R.F. v. H.M.

2022 BCSC 38 R.F. v. H.M. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R.F. v. H.M., 2022 BCSC 38 Date: 20220112 Docket: E210846 Registry: Vancouver Between: R.F. also known as I.F. Claimant And H.M. Respondent Before: Master Bilawich Reasons for Judgment Counsel for the Claimant, by videoconference: B. Lin Counsel for Respondent, by videoconference: L. Jiang Place and Date of Hearing: Vancouver, B.C. December 8, 2021 Place and Date of Judgment: Vancouver, B.C. January 12, 2022 [1] The claimant applies for orders on a without prejudice basis, that: a) the respondent pay to the claimant $3,000 per month as interim unattributed support on the 1st day of every calendar month commencing September 1, 2021; b) the respondent pay to the claimant's landlord $2,500 for her rent payment on the 1st day of every calendar month, commencing October 1, 2021; and c) the respondent continue to pay the insurance premium and the monthly car loan payments for the 2021 Ford Explorer SUV (the "Ford SUV"); until further order or written agreement of the parties. The respondent opposes all of the relief sought. [2] The claimant had also applied to change parenting arrangements concerning the parties' two daughters, however, the parties resolved that by agreement. [3] The respondent filed a cross-application for an order that an apartment in China that is registered in the claimant's name be sold via an agent of his choice, that he have conduct of the sale and that net sale proceeds be paid to the claimant for her living expenses. The parties agree that this apartment is family property. The claimant opposes all of the relief sought. [4] Each of the applications had a one-day time estimate. The parties arranged a one-day hearing for the day that this came before me and a separate full day hearing the following week, for a time that I was not available. They opted to proceed with the claimant's application and the respondent's application was adjourned generally. Background [5] On September 15, 2008, the parties began cohabiting in a marriage-like relationship. They have two daughters: a) K.Y.M. ("A."), born June 5, 2012 (age 9); and b) Y.Y.M. ("B.") born February 9, 2018 (age 3). [6] For the majority of the relationship, the claimant did not work outside the home and the respondent was the sole breadwinner for the family. The respondent was initially financially successful and the family enjoyed an affluent lifestyle. Unfortunately, their fortunes appear to have taken a turn for the worse. [7] The parties were in China when the relationship began. They later relocated to B.C. The parties were both in Canada on closed work permits at the time of separation. [8] The parties separated on February 19, 2021. The claimant accused the respondent of committing family violence, which caused her to leave their family home. She initially stayed in a hotel, later a transition house. Eventually she began renting. The respondent has remained in the family home. The respondent denies the allegations of family violence. He suggests they were also rejected by the police who attended at the family home on the date of separation and by the Ministry of Children and Family Development staff. It is not necessary for me to review the allegations for the purposes of this application. [9] In February and March 2021, the parties negotiated a without prejudice interim agreement (the "Interim Agreement") by which the respondent agreed to pay the following for a period of six months, starting on March 1, 2021: a) $3,000 per month to the claimant as unspecified support; b) $2,500 per month directly to the claimant's landlord for rent; and c) Special and extraordinary expenses, including daycare and extracurricular activities for the children. [10] The special and extraordinary expenses being paid by the respondent included the following: a) For B., daycare at $1,400 per month; b) For A., English tutoring once per week for $20 per class, piano lessons at $100 per lesson, ballet lessons at $1,700 per season and Chinese lessons at $300 for 10 classes. [11] The claimant says the respondent has also been paying for A.'s Kumon tutoring of $140 per month and skating expenses of $1,250 per season but has not been paying certain other expenses, including Harvard After School care of $525 per month and painting and drawing classes of $260 per month. [12] The respondent was also paying $750 per month for the car loan on the vehicle the claimant was driving and had pre-paid insurance for the vehicle at $200 per month. [13] The respondent says the terms of the Interim Agreement also provided that the claimant would maintain the pre-separation arrangements for the applications for permanent residency. The claimant was the primary applicant based on her better proficiency in English and the respondent was listed as her dependent. The respondent says that back in August 2020 he had arranged for the claimant to get a mushroom packing job at a friend's farm as part of an employment sponsorship program. The claimant was not supposed to make any changes to her application, including withdrawal, removing the respondent as dependent or suspending her application. [14] It is the respondent's position that $2,000 of the $3,000 in monthly support paid to the claimant under the agreement was for child support and the balance was