable of earning, it would be unreasonable to assume that he could start his own business and earn the Guidelines income he did as the business owner of iGenius in the short term. In fact, his recent attempt to do so was unsuccessful. However, I am satisfied that he is capable of earning the employment income he earned at iGenius. [449] Having said that, I have concluded that it was not unreasonable for the respondent to pursue the West Quay business when he did. Given the

investment of time, money, and other resources he has put into that venture, it is also reasonable that he was allowed to pursue that business. However, in my view, three years from starting the business (and two years after the commencement of the COVID-19 pandemic) is long enough for M. to be deprived of his potential earning capacity: Barker at para. 18 [450] Commencing January 1, 2022, the respondent will be imputed an income of the greater of $250,000 and his actual Guidelines income. [451] I am also of the view that his foray into music production was an indulgent pursuit at the expense of earning money to support M. The expenses he has claimed for that pursuit are to be added back to his income for the years in which they were claimed. [452] Finally, the claimant's objection to the Guidelines Income Report appears to be based primarily on the author's failure to take into account her allegations of the respondent's undisclosed income. As I have found that there is none, I accept the Guidelines incomes for 2018 and 2019 as set out in that report. [453] To summarize, the respondent's gross income is determined to be as follows: Year Income Basis 2018 $311,397 As set out in the Guidelines Income Report 2019 $154,796 As set out in the Guidelines Income Report 2020 $88,797 Per 2020 income tax return / DivorceMate calculations: Employment income - $855; Taxable Canadian

dividends - $63,250; Interest and other investment income - $738; and $41,370 that had been deducted as business expense relating to the music production venture added back as income 2021 $92,123 Per 2020 income tax return / DivorceMate calculations: Employment income - $884; Taxable Canadian dividends - $103,500; and $16,239 that had been deducted as business expense relating to the music production venture added back as income 2022 $250,000 Imputed income 2023 $250,000 (minimum) Imputed income 2024 $250,000 (minimum) Imputed income C. Claimant's Income 1. Facts and Evidence [454] When the parties met, the claimant was 19 years old and in her last year of high school in Turkey. Although she had no formal training, with the respondent's direction she assisted him in his business, editing videos, cleaning up contents, and checking for fraud on the websites. [455] In 2006, the claimant started a five-year program at university but took a 4 ½ month break from those studies in her third year to join the respondent on an extended vacation to Los Angeles. She left university altogether when the parties married in 2010. [456] The claimant did not work outside of the home for some time after M. was born in July 2011. She started working for iGenius on a part-time basis in 2014 when M. was 3 ½ years old. While the claimant characterizes her role as managerial, there is little evidence

to support that assertion. I find that her duties were primarily administrative. iGenius has been her only employer. [457] In the years 2018 to 2020, her line 150 incomes were $65,42, $37,601, and $46,626, respectively. However, of those amounts, she only had access to the iGenuis employment income of $25,000 in each of those years. In 2021, she received $23,140 in CEWB benefits relating to the COVID-19 pandemic. [458] Since separation in September 2018, the claimant has not taken any steps to look for employment and, with the exception of a Microsoft Office course, she has not taken any steps to update her education or obtain any sort of on-the-job training.

2. Discussion and Analysis [459] The test for imputing income is reasonableness having regard to the party's subjective capacity to earn income, and requires consideration of the context in which the claimant found herself after separation. [460] In that regard, it is relevant that the claimant's employment has been limited to her part-time work for iGenius. While I accept her employment allowed her to develop skills and gain work experience, there is no evidence to suggest that those skills and experience honed her for work in any specialized field in which she could expect significant remuneration. Moreover, presumably, part-time employment by her own spouse's company detracts from any skills and experience she did develop. [461] In that context, I accept that the job prospects available to the claimant after separation were limited. [462] Context is also relevant in assessing whether the claimant's unemployment was "intentional", as required by s. 19(a) of the Guidelines. Regarding intention, it is relevant that immediately after the separation, the claimant continued to receive a salary from iGenius that corresponded to what she had previously earned. In that way, it could not be said that she was "unemployed", unintentionally or not. [463] More significantly, in the period leading up the to separation and for some time following, the claimant had issues related to drug and

alcohol use, which eventually resulted in a 50-day in-patient program at the end of 2020. I am satisfied that, despite the claimant's denial of the extent of those issues, they would have negatively impacted her ability to find, and possibly maintain employment. [464] The period after the beginning of 2021 was different. By then, the claimant was making strides in recovering from the issues that had plagued her and both Z. and M. were residing full-time with the respondent. Although she was still then receiving part-time income from iGenius, the parties had been separated for over two years and her expenses continued to be high. Nonetheless, she made no attempts to find employment or to update her education or training in any meaningful way, nor has she done so to date. She has offered no reasonable explanation for her failure to do so. She has simply chosen to continue to rely on the respondent as her sole means of income, wholly ignoring the positive obligation that lies with her to endeavour to become economically self-sufficient. [465] I do not accept, as the claimant argues, that her claimant's English language skills need upgrading or limiting her employment opportunities. In my view, her assertion to the contrary is highly disingenuous. During the course of this trial, she conducted examinations and cross-examinations, including of expert witnesses, on complex corporate

and legal issues; she did so extremely capably and effectively. She was very quickly able to identify issues with a Turkish translator, citing nuances that a native English speaker could easily have trouble identifying. Her responses to mid-trial applications were relevant, cogent, and articulate. [466] In short, the claimant is an intelligent and capable person who, at 37 years old (32 years old at the date of separation), is well-positioned to find employment. That any such employment may be in a minimum wage position or one that she might be happy with is not a valid basis to excuse her from doing so: Jendruck v. Jendruck, 2014 BCCA 320 at para. 21. [467] As the Court concluded in Jendruck, "[w]hile [the recipient spouse] may choose to forego remunerative employment as a matter of preference, [the payor spouse] is not required to bear the burden of that choice if it is not reasonable in all the circumstances": Jendruck at para. 22. [468] In my view, the circumstances of this case, including the claimant's capacity to earn income in light of her age, education, health, work history and work availability make it unreasonable for her to have failed to obtain, or even seek out, employment commencing at the beginning of 2021. [469] The only evidence regarding the amount that should be imputed to the claimant is the $25,000 she earned annually working part-time for iGenius.

However, given the related nature of that employment, I cannot conclude that it is an accurate indicator of the claimant's potential earnings. With no other evidence before me, I agree that it is appropriate to use the minimum wage as a guide: J.R.G. v. J.C.K., 2021 BCSC 616 at paras. 108 - 109. [470] On the basis of the above, the claimant's gross income is determined to be as follows: Year Income Basis 2018 $25,000 Employment income available for the claimant's use 2019 $25,000 Employment income available for the claimant's use 2020 $25,000 Employment income available for the claimant's use 2021 $30,000 Imputation of annual minimum wage 2022 $30,000 Imputation of annual minimum wage 2023 $30,000 Imputation of annual minimum wage 2024 $30,000 (minimum) Greater of annual minimum wage and actual Guidelines income IX. Child Support / Section 7 Expenses A. Is the Claimant Required to Pay Child Support for Z.?

1. Issue [471] Since December 2018, Z. has resided with the respondent on a full-time basis while M. has resided with him either on a primary or shared basis. The respondent claims child support on the basis of both Z. and M. The first issue in determining child support payable is whether the claimant is required to pay child support for Z.

