Bradley v. Callahan

2024 BCSC 163 Bradley v. Callahan

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bradley v. Callahan, 2024 BCSC 163 Date: 20240131 Docket: E161000 Registry: Vancouver Between: Norval Bradley Claimant And Edward James Callahan, Midwest Ventures Ltd. and C.M.S.T. Investments Ltd. Respondents Before: The Honourable Justice Funt Reasons for Judgment Counsel for the Claimant: N.D. Allen K.L. Basran Counsel for the Respondents: L.A. Kahn, K.C. J. Wahid C. Pang Place and Dates of Trial: Vancouver, B.C. May 1-2, 5, 8-12, 15-16, 18-19, 29-31; June 1-2, 8-9, 12-15, 19-21, 26-30, July 31, August 1-3, 8, 24-25, September 15, October 27, December 4, 2023 Further Written Submissions of the Respondent: December 11, 2023 Further Written Submissions of the Claimant: December 13, 2023 Place and Date of Judgment: Vancouver, B.C. January 31, 2024 Table of Contents I. Introduction.. 4 II. THE corporate respondents.. 7 III. Statutory Provisions.. 7 A. Property Division.. 7 B. Child Support 8 C. Spousal Support 14 IV. Balance of Probabilities.. 19 V. Credibility.. 19 VI. Ms. Bradley's credibility.. 20 A. Purchase of the Aventus Yacht 20 B. Joint Ownership of the Aventus Yacht 30 C. Child Support Overclaim.. 32 D. Not Forthright 33 VII. Mr. CallahaN's credibility.. 36 VIII. Mr. Callahan's income for support purposes.. 41 A. The Argus Group. 41 B. Determining Guidelines Income. 45 IX. Marriage Agreements - Property division.. 49 A.

Generally. 49 B. Available Spousal Support 52 X. Is the Marriage Agreement valid?.. 53 A. Generally. 53 B. Ms. Bradley's Grounds to Set Aside the Marriage Agreement 57 1) Adequacy of Legal Advice. 57 2) Preparation and Execution of the Marriage Agreement 59 3) Sufficiency of Disclosure. 59 XI. date of cohabitation.. 60 XII. Does the marriage agreement operate fairly?.. 62 A. Financial Developments After Marriage. 62 B. Operation of the Marriage Agreement 65 XIII. Spousal support.. 69 A. Prospective Spousal Support 69 B. Retroactive Spousal Support 71 XIV. child support.. 76 A. Living Arrangements for James and Caitlin.. 76 1) James. 76 2) Caitlin.. 76 B. Prospective Child Support (After 2022) 77 C. Retroactive Child Support 79 XV. Further asset division.. 81 XVI. divorce.. 83 XVII. orders.. 84 A. Family Assets. 84 B. Spousal Support 85 C. Child Support 85 D. Other Orders. 85 XVIII. costs.. 85 Schedule "A". 86 I. Introduction [1] In this family case, the key issues are spousal and child support, including retroactive support, and property division. [2] In these reasons, any reference to the parties will not include the corporate respondents unless otherwise stated. [3] After living together for several years, on September 13, 1997, the parties were married. [4] The parties have two children: James and Caitlin, who are 24 and 22 years of age, respectively. Both enjoy good health

and are in the final stages of university education. [5] The parties executed a marriage agreement on September 11, 1997 (the "Marriage Agreement"), two days before their marriage. The Marriage Agreement was the result of negotiations between the parties, with each party having engaged separate counsel more than a month before the finalization and execution of the Marriage Agreement. About a month after the execution of the Marriage Agreement, counsel advising Ms. Bradley, the claimant, provided a certificate of independent legal advice (with Ms. Bradley's written acknowledgment) to counsel advising Mr. Callahan, the respondent. [6] On June 1, 2014, the parties separated. [7] Under Justice Jackson's June 8, 2021 order, Ms. Bradley currently receives, on an interim basis, $60,000 per month in spousal support and $24,000 per month in child support. [8] In brief terms, with respect to property division, the Marriage Agreement's key provision was that Mr. Callahan's business interests (which included corporately-owned real estate holdings and developments) were not to be subject to property division if the parties were to separate. [9] The Marriage Agreement lists Mr. Callahan's interests in 11 private corporations. Without a formal or informal valuation, Mr. Callahan disclosed in the Marriage Agreement that the total value of his corporate interests was "in excess of $2 million".

Mr. Callahan's business interests (e.g., shares in the capital of corporations and interests in partnerships) are now commonly referred to as the "Argus Group". [10] A joint expert valuation report dated May 2, 2019 was prepared by Mr. Michael Bowie, CPA, CBV. He valued the Argus Group as of September 11, 1997, June 1, 2014, and May 2, 2019 as follows: September 11, 1997 $2,967,417 to $3,305,278 June 1, 2014 $82,934,644 to $87,041,730 May 2, 2019 $123,842,697 to $130,433,611 [11] The September 11, 1997 valuation does not include Mr. Callahan's then-contingent interests in Argus Industries Ltd. or Callahan Construction Company Ltd. As of September 11, 1997, Mr. Bowie estimated the value of all shares of Argus Industries Ltd. and Callahan Construction Company Ltd. to be approximately $7.7 million and $18.3 million, respectively. [12] The range in values captures a "provision for the latent selling costs and corporate income tax" that are referred to as "Latent Realization Costs". [13] The parties agree that the value of the Argus Group has further increased since May 2, 2019. Absent a further valuation by Mr. Bowie, Ms. Bradley says the current value is approximately $227 million to $239 million. By contrast, Mr. Callahan says that the current value is closer to approximately $151 million to $163 million. Quite properly, neither party purports that their respective estimates

reflect a formal expert valuation as that undertaken by Mr. Bowie (costing approximately $650,000 including the underlying Altus Group's report as to the fair market value of specified real properties). [14] The trial was first set to start on July 2, 2019 but did not proceed because no judge was available. [15] Among other relief, Ms. Bradley seeks an equal division of the value of the Argus Group and some other property. As described below, applying the Marriage Agreement, I find that an equal (or any) division of Mr. Callahan's interests in the Argus Group would not be appropriate. [16] In the parties' discussions leading to the Marriage Agreement and in the Marriage Agreement itself, it was contemplated that Mr. Callahan's business interests would not be subject to property division upon separation. [17] Applying the guidance of the Supreme Court of Canada in Hartshorne v. Hartshorne, 2004 SCC 22 and our Court of Appeal in H.S.S. v. S.H.D., 2018 BCCA 199, leave to appeal to SCC ref'd, 38246 (7 February 2019), I find that the equitable result for the parties is achieved through a higher award for spousal support, reflecting Mr. Callahan's significant wealth and income derived primarily from his holdings in the Argus Group. [18] Ms. Bradley is awarded $8.6 million in lump sum spousal support, which will be approximately $8 million after various credits are deducted. [19] Ms.

Bradley will also retain the total advances and payments she has received from Mr. Callahan since separation (excluding child and spousal support) of $3,412,500. Of these advances and payments, $1.65 million was used to fund Ms. Bradley's purchase of her principal residence, in accordance with the Marriage Agreement, and $454,450 was from Mr. Callahan's 2019 purchase of Ms. Bradley's one-half interest in a Hawaii property they owned. [20] Mr. Callahan will also pay Ms. Bradley $1,619,650 for one-half interests in three properties the parties referred to as Big White, Sheerwater, and Howe Street (based on 2023 property assessments). [21] Ms. Bradley's principal residence is a Kelowna lakefront property, several houses away from Mr. Callahan's residence, which she acquired in late 2014. The two properties, 206 Lochview Road and 222 Lochview Road owned by Ms. Bradley and Mr. Callahan respectively, enjoy similar qualities and have comparable values (approximately $3 million each), with Ms. Bradley having undertaken significant renovations with respect to her home. [22] Ms. Bradley will retain the spousal and child support payments she received before May 1, 2023, the first day of trial. She will also retain $10,000 of the $24,000 monthly child support payments she received on or after May 1, 2023 and before 2024. Mr. Callahan will be credited fully for any child support paid to Ms.

Bradley after 2023. [23] Ms. Bradley's claim for future child support is unfounded, as is her extravagant claim for retroactive child support of $5,281,936 for the years 2014 to 2022, if there were not an equal division of the Argus Group. II. THE corporate respondents [24] Ms. Bradley withdrew her claim and any ancillary relief regarding either of the corporate respondents. The parties agree that the withdrawal of Ms. Bradley's claim as against the corporate respondents is without costs to Ms. Bradley, Mr. Callahan, or either of the corporate respondents. III. Statutory Provisions A. Property Division [25] Technically, the Family Law Act, S.B.C. 2011, c. 25 [FLA] applies to this matter. That said, in the circumstances at bar, s. 252 of the FLA provides that the property division provisions of the former act, the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA], apply "as if" the FRA had not been repealed: Bingham v. Bingham, 2023 BCCA 69. [26] For our purposes, the relevant provisions of the FRA are ss. 56 to 60 and 65. For ease of reference, these provisions are attached as Schedule "A". [27] A spouse's interest in a family asset is subject to the provisions of a marriage agreement: FRA, s. 56(3)(b). [28] On December 13, 2017, a s. 57 FRA declaration was made that the parties had no reasonable prospect of reconciliation. B. Child Support [29] Child support is determined

under s. 15.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). In making a child support order, the Court must apply the Federal Child Support Guidelines, SOR/97-175 [Guidelines]: Divorce Act, s. 2(1) Definitions, "applicable guidelines", ss. 15.1(3), 26.1(1). [30] Where a child has reached the age of majority, the Court must consider whether the child is still a "child of the marriage" within the meaning of the Divorce Act. James and Caitlin, with their respective ongoing post-secondary studies, are arguably still children of the marriage. It is useful to review the statutory framework and jurisprudence because it serves to guide the Court in determining the issue and, if necessary, the appropriate quantum of child support. [31] In V.S. v. D.M.S., 2016 BCSC 1346, I reviewed the statutory framework and jurisprudence on the meaning of "child of the marriage": [7] Section 2(1) of the Divorce Act defines child of the marriage: child of the marriage means a child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; [8] Under s. 15.1(1) of the Divorce Act, an application for child support may be brought only by

either or both spouses. A child of the marriage may not make application for child support (although such may be possible under s. 149 of the Family Law Act, S.B.C. 2011, c. 25). [9] Under the Divorce Act, child support is ongoing as long as the child remains a child of the marriage. [10] For the purposes at bar, the focus is on paragraph (b) of the definition of child of the marriage, in particular, whether the parties' daughter is "unable, by reason of other cause, to withdraw from their charge or to obtain the necessaries of life". I will first consider the meaning of withdrawing from one's parents' charge, and in particular, the meaning of "charge" in this context. [11] In Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, the Supreme Court of Canada considered language similar to that found in the definition of child of the marriage under the Divorce Act. The relevant legislation defined "child" as including a person over age 19 who "is unable, because of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life": see Krangle, para. 6. [12] Chief Justice McLachlin, writing for the Supreme Court, considered the meaning of "charge": [34] In my view, when Mervyn [a young boy with Down syndrome] leaves his parents' home and goes to a group home, he will leave his parents' charge. The term "charge" is not defined in the Family

Relations Act either before or after the 1997 amendment. In the Concise Oxford Dictionary of Current English (9th ed. 1995), the term "charge" is defined as including: "care, custody, responsible possession". Black's Law Dictionary (6th ed. 1990), defines "charge" to include "[a] person or thing committed to the care of another". McEachern C.J.B.C. equated "charge" to "care" and on this basis concluded that when Mervyn left his parents' care for the group home, he would leave their charge. F. L. Woodman, in her article "Financial Obligations of Parents to Adult Disabled Children, Part I" (1997), 17 Est. Tr. & P. J. 131, at pp. 140-42, states that "charge" involves an inquiry into whether or not the adult actually lives independently. On this approach, if Mervyn is living in a group home, independent of his parents, he is considered to have withdrawn from their charge. It follows that Mervyn will not fall under the s. 87 definition of "child" when he reaches age 19 and that the Family Relations Act could not make his parents responsible for him under s. 88(1). [13] In Krangle, it was determined that although Mervyn, the young boy, would never be able to live independently, he could live independently of his parents in an appropriate group home. He would therefore not be dependent on his parents. [14] In sum, a child who cannot live independently without the help of his or her

parents will be viewed as unable to withdraw from their charge, and therefore, as a child of the marriage. [15] Returning to the Divorce Act, a child under the age of majority may also withdraw from his or her parents' charge: see paragraph (a) of the definition of child of the marriage. However, a young person who has reached the age of majority may be unable to withdraw from his or her parents' charge as a result of dependency by reason of "illness, disability or other cause". [16] The jurisprudence reflects that the purpose of the definition of child of the marriage is to provide child support where there is dependency. The pursuit of education may constitute such "other cause". [17] The jurisprudence does not interpret child of the marriage narrowly. As a matter of statutory interpretation, a court must consider text, context, and purpose: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 at para. 10. [18] It could be argued, on a narrow basis, that any young person of 19 years of age, in good health, and without illness would be able to withdraw from his or her parents' charge and obtain the necessaries of life by joining the Armed Forces. [19] As a kindred argument, if the young person were the son or daughter of a happily married couple and he or she decided to join the Armed Forces, despite the strong objection of his or her parents, a court would not enjoin the young

person withdrawing from his or her parents' charge to join the Armed Forces. The young person is of the age of majority. [20] However, the jurisprudence establishes that the context and purpose of the definition of child of the marriage do not support such arguments. [21] In W.P.N. v. B.J.N., 2005 BCCA 7, Justice Levine, writing for our Court of Appeal, stated: [18] The pursuit of education necessary to equip a child with a career qualifies as "other cause" for continuing dependence of a child of or over the age of majority: Martin v. Martin (1988), 26 B.C.L.R. (2d) 390 at 393 (C.A.). In determining whether a child pursuing an education is unable to withdraw from her parents' charge or obtain the necessaries of life a court must consider the surrounding circumstances; mere attendance at an educational institution is not sufficient: Ciardullo v. Ciardullo (1995), 15 R.F.L. (4th) 121 at para. 17 (B.C.S.C.). [19] A list of relevant circumstances was formulated by Master Joyce (as he then was) in Farden v. Farden (1993), 48 R.F.L. (3d) 60 at para. 15 (B.C.S.C.) and referred to by this Court in Darlington v. Darlington (1997), 32 R.F.L. (4th) 406 at para. 14 (B.C.C.A.). These factors were considered by the chambers judge, who noted that in Darlington, this Court made it clear that there does not have to be evidence on all of the factors in order to establish that a child is a "child

of the marriage" because she is pursuing an education. Nor should this list be considered to be exhaustive of the relevant factors. [20] The factors outlined in Farden are: (1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies; (2) whether or not the child has applied for or is eligible for student loans or other financial assistance; (3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do; (4) the ability of the child to contribute to his own support through part-time employment; (5) the age of the child; (6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies; (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought. And further, [25] J. [the daughter of the parties] will likely need further training after obtaining her M.D. which will limit her ability to repay loans on graduation. She should not be put in the position of having to incur large amounts of debt to achieve

what is agreed to be a realistic, achievable educational goal. And further, [30] The jurisprudence supports the view that there is a wide range of factors to be considered in the determination of whether a child is a "child of the marriage" and that individual factors will be of varying importance in different cases. All of the relevant factors must be considered. There is no arbitrary cut-off point based on the number of degrees or the eligibility of the student for financial assistance. [22] Justice Levine cites with approval Martin v. Martin (1988), 26 B.C.L.R. (2d) 390 (C.A.). In Martin, Justice Esson (as he then was) writing for our Court of Appeal (with McLachlin J.A., as she then was, and Wallace J.A.) stated at 393: I am not persuaded that the judge was wrong in concluding that the time has not yet been reached at which to cut off maintenance. The fact which stands out, I think, is that the daughter of the first marriage is still living with her mother and is essentially dependent upon her. We all know that is a time of life when the money demands or requirements are great and often at their greatest. It is entirely legitimate and usual for a parent to provide support and assistance to a child even though that child may have reached an age where he or she might be capable of being self-supporting, but wishes to pursue further education. [23] The language of the child of

the marriage definition, "by reason of illness, disability or other cause", is not subject to the ejusdem generis rule of statutory interpretation. Justice Laskin, as he then was, writing for the Ontario Court of Appeal in Tapson v. Tapson (1969), 8 D.L.R. (3d) 727 stated at 728-29: It was strenuously argued by counsel for the father that the relevant words of s. 2(b) of the Divorce Act must be given an ejusdem generis construction so that the general words "other cause" must be limited in their meaning by reference to the genus of illness and disability which precedes them. I do not think that the Divorce Act should be given, in any of its provisions, a constricted construction. I hold that a child is unable, for cause within the terms of the Divorce Act, to provide for herself or to withdraw herself from the charge of a parent if that child is in regular attendance, as in this case, in a secondary school, pursuing an education in the ordinary course designed to fit her for years of life ahead. [24] At the time of Tapson, the Divorce Act referred to a child that was at the material time 16 years of age or over. The current definition now refers to a child being over the age of majority. In this province, the age of majority is 19 years. [25] Section 26.1 of the Divorce Act provides that the Governor in Council may establish guidelines respecting child support orders. The

