M.A.V. v. J.V.

2023 BCSC 1904 M.A.V. v. J.V.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: M.A.V. v. J.V., 2023 BCSC 1904 Date: 20231031 Docket: E95333 Registry: Nanaimo Between: M.A.V. Claimant And J.V. Respondent Before: The Honourable Justice Majawa Reasons for Judgment Counsel for the Claimant: B.K. Soloway The Respondent, appearing in person: J.V. Place and Dates of Trial: Nanaimo, B.C. September 5-8, and 11-15, 2023 Place and Date of Judgment: Nanaimo, B.C. October 31, 2023 Table of Contents INTRODUCTION.. 3 BACKGROUND FACTS. 3 DATE OF SEPARATION.. 4 The Applicable Law.. 5 Analysis. 6 VALIDITY OF SEPARATION AGREEMENT. 11 The Applicable Law.. 12 Analysis. 14 PARENTING.. 19 Parenting Time. 19 Parenting Responsibilities. 20 SUPPORT. 22 The Parties' Incomes. 23 The Respondent's Income. 24 The Claimant's Income. 26 Summary of the Parties Incomes. 28 Child Support 30 Section 7 Expenses. 31 Spousal Support 34 DIVISION OF PROPERTY AND DEBT. 39 COSTS AND OTHER ORDERS. 43

INTRODUCTION [1] In this family law proceeding, divorce, child and spousal support, and division of family property are the main issues. The parties have generally come to an agreement with respect to the parenting arrangement for their two children; however, decision-making responsibility and parenting time during the holidays still require orders from this Court. The parties also sought a divorce which was granted on September 15, 2023. [2] There are a number of issues that must be decided in order to determine the parties' claims. The first is with respect to the date of separation which in this case will have a bearing upon child and spousal support obligations. [3] I also must determine the parties' incomes for each year to determine spousal and child support. Both parties allege that the other should have income imputed to them. [4] Finally, I must determine whether or not a separation agreement put forward by the respondent is valid. The respondent seeks enforcement of that agreement, while the claimant says it is not a valid separation agreement, or if it is that it should be set-aside for being significantly unfair. The validity of the alleged separation agreement is relevant for the determination of the division of the parties' property and debt and spousal support obligations.

BACKGROUND FACTS [5] At the time of trial, the claimant was 34 years old and the respondent was 39 years old. The parties have two children: B.V. and L.V. who were ten and seven years old at the time of trial, respectively. L.V. has significant special needs; he has been diagnosed with autism spectrum disorder and he is non-verbal. L.V.'s educational needs and the associated costs are an issue in this trial. [6] Consistent with the admission made by the respondent in his pleadings, I find that the parties began residing together in a marriage-like relationship on or about September 1, 2009. The parties married on August 27, 2011. [7] The parties' first child was born in 2013. Aside from a short period of time in 2014, the claimant has not worked outside of the home since then. For the time since the parties had their children, the respondent has worked primarily out of town at work camps in Alberta and northern British Columbia. He did so mostly on a two-week on, one-week off schedule. [8] There is much dispute about the date of the parties' separation. The claimant alleges that the parties separated in February 2022, while the respondent says that separation occurred in January 2018. In June 2012, the parties acquired a home in Port Alberni (the "Family Home"). While the parties lived there until February 2022, the living arrangement after January 2018 is in dispute. [9] The Family Home was sold in March 2023. 50% of the net sale proceeds were delivered to the Family Maintenance Enforcement Program ("FMEP") as security for future child support payments to be made by the respondent and 50% was delivered to the claimant's lawyer's office to be held in trust to the credit of the action.

DATE OF SEPARATION [10] The claimant alleges that the parties separated in February 2022. The respondent takes the position that the parties separated on or around January 1, 2018. It is uncontroverted that the parties lived under the same roof while the respondent was home from his out-of-town work assignments between January 2018 and September 2021. However as mentioned above, the living arrangement and the nature of the parties' relationship during this time is very much at issue. Between September 2021 and February 2022, the claimant's mother provided a residence for the parties in Nanaimo (the "Nanaimo Residence") so that L.V. could attend a school that the claimant had identified as being optimal for his particular needs. During this time, it is agreed that the respondent sometimes stayed at the Nanaimo Residence while home from his out-of-town work assignments; however, as with the earlier period, the nature of their relationship during this period is very much at issue. The Applicable Law [11] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [DA], provides guidance as to when spouses separated at s. 8(3), the relevant parts of which read: (3) (a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and (b) a period during which spouses have

lived separate and apart shall not be considered to have been interrupted or terminated (ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose. [12] Determining when spouses have separated is further guided by s. 3(4) of the Family Law Act, S.B.C. 2011, c. 25 [FLA]: 3 (4) For the purposes of this Act, (a)spouses may be separated despite continuing to live in the same residence, and (b)the court may consider, as evidence of separation, (i)communication, by one spouse to the other spouse, of an intention to separate permanently, and (ii)an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently. [13] Thus, a legal separation occurs, even where spouses continued to live in the same residence, when one spouse, through actions and/or words, communicates or demonstrates their intention to separate permanently. It is not necessary for both parties to share the intent to separate: Cole v. Cole, 2016 BCSC 716 at para. 30. [14] In Der Woon v. Zadorozny, 2020 BCCA 95, at para. 9, the Court of Appeal quoted Justice Fleming's decision in Nearing v. Sauer, 2015 BCSC 58, with approval in respect of the factors to consider when the parties dispute the date of separation. In Nearing, Fleming J. reviewed the jurisprudence and emphasized that

in addition to one party forming the intention to live separate and apart from the other, the case law also requires that the spouse who seeks to separate acts consistently with that intention. At para. 56, Fleming J. Discusses the nature of the analysis: [56] In Sachdeva v. Sachdeva, 2013 BCSC 313 [Sachdeva], this Court took a similar approach, relying primarily on Rose v. Guiguet, 2008 BCSC 1225, where Madam Justice Dorgan looked at both the husband's intention to live separate and apart and his actions. Typically when the parties dispute the date of separation, the court's analysis focuses on the generally accepted characteristics of marriage including the intention to remain married, having sexual involvement, carrying on activities in public, sharing financial resources and sharing significant family events: Sachdeva at para.

87. The court will also consider a range of other factors, including a clear statement by one of the parties of his or her desire to terminate the relationship. Sexual involvement, or lack thereof, is not conclusive: Newth v. Booth, 2011 BCSC 317 at para.

17. Analysis [15] Upon consideration of the evidence, I find that the parties separated on or around January 1, 2018, even though they maintained the same residence until February 2022. The respondent indicated as such and his conduct was consistent with that intention. In my view, the parties' relationship after January 2018 did not include many of the "generally accepted" characteristics or a marriage. Although their finances remained integrated, this was due to the unique circumstances of their living situation and their separation arrangement. After 2018 the parties lead relatively separate lives when the respondent was in town, including physical separation within the Family Home. [16] The parties agree that there was an event that occurred in December 2017 regarding alleged infidelity on behalf of the respondent that caused some significant turmoil in what was already a turbulent relationship. At this time, it also appears that all parties agree that divorce was discussed and that there was at least a period of separation. [17] The respondent says that he communicated a permanent intention to separate in or around December 2017. He told the claimant that he wanted a divorce. In my view, the objective circumstances support that the respondent made that communication. [18] Given the respondent's work schedule, the parties decided that it would be in the children's best

