Forrest v. Forrest

2026 BCCA 171 Forrest v. Forrest COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Forrest v. Forrest, 2026 BCCA 171 Date: 20260424 Docket: CA50877 Between: Anne-Marie Forrest Appellant (Claimant) And Blake Alexander Forrest Respondent (Respondent) Before: The Honourable Chief Justice Marchand The Honourable Justice Fleming The Honourable Justice Iyer On appeal from: An order of the Supreme Court of British Columbia, dated July 9, 2025 (Forrest v. Forrest, 2025 BCSC 1484, New Westminster Docket E70790). Counsel for the Appellant: C.R. Anninos Counsel for the Respondent: S.P. Jodway Place and Date of Hearing: Vancouver, British Columbia January 15, 2026 Further Submissions Received: January 15, 21, 27, 2026 Place and Date of Judgment: Vancouver, British Columbia April 24, 2026 Written Reasons by: The Honourable Justice Iyer Concurred in by: The Honourable Chief Justice Marchand The Honourable Justice Fleming Summary: The appellant challenges the trial judge's determination of the family property in the parties' home, his unequal reapportionment of it in the respondent's favour, and his deduction of family debt from excluded property. She also takes issue with his order of spousal support and valuation of certain chattels. Held: Appeal allowed in part. The judge made errors of law in his determination of family property, reapportionment, and in deducting family debt from excluded property. He also erred in law in awarding retroactive spousal support and made a palpable and overriding error in valuing certain chattels. He made no reviewable error in determining the appellant's income for spousal support purposes. Reasons for Judgment of the Honourable Justice Iyer: Overview [1] This appeal is from orders made after a family law trial. The appellant, Ms. Wilkinson (previously, Ms. Forrest), and the respondent, Mr. Forrest, were together for approximately 11 years. This was a second relationship for both parties. Each has adult children from their previous relationships but no children together. [2] The principal issues at trial were division of family property and debt, claims for excluded property and reapportionment, and Mr. Forrest's claim for spousal support. These are also the issues on appeal. After a four-day trial, the trial judge delivered brief oral reasons setting out his findings (indexed at Forrest v. Forrest, 2025 BCSC 1484). [3] For the reasons given below, I would allow the appeal with respect to the property-related grounds and with respect to the retroactive spousal support order. I would not interfere with the judge's disposition of the prospective spousal support claim. Facts [4] The parties began living together in July 2013 and married in December 2016. [5] In 2015, they moved in with Ms. Wilkinson's elderly mother, who owned a townhouse in Richmond ("Richmond Property"). Ms. Wilkinson's mother added Ms. Wilkinson to the title of the Richmond Property as a joint tenant. This was an advancement on her inheritance. The parties did not pay rent but did some repairs and renovations. The trial judge held the repairs increased the value of the property by $100,000. [6] In June 2016, the Richmond Property was sold for $818,950. The trial judge found Ms. Wilkinson's mother gifted $359,425, representing all but $50,000 of her share of the net sale proceeds, to Ms. Wilkinson. The judge deducted $50,000 from Ms. Wilkinson's portion of the sale proceeds. This represented 50% of the value of the repairs on the Richmond Property, which the judge considered to be family property. As a result, Ms. Wilkinson received $718,850 of the sale proceeds as excluded property, and the parties received $50,000 as family property. [7] In July 2016, Ms. Wilkinson used the sale proceeds to buy the family home in Mission ("Mission Property") for $701,000. [8] In 2019, Mr. Forrest was added to the title of the Mission Property, and the parties took out a $320,000 mortgage in both their names. They used the money to pay off a previous line of credit mortgage and to purchase vehicles and equipment. The parties refinanced the Mission Property in 2020, with a $360,000 mortgage from Canadian Western Bank ("CWB Mortgage"). They used the CWB Mortgage to pay off the prior mortgage and consumer debt and make other consumer purchases. [9] During the relationship, Ms. Wilkinson worked as an emergency medical attendant. However, after she was injured at work in 2017, she worked as a 911 operator. She earned approximately $100,000 in 2023 and 2024. At the time of trial, Mr. Forrest received a total of approximately $32,800 annually in Canadian Pension Plan disability benefits and a victim of crime pension. [10] The parties each received certain lump sums during the relationship. Ms. Wilkinson received settlement proceeds from her previous marriage and Mr. Forrest received settlement proceeds from personal injury litigation. Mr. Forrest also received an inheritance from his mother. [11] The parties separated in June 2024. Ms. Wilkinson remained in the Mission Property and paid all associated costs, including the CWB Mortgage, insurance, and taxes. Mr. Forrest lived in the parties' camper. [12] At the time of trial, the appraised value of the Mission Property was $1,010,000 and the balance owing on the CWB Mortgage was $325,000. After the