B.S.W. v. W.F.W.

2023 BCSC 1925 B.S.W. v. W.F.W.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: B.S.W. v. W.F.W., 2023 BCSC 1925 Date: 20231102 Docket: E213300 Registry: Victoria Between: B.S.W. aka B.S.G. Claimant And: W.F.W. Respondent Before: The Honourable Mr. Justice Verhoeven Reasons for Judgment Counsel for the Claimant: S. Hern, K.C. C. Lewis The Respondent, Appearing in Person: W.F.W. Place and Dates of Trial: Victoria, B.C. July 25-28; 31, 2023 August 1-4; 8-11, 2023 Place and Date of Judgment: Victoria, B.C. November 2, 2023 Table of Contents I. Introduction and Issues. 4 II. Division of Property and Debt. 5 A. Legal Principles. 5 B. Background Facts. 7 C. Date of Separation. 17 D. Analysis - Agreement Respecting the Division of Property and Debt 21 E. Excluded Property - Section 85. 28 1. RRSP, Gifts, Inheritances. 30 2. Tools. 31 3. Artwork. 31 4. Vehicles. 31 5. Financial Assets. 31 F. Equal or Unequal Division - Section 95 FLA. 33 G. Occupational Rent 38 III. Spousal Support. 39 A. Entitlement to Spousal Support 39 B. Spousal Support - Quantum and Duration. 47 C. Retroactive Spousal Support 53 IV. Parenting Arrangements. 53 A. Introduction. 53 B. Legal Principles. 54 1. S. 211 Reports. 54 2. Divorce Act or Family Law Act?. 55 3. Parenting Arrangements - Family Law Act 56 C. Background - Parenting Arrangements. 57 D. Dr. Korpach Report 61 E. Discussion - Korpach Report and Recommendations. 66 F. Schools

Issue. 70 G. The Children. 71 1. Child A. 71 2. Child B. 73 3. Child C. 75 H. Other Parenting Orders. 77 V. Child Support. 82 A. Base Child Support 82 B. Special and Extraordinary Expenses. 85 VI. Conclusions and Costs. 85 I. Introduction and Issues [1] These are reasons for judgment in a family law action. [2] A major issue is the division of property. The claimant contends that in 2004 or 2005, within a few months of the beginning of their marriage relationship, the parties orally agreed to have entirely separate finances and property, and that this is an enforceable agreement respecting the division of property and debt, within the meaning of s. 92 of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. In particular, she argues that on the basis of this agreement, the former family residence located on Linkleas Avenue in Oak Bay, Victoria ("Linkleas") that she solely owns is not family property to be divided. She also argues, apparently in the alternative, that in view of the agreement, equal division would be substantially unfair, within the meaning of s. 95 of the FLA. [3] Other major issues include the respondent's claim for spousal support, the claimant's income for spousal and child support determination, and various parenting arrangement issues. The respondent claims occupational rent in relation to Linkleas following his ejection from the residence May 12, 2021. [4] The

parties are both lawyers. They met in January 2004, when they were both working as young lawyers in Calgary, Alberta. They were married there on June 21, 2004. They were both previously unmarried. At the date of the marriage, the claimant was just short of 31 years of age; the respondent was 33 years of age. At trial, in July and August, 2023, the claimant was 50 years of age, and the respondent was 52 years of age. [5] They have three children together. The claimant is the wife and mother. The respondent is the husband and father. In birth order, the children are a girl, and boy, and a second girl. I will refer to their three children as A, B and C, in order to respect privacy concerns. A was born January 2010. B was born October 2012, and C was born August 2016. Therefore the children will be 13, 11, and seven years of age, this calendar year. [6] The eldest child is substantially but not completely estranged from the respondent. She resides with the claimant. The parties share parenting of the younger two children. Lately, their parenting time of the younger children has been approximately equal. The parties disagree as to final decision-making responsibility for the younger children, particularly as that relates to decisions as to which schools they will attend. [7] There is a relatively minor issue as to the date of their separation. The claimant's Notice of Family Claim

states that the parties separated March 19, 2020, but continued to live in the same residence. The respondent's Response to Family Claim states that the parties separated in March 2021, rather than March 2020. [8] As I will explain, I conclude that the parties separated on May 1, 2020. Therefore, their relationship continued for approximately 16 years. [9] On July 28, 2023, on the fourth day of the 13 day trial, I made an order for divorce, by consent, based upon the parties having lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding, and were living separate and apart at the commencement of the proceeding, without at that time making a finding as to the precise date of separation. II. Division of Property and Debt A. Legal Principles [10] The division of family property and family debt is governed by Part 5 of the FLA, which consists of sections 81 through 109. [11] The FLA was amended by the Family Law Amendment Act, 2023, which received royal assent May 11, 2023. Some of the property division sections were amended. However, under section 24 of the amending legislation, the new section 81.1 and the amendments to sections 85 and 96 do not apply to pre-existing proceedings, such as this one. As a result, for purposes of this decision, these recent amendments to the FLA do not apply. [12] Under section 81 of the FLA, in

general, spouses equally share family property and family debt, subject to an agreement or order that provides otherwise, and except as set out in the FLA. Section 85 governs excluded property, which is property that is not family property for the purposes of section 81. Excluded property includes property acquired by a spouse before the relationship between the spouses began, and inheritances to a spouse. [13] S. 92 of the FLA is as follows: Agreements respecting property division 92 Despite any provision of this Part but subject to section 93 [setting aside agreements respecting property division], spouses may make agreements respecting the division of property and debt, including agreements to do one or more of the following: (a) divide family property or family debt, or both, and do so equally or unequally; (b) include as family property or family debt items of property or debt that would not otherwise be included; (c) exclude as family property or family debt items of property or debt that would otherwise be included; (d) value family property or family debt differently than it would be valued under section 87 [valuing family property and family debt]. [Emphasis added.] [14] Section 93 allows the court to set aside or replace with an order an agreement respecting property division, but only if that agreement is in writing, and is signed and witnessed. As the claimant

alleges an oral agreement, section 93 does not apply. [15] The effect of unwritten agreements under s. 92 may be considered in relation to claims for unequal division on the basis of significant unfairness, under s. 95: Storey v. Terry, 2019 BCSC 674, aff'd 2020 BCCA 30; Voitchovsky v. Gibson, 2022 BCSC 355 [Voitchovsky BCSC], at para. 37. [16] Although the claimant's pleadings and submissions are not explicit on this, as I perceive the claimant's argument, she argues that the "agreement respecting the division of property and debt" under s. 92 that she asserts was an agreement to exclude as family property or family debt items of property or debt that would otherwise be included, under s. 92(c), or alternatively an agreement to divide family property and family debt, unequally, as provided for in s. 92(a). [17] The claimant also argues that in view of the asserted agreement, equal division of family property and family debt would be significantly unfair, within the meaning of section 95 of the FLA. As I perceive the claimant's submissions, her section 95 argument is in the alternative to her section 92 argument. B. Background Facts [18] Both parties were raised in the Lower Mainland of British Columbia. The respondent was called to the bar of B.C. in May 2000. The claimant was called to the bar of B.C. one year later, in May 2001. [19] The claimant is employed in a senior

legal position by the B.C. Investment Management Corporation ("BCIMC"), an agency of the Province of B.C. She has worked for BCIMC since January, 2007. The respondent is employed as a lawyer by the Ministry of the Attorney General of B.C., ("A.G.") doing both civil and criminal litigation work. He has worked for the A.G. since January, 2014. [20] The claimant earns substantially more income than the respondent. For the years 2015 through 2022, her earnings have been roughly double that of the respondent. In 2023, her earnings are projected to be approximately $656,895. The respondent's projected income for 2023 is $202,909. [21] The claimant was an only child. She was raised in Richmond, B.C., from the age of five. She obtained an undergraduate degree at the University of Victoria, and a Master's degree at the University of Alberta. She attended UBC law school. She obtained summer articles and an articling position with Davis & Company in Vancouver. As noted, she was called to the bar of British Columbia in May 2001. Her only area of interest was corporate securities. Her mentor at Davis & Company, Albert Hudec, recommended that she obtain more in-depth experience in securities law at Blakes, in Calgary. The claimant obtained a position with Blakes in Calgary and moved to Calgary in 2002. [22] The respondent comes from a large family. He has six biological siblings and several

adopted siblings. His parents also took care of foster children. He was raised in Tsawwassen. He obtained Bachelor of Arts and Bachelor of Commerce degrees at UBC. He worked as a research officer with the Government of BC from 1994 to 1996. He graduated from McGill University law school in 1999. He articled at a Prince George law firm, Hope Heinrich LLP, in 1999. He was called to the bar of BC in 2000. He remained at Hope Heinrich LLP as an associate lawyer, briefly, before moving to Calgary, where he worked as an associate with a firm called Duncan McCachen, or (perhaps later on) Duncan Camp. He was hired by Mr. Robin Camp, a partner of the firm. [23] In 2004, Duncan Camp dissolved. Mr. Camp and the respondent joined a successor law firm, May Jensen Shawa Solomon LLP ("May Jensen"). The respondent worked there as an associate. He and Mr. Camp continued to work on files together. The respondent had a broad civil litigation practice. [24] In summary, at the time of their marriage, the claimant was a securities lawyer with Blakes in Calgary, and the respondent was a civil litigation lawyer with May Jensen. [25] When the parties met, they were both practising Catholics. They both wanted a church wedding, and planned to have children together. Their courtship was fairly brief, in part because the respondent wanted to take in and look after his youngest biological brother, who

needed support. [26] The claimant states that initially the parties agreed that their marriage would be traditional from a financial point of view. She expected a typical "economic union" as her own parents had, and as she understood the respondent's parents had. She expected that the respondent would probably be the primary breadwinner. [27] The parties had few assets when they married. The claimant had RRSPs in the amount of $19,500. She had paid off her student loans of $7,000 and was debt free. The claimant recalls that the respondent had a truck, and a Harley-Davidson motorcycle, which he told the claimant he was paying off. The claimant says that when they met, the respondent told her that he had over $100,000 in student loans. She says that by the time of their marriage, however, he said that his student loan was reduced to $65,000 as a result of a government program for student debt relief. [28] Initially the parties had shared or joint financial arrangements. At the time, their incomes were roughly equal, at about $100,000 each. They rented an apartment, and split the rent, equally. The claimant says that for the first few months after the marriage their paycheques went into a joint bank account from which living expenses such as groceries were paid jointly. After payment of their living expenses, the joint account was used to pay down the wedding cost debts, as well

as the respondent's student loan debt. [29] The claimant's employment with Blakes was terminated in October 2004. The claimant received a payment of $35,000 for severance and pay in lieu of notice. Within two weeks she obtained a new position with Borden Ladner Gervais in Calgary ("BLG"), starting in January 2005. She was unemployed for approximately two months. [30] According to the claimant, the use of her termination payment from Blakes led to a major financial dispute between the parties, which in turn led to the agreement under s. 92 that she asserts. [31] The claimant says that the parties had agreed to pay for the wedding debt and the respondent's remaining student debts, equally. She says that as of November, 2004 the respondent's student loan debt stood at about $25,000. The claimant says that she paid $25,000 from her Blakes payment to pay what she understood was the last of the respondent's student loan debt. [32] The claimant's position was that the respondent owed her half of that money, or in other words $12,500. She says that she asked the respondent to repay the $12,500 that he owed, so she could fund an RRSP in order to reduce her income for the 2004 tax year. She says the respondent refused to pay this money. He did not agree that he owed her $12,500. She says that as a result of this dispute, the parties agreed that they would no longer have joint money, or

joint accounts, and that they would keep their finances separate, "like they had before they were married". They would have separate bank accounts, into which they would deposit their paycheques. She says that the respondent told her that he wanted this arrangement so that he would have discretion over his own money, and this arrangement would reduce conflict between them. She says they decided to "just go our separate ways, financially". She says they have lived that way ever since. They did not discuss putting anything in writing. The agreement was not documented. This is the s. 92 agreement that she asserts. [33] The claimant says that as far as she knew, their student loans and other debts had been paid off. [34] She relies on evidence that the parties did in fact very largely keep their financial affairs separate during their relationship as proof of the agreement. [35] The respondent denies that the parties made the agreement that the claimant asserts. He says that there was a great deal of conflict in the relationship from the beginning of the marriage, with many squabbles and disputes. He suggests that the fact the claimant was an only child whereas he came from a large family was part of the underlying reason for their difficulties. He says they have different personalities. Soon after the marriage, in the July to December 2004 period, they separated for 30 days. He

moved out. They participated in marriage counselling. They reunited. They focussed on their careers. [36] The claimant describes the relationship as "incredibly difficult" and "very rocky" for the first two years of the marriage, with numerous disagreements. The parties did not know each other well. They were in a pseudo parenting role over the respondent's younger brother, which added to the stresses. The brother moved out after four months. [37] The respondent denies that he owed $100,000 in student loans when the parties met, and that he owed $65,000 when they were married. He says he did have provincial and federal student loans, but that there was a loan remission program and as of 1999 he owed a maximum of $30,000. He had 10 years to pay. (There are no records about this.) He denies that the claimant used her Blakes severance payment to pay for his student loans. He says the does not recall being asked to provide money for her 2004 RRSP contribution. [38] He says that the claimant was always sensitive (or, as he says, "elbows up") about money matters. He contends that she asked him to respect her financial autonomy. He says that she felt that her own mother was economically disempowered during her marriage to her father. The respondent contends that he acceded to her demands about how their finances would be arranged. He agrees that in fact at some point their financial

arrangements changed and they no longer deposited their paycheques into a joint account. [39] In July 2005 the parties purchased a residence in Calgary on Royal Avenue, ("Royal Avenue") for $500,000. The title was held jointly. The claimant says that the parties agreed to buy the house as "equal partners" and that they would share expenses equally, and share the proceeds of sale equally if the home were sold. [40] The respondent does not deny that the parties financed Royal Avenue jointly, and later, divided the equity equally. [41] Although the claimant says that she was happy with her work at BLG in Calgary, she became aware of a job posting for a position with BCIMC, in Victoria. BCIMC manages investments for certain B.C. government agencies, including public sector workers' pension funds. In February, 2006, she applied for the job, even though the position required a lawyer with only one year of experience, and the pay was far below what she was earning at BLG. She was a seven year call at that time. She did not pursue the position at that time. [42] In mid-2006, the respondent was hoping to be offered a partnership with May Jensen. Unfortunately, a senior partner, Ms. May, did not agree with the offer being made to him. Mr. Camp met with the respondent after the partner's meeting and informed him that he would not be receiving an offer of partnership that year, and in view

of the objections of Ms. May, he would probably never be offered a partnership. [43] According to the claimant, the respondent was very upset about this news. He told her that he was going to take the summer off (July and August, 2006), go camping, and think about whether he would continue to practice law. She says he also told her he would be thinking about whether their marriage was over. [44] On July 16, 2006, the claimant and her parents visited the respondent while he was on his sabbatical. They had a picnic together at the Oldman River where the respondent was camping and fishing. [45] Thereafter, tragedy struck. While the claimant's parents were on their way back to their home in the Okanagan, they were involved in a serious motor vehicle accident near Cranbrook. Her mother was killed, and her father seriously injured. He was transferred to a Calgary hospital for treatment. [46] The claimant was off work from BLG for about two months following the MVA, until some time in September 2006. [47] According to the claimant, while she was with her father at the hospital in Calgary, the respondent told her that he wanted to sell Royal Avenue. He had been taking flying lessons for several months. He wanted to sell the house, and use his share of the equity (which had increased substantially) to buy an airplane. [48] The claimant says that due to respondent's insistence that Royal

