Lynch v. Lynch

2009 BCSC 1065 Lynch v. Lynch

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lynch v. Lynch, 2009 BCSC 1065 Date: 20090805 Docket: E070771 Registry: Vancouver Between: Claire Siobhan Lynch Plaintiff And Kevin John Lynch also known as Kevin Lynch Defendant Before: The Honourable Madam Justice Morrison Reasons for Judgment Counsel for the Plaintiff: Scott L. Booth Angela T. Santoro The Defendant: Appearing In Person Place and Date of Trial: Vancouver, B.C. April 20-24, 27-30, May 1, 2009 Place and Date of Judgment: Vancouver, B.C. August 5, 2009 [1] This is a family dispute where the main issues are custody and access of the four infant children of the marriage and property issues. The plaintiff, Claire Siobhan Lynch has just turned 44, born July 15, 1965. The defendant, Kevin John Lynch is 51, born January 11, 1958. An earlier marriage for Ms. Lynch ended in divorce; this was the first marriage for Mr. Lynch. [2] The parties began cohabitation on November 1, 1995 and were married in Dublin, Ireland on June 11, 1997. They separated March 3, 2007. [3] There are four children of the marriage: Thomas Elliott Lynch and Stephen Cathal Lynch, twins, born December 26, 1997, now 11; James Kevin Lynch, born April 18, 2000, now 9 years of age; and Ben Peter Lynch, born September 8, 2002, who will be 7 in September. [4] There have been five interim orders made prior to trial. Shortly after separation, the wife

obtained an order on March 15, 2007 which granted a number of remedies including: an order pursuant to s. 57 of the Family Relations Act, R.S.B.C. 1996, c. 128, that there was no hope of reconciliation; exclusive occupancy for Ms. Lynch and the children of the matrimonial home at 925 Leovista Avenue in North Vancouver ("Leovista"); Mr. Lynch would have specified access with the children, with a third party present; the defendant would pay $2,300 a month for child maintenance and $2,500 a month for spousal maintenance; the parties were to share responsibility for the mortgage on the matrimonial home; there was a restraining order on the defendant with regard to dealing with or disposition of any assets. [5] On that same date, by consent, the parties agreed there would be no contact with one another except with regard to the children. Mr. Lynch would not enter the matrimonial home, and the defendant was under a restraining order with regard to his wife. [6] Mr. Justice Slade issued an order on April 10, 2007 allowing specified interim access for Mr. Lynch with the children, on Tuesdays and Thursdays from 5:00 to 9:00 p.m. at the matrimonial home, as well as on Fridays from 3:00 to 7:00 p.m., and alternate weekends. [7] One of the children, James, obviously gifted, was having some problems at school, and on May 29, 2008, Mr. Justice Meiklem ordered that there be an assessment of

James by Dr. Glenn Davies. [8] Finally, on June 9, 2008, Mr. Justice Butler made an order with a number of provisions: for Guidelines purposes, the income for Ms. Lynch was found to be $39,720, and for Mr. Lynch, $96,241. Child maintenance was established at $2,155 a month, plus $200 for extraordinary expenses, payable by Mr. Lynch. Spousal support in the amount of $250 a month would be payable by Mr. Lynch, retroactive to March 15, 2008. The court also ordered that Ms. Lynch would pay the mortgage on the matrimonial home and Mr. Lynch was denied his application to list the matrimonial home for sale. He was to provide all correspondence with regard to his property in Dublin, this property, 59 Palmerston Road, Dublin, Ireland ("Palmerston"), being a main source of contention between the parties. A number of other applications were adjourned generally to trial, as had been an earlier application before Master Scarth for custody and guardianship. Background [9] Born in Zimbabwe, the plaintiff, Claire Lynch, obtained her B.A. degree and a teaching certificate and was a teacher and careers advisor at a school and college in Zimbabwe. After moving to England in 1993, she obtained work in public relations and as a fundraiser. [10] The defendant, born in Ireland, is an engineer. The parties met in England in 1994. Mr. Lynch was working in Dublin, and the plaintiff moved to Ireland to

be with him in November 1995. [11] The parties lived for some time at the Palmerston property, which was undergoing serious renovations. Mr. Lynch was doing a great deal of the work, and the plaintiff was assisting. Dry rot was discovered in the property in 1996, and the parties moved to an apartment in Wentworth Park in February 1997 where they stayed until July 2000. It was during this period of time that Mr. Lynch did a great deal of work and also borrowed money to finance the remedial work and renovations on Palmerston. [12] The parties were living in the wife's apartment at Wentworth Park when they were engaged in April or May of 1997, and then married on June 11, 1997. On the marriage certificate, the plaintiff had listed the Palmerston address as their residence, to the extreme annoyance of Mr. Lynch. In the words of Mr. Lynch, this caused a row on their wedding day. [13] While they were living at the apartment in Wentworth Park, the renovation to the top two floors at Palmerston were completed, and in July 1997 that two-floor unit was rented to an employee of the Norwegian Embassy. The parties did not move back to Palmerston until July 2000, where they stayed until their immigration to Canada in June 2004. They lived in the ground floor or garden apartment of Palmerston throughout that time. [14] Meanwhile, the parties had applied in January 2000 to immigrate to Canada.

