Boski v. Boski

2014 BCSC 1599 Boski v. Boski

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Boski v. Boski, 2014 BCSC 1599 Date: 20140718 Docket: E102895 Registry: Vancouver Between: Peter Alexander Boski Claimant And Nadya Bridgit Doray Boski, also known as Nadya Doray, also known as Nadya Boski, also known as Stacey Bridgit Boski Respondent Before: The Honourable Madam Justice Fleming Oral Reasons for Judgment The Claimant, Peter A. Boski: No Appearance Counsel for the Respondent: G.K. Thomas S. Bhate Place and Date of Trial/Hearing: Vancouver, B.C. July 7 - 9, 2014 Place and Date of Judgment: Vancouver, B.C. July 18, 2014 [1] THE COURT: The claimant, Peter Boski, and the respondent, Nadya Boski, were married on October 10, 1999. During the marriage, they had two children: A., born in 2004, and S., born in 2007. They separated in or about August 2010. Mrs. Boski has always been the primary caregiver to the children. Neither party has worked since 2004. Around that time, Mr. Boski inherited the whole of his mother's estate, which was used to pay family expenses until separation. [2] There is a fairly long history to this proceeding, in no small part due to Mr. Boski's failure to provide timely and adequate financial disclosure and comply with orders of this court. Mr. Boski did not attend the trial on July 7, 2014, nor the case management conference on June 25, 2014. The trial of this matter had been scheduled and

adjourned three times prior. [3] The trial proceeded in Mr. Boski's absence with respect to the respondent's counterclaim. She sought the following relief at trial: an order for divorce; sole custody and guardianship of the parties' two children; child and spousal support based on an imputed income to Mr. Boski; an equal division of family assets, including known and unknown assets, and alternatively a compensation order to address Mr. Boski's dissipation of potential family assets or family assets. At the trial, the court heard the testimony of Mrs. Boski and a representative from the Kerrisdale branch of the HSBC Bank. Volumes of investment and banking records were also in evidence, along with other documentary evidence. Background [4] The facts are as follows. [5] The parties met some years before they married, while they were both working at Banyen Books in Vancouver. They met again in 1998. At the time, the respondent was working at Mountain Equipment Co‑op, and the claimant was a student at UBC. The parties began living together in a one‑bedroom apartment in Kerrisdale. The claimant also obtained a job at MEC. In 2004, while the respondent was pregnant with A., the claimant's father died. The parties travelled to Poland with the claimant's mother to bury his father's ashes. A few weeks later, she also died. [6] His parents had lived in Montreal. The claimant was an only

child and the sole beneficiary of his mother's estate. The parties travelled to Montreal five weeks before A.'s birth to deal with the estate, which included a house and financial assets. The parties met with the mother's investment advisor, Ken Thorpe, to discuss the estate, but its value has not been established by admissible evidence. [7] In January 2005, the parties returned to Vancouver with baby A. and resumed living in the one‑bedroom apartment in Kerrisdale. The parties discussed buying a home with the claimant's inheritance, and in fact looked all over the Lower Mainland. In the end, the claimant did not want to spend the money and wished to continue living in the West Side of Vancouver. [8] The respondent did not return to work after her maternity leave. At one point, she did plan to continue her training in Ayurvedic medicine which she had undertaken several years earlier, but the claimant was not prepared to provide the support she needed to study. The claimant was also unemployed; he planned to take up writing. In 2005, he took a yoga instructor's course, but did not finish it. Family expenses were paid for with funds derived from the claimant's inheritance. [9] S. was born in 2007. The parties remained in their small apartment. The respondent was primarily responsible for both children's care always, although the claimant remained unemployed. When the respondent

discussed returning to work sometime after S.'s birth, the claimant advised her that childcare would be necessary because he was not prepared to be a stay‑at‑home father, although he was not working. The cost of childcare would likely have exceeded the income earned by the respondent, so she chose not to work outside the home. [10] The respondent found the claimant increasingly difficult. He was controlling and emotionally needy, complaining he did not get enough attention from her. He was not particularly supportive to her in caring for their children. [11] In 2008, she left with the children, but later returned to the apartment. The parties attended counselling. The claimant lived in another suite in the same building and spent time with the family each day, usually at mealtimes. Throughout this period, the claimant continued to pay all of the family expenses, including rent for both apartments, from the inheritance funds. The relationship improved for a while, but then deteriorated. The claimant began bursting into the apartment occupied by the respondent and the children, angrily yelling. At times, he would shake the respondent awake at night when she was sleeping to discuss his problems. [12] In 2010, the respondent told the claimant she wanted a divorce. He later said she would have to pay half the rent and half the children's expenses. On August 10, 2010, the respondent

became so distressed she called a women's shelter. She again described the claimant as being very difficult at that time. The police attended to help her leave with the children. She and the children were taken to a women's shelter where they remained for 11 months. The claimant saw the children when he wished. [13] The respondent and the children moved into a subsidized three‑bedroom townhouse in Burnaby. The respondent's primary source of income became and has remained income assistance. The claimant provided her with no funds, but continued to pay his own expenses from the inheritance funds. [14] In September 2010, the claimant filed a notice of family claim after an incident. He threatened to take the children, so the respondent had kept them home from school. On September 23, 2010, by consent and without prejudice, the court granted the claimant specified access to the children that included three days a week after school until 7:00 p.m., and one weekend day a significant increase in the amount of time the claimant had been spending alone with both children. [15] The respondent found the access schedule hard on the children but complied. On July 13, 2011, the court ordered the parties to share interim joint custody and granted the respondent primary residence and final decision‑making authority. Mr. Boski was ordered to pay $200 a month in child support on a without

prejudice basis. His access was varied to include after school on Thursdays until Friday morning, and every other weekend from Saturday at 10:00 a.m. to Sunday at 6:00 p.m. [16] The triggering event entitling the respondent to an undivided half‑interest in the family assets occurred when a s. 57 declaration was made September 21, 2011. [17] In or about late November 2011, Mr. Boski applied to open an account with HSBC France through the local branch of HSBC in Kerrisdale. In his application form, he specified "inheritance" as the source of the funds to be placed in the account. He said he had savings of $450,000 and a gross annual salary of $25,000. He opened an HSBC Canada account around the same time. For several years prior, the claimant had used an RBC account to deposit funds from the financial assets received through his inheritance and to pay expenses. [18] On February 10, 2012, the court adjourned the first set of trial dates. On April 2, 2012, Dr. Elterman completed an assessment of both parties. He recommended the children remain primarily in the care of the respondent. On June 8, 2012, Master Taylor granted a without notice financial restraining order that prohibited the claimant from disposing of any family assets or other property at issue in these proceedings. The claimant was to be promptly served with a copy of the entered order. The order, both unentered and

