Olk v. Olk

2023 BCSC 591 Olk v. Olk

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Olk v. Olk, 2023 BCSC 591 Date: 20230414 Docket: E39017 Registry: New Westminster Between: Balbir Singh Olk Claimant And Rajwinder Kaur also known as Rajwinder Kaur Olk Respondent And Charan Singh Olk, Manjit Kaur Olk, Gurvinder Kaur Olk, Jaspal Singh Olk Respondents by Counterclaim Before: The Honourable Justice Winteringham Reasons for Judgment Counsel for the Claimant: A. Parhar Counsel for the Respondent: P. Mann V. Aggarwal, Articled Student Counsel for Respondents by Counterclaim: R. Gill Place and Date of Trial: New Westminster, B.C. September 12-16, 20-23, 2022 October 24-28, 2022 November 18, 2022 December 14, 2022 Place and Date of Judgment: New Westminster, B.C. April 14, 2023 Table of Contents I. OVERVIEW... 3 II. LITIGATION HISTORY.. 5 III. ISSUES TO BE RESOLVED.. 7 IV. CREDIBILITY.. 8 A. Balbir 10 B. Rajvinder 13 C. The Respondents by Counterclaim.. 13 V. EVIDENCE.. 14 A. Background. 14 B. Parties' Employment History. 16 C. Substance Use Disorder 19 D. Kingsley Property. 23 E. No. 5 Road Property. 24 1. Purchase of No. 5 Road Property. 24 2. Financial Contribution to No. 5 Road Property. 25 F. Separation.. 35 G. Balbir Removed from Title. 37 H. Other Matters Raised in the Evidence. 41 VI. INCOME OF THE CLAIMANT/RESPONDENT.. 42 A. Legal Principles Regarding Income Determination.. 43 B. Analysis. 44 C. Section 7

Special/Extraordinary Expenses. 48 VII. NO. 5 ROAD PROPERTY.. 50 A. Nature of Balbir's Interest 52 B. Fraudulent Conveyance. 55 C. Date of Valuation.. 59 VIII. REAPPORTIONMENT OF FAMILY ASSETS.. 61 IX. UNJUST ENRICHMENT.. 63 X. CONCLUSION AND ORDERS.. 65 I. OVERVIEW [1] In 2004, Rajvinder Kaur Sanghera[1] married Balbir Singh Olk in India. The union was arranged by their families. The couple lived in India for about one month, then Balbir returned to Canada, without his spouse, where he had resided with his family since 2000. Rajvinder joined him in 2006 and they resumed living together with his family at 7091 No. 5 Road, Richmond (the "No. 5 Road Property"). [2] Counsel referred to the parties by their first names because they share a common last name. I will do the same. I mean no disrespect in doing so. [3] Rajvinder and Balbir had one child in 2009, H.O. While they were together, Rajvinder lived with Balbir and the Olk family at the No. 5 Road Property. Balbir, his mother, step-father, and two siblings were all registered on title as joint tenants. Rajvinder testified that she was required by her mother in law to make regular contributions to household expenses, including towards mortgage payments and property taxes. [4] The couple separated on November 1, 2010, following a disturbing incident connected to Balbir's substance use disorder. [5] About three months after their

separation, in February 2011, Balbir was removed from title to the No. 5 Road Property. Much of the litigation revolved around this transfer of title and Balbir's interest, if any, in the No. 5 Road Property. [6] Balbir commenced this family law proceeding in 2011 after Rajvinder took H.O. to India. On September 20, 2011, Balbir obtained an order compelling, among other terms, H.O.'s return to Canada. Pursuant to the order, Balbir was required to pay the associated expense of H.O.'s return to Canada. The court also imputed an annual income to Balbir of $39,700 and ordered monthly child support of $367 commencing December 1, 2011. [7] Rajvinder and H.O. have long since returned to Canada. Yet, Balbir has never paid any court-ordered child support or the expenses for H.O.'s return to Canada. [8] Rajvinder filed a response to Balbir's claim. In addition, she issued a counterclaim naming Balbir, his mother, step-father and siblings. Charan Singh Olk, since deceased, is Balbir's step-father. Manjit Kaur Olk is Balbir's mother. Jaspal Singh Olk is Balbir's brother and Gurvinder Kaur Olk is Balbir's sister (collectively the "Olks"). [9] In the counterclaim, Rajvinder alleged the removal of Balbir from title of the No. 5 Road Property constituted a fraudulent conveyance. [10] Balbir and the respondents by counterclaim deny the allegations against them. They submit that Rajvinder is

being dishonest when she testified that she was required to contribute monthly to the cost of the No. 5 Road Property. The position taken by the claimant and the respondents by counterclaim typically aligned. [11] This is principally a dispute about financial matters. The Court is asked to resolve the following issues: a) whether the transfer removing the claimant from title constituted a fraudulent conveyance pursuant to the Fraudulent Conveyance Act, R.S.B.C. 1996, c. 163 [FCA]; b) determination and division of family property; c) determination of rental income from the No. 5 Road Property; and, d) whether the court should make an order for security of child support. [12] Other issues include the determination and imputation of the claimant's income for child support purposes; child support arrears; and, determination of proportionate sharing of s. 7 expenses. The respondent also seeks contribution towards the cost of obtaining an appraisal for the No. 5 Road Property. [13] Given when the litigation was started, the dispute is governed by the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA]. [14] Many of the events themselves are not in dispute. Rather, the parties disagree about how and why the events occurred. I have conducted a credibility assessment of the parties at the outset. Though before doing so, I will set out the history of this litigation. II. LITIGATION

HISTORY [15] On August 15, 2011, Balbir filed the Notice of Family Claim (the "NOFC"). The NOFC was amended on March 26, 2012. An amended NOFC was filed on July 8, 2016. The last amended NOFC was struck by order of the court on August 15, 2016. [16] Rajvinder filed a Response to Family Claim on September 13, 2011 and a Counterclaim on September 14, 2011. [17] Balbir and the Olks filed a Response to Counterclaim on July 8, 2016. [18] Manjit filed a claim against Rajvinder in BC Provincial Court on December 14, 2016. This claim was dismissed. [19] The following orders were made following the NOFC: a) On September 20, 2011, Master Caldwell, as he then was, made a number of orders including: i. restraining the disposition of property; ii. production of documents; iii. return of H.O. to BC and Balbir to pay for the cost of H.O.'s return; iv. Rajvinder to have interim sole custody and primary residence of H.O. and joint guardianship (based on the Master Joyce model); v. non-removal by either parent of H.O. from BC; vi. Balbir's income imputed at $39,700 and requirement to pay child support of $367 per month; vii. Balbir to attend for hair follicle testing; and viii. Balbir to have supervised access. b) On October 26, 2015, Justice Brown ordered that Rajvinder be permitted to apply for a Canadian passport for H.O. c) On November 9, 2015, Justice Crawford amended the protection order

allowing Rajvinder to remove H.O. from the Lower Mainland without further written consent from Balbir. d) On November 9, 2015, Justice Crawford granted orders including: divorce; permanent sole custody and guardianship of H.O. to Rajvinder; authorizing Rajvinder to travel internationally with H.O. on 5 days written notice to Balbir. e) On April 7, 2016, Justice Brown made orders relating to pre-trial discovery. f) On August 15, 2016, Justice Holmes (as she then was) struck Balbir's amended Notice of Claim filed on July 8, 2016. g) On November 3, 2017, Justice Ball ordered that Balbir pay arrears under the Divorce Act and Family Law Act, that Balbir be allowed supervised parenting time, and confirmed the child support as previously ordered. h) On November 8, 2019, Justice Shergill made a number of orders, including: i. the removal of the certificate of pending litigation on the No. 5 Road Property on the payment into court of security in the amount of $235,000; ii. setting the proceeding for a 7-day trial on June 1, 2020. i) On February 24, 2022, Justice Baker made a number of judicial case management orders including: production of lists of documents, document disclosure, and the preparation of an appraisal for the No. 5 Road Property. j) On August 15, 2022, Justice Matthews made a number of trial management orders including the delivery of amended pleadings and exchange of

updated Lists of Documents. [20] The claimant sought to vary Master Caldwell's order, but those applications were dismissed. III. ISSUES TO BE RESOLVED [21] I will briefly set out the issues identified by the parties. [22] All of the parties want clarification regarding Balbir's interest in the No. 5 Road Property. Balbir and the respondents by counterclaim argue Balbir was a trustee for his mother Manjit. In the alternative, if I find that Balbir did have beneficial title to the No. 5 Road Property, they assert that Balbir's interest should be valued at as of September 20, 2011. Rajvinder submits that the February 2011 conveyance was fraudulent and asks for an order for unequal division of the family asset. [23] Rajvinder and Balbir also seek determination of Balbir's child support obligations. Incidentally, Rajvinder asks the Court to impute Balbir a higher income than that reported in his income tax returns, including imputing rental income from the No. 5 Road Property to him. [24] The respondents by counterclaim also raise a number of issues, including: determining the nature of Balbir siblings' interests in the No. 5 Road Property; and the alleged unjust enrichment of Rajvinder, Balbir, Jaspal, and Gurvinder at Manjit's expense. The nature of Jaspal's and Gurvinder's interest in the No. 5 Road Property is beyond the dispute at hand and is likely affected by the outcome of

the case. Thus, I decline to make these determinations at this time. I also reject the unjust enrichment claims and will say more on this point below. [25] As can be seen, the issues overlap. In my view, the issues can be properly framed as follows: a) Income determination of Balbir and Rajvinder and assessment of: i. child support; and ii. s. 7 expenses. b) Did the transfer of title on February 9, 2011 for the No. 5 Road Property constitute a fraudulent conveyance? i. If the transfer constituted a fraudulent conveyance, then (1) What is Balbir's interest in the No. 5 Road Property? (2) Did Balbir hold the No. 5 Road Property in trust for Manjit? c) If it is determined that Balbir has a beneficial interest, what is the value of that interest? d) Should Balbir's interest be reapportioned? e) Should the court order security? IV. CREDIBILITY [26] The claimant and respondents by counterclaim challenge the credibility and reliability of Rajvinder. In turn, she challenges the credibility and reliability of Balbir, Gurvinder, Jaspal and Manjit. She submitted they were untruthful when they denied her financial contributions over the years. She also asks the court to draw an adverse inference from their failure to fully disclose banking records. She asserts that her claim of contribution could have been answered by the missing documents. Rajvinder submitted that the Court should be

cautious when assessing their evidence. She attacked the reliability of documents that were disclosed because they were incomplete and did not support, on their face, the assertions advanced. [27] In light of the parties' submissions regarding credibility, I have kept in mind the well-known principles governing the court's credibility and reliability assessment. I summarized these principles in Schwab Estate v. Warriner, 2023 BCSC 220 at paras. 68-70, and I adopt that discussion in this case: [68] When assessing the truthfulness of the testimony of any interested witness, I am to be guided by the words articulated in Faryna v. Chorny, [1952] 2 D.L.R. 354 at 357, 1951 CanLII 252 (C.A): In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [69] Justice Dillon provides a helpful summary of the factors to be considered when assessing credibility in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff'd 2012 BCCA 296: [186] Credibility involves an assessment of the trustworthiness of a witness'[s] testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560

(S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of [the witness's] memory, the ability to resist the influence of interest to modify [their] recollection, whether the witness'[s] evidence harmonizes with independent evidence that has been accepted, whether the witness changes [their] testimony during direct and cross-examination, whether the witness'[s] testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Faryna at para. 356). [70] The burden of proof in a civil dispute such as this is a balance of probabilities. Where there is conflicting testimony, "the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred": F.H. v. McDougall, 2008 SCC 53 at para.