2. Legal Framework [472] Section 5 of the Guidelines refers to the obligation of a spouse who is not a parent. It provides: Where the spouse against whom a child support order stands in the place of a parent for a child, the amount of child support order is, in respect of that spouse, such amount as the court considers appropriate having regard to these Guidelines and any other parents legal duty to support the child. [473] In contrast to the child support obligation of a natural parent, the obligation of a stepparent under s. 5 is discretionary. In either case, the obligation is circumscribed by the objectives listed in s. 1 of the Guidelines including "to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation": Shen v. Tong, 2013 BCCA 519 at para 57. [474] In Chartier v. Chartier, [1999] 1 S.C.R. 242 at para. 39, the Court adopted several factors to determine whether a non-biological parent stands in the place of a parent for the purpose of the Divorce Act. They are: (a) whether the child participates in the extended family in the same way as a biological child; (b) whether the person provides financially for the child; (c) whether the person disciplines or guides the child as a parent: (d) whether the person represents to the child, the family, the world, either explicitly or

implicitly, that he or she is responsible as a parent of the child; and (e) the nature or existence of the child's relationship with the absent biological parent. [475] In this case, when Z. moved to Canada in 2016, she and the claimant developed a relationship in which the claimant provided love and guidance as a parent would. The relationship was a loving one and the claimant gladly took on a parental role in respect of Z.'s care. [476] Nonetheless, Ms. Eskisari (Z.'s biological mother) continued, and continues to be present in Z.'s life. While the claimant was physically present for Z., there was no suggestion that Ms. Eskisari had relinquished her role as Z.'s mother. Moreover, given the claimant's limited financial means both during the marriage and after, she did not provide financially for Z., nor does appear to be in a position to do so now. In my view, given the parties' relative potential income earning capacity, the claimant's financial contributions are not required to ensure her Z.'s well-being. [477] Z. is not a child of the marriage so as to invoke any obligation on the claimant to pay for her support. B. Child Support 1. Legal Framework [478] Pursuant to the terms of an interim court order dated November 10, 2021 (the "Scarth Order"), the respondent was ordered to pay the claimant combined monthly spousal and child support of $12,000 commencing on October 1,

2021. The Scarth Order was based on the interim finding that the respondent's Guidelines income was $360,000 and the claimant's Guidelines income was nil. At the time the parties shared parenting time for M. [479] Since then, I have made a final determination of both parties' incomes for each of the years for which child support is claimed. In addition, the parties did not share parenting as contemplated in the interim Scarth Order. It is appropriate to re-assess past child support in light of the full record that is before me: A.R. v. M.E.R., 2022 BCSC 509, at paras. 30-51. [480] Pursuant to s. 15.1(3) of the Divorce Act, a court making an order for child support shall do so in accordance with the applicable guidelines. [481] Section 3 of the Guidelines sets out the ordinary rule that the parent who is the primary caregiver to the children is entitled to child support from the other parent in the amount set out in the applicable table annexed to the Guidelines: Uren v. Reambeault, 2010 BCCA 332 at para.

7. Pursuant to s. 9, where the parties share parenting time, offset child support is payable.

2. Discussion and Analysis [482] Based on what I find to be the parenting schedule and the parties' incomes, retroactive child support is payable for the period October 1, 2018 to July 31, 2024 as follows: Year Parenting Time Months Guidelines Income (Claimant) Guidelines Income (Respondent) Child Support payable by the Respondent Child Support payable by the Claimant 2018 Respondent 3 $25,000 $311,397 $7,845 ($2,615 x 3) 2019 (Jan - Sep) Shared 9 $25,000 $154,796 $10,656 ($1,184 x 9) 2019 (Oct - Dec) Respondent 3 $25,000 $154,796 $627 ($209 x 3) 2020 Respondent 12 $25,000 $88,797 $2,508 ($209 x 12) 2021 (Jan - May) Respondent 5 $30,000 $92,123 $1,395 ($279 x 5) 2021 (Jun - Dec) Shared 7 $30,000 $92,123 $4,200 ($600 x 7) 2022 (Jan - Oct) Shared 10 $30,000 $250,000 $18,570 ($1,857 x10) 2022 (Nov-Dec) Respondent 2 $30,000 $250,000 $558 ($279 x 2) 2023 Respondent 12 $30,000 $250,000 $3,348 ($279 x 12) 2024 Respondent 7 $30,000 $250,000 $1,953 ($279 x 7) Total Child Support Payable $41,271 $10,389 [483] Net retroactive child support owing by the respondent to the claimant is $30,882 ($41,271 - $10,389). I will address how the retroactive child support owing is to be reconciled with the amounts paid pursuant to the Scarth Order in Part XI. of these reasons. [484] Commencing on August 1, 2024, the claimant will pay to the respondent s. 3 child support for M. in the amount of $279 on

the first day of each month. C. Section 7 Expenses [485] Pursuant to s. 7 of the Guidelines, in addition to table support, the court may also provide for an amount to cover any of the special or extraordinary expenses contemplated by the section, taking into account the necessity and reasonableness of the expense. As a guiding principle, s. 7 expenses are to be shared by the spouses in proportion to their respective incomes: Guidelines, s. 7(2). [486] For the period commencing in November 2018 to date, the respondent made various payments for Z. and M. including health-related expenses for both, school fees and supplies for M., and university tuition and parking fees for Z. He claims those expenses as s. 7 expenses, which must be shared proportionally. [487] I have found that the claimant is not responsible for paying any form of child support for Z. Moreover, the school fees and supplies for M. do not come within any of the categories set out in s. 7 as special or extraordinary expenses. The respondent is not entitled to repayment for those ite [488] The counselling and Copeman Medical Clinic expenses incurred for M. are s. 7 expenses. Those expenses are payable as follows: Year Expenses Amount Paid Respondent's income (% share) Claimant's Income (%share) Claimant's share 2018 Copeman Health $525 $311,397 (93%) $25,000 (7%) $

37 2019 Counselling 3,100 154,796 (86%) 25,000 (14%) 434 2020 Counselling / Copeman Health 11,594 88,797 (78%) 25,000 (22%) 2,550 2021 Counselling / Copeman Health 2,199 92,123 (75%) 30,000 (25%) 549 2022 Copeman Health 603 250,000 (89%) 30,000 (11%) 66 Total Retroactive s. 7 Expenses Payable by the Claimant $3,636 [489] I will address how the retroactive s. 7 payments owing are to be reconciled with other amounts paid and owing in Part XI. of these reasons. [490] Based on their imputed Guidelines incomes for 2023 ($30,000 for the claimant and $250,000 for the respondent), commencing on August 1, 2024, the parties' proportionate share of s. 7 expenses is 11% for the claimant and 89% for the respondent. D. Summary of Child Support Orders [491] To summarize the above, I make the following declarations and orders pursuant to the Divorce Act: a) For the period October 1, 2018 to July 31, 2024: i. The respondent owes to the claimant net retroactive s. 3 child support of $30,882; and ii. The claimant owes to the respondent retroactive s. 7 expenses of $3,636; b) Commencing on August 1, 2024, the claimant will pay to the respondent s. 3 child support for M. in the amount of $279 on the first day of each month; c) The parties will exchange copies of their (a) 2023 income tax returns, including all attachments, (b) 2023 corporate tax returns for all related entities, together with

corporate financial statements, and (c) notices of assessment for 2023 within 30 days from the date of these reasons; d) Commencing in 2025, and for so long as M. is eligible to receive child support, the parties will exchange copies of: i. their personal income tax returns for the previous year, including all attachments, no later than July 31 each year; ii. related corporate tax returns, together with corporate financial statements, for the previous year, no later than July 31 each year; and iii. any notice of assessment or reassessment provided to them by Canada Revenue Agency in respect of their personal and corporate income tax returns, immediately upon receipt. e) The parties will reassess the base amount of child support pursuant to s. 3 of the Guidelines and their proportionate share of s. 7 expenses each year. Any adjustments in child support will be effective as of June 1 of each year; f) For the period October 1, 2018 to July 31, 2024, the Claimant owes to the Respondent s. 7 expenses of $3,636; g) Commencing on August 1, 2024, the parties' proportionate share of s. 7 expenses is 11% for the claimant and 89% for the respondent. X. Spousal Support 1. Legal Framework [492] In considering an application for spousal support, the court must consider the "condition, means, needs and other circumstances of each spouse", including the length of time the spouses cohabitated,

