Falconer v. Cohrs

2026 BCCA 38 Falconer v. Cohrs COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Falconer v. Cohrs, 2026 BCCA 38 Date: 20260227 Docket: CA50163 Between: Lynn Elizabeth Victoria Falconer Appellant (Claimant) And Johann Alvin Cohrs Respondent (Respondent) Before: The Honourable Justice Riley The Honourable Justice Edelmann The Honourable Justice Mayer On appeal from: An order of the Supreme Court of British Columbia, dated August 29, 2024 (Falconer v. Cohrs, 2024 BCSC 1602, Vancouver Docket E223064). Counsel for the Appellant: J. Wong A. Patel, Articled Student Counsel for the Respondent: J. Aucoin Place and Date of Hearing: Vancouver, British Columbia December 3, 2025 Place and Date of Judgment: Vancouver, British Columbia February 27, 2026 Written Reasons by: The Honourable Justice Mayer Concurring Reasons by: The Honourable Justice Riley (Page 11, para. 36) Concurred in by: The Honourable Justice Edelmann Summary: In apportioning net equity in family property between the appellant and the respondent, the trial judge found the parties were equally responsible for the outstanding balance of a mortgage registered in both their names. The appellant argues the judge misapprehended evidence concerning a verbal agreement between the parties that established the respondent would be solely responsible for the outstanding mortgage debt in the event of their separation. Held: Appeal allowed. The judge erred by not considering the admission made by the respondent at trial that he was solely responsible for the mortgage. Reasons for Judgment of the Honourable Justice Mayer: [1] The appellant, Lynn Falconer, appeals the order of a trial judge apportioning net equity in family property located on Adderley Street in North Vancouver, British Columbia (the "Adderley property") between her and the respondent, Johann Cohrs. [2] Ms. Falconer contends the judge erred, in apportioning the net equity, in finding the parties were equally responsible for the outstanding balance on an RBC mortgage. In particular, she submits the judge misapprehended evidence establishing the parties had agreed Mr. Cohrs would be solely responsible for the mortgage debt. Ms. Falconer also submits the judge misapprehended the law concerning excluded property by considering the intention of both parties in determining whether she retained an excluded property interest in the funds she used to purchase the Adderley property. She seeks an order that the judge's apportionment be varied in her favour. Background Facts [3] The parties met in March 2016 and became engaged in March 2018. They never married. [4] At the commencement of the relationship, Ms. Falconer was 51 years old, and Mr. Cohrs was 52. Ms. Falconer owned and resided at a home in Vancouver (the "Kits property") and owned another property in Vancouver (the "Beach property"). She operated her own art studio but her primary source of income was investment income. Mr. Cohrs rented a home in North Vancouver, which he shared with his three children. He ran an engineering consulting business. [5] In June 2018, the parties completed the purchase of the Adderley property as tenants in common, each with a one-half registered interest. Mr. Cohrs moved into the Adderley property with his children. The $1,430,200 purchase price and closing costs were paid using a TD line of credit registered in the names of Ms. Falconer and her father (the "TD LOC"). The underlying loan was secured by the Kits property. [6] In October 2018, the parties obtained a $500,000 TD mortgage against the Adderley property, which they used to pay down the TD LOC. Mr. Cohrs paid the monthly mortgage costs. In November 2018, Ms. Falconer sold the Beach property and used the sale proceeds to further pay down the TD LOC. In June 2021, she sold the Kits property and used a portion of the sales proceeds to pay off the balance on the TD LOC. She then moved into the Adderley property. [7] Starting in the summer of 2018, and continuing through to the spring of 2021, the parties completed major renovations to the Adderley property. Ms. Falconer withdrew funds from the TD LOC to pay renovation costs totalling $1,164,804.24. In the fall of 2021, the parties obtained a $500,000 RBC mortgage against the Adderley property and used the mortgage proceeds to pay off the balance of the TD mortgage. Mr. Cohrs received approximately $20,000 in excess funds. He continued to make the monthly payments on the RBC mortgage. [8] There is no written agreement with respect to the parties' financial interest in the Adderley property. At trial, Ms. Falconer testified that in April 2018, the parties met with her father at the Cactus Club restaurant to discuss financial arrangements for the purchase of the Adderley property and came to a verbal agreement. Mr. Cohrs testified he did not recall such a meeting but did not deny it happened. In December 2019, and the spring of 2022, there was some