B. D. D. v. G. T. S.

2021 BCSC 1080 B. D. D. v. G. T. S.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: B. D. D. v. G. T. S., 2021 BCSC 1080 Date: 20210604 Docket: PRR-S-E-10591 Registry: Prince Rupert Between: B. D. D. Claimant And G. T. S. Respondent Before: The Honourable Mr. Justice Punnett Reasons for Judgment Counsel for the Claimant/Applicant: W. C. MacGregor Counsel for the Respondent: A. Huang Place and Date of Hearing: Prince Rupert, B.C. November 16 & 20, 2020 February 17 & 18, 2021 Place and Date of Judgment: Prince Rupert, B.C. June 4, 2021 Introduction [1] On this summary trial application, the claimant seeks equal division of family property and debt. The remaining issues involving parenting and spousal and child support are the subject of existing interim orders and await trial. Suitability for Summary Trial [2] In British Columbia (Director of Civil Forfeiture) v. McCluskey, 2013 BCSC 2376, Mr. Justice Abrioux (as he then was) reviewed the principles that apply regarding suitability of a matter for summary. After referencing paragraphs 70 to 74 of Inspiration Management Ltd. v. McDermid St. Lawrence Ltd., 36 B.C.L.R. (2d) 202 he stated: 18 The threshold issue is the suitability of the case for determination by means of a summary proceeding. The limits of this procedure were stated in the following way by Williams J. in Leisure Aquatics Inc. v. Lax Kw'alaams Band, 2012 BCSC 1202 at para 24: [24] The parameters

with respect to the summary trial procedure are well-established. This is a legitimate mode of trial in appropriate circumstances. Where the court is able to make the necessary findings of fact on the material filed, even if there are conflicts in the evidence, that should be done. However, where the necessary findings cannot be made because of quite fundamental conflicts that cannot be fairly resolved, the court may conclude that the matter is not suitable for disposition under this rule. [Emphasis [in original.]] 19 Furthermore: (a) it is for the applicant to demonstrate that a summary trial is consistent with the object of the Rules, that is securing the just, speedy and inexpensive determination of every proceeding on its merits; (b) a matter may not be suitable for summary trial where one or more of the following circumstances apply: * the litigation is extensive and the summary trial hearing itself will take considerable time; * the unsuitability of summary determination is relatively obvious, issues of credibility being an example; * it is clear that the summary trial involves substantial risk of wasting time and effort and of producing unnecessary complexity; or * the issues are not determinative of the litigation and are inextricably woven with issues which must be determined at trial; [See Ekins v. Davey, 2007 BCSC 1630 at para 24.] * it is unjust to decide an issue

by summary trial if there is evidence to suggest that other evidence might be obtained to assist in determining whether certain evidence should be believed. In such a case, the evidence adduced is inadequate to decide an issue: Reilly v. Bisonnette, 2008 BCCA 167 at paras. 45-46; and (c) the court "may, but need not, grant judgment, even if the conditions in [Rule 9-7(15)] are met. But if those conditions are not met, judgment cannot be given": Inspiration Management Ltd. at para. 69. [3] This is a litigious family file where the main dispute between the parties relates to issues of parenting and parental alienation. The trial of those matters is set for 10 days in September 2021. Given the issues and allegations of the parties, parenting is clearly not resolvable summarily. [4] In contrast, the property issues involve undisputed facts and can be resolved summarily, thereby avoiding multiple issues for trial. This permits the parties and the Court to concentrate at trial on the most significant issue - parenting. Resolution of the financial issues raised in this application will not overlap with the issues at trial. As well, the property issues that remain in dispute do not involve assets of significant value. This will as well be more efficient, cost effective and consistent with the object of the Supreme Court Family Rules, B.C. Reg. 169/2009. [5] I am satisfied that the