for spousal support. [15] On March 29, 2021, the claimant filed a notice of family claim and registered certificates of pending litigation ("CPL") on title of two properties which she says are family property. One is the family home at [address redacted] - 33A Avenue, Surrey, BC (the "Surrey Property") and the other is an agricultural property at [address redacted] Blackburn Road, Chilliwack, B.C. (the "Blackburn Farm"). She says she did so to protect her interest in those properties only and did not take steps to serve the respondent. In due course, the Land Title Office sent the respondent notice that the CPLs had been filed. [16] On April 17, 2021, the respondent took the position that the claimant breached an implied term of the Interim Agreement by filing the notice of family claim and CPLs. He unilaterally reduced the support payment from $3,000 per month to $2,000 per month (i.e. he stopped paying the notional spousal support portion), he stopped making the direct payment to the claimant's landlord and he would stop making the car loan and insurance payments for the claimant's vehicle after 6 months. He did continue paying the children's special and extraordinary expenses. [17] Also in April 2021, the claimant left her mushroom packing job and made a complaint to the Employment Standards Branch regarding conditions where she had been working under a closed permit. She was later able to change to an open permit and secured a temporary job with a child development centre. The respondent says the claimant's actions adversely impacted his immigration application. [18] On May 4, 2021, the respondent filed a response to family claim and counterclaim. [19] On May 7, 2021, the parties held a four way without prejudice settlement meeting, but were not able to reach an agreement. [20] On May 10, 2021, the claimant filed an application returnable May 18, 2021 seeking an order dispensing with the requirement to hold a judicial case conference ("JCC") and an order enforcing the Interim Agreement against the respondent. [21] On May 18, 2021, the parties reached a consent order before Master Taylor (the "Taylor Order") on an interim without prejudice basis that the respondent pay the claimant $3,000 per month from May 1, 2021 to August 1, 2021 as well as $2,500 per month to the claimant's landlord from May 1, 2021 to September 1, 2021. [22] On September 7, 2021, the parties attended a JCC before Mr. Justice Blok. He pronounced a consent order (the "Blok Order") that the respondent pay the claimant $2,000 per month as unattributed without prejudice support starting October 1, 2021 and the respondent pay all of the children's special and extraordinary expenses. The direct payment to the claimant's landlord was not continued. There were other terms which are not relevant to this application. [23] On September 17, 2021, the claimant filed the present application. [24] On November 12, 2021, the respondent filed his cross-application for conduct of sale of the apartment in China and payment of net sale proceeds to the claimant. [25] The parties have shared parental responsibilities and parenting time with the children since they separated. Some adjustments were necessary when the claimant started her temporary employment on September 1, 2021. The respondent says he currently has the children for more than 40% of the parenting time. Respondent's Financial Circumstances [26] The respondent has a complex financial history. He says he formerly had amassed substantial wealth, particularly in China but his fortunes have changed in recent years. [27] The respondent says he currently owns shares in five Chinese companies. Previously it was at least twenty-five, but the others have since been dissolved or liquidated. Of the remaining five, three are not in operation and two operate at a loss. [28] The respondent says that the largest company, Lantian County Luzhisheng Industrial Co. Ltd. ("Lantian Industrial") invested in a luxury real estate development in Shaanxi, China. It was initially successful and profitable. A local official who had supported that development lost power in a political struggle. His replacement was hostile towards the development and alleged corruption had been involved. The Chinese government ordered demolition of all properties in the development without compensation. This resulted in catastrophic losses for the respondent and his company. They lost their investment, debts owing to banks and other lenders became due, they became embroiled in thousands of lawsuits and they are subject to numerous judgments and enforcement orders from the Chinese court. [29] The respondent produced a 'Qichacha' search for himself and the companies dated August 31, 2021. It indicates the respondent was personally involved in 420 lawsuits. The companies he has share equity in, is legal representative for or in which he has a position are involved in a total of 2,784 lawsuits, most of those relate to Lantian Industrial. There were 21 judgments against him personally, and those have either been enforced or are in an enforcement process. The judgment amounts are not set out. The service rates him as a high risk of default and says he has been restricted on spending due to his failure to fulfill legal obligations under 8 court orders against him and 342 court orders made jointly against him