discussion concerning a cohabitation agreement, but no agreement was finalized. [9] In June 2022, Ms. Falconer moved out of the Adderley property and the parties separated. The family claim was commenced in December 2022, and the trial took place in May 2024. The Judge's Reasons [10] After setting out the background facts, the judge summarized the regime in the Family Law Act, S.B.C. 2011, c. 25 [FLA], governing the division of family property. Amongst other sections, the judge referred to s. 85 of the FLA, dealing with exclusions from family property. In addition, he referred to ss. 6 and 92, dealing with agreements in respect of property division, noting, " [o]ral agreements respecting the division of property are enforceable if properly proven on the evidence: Asselin v. Roy, 2013 BCSC 1681 at para. 132": Reasons, para. 53. [11] Referring to Berthin v. Berthin, 2016 BCCA 104, at paras. 46-49, the judge noted the test for an agreement concerning the division of family property is an objective one and the burden of providing the existence of a contract is on the party seeking to enforce it, on a balance of probabilities. He also noted a court may consider the parties' conduct leading up to and following the conclusion of an alleged agreement in determining whether a binding agreement was created, referring to Salminen v. Garvie, 2011 BCSC 339, at para. 28. [12] The judge then outlined the legal principles considered when a party claims that property is excluded from family property pursuant to s. 85 of the FLA. He noted, " the court must look at the evidence with respect to the transfer to determine whether the transferor intended to make a gift when the transfer was made": Reasons, at para. 60 (emphasis in original). He referred to, amongst other decisions, the comments of this Court in Venables v. Venables, 2019 BCCA 281, at para. 95 that " the intention of the spouse transferring ownership is key in determining whether the property transferred from one spouse to the other remains excluded property or becomes family property" and " [i]f it is found that the spouse who transferred property intended that the property be a gift to the other spouse, and there is no agreement that is to remain excluded property, then it will become family property": Reasons, at para. 61. [13] The judge started his analysis of the circumstances of the case before him by referring to Ms. Falconer's testimony that she and Mr. Cohrs entered into a verbal agreement, before they purchased the Adderley property, at the meeting with her father in April 2018. He noted Mr. Cohr's testimony that he had no recollection of such a meeting. The judge then outlined evidence concerning the provision of a framework for a cohabitation agreement by Ms. Falconer in December 2019 and further exchanges between the parties leading to the provision of a draft cohabitation agreement by Ms. Falconer in the spring of 2022. He noted that recital C of the 2022 draft cohabitation agreement stated, "This Agreement has been made following negotiations between the parties that commenced in 2019", which was well after the purchase of the Adderley property in 2018: Reasons, at para. 71 (emphasis in original). [14] The judge then addressed Ms. Falconer's submission that the key elements of an oral agreement were present in this case. Although the judge did not accept Ms. Falconer's submission with respect to all alleged terms of a verbal agreement concerning purchase and development of the Adderley property, he concluded the parties had agreed to the following key terms: a) Ms. Falconer would finance the purchase; b) Mr. Cohrs "had responsibility for servicing the $500,000 mortgage"; c) The parties would share labour in renovating the home; d) Ms. Falconer would receive rental income from the home to finance payments on the TD LOC; and e) Ms. Falconer would finance renovation costs, but the parties were to share these costs equally. [15] Of relevance to this appeal, the judge did not find the parties agreed Mr. Cohrs would be solely responsible for the $500,000 mortgage against the Adderley property. He stated as follows, at para. 81: I cannot find that the $500,000 mortgage would come fully out of the respondent's share of any proceeds and that in compensation he would receive $200,000 in "sweat equity." This may have been her understanding, but the evidence that the parties agreed to the more specific terms she put forward falls short of that required to establish an oral contract on this basis. [16] As well, at para. 82, the judge stated, " I cannot find a sufficient evidentiary basis to conclude that the parties intended to preserve [Ms. Falconer's] total contributions to Adderley as excluded property". He concluded the funds she contributed towards purchase lost their exclusionary character when the property was registered into the parties' joint names. [17] By the time of trial, the fair market value of the Adderley