entered, was provided to the claimant's counsel at the time. [19] On June 17, 2013, the trial of the matter was adjourned for a second time owing to late disclosure by Mr. Boski. Shortly before the trial, he disclosed the existence of the HSBC accounts in Canada and France. [20] On June 25, 2013, Justice Brown made another without notice order prohibiting HSBC Canada from paying out, transferring, withdrawing, or otherwise dealing with funds held to the credit of the claimant. The order also prohibited the claimant from doing the same with respect to any of his accounts, including accounts held in France or Singapore. Again, the claimant was to be promptly served with the entered order, and again the claimant was served with the order through his counsel. [21] Records of the claimant's HSBC Canada account(s) show a balance of zero after June 5, 2013, up to December 2013. There are no statements before the court from after that date. His HSBC France Premier accounts show ongoing activity after the order of June 25, 2013, up to February 2014, after which no statements have been provided. [22] On December 20, 2013, Justice Skolrood ordered the claimant to serve on the respondent an amended list of documents listing a wide range of financial records and to produce copies of the same. [23] On February 7, 2014, Justice McEwan adjourned the third set of trial dates to the current

dates. By then, Mr. Boski was representing himself. He was present and was ordered to produce all the documents required of him by Justice Skolrood's order by February 11, 2014. Both parties were required to file updated financial statements. [24] Mr. Boski provided limited disclosure on the deadline, but no amended list of documents. After that, respondent's counsel made several written requests for a range of bank statements from a variety of accounts that went unanswered. [25] On April 16, 2014, Justice Gerow ordered Mr. Boski to pay $100,000 into court by April 30, 2014. Mr. Boski again appeared on his own behalf. No funds have subsequently been paid into court by him. [26] On May 29, 2014, Justice Ball varied the order of July 13, 2011, to suspend Mr. Boski's overnight access until the trial of this matter had concluded. He also imposed geographic limits on the claimant's access and ordered a police‑enforcement clause. He further provided Mr. Boski could be served by mailing documents to his last known address and emailing them to his last known email addresses, which were set out in the order. Mr. Boski was ordered to produce the children's birth certificates forthwith. Mr. Boski was not present for the hearing. [27] A trial management conference occurred on June 4, 2014 before Justice Kent. Mr. Boski arrived late and at some point advised the court he was on what he

described as a "suicide watch". Accordingly, his access was suspended pending the trial. Although the claimant did not seek to adjourn the trial, the court advised him the trial would be proceeding. As noted, Mr. Boski did not attend the judicial case management conference scheduled before me on June 25, 2014, nor did he attend the trial. At the outset of the trial, the court attempted to reach Mr. Boski three times by telephone from the courtroom, leaving him two voice mail messages asking him to contact the court registry immediately, and advising him he was expected in Supreme Court. No response was apparently received. Issues [28] The issues to be resolved in this case are: (1) divorce; (2) parenting arrangements; (3) division of assets; (4) child support; and (5) spousal support. Divorce [29] I am satisfied the grounds for divorce, pursuant to s. 12 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) have been met. I therefore grant the order of divorce, which will take effect 31 days from the date of these reasons. Parenting Arrangements [30] In her counterclaim, the respondent sought primary residence of the children and proposed the claimant have regular, specified daytime access with them, pursuant to both the Divorce Act and the Family Relations Act, R.S.B.C. 1996, c. 128 (the "FRA"). At trial, the respondent asked instead for sole custody and sole guardianship. She

also asked for an order of supervised access to the claimant, pending confirmation from a qualified physician that his mental health was sufficiently stable. Custody and Access [31] The issues of custody and access are determined pursuant to s. 16 of the Divorce Act, which requires the court to consider only the best interests of a child; the conduct of a parent only as it relates to the ability to act as a parent; and what is commonly referred to as "the maximum contact principle". The case law establishes there is no presumption in favour of joint or sole custody. In each case, the only question to be answered is what is in the best interests of the child. [32] In determining custody, the court may consider, among other factors, the following: which parent has been the primary caregiver; the status quo, but only where its continuation is in the best interests of the child; the personality, character, stability, and conduct of a parent where appropriate; and a parent's efforts and willingness to facilitate access between the other parent and the child. [33] Here, the evidence is the respondent has always been the primary caregiver of both children, even though the claimant has been unemployed since 2004. The claimant was in fact unwilling to stay home with the children when the respondent proposed that she return to work after S.'s birth. The respondent described the claimant

as enjoying fun stuff with the children, such as family outings and reading to them, but he was not very involved in their day‑to‑day care. It was a struggle for her to leave the children with him for any length of time. He found caring for S., in particular, stressful. The claimant would also complain about the lack of attention he was receiving from the respondent. She described him as sensitive to the noise and mess that come with two young children. [34] During an interview with Dr. Elterman, the claimant provided similar information, stating he suffers from hyperacusis, an oversensitivity to noise. He also described himself as an anxious person. He reported panic attacks in the past, but then indicated the most recent one happened the morning of the interview. The claimant further advised Dr. Elterman that he suffers from post-traumatic stress disorder, although Dr. Elterman observed the reasons he provided for the disorder seemed to be the normal losses most people experience. [35] Following the separation, the claimant's time spent parenting the children increased. Up to then, he had spent very little time with both children on his own. I accept the evidence of the respondent that after the increase the children were excessively tired, which in turn caused their behaviour to deteriorate, and S. in particular was distressed and resistant to going with his father. The

access schedule shifted in July 2011 to provide for less frequent but longer visits, with one overnight during the week on Thursdays and every other weekend. [36] The email communications between the parties that are before the court demonstrates the claimant has been demanding, selfish, and entirely unreasonable at times. During one email, he accused the respondent's mother of abuse and neglect of the children because she kept them indoors on a sunny day and they used electronics. The respondent described his behaviour towards her mother in person as aggressive and abusive at times, which is concerning. [37] The respondent's evidence also points to poor judgment and a lack of concern for the needs of the children on the part of the claimant. For example, in or about September 2011, the respondent was planning to go back to work. She proposed that S. attend daycare or preschool. The claimant expressed strong opposition to daycare, describing it as an unhealthy place for children. Instead, he proposed that the children move in with him until she found employment, encouraging her to then find a place on the West Side of Vancouver, at which point they would again live with her. He noted the children had both told him this arrangement would make them very happy. At the time, the children had just settled into their current home and new school, having lived in a shelter for an

extended period of time. [38] The claimant persistently sought to have the children live and go to school in his neighbourhood, without acknowledging the respondent's dire financial circumstances. He also involved the children in expensive extracurricular activities, including private music and language lessons. While the activities in themselves were no doubt stimulating and provided valuable learning experiences for the children, at the same time the children and the respondent were living in poverty, spending an estimated $200 per month on food. [39] Dr. Elterman observed, and I agree, the claimant tends to project his desires onto the children. For example, his own desire for A. to attend a private girls' school became A. having her heart set on attending that school. A. told Dr. Elterman that her father told her there are better schools than the one she has attended since moving to Burnaby. She also advised Dr. Elterman that her father gets mad a lot, explaining that if they do not do what they are told right away, he yells. She described her mother in much more positive terms, stating she gives the most hugs and kisses and is nice to them. S. described the claimant in similar terms. [40] During the course of the assessment, Dr. Elterman observed the children with each parent in their respective homes. At the claimant's home, A. disappeared with a book and did not want to