the functions performed by each spouse during cohabitation, and any order or agreement relating to support for either spouse: Divorce Act, s. 15.2(4). [493] The objectives of an order for spousal support are set out in s. 15.2(6) of the Divorce Act. They are to: a) recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or its breakdown; b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [494] The same essential objectives are set out in s. 161 of the FLA. [495] Based on those objectives, there are three bases for entitlement to spousal support: compensatory, non-compensatory, and contractual support: Moge v. Moge, [1992] 3 S.C.R. 813, (compensatory support); Bracklow v. Bracklow, [1999] 1 S.C.R. 420, (non-compensatory support); and Miglin v. Miglin, 2003 SCC 24 (contractual support). [496] In M.S. v. E.J.S., 2017 BCSC 564, Justice Murray summarized those categories of support, in part, as follows: [96] Compensatory support, which relates to the first two objectives, is

intended to provide redress for economic disadvantage arising from the marriage or the conferral of an economic advantage on the other spouse. [97] 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 v. Moge, [1992] 3 S.C.R. 813 at 861-863; Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at para. 39). [98] Non-compensatory support, which relates to the last two objectives, aims to narrow the gap between the needs and means of the spouses on marital breakdown 2. Discussion and Analysis a. Entitlement [497] I have set out the claimant's education and work history above. To consider her entitlement to spousal support, the following circumstances are also relevant. [498] The respondent suggests that the claimant left university for reasons other than to work with him or to have a family. Specifically, in April 2018 (some 8 years after the fact), a medical practitioner's summary of the claimant's personal and social history included the one-line entry, "She [the claimant] described being aggressive with her teachers and she ended up quitting her studies in her third year." Referring to that entry, the respondent suggests that neither he nor the marriage was the reason that the claimant abandoned her

studies, but that she left university due to the conflict with the teacher. [499] It may be that the conflict with the teacher factored in her decision to leave university. However, I do not accept it was the only factor. At the time, she had taken an interest in the respondent's business, she had taken the extended trip overseas with the respondent, and as I discuss in more detail below, the parties were cohabitating. The respondent's explanation for the claimant leaving university wholly ignores the reality of the totality of the circumstances she was in when she made that decision. [500] Given those circumstances, there was no incentive for the claimant to return to university, certainly, after the parties were married and after their move to Canada. I am satisfied that the parties' relationship was a significant factor in the claimant's decision to not complete her university studies at the time. [501] Regarding her role in the relationship, I accept that the parties had the benefit of domestic help during their relationship, including after M. was born. However, there is no suggestion that the parties had full-time child care, preferring instead that the claimant maintain primary responsibility for M.'s infant care. The claimant was the person at home when the respondent travelled for work. [502] I also accept that the claimant was able to develop skills and gain work

experience through her employment with iGenius. However, from the time she was 19 years old, her only employment was with and dependent on the respondent. By limiting her work experience in that way, the claimant forego the opportunity to establish herself independently of the respondent. [503] I am satisfied that the claimant's roles in the home and the workplace were the result of the parties' joint decision to suit their family's needs and benefitted both parties. It may be, as the respondent argues, that he would have had the career opportunities he did even without the claimant taking on the childcare role or limiting her employment in the way that she did. However, in my view, that does not diminish the fact that she did limit herself for the benefit of the relationship and their family. [504] I am satisfied that the claimant has established entitlement to spousal support on both the compensatory and non-compensatory basis. [505] It is also significant that in the five-plus years since the separation, the claimant has not taken any steps to obtain any employment. With the exception of a basic Microsoft Office course, she has not taken any steps to update her education in any capacity. Accordingly, other than the income she earned through iGenius, since separation in 2018, the claimant's income was nil. b. Amount [506] As noted above, the interim Scarth Order was based on

the finding that the respondent's Guidelines income was $360,000 and the claimant's Guidelines income was nil. It was also based on shared parenting time for M. As was the case for child support, it is appropriate to re-assess past spousal support in light of the full record that is before me. [507] In addition to the parties' income, I must also consider the location within the Spousal Support Advisory Guidelines, July 2008 ("SSAG") range on which to base the amount of spousal support payable. The SSAG sets out a non-exclusive list of factors to consider, many of which I have considered in the entitlement analysis, so I will not repeat them in detail here. One other such factor is the length of time the spouses cohabitated: Divorce Act, s. 15.2(4). [508] I will consider those factors below, starting with the length of their cohabitation. Length of Cohabitation [509] There is no dispute that the parties met in April 2005 and married on March 7, 2010. The question is at what point between April 2005 and March 7, 2010, did they commence cohabiting? [510] The claimant puts that date in the summer of 2005, within months of their meeting, when she says she started residing at the respondent's residence. The respondent argues that the parties did not begin cohabitating until November 2009, when they travelled abroad together for 4 ½ months. [511] In Molodowich v. Penttinen , 17

R.F.L. (2d) 376 (Ont. Dist. Ct.), 1980 CanLII 1537 (ON SC), the court considered the meaning of "conjugal relationship" to come within the meaning of "spouse" as contemplated by the Family Law Reform Act, 1978, S.O. 1978, c. 2, ss. 14(b) and 1(b). At para. 16, it set out a list of "seven descriptive components involved to varying degrees and combinations, in the complex group of human inter-relationships broadly described by the words 'cohabitation' and 'consortium"'. They are: shelter, sexual and personal behaviour, services (i.e., the conduct and habit of the parties in relation to various domestic services), social, societal, support, and children. [512] In M. v. H., [1999] S.C.J. No. 23, 1999 CanLII 686 (SCC), the court referred to the Molodowich factors in the context of a Charter challenge regarding the distinction between conjugal opposite-sex and same-sex relationships, noting: [60] Obviously the weight to be accorded the various elements or factors to be considered in determining whether an opposite‑sex couple is in a conjugal relationship will vary widely and almost infinitely. The same must hold true of same‑sex couples. Courts have wisely determined that the approach to determining whether a relationship is conjugal must be flexible. This must be so, for the relationships of all couples will vary widely [513] In Dey v. Beckett, 2018 BCSC 244 [Dey], the court

considered whether a relationship was "marriage-like and the date on which a "relationship between spouses begins" as contemplated by the FLA. It noted: [192] The determination of whether a relationship was marriage-like requires a "holistic approach", in which all of the relevant factors are considered and weighed, but none of them are treated as being determinative of the question: Austin v. Goerz, 2007 BCCA 586 at paras. 58 and 62. [193] While a "checklist" approach to this question is not appropriate, it can still be helpful during the analysis to consider the presence or absence of commonly-accepted "indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship": Weber v. Leclerc, 2015 BCCA 492 at para. 25 . A frequently-cited authority has identified these indicators as including "shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple": M. v. H., [1999] 2 S.C.R. 3 at para. 59, citing Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 at para. 16 (Ont. Dist. Ct.). [514] While the subjective intentions of the parties will be important to the determination of whether the relationship is "marriage-like", evidence of their intentions must be tested against objective evidence of their lifestyle and interactions, which will

provide direct guidance on the nature of the relationship: Dey at para. 195, citing Weber v. Leclerc, 2015 BCCA 492 at paras. 23 - 24 and Takacs v. Gallo (1998), 48 B.C.L.R. (3d) 265 (C.A.) leave to appeal to SCC ref'd, [1998] S.C.C.A. No. 238, at para. 53. [515] In this case, the parties met and started dating in 2005. The respondent had been divorced from his former wife for approximately 16 months. It is conceded that from 2005 until November 2009, the claimant stayed at the respondent's home, particularly on the weekends, they went on vacations together, and celebrated special occasions such as birthdays. However, according to the respondent, they were not "exclusive" (i.e., not dating other people) until 2007. He says that despite the claimant's regular weekend sojourns at his home, during the week, she stayed at her mother's residence while attending university. He argues that the Molodowich factor (shared shelter) undermines the claimant's assertion that the parties cohabitated as early as 2005. [516] The claimant disputes that claim. She says that within months of dating in 2005, she lived with the respondent at his home 90% of the time and at her mother's home only 10% of the time. [517] Ms. Celik confirmed that the claimant moved out of her home, and to the respondent's home, in the summer after she completed high school in 2005. Ms. Celik testified that she did not