Avenue be sold, and because she was unsure about their marriage, she contacted BCIMC, again, in October, 2006, and inquired again about the BCIMC job. It remained available, and she accepted it, to commence work in Victoria in January 2007. [49] She says she suggested that the respondent move to Victoria with her, and find work in Victoria, perhaps as a lawyer for the government. [50] The respondent's version of events regarding the claimant's decision to take the BCIMC job in Victoria and the sale of Royal Avenue is quite different than that of the claimant. He says the house was sold as a result of the claimant's decision to take the BCIMC job and move to Victoria. He says he concurred with her decision to move to Victoria to take the new job. He says he was prepared to move to Victoria as well, and to find work there. He expected it would take several months for him to accomplish that. [51] The respondent says that he also discussed with the claimant what he refers to as a "Plan B". If he were unable to find work in Victoria as a lawyer, he would work as a commercial floatplane pilot, based on Vancouver Island. He denies demanding that the house be sold in order to finance the purchase of the aircraft. He says the house was sold in order to accommodate the claimant's move to Victoria. He concedes that the proceeds of sale were divided between them, but he says the monies,

while separate, were to be used for family purposes. That is, to finance the claimant's move to Victoria, for her portion, and for his portion, to finance his career transition, either to another legal position, or to becoming a commercial floatplane pilot on the west coast. [52] The respondent left May Jensen in December 2006, but continued to work with the firm as a contract lawyer. He worked on two major files, which kept him very busy in the first part of 2007. He also did other work independently, including locum legal work in Vanderhoof in 2008. He worked as a sole practitioner and contract lawyer from 2007 through 2009. [53] The sale of Royal Avenue completed in June, 2007, at a price of $814,000. The parties divided the equity between them. The claimant received $167,000 from the sale, which she used to buy Linkleas. In addition to the money from the sale of Royal Avenue, she borrowed approximately $200,000 from her father, and she obtained mortgage funding in the amount of $200,000. [54] Since the purchase, she has solely paid all expenses associated with Linkleas, such as mortgage payments, taxes, utilities, and maintenance expenses. [55] The respondent received $149,000 from the sale of Royal Avenue. According to the claimant, his share was less than hers because he owed her $15,000 for his share of the cost of constructing a garage at Royal Avenue, and for some

other payments she had made. The respondent agrees that he owed her money for payments on a truck they had agreed to jointly pay for, but doesn't recall the other reasons for the disparity in their shares. [56] The respondent bought a 1960 Cessna 180c floatplane in September 2007. The airplane was moored at Shawnigan Lake, on Vancouver Island. He paid $125,000 for the airplane. He borrowed money to buy the airplane. Exactly what became of his $149,000 is not in evidence. [57] The respondent maintains that from 2007 through 2013 he continued to endeavor to find employment in Victoria, while also working on his "Plan B". For the most part he practiced law in Calgary during this period. [58] The respondent's sole practitioner and contract lawyer practice concluded at the end of 2009. He obtained a commercial pilot license as of March 1, 2009, and did considerable flying on the west coast, including some paid work in 2009 and 2010. However, he concluded in early to mid 2010 that obtaining full-time work as floatplane pilot was not a viable career option. [59] In seeking work in Victoria, the respondent focused his efforts on obtaining work as a government lawyer. He spoke with Gordon Houston, a senior management lawyer with the A.G. in Victoria, who advised him that his lack of government lawyer legal experience was a handicap. [60] In June 2010, the respondent obtained a temporary

position with the Alberta Office of the Public Trustee, covering for a maternity leave, working out of Calgary. In May 2011, he obtained a job as a prosecutor with Alberta Justice. He agreed to stay at least two years in the position. [61] The respondent sold the airplane in 2011, for $100,000. The airplane was chattel mortgaged. At the time his total debt exceeded the selling price of the airplane. [62] In 2011 the parties jointly purchased another house in Calgary, at 1509 3rd Street NW ("3rd Street"). The claimant says they bought 3rd Street together because the respondent wanted a house to live in, and they were planning to have a second child. She also says it was difficult to rent a place in Calgary. [63] During the years 2007 to 2013, the parties generally lived in separate cities, but each stayed with the other at times. The claimant spent several months living in Calgary with the respondent during each of her first and second maternity leaves. The respondent was in Victoria for the birth of A in January, 2010 and the birth of B in October 2012, and at other times. The question of whether the parties would reside in Victoria or Calgary remained unsettled. [64] The parties sold 3rd Street in May, 2013. The claimant says that she told the respondent that she had decided to remain in Victoria, permanently. She was no longer prepared to pay for one half of the mortgage

costs and the other expenses for the house, since she definitely was not going to return to Calgary. She states that he was upset about this. [65] The respondent says that this was a betrayal of her promise to return to Calgary if he could not find work in Victoria. [66] The purchase and later sale of 3rd Street demonstrates that until 2013, the parties retained the option of returning to reside in Calgary, together. [67] The parties split the net proceeds of sale of 3rd Street of about $25,000 between them, equally, except that the claimant maintained that the respondent owed her money that she had had to pay for the airplane loan. [68] In August 2013 the claimant demolished the existing Linkleas home and began building a new one. She paid the cost of the construction from her own resources. [69] There was significant conflict in the marriage at around this same time. [70] The conflict resulted in extensive negotiations between the parties in relation to what the respondent referred to as a "family constitution". Since the parties were living in separate cities at the time (Victoria and Calgary), much of the discussion is in written form, consisting of email messages, and draft agreements or letters. [71] As noted, the respondent maintained that the claimant had broken her promise to move back to Calgary if he was unable to find suitable work in Victoria. He sought written

commitments from the claimant concerning how they would conduct themselves in the relationship, but also in respect of financial matters. Although no actual agreement was reached, both sides rely on these negotiations in support of their position about the claimant's asserted agreement. [72] The claimant contends that the respondent admitted that the agreement she asserts was already in existence. The respondent denies this, and points to the fact that, as part of these negotiations, the claimant demanded written confirmation of the agreement she asserts, and did not get it. [73] On September 20, 2013, Gordon Houston offered the respondent a job with the A.G. Although the respondent demanded the "family constitution" be signed before he would agree to move to Victoria and accept the offer of employment, and took this position in the negotiations, he accepted the offer even though no agreement had been reached. He says he was bluffing. [74] The respondent finished the last of his Alberta Justice criminal trials in December, 2013, and started working for the A.G. in January, 2014, at which time he moved to Linkleas. He had resided at Linkleas at times during the previous years. The parties resided together at Linkleas residence from 2014 to 2021. During this time their third child was born, in August 2016. [75] Subsequently his position with the A.G. changed from civil

forfeitures to general civil litigation. In 2016, he began working ad hoc on secondment as a prosecutor (Crown counsel) in Northern British Columbia. This work resulted in regular and sometimes prolonged absences from Victoria. [76] The claimant's claim for separate property focuses substantially on Linkleas. The home was recently appraised at a market value of $2,375,000. However, there are substantial financial encumbrances against the home. [77] In addition to claiming an exclusion based upon the alleged agreement, the claimant claims gift and inheritance exclusions totaling $750,500. C. Date of Separation [78] The parties agree that the respondent left Linkleas on May 12, 2021, when the claimant ejected him from the residence, by changing the locks on the residence while he was out of town. He moved to a nearby residence located on Runnymede Avenue, that he had rented in January 2021. [79] A helpful summary of relevant legal principles regarding determination of the date of separation is set out in the decision of Justice Shergill in S.A.H. v. I.B.L., 2018 BCSC 544: [48] The Court may grant a divorce on the ground that there has been a breakdown of marriage, under s. 8(1) of the Divorce Act, R.S.C. 1985 c. 3 (2nd Supp.) ["DA"]. Section 8(2) sets out the criteria required to establish a marriage breakdown; relevant for these reasons, it is living separate and apart for at

least one year immediately preceding the determination of the divorce proceeding, and as at the commencement of same. Section 8(3) of the DA then states: (3) For the purposes of paragraph (2)(a), (a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and (b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated (ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose. [49] A physical separation is not necessary; parties can live in the same residence and still be considered separated. To determine the date of separation, the court may look at the pre- and post-separation behaviour of the parties: see Rose v. Guiguet, 2008 BCSC 1225; Velisek v. Velisek, 2000 BCSC 557; Greaves v. Greaves (2004), 4 R.F.L. (6th) 1, [2004] O.J. No. 2522 (Ont. S.C.J.); and Campbell v. Campbell, 2007 ABQB 637. [50] In the Greaves decision, the court found that the parties were living separate and apart, despite resuming regular and ongoing sexual relations, and the wife occasionally sleeping at the matrimonial home. The wife also returned to the matrimonial home regularly to look after the

house, care for the plants and work in the garden. [51] In Rose the Court looked at the husband's intention and his actions, to find that while the parties had originally resumed cohabitation for the purposes of convenience, their actions revealed that a reconciliation occurred shortly thereafter (at para. 77): While the main purpose of the couple's resumed cohabitation may initially have been for the convenience of Mr. Rose when he moved to Whistler to pursue a career opportunity, the couple's actions demonstrate that a reconciliation occurred shortly after the move. They did not recommence a casual relationship or one that could be described as roommates, or one that resembled an affair; the parties lived together in what appears to be their pre-separation level of commitment. [52] In McGrail v. McGrail, 2016 BCSC 104, Mr. Justice Verhoeven held that intention is key to the analysis of a date of separation. It need not be a mutually shared intention; a unilateral abandonment of the matrimonial relationship is sufficient: see Dhillon v. Dhillon (1998), 78 A.C.W.S. (3d) 963, [1998] B.C.J. No. 823 (C.A.), affirming the decision at trial of Bauman J., as he then was, citing Lachman v. Lachman (1970), 2 R.F.L. 207 (Ont. C.A.). [53] In Nearing v. Sauer, 2015 BCSC 58, Madam Justice Fleming elaborated at para. 56 on the need for the court to focus its analysis on the generally

accepted characteristics of marriage, as evidencing whether the parties had separated: In Sachdeva v. Sachdeva, 2013 BCSC 313 [Sachdeva], this Court took a similar approach, relying primarily on Rose v. Guiguet, 2008 BCSC 1225, where Madam Justice Dorgan looked at both the husband's intention to live separate and apart and his actions. Typically when the parties dispute the date of separation, the court's analysis focuses on the generally accepted characteristics of marriage including the intention to remain married, having sexual involvement, carrying on activities in public, sharing financial resources and sharing significant family events: Sachdeva at para.

87. The court will also consider a range of other factors, including a clear statement by one of the parties of his or her desire to terminate the relationship. Sexual involvement, or lack thereof, is not conclusive: Newth v. Booth, 2011 BCSC 317 at para. 17. [54] In finding that the parties' relationship did not include many of the "generally accepted" characteristics of a marriage, the court in Nearing noted that: "they led relatively separate lives, they did not integrate their finances, they had little, if any, social life together and most family events did not involve the respondent." The filing of income tax returns identifying a party as married, was a factor for consideration, but not determinative of the issue: Nearing, para. 57. [55] As is evident from the case authorities, the determination of the parties' date of separation is a very fact specific exercise. I have found the following questions, framed in the form of a test, useful to determining the date of separation here: 1. Did at least one spouse have the intention to separate?

2. Was the intention to separate communicated to the other spouse?

3. Was the intention to separate acted upon? In other words, using generally accepted characteristics of marriage, did one or both spouses take action that is consistent with the separation, such as: a. changing how they behaved with each other in public; and b. changing how they behaved with each other in private. [80] In December, 2019 the parties embarked upon a long planned and extending vacation through the southern U.S., utilizing a vintage 1972 Volkswagen camper van that the respondent had restored. [81] The claimant returned from the family vacation in February 2020, with all three children. The respondent, driving the VW van, took some time to return to Victoria. She says he returned unannounced one day in March 2020. She was happy to see the respondent, initially, but conflicts emerged. The Covid-19 pandemic was beginning. There were lockdowns. The claimant's work was busy and stressful at the time. In keeping with public health orders, she was working from home. She says the respondent refused to assist her with homeschooling the children during the pandemic. He returned to work at his office immediately. (He says he was required to work at the A.G.'s offices.) She was upset and disappointed. She says she told him she was done with their "sham marriage". She moved into C's bedroom (where there were two beds) and remained there for the rest of the time that the

respondent "lived in my house". Accordingly she says that the separation coincided with the respondent's return from the vacation on or about March 19, 2020. [82] The respondent says that the claimant clearly and unequivocally communicated to him that the marriage was over, including demands that he leave the residence, not later than May 2020. He does not dispute the claimant's evidence that she began sleeping in C's bedroom at some point. [83] Without advising the claimant, on September 24, 2020, the respondent registered a charge against the residence under the Land (Spouse Protection) Act, R.S.B.C. 1996, c.

246. He rented a separate residence effective January 8, 2021. [84] I accept that the claimant clearly and unequivocally communicated to the respondent that the marriage was over sometime after the respondent returned from the family vacation in March 2020. It is consistent with the evidence of both parties that that the separation occurred sometime after the respondent's return to Victoria, rather than immediately. This period probably lasted a few weeks. Doing the best I can on the evidence, I fix May 1, 2020 as the date of separation. D. Analysis - Agreement Respecting the Division of Property and Debt [85] The focus of the claimant's submissions is on what the claimant describes as an "agreement to have separate finances". But standing alone, this is not enough. [86] Without more, an agreement to have separate finances does not equate to an agreement "respecting the division of property and debt" as required by section 92. Section 92 requires proof on a balance of probabilities of an agreement respecting the division of property and debt, not just an agreement for separate finances. [87] The manner in which married couples choose to organize their finances varies widely. Some couples pool their finances together, own property together, and have joint bank accounts. At the other end of the spectrum, some couples keep their finances separate, have separate bank accounts and

hold assets separately, and may even keep their finances confidential from each other. [88] The test for a binding and enforceable agreement is "whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract": Voitchovsky v. Gibson, 2022 BCCA 428, at para. 32 [Voitchovsky CA]. [89] The determination of the outward manifestation of the parties' intentions is contextual and takes into account the parties' communications as well as their conduct before and after the agreement is made. The parties must have reached consensus on the essential terms of their agreement and failure to reach this "meeting of the minds" means the agreement will fail for lack of certainty. This inquiry is an objective one, such that the subjective state of mind and personal knowledge of the parties is not relevant. The question is not what the parties subjectively had in mind, but whether their conduct was such that a reasonable person would conclude that they intended to be bound. In analyzing this conduct, courts can consider the surrounding circumstances: Voitchovsky CA, paras. 33-34. [90] The parties give widely divergent evidence concerning their early financial discussions in 2004 or 2005 when the claimant asserts the agreement was made. It is difficult to make findings of fact about what they

discussed, decided, or agreed to. Of course, the discussions took place a long time ago, and there is no contemporaneous written documentation. [91] I do not accept that either party is now able to give reliable evidence as to their discussions in 2004 and 2005 about this. There was a great deal of conflict between the parties at this time, with many significant disagreements, and squabbles. Their dispute over their finances was one of them. [92] I accept that the parties decided, by some process, to have substantially separate financial arrangements, in 2004, or possibly early 2005, in order to reduce a serious area of conflict within their very strained marital relationship. Their conduct in relation to their financial arrangements afterwards makes this decision plain. There is ample evidence showing that the parties did in fact keep their finances very largely separate from 2005 onwards. [93] However, whether they also agreed to own all future property separately, and not to divide it, as the claimant asserts, is not established. [94] A decision is not necessarily an agreement, in contractual terms. If the parties' decision to keep their finances substantially separate could be considered an agreement, I am unable to determine with any confidence what the terms of the agreement might have been. [95] Even where parties keep their finances separate, and do not hold property in