49. A. Balbir [28] I have carefully reviewed Balbir's testimony. I have grave difficulty accepting much of what he has said. There are a number of reasons for this. [29] First, despite an express demand, he failed to provide discovery of key documents relevant to the issues in the litigation he commenced. For example, he was asked to produce documents relating to a settlement he received in 2010 or 2011 for injuries suffered in a motor vehicle accident. Though reference was made to these documents during the trial, they were not produced. Failure to produce these documents made it difficult to assess inconsistencies in Balbir's testimony at trial and his prior out-of-court statements about whether he received settlement funds. [30] When Balbir was asked whether he received any money from ICBC for the motor vehicle accident, he stated, "I don't remember because during those times I was heavily involved with drugs and my memory is not there." When Balbir was cross-examined about the amount he received from the motor vehicle accident he stated: I got very little amount. And having collected the cheque to do my drugs. And I did lots of drugs . And I don't know somebody took that cheque out of my pocket and someone cheated. I was trying to find out - I was surprised - where did my cheque go? I think I had reported it to the police also. [31] This evidence is inconsistent with

Balbir's direct examination that he did not remember whether he received any money for the car accident and inconsistent with what he had stated on prior occasions. [32] Second, Balbir was often gratuitously critical of Rajvinder. These criticisms were typically not responsive to the question before him. I provide but one example. During his direct examination, he was asked whether his drug use impacted his relationship with Rajvinder. He did not really answer the question; rather, he used it as an opportunity to demean Rajvinder. He stated: "she started fighting with me about sponsoring her parents [ ] that she was swearing at me and my family. She pushed me also." [33] His effort to attack Rajvinder, rather than directly answering the question posed, was troubling because he appeared to be avoiding the question. He also left important issues unanswered. [34] Along the same vein, Balbir was cross-examined about some of his communications with Rajvinder and H.O.'s caregivers in 2011. He was cross-examined about a criminal charge alleging he had uttered a threat to Rajvinder that he would kidnap her. Though the evidence about the criminal charge was unclear, Balbir admitted that he was arrested at a residence (though he testified that he did not know that it was Rajvinder's residence). I do not know what occurred on this occasion; however, I do find that as a result of

communications uttered by Balbir towards Rajvinder, he was arrested and taken into custody. He was released on an undertaking with conditions, including that he not have any contact or communication with Rajvinder except through a lawyer or family court counselor. [35] Also, during cross-examination, it was suggested that Balbir threatened one of H.O.'s caregivers. Balbir denied that he threatened or intimidated the caregiver, but did agree he contacted her to verify the status of her license to provide childcare. This conduct was surprising considering Balbir had provided no support for H.O. since the time of separation. Rajvinder needed daycare for H.O. so she could continue to support him while Balbir offered none. [36] Most importantly, however, Balbir's testimony at trial often changed during cross-examination. For example, during his examination in chief, Balbir testified that his name was put onto title of a residential property because his parents had believed it would help his immigration application. During cross-examination, he initially testified that he did not know why his name was put on title to the property, just that his parents did it. When he was reminded of his earlier testimony about the immigration application, he agreed that was the reason. The point is that his evidence in cross-examination was different than what he had said earlier. His attempt to

reconcile the two versions was not persuasive. [37] His testimony at trial was also inconsistent from some of his prior statements. For example, during his direct examination, Balbir described constant and pervasive drug use, of many types of substances from 2004 through the time that he began taking methadone in 2018, albeit with some brief periods of partial abstinence when he was at residential treatment. This testimony was Balbir's attempt to paint a picture of someone incapable of earning income. However, in one of his earlier affidavits filed in support of an interlocutory application for parenting time, he swore that he had not consumed alcohol and drugs for a period of eight or nine months. [38] At trial, he attempted to explain this inconsistency by saying he had been abstinent when he swore the affidavit. [39] In my view, his earlier affidavit and trial testimony are irreconcilable on this point. Balbir tended to change his position on these topics when it benefited him. At trial, he tried to prove that he was incapable of earning income to fulfill any child support obligations, hence his testimony about incapacity to work. At the earlier application, he wanted to change his parenting time, hence his evidence minimizing his drug use. [40] Another flaw in his testimony related to his response to questions about the state of title on certain real estate documents. In

response to these questions Balbir sometimes stated that his parents were the ones with the answers and that he had none. On the other hand, he appeared to be following a script prepared by someone else. That is, his name was on title to help with his immigration application and/or credit for banking institutions. His answers in this area of the evidence often shifted between his direct and cross examination. [41] These were inconsistencies on material points. [42] In sum, I had significant issues with Balbir's credibility. B. Rajvinder [43] I turn to an assessment of Rajvinder's credibility. I say at the outset that I found her to be a straightforward and candid witness. She was cross-examined at length about suggested inconsistencies. As I examined her testimony in court and during her examination for discovery, I do not find that she was inconsistent as suggested. Often, cross-examining counsel read out long passages from Rajvinder's examination for discovery transcript. She simply adopted much of what she said during the discovery. As I examine the evidence, I did not find her testimony at trial to be different from her prior statements. [44] One area where counsel suggested a material inconsistency related to Rajvinder's knowledge of Balbir's drug use. During the trial she testified that she did not know about Balbir's drug use when they first married and only learned of

it later in the marriage. She was cross-examined on an affidavit she filed in support of one of the interim applications where she described Balbir's drug use and her knowledge of it. I do not find that her evidence at trial was inconsistent with what she said in her affidavit. Rather, at trial, she made clear that she did not know the extent of his drug use until well into the marriage. She attributed this lack of knowledge to her upbringing, age, and the fact that, in her view, Balbir's drug use was not as acute as he described at least at the outset. [45] Overall, I found Rajvinder's evidence to be thoughtful. She carefully listened to the questions and answered after she had a chance to consider. Indeed, as will be seen, she revealed no ill-will against the family who had once brought her into their home and then left her and her child to fend for themselves. C. The Respondents by Counterclaim [46] As will be seen, as I describe the various events at issue, I have found the reliability and credibility of Manjit, Jaspal and Gurvinder to be wanting. [47] With respect to Manjit in particular, and as set out below, her failure to produce documents has caused the court to draw an adverse inference against her oral testimony describing the material events at issue, including the two primary issues before me (1) whether she received contributions from Rajvinder; and (2) the

transfer of Balbir's interest in the No. 5 Road Property. I have inferred that had the documents sought been produced, the documents would have supported Rajvinder's evidence. [48] With respect to Jaspal and Gurvinder, I have placed little weight on their testimony. In large part, their evidence on Rajvinder's contributions to the No. 5 Road Property and Balbir's transfer seemed largely contrived on these points. Their evidence was strikingly similar on points where I would not expect it to be. For example, Gurvinder described some transactions initially as if she was present and observing the interactions first hand. Only during cross-examination was it revealed that some of the details were learned only after speaking with others. I will say more about this concern about their credibility when I review the events at issue. [49] I turn then to the evidence, including the background and aspects of the evidence which are not seriously in dispute. As I review the evidence, I have made findings based on the credibility assessment conducted above. V. EVIDENCE A. Background [50] Balbir was born on August 15, 1982, in India. He moved to Canada in November 2000 with his mother and siblings. Balbir's father had died and his mother remarried Charan Singh Olk in 1996. [51] Charan, Balbir's step-father, had resided in Canada for many years. He had been employed at a sawmill and was

receiving pension income when he married Manjit. Charan financially sponsored Manjit and her children to come to Canada and he financially supported them once they arrived. [52] Charan and Manjit purchased a property located at 9406 Kingsley Crescent, Richmond, BC on March 24, 2001 (the "Kingsley Property"). Charan, Manjit, Balbir, and Jaspal were registered on title of the Kingsley Property. Balbir and Jaspar were registered five percent owners. The title search lists the employment status for Balbir and Jaspal as millworkers, for Charan as retired, and for Manjit as housewife. [53] On July 30, 2003, a mortgage for $100,000 was obtained from Scotiabank on the Kingsley Property. The Kingsley Property was sold in April 2004. Jaspal and Manjit agreed during cross-examination that the down payment for the No. 5 Road Property was through bank financing. [54] In December 2003, Charan and Manjit purchased the No. 5 Road Property. [55] Charan, Manjit, Balbir, Jaspal, and Gurvinder were jointly liable for the mortgage on the No. 5 Road Property (the "HSBC Mortgage"). The Form B was signed on January 27, 2004 and had a principal amount of $393,000. [56] Rajvinder was born on September 20, 1986 in India. She was 18 years old and living in a small village in India when she was introduced to Balbir as her future husband. She testified that she had about a five to ten minute meeting with

him before their wedding. [57] After the wedding, she lived with Balbir for about two months in his family's village in India. During this time, an incident occurred with Balbir where she suspected he was unwell. She made some inquiries of Manjit and was informed that he had been prescribed extra strength Tylenols and they made him dizzy. [58] I pause to address the suggestion that Rajvinder knew about Balbir's problematic substance use from the early days of their marriage. I reject this suggestion. [59] Based on the totality of the evidence I have accepted, including the fact that Balbir was steadily employed for much of their marriage, I do not accept that Rajvinder knew anything about drug issues plaguing Balbir's ability to earn income or impact his life generally before their wedding. Balbir testified that he was "falling down" inebriated during Jaspal's wedding, a few days before his own wedding. He testified that Rajvinder saw this and she and "her whole family" knew about his drug use. I prefer Rajvinder's testimony on this point. She testified that she was 18 years old when she first met Balbir, was from a small village and was not familiar with substance use or its implications. Though I accept that Balbir may have been problematically using substances in 2004, he was able to maintain employment and earn income. [60] In any event, in my view, Rajvinder's knowledge

