Fox v. Fox

2022 BCSC 139 Fox v. Fox

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fox v. Fox, 2022 BCSC 139 Date: 20220128 Docket: E191027 Registry: Vancouver Between: Karen Denise Fox Claimant And: Karl Kenneth Fox Respondent Corrected Judgment: The text of the judgment was corrected on the cover page and in the header of pages 2 through 75 on April 21, 2022. Before: The Honourable Madam Justice Adair Reasons for Judgment Counsel for the Claimant: N. Allen S. Stanislaus Counsel for the Respondent: M. Slay K. Lam Place and Date of Trial: Vancouver, B.C. January 11-14 and 18, 2021, August 9-13 and 16-20, 2021 Place and Date of Judgment: Vancouver, B.C. January 28, 2022 1. Introduction.. 2 2. Background. 3 3. Comments on the witnesses. 12 4. Property Division.. 17 (a) The framework under the FLA.. 18 (b) Ms. Fox's excluded property claim.. 20 (c) Real property. 24 (d) Bank accounts. 25 (e) RRSPs. 28 (f) Vehicles. 29 (g) Pensions. 30 (h) House and garage contents. 31 (i) Family debt 35 (j) Division and allocation of family property and family debt 37 5. Child support 51 6. Spousal support 60 7. Retroactive child and spousal support 61 8. Should Mr. Fox be ordered to pay a fine under FLA s. 213?. 65 9. Divorce. 70 10. Summary and disposition.. 71 1. Introduction [1] The claimant, Karen Fox, and the respondent, Karl Fox, were married on July 10, 1999. They have two children together, a son, who I will refer to as

"BF," and a daughter, who I will refer to as "LF." At the beginning of the trial in January 2021, the parties were able to settle all matters relating to the parenting of their children, excluding child support, and I pronounced a comprehensive consent order in that respect. [2] The major issues at trial were property division (including division of the former family home in Delta), and child and spousal support (both ongoing and retroactive). Ms. Fox is also seeking an order, under s. 213 of the Family Law Act, S.B.C. 2011, c. 25 (the "FLA"), that Mr. Fox pay a fine of $5,000 on account of what Ms. Fox says was a failure on Mr. Fox's part to disclose relevant information and documents.

2. Background [3] Ms. Fox was born in December 1969, and she is now 52 years old. Mr. Fox was born in February 1975, and he is now 46 years old. [4] Mr. Fox is originally from Idaho, which is where he and Ms. Fox met and where members of Mr. Fox's immediate family continue to live. [5] When Ms. Fox and Mr. Fox met, both were working. Ms. Fox was employed by Canada Safeway, and, after starting out as a service clerk, she was steadily promoted. She eventually became the IT project manager in B.C. [6] Mr. Fox was employed as a journeyman sheet-metal worker. However, he was interested in pursuing further education, and he had applied to Boise State University to pursue a degree in engineering. Those plans changed after Ms. Fox and Mr. Fox got engaged. Mr. Fox explained that he then moved to the Lower Mainland on a student/fiancé visa, and he enrolled at Kwantlen College, taking engineering courses. While attending school, Mr. Fox worked part-time in a fabrication business that was owned by a friend of Ms. Fox. [7] After their wedding in July 1999, the couple moved into a condominium owned by Ms. Fox. However, according to Ms. Fox, they found it too small. They moved into a large apartment, and Ms. Fox then rented out her condo. In the late 1990s, the parties also acquired an interest in a time-share in Florida (the "Orange Lake Time-share"). [8] Mr. Fox did very well in his

studies. He continued to work part-time (about 20 hours a week) while in school. Mr. Fox enrolled in a two-year engineering program at the B.C. Institute of Technology, and received a diploma in mechanical engineering in 2001. Mr. Fox was then accepted by the University of Victoria to complete an engineering degree, through the "Bridge" program offered by UVic. Mr. Fox explained that the Bridge program allowed UVic to reach out to programs at technical schools (such as BCIT) and allowed the best students in those programs to enter the third year of the engineering degree program at UVic. [9] Once he was accepted at UVic, Mr. Fox was living in Victoria, and Ms. Fox continued to live and work in Vancouver. Mr. Fox explained that he came back to Vancouver on Fridays and returned to Victoria at the end of the weekend. He also had a part-time job in Vancouver, working weekends. [10] BF was born in January 2005. Ms. Fox described her pregnancy as very difficult, and explained that she left work and went on sick leave when she was four months pregnant. Fortunately, her symptoms resolved when BF was born, and she then went on maternity leave. She returned to work in 2006, after being off about 15 months (combined maternity leave and vacation). [11] Mr. Fox received his degree in mechanical engineering from UVic in 2006 (although he had completed all of his course work in 2005). His

degree program had involved co-op placements. During one of these placements, Mr. Fox had worked as a consulting design engineer with Keen Engineering in North Vancouver. A second placement had been with Deas Pacific Marine, in Richmond, B.C. On graduation, Mr. Fox was offered a permanent position with Deas as a manager for fleet services and components. Mr. Fox explained that Deas' primary client was BC Ferries, and, in about 2007, Deas was taken over by BC Ferries, who then became Mr. Fox's employer. [12] In the meantime, Ms. Fox sold her condo, and with savings they had been able to accumulate, the couple were able to purchase the home in Delta ("4484"). [13] The parties' daughter, LF, was born in November 2008. Again, according to Ms. Fox, the pregnancy was a difficult one, and required her to go on sick leave in the early stages. Ms. Fox explained that Safeway treated her very well, and valued her highly as an employee, and her plan was to return to work full-time at the end of her second maternity leave. [14] However, in 2009, Ms. Fox was injured in a motor vehicle accident. Ms. Fox has been unable to return to work, and she has been receiving long-term disability benefits through her employer for many years. Ms. Fox brought legal proceedings seeking damages for the injuries she sustained in the accident. In 2014, her claim was settled for $410,000 (the "ICBC

Settlement"), from which Ms. Fox received about $218,000 net. Some of these proceeds, and an asset (a Toyota Sequoia) Ms. Fox says was derived from these proceeds, make up Ms. Fox's excluded property claim. (I note that Ms. Fox was injured in another motor vehicle accident in 2017. Her claim for damages arising out of that accident had not been resolved as of trial.) [15] Mr. Fox remained with BC Ferries, as a manager of works, until 2011. He then left to take a position with the University of British Columbia as superintendent of trades. Mr. Fox described his job as being in building operations, managing a large operating budget, and facilitating building maintenance and repairs. According to Mr. Fox, he did not use his engineering degree at either BC Ferries or UBC. Rather, it was treated as an added benefit in terms of his qualifications. [16] Mr. Fox remained at UBC until 2015, when he was hired to work for Windset Farms MSC Ltd. as the "Director of Facilities," a newly created position. Windset's head office was in Delta, and its business was food production, the majority of which was grown in greenhouses. Mr. Fox explained that, in the Lower Mainland, Windset had about 600 acres of its own greenhouses, and another 3,000 acres with affiliate growers. As was the case at UBC, Mr. Fox's position at Windset was not one that required an engineering degree. [17] Windset also had

operations in the U.S., in California (which was a very large operation) and Nevada. Mr. Fox explained that, when he was hired, he was told that he would be required to travel as part of his job, and he began travelling shortly after joining Windset. According to Mr. Fox, it was not unusual for him to be travelling two weeks out of a month, and sometimes he was required to travel on short notice. However, for the most part, on his travel weeks, Mr. Fox left Delta on a Monday morning and then returned Thursday or Friday. According to Mr. Fox, he had concerns about the travel involved in his job, especially about being away from the children. The travel was mainly to California, but also involved some travel to Nevada. [18] Some time in the early part of 2018, Windset sold its Nevada operations to a new company, Flower One Holdings Inc., which intended to use them for its cannabis operations. Mr. Fox explained that there was a loose connection between Windset and Flower One, and, as part of the sale, Windset personnel (including him) provided temporary support until Flower One was able to operate on its own. He was designated as Director of Facilities for Flower One. [19] In addition, according to Mr. Fox, senior Windset employees (including him) were given the opportunity to acquire shares in Flower One before the company went public, and they could acquire shares at a reduced

cost or subscription price. The expectation at the time was that this would be an excellent investment opportunity, and that the value of the stock would go up substantially once Flower One went public. [20] Ms. Fox and Mr. Fox agree that they discussed taking up this opportunity and purchasing shares in Flower One. According to Ms. Fox, she was prepared to agree to invest money from the parties' tax-free savings accounts ("TFSAs"), and, in February 2018, $90,080 was withdrawn for that purpose. However, according to Ms. Fox, she was not prepared to agree to invest more in Flower One shares. According to Ms. Fox, when Mr. Fox proposed using some of the equity in 4484 to invest, she said no. Mr. Fox agreed that Ms. Fox said no to using some of the equity in 4484 to invest in Flower One. However, according to Mr. Fox, he and Ms. Fox discussed using other sources of funds to acquire shares, and Ms. Fox was agreeable. [21] Ms. Fox's mother, Patricia Kaulius, was also offered the opportunity to acquire Flower One shares at this time, and provided $10,000 to Mr. Fox for that purpose. [22] According to Mr. Fox, he was also able to offer immediate family members the opportunity to purchase Flower One shares at a reduced cost, and he made the offer to his father, brother (David Fox) and sister. According to Mr. Fox, all three were interested and provided money to make the

investment. [23] In the meantime, the parties' marital relationship was breaking down, and it is apparent that, by the spring of 2018, there had been problems in the marriage for quite a long time. They had attended marriage counselling for a number of years. In August 2018, and at the recommendation of their marriage counsellor, they attended a retreat in California. However, the relationship did not improve. [24] In August 2018, Mr. Fox borrowed $200,000 from a numbered company associated with Windset for the purpose of purchasing 100,000 Flower One shares, and signed a promissory note in that respect. [25] In September 2018, Mr. Fox transferred cash and shares in Alphabet Inc. (formerly Google Inc.) that were held in RRSP accounts in his name at Odlum Brown to two separate RRSP accounts in his name at TD. $135,353.67 in cash together with the Alphabet shares were transferred to TD T50S. $70,123.95 in cash was transferred to TD 181S. The Odlum Brown accounts had been funded originally in 2014 by transferring the assets from Mr. Fox's pension from BC Ferries, when he left that employer. The accounts held mostly shares in public companies or mutual funds, together with cash, and were managed by an investment advisor at Odlum Brown. [26] In October 2018, the cash in TD T50S was used to acquire 82,500 Flower One Shares in several transactions. The average acquisition price per

share was $1.64. The cash in TD 181S was used to acquire 42,500 Flower One shares also in several transactions. The average acquisition price per share was $1.65. Mr. Fox was not asked about details of any of these transactions, or why there were multiple transactions to purchase these shares. [27] Also in October 2018, 477,184 Flower One shares were issued to Mr. Fox in a TD investment account in his name, TD T50A. The transactions report for this account (Exhibit 3 Tab 37) shows that, on October 25, 2018, there was a "delivery" of a total of 164,926 Flower One shares from this account, in three separate transactions. Mr. Fox explained that these were the Flower One shares purchased by his father, David Fox and his sister, which were being delivered to them from his account. This was something that, at the time, he confirmed in writing with his TD account representative. [28] The sources and amounts of the money used to purchase the 477,184 Flower One shares in TD T50A are unclear. There are three known sources: $200,000 advanced by loan to Mr. Fox and used to purchase 100,000 shares: $90,080 as described by Ms. Fox (and acknowledged by Mr. Fox); and $10,000 from Ms. Kaulius. [29] Mr. Fox said that he also received money from his family members to purchase the shares delivered to them. However, Mr. Fox was not asked how much money his family members provided and he did not

provide any details. At trial, there was no documentary evidence in that respect. Mr. Fox's father and sister did not testify at trial. David Fox was called as a witness. However, according to David Fox, he gave his father (not Mr. Fox) money to purchase shares in Flower One, and the amount (so far as David Fox could recall) was between $3,000 and $5,000. David Fox said that he eventually received a certificate for his Flower One shares, after what he described as a "waiting period" was over. As far as he could recall, he received a certificate for 100,000 shares, and the shares went into a brokerage account in Idaho. The certificate was not produced. However, David Fox was not challenged on his evidence. According to Mr. Fox, in October 2018, 104,478 Flower One shares were transferred to David Fox. [30] At trial, Mr. Fox was asked to explain how he could purchase the quantity of Flower One shares purchased in October 2018 with the sources of funds he identified (including from his family), at what appeared to be the unit price of the shares. Mr. Fox explained that, contrary to what appears on Exhibit 3 Tab 37, there was no "unit price" as such but a myriad of prices, and, according to Mr. Fox he was able to acquire the majority of the Flower One shares at about $0.85 per share. There were no documents produced at trial to support Mr. Fox's statements, although I would expect

some documents to exist. [31] At the end of October 2018, Mr. Fox sold 42,000 Flower One shares. He explained that the sale was a result of a misunderstanding that he needed to repay the $200,000 loan at that time. It turned out that he did not. Therefore, before the end of October, Mr. Fox had used the proceeds from the sale of the 42,000 shares to purchase more Flower One shares. [32] In mid-December 2018, Mr. Fox drew down $25,000 on a line of credit associated with the parties' joint chequing account at Coast Capital Savings ("Coast Capital 6994"). Mr. Fox deposited the money to a joint account at TD ("TD 1905"), and then transferred about $18,000 to TD T50A. These funds were then used on December 14, 2018 to purchase 12,600 Flower One shares in a number of different transactions. According to Ms. Fox, at the time, she knew nothing about any of this. [33] As of the end of December 2018, Mr. Fox had 323,258 Flower One shares in TD T50A, including shares he was holding in trust for Ms. Kaulius. [34] In February 2019, Mr. Fox sold the Alphabet shares in TD T50S and used the proceeds to acquire another 16,400 Flower One shares in that account, for a total of 98,900 shares. The average price per share for the February 2019 acquisition was $2.59. [35] In the spring of 2019, Mr. Fox sold Flower One shares from the TD T50A account. He sold the shares that he had been holding in

trust for Ms. Kaulius, who received about $21,500 (after a holdback for capital gains tax) on her original investment of $10,000. Mr. Fox also sold shares and used the proceeds to repay the $200,000 loan (including interest). However, Mr. Fox did not sell any of the Flower One shares in either of his RRSP accounts. [36] By March 2019, Ms. Fox told Mr. Fox that she wanted a divorce. Ms. Fox filed her notice of family claim on April 17, 2019, in which (among other things) she sought an unequal division of family property and family debt under s. 95 of the FLA. [37] The parties remained living at 4484 until June 2019, when Mr. Fox moved out. At that time, there was some division by agreement of household goods. However, Ms. Fox says that Mr. Fox took items without her permission, and Mr. Fox says that he was prevented from collecting items to which he was entitled. [38] Mr. Fox continued to work at Windset. However, according to Mr. Fox, his job changed somewhat around August 2019, especially in relation to travel. Mr. Fox explained that Windset was a very family-oriented company, and although he had made a point not to tell those he worked with that he and Ms. Fox had separated, it was discovered anyway. Mr. Fox was told that he could travel less and work remotely, so that he could spend more time with his children and deal with issues resulting from the separation. According to