interest to engage in a nesting arrangement whereby the children would remain in the Family Home and the parties would maintain separate living spaces within the Family Home while the respondent was home from his out-of-town employment for one week out of every three. I also accept that the claimant's struggles with mental health were a significant factor in the respondent's decision to engage in such a nesting arrangement for such a long period of time. [19] I find that beginning in or around January 2018, the claimant began to live in a converted suite in the basement of the Family Home when the respondent was home for one week out of every three. When the respondent was away for work, the claimant had full access to the house such that she could take care of the children. The evidence before me supports that this living arrangement continued for the entirety of the time period between January 2018 and February 2022. In particular, there are numerous text messages from the claimant to the respondent where the living arrangement is referenced and which suggest that it continued for some time. For example, in 2021 there are a series of text messages in which the claimant refers to the basement room as her area and asks the respondent permission to come upstairs for a period of time while was at home. [20] There are other text messages that suggest that the claimant accepted

that the respondent was no longer bound to their relationship. Despite her testimony that she was not aware of the respondent seeing other women after the December 2017 incident, it is clear from the text messages she sent to him during the period between January 2018 and February 2022 that she was fully aware and had accepted that he was seeing other women. [21] Other evidence that supports that the parties were separated while they were engaged in this nesting arrangement is a series of text messages in 2021 where the claimant refers to herself as being the "ex-wife" and laments the fact that it would have been their 10-year anniversary on that particular day. [22] While I acknowledge that I do not have the entirety of the parties' text message communications in front of me, and the reason for that may, in part, be due to the way in which the respondent and the claimant shared an iCloud account which was subsequently deleted by the respondent, the messages that are in evidence are illuminating. I find that while some of the messages suggest that the claimant was hopeful that the parties' relationship would work out and there would be a reconciliation, the tenor of the messages is consistent with the parties having separated in 2018. Although the parties had sexual relations on occasion after January 2018, I do not find that it was as regular and consistent as the claimant

testified, and it was not in the nature of their sexual relationship during the course of their marriage before separation. [23] I do not accept the claimant's evidence that she and the respondent continued to act as a family with the children in the same manner as they did before separation when the respondent was home from work. The evidence of witnesses called on behalf of the claimant was principally focused on those witnesses' subjective views of whether or not the parties were separated, which were informed by their relationship with the claimant and what she had told them during that time and since. While the evidence of witnesses called on behalf of the claimant support a finding that the parties would spend time together with their children on holidays, no specific evidence was tendered by these witnesses that supports such continued family activity on days other than holidays. In my view it is not unusual for separated parents with young children to spend the holidays together in some manner in order to make it easiest on the children. [24] It appears to me, that the parties represented to the outside world that they were separated. The respondent told people, including his family members, that they had separated and he conducted himself as if they were. For example, the respondent began seeing other women which, at one point their eldest child became aware of. When

the claimant conveyed the contents of this conversation to the respondent via text message, the claimant said that she told their eldest that the respondent being involved with other women was fine because he can do what he wants to do. [25] The claimant acknowledged that she told people that they were separated and in a nesting arrangement for approximately six months after the December 2017 incident. While I do not have direct evidence of the claimant continuing to represent the parties as separated after the six-month period, I find that this representation is an acknowledgement that the respondent had communicated an intention to permanently separate in 2017. In my view the evidence does not support any periods of reconciliation such that I would find that the parties did not separate until 2022. [26] Moreover, since at least 2021, it appears that the claimant has reported her marital status as being separated. The respondent has reported as being separated since at least 2019. It does appear that the claimant reported as being married in her 2020 tax return based upon the notice of assessment that was tendered in evidence. However, the claimant's tax returns for 2020 and earlier were not tendered in evidence. It seems likely to me that the reason that the claimant did not report as being separated until 2021 was because she was earlier denied the Canada Child Tax Benefit

("CCTB") because the parties still shared the same address and she had not changed her marital status. [27] In September 2021, L.V. began attending an educational program in Nanaimo and the claimant's mother agreed to provide the Nanaimo Residence for the family's use. At this time, the living situation changed somewhat. During the two weeks that the respondent was out-of-town working, the claimant would spend Monday to Thursday, and sometimes Friday, at the Nanaimo Residence and would return to the Family Home on the weekends. During the one week that the respondent was home from work, I find that he would stay at the Nanaimo residence, often times sharing a room with their eldest while the claimant also stayed at the Nanaimo Residence. However, I do not find that they resumed their marital relationship. [28] I agree with the claimant that the parties' financial arrangements remained the same during the period between January 2018 and February 2022 as it was during the approximately seven years since the parties were married. In some circumstances, this arrangement would not be indicative of the parties having separated. However, in the particular circumstances of this case, the financial arrangement is consistent with the parties' separation in January 2018. [29] During the marriage, the parties shared a joint bank account from which all of the family's expenses were paid.

This arrangement persisted after the parties separated in January 2018 such that the respondent continued to deposit the entirety of his paycheques into the joint account and the claimant continued to have unfettered access to the account in order to pay for the family's expenses. As will be discussed later, the respondent alleges that this arrangement was part of the parties' separation agreement, such that the claimant's continued unfettered access to the joint bank account, in which the respondent's salary was deposited, would be in lieu of the respondent paying the claimant formal child or spousal support. Although this arrangement is admittedly somewhat unique, given the work schedule of the respondent it is not, in my view, inconsistent with the parties' separation. [30] In support of her position that the parties did not separate until February 2022, the claimant points to an incident that occurred that month when she returned to the Family Home to find that the respondent's new partner was there with him. A confrontation ensued and following this the respondent, who by that point was the only party on title to the Family Home, changed the locks and returned his set of keys to the Nanaimo Residence. It was around this time that the respondent ceased depositing his paycheques into the joint account. While one might look at this incident as being consistent with the

claimant's protestations that she was not under the impression the parties were separated, I find that the reaction is equally consistent with the claimant realizing in February 2022 that the respondent had moved on and had a serious partner. [31] While it may be unusual for parties to live under the same roof in a nesting arrangement for approximately four years after separation, it is not in my view inconsistent with the specific work schedule of the respondent and the particular circumstances of this family. On balance I conclude that it is more likely than not that the parties separated on, or about, January 1, 2018.

VALIDITY OF SEPARATION AGREEMENT [32] As referenced earlier, the respondent alleges that there is a valid separation agreement providing for the division of property, spousal support and child support, among other things. The alleged agreement is dated for reference March 5, 2020, (the "Alleged Separation Agreement"). [33] The Alleged Separation Agreement is eight pages it in length. On the last page, it is signed by both parties and is witnessed by one of the parties' friends and that friend's partner. Neither party received any independent legal advice before signing this document. [34] Among other things, the Alleged Separation Agreement provides that: a) The claimant will have parenting time with the children while the respondent works away from home. When the respondent returns from home, the agreement provides for him to have parenting time with the children. b) The respondent will pay child support in the amount of zero dollars or the amount payable pursuant to the Federal Child Support Guidelines, SOR/97-175, [Guidelines]. c) Both parties waive any claim to spousal support regardless of any change in circumstances experienced by either party. d) Each party waives any claim over the other's pension. e) The respondent agrees to transfer her interest in the Family Home to the respondent for a compensation payment of $10,000. The parties remaining assets are addressed and

assigned to each party such that the claimant receives $10,000 of these assets and the respondent received $55,000. Given the value of the Family Home at the time it sold in March 2023, the division of property set forward in the agreement results in $235,000 of marital assets being divided such that the claimant receives $20,000 and the respondent receives $215,000. [35] The respondent argues that the Alleged Separation Agreement is a valid and binding separation agreement and he seeks its enforcement. The claimant argues that the Alleged Separation Agreement is not a separation agreement at all because they were not separated at the time it was signed in March 2020. However, that argument fails because, as I found earlier, the parties separated in or around January 10, 2018. In the alternative, the claimant's position is that the Alleged Separation Agreement should be set-aside under ss. 93 and 164 of the FLA. The Applicable Law [36] The circumstances in which a separation agreement respecting property and debt division may be set-aside are provided for in s. 93 of the FLA and the provisions for setting aside agreements regarding support are found in s. 164 of the FLA. In essence, these provisions provide for two grounds upon which separation agreements may be set-aside: the first is procedural and the second is substantive. [37] Subsection 93(3) provides four circumstances