about Balbir's drug use is irrelevant to the issues the Court needs to resolve. [61] Rajvinder testified about a conversation she had with Balbir, while in India, about the financial responsibility he had to Manjit. She testified that Balbir told her he had purchased a house jointly with his parents and that he and Jaspal were required to pay about $1,000 per month for their living expenses and towards their residential properties. [62] Balbir denied this conversation ever occurred. Balbir's position is that he was never required to pay his mother for living expenses, mortgage payments, property taxes or otherwise. He testified that he and Rajvinder lived at the No. 5 Road Property for free, never having to contribute any money to its upkeep even though he and Rajvinder were both working and occupied a portion of the house from 2006 through 2010. B. Parties' Employment History [63] Rajvinder immigrated to Canada on September 29, 2006. She started living at the No. 5 Road Property once she arrived in Canada. Charan, Manjit, Balbir, Jaspal, and Joti (Jaspal's spouse) also lived at the No. 5 Road Property. By the time Rajvinder arrived in Canada, Gurvinder had left the No. 5 Road Property because she had since married. [64] Within two weeks of arriving in Canada, Gurvinder helped Rajvinder find employment and she began working at GS Teja Ltd., a food packing factory. Very soon

thereafter, she took a second job and started working at Burger King. [65] Rajvinder was cross-examined extensively about her employment from the time she arrived in Canada. She described working at various jobs and typically held two or three jobs at the same time. When she first arrived in Canada, she was unable to speak or understand the English language. She has since attended classes to learn the language. She has also enrolled in adult learning courses to complete her Grade 12 education. She was cross-examined about childcare arrangements because of her heavy work schedule. She testified that she did her utmost to fulfill her parenting obligations as best as she could in light of her demanding work schedule. Because Balbir had not provided any support for H.O., a fact admitted by Balbir, Rajvinder testified that she was required to work as much as she did so she could support their child. [66] Rajvinder's earnings were reported to the CRA on her income tax documents as follows: Year Total Income (Line 150) 2007 $26,167 2008 $22,984 2009 $13,301 (maternity leave) 2010 $68,443 2011 $70,457 2012 $70,784 2013 $69,324 2014 $59,053 2015 $58,809 2016 $31,225 2017 $22,831 2018 $15,092 2019 $30,236 (net) 2020 $34,308 (net) 2021 $45,056 (net) [67] Rajvinder believed that Balbir was employed as an electrician during the time they were together. Balbir testified that he was an

electrician technician. Regardless of his occupation or job title, the following documents were tendered setting out Balbir's earnings from 2004-2021: Year Total Income (Line 150) 2004 $16,355 2005 $31,013 2006 $29,140 2007 $40,038 2008 $40,801 2009 $52,420 2010 $21,848 2011 $8,560 2012 $19,224 2013 $13,410 2014 CRA found no assessment information. 2015 $11,359 2016 $7,965 2017 No assessment information provided. 2018 $9,951 2019 $15,934 2020 $13,606 2021 $12,133 [68] Balbir testified that any money he did make from his employment, he spent on his cars, car loans, gas, and illicit substances. He also spent some money to support Rajvinder and H.O. during the marriage. The gist of his testimony was that he did not have any money left over to pay Manjit in accordance with the arrangement described by Rajvinder. [69] Balbir also submitted that the Court should impute a lower income for 2007-2009 because he had inflated his earning for income tax purposes. On this point, Balbir stated: I was making more money and putting in more hours and than the money I would get - I wouldn't cash it and return some of the money to the boss - because I had to sponsor her parents - in order to do that - I did that. [70] I do not believe Balbir when he stated he reported higher earnings to CRA so he could show he had greater earnings to support Rajvinder's family in their bid to come to Canada. This

was denied by Rajvinder and is not consistent with the financial records tendered showing the payment of the immigration application fees and the timing of her parents' move to Canada. [71] There are two further reasons why I specifically reject this testimony. First, Balbir did not call his employer to corroborate this scheme. He explained that he did not want to bother his employer or get him into trouble. I have concluded that he did not call his employer to testify because this evidence was false. [72] Second, Balbir, as was typical during his examination, tried to blame Rajvinder for misstating his income to CRA. He stated: She made my life living hell She would say inflate the income. She would not communicate with me for up to 2 weeks. [73] The application to sponsor Rajvinder's family was submitted in 2008. I accept counsel's submission that there would have been no need to inflate earnings for 2008, 2009 and 2010 because the application had already been submitted. [74] In sum, I have rejected the notion that Balbir over-stated his income to CRA such that I should reduce it. C. Substance Use Disorder [75] I wish to address the evidence about Balbir's substance use disorder. Balbir tendered some clinical records to support his claim that he has been incapacitated from earning any income from 2009 to the present. He currently receives a disability income and, based on his

financial records, has not declared any employment income to the CRA since 2010. [76] During his direct examination, Balbir testified about daily alcohol and illicit substance use since about 2004. I do not accept his evidence that his daily drug use commenced back in 2004. There is evidence that he used illicit substances during the early years of the marriage, including one brief stay at a residential treatment facility. However, I am satisfied that he was able to work full time, including weekends, until the final months of the marriage. His description of incapacitating consumption of drugs and alcohol (at least during the early years of the marriage) do not accord with Rajvinder's testimony or the documentary evidence tendered. [77] That said, I accept Balbir's submission that he has suffered, for many years now, from a substance use disorder. To corroborate this assertion, Balbir tendered medical records from 2014-2017 providing information about hospital visits connected to his substance use disorder. I agree that I can consider the hospital records to establish that Balbir has sought and received medical treatment related to drug use: see S.J.E. v. L.M.E., 2016 BCSC 2579 at paras. 33-36. In particular, I am satisfied that the medical records establish the following: a) On April 16, 2014, Balbir was admitted to Richmond Hospital after being brought to the hospital by the

police "after he called them believing that three people were on his roof trying to kill him. He was intoxicated with alcohol and cocaine at the time." In this medical record, the following information was recorded: Balbir is a 31-year-old male who has a five year history of drug and alcohol abuse, mainly cocaine, heroin, and alcohol. He has historically had poor insight and presented with a very similar presentation 1 year ago. b) On September 14, 2014, Balbir was admitted to Richmond Hospital for three days due to acute psychosis. "The patient was very disorganized, delusional and experiencing hallucinations at the time of admission." His diagnosis was drug induced psychosis, alcohol, and crack cocaine. c) On February 12, 2015, Balbir was taken to the Richmond Hospital after he was found slumped over on the Skytrain related to alcohol, heroin, and crack cocaine use. d) On August 31, 2015, Balbir was admitted to the Richmond Hospital after a 911 call was made about his conduct (found hitting head against wall). The diagnosis was substance induced psychosis. e) On November 23, 2015, Balbir received treatment at Richmond Hospital. Based on the records, it seems Balbir was in the hospital for approximately two weeks. The only records tendered were nursing assessment records. These were handwritten notes and are very difficult to decipher. Balbir testified that he believed he had

been in a coma for two weeks as a result of his substance use disorder. Balbir's explanation of this hospital stay is not consistent with the records indicating that he was neurologically assessed daily and was noted as alert. However, I am unable to determine the reason Balbir was in the hospital on this occasion. f) On May 27, 2016, Balbir was admitted to the Richmond Hospital with "possible history of withdrawal seizures." This record provides some of Balbir's reported history about substance abuse in the years leading up to this hospital admission. g) On August 29 and September 29, 2016, Balbir was treated at the Richmond Hospital for polysubstance and alcohol intoxication. h) On April 29, 2017, Balbir was treated at the Richmond Hospital after his brother had found him unconscious. The record notes: This is a 34-year old male who was found by his brother at his home unresponsive. Apparently, he was apneic at times. His initial O2 saturation was 50% on room air. His brother called the EHS to resuscitate him and provided assistive ventilation after he was given Narcan x2. He eventually became alert and was brought in to Richmond Hospital. He was also found to have crack cocaine and a meth pipe at his bedside. He has a history of IV drug use, alcohol use, and polysubstance abuse. He had a previous cocaine overdose resulting in severe [rhabdomyolysis], compartment syndrome,

and acute kidney failure requiring dialysis in January 2016. i) In a letter from path to Freedom Addiction Treatment Centre, Hardev Randhawa wrote that Balbir has attended at the centre three times for treatment: i. February 20, 2015 - July 21, 2015; ii. May 6, 2017 - November 14, 2017; and iii. May 24, 2018 - January 18, 2019. [78] Balbir's time at the residential treatment centre in 2015 seemed to follow his hospitalization in February 2015 when he was found slumped over at the SkyTrain station. Similarly, he went into residential treatment after his brother found him unconscious at the end of April 2017. [79] Balbir tendered two other hospital records from Richmond Hospital in 2015. Balbir did not know what these records were for or the reason why he presented at the hospital. Counsel did not make submissions about the probative value of these records and I was unable to determine if the records were connected to his substance use disorder because I could not decipher many of the handwritten notes. Based on the evidence presented, I am unable to make findings about these two records and have not placed any weight on them. [80] Balbir did not present any opinion evidence to support his assertion that he was totally incapacitated from earning any income after 2010. He testified that he is prescribed methadone and has been taking methadone since 2018. He testified that

methadone causes him extreme fatigue and he believes he cannot work at all because of methadone. He also believes that he will relapse if he stops taking methadone. [81] I am satisfied, based on the authorities presented, that I can consider the medical records about Balbir's substance use disorder. However, the use I may make of these records is limited as I set out below. [82] The Olk family all described Balbir's substance use and the toll it has taken on this family. Rajvinder also testified about Balbir's substance use in the later years of their marriage and her interactions with him following their separation. I have little difficulty finding that Balbir struggled significantly from a substance use disorder. However, I do not find that his struggle incapacitated him to the extent he described. I find that he was employed up to 2010 and was able to earn income as an electrician technician. Based on the medical records tendered, I find that Balbir was not earning income during the time that he was at the residential treatment facilities. [83] In other words, I accept that Balbir has suffered from a substance use disorder for many years. I do not accept Balbir's timeline about daily substance use since 2004. However, I accept that by 2014, where corroborated by the health records, his substance use disorder, at the times specified, caused him to be unable to earn employment

income because of the treatment he was receiving. [84] I will address the overall impact of his substance use disorder on his earning capacity and employability later in these reasons. D. Kingsley Property [85] Charan and Manjit purchased the Kingsley Property in March 2001. Balbir and Jaspal were registered on title of the Kingsley Property as five percent owners. Manjit testified that they were on title to help them build credit for their future and to assist with obtaining immigration status. Jaspal and Balbir testified, and their mother agreed, that they did not contribute anything towards the purchase of the Kingsley Property. Although, both siblings are listed as borrowers on the mortgage. [86] Balbir explained his understanding about why his name appeared on title. He testified: "because at that time we were here on a visitors visa and the family did not have permanent status--they were concerned--what could happen if sent back to India and that was why the name was there - it was only for namesake but I did not have any part in that." [87] Despite his name being on title, Jaspal testified that he never contributed anything towards the purchase, mortgage or upkeep to the Kingsley Property. When it was sold, he did not receive any of the proceeds of sale. He testified that the reason his name was on title was, similar to his sister's testimony, for credit purposes. E. No.