and his companies. [30] The respondent says his share equity in Lantian Industrial is indicated as RMB28.5 million (about $5.64 million) but was frozen by court order. He provided financial statements as of April 1, 2021, which he says indicate that the company has zero cash flow / income and liabilities of about RMB24,483,563.02 (about $4,848,230). A November 28, 2021 search for Lantian Industrial through a corporate information service called Tianyancha identified 1,183 lawsuits with the amount involved indicated as RMB150,822,706 (about $29,865,822). [31] The profile for Shaanxi Xinjinghai Investment Management Group Co. Ltd. ("Shaanxi Investment") indicates his shares is RMB3,500,100 (about $693,089) but he says he used these shares as security for a loan from a friend, discussed below. The report indicates the company is involved in 42 lawsuits, its shareholders and key personnel are involved in 509 lawsuits and there are 10 judgments thus far. [32] The profile for Lantian Luzhisheng Agricultural Technology Development Co. Ltd. ("Lanitan Agricultural") indicates the value of his shares is RMB2,100,000 (about $415,841) and it is involved in 8 lawsuits. He, as its legal representative and other shareholders and key personnel are involved in 424 lawsuits and there were 2 judgments to that point. [33] The profile for Xi'an Xingding Tea Co. Ltd. ("Xi'an Tea") shows his shareholding at RMB400,000 (about $79,200). It is involved in 13 lawsuits and he and other shareholders and key personnel are involved in 430 lawsuits. There were 7 judgments to that point. [34] For Xi'an Qujian Pinyiyuan Cultural Performance Co. Ltd. ("Xi'an Cultural") he says his shareholding was initially valued at RMB2,000,060 (about $396,158). He says this company shut down operations due to Covid-19 and has operated at a loss. [35] The respondent says that while the search results suggest his shares in these companies are worth millions of RMB, that is based on their registered capital at their dates of incorporation. The values have changed since then and are currently lower. He claims that he does not receive income from any of the companies. He is not allowed to hold credit cards in China. He has only one card which has not been cancelled because it has a significant balance owing. He says he has nominal balance in two personal chequing accounts in China. [36] The respondent says that due to his business losses, he had to borrow from friends, including RMB3.5 million (about $693,070) from a friend's daughter on April 17, 2017. This was intended to be a six-month loan and was secured by his shares in Shaanxi Investment. On September 29, 2018, he borrowed a further RMB5 million (about $990,100) from his friend's in-law. Both loans are past due but the lenders have not taken any enforcement proceedings due to friendship. He also claims he owes a debt to another friend who has been making monthly interest-only payments on a RMB2.1 million (about $415,841) bank loan that he took out in 2018. He calculates the amount this friend has paid on his behalf is RMB208,943.26 (about $41,375). [37] I pause to note that the respondent provided the foregoing largely in summary form and with little in the way of backup documentation to substantiate his narrative. The F8 financial statement the respondent filed also does not appear to include all of the matters referred to in his affidavit #2 sworn on September 25, 2021. [38] On October 22, 2013, the respondent purchased the Surrey Property for $1,788,000. Its 2021 BC Assessment value was $2,146,000. There are two mortgages on title. The first is to TD Trust and he says the balance owing as of September 1, 2021 was $1,784,345.33. The second is a private mortgage to Sea Chen Holdings Ltd. ("Sea Chen"), which he says has a balance owing of $1,038,000. The Sea Chen mortgage is registered on both the Surrey Property and Blackburn Farm. The mortgage payment to TD Trust is $9,296.11 per month (interest and principal) and to Sea Chen is $7,352.50 per month (interest only). [39] On August 18, 2015, the respondent and a business partner purchased all of the shares of GMT Mushrooms Ltd. ("GMT") for $1,000,000. The respondent purchased 55/100 shares and his partner 45/100 shares. Also on August 18, 2015, the respondent and his partner purchased Blackburn Farm for $800,000. Title is registered in the personal names of the respondent (55%) and his partner (45%) as tenants in common. The respondent says they hold the property in trust for GMT. As noted, the Sea Chen mortgage is registered on title. The respondent has attached a 2021 BC Assessment Change Notice indicating that the property had originally been assessed at $2,000,000 but this was changed to $572,878. [40] The Sea Chen mortgage is the end result of two stages of private financing. The respondent says on March 12, 2020, with his partner's consent, he took out a private mortgage for $455,000 from Tuxedo Mortgage Investment Corporation ("Tuxedo") and used the proceeds to pay for the parties' household expenses and debts in China. No breakdown or supporting documentation for how those funds were spent were provided. On November 27, 2020, the respondent refinanced the Tuxedo mortgage and borrowed additional funds from Sea Chen, making his total borrowing $1,038,000. Again, no breakdown or backup was provided regarding what