That was then postponed when the husband received an offer to take a one year diploma, paid for by his employer. [15] In 2002, the parties came to Vancouver and looked at property. The next year, in April 2003, they purchased Leovista for $450,000. The home at that time was 1700 square feet. The down payment came from loans on the London and Palmerston properties, both in the name of Mr. Lynch, plus a Scotia mortgage of $225,000. At that time, Mr. Lynch's documents for Scotiabank estimated Palmerston to be worth €1,200,000. Leovista was then a rental property for one year as the parties prepared to immigrate. [16] In June 2004, the parties left Ireland and moved to North Vancouver. The marriage had been having some serious problems, and those continued. By the time of the wife's 40th birthday on July 15, 2005, she informed her husband, "We have to mend it or end it." Counselling was not successful. Nevertheless, the parties decided to begin significant renovations on Leovista. A second storey was to be added, making the house a three-level home. Money would be raised from Palmerston along with additional mortgage funds. [17] On December 1, 2005, property in Deep Cove was purchased for $420,000, with a deposit of $21,000 and a mortgage of $314,606. This was to be an investment property. It was in Mr. Lynch's name. The down payment funds came from the line of credit which had

been established for Leovista. [18] The parties had hoped that the renovation project on Leovista would help the marriage; it seemed to make it worse. From June to December 2006, the parties moved out of Leovista to a rental townhouse to accommodate the renovations. In late July, Mr. Lynch wanted his wife to sign an agreement in anticipation of separation. A draft agreement was given to her as she was in the car with the children, about to leave on a camping trip. The husband then went to Ireland for two weeks. Mediation failed around this time. An agreement was never reached. [19] By November 2006, the parties applied to increase the mortgage on Leovista which had risen to $410,000 plus the $40,000 line of credit to a sum of $450,000. In December of that year, 2006, the parties moved back into Leovista. Ms. Lynch was not working outside the home, but there were Japanese students boarding at the home from time to time. The parties also had to deal with flooding which occurred at Leovista in November 2006, before they moved in and then again in early 2007, a second and third flooding occurred. The renovations appeared to be finished around this same time. Leovista had gone from 1700 square feet to 3800 square feet. [20] Then an incident occurred on March 3, 2007 that led to the immediate and ultimately final breakup of the marriage. A male cousin of the plaintiff's was staying

with the parties at Leovista; a dispute broke out between the cousin and Mr. Lynch. Ms. Lynch was not present. The cousin charged Mr. Lynch with assault, and Ms. Lynch, upon hearing of the incident, removed herself and the children from the home. They went to her sister's in Squamish. The children were taken out of school for eight days, and Mr. Lynch had no contact with them. Ms. Lynch commenced her proceedings on March 7, and on March 15 obtained the order from Master Scarth which included the s. 57 order and exclusive occupancy for herself and the children at Leovista. The husband would have only supervised access with the children. Ms. Lynch and the children returned to Leovista and the children to school on March 16, 2007. [21] Mr. Lynch lived at various addresses until June 1, 2007, when he moved into the rental townhouse in North Vancouver that they had previously rented. Ms. Lynch retained most of the furniture and household goods at Leovista. On June 11, 2007, she sent her husband the following email: Kevin > The access schedule you propose for the week to follow represents something similar to what you proposed at the JCC. It was discussed and agreed that your proposed schedule was much too disruptive for the children, and not in their best interests. By way of compromise we agreed on two evenings per week, Friday afternoons and alternate days on the weekend. My views

as set out at the JCC, and validated by the judge, have not changed. However, given you now have accommodation, I will look at revising the schedule, and propose the following: every second week end you have the children from Friday 3pm to Sunday 5pm. during the week, you take them to your house on one evening of the week, collecting at 5.00pm and returning at 8.30pm - giving me time to get them to bed by 9pm: I suggest Tuesday evenings on weeks when you are expecting to have them for the week end and Thursday evenings when you are not. > Overnights are not possible until you have beds for the children to sleep in and some basic furnishings for their comfort. I have indicated through counsel that I can help you with some of this. I can supply the following: > > four mattresses, two with box springs > bedding for four mattresses > a round table > some kitchen equip, cutlery and crockery > a 3-seater sofa and armchair > a small TV > If you are able to move this furniture in the next few days and be set up by the week end, then I will agree to this schedule taking effect as of this week end. Otherwise, it will have to wait until the following week end and access this week will be as per the court order. [22] Access with regard to the children proved difficult following separation. Initially, while Ms. Lynch and the children were out of contact in Squamish, the plaintiff's lawyer

advised Mr. Lynch by letter that an action would be commenced, and that Ms. Lynch would be changing the children's surnames from Lynch to her maiden name. [23] Then access was defined by court orders. Initially, Mr. Lynch would see them in the family home and Ms. Lynch would leave during the time of his visits. Ms. Lynch ended this arrangement not too long after it had begun, in July 2007. New access was agreed to and the parties became involved in mediation in September of 2007 with the North Shore Family Services. [24] Just prior to that, Mr. Lynch had been in Ireland for seven weeks; his mother was ill. He had the children in Ireland for a time. It was also at that time that Mr. Lynch proposed that the garden apartment (the basement apartment) of Palmerston be sold, and that Leovista be sold as well. There was no agreement reached on that proposal. In May 2007, Palmerston had been appraised at £2,850,000, with the included amount of £835,000 as the value of the garden apartment. [25] By late 2007, James was being referred to counsellors at school, and this continued into 2008. James had been diagnosed with Autistic Spectrum Disorder/Asperger Syndrome. The wife accuses the husband of not accepting the diagnosis, and being uncooperative and uninterested in treatment plans for James. The husband accuses the wife of not involving him in consultations from the beginning, and not

advising him of the times and dates of one or more important meetings with regard to James. There appears to be substance to both their complaints. [26] However, before, and certainly at the time of trial, both parties appeared to be in complete agreement with regard to the treatment and the counsellors for James, both recognizing the need to have both parents fully involved. James is apparently an extremely bright boy, gifted in some areas and somewhat of a challenge with regard to his behaviour at times. I am satisfied that both parents are now working together to ensure that all of James' needs and interests are fully met. They have different parenting styles, but there is no difference in their devotion to their children. The fact that all four boys are doing so well speaks volumes about the parenting. [27] The wife returned to work outside the home in January 2008, as an employee of the Mulgrave School in North Vancouver. At the time of trial, it was estimated that Ms. Lynch's income would be $59,000 for Guidelines purposes, for sharing in s. 7 expenses. Following the trial, I was advised that the wife had received an offer of full-time employment at Mulgrave School commencing August 1, 2009 at a salary of $78,000 annually. She had not yet confirmed acceptance of that position. [28] It was also confirmed, post-trial, that Mr. Lynch, who was laid off at the time of trial,