Federal Child Support Guidelines ("Guidelines") were registered in 1997: SOR/97-175. [26] The Guidelines contemplate attendance at post-secondary education. Section 7(1)(e) of the Guidelines reads: 7 (1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (e) expenses for post-secondary education; [27] In short, the Guidelines contemplate the meaning the courts have given to "other cause" in the child of the marriage definition. [28] Where a young person is a child of the marriage, the Guidelines also provide a presumptive rule that the amount of child support be based on the Federal Child Support Tables ("Tables"), which are Schedule I to the Guidelines. The Tables are based on the income of the payor parent and the number of children of the marriage. The presumptive rule is not followed if the court considers the Tables approach to be inappropriate. [32] For the periods where either James or Caitlin was 19 years of age or over, the relevant provision of the Guidelines reads: 3 [ ] (2) Unless otherwise

provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [33] In the case at bar, having particular regard to Mr. Callahan's income and wealth, the s. 3(2)(a) presumptive rule of the Guidelines is inappropriate: M.T. v. J.S., 2023 BCCA 64 at paras. 31-33. Accordingly, the Court's child support analysis will be guided by s. 3(2)(b) of the Guidelines instead. [34] Similarly, for the relevant periods where either James or Caitlin was under 19 years of age, I will apply s. 4(b) of the Guidelines. Section 4 reads: Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is (a) the amount determined under section 3; or (b) if the court considers that amount to be inappropriate, (i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the

order relates; (ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and (iii) the amount, if any, determined under section 7. [35] In considering either s. 3(2)(b) or s. 4(b), the Guidelines's objectives further serve to guide the analysis. Section 1 of the Guidelines sets forth the objectives: 1 The objectives of these Guidelines are (a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances. C. Spousal Support [36] Spousal support is determined under s. 15.2 of the Divorce Act. For our purposes, the key provisions are ss. 15.2(1), and (4) to (6). These provisions read: Spousal support order 15.2(1) A court of competent jurisdiction may, on application by either

or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. [ ] 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. Spousal misconduct (5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage. 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. [37] In Chutter v. Chutter, 2008 BCCA 507, leave to appeal to SCC ref'd, 33002 (28 May 2009), our Court of Appeal set forth spousal support on compensatory and non-compensatory grounds as follows: (i) Relevant statutory provisions and the case authorities [ ] [49] Although the compensatory and non-compensatory grounds for spousal support are animated by different models of marriage, the case authorities hold that there is no single basis of support or objective under the Divorce Act that supersedes the other, and that many claims involve aspects of both compensatory and non-compensatory principles (Bracklow [v. Bracklow, [1999] 1 S.C.R. 420] at para. 27; Moge [v. Moge, [1992] 3 S.C.R. 813] at 852). A court is not called upon to decide on one basis for support to the exclusion of the other but rather to "[apply] the relevant factors and strik[e] the balance that best achieves justice in the particular case" (Bracklow, at para. 32). Moreover, the doctrine of equitable sharing is the overarching principle that must be borne in mind (Moge, at 864). (ii) Compensatory support [50] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from the marriage or the conferral of an economic advantage upon the other

spouse. The compensatory support principles are rooted in the "independent" model of marriage, in which each spouse is seen to retain economic autonomy in the union, and is entitled to receive compensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, at paras. 24, 41). The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39). In Moge, the Supreme Court of Canada observed, at 867-868: The most significant economic consequence of marriage or marriage breakdown, however, usually arises from the birth of children. This generally requires that the wife cut back on her paid labour force participation in order to care for the children, an arrangement which jeopardizes her ability to ensure her own income security and independent economic well‑being. In such situations, spousal support may be a way to compensate such economic disadvantage. [51] In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient

spouse's efforts. As noted in Moge at 864, the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support "seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse" (emphasis added by Rowles J.A.). [52] The Court in Moge discussed the relevance of the parties' standards of living in the context of compensatory support at 870: Although the doctrine of spousal support which focuses on equitable sharing does not guarantee to either party the standard of living enjoyed during the marriage, this standard is far from irrelevant to support entitlement . As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution. [Emphasis added by Rowles J.A., internal citations omitted.] [53] In W. v. W., 2005 BCSC 1010, 19 R.F.L. (6th) 453, a frequently cited decision in trial decisions in British Columbia, Justice Martinson made the following helpful observation about the interpretation in this province of the emphasized portion in Moge: [11] In British Columbia this comment in Moge has been interpreted to mean that in long marriages the result will likely be a

rough equivalency of standards of living. Doing so recognizes that the longer a marriage lasts, the more intertwined the economic and non-economic lives of the spouses become. [12] Throughout the marriage, each spouse makes decisions that accommodate the economic and non-economic needs of the other. The decisions include the way in which child care and other family responsibilities will be handled and the way careers will develop. These decisions can have a significant impact upon the income earning ability of each at the time of separation. Yet it is not easy to determine exactly the relationship between these decisions and the consequent benefits and detriments to each spouse. The rough equivalency of standard of living approach has operated as a workable substitute to assess compensatory claims. See for example, Dithurbide v. Dithurbide (1996), 23 R.F.L. (4th) 127 (B.C.S.C.); Rattenbury v. Rattenbury, 2000 BCSC 722; Rinfret v. Rinfret, [1999] B.C.J. No. 2945 (S.C.); O'Neill v. Wolfe (2001), 14 R.F.L. (5th) 155 (B.C.S.C.); Walton v. Walton, [1997] B.C.J. No. 1089 (S.C.); Ulrich v. Ulrich, 2003 BCSC 192; and Carr v. Carr (1993), 46 R.F.L. (3d) 326 (B.C.S.C.). [Emphasis added by Rowles J.A.] (iii) Non-compensatory support [54] Where compensatory principles do not apply, need alone may be sufficient to ground a claim for spousal support (Bracklow, at para. 43). Non-compensatory

support is grounded in the "social obligation model" of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on his or her former partner, rather than the state (Bracklow, at para. 23). Non-compensatory support aims to narrow the gap between the needs and means of the spouses upon marital breakdown, and as such, it is often referred to as the "means and needs" approach to spousal support. [55] The concept of "needs" in the context of non-compensatory spousal support goes beyond basic necessities of life and varies according to the circumstances of the parties. As stated by Finch J.A. (as he then was) in Myers v. Myers (1995), 17 R.F.L. (4th) 298, 65 B.C.A.C. 226, at para. 10: "Need" or "needs" are not absolute quantities. They may vary according to the circumstances of the parties and the family unit as a whole. "Need" does not end when the spouse seeking support achieves a subsistence level of income or any level of income above subsistence. "Needs" is a flexible concept and is one of several considerations which a trial judge must take into account in deciding whether any order for spousal support is warranted. [56] The Ontario Court of Appeal in Allaire v. Allaire (2003), 170 O.A.C. 72, 35 R.F.L. (5th) 256, held that self-sufficiency,

a spousal support objective primarily related to non-compensatory support (Bracklow, at paras. 41-42), was a relative concept informed by the standard of living previously enjoyed by the parties: [21] self-sufficiency is not a free-standing concept. It must be seen in the context of the standard of living previously enjoyed by the parties. Where, as here, the economic consequences of the marital relationship were to permanently reduce Ms. Allaire's income, it is inappropriate to consider Ms. Allaire's annual income of $68,000 as "sufficient" without considering whether Mr. Allaire can financially assist her to live a lifestyle closer to what they shared as a couple. [57] In Yemchuk v. Yemchuk, 2005 BCCA 406 at paras. 41, 48-49, 16 R.F.L. (6th) 430, Prowse J.A. referred to Myers and further held that in the context of a long-term marriage involving a sharing of resources, the concept of "need" should take into account the relative standards of living of the spouses following the marriage breakdown. In Yemchuk, the husband had appealed the decision of the trial judge dismissing his claim for spousal support on the basis that he had not established any need. While Prowse J.A. found that the husband was entitled to spousal support on compensatory grounds, she also went on to state that the trial judge's treatment of the husband's need for support had been "unduly restrictive": [41]

I am also satisfied that the trial judge erred in viewing Mr. Yemchuk's "need" for support from too narrow a perspective. He treated "need" as solely a question of whether Mr. Yemchuk could meet his stated expenses with the income available to him. After attributing $800-$1,000 per month to Mr. Yemchuk, the trial judge found that Mr. Yemchuk could meet his expenses and, therefore, was not entitled to support. [58] In Tedham v. Tedham, 2005 BCCA 502, 20 R.F.L. (6th) 217, Prowse J.A. referred to Yemchuk as illustrative of the fact that the courts, at least in longer marriages, are measuring need against the marital standard of living (para. 55), and followed Allaire in finding that the objective of self-sufficiency must be viewed in the context of the marital standard of living (para. 60). [59] Non-compensatory support was also considered in Hodgkinson v. Hodgkinson, 2006 BCCA 158, 25 R.F.L. (6th) 235. In that case, the parties divided assets of close to $7 million, and the wife was awarded time-limited spousal support on non-compensatory grounds. The trial judge had found that the wife was not entitled to spousal support on either compensatory or non-compensatory grounds: she was not financially disadvantaged by the marriage; she was both highly trained and capable of stepping back into the work force; and she was able to earn investment income from her share of the capital

assets. On appeal, Saunders J.A., for the court, held that the trial judge's analysis of the wife's needs and means was "impermissibly narrow"; in part because it had not taken into account the marital standard of living or the husband's post-separation standard of living: [68] However, the trial judge did not relate that capacity to earn income from her capital assets and from employment to the standard of living the parties enjoyed during marriage or to the standard of living of Mr. Hodgkinson after trial, or advert to the time lag that would be involved in earning income from a business if Mrs. Hodgkinson immediately resumed work as a chef or caterer. While none of these factors is, by itself, a determinant of Mrs. Hodgkinson's entitlement to spousal support, their absence illustrates what I consider an impermissibly narrow approach to the issue of spousal support. [69] Both the question of hardship to Mrs. Hodgkinson ([15.2(6)(c)]) and her self-sufficiency ([15.2(6)(d)]) bear some relationship to the standard of living enjoyed by the parties during the marriage (tempered by the income available) and by the other spouse after the marriage. While Mrs. Hodgkinson is not entitled to support at a level that would maintain the highly affluent lifestyle the parties shared, particularly as it appears to have been beyond the level of Mr. Hodgkinson's earnings, in these circumstances

she is entitled to a degree of comfort well beyond "basic needs". [ ] [74] It was an error, in my view, for the trial judge to fail to recognize these several aspects. The arrangement between the parties during marriage as described by the trial judge, in my view, required consideration of spousal support from the perspective of the standard of living that is still reasonably available to them, although in two residences. While recognizing that Mrs. Hodgkinson is not necessarily entitled, step for step, to Mr. Hodgkinson's standard of living, something closer is required. [60] The trial judge distinguished Hodgkinson on the basis that the wife had been awarded non-compensatory support for the time required to restore her career, whereas in this case the appellant had been continuously employed for many years. However, the factual differences between Hodgkinson and this case do not diminish the principle that an analysis of the support-seeking spouse's "needs" under non-compensatory support, i.e., the objectives of ss. 15.2(6)(c) and 15.2(6)(d) of the Divorce Act, requires some consideration of the standard of living enjoyed by the parties during the marriage and by the other spouse after the marriage. [61] Finally, I note that in Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, the Ontario Court of Appeal recently reiterated the principle that self-sufficiency is a relative

concept encompassing more than the ability to meet basic expenses: [53] Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. IV. Balance of Probabilities [38] In F.H. v. McDougall, 2008 SCC 53, Justice Rothstein, writing for the Supreme Court of Canada, stated: [49] In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [39] In F.H., Justice Rothstein also stated that "evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test": para.

46. V. Credibility [40] In Bradshaw v. Stenner, 2010 BCSC 1398, aff'd 2012 BCCA 296, leave to appeal to SCC ref'd, [2012] S.C.C.A. No. 392, Justice Dillon described the assessment of credibility: [186] Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); [Faryna] v. Chorny, [1952] 2 D.L.R. [354] (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time ([Faryna] at para.

356). VI. Ms. Bradley's credibility A. Purchase of the Aventus Yacht [41] Ms. Bradley re-partnered with Mr. Dan Francoeur in 2016. [42] In September 2021, Ms. Bradley and Mr. Francoeur acquired an ocean-going yacht (a Jeanneau Leader 46ʹ) for $650,000. The sale price excluded taxes payable. The yacht was called the "Aventus". [43] Mr. Francoeur did not contribute financially to the purchase of the Aventus. [44] In her July 19, 2022 Form F8 Financial Statement, Ms. Bradley states (in part): I do not have a separate residence in Vancouver. Rather than paying for rental accommodations or a hotel for the seven weeks that I will need to be in Vancouver [for the trial then scheduled to start September 11, 2022], my partner and I acquired a boat and plan to dock it between Vancouver and Salt Spring Island. I will be able to reside on the boat and attend the trial. The boat was acquired largely through financing and loans from my family and others. I have recorded the purchase price and corresponding loans in my Financial Statement, as follows: o $100,000 deposit paid from my CIBC Account o $200,000 from a loan from my parents o $50,000 from sale of Sicamous Property o $80,000 from the Flexline Line of Credit registered against my home o $40,000 from my savings in my TD bank account o $180,000 from my CIBC Account. [45] The July 19, 2022 Form F8 Financial Statement also sets forth

$3,500 in monthly "fuel/oil" expenses and $2,000 for monthly moorage fees ($66,000 in total for these expenses annually) for the Aventus. Given the fuel/oil expenses and the reference to Salt Spring Island, it is apparent that Ms. Bradley and Mr. Francoeur planned to use the Aventus for pleasure cruising. In her April 3, 2023 Form F8 Financial Statement, Ms. Bradley also sets forth the same monthly amounts for "fuel/oil" and moorage fees. [46] In her July 19, 2022 and April 3, 2023 Form F8 Financial Statements, Ms. Bradley does not list or otherwise show the payment (or liability) for Provincial Sales Tax ("PST"): Provincial Sales Tax Act, S.B.C. 2012, c. 35 [PST Act]. [47] In cross-examination, with respect to taxes relating to the Aventus purchase, Ms. Bradley testified: Q And then the line below, "Sale through a broker, sale excluding taxes payable." A I do. Q So if I -- and you don't recall whether or not you paid GST is what your evidence is? A That's right. Q Yeah. So I was ask -- the next question I was asking you was at the time you purchased the Aventus, you were a resident of British Columbia, correct? A Yes. Q You were not a resident of Alberta? A No. Q And at the time that Mr. Francoeur was part of the purchase, he was a resident of British Columbia to your knowledge? A Yes. Q And not a resident of Alberta? A No, that's correct. Q I'll suggest to you that you

registered the boat in Alberta to evade the payment of sales tax that you would have had to pay had you registered the boat, for example, at -- as your address at 206 Lochview. A Mm-hmm. Q You agree with that? A Sure, yeah. THE COURT: Pardon me? A Yes. CNSL L. KAHN: That was a "yes", as I understand it. Q You can put that aside now, Ms. Bradley. So if you then can return to the financial statement book. A Yes. [48] Ms. Bradley subsequently called Mr. Francoeur as one of her witnesses. In cross-examination, Mr. Francoeur testified: Q With respect to the [Aventus], which is the ocean going yacht, I'll describe it, that Ms. Bradley and yourself purchased, it is your evidence, as I read the documents, that you didn't make any contribution to that purchase? A No. Q And you are on title to the [Aventus]? A Yes. Q And you recall that the address for yourself and Ms. Bradley is in Alberta for the purpose of that purchase? A Yes. Q And you're not a resident of Alberta, are you? A Not currently. I run a business there. Q But you're a resident of British Columbia? A Yeah. Q And you file your tax, your income tax returns and all your business tax returns as a resident of British Columbia? A Yes. Q And you're - is it fair to say that you registered in Alberta so that you could evade the payment of sales tax? A Yes. [49] Neither Ms. Bradley nor Mr. Francoeur was re-examined with respect to

the PST. [50] The 7% PST evaded was at least $45,500 ($650,000 x .07). Although $45,500 is a small amount relative to some of the other amounts in this litigation, it is a significant amount. In practical terms, if one is organizing a bottle drive for a school, a hospital, or a charity, $45,500 represents 455,000 bottles (at 10 cents per bottle) that will need to be collected to raise $45,500 (before expenses). [51] The first page of the Aventus's purchase and sale agreement, which was initialled by both Mr. Francoeur and Ms. Bradley, shows their address as 47 Creekside Drive, Ardrossan, Alberta. Ms. Bradley led no evidence that she ever resided in Alberta. In his August 25, 2022 affidavit, Mr. Francoeur swore that "[t]he Claimant and I jointly own a 46-foot Jeanneau boat". This is consistent with his testimony that he is on title to the Aventus even though he made no contribution to its purchase. [52] In written submissions, Mr. Callahan's counsel submits (in part): 31. [ ], when [Ms. Bradley] purchased the Aventus in 2021, she and Daniel Francoeur registered the yacht in Alberta, to evade sales tax. This exemplifies not only [Ms. Bradley's] propensity to be untruthful, but Mr. Francoeur's willingness to do so as well. Accordingly, his evidence should [also] be approached with caution. [53] Ms. Bradley's counsel submits that the use of the word "evade" by Mr. Kahn, K.C., in

