L.A.M v. F.B.M.

2022 BCSC 2187 L.A.M v. F.B.M. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.A.M v. F.B.M., 2022 BCSC 2187 Date: 20221214 Docket: E202393 Registry: Vancouver Between: L.A.M. Claimant And F.B.M. Respondent Corrected Judgment: The text of the judgment was corrected on the front page and at paragraphs 31, 33, and 222 on December 19, 2022. Before: The Honourable Madam Justice Tucker Reasons for Judgment The Claimant, appearing in person: L. M. The Respondent, appearing in person: F. M. Place and Dates of Trial: Vancouver, B.C. April 19-22, 2022 Place and Date of Judgment: Vancouver, B.C. December 14, 2022 Table of Contents I. Overview.. 4 II. Background Facts. 6 III. Disclosure and Credibility. 9 A. Disclosure. 9 B. Credibility. 12 IV. Issues. 15 V. Date of Separation.. 15 VI. Parenting Arrangements. 20 VII. Income. 24 A. The Claimant 25 B. The Respondent 25 VIII. Spousal Support. 33 IX. Child Support. 36 X. Property Issues. 39 A. Family Property and Family Debt 39 B. Single Financial Unit 41 C. Family Property. 42 Vehicles. 42 The Trailer & the Trailer Plan. 42 The Cube Van. 44 Business Assets - Tools and Accounts *4745 and *4752. 45 The North Vancouver Townhouse Deposits. 46 VanCity Kids Education Account *4913. 46 VanCity TFSA Account *8682. 46 VanCity RRSP Account *8800. 47 VanCity RESP Account *1741. 47 Dental Claim Reimbursement 47 Household Effects. 48 TD Chequing *3602 and TD Savings *0747. 49 D. Claimant's Request for Unequal Division of Family Property. 49 E. Family Debts. 49 RBC LOC *5161-001. 49 BMO LOC *491. 49 TD LOC *1649. 50 TD Visa *2792. 50 Costco Mastercard *3526. 50 VanCity Visa *7181. 50 F. Respondent's Request for Unequal Division of Family Debts. 51 The TD LOC.. 53 The Claimant's Spending in the Disputed Period. 53 The Claimant's Failure to Disclose Assets. 56 XI. DISPOSITION.. 57 Divorce. 57 Spousal Support 57 FLA Orders regarding Parenting. 57 FLA Orders regarding Child Support 59 FLA Orders regarding Division of Property. 60 [1] This is a family law dispute regarding parenting arrangements, child support, spousal support, and the division of property. The parties represented themselves at trial. I. Overview [2] The claimant was born in 1978, and the respondent was born in 1969. The claimant has two sons from a prior marriage: A., who was born in 1999, and B., who was born in March 2003 (ages 22 and 19, respectively, at time of trial). [3] The parties began to live together in a marriage-like relationship in August 2007. Their first child together, C., was born November 2008. They married on July 24, 2010. Their second child, E., was born in August 2011. C. and E. were 13 and 11, respectively, at the time of trial. [4] The date of separation is disputed, but it is agreed that the respondent moved out of the family residence on August 1, 2019. After August 1, 2019, the children were primarily residing with the claimant and the respondent paid child support in the amount of $1,250 per month. It is agreed that he also paid that amount in respect of July 2019. [5] The notice of family claim was filed on October 29, 2020. The respondent filed a response to claim and a counterclaim on December 3, 2020. The claimant did not file a response to counterclaim. At the outset of the legal proceedings, the claimant was represented by legal counsel. She filed notice of intention to act in person on March 11, 2022. The respondent represented himself throughout. [6] An order was made following a February 2, 2021 judicial case conference ("JCC Order"). That order included the following terms: 1. The Children will be primarily resident with the Claimant. 2. The Children will have parenting time with the Respondent as follows: (a) [B] will have parenting time with the Respondent on an ad hoc basis, having regard to [B]'s wishes and what is in his best interests; (b) [C] and [E] will have parenting time with the Respondent: (i) Every Wednesday from 5:00 P.M. until Thursday morning, when the Respondent drops [C] and [E] off at school; (ii) Alternating weekends beginning on Friday at 5:00 P.M. until Monday morning, when the Respondent drops [C] and [E] off at school. 5. The Respondent will pay to the Claimant the amount of $1,250 per month for the support of the Children, commencing March 1, 2021 and continuing on the first (1st) day of each and every month thereafter, for so long as the Children are eligible for support, or until further agreement of the parties or order of the Court. [7] As noted, parenting arrangements, child support and spousal support, and property division are in dispute. There is some agreement between the parties. The parties agree: to be divorced under the Divorce Act, R.S.C. 1985, c. 3 [DA]; to shared custody under the DA; to be joint guardians under the Family Law Act, S.B.C. 2011, c. 25 [FLA]; and to exercise shared parental responsibilities in accordance with FLA, s. 41. [8] The notice of family claim seeks orders regarding parenting arrangements, child support and spousal support under both the DA and FLA. Neither party made any submissions directed at which statute could or should apply to any issue. [9] Where a divorce is being sought, spousal support is frequently considered as corollary relief under the DA: Domirti v. Domirti, 2010 BCCA 472 at para. 7; K.R. v. J.R., 2022 BCSC 1856 at para. 345. I will address it under the DA, but the outcome here would be the same under the FLA in any event. [10] The parties have expressly agreed to guardianship and an allocation of parental responsibilities under the FLA. Following the recent amendments to the DA, the DA and FLA adopt a similar approach, as noted by Douglas J. in C.D.F.B. v. A.G.B, 2022 BCSC 511 at paras. 54-55. There is no conflict between the DA and the FLA with respect to the parenting orders sought here. Given the parties have agreed to certain matters based upon the FLA, I will make all of the parenting orders under the FLA. [11] The parties' basic position on the issues in dispute are as follows: · The respondent says they separated on May 1, 2018 (but remained residing under the same roof), while the claimant says they separated on August 1, 2019, when the respondent moved out. · The claimant essentially seeks to continue the JCC Order parenting time arrangement, while the respondent seeks a 40% allocation during the school year and equal holiday time. · The claimant seeks to have income imputed to the respondent for support purposes in excess of his taxable income. (The parties agree that child support guideline table amounts are appropriate and that B. ceased to be a child of the marriage in March 2022.) · The claimant seeks spousal support on both a compensatory and non-compensatory basis. The respondent says the claimant is not entitled to spousal support. · The claimant seeks an unequal division of property in her favour on the basis that the respondent disposed of certain family property for less than fair market value. · The respondent seeks an unequal division of property in his favour in light of debt incurred by the claimant. · The respondent also seeks to have the amount of $10,000 declared to be excluded property on the basis that it was a gift to him from his parents. II. Background Facts [12] The parties called themselves as witnesses. The claimant also called her sister and their father. The respondent called his mother and two long-standing friends. [13] The facts set out in this section were largely undisputed. To the extent there were disputes, I will resolve them as they arise in the narrative. [14] The parties met when the claimant was a sales associate at a General Paint store and the respondent was a store customer. They started dating in 2006. They began living together in a marriage-like relationship in August 2007, at which time the respondent moved into the North Vancouver townhouse the claimant was already living in with A. and B. [15] Both parties brought debt to the relationship. [16] The respondent was (and is) self-employed as an unincorporated contractor. He originally did residential and commercial painting work, but eventually moved into home renovation work as well. He did (and does) not have a book‑keeper, but his tax returns are prepared by an accountant. [17] During the relationship, the parties had only an informal financial arrangement wherein they largely contributed to funding the joint household in accordance with their respective incomes. Generally speaking, the rent was considered the respondent's responsibility, while the claimant's contribution was generally toward utilities and groceries. After moving in together, the parties continued to have individual bank accounts and credit cards, although in 2014, they obtained a joint line of credit from VanCity ("Joint LOC"). [18] The claimant continued to work part-time at General Paint after the parties began living together. She took a year-long maternity leave when C. was born and then returned part-time. The claimant's parents often assisted with the children when the claimant was at work. When E. was born, the claimant again took maternity leave and then again returned to her part-time position with General Paint. [19] After E. was born, the parties discussed whether the claimant should pursue a different line of work. The discussions were informed by the need for the claimant to work hours that would fit well with the schedules of the children, the respondent and the claimant's parents. It was resolved that the claimant would take a two-year part-time program to get a Special Assistant Teaching Certification, which would qualify her to work as a teacher's aide, and she enrolled while continuing to work part-time at General Paint. She attended evening and weekend classes at Capilano University over a two-year period. The respondent and the claimant's parents looked after the children as necessary so the claimant could attend classes and study. [20] In or about 2012, the respondent filed for personal bankruptcy. It is undisputed that the respondent had gambling losses and I infer that the related debts at least contributed to the bankruptcy. After filing, the respondent continued in the business of renovation work. The Joint LOC was taken out during the period of his bankruptcy. The respondent also had a credit card issued as a second card under the Costco Mastercard account in the claimant's name. The respondent testified that he was discharged from bankruptcy in or about December 2019. [21] In 2013, the claimant obtained her teacher's aide certification. She obtained a part-time position almost immediately with the North Vancouver School District (NVSD), which quickly transformed into a full-time permanent position. The claimant stayed in that position through October 2019, and then took a higher paying teacher's aide position at Mulgrave, a private school on the North Shore. [22] Once the claimant was working as a teacher's aide, her work schedule was closely aligned with the children's school schedule, giving her similar hours during the week and weekends and summers off. The respondent's work schedule extended to evenings and weekends. The claimant was primarily responsible for the children during their non-school time and dealt with matters such as medical and dental appointments, summer camps and summer activities. When the respondent was able, he also took the children to sports and out for activities, and he helped them get ready for bed. [23] The respondent took C. to work with him at times during the summer C. turned 12. C. did some basic work tasks for the work project. The respondent thought it would be good for C. to learn what was involved in a work project. This took place notwithstanding the claimant's view that it was not appropriate given C.'s age and resulted in a dispute about whether C. should be paid for doing work. [24] The parties agree that A. had ceased to be a child of the marriage before the respondent moved out on August 1, 2019. [25] All three children of the marriage - B., C. and E. - resided primarily with the claimant after August 1, 2019. [26] The respondent has paid $1,250 a month in child support since he moved out. (The payments continued under the JCC Order once it was made.) The parties agree the respondent also made a payment of $1,250 for the month of July (even though actually still residing in the townhouse that month). [27] After the respondent moved out, B. and the respondent arranged to spend time together between themselves and in accordance with B.'s wishes. The respondent has had time with C. and E. as under the JCC order. The respondent also sometimes has time with C. and E. after school or on professional development school days when it works out with his work schedule. [28] The respondent initially moved into a one-bedroom rental suite. In April 2020, the respondent moved into a two-bedroom rental suite located in the upper part of a house in North Vancouver. [29] The respondent's current apartment is within easy walking distance of C.'s school. However, at trial, the parties agreed that the respondent's apartment is too far from E.'s school for her to go to and from school without adult supervision. III. Disclosure and Credibility A. Disclosure [30] The JCC Order included a number of disclosure orders. These included a term requiring the claimant to produce, on or before February 28, 2021, a summary of all debts she was liable for as at August 1, 2007, and either supporting documents or proof that a request for those documents had been made to the appropriate third party. [31] Further disclosure orders were made at a January 25, 2022 trial management conference ("First TMC Order"). The clerk's notes show the First TMC Order included the following terms: 4. Ms. Winters shall follow up with the two financial institutions that have not yet responded, and provide a copy of those correspondences to [F.B.M.]