had a job with Fransen Engineering at an annual salary of $87,360, commencing May 18, 2009. This is a full-time position with a benefit plan. [29] Given the requirements for each spouse to be self-sufficient, I am assuming that Ms. Lynch as of August 1, 2009 has an income of $78,000. In addition, given the increased size of the Leovista home, Ms. Lynch also has the ability to earn a possible $12,000 a year from students, if she decides to take in students again. However, I am not imputing that income to her, given that I am assuming she has accepted full-time employment with Mulgrave School. The Position of the Plaintiff [30] The wife is agreeable to joint custody of all four children, provided their principal residence remains with her. The provisions for joint guardianship which she suggests provide that she will have an obligation to advise or discuss significant matters or decisions with her husband with regard to the children; but she would have the ultimate decision if the parties are not in agreement. During the school term she suggests the children be with their father from Thursday after school to Sunday 5:00 p.m. on the first week and the second week that the twins be with their father Tuesday evening after school until Wednesday morning drop off at school; and the two younger children would be with Mr. Lynch from Thursday after school until Friday morning drop off at

school. [31] Ms. Lynch sees the frequent transitions as problems, and certainly they have been, due to many factors. The parties remain at odds with one another, and need to bring mutual respect and courtesy into their dealings with one another. [32] Counsel for Ms. Lynch has set out specified access with regard to each holiday throughout the calendar year; Ms. Lynch would like consent for a three-week holiday in Zimbabwe at a mutually agreed upon time. She would provide Mr. Lynch with a contact telephone number during their stay in Zimbabwe. It is her belief that the regime is more or less what has been in place for the last 18 months, and works well for the children. There would only be one transition in the "off weeks". Mr. Lynch would have overnights with the children five nights out of every fortnight. [33] Mr. Lynch should pay child maintenance according to the Guidelines, and they would share s. 7 expenses according to each of their Guidelines incomes. [34] The plaintiff is prepared to waive her claim to spousal maintenance and agree to its dismissal if she is successful in the asset division which she requests. Otherwise, she requests a nominal amount of $1.00 per month, to be reviewed. She also requests arrears of support in the amount of $2,400. By way of security for support, the plaintiff seeks an order that the defendant obtain a term life policy with a death

benefit of $1,000,000, which would pledge his wife as the irrevocable beneficiary of the policy for so long as he is obligated to pay support. [35] The plaintiff seeks to retain all of Leovista. The 2009 assessment valued the property at $1,074,000. There was an appraisal of May 24, 2007 which valued the property at $1,175,000. The Bank of Nova Scotia mortgage is $390,000, plus a line of credit of $40,000 for some final renovations. The plaintiff also claims repayment of loans that she obtained in the amount of $38,600 for some final renovations. The wife would be prepared to assume these obligations with regard to Leovista, provided she gets an order for the other asset relief claimed, and more particularly, compensation in the amount of $800,000. [36] The husband's current residence at 2050 Deep Cove Crescent in North Vancouver, the former rental property, was assessed in 2009 at $505,000. An appraisal in 2007 was for $495,000. The current mortgage against the property is $371,000, including $56,000 incurred by the husband post-separation. The wife proposes that the husband retain this property and compensate her for 50% of the net value, the net value being $130,000 in total. [37] According to the wife, the Palmerston property in Dublin should be valued at $2,710,000, with 65% to be apportioned in favour of Mr. Lynch and the balance to the plaintiff. The plaintiff takes the

position that Mr. Lynch is the sole owner of this property. The 2009 valuation estimated the property value at $3,350,000, less a mortgage of $640,000. [38] Mr. Lynch purchased an apartment in London in 1987, ten years before the marriage. It has been valued at $401,000, with a mortgage of $179,000. The wife proposes that this be reapportioned 100% to the defendant. [39] Other assets would be more or less equalized. Both parties disposed of assets after the triggering event of the s. 57 order, with the wife having use of $41,000 and the husband $89,685. The wife seeks compensation in the amount of $24,343, to equalize those amounts. [40] Based on the assumption that Mr. Lynch is the sole and beneficial owner of Palmerston, and the distribution as suggested by the wife, the plaintiff claims the final figure for a compensation equalization payment of $804,310. The Position of the Defendant [41] Mr. Lynch wishes to have joint custody and joint guardianship of the children, with the children spending one week with him and the next week with his wife, the transfer time to be Wednesday after school. He believes that any other arrangement will continue denials of access that he claims have occurred since the separation. It is his belief that they are both loving, caring and competent parents, and they should continue to have full and equal participation in the children's lives. [42]

On the contentious Palmerston property, although Mr. Lynch is on title, he says he owns only one-third of that property. He values Palmerston at a total value of $1,200,000; of the existing debt, he says 400,000 is his responsibility. The evidence is not clear if that 400,000 is pounds or Canadian dollars. [43] He values the London apartment at 145,000, less existing debt of 125,000 for a net equity of 40,000. (It is not clear whether these figures are in pounds or dollars). His value for Leovista is $1,200,000, less debt of $450,000, leaving equity of $750,000. [44] Mr. Lynch proposes that his wife retain Leovista, and she remain responsible for the debt on that property. He retains Deep Cove and the London apartment. He contends there is no present value left in his one-third share of Palmerston. [45] While acknowledging that there is no written agreement amongst his family members with regard to Palmerston, he said there is nevertheless an agreement that he and his family reached in 2002; it was not an easy agreement. There was a lot of arguing over a period of time. He provided no money at the time the property was purchased; then after his sister moved out of Palmerston, he began to do substantial renovations, and his equity evolved from money he borrowed and his own labour. [46] He points to his wife's financial statement and the $120,000 that she has claimed that she