that may render a separation agreement procedurally unfair such that it could be set-aside. The provision reads as follows: 93(3) On application by a spouse, the Supreme Court may set aside or replace with an order made under this Part all or part of an agreement described in subsection (1) only if satisfied that one or more of the following circumstances existed when the parties entered into the agreement: (a) a spouse failed to disclose significant property or debts, or other information relevant to the negotiation of the agreement; (b) a spouse took improper advantage of the other spouse's vulnerability, including the other spouse's ignorance, need or distress; (c) a spouse did not understand the nature or consequences of the agreement; (d) other circumstances that would, under the common law, cause all or part of a contract to be voidable. [38] The procedural grounds for setting aside a separation agreement dealing with support are found in s. 164(3) of the FLA and essentially mirror the circumstances provided for in s. 93(3) regarding property division. [39] Pursuant to ss. 93(4) and 164(4) of the FLA, the court may decline to set aside an agreement that is procedurally unfair if, after consideration of all the evidence, the court would not replace the agreement with an order that is substantially different from that set out in the agreement. [40] If a separation agreement

is found to be procedurally fair, it may still be set-aside if it is substantively unfair. Pursuant to s. 93(5) of the FLA, a separation agreement regarding the division of property and debt may be set-aside if the court is satisfied that it is significantly unfair upon consideration of: a) the length of time that has passed since the agreement was made; b) the intention of the spouses, in making the agreement, to achieve certainty; and c) the degree to which the spouses relied on the terms of the agreement. [41] When considering whether to set aside an otherwise procedurally fair separation agreement regarding support, the court must also be satisfied that the agreement is significantly unfair under s. 164(5) of the FLA. The first three factors to be considered are identical to those considered under s. 93(5). In addition, the court is to consider the degree to which the agreement meets the objectives of spousal support set out in s. 161 of the FLA. The statutory provisions applicable to setting aside a separation agreement were recently reviewed in Eckert v. Garnham, 2023 BCSC 55. Analysis [42] To determine whether a separation agreement was procedurally fair, the court must consider the circumstances surrounding its negotiation and execution: Eckert at para. 25. [43] The circumstances around the execution of the Alleged Separation Agreement can be described as murky, at

best. Each party alleges that the other drafted it. The respondent alleges that the claimant found the shell of the agreement on the Internet; however, he has provided no details regarding the discussions or negotiations that he says the parties had leading up to the execution of the agreement. It seems very unlikely that the claimant would have drafted such a one-sided agreement without some sort of input or other assurances from the respondent. [44] The respondent's explanation as to why the Alleged Separation Agreement was prepared is unclear. Although he was having meetings with his bank in 2020 regarding refinancing the Family Home, he denies that it was prepared for those reasons. Rather, he says that the document was prepared because the claimant was unable to collect CCTB benefits because the parties were living at the same address and were advised that they needed a separation agreement to provide to the Canada Revenue Agency in order for her to receive those benefits. [45] The claimant says that the respondent told her that the agreement was needed in order to refinance the Family Home. At that time, both parties were registered owners of the Family Home. In 2015 and 2018, two charges were registered against the claimant's interest in respect of the claimant's personal credit card and Medical Services Plan debts. The claimant testified that her understanding was that

the agreement was needed only in order for the Family Home to be transferred to the respondent's name and for the subsequent refinancing. [46] While the Alleged Separation Agreement may have been prepared, in part, to support the respondent's claim for CCTB benefits, I find it difficult to accept the respondent's explanation that it was not created for the purposes of re-financing the Family Home. The respondent provided what I consider to be inconsistent testimony in this respect; he testified that he was having meetings with the bank in 2020 but he does not remember what those meetings were about. While he denied knowing about the charges registered against the claimant's interest in the Family Home at that time, the evidence before is unclear as to when he found out about them but it seems likely that he knew about the charges at the time he was having discussions with the bank. What is clear, is that the last page of the separation agreement is stamped by a Scotia Bank representative on or about March 4, 2020, as being a certified copy of the original. While this precedes the date of the Alleged Separation Agreement by one day, it is more likely that it was stamped sometime around this date rather than sometime in 2021 as the respondent testified. [47] It appears to me that the respondent likely discussed the claims against the claimant's interest in the Family Home with

the bank and was advised that they would not likely be able to remortgage given those judgments and the claimant's lack of personal income. Consequently, the plan became to transfer the property into the respondent's name alone. However, without a court order or a separation agreement in place the bank would not likely agree to such a refinancing. [48] Moreover, the Alleged Separation Agreement is inconsistent with what the respondent alleges was the parties' agreement during the period of separation starting in January 2018. In this respect, I am referring to the nesting arrangement and the unfettered access to the joint bank account in lieu of spousal and child support. Neither of these arrangements are referenced in the Alleged Separation Agreement which is signed some two years later. [49] It is not clear to me whether or not the claimant or the witnesses to the signatures on the document had seen the entire eight pages of the Alleged Separation Agreement when it was signed. The claimant says that she and the witnesses only saw the final page of the agreement which only contains the signatures; the respondent says that the claimant and the witnesses had the entire agreement at the time it was signed. [50] The claimant's evidence about the circumstances surrounding the execution of the Alleged Separation Agreement was not consistent. The claimant remained steadfast that she

only saw the last page of the agreement and that she was told to sign it because if she did not they would lose the Family Home due to issues with refinancing the mortgage. She testified that she did not know that what she was signing was a separation agreement. The claimant testified that she did not see the entirety of it until this litigation commenced. However, she was less clear about whether she signed the document in the presence of the witnesses and where the document was signed: at one point she stated that it was signed at the bank and at another time that it was signed at a friend's house. [51] After some back-and-forth, her testimony is that she signed the agreement at her friend, D.G.'s, residence and it was witnessed by D.G.'s partner, J.T. The claimant says that the respondent was not present at D.G.'s house when the document was signed. D.G testified and stated that only the claimant attended and that only the final page of the document was presented to her and J.T. for signing. She testified that the claimant and the respondent's signatures were already present on the document when it was presented to her. [52] The respondent testified that the entirety of the agreement was provided to the claimant at the time it was prepared, in fact he testifies that the claimant prepared the document. The respondent also testified that he was present with the claimant when

the document was witnessed by D.G. and J.T. at their residence. D.G. testified that she had to pressure J.T. to sign the document because he did not want anything to do with it. She also testified that she thought it was odd that there was only one page of the agreement presented to her. Contrary to the claimant's testimony, D.G. testified that she was aware that she was witnessing a separation agreement but had been told that the claimant and the respondent were "faking" it to get the claimant off title to the Family Home. [53] It is unfortunate that J.T. was not called to testify by either party as he would have potentially had useful evidence to provide in respect of the circumstances of the signing of the Alleged Separation Agreement. In the circumstances, I am unable to determine if the claimant had seen the entire Alleged Separation Agreement before or at the time she signed it. However, given my conclusion as will be described below, it is not necessary for me to make a finding on this matter. [54] In my view, it is more likely than not that the Alleged Separation Agreement was executed as part of the refinancing of the Family Home. It is likely that the claimant was told that this was the reason for executing the agreement, whether she was provided with only the last page or the entirety of the agreement. Neither party had independent legal advice when executing the