. 9. DIRECTION: [F.B.M.] is to write a letter to Ms. Winters specifying what documents he is seeking and why. Ms. Winters is to respond to that letter within 7 days of receipt. (The parties were unable to agree on the wording for the First TMC Order and no order was ever entered.) [32] The claimant began to act for herself on March 11, 2022. [33] A second trial management conference was held on April 7, 2022, and further orders were made ("Second TMC Order"). Again, no order was entered. The clerk's notes for the Second TMC Order state: [F.B.M.] is going to write [L.A.M.] before 9am on April 11th, 2022 setting out what documents he's seeking and why. By April 15th, 2022 at 4:30pm [L.A.M.] will respond to that inquiry saying whether something has already been disclosed, or whether she agrees that she will disclose it, or whether she will not disclose it and the reason why. [34] On April 10, 2022, the respondent wrote further to the Second TMC Order listing various financial documents he was seeking ("Statements Request"). In addition to that letter, the respondent sent the claimant an email stating that he wanted the documents sought under the Statement Request in order to challenge her spending from May 1, 2018 onward. [35] The Statements Request sought: · all statements relating to the claimant's BMO line of credit ("BMO LOC") back to when the account was originally opened; · statements for the period from January 1, 2018 to September 1, 2019 in relation to seven specific bank accounts and credit card accounts: i. RBC line of credit ("RBC LOC"); ii. TD Chequing Account *3602 ("TD Chequing"); iii. TD Canada Trust Savings Account *0747 ("TD Savings"); iv. TD Canada Trust line of credit ("TD LOC"); v. Scotiabank Visa; vi. Capital One Mastercard ("Costco Mastercard"); vii. TD Canada Trust credit card ("TD Visa") ("collectively, the "Disputed Accounts"); and · The date the RBC LOC and TD LOC were established. [36] On April 11, 2022, the claimant wrote back that her list of documents already disclosed statements of account as at May 2018 and as at August 2019 for the TD LOC, Costco Mastercard, TD Visa and RBC LOC, and that she would be providing a new list of documents "soon". [37] To be clear, the claimant's disclosure consisted of the statements that showed the balance on May 2018 and again on August 2019, but no statements before, between or after those two snapshot dates. [38] She did provide some additional documents. On cross-examination, the claimant conceded that the only new documents she provided that were responsive to the Statements Request were some BMO LOC statements. [39] The claimant testified she did her best, but only had a matter of days to get the documents and that the respondent's "lack of preparedness was not [her] emergency". She asserted that the respondent should have sought the documents under the First TMC Order if they were important to his case. She did not describe any steps taken or any efforts made to try to satisfy the Statements Request. She did not claim that she wrote the respondent to advise that she would not be producing the requested documents. [40] It appears from para. 4 of the First TMC Order that attempts were made to obtain records relating to the claimant's debt status in 2007. Notably, the issue of 2007 records was not raised again in the Statements Request. [41] Although the respondent raised inadequate disclosure as an issue, he did not seek to have the trial adjourned. He argued, however, that the claimant's inadequate disclosure hampered his ability to: (1) establish the amount of debt she brought to the relationship in 2007; (2) distinguish between "actual family debt" and "exorbitant spending" by the claimant; and (3) show the amount of time the claimant was away from home between May 1, 2018 and August 1, 2019. [42] In the circumstances, I am satisfied that it would not be appropriate to draw an adverse inference regarding the amount of debt brought into the relationship by the claimant. There appears to have been effort made by claimant's counsel to obtain the relevant documents and there is no evidence the respondent raised the issue again after the First TMC Order. In any event, as set out below, I am satisfied that the evidence shows that the parties came, over the course of their relationship, to view and treat their individual personal debts as combined family debt. [43] As set out below, I am also satisfied that the documents sought under the Statements Request would not have been material to the determination of the separation date. [44] I am, however, satisfied that adverse inferences should be drawn from the claimant's failure to disclose the statements sought under the Statements Request for purposes of the division of property. That too is addressed below. B. Credibility [45] There are issues in this trial where credibility and reliability are important considerations. [46] The key elements involved in assessing credibility were summarized by Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398, aff'd 2012 BCCA 296, leave to appeal to SCC ref'd, 35006 (7 March 2013): [186] Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides. The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of [their] memory, the ability to resist the influence of interest to modify [their] recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes [their] testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally. Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time. [187] It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a 'stand alone' basis, followed by an analysis of whether the witness' story is inherently believable. Then, if the witness testimony has survived relatively intact, the testimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determine which version of events is the most consistent with the "preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions". I have found this approach useful. [Citations omitted.] [47] There is a need to consider reliability as well as credibility. While credibility is concerned with the veracity of a witness, reliability involves consideration of the accuracy of their testimony (e.g., their ability to observe, recall and recount): R. v. Khan, 2015 BCCA 320 at para. 44, leave to appeal to SCC ref'd, 36623 (21 September 2015). [48] In this case, I have found the quality of the testimony provided by the parties to vary in relation to subject matter. [49] Both parties were, in my view, generally credible and reliable on matters involving the children. Each of the parties' testimony was straightforward and each was prepared to make admissions that were against their interest, and to give the other party credit where they believed credit was due. While the parties have differing views on various parenting matters, I am satisfied that they are both genuinely attempting to put the children's best interests before their own and concerned with advancing the children's interests. [50] There are, however, matters on which I found their respective testimony unsatisfactory. [51] The respondent's testimony regarding the date of separation is problematic. I do not, however, consider it calculated to mislead, but reflective of personal feeling combined with lack of understanding about the law. As set out below, I find the respondent made genuine efforts to continue the relationship well beyond May 2018. In my view, the respondent, over time, came to the view that the claimant made no effort at all after May 2018, and now sees his own efforts as ill-considered and perhaps even naïve. It is with cynical hindsight that the respondent now describes the parties as having lived separate and apart under the same roof. That specific matter aside, however, I find the respondent generally credible and reliable, including with respect to his business and financial matters. He made reasonable concessions and admissions, including several quite unflattering to him, and his testimony was balanced and consistent with documentary evidence. [52] The claimant's evidence about separation matters is straightforward. She simply asserts that the parties had discussed separation and divorce before and then simply carried on as they were, and they did the same after their May 2018 discussion. As set out below, those facts are essentially correct. [53] The claimant's evidence regarding financial and property matters, however, left much to be desired. I am satisfied that she is unable to rise above self-interest in such matters. Her evidence was generally vague and of little assistance, and I am persuaded that it was deliberately so. I am also satisfied that her inadequate disclosure was directed to the same ends. IV. Issues [54] The issues needing to be addressed are: · The date of separation; · Parenting-time for C. and E.; · Income for support purposes; · Spousal support; · Child support; and · The Division of property. V. Date of Separation [55] Section 8(3) of the DA provides: (3) For the purposes of paragraph (2)(a), (a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other[.] [56] Section 3(4) of the FLA provides that: (4) For the purposes of this Act, (a) spouses may be separated despite continuing to live in the same residence, and (b) the court may consider, as evidence of separation, (i) communication, by one spouse to the other spouse, of an intention to separate permanently, and (ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently. [57] The relevant law was recently summarized by Kirchner J. in Donnell‑Vella v. Vella, 2021 BCSC 1953: [57] In S.A.H. v. I.B.L., 2018 BCSC 544 Justice Shergill reviewed the law applicable to determining the date of separation. From her review of the case law I take the following: · A physical separation is not necessary; parties can live in the same residence and still be considered separated (para.49); · The court may look at the pre- and post-separation behaviour of the parties (para. 49); · Intention is key to the analysis of a date of separation. It need not be a mutually shared intention; a unilateral abandonment of the matrimonial relationship is sufficient (para. 52, citing McGrail v. McGrail, 2016 BCSC 104 and Dhillon v. Dhillon (1998), 78 A.C.W.S. (3d) 963, [1998] B.C.J. No. 823 (C.A.)); and · Typically, the court's analysis "focuses on the generally accepted characteristics of marriage including the intention to remain married, having sexual involvement, carrying on activities in public, sharing financial resources and sharing significant family events" (para. 53, quoting Nearing v. Sauer, 2015 BCSC 58 at para. 56). [58] In Nearing v. Sauer, 2015 BCSC 58 at para. 56, Justice Fleming summarized the principles as follows: [56] Typically when the parties dispute the date of separation, the court's analysis focuses on the generally accepted characteristics of marriage including the intention to remain married, having sexual involvement, carrying on activities in public, sharing financial resources and sharing significant family events: Sachdeva [v. Sachdeva, 2013 BCSC 313] at para. 87. The court will also consider a range of other factors, including a clear statement by one of the parties of his or her desire to terminate the relationship. Sexual involvement, or lack thereof, is not conclusive: Newth v. Booth, 2011 BCSC 317. [58] While a shared mutual intention to separate is not required, the party wishing to separate must take some action consistent with that intention: Dhillon v. Dhillon, [1998] B.C.J. No. 823 at paras. 