5 Road Property 1. Purchase of No. 5 Road Property [88] In December 2003, Charan and Manjit purchased the No. 5 Road Property. Manjit testified that none of her children (or their spouses) contributed in any way to the purchase or to the ongoing related expenses for the No. 5 Road Property. [89] Application for registration of title was received on January 28, 2004, and entered on February 10, 2004. Title to the No. 5 Road Property was as follows: Registered owner in Fee Simple: Charan Singh Olk, Retired Manjit Kaur Olk, Homemaker Gurvinder Kaur Olk, Packer Jaspal Singh Olk, Plumber Balbir Singh Olk, Electrician 7091 No. 5 Road, Richmond, BC As Joint Tenants [90] Balbir testified that his name was placed on title for immigration purposes, stating: "Because we were here on visitor's visas and we did not have immigration status and they were afraid what would happen if someone were sent back to India. The name was put on the house for immigration purposes." [91] Balbir testified that he neither contributed to the down-payment to purchase the No. 5 Road Property, nor did he make regular (or any) payments to his parents after they moved there. He said that he lived there "rent-free" and that the fridge was always full of food. He and Rajvinder were never required to pay for anything while at the No. 5 Road Property. He testified that this financial arrangement with his mother has

continued, for him, to the present day. [92] The title registration shows that the HSBC Mortgage was registered on the title to the No. 5 Road Property. The mortgage amount was $393,000 and the borrowers are identified as Charan, Manjit, Balbir, Gurvinder, and Jaspal. Manjit testified that she paid off the mortgage in or about 2020. [93] Balbir was cross-examined about his obligations pursuant to the mortgage. He admitted that his signature appeared on the mortgage, which was marked as an exhibit at the trial. However, he insisted that he did not have any financial obligation to his parents with respect to payment. He said he was simply asked to sign the document, so he did. He testified that he did not question his parents about their request to sign the documents. The gist of his testimony on this point was that if he was asked to do something by his parents, he would--without asking any questions. [94] The above title was cancelled on February 15, 2011, after Balbir was removed. I will address his removal from title shortly. However, at this stage I note Balbir was not removed from his obligations pursuant to the HSBC Mortgage.

2. Financial Contribution to No. 5 Road Property [95] Rajvinder testified that she and Balbir were paying $1,000 a month to Manjit for expenses towards the No. 5 Road Property. Rajvinder testified that after she started working, Manjit increased the amount to $1,300. Rajvinder also testified that she was required to contribute $400 per month towards the groceries. She testified that the request for payment occurred during a family meeting that she, Balbir, and Jaspal and his spouse, Joti, attended. Rajvinder described the conversation as such: And [Manjit] said this is your house - and now you start making payments in the amount of $1300 so it is paid quickly and I was contributing $400 towards the grocery as well. [96] At the end of October 2006, Charan and Manjit took Rajvinder to the TD Bank so she could open an account. Rajvinder testified that this was her first bank account ever. She testified that she received a gift in the amount of $1,000 from Charan and Manjit when she opened the account and she deposited the $1,000 into the TD account accordingly. [97] Rajvinder's TD bank account statements from October 30, 2006 through December 7, 2010 were tendered as an exhibit. She closed the account on December 7, 2010, when she learned that Balbir, after they had separated, withdrew $470 over three days from this personal account without her knowledge or permission. She and

Balbir also had a joint account during the marriage. The statements from the joint account were similarly produced. [98] With respect to bank account activity, Rajvinder explained that she and Balbir would pay Manjit in the first week of each month. She would withdraw money from her account or the joint account and/or use cash that Balbir received. She testified that Balbir would often work on the weekends as an electrician and be paid in cash. Though she did not know how much he earned each year, she testified that some of his income was used to pay Manjit. [99] With respect to the $400 per month for groceries, Rajvinder testified that she regularly transferred this amount to Manjit. From her TD account, there are regular transfers of $400 to Account # 2568. Rajvinder testified that this was Manjit's bank account. She testified that Manjit was often with her when she transferred the money. From Rajvinder's TD bank account to 2568, transfers were recorded at the beginning of each month, with the exception of May 2007, from March 7, 2007 to April 7, 2008. [100] Rajvinder testified that Manjit had access to her bank balance from her bank book. Because of this access, Manjit knew that in May 2008, Rajvinder's account had over $12,000 in it. Rajvinder testified that in May 2008, Manjit requested a large transfer from her to help with the property taxes. Rajvinder's TD Account

showed a transfer of $9,000 on May 23, 2008. The bank record does not indicate an account number for the transfer deposit. Rajvinder testified that Manjit was with her at the bank when this transaction occurred and the funds went to Manjit. Manjit attempted to explain the transfer as recorded in the bank documents. Manjit testified that this transfer related to money Rajvinder owed her for a car Manjit helped to purchase. [101] Based on the documents provided and Rajvinder's testimony, it appears that there were times when Rajvinder and Balbir did not make monthly payments of $1,300. For example, in 2007, Balbir was sent to a residential treatment facility for one to two months. Rajvinder assisted him with an application for employment insurance. She testified that Manjit required the employment insurance cheques to be given to her for the costs of running the household. [102] Rajvinder was cross-examined about the fact her bank account did not show any $400 transfers after April 7, 2008. Rajvinder stated that her bank balance had decreased significantly after she transferred the $9,000 and thereafter they would often use cash from Balbir's jobs. Similarly, she was cross-examined extensively about the fact the TD Account did not show regular withdrawals for $1,300. Rajvinder responded by stating the payments were sometimes more or sometimes less, depending on how much money she

and Balbir had. She testified that her bank statements show regular large withdrawals in the first week of the month. She testified that those withdrawals were to satisfy their financial obligation to Manjit. [103] There was some evidence about a transfer in the amount of $16,945.81 on July 16, 2007. It was suggested that this money related to a car that Manjit had helped Rajvinder obtain and that the transfers of $400 and $9,000 were to repay Manjit for the car. No documentary evidence of the alleged loan was provided. [104] During cross-examination, Rajvinder denied there was any such loan. She maintained that she was asked to pay $400 towards groceries and $9,000 to assist with property taxes. [105] It was suggested to Rajvinder that Balbir's money was going to buy drugs and he did not have anything left to give Manjit. Rajvinder denied this suggestion. Besides his time in treatment in 2007, she testified that the first time she thought his drug use impacted their finances was in 2010 when he took the money from her account after they had separated. [106] Similar to Balbir's testimony, Manjit denied that Rajvinder contributed to the monthly expenses for the No. 5 Road Property. Manjit's evidence is that Rajvinder and Balbir never contributed any money--ever--to the No. 5 Road Property. She also denied that Jaspal paid anything towards the No. 5 Road Property. [107] Manjit

testified that Balbir and Jaspal were registered on title to the property to support their immigration applications, to help build their credit for their future, and to assist her and Charan to be approved for a mortgage. However, her evidence was that she and Charan were financially responsible for all of the properties. She testified that they did not require any financial assistance from their children, except for the limited assistance they provided when they signed the mortgage document. She testified that after Charan died, she took on the financial responsibilities for the property. She provided some records for the properties she has owned over the years to establish her, allegedly, strong financial position. [108] Manjit produced some transaction reports from her bank in an attempt to corroborate her position that Balbir and Rajvinder did not pay her anything. She produced bank statements from 2015-2021. However, I am not satisfied that Manjit has complied with the Supreme Court Family Rules, B.C. Reg. 169/2009 [Rules] regarding disclosure. [109] In particular, Manjit did not produce the following: a) copies of the complete bank book from 2006 through 2011; b) bank statements and bank books for account 9720-6212568 from 2006 through 2011; c) documents relating to the transfer of $16,000 that Manjit stated was given to Rajvinder for the alleged car loan; and d)

accounting of rental income from the No. 5 Road Property. [110] The Rules at R. 5-1(28) provide that the court can draw an adverse inference against a party who fails to comply with disclosure requirements. See S.K. v. S.M, 2021 BCSC 241 at para. 20, and Cunha v. Cunha, 99 BCLR (2d) 93, 1994 CanLII 3195 at paras. paras. 9-10. Rajvinder specifically requested financial records and obtained court orders compelling production. She also sent requests following examinations for discovery. [111] To explain the lack of records, Manjit testified that she was unable to retrieve records from that far back. She also said she did not trust releasing her financial information to others. She stated a few times during her testimony that she did not trust the person who, for a time, was helping Rajvinder during the litigation because he was not a lawyer. However, that does not absolve her (or any litigant) from producing documents. Undertakings are in place for that very purpose. [112] From the history of the litigation outlined above, it is evident that Rajvinder attempted to obtain the disclosure to which she is entitled. Unfortunately, Manjit did not produce this basic disclosure, that is banking records from a financial institution. As a result, I am left with one side of the mathematical equation. There are financial records and in-person testimony from Rajvinder establishing a flow of

money to Manjit. I do not have before me Manjit's banking records that would very likely show whether or not she received money from Rajvinder each month. [113] As I have said, Manjit produced some banking transaction reports. I agree with the respondent's submission that she only produced select pages when it suited her and not otherwise. I agree that this demonstrates she had access to the banking records requested of her when needed. In any event, she seemed to agree that she had some more banking records, but had decided against production. Examples of her selection include production of: a) TD account 3294864 for June 1, 2007 to July 16, 2007 (Exhibit 15; C-14); b) Charan's investment statement for the period ending December 31, 2002 (Exhibit 15; C-19); c) one page from TD passbook for January 14, 2011 to February 1, 2011 (Exhibit 15; C-21); d) one page from Scotiabank passbook (for Sept 4 - Nov 14, 2012 (Exhibit 15; C22); e) page from TD bank passbook for account 9720- 6212568 for Nov 6, 2007 to November 28, 2007, January 7, 2008 to April 1, 2008 and May 2, 2008 to May 23, 2008, with pages missing (Exhibit 15 - C23); and f) a partial printout from TD account passbook for August 3, 2007 through June 2, 2008 (Exhibit 15 - C38). [114] Counsel relied on a letter from Scotiabank and HSBC dated August 11, 2022, advising that the banks were unable to provide statements from 2001

onwards. However, Manjit's disclosure obligations arose over ten years earlier. The counterclaim specifically naming Manjit and Charan and putting in issue title to the No. 5 Road Property, was filed in September 2011. I am satisfied that Manjit's disclosure obligation for these basic, relevant documents arose back in 2011 when the banks would likely be readily able to provide the documents. [115] Because of her failure to produce the financial documents, I have drawn an adverse inference regarding Manjit's evidence on this material point. Thus, I have inferred that if Manjit's banking records had been produced, they would have supported Rajvinder's evidence. [116] After considering the whole of the evidence I have accepted, I am satisfied that Rajvinder has established that she (and Balbir) provided monthly payments to Manjit in accordance with the arrangement that Manjit demanded. I find as well that Manjit, who had access to Rajvinder's banking information, would have known the balance of money in her account and directed Rajvinder to give her $9,000 in May 2008. I accept as well that Rajvinder was told that the money was for the pending property taxes and that is why a large sum was required. [117] I will say more about this, but I am satisfied that the evidence establishes on a balance of probabilities that Rajvinder and Balbir made regular payments to Manjit from October