Mr. Fox, at that point, job-associated travel stopped for him. Mr. Fox explained that his official duties did not change, but now he was supporting Windset's operations outside of B.C. remotely. [39] The parties and their counsel attended a judicial case conference before Master Cameron on August 16, 2019. At that time, orders were made by consent pursuant to s. 91 of the FLA restraining each party from (among other things) disposing of property in which the other party might have an interest, except to pay reasonable living expenses. An order was also made by consent that, commencing September 1, 2019 and on the first day of each month thereafter, on a without prejudice basis and in addition to paying the monthly mortgage payments for 4484, Mr. Fox pay $2,000 per month towards the child and spousal support claims in this action. [40] In late September and early October 2019, Mr. Fox sold some Flower One shares from TD T50A, realizing proceeds of about $29,000. According to Mr. Fox, he used this money to pay off a credit card account that he had been using to pay for his living expenses and he had also used to pay school tuition fees for BF. [41] A further court order (the "Dick Order") was made on January 21, 2020, addressing applications by both parties. Further without-prejudice orders were made concerning payment of child support (including s. 7 expenses) and spousal

support by Mr. Fox, and an order was made concerning production of financial information by Mr. Fox (setting a deadline). [42] In mid-April 2020, Mr. Fox sustained injuries in an accident at work. He was electrocuted and his left shoulder was dislocated. As Mr. Fox recalled, he was rushed to hospital and spent three days there. According to Mr. Fox, he recovered quickly from the electrocution. However, his shoulder injury was more serious. Mr. Fox explained that WorkSafe BC was notified by Windset when the accident happened, and he later learned that a claim file had been opened for him. According to Mr. Fox, he was off work for a week following the accident. However, Windset continued to pay his regular salary, so he had no loss of employment income at that time. [43] Mr. Fox explained that, on July 21, 2020, his employment with Windset was terminated. There was no prior warning. As Mr. Fox recalled, he was at the office that morning, and had a management meeting scheduled for later. Windset's human resources ("HR") person asked to meet him in the boardroom, which was not uncommon. As Mr. Fox recalled, when he walked into the boardroom, the HR person was there with Mr. Fox's boss, Mr. Newell. According to Mr. Fox, Mr. Newell told him that Windset was going to eliminate his position. The HR person then presented Mr. Fox with a termination package. After getting some advice, Mr.

Fox accepted Windset's offer. [44] Mr. Fox explained that, when he was terminated, he had been paying child and spousal support in accordance with the Dick Order. He was worried because things like dental and extended health benefits had all been tied to Windset. BF had recently had knee surgery and there were associated expenses that needed to be paid. Mr. Fox explained that he started right away looking for new employment. According to Mr. Fox, he contacted a head-hunter, posted on LinkedIn and followed up with contacts in the industry. As Mr. Fox recalled, he connected with Endeavor Trust Corporation, who were interested in developing an area of business related to the verification of identification. Although at $100,000, his annual salary at Endeavor was less than his base salary at Windset ($185,000), the position came with health benefits and could accommodate his parenting time. Mr. Fox then accepted a full-time position with Endeavor, beginning in mid-August 2020. [45] Unfortunately, Mr. Fox was not able to make it past his probationary period at Endeavor, and his employment was terminated in January 2021. Mr. Fox explained that one of the challenges after the accident in April 2020 was that his left arm was in a sling and he had to go for regular physiotherapy. Moreover, the situation with his shoulder did not improve, and surgery was eventually recommended. [46]

According to Mr. Fox, after he left Endeavor, he again began looking for work, in a position similar to what he had been doing at Windset. However, he had shoulder surgery in April 2021, after which he was attending physiotherapy twice a week. According to Mr. Fox, as of August 2021, his surgeon had not yet cleared him to return to work, although Mr. Fox was optimistic that would happen at the end of August. [47] As of trial, Mr. Fox had not found new employment and was continuing his job search, looking for a management position similar to what he has done in the past. As of trial, despite applying for positions, he had not had any job offers or interviews.

3. Comments on the witnesses [48] At trial, I heard evidence from four witnesses: Ms. Fox (in the claimant's case), Mr. Fox, David Fox and Mrs. Darol Fox (Mr. Fox's and David Fox's mother) (all in the respondent's case). [49] Mrs. Fox was not cross-examined. This was not surprising as she had little or no personal knowledge concerning the most contentious issues in this case, having to do with property division and the Flower One shares. David Fox was cross-examined relatively briefly. This also was not surprising, given the content of his evidence-in-chief. Generally, I found both witnesses credible and reliable. David Fox's memory of events concerning the purchase of Flower One shares was somewhat patchy, and might have been refreshed with some documents. However, that was not done. [50] The main witnesses were Ms. Fox and Mr. Fox. [51] In closing argument, Ms. Allen submits that, where Ms. Fox's and Mr. Fox's evidence differs, Ms. Fox's evidence should be preferred. In her submission, there were many occasions where Mr. Fox gave evidence that was vague or inconsistent, and he was also argumentative during cross-examination. [52] Among other things, Ms. Allen pointed to Mr. Fox's evidence during his examination-in-chief concerning his acquisition of Flower One shares, which, in her submission was then contradicted by his evidence during cross-examination concerning the

acquisition of Flower One shares for the TD RRSP accounts. Ms. Allen says that Mr. Fox gave inconsistent evidence between his direct examination and cross-examination about how the funds that originated from the Odlum Brown RRSPs were used in the purchase of Flower One shares, and, in Ms. Allen's submission, Mr. Fox's evidence was deliberately misleading. In Ms. Allen's submission, Mr. Fox's evidence concerning the acquisition of Flower One shares for his family members was not supported by the evidence of David Fox. Ms. Allen says that, on cross-examination, Mr. Fox initially denied that TD T50S and TD 181S were self-directed RRSP accounts, despite having sworn to those facts in his F8 financial statements, and only admitted (reluctantly) to those facts when taken to the account statements. Ms. Allen also notes that, on Mr. Fox's F8 financial statements, the number and value of Flower One shares disposed of changes from statement to statement. [53] In Ms. Allen's submission, and in contrast to Mr. Fox, Ms. Fox's evidence was consistent. She readily admitted or conceded facts based on documents, and she was careful to ensure that information was available for the court (in contrast to Mr. Fox's last minute disclosures). In Ms. Allen's submission, Ms. Fox gave clear and concise evidence concerning the parties' assets and financial accounts, and her evidence was both consistent

with the documentary evidence and with the probabilities of the surrounding circumstances. [54] On the other hand, in Mr. Slay's submission, there were significant problems with Ms. Fox's credibility and reliability. Examples included Ms. Fox's resistance to agreeing that she had contacted Mr. Fox's co-worker at Windset, until she was shown an e-mail exchange. In Mr. Slay's submission, there was no attempt on Mr. Fox's part to mislead the court, and both parties were less than perfect in the presentation of their evidence. [55] The assessment of credibility involves examination of various factors such as: the witness's ability and opportunity to observe events; the firmness of the witness's memory; the witness's ability to resist the influence of interest to modify his or her recollection; whether the witness's evidence harmonizes with independent evidence that has been accepted; whether the witness changes his or her testimony during direct and cross-examination; whether the witness's testimony seems unreasonable, impossible, or unlikely; whether a witness has a motive to lie; and the demeanour of a witness generally. Moreover, the assessment of a witness's credibility must reasonably subject the witness's story to an examination of its consistency with the probabilities of the surrounding conditions or circumstances. The real test of the truth of the story of a witness in

such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those circumstances. See generally Bradshaw v. Stenner, 2010 BCSC 1398, at paras. 186-187, aff'd 2012 BCCA 296. [56] Credibility and reliability are different. Credibility has to do with a witness's veracity, while reliability is about the accuracy of the witness's testimony. [57] Moreover, I am not obliged to reject all of a witness's evidence simply because I have concluded that on some issues the witness is not credible or not reliable. As trial judge, I can accept (or reject) some, all or none of a witness's evidence. In assessing a witness's evidence, the witness's demeanour is (or can be) a factor. A witness's credibility may be adversely affected if the witness is imprecise, evasive, long-winded or argumentative in response to questions. [58] I have concluded that I must be quite cautious with respect to both Ms. Fox and Mr. Fox, and concerning the weight I place on their evidence where there is a conflict on a material point. I agree with Mr. Slay that both parties were less than perfect in the presentation of their evidence. Given the high emotions and stress usually attached to a trial in a family law case, this is not surprising. [59] I will begin with Ms. Fox. My impression was that she found the

experience of testifying quite uncomfortable, and that she coped with her anxiety and nerves by adopting a presentation that included unnecessary commentary, heavy sighs and sarcasm to make points. I have concluded that she harbours considerable animosity and resentment toward Mr. Fox, which damaged both her credibility and her reliability. Even when it was completely unnecessary in order to give a full response to a question, Ms. Fox often included some criticism or unflattering comment about Mr. Fox. It became a regular feature of her evidence when discussing Mr. Fox, especially after Mr. Fox joined Windset. Ms. Fox clearly blames him both for investing money in Flower One given how the investments have turned out, and, in particular, for not selling the Flower One shares when the market value was relatively high, in the spring of 2019. Ms. Fox was unhappy when I stopped her from telling me what had happened at the parties' judicial case conference in August 2019. [60] Because of Ms. Fox's hostile attitude toward Mr. Fox, I conclude I must be very cautious before placing much weight on her evidence about matters relating to the purchase of Flower One shares in particular. Ms. Fox has little personal knowledge about the details of the acquisition of the Flower One shares, and in that sense, had little evidence to provide. However, at trial, Ms. Fox was anxious to present her

conclusions about what she believes happened, all of which cast Mr. Fox in a bad light, and to argue her case about how Mr. Fox had carelessly misused "family" money to acquire Flower One shares and must now be hiding assets. But I note that, for example, the TD account where Mr. Fox deposited the money drawn down on the Coast Capital 6994 line of credit in December 2018 was in fact a joint account (TD 1905) (as was Coast Capital 6994). Based on the account statement for TD 1905, it was not a secret that money (ultimately used to buy Flower One shares) was then transferred to TD T50A. Ms. Fox was quite firm that "there is evidence" that Mr. Fox "cashed out" a significant amount of Flower One stock and she did not know where it went. However, all of the Flower One shares and sale proceeds can be accounted for on the evidence before me. [61] It is fair to say that Ms. Fox gave clear and concise evidence concerning the parties' assets and financial accounts. However, during her direct examination, she was led through much of this evidence with the use of documents. Since her evidence was given using the documents, it was not surprising that her evidence reflected what was in the documents. [62] For his part, Mr. Fox appeared to have a poor (although not selective) memory, and was not very reliable in reporting details, especially financial details. This was demonstrated most

clearly when, the morning of August 16, 2021 and during the continuation of his direct examination, Mr. Fox had to be taken through Exhibit 3 Tab 37 (the transactions report for TD T50A) to correct evidence that he had given on August 13 when looking at the same document. On August 16, Mr. Slay led Mr. Fox through much of this part of his evidence (using documents that were part of Exhibit 3), although without objection from Ms. Allen. On August 13, Mr. Fox was asked about the sales of Flower One shares on October 11, 2019 (after the s. 91 order made at the judicial case conference), and testified that he could not remember the reason for these sales. However, later, on cross-examination and re-examination, he was able to recall that the shares had been sold and proceeds used to pay credit card expenses, which he described as living expenses. [63] I formed the impression that Mr. Fox did not always listen carefully to the questions he was being asked, and did not always look carefully enough at documents being put to him, before answering. This made the reliability of his answers more suspect. However, I do not agree with Ms. Allen that Mr. Fox was attempting deliberately to mislead anyone, and I conclude he was not. Mr. Fox was correct that he had used money drawn down on the Coast Capital line of credit to purchase Flower One shares. However, he was incorrect that he did this

in October 2018. On the other hand, when this was pointed out to him during cross-examination, he accepted the correction. Some of the evidence he gave during his direct examination about discussions with Ms. Fox concerning the purchase of Flower One shares had not been put to Ms. Fox on her cross-examination. Although I would expect there to be some documents to show the price at which the Flower One shares acquired in October 2018 were in fact acquired and how they were paid for, I have only Mr. Fox's oral evidence. [64] Generally, I accept the evidence of both Ms. Fox and Mr. Fox where it is consistent with reliable documentary evidence (admissible as evidence of the relevant facts) or other reliable evidence. Otherwise, where there is a conflict on material points, I approach the evidence of both Ms. Fox and Mr. Fox with caution. Fortunately, from my perspective, the actual conflicts on material points are few. For example, there is a conflict between Ms. Fox and Mr. Fox about whether Mr. Fox told Ms. Fox about transferring the cash and shares from the Odlum Brown RRSP accounts to the TD RRSPs and purchasing Flower One shares for those accounts. However, in my view, it is not necessary to resolve that particular conflict to come to a conclusion concerning the property division issues in this case, and in that sense, it is not a conflict on a material point. Otherwise, I have found it most useful to assess the weight I should give the evidence of Ms. Fox and Mr. Fox by looking at what is more in harmony with the preponderance of probabilities that a practical and informed person would readily recognize as reasonable in the circumstances.