6-8, 1998 CanLII 4192 (C.A.); Nearing v. Sauer, 2015 BCSC 58 at para. 54. [59] The respondent went to see a lawyer on April 24, 2018. The law firm charge is shown on his credit card bill. The respondent testified that he went to obtain family law advice because he believed that issues were coming to a head. [60] The parties agree that on or about May 1, 2018, they at least discussed separation ("Discussion"). The respondent says it was more than separation, and that the claimant said that she wanted a divorce and that he agreed they should get one. The claimant says the Discussion was limited to separation and that she cannot recall exactly when they first began to discuss getting divorced. [61] The claimant testified that the parties had discussed separation and divorce on numerous earlier occasions, including in 2015 and 2016, but then simply carried on in the relationship. The respondent did not dispute that evidence. He himself described the relationship as having been "rocky" from the outset. [62] The respondent told a number of people, including all three of his witnesses, about the Discussion shortly after it occurred. After he told his mother, his mother met with the claimant to discuss the future of the parties' relationship. His mother testified that she got the impression that the claimant wasn't interested in working to resolve things. The respondent's friends both generally recalled the respondent telling them of the Discussion after it took place, and both said that they did not observe any subsequent improvement in the parties' relationship. [63] In or about May 18, 2018, the claimant bought a new vehicle, a used 2010 Acura. She paid for the car with funds, approximately $14,000, withdrawn from the BMO LOC in her name. The respondent says that he told the claimant that he would not be responsible for any debt acquired in buying the Acura because they were "separated but living under the same roof". The claimant recalls discussing the purchase with the respondent, but only that he said she needed to check for liens. [64] I accept the respondent's evidence that he told the claimant that he would not be responsible for the Acura debt. I also accept that he expressly tied that position to the then very recent Discussion. He would have had the general legal concepts in mind given his recent meeting with a lawyer. However, his having made such a statement does not establish that they were actually separated. To determine when the parties separated, we must look at what they said and did following the Discussion (including following the discussion about the Acura and the purchase of the Acura). [65] The parties continued to live together in the North Vancouver townhouse until August 1, 2019, at which time the respondent moved into an apartment. The dispute about date of separation centres on time between the May 1, 2018 Discussion and August 1, 2019 ("Disputed Period"). The respondent says they lived separate and apart during the Disputed Period; the claimant says they only separated on August 1, 2019, when the respondent moved out. [66] In July 2018, the lease on the North Vancouver townhouse came up for renewal. Both parties signed to renew the lease for another year. The respondent says that he did not want to sign, but that the claimant insisted that he needed to so the children had someplace to live. The claimant says she doesn't recall any such conversation. [67] However, the following facts about their life during the Disputed Period are not in dispute: · The parties did not tell the children they were separated, separating or no longer together as a couple; · The parties continued to share the same bedroom and bed; · The parties had sexual relations several times; · The claimant continued to do all the household laundry and other chores for the entire family, including the respondent; · The parties and the children continued to eat their meals together as a family; · The parties attended the children's school functions together; and · The parties took no steps to change or separate their finances. [68] I note that while the respondent told people about the Discussion, none of his witnesses indicated that he told them that the parties were taking steps to separate or that either was initiating divorce proceedings. The evidence of the respondent's witnesses suggests that, after being told about the Discussion, they were waiting to see what would happen next and whether the relationship would improve. The claimant's sister and father both testified that they became aware that the parties had separated when they were told the respondent was moving out. [69] The respondent testified that the claimant was often away from the family home during the Disputed Period, especially on weekends. He testified that he concluded that the claimant was seeing another man. The claimant denies being in another relationship, but concedes that she was away a significant amount of time. She says the deterioration of the relationship made spending time together steadily more difficult. The claimant's sister testified that she and the claimant went on multiple "girls' trips" during the Disputed Period. Thus, the fact that the claimant was often away during the Disputed Period was conceded. [70] While I accept that the claimant was often away, I find the way in which the parties conducted themselves during the Disputed Period to be more significant. The parties continued to hold themselves out as a couple and they continued to share a bedroom and bed. [71] It is notable that, although the respondent sought legal advice and says he used the term "separated but living under the same roof" in the May 2018 Acura discussion, he nonetheless took no concrete steps to effect a separation under the same roof. There was no change in terms of the parties' core household roles and responsibilities, in the usage of space within the four walls of their shared bedroom, or in any financial arrangements. For her part, the claimant, consistent with her assertion that she did not think they were separated, took no steps suggesting that they were. Further, this absence of action took place in a context where the parties had previously discussed separation and divorce and then simply lapsed back into a continuing, albeit "rocky", relationship. [72] It is also notable that the respondent, as he testified, wanted to stay together as a family for the benefit of the children. I find that notwithstanding the respondent's current assertion that the Discussion amounted to an agreement that the relationship was over and done, the respondent continued trying to make the relationship work after the Discussion. He appears to now regret that, but a retroactive separation cannot be constructed from regret. [73] The question, then, is when did one of the parties take an action consistent with a crystallized intention to separate. Due to the parties' litigation positions (i.e., that separation was either the date of the Discussion or the date the respondent moved out), there is little evidence before me regarding their conduct in the period between. [74] At some point, the respondent began selling off the family's dirt-bike collection. The respondent testified that the plaintiff suggested selling them because they were not being used. The respondent testified that after she made that suggestion, he came up with a plan ("Trailer Plan") whereby he would sell the bikes and the sales proceeds would go to the claimant and he, in turn, would retain the family travel trailer as his own property. However, it is unclear when the Trailer Plan was communicated to the claimant. Further, the evidence does not satisfy me that it was communicated in terms that made it clear that the Trailer Plan was an allocation of family property in furtherance of separation. [75] As there is no evidence on which a finding can be made with respect to any earlier date, I find that the parties separated on August 1, 2019. VI. Parenting Arrangements [76] As B. is over 19, the parties do not seek any orders in respect of him. [77] With regard to C. and E., the parties agree they are both guardians and agree to shared exercise of the parental responsibilities listed in FLA, s. 41. I am satisfied that these agreed upon orders are consistent with the best interests of the children. [78] The parties disagree on the allocation of parenting time. [79] The claimant seeks to have C. and E. continue to reside primarily with her. She notes that the respondent has no arrangements in place for after-school care for E. She says the JCC Order terms should continue with the exception of a variation providing the respondent with a second overnight (i.e., Wednesday and Thursday nights) every other week. She suggests that order be reviewed at the earlier of: (a) when the respondent gets a three-bedroom residence, or (b) when E. starts high school (Fall 2025). [80] The respondent sought 50/50 full-year parenting time in the counterclaim, but changed his position at trial to seek 40/60 during the school year. The change reflects his agreement that E.'s school is too far from his new apartment for her to go to and from school without adult supervision. While the respondent plans to set his work schedule around his parenting time, he does not believe he has enough flexibility to manage a 50/50 school year split. [81] The claimant agrees that the respondent is a good parent. Further, she does not take issue with the respondent's evidence that C. and E. ask to spend more time with him. However, she maintains that the respondent fails to prioritize their needs, citing his belief that it was appropriate for the children to share a bedroom when he had a one-bedroom apartment and his failure to obtain a three-bedroom place when he moved. She stresses that she has always been the children's primary caretaker. [82] Both parties expressed concern that the other's position on parenting-time might be influenced by the impact the allocation would have on child support. [83] Section 37 of the FLA makes the best interests of the child the sole consideration in making an order with respect to parenting arrangements. Section 37(2) sets out a non-exhaustive list of factors to be considered with respect to best interests, including: (a) the child's health and emotional well-being; (b) the child's views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the child's life; (d) the history of the child's care; (e) the child's need for stability, given the child's age and stage of development; (f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [84] There are no family violence issues or related proceedings here, and the parties have demonstrated a willingness and ability to cooperate with one another to advance the children's interests. Both parties are capable and interested parents and both have been involved in their care in the past. While the claimant did perform the bulk of daily care-taking while the parties were together, the respondent is willing and able to do more now that circumstances have changed. He has taken a "parenting after separation" course and is prepared and able to build his work schedule around the parenting time schedule. He has a well-established parental relationship with the children that is in their best interests to maintain. Again, the fact that the children want increased time with him is not disputed. [85] The evidence suggests that the claimant is more protective of the children, while the respondent is more inclined to try to foster maturity. However, the difference in their views is not marked and the respondent's view is, in my opinion, well within the range of what is reasonable. This is demonstrated, for example, by his agreement that E. would benefit from certain courses and activities that were recommended and his acceptance at trial that the distance between his new apartment is too far from E.'s school for her to go on her own. [86] The claimant submits that the respondent has turned down additional parenting time that she had offered in the past. I accept that the respondent's work rarely allowed him to take up what were generally last-minute offers. He has, on the other hand, consistently sought more pre-scheduled time with the children so he can structure his work around that schedule. [87] The respondent now lives in a two-bedroom unit that is part of a house and includes a yard. The children helped him pick it out. When they stay over, the children have a bedroom each and the respondent uses the living room, which has a convertible sofa. That is a workable arrangement. I do not agree with the claimant that it would be better to limit the children's time with the respondent until he obtains a three-bedroom home. [88] I find that a 40/60 (in favour of the claimant) parenting time allocation during the school year is appropriate until E. is able to go to and from school without adult supervision, at which time a 50/50 school year split will become appropriate. If there is dispute as to the point in time and arrangements under which it is appropriate for E. to go to and from school without adult supervision, the matter may be determined by application to court. [89] The children's vacation time will be allocated 50/50 between the parties effective immediately. [90] Neither party addressed a proposed parenting-time schedule. The parties are directed to attempt to establish a calendar schedule by agreement, but are at liberty to apply to have a schedule determined by the court in the event they are unable to agree. VII. Income [91] The Court has broad judicial discretion to impute income for child and spousal support purposes. The evidentiary burden is on the party seeking the imputation: Marquez v. Zapiola, 2013 BCCA 433 at paras. 