2006 through October 2010 when they lived at the No. 5 Road Property. I accept Rajvinder's testimony that she paid $1,300 each month for the cost of the mortgage and other housing expenses. I also accept her testimony that, at times, she was unable to make these payments, such as in 2007 when Balbir was at a treatment facility. However, on these occasions, I accept Rajvinder's testimony that she organized his employment insurance proceeds to be delivered to Manjit directly. [118] The respondents by counterclaim took the position that the Court should reject Rajvinder's testimony because her own bank statements do not clearly establish a transfer of $1,300 each month. That is correct. However, as I examine her bank statements, it is evident that there was some money being withdrawn early each month. I accept Rajvinder's explanation that the bank withdrawal, plus cash received from Balbir, was used to satisfy their obligation to Manjit. [119] The respondents by counterclaim further submitted that the Court should reject Rajvinder's testimony on this point because the math does not work. If Jaspal and Balbir were both required to contribute $1,300 per month, this would have exceeded the monthly mortgage expense. Similarly, they took the position that the annual property taxes were never as much as $9,000, so Rajvinder could not have been asked to transfer that sum to Manjit. I

reject both of these submissions. The respondents by counterclaim did not produce financial records demonstrating whether Manjit deposited (or did not deposit) sums of money consistent with Rajvinder's testimony; that is, whether there were regular deposits at the beginning of each month. Production of complete banking records during the relevant time period would have provided some evidence to corroborate the respondent by counterclaim's position. Those complete records were not produced as required and I have drawn an adverse inference accordingly. [120] With respect to the $9,000, Rajvinder's testimony was that Manjit told her the money was necessary for property taxes. That does not mean that is what the funds were ultimately used for. The transaction is established on the documentary records. And I do not accept the submission that Rajvinder transferred this money to Manjit because she owed it to her for a car. [121] I wish to address Gurvinder's testimony about financial contributions by her siblings. [122] Gurvinder testified that no one was required to pay Manjit and Charan during their time living at the No. 5 Road Property or otherwise. She testified that they all lived there for free and were fully supported by their parents. She testified that her step-father told her: You folks enjoy your life. You guys do not need to contribute anything. Your name is written [on

title]. Your name is written in mortgage as well, but you guys do not need to worry about anything. Honestly speaking I do not consider myself to be the owner of the house because I did not contribute anything. [123] Gurvinder resided at the No. 5 Road Property in 2004 and moved out in September 2005 when she married. She was not living there when Rajvinder arrived from India. [124] During cross-examination, she rejected the proposition that Manjit and Charan needed money from Balbir and Jaspal to pay for the mortgage and housing expenses. In her denial of this suggestion, Gurvinder testified: It was not correct that they could not have purchased the house .Because my dad had the money - he had a house - he could purchase the house - he had so much money that he could handle all that by himself. [125] She was cross-examined on an affidavit she tendered in support of an interlocutory application on March 31, 2016. In the affidavit, she stated: I have been willing all along to remove my name from the title of the property anytime but kept it only to help and assist my parents to secure/renew mortgage for the property. [126] Gurvinder attempted to explain this apparent inconsistency in her testimony regarding the strength of her parent's financial position by stating that their names were on the mortgage in case Charan died because he was very old. It was also to help with their

own mortgage applications in the future. [127] In my view, this explanation does not adequately answer this inconsistency. [128] Gurvinder testified that Rajvinder knew the family was taking steps to remove Balbir from title to the No. 5 Road Property. She testified that she did not remember all of the details about how Rajvinder knew this. During cross-examination, her affidavit was placed before her on this point. In her earlier affidavits, and on this point, she had stated: I know for a fact that [Rajvinder] was fully aware of the fact removing [Balbir's] name from the title of the Property but never raised any objection. [129] And in an affidavit tendered in 2019, Gurvinder stated: The transfer was done with the consent of all of the names on the title. [Rajvinder] was fully aware of the reasons for removing [Balbir's] name from the title of the property, and never raised any objection. [130] At trial, she explained that now, she did not remember whether Rajvinder was aware of Balbir's removal. Gurvinder's inconsistency on this point is troubling. [131] In addition to these inconsistencies, Gurvinder's testimony about financial arrangements is problematic for a number of other reasons. First, at times it appeared she was testifying based on what others had told her. For example, she described a conversation about a car purchased for Rajvinder. At some points it seemed as if

she was present when this conversation occurred. Later, during cross-examination, it became clear that she was not present, but learned about the details from others. [132] The second reason for placing little weight on her testimony relates to the fact that she was not living at the No. 5 Road Property when Rajvinder first arrived. She was not present when the day-to-day events occurred and would not have been around to observe the interactions as described by Rajvinder. At one point in her testimony, Gurvinder stated as much when she was asked about Rajvinder and Balbir's vehicle purchases. She responded, by stating: "Balbir used to buy vehicles; he purchased a car in 2005 And after that, these folks bought two to three vehicles I don't know a whole lot about it because I was busy with my own life." [133] I turn to Jaspal's testimony about whether he and/or his spouse were required to pay Manjit for costs associated with residing at the No. 5 Road Property. [134] Unequivocally, Jaspal stated he was not required to pay anything during the time he lived with his parents at the Kingsley Property or the No. 5 Road Property. He was asked why his name was on title. Jaspal responded: "So that my record would be built. And I had a little bit of problem with immigration because I was on a visitor's visa." [135] Jaspal stated clearly that his parents never asked him to contribute to

the down-payment of the No. 5 Road Property, nor did they ask him to contribute to mortgage payments or any other regular housing costs, such as hydro or property taxes. He agreed that he was employed during this time, but that all of the money he earned was spent on himself and his family, stating that there was "a significant amount of expenses." [136] Jaspal testified that he moved out of the No. 5 Road Property after the incident in late October 2010 where the house was broken into. He testified that a number of items had been stolen, including jewelry and a gun registered to him. [137] Jaspal agreed that the family was terrified after this incident because of Balbir's condition and because a gun had been taken. He agreed "absolutely" that: "The family fled the [No. 5 Road Property] because they were fearful because there was a gun missing." [138] Thereafter, Jaspal's family moved into an apartment. Later, he and his spouse and children moved to Seaport Avenue, Richmond (the "Seaport Property"). Jaspal's family continues to live at the Seaport Property. Jaspal testified that he is responsible for the upkeep of the Seaport Property and the payment of utilities but "it is owned by Manjit and she pays for everything else associated with it." [139] In short, Jaspal's evidence was that he did not contribute to the purchase or ongoing expenses of the No. 5 Road Property. Again,

Manjit's missing bank records would have assisted the court's determination of whether his evidence was true. [140] Based on the evidence that I have accepted, I have found that Rajvinder was paying money to Manjit as she described and as based on her financial records. She believed that Jaspal and Joti were also obligated to pay. Whether they were or not does not detract from my finding that Rajvinder had an arrangement with Manjit that compelled her and Balbir to pay every month. On this point, Rajvinder believed Jaspal had the same arrangement as Balbir. She described a meeting where contributions were discussed amongst the family members. Jaspal disputes that such a meeting occurred. Despite this difference between the testimony of Jaspal and Rajvinder, I have accepted Rajvinder's testimony that it was her belief that Jaspal was also required to (and did) contribute financially. Whether her belief was correct does not detract from the evidence that I have accepted on this point. That is, Rajvinder and Balbir were required by Manjit to pay money each month during the time they lived at the No. 5 Road Property. F. Separation [141] Rajvinder travelled with H.O. to India at the end of 2009 and returned to the No. 5 Road Property in February 2010. She testified that Balbir was a "totally different" person. She testified that at one point, she thought perhaps in August, Manjit

told her to sleep with Manjit in her bedroom with H.O. That was because, as Rajvinder understood it, Balbir was coming in and out of the home during the night. Rajvinder also believed this move had to do with her safety. [142] Rajvinder testified that she believed Balbir had left the No. 5 Road Property in early October 2010. She did not know where he was living at this time, but believed Manjit would "take care of this." [143] Balbir was cross-examined about events that occurred in the months leading up to the separation. He agreed that he had moved out of the No. 5 Road Property in 2010, but his evidence was unclear about the date he left. He disagreed that Rajvinder had moved into his mother's bedroom in or about August 2010 for safety reasons. He testified that he had no idea where she was sleeping because he was not living at the No. 5 Road Property. He also denied any incidents of violence towards Rajvinder. In fact, he testified she was the one who assaulted him at times, including pouring hot water over him. [144] I do not believe Balbir's testimony that Rajvinder assaulted him. [145] The parties testified about an incident that occurred at the end of October 2010. Manjit testified that she received a phone call from someone who told her Balbir had been in an accident, was in the hospital, and that the family needed to get there to help him. Manjit testified that she

and Rajvinder went to the hospital, but were told that Balbir was not there. They returned home and found that someone had broken into the No. 5 Road Property while they were at the hospital. [146] Rajvinder described her response to this incident. She testified that she "did not want to leave the home." She believed that her mother-in-law would manage Balbir and "fix everything". [147] Rajvinder's and Manjit's evidence is consistent on the circumstances of the break-in. Rajvinder added that Manjit directed her to go and stay with a relative, telling her, "you have to go." Rajvinder testified that she was dropped at the relative's house "which was not [her] family." Rajvinder described her departure from the No. 5 Road Property as "being kicked out - and there was no fault of mine." [148] Balbir denied that he was in any way responsible for breaking into the house. Manjit also testified that she had learned from the police that Balbir had been "cleared" from his involvement in the break-in. This constituted inadmissible hearsay and I do not rely on it. Based on the totality of the evidence, Balbir's culpability in the ploy is highly suspicious, but I need not determine the role he played in it. [149] Whatever occurred during this incident and whatever involvement Balbir had does not change the fact this incident culminated in Rajvinder being told to leave the No. 5 Road