4. Property Division [65] In this section, I will first set out the basic framework under the FLA concerning division of family property and family debt. I will then discuss the identification and valuation of the family property and family debt in this case, and I will include a discussion of Ms. Fox's claim for excluded property. (Although in many cases the parties provided dollar amounts including cents, I am eliminating cents.) [66] I note that, as part of their closing submissions, and in addition to comprehensive draft orders, counsel for both parties very helpfully provided Scott Schedules setting out their clients' positions on the family assets and debt to be divided, the value (although not necessarily the value as of the trial) of the assets and debt, and how the assets and debt should be divided. However, there were surprising areas of differences in the values. Except for the four accounts where Mr. Fox holds Flower One shares, there was no real attempt to persuade me why I should choose Ms. Allen's value over Mr. Slay's, or vice versa. [67] After setting out my conclusions on family property and family debt, I will then set out my discussion and conclusions regarding how the family property and family debt in this case should be divided and allocated. As will be seen, I have not been persuaded that it would be substantially unfair to divide family property and

family debt equally. (a) The framework under the FLA [68] On separation, each spouse is presumptively entitled to an undivided half interest in all family property as a tenant in common, regardless of their respective use or contribution, and equally responsible for family debt: see FLA s. 81. [69] When the trial began, Ms. Fox and Mr. Fox did not agree on their separation date. Ms. Fox said that she and Mr. Fox separated on March 1, 2019, while Mr. Fox said that they separated a year earlier. I find that the date of separation is March 1, 2019. Before that date, and although the parties were living essentially separate lives (and had been for some time), Mr. Fox's actions were, in my view, ambiguous. In closing submissions, Mr. Slay (on behalf of Mr. Fox) did not press the argument that I should find the separation date to be March 1, 2018 (a year earlier), and in the comprehensive draft order Mr. Slay presented to the court as part of his closing submissions, the separation date used was March 1, 2019. [70] Property is categorized as either "family property" or "excluded property." All real or personal property owned by either spouse at the date of separation is broadly defined as family property (FLA s. 84(1)). [71] "Excluded property" is described in FLA s.

85. A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property (s. 85(2)). [72] "Family debt" is defined under FLA s. 86 as follows: 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. Thus, any debt acquired during the relationship, regardless of whether it was for a family purpose, is a family debt. [73] Section 87 of the FLA requires that the value of family property and debt is the fair market value as of the date of the hearing respecting the division of property or debt, unless an agreement or order provides otherwise. A departure from the presumptive date for valuation of family property is effectively a reapportionment or unequal division of the family property, which can only be done under s. 95 of the FLA: see Kumagai v. Campbell Estate, 2018 BCCA 24, at para. 76. [74] Section 95(1) of the FLA allows the court to order an unequal division of family property or family debt, but only if it would be significantly unfair to equally divide such property or debt. Section 95(2) enumerates factors the court may consider in weighing whether an unequal division should be ordered.

These factors include: ● whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends (s. 95(2)(f)); and ● the fact that a spouse, other than a spouse acting in good faith, either (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 (s. 95(2)(g)). (b) Ms. Fox's excluded property claim [75] Ms. Fox says that the following property is excluded property, by virtue of FLA s. 85(1)(c) and (g): (a) $75,000 from an account in her name at Trez Capital, namely Trez Capital 6696 (the balance in that account is not claimed as excluded property); and (b) the 2010 Toyota Sequoia driven by Ms. Fox. [76] FLA s. 85(1) provides in relevant part: The following is excluded from family property: . . . (c) a settlement or an award of damages to a spouse as compensation for injury of loss, unless the settlement or award represents compensation for (i) loss to both spouses, or (ii) lost income of a spouse. . . . (g) property derived from property or the disposition of property referred to in any of paragraphs (a) to

(f). [77] The test for establishing a claim for excluded property is proof on a balance of probabilities by the party asserting an excluded property interest. Precision or mathematical certainty is not required, but to discharge the burden, the party seeking to prove property is excluded property must do so with clear and cogent evidence. See Shih v. Shih, 2017 BCCA 37, at paras. 40-44. [78] In Boyd v. Foster, 2019 BCSC 901, aff'd 2020 BCCA 177, and Gebresadik v. Tesfay, 2021 BCSC 127, the court considered excluded property claims in the context of settlements of personal injury claims. In both cases, the claimant was unable to assist the court as to the components of the settlement, and whether, for example, the settlement included "lost income of a spouse," and, if so, in what proportion. Nevertheless, the court was able to draw inferences to arrive at a conclusion about whether the claimant had met the claimant's evidentiary burden with respect to the excluded property claim. In Boyd v. Foster, for example, the trial judge considered the mediation briefs to arrive at the conclusion that 40% of the gross settlement amount represented the respondent's lost income and therefore was not excluded property. [79] At trial, Ms. Fox explained that she drives the Toyota Sequoia. Although Mr. Fox is the registered owner, both parties treated this vehicle as if Ms. Fox was the

registered owner. According to Ms. Fox, the vehicle was financed when purchased, and she paid off the loan of $21,000 using some of the net proceeds from the ICBC Settlement. On that basis, and pursuant to FLA s. 85(1)(g), Ms. Fox says that the Sequoia is also excluded property. [80] In support of her claim that Trez Capital 6696 and the Sequoia should be treated as excluded property, Ms. Fox described the background to the ICBC Settlement. She identified the brief prepared by her personal injury counsel wherein, at mediation, she sought damages of close to $1 million as compensation for: non-pecuniary damages ($110,000); past income loss ($158,750); loss of future earning capacity ($530,000); loss of housekeeping capacity ($10,000); an in-trust claim ($35,000); cost of future care ($69,300); and special damages ($81,526). Ms. Fox also identified a letter from her personal injury counsel that allocated, in a general way, the ICBC Settlement. The letter showed that, from the gross settlement amount of $410,000, Ms. Fox received $217,904.68 after payment of legal fees, disbursements, costs and a subrogated claim by Blue Cross. [81] Ms. Fox explained that, from the funds she received, she paid off the loan on the Sequoia. In other words, Ms. Fox says that the Sequoia is property derived from the ICBC Settlement, that is, from excluded property. Ms. Fox explained further that she

made a contribution ($16,000 each) to her and Mr. Fox's TFSAs, and paid for a family vacation. Ms. Fox explained that, in September 2014, she then deposited the balance - $75,000 - to Trez Capital 6696, where it has remained and has earned interest. According to Ms. Fox, she put the $75,000 aside essentially to provide her with a nest egg for future care costs and housekeeping expenses. [82] In argument, Ms. Allen submits that the amount of $75,000 is consistent with the estimated cost of future care and loss of housekeeping capacity set out in Ms. Fox's mediation brief, and these heads of damages would be excluded property under s. 85(1)(c). Ms. Allen submits that Ms. Fox has met her burden to show that she received an excluded asset as a result of the ICBC Settlement. Ms. Fox does not seek to claim the entirety of the ICBC Settlement as an excluded asset, since much of the money was spent for family purposes. However, Ms. Allen submits that Ms. Fox's explanation of how the $75,000 relates to the damages she sustained in the motor vehicle accident satisfies Ms. Fox's burden on her excluded property claim for this amount, consistent with the authorities. [83] On behalf of Mr. Fox, Mr. Slay argues the whole of the value as of trial of Trez Capital 6696 and the Sequoia should be considered family property and subject to equal division. Mr. Slay argues if the ICBC Settlement funds

are found to be excluded property, then, pursuant to s. 96(b) of the FLA, it would be significantly unfair not to divide the excluded property on consideration of the duration of the relationship and the contributions made to the excluded property. Mr. Fox gave evidence that, before Ms. Fox received the settlement money, he was funding her expenses (claimed as special damages) for things such as physiotherapy, massage therapy and housekeeping services. Mr. Slay argues that Mr. Fox never recouped what he paid out of pocket for these expenses. [84] Mr. Slay argues further, and in the alternative, that some amount of the ICBC Settlement (and the $75,000 that Ms. Fox claims as excluded property) must be attributed to lost income, which is not excluded property under s. 85(1)(c)(ii). Mr. Slay submits that, like the court did in Boyd v. Foster, I should find that the entirety of the past wage loss claim was included in the settlement amount, which (in turn) would be 39% of the total settlement amount. Mr. Slay argues further that if I were to find that the settlement amount included the entire claim for special damages, that would be a further 20% of the total settlement amount that would not qualify as excluded property. Mr. Slay submits that I should therefore find that 50% of the ICBC Settlement of $410,000 was on account of a loss of income and a loss to both parties (that is,

special damages), and therefore was not excluded property. Mr. Slay says that, accordingly, I should find Ms. Fox has not met her burden under FLA s. 85, and that the whole of Trez Capital 6696 and the value of the Sequoia should be divided equally. [85] I am not persuaded by Mr. Slay's argument relying on FLA s. 96(b). It might have more force if Ms. Fox was seeking to have the whole of the settlement amount treated as excluded property. However, she is not. [86] On the other hand, I am persuaded that a portion of the gross settlement amount represents compensation to Ms. Fox for lost income and for special damages. Unlike the claimant in Gebresadik, Ms. Fox had a well-paying job with Canada Safeway when she was injured, and she was never able to return to work. The loss would have been easily quantifiable. In my view, it is reasonable to infer that a portion of the settlement amount was to compensate her for that loss, presented at $158,750, or about 40% of the gross settlement amount. The special damages are also easily quantifiable, although, at the amount presented, there may have been some dispute about whether all of the expenses were reasonable, and, therefore, in the context of a settlement, a discount would have been applied and accepted. In the result, I agree with Mr. Slay that 50% of the ICBC Settlement was on account of a loss of income (40%) and a loss to both

parties (10%), and is, therefore not excluded property. However, that means that 50% is excluded property. [87] As I noted, Ms. Fox is not asking to have the whole of the ICBC Settlement treated as excluded property. Rather, she is asking me to find that no part of what she deposited to Trez Capital 6696 and spent on the Sequoia (which can be traced back to the Settlement) represents compensation for her lost income or a loss to both parties (that is, some special damages funded up front by Mr. Fox). Therefore, and as such, it is excluded property. I agree with Ms. Fox. The amounts for which Ms. Fox is seeking an exclusion are less than 50% of the gross settlement amount. In my view, Ms. Fox has met her burden to show that the amounts for which she is seeking an exclusion are excluded property. [88] The result is that Ms. Fox has established her excluded property claim for $75,000 in Trez Capital 6696 and for the Sequoia. Neither is family property subject to division. (c) Real property [89] A joint appraisal of 4484 was admitted into evidence as Exhibit 15. It shows that the estimated market value of 4484 as of August 18, 2021 was $1,350,000. [90] A mortgage in favour of Coast Capital Savings Credit Union in the amount (as of trial) of $253,894 is secured against 4484. There is no doubt that this is a family debt. [91] At one point in his evidence-in-chief, Mr. Fox said that

the Coast Capital line of credit was secured against 4484 and associated with the mortgage. However, later in his evidence-in-chief, Mr. Fox clarified that the line of credit was associated with Coast Capital 6994 (rather than the mortgage). Ms. Fox's evidence was that the Coast Capital line of credit was not secured. I have concluded that Ms. Fox is correct, and that Mr. Fox's clarification was also correct. [92] Mr. Fox says that, as a U.S. citizen, there are tax consequences (specifically capital gains) to him on the sale of his principal residence. I will address this under "Family Debt." [93] The other piece of real property is the Orange Lake Time-share. The value of this asset is unknown. In addition, maintenance fees are owing. Mr. Fox says that these fees are a family debt. Ms. Fox says they are not. I will address the fees under "Family Debt," below. (d) Bank accounts [94] Some of the accounts on the Scott Schedules have balances of $100 or less, or have been closed, and I will therefore ignore them in the property division. Instead, I order that the accounts with balances of $100 or less shall be retained by the account holder as her or his sole property, without further division. [95] The accounts in issue are as follows: Account Account holder Value Simplii 9819 Joint $1,021 Envision Ladner 3708 Ms. Fox $1,000 Trez Capital 5991 Ms. Fox $101,091 Trez Capital 6696

(after deducting excluded property claim) Ms. Fox $13,726 TD T50A Mr. Fox $21,309 (per Mr. Fox) $499,643 (per Ms. Fox) TD T50J Mr. Fox $16,827 TD 576J Mr. Fox $323 [96] In Mr. Slay's Scott Schedule, he included a Bank of Montreal account that, until November 2020, Ms. Fox held jointly with her mother. Mr. Fox's position was that 50% ($6,783) of the value of that account was family property and subject to division. [97] I do not agree. I accept Ms. Fox's evidence at trial that her name was added to this account essentially as part of her mother's estate planning and that Ms. Kaulius maintained control of the account. In those circumstances, I find that Ms. Fox did not have any beneficial interest in the account, and it is not family property subject to division. [98] I turn then to the valuation of TD T50A. [99] This account is an investment account and held Flower One shares purchased and sold by Mr. Fox outside of his RRSP accounts at TD. In June 2019, based on the then market value of Flower One shares, the portfolio value of this account was over $730,000. However, the market for Flower One shares crashed. As of trial in August 2021, the portfolio value was $21,309, as indicated in Exhibit 9 (this is slightly higher than the value as of November 24, 2020, as stated in Exhibit 3 Tab 37 p. 486). As of trial, Mr. Fox held 121,234 Flower One shares in this account. [100] In

closing submissions, Ms. Fox did not take issue with the number of Flower One shares remaining in TD T50A as of trial. However, she says that the Flower One shares should be valued based on a unit price of $1.59, and based on what Ms. Fox says "must have" been the value of family property used for the acquisition of the shares at that unit price in the fall of 2018. Ms. Fox says that, assuming a unit price of $1.59 per share, Mr. Fox cannot possibly have acquired 477,184 shares using the sources of funds he identified in his evidence at trial. Ms. Fox says that the only sources identified by Mr. Fox were: the loan of $200,000 which allowed him to acquire 100,000 shares; $90,080 taken from a TD TFSA (as Ms. Fox described in her evidence); and $10,000 from Ms. Fox's mother, Ms. Kaulius. Ms. Fox says that these funds would not have allowed Mr. Fox to acquire 477,184 Flower One shares at a unit price of $1.59, and, therefore, he "must have" used other "family funds" - in other words, family property - for which he has never accounted. The way Ms. Fox proposes to have Mr. Fox account is to value TD T50A at $499,643, which she says is the amount that Mr. Fox would have needed to acquire the Flower One shares, after taking into account the known sources of funds. [101] However, as I noted above, s. 87 of the FLA requires the value of family property to be determined as of the hearing or trial date, and a departure from this presumptive date is effectively a reapportionment or an unequal division of family property, which can only be done under s.