property issues are amenable to resolution summarily and that the necessary factual findings can be made. Additionally, I am satisfied that there is no intertwining of such issues with the eventual parenting trial. Background [6] The parties began co-habiting in 1993, married on December 12, 1998 and separated in August 2017, although they continued to reside in the same home until December, 2017 when the claimant left the family home. There were divorced on February 4, 2019. [7] Neither party brought significant property into the relationship hence there is no pre-existing excluded property. It is agreed that all property owned jointly by the parties or separately by either of them as of August 26, 2017 is family property. They also agree that all debt owed on August 26, 2017 is family debt. [8] The family assets consist of the former matrimonial home, vehicles, pensions, RRSP's and RESP's. There are also family debts to be addressed. Additionally, the claimant claims occupational rent from the respondent given he resided in the home after she left in December 2017 until he remarried in the summer of 2020 and moved out of the family home to reside with is new spouse. The former family home has remained vacant since then. [9] The parties are in agreement respecting the value of the former matrimonial home, the option of the respondent to purchase it, and if not, that it be

sold. They also agree that the claimant's inheritance received in 2019 is an excluded asset in its entirety and that all other assets are to be divided equally subject to some outstanding issues of values and amounts involved. [10] I will address each family asset and debt in turn, any outstanding issues that relate to them and their disposition. Property Division Family Home [11] The former family home is at XXX Comox Avenue, Prince Rupert, British Columbia. The respondent remained in the former family home when the claimant moved out in December 2017. The respondent has paid the property taxes and insurance on the property and maintained it since then. The property was free and clear when the parties separated, hence there were no mortgage payments. [12] The property was appraised on November 27, 2020 at $420,000. The parties accept that value. It is unencumbered. They agree it is to be divided equally. The property has not been sold as the respondent wishes to purchase it for investment purposes. However, his financing depends on his income taking into account his interim spousal and child support obligations. The claimant agrees that if the respondent can obtain financing, she will accept $210,000 for her one-half interest in the home. [13] In the event the respondent cannot purchase the home within 30 days of the release of these reasons, the property shall be sold. If the

parties cannot agree on a listing price or real estate agent, they have liberty to apply. Home Furnishings [14] The respondent submits they each keep what they have retained and that the claimant also retain her non-cash business assets. It is not clear on the evidence if the claimant agrees. If the parties do not agree they are at liberty to apply, although as counsel for the claimant notes, they have minimal value. Vehicles [15] The claimant retains a 2011 Ford Flex and the respondent a 2013 Dodge Ram. They agree each should retain the vehicle they possess but they disagree on the values. The respondent also wishes to retain the travel trailer. [16] The claimant in her financial statement filed August 25, 2020 estimated the value of the 2011 Ford Flex at $15,000 and the 2016 Grand Design travel trailer at $40,000. The respondent in his financial statement dated November 15, 2020 estimated the value of the 2011 Ford Flex at $11,000, the 2013 Dodge Ram at $18,000 and the trailer at $35,000. An order was made on November 20, 2020 that the claimant obtain a valuation for the Ford Flex and the respondent for the Dodge Ram and the trailer. [17] The claimant obtained a valuation of the 2011 Ford Flex of $9,000. [18] The respondent obtained from the Dodge dealer where he had purchased the vehicle the black book value of the truck showing an average condition value of $24,500.

Regarding the trailer, he obtained from an RV centre a value of approximately $20,400 in US dollars. The trailer is in storage in Terrace B.C., hence taking it to a dealer would involve transporting it for inspection and valuation. [19] The claimant argues the respondent's failure to obtain a proper valuation of the trailer should result in an adverse inference being made. She submits that it should be valued at what the respondent said it was in his financial statement, that is $35,000, given he wishes to retain it. She further argues that, since the respondent refused to sell the trailer when they separated, it should be valued at $35,000 before depreciation. In her view, the current value should be the responsibility of the respondent as the trailer is now five years old, [20] Under s. 87 of the Family Law Act, S.B.C. 2011, c. 56 (the "FLA"), the date of trial is the presumptive date for determining the value of family property (Rudyak v. Bekturova, 2018 BCCA 414 at para. 35). That should be altered only if it is significantly unfair to rely on the date of trial valuation. A "departure from the presumptive date of valuation of family property is effectively a reapportionment or unequal division of the family property, which can be done only under s. 95 of the FLA" (Kumagai v. Campbell Estate, 2018 BCCA 24 para. 76). The trailer in this instance was retained and used by both

