Buchman v. Friedland

2024 BCSC 1522 Buchman v. Friedland

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Buchman v. Friedland, 2024 BCSC 1522 Date: 20240821 Docket: E202979 Registry: Vancouver Between: Sharon Belinda Friedland, also known as Sharon Belinda Buchman Claimant And Desmond Greg Friedland and Aaron Gene Friedland Respondent Before: The Honourable Justice Fitzpatrick Reasons for Judgment Counsel for the Claimant: M.K. Shergill The Respondent, appearing in person: D.G. Friedland The Respondent, Aaron Friedland: No Appearance Place and Date of Hearing: Vancouver, B.C. July 24, 2024 Place and Date of Judgment: Vancouver, B.C. August 21, 2024 Table of Contents INTRODUCTION.. 3 BACKGROUND FACTS. 3 POST-TRIAL EVENTS LEADING TO THE APPLICATION.. 6 ISSUES. 6 OCCUPATIONAL RENT. 6 Mr. Friedland's Claim.. 7 Ms. Buchman's Response. 8 i) Deadline to File a Counterclaim.. 9 ii) Res Judicata / Abuse of Process. 10 iii) Occupational Rent under the FLA. 16 THE GET. 19 COSTS. 21 ORDERS GRANTED.. 22

INTRODUCTION [1] The respondent, Desmond Friedland, seeks a variety of relief by way of application at the tail end of these family proceedings: a) An order for divorce of his marriage to the claimant, Sharon Buchman; b) An order for Ms. Buchman to pay him certain amounts for her occupation of the former family home after separation; c) An order compelling Ms. Buchman to cooperate in obtaining a get (writ of Jewish divorce), by attending hearings and signing documents; d) An order for his costs of this application; and e) An order for the costs of the respondent, Aaron Friedland (Mr. Friedland's son) for the entire proceeding. (In order to distinguish Aaron Friedland from his father, and meaning no disrespect, I will refer to him as "Aaron".) [2] Ms. Buchman opposes all of the above relief, save for the legal divorce, in accordance with the Divorce Act, R.S.C. 1985, c. 3 [DA]. I granted that relief at the conclusion of the hearing. [3] Another point of agreement between the parties is that the remaining issues are suitable for disposition by summary trial, pursuant to R. 11-3(15) of the Supreme Court Family Rules, B.C. Reg. 169/2009 [SCFR]: McManus v. McManus, 2019 BCSC 123 at paras. 22-23; Hudema v. Moore, 2021 BCCA 482 at para.

19.

BACKGROUND FACTS [4] The parties are former spouses who met in January 2010. [5] On February 24, 2014, the parties executed a marriage agreement (the "Marriage Agreement") just days before their wedding. Under the Marriage Agreement, the parties agreed that Ms. Buchman had no claim to properties owned by Mr. Friedland at the time and both parties agreed that any properties acquired by them during their relationship would similarly be excluded by claims of the other. In addition, the parties agreed that, upon a breakdown of the relationship, neither would be entitled to spousal support unless they had children. [6] One of the properties subject to the Marriage Agreement was a Vancouver home owned by Mr. Friedland. [7] On March 2, 2014, the parties were married. At some point, they moved into the Vancouver property (the "Family Home"). [8] On November 7, 2020, the parties separated when Mr. Friedland moved out and secured other accommodation. No children arose from the relationship. Since Ms. Buchman brought no assets into the relationship and she did not acquire any during the relationship, presumptively the Marriage Agreement related only to Mr Friedland's assets, including the Family Home: RFJ at paras. 75-76 (see full citation at para. 20 below). [9] Following the parties' separation, Ms. Buchman continued to reside in the Family Home. [10] On December 2, 2020, this

litigation began when Ms. Buchman filed a notice of family claim ("NOFC") commencing this action. She claimed spousal support and equal division of family assets and debt. Knowing that she would likely face Mr. Friedland's enforcement of the Marriage Agreement in relation to her claims, Ms. Buchman pleaded that it should be set aside pursuant to s. 93(3) of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. [11] Ms. Buchman's NOFC also named Aaron, alleging that two properties in his name were family property. [12] On March 9, 2021, Mr. Friedland filed a response to family claim. As expected, he asserted that the Marriage Agreement was valid and that the Marriage Agreement was a full answer to all claims advanced by Ms. Buchman. [13] On June 17, 2021, Aaron filed a response to family claim, denying that his properties were family property subject to Ms. Buchman's claims. [14] In March 2022, the parties attended a trial management conference ("TMC") with respect to the scheduled 14-day trial in June 2022. In the usual course, Mr. Friedland's counsel prepared a trial brief for both respondents. The trial brief reiterated Mr. Friedland's position that the Marriage Agreement was conclusive of all issues and that, therefore, property division and spousal support were not in dispute. [15] At the TMC, the Court granted an order allowing Mr. Friedland to file an application for bifurcation