want her to do so as she felt it would mean that the claimant would not go to university. On direct examination, she testified that she did not visit the parties for four years. Ms. Celik was not asked, nor did she give any evidence, about the amount of time that the claimant stayed with her after 2005. However, in my view, her failure to disclose that the claimant resided with her at times (as the claimant concedes) diminishes her evidence on this point. [518] In my view, each of the parties' evidence on this point is exaggerated to support their position. It is more likely that the actual time is somewhere between the two positions. However, even residing 10% of the time at her mother's indicates that the claimant did not consider the respondent's residence to be her full-time residence. [519] In any event, as the case law notes, one factor alone is not determinative of the issue. In Dey, the parties' shared residence for more than two years in a relationship with "some of the trappings of a marriage-like one" was insufficient for the court to conclude that their relationship was, in fact, "marriage-like" so as to meet the definition of "spouse" in the FLA. In that case, some aspects of the shared residence included: " sharing sleeping arrangements and a sexual relationship, returning to the same residence on a daily basis and carrying out respective domestic duties that had

a mutually beneficial purpose, and presenting themselves to those they knew as a romantically-involved couple - including giving gifts that could be seen as celebratory of the seriousness of the relationship and providing intimations to others of a greater level of commitment still to come": Dey at paras. 239 - 240. [520] Notwithstanding those factors, the court found that the "marked lack of financial integration" was "extremely revealing" of the overall nature of the relationship. [521] In this case, several other of the Molodowich factors weigh in favour of the claimant's position; others favour the respondent's. Before turning to those factors, I start by noting the respondent's subjective evidence that he was not interested in a marriage-like relationship in 2005 and did not initially see his relationship with the claimant as permanent. However, that evidence is belied by the claimant's evidence that he had been engaged to someone else at the time. While he may have wanted a more casual relationship with the claimant, it cannot be said that he was not interested in marriage generally. [522] The claimant argues that his subjective intentions are undermined by the documentary evidence, including Turkish census data and her passport, both of which list his address as her residence in January 2007. The respondent disputes the reliability and significance of those documents,

noting that the census data also lists January 2007 as the date of his residence at his home (he lived there since 2001) and that his residence was used on the passport given the proximity of the police station at which was obtained to his residence. [523] Regarding their social activities, the parties frequently socialized together with friends at the respondent's home and on trips, at times with N.O. and Z. However, the claimant's mother did not attend any of these events, including for holidays or special occasions. Despite living in the same city, the respondent only first met Ms Celik in 2009. [524] Although the claimant had met Z. during her weekend stays with the respondent, the parties were first alone together with her during a two-week vacation to Greece in 2008. The claimant's relationship with Z. only changed to a more maternal one after the parties married in 2010. The parties had their own child together after marriage in 2010. [525] In my view, of all the factors, the fact that the people closest to the parties - Ms. Celik and Z. - were not integrated with the parties as a family until 2009 is the most significant. Given Ms. Celik's views about the relationship, it seems likely the meeting only occurred when the relationship was more definitely permanent. [526] I find that the parties cohabitation commenced in the fall of 2009, resulting in a relationship of

approximately 9 years. Other SSAG Factors [527] In brief, several of the SSAG factors strongly suggest that an award at the mid to high end of the range is justified. First, the claimant's compensatory claim is a strong one. Not only did she forego employment during the marriage, but she also abandoned her education on marriage, assumed primary childcare responsibilities for M., and limited her work experience to assist the respondent in his business. Those factors limited her ability to obtain employment on separation. [528] Second, M. was 7 years old at the time of separation. Although she was in school, I accept that her young age made it relatively more difficult for the claimant to find employment that could accommodate her schedule. [529] Finally, given their roles in the marriage, the claimant had the benefit of the respondent's income during the marriage. Despite the respondent's position at trial, at no time did he suggest that she obtain outside employment. [530] Other SSAG factors suggest that an award toward the low to mid-range is more appropriate, the most notable that a lower amount of support will encourage self-sufficiency. [531] On balance, weighing those factors, including the length of their cohabitation, makes it appropriate to award spousal support at the mid-range. [532] Taking into account the changes in the parties' parenting time, spousal support

payable, inclusive of all amounts paid to date, is as follows: Year Parenting Time Months Guidelines Income (Claimant) Guidelines Income (Respondent) Spousal Support Payable by the Respondent 2018 (Oct-Dec) Respondent 3 $25,000 $311,397 $7,273/mo x 3mo = $21,819 2019 (Jan - Sep) Shared 9 $25,000 $154,796 $3,168/mo x 9mo = $28,512 2019 (Oct - Dec) Respondent 3 $25,000 $154,796 $1,342/mo x 3mo = $4,026 2020 Respondent 12 $25,000 $88,797 $680/mo x 12mo = $8,160 2021 (Jan-May) Respondent 5 $30,000 $92,123 $686/mo x 5mo = $3,430 2021 (Jun - Dec) Shared 7 $30,000 $92,123 $1,870/mo x 7mo = $13,090 2022 (Jan - Oct) Shared 10 $30,000 $250,000 $5,433/mo x 10mo = $54,330 2022 (Nov-Dec) Respondent 2 $30,000 $250,000 $2,222/mo x 2mo = $4,444 2023 Respondent 12 $30,000 $250,000 $2,222/mo x 12mo = $26,664 2024 Respondent 7 $30,000 $250,000 $2,222/mo x 7mo = $15,575 Total Spousal Support Payable $180,050 c. Duration [533] Arguing that she has not completed her education and requires language training, the claimant claims spousal support for an indefinite duration. She testifies that she wants to complete that education after the completion of the trial. [534] To the extent that the claimant is entitled to spousal support, the respondent argues she has been adequately compensated and, in fact, has been overcompensated. He submits that spousal support should terminate effectively

immediately. [535] The final objective of spousal support, that is to promote self-sufficiency within a reasonable period of time, seems to support the respondent's position. However, as noted in Moge, that objective is not to be given overriding significance in determining entitlement to spousal support, its quantum, or duration. Speaking for the majority, Justice L'Heureux-Dubé stated at 853 as follows: It is also imperative to realize that the objective of self-sufficiency is tempered by the caveat that it is to be made a goal only "in so far as practicable". This qualification militates against the kind of "sink or swim" stance upon which the deemed self-sufficiency model is premised [citations omitted]. [536] In assessing this factor I have considered the claimant's past struggles with addiction, which required in-patient treatment. While I have concluded that the claimant has largely been able to manage those issues, I accept that it may have been a factor in her ability to obtain employment. [537] Moreover, self-sufficiency is to be measured "in the context of the standard of living previously enjoyed by the parties": Tedham v. Tedham, 2005 BCCA 502 at para. 59, citing Allaire v. Allaire, (2003), 35 R.F.L. (5th) 256 (Ont. C.A.). Even accepting that spousal support does not guarantee a party the standard of living they enjoyed during the marriage, in my view the $30,000

that I have imputed to the claimant is not enough to achieve that standard. I bear in mind, however, that the respondent's ability to maintain that standard of living himself has been diminished. [538] Standing alone, both of those factors, together with the 9-year relationship, militate against the immediate termination of spousal support. [539] One significant factor militates against the indefinite duration of support urged by the claimant. Specifically, it has been almost 6 years since the parties separated. The claimant has not taken any steps to complete her education or otherwise obtain employment in that time. That she has not done so is particularly puzzling given that M. has been in the primary care of the respondent since early in the separation and exclusively in his care since November 2022. As I have found, she has simply chosen to rely on the respondent as her sole means of income, failing to recognize the objective of self-sufficiency. [540] Taking into account all of the above, in my view, the appropriate duration of spousal support is 8 years from the date of separation. The respondent's obligation to pay spousal support shall terminate on September 30, 2026. [541] Commencing on August 1, 2024 and ending on September 30, 2026, the respondent shall pay to the claimant monthly spousal support in the amount of $2,225, payable on the first day of each month. [542]