common, questions arise as to how their financial arrangements came about. One question is whether their arrangements resulted from a true agreement, or were simply driven by the unique circumstances of their particular relationship. As I noted in Zentner v. Katz, 2021 BCSC 1079, aff'd 2022 BCCA 371, an agreement respecting property and debt within the meaning of section 92 cannot be unilaterally imposed by one party on the other: para. 81. [96] Unsurprisingly, in my view, there was a fair degree of reconstruction and reinterpretation in the evidence of both parties as it relates to past events and circumstances. They are both sophisticated, well-educated people. Although neither has an in-depth knowledge of family law, they both clearly understand the legal issues. [97] However, while there are grounds for concern with respect to the credibility of both parties in some areas, the burden lies with the claimant to establish the agreement she asserts. I do not have confidence in her evidence in this respect. [98] The claimant tended to advocacy in giving her evidence. She often unnecessarily repeated her argument that the parties had agreed to have separate finances. She said that her decision to move to Victoria was driven by the respondent's demand to sell Royal Avenue, which she said was his decision "to not own a house jointly with me anymore". As I will explain, even if the

events transpired as the claimant says (which I am unsure of) I do not accept that this was the primary driver of her decision to move to Victoria, although it may have been a factor. But this explanation tends to emphasize the importance of the agreement the claimant asserts. [99] The claimant does not contend that the parties actually discussed ownership of property and debt in future. As I see it, I am asked to infer a comprehensive agreement that all property and debt the parties would hold in future would be separately owned, and would not be divided upon separation, from the asserted agreement to have separate finances, and the parties' financial arrangements generally. [100] However, as I have said, I am unable to say what terms the parties may have agreed to in 2004 or subsequently concerning property and debt, generally. [101] The terms of the asserted agreement are unclear. So for example, an agreement to have completely separate finances, hold all property and debt separately, and not to divide property and debt upon separation might logically extend to pension assets. But there is no evidence that the parties discussed or even contemplated the possibility that they might accumulate pension assets, as they in fact have done. When they had the discussions the claimant relies on, they were both young lawyers working in the private sector. Although there is no valuation

of the pension assets in evidence, I can safely infer that their pension assets (especially that of the claimant) are very valuable. [102] The claimant does not argue that the parties' pensions are not to be divided in accordance with the provisions of the FLA. [103] It seems to me that the claimant's argument mainly applies to Linkleas, which she argues is hers alone and not subject to division. This makes sense, since this is the most valuable property in issue, aside from pensions. However, the claimant does not argue that the parties made a more limited agreement under s. 92 specifically relating to Linkleas. Her assertion is of an all-encompassing agreement. [104] In their 2013 negotiations, the claimant contended that when she used her portion of the proceeds of sale of Royal Avenue to purchase Linkleas, she understood that the respondent would have no financial or other interest in it. [105] She negotiated for an agreement as follows: Each spouse hereby unilaterally and unconditionally waives all claims to any property, assets, pensions, or any other thing of value belonging to the other, at present or however acquired in the future. [106] This is the general nature of the agreement the claimant asserts the parties made in 2004 or 2005. But this agreement is much broader than an agreement to simply keep finances separate, in the context of an ongoing relationship. [107]

As a quid pro quo, the respondent negotiated for an indemnity against child support expense that he might be obliged to pay at law. He was concerned that if he moved to Victoria but the new job did not work out, he would have difficulty paying child support. [108] The parties failed to agree on any terms. [109] The claimant relies upon Voitchovsky CA. The case is distinguishable, on multiple grounds. [110] In Voitchovsky CA, the Court of Appeal found no error in the trial judge's conclusion that the parties had an oral agreement to keep their financial assets and property separate, and not to share them. The court held that the section does not require that the agreement expressly address separation, in order to be an enforceable agreement within the meaning of section 92. The court also affirmed the trial judge's decision that, given the agreement of the parties, it would be significantly unfair to divide the parties' property equally. [111] As the trial judge in Voitchovsky BCSC, W.A. Baker J. noted at para. 38, it is clear from cases in this area that the existence of an oral agreement under section 92 must be assessed on the basis of all of the evidence before the court. The unique facts of each case will provide the basis to find or reject the existence of an agreement between the parties as to the ownership and ultimate division of family assets: Voitchovsky BCSC, para.

39. The Court of Appeal noted these comments in its decision: Voitchovsky CA, paras. 8-10. [112] In Voitchovsky CA, there was no dispute between the parties about the existence of an oral agreement to keep the parties' financial assets and property separate and not to share them. There was no dispute that the agreement governed how the parties' respective assets would be dealt with: paras. 27 and 30. [113] The trial judge found: [40] I find the whole of the evidence is consistent with the views expressed by both parties at trial, namely that they were independent people who wanted to keep their financial lives separate while enjoying their time together as a couple. While Mr. Gibson asked Ms. Voitchovsky several times to marry him, Ms. Voitchovsky was adamant that she would not marry again. Both parties valued the independence their arrangement provided them. Other than specific expenses which they agreed to share, each maintained their own independent financial lives. [114] The Voitchovskys were never married. They were both married previously and had children from their previous relationships. When their relationship began in 1989, they both owned homes and had other property. They both had established careers. The trial judge found that they wanted to keep their financial lives separate "while enjoying their time together as a couple". [115] By contrast, in this case, when

the claimant asserts the agreement was made, the parties were young, previously unmarried, had no significant assets, and were planning to have a family together. They could not know what their future earnings, property and debt might be. [116] They have in fact had three children together, and have each contributed in different ways to raising their children. [117] In Voitchovsky BCSC, the trial judge found that respecting the agreement to keep their property separate was consistent with their legitimate economic expectations. The majority of the parties' 30 year relationship was carried on under the former family law legislation, the Family Relations Act, R.S.B.C. 1996, c. 28 [FRA] which did not have a presumption of equal property division for unmarried couples. [118] During the relationship, Mr. Gibson had been frugal. He had given only modest financial gifts to his four children. In contrast, Ms. Voitchovsky had chosen to give her three children substantial financial gifts. She also gave money to her sister periodically and to her grandchildren: Voitchovsky BCSC, para. 31; Voitchovsky CA, para. 15. [119] By contrast, in this case, the parties were married. Had they given any thought to the question of what would happen if they moved to British Columbia and then separated, they would have assumed that property would be presumptively equally divided under the former

legislation, the FRA, which was in force until March 18, 2013, when it was replaced by the FLA. [120] In this case, neither party adduced evidence as to applicable Alberta family property law in 2004, or their expectations under governing legislation upon separation, at any time. [121] In summary, I conclude that the claimant has not established an agreement respecting the division of property and debt within the meaning of s. 92. [122] Accordingly, I find that subject to exclusions of property under s. 85, all of the family property and family debt held by the parties at the time of separation is family property and family debt for purposes of division under Part 5 of the FLA. [123] The parties did not address the possible effect of s. 252 of the FLA. [124] Section 252 of the FLA states: Transition -- proceeding respecting property division 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. [125] There is no equivalent to s. 92 of the FLA

in the FRA. Under s. 61(2) and (3) of the FRA, an agreement concerning ownership in or division of family assets or other property during marriage or on the making of an order for dissolution of marriage, judicial separation or a declaration of nullity of marriage (a "marriage agreement") was required to be in writing, signed by both spouses, and witnessed by one or more other persons. An oral agreement did not suffice: W.H.P. v. S.L.A., 2003 BCSC 530. [126] As I have decided that the claimant has not established an agreement under s. 92 FLA as asserted, it is not necessary for me to address the question of whether s. 252 of the FLA means that s. 92 does not apply to these proceedings. E. Excluded Property - Section 85 [127] Under s. 85(1), property excluded from family property includes property acquired by a spouse before the relationship between the spouses began, inheritances to a spouse and gifts to a spouse from a third party. Under s. 85(2), the onus of establishing that property is excluded is on the spouse so claiming. [128] A summary of the principles relating to tracing of excluded property is found in the decision of Justice MacNaughton in K.S.P. v. J.T.P., 2023 BCSC 1188, as follows: [475] Pursuant to s. 85(1)(g) of the FLA, the court may "trace" property derived from a spouse's excluded property, such that the property is excluded family property. [476] Pursuant

to s. 84(2)(g) of the FLA, family property includes the amount by which the value of excluded property has increased during the relationship or since the property was acquired. [477] In Shih v. Shih, 2017 BCCA 37, the Court of Appeal addressed the issue of tracing excluded property. The Court explained that a tracing of excluded property does not have to be perfect, and that the proper test for establishing a claim to excluded property is based on a balance of probabilities: paras. 40-42. The onus is on the party seeking the exclusion. For a party to establish a claim to excluded property, they must do so with clear and cogent evidence: para.

43. If documentary evidence is not available, the party bearing the onus of proof will need to testify as to their recollection of the transaction in dispute, and that evidence will be scrutinized for credibility. In balancing the evidence as a whole, the trial judge must be permitted to draw reasonable inferences from evidence that is less than certain or precise to do justice between the parties: para.

44. These principles were recently affirmed by the Court of Appeal in Zhao v. Fang, 2022 BCCA 227 at para. 25. [479] Excluded property can become family property where one spouse gifts excluded property to the other party or applies it to a joint asset, thereby gifting it to the marriage: V.J.F. v. S.K.W., 2016 BCCA 186 at para. 75. [480] In assessing whether an exclusion is "lost" through a gift to a spouse or to the marriage, the court looks at the intention of the spouse: Venables v. Venables, 2019 BCCA 281 at para.

95. Where there is insufficient evidence of the actual intention of the transferor, then the common law presumption of advancement applies: Namdarpour v. Vahman, 2019 BCCA 153 at para. 40; V.J.F. at para. 77. [481] In Pisarski v. Piesik, 2019 BCCA 129, the Court reiterated that the onus of proving an exclusion is on the party asserting it, on a balance of probabilities: para.

24. In that case, the Court found that despite differing contributions of pre-marital assets, the evidence did not support a finding, on a balance of probabilities, that the parties' intended to preserve their exclusions. The appellant took no steps to keep the funds separate or to document that his contribution was to be treated as separate: paras. 27, 29. Furthermore, an unequal division was not warranted as the significant "unfairness test" contemplated by s. 95 of the FLA requires much more than differing financial contributions to a relationship: paras. 35-36; Banh v. Chrysler, 2022 BCCA 74 at paras. 33, 40, citing Jaszczewska v. Kostanski, 2016 BCCA 286. [129] The principles set out in paras. 479-481 above would be affected by the new provisions added to the FLA in the Family Law Amendment Act, 2023, sections 3 and 4 of which are as follows: 3 The following section is added: Certain presumptions not to be applied 81.1 (1) The rule of law applying a presumption of advancement must not be applied in questions respecting the ownership of property as between spouses. (2) The rule of law applying a presumption of resulting trust must not be applied in questions respecting the ownership of property as between spouses. 4 Section 85 is amended by adding the following subsection: (3) If property is excluded from family property under subsection (1), the exclusion applies despite

any transfer of legal or beneficial ownership of the property from a spouse to the other spouse. [130] These provisions came into force May 11, 2023. However, as previously noted, these new provisions are not applicable to pre-existing proceedings such as this one, pursuant to s. 24(2) of the amending legislation. [131] The parties have some vehicles of moderate value. The parties have minimal financial assets, other than the respondent's RRSP in the amount of approximately $58,000, and Registered Education Savings Plans (RESPs) held by the claimant for the benefit of their children. The claimant has artwork, which is not appraised. She asserts that its value is nominal. The respondent suggests it has a value of $100,000.

1. RRSP, Gifts, Inheritances [132] The claimant argues for the following exclusions from family property: Claimant's RRSPs bought in 2004 pre-marriage $19,500.00 Loan, later forgiven, from claimant's father $257,000.00 Claimant's inheritance from her maternal grandfather $361,000 Grandfather's bank account $115,000.00 (approx.) Art inherited from family unvalued Total $750,500 [133] The respondent did not challenge the claimant's evidence with respect to the asserted exclusions, and does not challenge these property exclusion claims. [134] I accept the evidence of the claimant concerning these monies and the use to which they were put. All of the monies went to pay for Linkleas, either purchasing it or building a new home on the same property. The $257,000 loan, later forgiven, was used to buy the property in 2007. The claimant liquidated her RRSPs in 2013 in order to pay for the construction including the $19,500 sum that she brought into the marriage. [135] The claimant's maternal grandfather died in August 2011. He owned a property in Kelowna. As the claimant's mother predeceased him, the claimant received his entire estate, in the sum of $361,500. She also received the benefit of a joint chequing account which held approximately $115,000. In applying these funds towards Linkleas, the claimant did not intend to gift the monies to the respondent or to the marriage. The home was in her name only. Therefore I conclude that the exclusions relating to these monies has not been lost. [136] In summary, I accept that the claimant has established exclusions from family property in the amount of $750,500.

2. Tools [137] The respondent made no argument for exclusion of property for his benefit. However, the claimant's submissions note that the respondent's most recent Form F8 financial statement refers to certain machine tools and other tools (without listing them) that were acquired prior to the relationship. No value is given. There is no evidence at trial about this matter, other than what is set out in the financial statement. [138] I direct that the respondent's claim for exclusion of property in relation to tools be determined by the registrar, as part of the registrar's inquiry and assessment that I am ordering.

3. Artwork [139] The claimant testified that she has around 110 pieces of art, only 10 or 15 of which were purchased by her. The rest were gifts or inheritances. There is no detailed inventory of the artwork and no valuation of it. I accept that artwork inherited or given to her alone is excluded property. The purchased artwork is family property, subject to division.

4. Vehicles [140] The claimant has three vehicles, a 2016 Honda Pilot, a 2006 Jeep TJ, and a 1972 Volkswagen bus, that she values collectively at $42,000. The respondent has a 1999 Dodge pick-up truck, a 1998 Yamaha motorcycle, five dirt bikes and a trailer and a homemade boat of unknown value. He values these vehicles collectively at $31,000 in his F8. On equal division of family property, a compensating payment is required to make up the difference.

5. Financial Assets [141] As noted, the parties' pensions are unvalued. [142] The claimant holds RESPs for the children valued at $57,000. RESPs are the property of the subscriber until the subscriber directs payment to a beneficiary: Vetrici v. Vetrici, 2015 BCCA 146, at para.