95. Indeed, in closing submissions, Ms. Allen advanced Ms. Fox's argument concerning the value of TD T50A (and other accounts of Mr. Fox holding Flower One shares) in the context of a claim by Ms. Fox for unequal division of family property under s. 95 of the FLA, rather than in the context of a claim by Ms. Fox that a departure from the statutory valuation date required by s. 87 was justified. That is how I propose to address the matter. [102] Accordingly, I find that the value for division of TD T50A is $21,309, its value as of trial. [103] I note that TD T50J, a TFSA, also holds Flower One shares. These shares were originally held in TD T50A, and transferred to TD T50J in January 2020. [104] The result with respect to the bank accounts is: Account Value for division Simplii 9819 $1,021 Envision Ladner 3708 $1,000 Trez Capital 5991 $101,091 Trez Capital 6696 $13,726 TD T50A $21,309 TD T50J $16,827 TD 576J $323 (e) RRSPs [105] The RRSP accounts in issue are as follows (for Ms. Fox's accounts, I have used the values on Ms. Allen's Scott Schedule, which are somewhat higher than those on Mr. Slay's Scott Schedule; Mr. Fox's values for his accounts are from Exhibit 9): Account Account holder Value Primerica 662CR Ms. Fox $100,131 Primerica 110 CS Ms. Fox $66,907 BlueShore 951 Ms. Fox $61,062 Worldsource 611 Ms. Fox $13,918 Great West Life certificate #63 Ms. Fox $52,123 TD

T50S Mr. Fox $17,360 (per Mr. Fox) $177,866 (per Ms. Fox) TD 181S Mr. Fox $7,703 (per Mr. Fox) $70,123 per Ms. Fox) Great West Life certificate #57 Mr. Fox $8,987 [106] Mr. Fox's accounts TD T50S and TD 181S hold 98,900 and 42,500 Flower One shares, respectively. The details are shown on Exhibit 3 Tab 48 (for TD T50S) and Tab 49 (for T181S). Once the Flower One shares were purchased, they were never sold. Like the Flower One shares in TD T50A, in June 2019, their market value was significant. As of trial, it was not. [107] However, Ms. Fox says that, like TD T50A, TD T50S and T181S should be valued based on "the value of family property used for acquisition" in September 2018 and February 2019. She says that this was $177,866 for TD T50S (cash of $135,353 and $42,512 from the sale of Alphabet shares) and $70,123 for TD T181S. As was the case with TD T50A, the argument concerning valuation of Mr. Fox's TD RRSP accounts was made in the context of a claim by Ms. Fox for unequal division of family property under FLA s. 95, and not in the context of a claim by Ms. Fox that a departure from the statutory valuation date in FLA s. 87 was justified. That is how I will deal with the matter. [108] Accordingly, I find that the value as of trial of TD T50S is $17,360 and the value as of trial of TD 181S is $7,703. [109] The result with respect to the RRSPs is: Account Account holder Value

for division Primerica 662CR Ms. Fox $100,131 Primerica 110 CS Ms. Fox $66,907 BlueShore 951 Ms. Fox $61,062 Worldsource 611 Ms. Fox $13,918 Great West Life certificate #63 Ms. Fox $52,123 TD T50S Mr. Fox $17,360 TD 181S Mr. Fox $7,703 Great West Life certificate #57 Mr. Fox $8,987 (f) Vehicles [110] The vehicles in issue (using the values in the parties' F8 financial statements) are: Item Ms. Fox's Value Mr. Fox's Value 2017 Ford F150 Truck (Mr. Fox) $21,452 $21,425 2002 Trophy Bayliner (Mr. Fox) $15,000 $3,000 2007 BMW Motorcycle (Mr. Fox) $3,000 $5,000 Vespa scooter $2,000 does not own [111] There is no independent evidence of the market value as of trial of any of these items. [112] With respect to the Ford truck, although the parties give different values (the difference amounting to $27), the parties agree that there is a vehicle loan in the amount $12,576, and that it is a family debt. I find that the net value of this asset is $8,876. [113] With respect to the Vespa scooter, Mr. Fox explained that he paid $800 for it, and gave it to his brother. In my view, this should be treated as property disposed of by Mr. Fox, and its value set at $800 in the absence of other evidence. [114] As Mr. Fox has the Bayliner, and I propose in the property division below to allocate it to him, I will use Ms. Fox's value of $15,000. [115] The result with respect to this property

is: Item Value for division 2017 Ford F150 Truck (Mr. Fox) (net) $8,876 2002 Trophy Bayliner (Mr. Fox) $15,000 2007 BMW Motorcycle (Mr. Fox) $5,000 Vespa scooter $800 (g) Pensions [116] Ms. Fox has a pension with the United Food and Commercial Workers Union (the "UFCW"). The value of this pension is unknown. I order that this pension is to be divided equally pursuant to Part 6 of the FLA, with July 10, 1999 being the date of the marriage and March 1, 2019 being the date the parties separated for those purposes. [117] The parties are agreed that either party may apply for the division of unadjusted pensionable earnings under the Canada Pension Plan, with July 10, 1999 being the date of the marriage and March 1, 2019 being the date the parties separated for those purposes. I so order. (h) House and garage contents [118] Many of the household items (in both the house and the garage) have already been divided between Ms. Fox and Mr. Fox. However, there are many other items that remain in dispute. At trial, Ms. Fox complained that Mr. Fox removed items without her agreement. For his part, Mr. Fox asserted that he was entitled to everything he had taken, and he complained that he had not been allowed to retrieve other items to which he was entitled. The continued - and still heated - disputes over the house and garage contents were a reflection of the unfortunate animosity that

persists between the parties. [119] No household items have been formally valued. In her F8 financial statement sworn January 3, 2021, Ms. Fox states the value as "unknown." In Exhibit 9, Mr. Fox values the "various household chattels" at $120,000. The draft orders that were included in the parties' closing submissions set out the items that each party was prepared to agree could go to the other party, and the items each of them wanted for herself or himself. There was a fair amount of disagreement. [120] I will begin with the items where there is agreement. [121] I order that Mr. Fox shall retain, free of any claim by Ms. Fox and without further equalization, the following items: (a) Mr. Fox's yearbooks; (b) the fabricated metal piggy bank made by Mr. Fox (including contents); (c) cedar chest; (d) blankets (handmade); (e) wood working cabinets; (f) hand saws; (g) tool chest; (h) lathe; (i) lathe bench; (j) lathe and metal working tools; (k) table saw; (l) table saw tools; and (m) bee keeping materials. [122] I order that within 30 days of the date of these Reasons (unless the parties agree to extend that deadline), Ms. Fox make these items available for pick-up by Mr. Fox on a date and at a time mutually convenient to both parties. [123] Based on the draft orders, the following are items Mr. Fox wishes to have but Ms. Fox does not agree (some of these items are in Mr. Fox's

possession, the rest are in Ms. Fox's possession): (1) Mr. Fox's memorabilia; (2) artwork (Duck Dodgers lithograph/Polar Bear Ducks unlimited print (Artic Cuddle), Canucks Memorabilia; (3) Kitchen Aid mixer; (4) dining room table (one of the two); (5) glass wear and china from Wedding; (6) vase (living room mantle); (7) TV's one (55" Samsung); (8) photo album; (9) sports items, biking gear and parts, bike stand, Mr. Fox's Baseball/softball items; (10) trash pump; (11) generator (camping); (12) boat parts and materials; (13) rope for boat; (14) motorcycle parts and fuel cans; (15) miter saw; (16) planer 13"; (17) sander; (18) air compressor and hose; (19) drill press; (20) S/S Screen; (21) hydraulic jack, stands and ramps for Truck; (22) pressure washer; (23) all fishing, camping and hunting material; (24) road and other steel signs; and (25) chainsaw materials and safety glasses and materials. [124] Why, for example, Ms. Fox wants to retain items such as boat parts and a rope for the boat (presumably the Bayliner) was never explained at trial. [125] I order that, within 30 days of the date of these Reasons (unless the parties agree to extend that deadline), a duplicate of the photo album, in a medium or media specified by Mr. Fox and at Mr. Fox's expense, be provided by Ms. Fox to Mr. Fox. [126] I order further that, unless, within 45 days of the date of these Reasons, the

parties have agreed on distribution of the balance of the items on the list in para. 123, then: (a) within 60 days of the date of these Reasons, the balance of the items on this list are to be appraised by a suitably qualified appraiser; (b) for items that are in Mr. Fox's possession, he will, within 30 days of delivery of the appraisal, pay Ms. Fox 50% of the appraised value; (c) for items that are in Ms. Fox's possession: (i) Mr. Fox will have the right, on notice to Ms. Fox to be delivered within 10 days of delivery of the appraisal, to acquire those items on payment, within 30 days of delivery of the appraisal, to Ms. Fox of 50% of their appraised value, and, on payment, Ms. Fox will within 7 days (unless that deadline is extended by agreement) cause those items to be delivered to Mr. Fox; (ii) for items that are not included on Mr. Fox's notice, Ms. Fox will, within 30 days of delivery of the appraisal, pay Mr. Fox 50% of the appraised value; (d) all other items from either the house or the garage retained by either of the parties on separation shall remain that party's sole and separate property without any further equalization between the parties. (i) Family debt [127] Ms. Fox says that the only family debt for purposes of FLA s. 86 is the mortgage on 4484 and the loan on Mr. Fox's Ford truck. [128] On the other hand, Mr. Fox says that the following is also family

debt: Creditor Amount Coast Capital Line of credit (associated with Chequing account 6996) $19,713 U.S. Capital gains included in the value of 4484 and calculated as 20% of the value as of trial less the purchase price (($1,350,000 minus $538,000) x 20%) $164,400 Maintenance fees on the Orange Lake Time-share $3,000 PC Mastercard 8411 $8,164 Capital One Costco Credit Card $5,099 TD Line of Credit Account 3631 $99,969 Personal Loan from Lindsay R. Glazier $18,000 [129] The Coast Capital line of credit debt was incurred in December 2018, and most of the money drawn down was used by Mr. Fox to acquire more Flower One shares. Ms. Fox says that the line of credit debt is not a family debt, and should be treated as an obligation belonging to Mr. Fox alone. However, I do not agree. In my opinion, given the definition of "family debt" in FLA s. 86, this is clearly family debt. [130] At trial, I heard little about the U.S. capital gains in relation to 4484, although the calculation was included in Mr. Slay's Scott Schedule. No argument - certainly no express argument - was advanced to persuade me that it should be treated as family debt. Rather, its status as family debt was treated as obvious by Mr. Fox, and the amount as calculated (based on the value of 4484 as of trial) was simply treated as a necessary deduction to arrive at the net value of 4484 for division. [131] In submissions,

Ms. Allen did not address the matter. However, based on Ms. Allen's Scott Schedule, the only acceptable deduction from the appraised value of 4484 was the Coast Capital mortgage, and the only other debt Ms. Fox agreed was family debt was the loan in connection with the 2017 Ford F150. I conclude, therefore, that Ms. Fox's position is that any liability arising from U.S. capital gains is not family debt. [132] In the circumstances, and without evidence (or argument) to support Mr. Fox's position, I have concluded that I must accept Ms. Fox's position. [133] In my opinion, the maintenance fees associated with the Orange Lake Time-share are family debt. To the extent that maintenance fees were accruing after separation, they are being incurred for the purpose of maintaining that property. [134] The two credit cards, the TD line of credit and the personal loan from Lindsay Glazer are debts in Mr. Fox's name. Mr. Fox explained that, after separation, he drew on the TD line of credit to pay spousal and child support, as well as living expenses. He said that he used money from the loan from Mr. Glazier (a friend) to pay living expenses. [135] Financial obligations incurred by a spouse after separation, if incurred for the purpose of maintaining family property, will qualify as family debt. [136] However, there was no attempt to justify either the TD line of credit or the loan from Mr.

Glazer as being incurred "for the purpose of maintaining family property." No analysis in that respect was undertaken by Mr. Slay and I decline to do it on my own. Rather, based on Mr. Fox's evidence, the money was used for purposes other than maintaining family property, and I so find. I draw the same conclusion regarding the Mastercard and Capital One credit cards balances. These are not family debts. [137] The result is that, in addition to the mortgage on 4484 and the loan in relation to Mr. Fox's Ford truck, the family debts are: Creditor Amount for division Coast Capital Line of credit (associated with Chequing account 6996) $19,713 Maintenance fees on the Orange Lake Time-share $3,000 [138] Neither Ms. Fox nor Mr. Fox has any responsibility for debts of the other party that are not family debts: see FLA s. 81(b). (j) Division and allocation of family property and family debt [139] I turn then to final division and allocation of family property and family debt. [140] The parties agree that the Primerica RESPs 82CE and 33CE, as well as Trez Capital account 0337, should continue to be held by Ms. Fox for the benefit of BF and LF, subject to Ms. Fox providing an annual accounting to Mr. Fox. I so order. [141] With respect to the Orange Lake Time-share, I order that, within 30 days of the date of these Reasons, this property be listed for sale, and the net proceeds of sale,

after payment of any costs associated with the sale and all outstanding maintenance fees, be divided equally between Ms. Fox and Mr. Fox. [142] I turn next to the remaining family property and family debt. [143] To determine whether an equal division of family property and family debt is significantly unfair, the court must first determine the property to be divided and then go through the notional exercise of dividing the property and debt equally. Once this is done, the court must then determine whether such an equal division would be significantly unfair, given the provisions of FLA s.