I will address the payment of retroactive and prospective spousal support under Part XI. of these reasons. XI. Reconciliation of Retroactive and Prospective Amounts Owing to the Claimant A. Amount Owing to the Claimant [543] As set out in these reasons for judgment, the total combined child and spousal support owed by the respondent to the claimant is $210,932, summarized as follows: Year Spousal support payable by the Respondent Child support (payor) Total payable by the Respondent 2018 $21,819 $7,845 (Respondent) $29,664 2019 (Jan - Sep) $28,512 $10,656 (Respondent) $39,168 2019 (Oct - Dec) $4,026 $627 (Claimant) $3,399 2020 $8,160 $2,508 (Claimant) $5,652 2021 (Jan - May) $3,430 $1,395 (Claimant) $2,035 2021 (Jun - Dec) $13,090 $4,200 (Respondent) $17,290 2022 (Jan - Oct) $54,330 $18,570 (Respondent) $72,900 2022 (Nov - Dec) $4,444 $558 (Claimant) $3,886 2023 $26,664 $3,348 (Claimant) $23,316 2024 $15,575 $1,953 (Claimant) $13,622 Total Payable by the Respondent to the Claimant $210,932 [544] In addition, an equalization payment of $619,730 is owed to the claimant in respect of her property clai [545] The total amount owing to the claimant is $830,662 ($210,932 + 619,730). B. Set-off of Amounts Paid to the Claimant [546] Off-setting the amount payable by the respondent are: a) Retroactive s. 7 expenses owing by the claimant to the respondent in the amount of $3,636; b)

Amounts paid to the claimant from the net sales proceeds on the sale of the Biddesden Home, being: i. $64,000 paid pursuant to the court order dated May 14, 2021; and ii. $285,132 paid funds held by British Columbia Family Maintenance Agency (formerly known as the "FMEP") on account of interim combined child and spousal support payable, comprised as follows: (1) $222,132, being $12,000 per month for the period September 2021 to October 2023; and (2) $63,000, being $7,000 per month for the period November 1, 2023 to July 31, 2024; and c) Half of the net sales proceeds received on the sale of the respondent's BMW motorbike, being $7,750 ($15,500 / 2). [547] Those amounts, totaling $360,518 ($3,636 + $64,000 + $285,132 + $7,750) must be deducted from the amount payable to the claimant. [548] The respondent argues that other amounts paid to or received by the claimant should also be deducted. They are: amounts paid from the Spousal Loan Account, proceeds from the sale of personal items from the Biddesden Home, his post-separation payments made on account of the mortgage and other amounts paid to preserve the Biddesden Home, and his post-separation payment of the claimant's and M.'s expenses. Spousal Loan Account [549] At separation, $597,372 remained in the Spousal Loan Account. By order made at the judicial case conference on March 26, 2019, the parties were enjoined from using

disposing of any property except in the ordinary course of business, to pay regular living expenses, further Court Order, or written agreement of the parties. [550] Shortly after separation (before the JCC Order), the claimant withdrew $297,144. Of those funds, $290,000 was deposited to the claimant's first lawyer's trust account, of which $274,023.02 was later transferred to the claimant's second lawyer's trust account. By court order dated October 11, 2019, $200,000 was set aside to pay for Dr. Durnin-Goodman's reports, Dr. Korpach's reports, drug testing, and parental supervision fees. Although those payments were to be on a without prejudice basis, there was no order setting out how those fees were to be attributed to the parties. [551] In my view, it is appropriate that 50% of those costs ($100,000) be attributed to the claimant. That amount is to be set-off against the amounts owing to her. [552] In addition, the respondent argues that a total of $85,000 the claimant withdrew from the Spousal Loan Account between October 2019 and September 2020 should be set-off against the amount he owes her. The claimant argues those amounts were withdrawn for living expenses as expressly allowed by the JCC Order. [553] After separation, the respondent continued to pay numerous of the claimant's expenses including BC Hydro, Fortis BC, car insurance, Shaw cable and streaming

subscriptions, and the claimant's credit card expenses. In the period after separation to the end of 2020, he paid approximately $110,000. Of that amount, approximately $75,000 was for the payment of her credit card. The respondent was also making all payments on account of the mortgage and other expenses relating to the Biddesden Home in which the claimant was residing. [554] It also appears that the claimant had access to a $97,144 difference between her initial withdrawal from the Spousal Loan Account and the $200,000 used pursuant to the October 11, 2019 court order. In addition, she continued to receive income from iGenius of approximately $25,000 annually until the end of November 2021. [555] In that context, I do not accept that an additional $85,000 was required for the claimant's living expenses for the two years after separation. That amount ($85,000) is to be set-off against the amounts owing to her. [556] Finally, an additional $89,041 was paid out of the Spousal Loan Account pursuant to an order of the court dated December 11, 2020. As it appears that those funds were to be distributed equally to the parties, there is no basis on which to set off that amount from the amounts now owing to the claimant. [557] In summary, $185,000 ($100,000 + $85,000) withdrawn from the Spousal Loan Account after separation is to be set-off against the amount owing by the respondent

to the claimant. Proceeds from the Sale of Personal Property from the Biddesden Home [558] After separation, the claimant sold some personal property such as rugs and gym equipment from the Biddesden Home, she says to meet her living expenses. The respondent estimates the value of those items is approximately $325,000. The claimant argues that it is significantly lower. [559] In the absence of more compelling evidence regarding the items that were sold or their value, and doing the best I can on the available evidence, I assess the value of the items that the claimant sold from the Biddesden Home at $20,000. That amount is to be set-off against the amount owing by the respondent to the claimant. Respondent's Post-Separation Payments of the Mortgage and other Expenses Related to the Biddesden Home [560] After separation, the respondent calculates that he has paid approximately $300,000 toward the Biddesden Home mortgage and other expenses for the preservation and maintenance of that property. [561] As set out in Part VI. of these reasons, those post-separation contributions partially informed the analysis that resulted in unequal division of family assets in the respondent's favour. Having been accounted for, it would be inappropriate to also credit him for those payments on this analysis. [562] There will be no set-off for the respondent's post-separation payments in relation

to the Biddesden Home. Respondent's Post-Separation Payment of the Claimant's and M.'s Expenses [563] As set out above, after separation, the respondent continued to pay numerous of the claimant's living expenses. Those payments have been accounted for in respect of the $85,000 set-off detailed above. There will be no additional set-off for these payments. C. Summary of Reconciliation and Related Orders [564] To summarize, taking into account the pre-judgment payments to the claimant, the net amount payable by the respondent to the claimant for all amounts owing pursuant to these reasons to July 31, 2024, is $265,144, calculated as follows: Subtotals Totals Amounts Payable Division of property $ 619,730 Combined child and spousal support 210,932 $830,662 Set-off Amounts Section 7 expenses payable by the claimant to the respondent $3,636 Payment pursuant to the May 14, 2021 Court order 64,000 Combined child and spousal support paid 285,132 Proceeds from BMW motorbike sale (½) 7,750 Payments from Spousal Loan Account 185,000 Proceeds from the Sale of Personal Property 20,000 ($565,518) Total Net Owing by the Respondent to the Claimant $265,144 [565] The respondent is to pay the sum of $265,144 to the claimant within 45 days from the date of these reasons. [566] The amount of prospective spousal support owing to September 30, 2026, $55,550 ($2,222 x 25 months) (the "Prospective