36-38. [92] The following provisions from the Federal Child Support Guidelines, SOR/97‑175 [Guidelines] are relevant here: Calculation of annual income 16 Subject to sections 17 to 20, a spouse's annual income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III. Pattern of income 17(1) If the court is of the opinion that the determination of a spouse's annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse's income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. Imputing income 19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guideline; (f) the spouse has failed to provide income information when under a legal obligation to do so; (g) the spouse unreasonably deducts expenses from income; ... Reasonableness of expenses (2) For the purpose of paragraph 1(g), the reasonableness of an expense deduction is not governed by whether the deduction is permitted under the Income Tax Act. A. The Claimant [93] The claimant's income is uncontentious. According to her tax returns, her line 150 income is as follows: 2016 39,256.58 2017: 40,750.30 2018: 44,862.14 2019: 50,037.10 2020: 56,723.80 2021: 64,036.22 B. The Respondent [94] The respondent provided his tax records. The respondent's income tax returns show the following: Year Gross Business Profit Total business expenses: Business use of home expense: Net Business Income: Other Income Day Trading Losses + Expenses Total Income, Line 150 2016 73,519.57 (19,786.61) (6374.18) 47,358.78 565.27 N/A 47,924.05 2017 77,119.43 (35,063.57) (5870.00) 36,185.86 509.00 N/A 36,694.86 2018 109,207.33 (34,947.59) (5896.80) 68,362.94 580.69 N/A 68,943.63 2019 126,491.79 (32,654.82) (5145.00) 88,691.97 509.00 N/A 89,200.97 2020 67,510.85 (21,506.45) (4278.92) 41,725.48 6,509.00 (-13,598.12) 34,636.36 2021 76,896.24 (20,563.27) (5194.53) 51,138.44 509.00 (-18,348.20) 33,299.24 [95] The claimant takes issue with the respondent's declared income, gross business profit and his deductions. She does concede, however, that she knew little about the respondent's business affairs or finances during the relationship. [96] The respondent testified that he does not keep any form of ledgers for his renovation business. He provides his receipts and invoices to his accountants, relies on their calculations and takes their advice as to the deductions he can claim. He testified that his tax returns have never been questioned by the Canada Revenue Agency and that he has never asked or expected his accountants to falsify anything for his benefit. [97] The respondent testified that in response to claimant counsel's production requests for business financial statements and ledgers, the respondent asked his accountants (former and present) to provide any related documents in their possession, and he produced what they provided. The respondent had one accountant for the tax years 2017-2019, and then a different accountant for the tax years 2020 and forward. [98] The first accountant provided documents under a February 10, 2022 cover letter reading: As requested, I have taken copies of the working papers I generated to do the accounting for your self-employed business for 2017, 2018 and 2019. I will refer to these as the "First Worksheets". [99] The First Worksheets are relatively informal documents. It is not clear what they are intended to show nor why they were prepared. They have significant handwritten annotations. There is no suggestion that they are final documents. To the contrary, the annotations include comments such as, "What are these expenses?" and "Need details ". [100] A further package of documents was provided by the second accountant ("Second Worksheets"). The Second Worksheets share all the characteristics attributed above to the First Worksheets. [101] The respondent also produced his business invoices, including those for the year 2021 ("2021 Invoices"). The 2021 Invoices, also relatively informal, set out labour and management fees and materials costs. By the claimant's calculation, the 2021 Invoices indicate a total of $70,678 for labour and management fees, and $42,442 for expenses, for a total gross business income of $113,120. [102] The claimant contends that the Worksheets and 2021 Invoices are inconsistent with the numbers found in the respondent's tax records. On the basis of this alleged inconsistency, she contends that the respondent has "consistently underreported his gross business income and the cost of doing business, both during [the] marriage and following separation." [103] The respondent was unable to interpret or explain the Worksheets nor vouch for their accuracy. He agreed that his accountant's work would have been done based on documents and information he provided. [104] I am not prepared to draw any inferences about the accuracy of the respondent's reported income based on the Worksheets. The accountants were not called and the Worksheets are neither comprehensible nor reliable. There is also nothing on them that indicates the calculations set out are meant to correspond with tax years (e.g., the fact that a payment was recorded as received on January 15th does not mean it was paid with respect to work done or material provided in that same year). [105] The claimant also testified that the respondent has failed to declare cash payments from clients in the past. She says at some point during the marriage they discussed getting a mortgage to buy a home, and to create a record of higher income the respondent began declaring all of his income. [106] The respondent agreed that, at some time prior to 2017, he did make a conscious decision to declare all of his income. However, he testified that it was some time later that the parties discussed buying a home, and that the result of that conversation was a concerted effort to earn more by working extra hours, and this is what resulted in his years of higher income (2018 and 2019). I note that his evidence that he was working extra hours dovetails with the claimant's testimony that the respondent had been spending little time with the children because he was working in the evenings and on weekends. [107] With regard to the claimant's arguments based on the 2021 Invoices, her argument about irregularity rests not on a lack of correspondence between the 2021 Invoices and the respondent's 2021 tax records, so much as the fact that the respondent's first and second accountant took a different approach to gross business income. [108] As indicated, the respondent changed accountants between the 2019 and 2020 tax years. The two accountants deal with material costs passed through to the respondent's clients differently. [109] By way of background, the respondent testified that while he takes on an occasional "project", at least 90% of his work is done for an hourly labour rate with the client covering the material costs. The client generally provides a deposit to cover the materials needed. As the respondent performs the purchase and pick up, the client gets the benefit of the respondent's contractor discount with the retailer (and, presumably, paid for the time involved). The amount of material costs involved in any work he does depends on the type of work he gets (e.g., a renovation versus painting). The respondent testified that the type of work he gets varies from year to year, and that the work he got during COVID was less materials-centred. [110] The first accountant included materials costs as part of gross business income and then backed the materials costs out again as actual costs. The second accountant virtually excludes material costs from gross business income, effectively treating materials as though directly purchased by the client. [111] Again, neither accountant was called. In making observations about the approach taken, I am making no finding, nor even comment, on the suitability or propriety of either approach. However, if one takes the claimant's 2021 calculations based on the 2021 Invoices, the reported business income in the respondent's filed tax return approximates the labour and management fees. Similarly, the 2021 tax return shows costs deduction to gross business income of only approximately $2000, notwithstanding that the claimant calculates the 2021 Invoices as showing $42,442 in material costs. Thus, while the 2021 Invoices would have been treated differently by the first accountant in the calculation, the 2021 Invoices are consistent with the respondent's 2021 tax return as prepared by the second accountant. [112] The respondent testified that COVID impacted both the amount and type of work available to him in 2020 and 2021. There is no evidence to the contrary. Further, the respondent's mother testified that she and the respondent's father loaned the respondent $10,000 due to his inability to find enough work during the COVID pandemic. That loan is also supported by a signed loan agreement. [113] I agree with the claimant that the respondent's income in 2018 and 2019 markedly differs from that in 2020 and 2021. On the evidence I have accepted, however, the respondent worked extra hours in 2018 and 2019, and then had his work opportunities significantly reduced by COVID in 2020 and 2021. Given those factors, the marked difference in income does not give rise to an inference that the respondent under-reported his renovation business income in 2020 and 2021 in order to avoid his support obligations, as alleged by the claimant. [114] Further, the timing of the respondent's decreased income does not line up with the date of separation. The Discussion was in May 2018. The evidence is that the relationship continued to deteriorate - despite the respondent's efforts - and the respondent eventually came to the view that the claimant was not trying. Notwithstanding, the respondent worked hard in 2019, both in the lead up to and after the separation, and then declared his high earnings in his 2019 taxes even though the parties had separated. If the respondent intended to under-report his income to avoid paying support, it would have made sense to start earlier than 2020. [115] I am satisfied that the respondent's reported gross income from his renovation business is accurately represented by his 2018-2021 tax returns. [116] I turn now to the respondent's 2020 and 2021 day-trading losses and expenses. The respondent says he began day trading in 2020 and does it for a "few hours a week" outside of his renovation work hours. Rather than reporting his trading losses as capital losses, the respondent has designated himself a trader in a day trading business and deducted his losses and expenses from his renovation income. He denied the suggestion that he had missed any time performing renovation work as a result of his time spent trading. [117] The respondent does not seek to have his day-trading losses set off against his income for purposes of determining support income. He did not specifically refer to day-trading business expenses in stating that, but the concession would appear to logically follow. In any event, I am satisfied that his day-trading business expenses are not valid expense deductions for purposes of calculating his income for child support. The respondent has no training or qualifications, and the expenses are not supported by any evidence. [118] The losses and business expenses related to the respondent's day-trading will be added back to his income for support purposes, but no additional income will be imputed based on the time he spends on the activity. [119] The claimant challenges the amount of his claimed business expenses for determining income for support purposes. She accepts certain expenses, such those related to his vehicle and government obligations (e.g., WCB), but objects to the remainder as unjustified and/or unsupported. [120] The respondent submitted that his business expenses have all been accepted for income tax purposes. When s. 19(2) of the Guidelines was brought to his attention, he did not make any submissions beyond the testimony he gave in cross-examination regarding the basis for the claims. [121] The respondent testified that the "business use of home" expense is supported by his occasionally doing work at the kitchen table and storing some tools and files at his residence. I conclude that this is not a proper deduction for support purposes. [122] A review of the respondent's business expenses satisfies me they should be significantly discounted for support purposes. The amounts claimed in respect of his work vehicle appear to encompass its use as a personal vehicle. Deductions are claimed for office-related expenses without supporting evidence. His capital cost and tools and storage expense deductions are challenging to reconcile with his list of work tools and their age and value. There is a claimed storage expense relating to the family travel trailer. The deduction for meals and entertainment expenses is unsupported by any evidence of client development activity. I agree that the expenses claimed for work-related use of the truck and the government related expenses are valid expenses for support purposes. [123] The claimant submits that an averaging approach should be applied to determine the respondent's income given his recent reduction in income and her allegation that the respondent has manipulated his business revenues and expenses following separation: Ouellette v. Ouellette, 2012 BCCA 145 at paras. 