Chapman v. Glenn

2013 BCSC 657 Chapman v. Glenn

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Chapman v. Glenn, 2013 BCSC 657 Date: 20130416 Docket: E081661 Registry: Vancouver Between: Alaina Pearl Amber Chapman Claimant And Cary James Glenn Respondent Before: The Honourable Mr. Justice Fitch Reasons for Judgment Counsel for the Claimant: Ruth Lea Taylor Counsel for Respondent: Kiran Duhra Place and Date of Hearing: Vancouver, B.C. June 26-28; September 4, 2012 Place and Date of Judgment: Vancouver, B.C. April 16, 2013 A. Introduction [1] The Claimant, Alaina Chapman, (the "Claimant"), who is 43 years of age, and the Respondent, Cary Glenn, (the "Respondent"), who is 46 years of age, began cohabiting in June 1987. They were married on November 9, 1990 at Dunster, British Columbia. They separated in January 2002 after a 15-year relationship. The parties have three children: Gaelan (born March 24, 1990); Dakotah (born August 4, 1992); and Willow (born August 3, 1998). Gaelan is 23 years of age. Dakotah is 20 years of age. Both boys are now living independently. Willow is 14 years of age. She currently resides with the Respondent in Edmonton, Alberta. [2] At the outset of the trial, I made a divorce order. By agreement, the parties will have joint custody and shall be joint guardians of the person and estate of the child, Willow. I am advised that the terms of a shared parenting arrangement agreed upon by the parties with

respect to Willow has been incorporated into that order. [3] At issue in this proceeding is the ownership interest each of the parties has in a 40-acre parcel of land located near Dunster, British Columbia which they purchased with the Claimant's brother Christopher in December 1994. The parties were able to acquire a one-half interest in the property (a one-quarter share each) on the strength of a loan made to them by the Respondent's parents. [4] The Claimant says she purchased the Respondent's one-quarter interest in this property after the separation for $20,000. She says this acquisition is evidenced by a written agreement signed by both of them and dated August 29, 2003. She seeks an order that the Respondent's one-quarter interest in the property be vested in her free of any claim from the Respondent. In the alternative, she seeks an order that the property be reapportioned entirely in her favour. [5] The Respondent says that pursuant to the August 2003 agreement the Claimant paid him $20,000 in satisfaction of her share of the debt owed to his parents and that he continues to retain a one-quarter ownership interest in the Dunster property. In the alternative, the Respondent says that should this Court find that the Claimant purchased his one-quarter interest in the property in 2003, she owes one-half of the debt that was outstanding to his parents at the end of 2003 for

various loans made to them in the course of their relationship, including for the acquisition of this property. The Respondent calculates this amount to be approximately $26,000. [6] The Claimant also seeks compensatory spousal support in the amount of $500 per month, retroactive to December 2006, when the Respondent obtained remunerative employment, until May 2012 when she accepted work as a Registered Massage Therapist as a locum in Blind Bay, B.C. By my calculations, the Claimant seeks an order for retroactive spousal support in the amount of $33,000. [7] In addition, the Claimant seeks a retroactive child support order in relation to Dakotah and Willow for the years 2005 to 2008. It is agreed that the Respondent began paying child support for both children in September 2008. [8] The claims for retroactive spousal and child support are made under the Divorce Act, R.S.C. 1985, c.3 and Family Relations Act, R.S.B.C. 1996, c.128, which govern the resolution of this action. [9] Finally, the Claimant seeks a declaration of ownership and possession of a share of the Respondent's pension pursuant to Part 5 of the Family Relations Act and costs. B. Background (a) The Acquisition of the Dunster Property and the Loans Made by the Respondent's Parents: 1989-2002 [10] The parties moved to the Dunster area in the fall of 1989 and, after Gaelan was born in 1990, relocated to a 600 square

foot cabin located on property owned by the Claimant's aunt. The cabin was not heated and did not have running water. The parties lived in this cabin until August 1998. The Respondent worked seasonally as a tree planter, white water rafting guide and at other odd jobs. The Claimant cared for the children, and hauled wood and water to keep the household running. The Respondent testified, and I accept, that the parties pursued a lifestyle of "voluntary simplicity" and that while the Claimant was the primary caregiver during these years, the Respondent also meaningfully contributed to the care of the children. [11] Neither of the parties is experienced in business matters or pragmatic by nature and their efforts, both before and after the separation, to sort out their business affairs without the assistance of counsel is one of the primary drivers of this litigation. It also explains, to some extent, the confusion evident in the testimony each of them gave in the course of the trial. [12] In April 1994 the parties moved to Crawford Bay in the Kootenays where the Respondent commenced a one-year informal apprenticeship as a blacksmith. The Claimant continued to take care of the two boys during this time. [13] In December 1994 the parties, together with the Claimant's brother, Christopher Chapman, purchased a 40-acre parcel of land in Dunster, more particularly known as PID

012-687-090, Part E ½ of SW ¼, District Lot 7180, Cariboo Land District for $52,500. The agreement of purchase and sale was between the vendor of this property and Christopher Chapman only. The property was registered in Christopher Chapman's name. All parties agree that this was done because of a concern that the vendor would not sell the land to the Claimant because of some past conflict the vendor had with the Claimant's aunt. [14] The parties and Christopher Chapman, who testified at trial, are in agreement that Christopher Chapman paid $26,250 for his one-half interest in the property. The parties borrowed $26,250 from the Respondent's parents to complete the purchase. It is agreed that, on closing, Christopher Chapman had a one-half interest in the property while the parties had a one-quarter share each which they held in common. [15] The Respondent's parents funded this loan, and all subsequent loans made to the parties, through a line of credit account they held with ATB Financial. Unfortunately, banking records relating to the ATB line of credit account are only available from October 2002. In the result, the interest rate being charged to the Respondent's parents on this and subsequent loans made well before 2002 is unknown. From the fall of 2002, it is clear that an interest rate of 4.5% was being charged on money drawn on this account. [16] In April 1995 the parties

moved back to Dunster. A blacksmith shop was built by the parties on the property they acquired in December 1994. The Respondent operated from this shop his own blacksmithing business known as Spiral Mountain Ironworks. The Respondent's parents loaned the parties additional money to get started in this new venture. There is conflicting evidence before me about how much was loaned to build the shop and purchase equipment and tools needed to get the business going. Again, there are no bank records to establish the precise amounts advanced. The parties and Patrick Glenn, the Respondent's father who was called to testify at trial, gave differing accounts with respect to the amount of this loan. I am satisfied that all three witnesses were, on this issue, doing their best to recall by memory events that occurred almost two decades ago. [17] The Claimant testified that an additional $15,000 was loaned to the parties by the Respondent's parents to build the blacksmith shop and acquire necessary equipment and tools. The Respondent testified in chief that well over $10,000 was loaned by his parents for this purpose and that the money was advanced in May 1995. He testified in cross-examination that the parties borrowed $15,000 to set up the shop. Patrick Glenn testified that $20,000 was loaned to the parties to build the shop and acquire blacksmithing tools. [18] The Claimant's testimony