Alleged Separation Agreement. I am satisfied that the claimant did not understand the nature or consequences of the agreement when it was signed; consequently, pursuant to ss. 93(3)(c) and 164(3)(c) of the FLA, I exercise my discretion to set aside the Alleged Separation Agreement. As will be touched upon below, I decline to exercise my discretion under ss. 93(4) and 164(4) to not set aside the agreement because I would replace it with a substantially different order. [55] If I am wrong, and the Alleged Separation Agreement was executed in a procedurally fair manner, I would nonetheless set aside the agreement on the grounds of significant unfairness. In Eckert at para. 42, Tammen J. held that when considering the substance of the agreement, the court must consider whether it is in substantial compliance with the general objectives of the legislation. [56] Under the FLA, the claimant is presumptively entitled to half of the equity in the Family Home and an equal division of other family property. However, as discussed above, the Alleged Separation Agreement provides the claimant with less than 10% of the listed family property. This is a significant departure from her statutory entitlement and I conclude that it is substantively unfair in the circumstances. [57] I also have no difficulty in concluding that the terms of child and spousal support in the Alleged Separation

Agreement should be set-aside. Clearly, child support of zero dollars is not in the children's best interest. In any event, the respondent does not take the position that he should pay zero child support now. [58] The claimant's purported waiver of her entitlement to spousal support in the Alleged Separation Agreement is also significantly unfair because it does not meet the objectives of spousal support found in s. 161 of the FLA or in s. 15.2 of the DA. In no way does the claimant's waiver recognize the advantages or disadvantages that have accrued to the spouses from the relationship or from the breakdown of that relationship, nor does it apportion the financial consequences of the claimant's role as being the primary caregiver to the parties' children during the relationship, nor does it relieve economic hardship to the claimant arising from the breakdown of the relationship. Finally, it does not promote economic self-sufficiency within a reasonable period of time. [59] As discussed above, the Alleged Separation Agreement is entirely one sided in favour of the respondent. There is no give-and-take; nothing is provided by the respondent in exchange for the claimant giving up her entitlement to spousal support and almost the entirety of the family property. I agree with the claimant that there was no reason for her to consider this as an agreement that would govern the

parties' separation. This is so particularly in light of my findings with respect to the likely purpose that the agreement was prepared (i.e. for refinancing purposes). It is also notable that the Alleged Separation Agreement does not reflect the separation arrangement that I have found the parties to have been engaged in during the period between January 2018 and February 2022. In the circumstances, I do not find that the parties relied on the terms of the Alleged Separation Agreement at all. [60] In summary, I conclude that the Alleged Separation Agreement should be set aside pursuant to ss. 93(3) and 164(3) of the FLA because the claimant did not understand the nature and consequences of the purported agreement. If I am wrong in that conclusion, I would set aside the entirety of the agreement on the basis of significant unfairness.

PARENTING Parenting Time [61] For the most part, the parties agree to the parenting arrangement for their two children. The parties agree that the claimant is to have the primary residence of the children and that the respondent is to have parenting time every second weekend. As such, I order that the respondent is to have his parenting time every second weekend beginning at 7:00 p.m. on Friday and concluding at 7:00 p.m. on Sunday. The respondent's parenting time will be extended by 24 hours if there is a statutory holiday on the Friday or the Monday of his parenting time. [62] There is some disagreement as to where the claimant and the respondent are to exchange the children. The claimant seeks an order that the children be dropped off at the respondent's residence at the beginning of his parenting time. While I appreciate the claimant's concerns with respect to the possible effect of L.V. being transferred to a vehicle at the mall parking lot and then again to the respondent's home, I am not persuaded that maintaining the current arrangement is detrimental to L.V. such that it would not be in the children's best interest to continue. In my view, given the respondent's and his new partner's concerns in respect of the claimant's attendance at their residence, drop-offs at the respondent's residence may contribute to conflict between the parties. Consequently, the exchanges are

to continue to occur at the mall parking lot. As the respondent indicated, he is content to drop the children off at the claimant's residence at the end of his parenting time and the order may reflect as such. [63] There is some dispute as to the logistics of the holiday parenting schedule given the respondent's work schedule. However, the parties are fundamentally in agreement that they can share the Christmas and spring breaks equally. Consequently, I order that the parties are to share parenting time of the children equally for the spring break and Christmas vacation periods. The respondent is to advise the claimant no later than 30 days before the commencement of the school Christmas break if he will exercise his parenting time for school holiday period. Regardless of whether the respondent exercises his parenting time during the Christmas holiday break, the respondent is to have the children from 10:00 a.m. on Christmas Eve until noon on Christmas Day in odd numbered years and the claimant is to have the same in even numbered years. [64] The parties are to share parenting of the children during the spring school break period. The respondent is to notify the claimant by February 15 of each year to advise her if he is going to exercise this period of parenting time. [65] The claimant proposes that the respondent have up to two weeks of parenting time during the summer. The

respondent seeks more flexibility if his work schedule permits it. In my view, it is appropriate for the respondent to have up to three weeks of parenting time with the children during their summer school holidays. That three weeks of parenting time is to consist of one period of no longer than 14 consecutive days but otherwise may be apportioned in a manner that the parties can agree upon. The respondent is to give the claimant notice by April 15 of each year as to the dates he wishes to exercise his parenting time during the summer so that the claimant can make other arrangements for the children's care or activities during the summer if necessary. [66] The parties will each have parenting time on Mother's and Father's Day as proposed by the claimant in her draft order. Parenting Responsibilities [67] The claimant seeks an order in the nature of the Joyce model such that the parties are obliged to discuss significant decisions in respect of the children and try to come to a consensus. Where they cannot, the claimant seeks the authority to make those decisions and the respondent is to have the ability to apply to the court for directions if he disagrees. The respondent opposes this; he seeks an order whereby the parties share the decision-making responsibilities and there is a referral to some sort of mediation if they are unable to agree. [68] It is clear to me that the

respondent's concerns about the claimant having the final say in respect of the decision-making authority is rooted in his concerns about the financial consequences of those decisions. In particular, the respondent is concerned about being financially responsible for decisions the claimant makes with respect to L.V.'s private education and schooling. However, asides from this financial concern, the respondent has acknowledged on numerous occasions that he does not have any issues with the decisions that the claimant has made in respect of L.V.'s education. [69] There is no evidence before me which would lead me to be concerned that the claimant has made any decisions in respect of the children that are not in their best interest. While she may have made some of these decisions without consulting the respondent, it appears to me that this is somewhat consistent with the role that the parties played in respect of the children during the course of the marriage leading up to separation and since. I agree with the claimant that, as a result of the respondent's employment requiring his presence away from home for two thirds of the time, the responsibility for making decisions that affected the children rested with the claimant prior to separation and since separation that has continued. [70] I also find on the record before me that there are clearly significant issues with respect to

the parties' ability to communicate effectively. In my view it makes sense that the claimant, as primary caregiver, has the authority to make decisions affecting the children if they are unable to reach a consensus. Given the limit that I have put on the respondent's contribution to the children's s. 7 expenses, as will be discussed below, the respondent's concern with decisions being made unilaterally by the claimant that he is unable to afford are not relevant to this consideration. [71] In my view it is appropriate that the Joyce model apply such that the parties share decision-making responsibility under section 16.3 of the DA. Consequently, the parties are obligated to discuss significant decisions with each other and to try to reach an agreement on those decisions. In the event that they cannot reach agreement on significant decisions, the claimant will be entitled to make those decisions. The respondent will have the right to apply to the court for directions on any decision he considers contrary to the children's best interests. While the respondent's suggestion that the parties engage in mediation as a means of resolving disputes about decisions made has some superficial appeal, the mechanisms for engaging in such a series of mediations are not defined and I am not persuaded that this will be any more economical or efficient in the circumstances.