Spousal Support Payments") is to remain in trust with the FMEP and to be paid to the claimant as the monthly spousal support payments become due. [567] The amount held by the FMEP in excess of the Prospective Spousal Support Payments are to be paid out to the respondent immediately. [568] Commencing on August 1, 2024, the claimant will pay to the respondent s. 3 child support for M. in the amount of $279 on the first day of each month [569] The parties are directed to take all steps required to effect the terms of this order, including, but not limited to: a) the discharge of any certificates of pending litigation or other charges against any of the properties encumbered in relation to this proceeding (including, but not limited to the Biddesden Home, the Homer Street Condo, the West Esplanade Properties, and the Gostick Properties); b) the immediate transfer of all funds currently held in trust for either of the parties to the respondent; and c) the immediate transfer of the ownership of all banking accounts, including the Spousal Loan Account, to the respondent. [570] The parties are at liberty to make arrangements with Supreme Court Scheduling for a hearing before me for clarification, or to correct any mathematical errors, of the above orders or with respect to any ancillary orders that may be required or matters that have not been addressed. XII. Divorce [571] The parties

have been separated for over a year. There is no prospect of reconciliation. Pursuant to s. 8 of the Divorce Act, I am satisfied the grounds for divorce have been met. [572] I grant the divorce which shall take effect on the 31st day after the date of this order. XIII. Costs 1. Legal Framework [573] Unless the court orders otherwise, costs of a family law case must be awarded to the successful party and are assessed as party and party costs in accordance with Appendix B: Supreme Court Family Rules 16-1(1) and 16-(7), B.C. Reg. 169/2009. [574] However, pursuant to Rule 16-1(1)(b), costs may be assessed as special costs. In this case, each of the claimant, the respondent, and N.O. seeks costs assessed as special costs.

2. Discussion and Analysis a. Claims for Costs Generally [575] As the starting point, I must consider which of the parties was "successful" in the case. That determination is to be measured objectively taking into account the matters in dispute, their weight or importance to the parties, and the parties' relative success or failure with respect to those matters: Fotheringham v. Fotheringham, 2001 BCSC 1321 at para.60, leave to appeal ref'd 2002 BCCA 454. [576] Substantial success is to be "measured in broad terms" and the court should not finely parse the issues: Stearman v. Powers, 2017 BCCA 165 at para.

65. The claimant and the respondent [577] As demonstrated by the outline of issues set out in Part IV of these reasons, in this case, there were a myriad of issues to be determined between the claimant and the respondent. Based on the subject matter, the issues relating to M., including primarily parenting time, weigh most heavily. Based on the parties' time and effort, it is clear that the property issues, including the allegation that the respondent had an interest in property and assets owned by N.O., were also important to the parties. [578] The parties' success on those significant issues was divided. [579] With respect to parenting, both parties sought more parenting time than they were granted. The respondent sought sole primary care, subject only to M.'s wishes. By her reference to Dr. Korpach's s. 211 reports, the claimant sought a parenting schedule in which she had the majority of parenting time during the school year. Given its default schedule and its recognition of the importance of integrating the claimant back into M.'s life, the parenting time order resembles the order sought by the claimant. However, much like the order sought by the respondent, the parenting time order expressly incorporates M.'s views in its implementation. Success was divided on that important issue. [580] The orders regarding property division were also divided. While the claimant was

successful in challenging the validity of the Marriage Agreement, she did not obtain the $7 million she sought on that issue. On the other hand, while the claimant's recovery was significantly less than she sought, it was more than the nil award she would have obtained had the respondent succeeded on his argument regarding the enforceability of the Marriage Agreement. [581] Given the divided success, each of the claimant and the respondent will bear their own costs of the proceeding. [582] The remaining issue is whether either should nonetheless be entitled to special costs based on the other's conduct in the proceeding. The claimant and N.O. [583] As between the claimant and N.O., there were two issues: the claimant's claim for entitlement to the whole or a portion of N.O.'s assets and N.O.'s claim for contact time with M. While neither party succeeded on their respective claims, the most significant focus was on the former. Had it not been for that issue, N.O. could well have limited her attendance at trial to a few days. [584] N.O.'s success in defending the property claims against her is indisputable. She is entitled to her costs against the claimant. The issue is whether those costs should be assessed as special costs. b. Claims for Special Costs / Contempt of Court [585] As noted, each of the claimant, the respondent, and N.O. has claimed special costs of the

proceedings. The claimant's claim for special costs against N.O. [586] As I have found that the claimant is not entitled to costs against either the respondent or N.O., any entitlement to special costs must be based on an independent analysis based on their conduct in the proceeding. [587] The claimant's claim against N.O. appears to be based on her allegation of dishonesty in N.O.'s evidence and N.O.'s failure to produce documents the claimant says should have been disclosed in the proceeding. [588] I accepted N.O.'s evidence, in part, on the basis that I did not accept the claimant's allegation of dishonesty either in the conduct of her business operations or in the proceedings. There is no basis for a claim for special costs. [589] The claimant's claim for special costs against N.O. is dismissed. The claimant's and the respondent's opposing claims for special costs [590] Both the claimant and the respondent bring claims against the other for special costs. Each alleges that the other's conduct in the proceedings warrants that award. [591] For her part, the claimant references the length and content of the respondent's examination of two of her witnesses. More significantly, the claimant also appears to rely on what she alleges is the respondents' perjured evidence, including both documents produced (and not produced) at trial and his oral evidence. [592] The respondent bases

his claim on his allegations that the claimant breached various court orders, has shown disdain for the court process, and has made numerous unsubstantiated allegations against both him and N.O. He has reserved the right to make further submissions on costs until the release of these reasons. [593] Both parties have had the opportunity to review and respond to the other's claims for special costs. However, they did so without the benefit of the findings of fact made in these reasons and without the opportunity to further consider the strength or weakness of those claims and defences in light of the findings. Given the significance of a special costs award, I am not prepared to consider the parties' application for the same until they have had the opportunity to do so. Subject to my further comments below, the cross-claims for special costs is adjourned. N.O.'s application for special costs and an order for contempt of Court against the claimant [594] N.O.'s claim for special costs against the claimant is based on a number of factors including the unproven claim of physical assault against M. and the meritless claim in respect of her assets. Like the respondent, she also alleges that the claimant breached various court orders and showed disdain for the court process. [595] N.O. also brings an application for contempt of Court on the basis of the latter two of those claims.

However, other than what is set out in her written submissions, it does not appear that N.O. served the application for contempt on the claimant. [596] Contempt applications in a family case are governed by Rule 21-7. That Rule provides that a party applying for an order for contempt must serve the alleged contemnor with a copy of the filed notice of application, with supporting affidavits, at least 7 days before the hearing of the application. The affidavits must set out the conduct alleged to be contempt of court: Rules 21-7(11) and (12). [597] Given the quasi-criminal nature of civil contempt proceedings, the rules of strictissimi juris apply: Peel Financial Holdings Ltd. v. Western Delta Lands Partnership, 2003 BCCA 551 at para.