borrowed from her family. Just as there was no formal agreement or documentation there. These were loans from family members. [47] The defendant took exception to the evidence from John Kamwischer, a friend of the wife's from Dublin. Mr. Lynch argues that Mr. Kamwischer should not be regarded as an independent witness. He and his family moved into the Leovista home with Ms. Lynch and the children within three months of the parties separating, and for a period of months the Kamwischers used the Leovista home as their base for visiting around the area, giving the Leovista address for their rental car and cell phone. Mr. Kamwischer left his boat at Leovista for a year. [48] There were no submissions made by Mr. Lynch with regard to child or spousal maintenance, other than to say he was not in arrears at all, as claimed by his wife. Property The History of 59 Palmerston Road, Dublin [49] According to the evidence of Kevin Lynch and his sister, Laura Lynch, Laura Lynch purchased 59 Palmerston Road in 1987. A letter dated January 27, 1987 addressed to Ms. Lynch was entitled "Re, Purchase of - 59 Palmerston Road." The letter was from her solicitor enclosing a letter from the vendor's solicitors, and the letter advised Laura Lynch to make an appointment "to consider same and if necessary execute the Contracts." A copy of the contract was enclosed for her. [50] Laura Lynch had been

unsuccessful in applying for a mortgage when she first found and attempted to purchase 59 Palmerston. She was self-employed at the time. So she asked her brother Kevin to make the application for her. He was employed as an engineer in London where he was living at the time. Thus the property was placed in his name initially, not hers, and he applied for the mortgage with the Irish Permanent Building Society. Laura Lynch testified, "I was buying the house and doing all the details." The documentary evidence confirms her evidence. [51] Laura testified that she paid the following amounts toward the purchase price of Palmerston: £3,000; £3,705.20; £700; for a total of £7,405.20. Then the following amounts were paid by her in Irish punts: 5,000 plus 5,000. The latter £5,000 appeared to have been paid March 21, 1990. [52] On June 26, 1987, another letter from Laura Lynch's lawyers to her with regard to Palmerston confirmed that they "have now bespoken the loan cheque from the Building Society and have requested the issue of same for the 7th of July 1987." They then enclosed a note of their fees with regard to the purchase of the property and for perfecting the mortgage on behalf of the Irish Permanent Building Society. The bill was addressed to Kevin Lynch at 59 Palmerston Road. He was not residing there. Laura Lynch was. On that same date on a letterhead from Laura Lynch's business,

Creative Landscapes, is a copy of a letter she had written to her solicitor with regard to Palmerston confirming that a wall at the rear of the site had now been constructed and inspected. [53] The solicitors wrote again to Laura Lynch on July 2, 1987 saying they had received the loan cheque from the Society, asking her to attend at their office to complete the purchase documents. Her appointment was for July 7 with them. [54] There are then two pages of handwritten notes and figures, one dated Sunday, 12th July 87. Laura Lynch testified that these were in her handwriting. It showed that to close the sale, she would require £21,405.20. The total purchase price had been £60,000, and the loan obtained was for £39,867.05. That was the loan that was applied for by Kevin Lynch for his sister. [55] Other money obtained by Laura Lynch to complete the purchase included a draft of £3,000 from Laura and Kevin Lynch's mother, Mary Lynch, two amounts of £5,000 each from Laura Lynch's accounts, $6,000 which had been arranged by Peter Lynch, another sibling, and other cheques that had been written by Laura Lynch either from her own account or from her business account, Creative Landscapes. Kevin Lynch did not contribute any money directly, other than arrange for the mortgage. [56] According to both Laura and Kevin Lynch, this was not the first real estate venture that the family had invested

in. Documents from 1986 showed that Laura Lynch made an application to Clare County Council for installation of a septic tank drainage system at a house whose address was Ballyvaskin, Miltown Malbay, County Clare. She had posted a notice of her intention to apply for this in the local newspaper under her own name, and a copy of that ad was filed as an exhibit. The ad showed Laura Lynch as the applicant. Listed at a different address, Kevin Lynch, a civil engineer, had prepared the plans for the drainage system. [57] That cottage at Ballyvaskin was in the names of Laura and Peter Lynch, sister and brother, and Mary Lynch, their mother. Kevin Lynch was not on title. When the County Clare property sold, Kevin Lynch received 25% of the net proceeds of the sale, with the other three-quarters of the proceeds going to the other three family members, Laura, Peter and their mother, Mary. That property sold apparently in 1999 or 2000. [58] This evidence was filed in furtherance of Mr. Lynch's submission that the Palmerston property was not his sole property, but rather a property initially purchased by his sister, Laura, in which he, his brother Peter and his mother Mary all contributed to financially; as a family. As they had cooperated and contributed in the County Clare property. [59] Some bank records from Laura Lynch's business and personal account were filed as exhibits to indicate

her financial contributions to the purchase and occupation of Palmerston. The telephone service account at 59 Palmerston Road was in the name of Laura Lynch up to and including September 1990, as was the electrical bill. She was operating her business out of 59 Palmerston Road where she lived in March 1990. The previous year, she had made a complaint with regard to the development of a nearby premises, the rear of 60 Palmerston Road, and that complaint was acknowledged by the Dublin Corporation. [60] When dealing with the mortgage that Kevin Lynch had obtained for the property from Irish Permanent Building Society, Ms. Lynch was the one who apparently handled things. She had his Power of Attorney for Palmerston. The Power of Attorney was filed as evidence; this was dated July 6, 1987. Laura testified she had gone then to London to have Kevin sign the Power of Attorney giving her full authority over the property. [61] Laura Lynch lived at the house from 1987 to 1993. Her other house was leased; much work needed to be done to restore Palmerston, and it was easier to be there during the work. Certain jobs had to be carried out to satisfy the Irish Permanent Building Society, who had the mortgage. The property had to be brought back to a residence, which required considerable work. Some examples of work that had to be done included inserting a fire wall. When Laura Lynch borrowed

the additional £5,000 in March of 1990, she was moving her office to Palmerston at that time. Her husband also lived in the home with her. When she purchased the home, she took on the mortgage payments. She leased part of the premises to students, and when the premises were vacant in the summer, she would do the work that was required on the property. [62] Laura Lynch collected the rents from the other units in the property, and applied them to the mortgage. Then from 1993 to 2008, Kevin Lynch collected the rents and paid the mortgage. He also declared the rents on his income tax returns and negotiated the lease agreements for other units in the building. [63] The building originally had four separate units and after renovations over the years, became two separate units, the lower one being referred to as the garden apartment. During the years that Laura Lynch lived on the property, the mortgage with Irish Permanent Building Society remained in the name of Kevin Lynch, but the payments were always made by Laura Lynch. She presented some of her banking documents in corroboration with her testimony at trial. [64] In January 1989, Laura wrote a letter to her brother Kevin. It was a personal letter, and amongst other things, the letter stated that everything was fine "in regard to the house etc. and Peter is working very hard on site. It has been a relief to me to have him on site.