come out of her room. The claimant was quiet, observant, and fairly taciturn with the children. Dr. Elterman described as remarkable how different the children were in their mother's home. A. was playful, talkative, and interactive. She did not hide herself away. For the first time, Dr. Elterman found her to be outgoing. Both children were also more comfortable talking to their mother than they had been with their father. [41] Dr. Elterman's report is dated April 2, 2012. At that time, he recommended that the respondent continue to have primary residence, because the children had done well with this arrangement and she is, by all accounts, an excellent parent, in terms of their day‑to‑day needs. Dr. Elterman found that the claimant has difficulty coping with the children for long periods of time, but did recommend a small increase in his access. [42] Since the report, the claimant has become less stable. The respondent sought and obtained an order suspending the children's overnight access with the claimant on May 29, 2014. They had been missing school on Friday mornings in April and May 2014, while in the claimant's care. On May 16, 2014, the respondent discovered the children were not at school in the morning. The claimant did not answer her phone call. In a panic, she called 9‑1‑1. The police found no one at the claimant's home. The children later arrived at school at

12:45. [43] The claimant had also not been consistently exercising his access. Some days he would simply not show up and others he would cancel at the last minute. He did not see the children at all after May 16, 2014. [44] On June 4, 2014, the parties appeared before Justice Kent for a trial management conference. Among other things, the claimant told the court he was on suicide watch. Understandably, the respondent expressed concern about the children and the court suspended all of the claimant's access pending the trial. [45] The respondent testified that she prefers to communicate with the claimant by email, because he is very controlling and unreasonable. At times, the claimant has apparently shut down his email accounts or blocked receipt of emails from the respondent, forcing her to communicate by phone. Part of the order granted by Justice Ball in May 2014 included a term allowing for service on the claimant by email at two email addresses. About a week prior to trial, the claimant sent an email to the respondent from the first of those addresses, advising her he was again using this email address and he planned to get a cellphone, so the children could communicate with him. [46] A short time later, the respondent observed A. sending an email to the claimant, which she attempted to hide. The respondent later read the email which said words to the effect that she could

not access the email account the claimant had set up for her, because her mother was watching her. The respondent has no idea what A.'s email address might be. She has been concerned for some time about the claimant encouraging the children to lie or keep secrets from her, this being one example. [47] The respondent believes it is important for the children to spend time with the claimant and is committed to facilitating access, but is concerned about the claimant's mental health, particularly in light of his recent comments at the TMC. I note that in the past, she has also expressed concern to him about his behaviour and encouraged him to seek professional help. I, too, am concerned about the claimant's mental health in light of recent events, but other evidence reviewed above, as well, and the claimant's failure to attend the trial of this matter. [48] In support of her application for custody, the respondent relies on the decision of Justice Rogers in Pugachev v. Pugachev, 2006 BCSC 30, where the court focused on the importance of common sense and good judgment in all aspects of parenting to determine it was in the best interests of the child to remain in the father's custody. I agree these are important features of healthy, successful parenting. [49] Based on the evidence, I conclude it is in the best interests of the children, as defined in s. 16 of the Divorce Act, that

the respondent has sole custody. The respondent has been, throughout the children's lives, their primary caregiver. The evidence establishes that she is a very competent, loving parent, with an excellent understanding of each child's needs. Despite her extremely low income and the absence of a car, she involves the children in a range of activities that are responsive to their individual interests, as well as family time with grandparents, other family members, and camping holidays. She strikes me as a stable person with plenty of common sense. [50] I am satisfied the respondent is committed to facilitating as much contact between the children and the claimant as is consistent with their best interests. She agreed at the outset of this proceeding to a schedule that provided the claimant with significantly more time than he had spent with them during the marriage. She sought to modify the schedule in a way that would reduce the negative impact of the increased time, while at the same time maintaining meaningful involvement by the claimant in July 2011. Although she has expressed a wish to limit the claimant's time with the children, she has done so based on her concerns about his negative behaviour and encouraged him to seek appropriate help. In the face of repeated absences from school, she sought and obtained an order that suspended the claimant's overnight access only. She

now seeks an order supervising the claimant's access, but only in response to his disturbing comments at the conference before Justice Kent, and for only as long as his mental health remains a concern. [51] I award of sole custody to the respondent also based on concerns about the claimant, among them: uncertainty about his mental health status; his poor decision making prior to the suspension of overnight access; his combative, unreasonable approach to joint decision making for the children in the past; his apparent struggle to separate his needs from those of the children; his ongoing difficulty dealing with everyday stress; and his failure to attend the trial. [52] The respondent asks the court to order the claimant's access be supervised pending production of a medical report that establishes his mental health is not a barrier to safely visiting with the children on his own. The issue of supervised access has been the subject of judicial comment in a number of authorities. Clinical issues involving the access parent are among the factors the court has considered in ordering supervision. Like all decisions regarding parenting issues, the best interests of the child is the only consideration. [53] My hope is the claimant was exaggerating his circumstances when he described himself to Justice Kent as on suicide watch, or that any period of acute distress has since passed.

Given his failure to attend the trial, however, his present circumstances are entirely unknown. Accordingly, in my view, it is in the best interests of the children to require the claimant's access to the children to be supervised until he can establish that his mental health is stable enough for him to safely spend time alone with the children. He may do so by providing the respondent with a detailed letter prepared by a qualified family physician, psychiatrist, or a psychologist who is aware of the claimant's medical history, his comments made to the court regarding being on suicide watch, and his recent circumstances. Guardianship [54] At trial, the respondent sought an order for sole guardianship, which is no longer provided for in the Family Law Act, S.B.C. 2011, c. 25 ("FLA"). Pursuant to s. 39, in most circumstances, including those here, parents are presumptively guardians. Further, s. 251(1)(a) of the Act states if any order made before the coming into force of the FLA provided a party with guardianship, the party remains a guardian under the FLA. I have not been provided with an entered copy of the July 2011 order, but it appears to have included interim joint guardianship. [55] Under the FLA, only guardians may exercise what are referred to as parenting responsibilities - essentially incidents of guardianship enumerated in s.