property was $2.675 million. Assuming an equal division of equity, after equally dividing the $457,709.16 balance of the RBC mortgage and accounting for $1,164,804.24 in renovation costs that had been paid by Ms. Falconer, the judge apportioned $1,691,047.54 to Ms. Falconer and $526,243 to Mr. Cohrs. Analysis On Appeal [18] As set out earlier, Ms. Falconer contends the judge erred by misapprehending relevant evidence and concluding the parties were jointly responsible for payment of the RBC mortgage. In addition, she contends the judge misapprehended the law concerning an excluded property claim by incorporating a requirement that both parties agreed to the exclusion. [19] In my view, the question of whether or not the parties agreed Mr. Cohrs would be solely responsible to pay the mortgage debt is dispositive of this appeal. For the reasons set out below, I conclude the judge erred in finding the parties were jointly responsible for this debt. [20] As a result, it is not necessary to address the alleged error that the judge misapprehended the law concerning an excluded property claim. Agreement Regarding Mortgage Debt [21] As set out earlier, the judge found the parties entered into a verbal agreement concerning their relative financial interest in the Adderley property. Although the judge found the parties agreed Mr. Cohrs was responsible for servicing the mortgage on the Adderley property, he did not find Mr. Cohrs was responsible for paying out the balance of the mortgage on the dissolution of the parties' relationship. [22] Ms. Falconer testified that before the Adderley property was purchased, through a number of discussions, the parties agreed Mr. Cohrs was to be fully responsible for 50 percent of the purchase price. His contribution was made up of $200,000 in sweat equity and $500,000 from a line of credit, for which he would be solely responsible. She testified this financial arrangement was discussed during the April 2018 meeting at the Cactus Club between her, Mr. Cohrs, and her father. In addition, Ms. Falconer testified that prior to purchasing the Adderley property, Mr. Cohrs agreed to sign a promissory note of $500,000 as security for his contribution towards the purchase price. As set out earlier, Mr. Cohrs testified he did not recall the April 2018 meeting or a discussion regarding him providing a $500,000 promissory note. He did not deny these discussions occurred. [23] The judge noted, and apparently was influenced by, the failure of Ms. Falconer's father to testify at trial in support of Ms. Falconer's testimony regarding the April 2018 meeting. Ms. Falconer provided the following explanation at trial why her father did not testify: Q Okay. Is there any reason why your dad can't come here and tell us about that conversation today? A My dad is 94. He only leaves his apartment for doctors' appointments. He's recently been hospitalized. He's in poor health. He's got skin cancer. He's just -- he's not able to be -- he doesn't hear. He's not able to be present for this. [24] Apart from the comment about Ms. Falconer's failure to call her father as a witness, the trial judge did not make any finding, express or implied, about the credibility of her evidence concerning the meeting at which she says the parties discussed and agreed upon their respective contributions to the Adderly purchase. Ms. Falconer's specific and detailed account of the meeting, which was not denied by Mr. Cohrs, points strongly toward the conclusion that Mr. Cohrs was responsible for the RBC mortgage because it represented part of his contribution toward the Adderly purchase. [25] More directly to the point, it is impossible to reconcile the judge's finding that the parties did not agree Mr. Cohrs would be responsible for the $500,000 mortgage with the admissions made by Mr. Cohrs during his examination for discovery and at trial. [26] During his examination for discovery Mr. Cohrs was asked and answered the following question regarding responsibility for the $500,000 mortgage: Question 487: Q So you were to pay $2,000 a month towards this line of credit? Is that what I understand you to say? A I would be responsible for the line of credit and it was set up in an amount that was equivalent to a payment of about $2,000 a month. Question 488: Q So you were to be responsible for this line of credit? A That's correct. [27] During his testimony at trial Mr. Cohrs accepted that he was responsible for the mortgage. During his examination in chief, when asked questions about the 2022 draft cohabitation agreement, he testified: Q But was there any sort of agreement in place about sweat equity or responsibility for the line of credit at this time? A The - Q Sorry, the RBC line of credit -- or the RBC mortgage against the Adderley property at this point? A In 2021 you're referring to? Q This was in 2022 that you received this. A Pardon me. Correct. Sorry, in 2022, right, the RBC mortgage. I