I know it was a chance I was taking at the beginning but things have worked out well." This was a reference apparently to her taking the risk to borrow money and purchase the house as an investment. At the end of the letter, she wrote, "Now that Robert has started working weekends I will do little things around the house again. Perhaps I will landscape the back garden. I have rent money if you need it. I am going to have a job done on a section of the roof as a few slates are loose." [65] The most difficult property issue revolves around this Palmerston property. The wife contends her husband is not credible regarding his interest. That he has always represented that the Palmerston property was his, that he had borrowed money from his sister and mother to acquire the property, and his sister had been repaid for her contributions by way of several years of free rent. Further, that his sister and he had had a quarrel, when he asked her to move out and he took over the property. The evidence of Laura Lynch and Kevin Lynch does not support that. [66] Claire Lynch contends that the first time she became aware of the sister's interest in the property was after March 2007 when the parties separated. Further, that in a draft marriage agreement that was prepared by Mr. Lynch's then lawyer, Mr. Lynch was described as "the legal and beneficial owner" of Palmerston. His immigration papers

further indicated that he owned Palmerston. The same representation was made by Mr. Lynch when he was making an application for mortgage financing for Leovista. [67] As in some other cases, tales of wealth revealed on loan applications and immigration applications may tend to present an unduly rosy financial picture; in this instance, I do not find these applications presented a totally accurate financial snapshot. [68] Counsel for the plaintiff argues that Mr. Lynch has been making things up as he goes along. That there is no documentary evidence to support Mr. Lynch's contention that he has only a one-third interest in Palmerston, and his family have the other two-thirds. The plaintiff questions the credibility of both Mr. Lynch and his sister, Laura Lynch. As an example of Laura Lynch's testimony being not credible, the plaintiff points to a letter written by her to the Dublin Inspector of Taxes in October 1987 where she wrote in place of Kevin Lynch, and signed his name. That she did not sign as his attorney, in spite of the fact that she had a Power of Attorney from him. Also, that Laura Lynch had testified that Kevin Lynch's interest was one-third, but in an affidavit that she had sworn in Ireland, she swore that his interest was 35% (not 33 1/3%). [69] I have reviewed all the evidence with regard to the Palmerston property carefully, and am unable to agree with the

position taken by the plaintiff. Laura Lynch was clear, unequivocal and very believable, that this was her house that she purchased. However, she was unable to do so without significant help from her family, which she had, from her two brothers, Kevin and Peter, and from her mother, Mary. On Palmerston, I find both Laura Lynch and Kevin Lynch credible. Documentary evidence corroborates their testimony as well. [70] When Mr. Lynch moved back to Ireland and began living in the Palmerston property, he began to do some significant work and renovations on the property. He spent considerable funds between 1994 and 2007 on renovation work, and upgrading furniture, appliances, flooring and a new kitchen. His labour took place over a number of years. He used some of his own funds to cover costs, and he took out significant loans to cover the rest. [71] It was 1996 when dry rot was discovered in the house. Because it can ruin a property, the job had to be taken on immediately. Both Laura and Kevin Lynch testified that he took on that task completely, and got the dry rot removed over a period of time. He took out loans to help finance the amount of work that was required. He also put a lot of his own labour into it for which he was not paid. [72] The original mortgage on Palmerston in 1987 was £40,000. By 2001, the mortgage was down to £24,000. However, in 2002, it was increased to

£93,000 to help pay for the renovations that were being done on Palmerston. The next year, 2003, there was another increase to £140,000, and according to Kevin Lynch, this was to assist him in the purchase of Leovista in North Vancouver. Leovista was undergoing some very extensive renovations and required a significant infusion of cash. So in 2006, Mr. Lynch increased the mortgage on Palmerston to £400,000 to help fund the renovations on Leovista. [73] Both Laura and Kevin Lynch testified that this £400,000 was the responsibility of Kevin Lynch. The garden apartment at Palmerston is his to sell, and both Laura and Kevin Lynch testified that this represents one-third of the value of the Palmerston property. [74] For whatever reasons, Mr. Lynch was secretive with regard to his family ownership of Palmerston. But I was left with little doubt after hearing Laura Lynch that this was, always has been and still is her property. She acknowledges that her brother has earned entitlement to a third of the property. When Laura Lynch was asked how Kevin's interest was established at one-third, she testified that in 2002, he had wanted out, and he wanted to sell Palmerston in order to receive his share. However, she was not prepared to sell, as she wanted the property for her children; their brother Peter also did not want to sell, as for him, it had been a good investment. She said there

was a lot of discussion, and Kevin then agreed to finish the work with regard to the dry rot and other renovations, and one-third would be his share. That would be £400,000 at that time. They had agreed in 2002 upon an established value of €1,200,000 for all of Palmerston. [75] Apparently that one-third percentage was arrived at after some seemingly heated discussions amongst the Lynch family members, before this action arose. Those discussions never included the plaintiff. Mr. Lynch testified that Palmerston was originally bought to be converted to a three bedroom home. The $20,000 in savings and borrowings from members of the family were added to the mortgage that was obtained. The savings were Laura's, not his. She had gathered the money to make an investment, so she could take it easy later in life. [76] In cross-examination, Laura Lynch agreed that Kevin could borrow up to £400,000 on the property. At that time property was increasing quickly in value in Ireland. Kevin had known since 2002 that he had £400,000 he could take out of the property. Her evidence left little doubt that this was her house, not Kevin's. [77] In describing the discussions they had in 2002, Laura Lynch said they had arguments, but she was adamant that she wanted to keep the property for her children, and not sell it at that time. At the present time, she said Kevin Lynch is entitled to continue