41. Section 40(2) provides each guardian may exercise all parenting responsibilities in consultation with the other guardians, unless it would be inappropriate to do so or unreasonable in the circumstances, or there has been an order made allocating those responsibilities between the guardians. [56] The Divorce Act does not refer to guardianship and it does not define custody. An order of sole custody under the Divorce Act has been given a broad meaning in the case law to include the full bundle of rights and responsibilities awarded to parents. The question becomes how to reconcile an order for sole custody with the presumption in s. 39 that both parents are guardians under the FLA. [57] Justice Sewell in B.D.M. v. A.E.M., 2014 BCSC 453, considered the impact of a custody order under the Divorce Act on the status of both parties as guardians under the FLA. He concluded the doctrine of paramountcy does not preclude applying the FLA in proceedings where a divorce is granted. In a number of other cases, the court has ordered either sole or joint custody under the Divorce Act, along with guardianship orders and/or orders allocating parenting responsibilities between parents under the FLA. At bottom, an order dealing with parenting responsibilities under the FLA must not conflict or operate inconsistently with the order of custody under the Divorce Act. [58] To make the respondent

the children's only guardian would require the court to terminate the claimant's guardianship pursuant to s. 51 of the FLA. The courts have taken the approach that under the FLA, a parent's guardianship should only be terminated in the most extreme circumstances. Instead, the courts have looked to allocating parenting responsibilities to the more capable parent. [59] The respondent does not disagree that this would be an appropriate approach in this case. Based on the same considerations that inform my decision to award the respondent sole custody and the best interests factors set out in s. 37(2) of the FLA, I am satisfied it is in the best interests of the children to allocate the parenting responsibilities set out in s. 41 to the respondent, excepting that both parties shall be entitled to request and receive from third parties health, education, and other information regarding either child. [60] Upon the claimant's access becoming unsupervised, he also may make day‑to‑day decisions regarding the children's care while they are with him. He is also then at liberty to apply to vary the allocation of other parenting responsibilities. Until that occurs, the respondent shall keep the claimant informed of any significant health issues for the children, their extracurricular activities, school events, and any other significant issues by email. [61] In the event of an emergency

involving the children, the respondent shall make effort to inform the claimant immediately by telephone. [62] The claimant is required to maintain an email address until further order of this Court and to keep the respondent apprised of that address at all times. The parties shall ensure their communication with each other is respectful and businesslike. [63] I note that the financial assets identified by the respondent include RESP accounts for the children that are held in the name of the claimant. Despite the allocation of parenting responsibilities to the respondent, the claimant may continue to manage those RESP accounts, but is prohibited from withdrawing funds from those accounts without the express consent of the respondent, and is required to provide her with copies of all statements he receives regarding such accounts. Division of Assets [64] Section 252(2) of the FLA provides that Part 5 of the FRA applies to the respondent's property claim in this case. The court is required to consider this issue before turning to the respondent's claim for spousal support. [65] Pursuant to s. 56(2) of the FRA, each spouse is entitled to a presumptive undivided half‑interest as tenants in common in each family asset at the time of the triggering event. Here that occurred on September 21, 2011. The respondent asks the court to find the claimant's inheritance to be a family

asset. [66] Neither party appears to own any other property or financial assets, excepting the claimant's car, which was purchased during the marriage with funds from the inheritance and used by both parties until separation. [67] A family asset is defined in ss. 58 and 59 of the FRA and includes money of a spouse in an account with a savings institution, if that account is ordinarily used for a family purpose. Pursuant to s. 60, the onus is on the spouse opposing a claim under s. 56 to prove that the property in question is not ordinarily used for a family purpose. [68] In Lamb v. Lamb, 2007 BCSC 1466, the court reviewed the criteria applied to determine when inherited capital becomes a family asset. With reference in particular to the decision of Lambert J.A. in Evetts v. Evetts, [1996] 85 B.C.A.C. 19, Justice Masuhara summarized the principles applicable to inheritance assets as follows (at para. 22): When a spouse inherits a sum of money, it is to be expected that the spouses will at least discuss how the inheritance helps them financially, supports their retirement plans, and somehow strengthens their future financial security. However, mere talk is insufficient: there must be something more to render the inheritance a family asset. That is, an inherited fund may be, but is not presumed to be, a family asset if it [is] used to provide financial security for the family. The

issue turns on how the inheritance was used, and how concrete the plans were to use the inheritance. This determination depends on the facts. On the facts in Lamb, the court held that a large inheritance received late in the marriage that was not drawn on for family use and that did not dramatically affect the family's planning or intentions was not a family asset. [69] As the respondent points out, the facts in this case are very different from those in Lamb and others involving an inheritance asset, in that the parties used both income and capital from the claimant's inheritance to pay for almost all family expenses sometime after the inheritance funds were received, because neither of them worked from 2004 onward. There was, in other words, no other source of funds with which to pay family expenses. It was not a question of whether the parties discussed using the inheritance for their future financial security; it was their only source of present financial security. [70] In support of her submissions, the respondent relies on Gain v. Gain, 2006 BCSC 853, varied 2009 BCCA 259. In that case, the wife received a large settlement related to serious injuries she suffered in a motor vehicle accident. The proceeds from the settlement were placed in an investment portfolio in her name. As in this case, the family's income derived largely from income and capital from the portfolio,

which was also used to acquire family assets and to pay day‑to‑day family expenses. The court readily found the investment portfolio to be a family asset, and that finding was not challenged on appeal. [71] I, too, have no difficulty concluding the claimant's inheritance or more properly the financial assets making up that inheritance are family assets. The more difficult problem here is identifying all of the actual assets that form the claimant's inheritance. The records before the court show that in April 2005, the claimant's RBC Action Direct account held financial assets worth $442,915. In addition, as of December 31, 2005, he had a variety of mutual fund accounts including TD, Acuity, CI Investments, Franklin Templeton Investments, Clarington, and Mackenzie, valued at approximately $182,000, all managed by Mr. T., who had been his mother's financial advisor. [72] It is unknown whether the claimant received other financial assets as part of his inheritance. The claimant paid family expenses from his RBC chequing account. The RBC Action Direct account shows significant wire transfers to the RBC chequing account starting August 5, 2005. At times there were also transfers of funds from the RBC chequing account to the RBC Action Direct account. [73] The claimant did not provide account statements for between April 2006 and April 2007. During that time, the total value of the

assets in the RBC Action Direct account dropped by approximately $55,000. The RBC statements for that year show approximately $160,000 flowing into the RBC chequing account from RBC Action Direct, and approximately $96,000 flowing into RBC Action Direct from the RBC chequing account. Starting in February 2007, the RBC chequing account shows deposits from the other mutual fund accounts, some of which are described as dividend payments. In July 2008, however, there are two significant deposits from two other mutual funds, one called AIM Trimark for $16,000, and another from Acuity Mutual Funds for $50,000. The use of funds from RBC Action Direct and the various identified mutual funds carried on well past the separation of the parties. [74] The claimant has filed four Form F8 financial statements during the course of this proceeding; the first he swore on May 2, 2011. He listed financial assets with a total value of $470,300 that included an RBC chequing account, and two separate mutual fund accounts he described as self‑managed and professionally‑managed. He did not identify the name of the institutions where the mutual fund accounts were held nor the account numbers. The financial statement listed no debts. [75] At the time of the triggering event in September 2011, the claimant's RBC Action Direct account held fixed income and mutual funds with a total value of approximately