SUPPORT [72] Currently, the respondent is paying child support to the claimant in the amount of $2,659 per month pursuant to the interim without prejudice order of Master Dick dated May 12, 2022. The amount of support being paid is based upon the respondent having an income of $199,480 per year as he earned in 2021. As I understand it, the respondent made only a few voluntary payments pursuant to this order and ceased to do so when his employment in the north stopped shortly afterwards. Since then, the respondent's child support payments have been made to the claimant through FMEP from the 50% of the net sale proceeds of the Family Home that were delivered to the FMEP as security for future child support payments to be made by the respondent. [73] The respondent agrees that he is obliged to pay child support based upon his income as determined by the Guidelines. He argues that his child support obligation was fulfilled by the claimant's unfettered access to the joint bank account for the four-year period between January 2018 and February 2022 while the parties were separated but living in the nesting arrangement. Furthermore, the respondent's current income is also at issue; the claimant seeks that the respondent be imputed with income above what he claims to earn. [74] The children's s. 7 expenses are also at issue, in particular what are proper s. 7 expenses in relation to

L.V.'s educational needs. [75] The claimant also seeks spousal support on both a compensatory and non-compensatory basis. The respondent opposes this and argues that his spousal support obligation has been entirely fulfilled by the claimant's unfettered access to the bank account during the four-year nesting arrangement. The Parties' Incomes [76] Both parties' incomes are relevant given the claim for spousal support and the parenting arrangement. Both parties seek to impute income to the other. [77] Income for child support purposes is generally determined using parties' Total Income on the Canada Revenue Agency T1 General form, in accordance with s. 16 of the Guidelines. However, s. 19(1)(a) of the Guidelines gives the court discretion to impute income to a spouse when the court finds that a spouse is intentionally under-employed or unemployed. [78] The relevant portions of s. 19 provide: 19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [79] The party seeking to have income imputed to their former spouse bears the onus of showing, on a balance of probabilities, that their former spouse is intentionally under-employed: Windle v. Windle, 2010 BCSC 18 at para.

88. A spouse is intentionally under-employed when they choose to earn less than what they are capable of earning: Barker v. Barker, 2005 BCCA 177 at paras.18-19. Section 19(1)(a) does not apply where, through no fault or act of their own, the spouse is terminated from their employment or given reduced hours: Drygala at para.

28. In British Columbia it is not necessary for a party alleging under-employment to show that their former spouse is under-employed with the intent of avoiding support obligations: Barker at paras.18-19. The Respondent's Income [80] As I understand it, the claimant accepts the respondent's reported income for 2018 to 2021. On the evidence before me, the respondent's reported income for those years is his Guidelines income and as such I find the respondent's income to be as follows: · $191,423 in 2018; · $186,482 in 2019; · $217,853 in 2020; and · $199,480 in 2021. [81] In 2022, the respondent's reported income was $105,309. However, it is not entirely clear to me whether the claimant seeks to impute income to the respondent for 2022. It is clear that the claimant seeks to impute income to the respondent in 2023 in the amount of $120,000. [82] The respondent says that his 2022 income was less than his previous years income because he was injured on the job in 2022 and ultimately did not return to that work. The claimant appears to question the validity of the respondent not returning to work because of an injury. However, in my view, the claimant has not met the onus upon her of proving that the respondent was underemployed during that period. The respondent's testimony in respect of his injury remained virtually uncontradicted and given the physical demands placed upon him by

his employment in the north, it appears reasonable. Consequently, I find the respondent's 2022 Guidelines income to be $105,309. [83] The respondent says that his income for 2023 should be found to be $93,000. After being injured on the job, the respondent returned to Nanaimo to recuperate. He decided to look for a different type of job that would be less physically demanding than the role he had in the north. He also decided that he would like to pursue employment in or around Nanaimo as opposed to in the north as he had for the years previous. Ultimately, the respondent was retrained as a crane operator and obtained full-time employment in that occupation in Nanaimo beginning in early 2023. He earns $45 per hour plus overtime, when required and available., The respondent says that he will earn $88,000 in 2023 when prorating the income that he has earned to date. However, given the possibility of overtime he is willing to impute income to himself in the total amount of $93,000. [84] The claimant argues that the respondent's income should be considerably higher because he has not provided a reasonable explanation for leaving his prior employment in the north and that his past income earning suggests that his capacity to earn income is much larger than the income he currently earns. I disagree. [85] It is uncontroverted that the respondent has worked in the north earning a

considerable salary during the parties' marriage and for many years after separation. As discussed, this work required the respondent to be away from home for two out of every three weeks. I accept the respondent's evidence that since at least 2016 he would have preferred to work in a Nanaimo. However, the family's spending patterns would not permit them to be able to afford the lower income he would earn in Nanaimo. I also accept the respondent's testimony that working out of town two out of every three weeks was very stressful and had a significant impact on the relationships he has with his family and friends. In my view, it is not unreasonable that he has decided to pursue employment in the Nanaimo after many years of this work arrangement. [86] There is no evidence before me as to what income the respondent could currently earn if he was to be employed in a similar occupation in the north. Furthermore, there is no evidence before me that would indicate that the respondent is capable of earning the income he earned in previous years in the north while working in the Nanaimo. His substantially larger income from employment in the north appears to be due, at least in part, to the long stretches of overtime that would be worked during the two-week period he was at the work camp, as well as extended periods of time spent at work camps without returning home during the Covid-19

pandemic. [87] There is no evidence before me which would suggest that the respondent could earn more than he is currently earning if he returned to a more physically demanding job in Nanaimo such as the ones that he held in the north. In fact, the evidence suggests that the income being earned by the respondent as a crane operator is significant compared to the average income of those working in the Nanaimo. [88] While I do not find that the respondent is underemployed such that income should be imputed to him for 2023, I do find that some further provision should be made for overtime. At the end of June 2022, the respondent had earned $5,900 of overtime on top of his base salary. As I understand it, overtime is paid to the respondent at time and one-half. While I accept the respondent's evidence that this may not be entirely representative of the overtime he would expect to make for the rest of the year given that the availability of overtime is at least partially dependent upon the number of daylight hours, I am of the view that some further amount should be allowed for expected overtime. Consequently, I find the respondent's 2023 Guidelines income to be $95,000. The Claimant's Income [89] It is not contested that, other than a very short period of time in 2014, the claimant has not been formally employed outside of the home since the birth of the parties' children. Prior to

having children, the claimant was trained as a pharmacy technician in 2009 and was working at full time as a pharmacy technician when the couple met in 2009. [90] The claimant's current reported sources of income are varied. They consist of a persons with disability payment she receives from the provincial government ("PWD"), CCTB, and a federal supplement for respite and GST/HST reimbursement. Although she says she applied some time ago, the claimant did not begin receiving the PWD payment until 2023. [91] The claimant concedes that she has made some "under the table" income in the years since the children were born by renting out dresses she has made for photography shoots, making floral arrangements, and by other contributions she makes from time to time to what was referred to as the "creative community". However, the claimant argues that the income she earned from these activities is minimal and ranges between $2,000 and $10,000 between 2018 and 2023. [92] As I understand the respondent's argument, he takes the position that income should be imputed to the claimant based upon her ability to earn more income from the "under the table" endeavours or as a full-time pharmacy technician. While he appears to acknowledge that L.V.'s current care requirements mean that the claimant could not work full-time, as I understand his position, the respondent suggests that if L.V. was in

school full-time in the public system, the claimant would be capable of working full-time. [93] I do not accept that the claimant can work full time, regardless of whether L.V. is in school full-time or not, which at present he is not. Given the number of appointments and other supports that L.V. requires for which the claimant is responsible for taking him to as the primary caregiver, it is unlikely that she would be able to work full time in any event. Furthermore, while it is not entirely clear the basis upon which she is receiving the PWD payment, by its nature it suggests at the minimum that there has been some finding that the claimant is disabled and unable to work at the present time, likely for reasons related to her mental health as she suggested. [94] I do not accept the Internet printouts tendered by the respondent as being indicative of what the claimant could earn in her creative endeavours. Nonetheless, the claimant acknowledges that she has continued to earn some income "under the table". It also causes me some concern that there are a number of deposits and transfers into the claimant's bank account that were not adequately explained. I find these likely to be, at least in part, income from these creative endeavours. [95] Upon consideration of all of the evidence, I find that it is appropriate to impute income to the claimant in respect of the income she has

earned "under the table" since the parties separated in 2018. I find that a reasonable amount of income to impute pursuant to s. 19 of the Guidelines is $1,500 per year net of expenses for the years 2018 and 2019. In 2020 it is reasonable to increase the imputed income given the relative improvement in the claimant's mental health during this period; consequently, I impute net self employment income of $4,500. [96] While I accept that the claimant is unable to work full time given the children's needs, I am persuaded that she could work part-time although likely much less than half-time. Given her increased experience with her creative endeavours and her training as a pharmacy technician, in my view it is appropriate to impute $10,000 of income per year in 2021, 2022, and 2023 to account for the unreported income from her creative endeavours as well as a small amount of part-time work that the claimant could likely undertake at minimum wage. Although L.V. has special needs, he is in school at least part-time and he does not require constant care from the claimant: Boulton v. Beirne, 2008 BCSC 577 at para.