receiving the rents from the upper unit of the home to pay down the mortgage, but the mortgage of £400,000 is basically his responsibility. [78] Laura Lynch testified, "I've had several rounds with my brother. I've been quite adamant with regard to selling the house. We had rows. And we have arguments." But they agreed on one-third to go to him in 2002, and there has been no disagreement after 2002 with regard to his interest in the property. [79] The fact that on one affidavit Laura Lynch stated the interest of Kevin Lynch to be 35%, rather than 33 1/3% is not significant, in my view. The intention has been clear since 2002, he is entitled to one-third of the value of the property. And according to the defendant and his sister, he has taken that amount, €400,000 out of the property, some spent on renovations, but most spent to acquire property in British Columbia. [80] I accept the evidence of Laura and Kevin Lynch with regard to the purchase, financing and ownership of Palmerston. The husband may have been obsessive and secretive about Palmerston, and certainly possessive as far as his wife was concerned, for whatever reasons, but I find from all the evidence that Palmerston was never his to do with as he wished. By declaring the rents as his income, he was able to make the mortgage payments, and write off his own expenses for travel, accommodations, telephone, etc. when he

travelled to Dublin and London. [81] At the time of trial, the second and third floor unit, the larger of the two units, was rented. The smaller garden apartment had been taken over by Laura, originally for her daughters, one who was now attending university at Dublin. However, the daughter took accommodation at student housing at the university, so the rent from the garden apartment goes to pay for the daughter's accommodation at university. At that point Mr. Lynch stopped receiving rent from the garden apartment, once Laura took it over for her daughter. He testified that Laura always had access to the property and always wanted it for her children when they attended university. Ms. Lynch, the plaintiff, said she was aware of the stated desire for the daughters to have access to part of Palmerston when they went to university. [82] In order to obtain the mortgage, the title to Palmerston had been put in Kevin Lynch's name. He contends he holds part of it in trust for Laura, Peter and Mary Lynch. [83] There is no question that Claire Lynch has an equal interest to Mr. Lynch's equity in the Palmerston property. It was the former matrimonial residence, and she contributed in various ways in him acquiring his equity. Having found that his equity is one-third of the value of that property, I am unable to determine what exactly the value of the Palmerston property is at the date of

trial. [84] There was evidence from Laura Lynch and Kevin Lynch that the real estate conditions are changing rapidly in Ireland, which comes as no surprise to anyone who reads the newspapers. The property is outside the jurisdiction of this court, and given all the evidence, I find myself unable to accept either the 2002, 2007 or 2009 valuations that were offered at trial. [85] Nor do I have any certainty with regard to the amount of debt on the property that is attributable to Mr. Lynch. He puts the figure at £400,000 or $400,000, which he says amounts to his one-third interest in the property. I am unable to make such a finding, without having satisfactory independent appraisals that are up to date at the time of trial. Nor am I able to determine the value of each of the two units in the Palmerston property. Is the garden apartment truly worth one-third of the value of the property? I am unable to say. [86] Mr. Lynch has been secretive and controlling with regard to aspects of property and finances during the marriage. As he stated in his evidence, there was a lot that his wife did not know about their finances. I take it from the evidence that Ms. Lynch was somewhat aware of that side of her husband when it came to property and financial matters. But lack of knowledge left her vulnerable on separation. Other Property [87] An apartment in London was purchased by Mr. Lynch in

1987, ten years before his marriage. It was purchased for £48,950, with a mortgage of £42,500. In June 2007, the value was £187,500, or $401,000 Can., with the mortgage estimated at $179,000. It is a fourth floor apartment, a leasehold property, with the Council being the owner. Upgrades are having to be done, and as a leaseholder, Mr. Lynch owes an additional $35,394 which can be paid over a number of years or over a shorter period if he is able to do so. He testified there was an additional bill also of £3,000. Assuming that property is still valued at $400,000 Can., less $218,000 in mortgage and other costs, that leaves a net value of $182,000. [88] As with the property in Ireland, this court has no jurisdiction over that property, but the net value of that property that is available to Mr. Lynch is being taken into consideration in the distribution of assets to Ms. Lynch. Also, the fact that that was owned by Mr. Lynch for ten years prior to his marriage. The revenue that he has received from 1992 to 2007 shows minimal net profit, often an annual loss. The loss that has been carried forward has been covered since 2003, but the net profit figures are modest since that time. [89] The former matrimonial home at 925 Leovista Avenue in North Vancouver will be the sole property of Ms. Lynch. She will be responsible for any debt registered against the property as well as her

personal debts. Counsel for the plaintiff calculates the net value at $600,000, Mr. Lynch estimates it at $750,000. The appraised value of the property would appear to be $1,175,000. The substantial renovations have increased the size and value of this home, and that has been done almost entirely with borrowed funds, much of which came from the Palmerston property in Ireland. [90] I think it is appropriate that Ms. Lynch retain the Leovista home; it not only gives her security, and some form of compensation, it also gives her an additional ability as far as income is concerned, if she wishes to continue with students from time to time. [91] The residence at 2050 Deep Cove Crescent in North Vancouver will remain the sole property of Mr. Lynch. According to the wife, it has a net value of $130,000; according to Mr. Lynch, the equity is $100,000. The 2009 assessment and the 2007 appraisal are close in value, at approximately $500,000. There is $380,000 owing on the property. [92] The defendant will pay to the plaintiff $24,343 to equalize the post-separation disposition of assets referred to earlier. [93] Each party will keep their own vehicle for their own use. There will be an equalization of RRSPs and RESPs between the parties. Pensions will be divided pursuant to Part 6 of the Family Relations Act. Any net value in insurance policies will be divided equally between the

parties. Post-separation bank accounts will be retained by each party without compensation to the other. The defendant will retain shares in EirCom and Network. Each party will retain any personal property or household furnishings now in their possession. Children [94] There will be an order for joint custody and joint guardianship with regard to the four children of the marriage. The children will reside with each parent on a 50/50 basis, on alternate weeks, with the transfer date to be on the Wednesday of each week, after school, unless the parties agree otherwise in writing. [95] There is one month left of summer vacation, and the parties are entitled to have equal access to the children for the summer holidays; if they cannot agree on particular dates, then it will be on the one week on and one week off basis, commencing August 1, 2009 for the balance of school vacation. [96] With regard to guardianship, the following conditions will apply: 1. The parents are joint guardians of the estates of the children.