66-67. She submits that the Court should use his 2017, 2018 and 2019 income to create a three-year average income of $118,841. However, the claimant has not persuaded me that the decline in the respondent's income post-separation is not a bona fide reflection of the impact of COVID and the fact he had been taking on extra hours in 2018 and 2019. [124] The day trading losses and expenses and the business use of home expenses should be added back into the respondent's 2019, 2020 and 2021 income. I find it appropriate to exclude the respondent's 2020 CERB benefits as a non‑recurring benefit. [125] The respondent's claimed renovation business expenses vary in proportion to the gross business profit in each of the relevant years. Based on my review of those expenses, I am satisfied that it is appropriate to discount them by half in each year for purposes of determining support income. [126] Taking the above in consideration, the respondent's adjusted income for retroactive support purposes works out as follows: Year Gross Renovation Business Profit: Accepted Business Expenses: Imputed Income for Support Purposes: 2018 109,207.33 (17,473.80) 91,733.53 2019 126,491.79 (16,327.41) 110,164.38 2020 67,510.85 (10,753.23) 56,757.62 2021 76,896.24 (10,281.64) 66,614.60 [127] I am satisfied, however, that the respondent's 2022 Guideline income (calculated based on the same approach taken above) should represent an increase over what he actually earned in 2021. Thus, I am going to calculate an interim imputed 2022 Guideline income for the respondent as an average of his income in 2019-2021, which results in an interim imputed 2022 Guideline income of 77,845.53. [128] As set out below under the heading of "Child Support", this number will be used to determine prospective child support payments below, but will be subject to review and retroactive adjustment once the parties are in a position to exchange their 2022 income tax records and supporting financial documents. VIII. Spousal Support [129] As above, I find it appropriate to apply the DA to address spousal support. That said, the result here would be the same under the FLA in any event. [130] Section 15.2(4) of the DA requires the court to consider "the condition, means, needs and other circumstances of each spouse" in making an order for spousal support. This includes consideration of the length of time the spouses cohabited, the functions performed by each during that time, and any order, agreement or arrangement relating to the support of either spouse. [131] Section 15.2(6) of the DA lists the objectives of spousal support: To recognize any advantages or disadvantages to spouse arising from the marriage or its breakdown; To apportion between the spouses any financial consequences arising from the care of a child; To relieve any economic hardship of a spouse arising from the marriage breakdown; and To promote self-sufficiency of each spouse within a reasonable period of time, in so far as practicable. [132] The court must also consider the condition, means, needs, and other circumstances of each spouse including the factors set out in s. 15.2(4). [133] The grounds for spousal support were summarized by Fleming J. in Jordan v. Jordan, 2022 BCSC 1564: [131] Although the compensatory and non-compensatory grounds for spousal support are animated by different statutory objectives and different models of marriage or spousal relationships, the cases recognize that many claims involve aspects of both. The underlying goals of compensatory and non-compensatory spousal support are the equitable sharing of the economic consequences of a spousal relationship or its breakdown and narrowing the gap between the needs and means of the spouses. The authorities recognize that marriage or a spousal relationship is a joint endeavour and the longer the relationship, the "greater will be the presumptive claim to an equal standard of living on dissolution": Moge v. Moge, [1992] 3 S.C.R. 813, 1992 CanLII 25 at para. 84. [132] Compensatory support is intended to provide redress for an economic disadvantage arising from the marriage or its breakdown (such as diminished earning capacity and lost career opportunities from taking on childcare responsibilities) or the conferral of an economic advantage upon the other spouse (such as enhanced earning capacity through career development): Chutter v. Chutter, 2008 BCCA 507 at para. 39. Either an economic disadvantage or an economic advantage may provide a basis for an award of compensatory spousal support. Both are not required. [133] Need alone may establish an entitlement to non-compensatory support. The concept of need, however, goes beyond the basic necessities of life and varies with the circumstances of the parties: Chutter at para. 55; H.C.F. v. D.T.F., 2017 BCSC 1226 at para. 196; and Loesch v. Walji, 2008 BCCA 214 at para. 39. The same is true for self-sufficiency. In longer marriages, both need and self-sufficiency are measured against the marital standard of living or the payor's post-separation standard of living: Chutter at para. 59; Hodgkinson v. Hodgkinson, 2006 BCCA 158 at paras. 68-69. [134] The claimant says her household role enabled the respondent to focus on and advance his career and increase his earning potential. She also asserts that she would have trained to be a teacher, rather than a teacher's aide, but for the expectation that she would continue as the children's primary care-taker, an expectation which restricted her to a career with work hours parallel to the children's school hours. I note that the latter point rests on an implied assertion that a teacher is required to spend materially more work hours at school than a teacher's aide. [135] While the claimant asserts a claim for non-compensatory support as well, she did not identify any particular hardship or provide much in the way of evidence about her current standard of living or about the marital standard. Rather, her claim for non-compensatory spousal support appears to implicitly rest on her position on the determination of the respondent's income. On the facts as I have found them, the claimant has secure employment and a significant employment income in comparison to the respondent's own. Her employer also has a mandatory RRSP program and matches all employee contributions. Given her work schedule, she has the ability to take summer employment in order to maximize her annual income. A claim for non-compensatory support has not been established. [136] Turning to compensatory support, the evidence does not establish that the claimant suffered any career disadvantage or other adverse financial consequences from her role in the relationship during the course of the marriage. The claimant came into the relationship with two young children and part-time retail employment. During the marriage, she completed a two-year certificate program and became qualified to work as a teacher's aide. She had immediate success in finding secure employment with a public employer and left that position voluntarily to obtain higher pay in the private sector. The claimant testified that the costs of the college program were paid with funds from the RBC LOC, and thus was obtained using family funds and with the support of the respondent (and her parents) who looked after the children to enable her to attend classes and study. The claimant's career was advanced significantly during the marriage and, notably, in a manner that she may well have been unable to pursue but for the financial and supportive framework of the marriage. [137] I also find that there is no air of reality to the claimant's assertion that she would have obtained a teaching degree instead of a teacher's aide certification but for her family responsibilities. First, there is no evidence that a teacher's work hours differ significantly from those of a teacher's aide. Further, the claimant's parents filled before or after work childcare gaps for her and would presumably have done the same in order to enable her to work teacher's work hours. Finally, there is no evidence that the claimant seriously considered pursuing a teaching degree or would have been accepted into a program had she applied. [138] Further, the respondent was a contractor when the parties began living together and he intends to continue to work as a self-employed contractor. He came to the relationship with basic skills and a basic set of tools and is leaving with the same. There is no evidence that the respondent has advanced in a career or established a book of business over the course of the marriage in way that has improved his basic ability to earn income. [139] The claimant has not established a basis for entitlement to spousal support, compensatory or non-compensatory. IX. Child Support [140] B. is over 18, graduated from high school in 2021 and was gainfully employed at the time of trial. The parties agree that, as of March 2022, B. ceased to be a child of the marriage. Thus, the child support owing up to the date of this decision calculates out as follows (on the basis that all of the children have been primarily resident with the claimant): 2019 August - December 2019 (5 months) @ 3 children 2018 imputed income: $91,733.53 ($1,840.76 per month) $9,203.80 2020 12 months @ 3 children 2019 imputed income: $110,164.38 ($2,153.79 per month) $25,845.48 2021 12 months @ 3 children 2020 imputed income: $56,757.62 ($1,158.00 per month) $13,896.00 2022 3 months @ 3 children 2021 imputed income: $66,614.60 ($1,355.41 per month) $4,066.23 2022 9 months @ 2 children 2021 imputed income: $66,614.60 ($1,033.59 per month) $9,302.31 Total Payable: ($62,313.82) Total Paid to Date: 41 months at $1,250 per month $51,250 Retroactive Child Support Owing: ($11,063.82) [141] There is no claim for retroactive s. 7 expenses. [142] From January 2023 forward, the parties will have shared custody for purposes of s. 9 of the Guidelines. That section provides: Shared custody 9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [143] The leading case on s. 9 is Contino v. Leonelli-Contino, 2005 SCC 63. In C.A.S. v. A.B.S., 2019 BCSC 948, Marchand J. (as he then was) summarized the core principles: [56] ... The key principles from Contino are: - The court must determine child support in accordance with the three listed factors in s. 9 once the 40% threshold is met; - The court must emphasize flexibility and fairness to ensure the economic reality and particular circumstances of each family are properly accounted for; - The three factors structure the exercise of the court's discretion but no factor prevails over the others; - The weight given to each factor varies with the particular facts of each case; - There is no presumption in favour of any particular award of child support, be that at, above or below the full Guidelines amount; - The preferable starting point is to determine the straight set-off amount of child support that each party would pay to the other under the Guidelines; - The court, however, has the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the child as she moves from one household to the other; - The court is to examine the budgets and actual expenditures of both parents in addressing the needs of the child, determine whether shared custody has resulted in increased costs globally and apportion these costs between the parents in accordance with their incomes; - Keeping in mind the objectives of the Guidelines to ensure a fair standard of support for children and fair contributions from both parents, the court has broad discretion to analyse the resources and needs of both the parents and the child; and - The court will look at the standard of living of the child in each household and the ability of each parent to absorb the costs associated with maintaining the appropriate standard of living in the circumstances. [144] Neither party made any submissions directed at these considerations, but having reviewed and considered them, I am satisfied that a straight set-off of the table amounts payable on Guideline incomes is appropriate here. [145] Staring January 2023, the parties will each pay child support based on their 2022 Guideline incomes. However, I note that the parties' 2022 incomes are not yet available. I intend to impute 2022 Guideline incomes to both parties, which will be subject to retroactive adjustment once the proper documentation is available. [146] For the claimant, I believe it is fair to use her 2021 income of $64,036.22 as her imputed income for child support, which results in a table amount of $993.57. [147] For the respondent, it would be unfair to use his 2021 income, given the impact of the COVID pandemic on the profitability of his business and the likelihood of further recovery. Accordingly, as set out above under "Income", I find it appropriate to use the average of his last three years of imputed income (2019-2021) to create a 2022 imputed income of $77,845.53. Based on this value, his table child support amount would be $1,208.02. [148] Therefore, the set off amount payable by the respondent to the claimant starting January 2023 is $214.45, payable by the respondent on the first of each month. [149] Once the parties have filed their 2022 tax returns and exchanged the appropriate financial documents, child support should be calculated using the claimant's actual 2022 Guideline income and the respondent's imputed income for support purposes using the same formula used to calculate his 2018-2021 imputed incomes in this decision. If the parties are unable to agree on the appropriate 2022 Guideline incomes to be used, or on the amount of any retroactive adjustment, they are at liberty to apply to have them determined by the court. [150] For purposes of prospective s. 7 expenses, starting January 2023, s. 7 expenses will be split 50/50 pending a determination of the parties' 2022 Guideline incomes. From determination of their 2022 Guidelines income and onward, they are to bear s. 7 expenses in relative proportion to their Guideline incomes. X. Property Issues A. Family Property and Family Debt [151] Section 81 of the FLA provides that, on separation, each spouse is presumptively entitled to an undivided half-interest in all family property as a tenant in common, and is equally responsible for family debt, regardless of their respective use of or contribution to that property and debt. [152] These property rights vest at the date of separation - here, August 1, 2019. "Family property" is defined in s. 84(1): Subject to section 85 [excluded property], family property is all real property and personal property as follows: (a) on the date the spouses separate, (i) property that is owned by at least one spouse, or (ii) a beneficial interest of at least one spouse in property; ... [153] Under s. 86 of the FLA, family debt is also largely determinable as of the date of separation: McGrail v. McGrail, 2016 BCSC 104 at para. 34. Section 86 reads: 86 Family debt includes all financial obligations incurred by a spouse (a) during the period beginning when the relationship between the spouses begins and ending when the spouses separate, and (b) after the date of separation, if incurred for the purpose of maintaining family property. [154] Accordingly, debt acquired during the relationship, whether or not for a family purpose, is family debt. [155] As already noted, both parties seek an unequal division of family property in their favour. Section 95 of the FLA allows the court to order an unequal division of family property only if equal division would be significantly unfair based on the considerations set out in s. 95(2), which include: (d) whether family debt was incurred in the normal course of the relationship between the spouses; (g) the fact that a spouse, other than a spouse acting in good faith, (i) substantially reduced the value of family property, or (ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse's interest in the property or family property to be defeated or adversely affected; (i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness. [156] Section 97 gives the court authority to make orders to effect division of family property. B. Single Financial Unit [157] The claimant agrees that she brought some debt into the relationship, but says she does not know how much. She says she also brought a vehicle to the relationship and that it was sold and the proceeds were put toward the purchase of the cube van (see below). The claimant alleges the respondent brought debt into the relationship as well, but that she doesn't know that amount either. [158] During the relationship, while the parties maintained separate bank accounts and credit cards, they both generally drew from available sources to contribute toward maintenance of the joint household. There is no evidence there was ever any understanding about what account or card was to be used for what purpose or what funds would be used to pay specific expenses or pay down specific debts. [159] The respondent testified that the 2014 Joint LOC was taken out for the specific purpose of consolidating and paying down debts in the claimant's name and that, thereafter, as between the parties, the respondent took responsibility for making the payments on the loan. In my view, this arrangement demonstrates that the parties treated the claimant's debt as family debt. [160] As already noted, the defendant went through a personal bankruptcy during the marriage (2012-2019). There is no evidence as to the specific debts that were extinguished through the bankruptcy and whether any debts related to the claimant that might be considered "family debt" were included or excluded. There is evidence that the respondent relied on the claimant's credit standing to some extent during the period of the bankruptcy (e.g., the Joint LOC, the Costco Mastercard). [161] In the circumstances, I conclude that both parties brought debt into the relationship, but that they operated the household as a joint endeavour without regard to which expenses were covered with what money and also effectively consolidated their debt by treating it as family debt. C. Family Property Vehicles [162] In her closing, the claimant sought an order that the parties each retain the vehicle in their own name: i.e., that she keep the Acura and the respondent keep his Dodge Ram truck. The respondent's position, which was not accepted, was that the Acura was not family property. The respondent did not specifically respond to the order sought by the claimant. [163] The Acura was purchased in May 2018 for approximately $14,000. In the respondent's Form F8 financial statement, he attributes a value of $18,000 to the truck. It is implicit in the claimant's position that she accepts the vehicles as of comparable value. As the respondent has attested the truck is worth more than the Acura, he cannot claim to be disadvantaged if the claimant's position is accepted. [164] The claimant will retain the Acura, free of any claims by the respondent. The respondent will retain the Dodge Ram truck, free of any claim by the claimant. The Trailer & the Trailer Plan [165] The claimant says she did not agree to the Trailer Plan when the respondent proposed it, but does not deny she was told of it. As the bikes were sold off, the respondent provided the claimant with a series of "bike cheques". The memo line on each identified, by manufacturer and/or model, what he had sold. The memo line on the final bike cheque, dated December 27, 2019, added: "plus $750.00 to make $10,000 in total". The claimant accepted and cashed the bike cheques. [166] The claimant also asserts that the dirt bikes were sold off by the respondent for less than fair market value. Again, her evidence of value consists of Kijiji internet searches that indicate a range of values based on model and condition. The respondent says he did internet research to determine values before listing the bikes and that they were all older models in poor condition that were already used when the family got them. He testified that for one of the bikes, the purchaser later demanded a partial refund in light of required repairs and he had agreed to make the refund. [167] The claimant points to the fact that one of the bikes was sold to a friend of the respondent. The bike was sold for $2000, but a lesser value was declared on the ownership transfer form. The respondent says his friend wanted to minimize the transfer tax the friend would need to pay, and notes that the corresponding bike cheque to the claimant was for the full $2000. [168] I accept that the respondent sold them for what was fair market value in light of their condition. He sold them over time (as opposed to just clearing them out), did pricing research on the internet and, with the exception of the bike sold to his friend, publicly advertised them for sale. Further, the Trailer Plan provided the respondent with motivation to realize as much as he could for the bikes. The respondent was prepared to pay out of pocket - and ultimately did pay out of pocket - to top up the sale proceeds to $10,000 under the Trailer Plan. Selling the bikes below market value would only have increased the money the respondent had to contribute out of pocket. [169] The claimant disputes the value of the 2008 "Keystone Passport" travel trailer. This is the same trailer the respondent valued at $10,000 when he came up with the Trailer Plan in mid-2019. [170] The parties paid $11,500 when they bought the trailer used in 2016. The respondent testified that the trailer was kept in storage and that when he went to look at it in the spring of 2021, he discovered it had leaked and suffered water damage while in storage. A photograph shows water damage along the wall and ceiling resulting in a significant "buckling" effect. It is not known when the water damage occurred. [171] The respondent testified that after he discovered the damage, he advertised the trailer for sale for $14,000, but received no interest from buyers. He subsequently lowered the listed price to $13,500 and ultimately accepted a $10,000 offer from the only interested buyer. He provided the bill of sale and transfer form evidencing a third-party sale for $10,000 on August 3, 2021. The bill of sale records that the trailer was water damaged at the time of viewing and at sale. [172] The claimant submits the trailer has a market value of $23,000, a value she says reflects increased buyer demand as a result of COVID. She provided some Autotrader internet sales listings for 2008 Keystone travel trailers. The listings include only two "Passport" model trailers. One, described as being in good condition and specifically as having "no leaks", is listed for $17,500, while the second is listed at $14,000, with no accompanying description of condition. [173] In 2019, the respondent valued the trailer at $10,000 for purposes of the Trailer Plan. That appears to have been a reasonable value for an undamaged trailer at the time. The advertisements provided by the claimant do indicate that used trailers subsequently increased in value as a result of COVID-related demand. That increase post-dated the parties' separation, but was in any event countermanded by the discovered water damage. [174] I accept $10,000 as a fair market value for the travel trailer at the time of separation on the assumption the leak did not then exist. I would also accept $10,000 as a fair post-COVID market value at the time of sale given that it was water damaged by then. [175] As it is undisputed that the respondent provided the claimant with $10,000 under the Trailer Plan, no further adjustment is warranted. The value of the dirt bikes and the trailer has already been properly distributed between the parties as family property. The Cube Van [176] The claimant also raises a cube van the respondent previously had for work purposes. [177] The respondent provided a mechanical repair company invoice from the spring of 2018 with respect to a 1996 white Ford E350 cube van. The invoice states that a repair would require complete disassembly of the engine and estimates the cost at $5,000-8,000 for labour alone, plus the cost of parts. The invoice cost for draining the engine and inspecting the engine itself amounted to $840. The respondent testified that it was not economical to repair the van at that cost given its age and condition, so he avoided the cost of towing by selling it as scrap for $300 without retaking possession from the repair company. [178] I accept the respondent's evidence on the point and find that signing the van over for $300 was a reasonable disposition in the circumstances. Business Assets - Tools and Accounts *4745 and *4752 [179] The respondent prepared a list of his work tools and an estimate of their current values (as of 2020) to a total of $3,950. His valuation was not seriously contested and I accept it as reasonable. [180] The respondent seeks to retain the tools. The tools will be retained by the respondent to the exclusion of any claims by the claimant. The claimant is entitled to $1975 in compensation for her interest in the tools as family property. [181] The claimant made claims against the respondent's VanCity business account *4745. The claimant's position is that the account had a balance of $17,773 as of August 2019 and that she is therefore entitled to 50% of that amount. The respondent's testimony, the account records, and the First and Second Worksheets, are all consistent with the respondent's business account being an operating account. There is no indication that capital has ever accumulated and been held in the account. Any funds that ultimately represent profit are eventually paid out to the respondent as income. The claimant has no claim against the respondent's business account *4745. [182] Similarly, the claimant has no claim against the respondent's VanCity GST account *4752. The North Vancouver Townhouse Deposits [183] The respondent testified that he paid the entirety of the security and pet deposits with respect to the rental of the North Vancouver townhouse, totalling $2150, and that he never obtained any repayment when he moved out and the claimant continued living there. [184] The claimant did not dispute the respondent's evidence that he paid the deposits for the townhouse. At the time he paid them, he would have paid them with family funds. On the other hand, there is no guarantee that the claimant will get a 100% refund on the pet deposit. [185] The respondent is entitled to an adjustment of $1000 with respect to his payment of the deposits. VanCity Kids Education Account *4913 [186] The VanCity account *4913 is held in the respondent's name. It is not a trust account. In testimony, the respondent simply described the funds in it as the "kids' money". There was a $600 withdrawal made by the respondent post-separation that the respondent testified he has not repaid. The evidence before me falls short of establishing that the funds in the account are held in trust. [187] The balance in the account on July 31, 2019 was $2906.44. The parties are entitled to $1453.22 each. VanCity TFSA Account *8682 [188] This account is in the respondent's name. It was opened in November 2017 with a $2000 contribution, with $1525 transferred out again in December 2017. There was no further activity in February 2018, at which time $10,000 was deposited. The balance in the account on July 31, 2019 was $10,595.03. [189] The respondent testified that the $10,000 was given to him as a gift by his parents. His mother testified that when she and the respondent's father sold their family home, they were pleased with the amount they obtained and decided to give each of their children $10,000. She testified the money was given solely to the respondent. The evidence as to the source of the funds was not disputed. The respondent's mother's testimony that it was a gift to the respondent alone was not challenged in