Property. [150] Rajvinder described the loss she experienced when she was ordered to move out of the only home she had known since arriving in Canada. She testified that the Olks were her family and that Manjit was the first person she loved when she came to Canada. She was very confused about why she was asked to leave the family. She testified that she and H.O. had to sleep on the floor at the relative's house and that she had not brought anything with her when she left the No. 5 Road Property - never to return. Her sister-in-law assisted her during this incredibly difficult and tumultuous time. Indeed, Rajvinder testified that she did not harbour any resentment to Gurvinder or Manjit, despite years of litigation and having received no support for H.O. G. Balbir Removed from Title [151] Rajvinder was never allowed to return to the No. 5 Road Property. She has worked hard in the years since the separation to support herself and H.O. without any financial or other support from Balbir. [152] After Rajvinder left, Manjit and Charan took steps to remove Balbir from title of the No. 5 Road Property. [153] Rajvinder did not participate in the transfer in any way. I accept her evidence that she did not even learn about it until after the litigation commenced. I do not accept that any member of the Olk family informed her about the plan to remove Balbir from title to the No. 5 Road

Property. [154] The transfer papers show the transfer occurred on February 9, 2011. Prior to this date, Gurvinder, Jaspal and Manjit each testified about Balbir's difficulties in the time leading up to the transfer. They agreed that Balbir was transient at the time and came home only to borrow money to support his drug use. Balbir described an incident where he organized the purchase of a new car for himself using Manjit's financial information without her knowledge or consent. He testified repeatedly about the car company pursuing him for payment. Manjit testified about receiving calls from Balbir's creditors. [155] The parties agree that there was a meeting with David Takahashi, a real estate conveyancing lawyer (now deceased), regarding the transfer of Balbir's interest in the No. 5 Road Property to Manjit and Charan. [156] The transfer document establishes that Manjit, Gurvinder and Balbir signed the transfer document on February 8, 2011; Charan and Jaspal signed the next day. [157] The transfer form indicates the market value of Balbir's share to be $143,600 and a "1/5 interest only". Notably, the form also indicates that the consideration was $143,600, which Balbir never received. As a result of the transfer, Manjit and Charan were made joint tenants in 60 percent of the property. Jaspal and Gurvinder were made 20 percent owners. [158] The parties agree that the following

note constituted Mr. Takahashi's instructions: Want to remove "Balbir Singh Olk" 1/5 interest - leaving country To go to parents Charan/Manjit $900,000 - $180,000 [159] Balbir agreed in cross-examination that he had no plans to leave the country at the time of the transfer. [160] Manjit testified that she did not give any instructions directly to Mr. Takahashi because she did not speak English and he did not speak Punjabi. [161] Manjit was cross-examined about whether Mr. Takahashi was told about the break up of Balbir's marriage. She maintained that she did not give any instructions to Mr. Takahashi. However, she also responded to this line of inquiry by saying she did not really know whether Balbir and Rajvinder had "separated". She testified that there were fights, but at that time February 2011, she did not know that they had broken up; adding, "If she thought she was leaving, I didn't know about that. We never thought she would leave." [162] I do not accept that Manjit did not know Balbir and Rajvinder had separated at the time of the transfer. Three months had passed since the break in and Manjit's demand that Rajvinder leave the No. 5 Road Property. I find that Manjit knew very well that the marriage was at an end at the time of the transfer. [163] Balbir was cross-examined about whether he told Rajvinder he was to sign papers to transfer the No. 5 Road Property out of

his name. He agreed that he did not tell her because "they were not even connecting" at that time. [164] Jaspal testified about the steps taken to organize the meeting at the lawyer's office. He agreed during cross-examination that Charan and Manjit had tried to get Balbir to meet them at the lawyer's office before February 9, 2011. He stated that Balbir would "flee" and it took a few weeks for all of them to arrange Balbir's attendance. Jaspal testified that his parents made the decision to remove Balbir's name from title. According to Jaspal's understanding, Balbir was removed "because he was extremely drug-addicted and he was stealing a lot and he would start driving the vehicle under the influence of drugs so we were concerned/afraid he might kill children So that's why his name was removed." [165] Gurvinder testified that she, Charan, Manjit, Jaspal, and Balbir all attended together at Mr. Takahashi's office. She testified that she and Jaspal did not give the lawyer any instructions about the transfer and were signing documents at the request of their parents. Gurvinder believed that everyone was present at the same time when the transfer document was signed. [166] Regarding the reason for the transfer, Manjit testified that she and her husband started talking about removing Balbir from the title when he left the house in October 2010. They were having difficulty with his

drug use and the calls for debt collection. Manjit was adamant that the reason she and Charan sought to transfer the property out of Balbir's name was because of the calls she was receiving from Balbir's creditors, including the car company, and she did not want a lien to be placed on the property. She testified that it had nothing to do with Rajvinder or potential divorce proceedings. [167] Notably, Manjit did not mention Balbir holding the property in trust for her and Charan during this portion of her testimony. [168] There was also evidence of Balbir receiving $2,000 from Manjit on February 8, 2011. Balbir was cross-examined about whether he received money from his parents relating to the transfer. The exchange was: Q: When you transferred [your interest in] the property, did you receive any money from your family for doing so? A: They gave me $2,000 from their own pocket for my own spending money. [169] Balbir testified that he received the money from his mother. However, Balbir did not know whether he received the money before or after he went to Mr. Takahashi's office. He also stated that he was not given information about why the documents needed to be signed. He testified he signed them because he was told to do so. [170] Manjit agreed that she organized a $2,000 bank draft payable to Balbir. Manjit agreed that she had a telephone discussion with Balbir on or about

February 7, 2011, before the transfer form was signed. She testified that he told her that he was trying to live with "some other guys" and he needed money so he could move in with them. She testified that she supported him in this move and that is why she gave him the $2,000. [171] The bank draft is dated February 8, 2011, the same day she and Balbir signed the transfer form. Manjit attempted to separate the delivery of the bank draft from the fact Balbir signed the transfer. She testified that she could have given the bank draft to him on any day and that it had nothing to do with forcing him to sign the transfer papers. She was specifically asked whether she "bribed" Balbir to sign. She responded by stating: No, why would I bribe him. He wasn't a third party he was my own son. If I wanted to bribe him, I could've given him an amount once or twice. He said, I want to stay with other guys now and I thought he'd be safe there. So I was doing that to keep him safe. So I gave him $2000. I don't always have proof of everything. [172] Gurvinder did not believe that Manjit gave any money to Balbir at this time. She was cross-examined about the $2,000 and Balbir's admission that he had received $2,000. In response, Gurvinder simply stated she did not know for what purpose he would have received $2,000 because he was always actively seeking money from their parents at this time. [173]

Manjit was cross-examined about whether Balbir demanded that she give him a bank draft instead of a cheque and whether that was because he did not trust her. Manjit responded by stating, that was "rude" to suggest and that he wanted a bank draft so he could cash it right away. [174] The only witnesses who testified about this transaction were Balbir, Manjit, Jaspal, and Gurvinder. For the most part, their evidence aligned. That is, the transfer was necessitated by the fact Balbir was actively using drugs at the time and his creditors were after Manjit for payment. [175] Based on the evidence presented, I am satisfied that Balbir was actively using illicit drugs during this time and that Manjit was anxious to complete the transfer. Based on the evidence, Balbir did not have any independent legal advice regarding the transfer of his interest. Additionally, I find that Rajvinder was not told about the transfer. I am also satisfied that Balbir attended at Mr. Takahashi's office and signed the transfer documents, at least in part, because he was to receive a $2,000 bank draft from his mother. H. Other Matters Raised in the Evidence [176] The parties led evidence on a number of collateral issues, including on Rajvinder's car. I decline to make any findings on these issues. I do, however, acknowledge that Manjit paid $2,200 to Rajvinder, after the litigation commenced and pursuant to

a court order. This money was to be used for H.O. VI. INCOME OF THE CLAIMANT/RESPONDENT [177] Rajvinder takes the position that I should impute income to Balbir based on the annual earnings of an electrician working in BC and suggests an amount of $70,000 based on the following: a) his previously recorded employment earnings from 2007-2010; b) Rajvinder's testimony that he would often work on the weekends for cash; c) by drawing adverse inferences from his deficient document production; d) by taking into account the support he has received from his mother over the past decade; e) by taking into account his entitlement to rental income received on the No. 5 Road Property; and f) by considering that he should have had other employment in the years' post-separation. [178] With respect to the allegation that Balbir has failed to generate income from property, Rajvinder submits that Balbir was a legal and beneficial owner of the No. 5 Road Property until February 2011 and that the property generated considerable rental income since 2010. She submits that despite his name being removed from title in February 2011, he maintains a beneficial interest in the No. 5 Road Property. As such, the removal of his name had the effect of diverting rental income from Balbir to the Respondents by Counterclaim. Rajvinder contends that Balbir's proportionate share of the rental income generated from

the No. 5 Road Property should be used for income assessment purposes. [179] I will first set out the principles governing income determination in circumstances where, as here, it is alleged a party has been unemployed and/or underemployed following separation. I will then set out my analysis. A. Legal Principles Regarding Income Determination [180] The parties relied on the Federal Child Support Guidelines, SOR/97-175 [Guidelines], for their submissions on child support obligations. [181] The starting point to determine income is the total income reported to the CRA: Guidelines at s.

16. Balbir's and Rajvinder's income is recorded in their CRA personal tax filings as set out above. [182] In support of her position, Rajvinder relies on s. 19(1)(a) and (e) of the which state: 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; [ ] (e) the spouse's property is not reasonably utilized to generate income; [ ] [183] In Marquez v. Zapiola, 2013 BCCA 433, the Court recognized a broad discretion to impute income to either or both spouses for the purpose of determining child and spousal support. In circumstances where there are allegations of intentional under-employment or unemployment, the test for imputing income is "reasonableness, having regard to the parties' capacity to earn income in light of their age, education, health, work history and work availability" (para. 37). [184] In M.A.G. v. P.L.M., 2014 BCSC 126 at para. 52 [M.A.G.], Justice Fleming wrote that three fundamental principles apply to all child support applications: [. . .] 1. parents have a joint and ongoing legal obligation to

support their children; 2. the children, not the parent with custody, have the right to support; and 3. support payments are based on earning capacity and not only on what a parent actually earns. As a result a parent has a legal obligation to earn as much as he or she is reasonably capable of earning: Earle v. Earle, [1999] B.C.J. No. 383 (S.C.). [185] As well, I have considered S.J.E. v. L.M.E., 2016 BCSC 2579, where Justice Ballance reminds trial judges that the imputation of income is not the product of speculation or guesswork. She stated the principles this way at paras. 40-42: [40] The imputation of income is not the product of speculation or guesswork. The party seeking to have income imputed - in this case, the respondent - must establish an evidentiary basis for such a finding: Marquez. If the court determines that one or both of the parties' stated incomes do not represent their "means" (interpreted to include all pecuniary resources from which a person receives gains or benefits) or their ability to earn income, it may impute income at a level commensurate with their means: L.F. at para. 153. [41] Imputing income for intentional unemployment or under-employment does not require a finding of bad faith on the part of the spouse in respect of whom imputation is sought; it only requires a finding that he or she is not earning to capacity: Beissner v. Matheusik, 2014 BCSC 1785 at para. 37, aff'd 2015 BCCA 308. [42] As a matter of fundamental fairness it is vital that the amount imputed aligns with a realistic reflection of the party's education, work history, skills, age and any health conditions that may adversely impact her from a vocational standpoint: Cotter v. Cotter, 2015 BCSC 1730 at para. 48; Marquez at para.