2. In the event of the death of either parent, the remaining parent will be the sole guardian of the persons of the children.

3. Both parties have the obligation to consult with one another at the earliest possible date on any matters of any significant nature affecting the children. Each have the obligation to consult and discuss any significant decisions that have to be made concerning the children, including decisions regarding their health (except emergency decisions), education, religious instruction and general welfare. If there is an emergency health situation, the parent with the child or children at the time will immediately contact the other parent and advise.

4. Each parent has the obligation to consult and discuss all of the issues regarding the children, and to try and reach an agreement on major decisions. If they are unable to do so, the parties, with the assistance of counsel, will name a mediator to assist in resolving decisions that they are unable to make. Neither party will apply to the court to resolve any access or guardianship issues until mediation has been fully explored.

5. Each parent has the right to obtain information with regard to the children directly from third parties, including but not limited to teachers, coaches, counsellors, medical and dental professionals, and third party caregivers. It will be made clear to any professionals or third parties involved with the children that this is a joint and equal custody arrangement and both parents are to be directly and immediately involved.

6. Each parent has the obligation to inform such third parties of the most recent contact information that they may have for the other parent, particularly in the event that a parent may be travelling, on business, or otherwise not at the usual contact number.

7. The parties will alternate Christmas, with the first portion of the school Christmas break with Mr. Lynch for Christmas 2009, with the changeover to occur at 12:00 noon on Boxing Day, at which time Ms. Lynch will have the children, and thereafter to alternate. Neither parent will visit with the children during the Christmas they are with the other parent unless it is at the express invitation of the parent who has the children at that time.

8. Summer vacation - each parent will be entitled to four weeks' summer holiday time, to be agreed upon on or before May 1 of each year. When the children are on vacation with one of the parents, that parent will ensure that the children have contact by phone, or webcam, or Skype, at least one time each week during the vacation period. This does not mean leaving a number where the other parent can call. This means that the parent will undertake to personally ensure that the children call the absent parent. If the children wish to call more often, then the parent with the children will encourage and ensure that that occurs.

9. Spring break will be divided equally, as will Easter. The parties may wish to divide those in half, or alternate.

10. There is no right of either parent to attend a birthday party for the children that may be held by the other parent. This will no doubt result in the children having two birthday parties each, unless the parents voluntarily agree to hold a joint birthday party. But there is no obligation on either parent to do so.

11. The parties will alternate having the children on Halloween evenings, with Ms. Lynch to have them for Halloween 2009, and then alternately after that with each parent.

12. If one of the parents is unable to personally provide care for the children during the week that the children are with him or her, that parent will offer the other parent the opportunity to care for or have the children at their home during their absence, prior to finalizing alternate childcare arrangements. In other words, a right of first refusal. However, it will be the obligation of each parent to have in place appropriate alternate care arrangements for the children during the week that the children are to be with him or her.

13. The parties may vary any of the access provisions by consent in writing.

14. There will be an order that Ms. Lynch is entitled to a three-week holiday in Zimbabwe with the children, to be scheduled at a mutually agreed upon time. Mr. Lynch will have the same opportunity to have a three-week holiday in Ireland with the children if he so desires. If the parties cannot agree on a mutually agreed upon time, Ms. Lynch's holiday in Zimbabwe will come first. Each parent will provide the other parent with a complete itinerary of travel for themselves and the children, including dates of departure, flight numbers and contact numbers. In addition, each parent will ensure that the children contact the other parent by telephone, cell phone, Skype, webcam, or text messaging at least one time each week that they are away from the other parent. Again, this does not mean just providing a contact number; this means that the parent with the children must encourage and ensure that such contact takes place. An unsuccessful attempt to contact will not suffice. There must be actual contact.

15. Each parent has the right to sign up each of the children for one activity, whether it be sports, musical or other extra-curricular activity. That parent will pay for that activity. However, he or she cannot expect the other parent to take that child or children to that activity, during the time that the children are with the other parent. It is hoped that the parents would agree on these activities, but the essence of this order is that neither parent can fill up the time that the children spend with the other parent. That goes for sporting activities, musical activities, church and other activities.

16. Each party will pay for any activities that the children are signed up for by that parent. The parties may be able to agree to share costs on an activity in which they both agree, but that would only be done by consent of the parties.

17. There will be instances when illness, travel or work schedules may interfere with these custody arrangements. It is important that the parties be prepared to help one another out, putting the children first, and to be flexible when those kinds of emergencies or unexpected plans occur. But there is no order that a court can make to deal with such emergencies. [97] I have made the order for joint custody based on all the evidence, and being of the view that this is in the best interests of the children. Both these parents are bright, well educated, well intentioned and somewhat controlling. They have different parenting styles. [98] Ms. Lynch has valid concerns over her husband's temper; he often loses it in front of the children. She says he is often disorganized, late in picking up or dropping off the children, and acts more like a playmate with the children, than a parent at times. [99] Mr. Lynch complains that his wife denies him access, often for no reason, but says they basically agree on how to raise the children. He feels he was forced into situations with regard to the children by court orders and other circumstances, and then met with the suggestion that the status quo is working well. He disagrees. [100] Some concerns if Ms. Lynch were to retain primary residence are in the type of control that she seeks through the guardianship model she set out. At no time in her

