L.K.M. v. T.G.T.

2025 BCSC 552 L.K.M. v. T.G.T.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.K.M. v. T.G.T., 2025 BCSC 552 Date: 20250312 Docket: E233069 Registry: Vancouver Between: L.K.M. Claimant And: T.G.T., also known as T.G.T. Respondent Before: Associate Judge Bilawich Oral Reasons for Judgment In Chambers Counsel for the Claimant: K. Simington Counsel for the Respondent: J. Desilets N. Bernardi Place and Date of Hearing: Vancouver, B.C. February 26, 2025 Place and Date of Judgment: Vancouver, B.C. March 12, 2025 Introduction [1] THE COURT: This is a high‑conflict family action. The most contentious issues relate to the claimant's request to relocate the party's daughter to Pickering, Ontario. In July and August 2024, the claimant made a summary trial application for an order allowing her to relocate with the parties' child, which Justice Giaschi granted on September 12, 2024: See L.K.M. v. T.G.T., 2024 BCSC 1675. The respondent has appealed that order. The appeal is still pending. [2] The parties are also dealing with a variety of parenting issues which have arisen in the wake of the relocation, including parenting time and child support issues. Division of family property and family debt is also in issue, albeit this is proving to be a less significant part of the dispute. [3] Before me are cross‑applications. Both parties have applied for a fourth interim distribution of family property, with each currently

seeking $160,000 for the purposes of family dispute resolution. They propose that this be paid from funds held in trust, representing the balance remaining of net proceeds from the sale of the parties' former family home in Whistler. The funds in trust represent the bulk of what remains of their disputed family property. If the interim distributions are granted, this would largely deplete what remains of their liquid family property. [4] The respondent is agreeable to both parties receiving the distribution sought. The claimant opposes any further interim distribution to the respondent. Background [5] The claimant is 45 years of age. The respondent is 45 years of age. On January 1, 2018, they began living together in a marriage‑like relationship. They have one child together, G.L.T. ("G"), born [date redacted], 2019, currently age 6 years. [6] The parties disagree regarding the date of separation. The claimant says it was November 2023. The respondent says it was February 2023. [7] The parties had started residing in Whistler prior to separation. In or about November 2022, the respondent began working in Kelowna, BC, and was commuting between Kelowna and Whistler. [8] After separation, the parties sold the family home. Net sale proceeds originally totalled $798,198.66. This was held in trust by the lawyer who handled the conveyance. Since then, the parties have each received

three interim distributions from these funds, including: June 2024 $100,000 August 2024 $40,000 December 2024 $60,000 Total (each): $200,000 [9] The balance remaining in trust is $398,198.66. If this fourth interim distribution is allowed, this would leave about $78,198.66 in trust. Position of the Parties Claimant [10] The claimant complains that the respondent had been underpaying child support and has not contributed to special and extraordinary expenses for G since the relocation order was granted. [11] In April 2024, the respondent swore an F8 Financial Statement in which he deposed to having an income of $323,352. Various interim support arrangements were agreed to based on that level of income. He was paying about $2,700 per month in child support, pursuant to a consent order of September 10, 2024. It was not until January 2025 that he produced his 2023 income tax return and bank statements showing his 2024 income. They show that in 2023 he earned $490,853, and in 2024 he earned $453,042. She argues he must have been aware of his 2023 income when he swore his April 2024 F8 Financial Statement. [12] The claimant says her annual income is $135,000. She started her current employment in April 2024. She was unemployed between November 2023 and April 2024. The respondent paid costs associated with the family home during her period of unemployment. The claimant was responsible

for her own and G's expenses. [13] The claimant argues that the respondent has demonstrated by his past conduct that he is a risk to leave the country when a relationship ends, and a risk of not paying, or of underpaying support obligations. She refers to the inadequate level of support he has been paying for his daughter of a previous relationship, who resides in Mexico. The claimant stresses that he is not a Canadian citizen and has told her that his new partner resides in the United States. She believes he intends to leave Canada and will not honour his financial obligations to her or G. [14] The claimant says that the respondent's notional share of funds remaining in trust will not be sufficient to satisfy her property claims. These include an excluded property claim, retroactive child support (basic support as well as special and extraordinary expenses) and lump spousal support. The claim for special and extraordinary expenses includes a claim for private school tuition and related expenses. She seeks a lump sum support award because she does not believe the respondent will pay periodic support, and will instead leave the country and transfer any funds he has outside the jurisdiction to avoid enforcement. [15] The claimant says the respondent has been living a luxurious lifestyle, travelling extensively for vacations since separation, including Mexico, California, Oregon,