95. See Polard v. Polard, 2017 BCSC 1963, at para. 19. [144] The remaining family property and family debt subject to division are as follows (cents are generally eliminated): Item Value for division 4484 (net of the mortgage and line of credit) $1,076,391.47 Simplii 9819 $1,021.00 Envision Ladner 3708 $1,000.00 Trez Capital 5991 $101,091.00 Trez Capital 6696 (net after excluded property) $13,726.00 TD T50A $21,309.00 TD T50J $16,827.00 TD 576J $323.00 Primerica 662CR $100,131.00 Primerica 110 CS $66,907.00 Blue Shore 951 $61,062.00 Worldsource 611 $13,918.00 Great West Life certificate #63 $52,123.00 TD T50S $17,360.00 TD 181S $7,703.00 Great West Life certificate #57 $8,987.00 2017 Ford F150 Truck (net) $8,876.00 2002 Trophy Bayliner $15,000.00 2007 BMW Motorcycle $5,000.00 Vespa Scooter $800.00 Total $1,589,555.47 [145] Thus, the "net" family property subject to division is $1,589,555.47. 50%, or an equal division, is $794,777.70 (rounded). [146] Based on the net value in 4484 and the Simplii account (a joint account) being divided equally, and each party otherwise keeping the property in that person's name, the allocation would be as follows: Item Ms. Fox Mr. Fox 4484 $538,195.73 $538,195.73 Simplii 9819 $510.50 $510.50 Envision Ladner 3708 $1,000.00 $0.00 Trez Capital 5991 $101,091.00 $0.00 Trez Capital 6696 $13,726.00 $0.00 TD T50A $0.00 $21,309.00 TD

T50J $0.00 $16,827.00 TD 576J $0.00 $323.00 Primerica 662CR $100,131.00 $0.00 Primerica 110CS $66,907.00 $0.00 BlueShore 951 $61,062.00 $0.00 Worldsource 611 $13,918.00 $0.00 Great West certificate #63 $52,123.00 $0.00 TD T50S $0.00 $17,360.00 TD 181S $0.00 $7,703.00 Great West certificate #57 $0.00 $8,987.00 2017 Ford F150 Truck (net) $0.00 $8,876.00 2002 Trophy Bayliner $0.00 $15,000.00 2007 BMW motorcycle $0.00 $5,000.00 Vespa $0.00 $800.00 Totals: $948,664.23 $640,891.23 [147] Based on this allocation, and to equalize the division, Ms. Fox would make a compensation payment of $153,886.53 ($948,664.23 minus $794,777.70) to Mr. Fox. Ms. Fox would retain in specie all of her RRSP accounts. Mr. Fox would retain the four TD accounts (TD T50A, T50J, T50S and T181S) holding the Flower One shares, and, going forward, bear the risks (and rewards, if any) of holding those shares. [148] In terms of allocation of the assets (although not in terms of the value assigned), this division is close to what Ms. Allen proposed in her Scott Schedule. I note that Ms. Allen proposed that Ms. Fox retain 100% of the net value of 4484 and make a compensation payment to Mr. Fox. [149] However, Ms. Fox says that an unequal division of family property is justified in this case. [150] In submissions, Ms. Allen relies in particular on FLA s. 95(2)(f) and (g), which I repeat here for convenience: (2) For

the purposes of subsection (1), the Supreme Court may consider one or more of the following: . . . (f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends; (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 exchange 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. [151] In oral submissions, Ms. Allen also cited FLA s. 95(3), which provides: (3) The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal support, the objectives of spousal support under section 161 have not been met. [152] However, apart from its mention in oral submissions, unequal division on the basis of s. 95(3) was not pursued. I do not intend to address it further. [153] In submissions, and in the claimant's Scott Schedule, Ms. Allen argued that a 65/35 reapportionment in Ms. Fox's favour was

appropriate and justified. However, this was based on a total net value of family property (other than RRSPs and pensions) of $1,739,442. Moreover, this value assumed a combined value for TD T50A and TD T50J (accounts holding Flower One shares) of $499,643, compared with the value I have found ($38,136). In the claimant's Scott Schedule, the assumed value of $499,643 was then allocated to Mr. Fox as part of his 35% share. In short, Ms. Fox sought both to have TD T50A and TD T50J valued as of the fall of 2018 (rather than trial) and then, assigning that value to Mr. Fox, to have family property reapportioned in her favour. If the values as of trial of TD T50A and TD T50J are used, the division of family property proposed in the claimant's Scott Schedule is closer to a 95/5 reapportionment in Ms. Fox's favour, rather than 65/35. [154] In the claimant's Scott Schedule, it was also proposed that the parties keep the RRSP and pension assets in their own names without division. The Schedule showed that this resulted in approximately an equal division. However, on Mr. Fox's side, the values used for TD T50S and TD 181S were not the values as of trial, but the values of the cash and shares transferred from the Odlum Brown RRSPs in September 2018, and then used by Mr. Fox to purchase Flower One shares. If the values as of trial are used, the division of these assets is also weighted

heavily in Ms. Fox's favour. [155] Ms. Allen argues, with respect to the two non-RRSP accounts (TD T50A and TD 50J), that Mr. Fox has been unable to account for what would have been family property that he "must have" used to acquire the Flower One shares, and therefore Mr. Fox should essentially be deemed to have used $499,643 to acquire these shares. [156] Ms. Allen arrives at the value of $499,643 in this way: 477,184 shares acquired in October 2018 minus 100,000 shares purchased via the $200,000 loan balance is 377,184 shares. To acquire these shares at a unit price of $1.59 requires $599,722. The sources of funds identified are $90,080 (from the TD TFSA, and agreed to by Ms. Fox) and $10,000 (from Ms. Kaulius). Therefore, Mr. Fox must have had access to another $499,643 (rounded) to acquire the Flower One shares, for which he has never accounted. [157] Ms. Allen argues that Mr. Fox's evidence concerning the price at which he was able to acquire Flower One shares, and the circumstances in which he claimed to have acquired shares for his family members, should not be believed. In Ms. Allen's submission, the evidence from David Fox did not support Mr. Fox's position, and there was no explanation offered for not calling Mr. Fox's father or his sister. In Ms. Allen's submission, the inference I should draw is that the evidence of Mr. Fox's father and sister would not have

supported Mr. Fox's claim to having purchased 164,926 Flower One shares with money from family members. In Ms. Allen's submission the remainder of the funds needed to purchase Flower One shares in 2018 "must have" come from family funds that have not been disclosed in this action, despite numerous requests. [158] With respect to the Flower One shares purchased for Mr. Fox's two TD RRSP accounts, Ms. Allen submits that this is a case of Mr. Fox wasting a stable asset (the assets in the Odlum Brown RRSP accounts), which would have been family property. Ms. Allen argues that Mr. Fox did so by transferring cash and the Alphabet shares in the Odlum Brown accounts, and then using those assets to purchase Flower One shares in the TD RRSP accounts. [159] Ms. Allen argues that Mr. Fox's purchase of Flower One shares - a volatile stock - and his subsequent failure to sell those shares when the market was good amount to a wasting and disposal of family property that has caused Ms. Fox's interest in that property to be defeated or (at the very least) adversely affected. Therefore, an unequal division is justified. [160] Mr. Slay submits that matters relating to the Flower One shares do not justify an unequal division of family property. Mr. Slay submits that I should accept Mr. Fox's evidence concerning both the sources of funds used to acquire the 477,184 Flower One shares and the prices

at which he was able to acquire those shares. Mr. Slay argues that Ms. Fox's assertion that the "remainder of the funds" to purchase Flower One shares "must have come from family funds that have not been disclosed" is simply speculation, and Mr. Fox was not cross-examined on the point. Mr. Slay says further that Mr. Fox had no power to affect the market price of Flower One shares, and the market ultimately determined their value. He points out that Ms. Fox was following the stock price for Flower One. However, she never applied for an order compelling Mr. Fox to sell the shares, and in August 2019, when the market was still relatively good, the freezing order was made under FLA s. 91. [161] The test for significant unfairness under FLA s. 95 is explained in Jaszczewska v. Kostanski, 2016 BCCA 286, at paras. 41-43: [41] . . . The test of "significant unfairness" imposes a more stringent threshold than the mere "unfairness" test of the FRA to allow unequal division by a court. As Mr. Justice Butler observed in Remmem v. Remmem, 2014 BCSC 1552, "significant" is defined as "extensive or important enough to merit attention" and the term refers to something that is "weighty, meaningful or compelling." He concluded that to justify an unequal distribution "[i]t is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2)": Remmem at para.

44. As the judge here noted at para. 162 of her reasons, the Legislature intended the general rule of equal division to prevail unless persuasive reasons can be shown for a different result. I agree. [42] No doubt the nuanced meaning attaching to the test of "significant unfairness" will develop in the case law. . . . [H]owever, one can say that reapportionment will require something objectively unjust, unreasonable or unfair in some important or substantial sense. [43] The determination of whether an equal division would be significantly unfair is also guided by a more precise identification of relevant factors than was found in the FRA. . . . [162] In argument, Ms. Allen cited J.D.G. v. J.J.V., 2016 BCSC 2389 and S.L.C. v. J.R.C., 2020 BCSC 463, as examples of cases where the court had ordered a reapportionment of family property on grounds of one spouse's dissipation or waste of assets and non-disclosure of assets. In Ms. Allen's submission, both cases support Ms. Fox's position here. [163] In J.D.G. v. J.J.V., for example, Fleming J. discussed both FLA s. 95(2)(f) and (g), and wrote, at paras. 238-239: [238] In Jacoubsen v. Jacoubsen (1991), 60 B.C.L.R. (2d) 40 (C.A.), the court had interpreted Newson as providing for compensation orders where assets have been deliberately given away, disposed of, or wasted to defeat the interest of the other spouse or reducing the amount

available for distribution. Lawrence emphasized however it was not the motive for depletion or wasting of assets that triggered the court's jurisdiction to reapportion family assets. Instead, it was the fact they had been depleted or wasted, thereby defeating the intent of the FRA to effect an equal division of all (family) assets. Accordingly, the appropriate inquiry when applying s. 65 was not whether the spouse's unreasonable conduct was responsible for the loss, but whether as a result, he or she reduced the amount available for distribution in circumstances that rendered an equal division unfair. [239] This analysis appears consistent with s. 95(2)(f), not (g), which allows the court to consider whether a spouse, after separation, has caused a significant increase or decrease in the value of family property or debt beyond market trends, focusing on the effect of the conduct only. In contrast, s. 95(2)(g) includes a fault element or motive for spousal conduct. It applies where "a spouse, other than a spouse acting in good faith", disposes of or substantially reduces the value of family property. [164] In the result, Fleming J. concluded that the claimant-husband's disengagement from his business (with the resulting decline) did not justify a reapportionment in the respondent-wife's favour under FLA s. 95(2)(g): see para.

258. However, the claimant's gambling amounted to wasting family property amounting to almost $300,000, and justified a reapportionment in favour of the respondent. [165] In S.L.C., Winteringham J. considered arguments by the claimant-wife that reapportionment was justified on two grounds: the respondent-husband's dissipation of family assets and his non-disclosure of assets. With respect to the latter, Winteringham J. wrote, at para. 210: [210] When I consider the economic characteristics of this marriage and following the analysis in Singh [Singh v. Singh, 2020 BCCA 21], I find that the claimant has established that the respondent has undisclosed assets and I have imputed an income to the respondent based in part on undisclosed income. In making this determination regarding assets, I have taken into account Mr. Sturgess' conclusions regarding the depletion of value from the companies, the various disclosure applications and subsequent noncompliance and the expenses recorded by the respondent post-separation. I find that during the years following separation, the financial evidence demonstrates the respondent has had access to funds that far exceed what he has reported. Significantly, even taking into account the depletion of the 07 Company, the respondent has had access to funds exceeding $443,700. In other words, the disparity between the respondent's reported living

expenses and reported income is not fully answered solely by reference to the loss in value of the 07 Company. In this case, I find on a balance of probabilities that the respondent has assets and income at his disposal that he has failed to disclose. [166] In the result, Winteringham J. concluded that an equal division would result in significant unfairness to the claimant-wife, having regard in particular to the factors in FLA s. 95(2)(f) and (g) and her findings that the respondent-husband had dissipated a corporate asset and hidden assets: see S.L.C., at paras. 216 and 218. [167] In support of Mr. Fox's position that an unequal division was not justified on the facts here, Mr. Slay cited Stevens v. Stevens, 2019 BCSC 596. There, the parties' company suffered a significant drop in income post-separation. The claimant-wife argued that the conduct of the respondent-husband resulted in the loss of the company as family property that would otherwise have been divided equally. [168] However, Wilson J. found that the decrease in value of the company was not due to the respondent-husband's conduct but market trends, and that the claimant-wife had failed to make out a claim for reapportionment, based on FLA s. 95(2)(f) and (g). Wilson J. wrote, at para. 67: [67] . . . [A]lthough subsections 95(2)(f) and (g) of the FLA contemplate different circumstances, each requires a party to

show, in the context of a decrease in value or loss of family property, that the other party was the cause of the decrease; poor conduct alone absent causation is not sufficient to engage either subsection to justify a reapportionment. [169] Here, I have not been persuaded that it would be significantly unfair to divide the net family property equally. [170] In my view, the evidence relating to the purchases of the Flower One shares supports the conclusion that Mr. Fox was acting in good faith. This is not a case where Mr. Fox recklessly gambled away significant amounts of money, or deliberately set out to depress or destroy the value of family property so as to prejudice Ms. Fox's interests. In my view, there is no basis to conclude that, when Mr. Fox moved his RRSP accounts from Odlum Brown to TD, he was expecting the value of those accounts largely to disappear. For a reasonable time, including well into 2019 (and, indeed, as of the judicial case conference in August), the investments in Flower One shares were profitable. They were real investments, with a significant market value. Mr. Fox had no ability to affect the market. At worst, he can be faulted for not making more efforts to sell the Flower One shares when the market was good in 2019. However, in my view, he should not be the only one saddled with the consequences. [171] I turn then to the argument based on the

assumption that Mr. Fox "must have" used other, undisclosed family assets, amounting to almost $500,000, to acquire the Flower One shares. In short, this argument assumes that, in 2018, Mr. Fox had very significant hidden assets. [172] In my opinion (and unlike the situation before Winteringham J.) the evidence taken as a whole does not support that conclusion. Although Ms. Fox had many, many complaints about Mr. Fox's disclosure of information in this action, and Mr. Fox often seemed to go out of his way to delay providing documents and information, eventually the information was disclosed. There is nothing to suggest that, for example, on his income tax returns, Mr. Fox failed to disclose all sources of income, and had access to funds far in excess of what he reported. There was nothing to suggest that Mr. Fox was living far beyond his known means and therefore was hiding assets. At trial, nothing was identified as a hidden source of money or property. The existence of such is speculation. Moreover, it was never put to Mr. Fox directly on cross-examination that, in October 2018, he had other, very substantial sources of funds - family property of about half a million dollars - about which Ms. Fox knew nothing, that he used to purchase Flower One shares for TD T50A. There is simply no evidence that Mr. Fox ever had access to funds in anything close to that amount in the Fall