36. This has been the state of affairs since L.V. started school in the Nanaimo. Given the minimum wage in British Columbia of $16.75 per hour, the amount of imputed income is roughly equivalent to the claimant working approximately seven hours per week and the claimant earning a net of $4,500 per year from her creative endeavours. Summary of the Parties Incomes [97] The respondent's Guidelines income for the relevant years is as follows: Year Income 2018 $191,423 2019 $186,482 2020 $217,853 2021 $199,480 2022 $105,309 2023 $93,000 [98] The claimant's income for the relevant years is as follows. Given that the claimant's sources of income are treated differently for the purposes of child support, s. 7 expenses, and/or spousal support, I have set out the nature of each element of her income as opposed to only setting out a total for each year. Year Income 2018 · $1,500 - consisting of her imputed net self-employment income. 2019 · $1,500 - consisting of her imputed net self-employment income. 2020 · $4,500 - consisting of her imputed net self-employment income. 2021 · $10,000 - consisting of imputed net self-employment and employment income. · $18,000 - consisting of CCTB received by the claimant. 2022 · $10,000 - consisting of imputed net self-employment and employment income. · $18,000 - consisting of CCTB received by the claimant. · $4,000 - other income (Federal respite and

GST/HST rebate) 2023 · $10,000 - consisting of imputed net self-employment and employment income. · $18,000 - consisting of CCTB received by the claimant. · $4,000 - other income (Federal respite and GST/HST rebate) · $20,880 - PWD payments. Child Support [99] As discussed, child support has been paid pursuant to Master Dick's May 12, 2022 interim order. Those payments were to commence on May 1, 2022. [100] The respondent argues that his child support obligations for the period between January 2018 and approximately February 2022 were satisfied by the claimant's unfettered access to the joint bank account during the nesting arrangement. Although the evidence is admittedly less-than-perfect, I find that his child support obligation was satisfied by that arrangement for that period of time. When considering the amount of income the respondent was earning, and the uncontroverted evidence that the entirety of his paycheques were deposited into the joint bank account and that the claimant had complete access to those funds to pay for the children's expenses, it is more likely than not that his child support obligations during that period were satisfied. [101] Shortly after the incident in February 2022, the respondent stopped depositing his paycheques into the joint bank account. At that time, the respondent did not make any voluntary payments in respect of child support until

Master Dick's May 12 order. He then made payments until September 2022 but stopped. As mentioned, the respondent says this is because he was no longer employed due to his injury, and therefore, felt he could not afford the payments that were ordered. It remains unexplained why he did not apply for Master Dick's order to be varied. At some point, the amount of child support the respondent was required to pay under Master Dick's May 12 order was paid directly to the claimant by the FMEP from the 50% proceeds of the sale of the Family Home that it holds as security. [102] Given that I have found that the respondent's 2022 Guidelines income is $105,309, he has been overpaying child support under Master Dick's interim, without prejudice order, which was based upon his 2021 income of $199,480. In my view, given the facts before me, the respondent's obligation to pay the claimant child support began on March 1, 2022, after he stopped depositing his paycheques into the joint account. From March 1, 2022, to December 31, 2022, the respondent's child support obligation was $1,592 per month. The difference between what he paid, which I understand to be $2,569 per month, and what I have found his obligation to be is to be credited to him. [103] For 2023, I have found the respondent's income to be $95,000. Therefore, he is to pay $1,455 per month in child support to the claimant commencing

January 1, 2023. This amount is to be paid on the first day of each month for as long as the children are eligible for support under the DA, or until further order of this Court or agreement of the parties. The parties are to exchange financial information, including notices of assessment, no later than May 31st of each year. The amount of child support payable is to be adjusted annually on July 1st based on the parties' previous year's income. I have only imputed income to the respondent for 2023 in respect of likely overtime income to be earned. Should he earn less or more in 2023, his child support obligation commencing on July 1, 2024, will be adjusted accordingly. Section 7 Expenses [104] The respondent agrees that B.V.'s hockey participation is a special expense and I order as such. [105] I agree with the claimant that educational expenses for the children, and educational expenses and other expenses to address L.V.'s education and development challenges are important given L.V.s needs. However, as discussed below, there are limits based on the reasonability of these expenses in comparison to the parties' incomes. [106] The claimant seeks an order that the respondent pay 75% of the children's special expenses, in which she includes L.V.'s current private school tuition and assistance. However, I do not accept that 75% is the starting point for apportionment. Given the

parties various sources of income, in my view it is appropriate that the respondent be responsible for 65% of the special expenses, including the cost of B.V.'s hockey participation. [107] The parties' contribution to L.V.'s educational and assistance expenses is not as simple. I have no doubt that LV has significant challenges related to his diagnosis on the autism spectrum. The claimant has decided not to enrol L.V. in public school; rather, she has enrolled him part-time in private programs. I have no reason to doubt that these programs are providing LV with a high-quality education and level of assistance; however, these private programs come at a significant expense. According to the claimant, although no receipts were provided, the total cost for the 2022/2023 school year is as follows: a) $25,000 per year for the one-on-one behaviour therapy that L.V. receives Monday to Thursday from 8:30 a.m. to 1:30 p.m. The claimant receives funding from various government and First Nations sources totaling $21,575 leaving a shortfall of $3,425. b) $5,860 per year for the cost of the two-hour behavioural intervention program L.V. attends on Fridays. As I understand it, none of this is funded by government sources. c) $2,880 of speech therapy and $2,400 of occupational therapy. [108] Currently, the claimant says that once government and First Nations funding sources are accounted for,

there is a shortfall of $1,277 per month for L.V.'s educational and assistance expenses. The claimant's mother is currently paying this shortfall. It is this amount that the claimant seeks a contribution of 75% from the respondent. Because the funding sources and the amounts obtained from the government and First Nations vary from year to year, the claimant is unable to confirm what these costs will be on an annual basis going forward. [109] The respondent does not take issue with the level of care and support that L.V. is receiving from these private programs. However, he says he just cannot afford to contribute the amount the claimant seeks, which at this time would be $958 per month (75% of $1,277). Further, he says that he was not consulted on the decision to put L.V. in private programs at this cost. The respondent submits that L.V. can receive an adequate education and support in the public system at no cost and that if he attended public school, other funds from the government would be available to L.V. for additional programming. [110] While I have no doubt that L.V. has significant needs, there is no admissible evidence before me that would permit me to conclude that he requires the private education and support that he is currently enrolled in or that he would be materially better off in the private system versus the public system. The comments made in correspondence

by various practitioners who are involved in his current education and support are not in the nature of expert reports and are not admissible for any opinions expressed therein. [111] I have no evidence to contradict the respondent's evidence that the public system would be adequate to meet L.V.'s needs. I also have no indication that the claimant's mother has any intention to stop paying for the shortfall for L.V.'s attendance at the private system. [112] Section 7 of the Guidelines requires that special and extraordinary expenses are to be considered in respect of the necessity and the reasonableness of the expense in relation to the means of the spouses. I have already commented on the evidentiary gap with respect to necessity. I agree with the respondent that paying nearly $1,000 per month toward the current shortfall is unreasonable with respect to his income and support obligations. While it is safe to say that most, if not all, parents would like to give their children the best education and support possible, it is often the case that the parties cannot afford to do so. [113] Nonetheless, I have no doubt that there would be extra costs incurred for L.V.s' support even if he was in the public system. For example, I do not have evidence that the costs of L.V.s' occupational or speech therapy would be covered. As I understand it, those therapies currently cost approximately