of the issues within 30 days. [16] On April 27, 2022, Mr. Friedland filed a notice of application seeking to bifurcate the trial in order to have the issue of the validity of the Marriage Agreement decided first (the "Bifurcation Application"). In support, Mr. Friedland stated: 13. If the Agreement is found to be valid, the remaining issues in this matter will no longer need to be tried. The requirement to try the remaining issues will depend on the outcome of the Agreement issue. ..

17. Aaron Friedland will be seriously inconvenienced if he is required to attend the Trial, a significant portion of which he has only a marginal interest. Aaron Friedland travels abroad frequently for business, including to Israel, and significant cost to him will be saved if the Agreement issue is bifurcated. [17] In response, Ms. Buchman agreed that this was an efficient and cost-effective way to proceed. She consented to the Bifurcation Application based on her understanding that, if the Marriage Agreement were found to be valid by this Court, there would be no need for litigation regarding spousal support or property division. [18] By spring 2022, Ms. Buchman had been living in the Family Home post-separation for approximately a year and a half. [19] A bifurcated trial took place before Justice Murray on various dates in June, August and September 2022, with further written submissions provided in October 2022 (the "Trial"). [20] On December 21, 2022, Murray J. upheld the validity of the Marriage Agreement, with reasons indexed at S.B.F. v. D.G.F., 2022 BCSC 2231 [RFJ]. Portions of the RFJ bear upon the remedy that Mr. Friedland now seeks in relation to occupational rent of the Family Home. [21] On February 1, 2023, Ms. Buchman moved out of the Family Home. POST-TRIAL EVENTS LEADING TO THE APPLICATION [22] On August 29, 2023, Mr. Friedland filed a counterclaim seeking occupational rent. This was the first time that Ms. Buchman was advised by him that such a claim would be advanced. [23] In the counterclaim, Mr. Friedland also sought Ms. Buchman's cooperation in obtaining the get. [24] On February 13, 2024, Mr. Friedland filed this notice of application seeking a summary trial in relation to his counterclaim for occupational rent and obtaining the get.

ISSUES [25] The issues for determination on this application are: a) Should Mr. Friedland be awarded occupational rent payable by Ms. Buchman from November 2020 to February 2023 (27 months)? b) Should the court order the parties to cooperate in obtaining the get and if so, on what terms? c) Are any costs awards appropriate in the circumstances?

OCCUPATIONAL RENT [26] Various issues arise with respect to Mr. Friedland's occupational rent claim. Mr. Friedland's Claim [27] Mr. Friedland's formulation of this claim and the support for it has been a moving target on this application. [28] After he moved out of the Family Home, Mr. Friedland rented a basement suite. The rent was $975 for the first month and $1,300 per month until May 2021 when he moved out. Mr. Friedland then rented another basement suite from May 2021 to August 2023. The monthly rent for this space was $1,750 until December 2022 and thereafter $2,200 until Ms. Buchman moved out of the Family Home in February 2023. [29] Mr. Friedland's total rent payments to February 2023 were $48,175. [30] In addition, Mr. Friedland says that, over the entire time of Ms. Buchman's occupation of the Family Home post-separation, he continued to pay all expenses relating to the property, including property taxes, mortgage payments, utilities and contents insurance. In addition, he refers to having paid the expenses for a vehicle that they both used over that time, although he resiled during his submissions from any claim against Ms. Buchman for these expenses. [31] There are, however, significant evidentiary deficiencies relating to the Family Home expenses. Mr. Friedland did not provide evidence of any tax bills other than for 2021; there is no evidence as the carrying costs