trial, the Mission Property sold for $1,050,000 and the CWB Mortgage was paid out. The remaining net sale proceeds are $682,739.86. The Trial [13] The trial judge found Ms. Wilkinson acquired a 50% beneficial interest in the Richmond Property when she was added to title in 2015. He determined that $241,050 of the Mission Property was family property. He held it was appropriate to deduct the CWB Mortgage, a family debt, from the excluded portion of the Mission Property and not the portion that was family property. He reapportioned the family property in the Mission Property 75% to Mr. Forrest and 25% to Ms. Wilkinson. [14] The judge held Mr. Forrest was entitled to spousal support on the non-compensatory ground and ordered Ms. Wilkinson to pay him support from the date of separation for five and one half years, including one year of retroactive spousal support. [15] The judge found that the value of certain jewellery and a Christmas village set was $25,000. Issues on Appeal [16] Ms. Wilkinson submits the judge made reviewable errors in his treatment of the parties' property, including the nature of her interest in the Richmond Property, the extent to which the Mission Property was family property, and reapportionment. She says there was no evidentiary foundation for the judge's valuation of certain jewellery and a Christmas village. She also challenges the judge's determination of spousal support. [17] I would frame the issues as follows: a) When did the appellant acquire a beneficial interest in the Richmond Property? b) To what extent is the Mission Property family property? c) Was there a basis for reapportionment of family property? d) Was there a reviewable error in the valuation of the jewellery and Christmas village? e) Was there a reviewable error in the spousal support award? Standard of Review [18] In Mills v. O'Connor, 2025 BCCA 34, this Court summarized the deferential standard of review in family law appeals: [32] The standard of review in family law matters is of a "strict and limited scope": Naimi v. Yunusova, 2023 BCCA 124 at para. 29. This deferential approach flows from the generally "fact-based and discretionary" nature of family law decisions (Van de Perre v. Edwards, 2001 SCC 60 at para. 11, citing Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518 at para. 10) as well as the elevated importance of final resolutions in family matters: Naimi at para. 29; Barendregt v. Grebliunas, 2022 SCC 22 at paras. 100-104. As such, an appellate court will interfere with a family law decision only where there has been a material error, a serious misapprehension of the evidence, or an error of law: Hickey at para. 12; Barendregt at para. 103. [33] However, where a reviewable error is present, an appellate court may, as far as the record permits, draw its own conclusions of law or fact regarding the issue in question: Salomon v. Matte-Thompson, 2019 SCC 14 at para. 32; Housen v. Nikolaisen, 2002 SCC 33 at para. 8. [Emphasis added.] [19] If the appellate court can decide an issue on the evidence before it, remission for a new trial is not necessary: Mills at para. 39. Analysis When Did the Appellant Acquire a Beneficial Interest in the Richmond Property? [20] The trial judge found Ms. Wilkinson was put on title in the summer of 2015, characterizing it as a "gift as an advance on her inheritance": at para. 23. [21] A gratuitous transfer from a parent to adult child gives rise to the rebuttable presumption of resulting trust: Pecore v. Pecore, 2007 SCC 17 at paras. 34-36. There was no evidence before the trial judge to rebut the presumption. That means Ms. Wilkinson did not acquire a beneficial interest in the Richmond Property until it was sold in 2016. [22] It follows from this that the judge's characterization of 50% of the increase in value flowing from the parties' repair and renovation work on the Richmond Property (which he valued at $100,000) as family property is an error of law. Ms. Wilkinson did not have any beneficial interest in the Richmond Property at the time the work was done. It only crystalized when the property was sold. This error means Ms. Wilkinson acquired all of the sale proceeds from the Richmond Property as excluded property, except the $50,000 kept by her mother. As will be seen, the judge's error also taints his conclusions about the Mission Property. To What Extent is the Mission Property Family Property? [23] Part 5 of the Family Law Act, S.B.C. 2011, c. 25 [FLA], stipulates what is excluded property and what is family property. Justice Marchand, as he then was, set out the basic principles of the regime in Banh v. Chrysler, 2022 BCCA 74 at para. 23: 1. All real and personal property that is owned by at least one spouse at the time of separation is family property unless it is excluded property: ss. 84 and 85; 2. Family property includes any increase in the value of excluded property since the later of the date the relationship between the parties began or the acquisition of the excluded property: s. 84(2)(g); 3. Excluded property includes property acquired by a spouse before the relationship began, inheritances to a spouse, gifts to a spouse from a third party, and any property derived from such property: s. 85(1); 4. Family debt includes all financial obligations incurred by a spouse from the