on this point is the most reliable. The Respondent did not take the lead role in keeping track of the family's finances and, by his own admission, this is not his strength. His evidence was uncertain and inconsistent on this point. Patrick Glenn's evidence is also unreliable on this point. He is uncertain about the amounts that were advanced or repaid on this account and testified that his wife, who was not called at trial, was primarily responsible for maintaining their financial affairs. His uncertainty about these matters may be illustrated by several examples taken from his evidence. First, Patrick Glenn testified that while he was uncertain how much money was paid back before the separation of the parties from Spiral Mountain Ironworks, he thought it was in the range of $2,500. In fact, the parties are agreed that between 1995 and 1997 Spiral Mountain Ironworks paid $10,400 toward that debt. Additionally, Mr. Glenn testified that neither he nor his wife ever drew on the line of credit account from which they loaned money to the parties. It is clear, however, that on at least two occasions Patrick Glenn and his wife did draw on this account for their own personal use. When Patrick Glenn was shown documentary evidence that he and his wife had drawn on the account on a couple of occasions in 1997, he agreed that this was so but that the account was primarily used to assist

the Claimant and Respondent. The evidence on this point not only undermines the reliability of Patrick Glenn's recollection of what was advanced to the parties, it also calls into question whether the balance shown as being owing on this account in October 2002 reflects only the borrowings of the parties. I will return to that issue later in these reasons. For now, I will say only that I have determined to proceed on the basis that an additional $15,000 was loaned to the parties in May 1995 by the Respondent's parents to build and equip the shop. [19] The Respondent's blacksmithing business made a small amount of money in the first year of its operation but very little thereafter. The Respondent subsequently worked in a mill for a short time and returned to seasonal work in the silviculture industry and as a rafting guide. Prior to the separation, the most the Respondent made in any year was $30,000. He testified that he would make, on average, about $20,000 a year. The Claimant gardened, made furniture and clothing and, over time, secured part-time jobs in the community, sometimes bartering for her services in exchange for fresh vegetables. [20] On February 27, 1996 a handwritten note was prepared by Patrick Glenn purporting to document that the ATB line of credit account was arranged for the sole use of the Respondent and/or Spiral Mountain Ironworks and that the Respondent

had made all of the repayments on monies advanced from this account. It is unclear to me why or at whose request this document was prepared. It is true that until 1996 all repayments on the loan were made through Spiral Mountain Ironworks. Patrick Glenn testified that he did not know the purpose of this letter. The Respondent gave evidence to the same effect. In my view, the evidence establishes that the money advanced through the ATB line of credit account for the purchase of the property in 1994 and the building of the shop in 1995 was advanced as a loan to the parties to assist them in getting established. I did not understand the parties, in their evidence, to suggest otherwise. Although the Claimant's counsel took issue with the notion that the blacksmith shop loan constituted a family debt, the Claimant agreed in her evidence that all of the monies advanced to them by the Respondent's parents represented a debt that was jointly owed to them by her and the Respondent. [21] Spiral Mountain Ironworks ceased doing business altogether in 1998. [22] In approximately June 1998 the parties began construction of a home on the property they purchased in December 1994. Additional money was loaned by the Respondent's parents to the parties for this purpose. The Claimant testified that an additional $7,000 was advanced to them by the Respondent's parents through their ATB line of

credit account. The Respondent testified that the house cost $10,000 to build and I infer from his evidence that all of this money came from his parents' line of credit account. Patrick Glenn also testified that $10,000 was loaned to the parties through this account to assist them in constructing the house. The Claimant was not challenged in cross-examination that the amount loaned for construction of the house was actually $10,000, not $7,000. In addition, for the reasons previously expressed, the Claimant's evidence on this point is more reliable and I accept it. Accordingly, I have proceeded on the basis that a further $7,000 home construction loan was made to the parties by the Respondent's parents in June 1998. [23] The Claimant acknowledged that an additional $1,000 had been advanced to her by the Respondent's parents to assist with some musical endeavours. The Claimant understood this amount to be a gift. Patrick Glenn agreed that this money was presented to the Claimant as a gift. As a consequence, I will not factor it into the total debt owed by the parties to the Respondent's parents. [24] Finally, both the Respondent and Patrick Glenn testified that an additional $5,000 loan was advanced to the parties through the ATB line of credit account to assist them in acquiring a minivan. The Claimant testified that the only money loaned to them by the Respondent's parents was

for the acquisition of the property, the building of the shop and the building of the house. She was clear in her evidence in chief that no other funds were loaned to the parties by the Respondent's parents. It was not put to the Claimant in cross-examination that this additional loan had, in fact, been made. Given the questions that arise with respect to the reliability of the Respondent's and Patrick Glenn's memory on the question of money advances, I will not take this additional $5,000 into account in calculating the total debt owed by the parties to Mr. and Mrs. Glenn after 1998. [25] On issues relating to the amount and timing of the loans and keeping track of loan repayments, I accept the Claimant's version of events which was given in a forthright and conscientious way and, insofar as repayments are concerned, was supported by documentation she produced. [26] On the Claimant's version of events, a total of $48,250 had been borrowed by the parties from the Respondent's parents ($26,250 for the land plus $15,000 for the shop equipment plus $7,000 for the construction of the house). [27] As noted above, counsel for the parties are agreed that $10,400 was paid off from Spiral Mountain Ironworks' bank account between 1995 and 1997. Further, the parties are agreed that an additional $19,050 was paid against the loans from their joint account between 1999 and 2003. [28]