(interest component) imbedded in the mortgage payments, as opposed to principal payments which he has benefitted from; and he did not provide any evidence of payment of utilities and insurance premiums. [32] Mr. Friedland estimates that his direct expenses for the Family Home are about $79,000 for only the mortgage payments and 2021 taxes, despite the lack of evidence regarding the interest under the mortgage. [33] In his application, Mr. Friedland also referred to potential loss of rental revenue of the Family Home, again with less than satisfactory evidence on that front. He relied on very dated rental information of the Family Home from 2010-2015 and rental ads of what he described as similar properties from December 2022. As with the vehicle expenses, when pressed by the Court for details during his argument, Mr. Friedland resiled from any claim on this basis. [34] Finally, Mr. Friedland referred to the fact that, prior to the separation, Ms. Buchman had been contributing $1,000 per month to the couple's expenses. This stopped in May 2021. Mr. Friedland suggested that an award could require Ms. Buchman to contribute that amount from June 2021 to February 2023 (21 months), or $21,000. [35] At the end of the day, Mr Friedland advanced his claim for occupational rent, as various alternatives, in order of preference: 1) house expenses of about $79,000; 2) rental payments of

$48,175; or 3) $21,000. Ms. Buchman's Response [36] Ms. Buchman advances a number of arguments in opposition to the occupational rent claim. She argues: a) the counterclaim for occupational rent was filed 2 1/2 years after the applicable deadline under the SCFR, and without leave of this Court; b) this Court has already considered Ms. Buchman's use of the Family Home in the context of the Trial, such that Mr. Friedland's claim for occupational rent is barred by the doctrine of res judicata. Further, Mr. Friedland's position on this application and the underlying counterclaim fundamentally contradicts his position throughout the course of these proceedings, including at the Trial, and is therefore an abuse of process; and c) Mr. Friedland has advanced no supportable basis for his claim for occupational rent under the FLA. [37] I will deal with each in turn. i) Deadline to File a Counterclaim [38] Rule 4-4(2) of the SCFR provides that a party seeking to file a counterclaim must do so within 30 days after being served with the notice of family claim. [39] Ms. Buchman's NOFC was filed on December 2, 2020, shortly after their separation. Mr. Friedland, through counsel, filed a response to family claim on March 9, 2021. [40] The counterclaim was not filed until August 29, 2023, by which time Mr. Friedland was representing himself. This was years after the deadline for doing so, and

eight months after the release of the RFJ. [41] Mr. Friedland now says that he planned all along to advance such a claim but he did not file any counterclaim in the proceeding because he did not know how long the proceedings would take. Mr. Friedland explains that he thought that the parties would be able to work out "suitable compensation" after the RFJ was released. [42] It appears that Mr. Friedland's "negotiations" for "suitable compensation" began with the filing of his counterclaim, which was swiftly rebuffed by Ms. Buchman. [43] Rule 4-4(2) of the SCFR is clear in respect of the deadline to file a counterclaim. There are obviously salutary effects from imposing a deadline - evident from the mandatory requirement under the Rule - in requiring that all parties set out all of their issues and their positions in the pleadings within a reasonable period of time. Needless to say, proper pleadings are critical to allow the parties and the Court to understand the allegations being advanced so that they can assess matters in terms of how best to resolve those issues (more on this below). [44] Mr. Friedland clearly ignored this requirement under the SCFR. In addition, he must be taken to have known about the possibility of seeking an extension of time to file a counterclaim under R. 21-2(2). However, Mr. Friedland did not seek any extension. In that respect, he avoided any

consideration by the Court of the reason for his very late filing of the counterclaim. [45] Ms. Buchman's counsel refers to Ashton v. Hales, 2017 BCSC 1928 on the subject of self-represented persons disregarding the Court's rules: [42] While special concerns arise where a party is self-represented, those concerns do not lead to a disregard for the rules that govern our courts. [46] The Rules exist for a reason. Their object is found at Rule 1-3. They impose structure, fairness and bring efficiency to litigation in the Court. They are not to be disregarded merely because a party chooses, or has no choice, but to represent themselves. To do so would be unfair to the other parties and raise the risk of injustice. [46] The above comments ring truer for Mr. Friedland than other self-represented litigants. He is a lawyer who has been practicing law since December 1997. [47] Mr. Friedland's explanation for ignoring the SCFR is either non-existent or unsatisfactory. Like every other litigant in this Court, self-represented or otherwise, he is expected to comply with the rules (including the SCFR) and procedures governing proceedings. Even now, after Ms. Buchman raised the issue, Mr. Friedland has made no application for an extension of the filing date so that the claim can be properly considered. [48] I agree with Ms. Buchman that Mr. Friedland's claim for occupational rent should be