his cross-examination of Ms. Bradley "has a legal definition suggesting [Ms. Bradley] was engaging in an illegal activity". [54] Ms. Bradley's counsel further submits that it was "never put to [Ms. Bradley] that she was engaging in illegal activity and she was not doing so. Neither [Ms. Bradley] nor Mr. Francoeur were asked in cross-examination if they were legally permitted to purchase the boat in Alberta using an Alberta address through a broker, as a boat is not fixed property". [55] I am satisfied that any reasonable B.C. resident would think that it is "too good to be true" that $45,500 in PST would not be exigible if an Alberta address, instead of that resident's B.C. home address, were simply used for the purchase and registration in Alberta of a $650,000 yacht to be used in B.C. [56] The Concise Oxford English Dictionary, 12th ed., 2011 defines "evade": Evade v. 1 escape or avoid, especially by guile or trickery. ▪ avoid giving a direct answer to (a question). 2 escape paying (tax or duty), especially by illegitimate presentation of one's finances. ▪ defeat the intention of (a law or rule), especially while complying with its letter. [57] It is an offence to willfully evade or attempt to evade PST. Section 230(3)(g) of the PST Act reads: s. 230 [ ] (3) A person who does any of the following commits an offence: . . . (g) wilfully, in any manner, evades or attempts to

evade compliance with this Act or the regulations or payment or remittance of taxes required under this Act; [ ] [58] As with any of our provincial legislation, s. 230(3)(g) of the PST Act reflects the Will of our Legislative Assembly. Where an offence provision is being crafted, a Member of the Legislative Assembly, whether or not legally trained, will wish to use words that are normally understood by the Member's voting constituents in the context of the subject matter. [59] With respect, if Ms. Bradley's counsel were doubtful as to their client's understanding of "evade", they could have clarified matters by re-examining Ms. Bradley. They knew that Mr. Kahn was putting forward to Ms. Bradley that she had engaged in illegal activity. In The Queen's Case (1820), 2 Brod. & B. 284 at 297, 129 E.R. 976, Chief Justice Abbott stated: [ ] I think the counsel has a right, upon re-examination, to ask all questions, which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and also, of the motive, by which the witness was induced to use those expressions; but, I think, he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness. [ ] [60] The tactics and dynamics of

re-examination are part of the trial process. It is stated in J. Kenneth McEwan, Sopinka on the Trial of an Action, 4th ed. (Toronto: LexisNexis Canada Inc., 2020) at 150 (in part): While re-examination is a difficult art, if skilfully used it can yield spectacular benefits. When the desired answers are obtained they have several advantages over previous testimony of the witness. First, answers in re-examination are the last words of the witness and, second, they are not subject to cross-examination. Because of the special position that answers in re-examination occupy, counsel may plan the examination-in-chief so as to leave some matters for the cross-examiner to be pursued on re-examination when the cross-examiner "opens them up". Due to the possibility of being denied re-examination on objection, however, this can be a dangerous tactic. [61] Re-examination is not a trial procedure with a long-ago purpose that has fallen into disuse since the time of Queen Caroline. Counsel know that re-examination is fundamental to the three-part process of examination-in-chief, cross-examination, and re-examination which has evolved over the past few centuries to help distill viva voce evidence into fact. [62] In closing submissions, Ms. Bradley's counsel have urged the Court to find Ms. Bradley to be a credible witness who did not "exaggerate or minimize" while submitting that Mr. Callahan

was not a credible witness. [63] Ms. Bradley and Mr. Francoeur each has some familiarity with contracts and business matters: Ms. Bradley was a licenced real estate agent, and Mr. Francoeur is an active and experienced building contractor. I found both of them to be intelligent individuals. In re-examination, either Ms. Bradley or Mr. Francoeur could have explained the reason, if any, why they did not think that $45,500 in PST would need to be paid on the purchase of the Aventus that they planned to use in B.C. waters by using a land-locked address in Alberta where neither was a resident. [64] In the re-examination of Ms. Bradley, her counsel could have asked a straightforward question to explain or clarify matters. For example, counsel may have asked: Q Ms. Bradley, what is your understanding of the meaning of the word "evade"? or, Q Ms. Bradley, earlier you told the Court that you had evaded the provincial sales tax on the purchase of the Aventus, please tell the Court about the purchase. [65] Mr. Kahn had "opened up" the matter of the evasion of B.C. sales tax. On the one hand, if Ms. Bradley were highly credible, it would be expected that Ms. Bradley's answer may have "yield[ed] spectacular benefits". [66] On the other hand, Ms. Bradley's counsel would have known that Mr. Kahn could put anything Ms. Bradley said in re-examination to Mr. Francoeur in cross-examination when

he testified since he was on Ms. Bradley's witness list. [67] I further note that Ms. Bradley's counsel also had the opportunity to clarify matters through Mr. Francoeur's examination-in-chief or re-examination. He testified three days after Ms. Bradley had completed her testimony. [68] Ms. Bradley's counsel were also free to speak with Ms. Bradley after she testified, and before Mr. Francoeur testified, to canvass any matter, including any matter that they had not discussed with Ms. Bradley before she had testified. They could not speak with Mr. Francoeur because the usual "exclusion order" had been made at the outset of trial: Keith Bracken & Monique Dull, M., British Columbia Courtroom Procedure, 2nd ed. (Toronto: LexisNexis Canada Inc., 2018) at 759. [69] Having regard to the fact that Ms. Bradley did not show any PST in her July 19, 2022 and April 3, 2023 Form F8 Financial Statements, Ms. Bradley's counsel could have also asked for an explanation during Ms. Bradley's examination-in-chief. [70] Prior to Ms. Bradley completing her examination-in-chief, it was known that: a) Ms. Bradley and Mr. Francoeur resided in B.C.; b) The Aventus was purchased for use in B.C.; c) Ms. Bradley was currently living on the Aventus; d) For the purchase of the Aventus, Ms. Bradley and Mr. Francoeur were shown as the purchasers with each using the same Alberta address; e) Ms. Bradley had set

forth in her relevant Form F8 Financial Statement the sources of funds to fund the purchase of the Aventus, including $40,000 from her savings (an amount less than the PST); f) Ms. Bradley had not produced any documents showing the payment of, or liability for, PST; g) Ms. Bradley had not produced any document reflecting any advice or basis (such as a government publication) for not paying PST on the purchase of the Aventus; and h) The yacht purchase and sale agreement ("Sale through a Broker") stated specifically that the total price, $650,000 CAD, was "excluding any sales, consumption or use taxes payable". [71] I am satisfied that Mr. Kahn had a firm basis, arising from the proceedings, to question Ms. Bradley and put fairly to her that she sought to evade PST by using an Alberta address for the purchase of the Aventus. [72] I am also satisfied that Ms. Bradley's counsel had the opportunity to have matters explained or clarified by either Ms. Bradley or Mr. Francoeur through their respective testimony. [73] It is not the Court's role to peer into a barrister's brief or to second-guess a barrister's strategic or tactical decisions. [74] In written submissions, Ms. Bradley's counsel states (in part): 43. [ ] There is a separate definition for "Boat" in the [PST Act]. There was no evidence elicited as to whether the acquisition of the Aventus meets the criteria set out in Section 49 as being brought into British Columbia for use.

44. The [PST Act] contains reference to a number of exceptions. None of which were canvassed in the evidence. These include: (a) Tax if property is brought into British Columbia for temporary use (Section 51) (b) Exemption if less than minimum threshold use in British Columbia (Section 53).

45. There was no evidence elicited in cross-examination to determine the use of the property or whether same had been used in British Columbia for the minimum threshold use. [75] I agree that "boat" is defined in s. 1 of the PST Act. The Aventus falls squarely within the definition. [76] "Use" is also defined in s. 1 of the PST Act. For our purposes, the definition of use reads (in part): "use", (a) in relation to tangible personal property, includes the following: (i) the exercise of any right or power over tangible personal property incidental to the ownership of it, other than the sale of the property; [ ] (iii) the storing, keeping or retaining of tangible personal property for any purpose; [77] In my view, the foregoing language captures the common meaning of "use" and Ms. Bradley's use of the Aventus also falls squarely within the definition. [78] As noted in her July 19, 2022 and April 3, 2023 Form F8 Financial Statements, Ms. Bradley stated: 2. [...] Rather than paying for rental accommodations or a hotel for the multiple weeks that I will need to be in Vancouver, my partner and I acquired a boat and plan to dock it between Vancouver and Salt Spring Island. I will be able to reside on the boat and attend the trial. [79] Ms. Bradley was living on the Aventus at the time of the trial. [80] In examination-in-chief, Ms. Bradley also testified that she and Mr. Francoeur had,

in the past, used the Aventus "for a couple months" and tied the estimated fuel expenses "to what they may be spending in a normal summer". [81] The foregoing aligns with the Aventus docking in Vancouver and Salt Spring Island. [82] With respect to s. 51 of the PST Act, it is clear that the Aventus was not brought into our Province for temporary use. In a manner similar to many B.C. resident yacht owners, Ms. Bradley planned to use the Aventus for pleasure cruising (in addition to living on it during the trial). [83] With respect to s. 53 of the PST Act, the prescribed number of days to which Ms. Bradley's counsel refer to as the "minimum threshold" by regulation is six days: Provincial Sales Tax Regulation, B.C. Reg. 96/2013, s. 17(b). The use of the Aventus in B.C. exceeded six days. [84] In sum, there was sufficient evidence "to determine the use of [the Aventus]" and whether it had been used in British Columbia for the "minimum threshold use". [85] In the examination-in-chief or re-examination of either Ms. Bradley or Mr. Francoeur, Ms. Bradley's counsel could have canvassed their use of the Aventus and any possible exemptions. [86] The relevant language of s. 49 of the PST Act reads: 49 (1) Subject to subsections (2) and (3), this section applies to a person in relation to tangible person property if (a) the person is a BC resident who brings or sends into British

Columbia, or receives delivery of in British Columbia, tangible personal property, other than tangible personal property that is received as a gift by that person, that is for use or consumption (i) by the BC resident, [ ] [87] Section 49(2) provides an exception for temporary use (and also an exception for leased property). Section 49(3) is an exception related to travel trailers. For our purposes, neither s. 49(2) nor s. 49(3) applies. [88] Under s. 49(5), Ms. Bradley was required to pay the PST on the acquisition and bringing of the Aventus into our Province (if not already in our Province at the time of the purchase). [89] For completeness, I was not given a reading of the PST Act in a way that a B.C. resident could comply with the "letter" of the PST Act by using an Alberta address to register a boat in Alberta and then using the boat in our Province, as Ms. Bradley did. [90] The matter before me is a family action. I am not tasked with making findings in connection with a criminal charge. [91] Using the F.H. civil burden of proof, on a balance of probabilities, I find that Mr. Francoeur and Ms. Bradley, in their purchase of the Aventus, wished to willfully evade PST and "cheat" their fellow B.C. residents: Knox Contracting Ltd. v. Canada, [1990] 2 S.C.R. 338 at 349-350. [92] Ms. Bradley's "suppression" of the fact that she had evaded PST until confronted, under oath, and

in the witness box, is consistent with a witness who resists being forthright despite previous opportunities, such as her July 19, 2022 and April 3, 2023 Form F8 Financial Statements: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at 357. B. Joint Ownership of the Aventus Yacht [93] I have also considered that Ms. Bradley shows the Aventus as being owned solely by her, without qualification, in both her July 19, 2022 and April 3, 2023 Form F8 Financial Statements. In both financial statements, Ms. Bradley also notes a chequing account with a small balance as "joint" with Mr. Callahan. [94] I find that the Aventus is owned jointly by Ms. Bradley and Mr. Francoeur, based on Mr. Francoeur's testimony on cross-examination that he is on title to the Aventus; his August 25, 2022 affidavit in which he swears that "[the] claimant and I jointly own a 46-foot Jeanneau boat"; and the Aventus purchase and sale agreement showing both Ms. Bradley and Mr. Francoeur as the purchasers. Ms. Bradley's July 19, 2022 and April 3, 2023 Form F8 Financial Statements are therefore false for not showing Mr. Francoeur's joint ownership. [95] In oral argument, Ms. Bradley's counsel submitted that Mr. Callahan's counsel had not put the question of the Aventus's joint ownership to Ms. Bradley or Mr. Francoeur and, accordingly, Mr. Francoeur's sworn statement regarding the joint ownership could not be

tendered for the truth of its contents. [96] The onus is on Ms. Bradley to adduce "sufficiently clear, convincing and cogent" evidence in support of her case (such as the quantum of her claim for spousal support). In my view, the rule is: where a party calls a witness in support of his or her case, and that witness has previously provided a sworn statement in the action addressing the subject matter (Mr. Francoeur's August 25, 2022 affidavit) that contradicts the party's own sworn statement (Ms. Bradley's July 19, 2022 Form F8 Financial Statement), the onus is on that party to explain the contradiction. Where that party fails to do so, there is no obligation on the other party to do so. In such circumstances, the trier of fact may draw appropriate inferences from the party's failure to explain the contradiction. [97] I find that at the time of the purchase of the Aventus, Ms. Bradley and Mr. Francoeur intended that they would jointly own the Aventus. As noted, Mr. Francoeur confirmed that he was on title to the Aventus during his cross-examination, and Ms. Bradley had called him as her witness. Ms. Bradley and Mr. Francoeur signed the purchase and sale agreement showing "Dan Francoeur & Norval Bradley" as the "Purchaser". [98] As may be seen from the cross-examination of Ms. Bradley, title to the Aventus was registered in Alberta. I find that Ms. Bradley was willing to

represent to third parties that she and Mr. Francoeur were the joint owners of the Aventus based on the purchase and sale agreement and the registration of the Aventus. [99] In his August 25, 2022 affidavit, Mr. Francoeur states that he is a self-employed construction contractor. He states that he has a contracting company that "generates roughly $1,000,000 in gross revenues a year". He further states that he tries to "draw a profit of 20% of the gross proceeds of my company, but that does not always happen". He also states that he pays "for the fuel, the insurance, the upkeep and maintenance" of a truck and a 35-foot Formula boat that he owns. He also says that Ms. Bradley pays the expenses for her car and the Aventus. [100] From June 2014 to and including December 2022, Ms. Bradley seeks spousal support of $8,651,006. This would average out to be $84,814 monthly ($8,651,006 ÷ 102). During this period, Mr. Callahan paid $1,697,500 in total spousal support. [101] Ms. Bradley's willingness to "jointly own" the Aventus with Mr. Francoeur (as Mr. Francoeur states in his August 25, 2022 affidavit), without any financial contribution by him, weakens her argument for $84,814 average past monthly spousal support based on "need" or to "relieve [her] from any economic hardship": Divorce Act, s. 15.2(6)(c). In arguendo, if not a gift, the registration in both names exposed the Aventus to

the possibility of attachment by a future creditor of Mr. Francoeur. [102] Further below, I address both prospective and retroactive spousal support as part of the analytical approach set forth in H.S.S. and Hartshorne. C. Child Support Overclaim [103] I also found Ms. Bradley to have a propensity to exaggerate and overclaim. As noted, Ms. Bradley currently receives $24,000 per month (or $288,000 annually) in interim child support. At trial, Ms. Bradley testified that she requires James and Caitlin to prepare budgets for their living expenses. In addition to funds from a Registered Education Savings Plan (RESP), Mr. Callahan pays further amounts so that substantially all of James's and Caitlin's education expenses, including tuition, books, etc., are paid. [104] The $24,000 Ms. Bradley receives as monthly child support has, in the past, significantly exceeded the monthly budgeted amounts she actually pays to James and Caitlin, which typically amount to $5,000 per month for each of them. [105] If the value of the Argus Group is not divided equally, Ms. Bradley seeks total retroactive child support of $5,281,936 from June 2014 to and including December 2022 (with further support for May to August 2023). During these years, Mr. Callahan paid total child support of $771,550, in addition to the education expenses that he paid for separately. [106] Ms. Bradley's claim for retroactive

child support excludes the $771,550 that has already been paid by Mr. Callahan. In other words, Ms. Bradley is seeking $51,784 ($5,281,936 ÷ 102) in retroactive average monthly child support. Child support payments are not deductible by the payor but are not subject to tax by the payee. The pre-tax funds required to fund retroactive annual child support of $621,408 ($51,784 x 12) would exceed $1 million per year. [107] The current $24,000 monthly child support is in connection with Justice Jackson's June 8, 2021 interim order. If adjustments were necessary, the interim aspect of the order shows that it was contemplated that appropriate adjustments could be made at trial. [108] Further below, I address both prospective and retroactive child support. D. Not Forthright [109] A key aspect of this case is whether the parties contemplated, in the time leading to the execution of the Marriage Agreement, that Mr. Callahan's business interests would remain with Mr. Callahan. At the relevant time, Ms. Bradley was licenced as a real estate agent and worked as a real estate agent in Kelowna. [110] I agree with Mr. Callahan's counsel that Ms. Bradley was not forthright with respect to the parties' discussions leading to the Marriage Agreement regarding the separation of Mr. Callahan's business interests. In that regard, Ms. Wahid's cross-examination of Ms. Bradley reads: Q Ms. Bradley, you

were married in 1997, correct? A Yes. Q And so you were proposed to in 1996, correct? A Yes. Q Now, prior to the proposal, you and Ted had discussions about a prenuptial agreement, correct? A Yes. Q And you understood that -- you understood before he proposed that there was going to be a prenuptial agreement between the two of you. A Yes. Q And you expressed no opposition to that, correct? A Correct. Q Now, after the proposal in 1996, you and Ted discussed in detail the content of the marriage agreement, correct? A No. Q I'm going to repeat the question. After the proposal in 1996, you and Ted discussed in detail the content of the marriage agreement, correct? A No. Q And you're certain of that answer? A Yes. Q So I ask that you turn back to your examination for discovery transcript. I ask that you turn to page 56. A Yes. Q Are you there, Ms. Bradley? A Yes. Q Thank you. Sorry. Sorry for the delay, I was just double checking. The question 423 I'm going to ask, read out loud. [As read in]: 423 Q Now, in the period after the proposal, you and he did discuss what the content of the marriage agreement might be. A Yes. A I'm sorry, which number are you on? Q Number 423 at page 56. The question that was put to you was: 423 Q Now, in the period after the proposal, you and he did discuss what the content of the marriage agreement might be. A Yes. Q A Yes. Did you give that answer? A