beginning of the relationship to the date of separation and after separation if incurred to maintain family property: s. 86; 5. Unless an agreement or order provides otherwise, the value of family property must be based on its fair market value, and the value of family property and family debt must be determined as of the date an agreement dividing family property was made or the date of the hearing before the court respecting the division of family property and family debt: s. 87; 6. Family property and family debt are to be divided equally unless it would be "significantly unfair" to do so: ss. 81 and 95; and 7. Excluded property is not subject to division unless it would be "significantly unfair" not to divide it: s. 96. [24] The judge correctly noted the Mission Property was purchased for $701,000 and at trial it was worth $1,010,000: at paras. 26, 29. There is no dispute that its increase in value is family property. [25] However, the judge later confused the purchase price of the Mission Property with the sale price of the Richmond Property, misstating the purchase price of the Mission Property as $818,950, when it was $701,000: at para. 29. This compounded his legal error in characterizing $50,000 of the purchase price as family property. [26] Using the correct purchase price and disregarding the erroneous $50,000, the value of the family property in the Mission Property at trial, reflecting the appreciation in its value during the relationship, was $309,000, not $241,050. [27] The judge deducted family debt of $325,000 (the amount owing on the CWB Mortgage at trial) from Ms. Wilkinson's excluded portion of the Mission Property, not from the portion that was family property. He reasoned as follows: [28] The parties refinanced the property in 2020 and obtained a mortgage of $360,000 to pay off the existing mortgage and make additional purchases. No accounting was provided to determine whether mortgage withdrawals were from the joint or excluded parts of the value of the home. Therefore, I believe it is appropriate to treat the withdrawals as coming from the excluded part of the home's value. [28] The reference to the lack of an accounting is puzzling because it cannot justify deduction of a family debt from excluded property as the judge says. Under Part 5 of the FLA, family property and family debt must be divided equally between the parties unless the court finds it would be significantly unfair to do so having regard to the criteria in s. 95: Janif v. Chander, 2026 BCCA 118 at para. 17. Section 96 prohibits the court from dividing excluded property except in the circumstances it specifies: 96 The Supreme Court must not order a division of excluded property unless (a) family property or family debt located outside British Columbia cannot practically be divided, or (b) it would be significantly unfair not to divide excluded property on consideration of the duration of the relationship between the spouses and one or more of the following factors: (i) a spouse's direct contribution to the preservation, maintenance, improvement, operation or management of the excluded property; (ii) the terms of any agreement between the spouses respecting the excluded property, other than an agreement described in section 93 (1) [setting aside agreements respecting property division], including but not limited to terms respecting the transfer of the excluded property; (iii) if the Supreme Court makes a determination under section 95 (1) [unequal division by order] respecting significant unfairness, the extent to which the significant unfairness cannot be addressed by an unequal division of family property or family debt, or both. [29] As the judge did not refer to s. 96 or undertake the analysis it requires, he erred in law by deducting the CWB Mortgage from Ms. Wilkinson's excluded property. [30] As noted, the Mission Property has now sold for $1,050,000 and the CWB Mortgage has been paid out of the sale proceeds. Ms. Wilkinson does not seek compensation from Mr. Forrest of his share of the extent to which the CWB Mortgage exceeded the value of the family property in the Mission Property. The remaining net sale proceeds of $682,739.86 are Ms. Wilkinsons's excluded property. Was There a Basis for Reapportionment of Family Property? [31] The trial judge did not reapportion all the family property; he limited his order to "the joint equity in the matrimonial home", finding an equal division of this asset would be "improper": at para. 44. As I have concluded the net sale proceeds from the sale of the Mission Property are excluded property, there was no family property in it to reapportion. [32] That said, as I have noted, s. 95(1) of the FLA establishes that unequal division of family property may only be ordered where equal division would be "significantly unfair" having regard to the factors set out in s. 95(2). This Court has repeatedly affirmed the high bar necessary to depart from equal division: Lamoureux v. Hedquist, 2025 BCCA 438 at paras. 