Without factoring in interest, an issue to which I will return, the effect of the Claimant's testimony, which I accept, is that by the end of 2003, about $18,800 was owed by the parties to the Respondent's parents ($48,250 in loans less $29,450 in repayments). [29] The Respondent testified that these loans have not been forgiven by his parents and that repayment is expected. While there was no written agreement documenting these loans, the Respondent testified that there was a verbal agreement between the parties and the Respondent's parents that the money would be paid back when the couple became more financially secure. The Claimant does not suggest otherwise. (b) Post-Separation Events and the Agreement Regarding the Dunster Property: 2002 - 2003 [30] As noted above, the parties separated in January 2002. The Respondent moved out of the house and into the blacksmith shop on the Dunster property. [31] The Claimant testified that following the separation she had difficulty getting work in Dunster which, at the time, had a population of about 300. In June 2002 she was able to get seasonal work for a few months as a live-in kitchen assistant at a lodge in the Cariboo Mountains. The children stayed with their grandparents as the Respondent was also employed - as a white water rafting guide - in the summer of 2002. The Claimant was rehired by the lodge in December 2002 and worked

until May 2003. She was rehired the following winter season. [32] The Claimant testified that following the separation she asked the Respondent for child and spousal support. According to the Claimant, the Respondent told her she was not entitled to support. [33] The Claimant testified that the Respondent left the Dunster property in April 2003 and went to live with his parents in Edmonton. During the 2003/2004 season in which the Claimant worked at the lodge, the children stayed with the Respondent in Edmonton. [34] The Claimant also testified that she never paid the Respondent child support for the years that Gaelan lived with him in Edmonton, (from 2003 onward with the exception of the summer months and the period between July 2008 and June 2009) noting that he never asked. She agreed that she never volunteered to do so. [35] In her examination-in-chief, the Claimant testified that she consulted with a lawyer in 2006. In cross-examination, the Claimant agreed that she consulted counsel as early as 2003 about enforcing the Respondent's spousal and child support obligations and again in 2008. [36] In July 2003, about seven months after the separation, the names of both parties and their respective one-quarter interests were registered on title to the Dunster property. Both parties testified that it was not important to them to attend to this matter prior to the

separation. [37] On August 29, 2003, about 20 months after the separation, the parties executed a handwritten agreement which was prepared by the Claimant. Neither of the parties received legal advice before signing the agreement. It reads: I, Alaina Chapman, am giving $20,000 to Cary Glenn for the following assets: (a) ¼ interest in the property Dl 7180 E ½ of SW ¼ in Dunster, British Columbia. (b) the house that is on the west side of the property, which I currently reside in. (c) 1992 Plymouth Voyager minivan purchased in 1998, December 29. Cary Glenn received this money on August 2, 2003. He agrees that $20,000 is the total amount owing for the assets a, b, and c. Cary Glenn and Alaina Chapman both agree that Alaina is now the sole owner of the assets a, b and c. [38] The agreement was signed by both parties on August 29, 2003. The Claimant testified that there were discussions between the parties before this agreement was executed. [39] The Claimant testified that the $20,000 payment made to the Respondent in August 2003 was for the purchase of his one-quarter share of the Dunster property. [40] She testified that this amount was derived on the basis of the 2003 Property Assessment which valued the property (land and buildings) at $78,800. A one-quarter share of this amount totals $19,700. She testified that their 1992 minivan was worth about $300 and that this was added

to the purchase price for the assets listed in the agreement to reach a total of $20,000. [41] The Claimant testified that following execution of this agreement, the Respondent contributed nothing towards the upkeep of the property nor did he make any contribution toward the payment of property taxes. [42] In cross-examination, the Claimant further testified that the $20,000 paid to the Respondent in August 2003 not only acquired his one-quarter interest in the property, but also retired her share of the debt owed to his parents. Clearly, the Claimant was mistaken when she gave this evidence. The payment was either to acquire the Respondent's one-quarter interest in the property or, as the Respondent suggests, retire her share of the debt owed to his parents. [43] The Claimant and Respondent engaged in an email exchange in the fall of 2004, more than a year after the execution of the agreement, about ownership of the property and a payment (or further payment) to the Respondent for his one-quarter share. [44] Specifically, on September 22, 2004 the Claimant emailed the Respondent advising that she would like to impose a deadline of the end of November 2004 for the parties to agree on the resolution of matrimonial matters including the "separation of assets". The Claimant further advised that if she was to give the Respondent any more money it would have to be that winter while

she was working. She proceeded to ask the Respondent the following questions: How much do you think your 1/4 share is worth? How much do you think the shop is worth? What do you want for your 1/4 share of the land and the shop? Are you willing to pay for an assessment? Do you think it is necessary? [45] While the language of the communication would suggest that the Claimant was responding to something initiated by the Respondent, there is no evidence before me to confirm this, nor do I have any email exchanges that predate the September 22, 2004 communication of the Claimant set out above. [46] On October 23, 2004 the Respondent replied: I just don't know how much to ask for the land. I never thought you personally would buy me out. I was thinking you might find someone else to be land partners with. There are always people looking to part of [sic] Dunster. That is why I haven't been able to come up with the price. [47] The Respondent also noted that at their present salary levels, it would be difficult for either one of them to pay much in child support. [48] In a reply email also dated October 23, 2004, the Claimant confirmed with the Respondent that, "Yes, it will be me that will buy you out because I don't want another land partner..." [49] When confronted with this email exchange in cross-examination, the Claimant had no explanation for why the parties would be engaging in

this dialogue if she had already acquired the Respondent's one-quarter interest in the property. She testified that she was "not sure", had "no idea", and did not know what she was thinking when this exchange occurred. She was adamant, however, that the $20,000 she had given to the Respondent the previous year was for his one-quarter interest in the property. She also testified that the Respondent never provided her with a figure representing an additional amount he wanted from her for the Dunster property. [50] For his part, the Respondent testified that the Claimant paid him $20,000 in August 2003 in satisfaction of her share of the loan they owed to his parents. He testified that the Claimant asked him before the agreement was drawn how much her share of the loan was. He testified that the Claimant drafted the agreement and that it was never discussed between them nor was it his understanding that the $20,000 she paid him was for his one-quarter interest in the land. [51] The Respondent was unable to provide any explanation as to why, if the $20,000 payment was made to retire debt the Claimant owed to his parents, this was not set out in the language of the agreement. Contrary to his earlier evidence, he then testified that his understanding of the agreement was that she would have the house and he would have the shop. [52] The Respondent also testified that he understood

the balance of the loan at the time the agreement was executed to be about $47,000. While I do not accept the Respondent's testimony on this point (it includes amounts I have not factored into the total amount of the loan and does not properly discount payments made against the loan), I mention it at this point because the effect of the Respondent's evidence is that he accepted the $20,000 payment as satisfaction of the Claimant's portion of the debt when, on his own evidence, the Claimant owed $23,500. When asked why he did so, the Respondent replied, "To be a nice guy". I do not accept as credible the Respondent's evidence on this point. [53] The Respondent testified that he gave the Claimant's $20,000 to his parents for deposit into their line of credit account. I am satisfied that the ATB financial statements for this account establish that on December 31, 2003, the $20,000 supplied by the Claimant was, in fact, deposited into the line of credit account against the debt that was then outstanding. [54] The Respondent testified that following the August 2003 agreement he thought he could use the land, consistent with his one-quarter interest, as a recreational property. [55] The Respondent testified that he cleared out most of his tools from the shop after he moved to Edmonton. This was confirmed by the Claimant. In cross-examination, he agreed that he has not contributed