of 2018. The scenario advanced is speculation, and not borne out by the evidence. [173] The other explanation for how Mr. Fox was able to acquire the Flower One shares is the one provided by Mr. Fox, namely, that the shares were not acquired at a "unit price" of $1.59 (for example) but a myriad of prices (some very low). In my view, Mr. Fox's explanation is consistent with Mr. Fox's discovery evidence read in as part of the claimant's case concerning the background to Flower One going public (although Mr. Fox was vague on the details). Thus, in my view, Mr. Fox's evidence on these points is more in harmony with the preponderance of probabilities that a practical and informed person would recognize as reasonable in the circumstances, unlike the scenario advanced by Ms. Fox in argument. [174] The scenario advanced by Ms. Fox in argument also ignores altogether contributions from Mr. Fox's family members. While the evidence here is somewhat thin, I accept David Fox's evidence that he put up cash to acquire the Flower One shares - about 100,000 - that he holds. It was not put to Mr. Fox on cross-examination that he received nothing from his family members, although that is the conclusion I am being asked to draw based on Ms. Allen's closing submissions. [175] In the result, I am not persuaded that, having regard to the factors described in FLA s. 95(2)(f) and (g), it would be

significantly unfair to divide the net family property equally. [176] Accordingly, I order that the following family property be allocated in this way: Item To Ms. Fox To Mr. Fox 4484 $538,195.73 $538,195.73 Simplii 9819 $510.50 $510.50 Envision Ladner 3708 $1,000.00 $0.00 Trez Capital 5991 $101,091.00 $0.00 Trez Capital 6696 $13,726.00 $0.00 TD T50A $0.00 $21,309.00 TD T50J $0.00 $16,827.00 TD 576J $0.00 $323.00 Primerica 662CR $100,131.00 $0.00 Primerica 110CS $66,907.00 $0.00 BlueShore 951 $61,062.00 $0.00 Worldsource 611 $13,918.00 $0.00 Great West certificate #63 $52,123.00 $0.00 TD T50S $0.00 $17,360.00 TD 181S $0.00 $7,703.00 Great West certificate #57 $0.00 $8,987.00 2017 Ford F150 Truck (net) $0.00 $8,876.00 2002 Trophy Bayliner $0.00 $15,000.00 2007 BMW motorcycle $0.00 $5,000.00 Vespa $0.00 $800.00 Totals: $948,664.23 $640,891.23 [177] I order that Mr. Fox have sole responsibility for the loan associated with the 2017 Ford Truck, without contribution from Ms. Fox. [178] To equalize the division, I order that Ms. Fox make a compensation payment of $153,886.53 ($948,664.23 minus $794,777.70) (the "Compensation Payment") to Mr. Fox. [179] I order that the Compensation Payment, less the amounts described below relating to retroactive child and spousal support owing and payable by Mr. Fox to Ms. Fox, will be due and payable by Ms. Fox to Mr. Fox: (a) 90 days from the date

of these Reasons if Ms. Fox exercises her right to purchase Mr. Fox's interest in 4484; or (b) if 4484 is sold to a third party, from Ms. Fox's share of the net proceeds of sale of 4484. [180] Ms. Fox has expressed an interest in remaining with the children in 4484. Therefore, I order that Ms. Fox will have the right to purchase Mr. Fox's share of that asset on payment to Mr. Fox of $538,195.73 within 45 days of the date of these Reasons (unless that deadline is extended by agreement) and concurrently assuming sole responsibility for both the family debt secured against 4484 and 50% of the Coast Capital line of credit, without contribution from Mr. Fox. Mr. Fox will be responsible for the remaining 50% of the Coast Capital line of credit. [181] If Ms. Fox does not purchase Mr. Fox's share of 4484, then I order that: (a) after the expiry of 45 days from the date of these Reasons (unless that deadline is extended by agreement), the parties shall list 4484 for sale, at a listing price of no less than $1,350,000 unless otherwise agreed; (b) the parties shall have joint conduct of sale; (c) the parties shall retain a mutually agreed upon realtor and pay the real estate agent a commission of not more than 7% of the first $100,000 of the gross proceeds of sale and not more than 3.5% of the balance of the gross proceeds of sale (the "Real Estate Commissions"); (d) from the gross

proceeds of sale, the following expenses shall be paid: (i) any necessary adjustments between the vendor (the parties) and the purchaser(s); (ii) any sums required to pay and discharge the Coast Capital mortgage and to pay the Coast Capital line of credit; (iii) the Real Estate Commissions; and (iv) legal fees and disbursements relating to the sale of 4484; (e) the remaining proceeds shall be divided equally between Ms. Fox and Mr. Fox; (f) from Ms. Fox's share, and before distribution of the net amount to Ms. Fox, Ms. Fox will pay to Mr. Fox the Compensation Payment less the amounts described below relating to retroactive child and spousal support owing and payable by Mr. Fox to Ms. Fox. [182] The parties have liberty to apply for directions, if necessary, in relation to the sale of 4484.

5. Child support [183] I turn next to child support. [184] I will deal first with ongoing child support. The main issue concerns Mr. Fox's income for purposes of the Federal Child Support Guidelines, SOR/97-175 (the "Guidelines"). The parties are agreed that, at this time, it is appropriate to impute a Guidelines income to Mr. Fox, however they do not agree on the amount. [185] There is no dispute concerning the basic principles. [186] Child support is the right of the child, and it survives the breakdown of a marriage. Parents have a joint and ongoing legal obligation to support the children of the marriage, so that the children continue to benefit from the financial means of both parents just as they would if the parents were still together. [187] Section 15.1(3) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides that the calculation of child support is governed by the Guidelines. In order to meet his or her child support obligation, each parent must earn what that parent is capable of earning within the specific context and circumstances of the family. This principle is reflected in s. 26.1(2) of the Divorce Act, which provides that the Guidelines are "based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation." [188]

Imputing income is the mechanism by which the court gives effect to the legal requirement that a parent must earn what the parent is capable of earning. In other words, when determining the child support obligation, the court considers not only the amount of income a parent actually earns, but the amount of income a parent could earn if working to capacity. Section 19 of the Guidelines states in part that: 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; . . . [189] On behalf of Ms. Fox, Ms. Allen submits that a Guidelines income of $225,000 should be imputed to Mr. Fox, beginning September 1, 2021, on the basis that Mr. Fox is intentionally under-employed and not working to his income-earning capacity. [190] For the purposes of both child and spousal support, there is a broad judicial discretion to impute income to either or both spouses. The party seeking to have income imputed to the other spouse has the burden of establishing an evidentiary basis for such a finding. The test for imputing income for intentional under-employment or unemployment is one of reasonableness, having regard to a parent's capacity to earn income in light of the parent's age, education, health, work history and work availability. See Marquez v. Zapiola, 2013 BCCA 433, at paras. 36-37; Hanson v. Hanson, 1999 CanLII 6307 (B.C.S.C.), at para. 14; and Watts v. Willie, 2004 BCCA 600, at para.

16. A parent is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning: Melnyk v. Glynn, 2012 BCSC 219, at para. 29. [191] Ms. Allen submits that there is no dispute concerning Mr. Fox's education and historical employment, up to his termination in July 2020 by Windset. Ms. Allen says that, given Mr. Fox's extensive history in project and facilities management, it was inappropriate for Mr. Fox to have taken the position at Endeavor, in an industry (financial services) in which he had no prior experience and for a salary that was about half of what he had been earning at Windset. Ms. Allen argues that Mr. Fox's evidence shows that his job search efforts after he was terminated from Windset, and before he accepted the position at Endeavor, were meagre at best. Ms. Allen argues that since Mr. Fox's employment at Endeavor was terminated in January 2021, and taking into account the issues arising from Mr. Fox's work-related injury in April 2020 and his shoulder surgery in 2021, he has done little to find new employment, and the efforts he has made are not sufficient. [192] Ms. Allen points out that, under s. 17 of the Guidelines, the court can consider a spouse's pattern of income in determining the spouse's Guideline income. She notes that a 3-year average of Mr. Fox's income from all sources would be about $238,000, while a 4-year

average would be about $227,000. Accordingly, in Ms. Allen's submission, I should impute a Guidelines income of $225,000 to Mr. Fox beginning September 1, 2021. Ms. Allen argues that Ms. Fox and the parties' children are in need of support, and says that Mr. Fox has the capacity to earn a significant income, which, it appears, Mr. Fox has elected to forgo. [193] On behalf of Mr. Fox, Mr. Slay says that a Guidelines income of $100,000 should be imputed to Mr. Fox effective January 1, 2021, subject to an annual review beginning June 2022. In submissions, Mr. Slay explained that the figure of $100,000 was derived from $8,666 which Mr. Fox earned from Endeavor for January 2021 and $49,772 for WorkSafe Benefits from February to December 2021. Mr. Slay explained that the figure also included $22,936, which represents the amount Mr. Fox may earn if he is successful in finding new employment before the end of 2021. In Mr. Slay's submission, an imputed income of $100,000 would allow Ms. Fox and the parties' children the benefit of any potential earnings Mr. Fox might receive if he secured employment for the remainder of 2021. In Mr. Slay's submission, any increase in Mr. Fox's income when he finds new employment will be accounted for following an annual review of child support. [194] In Mr. Slay's submission, there is significant uncertainly regarding Mr. Fox's income given his shoulder

injury. He points to Mr. Fox's evidence that, as of trial, he had not yet been cleared for work by his surgeon, although Mr. Fox was hopeful that would occur at the end of August 2021. The imputation of income assumes that Mr. Fox would find employment in the fall of 2021. [195] In Mr. Slay's submission, the effect of Mr. Fox's evidence is that he was not intentionally under-employed while at Endeavor nor was he intentionally under-employed or unemployed as of trial. Mr. Slay points out that, although Mr. Fox has an engineering degree, holding such a degree was never a job requirement in any of his previous positions. Mr. Fox has not been employed as an engineer. [196] In Mr. Slay's submission, Mr. Fox should not be found to be intentionally either under-employed or unemployed. His termination from Windset happened through no fault of his own. His position was eliminated, and Mr. Fox was also told that Covid-19 was a factor in his termination. In the midst of the pandemic, Mr. Fox sought new employment quickly. Within a month of his termination, he was hired at Endeavor in a middle-management position, although in a business in which he lacked experience. Mr. Fox explained one of the reasons why he felt he needed to find new employment quickly was to maintain extended health benefits for himself and the children. When he was hired at Endeavor, Mr. Fox was continuing to suffer

the effects of the injury to his left shoulder. His position at Endeavor allowed Mr. Fox to take Fridays off when he had parenting time with the children. This was something that Ms. Fox insisted on, even if the children were in school during the day. Mr. Fox's shoulder symptoms continued to affect him, despite physiotherapy, and eventually surgery was required. Following surgery, Mr. Fox had his arm in a sling. [197] In Mr. Slay's submission, and contrary to the arguments advanced by Ms. Allen, I should find that Mr. Fox was actively seeking new employment, while he awaited clearance from his surgeon to return to work. Mr. Slay says that Mr. Fox's history demonstrates that he has always sought to be industrious, and has had a long and successful track record of employment. In Mr. Slay's submission, Mr. Fox's history has shown that he is not a shirker and he has sought to maintain a reasonable income to meet his support obligations. [198] I have not been persuaded that, as of trial, Mr. Fox was intentionally either under-employed or unemployed. Rather, in my view, Mr. Fox was making genuine and reasonable efforts to find suitable employment for someone his age, with his education and work experience, and given the physical issues arising from his shoulder injury. There was no evidence that any suitable positions, at an income approaching the income Ms. Fox seeks to have imputed

to Mr. Fox, were available, and Mr. Fox declined to take advantage of the opportunity to apply. Even had such positions been available, there would be no guarantee that Mr. Fox would be the chosen candidate. Ms. Fox bears the burden of establishing an evidentiary basis for a finding that a job or jobs were available for Mr. Fox at an annual income of $225,000, and he chose not to pursue them, in other words, that he has chosen not to earn what he is capable of earning. In my view, Ms. Fox has not satisfied her burden. [199] In addition, Mr. Fox is not in a position where he can afford not to work. He needs income from employment to support himself (as well as his children). Based on Exhibit 9, his monthly expenses are over $14,000. He has gone into debt to make child and spousal support payments. The conclusion I draw is that, in his circumstances, Mr. Fox is motivated to find work at a good income, but has been unable to do so. As of trial, he was continuing to look for work. In my view, Ms. Fox's disdain for his efforts was not justified, and her expectations of what he should have been able to achieve are not reasonable, based on the evidence before me. [200] In argument, Mr. Slay proposed that a Guidelines income of $100,000 be imputed to Mr. Fox, subject to an annual review. I have concluded that, while it is reasonable for Mr. Fox to be given more time to find suitable

employment, an increase in his Guidelines income needs to come more quickly than what might be the case on an annual review. In my view, Ms. Fox and the parties' children need and are entitled to some certainty in that respect. [201] Accordingly, at this time, I impute a Guidelines income to Mr. Fox of $100,000. However, beginning July 1, 2022, I impute a Guidelines income to Mr. Fox of $150,000. By that time, Mr. Fox will have had almost two years to find suitable employment, in the light of his age, education and work history. There was no indication as of trial that his shoulder issues were likely to become chronic or, in the long term, prevent him from performing the type of work he was doing while employed at Windset. If, as of July 1, 2022, Mr. Fox's actual income, calculated in accordance with the Guidelines, is greater than $150,000, his obligations respecting child support will be based on his actual income, rather than the imputed income. [202] Based on a Guidelines income of $100,000, the monthly basic child support payable for two children is $1,522. [203] Accordingly, I order that: (a) based on an imputed Guidelines income for Mr. Fox of $100,000, Mr. Fox pay to Ms. Fox basic child support in the sum of $1,522 per month, commencing on February 1, 2022, and continuing on the first day of each and every month thereafter up to and including June 1, 2022; and (b)

commencing on July 1, 2022, and based on the higher of an imputed Guidelines income for Mr. Fox of $150,000 or his actual Guidelines income, Mr. Fox pay to Ms. Fox basic child support in the table amount for two children based on his Guidelines income (either imputed or actual, whichever is higher), and continuing on the first day of each and every month thereafter for so long as the children (BF and LF) remain eligible for support or until further agreement of the parties or court order. [204] I turn then to s. 7 expenses. [205] In addition to basic child support, s. 7 of the Guidelines gives the court the discretion to order payment of an amount over and above the regular table amount. In Clarke v. Clarke, 2014 BCSC 824, Baird J. provides a very useful discussion of special or extraordinary expenses under s. 7, beginning at para. 48: [48] Section 7 of the [Guidelines] gives the court the discretion to order payment of an amount over and above the regular table amount. However, in order to qualify for a s. 7 order, the expenses must be proven to be "special" or "extraordinary" in some way. [49] This is because the basic table amounts of child support are designed to cover all the "ordinary" costs of raising a child: [citation omitted]. Food, shelter, clothing and other necessities are all ordinary, as are many educational, extracurricular and recreational expenses: [citation

omitted]. [50] So when does an expense qualify as special or extraordinary? First, it must fit within one of the categories of expenses listed in section 7, as follows: (a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. [51] That list is exhaustive. If the claimed expense does not fit into any of those categories, it cannot be a special or extraordinary expense: [citation omitted]. [52] Even where an expense fits into one of the listed categories, that is not the end of the story. The expenses must be both "necessary" -- as defined in relation to the child's best interests -- and "reasonable," as measured against the combined financial means of the parents (and, where appropriate, the child) as well as the family's spending patterns prior to separation: see section 7(1) and Yensen v. Yensen, 2003 BCSC 1372 at para.