became of the additional funds borrowed from Sea Chen. [41] The claimant says the respondent registered the Tuxedo and Sea Chen mortgages without her knowledge or consent. The respondent says he arranged them with her consent and he applied their proceeds to their household expenses and debts in China. [42] The respondent says he had a balance of $21,784.65 in two Canadian bank accounts and his Canadian debts include a line of credit and credit card on which he owes a combined $84,912.34. [43] The respondent has a closed work permit which he says restricts him to working for GMT / Blackburn Farm. His Canadian 2020 assessed income was $26,501.19. He says that he has earned no income in 2021. [44] In his F8 financial statement sworn September 2, 2021, the respondent claims expenses of $27,801.57 per month, or $333,618,84 per year. In that statement he identifies assets of $3,759,915.96 and debts of $5,074,920.30, which include Canadian and Chinese debts. As mentioned, these figures do not appear entirely consistent with his narrative of debts, judgments and litigation in China. [45] The respondent claims he has been borrowing money to pay living expenses. His plan is to eventually start GMT's mushroom business and once that is profitable, support himself and the children from that. He does not specify when and how he intends to make that happen. [46] The respondent points to the US$50,000 per person per year restriction on Chinese citizens wiring foreign currencies from China to overseas. He says that after his "savings" have been used up, he will have to borrow more money from China. He says if he is ordered to pay more support than he currently is paying, he would exceed his quota. He claims he cannot use other people's bank accounts to transfer money out of China due to anti-money laundering laws. It is not clear what savings he is referring to, what transfers of foreign money from China he has arranged recently and what potential sources and amounts of borrowing are available to him. [47] The respondent says he recently traded in a 2020 Ford F-35 truck for $55,000 and got a used Ford Bronco instead. He was able to borrow $54,066 from Scotiabank as a car loan. It is not clear how he qualified for a car loan given his financial circumstances. He says he received $30,000 from the bank and deposited this into his account to apply to expenses. On October 14, 2021 he sold his 2017 Indian Chief Vintage motorcycle for $34,700 and deposited those sale proceeds into his account. [48] The claimant put in evidence several statements for a CIBC account the respondent has which show that on December 1, 2020, $549,688.36 was deposited and on December 8, 2020, $450,000 was transferred out again. This was the net proceeds from the Sea Chen mortgage refinancing. It is not clear where these funds were transferred to or how they were applied. The claimant says she has no knowledge of where it went, but she does not accept that the respondent spent it all on household expenses and debts in China. [49] Subsequent statements for the same account show significant unexplained activity in the account, including: a) January 2021 - $45,000 in deposits and $39,641 in withdrawals; b) February 2021 - $70,029 in deposits and $74,386 in withdrawals; c) March 2021 - $223,029 in deposits and $212,361 in withdrawals; d) April 2021 - $162,329 in deposits and $161,161 in withdrawals. Claimant's Financial Circumstances [50] The parties agree the claimant did not work outside the home during the majority of the relationship. The respondent generated sufficient income to support the family. [51] The claimant began working packing mushrooms in August 2020 as part of their applications for permanent resident status. In April 2021, she left that job and made a complaint regarding the working conditions to Employment Standards Branch. She was able to change to an open work permit and secured temporary employment at a child development centre from September 1, 2021 to November 9, 2021. She earned $2,140 per month net of deductions. The respondent says the claimant has been receiving the child tax benefit payments for their two children. [52] The parties own a Ford SUV on which the respondent initially paid the insurance premiums of about $200 per month and monthly car loan payments of about $750 per month. His payments stopped in about September 2021. The claimant uses the vehicle to travel to and from work and to fulfill her parental responsibilities. [53] The claimant states in her F8 financial statement sworn September 14, 2021 that she had a guideline income of $18,582, consisting of $9,190 in employment income and $9,392 in employment insurance benefits. She claims monthly expenses, not including special and extraordinary expenses for the children, at $9,302 per month, or $111,704 per year. She states that their family expenses prior to separation were about $5,000 per month, but she does not provide a breakdown of how she arrived at that figure. [54] The claimant says that the respondent exercised control over their family finances during their relationship, so she does not have much in the way of savings available. [55] The claimant owns an apartment in China. Her parents and sister are living in it and they do not pay her rent. She says that the parents' old residence is in hazardous and unliveable