anything toward taxes in relation to the Dunster property "for a while". When pressed as to whether he made any contribution toward property taxes in the past 10 years, the Respondent replied that he did not know. [56] The Respondent agreed that he has made no contribution to the maintenance of the property in the past 10 years. [57] The Respondent testified that following execution of the agreement he visited the property "a few times" for a weekend or a week at a time. He agreed in cross-examination that he has not visited the Dunster property since the summer of 2009. He then appeared to contradict himself by testifying that he has been back to the Dunster property "plenty of times" since 2004, including in 2010 when he brought Willow back to her mother. While some allowance needs to be made for the passage of time and the frailties associated with human memory, it is difficult to credit the Respondent's various accounts of how often he has visited the property since separation or to see it as anything other than a self-serving effort to demonstrate that his conduct is consistent with the conduct of someone who regards himself as having a continuing ownership interest in the property. [58] The Respondent testified that in the fall of 2004 the Claimant sent him the email asking how much he thought his one-quarter share of the property was worth. He testified that he had no

recollection of advising the Claimant before this email exchange occurred that he wanted to be bought out. [59] To muddy the waters further, the parties engaged in a further email exchange, potentially relevant to ownership of the Dunster property, in January 2008. [60] In the context of addressing outstanding matrimonial matters, the Respondent advised the Claimant that, "We've already dealt with the property [and] that is a big issue for most people." The Claimant replied, "I am still confused. We have already figured out the property? That part confuses me. I know I gave you $20,000. That is as far as we have figured out the property, there was no other agreement other then [sic] the money I gave you for the land." The Respondent testified that he wrote this because the property had been dealt with - each of them owned a one-quarter share and the Claimant had given him money to retire her share of the debt owed to his parents. [61] The Respondent testified that at no point until the commencement of legal proceedings did the Claimant suggest to him that he did not own a one-quarter interest in the Dunster property. [62] The Respondent acknowledged that no child support was paid by him until 2008. He testified that the Claimant never asked him to pay spousal or child support at any time between 2002 and 2008. He said that the understanding between the parties with respect to

child support in the years between 2002 and 2008 was that neither of them was obliged to pay. He said that the Claimant never paid him any child support money between 2002 and 2008 and, consistent with their agreement, he never asked her to do so. He testified that the first notice he received that spousal or child support was being sought was when proceedings were commenced in May 2008. I do not accept the Respondent's evidence on this point. I accept the Claimant's evidence that she consulted with a lawyer in 2003 and again in 2006 to the end of enforcing the Respondent's spousal and child support obligations and that she communicated her demands to the Respondent. Given her financial situation at the time, it defies common sense to believe that she would not have done so. [63] The Respondent testified that when he left the property in 2003, the hardwood floors in the house were finished in a sunburst pattern and the house had been painted. Once again, I do not accept the Respondent's evidence on this point. Christopher Chapman, who gave his evidence in a very straightforward and, in my view, unbiased fashion despite his relationship with the Claimant, testified that following the separation of the parties in 2002 and 2003, the house was habitable but rough. No finishing work, including painting, had been done. The floors were just plywood. Hardwood floors had not yet been

laid. He testified, as did the Claimant, that hardwood floors were subsequently installed in the house by the Claimant in a sunburst pattern. I accept Christopher Chapman's evidence on this point and reject the evidence of the Respondent. My rejection of the Respondent's evidence on this point is another factor that undermines his overall credibility. [64] Despite the fact that the Respondent has visited the Dunster property a few times since 2003, he testified that he has not been allowed to retrieve his tools from the blacksmith shop, including tools that belonged to his grandfather and have sentimental value. He testified that he has repeatedly asked the Claimant to return these tools to him but that she has refused to do so. The Respondent also provided alternative explanations for not recovering his tools from the shop. He said at one point that he has not had access to a truck to retrieve the tools. At another point, when asked why he did not pick up the tools on an earlier trip, the Respondent replied that he had not thought of it. The Respondent then offered that the tools were locked up in the shop. [65] While the order of this Court will include a provision requiring that the Claimant return to the Respondent any tools associated with his former trade as a blacksmith, including drills and other tools belonging to his grandfather, it is difficult to credit the

Respondent's ever-changing accounts of why it is he has not yet retrieved the tools he says are still in the shop. [66] As a footnote, I am satisfied on all the evidence that the Claimant undertook substantial improvements of the property in 2003 and 2010, including a 500 square foot addition to the house and the installation of electricity and running water. The Claimant borrowed heavily to make these improvements which cost her about $44,000. Her efforts have taken the house from one which was merely habitable upon separation to one which reflects craftsmanship and pride of ownership. The Respondent did not contribute to these improvements. [67] It is my understanding that the Dunster property currently has an assessed value of approximately $154,000. (c) The Employment and Income of the Parties Following Separation [68] As noted above, the Claimant worked seasonally as a kitchen assistant in a lodge in the Cariboo mountains in the years between 2002 and 2004. She worked as a waitress in the summer of 2003 and full time between the summer of 2004 and spring of 2005. In April 2005 the Claimant got work for three months as a cook in a tree planting camp near Princeton, B.C. Dakotah lived with the Claimant's cousin during this period and she paid her cousin $250 per month in child support. Gaelen and Willow lived with the Respondent in Edmonton. [69] In the summer of 2005, the

Claimant moved to Vancouver to begin a three-year, full-time course to become a Registered Massage Therapist. She received a substantial yearly government grant, in the range of $34,000, which covered her rent, food, tuition and books. [70] The Claimant testified that she had discussions with the Respondent as early as 2003 and again when she started her schooling in 2005, about his obligation to pay spousal and child support. As noted above, she admitted seeing a lawyer about this as early as 2003. [71] In 2005 (the year the Claimant began training as a Registered Massage Therapist) her net income totalled $27,983 which consisted of employment earnings and grant money she received to pursue her education. In 2006, the Claimant reported an income of $36,615 consisting entirely of grant monies she received to pursue her education. In 2007, she reported income of $35,147 which again consisted of educational grant money. [72] In an email to the Respondent dated April 1, 2008, the Claimant advised him that her income for the years 2005, 2006 and 2007 was $22,044, $22,970 and $24,331, respectively. The Claimant explained that the discrepancy is accounted for by the fact that she deducted from the yearly income amount reported to the Respondent the nearly $12,000 in tuition she paid in each of those years from the grant money she was receiving. [73] Following her graduation in 2008,