$348 per month (these are part of the costs currently covered by the claimant's mother). I find that the respondent's contribution to L.V.'s educational and support expenses is 65% of the cost of occupational and speech therapy. Given the difficulties the parties have in respect of sharing information, I fix the respondent's contribution to these s. 7 expenses as $175 per month. Payment is to be made on the first of the month at the same time that the respondent pays his Guideline child support amounts. [114] No other expenses will be considered special or extraordinary without further order of the court or agreement of the parties. Spousal Support [115] The claimant seeks spousal support on both compensatory and non-compensatory basis. The objectives of spousal support are found in s. 15.2(6) of the DA which provides: (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [116] Subsections 15.2(6)(a) and (b) are referred to as the compensatory entitlement to support, whereas ss. 15.2(6)(c) and (d) are commonly referred to as the non-compensatory or needs-based entitlement to support: Chutter v. Chutter, 2008 BCCA 507 at para.

47. Before the quantum of support is determined, it must be found that a spouse has an entitlement to support on either a compensatory or non-compensatory basis, or both. [117] I have no trouble concluding that the claimant has entitlement to spousal support on both a compensatory and non-compensatory basis. There is no doubt that the claimant made sacrifices in assuming the primary childcare and household responsibilities during the marriage. This has clearly affected her earning potential and conversely it permitted the respondent to earn a substantial income and to do so while being away from the home for two out of every three weeks. This would be the case if the children did not have special needs, but in my view, the compensatory claim for a spouse who remained at home with a child who has needs in the nature of L.V.s' is that much stronger. [118] I also have no trouble in concluding that there is a needs-based component to the claimant's entitlement. As discussed in the case law, this type of support arises out of the relationship itself and is based on the social obligation of a spouse to look after a former partner who is in difficulty, rather than letting that burden fall upon the public: Chutter at para. 54, citing Bracklow at para.

23. Determination of entitlement to needs-based support is highly dependent upon the particular facts of the case: L.A.I. v. K.B.Z., 2014 BCSC 652 at paras. 133-134. [119] In this case, the claimant has a very limited income earning capacity. As discussed, she currently receives what appears to be a disability payment in relation to her mental health. It is uncontroverted that the claimant suffered from significant mental health challenges during the course of the marriage and it is likely that these have impacted her ability to work currently. On the evidence before me, the PWD payment that the claimant receives is properly considered to be social assistance, and therefore, it is to be clawed back from the calculation of the claimant's income for spousal support purposes. This is consistent with the underlying rationale of needs-based support being partly rooted in the social obligation of a spouse to look after a former partner rather than letting that burden fall upon the public. [120] It does not appear that the respondent takes issue with the claimant's entitlement to support per se. Rather, the respondent opposes an award for spousal support on two grounds: (1) the claimant's waiver of entitlement to spousal support in the Alleged Separation Agreement; and (2) an alleged oral agreement that his spousal support obligations would terminate four years after they commenced in

January 2018. As I have already set aside the Alleged Separation Agreement, the respondent's first basis cannot succeed. For the reasons that follow, I also do not accept the second basis advanced by the respondent. [121] The respondent's position is that he and the claimant reached an oral agreement at the time of separation in 2018 that the claimant was entitled to spousal support in the amount of approximately $2,000 per month based on his then current income and that such spousal support would be payable for four years after which time her entitlement would cease. It is difficult to reconcile this position with the Alleged Separation Agreement advanced by the respondent which provides that no spousal support was to be payable. Also, if an oral agreement had in fact been reached in respect of spousal support, it remains unexplained why this oral agreement was not raised in response to the claimant's pretrial applications for spousal support (which were ultimately adjourned) or by the respondent during discovery when asked questions about spousal support. In the circumstances, I do not find there to be sufficient evidence to conclude that an enforceable oral agreement was formed at the time of separation such that the claimant's entitlement to support would terminate after four years. [122] The Spousal Support Advisory Guidelines (SSAG) suggests that in 2018 at the time the

parties separated, the respondent's monthly spousal support obligation ranged from $2,834 at the low-end to $3,593 at the high end. Upon consideration of the length of the marriage and the ages of the children at the time of separation, the SSAG suggests that the respondent's spousal support obligation would be indefinite. Although the minimum duration may be appropriately determined as four years, that is only the starting point. Given the length of the relationship, and the circumstances of the claimant at the time including her mental health, her lack of employment, her role as the primary caregiver, and L.V.'s special needs, it is appropriate that the claimant's spousal support entitlement be ordered for an indefinite or unspecified period of time. [123] As was the case with child support, the evidence with respect to whether the respondent has met his spousal support obligation during the period between January 2018 and February 2022 is less than satisfactory. I have, nonetheless, taken the same approach. I find that the respondent's obligation for spousal support during that period was satisfied by the claimant's unfettered access to the joint bank account where the respondent's employment income was deposited. According to the incomes as I have found them to be for the period between 2018 and 2022, the respondent's spousal support obligation ranged from $2,376 at the low

end to $4,566 per month at the high end. Given that the respondent's entire paycheck was deposited into the joint account and that the claimant had unfettered access to that account to pay for her and the children's expenses, I find that his spousal support obligation during that period has been satisfied. [124] However, beginning in or around February 2022, the respondent stopped depositing his paycheques into the joint account and he has not paid any spousal support amounts directly to the claimant. There is no order in place for spousal support. Consequently, I will make an order in respect of spousal support to be paid from the respondent to the claimant for the period beginning March 1, 2022. In coming to the determination of quantum, I have considered that the claimant's PWD payments are not included in income for the purposes of spousal support, but that CCTB payments received by her are to be included. [125] Consequently, for 2022, the respondent's spousal support obligation ranges from $421 at the low-end two $964 per month at the high-end. For 2023 the range is similar because even though the claimant started receiving her PWD benefits, they are not included in her income for the purpose of spousal support. The respondent's obligation at the low-end in 2023 is $498 per month and at the high-end $976 per month. [126] In determining where in the range is the appropriate

amount of spousal support, I am to consider "the conditions, means, needs and other circumstances of each spouse". Our Court of Appeal approved of this approach in Lozinski v. Lozinski, 2017 BCCA 280 at paras. 44 - 45: [44] As noted, the same phrase is found in s. 15.2(4) of the Divorce Act regarding spousal support. The Supreme Court of Canada has interpreted "means" in the spousal support context expansively to include "all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits": Strang v. Strang, 1992 CanLII 55 (SCC), [1992] 2 S.C.R. 112 at 119; Leskun v. Leskun, 2006 SCC 25 at para.