parties, although primarily by the respondent who also paid the yearly storage fees for it. The claimant had not sought an order early in the proceeding for its sale. I decline to set its value at an earlier date. In any event, there is no evidence of its value at separation other than the estimates of the parties in their financial statements. [21] I decline to draw an adverse inference regarding the respondent's valuations as I recognize the difficulties that arise in the north in having vehicles and trailers valued given the distances involved in presenting them to dealers for valuation. I fix the value of the 2011 Ford Flex at $9,000, the 2013 Dodge Ram truck at $24,500 and the 2016 Grand Design trailer at $20,400 USD. [22] As a result, the respondent shall pay to the claimant the sum required to equalize the vehicle values after converting the US dollar valuation to Canadian currency. Pensions and RRSP's and Bank Accounts [23] The parties agree their Canada Pension Plans shall be divided using the date of cohabitation of June 30, 1993 to separation of August 27, 2017. An order to that effect was made on November 20, 2020. [24] By consent the claimant shall retain her Shoreworkers' pension as it was only recently acquired and has minimal value. [25] The US Dollar account in the claimant's name in the amount of $2,227.45 is to be divided equally using either US funds or the

Canadian equivalent. [26] The claimant holds an RRSP with Edward Jones that in her 2017 financial statement she said had a value of $186,000. Her most recent disclosure shows a value of $149,452.54. The difference is not explained. However, her tax returns do not show any withdrawals from her RRSP in 2018, 2019 or 2020. As a result, it appears the latter figure is the correct one. [27] The respondent has both RRSP's and pension interests. His former pension with his past employer Eurocan is in a locked in RRSP with Northern Savings Credit Union Q-Trade-Credential Securities with a value of $40,139.15. [28] He also had an RRSP with Edward Jones which he later moved to a Q-Trade account valued at $37,066.81 as of March 29, 2019. He withdrew $6,250 from that account in 2019 and also withdrew funds in 2020 such that by November 2020, only $2400 was left. He agrees to the withdrawals being accounted for. He also made a 2019 RRSP contribution of $1,400 and, as of November 2020, a contribution of $1,100. The parties agree those and any other post-separation deposits are to be excluded. [29] His current pension is with his present employer P. R. G. and is administered by Mercer. As of January 9, 2018 it had a value of $63,354.11. It is agreed that it be divided from its inception to the separation date of Aug 27, 2017. [30] The parties also agree that any post-separation contributions

to RRSP's and pensions are excluded as well and not subject to division. RESPs [31] The claimant raises control over the children's RESP's given the respondent, after they separated, inquired about drawing funds from the RESP's to meet his legal expenses. The RESP's shall be left undivided and shall require the signatures of both parents for any withdrawals to occur. Neither party shall access the funds for personal purposes. The parties shall notify each other of any intended contributions in order to maximize any grants available to them. Debts Scotiabank Joint Line of Credit [32] The balance owing on the line of credit as of July 2, 2017 was $95,094.06. In September the respondent withdrew $20,000 from the line of credit. It is agreed that the first $20,000 owing is the responsibility of the respondent with the balance to be shared equally. Claimant's Business [33] There is insufficient evidence regarding valuation of the business operated by the claimant other than the fact there was $4,787.06 in its bank account at the date of separation. The claimant shall pay to the respondent $2,400 for his interest in the business. Claimant's Inheritance [34] The respondent accepts that the claimant's inheritance on the death of her mother is excluded property. She became entitled to the inheritance before the parties separated but had not received the inheritance at the time of

separation. Occupational Rent [35] The claimant seeks one-half of the fair market rent for the family home for the period during which the respondent has exclusively occupied it. That is from January 1, 2018 until he remarried and moved to the home of his new wife in 2020. [36] In L.W. v. F.W., 2018 BCSC 1924, Walker J. addressed occupational rent: 167 It is not typically advanced as a stand-alone claim, but is usually considered in the reapportionment analysis: Holland v. Holland, 2017 BCCA 75 at para. 23; Shen v. Tong, 2013 BCCA 519 at para.