cross-examination. While the claimant suggested to the respondent in cross-examination that they had agreed the money would be "put toward a mortgage", the respondent disagreed with that suggestion. [190] I am satisfied that the $10,000 was a gift to the respondent from his parents, and I am not satisfied there was any subsequent agreement, offer or intention to treat the funds as family property. [191] The $10,000 is excluded from family property as a gift under FLA, s. 85(1)(b.1). Thus, the claimant is entitled to half of the $595.03 from the account, or $297.50. VanCity RRSP Account *8800 [192] This account is in the respondent's name. The respondent agrees that it is family property. The balance in the account as of July 31, 2019 was $6,051.69. The claimant is entitled to $3,025.85. VanCity RESP Account *1741 [193] This account, held in the respondent's name, had a balance of $215.84 as of February 22, 2022. The respondent testified that the signature of both parties is required on the account. The money held by the respondent in this account is held in trust. Presumably, the parties will be able to reach mutual agreement on how to spend the relatively small amount in the account on the beneficiaries. Dental Claim Reimbursement [194] The respondent had dental work done in October 2019 while he was still covered as a dependent on the claimant's extended health benefits plan. He paid up front and submitted a claim form. The reimbursement payment was paid to the claimant as the policy holder. The respondent seeks payment of the $536.24 reimbursement. [195] The claimant did not dispute the respondent's evidence. The respondent is entitled to the amount that was reimbursed. The claimant is to pay the respondent $536.24. Household Effects [196] The respondent testified that when he moved out of the North Vancouver townhouse the only household items he took with him were a stereo and television he had before they lived together. He later retrieved a barbeque and some tupperware. The parties had purchased a new bed just prior to the Discussion. When the purchase proved unsatisfactory, it was exchanged. The respondent testified that the claimant picked out the replacement and this was part of the household items left behind when he moved out. This evidence was not challenged by the claimant. [197] The respondent testified that he also retrieved a gas leaf-blower and weed-eater from the townhouse, but replaced them with electric versions that the claimant could operate. [198] The respondent put into evidence his receipts for the beds and various other household items he purchased when he moved out. Not all of the receipts he provided are legible. In other instances, the amounts are visible, but it is not apparent what was purchased. Adding together the legible charges for products readily recognizable as basic housewares (e.g., beds, bedding, kitchen staples), I get a total of approximately $7,000. [199] Other than the bed described above, there was no evidence as to the household effects or their condition, but the household effects held by the family would have included furniture and housewares accumulated during the relationship. I am satisfied that the household would have, at the very least, included versions of the basic items purchased by the respondent post-separation. [200] I am satisfied that the respondent is entitled to something in lieu of his share of the household effects. While I accept that the $7,000 above was spent on items the parties would have held as family property, the respondent now has brand new versions. I award the respondent the amount of $3500 as compensation for his forfeiture of household effects. TD Chequing *3602 and TD Savings *0747 [201] These two accounts are listed as financial assets in the claimant's March 21, 2022 Form F8 financial statement. She lists the chequing account as having a negative balance ($895.29) and the savings account as having a balance of $248.82. [202] The respondent requested statements for these accounts under the Statements Request. The claimant did not disclose any statements in response. [203] These accounts are addressed as part of the respondent's application for an unequal distribution of property. D. Claimant's Request for Unequal Division of Family Property [204] The claimant sought an unequal division on the basis that the dirt bikes, travel trailer and cube van had been disposed of for less than market value. As I have concluded that fair market value was obtained by the respondent, there is no need to address the point further. E. Family Debts RBC LOC *5161-001 [205] The account is in the claimant's name. The balance owing as of May 1, 2018 was $11,742.74 and as of August 1, 2019 was $15,242.74. BMO LOC *491 [206] The account is in the claimant's name. The balance owing as of May 1, 2018 was zero and as of August 1, 2019 was $14,423.88. TD LOC *1649 [207] The account is in the claimant's name. The balance owing as of May 1, 2018 was $14,627.36 and as of August 1, 2019 was $14,606.64. TD Visa *2792 [208] The account is in the claimant's name. The balance owing as of May 1, 2018 was $2,437.36 and as of August 1, 2019 was $16,009.82. As I explain below, the claimant failed to provide testimony or disclose documentation explaining the rapid and significant accumulation of debt in this account. Costco Mastercard *3526 [209] As already noted, the parties each had a Costco Mastercard. The account statement shows the claimant's card as #3526 and the respondent's as #2524. The statement indicates separate transactions and payments. [210] The May 2018 bill indicates the last payment made to the account for the claimant's card was $1932, and shows her new balance owing as $22.87. For the respondent's card, it shows a last payment of $46.18, and the new balance owing of $235.46. The claimant's balance owing was $25.00 on August 1, 2019. [211] The August 2019 bill shows no activity on the respondent's #2524 card (consistent with his testimony that he paid his balance owing and returned his card to the claimant). VanCity Visa *7181 [212] This account is in the respondent's name. Although the claimant's submissions indicate there was a nominal balance of approximately $50 owing on this account on August 1, 2019, there is no statement of that date in evidence. F. Respondent's Request for Unequal Division of Family Debts [213] The respondent seeks an unequal division in his favour on the basis that the claimant accumulated excessive debt in the period between May 2018 and August 2019, including the purchase of the Acura with BMO LOC funds. [214] While not referred to in his counterclaim, the respondent also testified that the TD LOC was secretly obtained by the claimant, was never disclosed to him and that he ought not be responsible for it. [215] Section 95 provides a framework that permits an unequal division to be ordered to redress significant unfairness: Singh v. Singh, 2020 BCCA 21 at paras. 130-134 [Singh]. As noted in Singh, the significant unfairness standard is a high one: [133] In V.J.F. v. S.K.W., 2016 BCCA 186, Justice Newbury described s. 95 as requiring a high threshold of "significant unfairness" to depart from equal division: at para. 81. Other cases have reached similar conclusions about the high threshold necessary to reapportion assets under s. 95. In Khan v. Gilbert, 2019 BCCA 80, for example, Justice Fenlon noted that cases in which unequal contribution was found to reach the significantly unfair threshold have involved marked, prolonged, and intentional or unexplained disparities in contribution to family burdens: at para. 32. [134] In summary, it is clear that the Legislature intended the general rule of equal division to prevail unless persuasive reasons can be shown for a different result: Jaszczewska at para. 41. Reapportionment will require something objectively unjust, unreasonable, or unfair in some important or substantial sense. This is in contrast to the previous legislation where courts had discretion under s. 65 to reapportion property or debt where it would be simply "unfair" not to do so. The threshold for "significant unfairness" is high. There must be a real sense of injustice that would permeate the result if the court did not deviate from the presumptive equal division. [Emphasis added] [216] The relevant FLA provisions for purposes of the order sought by the respondent are s. 95(2)(c) and (i). [217] There is little law regarding s. 95(2)(c). In N.K. v. M.H., 2020 BCCA 121, the Court provided the following comments with respect to a trial judge's decision to apply the provision: [95] I have referred to the judge's conclusions regarding the family debt at para. 22 above. The framework to which she referred in her analysis on this point included, at para. 121 of the Reasons, the statement that: [121] Section 95 of the FLA provides the court with limited jurisdiction to reapportion family debt if equal division would be significantly unfair. This provision is "not an invitation to the parties to review every financial transaction that occurred during a marriage, to which one of the parties upon separation takes objection": J.S.R. v. P.K.R., 2017 BCSC 928 at para. 296. [96] After her review of the evidence on this issue, the judge noted that the parties' evidence "diverges significantly on the events leading up to the loan": Reasons at para. 128. In the result, she concluded as follows at paras. 136-138: [136] I find that this is a rare case where debt incurred during the course of the marriage should be reapportioned entirely to one of the spouses, Mr. H. [137] Section 95(2)(d) of the FLA allows the court to order an unequal division of family debt if equal division would be significantly unfair, having regard to whether the debt was "incurred in the normal course of the relationship between the spouses". [138] There is no question that the [line of credit], now sitting at just under $150,000, was incurred during the course of the marriage and qualifies as family debt. However, I find that the debt was taken out over the house for the purposes of an investment scheme that was entirely Mr. H's and not incurred in the normal course of the spousal relationship. This was not a debt that was incurred through mutual agreement or even forbearance, but as a result of the control that Mr. H had over Ms. K in this relationship. Finally, I find that Mr. H also has complete control over the repayment terms and the ultimate satisfaction of this debt, and has not included Ms. K or her counsel in the negotiations or legal proceedings involved in recovering the debt. It would be significantly unfair in all the circumstances to require Ms. K to be responsible for repayment of a debt that she did not willingly incur and which she is excluded from the process for recovering. [139] I therefore order that Mr. H is entirely responsible for repayment of the amounts owing on the LOC over the Surrey home in full. [97] The appellant argues that the judge erred in law in determining that the loan to Mr. H's friend "was not incurred in the normal course of the spousal relationship": Reasons at para. 138. He further submits that Ms. K's evidence on this issue "is simply not feasible". [98] On a review of the Reasons as a whole, it is clear that the judge exercised her discretion to reapportion the entire $150,000 family debt to Mr. H based on his conduct in securing the loan for an investment scheme that he had complete control over. As Ms. K has demonstrated, there was an evidentiary basis on the record for the judge to reach her conclusions on this issue. Furthermore, the judge's discretionary decision attracts significant deference on appeal. The TD LOC [218] The claimant obtained the TD LOC in July 2014. The records in evidence indicate that $4,471 was owing on it at the outset of 2017 and $14,711 was owing on it by the end of 2017. The respondent testified that the TD LOC was taken out without his knowledge. He alleges that the claimant obtained it right after the parties obtained the Joint LOC and used those funds to clear other debts in her name. [219] Even if the respondent's evidence and assertions are accepted, there is no evidence the TD LOC funds were spent on something other than family purposes. I have already found that the practice during the parties' relationship was that both parties contributed money for family purposes without any particular regard for which party, what source, or the particular purpose for which the contribution was required. In the circumstance, treating the TD LOC as family debt does not give rise to significant unfairness for purposes of s. 95. The Claimant's Spending in the Disputed Period [220] At this point, I return to the respondent's argument regarding the claimant's failure to disclose the documents sought under the Statements Request. [221] Section 5 of the FLA obliges the parties to provide "full and true information" to one another for the purpose of resolving their dispute. Supreme Court Family Rules, Rule 9-1 requires parties to list and produce documents and to respond to demands for documents. Section 212(1) of the FLA enables the court to make disclosure orders. Section 213 prescribes the consequences and remedies available to a court in the event of a failure to disclose in accordance with an order or obligations under the Rules. One of the listed alternatives is to "draw an inference that is adverse