17-19. In my view, the judge's failure to consider s. 95 would have justified appellate intervention had there been any family property in this asset to reapportion. Was There a Reviewable Error in the Valuation and Division of the Jewellery and Christmas Village? [33] There is no dispute over the judge's valuation and division of chattels other than with respect to the jewellery and Christmas village. The judge held the total value of those items was $25,000. Ms. Wilkinson seeks an order that these chattels be divided in specie or sold with the proceeds shared equally. [34] Ms. Wilkinson argued at trial there was insufficient evidence to value these items. The trial judge rejected her argument, saying the parties' viva voce testimony, including estimated purchase values, was sufficient: at para. 18. He referred to Mr. Forrest's submission that the value should be $27,500. [35] Ms. Wilkinson testified these items had a total value of $13,500 to $14,000. Mr. Forrest testified he believed the jewellery had a total value of $20,000. He testified the parties spent $600 to $1,000 annually on pieces for the Christmas village "over quite a few periods of years" and owned over 20 pieces. There was no valuation or documentary evidence. The judge did not assess the credibility of the parties' evidence or otherwise attempt to resolve the conflicting evidence. In these circumstances, I agree there is no evidentiary foundation for the judge's valuation. It constitutes a palpable and overriding error. [36] I consider Ms. Wilkinson's proposal for sale of these items, with equal division of the proceeds, fair. Removing the jewellery and Christmas village from the division of chattels, Mr. Forrest received chattels with a value of $164,000 and Ms. Wilkinson received chattels with a value of $63,500. That means Mr. Forrest must make an equalization payment to Ms. Wilkinson of $50,250 reflecting the equal division of chattels. Was There a Reviewable Error in the Spousal Support Award? [37] The trial judge's reasons dealing with spousal support are comprised of three paragraphs that recite none of the legal principles that apply to determining an entitlement to spousal support, the quantum of a spousal support award, or an award of retroactive support. In appealing the spousal support order, Ms. Wilkinson does not challenge the judge's finding that Mr. Forrest had a non-compensatory or needs-based entitlement and his annual income was approximately $40,000. She confines her submissions to errors she alleges the judge made in his calculation of her income and in awarding retroactive support. [38] With respect to income, Ms. Wilkinson says the judge erred in finding her pre-2023 income unsuitable for predicting her future earnings and including in her income the rent she received from her son. She submits the judge should have averaged her income from 2021 to 2024, which she says would have led to $80,000 as her predicted future employment income, not the $100,000 the judge found. [39] I agree with Ms. Wilkinson that the judge misapprehended the evidence when he said she was working in a different job in 2022. In fact, she had been working in her current job since 2017. However, as I have noted, the judge found Ms. Wilkinson's employment income for support purposes was $100,000, based on finding her employment income for each of 2023 and 2024 was $100,000 and "she [was] on track to earn more in 2025": at para. 31. [40] While Ms. Wilkinson earned considerably less in 2021 and 2022, her income tax returns show she earned employment income of approximately $100,000 in each of 2023 and 2024. She does not dispute that she would have earned that amount or more in 2025. [41] A trial judge's choice of method for determining income for support purposes is discretionary. The definition of "income" in the Federal Child Support Guidelines, SOR/97-175 [Guidelines], is used for both child and spousal support purposes. Sections 15 to 20 of the Guidelines, along with Schedule III, create a framework for income determination. Under s. 17(1) of the Guidelines, a judge may consider a spouse's income over the last three years where the judge considers doing so is fairer than using the spouse's annual income as directed by s. 16. However, judges retain the discretion not to use the averaging method in s. 17(1) where that is not the fairest approach, as long as there is a logical basis for the method chosen: Phillips v. Saunders, 2020 BCCA 265 at para. 23, citing Harras v. Lhotka, 2016 BCCA 246 at para. 24. In my view, it was open to the trial judge to use $100,000 as Ms. Wilkinson's employment income for support purposes based on her reported income for 2023 and 2024 and her projected income for 2025. [42] The judge found Ms. Wilkinson's total income for support purposes was $112,000, a figure that included spousal support payments from her previous partner and rent from her son. Ms. Wilkinson submits the evidence did not support this finding: she had testified she only received $600 from her son "every now and then" whereas her son had testified he paid his mother $600 monthly. While the judge ought to have addressed this conflicting evidence, I cannot say there was no evidentiary basis for his implicit preference of the son's evidence. Therefore, I would not disturb the judge's determination of Ms. Wilkinson's income for support purposes. [43] The judge awarded five and one half years of spousal support from the date of separation, which was July 1, 2024. That meant approximately one year of the support order was a retroactive award. Ms. Wilkinson says the retroactive award