the Claimant worked as a Registered Massage Therapist in the Lower Mainland from September 2008 until she moved back to Dunster in June 2009. [74] The Claimant testified that the Respondent started paying child support for Dakotah and Gaelan in September 2008. She agreed in cross-examination that she never gave the Respondent her own income information until April 2008. She testified that he never asked for her income information and she never asked him to share his income information with her until just before these proceedings were commenced. [75] In June 2009, the Claimant started her own business in Valemount, B.C. about 45 minutes away from her home. She rented a room and, for two days a week, worked as a Registered Massage Therapist in a medical clinic. Beginning in October 2010, the Claimant also worked one or two days a week in a medical clinic in McBride, B.C. [76] The Claimant reported net income from self-employment in 2008 of $21,256. In 2009 she reported net income of $17,710. [77] On May 23, 2012 the Claimant took what she described as a leave of absence from her practice in Valemount and McBride to pursue a locum in Blind Bay, B.C. Before leaving, she placed an advertisement in a local newspaper in an effort to find a temporary replacement for her Valemount and McBride practices. The advertisement describes the schedule as always being fully booked, four days a

week. [78] The Claimant testified that before accepting the locum in Blind Bay, she worked three or four days a week and saw an average of five clients a day at $60 per hour. She agreed that this would represent minimum gross income of $900 per week and a maximum gross income of $1,200 per week. Accordingly, if the Claimant worked 48 weeks per year, three days a week with five appointments per day at $60 per hour, her gross income would be $43,200. If she worked four days a week, with five appointments per day, her gross income would be $57,600. [79] The Claimant's financial statements do not support her evidence on this point. In 2011, she declared gross business income of $32,000. In 2010, she declared gross business income of $22,000. Net of her business expenses, the Claimant says she earned $16,000 in 2011 and $13,000 in 2010, well below the minimum wage. I agree with the position of the Respondent's counsel that this discrepancy can only be accounted for in one of two ways: (1) the Claimant has earned cash under the table and not declared her full income; or (2) the Claimant, who is healthy, is deliberately under-employed in the sense that she is choosing to work and earn less than she is capable of earning. [80] The Claimant was, at the time of the trial, engaged to be married and living with her fiancé in Sorrento, B.C. Her fiancé works as a mechanic at a Toyota car

dealership. He makes about $40,000 a year. The Claimant appears to be living with him rent free while working as an RMT on a locum in Blind Bay. [81] The Respondent testified that from 2003 to 2006 he worked as a full-time employee of Mountain Equipment Co-op in Edmonton. At the end of 2006, the Respondent secured a better paying job at Epcor Utilities. [82] The Respondent reported income in 2004 of $23,229. In 2005, the Respondent reported income of $19,810. In 2006, the Respondent reported income of $27,972. In 2007, he reported income of $46,315. In 2008, the Respondent's income rose to $52,370. [83] The Respondent testified that it was the mutual understanding of the parties in the years between 2002 and 2008 that neither would pay child support. He testified that the Claimant never asked him for child or spousal support during those years. Further, she never paid him child support and he never asked for it. He testified that he covered all of the expenses of the children when they were in his care and that she did the same when they were in her care. He testified that they shared costs associated with facilitating access. [84] The Respondent testified that the parties only began discussing child support in 2008 when proceedings were commenced. [85] The Respondent agreed that he started making child support payments in September, 2008 for Dakotah and Willow. By January,

2010 he appears to have been paying $959 a month in child support. He testified that he was paying less than that in 2008. He testified that those payments decreased when Dakotah reach the age of majority. He testified that his child support payments for Willow dropped to about $590 per month. [86] The Respondent currently makes just under $72,000 a year. He resides in a house owned by his parents in Edmonton. He pays them $1,000 a month in rent. It is his understanding that a portion of his rent money is applied to the outstanding debt. The documentary evidence would suggest that there has been very little reduction of the debt since the $20,000 supplied by the Claimant was applied to the loan at the end of 2003. (d) The Living Arrangements of the Children Following Separation [87] The evidence establishes that since the separation the children have lived with both parties on a roughly equal basis. [88] Willow resided primarily with the Claimant for the 2009/2010 and 2010/2011 school years, with holidays being equally shared. Willow resided with the Respondent for the 2011/2012 school year and is residing with the Respondent for the 2012/2013 school year, with holidays being equally shared. [89] I will make only one other observation relevant to the disposition of this matter. On September 4, 2009, Dickson, J. ordered that the Respondent return Willow to the physical custody

of the Claimant and forthwith pay to the Claimant costs in relation to that application. For reasons that are not clear to me, those costs, totalling $4,423.93, remain outstanding. C. Discussion (a) The Dunster Property [90] I will address first what I consider to be the most contentious part of this litigation - the effect of the agreement of August 29, 2003 on the ownership interest of the parties in the Dunster property. [91] I have come to the conclusion, despite the Respondent's testimony to the contrary, that it was the intention of both parties that the Claimant would acquire the Respondent's one-quarter ownership interest in the Dunster property for $20,000. I reject the Respondent's evidence that the $20,000 paid to him was in satisfaction (or partial satisfaction) of the Claimant's share of the debt owed to the Respondent's parents. [92] I have reached this conclusion for the reasons summarized below: · The agreement is expressly stated to be for the acquisition of "assets". Had it been the intention of the parties to exchange this money in order to retire debt, it is reasonable to suppose that this would have been set out in the agreement. The agreement makes no mention of the payment of money having anything to do with the retirement of debt. By its plain terms, the agreement contemplated an asset acquisition and this must have been known to both parties; · The

agreement reflects that in consideration of the $20,000 payment, the Respondent agrees that the Claimant is now the sole owner of the assets set out therein. The language of the agreement is consistent with an asset transfer and inconsistent with any other construction, including one which would interpret the agreement as being made to retire debt; · The agreement enumerates the assets being acquired. Had it been the intention of the parties to exchange this money to enable the Claimant to retire her share of the debt owed to the Respondent's parents, there would have been no need to particularize the assets being acquired; · The agreement covers the acquisition of assets I have found were not related to the debt owed to the Respondent's parents. I include here the 1992 Plymouth Voyager minivan. It makes no sense that the Claimant would advance funds for debt repayment in relation to property that was not acquired on the strength of a loan advance made by the Respondent's parents; · The agreement expressly says that in exchange for the assets enumerated, the money is being paid to the Respondent, Cary Glenn. The agreement does not say that this money is being paid by the Claimant to the Respondent's parents, much less to retire debt owed to them. That the money was paid directly by the Claimant to the Respondent takes on additional significance in this case because the evidence