mean, I was making payments on the mortgage. I assume that that's my mortgage even though it's in both of our names. So yes. [Emphasis added.] [28] Counsel for Mr. Cohrs submits the phrase "at this time" was ambiguous. I do not agree with this submission. The question put to Mr. Cohrs was, in summary, whether there was an agreement in place in 2022 concerning who would be responsible for the mortgage. Mr. Cohrs' answer indicates he was not only responsible for making monthly mortgage payments but was also responsible for the mortgage debt. [29] Mr. Cohrs did not retract this evidence. To the contrary, during his cross-examination, Mr. Cohrs once again accepted responsibility for the mortgage. Q. Okay. So, before we went for the afternoon break your counsel asked you if you would be responsible for the RBC mortgage that started with $500,000 that has since been paid down. Do you accept responsibility for that mortgage portion? A. Yes. [Emphasis added.] [30] Mr. Cohrs submits it is unclear whether the above question refers to the outstanding portion or the paid-off portion of the mortgage. That argument is illogical. A mortgagee does not take "responsibility" for the paid-off portion of a mortgage. The only reasonable interpretation of the exchange is that Mr. Cohrs agreed he was responsible for the outstanding portion of the RBC mortgage, a mortgage that he had previously made a point of clarifying was his, despite it being in both parties' names. Consistent with this interpretation, is evidence that Mr. Cohrs retained the $20,000 surplus when the proceeds from the RBC mortgage was used to pay off the balance on the original TD mortgage. [31] The standard of review that applies to family law matters is highly deferential, as recently set out in Chapman v. Chapman, 2024 BCCA 372: [41] An appellate court may only intervene where there has been a material error, misapprehension of the evidence, or an error of law (Hickey v. Hickey, [1999] 2 S.C.R. 518 at para. 12) and will defer to the decision of a trial judge except where there has been an error of law or a palpable and overriding error of fact: Housen v. Nikolaisen, 2002 SCC 33 at paras. 22-23. [32] With respect, in my view, the judge erred by failing to consider the admission made by Mr. Cohrs at trial that he was solely responsible for the RBC mortgage. Had he done so, in conjunction with the uncontradicted evidence of Ms. Falconer concerning the parties' verbal agreement (summarized at para. 22 of these reasons) he would have come to a different conclusion. [33] I conclude the judge made a palpable and overriding error of fact in determining the parties did not agree Mr. Cohrs would be solely responsible for the outstanding balance on the mortgage debt--being $457,709.16. Disposition [34] I would allow the appeal and substitute a finding that the net equity of the Adderley property be apportioned $1,919,902.12 in favour of Ms. Falconer and $297,388.76 in favour of Mr. Cohrs. [35] In her factum, Ms. Falconer requested court-ordered interest. The parties did not make submissions to this Court with respect to this request. If they are unable to come to an agreement in this respect, they may contact the registry to request directions from this Court regarding the provision of written submissions. "The Honourable Justice Mayer" Reasons for Judgment of the Honourable Justice Riley: Introduction [36] I have had the privilege of reading a draft of my colleague Justice Mayer's reasons for judgment. I respectfully disagree with his conclusion that the trial judge committed a reviewable error in finding that the parties had only agreed that Mr. Cohrs would assume responsibility for the RBC mortgage payments, as opposed to assuming responsibility for the mortgage itself. Reading the record as a whole, I am not convinced that the trial judge clearly misapprehended the evidence on this point. [37] However, I agree with Justice Mayer that the appeal should be allowed. In my view, the judge erred in law in his consideration of Ms. Falconer's excluded property claim. On a correct application of the law to the facts as found by the trial judge, Ms. Falconer established that $500,000 of Adderley's value was her excluded property and therefore not subject to division under the FLA. Thus, for the reasons set out below, I agree that the appeal should be allowed and the order of the trial judge varied to the extent proposed by Justice Mayer. Whether the Trial Judge Misapprehended the Evidence Concerning Mr. Cohrs' Admission of Responsibility for the RBC Mortgage [38] I read the trial judge's reasons, as a whole, as saying he was not satisfied on a balance of probabilities that the parties agreed to acquire the Adderley property on all of the terms described in Ms. Falconer's trial testimony. In particular, the trial judge was not satisfied that the parties reached an agreement for Mr. Cohrs to contribute $500,000 toward the purchase