91. Reapportionment is appropriate when an equal division would be significantly unfair: Shen at para.

91. Where a stand-alone order for occupational rent is made, it is a discrete order made as a result of a determination that it is necessary to achieve equity between the parties: Shen at para. 94; Hack at para. 41. [37] The factors relevant to a claim of occupational rent were addressed by Justice Verhoeven in Ross v. Ross, 2013 BCSC 1716: 47 I observe that in other Canadian jurisdictions, the law does not focus upon the question of ouster, or of claims for expenses by the spouse remaining in occupation. The principles applicable in Saskatchewan were recently summarized in Casey v. Casey, 2013 SKCA 58, at para. 48: From the jurisprudence the following principles may be drawn regarding the awarding of occupational rent on a matrimonial home: 1. Occupational rent is a remedy which may be utilized to obtain justice and equity in appropriate circumstances.

2. The remedy is exceptional and should be used cautiously.

3. The following factors, where relevant, are appropriately considered: * The conduct of both spouses, including failure to pay support, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home (Peltier, [2007] S.J. No. 396, at paras. 16-17; Wilgosh, [1998] S.J. No. 292, at paras. 99 and 109; Good, [1998] S.J. No. 353, at para. 90). * Where the children are residing and who is supporting them (Good at para. 90; Peltier at paras. 16-17; Wilgosh at para. 108). * If and when a demand for occupational rent was made (Wilgosh at paras. 100 and 106, Good at para. 90, and Peltier at para. 16). * Financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home (Peltier at paras. 16-17; Wilgosh at para. 106). * Who is paying for the expenses associated with the home. This includes who is paying the mortgage and other upkeep expenses (maintenance, insurance, taxes, etc.). If there is no mortgage, occupational rent may be needed to equalize accommodation expenses (Good at para. 90; Peltier at paras. 16-17; Wilgosh at paras. 105-106 and 108). * Whether the occupying spouse has increased or decreased the selling value of the property (Peltier at paras. 16-17). * Any other competing claims in the litigation that may offset an award of occupational rent (Wilgosh at para. 108; Good at para. 92).

4. The remedy is a discretionary one requiring the balancing of the relevant factors to determine whether occupational rent is reasonable in the totality of the circumstances of the case. 48 A similar list of considerations is set out in Higgins v. Higgins (2001), 19 R.F.L. (5th) 300, at para. 53 (S.C.J.), and is regularly applied in Ontario. Higgins expressly states that ouster is not required. Similar approaches are applied in Alberta, Manitoba, Nova Scotia and New Brunswick: Braglin v. Braglin, 2002 ABQB 816, at para. 3; England v. Nguyen, 2013 MBQB 196, at paras. 74-77; Carmichael v. Carmichael, 2005 NSSC 318, at paras. 49-64; Cripps v. Cripps, 2007 NBQB 2, at paras. 52-57. 49 Concepts of occupational rent derived from general property law may be inconsistent with modern family law. In England at para. 74, Johnston J. observed: To focus on a consideration of "ouster" is to set the development of family law back to the "bad old days" when issues of conduct may have been relevant considerations to our courts. How a person came to be in possession of a jointly owned asset should be a lesser concern to the court. The effect of the period of occupancy should be the focus of the court's consideration in exercising its discretion in attempting to value a fair result. 50 On the approach used by other jurisdictions, as I interpret it, the overriding question is whether occupational