demonstrates that until September 6, 2003 the parties were continuing to make loan repayments to the Respondent's parents from their joint account. The agreement reflects that this money exchanged hands on August 2, 2003. It is reasonable to suppose that had the $20,000 been intended for the Respondent's parents, it would have been paid to them directly or (as with all of the other repayments) transferred to them through the parties' joint account; · The money was not deposited into the line of credit account maintained by the Respondent's parents until months after it had been received. Had the Claimant been providing money to the Respondent for him to pass along to his parents in retirement of her share of the debt, it is reasonable to suppose that the money would have been applied to that purpose shortly after it was exchanged on August 2, 2003. I would reject the Respondent's contention that because the $20,000 was deposited into his parents' line of credit account close to six months later, an inference can safely be drawn that it represented a payment on the debt; · The Claimant's evidence with respect to how the purchase price for the Respondent's one-quarter interest in the Dunster property was derived makes sense. Based on the 2003 property assessment, the Respondent's one-quarter share in the property was, at that time, worth $19,700. In addition to the Respondent's

one-quarter share in the Dunster property, the Claimant was acquiring an old van which she testified, and I accept, was assigned a value of $300 for the purposes of the transaction. Accordingly, the total consideration for the exchange of all property contemplated by the agreement is $20,000. · The Respondent's evidence that the agreement represented an exchange of money for debt retirement makes no sense. On the Respondent's own evidence, the debt the parties owed to his parents in 2003 at the time of the execution of this agreement was $47,000. When asked why he would accept a $20,000 payment when the Claimant's share of the loan was, on his own testimony, $23,500, the only explanation the Respondent could offer was that he was doing so "to be a nice guy". As stated above, that explanation is not credible and I reject it. Both parties were struggling to make ends meet in 2003 and it defies common sense to believe that the Respondent would forgive any part of the indebtedness owed by the Claimant. Further, it is noteworthy that the Respondent has advanced the position at trial that the Claimant's payment of $20,000 did not fully retire the debt owed to his parents. He now takes the position that the total amount of the debt at the time of the agreement was $52,000 and that the Claimant owes a further $6,000 for her share of the debt. The position the Respondent advances at

trial cannot be squared with his contention that the $20,000 payment was accepted in satisfaction of the Claimant's portion of the debt. Finally, I would reject the Respondent's contention that his father "corroborates" his evidence that the Claimant paid him $20,000 in satisfaction of her remaining share of the debt. The Respondent's father has no independent knowledge of the purpose for which $20,000 exchanged hands between the parties and no admissible evidence to give on this point; · The Respondent admitted that he made no financial contributions to the maintenance of the property after 2003 and testified that he did not make any contribution toward property tax payments for "quite a while" and possibly as long as the 10 years that have passed since execution of the agreement. The Respondent's failure to do so is inconsistent with the conduct that would be expected of someone who considered himself to have a continuing ownership interest in the property, but consistent with the conduct of someone who knew he had disposed of that property interest; · The Respondent has, since 2003, made no use of the property consistent with that which would be expected of someone who considered himself to have a continuing ownership interest in the property. The Respondent testified that after execution of the agreement he thought he could continue to use the land as a recreational

property consistent with his one-quarter interest in it. He has not done so and I do not accept his evidence that it was his understanding that he could do so after the agreement. His failure to make any sort of regular use of the property, recreational or otherwise, is consistent only with the conduct of someone who knew they had disposed of their interest in that property. It is also noteworthy that one of the explanations the Respondent provided for being unable to retrieve his tools from the blacksmith shop is that he was "not allowed" to do so by the Claimant. Again, the explanation is inconsistent with someone who considered himself to have a continuing proprietary interest in the lands and premises after the August 2003 agreement; · The email exchange in the fall of 2004 is admittedly troubling. Interpreting the exchange is made more difficult by the fact that the context in which the exchange occurred is not clear. Having said that, I note that the Claimant was clear that if she was to give to the Respondent any more money, it would have to be in the winter while she was working. In the context in which it was said, it is implicit that money had already been paid by the Claimant to the Respondent (as opposed to his parents) for the property; · Finally, it is noteworthy that on January 30, 2008 the Respondent advised the Claimant that the property had already been dealt

with. It is most unlikely that the Respondent would have said this, some five years after separation, if he thought he continued to own a one-quarter share of the property. If that was the case, the property had not been "dealt with". [93] The cumulative assessment of these considerations leads me to the conclusion that in August 2003 the Claimant paid $20,000 to the Respondent for his one-quarter share of the Dunster property. Given that the property was assessed in 2003 at $78,800, I conclude that the Respondent received full and fair consideration for the purchase of his share of this family asset. I would note that the assessed value of the property in 2004 was even less, at $75,100. [94] In short, I am satisfied that both parties knew in August 2003 that the Claimant was acquiring for $20,000 the Respondent's one-quarter interest in the Dunster property. I am satisfied that neither party was mistaken about the effect of the agreement. In the result, the Respondent has no interest in the Dunster property. [95] While the Claimant acquired the Respondent's one-quarter ownership interest in the Dunster property in 2003, she is still liable to the Respondent's parents for her share of the debt. While the evidence establishes that the Respondent's parents have had to service this debt by making interest payments, there is no evidence that they agreed to shoulder the burden of

interest payments on the loan. It is only right that the Claimant pay to the Respondent's parents her share of the debt plus interest. [96] The only evidence I have before me is that interest was being charged on the ATB line of credit account held by the Respondent's parents at the rate of 4.5% between October 2002 and January 2004. I will adopt that interest rate in calculating the amount the Claimant owed the Respondent's parents at the end of 2003. [97] My calculations respecting the amount owing on the loan at the time of the separation are set out in "Appendix A" to these reasons. [98] In the result, I calculate the Claimant's share of the debt at the end of 2003 as being one-half of $35,380.14, or $17,690.07. [99] One additional matter needs to be factored into the calculation of the Claimant's share of the debt. The Respondent purchased blacksmith tools with the shop loan proceeds from his parents. Those tools are family assets. The Respondent took at least some of those tools with him when he left the Dunster property for Edmonton in 2003. For example, he testified that he sold a power hammer (which I understand to be a tool he used in the shop) for $1,000 in 2004 or 2005. The Respondent testified that his blacksmith tools would be worth about $4,000 to $5,000 in total. He testified that some of the tools were given to him and others he had before opening the shop.