condition. There is a mortgage on the apartment and she says she has had to borrow from her sister to make some payments. She indicates that she owes her sister about $8,000. [56] The respondent argues that the claimant could be generating rental income from the apartment if she did not allow her parents and sister to live there rent-free. He wants it to be sold. The claimant says its value is about $360,000 and the mortgage owing is about $107,000. If it were to be sold, it would generate net sale proceeds of about $250,000. He proposes that the net sale proceeds be paid to the claimant so she can use them for her living expenses. [57] The claimant agrees the apartment is a family asset but she is not willing to sell it. It is a small piece of the overall family property picture and she intends to keep it as part of her share. [58] The respondent alleges the claimant has a life insurance policy with a surrender value of $110,000 which she failed to mention in her financial statement. He suggests she can cash this out and use the proceeds to pay her living expenses. The claimant says the policy's surrender value is actually $139,633.70 and there is a premium loan against it in the sum of $70,598.31 as of November 18, 2021. The premiums have been charged against the policy since about August 2019, when the respondent stopped making premium payments. The claimant does not wish to cash out the policy, as she considers it to be a safety net for the children. Premiums owing on the policy are currently about $22,000 per year. [59] The claimant says when the respondent stopped making the direct rent payment to her landlord at the end of September 2021, she was able to renegotiate with her landlord, who allowed her and the children to move into the basement of the property. She now shares one bedroom with the children and her rent has been reduced to $1,500 per month. The claimant still seeks $2,500 per month so she can afford better accommodation for her and the children. During argument, counsel modified the claimant's request, saying she wanted the rent payment to be made to the claimant directly rather than the landlord. Claimant's Position [60] In her application, original counsel for the claimant referred to ss. 152, 167, 215 and 216 of the Family Law Act, S.B.C. 2011, c. 25 ("FLA"), which deal with changing orders respecting child and spousal support. [61] In oral argument, new counsel for the claimant referred to Wallace v. Cummins, 2020 BCSC 2158 at para. 5, which found that an application to vary an interim without prejudice support order was appropriately treated as an application de novo rather than an application to vary an order. [62] The claimant argues that the primary purpose of interim orders in a family matter is maintain the status quo between the parties. The order she seeks would accomplish that. [63] The claimant says she is not aware of the legal and financial matters the respondent describes in China and speculates that, based on what she knows about how he does business, she believes that he took steps to divert funds out of his Chinese businesses before funds were frozen by court order or that he transferred shares out of his name and into the names of family and friends to avoid detection by Chinese courts and government. She also speculates the respondent may have purchased foreclosed properties through his adult son or his son's girlfriend in China. [64] The claimant does not offer any evidence to support her allegations. She also argues that many of the Chinese lawsuits and orders date back to 2016, well before their separation date, and despite those, she did not notice any differences in terms of the respondent's finances or his spending during their relationship. It was only after separation that the respondent suddenly began alleging he had no financial means. [65] The claimant's argument focused primarily on her monthly expenses and shortfall, after taking into account the current support and her temporary income. She did not offer a detailed analysis or argument regarding the respondent's ability to pay or whether and how much income should be attributed to him. She offered some translated screenshots showing the respondent's ownership and investment in various enterprises. The respondent says these are obsolete and some of the translation is wrong. She argues that the respondent has sufficient investment income, assets and savings to pay the level of support she seeks, but she makes no effort to quantify this. [66] The claimant also argues that the respondent arranged $1,038,000 in private mortgage financing secured against family property without her consent and suggests she is entitled to half of this amount. Respondent's Position [67] The respondent agrees that because the Blok Order was made on an interim without prejudice basis, this should be treated as an application de novo rather than an application to vary the Blok Order. [68] The respondent says the claimant has not established that she has an entitlement to spousal support and that she overstates and exaggerates her expenses. He says she has not accounted for all of the sources she has available to pay her living expenses. This includes rental income she could be earning from the apartment or net proceeds if it is sold as he proposes and proceeds from cashing out the insurance