Yes. Q And then moving over to question 428 on page 57. Question put to you [as read in] 428 Q After proposal and the trip in Spain, did you and he -- did you and he begin discussions about what the content of the marriage agreement might be? A Yes. Did you give that answer? A It doesn't look like I said yes. Q So right under 428, in bold, it says, "Yes." Do you see that? A Yes. Q And that was your answer, correct? A I've already testified that the discussions happened before the proposal. So the word begin is irrelevant. So the answer is yes, we were discussing it. Q You were discussing it before the proposal and I put it to you were discussing it after the proposal, correct? A Yes. Q Thank you. Now, following the proposal in 1996, and until the marriage agreement that was signed in 1997, you in fact attended Ted's office at Argus to discuss the content of the marriage agreement several times. A No. Q Correct? And you knew from the outset that Mr. Callahan's business assets would not be on the table, correct? A What do you mean by outset? Q From the very beginning of your discussions with Mr. Callahan, leading to the signature on - on the marriage agreement, you knew during that period of time that Mr. Callahan's business assets would not be part of the division between the two of you. A That was the discussion that was had in relation to the prenup, which had not been

signed. Q Well, I appreciate that's the response you're giving today. When the same question was put to you at discovery, and here I'm at page 57 of your discovery, please. If you can turn to that. A Yes. Q Page 57, question 428, sorry, question 429 [as read in] 429 Q And you knew from the outset that Mr. Callahan's business assets would not be on the table, correct? And your answer was, "Yes." Do you see that? A I do. Q And that was your answer, correct? A Yes. Q During your relationship and until the point you signed the marriage agreement, you'd agree with me that Ted would point out properties in Kelowna that he was working on. A Yes. Q And you were aware of several of his projects at that time, correct? A I was aware of several of the companies' projects. Q And you knew that he had a significant role in those companies' projects, correct? A He had an equal role to his two brothers and father. Q And you knew that his wealth, whatever it came from, whether it was his family's or his parents' -- sorry, whether it was his family or his work, was totally not subject to division between you and Mr. Callahan pursuant to the agreement. A No. Q In fact, you were not surprised when you were presented with the marriage agreement that reflected that, correct? A I was not surprised. Q In fact, you were expecting it. A Yes. Q And you'd been expecting it for some time because you'd been

having conversations for some time, correct? A Yes. [111] In sum, I did not find Ms. Bradley to be a credible witness generally. In particular, she would overstate matters or initially try to tailor her evidence as she thought was required to further her claim. VII. Mr. CallahaN's credibility [112] With its various real estate activities, the Argus Group employs some 400 employees (650 in the summer months). [113] Consistent with the management of many large organizations, Mr. Callahan delegates many tasks, including the separation of his personal expenses from business expenses for income tax purposes. [114] In this regard, Mr. Callahan was cross-examined extensively with respect to whether the Argus Group was paying expenses for Mr. Callahan's personal benefit that were not subsequently charged to Mr. Callahan through his shareholder's loan account. [115] In most instances, where a personal expense was initially paid or borne by the Argus Group, I find that the appropriate charge to Mr. Callahan's shareholder's loan account was made. Several of the Argus Group employees also testified that where there was a question as to whether a particular expense should be allocated as either a corporate expense or a personal expense charged to Mr. Callahan, it would be charged to Mr. Callahan's shareholder's loan account as a matter of policy. [116] The Income Tax Act, R.S.C. 1985, c. 1

(5th Supp.) [ITA] has specific provisions, such as s. 15(1), which provide significant adverse financial consequences for claiming a personal expense as a business expense. [117] Mr. Callahan testified that his credit card statements and other bills first went to the Argus Group's business address, and the Argus Group staff would then separate his personal and business expenses with an eye to compliance with the ITA and a possible audit by the Canada Revenue Agency. [118] The cross-examination of Mr. Callahan reads (in part): Q Sir, you don't know what your staff looked at to prepare this, do you? A I understand that they looked at all my expenses. Q Well, sir, you don't know what documents they looked at or where -- what they chose to include in which category? You just don't know that, do you? A I believe that they looked at all my expenses, all my Visa bills, all my shareholder's loans, believe every effort -- and I've got a good staff -- was to be very accurate and straightforward in this. I think they went through with very much the intent to be accurate and be prepared to stand by it. Q But, sir, you made no independent effort to ascertain whether or not these -- the contents of this were true? You didn't look at any documents yourself? A Individual, did I go through January, February, March? No electrical bills and various receipts from IGA or Overwaitea, source

documents such as that. No, I didn't. Would much of those documents show up in my Visa bills that my staff would look at on a monthly basis, the answer is yes. Q I know you mentioned the kind of documents your staff had access to. So were your Visa -- personal Visa statements regularly sent to the business staff to deal with? A Yes. All my Visas have my business address. All my expenses go through the business. I don't handle any personal expenses through my residence. Q And that's -- that's been the case for a number of years; is that right? A Well, I would think probably since 1985. Q So regularly since 1985, your personal expenses have been sent to the company for payment; is that right? A The vast bulk of them, yes. Q And then the company handles the payment of your expenses? You don't, for lack of a better expression, have to get your hands dirty with any of that? They take care of that? A I would like to think that they, yeah, look at it and do a very good job. Q And if you receive something like an electric bill, I think you described, does that go straight to your company, and they pay that? A Yes, it does. Q Okay. Is that just for your personal home? A Yeah. That's correct. Q Car payments, personal home? A Yes. Q Or personal -- A All of that. Q -- car payments? I apologize. A Big White, Hawaii, Lochview all go in the normal course of events to the office. My driver's

licence and my BC medical card, that's -- have my office address on them. And I -- I use that for all my mail. Q So the payments for any of yours or the family living expenses during the relationship came directly from the business in large part; is that right? A The -- any of the personal expenses on -- on the houses, vehicle expenses, would be directed to myself or -- or any -- any of the personal expenses would be going to the office. And it would be paid through the office but attributed to myself as a personal expense and be recorded as a personal expense, not a company expense, accordingly. Q Now, with respect to that, sir, just as you've mentioned with respect to the expense list here in your sworn statement, you didn't provide any input into what of those expenses were personal or whether or not they should be recorded as personal by your company; is that right? A I think the -- there's a -- a -- a pretty good understanding with staff in determination, you know, of what's personal. They can obviously see from some of the -- you know, the breakdowns here, it becomes reasonably clear for both their sakes and -- and CRA's. Q So you're saying that it's left to your staff to determine that? A In -- in the normal course, yes. [119] Ms. Bradley submits that many personal expenses were charged to the Argus Group as corporate expenses. For example, in her December 13, 2023

written submissions, Ms. Bradley states: 3. [ ] Examples of charges on the Respondent's credit card that were charge to the Company as corporate expenses and not to the Respondent's shareholder's loan as personal expenses, on the excerpts that the Respondent has selected, include the following: (a) Two charges to Londero Sports (a Fishing and Firearms store) in November 2019 in the amount of $4,987.73 and $2,603.95. (b) A charge for Heritage Time Capsules of $1,422.92 in November 2019. (c) A charge for Anders Electronics Experts of $3,645.29 and monthly Peloton charges booked as a charge for "Amenities Room". (d) A charge at Westin Kierland Resort in Scottsdale, Arizona of $1667.09 in December 2019. (e) A charge for the Sierra Brava Dove Hunting Lodge in Argentina in the amount of $3,315.25 in January 2020. (f) All flight and accommodation expenses for the Respondent. (g) All fuel and grocery shopping while in Hawaii. [120] During the various cross-examinations, none of these expenses was put to Mr. Callahan or the employees responsible for separating his business and personal expenses (with the further appropriate charges against Mr. Callahan's shareholder's account for personal expenses). [121] Trial fairness to witnesses requires that the role of cross-examination is not side-stepped by assertions in closing submissions that were not put to one or more of the appropriate

witnesses. [122] Most of the managing responsible employees were Chartered Professional Accountants or were similarly qualified. Accordingly, they each would have had professional duties and responsibilities with professional ethics to observe, independent of any obligations to Mr. Callahan or the Argus Group. [123] As noted, the adverse tax consequences for claiming a personal expense as a business expense are significant which, in turn, provide a significant financial incentive to ensure that personal expenses are properly classified as personal expenses. [124] With respect to Hawaii, under cross-examination, Mr. Callahan testified (in part): Q Sir, just let's talk about the vacation, since you've brought it up again. That vacation amount, I put to you, is low for what you were actually incurring during your relationship. A I strongly disagree with that. Q Well, sir, you've described going to Hawaii and indicated that travels to Hawaii are not vacations; is that right? A Yes. I believe so. Q And so you don't include travels to Hawaii in your vacation expense when you list them on these forms? A No. Unfortunately, I believe a lot of those expenses were included in these. That's probably a good example of where there is what I would deem slippage. I think a lot of times if somebody sees "Hawaii," it's immediately put down as Hawaii and where, in fact, I think a lot of those are

-- are quite rightly business expenses. But because it says "Hawaii," I think the default mode of -- is to put those down. And I think that's similar to a number of other expenses. Q Sir, you've said that you don't consider much -- much of your travel to be for vacation. You consider that to be a -- to be work for much travel? A A -- a good chunk of it is for work, yes. Q So, for example, Scottsdale? A Yes. Q When you travelled to Scottsdale, you said that you considered some of those trips to be for work? A Yes. Developed a property down there that ended up paying hundreds of thousands of dollars of capital gains tax with a revenue property there. I spent considerable time negotiating and looking at properties in the Scottsdale area, looked in terms of developing at Scottsdale Airpark, properties down on Lincoln Avenue. They're not in addition -- I can assure you in the hours spent with my father in Scottsdale, I never golfed with him once, never went to any shopping trips with him once. Any of the times that I was down, it would be discussing business, whether in the Arizona area, with properties that we looked at in California, or, certainly, dealing with the issues of the Kelowna properties. [125] The Argus Group now owns three properties in Hawaii, with Mr. Callahan having investigated approximately 30 other possible acquisitions "over the last number of years" that were

"under contract" or "attempted to get under contract". [126] Some of the cross-examination of Mr. Callahan focussed on the costs of some of the trips he took, including a recent one with Caitlin and James to the 2022 World Cup in Qatar and then further travel with James in Asia. [127] Luxury does not affect one's credibility, unless it is inconsistent with the witness's testimony, which was not the case with respect to Mr. Callahan. [128] Although the trip to the World Cup and Asia was an expensive luxury, and some of the trips he took with Ms. Bradley were similarly so (e.g., a private sailboat charter with crew in Australia that had had a famous actor and a famous musician as previous guests), the evidence showed that Mr. Callahan generally lived in an unpretentious manner. He would go camping with his family and friends. He would cook many meals at home, including school lunches, or when on vacation or living in the parties' Hawaiian condominium. Entertainment at the parties' home and at the parties' Big White condominium on the whole involved friends and family. Mr. Callahan did not spend to impress or regularly entertain business associates or local officials. He would often pick up or drop off Caitlin and James at school and do much of the grocery shopping. With respect to the foregoing findings, I accept Mr. Callahan's testimony. [129] The parties each called various

collateral witnesses to testify about the parties' marital lifestyle and family life. Overall, the testimony of the witnesses support my finding that Ms. Bradley and Mr. Callahan were both good, loving, and engaged parents who enjoyed a very comfortable lifestyle, but it was not one of extravagance and opulence, or one designed to impress others. Whether they were at home or with family, the focus was generally on family and friends, and not on business or business connections. [130] In this regard, under cross-examination, Ms. Bradley testified: Q It was very clear during the marriage that Mr. Callahan wanted to leave business at his place of business and when he was with you and the kids focus it on you and the kids, correct? A I believe that's true. [131] In sum, I found Mr. Callahan to be a credible witness. Where there was a conflict in testimony between that of Ms. Bradley and Mr. Callahan, I have preferred Mr. Callahan's testimony. VIII. Mr. Callahan's income for support purposes A. The Argus Group [132] The Argus Group includes approximately 30 active corporations (or other business vehicles) and holding corporations as part of its real estate activities. In line with the history outlined by Justice Newbury in Callahan v. Callahan, 2022 BCCA 387, leave to appeal to SCC ref'd, 40557 (20 July 2023) [Callahan BCCA], Mr. Callahan has managed the Argus Group with the family

credo that "land is king". [133] In basic terms, the Argus Group generally acquires properties that are then held for development. [134] Such developments have included rental apartments, shopping malls, warehouses, commercial offices, hotels, and research facilities. The developed properties are, in turn, rented or leased. They are not sold. [135] The purchase and development of further properties is financed by borrowing funds secured by the properties, or by the related rental and leasing streams, or both. [136] For the most part, the construction related to a development is undertaken by the Argus Group's construction crews. Much of the permit and application process is also undertaken "in-house". [137] The Argus Group has significant debt with procedures in place to monitor closely potential financial risks. [138] With respect to determining available income, Justice Huddart, writing for our Court of Appeal in Kowalewich v. Kowalewich, 2001 BCCA 450, stated: [58] It seems to me regard should also be had to the nature of the company's business and any evidence of legitimate calls on its corporate income for the purposes of that business. Justice Drake cautioned about not killing the goose who lays the golden eggs. Monies needed to maintain the value of the business as a viable going concern will not be available for support purposes. In my view they should not be included

in determining annual income. In Hollenbach v. Hollenbach, 2000 BCCA 620, the trial judge recognized the need for a reserve for depreciation as an appropriate factor to be considered in a real estate business. Justice Dorgan recognized Mr. Kowalewich's business expansion plan as a valid business purpose in a retail business. [Emphasis added.] [139] Mr. Gary Mynett, CPA, CA, CBV, who was one of the experts at trial, made the following general observations in his June 14, 2022 report: 8.01 Our calculations of the pre-tax corporate income available to Mr. Callahan do not exclude any amounts of income which may need to be retained by the entities within the Argus Group for legitimate business reasons. 8.02 Some general examples of legitimate business reasons for retaining income in a corporation incIude the following: · the need to preserve working capital (i.e., current assets less current liabilities) in order to support a company's operations in the short-term; · the need to reduce the amount of debt outstanding in order to ensure the long-term solvency of a company (to the extent that the subject company's debts are in excess of what would be considered "normal" for its industry); · the need to maintain certain minimum financial ratios in order to comply with debt covenants; · the need to periodically replace capital assets (to the extent that a company's reported amortization

expense, which is deducted annually for accounting purposes, does not adequately reflect the actual decline in value or serviceability of the capital assets in question); · the need to set aside monies in order to fund any redemptions of any retractable preferred shares or other financial instruments which are callable at the holders' option; and · various other factors. [140] I would add that it would be unusual for a corporation with a large real estate business, such as that undertaken by the Argus Group, to pay out all of its profits to its shareholders and not reinvest most (if not all) of its profits for the ongoing operation and possible expansion of the business. [141] In short, the Argus Group's business dynamics are fundamentally different from, say, a professional corporation undertaking a medical practice where the dynamics are significantly related to the qualifications and skills of the associated medical doctors and the goodwill they have created through the practice. [142] The Argus Group holds approximately 40 commercial properties, six apartment buildings, five hotels, and further land value only properties. There are also the three Hawaiian properties that were acquired in recent years. Its holdings total approximately 90 properties. [143] The Argus Group has three directors: Mr. L. Sie, the managing director, Mr. K. Lawrie, the director of finance, and Mr.