37. However, circumstances may show that the parties established a trust: Labatte v. Labatte, 2022 ONSC 4787, at paras. 50-56. [143] The parties made no submissions as to division or control of the RESPs. I infer that the parties agree that the RESPs should be maintained by the claimant for the benefit of the children. In such circumstances, several courts have ordered the subscriber to hold the funds in trust for the benefit of the children: K.L.T. v. F.M., 2021 BCSC 1688; Healey v. Healey, 2022 BCSC 2072; T.M. v. C.V.M., 2022 BCSC 1783. I make the same order in this case; that is, a declaration that the claimant holds the RESP funds in trust for the benefit of the children. [144] The claimant has no other significant financial assets. The respondent holds an RRSP valued in his most recent F8 at $58,198. These RRSP funds came from a repayment to the respondent of monies that he lent to his parents to assist them with their mortgage payments, beginning in 2015. They sold the house and repaid the respondent $75,000 (in two payments) in January or February 2021. He used $55,000 to purchase the RRSP. He agrees it is family property subject to division. [145] He used the other $20,000 to pay for legal fees. This is also family property subject to division, for which the respondent must account. [146] The claimant suggests a registrar's hearing to deal with valuation of various

items of personal property that have not been inventoried or valued at trial: a) guns and tools; b) contents of safes at Linkleas and Runnymede properties [respondent's rented residence]; c) art purchased during the marriage; and d) household contents. [147] As it was not possible to deal with these matters at this trial, I direct a reference to the registrar to determine what property in these categories is family property subject to division, its value, and any compensating payments required to equalize the division of family property in this respect. The registrar is to inquire into and assess these issues, and certify the result, pursuant to Supreme Court Family Rule 18-1. F. Equal or Unequal Division - Section 95 FLA [148] Section 95 is as follows: Unequal division by order 95 (1) The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to (a) equally divide family property or family debt, or both, or (b) divide family property as required under Part 6 [Pension Division]. (2) For the purposes of subsection (1), the Supreme Court may consider one or more of the following: (a) the duration of the relationship between the spouses; (b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division]; (c) a spouse's

contribution to the career or career potential of the other spouse; (d) whether family debt was incurred in the normal course of the relationship between the spouses; (e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt; (f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends; (g) the fact that a spouse, other than a spouse acting in good faith, (i) substantially reduced the value of family property, or (ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse's interest in the property or family property to be defeated or adversely affected; (h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order; (i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness. (3) The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal

support, the objectives of spousal support under section 161 [objectives of spousal support] have not been met. [149] The claimant argues that it would be significantly unfair to divide the property and debt of the parties equally. [150] The test to be met in order to establish "significant unfairness" of equal division is high. In Voitchovsky CA, the court summarized the test as follows: [59] The significant unfairness threshold required to depart from an equal division of property under the FLA is high (V.J.F. v. S.K.W., 2016 BCCA 186; He, at para. 19). "Significant" has been defined as "extensive or important enough to merit attention" and to justify an unequal distribution, it is necessary "to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2)" (Jaszczewska v. Kostanski, 2016 BCCA 286, at para. 41 [Jaszczewska], citing Remmem v. Remmem, 2014 BCSC 1552, at para. 44). [151] In Zentner v. Katz, 2021 BCSC 1079, aff'd 2022 BCCA 371, I noted that unlike the former legislation, the FLA does not list circumstances relating to the acquisition, preservation, maintenance, or improvement of family property during the relationship as a factor to be considered under s. 95(2). I added: 74 If relative contribution in respect of the property was intended to be a significant factor in determining whether equal division is significantly

unfair, the Legislature would have said so: Jaszczewska v. Kostanski, 2016 BCCA 286 at paras. 40-44. 75 The legislature intended the general rule of equal division to prevail unless persuasive reasons can be shown for a different result. The threshold for "significant unfairness" is high. There must be a real sense of injustice that would permeate the result if the court did not deviate from the presumptive equal division: Singh v. Singh, 2020 BCCA 21 at para. 134. 76 Entitlement to an equal share in the net family property is not dependant on use or contribution to the family property: Kumagai v. Campbell Estate, 2018 BCCA 24 at para. 81 [Kumagai]. Cases in which unequal contribution was found to reach the significantly unfair threshold have involved marked, prolonged, and intentional or unexplained disparities in contribution to family burdens: Khan v. Gilbert, 2019 BCCA 80 at para. 32. [152] Concordant with the principle that relative contribution to the family property is not generally a factor in the analysis, "the court should not engage in a roving inquiry into the spending habits of the spouses during the marriage": Kuo v. Chu, 2008 BCSC 504, at para. 102, aff'd 2009 BCCA 405. [153] The claimant contends that the relevant factors under section 95(2) in this case are: (b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1)

[setting aside agreements respecting property division]; (c) a spouse's contribution to the career or career potential of the other spouse; (i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness. [154] I do not accept that the high threshold has been met in this case. [155] The claimant relies of course upon her contention that the parties made an oral agreement respecting the division of property and debt within the meaning of section 92. The claimant argues that, in view of that agreement, it would be contrary to the legitimate expectations of the parties arising from a long-standing separation of finances to divide the property equally. [156] The words "any agreement between the spouses" are very broad. I accept that "any agreement between the spouses" could take into account agreements about finances other than as contemplated by sections 92 and 93 of the FLA. [157] Standing alone, the fact that the parties maintained separate finances during the marriage does not mean that equal division would be significantly unfair. [158] Building upon the fact that the parties had separate finances during the marriage, the claimant argues that she contributed far more to the family finances than did the respondent. She purchased and rebuilt Linkleas, and paid for all expenses associated therewith. She argues that she

largely paid for other direct expenses associated with the children, such as the cost of nannies, and most school and extra-curricular expenses. She argues the respondent, whose income was not inconsiderable, self-indulgently spent his income on a series of depreciating recreational assets, such as an airplane, a boat, the VW camper, motorcycles, trucks, trailers, a gun collection, and so on. She characterizes the respondent's expenses as being associated with what she describes as his "adventure" activities with the children such as fishing, camping and hunting trips. [159] These arguments invite the court to examine the relative contribution of the parties to the family property, particularly Linkleas, and to engage in an after the fact comparative analysis of the spending habits of the parties during the relationship, contrary to the authorities. [160] Moreover, I observe that the respondent's spending that the claimant criticizes often involved the family. The parties took numerous trips together in the floatplane, for example. The VW camper van was intended to be used for a family vacation after its restoration by the respondent. Although the planned trip was somewhat unhappy, the camper van was in fact used for this purpose. As in any marriage, the parties had different roles and contributed to the marriage, including in this case the raising of their children, in

different ways. [161] The claimant was fortunate to obtain employment suiting her skills and abilities, quite early on in the relationship, and which turned out to be much more remunerative than she ever expected, as she testified. [162] As a result of her stable, and very remunerative employment, as well as the assets she acquired as gifts and inheritances, the claimant was in a position to contribute more to the family expenses and the accumulation of family property than was the respondent. [163] The large, timely gifts and inheritances the claimant received further strengthened her financial position. These are already subject to exclusion in the claimant's favour. It would not be fair to allow the claimant to rely on them again to support her contention of unequal contribution to the family property. [164] By contrast, and as I will explain further in the context of spousal support, the claimant's decision to move to Victoria in 2007 in order to take the BCIMC job complicated and constrained the respondent's career path and choices. [165] With the full benefit of hindsight it is easy to see that his "Plan B" endeavour to become a float plane pilot was a questionable career choice, and a distraction. One might speculate that perhaps the respondent could have found secure employment in British Columbia sooner without that distraction. However the respondent worked steadily

throughout the relationship, as did the claimant. He succeeded in obtaining remunerative, stable employment in Victoria. [166] I am not persuaded that the financial consequences of the inter-related career choices made by the parties during the relationship is a factor that leads to a finding of significant unfairness. [167] In any event, no precise or even rough analysis of the comparative spending of the parties is possible. There is no detailing accounting of the parties' spending during the marriage. [168] This is not a case involving "marked, prolonged, and intentional or unexplained disparities in contribution to family burdens" (see Kahn, quoted above, in Zentner). The claimant has not established that the respondent diverted or wasted large sums of money. I accept his evidence that he had to pay disproportionately for his personal living and travel expenses during the relationship, as he was often away from Victoria. [169] On the other side of the ledger, the claimant has enjoyed an affluent lifestyle, with many vacations. It does not appear that she has been frugal. She has no savings and a high debt load. Building a new home at Linkleas cost $900,000. Despite her large income and the very substantial gifts and inheritances used to purchase and rebuild Linkleas, as of March, 2020, near the separation date of May 1, 2020, Linkleas was encumbered with a mortgage and

secured line of credit totaling $1,143,607. In fairness, I recognize that the claimant has carried the vast majority of the household and children's expenses. The children's expenses are high, due to spending on such things as private schools, nannies, and many costly extra-curricular activities, including as music and dance lessons, sailing, golf, skiing archery and summer camps. [170] Leaving aside the items to be dealt with at a registrar's hearing, the net property to be divided is $628,694, not including pensions. On this basis, the claimant is required to make an equalization payment to the respondent of $216,347. (The respondent would keep his RRSP in the sum of $58,198, in full, because the foregoing calculation already takes into account the $75,000 that he received by way of repayment of the loan to his parents, which was the source of his RRSP contribution.) I am not persuaded that this outcome is meaningfully or compellingly unfair having regard to the factors set out in section 95(2). [171] Accordingly, I order that the family property and debt of the parties be equally divided. G. Occupational Rent [172] I stated in Smith v. Smith, 2023 BCSC 991: [61] Occupational rent is not a stand-alone claim, but may be considered in the re-apportionment analysis. The objective of an award for occupation rent is to do what is "just and equitable" between the parties, albeit

within the parameters of the statute: Shen v. Tong, 2013 BCCA 519, at para. 94 (per D. Smith J.A., concurring); Holland v. Holland, 2017 BCCA 75, at para. 23. [173] In my view an award of occupational rent is not warranted in this case. Although the respondent has some equity in Linkleas, of which the claimant has had the benefit since separation, the respondent is awarded retroactive spousal support, has a substantial income of his own, and, in the main, has not paid child support since separation. Occupational rent is not required to achieve an equitable outcome. III. Spousal Support A. Entitlement to Spousal Support [174] The respondent claims entitlement to spousal support, on compensatory grounds. He argues that the parties decided, jointly, to move to Victoria in 2006, in order to allow the claimant to take the BCIMC job that she wanted. He argues that his career was subordinated to that of the claimant, which has had detrimental consequences to his career, which persist. [175] The claimant denies this. The claimant's position is that the respondent's career decisions were independent and were unaffected by the marriage. She contends that the respondent did not sacrifice his career for the benefit of her career. She denies that he supported her career in any manner. [176] She also argues that she took on the burden of paying for and maintaining housing as well as the

expenses related to the children, and their care. She also argues that the respondent was "unencumbered by childcare and household work, which left him completely free to follow his career aspirations and interests." [177] The respondent's claims are made under the Divorce Act, R.S.C., 1985 c. 3 (2nd Supp.). Spousal support orders are dealt with in section 15.2(1) of the Divorce Act. The relevant subsections are as follows: Factors (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. Objectives of spousal support order (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage 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. [178] In McGrail v. McGrail, 2016 BCSC 104, I stated: [96] All of the factors referred to in s. 15.2(4) and all four of the objectives under s. 15.2(6) must be taken into account. No single objective is paramount. The four objectives set out in s. 15.2(6) can be viewed as an attempt to achieve an equitable sharing of the economic consequences of marriage or marriage breakdown: Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 [Moge]. [97] Section 161 of the FLA is substantially the same as s. 15.2(6) of the Divorce Act. [98] The relevant principles regarding spousal support were reviewed and summarized by Madam Justice Rowles, for the Court, in Chutter v. Chutter, 2008 BCCA 507 at paras. 45 to 61. Madam Justice Rowles at para. 47 states that the Supreme Court of Canada has identified three grounds for entitlement to spousal support: (1) compensatory support, which primarily relates to the first two objectives of the Divorce Act; (2) non-compensatory support, which primarily relates to the third and fourth objectives; and (3) contractual support, citing Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 at paras. 15, 41-42. [99] With respect to orders for retroactive spousal support, in D.B.S. v. S.R.G, 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231

[D.B.S.] the Supreme Court of Canada states that in determining whether to make a retroactive award of child support, the court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix: page 275-276. [100] In Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269 [Kerr] the Supreme Court stated that while D.B.S. was concerned with child as opposed to spousal support, similar considerations are also relevant to deciding the suitability of a "retroactive" award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support; Kerr, para.

207. Nonetheless, the same flexibility and regard for a holistic view of the matter on its merits is appropriate in the case of retroactive spousal support: Kerr, para. 212. [179] Although the respondent relies on compensatory grounds (which primarily relate to the first two objectives of the Divorce Act), non-compensatory support, which primarily relates to the third and fourth objectives, should not be entirely ignored. As noted in Chutter, at para. 46, citing Moge v. Moge, [1992] 3 S.C.R. 813 at 850-853, 43 R.F.L. (3d) 345, courts must examine all four of the objectives set out in 15.2(6), and having regard to those policy objectives, courts must consider the condition, means, needs and other circumstances of each spouse, with regard to the factors set out in section 15.2(4). [180] There is no claim for contractual support in this case, and no basis for such a claim, nor is there any order, agreement or arrangement relating to support of either spouse that is relevant. [181] The claimant argues that in the fall of 2006, she had been planning to pursue a partnership at BLG, Calgary, but that in light of the respondent's insistence on selling Royal Avenue so that he could buy an airplane, the claimant "gave up on pursuing partnership and decided to accept a job that she had earlier rejected, moving to Victoria to pursue an in-house counsel opportunity at BCIMC." [182] I am not

persuaded that this narrative accurately describes the claimant's motivation and decision-making at the time. [183] The claimant had already applied for the BCIMC job months before, in February 2006. The position involved a substantial cut in pay (from approximately $150,000-$160,000 at BLG, to about $90,000, base pay, plus bonus), and required only a one year call lawyer. The claimant was a seven year call lawyer with broad experience in securities law. Even though she did not pursue the position initially, making the application is a strong indication that the claimant was seriously considering a move to Victoria, and a very significant, (or even drastic) career change, well before the motor vehicle accident, and well before the respondent said anything about selling their home. [184] After the accident in July, the claimant returned to BLG in September 2006. She noted in her evidence that her BLG job was very demanding. It had a billable hours target of 2,200 hours per annum. The respondent testified that the claimant worked 50 or more hours per week and sometimes up to 90 hours in a week. The claimant testified that she believed she had ruined her chances of being a nonequity partner at BLG due to the time she took off following the MVA. The validity of this belief seems unlikely. In October 2006, shortly after returning to BLG, she inquired again about the BCIMC job. It

seems more likely that, as one might expect, a confluence of factors led to the claimant deciding to make a career change out of private practice, including the heavy demands of her private practice career, re-calibration of her priorities in view of her mother's tragic and untimely death, problems in the marital relationship, and a desire to relocate to Victoria. If as the claimant contends the respondent wanted to sell Royal Avenue so that he could buy an airplane, this could have been one of several factors in her decision. [185] There is no evidence that the claimant sought public sector work in Calgary. When several years later the respondent suggested that the claimant seek work with the Alberta equivalent of BCIMC, the claimant rejected the idea. [186] The claimant denies that her move to Victoria and the respondent's subsequent move to Victoria in early 2014 involved any "sacrifice" of his career or career prospects. She notes that in the fall of 2006, the respondent was a civil litigation associate at May Jensen, and that he had been told that he had no future at the firm as a partner. Therefore, she argues, the respondent could easily have resigned from May Jensen and obtained work in Victoria as a civil litigator. [187] The respondent contends that the market for civil litigators in Victoria did not look good at the time, and he formed the view that his best legal

job option there likely involved obtaining a government legal position. He also began to focus on "Plan B" which was to change careers to become a float-plane pilot. In the meantime, he obtained some good paying files from May Jensen, and continued work as a sole practitioner. He says his objective remained to obtain employment in Victoria or on Vancouver Island. In 2007 he rented a condominium in Calgary and used that as an office. He purchased the floatplane and continued to build experience as a pilot. He obtained a commercial pilot license on March 1, 2009. However by June 2010, he abandoned the pilot career aspiration, and took a "government job" with the Alberta office of the Public Trustee. Later, in 2011, he took a position with Alberta Justice as a prosecutor. [188] The respondent has produced a number of job applications and records relating to his efforts to obtain employment, in late 2009 and 2010. He says he was unable to locate records relating to his earlier search efforts. Some of the later positions applied for were for government jobs working in British Columbia, such as an application to the Office of the Information and Privacy Commissioner on March 10, 2010 (for a position as portfolio officer) and to the College of Dental Surgeons of British Columbia in March 2010, as in-house counsel. He also applied for a legal counsel position with the Forest Practices