policy. [69] The respondent argues that the claimant's allegations of family violence, which were her rationale for leaving the family home, were false as indicated by both the police and Ministry rejecting her complaint. In those circumstances, her claim for what he characterizes as "occupational rent" should be denied. My understanding is that his reference to occupational rent refers to the direct rent payment to the claimant's landlord, as opposed to notional rent damages related to the respondent having excluded her from the family home. [70] The respondent also argues the claimant has not established he has the ability to pay the amounts she is seeking. He says he currently has no income and no savings. He formerly had property and investments in China, but these have been either foreclosed, frozen, sold or lost due to the Chinese government's policy change. He says he has been borrowing money to pay living expenses. He suggests he will be solely liable for repaying that debt. He also says he is not prepared to borrow to pay for the claimant's support. [71] The respondent says the Interim Agreement was without prejudice and for a short six-month term. One of its terms was that the claimant continue to sponsor the respondent as a dependent in her immigration application. Shortly after the agreement was made, she breached that agreement by dropping her support of the respondent's application. [72] In the alternative, the respondent says the parties' evidence conflicts on material points, these are not issues that can or should be decided on an interim application and this should addressed at trial. [73] If the respondent is ordered to pay the claimant additional support, it should be based on her actual needs and his ability to pay. Alternatively, if she is awarded the full amount that she seeks, he asks that she be required to pay her proportionate share of the mortgages. Any child support increase should also take into account that he has the children for more than 40% of the parenting time. [74] Finally, he asks that if he is ordered to pay additional support, that he be permitted to pay this to her in China in RMB. Applicable Law [75] The parties agree is an application de novo rather than as an application to vary the Blok Order. In Small v. Small, 2020 BCSC 707 at para. 229, Madam Justice Horsman found that where an earlier interim without prejudice order had been made, the applicant respondent could seek a determination of interim support without showing a material change in circumstances: 229 I accept the respondent's submission that because the interim support order was made on a without prejudice basis, he is entitled to seek a determination of support in the pre-trial period without showing a material change in circumstance. A without prejudice order has been described as a form of "Band-Aid provision", often agreed to for expediency, which should not later impede a party's ability to argue for a different result: Sandhu v. Bhullar, 2016 BCSC 59 at para. 42; Burchhardt v. Geismayr, 2019 BCSC 1850 at para. 30-32. [76] Insofar as the claimant seeks support payments, I will presume she intended to rely on the Part 7, Division 2 of the FLA and the Federal Child Support Guidelines for child support and Division 4 of the FLA and the Spousal Support Advisory Guidelines for spousal support. [77] Master Keighley summarized considerations on an interim application for spousal support in Robles v. Kuhn, 2009 BCSC 1163 at para. 12: 1. On applications for interim support the applicant's needs and the respondent's ability to pay assume greater significance: Gibb v. Gibb, [2005] B.C.J. No. 2730 (S.C.); 2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor's ability to pay warrants it: Grossi v. Grossi, [1993] B.C.J. No. 878 (S.C.); 3. On interim support applications the court does not embark on an in-depth analysis of the parties' circumstances which is better left to trial. The court achieves rough justice at best: Randhawa v. Randhawa, [1999] B.C.J. No. 1082; Newson v. Newson, [1998] B.C.J. No. 2906, 65 B.C.L.R. (3d) 22 (C.A.); 4. The courts should not unduly emphasize any one of the statutory considerations above others; 5. On interim applications the need to achieve economic self-sufficiency is often of less significance; 6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise: Ladd v. Ladd, [2006] B.C.J. No. 1930, 2006 BCSC 1280 (S.C.); 7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out: L.G.B. v. M.A.C.M., [2005] B.C.J. No. 2966, 2005 BCSC 1786 (S.C.); 8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support: L.G.B. [78] In I.F. v. R.J.R., 2015 BCSC 793 at paras. 122-124 and 126, Madam Justice Ballance discussed the purpose of an interim spousal support order: 122 The main purpose of an interim order for spousal support is to bridge the period between when the action is commenced and the trial at which time the court will be in a position to make a decision on the merits: D.R.M. v. R.B.M., 2006 BCSC 1921; Goriuk v Turton, 2011 BCSC 652. 123 Because interim orders are summary in nature and temporary, they provide a rough justice at best: Newson v. Newson, 65 B.C.L.R. (3d) 22 (C.A.) at para. 11. The "rough justice" approach underlying the temporary order implicitly recognizes that the evidence before the chambers judge on the interim application is often insufficient to permit an in-depth analysis of the wide array of factors relevant to entitlement and quantum of support: R.C.G. v. C.L.G., 2010 BCSC 1596, para. 11; Johnson v Johnson, [1993] B.C.J. No. 2140 at 16. 