8. In addition if the expense is one listed under subsection (d) or (f) -- educational programs or extracurricular activities -- the party claiming the expense must prove that they are "extraordinary." [53] There is no straightforward definition for "extraordinary" although section 7.1, recently added to the Guidelines, provides some guidance; it requires a sort of proportionality inquiry, looking at the nature and number of activities, any special needs or talents of the child, the overall cost of the activities, and any other similar relevant factors: [citation omitted]. [54] Because the tests are fact-specific, I cannot definitively say what types of expenses qualify in every case. But I can say what does not qualify as special or extraordinary: - Expenses such as "entertainment, pets, vacations, school fees, school supplies, children's allowances, meals outside the home, personal grooming, and clothing" are not section 7 expenses: [citation omitted] - A home computer and other similar technologies do not qualify as extraordinary as they are "common item[s] found in most homes": [citation omitted]. - Recreational sports and other similar extracurricular activities -- dance lessons, community sports leagues, ski trips, etcetera -- are generally considered "ordinary." The question is whether the participation goes beyond that of the "average child": [citation omitted]. [206]

The parties are agreed that Ms. Fox's Guidelines income for purposes of s. 7 expenses should be imputed at $45,937. On the basis of Mr. Fox's and Ms. Fox's current imputed Guidelines incomes, Ms. Fox's proportionate share of s. 7 expenses is 32% and Mr. Fox's proportionate share is 68%. [207] Based on the draft orders provided with the parties' closing submissions, Ms. Fox and Mr. Fox are generally agreed on what should be considered s. 7 expenses going forward and how payment should be made (see paras. 5, 6 and 7 of the draft orders). In those circumstances, I am satisfied terms dealing with such matters are appropriate, and I so order as set out under the Summary and disposition below. [208] The draft orders also included terms regarding annual disclosure of information relevant to determining a party's Guidelines income, for the purpose of ensuring that child support continues to be paid having regard to the requirements of the Guidelines. Although counsel were not in complete agreement concerning these terms, there was significant agreement, and, in my view, it is appropriate to set out in an order what is expected of each of the parties. [209] Accordingly, I order that, beginning on June 1, 2022 and by June 1 of each subsequent year for as long as BF and LF are entitled to receive support: (a) each party shall provide the other with: (i) a copy of the party's complete

Canadian T1 Personal Income Tax return, including all slips and attachments; (ii) a copy of the party's notice of assessment once received (if not received by June 1); (iii) details of all child tax benefits or other similar benefits received in the previous year and anticipated in the coming year, if known; (iv) particulars of the children's s. 7 expenses anticipated for the coming year; and (v) any other relevant information as requested to facilitate determination of the adjustment, if any, required to child support to ensure that it meets the requirements of the Guidelines; and (b) in addition: (i) Mr. Fox shall provide a copy of his complete U.S. income tax return along with the W-2 and other slips and attachments; (ii) Mr. Fox shall provide a copy of his most recent paystub, and details of any employment benefits such as bonuses, commission or other income in excess of a base salary; and (iii) for any year in which Mr. Fox is in receipt of government or disability benefits (including in particular benefits received from WorkSafeBC), copies of any documents relating to benefits Mr. Fox has received in the previous year. [210] In addition, the draft orders included identical terms concerning review and adjustment of child support. Section 14 of the Guidelines provides for variation of child support orders in the circumstances described, and no specific order is necessary in that respect. However, if the parties wish to include in the order following trial terms concerning review and adjustment of child support that would go by consent, they have liberty to do so.

6. Spousal support [211] There is no dispute concerning Ms. Fox's continuing entitlement to spousal support on compensatory and non-compensatory grounds. Like child support, the main area of dispute concerned the income to be imputed to Mr. Fox and whether a review should be ordered (and, if so, on what terms). [212] In closing submissions, both Ms. Allen and Mr. Slay, having regard to the Spousal Support Advisory Guidelines (the "SSAG"), provided helpful calculations using the DivorceMate software. [213] Based on an imputed income of $100,000 for Mr. Fox, and an imputed income of $45,937 for Ms. Fox, and using the "with child" formula under the SSAG, no support is payable by Mr. Fox to Ms. Fox at either the lower or the mid-range. However, in my view, it is appropriate to require spousal support in a nominal amount of $1.00 to be paid, in recognition of Ms. Fox's entitlement to support. [214] The obligation to pay spousal support will also change as of July 1, 2022, when Mr. Fox's Guidelines income will change. Under the SSAG, and based on an imputed Guidelines income of $150,000 for Mr. Fox, spousal support of $1,400 per month (at the mid-range) will be payable to Ms. Fox. [215] Accordingly, I order that, until further order or agreement between the parties, and subject to review: (a) beginning February 1, 2022 and on the first of each month thereafter up to and including

June 1, 2022, Mr. Fox pay to Ms. Fox spousal support in the sum of $1.00; and (b) beginning July 1, 2022 and on the first day of every month thereafter, Mr. Fox pay spousal support to Ms. Fox in the sum of $1,400 per month. [216] I order further that either party may apply for a review of spousal support any time after one year from the date of these Reasons, the focus of the review to be on the quantum of spousal support payable by Mr. Fox based on his Guidelines income. [217] The law is clear that either party can apply for a variation in spousal support if there is a material change which justifies a variation. No specific order is necessary in that respect. [218] The parties agreed on a term whereby Mr. Fox would continue to maintain his current life insurance policy with coverage of $165,000 and will name Ms. Fox as the irrevocable beneficiary of same for so long as child support or spousal support is payable by Mr. Fox. I so order.

7. Retroactive child and spousal support [219] Ms. Fox and Mr. Fox agree that retroactive child support (including s. 7 expenses) and spousal support are payable by Mr. Fox. However, they do not agree on the amounts. [220] Ms. Fox says that, as of trial, Mr. Fox owes: (a) $16,986 in basic child support for 2019, 2020 and 2021 (to August 31). This is based on total owing for the period in issue (which Ms. Fox says begins March 1, 2019) being $83,570 and the total support paid being $66,584; (b) $6,040.54 for his share of s. 7 expenses; and (c) $29,090 for spousal support. This is based on the total owing being $78,700 and the total paid being $49,610. [221] On the other hand, Mr. Fox says that he owes: (a) $15,269 in basic child support for 2019, 2020 and 2021 (to August 31). This is based on the total owing for that period being $74,993 and the total paid being $59,724. (b) $1,502.49 (after set-offs) for his share of s. 7 expenses; and (c) $21,619 for spousal support. This is based on the total owing being $70,735 and the total paid being $49,115. [222] The different amounts are often the result of each party using different assumptions in the calculations. For example, Ms. Fox's retroactive child support and spousal support calculations assume Mr. Fox's Guidelines income for 2020 was $280,326, while Mr. Fox's calculations assume that his Guidelines income for 2020 was

$277,074. The difference in the monthly amount of child support payable in 2020, based on this difference in Guidelines incomes, is $39. The difference in the monthly spousal support payable in 2020 is $4. Ms. Fox's child support calculation assumes that child support was payable beginning March 1, 2019, while Mr. Fox's calculation assumes that child support was payable beginning June 1, 2019 (when Mr. Fox moved out of 4484). [223] I will deal first with retroactive basic child support and spousal support, and then with the retroactive s. 7 expenses. [224] I have concluded that attempting to reconcile the differences in the accounting presented in the closing submissions, and recalculating support amounts, is not an efficient use of judicial time, given the amounts actually involved. I also note that, although in Mr. Slay's written submissions (at paras. 98 and following), he presented a revised calculation of retroactive spousal support factoring in a discount for tax consequences, that presentation was not used in Mr. Slay's draft order. I have decided to follow the presentation in the draft order. [225] I find that, although the parties' separation date was March 1, 2019, the start date for purposes of calculating retroactive child and spousal support is June 1, 2019, in other words, when Mr. Fox physically left 4484. The result is that I accept Mr. Slay's amounts as the

amounts of basic child and spousal support payable. The differences between Ms. Allen's amounts and those of Mr. Slay are almost entirely accounted for by the difference in the start dates. [226] I consider the $39/month difference in child support, and the $4/month in spousal support in 2020 to fall into the de minimus category. The result is that I find that Mr. Fox's Guidelines income for 2020 was $277,074. I note that the parties agreed on Mr. Fox's Guidelines income for 2019, and agreed on an imputed Guidelines income for Mr. Fox for 2021, up to the end of August, of $100,000. [227] I also accept Mr. Slay's statement of the amounts of basic child and spousal support paid by Mr. Fox. These amounts were always less than the amounts stated by Ms. Allen in her Schedule C, and, in that sense, were against Mr. Fox's interest. The difference for spousal support paid was, in any event, only $495. The details of the payments summarized in Mr. Slay's Schedule C were, in my view, supported by the evidence at trial. [228] The result is that up to and including August 31, 2021, Mr. Fox owed to Ms. Fox: (a) retroactive basic child support in the amount of $15,269; and (b) retroactive spousal support in the amount of $21,619. [229] Beginning September 1, 2021, no spousal support was payable by Mr. Fox, based on an imputed income of $100,000. However, monthly basic child support of $1,522

was payable. Therefore, Mr. Fox owes retroactive basic child support for another five months (September to December 2021 and January 2022), totalling $7,610. The grand total of retroactive basic child support owing by Mr. Fox to Ms. Fox is, accordingly, $22,879. [230] I order that Mr. Fox pay to Ms. Fox retroactive basic child support of $22,879 and retroactive spousal support of $21,619, and that such amounts may be paid by being set off against, and deducted from, the Compensation Payment owing by Ms. Fox to Mr. Fox. [231] I turn then to the retroactive s. 7 expenses. [232] Like the basic child support and the spousal support calculations, the accounting of the s. 7 expenses was unnecessarily (given the amounts involved) complicated. There were also some arithmetical errors in Mr. Slay's calculations. [233] In her submissions and calculations, Ms. Allen took a straightforward approach in terms of the percentages allocated to each parent over the entire period, and adopted the percentages in the Dick Order (34% to Ms. Fox and 66% to Mr. Fox). For the s. 7 expenses where there was no dispute between Ms. Fox and Mr. Fox (which were the vast majority of them), Mr. Fox accepted this allocation. However, in Schedule D to Mr. Slay's written submissions, which set out what Mr. Fox said were the outstanding s. 7 expenses he had paid and required contribution from Ms. Fox, different

percentages were used for each year. [234] I can see no useful purpose in recalculating percentages of s. 7 expenses based on the different presentations. The amounts involved do not justify it. The difference between what Ms. Fox says she is owed by Mr. Fox on account of retroactive s. 7 expenses, and what Mr. Fox says he owes, is about $4,500. That is the maximum amount involved. [235] Ms. Fox says that she has incurred s. 7 expenses totalling $11,978.48, and that Mr. Fox should be ordered to pay 66% of that total, less a $500 payment Mr. Fox made on account of a psychoeducational assessment for LF. Ms. Fox says, accordingly, the total owing by Mr. Fox should be found to be $7,405.80. [236] Of the list of expenses presented by Ms. Fox, Mr. Fox objected to two items only: $352 for BF's "L" ICBC insurance; and $2,597.70 for a bicycle for BF. His position is that the insurance is not a proper s. 7 expense, and a bicycle was already available to BF, so the expense was unnecessary and not a proper s. 7 expense. Mr. Fox's share of these expenses would be $1,946.80. [237] In my view, neither of these expenses satisfies the requirements under s. 7 of the Guidelines, as discussed above, and neither is a proper s. 7 expense. Accordingly, Mr. Fox is not required to contribute to these expenses. After deduction of these expenses, Mr. Fox's share of s. 7 expenses paid by Ms. Fox is

$5,459.00 ($7,405.80 minus $1,946.80). [238] Mr. Fox says that he has not received a contribution from Ms. Fox for the school tuition fees he paid for both BF and LF in 2019, 2020 and 2021. Mr. Fox says that, after deducting the available tax credits, the amount owing by Ms. Fox for her share is $4,522.18. Ms. Fox acknowledges that these are proper s. 7 expenses, and she is responsible for her share. [239] After setting off the amounts owing by Ms. Fox and Mr. Fox, Mr. Fox owes Ms. Fox $936.82 ($5,459.00 minus $4,522.18). [240] Accordingly, I order that Mr. Fox pay to Ms. Fox retroactive s. 7 expenses of $936.82. Those expenses may be paid by being set off against, and deducted from, the Compensation Payment owing by Ms. Fox to Mr. Fox.