Callahan. Mr. Sie testified that the Argus Group has five divisions: construction, development, property management, hospitality, and finance. He also testified that the Argus Group's plan is to grow at approximately 10% per year, and that 4% to 6% of revenue is needed for capital expenditures annually depending on the particular property. [144] In June 2023, Mr. Lawrie testified that the bank debt was approximately $270 million as of that date, and that the total debt was approximately $127 million in December 2019. He stated that the combined principal and interest payment was approximately $16 million annually ($9.8 million is principal). [145] Interest payments are deductible in computing income. Principal payments are not. [146] With respect to credit facilities, in re-examination, Mr. Callahan testified: Q And as I recall, your evidence was that your loans are in good standing and you had access to those credit facilities. That was your answer? A Yes. Q What are the responsibilities or obligations that you must maintain or Argus must maintain for you to have access to those credit facilities? A Credit facilities are very important to the company. They're critical for, A, the stability, and B, the growth of the company. I've had a career based on the success of good financings, and so maintaining the -- and the confidence of the banks is critically important. Within that,

you know, banks often have loan-to-value ratios, debt-service-coverage ratios, requirements that the owner won't be just withdrawing a bunch of cash out of the properties -- well, maintain the properties. The bank is putting a significant investment in the properties and, you know, they, quite rightly, contractually bind the borrower to act in a prudent manner, you know, to look after the properties and look after the investment. The bank often has more money in it than I do. So, you know, it's very important. I know some people think that you can just do whatever you want, but that's just not factually true, you know, without having significant repercussions. And, you know, breaching loan agreements, it's a spiral into a -- you know, a death knell for a company. So not only myself, but I believe all my staff are very keenly aware of those commitments, and we do everything possible to maintain them. As far as I know, we've not been in breach of them. [147] It is prudent to use funds not required for current operations to reduce debt or to acquire further properties. Both the Argus Group's viability as a going concern and its business expansion plans are served by doing so. Such funds should not be viewed as available income for support purposes. [148] When I look back at the increase in value from June 1, 2014 to May 2, 2019 based on Mr. Bowie's valuation report, the 10% growth

goal is realistic considering the growth over this period: a roughly 9% annual growth was achieved from June 2014 to May 2, 2019. [149] In the years before separation, Mr. Callahan had accumulated a favourable shareholder's loan balance of approximately $5.6 million from income and dividends he had received for which he had paid tax. There was no reliable evidence (such as a copy of the requisite form for the election) that a "capital dividend account" election had been made under the ITA with respect to any of the dividends. [150] In the years after separation, Mr. Callahan would draw on his shareholder's loan account while taking less income (employment income or dividends) from the Argus Group. For example, his Line 15000 income was $180,486, $148,303, and $155,025 for 2019, 2020, and 2021, respectively. B. Determining Guidelines Income [151] In closing submissions, Mr. Kahn focussed on the parties' marital lifestyle to guide the determination of available income. In his written submissions, Mr. Kahn states that it was "fair to conclude that the income that supported the marital lifestyle was $500,000 to account for expenditures incurred for the family". [152] With respect, the Court must consider the income that Mr. Callahan required to fund his lifestyle after separation. [153] In determining available income for support purposes, I have approached matters by first looking

at Mr. Callahan's expenditures and then estimating the pre-tax income required to fund the expenditures. I have based my analysis on Mr. Callahan's October 17, 2016 Form F8 Financial Statement. [154] As set forth in his October 17, 2016 Form F8 Financial Statement, Mr. Callahan estimated that his annual expenses in 2016 (excluding income taxes on approximately $182,000 of income and special or extraordinary expenses) totalled approximately $430,000. [155] The October 17, 2016 Form F8 Financial Statement reflects monthly mortgage payments of approximately $5,900. At that time, Mr. Callahan had mortgaged his Lochview residence and the Big White ski chalet to finance Ms. Bradley's purchase of her Lochview residence. [156] While I acknowledge that the mortgage payments do not accord with the parties' marital financial lifestyle, the payments are objective evidence that Mr. Callahan would be able to withdraw sufficient funds from the Argus Group without impinging its operational needs (although the capital required to purchase Ms. Bradley's Lochview residence would). In January 2020, Mr. Callahan transferred his Lochview residence to the Argus Group in order to avoid an unfavourable shareholder's loan account balance: ITA, s. 15(2). [157] Removing the $4,619 monthly amount for income tax, the estimated monthly expenses are $35,919 ($40,538 - $4,619). The annual expenses are then

$431,028 ($35,919/month x 12 months). I add to this number the special or extraordinary expenses for James and Caitlin totalling $67,450 (I have not included a $50,000 donation, which was made to Caitlin's school, Aberdeen Hall Preparatory School). In sum, the total annual expenses are $498,478 ($431,028 + $67,450) or $500,000 rounded up. [158] To be conservative (in the accounting sense of the word), I find Mr. Callahan's annual available income to be $1.4 million. Although the income tax is less than $900,000 on $1.4 million of income (approximately $700,000), which would result in $700,000 after tax, $1.4 million provides a further after-tax amount of $200,000/year ($700,000 - $500,000). The further $200,000/year serves to take into account the following: a) a luxurious holiday from time to time or other expensive items that may be purchased from time to time (e.g., a new boat, a collectible car, or a painting); b) several large donations ($200,000 in total from 2015 to 2017) to Aberdeen Hall Preparatory School. Mr. Callahan would be entitled to an approximately $20,000 tax credit for a $50,000 donation; c) Mr. Callahan's June 16, 2022 and January 18, 2023 Form F8 Financial Statements show that he paid James's and Caitlin's 2021 income taxes (related to their investments) of $6,670 and $5,550, respectively, and an estimated total liability of $12,000 for 2022; d) Mr.

Callahan and the Argus Group financially assisted James and Caitlin with the purchase of a condominium for each of them (mostly financed by debt), a further recreational property for James (mostly financed by debt) and James's and Caitlin's investment (through "James Co" and "Caitlin Co"), 20% each, with an Argus Group corporation, 60%, of a commercial warehouse; e) in 2017, Mr. Callahan paid $131,690 in spousal support--the net after-tax amount is $90,937 (as calculated by Ms. Bradley's counsel). Before 2017, Mr. Callahan had not paid spousal support as he should have. (Mr. Callahan had, however, funded the purchase of 206 Lochview. The parties had also attempted to resolve matters without litigation by way of a November 25, 2014 handwritten agreement. Neither party tried to rely on or enforce this agreement at trial); and f) the personal aspect of the portion of certain corporate expenditures beyond that recognized under the ITA, such as a meal for business purposes as described by Justice Fenlon, writing for our Court of Appeal in M.T. at paras. 15-17. Technically speaking, however, the further personal aspect of such expenses would not cause financial strain for the Argus Group. [159] From Mr. Callahan's testimony, I understand that the financings for both James's and Caitlin's acquisitions were undertaken "in accordance with prescribed CRA rates" to avoid any adverse

income tax consequences that could have arisen from a non-arm's length loan. The Argus Group lent monies to James and Caitlin for down payments or other financing beyond the funding provided by arm's length lenders. [160] To incorporate our Court of Appeal's guidance in Kowalewich with respect to the funds required to maintain a viable going concern and finance a business expansion, some rough calculations are illustrative. [161] If one takes the middle of Mr. Bowie's valuation range for May 2, 2019 and applies an annual growth rate of 10% until the start of the trial, the result is a value of $186,142,971. The relevant calculations are: May 2019 $127,138,154 x 1.1 = $139,851,969 May 2020 $139,851,969 x 1.1 = $153,837,166 May 2021 $153,837,166 x 1.1 = $169,220,883 May 2022 $169,220,883 x 1.1 = $186,142,971 May 2023 (start of trial) $186,142,971 ($186 million) [162] If the value of the Argus Group is $227 million to $239 million, as Ms. Bradley's counsel have estimated, it shows the favourable result of business expansion funded in part by Mr. Callahan not withdrawing from the Argus Group more funds than he reasonably needed for his overall lifestyle. [163] Even with a $227 million to $239 million valuation, $270 million of debt, which, on the evidence, is carefully managed nevertheless militates against Mr. Callahan taking more than he reasonably needs for his overall

lifestyle. This is even more so, if Mr. Callahan's estimate of $151 million to $163 million is the more accurate estimate. [164] Finally, as I have noted, Mr. Callahan submits in his closing submissions that his available annual income should be determined to be $500,000. However, in his opening written submissions, he submits that he would "lead evidence that his income is between $500,000 and $1,000,000, and not $2,000,000, as relied on by Jackson J." [165] For all these reasons, I find $1.4 million to be Mr. Callahan's available annual income for support purposes. IX. Marriage Agreements - Property division A. Generally [166] The general rule is that each spouse has an undivided one-half interest in the family assets: FRA, s. 56(1)(a). Such an interest is subject to several exceptions, one of which is the terms of a marriage agreement entered into by the spouses: FRA, s. 56(3)(b). [167] A court may determine that an otherwise valid and binding marriage agreement operates unfairly with respect to the division of property in light of the enumerated factors and the court may order a different division: FRA, s. 65(1). [168] The Supreme Court of Canada's decision in Hartshorne specifically addresses marriage agreements under the FRA. In Hartshorne, Justice Bastarache, writing for the majority, stated: [35] The FRA explicitly recognizes marriage agreements as a mechanism to govern

a division of property upon the dissolution of marriage. To be enforceable, however, any such agreement must operate fairly at the time of distribution. If it does not, judicial reapportionment of property will be available to achieve fairness. [36] To give effect to legislative intention, courts must encourage parties to enter into marriage agreements that are fair, and to respond to the changing circumstances of their marriage by reviewing and revising their own contracts for fairness when necessary. Conversely, in a framework within which private parties are permitted to take personal responsibility for their financial well-being upon the dissolution of marriage, courts should be reluctant to second-guess the arrangement on which they reasonably expected to rely. Individuals may choose to structure their affairs in a number of different ways, and it is their prerogative to do so: see generally Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002 SCC 83. [ ] [47] The ultimate point then is this: in determining whether a marriage agreement operates unfairly, a court must first apply the agreement. In particular, the court must assess and award those financial entitlements provided to each spouse under the agreement, and other entitlements from all other sources, including spousal and child support. The court must then, in consideration of those factors listed in

s. 65(1) of the FRA, make a determination as to whether the contract operates unfairly. At this second stage, consideration must be given to the parties' personal and financial circumstances, and in particular to the manner in which these circumstances evolved over time. Where the current circumstances were within the contemplation of the parties at the time the Agreement was formed, and where their Agreement and circumstances surrounding it reflect consideration and response to these circumstances, then the plaintiff's burden to establish unfairness is heavier. Thus, consideration of the factors listed in s. 65(1) of the FRA, taken together, would have to reveal that the economic consequences of the marriage breakdown were not shared equitably in all of the circumstances. This approach, in my view, accords with the underlying principle of the FRA, striking an appropriate balance between deference to the parties' intentions, on the one hand, and assurance of an equitable result, on the other. [169] In H.S.S., Justice Saunders, writing for our Court of Appeal, stated: [56] First, the court must apply the marriage agreement, considering entitlements both under the agreement and from other sources, including spousal and child support. While Hartshorne instructs the court to consider entitlement to spousal support at this stage, it is well settled that property division should be addressed before the quantum of support is fixed: Toth v. Toth (1995), 13 B.C.L.R. (3d) 1 (C.A.); Metzner v. Metzner (1997), 34 B.C.L.R. (3d) 314 (C.A.), cited in Hartshorne at para.

55. In other words, the court must consider the opportunity for an award of spousal support at the first stage, but should not settle on the quantum or duration of support. Doing so the court must bear in mind the risk of double recovery explained in Toth by Madam Justice Prowse: In discussing the relationship between maintenance and the division of property under Pt. 3 of the FRA, it is useful to note that s. 51(e) and (f) of the FRA [here s. 65(1)(e) and (f)], relating to reapportionment of property, incorporate concepts which are also found in the maintenance provisions of both the Divorce Act, 1985 and the FRA. Thus, property division and maintenance are closely intertwined. One advantage of this legislative tie is that s. 51 [here s. 65] may be utilized in the division of property to reflect the relative abilities of the parties to become or remain economically independent and self-sufficient (s. 51(e)) [here s. 65(1)(e)], and the respective capacities and liabilities of the parties (s. 51(f)) [here s. 65(1)(f)]. These concepts are also relevant to determinations of spousal maintenance. The potential pitfall presented by this legislative link between property and maintenance, however, is the danger of double recovery where, for example, property is reapportioned under s. 51 [here s. 65] and then further reapportioned by an award of lump sum maintenance. [Saunders J.A.'s

emphasis.] [57] Second, the court must consider the s. 65(1) factors (a) to (f) to determine whether the marriage agreement operates unfairly. The critical question in assessing the operational unfairness of the marriage agreement is whether the current circumstances were within the contemplation of the parties at the time the agreement was made. The burden lies on the party seeking reapportionment to establish the agreement's division of property would be unfair considering the s. 65(1) factors, and if the current circumstances were previously contemplated, the burden on the proponent of unfairness, says Hartshorne, is heavier. I understand this to mean that where the current circumstances were not as contemplated at the time of making the marriage agreement, the burden to establish unfairness on the path to reapportionment is somewhat lighter. As the Supreme Court held in Hartshorne at para. 47, this "accords with the underlying principle of the FRA, striking an appropriate balance between deference to the parties' intentions, on the one hand, and the assurance of an equitable result, on the other". [58] On finding that the marriage agreement operates unfairly, s. 65(1) empowers the court to divide the family property into shares. Where such a division cannot remedy the unfairness found, s. 65(2) allows the court to order that other property be vested in the other

spouse. [170] In Hartshorne, Justice Bastarache also stated: [55] Furthermore, in Metzner v. Metzner (1997), 34 B.C.L.R. (3d) 314 (C.A.), McEachern C.J.B.C. acknowledged that it was necessary to determine the division of property before deciding the quantum of maintenance. He pointed out, at para. 40, that "it is permissible to recognize, at the division of property stage, that the husband has a substantial income and that any shortfall on independence or self sufficiency may be made up by an appropriate order for maintenance". [ ] [58] It is highly significant that the Agreement explicitly preserves a right to spousal support and that, in this case, as in Metzner, supra, the appellant has a healthy and continuous flow of income. In looking at the division of property under the Agreement, Beames J. should have assessed fairness in light of the preservation of a right to spousal support. Only after determining that the factors of self-sufficiency and need could not be met through an order of spousal support, should the trial judge have concluded that the Agreement operated unfairly. [171] As noted, entitlement to spousal support may be recognized at the outset, but the quantum of spousal support is considered only after the consideration of property division. [172] Both Hartshorne and H.S.S. endorse McEachern C.J.B.C.'s statement in Metzner v. Metzner (1997), 34 B.C.L.R. (3d) 314 (C.A.) that "it is permissible to recognize, at the division of property stage, that the husband has a substantial income and that any shortfall on independence or self sufficiency may be made up by an appropriate order for maintenance": Metzner at para. 40; Hartshorne at para. 55; H.S.S. at para.

56. B. Available Spousal Support [173] Mr. Callahan does not dispute that Ms. Bradley is entitled to spousal support beyond what the September 11, 1997 Marriage Agreement provides. The Spousal Support Advisory Guidelines [SSAGs] were introduced in 2008. Accordingly, the SSAGs could not have been contemplated at the time the Marriage Agreement was executed. However, Ms. Bradley's right to spousal support is nevertheless preserved. [174] Mr. Callahan also agrees that child support beyond what is provided in the Marriage Agreement is appropriate. In the Marriage Agreement, the parties expressly contemplated a "Child Maintenance Amount" as follows: "Child Maintenance Amount" shall mean a monthly amount of $1,100.00 per child, subject to a Cost of Living Adjustment. The parties recognize and respect the jurisdiction of the Courts in relation to child maintenance but have agreed to the Child Maintenance Amount recognizing that any guidelines for the determination of child maintenance based on percentage of income are incapable of fair application for the benefit of children in their particular circumstances, where each party is engaged in entrepreneurial activities resulting in variable and unpredictable incomes, including incomes that could result in either inadequate maintenance for any child or children of the marriage or amounts which, in a single year, would be in excess of what

is reasonably required to maintain a child. The parties believe and agree that the Child Maintenance Amount is fair, reasonable and generous based on guidelines existing at the time of this Agreement and wish their agreement to be given effect notwithstanding any such guidelines. [175] The Guidelines came into force on April 8, 1997, some months before the Marriage Agreement was executed. [176] As set forth below, under the Marriage Agreement, Ms. Bradley would also be able to remain in 222 Lochview as long as there was one or more children older than five years of age and under 19 living there. Ms. Bradley would be required to pay the expenses for maintaining the home. [177] Subject to the validity of the Marriage Agreement, the Court has arrived at the division of property stage. The main focus is the possible division of the value of the Argus Group. Having found that Ms. Bradley's right to spousal support was preserved, I will now address the validity of the Marriage Agreement. X. Is the Marriage Agreement valid? A. Generally [178] To determine whether the Marriage Agreement is valid, I must look at the circumstances under which the Marriage Agreement was negotiated and executed. [179] Consistent with the parties' discussions before they each retained counsel to prepare the Marriage Agreement, Mr. Callahan's business interests were to be kept separate unless specifically

excepted with his agreement. As noted, where there was inconsistency between Mr. Callahan's evidence and that of Ms. Bradley's, I have generally accepted Mr. Callahan's evidence. [180] The Marriage Agreement provides (in part): 23. The parties each have assets acquired prior to the date of this Agreement and although each party has had an opportunity to investigate, examine and appraise the value of the assets of both parties and the quantum of the liabilities of both parties, neither party wishes to do so. Ted represents that Schedule "B" contains a complete and accurate disclosure of all property registered in his name. Norval represents that Schedule "C" contains a complete and accurate disclosure of all property registered in her name. [ ] 25. Except as otherwise specifically provided for in this Agreement, neither party shall under any circumstances acquire any interest in the following property (which is referred to collectively as "Sole Property") which shall be and remain the sole and exclusive property of either Ted or Norval, as the case may be, throughout the marriage and in the event of dissolution or nullification of the marriage, or upon the death of either party: (a) The real and personal property of either party described in either Schedule "B" or Schedule "C" to this Agreement; (b) All other real and personal property acquired by either Ted or Norval prior to

the date of marriage; (c) All real and personal property acquired by either Ted or Norval in his or her name alone after the marriage, including any share or interest in any corporation or other business entity; (d) All real and personal property inherited by either Ted or Norval; (e) All income earned or paid to Ted or Norval from any source; (f) All real and personal property acquired by Ted or Norval exclusively from his or her Sole Property either in substitution or in replacement therefore; (g) All real and personal property acquired by Ted or Norval from whatever source by gift, bequest, devise or descent, including all real and personal property which the one party receives or which one party becomes entitled to under the provisions of any trust instrument and all right, title and interest in or to any trust under which the one party is a beneficiary; (h) All growth in the equity or interest that either Ted or Norval may have in any corporation or other business entity; (i) All property in which either Ted or Norval have a beneficial interest, whether vested, contingent, discretionary or absolute; (j) All property later referred to in this Agreement as being the Sole Property of either Ted or Norval; 26. Without limiting the generality of the foregoing, neither party shall attain any interest in any Sole Property of the other, or receive any other form of

compensation: (a) by reason of any direct or indirect contribution including (but not limited to) emotional, spiritual or other support of a party whether or not savings occur through effective management of the household or child rearing responsibilities and including (but not limited to) any excess contribution to Household Expenses, as described in paragraph 6 of this Agreement; (b) despite the use of Sole Property or any property owned by corporations or other business entities which are Sole Property for a family purpose; (c) despite any sacrifice made by a party, including any sacrifice resulting in loss of career advancement or earning potential; or (d) despite any economic hardship that a party may suffer as a result of the marriage or its breakdown. Provided, however, that if one party intends that the other party should obtain an interest in his or her Sole Property by direct or indirect contribution, then the parties shall add the property to Schedule "A" of this Agreement stating the interest each party shall have in the property and each party shall place his or her signature beside the addition indicating his or her agreement with the addition. Schedule "A" shall be a conclusive list of any property which the parties intend there to be a direct or indirect interest by the other party and agreed that no oral, implied inferred or other means of communicating or

providing an interest other than in writing shall be valid nor be made by the other party. [ ] 29. Ted is presently a shareholder of the corporations listed in Schedule "B" (the "Companies"). All shares presently owned by Ted in the capital of the companies or required by him in the future shall remains Sole Property at all times, notwithstanding any direct or indirect contributions that may be made by Norval. [181] Schedule "B" to the Marriage Agreement specifically reads (in part): The following property is solely the property of EDWARD JAMES CALLAHAN and is included as "Sole Property" under a Marriage Agreement dated the 11th day of September, 1997: [ ] 13. Interests in the following corporations or business entities; (a) Hywood Contractors Ltd.; (b) Shasta Trailer Court Ltd.; (c) 3744 Investments Ltd.; (d) 3753 Investments Ltd.; (e) 3754 Investments Ltd.; (f) 387816 B.C Ltd.; (g) 350623 British Columbia Ltd.; (h) Midwest Ventures Ltd.; (i) 4110 Investments Ltd.; (j) Argus Industries Ltd.; (k) Callahan Construction Company Ltd. While no formal or informal valuation has ever been conducted in respect of these companies, it is assumed that the value as of the date of this Agreement is in excess of $2 million. [182] When the Marriage Agreement was executed, Mr. Callahan did not have a recognized legal or beneficial interest in either Argus Industries Ltd. or Callahan