124 The legal test governing interim support is not necessarily the same as the test applicable in reaching the final order: Goriuk. This is because the full picture of many of the considerations under the applicable legislation will not be known until a fulsome inquiry on the merits is embarked upon a trial. 126 While the other relevant factors that inform the issue of spousal support are to be considered to the extent possible, the respective needs and means of the parties are ordinarily the central factors, if not the most prominent, on an interim application. The corollary is that considerations such as compensatory factors and the need to achieve self-sufficiency often hold less significance: R.C.J. v. C.L.G., 2010 BCSC 1596 at para. 11; Goriuk at para. 33. [79] In Kouznetsova v. Kouznetsov, 2014 BCCA 160 at para. 44 [Kouznetsova], the court indicated that the primary purpose of an interim order was to maintain the status quo between the parties: 44 This Court has said the primary purpose of interim orders in family matters is to maintain the status quo between the parties: Johnson v. Jessel, 2012 BCCA 393 at para. 48, citing Leung v. Leung (1998), 44 R.F.L (4th) 121 (B.C.C.A.) at para. 10; Eaton v. Eaton (1987), 11 R.F.L. (3d) 92 (B.C.C.A.); and Prost v. Prost (1990), 30 R.F.L. (3d) 80 (B.C.C.A.) (in Chambers). [80] A party seeking to impute income to the other spouse bears the burden of establishing an evidentiary basis for same: see MacCarthy v. MacCarthy, 2015 BCCA 496 ["MacCarthy"] at para 35. Disputes relating to imputation of income are best left to trial, where parties have fully canvassed their respective earning capacities and an evidentiary basis for such a funding can be properly established: see Kouznetsova at para 45. Analysis [81] The claimant seeks orders which essentially reinstate the financial terms of Interim Agreement. That agreement provided that it was limited to a six-month term. After the respondent declared the claimant in breach and unilaterally reduced his payments, the parties agreed to reinstate the financial terms pertaining to the claimant through the consent Taylor Order made May 18, 2021. That order was also time-limited, having the same term as the Interim Agreement. After the payments under the Taylor Order expired, the consent Blok Order was made to provide for interim without prejudice unattributed support, albeit with financial terms that were less favourable to the claimant. [82] The Interim Agreement and two subsequent orders have all been temporary "Band-Aid" expedient arrangements. None of these were arrived at based on an analysis of the parties' actual means, needs and other criteria normally considered when determining entitlement to and quantum of interim child and spousal support. In this application, the claimant seeks to exchange one temporary expedient arrangement for a different, more generous one which is also not based on a normal assessment of interim child and spousal support criteria. [83] The claimant did not set out in her application or in argument any analysis attempting to quantify the respondent's ability to pay support or to otherwise justify the support levels she seeks based on the respondent's actual income or an imputed level of income. She simply offers the blanket assertion that he can afford it. [84] Claimant's counsel referred to Xi v. Zhang, 2018 BCSC 741 at para. 34-35, as support for the proposition that in appropriate circumstances the court can overlook an applicant's failure to expressly address imputation of income in their application materials. In that case, Master Muir noted that the objecting respondent had not served his unfiled financial statement on the claimant until well after the notice of application had been served, so there was no other basis on which the claimant could be claiming support other than an imputed income. She found respondent could not complain about the claimant's application materials when he had not filed his application response until the day of the hearing and even then, it did not raise any issue with the notice of application. She also found it was clear from the supporting affidavit that the claimant was seeking support based on an imputed income. [85] In the present situation, the respondent filed his financial statement on September 2, 2021, five days prior to the JCC before Justice Blok. It was available to the claimant when she filed her application on September 17, 2021. The respondent filed his application response on September 27, 2021, including his affidavit #2, which offers an expanded summary of his financial circumstances, particularly in China. I appreciate that his summary is far from complete and that supporting documents have not yet been listed and produced. Current counsel for the claimant assumed conduct of this matter on November 3, 2021, more than a month before the hearing of this application. [86] As noted in MacCarthy, the claimant bears the burden of establishing an evidentiary basis for imputing income to the respondent. She has not identified a specific basis for doing so, nor has she suggested appropriate quantum or