dismissed on this basis alone. Nevertheless, in the alternative, I will address her other arguments below. ii) Res Judicata / Abuse of Process [49] Ms. Buchman advances arguments that both res judicata (issue estoppel) and the abuse of process doctrine apply to bar Mr. Friedland from advancing any claim for occupational rent at this time. [50] Ms. Buchman refers to White v. Schultz, 2021 BCSC 1835 where Justice Shergill summarized the law with respect to res judicata: [43] The doctrine of res judicata prevents the re-litigation of issues already addressed by the court, and requires parties to bring forward all claims and defences with respect to the matter in the first instance: L.M. v. British Columbia (Director of Child, Family and Community Services), 2016 BCCA 367. [44] Res judicata can take two forms: (1) issue estoppel; and (2) cause of action estoppel. Issue estoppel relates to the re-litigation of issues previously decided in another court proceeding: L.M. at para. 41. [51] White at para. 45 provides that issue estoppel is established where: a) The issues are the same as what was decided in the prior decision; b) The prior judicial decision was final; and c) The parties in both proceedings were the same. [52] Ms. Buchman argues that issue estoppel applies here because of the results of the Trial in the RFJ. She refers to the parties being the same and that the results

of the Trial are final. In addition, she argues that the issues now raised by Mr. Friedland have already been effectively decided by this Court in the RFJ in addressing the procedural fairness of the Marriage Agreement. She says: The issue litigated at the Trial was the validity of the Marriage Agreement, including operational fairness in relation to property division and spousal support. . In considering the procedural and operational fairness of the Marriage Agreement, both in relation to property division and spousal support, this Court clearly turned its mind to Ms. Buchman's use of the Family Home. This is clear from the Trial Excerpts set out below, where the Court positively remarks upon Mr. Friedland's decision to allow Ms. Buchman to continue living in the Family Home and takes this into consideration when determining the operational fairness of the Marriage Agreement, specifically in relation to spousal support. [53] Having considered the matter, I have doubts that issue estoppel applies here. The sole issue before Murray J. was the validity of the Marriage Agreement. No issue of occupational rent had been raised at the time and the positions of the parties were such that no property division issues would be addressed at that time (the subject of Ms. Buchman's abuse of process argument discussed below). Even if an occupational rent claim had been filed by the time of

the Trial, it would not have been addressed at the Trial since by the Court's order, consented to by both parties, all other issues were to be held in abeyance. [54] I take a different view, however, as to the applicability of the doctrine of abuse of process. [55] In substance, Ms. Buchman argues that Mr. Friedland's decision to file a counterclaim and advance an occupational rent claim contradicts his earlier position in these proceedings and at the Trial. She contends that Mr. Friedland is essentially resiling from his position during these proceedings and at the Trial. She further argues that this is nothing more than an attempt to prolong the litigation and prevent Ms. Buchman from moving forward with her life. [56] Abuse of process was discussed in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 [C.U.P.E] as a" misuse" of the Court's procedure, as follows: [35] Judges have an inherent and residual discretion to prevent an abuse of the court's process. This concept of abuse of process was described at common law as proceedings "unfair to the point that they are contrary to the interest of justice" (R. v. Power, [1994] 1 S.C.R. 601, at p. 616), and as "oppressive treatment" (R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667). McLachlin J. (as she then was) expressed it this way in R. v. Scott, [1990] 3 S.C.R. 979, at p. 1007: abuse of process may be established where: (1)

the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice. [57] The concept of abuse of process extends beyond such notions of res judicata and issue estoppel: C.U.P.E. at para. 42. [58] As emphasized in C.U.P.E. (paras. 43-44 and 50-51), the focus is not on the interests of the parties, but rather the integrity of the adjudicative function: see also Petrelli v. Lindell Beach Holiday Resort Ltd., 2011 BCCA 367 at para.