18. On that basis, it is well established that non-compliance with the Rules is fatal to civil contempt proceedings. Here, where N.O. did not comply with the process for the service of the contempt application, it cannot proceed. [598] The same comments with respect to the application for special costs set out above applies to N.O. That application is adjourned. c. Conclusion and Comments on the Parties' Applications for Costs [599] Having reviewed these reasons, should any of the parties wish to pursue special costs, they made do so by filing (ensuring that it is directed to my attention) and serving an application for such costs within 45 days of the date of these reasons. Should I receive submissions, I will issue further instructions for the filing of responsive materials, and the hearing of the application if I deem it necessary. [600] If there are any other issues related to costs of which I am not aware (e.g., a formal offer to settle), I direct that the party raising the issue follow the process set out in respect of a further application for special costs. [601] To be clear, by setting a process by which the parties can pursue their claims for special costs, I do not intend to convey that the parties must or should do so. In that regard, I refer to Dr. Korpach's consistent recommendation that "[M.] needs her parent's conflict to end". If special costs are awarded, an

application for special costs before me will not conclude the matter. The quantum of costs will have to be assessed. Preparing the materials for that assessment is likely to be an onerous and time-consuming task. If recovery is possible, enforcement of any costs award will also prolong the process. [602] Given those observations, and in light of Dr. Korpach's recommendations and based on what I observed during the conduct of this trial, it is with reluctance that I provide the parties with the opportunity to make further submissions. However, it is up to them to determine if they wish to do so. [603] If I do not receive any further submissions within 45 days: a) N.O. is awarded costs against the claimant assessed as party and party costs, at ordinary difficulty, in accordance with Appendix B; b) Neither the claimant nor the respondent shall be entitled to any costs in respect of their claims against the other. [604] For certainty, in any event, the claimant's claim for costs (both ordinary costs and special costs) against N.O. is dismissed. "Ahmad J." Schedule "A" - Summary of Orders Guardianship [1] Pursuant to s. 39(1) of the FLA, the claimant and the respondent are the guardians of M. Decision-Making Authority [2] Pursuant to sections 16.3 and 16.1(4)(b) of the Divorce Act, the parties will share decision-making responsibility as defined in s. 2(1) of the Divorce Act for

M. [3] The parties will exercise all parental responsibilities with respect to M. on the following terms: a) Each party will have the obligation to advise the other guardian of any matters of a significant nature affecting M.; b) Each party will have the obligation to discuss with the other guardian any significant decisions that have to be made concerning M. including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare; c) The parties will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; d) If the guardians cannot reach an agreement on a significant decision despite their best efforts: i. the parties will obtain the determination of the parenting coordinator to be appointed pursuant to these reasons; ii. if the authority of the parenting coordinator has ended, then the guardian with the majority of parenting time with M. will be entitled to make those decisions and the other guardian will have the right to apply for directions on any decision the guardian considers contrary to the best interests of M.; and, e) Each party will have the right to obtain information concerning M. directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third-party caregivers. Appointment of

Parenting Co-ordinator [4] Pursuant to s. 15 of the FLA, the parties shall appoint a parenting coordinator for the purpose of implementing this order, or any agreement the parties may make, respecting parenting arrangements, contact with a child or other prescribed matters, as follows: a) within 21 days of these reasons, the claimant shall provide the respondent with the names of three suitably qualified parenting co-ordinators, whose hourly rate shall not exceed $400 per hour; b) within 7 days of receipt of the claimant's list, the respondent shall choose a parenting co-ordinator from the list; and c) the parties shall use their best efforts to appoint the parenting coordinator within 14 days of the respondent's choice of parenting coordinator. [5] The following ancillary orders are made with respect to the parenting coordinator: a) Either party may raise issues regarding parenting arrangements, or any of the prescribed matters with the parenting coordinator; b) In discharging their duties, the parenting coordinator may communicate with and directly receive information from M.'s counsellor; c) Except in urgent situations requiring immediate action, prior to reporting the other to the police or other government agency, the parties shall direct all complaints or concerns to the parenting coordinator for further recommendation or determination; and d) Neither party shall discuss

with M. any discussions they have or intend to have with the parenting coordinator. [6] The cost of the parenting co-ordinator shall be borne by the parties in the proportionate amount of their income as determined in these reasons. Parenting Coaches / Therapy [7] Each of the parties is ordered at their own cost, to retain and consult with appropriately qualified: a) parenting coach; and b) therapist as recommended in the First and Second Korpach Reports, for a minimum of 18 months from the date of these reasons. Parenting Time [8] The following orders are made in respect of parenting time pursuant to ss. 16.1(1), 16.2, and 16.1(4)(a) of the Divorce Act: a) M. shall reside primarily with the respondent; b) Subject to the further orders set out below, the claimant shall have parenting time with M. as follows: i. For the month commencing on August 1, 2024: (1) for two consecutive hours once a week on day and time to be agreed between the parties; and (2) on either Saturday or Sunday, or any other day as the parties may agree, from noon to 4 pm; ii. For the month commencing on September 1, 2024: (1) on Tuesdays, or other weekday as the parties may agree, from pick-up after school to 8 pm; and (2) on Saturday (or Sunday if the parties agree) from noon to 6 pm; iii. For the month commencing on October 1, 2024: (1) on Tuesdays and Thursdays, or two other weekdays as the parties may

agree, from pick-up after school to 8 pm; and (2) on Saturday (or Sunday if the parties agree) from noon to 6 pm; iv. For the month commencing on November 1, 2024: (1) on Tuesdays and Thursdays, or two other weekdays as the parties may agree, from pick-up after school to 8 pm; and (2) on alternating weekends, on Saturday from 10 am to Sunday at noon; v. For the month commencing on December 1, 2024: (1) from pick up after school on Tuesdays to drop off at school on Wednesdays; and (2) on alternating weekends, on Saturday from 10 am to Sunday at 4 pm; and vi. Commencing on January 1, 2025: (1) from pick up after school on Tuesdays to drop off at school on Thursdays; and (2) on alternating weekends, on Saturday from 10 am to Sunday at 4 pm; and vii. Commencing on March 1, 2025, on an alternating week on - week off basis with the respondent (collectively, the schedule set out in paragraphs (a) and (b) is the "Regular Parenting Time"). c) Despite the Regular Parenting Time, the parties shall have holiday parenting time with M. as follows: i. If Mother's Day falls on a weekend for which the claimant does not have Regular Parenting Time, the claimant shall have parenting time on Mother's Day from 10 am to 6 pm; ii. If Father's Day falls on a weekend for which the respondent does not have Regular Parenting Time, the respondent shall have parenting time on Father's Day from 10 am to 6

pm; iii. The parties shall equally split the Christmas break, commencing at school pick-up on the last day of school and ending at 6 pm on the day before school re-commences in the New Year. The respondent will have parenting time for the first half of the Christmas break commencing in 2024 and in alternating years thereafter; the claimant will have parenting time for the first half of the Christmas break commencing in 2025 and in alternating years thereafter; iv. The parties shall equally split the March break, commencing at school pick-up on the last day of school before the break and ending at 6 pm on the day before school re-commences after the break. The claimant will have parenting time for the first half of the March break commencing in 2025 and in alternating years thereafter; the respondent will have parenting time for the first half of the March break commencing in 2026 and in alternating years thereafter; v. The parties shall equally split summer breaks, however, each shall be entitled to one period of two uninterrupted, consecutive weeks (Monday to Sunday) of parenting time. Each of the parties will provide the other with their choice of two uninterrupted weeks by April 30 of vi. each year and the parties will use their best efforts to accommodate the other's request (collectively, the schedule set out in paragraph (c) is the "Holiday Parenting Time"); and d) Each

parent is entitled to have private, unrestricted telephone/video contact with M. while M. is in the care of the other parent outside school hours. The communication shall be directly through M.'s cellphone or computer. [9] The following additional orders are made with respect to the Regular Parenting Time and the Holiday Parenting Time: a) The respondent shall use all reasonable efforts to actively encourage M. to adhere to both the Regular Parenting Time and the Holiday Parenting Time, without indicating that either is M.'s choice; b) The Regular Parenting Time and the Holiday Parenting Time are subject to M.'s reasonable agreement; and c) The claimant shall abstain from consuming any non-prescription drugs or alcohol 36 hours before and during her parenting time. [10] At any time after 6 months from the date of these reasons, either party may apply for a review of parenting time without having to prove a change in circumstances as required by s. 17(5) of the Divorce Act. Conduct Orders [11] The following orders are made pursuant to Division 5 of the FLA: a) Pursuant to s. 227 of the FLA, the parties will: i. put the interest of M. before their own interests; ii. actively encourage M. to have a good relationship with the other parent and actively encourage her adherence to the Regular Parenting Time and the Holiday Parenting Time; iii. refrain from, and encourage their