of the Adderley property by way of a mortgage for which he would assume sole responsibility. Rather, on the trial judge's assessment, the agreement was only that Mr. Cohrs would assume responsibility for making the payments on that mortgage. [39] There was certainly ample evidence to support the trial judge's finding. Among other things, Ms. Falconer testified that when she and Mr. Cohrs were first contemplating the purchase of the Adderley property, Mr. Cohrs was paying $2,000 per month in rent; they worked out that if this were converted into mortgage financing, it would service a mortgage with a principal of $500,000. Against this backdrop, the parties agreed that part of the purchase price for the Adderley property would come from a mortgage in that amount, with Mr. Cohrs assuming responsibility for the mortgage payments. [40] As Justice DeWitt-Van Oosten explained in Airside Event Spaces Inc. v. Langley (Township), 2021 BCCA 306, the test for establishing a reversible misapprehension of evidence sets a high bar: [43] Findings of fact are reversible on appeal only when shown to be the product of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 at para. 10. A misapprehension of evidence may meet that test; however, the misapprehension must go to the core of a judge's reasoning process before it will warrant appellate intervention: R. v. Morrissey (1995), 22 O.R. (3d) 514 at 541 (C.A.). Demonstrating a misapprehension is a high standard for an appellant. As noted in R. v. Osinde, 2021 BCCA 124 at para. 20, the alleged error must be plainly identifiable and there must be an actual mistake (citing R. v. Sinclair, 2011 SCC 40 at para. 53). It is not enough to "merely suggest a different interpretation of the evidence, or merely point to some evidence which arguably weighs against the trial judge's finding": R. v. Swales, 2014 BCCA 350 at para. 49. [41] I appreciate that the trial judge did not expressly address the passages in Mr. Cohrs' examination for discovery and trial testimony in which he accepted responsibility for the mortgage. However, even taking that evidence into account, I would not say on the record as a whole that the judge's finding was palpably wrong. In my view, Mr. Cohrs' admissions could just as easily be read as an acceptance of responsibility for the mortgage payments, and not the mortgage itself. The matter is open to interpretation either way, and the latter interpretation of Mr. Cohrs' evidence on this point is consistent with the conclusion the trial judge reached on the whole of the evidence. In my view, it cannot be said that the trial judge's finding was either palpably wrong, or the product of a material misapprehension of the evidence. Whether the Trial Judge Erred in Law in Rejecting Ms. Falconer's Excluded Property Claim [42] As an alternative to her submission that the parties had agreed for Mr. Cohrs to assume full responsibility for the $500,000 mortgage, Ms. Falconer took the position the evidence proved an excluded property claim of $500,000. This position rested on her trial testimony that when she assigned her interest in the purchase of the Adderley property to herself and Mr. Cohrs, she did so with the intention and expectation that Mr. Cohrs would contribute $500,000 to the purchase, to be funded by a mortgage. Thus, Ms. Falconer took the position that, regardless of any agreement with Mr. Cohrs, it was her intention from the outset to preserve the excluded property status of $500,000 of the funds used to acquire the Adderley property. [43] The trial judge considered this argument, but rejected it. The key passage is found at paragraph 82 of the reasons, where the judge stated: [82] I come to the same conclusion with respect to the existence of an oral agreement to maintain her excluded property. I cannot find a sufficient evidentiary basis to conclude that the parties intended to preserve the claimant's total contributions to Adderley as excluded property. I find instead that, aside from the renovation expenses, the funds the claimant contributed to the Adderley Property lost their exclusionary character when the property was registered into their joint names when they came into possession of it on June 27, 2018: Basi v. Basi, 2021 BCSC 421 at paras. 