70. One example where relitigation would enhance the integrity of the judicial system is where application of the abuse of process doctrine would create unfairness: C.U.P.E. at paras. 52-53; Petrelli at para. 72. [59] Ms. Buchman refers to a number of appeal decisions which demonstrate the potential of invoking the doctrine of abuse of process in circumstances where parties take inconsistent legal positions in legal proceedings: First Majestic Silver Corp. v. Davila Santos, 2012 BCCA 5 at para. 23; Pepper's Produce Ltd. v. Medallion Realty Ltd., 2012 BCCA 247 at paras. 24-28, both cited in Fortinet Technologies (Canada) ULC v. Bell Canada, 2018 BCCA 277 at para. 23. [60] Similarly, Pan Afric Holdings Ltd. v. Athabasca Holdings Ltd., 2018 BCCA 113 at para. 37 refers to a possibility of invoking abuse of process where a party takes inconsistent factual and legal positions in different proceedings; however, that decision also refers to an important rider in that such assertions "must be considered in the context of circumstances of the case". [61] Firstly, the failure to plead a claim for occupation rent in a timely filed counterclaim resulted in Ms. Buchman consenting to the Bifurcation Application on the basis presented by Mr. Friedland - namely, that it was a preliminary issue that had the potential to resolve all issues in the litigation. As stated above, the failure to raise

this issue in a pleading meant that Ms. Buchman - and later the Court - had inadequate information as to whether the Bifurcation Application was appropriate. Obviously, it is not knowable whether Ms. Buchman's position on the Bifurcation Application would have changed if she had known about Mr. Friedland's plans for the counterclaim; however, there is a possibility for that. Similarly, the Court may have come to a different conclusion. [62] The point is that pleadings are important and matter. They allow positions to be formed (by the parties) and decisions made (by the Court). Mr. Friedland's decision not to raise this issue introduced elements of unfairness to Ms. Buchman in the circumstances. [63] Secondly, Mr. Friedland now advances a contrary position to what he alleged at the Trial, and from which he benefitted, based on a reading of the RFJ. He now seeks to further benefit from the results of the Trial after having "laid in the weeds" on the occupational rent issue. This conclusion requires a more detailed review of how Mr. Friedland approached this issue at the Trial and how that issue was addressed by Murray J. in the RFJ. [64] At the Trial, Mr. Friedland took the position that the Marriage Agreement was dispositive of all issues between the parties: RFJ at para.

1. Mr. Friedland made no mention of having any claim for occupational rent. I agree with Ms. Buchman that this claim, if known, would have contradicted his argument that the Marriage Agreement was binding and conclusive of all matters in dispute between the parties, such that no further litigation would be necessary if the Marriage Agreement were found to be valid. [65] One of the facts raised at the Trial was Ms. Buchman's use of the Family Home post-separation, without cost, since Mr. Friedland was paying all costs associated with it. Indeed, it was a relevant fact in relation to two issues at the Trial. [66] This Court considered these facts in relation to the issue of Mr. Friedland's character and credibility. Murray J. commended Mr. Friedland on his willingness to allow Ms. Buchman to continue living in the Family Home without seeking any reimbursement: [42] Mr. F was fair and generous toward Ms. F. throughout his testimony. His actions following the parties' separation are consistent with this. He has allowed Ms. F. to remain in the West 16th Property while he pays the mortgage and property taxes on it and rents a separate apartment for himself. In addition, he shares his car with Ms. F. and does not ask her to contribute to its insurance or maintenance. Of note, instead of acknowledging Mr. F.'s goodwill, Ms. F. complained that she had to pay for utilities and to fix the

washer and do the gardening at the West 16th Property. [67] Further, one of the major issues addressed by Murray J. under ss. 93 and 164 of the FLA was the operational fairness of the Marriage Agreement (RFJ at para. 26). [68] The fact of Ms. Buchman's occupation of the Family Home post-separation was considered in the context of the operational fairness issue in terms of whether this stood as a basis upon which to find the Marriage Agreement was unenforceable in respect of both property division and spousal support (analysis on this issue in the RFJ at paras. 71-134). [69] For example, Murray J. discussed that Mr. Friedland had paid most household expenses, including food and mortgages pre-separation, and that Ms. Buchman had contributed to these costs: [81] As to Ms. F.'s second point, I accept that once the parties were married, Mr. F. asked Ms. F. to start contributing to household expenses and a travel fund. Although he suggested a higher amount, Ms. F. said that she could only contribute $500 every two weeks. The evidence is clear that these funds were deposited into Mr. F.'s only bank account. Mr. F. used the funds in that bank account to pay everything, including household expenses, food and mortgages. [70] In addition, Murray J. discussed that Ms. Buchman had been living rent-free in the Family Home post-separation, as related to the spousal support issue: [133] I am