There is little doubt, however, that some of the tools were purchased from the loan proceeds advanced by his parents. I think it fair to assume that about $4,000 of the $15,000 in loan monies advanced by the Respondent's parents was used to purchase tools for the shop. The Respondent has retained the benefit of these assets which should be divided equally between the parties. I would assign $2,000 to the Claimant's benefit and thereby reduce the amount of her debt to $15,690.07. [100] The Respondent argued that the Claimant owes a further $6,000 for her share of the debt as of the end of 2003. He calculates the joint debt owing as of that date as being approximately $52,000. He contends that the Claimant's share is $26,000 but given that she has already paid $20,000 on the debt, she owes a further $6,000. For the reasons given, I do not agree with the Respondent's position or his calculations. But quite apart from this, the Respondent does not suggest that the Claimant is responsible for interest on the debt from 2003 onwards. I have not, in these reasons, made any further allowance for interest since the end of 2003. (b) The Retroactive Child Support Claim [101] The Claimant seeks a retroactive child support order in relation to Dakotah and Willow for the period from 2005 until September 2008. It will be recalled that the Respondent commenced paying child support for these two

children in September, 2008. [102] In her Statement of Claim filed May 12, 2008, the Claimant seeks child support for Dakotah and Willow but made no express claim for retroactive child support. That the Claimant is seeking a retroactive child support order for Dakotah and Willow was, to the best of my knowledge, advanced for the first time at the outset of the trial on June 26, 2012. As set out in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 88, a retroactive child support order is only available so long as the child in question is a "child of the marriage" as defined in s. 2(1) of the Divorce Act when the application was made. At the outset of the trial, Dakotah had already reached the age of majority and was not a "child of the marriage" under the Divorce Act. The extent to which this holding in D.B.S. also applies to retroactive child support applications made under the Family Relations Act remains an unresolved issue: see Semancik v. Saunders, 2011 BCCA 264 at paras. 60-70. Neither counsel argued this jurisdictional point at trial. Insofar as the claim for retroactive child support in relation to Dakotah is concerned, I would prefer not to rest my judgment on the resolution of this issue. Fortunately, in light of the disposition I propose, it is unnecessary for me to resolve the question. [103] In assessing the Claimant's contention that she is entitled to

child support retroactive to December, 2006 I am guided by the general principles and specific considerations enumerated in D.B.S. at paras. 94-116. I recognize that none of those considerations are determinative and that it is incumbent upon the Court to take a holistic or cumulative view of the matter on the facts before me. [104] As noted in D.B.S., delay in seeking child support is not presumptively justifiable. The circumstances surrounding a recipient's failure to apply for child support earlier will be crucial in determining whether a retroactive award is justified: D.B.S. at para. 100. [105] In this case, the Claimant, upon whom the onus rests to establish the reasonableness of the delay, has advanced no reasonable excuse for why retroactive child support was not sought earlier. Although the Respondent advised her of his view that no support was payable, I cannot conclude that the Claimant's delay in bringing the matter forward is attributable to any blameworthy conduct on the part of the Respondent. Even adopting the most expansive view of "blameworthy conduct", the reality in this case is that the Claimant obtained legal advice in 2003, 2006, and 2008 but waited until trial to advance her claim for retroactive child support. By the Claimant's own admission, and despite obtaining legal advice, she did nothing to obtain financial information from the Respondent until

2008 and nothing to advance her claim until at least that date, if not the date set for trial. Her unexplained delay in seeking this relief militates against a retroactive award. Having said that, I recognize that this is just one factor in the analysis and that because child support is the right of the child, the Claimant's lack of diligence in seeking child support should be afforded less weight in this context than in considering the claim for retroactive spousal support. [106] Second, I am satisfied that there is no blameworthy conduct on the part of the Respondent that would tend to favour a retroactive award. There is no evidence that the Respondent hid his financial situation from the Claimant. Indeed, the evidence would appear to be that the Respondent recognized his obligation to provide child support on the increase of his income in 2007 and 2008 and sought to resolve the issue through direct communications with the Claimant. Those communications were not intimidating nor can they, in my view, properly be characterized as an effort on the part of the Respondent to knowingly avoid or diminish his support obligation to his children. [107] Third, in considering the appropriateness of a retroactive award in light of the past and present needs of the children, there is no evidence before me that either child needs retroactive support now or that their standard of living

suffered because they did not have it in the past. There is no evidence that either child underwent hardship in the past that might properly be compensated through a retroactive award. Dakotah is living independently in Vancouver. Willow is residing with the Respondent in Edmonton and there is no evidence before me that either of them have unmet needs. To borrow the language of Bastarache J. in D.B.S. (at para. 95) it is not clear to me that either child would get a discernible benefit from a retroactive award. In the case at bar, it is my view that the retroactive order would serve no real purpose other than to redistribute capital. [108] Finally, while I would not go so far as to say that a retroactive child support order would cause the Respondent hardship, I do note that Willow is living with him and that he was, at the time of the trial, hopeful of being able to assist Gaelan in pursuing a post-secondary education in photographic arts. The issue of hardship presents in this case as somewhat of a neutral factor. [109] Having considered all of the factors cumulatively, and giving the Claimant's lack of diligence in pursuing the claim the attenuated weight it deserves, I have come to the conclusion that a retroactive child support award is not appropriate. (c) The Retroactive Spousal Support Claim [110] The Claimant also seeks compensatory spousal support in the amount of

$500 per month, retroactive to December 2006, when the Respondent obtained remunerative employment, until May 2012 when she accepted work as a Registered Massage Therapist as a locum in Blind Bay, B.C. [111] While D.B.S. dealt with child as opposed to spousal support, considerations similar to those set out in the context of child support are also relevant in determining the suitability of a retroactive award of spousal support. Having said that, these factors must be assessed in light of the different objectives that underpin spousal as compared with child support: Reis v. Bucholtz, 2010 BCCA 115; Kerr v. Barnow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para.

207. As noted by Cromwell J. in Kerr v. Barnow at para. 208, given the different foundational principles upon which a claim for spousal support rests, concerns about factors such as delay generally carry more weight in relation to claims for retroactive spousal support. [112] I note that on the question of when a retroactive spousal support order should commence, Cromwell J. referred with apparent approval to MacKinnon v. MacKinnon (2005), 75 O.R. (3d) 175 (C.A.) which held that the date of the initiation of proceedings for spousal support is the usual or ordinary commencement date, absent a reason not to make the order effective as of that date. In this case, the claim for retroactive spousal support predates the initiation of proceedings by about 17 months. While I am satisfied that the Court retains a discretion to make an order for retroactive spousal support commencing on a date which predates the commencement of proceedings, neither of the parties address the appropriateness of doing so. Indeed, neither counsel made any reference to Kerr v. Barnow in the course of their submissions. [113] By way of introduction to this issue, the parties made a deliberate lifestyle choice in relocating to a rural area and living as simply as possible, supporting themselves and their family as necessary through seasonal work. While I accept that the Claimant shouldered the primary burden