29. In Kerr, the court relied on this interpretation in considering s. 9(c) of the Guidelines: [33] The Supreme Court of Canada has considered the scope of the terms "condition" and "means" in the context of spousal support cases. It has held that the "condition" of a litigant includes such factors as their age, health, needs, obligations, dependants and their station in life. A litigant's "means" encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits. [Footnotes omitted.] [45] The broad and flexible interpretation of "conditions, means, needs and other circumstances" is consistent with the jurisprudence in this province. For example, in Ortynski v. Ortynski, 2014 BCSC 73 at para. 45, the Court held that s. 9(c) captured wealthy paternal grandparents' contributions, and in Reber v. Reber, 2002 BCSC 884 at para. 76, child tax benefits and a daycare subsidy were considered on the same basis. [127] Thus, I have considered that the claimant currently lives rent free in a suite provided to her and the children and paid for by her mother. The claimant is only responsible for paying for utilities which she states to be $115 per month in her sworn F8 financial statement. The only evidence I have of the cost of this housing is in the claimant's F8 statement in which she states that her rent would

be $2,600 per month. I accept that her mother has offered to provide this almost cost-free housing to the claimant for as long as L.V. needs to be in school in the Nanaimo. I do not find that there is any agreement between the claimant and her mother that the amounts that her mother has been paying or subsidizing need to be paid back. No documents were provided in support of any tracking of such a loan and no details were provided about the terms of repayment etc . I have also considered that the respondent has stated that his current rent is $1,800 per month. [128] Spousal support at the midrange of the SSAG results in 60% of the parties' net disposable income being in the hands of the claimant and 40% being in the hands of the respondent. At the low range, the ratio is almost the same: 59% to 41%. If one was to factor in the almost cost-free housing that the claimant receives, the gap between the effective net disposable income would be larger. This leads me to conclude that consideration of the parties means results in a quantum of spousal support closer to the lower and of the range. [129] However, in addition to the pecuniary circumstances of the parties, I am to consider all the other circumstances that would be relevant to spousal support. A relevant circumstance in this case is that the claimant is the primary caregiver to the parties' children, including L.V. who has

significant special needs. In my view it is appropriate to consider the inevitable tangible and intangible impacts that her role as primary caregiver to a special needs' child will have on her lifestyle and expenses. In my view, the award of spousal support should serve to ameliorate these effects to a certain degree. It must be remembered that the respondent is not impacted in the same manner given that he only has care of the children every second weekend. [130] Having considered these factors, I find that an award of spousal support between the low ($498) and midrange ($735) is appropriate. Therefore, the respondent is to pay the claimant spousal support in the amount of $625 per month commencing March 1, 2022, for an indefinite period of time. However, consistent with the position put forward by the claimant, either party may, on or after June 1, 2026, apply for review of the entitlement and quantum of support and to seek an end date to that support.

DIVISION OF PROPERTY AND DEBT [131] As I have determined that the Alleged Separation Agreement is to be set-aside, the family's property remains to be divided. The claimant is only seeking a division of the proceeds of the Family Home and the respondent's pension and RRSP. Given the lack of evidence of the family property and debt at the time of separation and at the time of trial, and given the co-mingling of their assets after separation arising from the nesting arrangement and the financial arrangement regarding the bank accounts, I find that it is appropriate that other than the Family Home, the pension, and the RRSP, all other assets solely in the names of the respondent or the claimant remain their assets free of any claims from the other. Furthermore, each party will be solely responsible for any and all debts registered in their names. [132] Pursuant to s. 81 of the FLA, each spouse presumptively has a right to 1/2 interest in all family property. Neither party alleges that family property should be divided unequally pursuant to s. 95 and there is nothing on the record that would lead me to conclude that it would be appropriate to do so. Consequently, I order that the family property over which the claimant seeks the division should be divided equally. [133] As discussed, the Family Home was sold in March 2023. 50% of the net sale proceeds were delivered to the FMEP as

security for the respondent's future child support payments and 50% of the net sale proceeds were delivered to the claimant's lawyer's office to be held in trust the credit of the action. As I understand it, 50% of the net sale proceeds was approximately $73,791. The claimant is granted an order that the funds held in trust by her lawyer relating to the net sale proceeds of the Family Home may be distributed to her. [134] The respondent's 50% share is held by the FMEP and has been drawn down for the respondent's child support obligations arising from the May 12, 2022, order of Master Dick. I cannot grant the respondent's request that the funds held by FMEP be returned to him. The FMEP was not advised or put on notice that the respondent would seek such relief, and in my view, it would need to be given the opportunity to provide its position to such relief given that the funds were held as security for future child support obligations. It will be up to the respondent to seek distribution of the funds currently held by the FMEP, on notice to it, should he choose to do so. [135] The claimant seeks division of the respondent's pension and RRSP assets. While it appears that the respondent has some interest in a pension and some amount of money in what appears to be a retirement account, there is absolutely no evidence of the value of these assets at the date of separation, the date

of trial, or any time in between. The only evidence before me is contained in the respondent's two sworn F8 financial statements. In those F8 statements, the respondent lists the value of what he calls a "RRIF" as being $47,798 as of June 2022 and as being $2,361 as of July 2023. I assume that the reference to a RRIF is intended to be a reference to an RRSP considering the respondent's age. However, regardless of whether it is a RRSP or a RRIF, it is likely family property, at least in part. I have no way of determining whether depletion of this property between 2022 and 2023 is in respect of the maintenance of other family property. I also have no way of determining whether the value as of June 2022 consists of contributions made post separation, although I do note that the respondent's income tax returns tendered in evidence indicate that the respondent made contributions to an RRSP, and some withdrawals, between 2018 and 2022. [136] There is a similar lack of evidence in respect of the respondent's pension. The only evidence before me is of an item listed in the respondent's two F8 statements as "CLAC Pension". The value identified in June 2022 was $24,273 and in July 2023 was $28,041. I have no evidence of the value of this property at the date of cohabitation, date of separation, the date of trial, or at any other time in between. The only evidence I have of the nature of

this pension is that the respondent's income tax returns indicate a deduction for contributions made to a registered pension plan. However, I have no evidence as to whether this pension is a defined benefit plan or defined contribution plan or a hybrid plan. I do not have evidence that would permit me to order a plan administered benefit split, a member administered benefit split or an account split, nor do I know which legislative provisions would apply to the pension in question. [137] While the evidence is deficient with respect to this family property, I have no trouble finding that the claimant is entitled to half of the respondent's pension that was accrued during the relationship which I have defined as being the period between September 1, 2009, and January 10, 2018. I also have no trouble finding that the claimant is entitled to an equal share of the respondent's RRSP or RRIF, or other retirement savings, that is properly classified as family property. [138] Given the evidentiary deficiency, it is appropriate to direct that the following matters be referred to the Registrar pursuant to R. 18-1 of the Supreme Court Family Rules, B.C. Reg. 169/2009: a) the appropriate values of the respondent's pension and other retirement savings at the relevant dates, including date of cohabitation, date of separation, and date of trial; b) determination of what of the pension and

retirement savings valued in (a) above is family property that is to be divided equally; and c) the method of division. [139] The results of the Registrar's inquiry will be certified pursuant to R. 18-1(2). The Registrar will resolve any disagreements as to appropriate entitlement and may award costs with respect to the inquiry. [140] The claimant, as the party asserting the claim to division of this property, shall be responsible for taking out an appointment with the Registrar. Should the claimant seek to pursue this reference, the appointment must be taken out and served on the respondent within 60 days of these Reasons for Judgment. [141] If the appointment is taken out and served, the parties shall arrange a pre-hearing conference in front of the Registrar before the inquiry takes place, and at such pre-hearing conference, the Registrar may make orders in respect of the production of documents and any other matter that may assist in the just and efficient determination of the issues. [142] Should the claimant not proceed with the inquiry, her claim for division of the respondent's retirement savings will be dismissed and those assets will be solely the respondent's property free of any further claim by the claimant.

COSTS AND OTHER ORDERS [143] Both parties agree that the conduct orders listed in the claimant's draft order at paras. 6 and 7 should be made, and consequently, I issue those orders. [144] In my view, success has been divided. While the claimant was successful in having the Alleged Separation Agreement set aside, the respondent's position with respect to the date of separation was accepted by the Court. Moreover, neither party was entirely successful with respect to imputation of income or on their positions on special expenses and spousal support. Consequently, it is appropriate that each party bear their own costs. "Majawa J."