Washington, Hawaii, Las Vegas, and the UK. He continues to rent a home in West Vancouver, despite his work being based in Kelowna. [16] The claimant also notes that, despite having put forward a financial statement which suggests he is spending his entire income, he has been able to put away $90,000 into an RRSP post‑separation. The respondent has a much higher income and more financial resources available than she does. He has made it clear to her that he intends to use all resources at his disposal to continue this litigation, including prosecution of his appeal and the trial, which is set for 10 days. [17] The claimant does not take issue with the evidence the respondent has tendered regarding anticipated cost of this litigation. She is actually relying on it in support of her own application. According to her calculation, she is entitled to at least $579,918 for the claims to family property, family debt, excluded property and support. Any further interim distribution to the respondent would prejudice her position at trial. Respondent [18] The respondent says he has exhausted the funds he received from earlier distributions. There has been a 4-day chambers application for a summary trial application regarding relocation. The claimant applied to stay an interim order. He filed a notice of appeal and has taken steps and prosecute the appeal of the relocation order. The

claimant has applied for interim support and other relief, the hearing of which is set to continue in April 2025. He anticipates there will be further expenses as additional steps are pursued in both this action and his appeal. [19] The respondent says he has exhausted his personal savings and has taken a $30,000 loan from his parents to help pay for his legal expenses. His sole significant asset, apart from his claim to 50% of the funds remaining in trust, is an RRSP account. He has had to draw funds from this account to pay some of his legal expenses. [20] The respondent tendered affidavit evidence from his counsel estimating the remaining costs to conduct the action (as of early December 2024) could be about $247,000, not including applicable taxes. [21] After the application was delivered, the parties agreed to the third interim distribution as a temporary measure pending the hearing of both applications. During argument, the respondent's counsel suggested the $160,000 which is sought would likely cover the respondent's legal costs leading up to trial, scheduled for May 25, 2026 for 10 days, but would not cover the cost of the trial itself. [22] The respondent calculates the claimant's claims against his notional 50% interest in the remaining funds in trust [$398,198.66 / 2 = $199,099.33] include: Dissipation of assets claim $20,000 Excluded property claim $55,000 Lump‑sum

spousal support claim $144,000 Subtotal $219,000 [23] With regard to the claim for lump sum spousal support, he argues that if a lump sum support order is not viable, the alternative is that the court would order him to pay monthly spousal support over an appropriate period of time. This is actually the more likely form of order if spousal support is ordered. Accordingly, the funds which remain in trust after the proposed interim distribution of $160,000 each [namely $78,198.66] would be sufficient to address the claimant's property-related claims for dissipation of assets and excluded property. Applicable Law [24] Section 89 of the Family Law Act, S.B.C. 2011, c. 25 ("FLA") is as follows: Orders for interim distribution of property [89] If satisfied that it would not be harmful to the interests of a spouse and is necessary for a purpose listed below, the Supreme Court may make an order for an interim distribution of family property that is at issue under this Part to provide money to fund (a) family dispute resolution, (b) all or part of a proceeding under this Act, or (c) the obtaining of information or evidence in support of family dispute resolution or an application to a court. [25] Justice Elwood summarized the applicable principles in Farjam v. Panahandeh, 2022 BCSC 409 at paras. 41, 43-45: [41] An interim distribution of family property under s. 89 of the FLA may be

justified when it is necessary to permit the parties to advance their respective cases on a relatively level playing field: M.A.L. v. N.A.L., 2014 BCSC 203. [43] In general terms, the applicant must demonstrate that: (a) an advance is necessary to challenge the other's position at trial, and (b) the advance will not jeopardize the other party's claim: McKenny v. McKenny, 2015 BCSC 1345 [McKenny], at para. 57. [44] In I.F. v. R.J.R., 2015 BCSC 793 [I.F.], Justice Balance explained the purpose of s. 89 in terms of promoting access to justice with an eye to the overall objectives of the FLA, as follows: [192] The blunt purpose of s. 89 is to assist economically disadvantaged spouses to access justice in matrimonial disputes; it is meant to help level the litigation playing field that is so often skewed when one spouse controls all or the majority of the wealth and assets. Application of s. 89 calls for a purposive interpretation, where the need of the applicant spouse to receive an interim distribution and the potential entailing harm to the other spouse are evaluated contextually with an eye on the larger objectives endorsed by the FLA. [45] The balancing consideration in s. 89 is whether the interim distribution would be "harmful to the interests of a spouse". This factor is broader in scope than simply the ability of the responding spouse to mount a defence to the family law

claim. As Justice Balance explained in I.F.: [193] Determination of the presence of harm requires the court to reasonably anticipate and then assess the consequences that may flow from the interim order being sought. That approach, in turn, invites a highly individualized component to the inquiry. For example, would the distribution being sought in the particular case require a sale of property or of the encumbering of assets; what income tax ramifications might be triggered and what other transactional costs would arise? The concept of harm under s. 89 would also encompass economic implications such as whether the distribution would adversely impact the other spouse's lifestyle or effectively undermine or prejudice his or her argument for reapportionment. [26] In Karringten v. Morrisonn, 2023 BCSC 577 at paras. 15-16, Justice E. McDonald summarized as follows: [15] Recently in Etemadi v. Maali, 2021 BCCA 298 [Etemadi], at paras. 50‑53, our Court of Appeal summarized the principles applicable to applications under s. 89 seeking an interim distribution: a) the chambers judge must first determine if the applicant is economically disadvantaged in advancing the family law proceeding and if so, an order that "levels the playing field" may be appropriate because it attempts to achieve balance between the parties; b) the chambers judge must then embark on a preliminary assessment of