Construction Company Ltd. [183] In 1986, Mr. Callahan was in his first year of law school in England. At that time, the real estate business undertaken by his father (and mother) was in a dire financial condition. Mr. Callahan's parents asked him to return to Kelowna to manage and address the financial difficulties. In return, Mr. Callahan says that he was promised an interest in the business if he were successful in managing the difficult financial situation and returning matters to profitability. Over the ensuing years, Mr. Callahan helped extricate the Argus Group from financial difficulties. [184] I accept that Mr. Callahan listed Argus Industries Ltd. and Callahan Construction Company Ltd. in Schedule B of the Marriage Agreement to help ensure full disclosure. Subparagraph 25(i) of the Marriage Agreement specifically contemplates that contingent and discretionary beneficial interests may be "Sole Property". [185] As may be seen from paragraph 23 of the Marriage Agreement, each party acknowledged that "although each party has had an opportunity to investigate, examine and appraise the value of the assets of both parties and the quantum of the liabilities of both parties, neither party wishes to do so". [186] Also included under Mr. Callahan's "Sole Property" in Schedule B was his residence at 222 Lochview Road. [187] 222 Lochview is a waterfront property on Okanagan Lake.

In the Marriage Agreement, Ms. Bradley acknowledged, and agreed, that 222 Lochview is "a unique residence of special importance to Ted and is not capable of replacement as there is no equivalent property". [188] The Marriage Agreement further provides that 222 Lochview would not be a "family asset" as defined under s. 58 of the FRA. [189] Generally, the Marriage Agreement provides that upon separation, Ms. Bradley would vacate 222 Lochview unless the parties had a child older than five but younger than 19 years of age living there. Once all children turned 19, however, Ms. Bradley would vacate 222 Lochview. [190] Once Ms. Bradley vacated 222 Lochview, paragraph 16 of the Marriage Agreement provides that Mr. Callahan would pay Ms. Bradley what they agreed to "or, failing agreement, to an amount equal to the median price for a detached single family residential home in the greater Kelowna area as determined by the most recent twelve month statistics provided by the Okanagan Mainline Real Estate Board". B. Ms. Bradley's Grounds to Set Aside the Marriage Agreement [191] Ms. Bradley submits that the Marriage Agreement should be set aside based on any of the following three grounds: a) adequacy of legal advice; b) preparation and execution of the Marriage Agreement; or c) sufficiency of disclosure.

1) Adequacy of Legal Advice [192] The Marriage Agreement is comprehensive and was negotiated with experienced counsel for each party engaged. Shortly after the Marriage Agreement was executed, then-counsel for Ms. Bradley at the time, Mr. I. Jack Aaron, K.C., provided Mr. Callahan's then-counsel with a certificate of independent legal advice that reads (in part): On the 31st day of July, 1997, and in subsequent telephone conferences on August 25, 1997 and September 3, 5, 8, 10, and 11, 1997, I was consulted by Norval Bradley, ("Ms. Bradley") as to her execution of a Marriage Agreement between Edward James ("Ted") Callahan and Norval Bradley, an executed copy of which is attached to this Certificate (the "Agreement'). I explained to Ms. Bradley the nature of the Agreement and advised her fully as to the content of the Agreement. Ms. Bradley has informed me and I am satisfied that she fully understands the nature and effect of executing the Agreement and that in executing the Agreement she is acting freely and voluntarily and not under any undue influence exercised by Edward James ("Ted") Callahan or Russell & DuMoulin, or any other person. Further, I advised Ms. Bradley of the current law concerning the division of property between spouses and maintenance obligations upon marriage breakdown as provided for in current legislation; that the law provides for judicial intervention

if this Agreement is considered unfair in future circumstances in which it is intended to operate; and that the current legislation concerning the obligations between spouse and marital breakdown could change. I have given this advice to Ms. Bradley as her solicitor and in her interest only and without regard to or consideration for the interest of Mr. Callahan, Russell & DuMoulin, or any other person. I am not acting on behalf of Mr. Callahan, Russell & DuMoulin, or any other person in connection with this matter. [193] In the certificate, Ms. Bradley acknowledged: I hereby acknowledge that all of the statements made in this Certificate are true and that Jack (I.J.) Aaron, in advising me herein was consulted by me as my personal solicitor and in my interest only. [194] The parties did not dispute that Mr. Aaron was a lawyer with particular experience in family law at the relevant time. From counsel, I also understand that although Mr. Aaron is no longer practicing, he is healthy and could have been called as a witness. [195] As Lord Mansfield stated in Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969 at 970: It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. [196] Absent Ms. Bradley calling Mr. Aaron as a witness, there is not "sufficiently

clear, convincing and cogent" evidence to support Ms. Bradley's assertion that she received inadequate legal advice. Employing Lord Mansfield's maxim, the inference to be drawn from Ms. Bradley not calling Mr. Aaron is that Mr. Aaron's testimony would not have been helpful to Ms. Bradley's position, particularly with respect to the certificate of independent legal advice and Ms. Bradley's acknowledgement of such. [197] I reject Ms. Bradley's submission to the effect that Mr. Callahan wished to have a marriage agreement to protect his family and "that whatever he and [she] acquired going forward would be shared between them". I find that if such were the case, the Marriage Agreement would have read much differently than it does. [198] I find that Ms. Bradley had proper independent legal advice, and as she acknowledged at the time, she was advised "fully as to the content of the [Marriage Agreement]".

2) Preparation and Execution of the Marriage Agreement [199] With respect to the preparation and execution of the Marriage Agreement, Mr. Aaron, in late July 1997, provided Ms. Bradley with a draft of the Marriage Agreement. Ms. Bradley discussed the draft Marriage Agreement and refinements with Mr. Aaron, and he certified that he was "satisfied that [Ms. Bradley] fully understands the nature and effect of executing the [Marriage Agreement]". [200] I find that the Marriage Agreement was prepared and executed with proper independent legal advice, resulting in a legally binding agreement.

3) Sufficiency of Disclosure [201] With respect to the sufficiency of disclosure, I find that there was proper disclosure. Paragraph 13 of Schedule B of the Marriage Agreement set forth the corporations in which Mr. Callahan had an interest (including some where he had no recognized interests). Some of these interests were contingent interests based on promises Mr. Callahan says had been made to him by his parents. [202] Schedule B makes it clear that there had not been a "formal or informal valuation" of any of the listed corporations. Schedule B also states that it is assumed the value of the corporate assets is "in excess of $2 million", as opposed to, say, "approximately $2 million". [203] I would add that contingent or discretionary interests are generally considered to have little or no value: H.S.S. at para. 99; S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4 at para. 48. [204] As her testimony above reflects, Ms. Bradley understood that prior to the marriage, Mr. Callahan had "an equal role to his two brothers and father" (Mr. Callahan has three brothers, two of whom were active in the business). [205] At the relevant time, Ms. Bradley (an active real estate agent in Kelowna) knew of the Callahan family's presence in the Kelowna real estate market, the fact that Mr. Callahan had significant corporate real estate holdings, and that he owned 222 Lochview as his

principal residence. This would not have surprised her. [206] I find that when she reviewed the draft Marriage Agreement, Ms. Bradley was not particularly concerned about the details or values of Mr. Callahan's business assets because she and Mr. Callahan had agreed that his business assets would not be subject to division on separation. As noted, Ms. Bradley did not call Mr. Aaron to corroborate her submission "that whatever he and [she] acquired going forward would be shared between them". [207] In sum, I find the Marriage Agreement to be a valid and binding agreement. XI. date of cohabitation [208] Under Recital A of the Marriage Agreement, the parties acknowledged that they have "lived together for approximately 5 years" (i.e., since 1992). [209] In examination-in-chief, Ms. Bradley, with respect to Recital A, testified (in part): Q It sets out, [as read in]: Ted and Norval have lived together for approximately five years. Why did you say at that time that you'd lived together for five years? A It was on the page and it said "approximately". It didn't -- I didn't think that it mattered that we'd actually been living together since 1989. [210] In cross-examination, Ms. Bradley testified: Q And your counsel put to you Recital A of the agreement that indicates, the marriage agreement, that indicates that Ted and Norval lived approximately for five years. Do you recall looking

at that? A Yes. Q And do you recall being asked at your examination for discovery with respect to that clause? The date - A Yes. Q - of separation clause. A Could you repeat the question? Q Sure. During your testimony, your counsel put Recital A of your marriage agreement to you with respect to a clause which makes reference to your date of cohabitation being approximately five years. A Yes. Q And I'm asking you, do you recall being examined at your discovery with respect to that very clause? A I don't remember. Q Well, in fact, you were asked about your date of cohabitation at your discovery, and in fact you answered that it was 1992, correct? A The examination for discovery in 2017? Q That's right. A Yes. Q And you understood that when you gave your evidence at your discovery, you were swearing for it to be true and accurate at that time, correct? A Yes. Q So you would agree with me that 1992 is the date of cohabitation? A No. Q Okay. I'm going to ask that again you turn to your examination for discovery transcript. CNSL J. WAHID: If that could be put to the witness, please. It's October 4th, 2017. Q Ms. Bradley, do you have the transcript in front of you? A Yes, I do. Q Okay, thank you. If you could please turn to page 81. A Yes. Q Are you there? Thank you. And again, this is your examination for discovery and you recall taking an oath to tell the truth that day, correct? A

Yes. Q So I'm going to ask ‑- I'm going to read out question 589 onwards. [As read in]: 589 Q All right. If you would turn to the marriage agreement and to the first page of that agreement. In Recital A, it states, "Ted and Norval have lived together for approximately five years," and that accords generally with 1992, I'll say is the date when you began to live permanently together. A Yes. Q A Okay. Did you give that answer? A Yes. Q Next question: 590 Q Do you accept that? A Yes. Q A Yes. Did you prov - did you give those answers? A Yes, I did. [211] Over any suggestion by Ms. Bradley otherwise at trial, I find that 1992 was the first year in which cohabitation began. Recital A was included in the Marriage Agreement, with Ms. Bradley having received independent legal advice. XII. Does the marriage agreement operate fairly? A. Financial Developments After Marriage [212] As noted above, Mr. Callahan helped extricate the Argus Group from financial difficulties. [213] In 2002, Mr. Callahan's mother died after an approximate two-year long illness. [214] After his mother's death, Mr. Callahan says his father reneged on the promise made by him and Mr. Callahan's mother. This led to mediation and arbitration starting in 2006. In 2008, there was a determination of the appropriate division as a percentage for each of the parties with the division of some of the properties. This was

followed by the division of most of the remaining properties in accordance with the overall percentage that had been determined which took approximately another ten years (the bulk of which was done by 2012). There is still some ongoing litigation. [215] Writing for our Court of Appeal in connection with litigation involving a particular property (a mobile home park) in Callahan BCCA, Justice Newbury provided a useful summary of the disaffection that developed between Mr. Callahan and his father and brothers: [2] The four sons of Lloyd and Marjorie Callahan -- Douglas, Edward, Bruce and Robert -- received from their parents what should have been a legacy of financial security that could have been expected to extend into at least the next generation. But while the enterprises they were given have been largely successful, the extreme disaffection that has plagued the relationship between Edward ("Ted") Callahan on the one hand and his three brothers on the other has overshadowed that success. [3] The Callahan family began developing its substantial assets in the 1950s when the father, Lloyd, launched a trucking business operating in the northern part of the province. Eventually, he branched out into construction and real estate. Beginning when they were teenagers, each of the four brothers has been involved in some capacity in the family businesses. Each has some education or

training relevant to real estate or construction. However, it was Ted who, at his father's request, left law school to assist Lloyd in extricating the Callahan companies from financial difficulties they encountered in the 1980s. Ted became general manager of the Callahan group of companies and as the chambers judge stated, oversaw their "administration, acquisition, financing, strategic planning, leasing, sales, and property management" for over twenty years. (At para. 31.) [4] The "disputes and litigation" involving Ted, his brothers, and their father had begun by the date of death of Marjorie Callahan in 2002. For the most part, the chambers judge observed, Ted was the "outlier" in these disputes, as his brothers normally aligned with their father. [5] Over the last twenty years, the enmity in the family has resulted in a series of long and costly proceedings of which this oppression action is only the most recent example. The past proceedings include a mediation/arbitration led by the late Mark Andrews, that lasted 14 years and finally achieved the separation of Ted's interests in several of the Callahan companies from those of Bob and Bruce; the "Hywood Proceedings", an oppression action brought by Ted which was dismissed in 2011 by Madam Justice Gerow (see 2011 BCSC 40); the "Chilkoot JV Proceeding," concerning certain properties in Yukon that were ultimately subdivided

among the brothers; and in 2015, an unsuccessful application by the three brothers for the court-ordered winding-up of Shasta Properties Ltd. ("Shasta") under the "just and equitable" ground in s. 324 of the Business Corporations Act, S.B.C. 2002, c. 57 (the "Act"). I have attached as a schedule to these reasons a copy of all relevant provisions of the Act. [6] The chambers judge described the genesis of the extended mediation and arbitration that began following Marjorie's death in 2002 as follows: The mediation, and then the Arbitration, were conducted by the Callahan family's trusted legal counsel, and accountant, both of whom were familiar with the parties, their companies, and their assets (the "Arbitrators"). The Arbitrators' mandate was to separate Ted's interests from the proprietary interests of Bob, Bruce, and Lloyd, in property that then had a gross value exceeding $300 million. The Arbitrators were permitted to use their substantial prior knowledge of the financial and legal history of the companies, including knowledge of the parties and their respective contributions to, and enhancements of, the family businesses, to fairly determine and separate the interests. "Fairness" was to include accounting for each party's contributions to the Callahan family interests over the years. Over a prolonged and complicated process, the Arbitrators divided the Callahan family

assets, allocating 38 percent to Ted, and the remaining 62 percent collectively to Bob, Bruce, and Lloyd. As none of the family members wanted cash because of the undisputed family credo that "land is king", the Arbitrators allocated the various properties between the parties, in accordance with the 38/62 split. The Arbitrators also considered each side's preference for certain properties over others. Where subdivision was possible, properties that were highly desirable to both sides were subdivided. None of the properties were sold to third parties and over 95 percent were allocated between the parties, or subdivided in a tax efficient way, relying on professional advisors. Bob, Bruce, and Lloyd agreed that they would take care of Doug's interest from their share. [At paras. 36-8; emphasis added by Newbury J.A.] [7] By 2014, Lloyd deposed, the separation of most of Ted's interests from those of his brothers had been achieved. According to the father, Ted was by this time operating his own development and leasing company "directly in competition with the balance of the family." Shasta and a holding company, "4110", were the only remaining companies in which Ted's interests had not been separated, or were not in the process of being separated, from those of his brothers. [216] The first recital to the October 12, 2006 Arbitration Agreement also captures the disputes: The