Board on March 19, 2010. He applied for positions as Crown counsel in Prince George and Kamloops. He made other applications for positions in other locations such as Yellowknife, Calgary and Edmonton. He even applied for a job as a strategic analyst with the Canadian Security Intelligence Service, in Ottawa, in November 2009. [189] The possibility that the parties would live together in Calgary ended in 2013 when the claimant informed the respondent that she had decided that she would definitely not return to Calgary. [190] In September 2013, while working as a prosecutor in Calgary, the respondent finally obtained an offer of a position in Victoria, with the A.G. [191] I conclude from the evidence in totality that if he could have done so the respondent would have preferred to leave the practice of law and become a floatplane pilot operating on Vancouver Island. When he determined that that career option was not viable, in 2010, he sought and obtained work, primarily as a government lawyer of one sort or another. I accept his evidence that it was not easy to obtain a government legal job in Victoria, but he eventually succeeded in obtaining such a position. [192] It is of course impossible to say with confidence what would have happened to the respondent's career had the claimant had not decided to move to Victoria in order to pursue her career there. These are past

hypothetical events which cannot be proven with confidence or even on a balance of probabilities. However, I accept that there is a real and substantial likelihood that had the respondent remained in Calgary, throughout, he would have been more successful in his career. [193] It is a reasonable likelihood that without the move to Victoria, the respondent would have remained in private practice, in Calgary. During 2007 and 2008, the respondent retained a valuable connection with May Jensen. As noted, his offer of partnership in 2006 had been blocked by a single partner, who later departed the firm. In 2009, the respondent was offered a position with May Jensen, as a partner. The firm declined his proposal that he work part-time in Victoria and part-time in Calgary. In the result, the option of returning to private practice as a partner with May Jensen did not materialize. This evidence is confirmed by Robin Camp, who was the respondent's mentor at May Jensen, and was a partner with May Jensen after the respondent left the firm. Mr. Camp testified that the partners at May Jensen took equal draws with no adjustment for performance. When he left the firm in 2012, the partners were earning approximately $700,000. To his knowledge, the firm has continued to prosper, and now employs several dozen lawyers. [194] The claimant's submissions ignore the fact that in 2013 she refused to

move back to Calgary, where the respondent had stable employment as a prosecutor. The respondent was given the choice of moving to Victoria and obtaining employment there, or separating. He chose to move to Victoria, taking a significant career risk in doing so. His B.C. government career might not work out, as he recognized at the time. This risk underpinned his concern about being liable to pay child support if the parties were to separate after he moved to Victoria, but lost his job. [195] There is also a fair possibility that the respondent's departure from the Alberta prosecution service in 2013 was a setback in his career which may have had lasting consequences. A fair inference is that, had he stayed in Calgary with the prosecution service, he would have had more seniority. What can be said is that his move to B.C. did not advance his career. [196] In leaving his Alberta job, the respondent lost some accumulated pension benefits. The claimant contends that this was avoidable as his Alberta pension was fully portable to B.C., while the respondent says otherwise. I am unable to resolve this issue on the evidence. He obtained reimbursement of his Alberta pension contributions, and was taxed on the payment. [197] In summary, while there are circumstances that complicate the picture (the respondent's sojourn into becoming an air floatplane pilot, and a change from private

practice to government work), I am satisfied that the move to Victoria likely had a detrimental effect on the respondent's career, and his earnings. [198] The move to Victoria was driven by the claimant's career choice, as well as her preference regarding place of residence. The move to Victoria proved very satisfactory and rewarding for the claimant's career, and fulfilled her wish to relocate. [199] As I will explain in further detail below when addressing parenting, the claimant minimizes the respondent's role in raising the three children and contributing to their care. The respondent's contribution to raising the children has been material. [200] In summary, in all of the circumstances, there is a compensatory basis for spousal support. [201] There is also a needs basis for spousal support. [202] The respondent has been economically disadvantaged by the breakdown of the marriage. While they were married, the respondent had the benefit of residing together with the claimant and the children in the home that was paid for entirely out of the claimant's substantial income. She also paid for other shared living expenses. He no longer has this support. The claimant largely paid for the cost of raising the children. This expense is now shared. [203] The only substantial assets are Linkleas, the pensions of the parties, and the respondent's modest RRSP holdings. The value of the

property to be shared is not large, in the context of a 16 year marriage. The division of property will not eliminate the difference in their economic circumstances. [204] It is likely that the claimant's income will continue to exceed the respondent's by a large margin. Both parties will be required to maintain a household suitable for three children. Neither has re-partnered. Without spousal support, their standards of living will be vastly different. [205] Dr. Korpach noted signs of economic disparity between the claimant's bright, modern and spacious home (Linkleas) and the respondent's rather dark, small and cluttered rented home, and differences in the children's activities when they are with each parent, driven by their parent's disparate financial resources. She noted that research suggests that upon divorce it is usually best that children enjoy similar economic status between the homes of their parents. [206] The claimant relies on Lee v. Lee, 2014 BCCA 383. In that decision, the Court of Appeal affirmed the decision of the trial judge, who had concluded that no basis for spousal support had been established. [207] In Lee, the parties had no children. The trial judge concluded that there was no basis for spousal support to the husband on compensatory grounds. The husband's new partner was a police officer who earned a good income. The trial judge was not satisfied

that the husband had established what his actual income was for purposes of assessing his entitlement to spousal support. The trial judge concluded that he had chosen to be voluntarily underemployed. While he claimed to be partly disabled, the trial judge rejected that contention. The appeal focused on whether the husband could establish grounds for spousal support solely on the disparity between his income and that of the wife, going forward. The court was critical of its own prior decisions in Chutter and Yemchuk v. Yemchuk, 2005 BCCA 406, in relation to their treatment of needs-based support. Newbury J.A. with Groberman and Bennett JJ.A.'s concurring, stated: [60] We have not been referred to any decision of this court, however, in which spousal support was awarded solely on the basis of disparity in incomes, or even solely on the basis of the non-compensatory model. (Lee, para. 60). [208] Lee is distinguishable from the present case, on multiple grounds, including that, here, the parties have had three children together, and have both contributed, in varying ways to raising them. [209] In summary, I conclude that the respondent has established a basis for compensatory spousal support, and there is also a basis in non-compensatory spousal support. B. Spousal Support - Quantum and Duration [210] The parties have agreed upon their incomes, as

follows: Year Claimant Respondent 2006 173,481 140,552 2007 104,650 190,725 2008 193,117 150,341 2009 220,318 149,773 2010 89,381 63,823 2011 235,687 134,772 2012 265,861 Est. 135,000* 2013 275,048 Est. 135,000* 2014 251,665 Est. 160,000* 2015 332,652 161,033 2016 327,389 169,970 2017 174,013 Approx. 150,000* 2018 300,269 152,842 2019 376,819 141,599 2020 402,545 292,429 2021 421,254 195,642 2022 402,529 197,018 2023 (projected) 656,895 202,929 *estimates, based upon preceding or subsequent year; documents not available. [211] From a health point of view, there is no reason to think that either party cannot continue to work as a lawyer until the conventional retirement age of 65, or beyond. There is no medical opinion evidence. [212] The respondent has had chronic neck pain for several years. Dr. Korpach notes that he is wait-listed for surgery. He told Dr. Korpach that he had no other physical issues. Dr. Korpach records that the respondent has arthritis with nerve impingement. At trial his position was that his health issues are not directly relevant to the property, spousal support or parenting issues in this case. [213] The claimant's health is generally good, but she has musculoskeletal pain, low back pain, possible IBS, arthritis, and a history of asthma. [214] She has worked at BCIMC since January 2007. By 2016, she was Associate General Counsel, when she was expecting

C. She did not apply for the position of General Counsel at that time. [215] She described her current regular position as Deputy General Counsel. The full name of her position is "Vice President, Legal Affairs and Deputy General Counsel". [216] Effective January 21, 2023, the claimant has been working in a temporary role as co-acting Senior Vice President, Legal Affairs and General Counsel, with a base salary of $290,000. BCIMC's former General Counsel was terminated. She testified that she chose not to apply for the General Counsel position, primarily due to what she described as the high conflict divorce proceedings over the last two years, together with her childcare obligations. Her position as co-acting General Counsel ends on September 29, 2023. Her base salary will then revert to the sum of $242,000. [217] Her position is eligible for bonus pay. Previously, her bonus pay was limited to 90% of her salary. As of 2023, her bonus eligibility has increased to an amount up to 200% of her salary. Her bonus relates to the performance of BCIMC's managed investments. She is not personally involved in managing the investments. [218] The BCIMC fiscal year ends March 31. The bonus is calculated on performance for the prior year. The bonus is paid in June or July, based upon performance to March 31. [219] Her 2024 bonus will be based upon her salaries for both her base (permanent)

position and her acting position, prorated. It will be capped at 200% of her salary. [220] The claimant's projection for 2023 income, $656,895, is, therefore, a combination of the salary she has earned so far in 2023, as well as the bonus pay she received for the year ending March 31, 2023. She testified that 2022 was a record year for financial performance. (I take it she was referring to 2022 - 2023, in saying this.) [221] The claimant argues that the claimant's increases in income post-separation should not be included in her income for spousal support purposes. Her 2020 income was $403,379. Her estimate of 2023 income is $656,895. The increase in her income is related to two factors: 1. A larger base salary due to assuming the role of acting General Counsel, and 2. Her bonus, based upon BCIMC's record earnings in the previous fiscal year. [222] In Helle v. Helle, 2019 BCCS 97, the Court of Appeal endorsed the following comments from Justice Punnett in Judd v. Judd, 2010 BCSC 153: [23] The resolution of the issue of post-separation wage increases is clearly fact based. The principle that appears to emerge from current case authority is that the connection the increase in salary has to the recipient's contribution during the marriage is determinative. If the increase in salary is founded in expertise and seniority established during the marriage and no intervening event or

events are the cause of the increase, then the increase is to be included unless the recipient's role during marriage necessitates a different determination. If an event after separation is the reason for the increase, in whole or in part, then the increase may be excluded from consideration, also in whole or in part. [223] In this case, the claimant's increase in salary is founded on expertise and seniority established during the marriage, and there are no intervening events causing the increase, therefore the increase should be included in the claimant's salary for spousal support purposes. The dismissal of the previous General Counsel is not in my view an intervening event within this context. The departure of senior executives, for whatever reason, is an ordinary, regular occurrence in most organizations. Given the claimant's regular position as Deputy General Counsel, her temporary promotion to co-acting General Counsel is not surprising. [224] The recipient's role during the marriage does not necessitate a different determination in this case. The respondent has established grounds for compensatory support, based largely on the parties' move to Victoria, which enabled the claimant to take the job with BCIMC. [225] The claimant's income is above the Spousal Support Advisory Guidelines "ceiling" of $350,000. As the SSAGs note, at section 11.1, the term "ceiling" may be

misleading. There is no absolute ceiling, just an income level above which the standard formula can be varied. The "ceiling" does not bar the continued use of the formulas as one method of arriving at an amount in a particular case: section 11.3. [226] In the Revised User's Guide 2016, the authors cite the decision of the Court of Appeal in Hathaway v. Hathaway, 2014 BCCA 310. The authors provide the following helpful summary of principles derived from the case law including Hathaway: There are some clear principles enunciated in the case law, even if the actual outcomes are discretionary and sometimes conflicting. In [Hathaway], there is a careful review of the law for cases above the ceiling, where some of these principles are stated. · The formulas for amount are no longer presumptive once the payor's income exceeds the "ceiling". · The ceiling is not an absolute or hard "cap", as spousal support can and usually does increase for payor incomes above $350,000. · The formulas are not to be applied automatically above the ceiling, although the formulas may provide an appropriate method of determining spousal support in an individual case, depending on the facts. · Above the ceiling, spousal support cases require an individualized, fact-specific analysis. It is not an error, however, to fix an amount in the SSAG range, as was done in [Hathaway] above. Evidence and argument are

required. · Where the payor's income is not too far above the ceiling, the formula ranges will often be used to determine the amount of spousal support, with outcomes falling in the low-to mid range for amount. How far is "not too far above" is still not clear. Somewhere between $500,000 and $700,000, it seems. · Once the payor's income is "far" above the ceiling, then the amount of support ordered will usually be below the low end of the SSAG range, but SSAG ranges are still calculated and sometimes the outcome will fall within the SSAG range. [Emphasis added.] [227] I observe that, according to the Bank of Canada's CPI inflation calculator (available online), the sum of $350,000 in 2008 (when the SSAGs were published) is equivalent to $477,849 in 2023. Thus, I conclude that currently, the claimant's income is in the "not too far above" amount, with reference to the ceiling. [228] Although the claimant contends that I should apply the "minimum plus" method of calculation of spousal support as described in section 11.3 of the SSAG, the claimant has not provided me with such calculations. The DivorceMate calculations I have been provided by the claimant are based on two income levels for her: her 2023 current year estimate of $656,895, and a four year average (2020 to 2023) of $471,265. [229] The amounts payable for child support, including the amount payable for special

expenses, also affect the spousal support assessment. [230] The claimant's DivorceMate calculation based upon an income level of $656,895 for her, and $203,160 for the respondent (very slightly more than his actual projection of $202,929) generates set-off child support payable at $4426. The spousal support range is $4,349-$7,661 per month. [231] Using these figures, and very high special expenses for the children, the low end of the SSAG range provides the claimant with a Net Disposable Income (NDI) of $19,422, and the respondent with an NDI of $16,898 (53.5% - 46.5%). [232] The claimant argues that the respondent's household has one fewer member, since A does not reside there. However, the respondent testified that he has a bedroom available for A, and of course hopes that she will occupy it. It makes sense that he continue to provide for A's residency with him. [233] As the respondent eventually succeeded in re-establishing his legal career in B.C., where he has stable employment, with very good pay and benefits, his compensatory spousal support claim is not especially strong. [234] Based on the modest strength of the respondent's compensatory spousal support claim, his own ample income, the substantial child support payable, and the income of the claimant moderately above the $350,000 "ceiling", in my view some downward adjustment of the spousal support payment is

appropriate in this case. [235] In my view a downward adjustment of approximately $500 to the spousal support payment provides a reasonable and fair apportionment of the available NDI. Therefore, the claimant's spousal support payment is set at $3850 per month. At that level, she receives about 55% of NDI, and the respondent, about 45%. [236] The order for spousal support is made under the Divorce Act. [237] I am not able to decide the duration of spousal support at this time. Therefore the duration of spousal support is unspecified, and will be decided by the court at a future time. The spousal support order is of course subject to variation under section 17 of the Divorce Act, on a material change in circumstances (section 17(4.1)). C. Retroactive Spousal Support [238] The respondent's counterclaim, claiming spousal support, was filed June 23, 2021. This should be the date for the commencement of retroactive spousal support. [239] The claimant is ordered to pay retroactive support from July 1, 2021 to the date of these reasons. The precise amount to be paid will have to be calculated with reference to the annual incomes of the parties and the child support and special expenses amounts. The amount of spousal support should be that which achieves the 55/45 sharing of NDI that I referred to previously. [240] The parties will have liberty to apply in the event that they are

unable to determine the amount payable. IV. Parenting Arrangements A. Introduction [241] Pursuant to the order of Justice Steeves made November 8, 2021, an assessment was prepared under section 211 of the FLA by Dr. Mary Korpach, a registered psychologist with vast experience in conducting parenting and family assessments. [242] The parties agree about guardianship and parenting arrangements, in most respects. They agree that they should both remain guardians of the children under section 39 of the FLA. They agree that the eldest child, A, will continue to reside primarily with the claimant, and that parenting time with B and C should be shared, either equally, or approximately equally. They agree that a parenting coordinator should be appointed for a period of two years. [243] The respondent accepts the conclusions made by Dr. Korpach in her report, and her recommendations. The claimant rejects some of the conclusions reached by Dr. Korpach, but largely accepts her recommendations, with some significant qualifications and exceptions. B. Legal Principles 1. S. 211 Reports [244] In relation to section 211 reports generally, I adopt my comments in A.P. v. J.C., 2018 BCSC 1381: [46] The facts set out in the s. 211 report are prima facie evidence of the truth of those facts: [116] The context under s. 211 is not comparable to that of an expert retained by a party in a non-family

case. As observed by Parrett J. in Goudie v. Goudie, [1993] B.C.J. No. 1049 (S.C.), at para. 33: [33] The procedure anticipated by s. 15 is one in which the investigator interviews the people involved, observes the relationship and interaction between the spouses and the children and reports those observations, facts and impressions to the court. In the truest sense these individuals act as the courts eyes and ears in what are all too frequently highly emotional areas of conflict. The safeguards built into the process include the early delivery of the investigation reports, the opportunity to call the investigator to the witness stand and the opportunity to respond to the report generally by other evidence. [117] FRA s. 15 reports were not governed completely by the evidentiary rules which would be in effect when dealing with reports requisitioned by one of the parties from an expert: Wu v. Sun et al, 2006 BCSC 1891, at para.