is unfair because she was solely responsible for all expenses related to the Mission Property from the date of separation. She does not challenge the prospective portion of the award. [44] The trial judge gave very brief reasons for making a retroactive award. He stated that he rejected Ms. Wilkinson's position because she: [38] chose to live in the house and paid mortgage payments of $2,300 in lieu of rent as an alternative residence and also received rent from her son. In these circumstances, in my view, this does not constitute a valid reason to avoid paying retroactive spousal support. [45] In Kerr v. Baranow, 2011 SCC 10, the Supreme Court of Canada established the factors a court will consider when exercising its discretion to award retroactive spousal support are substantially the same as those established for awarding retroactive child support as set out in D.B.S. v. S.R.G., 2006 SCC 37. Those factors are the needs of the recipient, the conduct of the payor spouse, the reason for the delay in seeking support, and any hardship the retroactive award may have on the payor spouse: Kerr at para. 207. The court must determine the effective date of the retroactive order, which is usually the date of effective notice: Kerr at para. 211. [46] The judge erred in law by failing to apply these factors. [47] Given the factual record, the limited financial circumstances of the parties and the relatively modest amount of the retroactive award, it is appropriate for this Court to make an order that meets the statutory objectives and takes the parties' circumstances into account. [48] The date of effective notice was August 2024, when Mr. Forrest sought spousal support in his counterclaim. This is also the date from which he sought spousal support at trial. [49] With respect to whether the judge should have exercised his discretion to make a retroactive award, the central consideration in this case is Mr. Forrest's need. There was no delay, Ms. Wilkinson did not engage in misconduct relating to payment of support and she will not suffer hardship. [50] After separation, Ms. Wilkinson remained in the Mission Property and paid the mortgage of $2,300 as well as all other expenses related to upkeep, such as utilities, insurance, and property tax. The trial judge found she did not pay rent. However, the money she paid to maintain the home was not solely to her benefit because the increase in the value of the property during the relationship was family property. Ms. Wilkinson's payment of these expenses enhanced the value of Mr. Forrest's interest in the Mission Property. [51] As the trial judge did not find Mr. Forrest paid anything to live in the camper, neither party paid "rent". In dealing with credit card debt, the judge found Mr. Forrest "had to cover living expenses" due to the separation, had to pay for some repairs to the camper, and incurred some expenses because he could not access the Mission Property: at para. 11. The judge assessed an increase of Mr. Forrest's credit card debt of $10,000 as attributable to "expenses associated with the separation and setting up and maintaining a new residence" and treated it as family debt: at para. 12. [52] In my view, the evidence does not establish an economic need in the post-separation period that justifies a retroactive award. The judge compensated Mr. Forrest for the additional expenses he incurred post-separation by treating those expenses as family debt. As I have said, Mr. Forrest benefited from Ms. Wilkinson's maintenance of the Mission Property. I would set aside the retroactive portion of the spousal support award, which runs from July 1, 2024, to July 9, 2025. Conclusion [53] In conclusion, I would allow the appeal in part. The judge's orders regarding the Mission Property are set aside. The appellant is entitled to $682,739.86, representing the whole net proceeds of the Mission Property as her excluded property. The retroactive component of the spousal support award, running from July 1, 2024, to July 9, 2025, is also set aside. The judge's orders respecting division of the chattels is set aside with respect to the jewellery and Christmas village. Instead, these items shall be sold with the proceeds divided equally between the parties, and Mr. Forrest must make an equalization payment to Ms. Wilkinson of $50,250. [54] I would allow the appeal with respect to the retroactive portion of the spousal support award and dismiss the appeal with respect to prospective spousal support. [55] With respect to costs, Ms. Wilkinson submits the trial judge's award of costs to Mr. Forrest should be set aside and she should be awarded costs in the court below. She also seeks costs of the appeal. Mr. Forrest opposes these orders. Neither party addressed these issues in argument. [56] I consider Ms. Wilkinson has achieved substantial success on appeal and would order Mr. Forrest to pay her costs of the appeal. If the parties are unable to agree on costs of the proceedings below, they may make written submissions of no more than five pages. Mr. Forrest shall file his submissions within 30 days, and Ms. Wilkinson shall file her response within 15 days of receipt of Mr. Forrest's submission. "The Honourable Justice Iyer" I AGREE: "The Honourable Chief Justice Marchand" I AGREE: "The Honourable Justice Fleming"