37. B. Analysis [186] Rajvinder seeks to impute an income of $70,000 or, in the alternative, at least equal to the income declared by Balbir prior to the breakdown of the marriage. [187] I am satisfied, based on my assessment of credibility and the whole of the evidence including the testimony of the parties, that this is an appropriate case for the Court to impute a higher income to Balbir than what he has claimed on his CRA filings. I make that determination based on both parties' testimony about Balbir's pre-separation working capacity. I take into account his CRA filings during the marriage. [188] Since the breakdown of the marriage, there has been a steep decline in Balbir's reported earnings. I find that Balbir has been intentionally under-employed and not working to his full capacity since separation. I have considered Balbir's: a) age, he was only 40 years-old at the time of trial; b) training and experience as an electrician technician; c) capacity to earn a reported average of $39,700 in the five years prior to the separation; and d) resourcefulness as evident in his ability to earn income during the separation and Rajvinder's evidence that he earned cash by working on the weekends. [189] I have also taken into account Balbir's entitlement to rental income generated by the No. 5 Road Property. I will address this further below. [190] However, I have considered, as I

must, the impact of Balbir's health on his ability to earn income. [191] In my view, it is well established on the totality of the evidence presented, including the medical records, that Balbir suffers from a substance use disorder and that this disorder has impacted him, to the point of emergency hospitalizations and attendances at residential treatment facilities, since at least 2014. I also accept that he exhibited signs of this disorder during the marriage and that he attended residential treatment for one or two months in 2007. However, this finding does not support Balbir's submission that he is not responsible for any contribution towards child support. [192] I am not satisfied that the evidence presented established that Balbir was unable to earn income as a result of a substance use disorder during the marriage and in the years leading up to the trial, or that he will be unable to work in the future. Notably, I have no expert evidence that the substance use disorder renders Balbir incapable of performing any work at any time in the past or future. [193] In 2010, the year Balbir and Rajvinder separated, Balbir reported a dramatic decline in earnings. In 2009, he earned just over $50,000 and in 2010, he reported earnings of $20,000 to the CRA. He testified that he stopped working after he was kicked out of the No. 5 Road Property. Based on the evidence tendered, the

factors considered above, and his substance use disorder, I have determined that it would be reasonable to impute an annual income to Balbir of $39,700. This number is based on the respondent's alternative submission and the court order of September 21, 2011. Since I centrally rely on the evidence of Balbir's capacity before the separation, I find it is reasonable to use Master Caldwell's estimate of $39,700 for Balbir's imputed income from 2011. [194] However, I accept that there were times following separation when Balbir was unable to earn income because of his attendance at residential treatment facilities. As best as I have been able, I have adjusted the earnings to allow for those periods of absence from the workforce. I therefore conclude that Balbir's earnings and corresponding child support obligations from December 1, 2011, up to the time of trial are as follows: Year Annual Income Monthly Child Support Child Support Owed 2011 $39,700 $361 $361 2012 $39,700 $361 $4,332 2013 $39,700 $361 $4,332 2013 $39,700 $361 $4,332 2014 $39,700 $361 $4,332 2015 $23,158 $199 $2,388 2016 $39,700 $361 $4,332 2017 $19,850 $173; $162[2] $2,065 2018 $13,233 $43 $516 2019 $39,700 $373 $4,476 2020 $39,700 $373 $4,476 2021 $39,700 $373 $4,476 2022 $39,700 $373 $4,476 [195] The Court's calculations are based on prorating Balbir's imputed annual income of $39,700 for time he was resident at

the treatment facilities. For example, I have found that Balbir spent five months at a residential treatment facility in 2015 and was not earning income (nor could he have due to health conditions) for five months. His available income was thus $39,700 less the five months ($16,542) he was unable to work due to his health for a total available earnings of $23,158. [196] Rajvinder's earnings are straightforward. I accept her earnings are as reflected in the CRA records tendered at the trial. Her earnings have fluctuated over the years as she attended school, switched jobs and typically had more than one place of employment. Though not precise, I have averaged her earnings over the years to require a proportionate share (for the purpose of section 7 expenses) to be 55 (Rajvinder) and 45 (Balbir) up to the time of trial. [197] The parties will exchange financial information annually beginning June 1, 2024 with the support adjusted accordingly. [198] The Family Law Act, S.B.C. 2011, c. 25 [FLA], and the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), both provide that child support is payable for children under the age of 19 unless a child over the age of 19 is unable to withdraw from the charge of their parents. In this case, the parties do not dispute that H.O. is a child of the marriage or that Rajvinder has had and will continue to have sole parenting time. [199] Balbir is required to pay child support in accordance with the Guideline income set out above and the applicable table: Guidelines at s.

3. These values and calculations are summarized above. [200] As I examine the totality of the evidence on this point, I find as follows: a) Based on the evidence tendered by Balbir, Master Caldwell (as he then was) imputed an income of $39,700 to Balbir and ordered child support payments of $367/month commencing December 1, 2011; b) Despite the court order and based on Balbir's admission, Balbir has not paid anything towards child support - ever and the arrears are, according to counsel's calculations, to the date of trial, $35,357.74 c) Balbir was unable to earn income during the time he resided at the residential treatment facility in 2015 (five months), 2017 (six months), and 2018 (eight months). As such, I would deduct 19 months from the arrears. [201] Counsel did not provide details to their calculations assessing child support arrears. I would invite the parties to make further submissions about the amount of child support arrears, in accordance with my findings, if necessary. The parties may also present further submissions to address any errors in the Court's mathematical calculations. C. Section 7 Special/Extraordinary Expenses [202] Rajvinder seeks an order requiring Balbir to pay his proportionate share of special/extraordinary expenses she has incurred for H.O. in the amount of $29,378.09, relying upon documentary evidence and her testimony. She testified that the

amount of special expenses far exceeds what she has claimed because she was unable to locate all receipts accumulated over the past decade. [203] She testified that Balbir had not contributed at all to the special expenses. [204] Balbir did not dispute the amount of special expenses. [205] I have reviewed the list of items characterized as H.O.'s special expenses. For the most part, these expenses relate to education costs, childcare expenses, dental costs, and minimal extracurricular expenses. [206] The law on s. 7 expenses under the Guidelines was summarized in Clarke v. Clarke, 2014 BCSC 824 at paras. 48-54: [48] Section 7 of the Federal Child Support Guidelines gives the court the discretion to order payment of an amount over and above the regular table amount. However, in order to qualify for a s. 7 order, the expenses must be proven to be "special" or "extraordinary" in some way. [49] This is because the basic table amounts of child support are designed to cover all the "ordinary" costs of raising a child: D.M.C.T. v. L.K.S., 2008 NSCA 61 at para.

25. Food, shelter, clothing and other necessities are all ordinary, as are many educational, extracurricular and recreational expenses: McLaughlin v. McLaughlin (1998), 167 D.L.R. (4th) 39 (B.C.C.A.). [50] So when does an expense qualify as special or extraordinary? First, it must fit within one of the categories of expenses listed in section 7[(1)]: [. . . ] [51] That list is exhaustive. If the claimed expense does not fit into any of those categories, it cannot be a special or extraordinary expense: Kase v. Bazinet, 2011 ONCJ 718 at para. 39. [52] Even where an expense fits into one of the listed categories, that is not the end of the story. The expenses must be both "necessary" -- as defined in relation to the child's best interests -- and "reasonable," as measured against the combined financial means of the parents (and, where appropriate, the child) as well as the family's spending patterns prior to separation: see section 7(1) and Yensen v. Yensen, 2003 BCSC 1372 at para.

8. In addition if the expense is one listed under subsection (d) or (f) -- educational programs or extracurricular activities -- the party claiming the expense must prove that they are "extraordinary." [53] There is no straightforward definition for "extraordinary" although section 7.1, recently added to the Guidelines, provides some guidance; it requires a sort of proportionality inquiry, looking at the nature and number of activities, any special needs or talents of the child, the overall cost of the activities, and any other similar relevant factors: see D.M.C.T. at para. 32. [54] Because the tests are fact-specific, I cannot definitively say what types of expenses qualify in every case. But I can say what does not qualify as special or extraordinary: · Expenses such as "entertainment, pets, vacations, school fees, school supplies, children's allowances, meals outside the home, personal grooming, and clothing" are not section 7 expenses: Mertler v. Kardynal (1997), 35 R.F.L. (4th) 72 (Sask. Q.B.). · A home computer and other similar technologies do not qualify as extraordinary as they are "common item[s] found in most homes": Yensen at para. 18. · Recreational sports and other similar extracurricular activities -- dance lessons, community sports leagues, ski trips, etcetera -- are generally considered "ordinary." The question is whether the participation goes beyond that of

the "average child": D.L.C. v. F.M.C., 2010 BCSC 1312 at para. 67. [207] Any expenses of H.O. found to qualify as s. 7 expenses are to be shared in proportion to the parties' income. [208] Based on the parties' submissions and the evidence presented, I am satisfied that all of the items claimed as s. 7 expenses qualify as such. [209] I have calculated the proportionate share of the special expenses based on a 55/45 division as set out above. Accordingly, Balbir's share of the special expenses from 2011 through the date of the trial is $13,220. [210] Moving forward and allowing for the parties' respective incomes, I have adjusted the proportionate sharing slightly to reflect the findings I have made. I have done so based on the increase in Rajvinder's annual earnings to approximately $70,000 and the annual income I have imputed to Balbir. That means, Balbir is responsible for 40 percent of the special expenses going forward. I accept Rajvinder's submission that the special expenses should include the following: a) dental expenses, including orthodontic work, treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; b) education related expenses; and c) any other expenses that the parties agree to in writing

in advance. VII. NO. 5 ROAD PROPERTY [211] The first issue to be resolved with respect to the No. 5 Road Property is the nature of Balbir's interest in the property. If Balbir was a legal and beneficial owner of the No. 5 Road Property, then the question is whether it was a family asset that was fraudulently conveyed to defeat Rajvinder's interest in the property. The respondents by counterclaim allege that Balbir held his interest in the No. 5 Road Property in trust for Manjit and Charan and thus it was never a family asset. [212] On September 20, 2011, Master Caldwell made a declaration under s. 57 of the FRA, that there was no reasonable prospect of reconciliation. The parties agree that these proceedings are to be determined under the FRA, not the FLA. [213] The division of property regime under the FRA is set out at ss. 56-58. Each spouse is entitled to an undivided half interest of a family asset as a tenant in common. This interest vests as of the date of the marriage breakup: FRA at s.