range of imputed income. Her materials primarily focused on setting out her financial needs and providing background relating to the Interim Agreement and subsequent orders. She simply asserts the respondent has the resources necessary pay the amounts sought. [87] The available evidence falls short of identifying how and how much income can fairly be attributed to the respondent. His evidence is that his income in 2020 was $26,501 and in 2021 he had earned no income. The latter point is not explained by him but it was not contradicted. His ability to earn employment income in Canada appears to be limited by the fact that he is here on a closed work permit, which I understand limits where he can work. He claims to he receives no income from any of the remaining Chinese companies. No other potential foreign sources of income have been brought to my attention. [88] There are no financial statements for most of the respondent's companies indicating possible sources of additional income for support purposes. The respondent has described his intention to get GMT operational and producing, but no time horizon or business plan for that was offered, and no explanation of why that has not already happened. [89] This bleak description of the respondent's finances is obviously difficult to reconcile with what he sets out in his financial statement, namely that his annual expenses are $333,618. If so, this appears to be unsustainable. [90] The respondent says he has been borrowing to pay his living expenses. It is not entirely clear what the scope of this borrowing includes. It appears the respondent has drawn much of the equity out of various family assets, including mortgaging the Surrey Property and Blackburn Farm. The respondent lists the value of the Surrey Property as $2,146,000, Blackburn Farm as $572,878 and his interest in GMT as $550,000. Against those are the TD Trust mortgage at $1,844,761 and Sea Chen mortgage at $1,038,000. [91] The respondent drew this $1,038,000 out via the Tuxedo and Sea Chen mortgages shortly before the parties separated. The respondent has not provided particulars of how those funds were spent or whether any of that remains. That may explain where some payments have come from, but I do not consider that it would be an appropriate basis for imputing income to him. [92] There is also evidence of deposit and withdrawal activity in one of the respondent's CIBC accounts which shows substantial sums transited the account for each of months between December 2020 and April 2021, which are the only months for which statements were provided on this application. However, at this point it is not clear what these sums relate to, whether they represent an appropriate basis for attributing income to the respondent, and if so, how much. [93] The respondent has also volunteered that he has some additional capacity to borrow from unidentified sources in China. He does not say who the lenders would be or how much he can borrow. The respondent having additional capacity to borrow does raise numerous questions which will presumably be explored further in discovery. However, having a capacity to borrow does not automatically correspond to having a capacity to pay interim child or spousal support. [94] To the extent that the respondent has been paying living expenses by drawing down equity in family property, that is not something on which I can base an interim support order. Arguably that is a unilateral form of interim distribution of family property. A Master's jurisdiction to order interim distribution of family property is limited to s. 89 of the FLA. That section allows distribution of family property to provide money to fund family dispute resolution, all or part of a family action or to obtain information or evidence in support of either of those. That is not relief that the claimant seeks on this application. If the claimant does claim recovery of half of the $1,038,000 that the defendant borrowed via the Tuxedo and Sea Chen mortgages, that will have to be addressed through division of family property and debt. It cannot be accomplished through an interim without prejudice support order. [95] I accept that the amount the claimant is current receiving is not adequate to meet her claimed expenses. However, there is not a sufficient evidentiary basis to impute income to the respondent or otherwise establish that he has the ability to pay more support than he is already required to pay under the Blok Order. This is not an appropriate situation to simply replace one "Band-Aid" expedient arrangement with another. Any new interim support arrangement should be based on an analysis of the respondent's actual or imputed ability to pay interim support. [96] The claimant has made the application before mustering the evidence necessary to make out an argument for imputation of income to the respondent. Additional evidence may well become available as discovery progresses. If so, she is at liberty to re-apply. For now, the application is dismissed. Conclusion [97] The claimant's application is dismissed. Mr. Justice Blok's consent order of September 7, 2021 remains in force. [98] The claimant is at liberty to re-apply on additional evidence should she wish to do so. [99] The respondent is entitled to costs of this application from the claimant, in the cause. "Master Bilawich"