whether the applicant can demonstrate that it would not be harmful to distribute property and whether it is necessary to do so for a purpose stated in s. 89; c) in recognizing the extraordinary nature of the order, the chambers judge must carefully consider the amount of the interim distribution to ensure that it does not exceed what is necessary under s. 89; and d) the chambers judge must always consider whether it is in the interests of justice to make the order. [16] The court must examine each issue raised by the applicant regarding necessity and potential harm, contextually, and with a view to upholding the statutory objectives: Etemadi at para.

51. Analysis Is a Further Advance Necessary? [27] The parties agree that the litigation costs evidence tendered by the respondent represents a reasonable estimate of the anticipated legal costs for both this action and the respondent's appeal of the order of allowing the claimant to relocate with the child to Ontario. The claimant relies on that evidence, saying her costs to pursue her claims and to resist the appeal are a mirror image of the respondent's anticipated expenses. [28] The respondent does not take issue with the claimant's need for a further advance. The claimant says an interim advance is not necessary for the respondent. She notes that he has a far higher level of income and more financial resources available than she does. [29] In the claimant's financial statement filed December 10, 2024, she indicates she has income of $135,000 and annual expenses of $262,613. Her assets, apart from her interest in the remaining sale proceeds from the family home, are nominal. Her debts are $233,000, which includes a $130,000 loan from her parents. [30] The respondent's financial statement dated and filed April 22, 2024 indicated an income of $278,542.50 and annual expenses of $361,136.52. His assets included a vehicle, an RRSP of $30,221 and debts of $70,000. He claimed excluded property with a value in excess of $110,000. [31] In the respondent's financial statement filed

January 10, 2025, he claims an income of $438,410 and annual expenses of $380,443. His income includes $293,410 in salary and $145,000 in bonus. His assets include a vehicle for which the loan balance exceeds its value. The RRSPs have increased to $87,875. He discloses watches valued at $30,000, unsecured debts of $94,350, including a $30,000 loan "to" his parents. I suspect he means the loan is "from" his parents. He also lists $120,000 worth of excluded property. [32] Attached to his more recent financial statement is a 2023 slip summary, which shows he received $167,501 from a previous employer, WSP Canada, and $323,352.15 from his current employer, McElhanney Limited, for a total of $490,853.15. The claimant argues he must have been aware of those figures when he swore his first financial statement of April 2024, yet failed to disclose them. [33] I accept that the $160,000 advance sought by the claimant is necessary for her continued pursuing her claim and resisting the respondent's claims and defending the respondent's appeal. [34] With regard to the respondent, he has a far higher level of income than does the claimant. His employment comes with the prospect of bonuses. The available evidence suggests he is highly valued by his employer. He has demonstrated an ability to save, as evidenced by the fact that there has been a significant increase in his RRSP balance in a

relatively short period of time. He has significant assets upon which he can potentially draw. He appears to have a significant capacity to borrow, if necessary. While I accept that it would be convenient for the respondent to be able to access the bulk of what he says is his notional half of the remaining net sale proceeds to help fund the litigation and his appeal, his overall financial profile simply does not establish him as an economically disadvantaged spouse who requires access to the funds held in trust in order to access justice and level the litigation playing field. I am not persuaded that the advance is necessary in order for him to proceed with this litigation. Would an Advance be Harmful to the Interests of a Spouse? [35] The respondent does not suggest that the proposed advance to the claimant would be harmful to his interests. The claimant does say that an advance to the respondent would be harmful to her interests. [36] On my math, if the advance sought by the respondent is allowed, this would leave roughly $78,198.60 in trust from the original $798,198.66 in net sale proceeds. Of this, at least 50% or $39,099.33 would presumptively be claimed as the claimant's share of family property. She has also identified a number of other claims she is advancing against the respondent's notional share of what remains. I am not in a position to carry out a detailed

assessment of her claims. Even on the very optimistic approach which the respondent has advocated, this would leave a bare minimum, or possibly a shortfall with respect to the adjustment she seeks in her favour. It is simply not appropriate to accept the respondent's calculations based on the conflicting evidence provided for these applications. [37] There does appear to be a substantial risk that the advance sought by the respondent would be harmful to the claimant's interests. Largely depleting the funds which remain in trust, representing the bulk of what remains of available liquid family assets, is not in the interests of justice in all the circumstances. Conclusion [38] I order that the claimant receive an advance of $160,000 from the funds currently being held in trust. I dismiss the respondent's application for an advance of $160,000 from the funds currently being held in trust. [39] The claimant is entitled to costs of these applications in the cause, based on one set of costs for both applications, given that they were heard together. "Associate Judge Bilawich"