Callahan Group of Companies have experienced managerial difficulties and inefficiencies in the operation of their businesses over the last few years due to disputes which have arisen between the companies and their principals as to the proper ownership and operations of the companies, the directions the businesses should be taking, how specific projects and opportunities should be pursued, and how dealings between the companies and the shareholders shall be determined. This includes disputes over managerial positions, management and service agreements, employment agreements and relations, trust agreements, inter-corporate dealings, cost and overhead allocations and other related operational and planning matters. [217] The Callahan Group of Companies included, among other corporations, Callahan Construction Company Ltd. and Argus Industries Ltd. B. Operation of the Marriage Agreement [218] Under the Marriage Agreement's property division provisions, Ms. Bradley says that she would receive approximately $1.82 million, in addition to the median price for a detached Kelowna home, unless the parties otherwise agreed. [219] Mr. Callahan says that Ms. Bradley would receive approximately $2.1 million (in addition to 206 Lochview, as agreed, under the Marriage Agreement rather than that of a "median price for a detached single family home in the greater Kelowna area"). [220] Shortly

after separation, Ms. Bradley was able to acquire a nearby waterfront property, 206 Lochview Road, with Mr. Callahan funding the purchase. 222 Lochview and 206 Lochview have comparable values. [221] Although Mr. Callahan had some initial emotional reluctance to having Ms. Bradley residing so nearby, he recognized Caitlin's sensible wishes that having her parents live nearby each other would allow her and her brother to easily go from one parent's home to the other parent's home. Both parties recognize that the other was a good parent. [222] Chief Justice McEachern's statement at para. 40 in Metzner that "it is permissible to recognize, at the division of property stage, that the husband has substantial income and that any shortfall on independence or self-sufficiency may be made up by an appropriate order for maintenance" reflects a harmonized and pragmatic interpretation of the Divorce Act and the FRA to ensure a workable path to achieving an equitable result where one party has substantial income to fund spousal support. As noted, both Hartshorne and H.S.S. cited McEachern C.J.B.C.'s statement of law with approval: Hartshorne at para. 55; H.S.S. at para. 56. [223] In Hartshorne, Justice Bastarache also guided: [46] [ ] A fair distribution of assets must of course take into account sacrifices made and their impact, the situation of the parties at the time of distribution,

their age, education and true capacity to reintegrate into the work force and achieve economic independence in particular. But this must be done in light of the personal choices made and of the overall situation considering all property rights under the marriage agreement and other entitlements. [Emphasis added.] [224] Applying a marriage agreement engages the factors set forth in s. 65(1) of the FRA. With respect to the facts at bar and the Marriage Agreement, these factors are: a) Duration of the marriage: The marriage lasted almost 17 years, with another approximately five years where the parties lived together before marriage (as set forth in Recital A to the Marriage Agreement); b) Duration of the period during which the spouses have lived separate and apart: The parties have lived separate and apart since June 1, 2014 (approximately nine years as of the first day of trial); c) Date when property was acquired or disposed of: 222 Lochview was acquired before the parties' relationship started. Similarly, Mr. Callahan has continued to hold as part of the Argus Group the corporate assets as they have evolved in which he had an interest, or possible interest, as of the date of the Marriage Agreement; d) Extent to which property was acquired by one spouse through inheritance or gift: To a significant degree, Mr. Callahan's corporate assets result from his father (and mother)

being engaged in acquiring and developing real estate; e) Needs of each spouse to become or remain economically independent and self sufficient: The Marriage Agreement has operated to provide Ms. Bradley with a principal residence (206 Lochview) similar to one that Mr. Callahan enjoys and to provide Ms. Bradley with further properties (or funds in lieu of). Ms. Bradley will enjoy economic independence and self-sufficiency, with the Court's determination of the equitable appropriate lifestyle for Ms. Bradley in the context of the parties' relationship, including the Marriage Agreement. As McEachern C.J.B.C. stated in Metzner, "any shortfall on independence or self sufficiency may be made up by an appropriate order for maintenance" (at para. 40); and f) Any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse: There are no other circumstances relating to the acquisition, preservation, maintenance, improvement, or use of property that would take away from the fact that the parties contemplated that Mr. Callahan's business assets would be his "Sole Property" as defined in the Marriage Agreement. Further, I see no reason relating to Ms. Bradley's capacity or liabilities that cannot also be addressed by spousal support. [225] Distilled, Ms. Bradley essentially makes two submissions with

respect to unfairness. In her written submissions, Ms. Bradley submits: a) The extraordinary discrepancy between the parties' respective financial positions at the conclusion of the relationship could not have been contemplated at the time the agreement was reached and makes plain that the agreement operates unfairly when applied to the circumstances today. b) [She] was unable to advance her career or to further her education as a result of her parenting and household management obligations. She was therefore unable to manage her own affairs and earn for herself the income necessary to live a reasonable standard of living in the community. [226] The "extraordinary discrepancy" in the parties' respective financial positions is based upon the Argus Group's increase in value, say, from approximately $3 million as of the date of the Marriage Agreement (September 11, 1997), to approximately $85 million as of the date of separation (June 1, 2014), to approximately $127 million as of the date of Mr. Bowie's report (May 2, 2019). Since Mr. Bowie's report, the parties agree that the Argus Group's value has increased further. Ms. Bradley says the value is now possibly $227 million to $239 million, while Mr. Callahan says the value is likely closer to $151 million to $163 million. [227] With respect, I find that the parties contemplated that Mr. Callahan's business assets, as with 222

Lochview, would not be subject to division upon separation. It was certainly within the reasonable contemplation of the parties that Mr. Callahan's business holdings had a high likelihood to increase in value, and significantly so, having regard to Mr. Callahan's particular expertise and experience in real estate in the Kelowna area. [228] Notably, the Marriage Agreement preserves Ms. Bradley's entitlement to both spousal and child support. The parties agree that both the spousal and child support (past) should be greater than that set forth in the Marriage Agreement. However, they differ as to the respective support amounts for the fair application of the SSAGs and the Guidelines. [229] With the determination of an appropriate spousal support award for Ms. Bradley, an equitable result may be assured. In this regard, I note that the spousal support award will, to a considerable degree, reflect Mr. Callahan's particular success in building the Argus Group to its current size and value, as well as the income it does, or could, generate for Mr. Callahan. [230] For all these reasons, I find that the Court should not disregard the parties' original intention, as reflected in the Marriage Agreement, that Mr. Callahan's business assets would not be subject to division upon separation. [231] Therefore, I find that the equitable result is to award Ms. Bradley lump sum spousal support

for her to enjoy much more than "a reasonable standard of living in the community" for the rest of her life, assuming she manages her funds prudently. Such an award will satisfy the four objectives of spousal support Parliament set forth in s. 15.2(6) of the Divorce Act. [232] A lump sum award will also serve to bring finality to this matter, which started over nine years ago, no later than the parties' date of separation on June 1, 2014. [233] In sum, I find that the Marriage Agreement operates fairly. XIII. Spousal support A. Prospective Spousal Support [234] In Mr. Callahan's closing submissions, he submits that a $5 million lump sum award would be appropriate for prospective spousal support as of May 1, 2023. [235] The Court will award a lump sum award of $8.6 million, which will be approximately $8 million after some adjustments set forth below. I had expert evidence that funds prudently and conservatively invested would be expected to earn approximately 5.75% per annum. I will be more conservative and use 5% per annum. 5% per annum on $8 million would result in a return of $400,000 per year. [236] Considering the other assets Ms. Bradley has already received, or will receive, as part of the parties' separation and divorce, I am satisfied that she may live very comfortably for the rest of her life, enjoying her Kelowna lakefront home (206 Lochview), the Aventus, travel,

and other activities, including those with James, Caitlin, and Mr. Francoeur. [237] I am satisfied that the $8.6 million lump sum award, or approximately $8 million with adjustments, will satisfy both the compensatory and non-compensatory bases of spousal support vis-a-vis the spousal support objectives: see Chutter. [238] In particular, Ms. Bradley is relieved of any economic hardship and will enjoy economic self-sufficiency: Divorce Act, ss. 15.2(6)(c)-(d). Further, with the Marriage Agreement reflecting the parties' intention that the business assets would be Mr. Callahan's Sole Property, but having regard to the Argus Group's financial success, any economic disadvantage arising from the parties' marriage, or its breakdown, is addressed with the lump sum spousal support award, 206 Lochview, and the other ancillary assets or amounts. [239] On compensatory grounds, the approximately $8 million and other ancillary assets or amounts serve to recognize Ms. Bradley's childcare and household responsibilities with the consequential lower earning potential, while incorporating in the analysis the Marriage Agreement's separate treatment of Mr. Callahan's business assets as a factor the Court is instructed to consider under s. 15.2(4)(c) of the Divorce Act. [240] On non-compensatory grounds, the flexible concept of "needs" is also satisfied with the approximately $8 million and other

funds that will serve to provide Ms. Bradley with a very comfortable lifestyle without financial worry. [241] Standing back, the approximately $8 million and other relief satisfies the four objectives set forth in s. 15.2(6) of the Divorce Act while recognizing the Marriage Agreement's separate treatment of Mr. Callahan's business interests as the parties had intended. [242] I find that the foregoing "accords with the underlying principle of the FRA, striking an appropriate balance between deference to the parties' intentions, on the one hand, and assurance of an equitable result, on the other": Hartshorne at para. 47. [243] I realize that Justice Bastarache in Hartshorne stated that it is problematic for a trial judge to consider matters with "no more than 'a good idea' of the value of some of the assets": para. 52. [244] Unlike the facts in Hartshorne and most family law actions, the action before me involves considerable wealth. Having regard to the parties' marital lifestyle, in my view, approximately $8 million and other relief is the equitable result whether the Argus Group's value is $157 million or $233 million, given that the Divorce Act's objectives are clearly met with the Court's award. Ms. Bradley will have the funds and assets that affords her a comfortable lifestyle, which is certainly no less than what the parties had enjoyed. [245] Again, the overall goal is

"striking an appropriate balance between deference to the parties' intentions, on the one hand, and assurance of an equitable result, on the other": Hartshorne at para. 47. [246] In reaching the foregoing conclusions, I have not included Ms. Bradley's PST liability (and possible related amounts and legal fees). Although the PST is a relevant liability (as would any other liability required to be disclosed on a Form F8 Financial Statement), I see no basis upon which Mr. Callahan should bear any financial responsibility for it. B. Retroactive Spousal Support [247] From June 2014 to and including December 2022, Ms. Bradley seeks spousal support of $8,651,006. Ms. Bradley says that Mr. Callahan has paid $1,697,500 for this period. Following Mr. Callahan's calculations, the figure is $1,765,453. [248] Ms. Bradley's calculations are based upon Mr. Callahan having the following Guidelines incomes: 2014 $3,159,000 2015 $3,298,000 2016 $9,840,000 2017 $12,011,000 2018 $3,748,000 2019 $1,810,000 2020 $2,057,000 2021 $11,147,000 2022 $5,446,000 [249] In computing the retroactive spousal support, Ms. Bradley does not deduct $1,697,500 from $8,651,006 for a net outstanding amount of $6,953,506. Instead, she deducts $1,117,401, which is the $1,697,500 paid, net of tax savings. Mr. Callahan would realize tax savings from the fact that spousal support is deductible to the payor in calculating

taxable income. The result is that Ms. Bradley's retroactive spousal support claim to and including December 2022 is $7,533,605 ($8,651,006 - $1,117,401). [250] The foregoing Guidelines incomes for 2014 to 2021 Ms. Bradley used are based on the July 28, 2022 expert report of Ms. Suzanna Crescenzo, CPA, CA, CBV, CFA. For 2022, I understand that the $5,446,000 is Ms. Bradley's counsel's calculation based on an average of the previous three years (my calculation is a bit lower, although I will not need to rely on either calculation). [251] Ms. Crescenzo's calculations of available income, like Mr. Mynett's, did not take into account deductions for valid corporate purposes to determine actual Guidelines income. In cross-examination, she stated, quite professionally, that such deductions are matters "for the trier of fact". As noted above, Mr. Mynett took a similar approach. [252] Mr. Callahan submits that there should not be any further retroactive spousal support ordered. He notes in particular that Ms. Bradley has received significant assets, with 206 Lochview being worth significantly more than the median price of a Kelowna home. He also notes that Ms. Bradley was capable of working and chose not to do so. Finally, he notes Mr. Francoeur's income and that he and Ms. Bradley have re-partnered (and plan to marry). [253] As may be seen from Kowalewich, the law does not require

businesses to be sold upon separation. Rather, the law contemplates that a business will need to continue with funds available to support the business as a viable going concern: Kowalewich at para. 58. [254] Put another way, the sale of a business is not required even though the income generated from the net sale proceeds may be significantly greater than the available income after taking into account funds used for valid business purposes. [255] For example, by way of a rough calculation, if, as of June 1, 2014 (the parties' separation date), all of the relevant shares in the capital of the Argus Group had been sold for $85 million, a figure roughly in the middle of Mr. Bowie's valuation, the net proceeds would have been approximately $63.75 million. [256] In coming to the $63.75 million, I have assumed that the shares have a nominal cost basis, that the shares were held on account of capital, and that the tax rate would have been 50% of the taxable capital gain (which is one-half of the actual capital gain). The calculations are: a) Taxable capital gain $85,000,000 ÷ 2 = $42,500,000 b) Tax on taxable capital gain $42,500,000 x 50% = $21,250,000 c) Net after-tax proceeds $85,000,000 - $21,250,000 = $63,750,000 [257] A 5% annual return on $63,750,000 is $3,187,500. [258] As noted, the value of the Argus Group increased significantly by the third formal valuation date of May 2,

2019. Since that time, both parties recognize that the value of the Argus Group has continued to increase. [259] As described above, the Argus Group's operations are financed significantly, with the financing costs closely monitored and managed. The Argus Group's use of financing is part of what has made it a valuable and successful going concern. [260] With respect to the Argus Group's need for financing, in particular, it would not be financially sensible or prudent to view available income as greater than the available annual income I set forth above. Mr. Callahan maintains a lifestyle that is certainly very comfortable, but it is not extravagant or opulent. [261] As described above, I have determined that Mr. Callahan's available annual income required to fund his expenditures is $1.4 million, based on his October 17, 2016 Form F8 Financial Statement with the recognition of various further financial aspects, such as a luxurious holiday from time to time. [262] Further to Justice Jackson's June 8, 2021 order, Mr. Callahan has been paying Ms. Bradley $60,000 in monthly spousal support and $24,000 in monthly child support. [263] Taking into account the 12 spousal support payments in 2023, Mr. Callahan has paid $2,417,500 in spousal support as of December 2023 ($1,697,500 + ($60,000/month x 12 months)). [264] In addition to her childcare and homemaking responsibilities, Ms.

Bradley had worked for the Argus Group and was paid $48,000 annually. Mr. Callahan recognizes that Ms. Bradley has a good sense and eye for interior design and decoration. She provided input with respect to the design and decoration of some of the Argus Group's properties. Ms. Bradley testified that she was interested in interior design and Mr. Callahan was supportive of such. I understand that Ms. Bradley wished to build a portfolio to showcase her skills. [265] In Ms. Bradley's counsel's closing submissions, Ms. Bradley's involvement in a spa business is described as follows: In 2010, [Ms. Bradley] acquired an interest in a spa which has not generated a profit and [Ms. Bradley] does not receive an income from same. She has not been actively involved in the business since approximately 2014 and it is run by her business partner. [266] Ms. Bradley was not generally involved in the executive management of, or the formulation of strategy for, the Argus Group. In particular, I accept Mr. Callahan's testimony that he did not consult Ms. Bradley with respect to business decisions (including hotel acquisitions). I also accept his testimony that Ms. Bradley was not involved in property negotiations, financings, or zoning matters. [267] In sum, while I find that Ms. Bradley was generally supportive of Mr. Callahan and the Argus Group, she was not engaged as either a senior executive

would be, or as a fully informed and trusted business confidant. [268] With respect to earlier years, I have also considered the best interests of James and Caitlin. [269] When the parties separated in June 2014, James and Caitlin were much younger than they are today. James was 14 years old and Caitlin was 12. [270] The separation of one's parents is emotionally difficult for most children as it brings uncertainty into their lives. Mr. Callahan acknowledges that Ms. Bradley was a good mother. In my view, having Ms. Bradley close by and around would have assuaged the uncertainty and provided a greater sense of stability for James and Caitlin. Many happily-married couples with children may agree to have one of the spouses take a lower paying position to afford flexibility for the care of their children. [271] In my view, Ms. Bradley has the skills to have obtained work. Accounting for some flexibility, I impute to Ms. Bradley $60,000 per year starting January 1, 2016 and ending December 31, 2021. [272] I will not impute income to Ms. Bradley after 2021. In 2022, she was diagnosed with a serious medical condition which has required very significant treatments and may require more treatments depending on the medical course of matters. Her focus must be on her health. [273] The SSAGs are discretionary. Further, the SSAGs contemplate particular discretion where the payor enjoys more

than $350,000 in annual income. [274] Taking into consideration the spousal support payments made before May 2023, the other payments and assets Ms. Bradley has received, and Ms. Bradley's imputed income, the Court will not award the further retroactive spousal support Ms. Bradley seeks for the period before May 2023. There will also not be clawback for the period before May 2023. [275] The $60,000 monthly spousal support payments after April 2023 will be credited against the $8.6 million lump sum I have awarded. XIV. child support A. Living Arrangements for James and Caitlin 1) James [276] The parties disagree as to exactly where James or Caitlin were residing at particular times. From the time of the June 2014 separation until the start of the trial on May 1, 2023, James and Caitlin each spent considerable time with each of their parents. [277] For Grade 10, starting in August 2014, James attended a boarding school in Hawaii with weekends free. Mr. Callahan was living in Hawaii at that time and would see James on weekends, subject to Ms. Bradley visiting and taking James to Kelowna on breaks. [278] For Grades 11 and 12, James attended Brentwood College on Vancouver Island. [279] Following Grade 12, starting in September 2017, James attended the University of Victoria. In March 2020, his studies were interrupted by the COVID-19 pandemic. During this time, he resided at, and

worked for, one of the Argus Group's hotels. In September 2020, James resumed his studies at the University of Victoria. [280] While studying at the University of Victoria, he either rented an apartment or a condominium or lived in the condominium that he purchased in April 2021. For several months in the fall of 2018, James lived with his mother as he recovered from a motorcycle accident. [281] In the fall of 2022, James travelled on his own and then later with his father and sister on the Qatar trip, with further travel in Asia with his father, and as his sister returned to university in 2023.