not satisfied that Ms. F. is eligible for non-compensatory support. If I am wrong, the fact that she has lived rent-free in Mr. F.'s West 16th Property for over two years since separation and driven Mr. F.'s car without making any contribution to its upkeep or insurance, constitutes sufficient spousal support. [71] The above findings or observations of Murray J. arise from the evidence at the Trial, which included that of Mr. Friedland. There is simply no explanation from Mr. Friedland as to why he advanced this evidence at the Trial, while then harbouring his potential occupational claim, as he now acknowledges. It is obviously unknown what effect, if any, would have resulted in the RFJ if this as yet claim for occupational rent had been advanced in the pleadings and known to the Court. [72] I conclude that allowing Mr. Friedland to advance this claim at this time would be manifestly unfair to Ms. Buchman and the court process in this proceeding. [73] Ms. Buchman consented to the bifurcation of the Trial on the basis that it would be dispositive of all issues in the action. The Court also made its decision to bifurcate the Trial on that basis. These positions were formulated and decisions made on the basis that a bifurcated trial was to bring about a quick and economic resolution to this matter for both parties, at Mr. Friedland's request. By advancing this claim, Mr.

Friedland is undermining the very purpose of the bifurcated trial. [74] In addition, Mr. Friedland asserted a position and gave evidence at trial with respect to the expenses relating to the Family Home that are directly contrary to what he asserts now. He did so when he knew or likely knew that it would benefit him at the Trial, all the while formulating, but not disclosing, his ultimate intention to advance the occupational rent claim. I agree with Ms. Buchman that it is unfair - and prejudicial to her - to allow Mr. Friedland to take one position at trial and, upon being successful at trial, resile from that position and take a contradictory position in the hopes of obtaining a financial benefit from her. [75] Finally, there is the matter of delay. I do not accept Mr. Friedland's statement that he did not file his counterclaim originally as he did not realize how long the family proceedings were going to take. By the time of the TMC (March 2022), Ms. Buchman had been living in the Family Home rent-free for about 16 months. Given the bifurcation of the Trial, he would have understood that there would be a further delay in concluding the Trial and getting a decision. This was ample time to understand the costs associated with maintaining the Family Home while Mr. Friedland was paying rent for other accommodations. [76] Mr. Friedland's claim for occupational rent is an abuse of

process and is dismissed on that basis. iii) Occupational Rent under the FLA [77] Another alternative basis upon which Ms. Buchman opposes the occupational rent claim is based on the general approach to occupational rent under the FLA. Although not entirely clear from his pleading and application, the FLA appears to be the jurisdictional basis upon which Mr. Friedland asserts this claim. [78] Occupational rent is a form of reapportionment that is generally considered in the context of a claim of unequal division of family assets under s. 95 of the FLA: Storey v. Terry, 2020 BCCA 30 at paras. 27-28, citing Shen v. Tong, 2013 BCCA 519 at para.

91. As stated in Storey at para. 27, the purpose of awarding occupational rent is to do what is "just and equitable between the parties", again in the context of considering property division issues under the FLA. [79] This approach was more recently adopted in Modeste v. Barnes, 2021 BCSC 24 at para. 122, where Justice Adair emphasized that such a claim is not a "stand-alone claim" apart from the property division issues that are normally considered under the FLA: see also Holland v. Holland, 2017 BCCA 75 at paras. 23-24. [80] Many court decisions make clear that the granting of occupational rent is an exceptional remedy that should be used cautiously and only to achieve a just and equitable result: Petrie v. Lindsay, 2019 BCSC 371 at para. 136; McFarlen v. McFarlen, 2017 BCSC 1737 at para. 13, citing Ross v. Ross, 2013 BCSC 1716 at para. 47. [81] By any measure, Mr. Friedland's claim for occupational rent in these circumstances can only be described as a stand-alone claim. At the Trial, this Court found that the Marriage Agreement was valid, with the result that Ms. Buchman was not allowed to advance any claim against the family assets, whether by equal division or reapportionment. In short, the family asset issues in the litigation have been conclusively decided. On this basis alone, Mr. Friedland's claim is unfounded. [82] In any event, Mr. Friedland faces other headwinds.