rent, as a discretionary remedy to be used cautiously, should be utilized in order to achieve justice and equity in all of the circumstances of the case. This approach appropriately places little if any emphasis on the question of fault or blame for the decision of one spouse or the other to leave the matrimonial residence. [38] In McManus v. McManus, 2019 BCSC 123 at para. 76, Madam Justice Fleming noted factors that may be relevant to assessing a claim for occupation rent: · aside from ouster, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home; · whether children are residing with the occupying spouse; · whether the occupying spouse has made a claim for contribution from the non-occupying spouse for the expenses related to the premises; · whether support has been paid; · whether the occupying spouse increased or decreased the value of the property; · The duration of the occupancy; and · Other competing claims in the litigation that may offset an award of occupation rent. [39] The claimant estimates fair market rent for the family home at $2,000 per month. For this she relies on correspondence from a local manager of residential suites in Prince Rupert advising a rental rate of $2,000 a month plus utilities for the former family home. [40] The claimant submits she is entitled to

occupational rent as the respondent's former counsel was advised of the claim in 2017 and the respondent had the benefit of residing there for three years at a cost of approximately $400 a month. She submits she should receive occupational rent of $800 a month from January 1, 2018 to the date he moved in with his wife in 2020. [41] The respondent disputes the awarding of occupational rent, noting that the claimant had a place to move to and he did not. He also submits he has paid the utilities, taxes, insurance and has maintained the residence and paid any required maintenance costs. [42] The respondent has continued to maintain the house and pay heat, light and city utilities, insurance and the family line of credit. He also paid some maintenance costs, including a new hot water tank for $1,000. According to his financial statement he paid taxes of $1800 a year, utilities of $1400 a year, insurance of $850 and approximately $1200 a year in maintenance, being $5,250 per year for the years 2018, 2019 and 2020 for a total of $15,750. [43] He notes that when they separated, the claimant had another home to go to that she had inherited and she apparently lived rent free. He has also paid the interest charges on their joint line of credit as well as heat and hydro. He submits such expenditures cancel out any claim for occupational rent. In addition, the home was the home of him and

their children given they share parenting. [44] Applying the factors summarized above in McManus, and considering that the respondent did not advance a claim for contribution, has maintained the home's value and has paid support, I am satisfied the claim for occupational rent is balanced out by the factors referred to. The claim for occupational rent is dismissed. Orders [45] The respondent has the option of purchasing the claimant's one-half interest in the former family home at XXX Comox Avenue, Prince Rupert B.C. from the claimant for $210,000. If he does not do so within 30 days of these reasons, the property shall be sold. If the parties cannot agree on a listing price or real estate agent, they have liberty to apply. [46] The claimant shall retain the 2011 Ford Flex with a value of $9,000. [47] The respondent shall retain the 2013 Dodge Ram with a value of $24,500. [48] The respondent shall retain the 2016 Grand Design Travel Trailer with a value of $20,400 in US dollars. [49] The respondent shall pay to the claimant the sum required to divide the vehicle values equally between them. [50] By consent, the claimant shall retain her Shoreworker's pension. [51] The claimant's US Dollar account in the amount of $2,227.45 shall be divided equally either as US funds or the Canadian equivalent, at the option of the claimant. [52] The claimant shall pay to the respondent $2,400,

being one half of her business account. [53] The parties' RRSP's excluding post-separation contributions shall be divided equally by tax-free rollover. [54] The respondent's P. R. G. pension shall be divided equally for the period from the respondent's enrollment to August 27, 2017, as provided for in Part 6 of the FLA. [55] The respondent shall pay the first $20,000 of the Scotiabank line of credit debt and the remainder shall be paid from the proceeds of the sale of the former family home. If the home is not sold then each party shall pay one-half of the remaining debt after the $20,000 payment of the respondent. [56] The RESP's shall be left undivided and shall require the signatures of both parents for any withdrawals to occur. Neither party shall access the funds for personal purposes. The parties shall notify each other of any intended contributions to maximize any grants available to them. [57] The claim for occupational rent is dismissed. [58] If there is any dispute over the precise figures to be applied to effect these orders there shall be a reference to the registrar for their determination. Costs [59] The claimant did not address costs, while the respondent submits the parties should each bear their own costs of this summary trial application. If the parties do not agree on costs they have liberty to apply. "The Honourable Mr. Justice Punnett"