2) Caitlin [282] For Grade 8, in the fall of 2014, Caitlin attended the same Hawaiian boarding school as James. [283] In the spring of 2015, Caitlin completed Grade 8 at Aberdeen Hall in Kelowna. During this time, she resided with Ms. Bradley. [284] For Grades 9 to 12, Caitlin continued to attend Aberdeen Hall and resided primarily with Ms. Bradley with the ability to go between households given the close proximity. [285] In September 2019, Caitlin started university studies at the University of British Columbia-Okanagan Campus ("UBC Okanagan"), but her studies were interrupted by the COVID-19 pandemic in March 2020. [286] In the fall of 2020, Caitlin resumed her studies. She resided in rental accommodations. [287] In the summer of 2021, she worked and then resumed her studies in the fall. [288] From January to May 2022, Caitlin travelled. [289] From August 2022 to June 2023, Caitlin attended a university in Sweden as an exchange student from UBC Okanagan. As noted, in December 2022, she travelled to Qatar to join her father and brother. B. Prospective Child Support (After 2022) [290] Given that the trial started in 2023, Ms. Bradley's claim for prospective child support includes 2023. [291] Ms. Bradley submits that, while James and Caitlin remain engaged in post-secondary studies, $38,739 per month in child support limited to four summer months should be ordered. The total

annual amount would be $154,956 ($38,739/month x 4 months). Ms. Bradley's claim is extravagant. [292] In determining this monthly $38,739 amount, Ms. Bradley relies on the table found in the Guidelines. Ms. Bradley says that she has no income and that Mr. Callahan should be considered to have an annual income of $3.25 million (based on a past average income computation). [293] However, I find that applying the Guidelines table would be inappropriate. Mr. Callahan has, in the past, paid for substantially all of Caitlin's and James's education expenses (other than the RESP amounts) and has stated to the Court that he will not only continue to do so but is agreeable to an order to this effect. [294] Each of Caitlin and James owns a condominium in which they may choose to reside or to use as a rental property. Each also has a 20% interest in a tenanted commercial warehouse property (through their respective corporations). Each has often worked when not attending university. [295] In or about late 2021 or early 2022, Ms. Bradley gave James and Caitlin $24,000 each. [296] The modern principle of statutory interpretation involves an analysis of the "text, context and purpose" of the statutory provision in question: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 117-118. [297] The Guidelines is one of the few enactments that explicitly sets forth the

legislative objectives (as s. 15.2(6) of the Divorce Act does with respect to spousal support). As may be seen above at paragraph 35, one of the four Guidelines's objectives reads: (a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; [ ] [298] The role of the Court is to ensure a "fair standard of support". The word "fair" does not guide the Court to ensure bountiful or luxurious support. For example, a child of the marriage flying in economy class to and from the university he or she attends enjoys a fair standard of support, whereas flying in business class would be excessive. [299] In cases where one or both of the child's parents enjoys very considerable wealth and income, such circumstances should not distort the meaning or the purpose of child support. Absent extraordinary circumstances (e.g., the need for 24-hour personal security protection), child support should not be augmented or inflated. I do not read Justice Laskin's reasons in Tapson v. Tapson (1969), 8 D.L.R. (3d) 727 (Ont. C.A.) to suggest otherwise. [300] In considering the factors in Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C.S.C.), I note that each "child" is in his or her twenties, is healthy, and is able to work in the summer (as each has done so in the past). With each of them owning real estate,

I am satisfied that each of Caitlin and James could obtain financial assistance, if ever needed. [301] I find that neither James nor Caitlin is now, or has been, a child of the marriage since no later than the end of 2022. [302] The Court will not order any further child support. [303] I understand that for 2023, Mr. Callahan has continued to pay $24,000 per month in child support pursuant to Justice Jackson's order. Mr. Callahan did not seek the repayment of child support before May 2023. For the balance of 2023, he seeks to be credited with any monthly payment exceeding $10,000. For any payment in 2024, he seeks full repayment. As noted, I have found that neither James nor Caitlin has been a child of the marriage since no later than the end of 2022. I will grant orders in accordance with those sought by Mr. Callahan. C. Retroactive Child Support [304] As noted, Ms. Bradley seeks retroactive child support in the amount of $5,281,936 for the years 2014 to and including 2022 if there were not an equal property division of the Argus Group. The number of months for which retroactive child support is claimed from June 2014 to and including December 2022 is 102 (6 months + (8 years x 12 months/year)). [305] Ms. Bradley's claim for retroactive child support represents an average monthly amount of $51,784 ($5,281,936 ÷ 102 months). [306] For the 102-month period, Mr. Callahan has paid

$771,500 in child support ($7,564 monthly average), in addition to paying substantially all of the tuition and education expenses (other than those funded through RESP payments), as well as substantially all other s. 7 expenses. [307] As noted, Caitlin and James have each provided their mother with monthly budgets of approximately $5,000 in recent years. [308] From July 1, 2014 to June 2021 (the month of Justice Jackson's order), Mr. Callahan paid monthly child support of $3,500 or $42,000 annually, with the exception of 2017 where he paid $67,000 (as contemplated in a July 29, 2017 interim agreement the parties made). [309] Child support is not taxable in the recipient parent's hands. In my view, Parliament's intent was to not tax the recipient parent because the recipient would be spending or disbursing the child support to ensure that the child or children involved received the fair standard of support required under the Divorce Act. Parliament did not intend to benefit the recipient parent, or, in other words, to fund spousal support (which is taxable) in the guise of child support. [310] For many of the months where Mr. Callahan paid $3,500 in monthly child support, James was living with Mr. Callahan, living in residence while he attended Brentwood College, or living in on-campus residence while attending the University of Victoria. To a lesser extent, Caitlin has also not

resided with Ms. Bradley. [311] While I have found that Ms. Bradley has overclaimed child support in recent years, having regard to the much lower child support in the earlier years of the parties' separation, and to the $1.4 million in annual available income Mr. Callahan enjoys (described above), I will not order the repayment of child support in relation to such amounts prior to May 2023. [312] The foregoing accords with a fair standard of support for Caitlin and James since the parties' separation. [313] Ms. Bradley's claim for additional retroactive child support of approximately $600,000 per year ($51,784/month x 12 months = $621,408) is extravagant. The pre-tax dollars required to fund $600,000 annually would exceed $1 million annually. Absent the most extraordinary circumstances (e.g., 24-hour personal security protection), two children do not need $600,000 annually as a "fair" amount of child support, or anywhere near such amount. [314] Ms. Bradley's claim for retroactive child support is unreasonable. The Court will exercise its discretion under the Guidelines to reject such a claim. XV. Further asset division [315] In addition to 222 Lochview, there are four other real estate properties that have been, or must be, addressed. [316] The first property is condominium located at 66-1375 Pauoa Road, South Kohala Coast, Kona, Hawaii. In 2019, Mr. Callahan paid Ms. Bradley

$454,450 for her one-half interest in this property which had been purchased in December 2013 as a vacation property. [317] The second property is a ski chalet located at 5-6446 Whiskey Jack Road, Big White, B.C. that the parties also used as a vacation property. The property is held in trust by C.M.S.T. Investments Ltd. for Mr. Callahan. Mr. Callahan will pay Ms. Bradley $281,150 for a one-half interest based on the 2023 property assessment value of $562,300. [318] The third property is an undeveloped residential building lot located at 14-180 Sheerwater Court, Kelowna, B.C. that is held in both parties' names. Mr. Callahan will pay Ms. Bradley $559,000 for her one-half interest based on the 2023 property assessment value of $1,118,000. [319] The fourth property is a residential condominium located at 202-1455 Howe Street, Vancouver, B.C. (the "Howe Street Property"), which I find should be treated, and should have been treated, as a family asset held by the parties, even though C.M.S.T. Investments Ltd. holds title because it was used extensively for family purposes. [320] With respect to the Howe Street Property, in examination-in-chief, Ms. Bradley testified: Q The next property that's listed there is "Vancouver condo". What's -- what property is that? A That was a townhouse that we purchased at -- it's called Pomaria, in Vancouver. Q Sorry, what word was that? A Pomaria. Q

Pomaria. You described earlier in your evidence a condo that you would spend time in together that was acquired, I believe you said, in 2007. Is that the same condo? A Yes, it is. [321] In her earlier examination-in-chief, Ms. Bradley testified: A And as the ‑- as the mediation went on, I imagine they had gone into arbitration, we realized that everybody is going to have to be in Vancouver for these hearings and that we all ‑- we weren't all going to be ‑- able to share this condominium, so we started looking for our own accommodation. Q And so when you say "we", who do you mean? A Ted and I. Q Okay. So what took place with respect to that? A We would fly down to Vancouver and walk around and see what was going ‑- there's a lot going on in Yaletown at the time, and we identified a building that Ted happened to know who the builder was and the architect, and so we were able to make an offer on a condominium early and we were just waiting for it to get built. Q And when ‑- when did that occur? A I think 2007 was when we were able to move in. Q Do you recall when you came down and viewed it? A It was at least a year before, so 2006, possibly more. Q And what ‑- what took place with the viewing? A Well, it was a show home at the time and the ‑- the property ‑- the unit that we selected was a townhouse and so we were looking at ‑- we looked at the blueprints and there was some

things that weren't practical. For more than one person ‑- for a family it was fine, so I was able to change the blueprints to allow for a smaller laundry room, which gave us a walk-in closet, and I changed one of the walls in the bathroom, a configuration to give it more privacy. Q Okay. And when did you say you moved in? Or, sorry, were able to move in? A I believe primarily it opened in 2007. Q And how was the property used after that time? A We used it as a family. We ‑- I was ‑- was designing it again for my portfolio, and we were spending a lot of time in Vancouver furnishing it and me decorating it and custom-making furniture and ‑- but the intention was for us to use as a family. Q Was it used for any other purpose? A Not to my knowledge. Q And how often would you use it? A We ‑- I don't think we used at all in the winter, but in the spring and summer, we would go down approximately once a month for either a few days or a week or two. The children were in programs at the aquarium, so there ‑- there were times where we stayed for more than one week. [322] In his written submissions, Mr. Callahan concedes that the Howe Street Property is a family asset. Mr. Callahan will pay Ms. Bradley $779,500 for her one-half interest based on the property assessment value of $1,559,000. XVI. divorce [323] As is common practice, and my preferred practice in many cases, the divorce

order may be separated from the relief ordered. [324] I am willing to order the divorce sought at this time. During argument, there was a comment that the timing of the divorce order may need to be postponed for tax reasons. I will be guided by the parties as to the timing of the divorce order. I will make the necessary order when I receive the divorce order for my approval, which I will then date as of that date. [325] I ask that the parties make all reasonable efforts so that I may make the divorce order within 45 days of these reasons. XVII. orders [326] The Court orders: A. Family Assets 1) Subject to the transfer of 14-180 Sheerwater Court, Kelowna, B.C. by Ms. Bradley at an adjusted cost base to Mr. Callahan, Ms. Bradley shall retain all assets in her name, and shall be responsible for all debts in her name.

2) Ms. Bradley shall retain the following advances and payments made by Mr. Callahan: a) approximately $1,650,000 for 206 Lochview Road, Kelowna, B.C.; b) $60,000 for furniture and $25,000 for moving expenses; c) $30,050 to repay a corporate credit card; d) $454,450 for the Claimant's interest in 66-1375 Pauoa Road, South Kohala Coast, Kona, Hawaii; e) $10,000 per month from December 2016 to May 2021, being $540,000; f) $128,000 on December 1, 2016; g) $75,000 on May 12, 2017; and h) $450,000 pursuant to the June 8, 2021 Order of The Honourable Justice Jackson. 3) a) Mr. Callahan shall pay Ms. Bradley $1,619,650 for her interest in 5-6446 Whiskey Jack Road, Big White, B.C., 14-180 Sheerwater Court, Kelowna, B.C., and 202-1455 Howe Street, Vancouver, B.C., within 90 days of these reasons. b) Ms. Bradley shall transfer the interest in 14-180 Sheerwater Court, Kelowna, B.C. to Mr. Callahan at her adjusted cost base concurrently with the payment from Mr. Callahan at para. 3(a) above.

4) Mr. Callahan shall retain all assets in his name, including all of his corporate holdings, and shall be responsible for all debts in his name. B. Spousal Support 5) Mr. Callahan shall pay Ms. Bradley $8,600,000 lump sum spousal support in lieu of periodic support within 90 days of these reasons subject to the credit of the overpayment of child support and the credit for monthly payment spousal support paid after April 2023. C. Child Support 6) Mr. Callahan's obligation to pay child support to Ms. Bradley shall be terminated as at December 31, 2022.

7) Mr. Callahan shall receive a credit for the overpayment of child support beyond $10,000 for any month after April, 2023 and before January 2024, and $24,000 for January 2024. D. Other Orders 8) The parties' respective interests in the Canada Pension Plan shall be equalized pursuant to the Canada Pension Plan, R.S.C. 1985, c. C-8 with the entitlement period to be from August 1, 1992 to June 1, 2014.

9) BY CONSENT. The trust claims and ancillary relief sought by Ms. Bradley as against Mr. Callahan, Midwest Ventures Ltd. and C.M.S.T. Investments Ltd. are withdrawn without costs to either party.

10) The parties shall do all things and execute all documents necessary to implement the terms as herein ordered. Such includes the parties' marking all reasonable efforts to submit the formal order for my signature within 30 days of these reasons. XVIII. costs [327] Within 60 days of these reasons, if either party wishes to address costs, I ask that they contact Supreme Court Scheduling to schedule a 55-minute 9 a.m. hearing before me. "Funt J." Schedule "A" 56 (1) Subject to this Part and Part 6, each spouse is entitled to an interest in each family asset on or after March 31, 1979 when (a) a separation agreement, (b) a declaratory judgment under section 57, (c) an order for dissolution of marriage or judicial separation, or (d) an order declaring the marriage null and void respecting the marriage is first made. (2) The interest under subsection (1) is an undivided half interest in the family asset as a tenant in common. (3) An interest under subsection (1) is subject to (a) an order under this Part or Part 6, or (b) a marriage agreement or a separation agreement. (4) This section applies to a marriage entered into before or after March 31, 1979.

57. On application by 2 spouses married to each other or by one of the spouses, the Supreme Court may make a declaratory judgment that the spouses have no reasonable prospect of reconciliation with each other. 58. (1) Subject to section 59, this section defines family asset for the purposes of this Act. (2) Property owned by one or both spouses and ordinarily used by a spouse or a minor child of either spouse for a family purpose is a family asset. (3) Without restricting subsection (2), the definition of family asset includes the following: (a) if a corporation or trust owns property that would be a family asset if owned by a spouse, (i) a share in the corporation, or (ii) an interest in the trust owned by the spouse; (b) if property would be a family asset if owned by a spouse, property (i) over which the spouse has, either alone or with another person, a power of appointment exercisable in favour of himself or herself, or (ii) disposed of by the spouse but over which the spouse has, either alone or with another person a power to revoke the disposition or a power to use or dispose of the property; (c) money of a spouse in an account with a savings institution if that account is ordinarily used for a family purpose; (d) a right of a spouse under an annuity or a pension, home ownership or retirement savings plan; (e) a right, share or an interest of a spouse in a venture to

which money or money's worth was, directly or indirectly, contributed by or on behalf of the other spouse. (4) The definition of family asset applies to marriages entered into and property acquired before or after March 31, 1979. 59. (1) If property is owned by one spouse to the exclusion of the other and is used primarily for business purposes and if the spouse who does not own the property made no direct or indirect contribution to the acquisition of the property by the other spouse or to the operation of the business, the property is not a family asset. (2) In section 58 (3) (e) or subsection (1) of this section, an indirect contribution includes savings through effective management of household or child rearing responsibilities by the spouse who holds no interest in the property.

60. The onus is on the spouse opposing a claim under section 56 to prove that the property in question is not ordinarily used for a family purpose. [ ] 65. (1) If the provisions for division of property between spouses under section 56, Part 6 or their marriage agreement, as the case may be, would be unfair having regard to (a) the duration of the marriage, (b) the duration of the period during which the spouses have lived separate and apart, (c) the date when property was acquired or disposed of, (d) the extent to which property was acquired by one spouse through inheritance or gift, (e) the needs of each spouse to become or remain economically independent and self sufficient, or (f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse, the Supreme Court, on application, may order that the property covered by section 56, Part 6 or the marriage agreement, as the case may be, be divided into shares fixed by the court. (2) Additionally or alternatively, the court may order that other property not covered by section 56, Part 6 or the marriage agreement, as the case may be, of one spouse be vested in the other spouse. (3) If the division of a pension under Part 6 would be unfair having regard to the exclusion from division of the portion of a pension earned before the marriage and it is inconvenient to adjust the division by reapportioning entitlement to another asset, the Supreme Court, on application, may divide the excluded portion between the spouse and member into shares fixed by the court.