In Shen at para. 94, the court lists various factors that can be considered by the Court in assessing such a claim. These are essentially those later listed In McFarlen at para. 13, along with others (again from Ross). Those factors, as relevant to the parties, are as follows: · The conduct of both spouses, including the failure to pay support, the circumstances under which the non-occupying spouse left the home, and if and when the non-occupying spouse moved for a sale of the home; . · If and when a demand for occupational rent was made; · Financial difficulty experienced by the non-occupying spouse caused by being deprived of the equity in the home; · Who is paying for the expenses associated with the home, including who is paying the mortgage and other upkeep expenses; · Whether the occupying spouse has increased or decreased the selling value of the property; and · Any other competing claims in the litigation that may offset an award of occupational rent. [citations omitted] [83] The remedy is a discretionary one requiring the balancing of the relevant factors to determine whether occupational rent is reasonable in the totality of the circumstances: Ross at para. 47; Modeste at para. 122; Lennox v. Lennox, 2022 BCCA 44 at para. 46. [84] Even assuming that Mr. Friedland could bring such a claim, I agree with Ms. Buchman that he is not entitled to occupational rent in the

circumstances, because: a) Mr. Friedland was not ousted from the Family Home; rather, he made a unilateral decision to leave the Family Home following the parties' separation; b) Mr. Friedland's position throughout these proceedings, including at the Trial, was that the Marriage Agreement was dispositive of all issues between the parties such that a bifurcated trial upholding the validity of the Marriage Agreement would require no further litigation between the parties in relation to property division or spousal support; c) Since he succeeded at the Trial, Mr. Friedland's claim is now untethered from any property division issues. In particular, he is not seeking a division or reapportionment of family property; d) This claim is brought after considerable delay and in breach of the SCFR; e) This claim is also brought in circumstances where considerable unfairness arises, as discussed above in relation to abuse of process; f) Ms. Buchman stopped paying Mr. Friedland $1,000 per month since her agreement to do so was based on contributing to the joint expenses of the couple (such as entertaining). Given the separation, the basis for that payment fell away and both parties began paying their own separate expenses; and g) Mr. Friedland does not assert that he suffered any financial difficulty as a result of him paying the expenses relating to the Family Home while Ms. Buchman

occupied it during the course of these proceedings and until after the Trial results were known. [85] I conclude, as Ms. Buchman asserts, that it cannot be said that awarding Mr. Friedland occupational rent is necessary to obtain fairness and justice between the parties in the context of these proceedings. [86] To the contrary, based on the factors I have listed above, an award of occupational rent would result in significant unfairness and injustice to Ms. Buchman. The evidence suggests that it would be an added burden to her in light of Ms. Buchman's asserted financial difficulty in paying any amount to Mr. Friedland from her modest income and her recently diagnosed health issues that are likely to affect her livelihood. [87] For all or any of the above reasons, I dismiss Mr. Friedland's claim for occupational rent from Ms. Buchman.

THE GET [88] In April 2022, the parties began exchanging correspondence regarding obtaining a get as part of the post-separation dissolution of their marriage. [89] A get terminates a Jewish marriage and allows former spouses to remarry under Jewish law: L.C. v. Y.S., 2023 BCSC 422 at para 300. Only a male spouse may seek a get. [90] This Court does not have jurisdiction to grant a get; however, under s. 21.1 of the DA, this Court has the ability to grant orders that will facilitate a spouse taking steps to obtain a get: L.C. at paras. 301-303, 311-312, citing Bruker v. Marcovitz, 2007 SCC 54 at paras. 3-9. [91] In his application, Mr. Friedland asserts that he is seeking a get, but that Ms. Buchman has refused to cooperate. It appears that her cooperation is required in the process. However, the correspondence in April 2022 from Ms. Buchman's counsel confirms that she is willing to cooperate. [92] The crux of the issue between the parties appears to be the financial terms upon which the get is to be obtained and the means by which that payment is to be handled. [93] The get is tied to a ketubah, or Jewish marriage contract. On the basis of information provided by the parties' rabbi, Ms. Buchman initially understood that Mr. Friedland was required by the ketubah to pay her USD$42,000 for the get. However, in December 2023, the rabbi confirmed that this amount was for first

marriages and that, for second marriages (as relate to the parties) the amount is USD$21,000. Both parties agree that this amount is not fully settled at this time, in that the amount required to be paid for the get will be ultimately settled by the beth din (Jewish court) when it considers the matter. [94] Ms. Buchman consents to an order that the parties cooperate in obtaining a get on the condition that Mr. Friedland pay to her USD$21,000 within 21 days of the date of the order. Ms. Buchman also requires that Mr. Friedland arrange for her to be provided with copies of any necessary documents to be signed. [95] In turn, Mr. Friedland is willing to pay USD$21,000 to Ms. Buchman, but he wants it set-off against the costs that Murray J. awarded in his favour at the Trial: RFJ at para.