proposed conditions of guardianship does the word "consult" or "consultation" appear. She is "advising" Mr. Lynch or sometimes discussing, but never consulting. And from the evidence, that appears to be the pattern since separation. She has been remiss in providing up-to-date contact information for Mr. Lynch when she has signed the children up for activities of which he had no prior knowledge. She was asked in cross-examination if she signs the children up for activities, does she provide contact details of the father. She answered "If the form requests separate parent information." Both parents want and need to be advised of anything concerning the children. [101] When the wife served the husband immediately upon their separation after Mr. Lynch had the quarrel with her cousin, she had Mr. Lynch served at work and the letter from her lawyer gave the stunning information that she intended to change the children's surnames to her maiden name. That has not been pursued, but that kind of overreaction that arose out of a quarrel that she was not apparently part of concerned me. Also, the children were taken out of school with no explanation to their father for eight days. Then he was only allowed supervised access by court order. There was no evidence at trial of any violence or concerns with regard to the safety or well being of the children. [102] On another occasion, after

separation, Mr. Lynch had to cancel his and the children's trip to Disneyland that had been planned. This was because Mr. Lynch would not sign his wife's pre-conditions, including acknowledgement of maintenance arrears, which he contested. He failed to fulfil all her conditions within her time frame, so the trip to Disneyland was cancelled. [103] Mr. Lynch was not consulted with regard to orthodontics for one or more children, and his wife's response was that she did not understand that he wanted to be in on the assessment. [104] Ms. Lynch has complained with regard to too many mid-week transitions, and I agree with her that those have been a problem. Which is another reason for joint alternate week custody and only one transition a week, to avoid some of those constant problems. [105] In his testimony, Mr. Lynch says that he brings science and math skills in his dealings with the children, and his wife brings her skills in English and History. He stated, "She brings a lot to the table. We actually did think the same on rearing children." [106] Ms. Lynch has been keeping a diary, marking with black marks whenever Mr. Lynch has been late or a no-show. Mr. Lynch has been sending self-serving emails. It is time to stop the recordkeeping, and simply proceed on with parenting their four bright and lively boys. [107] In her cross-examination by her husband at trial, Ms. Lynch agreed

that it was good for the children to have two homes, and to be able to invite their friends to each home. But she denied that her husband's ability to parent was as good as hers. She denied that he had the same ability to nurture or to engage with the children. Unless he were "just sitting and hanging out with the children", and then his ability would be as great as hers would be. [108] Ms. Lynch was asked about the two times she inspected Mr. Lynch's home. The last time was Easter Sunday, when she telephoned from her car when she was minutes away from his house to say that she was coming in to inspect the house. This was presumably to see under what conditions the children were living when they were with their father. She came in with a camera, shouting, according to her husband. One of the children said, "This is scary". She acknowledged she took 30 pictures, as she reminded Mr. Lynch that he had said that she could come anytime and look at his premises. Only three or four of those photographs were placed in evidence at trial. They indicated there was not much furniture. [109] After the separation, knowing that the children were going to be spending significant time with their father in premises that were not equivalent to the Leovista home, Ms. Lynch could have assisted the children and her husband in making his home more suitable for the children by sharing more of the

household furnishings. [110] There was a lot of other evidence at the trial. Taking all of the evidence into consideration, it is my firm view that it would not be appropriate to give either one of these parents the controlling hand when it comes to the children. They are both good parents, but neither should be controlling the children over the other. [111] A separation is very difficult for all concerned - the parents and the children. Both these parents have acted out of some anger, a lot of frustration and impulse, but never to an extent where either party or the children have been harmed in any way. [112] Claire Lynch impressed me as a very intelligent, caring and organized mother. She seems to have a handle on everything. This marriage has not worked out, but not for lack of trying on her part. I found her to be controlling with regard to the children in their relationship with their father after the separation; frustration and mother bear instincts explain a lot of that. [113] Kevin Lynch may be secretive and obsessive with financial matters, but property and finances were not his main concern at trial. It was the four boys. He came across as a loving and totally involved Dad, whether it concerns schooling, sports, camping, music, rowing (he was a world class rower in Great Britain) or games. He was generous in acknowledging his wife's excellent parenting skills. He must

also acknowledge his temper needs to be controlled. [114] That these four boys have done so well, and continue to, is no mystery. It is because of two loving and involved parents. Joint custody in every sense of that term should continue. [115] The arrears of maintenance with the FMEP in the amount of $2,400 will be cancelled, together with the cancellation of any penalties or interest. The onus on the plaintiff to establish the validity of these arrears has not been met, thus they are cancelled. I accept the evidence of Mr. Lynch on this issue. [116] Mr. Lynch will pay to Ms. Lynch maintenance for the four children of the marriage, based on a Guidelines income of $87,360 per annum. The first payment to be made August 1, 2009 and thereafter on the first day of each and every month. Ms. Lynch will pay for all school supplies and all school costs with regard to the children. She will maintain the children on her medical and benefit plan and pay any pharmaceutical costs. [117] Any costs for counselling will be shared by the parties on a pro rata basis, with the Guidelines income for Ms. Lynch to be set at her actual income as of August 1, 2009. Each party will buy clothes as needed for the children, but the main responsibility for buying major items of clothing will rest with Ms. Lynch, as she is receiving child maintenance. [118] Neither party will pay the other for any

extraordinary expenses for the children under Part 7 of the Family Relations Act unless it is by prior written agreement between the parties. [119] Each party will claim child tax benefits for two children. [120] The parties will share any costs for orthodontic expenses for the children on a pro rata basis. [121] There will be an order for spousal maintenance in the amount of $1.00 a year payable August 1, 2009 and thereafter on the first day of August each and every year. The parties will exchange all their income tax returns together with any and all notices of assessment by May 31 of each year. This will include all income tax returns, both Canadian and foreign that either party may have. [122] The parties will report in writing any increase or decrease in income to one another within 30 days of receiving such an increase. [123] The wife's application for the husband to obtain a term life policy naming her as the beneficiary is dismissed. [124] In summary, the plaintiff retains Leovista as her sole property. The defendant retains Deep Cove as his. There will be no orders with regard to the Palmerston or London properties, both outside this jurisdiction. Other than the order regarding Leovista, there will be no order for compensation to the plaintiff. [125] Each party will pay their own costs. "Morrison J."