respective families to refrain from: (1) making any negative comments about the other parent and his or her extended family; (2) engaging in discussions concerning this litigation or any private or adult matters in front of M.; and iv. if any third-party speaks negatively about the other parent in the presence of M., each party shall use their best efforts to remove M. from the situation. b) Also pursuant to s. 227 of the FLA: i. the parties shall communicate via text message or email for non-urgent issues relating to M.; ii. the parties shall use phone calls only in relation to urgent matters with respect to M. If a party contacts a parent via telephone with respect to an urgent issue and the other parent is not available, that parent shall immediately follow up with a text message; and iii. the parties shall use their best efforts to reply to communications from the other within 24 hours; and c) Also pursuant to s. 227 of the FLA: i. neither party shall take M. outside Canada without the other party's written consent, such consent cannot be unreasonably withheld. In the event a party refuses to consent, the other party is at liberty to bring an application to the Court; and ii. the claimant shall keep M.'s passport. Counselling for M. [12] Subject to availability and agreement, M. immediately resume counselling with Salley-Ann Jones on a weekly or bi-weekly basis, as

determined by Ms. Jones. [13] If Ms. Jones determines that M. would best be served by seeing a counsellor other than herself, she can make that recommendation to the parties. [14] If Ms. Jones is unable to accept her appointment, or subsequently withdraws, as M.'s counsellor, the parties will retain a new counsellor by using the following procedure: a) within 14 days of receiving notice that Ms. Jones cannot act, the respondent shall provide the claimant with the names of 3 suitably qualified counsellors; b) within 7 days of receipt of the respondent's list, the claimant shall choose a counsellor from the list; and c) the parties shall use their best efforts to appoint the counsellor within 14 days of the claimant's choice of counsellor. [15] The cost of the counsellor shall be borne by the parties in the proportionate amount of their income as determined in these reasons. Contact Time with N.O. [16] N.O.'s claim for additional and separate contact time is dismissed, however with leave for review of this order once and if the respondent has parenting time 50% or less. Property Division [17] Of the family assets totaling $4,957,840, the respondent shall pay to the claimant a total equalization payment of $619,730. In Trust Claims [18] The claimant's claims for an interest in any property in which N.O. has a legal or beneficial interest is dismissed. The Parties Incomes [19]

Income shall be imputed to the claimant as follows: Year Income 2018 $25,000 2019 $25,000 2020 $25,000 2021 $30,000 2022 $30,000 2023 $30,000 2024 $30,000 (minimum) [20] Income shall be imputed to the respondent as follows: Year Income 2018 $311,397 2019 $154,796 2020 $88,797 2021 $92,123 2022 $250,000 2023 $250,000 (minimum) 2024 $250,000 (minimum) Child Support and s. 7 Expenses Payable (retroactive and prospective) [21] I make the following declarations and orders pursuant to the Divorce Act: a) For the period October 1, 2018 to July 31, 2024: i. The respondent owes to the claimant net retroactive s. 3 child support of $30,882; and ii. The claimant owes to the respondent retroactive s. 7 expenses of $3,636; b) Commencing on August 1, 2024, the claimant will pay to the respondent s. 3 child support for M. in the amount of $279 on the first day of each month; c) The parties will exchange copies of their (a) 2023 income tax returns, including all attachments, (b) 2023 corporate tax returns for all related entities, together with corporate financial statements, and (c) notices of assessment for 2023 within 30 days from the date of these reasons; d) Commencing in 2025, and for so long as M. is eligible to receive child support, the parties will exchange copies of: i. their personal income tax returns for the previous year, including all attachments, no later than July 31 each

year; ii. related corporate tax returns, together with corporate financial statements, for the previous year, no later than July 31 each year; and iii. any notice of assessment or reassessment provided to them by Canada Revenue Agency in respect of their personal and corporate income tax returns, immediately upon receipt. e) The parties will reassess the base amount of child support pursuant to s. 3 of the Guidelines and their proportionate share of s. 7 expenses each year. Any adjustments in child support will be effective as of June 1 of each year; f) Commencing on August 1, 2024, the parties' proportionate share of s. 7 expenses is 11% for the claimant and 89% for the respondent. Spousal Support [22] For the period October 1, 2018 to July 31, 2024, the respondent owes the claimant spousal support of $180,050. [23] Commencing on August 1, 2024, the respondent will pay to the claimant spousal support in the in the amount of $2,222 on the first day of each month. [24] The respondent's obligation to pay spousal support shall terminate on September 30, 2026. Reconciliation of Retroactive and Prospective Amounts Owing to the Claimant [25] Within 45 days from the date of these reasons, the respondent shall pay to the claimant the sum of $265,144, being the net amount owing after set-off for interim distributions and other payments to the claimant, in respect of: a) the claims to

the family assets, b) retroactive child support and s. 7 expenses, and c) retroactive spousal support. [26] The amount of prospective spousal support owing to September 30, 2026, $55,550 ($2,222 x 25 months) (the "Prospective Spousal Support Payments") is to remain in trust with the FMEP and to be paid to the claimant as the monthly spousal support payments become due. [27] The amount held by the FMEP in excess of the Prospective Spousal Support Payments are to be paid out to the respondent immediately. [28] Commencing on August 1, 2024, the claimant will pay to the respondent s. 3 child support for M. in the amount of $279 on the first day of each month [29] The parties are directed to take all steps required to effect the terms of this order, including, but not limited to: a) the discharge of any certificates of pending litigation or other charges against any of the properties encumbered in relation to this proceeding (including the Biddesden Home, the Homer Street Condo, the West Esplanade Properties, and the Gostick Properties); b) the immediate transfer of all funds currently held in trust for either of the parties to the respondent; and c) the immediate transfer of the ownership of all banking accounts, including the Spousal Loan Account, to the respondent. Divorce [30] The parties are divorced from each other. The divorce shall take effect on the 31st day after the date

of this order. Costs [31] The claimant's claim for costs (both ordinary costs and special costs) against N.O. is dismissed. [32] With the exception of the claimant as against N.O., should the parties wish to pursue special costs, or address any other matter related to costs of which I am not aware, they made do so by filing (ensuring that it is directed to my attention) and serving an application for such costs within 45 days of the date of these reasons. [33] If I do not receive any further submissions within 45 days: a) N.O. is awarded costs against the claimant assessed as party and party costs, at ordinary difficulty, in accordance with Appendix B; and b) Neither the claimant nor the respondent shall be entitled to any costs in respect of their claims against the other. Ancillary Orders [34] The parties are at liberty to make arrangements with Supreme Court Scheduling for a hearing before me for clarification, or to correct any mathematical errors, of the above orders or with respect to any ancillary orders that may be required or matters that have not been addressed. [1] Although both are respondents, throughout these reasons, I refer to the respondent, E.K. as the "respondent" and to the respondent, N.O. as "N.O.". [2] The issue of when the parties commenced "cohabiting" as contemplated by the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) [Divorce Act] is discussed in more

detail in Part X. of these reasons. [3] The circumstance surrounding the execution and validity of the Marriage Agreement is discussed in more detail in Part VI. of these reasons. [4] The circumstances and issues regarding the decline in revenues is discussed in more detail in Part VIII. of these reasons [5] Prior to the release of these reasons, the claimant advised the Court that the circumstances with M. had since changed. As these reasons were pending, I refused her request to re-open the trial to hear new evidence. [6] The claimant notes that the interpreter did not use the English word "retire"; that appears to be the claimant's interpretation. [7] For simplicity, in this analysis, I will refer to N.O. and her related entities collectively as "N.O.". [8] The Guidelines Income Report also included estimates of the respondent's income (loss) for years 2017, 2018, and 2019 by deducting the respondent's share of the adjusted operating losses incurred by the Related Entities from what it determined was his Guidelines income. [9] However, West Quay continues to record net losses. By April 30, 2023 it had recorded a deficit of $702,218.12. [10] Presumably his 2010 - 2013 expenditures were made the PowerNet revenues from the corresponding years. It is unclear to me why those amounts would be added to ascertain the respondent's income. [11] As set out in the Guidelines Income Report. [12] As set out in the Guidelines Income Report.