8. Should Mr. Fox be ordered to pay a fine under FLA s. 213? [241] Pursuant to s. 213 of the FLA, Ms. Fox seeks an order that Mr. Fox pay a fine of $5,000 on account of what she described was Mr. Fox's continued non-disclosure during these proceedings. [242] Section 213 provides in relevant part: 213(1) This section applies if a person (a) fails to comply with (i) an order for disclosure made under section 212, or (ii) a requirement to disclose information in accordance with the Supreme Court Family Rules . . . , within the time or in the manner required by the order or Rules, or (b) provides information that is incomplete, false or misleading. (2) In the circumstances set out in subsection (1), the court may do one or more of the following: . . . (d) make an order requiring the person described in subsection (1) to pay (i) a party for all or part of the expenses reasonably and necessarily incurred as a result of the non-disclosure of information or the incomplete, false or misleading disclosure, including fees and expenses related to family dispute resolution, (ii) an amount not exceeding $5 000 to or for the benefit of a party, or a spouse or child whose interests were affected by the non-disclosure of information or the incomplete, false or misleading disclosure, or (iii) a fine not exceeding $5 000[.] [243] Section 5(1) of the FLA imposes a specific duty to disclose

information, and provides: 5(1) A party to a family law dispute must provide to the other party full and true information for the purpose of resolving a family law dispute. [244] In support of Ms. Fox's request that a fine be paid, Ms. Allen cited J.D.G. v. J.J.V, 2013 BCSC 1274, where Punnett J. wrote, at para. 1: [1] Non-disclosure or delayed disclosure of financial information is a costly impediment to the timely and just disposition of family disputes. It has been described as the "cancer of matrimonial property litigation" (Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.)). Prior to the Family Law Act, S.B.C. 2011, c. 25 (the "FLA") the remedies available to the court to compel pre-trial disclosure were applications for an order for contempt or pursuant to s. 92 of the Family Relations Act, R.S.B.C. 1996, c.128 (the "FRA"). The FLA now provides additional remedies. [245] Beginning at para. 10, Punnett J. then set out some of the background to FLA s.

213. He observed, at paras. 19 and 21: [19] Section 213 expands on s. 92(1) [of the FRA]. Firstly it makes it clear that the remedy for non-disclosure is now available under a wide range of circumstances including situations where a party has provided incomplete, false or misleading information. Secondly the range of remedies available is broader. . . . . . . [21] Section 213 recognizes that non-disclosure is a barrier to the speedy and inexpensive determination of cases. In many cases considerable resources, both private and public, are expended on pre-trial disclosure. This before any consideration of the real issues can be carried out. It is a barrier that should not be countenanced. Private and public resources are better spent on resolving the real issues between the parties rather than being depleted on such matters. [246] Punnett J. also noted (at para. 22) that s. 213 should be read in the context of the FLA's regime of encouraging earlier disclosure, and specifically s.

5. With respect to the goal of proper disclosure, and the role of s. 213 in that respect, Punnett J. wrote, at para. 25: [25] The goal of proper disclosure is to enable the parties to resolve their dispute. In my opinion s. 213 is to be used to secure proper disclosure in a timely and cost efficient way. It therefore requires a robust application to accomplish that end. That should increase the awareness of the importance of timely and complete disclosure and over time lead to fewer applications. In order words, punishment per se is not the end, but rather the means, as the information is required to resolve matters in a just manner. Section 213 provides a mixture of tools to be applied creatively in a manner sensitive to the issues of a particular case. For example where implementation of a payment or a fine may be ineffective the drawing of an adverse inference or a requirement for security may be effective. . . . [247] In the result, Punnett J. ordered the party who had failed to make disclosure (in the form of an F8 financial statement) to pay to the innocent party costs thrown away of an application by that party to compel delivery of the financial statement and a fine of $500. [248] Ms. Fox says that a fine is justified because of Mr. Fox's delay in producing relevant documents, and, in particular: (a) Mr. Fox failed to produce documents (specifically Canadian and U.S.

tax documents) as required by the Dick Order; (b) Mr. Fox did not produce documents relating to his termination from Windset (including the severance he received) until after his application to reduce interim maintenance had been heard by D. MacDonald J. in November 2020, although those documents had been in his possession for months; and (c) Mr. Fox delayed responding to requests made at his examination for discovery held on December 22, 2020, answering some outstanding questions on January 13, 2021 (after the trial began) and the remaining questions on July 21, 2021. [249] Ms. Fox says that her counsel sent many communications to counsel for Mr. Fox, in relation to these matters. She says that Mr. Fox's failure to disclose documents relating to his termination by Windset was strategic, and he was able in their absence to secure a reduction of $1,000 per month in interim spousal support from D. MacDonald J. Ms. Fox points out that, although outstanding requests from Mr. Fox's examination concerned documents related to his purchase of Flower One shares, one account statement for the Odlum Brown accounts was not produced until after the trial started, and the statement that was marked as Exhibit 8 was not produced until shortly before the trial resumed in August 2021. The existence of the Odlum Brown accounts was not disclosed in Mr. Fox's first two F8 financial statements

filed. [250] Ms. Fox says that Mr. Fox's pattern of late disclosure prejudiced her throughout these proceedings. She says that Mr. Fox's late production of his Canadian and U.S. tax information, as required by the Dick Order, prejudiced her ability to bring an application for a balloon payment in respect of child and spousal support, as contemplated by paras. 7 and 8 of that order. Ms. Fox argues that Mr. Fox's late production of documents relating to his termination from Windset "materially impacted" the hearing before D. MacDonald J., resulting in a decrease of interim spousal support when an increase would have been justified. Ms. Fox says that Mr. Fox's late disclosure of the Odlum Brown accounts prejudiced her ability to examine these accounts and the transactions recorded there, particularly the funds that Mr. Fox removed (and moved to the TD RRSP accounts) prior to separation. [251] Ms. Fox says that, for these reasons, a fine at the maximum amount of $5,000 is justified to address the impact of Mr. Fox's late disclosure. [252] Mr. Fox says a fine is not justified. He says that he was not in a position to provide the Canadian and U.S. tax returns by the deadline set in the Dick Order (which were set prior to the pandemic-related measures taken in March 2020) because the returns had not yet been prepared and filed. The deadlines for filing Canadian and U.S. returns were

extended as a consequence of the pandemic. Mr. Fox says further that the prejudice asserted by Ms. Fox is, at best, theoretical and it relates to interim support. In the course of the trial, the information, including information concerning the terms (including severance) of his termination by Windset, was produced, and his obligation to pay retroactive child and spousal support is based on that information. In submissions, Mr. Slay points out that it was never put to Mr. Fox on cross-examination that he deliberately delayed disclosing the Windset termination documents so as to secure a better result before D. MacDonald J. Mr. Slay also submits that the worst that could be said about Mr. Fox was that his production was slow. However, as of trial, everything about which Ms. Fox complains was produced. [253] I do not condone Mr. Fox's failure to comply with the deadline set by the Dick Order for production of documents. A court-ordered deadline is not a polite suggestion. At the very least and as a courtesy to counsel for Ms. Fox, counsel for Mr. Fox would have been well advised to have sent a timely communication explaining the circumstances in which Mr. Fox found himself, and explaining the reason for a delay in producing the tax information. In those circumstances, one would hope that counsel would have been able to agree on an extension of the court-ordered deadline, rather

than incurring the expense of a court application to deal with the problem (or just ignoring the deadline, which is not an acceptable solution). I also do not condone Mr. Fox's late disclosure of documents concerning his purchase of Flower One shares. I did not hear any satisfactory explanation for the very late disclosure (during an unanticipated and lengthy break in the trial) of the Odlum Brown account statement marked as Exhibit 8. Providing full and true information on the eve (or in the middle) of trial does little to facilitate the resolution of a family law dispute. In a high conflict case, it entrenches suspicion and ill-will. [254] However, with respect to the tax information ordered produced by the Dick Order, and Ms. Fox's complaints about the production of documents relating to Mr. Fox's termination by Windset, I am unable to conclude Ms. Fox suffered any actual prejudice. In both cases, the information was being sought in connection with interim orders for child and spousal support. Final orders are now being pronounced following a trial at which all of the information was before the court, and where the parties largely agreed on Mr. Fox's Guidelines income for 2020 (the difference between them was about $3,000). Mr. Fox does not avoid, as a result of late disclosure, having to pay retroactive child and spousal support based on Guidelines income that includes his

severance when his employment at Windset was terminated. Rather, he is being ordered to do so. [255] In addition, apart from the real aggravation associated with having relevant documents produced so late in the day (something that the provisions of the Supreme Court Family Rules and s. 5 of the FLA are designed to avoid), I am not persuaded that Ms. Fox suffered any actual prejudice from the late production of the Odlum Brown account documents. Her counsel (Ms. Allen) was able to effectively cross-examine Mr. Fox using Exhibit 8 in particular. [256] Moreover, I have not been persuaded that making an order at this time requiring Mr. Fox to pay a fine of $5,000 furthers the goal of FLA s. 213 described by Punnett J. in para. 25 of J.D.G. Rather, ordering a fine at this stage would simply be punitive, and it would not be a means to the end of ensuring disclosure in a timely way. [257] Accordingly, Ms. Fox's request for an order that Mr. Fox pay a fine of $5,000 is dismissed.

9. Divorce [258] The parties are entitled to a divorce on the grounds that they have lived separate and apart for more than one year. Accordingly, subject to s. 12 of the Divorce Act, I order that the claimant and the respondent are divorced from each other, the divorce to take effect on the 31st day after the date of these Reasons.

10. Summary and disposition [259] In summary, I make the following orders: (1) subject to s. 12 of the Divorce Act, the claimant and the respondent are divorced from each other, the divorce to take effect on the 31st day after the date of these Reasons; (2) based on an imputed Guidelines income for Mr. Fox of $100,000, Mr. Fox pay to Ms. Fox basic child support in the sum of $1,522 per month, commencing on February 1, 2022, and continuing on the first day of each and every month thereafter up to and including June 1, 2022; (3) commencing on July 1, 2022, and based on the higher of an imputed Guidelines income for Mr. Fox of $150,000 or his actual Guidelines income, Mr. Fox pay to Ms. Fox basic child support in the table amount for two children based on his Guidelines income (either imputed or actual, whichever is higher), and continuing on the first day of each and every month thereafter for so long as the children (BF and LF) remain eligible for support or until further agreement of the parties or court order; (4) commencing on February 1, 2022, and on the basis of Mr. Fox's and Ms. Fox's current imputed Guidelines incomes ($100,000 imputed to Mr. Fox and $45,937 to Ms. Fox), Ms. Fox's proportionate share of s. 7 expenses is 32% and Mr. Fox's proportionate share is 68%, s. 7 expenses to include the following: (a) health-related expenses net of coverage; (b) that portion of

medical and dental insurance premiums attributable to the children; (c) orthodontic expenses net of coverage; (d) optical expenses net of coverage; (e) orthotics expenses net of coverage; (f) counselling fees for the children net of coverage; (g) childcare expenses incurred as a result of either parent's employment or training for employment; (h) school field trip fees; (i) tutoring expenses; (j) the children's extracurricular activity expenses (including all enrollment costs, fees, equipment, uniforms and instruments associated with the activities) for activities that are agreed in advance between the parties with each party's consent not to be unreasonably withheld; and (k) such further and other expenses as may be determined by the court. (5) further with respect to s. 7 expenses: (a) the parties shall pay their respective proportionate share of s. 7 expenses as and when incurred promptly upon provision of a receipt or invoice for payment; (b) neither party shall incur any expense for the children for which reimbursement is sought without the prior agreement of the other parent or order of the court; (c) to the degree possible, the parties shall pay their respective shares of the s. 7 expenses directly to the service provider(s); (d) if either party incurs an expense to which the other party is required to contribute, the other party shall make reimbursement no later than

thirty (30) days upon provision of receipt or invoice; (6) for so long as either of the children is entitled to receive support, the claimant and the respondent shall name each of the children under any medical, extended medical or dental insurance schemes as are available through her or his employment and shall maintain such medical and dental insurance in good standing for the benefit of each of the children for so long as they qualify for the same; (7) beginning on June 1, 2022 and by June 1 of each subsequent year for as long as BF and LF are entitled to receive support: (a) each party shall provide the other with: (i) a copy of the party's complete Canadian T1 Personal Income Tax return, including all slips and attachments; (ii) a copy of the party's notice of assessment once received (if not received by June 1); (iii) details of all child tax benefits or other similar benefits received in the previous year and anticipated in the coming year, if known; (iv) particulars of the children's s. 7 expenses anticipated for the coming year; and (v) any other relevant information as requested to facilitate determination of the adjustment, if any, required to child support to ensure that it meets the requirements of the Guidelines; and (b) in addition: (i) Mr. Fox shall provide a copy of his complete U.S. income tax return along with the W-2 and other slips and attachments; (ii) Mr.

Fox shall provide a copy of his most recent paystub, and details of any employment benefits such as bonuses, commission or other income in excess of a base salary; and (iii) for any year in which Mr. Fox is in receipt of government or disability benefits (including in particular benefits received from WorkSafeBC), copies of any documents relating to benefits Mr. Fox has received in the previous year; (8) until further order or agreement between the parties, and subject to review: (a) beginning February 1, 2022 and on the first of each month thereafter up to and including June 1, 2022, Mr. Fox pay to Ms. Fox spousal support in the sum of $1.00; and (b) beginning July 1, 2022 and on the first day of every month thereafter, Mr. Fox pay spousal support to Ms. Fox in the sum of $1,400 per month; (9) either party may apply for a review of spousal support any time after one year from the date of these Reasons, the focus of the review to be on the quantum of spousal support payable by Mr. Fox based on his Guidelines income; (10) Mr. Fox will continue to maintain his current life insurance policy with coverage of $165,000 and will name Ms. Fox as the irrevocable beneficiary of same for so long as child support or spousal support is payable by Mr. Fox; (11) Mr. Fox pay to Ms. Fox retroactive basic child support of $22,879, retroactive s. 7 expenses of $936.82 and retroactive spousal

support of $21,619, and such amounts may be paid by being set off against, and deducted from, the Compensation Payment owing by Ms. Fox to Mr. Fox; (12) family property (including pensions) and family debt are to be divided and allocated as set out above; (13) the claimant's application for an order that the respondent pay a fine of $5,000 is dismissed. [260] If the parties are unable to agree on costs, and wish to make submissions, they may do so in writing, provided that all submissions shall be filed within 60 days of the date of these Reasons. I will leave counsel to agree on a suitable schedule for the exchange of submissions. Submissions must be no more than 10 pages in length, double-spaced and in a font size no smaller than 12 point, except for quotations. "Adair J."