$299,000. There was no evidence of the precise value of the other mutual fund accounts at that time, although a rough estimate is $190,000. [76] On or about November 21, 2011, the claimant applied to HSBC France to open an account. In his application form, he stated he had savings of $450,000. He identified the source of the funds as an inheritance. In December 2011, the claimant opened two accounts with HSBC Canada. His HSBC France accounts opened around the same time. As of November 30, 2011, the RBC Action Direct account showed assets of approximately $290,000. Almost the same amount appears in one of the claimant's HSBC accounts as of December 31, 2011. By February 2012, the balance in the same account was approximately $10,500. [77] In January 2012, the claimant deposited approximately $267,000 into his HSBC Premier account (Canada). He then transferred approximately $245,000 to his HSBC France accounts on January 10, 11, and 12, 2012. $15,000 was transferred to an unknown account. In early February 2012, the claimant collapsed the known mutual fund accounts and deposited those funds in the HSBC Premier account (Canada). Together those funds at disposition totalled approximately $194,000. [78] He then transferred those funds in various amounts to his HSBC France account. Starting on February 10, 2012, up to and including June 2012, the claimant deposited various funds from

unknown sources that totalled approximately $162,000 into the HSBC Premier account (Canada), and then transferred out almost the same amount to unknown accounts on various dates. Starting in or about May 2012, there is also what appears to be considerable movement of funds between the claimant's HSBC Premier account (Canada) and his high rate savings account also with HSBC - a U.S. dollar account. [79] In his second Form F8, sworn February 2, 2012, the claimant set out a total of $412,502 in financial assets. He listed RBC Mutual funds and a TFSA account as an additional asset to those listed in the first financial statement. Again, he shows no debts. There is no reference to any HSBC accounts. The documents before the court show he had those accounts before swearing the second financial statement. [80] On June 8, 2012, a without notice order was granted that restrained the claimant from disposing of any family assets or other property at issue in these proceedings. On the same day, $100,000 was withdrawn from his HSBC high rate savings account. A further $100,000 was then withdrawn from the same account on June 11, 2012, along with $32,460. By July 16, 2012, the balance in his HSBC Premier account (Canada) was zero and showed no activity. [81] There were also no funds left in the claimant's HSBC high rate savings accounts, both European and U.S. The claimant's HSBC Premier

France account had a balance at opening on June 10, 2011, of €38,053. The most recent statement ending January 31, 2014, shows a closing balance of €1,504. The other known accounts with HSBC France show an opening balance on January 10, 2013, of €283,765 and a closing balance on January 10, 2014 of €216,972. [82] In the claimant's third Form F8, sworn June 3, 2013, the claimant sets out the total value of his financial assets at $340,141. The statement no longer lists any mutual funds. He continues to list an RBC chequing account and, in addition, three accounts with HSBC France, some cash, and an RBC TFSA account that may or may not be the same as the one previously listed. [83] In his last produced amended list of documents number 8, dated June 14, 2013, the claimant listed documents that included some statements from some of his known bank accounts up to that date. The order of Justice Skolrood granted December 20, 2013, required the claimant to produce, among other things, all bank statements which had not appeared in an existing list of documents, and all documents relating to investments by him which had also not yet been listed, along with an updated list of documents. Mr. Boski did not comply. [84] The subsequent order of Justice McEwan granted February 7, 2014, required the claimant to produce all documents required by Justice Skolrood's order by February 11, 2014. The

claimant did provide some documents to respondent's counsel on that day, but not updated statements from all of his listed bank accounts, including a range of HSBC accounts. He provided nothing further after that day, despite repeated written requests from respondent's counsel, nor was a further amended list of documents ever provided. [85] The claimant has disclosed no bank or investment statements since February 11, 2014. It is clear the claimant did not provide the required disclosure prior to or on that date. Based on what the claimant has disclosed, it is impossible to obtain a clear picture of his financial assets. What is evident is that during the winter of 2012, after the triggering event, the claimant deposited in his HSBC Premier account (Canada), a total of approximately $624,000 in funds, $462,000 of which were derived from identified family assets, including mutual funds held in the RBC Action Direct account and other various accounts listed above. $22,000 of the mutual funds previously held in the RBC Action Direct account appears unaccounted for. [86] In his most recent Form F8, sworn March 11, 2014, the claimant listed financial assets with a total value of $353,000. He refers to RBC, HSBC Canada, HSBC Europe, and HSBC Singapore, but does not indicate how much money is in each of these accounts or provide any account numbers or further account information. The

records provided regarding his known accounts after June 2012 are inadequate at best. It also seems clear there were unknown sources of funds and unknown accounts in 2012, because the disclosure provided offers no explanation for many of the deposits into the HSBC Premier account (Canada) from February 2012 onward. [87] After swearing his most recent financial statement, the claimant was ordered to pay $100,000 into court. He was present when the order was made. He has not complied, although he had already sworn to having financial assets over three times that amount. [88] The respondent asks the court to value the family assets at $646,470, based on the value of the known mutual funds disposed of by the claimant in late 2011 and early 2012, and the various amounts deposited into the HSBC Premier account (Canada) after February 2012 and then transferred elsewhere. [89] Based on the analysis set out in Cunha v. Cunha, [1994] 99 B.C.L.R. (2d) 93 (S.C.), she asks the court to impute further assets to the claimant and order the respondent to receive half the value of those further imputed assets. [90] In Cunha, Justice Fraser described non‑disclosure as "the cancer of matrimonial property litigation" (at para. 9). He held it is not enough for the court to respond to non‑disclosure of assets by an award of costs, nor is it enough to deal with only the known assets. He expressed

concern that either approach or both together may still reward the non‑disclosing litigant. Justice Fraser concluded (at paras. 11, 13): that where there has been concealment of assets, it ordinarily should be held that the concealment is ongoing, that there are assets still undisclosed, and that the division of assets should be affected accordingly Once non‑disclosure at any stage has been established, the onus of satisfying the Court that afterwards there has been full disclosure [is] on the non‑disclosing party. [91] The court in Cunha inferred the value of the undisclosed assets as at least equal to the value of the disclosed assets, and vested all the known assets in the wife's name. [92] In Laxton v. Coglon, 2008 BCSC 42, Justice Kelleher clarified the Cunha approach does not constitute reapportionment (at para. 29). The inference simply operates to ensure equal division between the parties where the court is satisfied, on the balance of probabilities, that one party has not fully disclosed assets. He also observed, in the case of Eng v. Eng, [1998] B.C.J. No. 2574 (S.C.), the court held the principle in Cunha applies only where there is a strong evidentiary basis for the proposition that one of the parties to the litigation has hidden assets. [93] More recently in Wu v. Sun, 2011 BCCA 239, the Court of Appeal made a similar point. It affirmed that strong measures are