31, 41-43; Wickstrom v. Ng, 2019 BCSC 1685. [Emphasis added.] [44] Ms. Falconer says the underlined passages of the judge's reasoning reflect an error in law. She says in considering whether excluded property is gifted from one spouse to another, one must look to the subjective intention of the transferor spouse at the time of the transfer, citing Venables v. Venables, 2019 BCCA 281 at para. 95. Ms. Falconer submits that the trial judge erred by failing to assess her excluded property claim based on her subjective intention as the transferring spouse. Ms. Falconer takes issue with the trial judge's rejection of her excluded property claim based on the failure to prove "an oral agreement" between the parties to "maintain her excluded property". Ms. Falconer also points to the judge's conclusion that the evidence did not establish that "the parties intended" to preserve her contribution as excluded property. [45] I agree with Ms. Falconer that the trial judge erred in law by rejecting her excluded property claim based on the failure to prove an agreement between the parties. In assessing whether a transfer of previously excluded property from one spouse to another maintains its excluded character, the focus is on the subjective intention of the transferring spouse at the time of the transfer: Venables at para. 95; Namdarpour v. Vahman, 2019 BCCA 153 at para. 40; Cohoon v. Stobo, 2023 BCCA 479 at para. 18. The correct approach, as stated by Justice Griffin in Venables at para. 95, is that "the intention of the spouse transferring ownership is key in determining whether the property transferred from one spouse to the other remains excluded property or becomes family property". [46] Mr. Cohrs emphasizes that the judge's reasons "must be read in their entirety, 'with an eye for the judge's comprehensive view of the case'": Parminter v. Parminter, 2011 BCCA 347 at para. 27. He argues that the trial judge's reasons, read as a whole, reflect a proper understanding and application of the law. He says the trial judge properly instructed himself on the law, and it is "abundantly clear" that the judge considered and applied that law in his subsequent legal analysis. [47] It is true that the trial judge correctly stated the law in a section of his reasons entitled "Legal Principles Respecting Excluded Property". This portion of the judge's reasons includes an accurate summary of the relevant principles set out in Namdarpour, Venables, and Cohoon. However, I do not accept Mr. Cohrs' submission that the trial judge applied those legal principles when he rejected Ms. Falconer's excluded property claim based upon a lack of proof that "the parties intended to preserve [her] total contributions to Adderley as excluded property" (at para. 82). [48] The trial judge's reasons, read as a whole, reflect that he properly instructed himself on the law, but lost sight of the key principle when applying the law to the facts. Having rejected the conclusion that the parties reached an agreement for Mr. Cohrs to assume sole responsibility for the $500,000 mortgage in its entirety (at paras. 80-81), the judge mistakenly applied the same legal requirement -- that is, a requirement for proof of an "oral agreement" between the parties -- in analyzing Ms. Falconer's excluded property claim (at para. 82). [49] I also agree with Ms. Falconer that the trial judge's error had a direct impact on the outcome. In rejecting the contention that the parties had reached an agreement for Mr. Cohrs to assume sole responsibility for the entirety of the $500,000 mortgage, the trial judge accepted that "[t]his may have been [Ms. Falconer's] understanding", but the evidence fell "short of that required to establish an oral contract" (at para. 81). This passage, in the context of the reasons as a whole, indicates the trial judge's acceptance of Ms. Falconer's testimony with respect to her own state of mind at the time the Adderley property was acquired. She intended to preserve the excluded property status of $500,000 of the funds used to acquire the Adderley property, subjectively expecting that Mr. Cohrs would contribute that much by securing a mortgage for which he would be solely responsible. The judge's reasons also catalogue the efforts that Ms. Falconer subsequently made to maintain the excluded character of that portion of the property's value, notwithstanding Mr. Cohrs' unwillingness to agree. [50] On a proper application of the law to the facts as found by the trial judge, one is driven to the conclusion that Ms. Falconer proved her excluded property claim. The value of the claim is $500,000, which is equal to the amount of Mr. Cohrs' contribution to the purchase of the Adderley property in the form of $500,000 in mortgage financing. In other words, Ms. Falconer's intent at the time of the purchase was to preserve as excluded property $500,000 of the property's value. Remedy [51] On a proper accounting for Ms. Falconer's $500,0000 excluded property claim, she would be entitled to an adjustment of the property division figures that, depending on the manner in which one does the calculations, would be equal to or marginally more than the amount she seeks on appeal, as reflected in Justice Mayer's reasons. In the circumstances, the proper order is the one indicated by Justice Mayer, that is, that the appeal be allowed, and the trial judge's order be varied to provide that the net equity in the Adderley property be apportioned $1,919,902.12 in favour of Ms. Falconer and $297,388.76 in favour of Mr. Cohrs. "The Honourable Justice Riley" I AGREE: "The Honourable Justice Edelmann"