of child rearing, both parties suffered economic disadvantages resulting from the choice they made in 1989 to move to Dunster. Those disadvantages were acceptable trade-offs to the parties at that point in their lives and were inherent in the lifestyle choice both of them made. The economic disadvantage both of them suffered in the years following separation is not so much attributable to the circumstances of the marriage or its breakdown, but to the lifestyle choice they pursued. This is evident in the struggle both parties had following the breakdown of the marriage to attain economic self-sufficiency. Neither enjoyed a lifestyle that was significantly more advantageous than the other. Neither emerged from the breakdown of the marriage with employable skills. Both had to pursue alternate careers; in the Claimant's case by retraining as a Registered Massage Therapist, and in the Respondent's case by getting a toehold in the labour force and gradually working his way up. At the same time, neither of the parties faced a post-separation standard of living that was substantially less than what they had during the marriage. The Respondent was able to achieve economic self-sufficiency about a year and a half before the Claimant. [114] In my view, there is no basis for awarding the Claimant $500 per month in spousal support retroactive to 2006. Even assuming that a retroactive award

could be made for the years preceding the institution of proceedings, calculations under the Spousal Support Advisory Guidelines (prepared by the Respondent's counsel but not objected to by the Claimant's counsel) which are based on the parties' incomes for the years 2006 - 2011 and take into account the parenting arrangements for those years, show that no spousal support would have been payable for 2006. Spousal support in 2007 would have amounted to $46 per month based on the mid-range level. No spousal support would have been payable in 2008. For the years 2009 and 2010, it is fair to impute income to the Claimant of $40,000 per year. On this basis, no spousal support would have been payable for those years. Imputing income to the Claimant of $45,000 in 2011 would result in a range of spousal support between $394 and $526 per month for that year. [115] I turn now to consider application of the D.B.S. factors, as modified to fit the claim for retroactive spousal support, to the circumstances of this case. [116] Once again, the Claimant has advanced no reasonable excuse for why spousal support for 2006 and 2007 was not sought earlier. It may be that she did not know that the Respondent's income had increased at the end of 2006 but she made no efforts to obtain financial information from him in a timely way despite obtaining the benefit of legal advice in 2006. [117] I am also

satisfied that there has been no blameworthy conduct on the part of the Respondent. Although the Respondent informed the Claimant at some point of his position that no spousal support was owed, he did nothing to discourage the Claimant from proceeding with an application for spousal support nor did he conceal assets or fail to disclose financial information when asked to do so. [118] In considering the needs of the Claimant at the time support should have been paid and at present, I note that there is little evidence that she underwent periods of post-separation hardship for which compensation by way of a retroactive award is warranted. Although I do not wish to underestimate the challenges the Claimant faced in retraining after the separation, she was supported in this endeavour by generous government grants. Since her graduation as an RMT, the Claimant has, no doubt as a consequence of a continuing lifestyle choice, deliberately pursued a path of under-employment. She could be making substantially more than she is. Further, she left her busy and relatively lucrative practice in the Dunster area in 2012 to accept what has turned out to be less remunerative work as a locum in Blind Bay. I have no doubt that she did so in order to live with her fiancé. She is now living with her fiancé and, imputing to her an income of $40,000, she is now living in a household with a combined

family income of about $80,000 per year. [119] Having said that, I accept that it took the Claimant slightly longer than it did the Respondent to attain economic self-sufficiency following this 15-year relationship. [120] Assessing all of these considerations in a cumulative and holistic way, I have come to the conclusion that the Respondent should pay spousal support only for the year 2011 at which time his obligation to support the Claimant will come to an end. I would fix the amount payable at $500 per month for a total of $6,000. This modest amount will impose no hardship on the Respondent. (d) The Pension Claim [121] The Claimant did not pursue this portion of the claim in her closing written or oral submissions. I would dismiss this portion of the claim. (e) Summary of the Decision [122] The interest of the Respondent in the Dunster property, more particularly described above, shall be vested in the Claimant free of any claim from the Respondent. [123] The Claimant shall pay to the Respondent for her share of the debt owed to the Respondent's parents the amount of $15,690.07. [124] The Respondent shall pay to the Claimant a lump sum total of $6,000 in spousal support for the year 2011 after which his obligation to support the Claimant shall be at an end. [125] The Respondent shall pay to the Claimant her costs of the application made before Dickson J. in 2009 totalling

$4,423.93. [126] With the agreement of the parties, there shall be a set-off of these amounts. In the result, the Claimant shall pay to the Respondent a total of $5,266.14. That payment shall be made within 60 days of the date of this judgment. [127] Finally, the Claimant shall return to the Respondent, or give the Respondent a reasonable opportunity to collect, on a date and time to be agreed upon between the parties, the following items: tools or equipment belonging to Patrick Glenn; tools or equipment that once belonged to the Respondent's grandfather; any remaining blacksmithing tools or equipment; the record collection (not including records that once belonged to the Claimant's father); and, the Christmas tree angel that belongs to the Respondent's parents. (f) Costs [128] With the benefit of knowing the disposition of the issues that arose in this case, I will provide the parties with a further opportunity to address me on the question of costs. I may be spoken to at 9:00 a.m. on a date convenient to the Court and to counsel and would direct counsel to liaise with Supreme Court Scheduling to fix a date for this purpose. "FITCH J."

APPENDIX A

YEAR DATE OF LOAN / AMOUNT BORROWED

PURPOSE OF LOAN PLUS 4.5% INTEREST

RUNNING TOTAL 1994 November - $26,250 To acquire a 1/2 interest in Dunster property (a 1/4 share each) 2 months @ 4.5% = $196.88 $26,446.88 1995 May - $15,000 To build and equip the blacksmith shop · $26,446.88 @ 4.5% for 4 months = $396.69 = $26,842.69 · $41,842.69 ($26,842.69 plus $15,000 @ 4.5% for 8 months = $1,255.28 = $43,097.97) $43,097.97 minus $900 paid back by Spiral Mountain Ironworks (SMI) = $42,197.97 1996 0 ¾ $1,898.91 $44,096.88 minus $8,000 paid back by SMI = $36,096.88 1997 0 ¾ $1,624.35 $37,721.23 minus $1,500 paid back by SMI = $36,221.23 1998 June - $7,000 For construction of the house · $36,221.23 @ 4.5% interest for 5 months = $679.15 = $36,900.38 · $43,900.38 ($36,900.38 plus $7,000 @ 4.5% interest for 7 months = $1,152.38 = $45,052.76) $45,052.76 1999 0 ¾ $2,027.37 $47,080.13 minus $1,500 paid back through the parties' joint account (JA) = $45,580.13 2000 0 ¾ $2,051.11 $47,631.24 minus $7,200 paid back through the parties' JA = $40,431.24 2001 0 ¾ $1,819.50 $42,250.64 minus $4,500 paid back through the parties' JA = $37,750.64 2002 0 ¾ $1,698.78 $39,449.42 minus $2,100 paid back through the parties' JA = $37,349.42 2003 0 ¾ $1,680.72 $39,030.14 minus $3,650 paid back through the parties' JA = $35,380.14