justified in discouraging non‑disclosure, but cautioned that there must be some evidence of the value of the undisclosed assets before the inference is appropriate, because one cannot make something out of nothing. The evidence may, however, be sparse. [94] Applying the above authorities to the facts of this case, I find that the claimant has failed to disclose all of his financial assets. By opening accounts in France, moving most, if not all, of his known financial assets previously held in Canada to those accounts shortly before the first trial dates, and yet not disclosing the accounts themselves, I find he concealed assets and attempted to make them unreachable. [95] The claimant did not disclose any HSBC accounts until he swore his third financial statement in June 2013. The HSBC documents were not listed until his sixth list of documents dated June 7, 2013. There appears to have been no disclosure about the funds from unknown sources he then deposited on February 10, 2012, and onward into his HSBC Premier account (Canada). [96] Deposits happened alongside transfers to what appear to be undisclosed accounts. Those deposits and transfers, however, provide the court with some evidence of the value of the undisclosed assets, as discussed in Wu. In this case, the known assets at the time of the triggering event consisted of the assets held in the claimant's RBC accounts and

his other known mutual fund accounts. The known mutual fund assets no longer exist. There are now other bank accounts in France and Singapore. Nothing is known about the value of any funds in those known accounts or if the claimant continues to hold those accounts. This is not like Cunha where there are identifiable assets with a particular value existing at the time of trial to use as a baseline. [97] The principles governing the valuation date for family assets are set out in N.M.M. v. N.S.M., 2004 BCSC 346, where Justice Joyce provided that, as a general rule, valuation at trial is appropriate, but there is discretion to fix another date, although not earlier than the triggering event, if necessary to achieve fairness (at para. 76). [98] In my view, this is one of those cases where fairness requires the trial cannot provide the valuation date for most of the family assets. No doubt the claimant would complain, had he been present, that his financial assets have since diminished, given his pattern of spending approximately $60,000 - $65,000 per year on his own living expenses from investment income and capital. The claimant, however, has had exclusive use of his financial assets since separation. As of the triggering event, the respondent's interest in the family assets was equal to his. He was aware she regarded his inheritance as a family asset. In June 2012, he was ordered

by this court not to dispose of any family assets or other property at issue in this proceeding. Similarly, in June 2013, the freeze order prohibited him from disposing of funds held in his accounts. He did not seek to set aside either order. [99] Given the claimant's use and disposal of family assets following the triggering event, no one date provides an appropriate time at which to value all of the assets. Accordingly, the valuation dates and the value of the known family assets are as follows. [100] The Acuity funds are valued at February 6, 2012, at $77,511.51; CI Investments are also valued on that date, and their value is $36,709.02; the Franklin Templeton mutual fund is also valued on February 6, 2012, and its value is $23,636.59; Mackenzie Investments, also valued on February 6, 2012, at $47,820.49; Clarington funds, also valued on February 6, 2012, are valued at $29,948.98; the RBC Action Direct mutual funds are valued at November 30, 2011, at $290,137.48; and the 2005 Toyota Matrix XR is valued on March 11, 2014, and given a value of $11,000; for a total of $516,764. [101] In addition, there is evidence the claimant had other undisclosed financial assets worth $162,000. [102] Given the claimant's persistent failure to provide proper disclosure of his financial assets, in breach of orders of this court and the Supreme Court Family Rules, B.C. Reg. 169/2009, his

failure to comply with the order requiring him to pay $100,000 into court, and his failure to attend the trial of this matter, I find the undisclosed assets to be family assets and value them in the above‑noted amount. [103] Therefore, the total value of the family assets is $678,764. For the sake of clarity, the family assets include those listed at paragraph 15 of the respondent's draft order. [104] I recognize that the respondent's legal interest is an undivided half‑interest in each family asset. To effect an equal division of the family assets, I have considered vesting all of the known assets in the respondent's name, based on the evidence of value set out in the claimant's most recent financial statement. The financial statement does not provide the information required by the form itself for financial information, including account numbers. This makes a vesting order practically impossible. In addition, it appears most of the assets are located outside of B.C., if not Canada. [105] In my view, fairness requires the division be effected by the claimant paying compensation to the respondent in the amount of $339,382 within 14 days of the receipt of this entered order. [106] Upon payment to the respondent of that amount, all financial assets in the name of the claimant shall vest in him. Child Support [107] Given the claim for divorce, child support shall be determined

pursuant to s. 15 of the Divorce Act. The appropriate amount of child support is determined in accordance with the Federal Child Support Guidelines, SOR/97-175 (the "Guidelines"). The key objective of the Guidelines is to establish a fair standard of support for children that ensures they continue to benefit from the financial means of both spouses after separation. [108] Section 16 of the Guidelines provides that, subject to ss. 17 through 20, a spouse's annual income is determined using all of the sources of income comprising total income in the T1 General form issued by Canada Revenue Agency. [109] The respondent asks the court to impute further income to the claimant in the range of $60,000 to $65,000 per year, based on his annual expenses over the past several years, pursuant to s. 19 of the Guidelines. [110] Since July 2011, the claimant has paid $200 per month in child support. [111] Three fundamental principles apply to all child support applications: parents have a joint and ongoing legal obligation to support their children; the children, not the parent with custody, has the right to support; and support payments are based on earning capacity, not only what a parent actually earns. As a result, a parent has a legal obligation to earn as much as he or she is reasonably capable of earning: Hanson v. Hanson, [1999] B.C.J. No. 2532 (S.C.). [112] Pursuant to section 19 of

the Guidelines the court may impute such income to a spouse as it considers appropriate in the circumstances including: where the spouse is unemployed or underemployed; it appears income has been diverted which would affect the level of child support to be determined; the spouse's property is not reasonably used to generate income; and the spouse has failed to provide income information when under a legal obligation to do so. [113] The respondent has not suggested that income be imputed to the claimant based on his unemployment. The respondent relies instead upon Motyka v. Motyka, 2001 BCCA 18, where the Court of Appeal upheld an order imputing a Guidelines income to the husband of $60,000 a year for failing to provide income information. [114] In Motyka, the chambers judge relied on evidence regarding the husband's lifestyle, his monthly expenses, and the range of income he was earning during the marriage in coming to that amount. According to the husband's property and financial statement, he had household expenses of $73,000 per year in the year before the application. The chambers judge reasoned he must have had more income than he disclosed to meet those expenses. [115] Here there is plenty of evidence, reviewed above, that the claimant has not provided proper financial disclosure, although under a legal obligation to do so, invoking s. 19(1)(f) of the Guidelines. In his