3. Similar legal principles can be applied to both s. 15 FRA and s. 211 FLA assessments or reports: K.B. v. J.B., 2015 BCSC 704, at para. 6. [118] The s. 211 author may provide an opinion, but it is for the court to decide the matters at issue: Johnson v. Skillen, 2009 BCSC 209, at para. 8; I.J.G.P.G. v. K.M., 2016 BCSC 1072, at para. 100; A.L. v. L.W., 2017 BCSC 964, at para.

8. The court must not abdicate its role in favour of the recommendations made: King v. Borserio, 2018 BCCA 308, at para.

76. Regardless of the information that goes to the report writer, the court ultimately has the discretion to review the background information presented in the report, carry out an independent assessment based on the evidence at trial, and come to a different conclusion as to the best interests of the child: K.B. v. J.B., 2015 BCSC 704, at para. 10, citing T.C. v. S.C., 2013 BCPC 217, at paras. 143-144; Plant v. Kempton, 2011 BCCA 171, at para. 11. [121] In the same year Fawcett was decided (1999), in the trial decision in Van de Perre, T. P. Warren J. declined to follow the recommendations of Dr. Korpach pursuant to the s. 15 FRA report, that custody of the child should go to the father and his wife. He granted custody to the child's mother. This illustrates both that the practice of s. 15/s. 211 report writers making recommendations is nothing new, and that judges can and do disregard such recommendations. The trial decision was reversed by the Court of Appeal, and restored by the Supreme Court of Canada.

2. Divorce Act or Family Law Act? [245] The parties did not address the issue of which statute applies. Perhaps for this reason, neither party has noted any difference or conflict between the statutes that could affect the court's conclusions about parenting arrangements. [246] In her notice of family claim filed April 21, 2021, the claimant cited both the Divorce Act and the FLA in relation to parenting arrangements. The respondent's counterclaim also cites both the Divorce Act and the FLA. The claimant's closing submissions rely principally upon the Divorce Act. The respondent's submissions refer only to the provisions of the FLA. [247] Pursuant to the amendments to the Divorce Act in effect March 1, 2021, the Divorce Act no longer refers to "custody" of a child. The Divorce Act now refers to parenting orders (s. 16.1(1)). Parenting orders entail allocation of parenting time, and decision-making responsibility. These terms are generally consistent with the terminology used in the FLA, which has been in effect since March 18, 2013. Under both statutes, the court is directed to consider the best interests of the child, only: Divorce Act, s. 16.1(1); FLA, s. 37(1). Each statue lays out various factors relating to the needs and circumstances of the child that must be considered by the court. The delineated factors are broadly similar, but not identical. [248] As noted, Dr. Korpach was appointed under the FLA, section 211. The Divorce Act contains no provision similar to s.

211. Unsurprisingly, her report references the provisions of the FLA only. The parties agree with her recommendation for the appointment of a parenting coordinator, pursuant to the provisions of the FLA. There is no parenting coordinator position under the Divorce Act. The parenting coordinator would benefit from knowing which statute governs. Dr. Korpach's report will be available as a resource for the parenting coordinator, and for other professionals who may be involved in future, such as counsellors. [249] The parenting provisions of the FLA are generally more comprehensive than those of the Divorce Act. I have mentioned two examples already: s. 211 reports, and parenting coordinators. Another example is that the FLA distinguishes between parenting and guardianship. [250] The Court has jurisdiction under both statutes. In Hansen v. Mantei-Hansen, 2013 BCSC 876, an early decision following the coming into force of the then new FLA on March 18, 2013, Humphries J. noted (paragraph 90) that where operational inconsistency exists, the doctrine of paramountcy applies and the order will be made under the Divorce Act. I am not aware of any operational inconsistencies material to the outcome in this case. [251] In my view, and in the circumstances of this case, I have discretion as to which statute to apply and to rely on in making orders for parenting arrangements. Relying on the FLA maintains consistency with the report and recommendations of Dr. Korpach, which are largely accepted by the parties, and provides a consistent legal framework for the parenting coordinator, and others who may be involved. In the circumstances of this case it is in the best interests of the children that the analysis and the orders I make rely on the provisions of the FLA.

3. Parenting Arrangements - Family Law Act [252] Under section 37 of the FLA, the parties and the court must consider only the best interests of the child in relation to guardianship and parenting arrangements. Sections 37 through 45 address factors to be considered in assessing the best interests of the child, guardianship, parenting arrangements, and parental responsibilities, parenting time, and exercise of parental responsibilities. There is no need for me to recite all of these provisions in these reasons for judgment. C. Background - Parenting Arrangements [253] As noted, A was born in January 2010 and is 13 years old presently. During A's infancy the respondent was residing in Calgary most of the time. [254] However during the claimant's maternity leave, she and A resided with the respondent in Calgary during September and October 2010. [255] B was born in October 2012 and will be 11 this calendar year. [256] After B was born, the claimant went to Calgary on or about October 30, 2012, during her second maternity leave, with B, for several months, returning to Victoria in the spring of 2013. While in Calgary, she stayed with the respondent in the home they had purchased together on 3rd Street. [257] C was born in August 2016 and is now seven years old. [258] In 2016 the respondent was working with the A.G. During 2016 he began also working as an ad hoc Crown counsel in

northern British Columbia. According to the respondent, he was typically away from Victoria doing Crown counsel work for about a month each year, but this could be up to 12 weeks per year. The claimant says that he was away much more than this. She says he was away for three to five days at a time, and sometimes several weeks at a time, and in total, three to four months out of the year. It is sufficient for me to note that the respondent was often absent away from Victoria and the children prior to separation. [259] The claimant says that she was primarily and practically exclusively responsible for the care of the children during the relationship. She looked after their day-to-day needs, hired nannies, arranged for their schooling, and organized all of their extracurricular activities. She says she paid for virtually all the household and children's expenses. She took care of all medical appointments. She took care of almost all household, domestic chores such as cleaning and laundry, or arranging for these tasks to be done by others such as a housekeeper and gardener. [260] She says the respondent usually went to work before she and the children arose, and did not arrive home again until about 6 p.m. She was responsible for taking the children to and from school or preschool. After school care was taken care of by nannies, or an au pair, or her father and his spouse. The

respondent was only present for seven or eight months out of the year. She says the respondent seldom participated in the children's daily activities. She says that on Saturdays he would take the children grocery shopping and would visit his parents. He paid for the groceries that he bought on the weekends. On Sunday mornings the family went to church. She says he spent a great deal of time on various hobbies such as repairing old trucks, converting a Catalina sailboat into a motorized boat (a multiyear project) and restoring the 1972 VW camper van. [261] She says he sometimes took the children fishing, or boating. She took the children annually to the Okanagan in July, and often, at the end of summer, to Savary Island. The family rarely took vacations together with the children, although there were some family vacations of this nature. They went to Bella Coola, Hawaii, Sydney Island, and a few other places. In 2020 they did the southern U.S. trip. She says the respondent was always invited to come with her to the Okanagan with the children, but rarely came. He came on a couple of occasions and took B to go fishing. [262] The claimant says that, in general, the respondent was not much involved with the children on a day-to-day basis. His interaction with them focused on what she calls "adventures" such as fishing and camping. She says they have very different parenting styles.

She says that the respondent is more like a "fun uncle" than a parent, with some exceptions. [263] The respondent disputes much of this. As noted, he says his absences were much less than what the claimant states. He says his early morning departures were suggested by the claimant, as a way to avoid conflicts over morning routines. He often went to a gym in the morning before work. He was usually home in time to make dinner and interact with the children. [264] He says he did or attempted to do a lot of repair and maintenance work around the house, but his efforts were not up to the claimant's standards, so his efforts diminished. He took the children shopping on Saturdays. He and the children, and sometimes the claimant, took family trips together or weekend trips to various British Columbia locations. They went skiing, canoeing, camping, backpacking, dirt biking and fishing. [265] The parties had a significant ongoing dispute over the claimant's dog. The respondent was allergic to the dog and had chronic sinusitis from it. That problem continued until the dog died in 2018. [266] The respondent says that in 2016 he discussed with the claimant a plan for him to take a "sabbatical", involving travelling through the United States in a VW camper van with the children, in a few years time. He purchased an old van in October 2016 and began working on it. There is some evidence that

B has an attachment to this vehicle. [267] According to the respondent the relationship between the parties continued to deteriorate over time. The panned family vacation in the U.S. began in December 2019. The respondent drove the VW van from Victoria to Arizona and then California. The family spent a short time together touring the southwest U.S., before the claimant and their daughters (A and C) returned to Victoria. B remained with the respondent as they travelled to various locations in the southern U.S. The family met up again in Florida. However by late February concerns were arising regarding the pandemic. The claimant and the children returned to Victoria. The respondent returned to Victoria on March 20, 2020. [268] The parties agree that soon after the respondent returned to Victoria in late March 2020, there was a high degree of conflict in the relationship. The respondent says that by the early part of 2021, the house was like a "war zone". The parties were not communicating. The claimant says the respondent refused to leave the residence unless the claimant agreed to a parenting agreement involving equal parenting time. [269] When the claimant told A that the parties were going to be divorcing, she became very upset. She took the news badly. She became violent towards the respondent. On two such occasions the claimant called the Oak Bay police. She says she called

the police in order to stop her daughter from attacking the respondent. I think this explanation is unlikely, and it is more likely that her calls to the police were at least partly tactical. [270] The claimant demanded that the respondent move out of the house. The respondent agrees that he was not prepared to leave the house until the parties had agreed to a parenting plan. He says that he did not insist on equal parenting, necessarily. The respondent went to Quesnel for work. On his return, he was unable to enter the home. He received a text message from B, telling him that the claimant had changed the locks [changed the password] and had put his belongings in his truck. B's message also stated, "She also said you need to move out of the house and get a place to live with me". The claimant was unaware that the respondent had already rented another residence effective January 8, 2021. [271] After the physical separation in May 2021, the respondent had minimal contact with A, who was refusing contact with him. From May 13, 2021 to November 8, 2021 (when Justice Steeves made an order, following a three day interim application) B and C spent approximately two days or nights with the respondent. The respondent had somewhat more parenting time with B than with C. The details are set out in the oral reasons for judgment of Justice Steeves of November 8, 2021. [272] Steeves J. noted

that A was estranged from her father. The other two children, B and C, seemed to have adjusted to their parents' separation and were spending time with the respondent. [273] At the hearing, the claimant contended that she had been the primary parent during the parties' relationship, and that the respondent was uninvolved, or absent entirely. She sought to maintain the then current parenting schedule. The respondent sought equal parenting. Steeves J. was concerned about a sudden change in that respect. Steeves J. ordered that A would have parenting time with her father as agreed between her and the respondent, but the respondent would immediately have equal parenting time with B and C. Steeves J. made an order for counselling for A. He appointed Dr. Korpach to prepare a section 211 assessment. [274] On August 10, 2022, Justice Baird dismissed the claimant's interim application to have B attend St. Michael's University School and for C to attend St. Margaret's school, or alternatively to grant the claimant decision-making authority over the children's schooling, on an interim basis. Baird J. was of the view that the schooling issues should await Dr. Korpach's report, and if necessary, the trial. He ordered that C would attend St. Patrick's school for 2022-2023, in the absence of an agreement between the parties to the contrary. C attended St. Patrick's school. [275] Dr. Korpach

issued her report dated April 16, 2023. She recommended that A continue to reside primarily with the claimant, who would be primarily responsible for exercising most parental responsibilities for her, including decision-making with respect to school and activities, after canvassing the respondent's views. [276] Dr. Korpach recommended shared parenting arrangements for B and C, which involved generally equal parenting time, on a 2-2-5-5 schedule, over the course of a fortnight. She also recommended holidays and vacations be essentially shared for B and C. [277] The parties agreed in principle to implement Dr. Korpach's recommended parenting schedule set out in her April 16, 2023 report. However the respondent's trial schedule prevented immediate implementation. The parties have had disputes about the summer parenting schedule. D. Dr. Korpach Report [278] Dr. Korpach's report of April 16, 2023 is quite recent. It is very lengthy, detailed, thorough and comprehensive. A proper summary is not possible. Some findings, observations and recommendations I consider particularly noteworthy are as follows: 1. Conflict and mistrust have pervaded the parties' relationship.

2. At the time Dr. Korpach prepared the assessment, the two younger children were in the respondent's care about 5 days out of 14. A had not had parenting time with the respondent since May 2021, but she had recently joined her father and the other two children for dinner at times during his regular parenting time with them; 3. The claimant was in favour of B spending 9 days with her and 5 days with the respondent; and C spending 10 days with her and 4 days with the respondent. The respondent was in favour of equal parenting time.

4. There was conflict around which schools the younger children should attend. The claimant wanted B and C to transfer from their current Catholic elementary School, St. Patrick's, to other schools. She wanted B to attend St. Michael's University School and C to attend St. Margaret's, a private girls-only school, where A was already enrolled. The respondent wanted both children to remain at St. Patrick's for their elementary school years.

5. The claimant expressed a number of concerns about the respondent's parenting.

6. The respondent expressed concerns about A being alienated from him, and that the younger children were at risk for alienation as well. He expressed the belief that the claimant overschedules the children with activities. In addition to seeking equal parenting time with the younger children, he sought reunification with A, although given her refusal of parenting time, she would be allowed to regulate the relationship.

7. In-depth interviews were conducted with both parents concerning the history of their relationship with each other and concerning each child.

8. Limited psychological testing was conducted of each parent. The claimant's testing suggested the possibility of depression, symptoms of stress, internalization, possible mild anxiety, irritability and the possibility of an Adjustment Disorder which could be a reaction to significant stressors.

9. The respondent's psychological testing highlighted concerns about physical pain. Dr. Korpach noted that there appeared to be a physical basis for his pain presentation.

10. The claimant was in favour of the appointment of a parenting coordinator. The respondent was not. He expressed concern about the expense and that the claimant would over-involve the parenting coordinator to his disadvantage. [At trial, the respondent indicated that he had been persuaded that a parenting coordinator would be useful, but continued to have similar concerns.] 11. A, who was 13 when interviewed, recalled that the respondent was "not a big part of her childhood". She made comments such as that he "never treated me nicely" and "he didn't have the time". She expressed other concerns about her father including that he would tease her, that he made her go on the VW bus trip, and that he did not pay attention to her views regarding her schooling. Regarding the counselling that A had participated in pursuant to the order of Steeves J., she said that she did not ask to see the counsellor, the counselling "is not going well" and "my dad told the court I needed to go". If DNA testing showed that the respondent was not her father, then she and her mother would "throw a party".

12. B (age 10) was content with the then-current schedule (more time with the claimant than with the respondent), except that he would prefer to spend some time with his father alone so they could engage in adventures and activities together. He wanted to continue attending St. Patrick's through Grade 7. After that, he suggested going to Grade 8 at a public school, Lansdowne, or a Catholic School, St. Andrews, and then transferring to St. Michael's University for Grade 9.