136. Mr. Friedland's bill of costs is not before me, although I understand that he has claimed $31,185. In response, Ms. Buchman suggests that the appropriate amount is $22,500. No date for the assessment of the costs has yet been scheduled. [96] In my view, the matter of the parties' cooperation regarding the get can be settled on the basis of their consent. [97] Despite some uncertainty, the parties appear to be comfortable with USD$21,000 in terms of resolving the matter now in the context of how any payment will be made. I have set out below in the "Orders Granted" a process by which Ms. Buchman will receive USD$21,000, given Mr. Friedland's desire to obtain the get and secure it in some fashion with respect to ultimate costs award. This payment will obviously be subject to whatever amount is settled upon by the beth din.

COSTS [98] In his application, Mr. Friedland seeks costs of the application for Aaron. However, Aaron did not file this application and he did not appear or participate at all in the hearing. Therefore, Mr. Friedland has provided no basis to support his claim for Aaron's costs of the application. [99] More generally, Mr. Friedland refers to Aaron's costs in the proceeding. As above, Aaron filed a response to family claim but I am unaware of any other steps taken by Aaron as a party in the litigation. He did not attend the Trial as a party; he was a witness. As with Mr. Friedland, Ms. Buchman's claims against Aaron would have fallen away with the results of the Trial. [100] Mr. Friedland advises that he has prepared a bill of costs for Aaron (apparently for $13,305) and provided it to Ms. Buchman's counsel. Apparently, no agreement has been reached. In the RFJ, Murray J. addressed Mr. Friedland's costs, but not those of Aaron; perhaps none were sought. Nevertheless, I have no ability to impose costs at this time, particularly when Aaron is not seeking them (Mr. Friedland is). How Aaron wishes to resolve that matter from here remains to be seen. [101] Based on the results of this application, Ms. Buchman is entitled to her costs in relation to the counterclaim and this application given her success.

ORDERS GRANTED [102] The following orders are granted: a) Mr. Friedland's counterclaim and application for occupational rent is dismissed; b) Mr. Friedland shall pay to Ms. Buchman party-and-party costs in relation to the counterclaim and this application; c) Mr. Friedland will proceed promptly to assess the costs awarded to him by Murray J. per the RFJ. Ms. Buchman will also to have her costs (as now awarded) assessed at the same time, failing agreement; d) By consent, the parties will cooperate toward obtaining the get. In particular, and subject to item (e)(ii) below, Ms. Buchman will attend any hearing that might be required and sign any documents that Mr. Friedland may require for submission to the beth din. Mr. Friedland is to provide any necessary documents that Ms. Buchman is required to sign; e) The payment by Mr. Friedland to Ms. Buchman of USD$21,000 for the get will be made, as follows: i. If Mr. Friedland wishes to obtain the get immediately, he will deposit the Canadian equivalent of USD$21,000 in the trust account of Ms. Buchman's counsel, less the amount of $22,500, being the estimated costs payable by Ms. Buchman (as calculated by her counsel). In addition to this amount, Mr. Friedland is to deposit Ms. Buchman's estimated costs arising from the counterclaim and this application (again as calculated by her counsel); or ii. If Mr. Friedland wishes to obtain the

get at a later date, he is to proceed to an assessment of his bill of costs as awarded by Murray J. Following the results of the assessments (Mr. Friedland and Ms. Buchman's) being known, Ms. Buchman may deduct the Canadian equivalent of USD$21,000 from the net of those amounts. If the net amounts of the assessed costs (due to Mr. Friedland) is more than the Canadian equivalent of USD$21,000, that net amount will remain owing by Ms. Buchman. If the net amount of the assessed costs (due to Mr. Friedland) is less than the Canadian equivalent of USD$21,000, Mr. Friedland is to pay that difference to Ms. Buchman within 21 days. Unless and until such payment is made, Ms. Buchman shall have no obligation to sign and return any documents in relation to the get or attend any hearings; (In either scenario, the relevant exchange rate is to be determined the day before such payment). f) the application to pay costs of this application to Aaron Friedland is dismissed, without prejudice to Aaron seeking any costs award that might otherwise be made in these proceedings in respect of any other matters, given the results of the Trial. "Fitzpatrick J."