most recent financial statement, the claimant swears to a Guidelines income of $5,225, based entirely on investment and interest income. He sets out annual expenses of $60,048. He lists no debt, and his largest monthly expense is rent of $1,020. His first through third financial statements set out Guidelines incomes that ranged from $10,061 to $8,786, with annual expenses ranging from roughly $67,000 to $58,000. [116] My decision regarding the division of the family assets will provide the claimant with financial assets valued at $339,382. The claimant has chosen not to work since 2004 and to instead pay for family expenses until separation and then all of his own expenses through investment income and capital from his inheritance. Unless he chooses to return to work, he will continue to pay his expenses, including child support, from investment income and capital. I expect, given the reduction in the size of his holdings caused by the compensation order provided for in these reasons, he will need to reduce his expenses and modify his lifestyle. [117] I notice that his current financial statement sets out monthly travel expenses of $495; $520 per month on UBC tuition and student fees; and $360 per month on piano and language lessons. Given the authority of Motyka, the objectives of the Guidelines, the claimant's lifestyle and expenses over many years provided for by investment

income and capital, and the reduction in the value of the financial assets held by the claimant resulting from the division of assets, I impute a Guidelines income to him of $30,000. [118] Accordingly, he shall pay to the respondent on the 1st of each and every month, commencing August 1, 2014, $463 in basic child support until further order of this court or the children are no longer children of the marriage. [119] At trial the respondent sought special and extraordinary expenses in accordance with s. 7 of the Guidelines. Under s. 7(1) of the Guidelines, the guiding principle in determining respective contributions to an expense is that the expense be shared in proportion to the spouses' respective incomes, after deducting any contribution from the child. [120] The respondent seeks an order requiring the claimant to pay the cost of s. 7 expenses in proportion to his income. The respondent's most recent Form F8, sworn February 28, 2014, sets out her child support Guidelines income for special expenses at $11,366.96, which includes $10,166.96 in social assistance income for herself, and the universal childcare benefit of $1,200. [121] Given the respondent's extremely low income and the low amount of basic child support she will receive, I find the cost of the children's extracurricular activities to be extraordinary. Presently, the children's extracurricular activities are

community‑based and not costly in and of themselves. They include Brownies or Guides for A. and S.'s activities include soccer and perhaps hip‑hop dancing. Both children also attend swimming lessons. [122] I order the parties to share the cost of the children's extracurricular activities in proportion to their respective incomes, after any subsidy or credit available to the respondent toward the cost of those activities at Bonsor Community Centre has been redeemed. The respondent will not be required to contribute to the cost of any activities the claimant may register the children for without her consent and agreement. [123] I find that the special expenses will include childcare costs incurred by the respondent for employment or retraining for employment, that portion of medical and dental insurance premiums attributable to the child, and health‑related expenses that exceed insurance reimbursement by at least $100, including dental and orthodontic treatment, prescription drugs, and medical equipment. Spousal Support [124] The respondent seeks an order for spousal support on compensatory and non‑compensatory grounds, again based on imputed income to the claimant. [125] The objectives of spousal support are set out in s. 15.2(6) of the Divorce Act. They are as follows: (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. [126] Section 15.2(4) further provides the court must consider the condition, means, needs, and other circumstances of each spouse when dealing with an application for spousal support, including these factors: (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. [127] The respondent submits she is entitled to compensatory support because of the role she played during the marriage, being at all times the primary caregiver to the children, despite the claimant's unemployment after 2004. On two occasions, she considered or proposed returning to work or education to support the family, but decided against it because of the claimant's unwillingness to care for the children and the cost of childcare relative to the wages she expected to earn. [128] Compensatory support is intended to provide redress to the recipient spouse for economic

disadvantages arising from the marriage or the conferral of an economic advantage upon the other spouse. Compensatory support recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often results in a lower earning potential and fewer future prospects for financial success. [129] The Court of Appeal held in the recent case of S.E. v. J.E., 2013 BCCA 540 at para. 25, citing Moge v. Moge, [1992] 3 S.C.R. 813, that s. 15.2(4) and (6), make it clear that the purpose of compensatory support is to foster the equitable sharing of the economic consequences of marriage and its breakdown. This requires, amongst other things, an analysis of the economic costs borne by a spouse in the marriage in limiting that spouse's future earning capacity, the needs and living standards of the spouses, and the ability to pay. The court must therefore assess the effect of the marriage on the parties' economic circumstances and try to alleviate disadvantages and hardships. [130] The analysis in Moge also recognizes that a fair distribution of the economic consequences of marriage and its breakdown may be achieved either by spousal support, by the division of property, or both: S.E. at para. 26. [131] In Moge, the court discussed the relevance of the parties' standard of living in the context of compensatory support. The parties' relative standard

of living is a primary focus for non‑compensatory support, which aims to narrow the gap between the needs and the means of the spouses upon marital breakdown. The concept of needs goes beyond basic necessities of life and varies with the circumstances of the parties. It should take into account the relative standards of living following marriage breakdown. [132] The court is required to consider, however, each of the four factors set out in s. 15.2(6) in assessing a claim to spousal support on either ground. [133] It is clear that, given her role during the marriage in caring for the children and the claimant's refusal to share in that role, the respondent suffered an economic disadvantage during the marriage by not returning to work, albeit low‑paid work. What is unusual about this case is that while the marriage hindered the respondent's ability to become self‑sufficient etc., the claimant did not gain a corresponding advantage because of his own decision not to work. He chose not to capitalize on the economic opportunity afforded to him by the respondent taking on primary responsibility for the care of the children. In my view, his choice compounded the economic disadvantage suffered by the respondent, by depriving her of sharing in the economic benefit a spouse would ordinarily receive when he or she pursues employment, free of the primary childcare responsibility and the

cost of childcare. The claimant's inheritance is no substitute for the foregone opportunity afforded by the respondent's sacrifices to both the claimant and herself to benefit financially from the husband's employment. [134] In addition, the parties' standards of living were markedly different following their separation. The claimant continued to live a lifestyle the parties had shared during the marriage. The respondent fell into poverty. She and the children have since survived on income assistance. She did not, however, as far as I know, seek interim spousal support. [135] The respondent is now 47 and has not worked since the separation. Prior to the marriage, she completed two years of training in Ayurvedic medicine in California, but never worked in that field. Between 1998 and 2004, she worked at Mountain Equipment Co‑op, earning little more than minimum wage. She has not explained why she has not returned to work since the separation, except for her evidence that she intended to do so in September 2011, at which point the parties fell into a dispute about preschool and daycare for S. Her plan now is to seek re‑employment with Mountain Equipment Co‑op in the very near future. She expects to be paid minimum wage and plans to remain available to the children after school. [136] The claimant is now about 52. Many years ago, he attended Concordia University in Montreal

followed by Carlton University in Ottawa. He then moved to Vancouver, tried to work as a bartender, and then worked at Banyen Books for six years. He went back to school and studied philosophy, and then switched to geography but did not finish the program. He worked at Mountain Equipment Co-op between 1999 and 2001, but took a stress leave in 2000. After that, he volunteered with the respondent at a meditation centre in California. He then had a job doing registration for a meditation organization in Vancouver, and then at a book registration company. He took up yoga, and completed some training to become a yoga instructor, but apparently did not finish it. When he met with Dr. Elterman in 2012, he reported managing and living off his inheritance since 2004. His activities included seeing a counsellor every two weeks and attending piano lessons. [137] I am satisfied that the respondent is entitled to spousal support on compensatory and, to a lesser extent, non‑compensatory grounds, bearing in mind the division of assets. Equitable distribution can be achieved in many ways by spousal and child support, by the division of assets, and by a combination of property and support entitlements. The question of quantum here is a difficult one. The Spousal Support Advisory Guidelines ("SSAGs") provide for monthly payments in the range of $276 to $437, based on the imputed income of