13. C, age 6, did not recall her parents living together. C noted that her sister A goes to St. Margaret's School, and that she wanted to attend there as well. She stated that her favourite activity was dance. She was content with the then present parenting time, which she perceived to be that she was at her mother's house for 10 days and at her father's house for 5 days.

14. Dr. Korpach interviewed the therapists/parenting coaches that each party had been seeing; Eliot Lowey in the case of the claimant, and Ken Genlik in the case of the respondent.

15. A had become a significant influence on the younger children, especially C. A had developed numerous myths about her father that she exposed the younger children to.

16. Both younger children were at risk for emotional abuse as a result of the negative perception of the respondent in the claimant's home.

17. The claimant had explicitly or implicitly encouraged A to denigrate and exclude the respondent from the family and the younger children.

18. The claimant was in need of therapy to address how her parenting approach has contributed to the children acting out her anger and/or frustration within the spousal relationship. A would benefit from therapy addressing the underlying damage to her development.

19. A was likely aligned with her mother as a young child. She is now alienated from her father.

20. C is currently within the alignment category. She maintains a strong orientation towards her older sister and mother and is at significant risk to reject her father in a few years.

21. The claimant tended towards "restrictive gatekeeping" which occurs when the preferred parent inaccurately believes the other parent may be harmful to the children. In such situations, the preferred parent engages in behaviours which limit or interfere with the child's parenting time and relationship with the other parent.

22. The claimant has a proprietary position with respect to the children. She allowed "family myths" to develop about the respondent's alleged parental incompetence, disinterest, and lack of involvement with the children. The myths have been conveyed to A and accepted by her. The claimant has tendencies towards alienation, of which she has little insight.

23. Truly alienated children are at risk of lifelong debilitating emotional, social and psychological challenges and deficits.

24. A's views about the respondent are fairly entrenched. She does not want the respondent involved in making decisions on her behalf. However, she also demonstrates some flexibility and is at least willing to see her father. Although her views largely reflect alienation from her father, her views should be respected at this point if she is to have any chance of enjoying and benefiting from a future relationship with her father.

25. A should participate in therapy. Dr. Korpach made a recommendation for a therapist.

26. B's emotional and psychological well-being is deteriorating, and changes need to occur immediately to avoid his mild depression becoming significant.

27. B should spend more time with his father and should commence therapy with a child specialist.

28. Among the siblings, C appears to maintain the healthiest relationship with her father.

29. Both parents are capable of considering the children's educational needs. However, education is an area of significant conflict. Decision-making should be divided, with the claimant overseeing A's education and the respondent overseeing that of B.

30. With respect to C, both parents could actively contribute to decisions regarding her schooling, with the help of a parenting coordinator. However, given her need for stability, Dr. Korpach recommends that C (grade two as of September, 2023) remain at her current school, St. Patrick's through Grade 5 (at a minimum) before either parent attempts to change her school. (This would be four further years, until the 2027-28 school year). After grade five, the parties should decide upon her schooling, with the assistance of a parenting coordinator.

31. Both parents are capable of managing the children's needs regarding medical care. However, Dr. Korpach suggests that the parenting coordinator should consider whether the claimant is insufficiently attentive to their psychological needs.

32. The claimant's capacity to co-parent and facilitate the children's positive relationship with the respondent is grossly impaired. The respondent is more likely to meet their emotional/psychological needs, and to be committed to the co-parenting process.

33. Dr. Korpach suggests that if conflict between the parents fails to mitigate or increases, the likely source is the claimant, and in that event consideration should be given to having the children reside primarily with the respondent. [279] Dr. Korpach makes a number of specific recommendations, many of which I have touched on already. She makes specific recommendations regarding the parenting schedule, and parenting responsibilities. She recommends the appointment of a parenting coordinator, and parenting coaches for each party, and therapists for A and B. E. Discussion - Korpach Report and Recommendations. [280] As noted, while the claimant largely accepts the recommendations of Dr. Korpach, she disagrees with a number of opinions and rationales Dr. Korpach relies on as set out in her report. In particular, she suggests that I should be cautious in accepting Dr. Korpach's opinions about the parties and children and avoid a judicial finding that assigns blame upon her for the disrupted relationship between A and the respondent. She contends that Dr. Korpach's report and testimony was unbalanced, and favoured the respondent. She notes that Dr. Korpach recommended the schedule sought by the respondent, and states that she did not interview the parties' long-standing nanny of eight years, and their family doctor. [281] I do not agree with these submissions. I accept,

generally, the overall conclusions that Dr. Korpach makes. [282] The claimant's criticisms of some of the rationales set out by Dr. Korpach in her report do not affect her conclusions. [283] So, for example, the claimant contends that Dr. Korpach misunderstood or misreported information that she received from Dr. Phillips, the family doctor. Dr. Korpach interviewed Dr. Phillips, by telephone. In her report, Dr. Korpach related the information that she received from Dr. Phillips, relating to the health of each member of the family. [284] Dr. Philips testified at trial. She stated that Dr. Korpach's summary as it relates to the health of the claimant is not entirely accurate. For example, Dr. Korpach reported that Dr. Phillips perceives: "[the claimant] is suffering from an acute stress reaction (Adjustment Disorder)". Dr. Phillips testified that the "acute stress reaction" part of the statement is accurate but that she did not diagnose an "Adjustment Disorder", a DSM-5 diagnosis. She noted that the difference is that a "reaction" consists of symptoms but is not a disorder, which means something that significantly impairs daily function. In answer to my question, she amended her evidence somewhat. She stated that she should have said "chronic stress reaction" because the condition has persisted beyond six weeks. She testified that the "stress reaction" of the claimant is related

to a number of factors but primarily the divorce proceedings and problems in the marriage. [285] In my view, Dr. Korpach's description of the information she received from Dr. Phillips is broadly accurate. Minor differences in interpreting Dr. Phillips' comments made in a telephone interview are to be expected. [286] The claimant argues that Dr. Korpach overemphasized or misinterpreted minor circumstances in her report. [287] An example has to do with the claimant contacting the College of Psychologists in order to seek assistance with obtaining receipts for insurance for tax purposes from Ms. Toews, A's court-appointed therapist. Ms. Toews interpreted the claimant's conduct as being a professional complaint against her, and withdrew her services. [288] Ms. Toews declined to be interviewed by Dr. Korpach. Dr. Korpach accepted that it appears the claimant did not actually make a professional complaint against Ms. Toews, and Ms. Toews may have misinterpreted the purpose of the claimant's inquiry and overreacted in response. Nonetheless Dr. Korpach relies upon the incident, in suggesting that this is an example of the claimant's impatient and demanding behaviour. I agree with Dr. Korpach's incidental observation that given the claimant's intelligence and sophistication it is surprising that she would not understand the potential consequences of contacting the therapist's

regulatory body. [289] The episode is clearly just one very minor "data point" to use Dr. Korpach's description. In cross-examination at trial, Dr. Korpach offered to provide other examples of distortion or exaggeration by the claimant. Her invitation was not pursued by counsel. [290] There are other episodes related by Dr. Korpach where the claimant contends that Dr. Korpach misinterpreted the facts, overemphasized them, or drew incorrect conclusions. It is unnecessary that I review the other specific criticisms that the claimant makes in this regard. They are all just examples relied on by Dr. Korpach in coming to her conclusions, and in my view, as I have said, these criticisms do not significantly affect the overall soundness of Dr. Korpach's opinions, conclusions and recommendations. [291] I reject the claimant's assertion that Dr. Korpach is biased against her and unfair. It was Dr. Korpach's duty to provide the court with her unvarnished opinions even if they seem harsh from the claimant's perspective. [292] The claimant contends that Dr. Korpach exaggerates the difficulties the children are having. She states that in her opinion her children are happy and thriving. However, I accept the validity of Dr. Korpach's concerns, and I share them. [293] The claimant has ambivalent views regarding Dr. Korpach's criticism of her parenting behaviours. She disagrees with a number

of her criticisms, but allows that she could have "blind spots" as a parent. To her credit, the claimant is working with a parenting coach to overcome identified deficits. She verbally encourages A to contact the respondent. [294] The claimant submits that a variety of factors are at play in the breakdown of A's relationship with the respondent. She points to certain behaviour of the respondent as contributing. She relies especially on information from A herself, in which she justifies rejecting a relationship with her father. [295] Undoubtedly the reasons for A's rejection of her father are multifactoral. This is fully recognized by Dr. Korpach. The overall history of the relationship, the respondent's absences from the home, both during A's early years and afterwards, and each parent's differing personalities and parenting styles, and the long-standing discord and conflict within the marriage would all be contributing factors. [296] I agree with Dr. Korpach's view that A's stated reasons for rejecting her father are insubstantial, and are not valid justifications for her expressed views. I accept Dr. Korpach's' view that the claimant has had a significant role in A's alienation from her father, although the claimant's behaviours in this respect may be subtle, implicit, or unwitting, and that the claimant has little insight about this. [297] It is not possible or practical to

divorce Dr. Korpach's recommendations from the opinions and conclusions that support her recommendations. [298] Dr. Korpach recommends that all therapists, parent coordinators and parent coaches involved in this matter over the next three years should receive a copy of her report (possibly leaving out the general background information section and the sections relating to the interviews, psychological testing and home observations of the parents). Dr. Korpach's report is a valuable resource for these professionals. [299] Both parties are loving, capable parents. As Dr. Korpach emphasized, the children need their parents' conflict to end. Both parents must put their own concerns aside and co-parent cooperatively and effectively. [300] In summary, in general I accept Dr. Korpach's opinions and recommendations. F. Schools Issue [301] With respect to all three children, the claimant seeks orders directing where they will attend school at this time. She submits that the court should order that A continue to attend St. Margaret's, B attend St. Michael's University School as soon as possible, and that C attend St. Margaret's. [302] The claimant suggests that thereafter any changes in the children's schooling should be made by the parties jointly, or if they cannot agree, with the assistance of the parenting coordinator. Her submissions do not stipulate whether the parenting

coordinator would have authority to make determinations about schooling in the event the parties cannot agree. [303] The respondent seeks orders about schooling that generally align with Dr. Korpach's report. That is, that the claimant will have final decision-making authority over A's schooling, that he have such authority over B, and that educational decision-making over C will be shared. However, C will remain at St. Patrick's through grade five. G. The Children 1. Child A [304] A is 13 years of age. She is enrolled at St. Margaret's school. It is a private, independent, nonreligious school for girls only. The claimant unilaterally enrolled A at St. Margaret's school in 2021, after separation. [305] Dr. Korpach noted that A presented as an articulate, relatively mature young woman, who appears to be academically gifted. She is highly accomplished in academic, social and activity areas. Her best interests would involve her father playing an active role in her life, but she is largely alienated from him. She continues to focus on her perception of his negative aspects. She manifests mild anxiety and depression. She is a high achiever, who fears failure. [306] A's views have been thoroughly canvassed by Dr. Korpach. In addition, I met with her myself. As expected, and in line with what she had said to Dr. Korpach, she indicated that she was happy with the present parenting

arrangements. She was concerned that I might make an order interfering with her present schooling at St. Margaret's. She told me, as she had told Dr. Korpach, that she had been bullied at her previous school, St. Patrick's. She was concerned that her siblings would also be subject to bullying at that school. However there was no indication in Dr. Korpach's report about bullying involving the younger children at St. Patrick's, nor did either child mention any such concern to me. [307] It is clear that the schools issue is very important to A, not only for herself, but also in relation to her siblings. [308] Given her entrenched negative views of the respondent, the prospects for A's relationship with her father substantially improving are probably poor, but perhaps with time, and maturity, counselling, and the end of conflict between her parents, and their utmost cooperation, there is hope. The extent of her relationship with her father will ultimately depend upon A's own choices. [309] I accept that as Dr. Korpach states forcing A into regular parenting time with her father is unlikely to result in any positive changes. [310] Dr. Korpach makes recommendations for parenting time between A and the respondent. She suggests that until A and her therapist decide to increase time and involvement with A's father, A see her father once every two weeks, during the younger children's

parenting time, for one-and-a-half to three hours. This roughly accords with what has already been happening. However, in my view, a court order at this time compelling fixed parenting time between A and the respondent is not going to help the situation. [311] Therefore, the order I make is that A reside primarily with the claimant. A's parenting time with the respondent will be in A's discretion. I expect that her decisions in this respect will be guided by her therapist, and influenced by her parents, but this is not part of the court order. [312] Justice Steeves observed that there was little evidence that the claimant had made any positive steps to keep open the relationship between A and her father, and had unwisely allowed an 11 year old child to determine the parenting time she had with her father. [313] Based on my interview, I was concerned that the claimant is still not as strongly supportive of a relationship between A and her father as she should be. A told me that the claimant supported her seeing her father to the extent that A is comfortable in doing so. If that in fact has been the primary nature of the claimant's messaging to A about this, then it is insufficiently supportive and encouraging. [314] A will participate in therapy for at least 18 months, and generally in accordance with Dr. Korpach's recommendations, as set out in page 95, point two, of the report. [315] The claimant will have final decision-making authority over A's schooling, in the event that the parties are unable to agree, after consultation with each other.

2. Child B [316] B is 11 years of age as of October, 2023. He is in grade 6 at St. Patrick's Elementary School, an independent, Catholic school. [317] Dr. Korpach noted that B is struggling to balance loyalty toward each parent, given the conflict between them. While his relationship with the respondent is healthy and functional, the respondent could be a greater resource for him, in Dr. Korpach's view. Despite the strong relationship with his father, Dr. Korpach is of the view that B is vulnerable to becoming estranged from him. [318] Dr. Korpach recommends therapy with a child therapist for B, and that he spend more time with his father (than he was at the time Dr. Korpach prepared her report), notwithstanding his expressed wishes, otherwise. [319] When I met with B he was friendly, cheerful, and not especially voluble. My impression was that he seemed to have a good relationship with both parents. He expressed a preference for spending more time at the claimant's residence. He explained that her home has some advantages; namely, friends nearby, the presence of his older sister, and his dog that he loves. These benefits seem to be related more to the claimant's residence, as opposed to spending more time with the claimant, as such. [320] One of B's teachers at St. Patrick's noted that B is strong in classroom discussions, is respectful and kind with others, has several close

friendships, and speaks openly and positively about both parents. He appears well-adjusted and friendly, although he demonstrates some signs of anxiety, such as nail-biting. His grade 5 marks are excellent. He is strong academically. He states he would like to study marine biology. [321] Dr. Korpach notes the conflict between the parties regarding B's schooling. B told Dr. Korpach that he would like to stay at St. Patrick's through grade 7, and then attend St. Michael's University School, a private non-religious school for girls and boys providing school from kindergarten to grade 12. He told Dr. Korpach that he proposed attending grade 8 at Lansdowne, a public-school, or Catholic school, St. Andrews, then transferring to St. Michael's for grade 9. [322] When I met with B, his views had changed. He told me that he was about to begin grade 6 at St. Patrick's, but would prefer to go to St. Michael's University School, immediately, if possible. He said that St. Patrick's is a good school, but St. Michael's University school would be better. He is not emphatic about the schools issue, although he raised the topic himself. [323] Dr. Korpach recommended that the respondent have final decision-making authority with respect to B's schooling, through grade 12, after canvassing the views of B and of the claimant. The respondent seeks an order that accords with this recommendation. [324]

As noted, the claimant seeks an order that B be permitted to attend St. Michael's University school as soon as possible. [325] In my view the better approach is, as Dr. Korpach suggests, to grant the respondent final decision-making authority with respect to B's schooling, after consulting with the claimant, and of course, B himself. The respondent is well-equipped to make this decision in B's best interests, taking all relevant facts and circumstances into account. Allowing the respondent the final say with respect to B's schooling will reduce conflict between his parents, which is in his best interests. [326] B told Dr. Korpach that he enjoyed adventurous activities with his father such as fishing and hunting. He wanted to be able to do more activities with his father. He wanted to spend alternating Thursday nights at his father's residence, without his younger sibling, C. [327] The respondent submits that B's parenting schedule should remain as is, in accordance with the schedule recommended by Dr. Korpach. That is, for equal time parenting, on a 2-2-5-5 rotation, during the school year. [328] I agree with those submissions and I so order. [329] I recognize that this may not allow for some "alone" time with his father, every couple of weeks, as he has requested. [330] Since I will order that the parties are at liberty to amend the parenting schedule for all three children by mutual agreement, with the assistance of the parenting coordinator, or, if necessary, by making determinations, I express the hope that B's desire for some regular "alone" time with the respondent can be accommodated in some fashion.