to the person". [222] Again, the Second TMC Order provided: [F.B.M.] is going to write [L.A.M.] before 9am on April 11th, 2022 setting out what documents he's seeking and why. By April 15th, 2022 at 4:30pm [L.A.M.] will respond to that inquiry saying whether something has already been disclosed, or whether she agrees that she will disclose it, or whether she will not disclose it and the reason why. [223] On April 10, 2022, the respondent sent the Statements Request. He also sent an email stating that he wanted the documents for trial in order to challenge her spending from May 1, 2018 onward. [224] The claimant neither provided the documents under the Statements Request nor wrote the respondent to advise that she would not. Thus, she did not provide disclosure in response to the demand and she did not otherwise comply with the order. The claimant asserted in testimony that she did her best, but did not describe any efforts undertaken to satisfy the Statements Request or comply with the terms of the Second TMC Order. [225] I do not accept the claimant's explanation for failing to disclose under the Statements Request. The documents sought were not from the distant past, but only a few years back. She had already obtained and produced the specific May 2018 and August 2019 statements she relied upon. All she had to do was take those same steps again. She not only did not write and advise that she was not producing the statements sought, as she was expressly obliged to do under the order, she wrote the respondent that she would be amending her document list "soon". In short, she did not disclose and she deprived the respondent of the opportunity to do anything about it in time for trial. [226] The debts that differ most markedly at end of the Disputed Period are the BMO LOC, the claimant's Costco Mastercard, the TD Visa and the RBC LOC: · The BMO LOC went from zero to the amount owing ($14,423.88) as a result of the Acura purchase. · The RBC LOC had $1000 withdrawn in July 2018 and $2500 withdrawn on December 10, 2018. The claimant testified that the historical debt on the RBC LOC included the costs incurred to obtain her teacher's aide certification. · The claimant provided only the vaguest of evidence about the purchases made with the TD Visa, stating that it was used for "family expenditures", and giving generic examples such as "entertainment" and "bills". Notwithstanding that the respondent had, by email, specifically advised the claimant that he was contesting her spending after May 2018, the claimant offered no explanation in her evidence for how and why this family debt had so dramatically increased during the Disputed Period. [227] The respondent contends that it is an aspect of the unfairness that the Acura purchase was within weeks of the Discussion and argues the claimant sought to avoid disclosing the full BMO LOC statements because it would reveal that she could have bought the car earlier, but waited until the Discussion in order to make him partially responsible for the debt. With respect, the inference would be just the opposite. If the claimant's timing for the Acura purchase was directed at ensuring it resulted in a family debt, the logical thing would have been to buy it before initiating a discussion about separating. [228] I do not consider it significantly unfair for the BMO LOC to be a shared debt. The respondent was aware of the purchase and the parties continued to live together in a marriage-like relationship, and continued to mutually fund the household as a unit, after the purchase. [229] With regard to the RBC LOC, the claimant did provide statements for the Disputed Period for this account. The only evidence before me regarding the historic debt is that the line was used to pay the costs of the claimant's college program, and I have relied on the fact that the claimant's education was paid for with family funds in dismissing the application for spousal support. Although the two sizable recent withdrawals raise questions, they were both relatively early on in the Disputed Period and the amounts, while significant, are not beyond the scope of normal summer vacation or holiday season family expenses. I do not consider it significantly unfair for the RBC LOC to be a shared debt. The situation is different with the claimant's TD Visa. The amount of the increased debt cries out for explanation and yet none at all was offered, neither by disclosure nor in testimony. The account statements sought under the Statements Request would have indicated the dates and nature of the charges (e.g., cash advances or luxury items). [230] I am satisfied that the fact that the account statements were not disclosed and no explanation was offered in testimony warrants an inference that the debt was incurred outside the normal course of the spousal relationship. In the circumstances, I am also satisfied that it is appropriate that it represents debt accumulated in anticipation of division of as family debt. Given these inferences, and considering the amount relative to the parties' finances, I am satisfied that the resulting unfairness meets the high standard required under s. 95. With regard to the claimant's TD Visa, the division of family debt is varied such that the respondent's responsibility is limited to 50% of the balance that was owing on that account as of May 1, 2018. [231] With regard to the family debts other than the TD Visa, the parties are each responsible for 50% of the balance owing as of August 1, 2019. The Claimant's Failure to Disclose Assets [232] The claimant has disclosed no statements at all regarding her TD Chequing and TD Savings accounts. For the reasons already outlined, I am satisfied it would be appropriate to draw an adverse inference. The logical inference is that the statements, if disclosed, would have revealed funds or the origins and times of questionable transfers or deposits. However, beyond the simple fact that the amount involved was sufficient to motivate non-disclosure, there is no basis for inferring an amount. [233] The court is not, however, limited to drawing an adverse inference. Under s. 230 the FLA, a court may order a party to pay up to $5,000 for failing to comply with a court order. I am satisfied that is the appropriate response here. [234] The claimant failed to comply with the Second TMC Order, an order directed at securing compliance with her disclosure obligations. She made no attempt to comply and expressed no remorse for failing to comply, essentially taking the position that her non-compliance was the respondent's problem. [235] Master Keighley's comments in Nelson v. Woodward, 2021 BCSC 1035, are decidedly apt here: [10] [Counsel] was at some pains to suggest that his client should be given a break, as a "first offender", who did not realize that he was leaving himself liable to a significant financial penalty for his failure to comply with the rules and orders. I respect the fact that the argument was made, and I know why it was made, but I do not give the respondent any such credit. He was fully aware of what his obligations as a litigant are. He has taken a careless and contemptuous attitude, frankly, to his obligations in this litigation, and he needs to know that there are penalties for such. [236] Further, the claimant's non-compliance was intended to, and did, interfere with the respondent's ability to make his case at trial. The amount ordered should reflect that. [237] Under FLA, s. 230(2)(b)(ii), the claimant is ordered to pay the respondent the amount of $4,000. XI. DISPOSITION Divorce [238] The orders made here result in reasonable arrangements for the support of the children and the parties satisfy the remaining divorce criteria. Subject to s. 12 of the DA, the claimant and the respondent are divorced from each other. The divorce is to take effect on the 31st day after the date of this order. Spousal Support [239] The claim for spousal support is dismissed. FLA Orders regarding Parenting [240] Pursuant to s. 39(1) of the FLA, each party is a guardian of C. and E. [241] The guardians will share equally all of the s. 41 parental responsibilities for C. and E. under s. 40(2) of the FLA. [242] Each party: · is obliged to advise the other of any matters of a significant nature affecting the children; · is obliged to discuss with the other party any significant decisions made concerning the children, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare, and to try to reach agreement on those decisions; and · has, if the parties are unable to agree on a significant decision despite their best efforts, the right to apply to court for directions under FLA, s. 49. [243] The following orders for parenting time with C. and E. are made under the FLA: · During school, the claimant will have 60% of the parenting time and the respondent will have 40% of the parenting time; · When the parties agree, or following application the court decides, that E. is able to go to and from school without adult supervision, the parties will share parenting time during school on a 50/50 basis; · The parties will share parenting time during breaks and vacations on a 50/50 basis effective immediately; · The parties are directed to make best efforts to establish a mutually agreed upon parenting time schedule in accordance with the above allocations; · If the parties are unable to agree upon a parenting time schedule, either may file an application to have the schedule determined by the court. FLA Orders regarding Child Support [244] As per the calculations set out in para. 140 of these reasons, the respondent is to pay the claimant $11,063.82 for retroactive child support. [245] Staring January 2023, the set off amount payable by the respondent to the claimant is equal to $214.45. [246] The amount of child support payable will be recalculated on June 1, 2023, based on the parties 2022 Guideline incomes, with the respondent's income being determined in the same manner as calculated for retroactive support above, and adjusted retroactively back to January 1, 2023. [247] If the parties are unable to agree on their 2022 Guideline incomes, or the retroactive adjustment for 2023, they are at liberty to apply to have them determined by the court. [248] The child support payments are to continue for as long as the children are eligible for support under the FLA or until further agreement of the parties or Court order. [249] For as long as the children are eligible to receive child support, the parties will exchange: (a) copies of their respective income tax returns for the previous year, including all attachments, not later than June 1 each year; (b) copies of any Notice of Assessment or Reassessment provided to them by Canada Revenue Agency, immediately upon receipt; and (c) the respondent will also provide the claimant with copies of his business invoices, ledgers, financial statements or equivalent. [250] The parties shall conduct a review of child support and the children's special or extraordinary expenses on an annual basis and payments and proportions shall be adjusted as necessary by June 1 of every year. FLA Orders regarding Division of Property [251] In accordance with my reasons found in paras. 151-237, to effectuate a fair division of family property, the respondent must pay the claimant: · the amount of $1,715.30, effecting an equal division of assets, and · the amount of $23,367.81 as compensation for his share of the family debt held in her name, effecting an unequal division of family debt. [252] The calculations relied on in coming to these values can be found in the following tables: Family Assets Respondent's Assets Claimant's Assets Asset Value to be Shared with Claimant Asset Value to be Shared with Respondent Work Tools $1,975.00 Dental Claim Reimbursement $536.24 VanCity Account *4913 $1,453.22 Townhouse Deposit $1,000 VanCity TFSA *8682 $297.52 Household Effects Reimbursement $3,500.00 VanCity RRSP*8800 $3,025.85 N/A N/A Total: $6,751.58 Total: $5,036.24 Family Debts in Claimant's Name Family Debt Value of Debt Value of Respondent's Share RBC LOC *5161-001 ($15,242.74) ($7,621.37) BMO LOC *491 ($14,423.88) ($7,211.94) Costo Mastercard *3526 ($25.00) ($12.50) TD Visa *2792 as of May 1, 2018 ($2,437.36) ($1,218.68) TD LOC *1649 ($14,606.64) ($7,303.32) Share owed by the Respondent: ($23,367.81) [253] For clarity, the first table includes only those assets that I have found to constitute family property. The second table includes all of the claimant's debts that I have found should be shared as family debt. I note that the respondent did not have any family debt in his name. [254] The claimant will retain the Acura, free of any claims by the respondent. The respondent will retain the Dodge Ram truck and his work tools, free of any claim by the claimant. Total [255] With respect to child support, the respondent owes the claimant retroactive child support in the amount of $11,063.82. With respect to the division of property, the respondent owes the claimant $25,083.15. Under FLA, s. 230(2)(b)(ii), the claimant is to pay the respondent $4,000. [256] As shown in the below chart, accounting for all three of the above, the respondent is to pay to the claimant the final amount of $32,146.97. Total Amount Owed to Claimant Property Division Total $25,083.15 Section 230(2)(b)(ii) Order ($4,000.00) Retroactive Child Support $11,063.82 Total $32,146.93 "Tucker J."