$30,000 for the claimant and zero for the respondent, since social assistance is typically not considered income under SSAGs. Requiring the claimant to pay spousal support from his share of the equally‑divided assets raises the issue of double dipping or double recovery, because he has no other source of income, and I have not been asked to impute income to him on the grounds of unemployment. [138] While the courts have determined it is appropriate to look at the payor's capital assets, including those obtained through property division, to determine his or her ability to pay, in Boston v. Boston, 2001 SCC 43, the majority of the Supreme Court of Canada held that a husband was entitled to reduce his support obligation when he retired and his income derived from his pension, which had already been taken into account in an earlier division of assets. The majority also found, however, that double recovery cannot always be avoided. [139] Courts have held that double recovery must be avoided when determining spousal support after a reapportionment of family assets in favour of a spouse seeking spousal support: Toth v. Toth, [1995] 64 B.C.A.C. 81 at para.

59. I note that reapportionment based on 65(1)(e) of the FRA involves some of the same considerations as the objectives of spousal support in the Divorce Act. If the division of assets does not adequately address the objectives of spousal support, however, no double dipping occurs by requiring one spouse to pay another support from his share of the equally‑divided assets: Tedham v. Tedham, 2005 BCCA 502 at para. 64. [140] Here both parties are left with equal financial assets and neither party has, at this point, any other source of income, nor did they for the last six years of the marriage. Even if this were a long marriage giving rise to the presumptive claim of an equal standard of living upon dissolution, it is certainly arguable the division of assets on its own provides the respondent with this result. [141] However, given the obvious economic disadvantage to the respondent suffered as a result of the marriage, and to a lesser extent the obvious need that arose after separation and the claimant's failure to provide proper financial disclosure, I am prepared to order the claimant to pay monthly spousal support to the respondent at a slightly lower amount than the low end of the range at $250 per month, subject to variation or review of entitlement and quantum after five and a half years. In my view, this provides for an equitable distribution, bearing in mind all the

objectives of spousal support. [142] Accordingly, I order the claimant to pay the respondent $250 a month on the 1st of each month, commencing August 1, 2014. [143] Mr. Boski's notice of family claim is dismissed. Costs [144] The respondent sought special costs at the outset of the trial. In submissions, she instead sought costs at an increased scale, because of the increased level of difficulty involved. [145] In my view, it is appropriate for me to consider special costs, given the findings made above. Special costs are awarded in exceptional circumstances to chastise or punish a party's conduct in the litigation, and they encompass an element of deterrence. The authority to award costs is found in the inherent jurisdiction of the court and in Rule 16‑1 of the Supreme Court Family Rules. Rule 16-1 of the Supreme Court Family Rules is materially similar to Rule 14-1 of the Supreme Court Civil Rules, B.C. Reg. 168/2009. [146] The Court of Appeal's decision in Garcia v. Crestbrook Forest Industries Ltd., [1994] 45 B.C.A.C. 222, remains the leading authority on special costs. There, reprehensible conduct was established as the single standard for awarding special costs. [147] In Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352, Justice Gropper canvassed the jurisprudence on special costs since Garcia and provided a helpful distillation of the key principles which

are (at para. 73): a) the court must exercise restraint in awarding special costs; b) the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order; c) simply because the legal concept of "reprehensibility" captures different kinds of misconduct does not mean that all forms of misconduct are encompassed by this term; d) reprehensibility will likely be found in circumstances where there is evidence of improper motive, abuse of the court's process, misleading the court and persistent breaches of the rules of professional conduct and the rules of court that prejudice the applicant; e) special costs can be awarded against parties and non-parties alike; and f) the successful litigant is entitled to costs in accordance with the general rule that costs follow the event. Special costs are not awarded to a successful party as a "bonus" or further compensation for that success. [148] With respect to conduct in the litigation, special costs may be awarded where the court finds the party has not conducted him or herself in accordance with the rules of court, and has failed to comply with orders of the court. [149] In Leung v. Chang, 2014 BCSC 1243, Justice Dardi granted partial special costs and provided this analysis in support of the award (at paras. 46-49): Pursuant to Rule 14-1(15) the court has the discretion to award costs that relate to

some particular application, step, or matter in a proceeding, and may fix the amount of those costs. In A.S.P. v. N.N.J., 2013 BCSC 2377, the court awarded special costs against the father because of his inappropriate conduct throughout the proceedings. However, in awarding special costs the court noted that it would be "disproportionate" to award special costs for the entirety of the proceeding taking into account that it was a family matter that had been hard-fought While recognizing the general rule that special costs are to be awarded for the entire proceeding, it remains open to the court, in appropriate cases, to exercise its discretion so as to award special costs for a number of trial days [or parts of the proceeding] attributable to reprehensible conduct In Romfo v. 1216393 Ontario Inc., 2007 BCSC 1772, leave to appeal ref'd 2008 BCCA 101, the court made a partial award for special costs for these aspects of the proceeding: the document production motions, the motions to compel further examinations for discovery, and the preparation for and conduct of the examination of a representative of the defendant. The court held that the conduct of the defendants, in failing to produce some documents and essentially wasting the plaintiff's time at an examination for discovery, justified a partial award for special costs, but that to award special costs for the whole proceeding

would be disproportionate [150] Given the findings I have made above with respect to the claimant's failure to provide financial disclosure, his efforts to conceal financial assets, his failure to comply with orders of this court, and his failure to attend the trial, I find his conduct to be reprehensible. [151] Based on Leung and the cases cited in that decision, I exercise my discretion to award partial special costs. In many instances it will be very difficult to parse out with precision the particular portions of a proceeding which should attract a special costs award. In reviewing the history of this proceeding, however, it is apparent to me that the claimant began to engage in reprehensible conduct by December 2011, if not shortly before. Accordingly, costs related to all steps in the proceeding after that date shall be assessed as special costs, excepting the application before Justice Ball in May 2014, which largely related to custody and access issues. All steps prior to December 2011 and steps related to the application before Justice Ball shall be assessed at Scale B. [152] I seize myself of any further applications related to the enforcement of the orders made, unless I am unavailable. "Fleming J."