3. Child C [331] C is seven years of age as of August 2023. As of September, 2023, she is in grade two at St. Patrick's Elementary School. [332] Dr. Korpach described C as an outgoing child who appears to maintain a relatively warm, secure attachment with her father, and a mildly anxious attachment with her mother. (The claimant does not agree with this characterization.) Dr. Korpach states that C has an "enmeshed relationship" with the claimant, and an unhealthy reliance on her sister for parenting needs. Dr. Korpach noted that of the three children, C had spent the most time with her father during her lifetime. She gets along well with her peers, and enjoys activities such as dance, swimming, and art. She has many friends. [333] As noted, the claimant seeks an order that C attend St. Margaret's school, immediately. She suggests that, as with B, decisions having to do with the children's schooling prior to grade 12 should be made jointly by the parents, or if they cannot agree, with the assistance of the parenting coordinator. The respondent seeks an order that C will continue to attend St. Patrick's school, through grade 5, at a minimum. [334] Dr. Korpach noted that C's needs appear well met by her current school environment at St. Patrick's. She is happy, well-adjusted, and seems to be performing at grade level. Dr. Korpach states that there are compelling reasons for C not

to attend the same school as her older sister. In Dr. Korpach's view: it would be best for A not to have responsibility for C; it is in C's best interests to develop her own perspectives, independent from her sister and mother; and C's school environment should be kept separate from her sister's influence. She suggests that the parent coordinator may assist the parties in making decisions pertaining to C's schooling after grade 5. However, I note that would be in four years time. Unless extended, the parenting coordinator will no longer be in place. [335] C was cheerful and pleasant when I met with her. She was positive about both parents. Without prompting from me, she volunteered that St. Patrick's school is nice, but she would prefer to go to St. Margaret's, because it is a better school and she has a friend who goes there. Also, it is an all-girls school. She mentioned that her mom really wants her to go there. When I later specifically asked about her school, she said that her school is good, but could be better, if she was at St. Margaret's. [336] I concur with Dr. Korpach's comment that while C says she wants to attend St. Margaret's, this perspective is likely influenced by the views of her sister and mother. The claimant denies Dr. Korpach's comment that she denigrates St. Patrick's, but states that St. Patrick's is lacking in academic rigour. [337] In my view the

respondent is at this time better able to decide about C's schooling than is the claimant. He is better positioned to decide about this solely in C's best interests, taking all relevant circumstances into account. [338] I order that for grades two to five, final decision-making responsibility for C's schooling will lie with the respondent. He may choose to accept Dr. Korpach's opinion that it is in C's best interests for C to remain at St. Patrick's through grade 5, subject to any change made by mutual agreement of the parties. [339] After that, decision-making with respect to C's schooling is to be made by the parents jointly. If they are unable to agree, they will use the services of a parenting coordinator, if one is in place, or is appointed, or may apply to the court under section 49 of the FLA for directions or orders in the event that they are unable to agree. [340] Dr. Korpach also recommended a fortnightly 2-2-5-5 schedule for C, with some adjustments, resulting in C spending slightly more than one half of her time with her mother. So during week one, C goes to her mother's home on Thursdays after school and returns to her father's home by 7 a.m., interrupting the respondent's parenting time. The respondent's parenting time with C is also interrupted on Saturday at week two, when C spends from 9 a.m. to 7 p.m. with the claimant. [341] The respondent agrees with

continuation of the schedule. [342] The claimant argues that C should spend more time with her, specifically, Thursday nights. Dr. Korpach's schedule for C results in C spending seven nights with each parent. The claimant's proposal results in C spending nine nights with her, and five with the respondent. She argues that this schedule would allow B the extra time alone with his father that he says he wants. [343] In my view C's schedule is already tilted somewhat in favour of the claimant and this should not be increased. I have already said that B's desire for some alone time with his father should be accommodated in some other way, if possible. However in my view C's time with each parent should be equal, or at least nearly so. I therefore order that C's parenting schedule as recommended by Dr. Korpach continue. H. Other Parenting Orders [344] The parties will remain guardians of the children pursuant to s. 39 of the FLA. [345] The parties may amend the parenting schedule for all three children by mutual agreement, with the assistance of the parenting coordinator. The parenting coordinator may, if required, make determinations with respect to the parenting schedule, except that the parenting coordinator may not substantially change the parenting time of the parties. [346] Parenting responsibilities under s. 41 of the FLA will be shared, except for matters specifically dealt

with in the order arising from these reasons. [347] In addition: 1. each guardian will have the obligation to advise the other guardian of any matters of a significant nature affecting the child; 2. each guardian will have the obligation to discuss with the other guardians any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare; 3. the guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; 4. in the event that the guardians cannot reach agreement on a significant decision despite their best efforts: a) The claimant will have final decision-making authority with respect to A; b) With respect to B and C, the parties will utilize the services of a parenting coordinator if one is place, in order to assist them in reaching consensus. If the guardians are unable to agree, the parenting coordinator may make determinations within the parenting coordinator's legal authority. In the event that the parties are unable to agree, and if no determination has been made, the parties may apply to court for directions pursuant to s. 49 of the FLA.

5. Each guardian has the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers. [348] Therapists are ordered for B and C, as recommended by Dr. Korpach. [349] The claimant seeks an order that the parties may appoint guardians in the event of their death, as provided for in s. 53, FLA. She contends that she should have this authority over all three children, but the respondent should have this authority only for B and C. The respondent opposes this, and seeks an order prohibiting the appointment of a guardian by either party. [350] I decline to make any order in this respect. I note that joint parenting orders (for example the Joyce Model, and variants) commonly include a provision stating that the surviving guardian will be the only guardian of the child. However, it is not clear to me that I have authority to make such an order, in view of s. 53, which does not contain language such as "unless the court otherwise orders". This point was not argued. [351] In my view, on the evidence in this case, there is no reason that the surviving guardian should not be the sole guardian of the children, and it would not be in the best interests of any of the children to introduce a third party as guardian. If I have authority to make such an order, I would make the

order sought by the respondent. However, as I decline to make any order in this respect, the issue of guardianship in the event of the death of either guardian will if necessary be decided by the court under s. 51 of the FLA. Under s. 51, the court has authority to appoint or remove a guardian. [352] Each party suggests that they have a "right of first refusal' over the parenting time of the other, in relation to B and C, in certain circumstances. Their proposals vary. For example the claimant suggests that if the respondent is not personally exercising parenting time for a period exceeding six hours, then B and C would be free to call the other parent to collect them. [353] I decline to make any such order. In my view it invites interference and intrusion into the parenting time of the other parent, and would be a formula for further discord between the parties, which is by far the most important thing for the parents to avoid, in the best interests of the children. [354] Each parent is capable of supervising the children, or arranging for their supervision, utilizing their own judgment, and without interference by the other parent. Each parent should respect the other's parenting time, and parenting ability. [355] I accept Dr. Korpach's recommendations that each parent work with a parent coach to acquire skills toward reducing their conflict and to learn how to co-parent and

communicate together (report, p. 86 and p. 110). The parties will utilize the services of parent coaches, for at least one more year. The parent coaches are to assist the parties in relation to their communications (Korpach Report, p. 109, point 6). [356] A parenting coordinator is appointed pursuant to s. 15 of the FLA for a period of two years. The parties will retain a mutually-agreed upon parenting coordinator within 14 days of the release of these reasons for judgment. The parenting coordinator may assist the parties in accordance with the provision of the FLA and the Family Law Act Regulation, B.C. Reg. 347/2012, s.

6. Dr. Korpach suggests that Geeta Gill would be a good fit for selection as parenting coordinator. I appoint her as parenting coordinator, but if she is unwilling or unable to serve, the parties are at liberty to apply. I am not seized of any such application. [357] The expense of the parenting coordinator will be shared in proportion with the parties' incomes. [358] The parties will employ Our Family Wizard for their primary communication method, in accordance with the recommendation of Dr. Korpach. [359] I endorse Dr. Korpach's recommendation that all therapists, parenting coordinators, and parent coaches involved in this matter should receive a copy of her report. If the parties concur, they may choose to release only the portion of the report from the children's interview section until the end of the report. Otherwise, the entire report will be released to these professionals. [360] In line with Dr. Korpach's suggestion, the respondent submits that he should be given liberty to apply summarily for an order granting him primary parenting of B and C, varying my order, if the conflict between parties fails to mitigate or increases. I reject this submission. For good reasons, the courts generally decline to make such "guillotine" orders, as I observed in Saric v. Banden, 2017 BCSC 1507, at para.

13. Orders should be on the basis of current evidence, not projections about what the evidence could be in future. Moreover, it is not in the best interests of the children that the respondent be in a position to threaten the claimant with such an application. I note that the respondent previously utilized Dr. Korpach's opinion that the claimant was guilty of "restrictive gatekeeping" as a cudgel against her, in an email he sent to the claimant on May 11, 2023, about ensuring B's trumpet went to school with him. This kind of unhealthy interaction should not be encouraged. [361] Dr. Korpach recommends that for B and C holidays and vacations are "essentially shared and matched between parents". She also suggests that time away from one parent not exceed 10 days for B and C, until C is approximately 11 years of age. [362] Dr. Korpach has made other helpful parenting recommendations. [363] The parties have each presented detailed forms of proposed orders, dealing with a number of matters that were not fully argued at trial, such as holiday parenting schedules, the children's activities, pick up details, travel outside B.C., travel documentation, parental communication, orders relating to children's safety and well-being, and other matters. [364] As it is not practical for me to deal with these other matters in these reasons, the parties have liberty to apply in the event they are

unable to agree on orders in relation to other matters not already dealt with in these reasons for judgment, or in relation to any issues I make have overlooked. I emphasize that this is not an invitation to re-argue matters that I have already dealt with. V. Child Support A. Base Child Support [365] For the current year, the incomes of the parties for child support purposes are, for the claimant, $656,895, and for the respondent, $202,929. [366] The claimant argues that although the incomes of the parties exceed $150,000, the presumption in favour of table child support set out in s. 4 of the Guidelines does not apply where custody is shared and s. 9 of the Guidelines applies, relying upon B.P.E. v. A.E., 2016 BCCA 335, at para. 9. [367] However, the starting point for the analysis remains the amount determined pursuant to the tables, set-off having regard to the incomes of the parties: B.P.E. para. 34; Dyck v. Bell, 2015 BCCA 520 (a case involving a hybrid parenting arrangement, as here), at para. 27; Contino v. Leonelli-Contino, 2005 SCC 63, at para.

49. The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend: Contino, para. 51. [368] As noted, the claimant argues that the respondent's child care expenses are less than hers, because A lives only with the claimant. She argues that she has to pay the living expense of four persons, whereas the respondent only has three persons to provide for. On this basis, she argues that the respondent's expenses for the children can be calculated at $4,111, which is approximately $300 less than the set off table amount. [369] I have rejected the claimant's argument that the respondent does not or should not incur expense for A. For example, one of the largest living expenses is for accommodation. It is reasonable for the respondent to provide for accommodation for all three children, in the hopes that his relationship with A improves. [370] Moreover, the fact that the claimant has one child full-time and the other two children are shared is already accounted for in the starting point calculation, based upon the "economies of scale" approach, as described in Dyck, para. 27. [371] Her submission that the respondent's expenses for the children can be

calculated at $4,111 is based upon his most recent form F8 financial statement, which was not put to the respondent in cross-examination. The claimant's F8 lists her direct expenses for the children at $5,712 per month. Neither of these amounts was the subject of any detailed evidence at trial. Her argument under ss. 9(b) and (c) is apparently limited to the point I have rejected. [372] More generally, the claimant has not provided detailed and specific evidence or submissions regarding the analysis applicable under ss. 9(b) and 9(c) of the Guidelines. So for example, in B.P.E., at para. 35, citing Contino, the Court emphasized that under s. 9(b), the court will generally be called upon to examine the budgets and actual expenditures of both parents in addressing the needs of the children and to determine whether shared custody has in effect resulted in increased costs globally. [373] The claimant has not asked that the issue of base child support be adjourned to allow for further evidence and submissions. That further inquiry should not be required after a 13 day trial. In all of the circumstances, I do not consider it necessary to defer this issue in order to allow the parties to adduce further evidence. [374] On the evidence overall, I am not persuaded that considering the financial realities of the parents, the application of the set-off amount derived under 9(a) would lead

to a significant variation in the standard of living experienced by the children between the two households. [375] On a going forward basis, commencing with the month immediately following the release of these reasons for judgment, child support will be paid by the parties pursuant to the Guidelines, off-set for the fact that primary parenting of A is with the claimant, and parenting for B and C is shared. The amount of child support will be determined by the table amounts payable. [376] Child support is also payable by both parties on a retroactive basis. Child support payments are payable commencing June 1, 2021. Child support will be calculated based upon the income of each party for the year in question, and the parenting schedule in effect at the time. [377] The claimant's submissions address the question of how income for child support purposes is to be calculated when the payor receives bonus income, which varies from year to year. [378] I adopt the procedure set out by Mr. Justice Kent in Walker v. Maxwell, 2014 BCSC 2357, at para. 141, as modified for the present circumstances: 1. For the balance of this calendar year, the claimant will pay child support to the respondent based on the incomes I have referred to (which includes the claimant's bonus income, which she has already received in calendar year 2023); 2. At the beginning of each ensuing calendar year, the claimant will pay child support based upon her then current base income.

3. If the claimant receives a bonus in a year, then: a) The claimant's Guideline income amount will be adjusted to include the amount of the bonus, and child support will be adjusted retroactively, from January 1; b) The claimant will make a lump sum payment to the respondent in satisfaction of the retroactive amount of child support due and owing, so determined; and c) Commencing on the first day of the first month following receipt of any bonus, the claimant will pay the respondent the new amount of child support (the retroactively adjusted amount referred to above) until the end of the calendar year. [379] The parties will exchange income information as filed with the CRA for the prior year not later than June 1 of each calendar year. Child support will be recalculated effective July 1 of each year. B. Special and Extraordinary Expenses [380] The parties will share special or extraordinary expenses in proportion to their respective incomes. [381] Dr. Korpach has made some recommendations with respect to extracurricular activities. Her recommendations are not comprehensive. Both parties indicate that they intend to respect her recommendations. [382] I order that other special or extraordinary expenses are those the parties agree to, with the assistance of the parenting coordinator, if necessary. If they are unable to agree, the parenting coordinator is authorized to make determinations. If there is no parenting coordinator in place, and if the parties are unable to agree about special or extraordinary expenses, they have liberty to apply. VI. Conclusions and Costs [383] Orders are made in accordance with these reasons. [384] Subject to the matter of offers to settle under the Rules, the respondent has been substantially successful and is awarded costs. "Verhoeven J."