56. The parties agree that the relevant date is September 20, 2011, the day of the s. 57 declaration: FRA at s. 56(1)(b). The parties also agree that Master Caldwell's order is the "triggering event" to characterize property as family assets. [214] Family assets are defined in s. 58 of the FRA. The relevant subsections are: 58(1) Subject to section 59, this section defines family asset for the purposes of this Act. (2) Property owned by one or both spouses and ordinarily used by a spouse or a minor child of either spouse for a family purpose is a family asset. (3) Without restricting subsection (2), the definition of family asset includes the following: [ ] (e) a right, share or an interest of a spouse in a venture to which money or money's worth was, directly or indirectly, contributed by or on behalf of the other spouse. [ ] [215] Section 66 of the FRA, allows the court to make orders relating to ownership of property: 66(1) In proceedings under this Part or Part 6 or on application, the Supreme Court may determine any matter respecting the ownership, right of possession or division of property under this Part, including the vesting of property under section 65, or under Part 6 and may make orders that are necessary, reasonable or ancillary to give effect to the determination. (2) Without limiting subsection (1), the court may do one or more of the following in an order under

this section: (a) declare the ownership of or right of possession to property; (b) order that, on a division of property, title to a specified property granted to a spouse be transferred to, or held in trust for, or vested in the spouse either absolutely, for life or for a term of years; (c) order a spouse to pay compensation to the other spouse if property has been disposed of, or for the purpose of adjusting the division; [ ] [216] I turn to the determination of Balbir's interest in the No. 5 Road Property. A. Nature of Balbir's Interest [217] It is undisputed that from the time of purchase in 2004 until the February 2011 transfer, Balbir was registered on the title to the No. 5 Road Property as a joint tenant. Section 23 of the Land Title Act, R.S.B.C. 1996, c. 250 [LTA], provides that an indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity that the registered owner is indefeasibly entitled to an estate in fee simple to the land described in therein. [218] In S.L.L. v. M.C.W., 2018 BCSC 1863 at paras. 232-235, Justice Basran summarized some of the existing jurisprudence regarding competing property claims in family law disputes and the presumption of indefeasible title. Basran J. concluded that the starting point is that the indefeasible title reflects the registered owner's actual ownership interest, but this can be

rebutted by establishing the presumption of a resulting trust (para. 233). [219] The respondent submits that indefeasible title is conclusive evidence at law and equity that the person named in the title as a registered owner, as Balbir was, is indefeasibly entitled to an estate in fee simple to the land. Rajvinder asserts that Balbir was the legal and beneficial owner in the No. 5 Road Property on November 1, 2010. I accept this submission. Therefore, the burden would fall on the respondents by counterclaim to prove that Balbir actually held the property on a resulting trust. [220] The respondents by counterclaim submit that Balbir and his siblings were merely on title to assist with their immigration status and they never contributed to the purchase price or mortgage loan. Thus, they argue that Balbir held the property on a resulting, constructive, or implied trust in favour of Manjit and Charan. I reject this submission. [221] A constructive trust is a remedy that may be available when a personal remedy is insufficient and "the plaintiff's contribution that founds the action is linked or causally connected to the property over which a constructive trust is claimed": Moore v. Sweet, 2018 SCC 52 at para. 91 [Moore]. It follows that a constructive trust is not available in the abstract; the plaintiff must prove a cause of action at issue and show they are entitled to a remedy

related to the property. Thus, Manjit cannot submit that Balbir was a constructive trustee based on the facts she alleges. [222] I received no submissions or supporting caselaw on proving an implied trust. Rather, the respondents by counterclaim focused on attempting to prove that Balbir never contributed towards the mortgage or down payment on the No. 5 Road Property. This is a resulting trust argument, so I will likewise focus my decision on that submission. [223] The leading case on the presumption of a resulting trust is Pecore v. Pecore, 2007 SCC 17 [Pecore]. When there is a gratuitous transfer with an unclear intention, then it is presumed that the transferee only received legal title and not a beneficial interest in the property (para. 24). However, the presumption does not apply in this case since I find that Balbir provided consideration for his interest in the property. [224] Based on the evidence I have accepted, I agree with the respondent's submission that Balbir played a significant role in securing the No. 5 Road Property. Indeed, the respondents by counterclaim and Balbir do not deny that by him agreeing to be on the mortgage facilitated the loan process. The documentary evidence demonstrates that Balbir was named as a borrower for the mortgage. At the time of the purchase in January 2004, only Balbir and his siblings were employed. Charan was receiving pension

income and Manjit was listed as a homemaker. Manjit and Jaspal agreed that the balance of the purchase price was obtained from the $100,000 refinancing from the Kingsley Property. Further, Manjit did not produce banking information to demonstrate their financial capacity to support both the No. 5 Road Property and the Kingsley Property. [225] I accept Rajvinder's submission that Balbir's contribution, by way of taking on the borrowing obligations he did, and the couple's monthly contributions rendered Balbir instrumental in securing the No. 5 Road Property and making the mortgage loan payments. The contributions made by the couple included: a) monthly payments made by Balbir (through Rajvinder) of $1,300 and $400 starting at least in October 2006 through November 1, 2010; b) $9,000 given to Manjit by Rajvinder in May 2008; c) Balbir was liable for the mortgage loan for the No. 5 Road Property; and, d) Balbir's role in obtaining the mortgage so that Charan and Manjit could purchase the No. 5 Road Property. [226] These contributions are valuable considerations that Balbir provided for his joint tenancy interest in the property. In the result, Balbir's registration on title was not gratuitous and the presumption of a resulting trust does not arise. [227] Further, on the evidence I accepted, I found that Balbir was given $2,000 by Manjit as an inducement to transfer his interest in

the property. This would be inconsistent with a finding that Balbir was actually a resulting trustee as there is no need for the beneficiary to pay the trustee to return the property. Rather, the resulting trustee must return the property upon request: Pecore at paras. 20. [228] In sum, I reject that Balbir was ever a trustee. Rather, he held both legal and beneficial title to the No. 5 Road Property on November 1, 2010, the time of the separation. B. Fraudulent Conveyance [229] For the reasons below, I find that, but-for the February 2011 transfer, the No. 5 Road Property would have been declared a family asset on the triggering date in September 2011. [230] I have no difficulty finding that the No. 5 Road Property was ordinarily used by Rajvinder, Balbir and H.O. for a family purpose because they used it as their principal residence. Neither the claimant nor the respondents by counterclaim contest the fact that the No. 5 Road Property was used for a family purpose during Balbir and Rajvinder's marriage. Therefore, Balbir's interest in the No. 5 Road Property was a family asset pursuant to s. 58(2) of the FRA. [231] Rajvinder also submits that by the triggering date the No. 5 Road Property was being used as a rental property. This is undisputed, as by September 2011 the parties had moved out of the property. Thus, Rajvinder relies on s. 58(3)(e) of the FRA, to argue that the

No. 5 Road Property is a venture that she directly or indirectly contributed to. She cites Mujcic v. Mujcic, 2006 BCSC 1760, a case where the Court found that contributions to a mortgage on a rental property were sufficient to make it a family asset under s. 58(3). I accept this alternative argument based on my findings Balbir was a beneficial owner and that Rajvinder contributed to the mortgage and property taxes for the No. 5 Road Property before it became a rental property or venture. [232] The issue is whether Rajvinder is entitled to an interest in what would be a family asset after the February 2011 transfer. Rajvinder submits that the transfer was fraudulent and is of no effect pursuant to the FCA. Thus, she claims she is entitled to at least 50 percent of Balbir's interest in the No. 5 Road Property. [233] Sections 1 and 2 of the FCA provide as follows: 1 If made to delay, hinder or defraud creditors and others of their just and lawful remedies (a) a disposition of property, by writing or otherwise, (b) a bond, (c) a proceeding, or (d) an order is void and of no effect against a person or the person's assignee or personal representative whose rights and obligations are or might be disturbed, hindered, delayed or defrauded, despite a pretence or other matter to the contrary. 2 This Act does not apply to a disposition of property for good consideration and in good faith

lawfully transferred to a person who, at the time of the transfer, has no notice or knowledge of collusion or fraud. [234] Section 66(3) of the FRA, allows the court to remedy fraudulent conveyances: 66 (3) If the Supreme Court, on application, is satisfied that a spouse has made or intends to make a gift of property to a third person, or has transferred or intends to transfer property to a third person who is not a purchaser in good faith for value, for the purpose of defeating a claim to an interest in the property the other spouse may then or in the future have under this Part, the Supreme Court may make an order under this section to restrain the making of the gift or transfer, or vest all or a portion of the property in, or in trust for, the other spouse. [235] Pursuant to ss. 56(1), (2) of the FRA, Rajvinder's interest in the No. 5 Road Property did not vest until September 20, 2011, the date of the s. 57 declaration. By that time, Balbir had transferred away his interest in the No. 5 Road Property, so Rajvinder would not strictly be a creditor under s. 1 of the FCA. To resolve this issue, Rajvinder referred to Bailie v. Bailie, 2010 BCSC 946 [Bailie]. [236] Bailie concerned a couple that married in 1995, were separated on October 1, 2005, were granted a s. 57 declaration in 2007, and were divorced in 2008. Shortly after the separation, on October 16, 2005, the defendant

ex-husband sold the principal residence to a third party. The plaintiff ex-wife alleged that the sale was a fraudulent transfer pursuant to the FCA. In these circumstances, Justice Pearlman also noted that the plaintiff at the time of the transfer was not strictly a creditor as she had no judgment or liquidated debt against the defendant (para. 140). However, Pearlman J., citing Jack v. Parkinson, 91 B.C.L.R. (2d) 96, 1994 CanLII 2638 (C.A.), went on to find that the term "creditors or others" in s. 1 of the FCA was broad enough to encompass an "estranged spouse" (para. 143). [237] Rajvinder, as a separated spouse at the time of the impugned transfer, was in the same position as the plaintiff in Bailie; her property was transferred away before the s. 57 declaration, but after the separation. Accordingly, Rajvinder may be entitled to a remedy under the FCA if the February 2011 transfer was fraudulent. [238] In Ocean Construction Supplies Ltd. v. Creative Prosperity Capital Corp., 34 C.B.R. (3d) 241, 1995 CanLII 740 at paras. 25, 27 (B.C.S.C.) [Ocean Construction], Justice Baker stated the following on proof of a fraudulent conveyance: 25 In essence, a fraudulent conveyance is a transfer of an interest in property which is made with the intention, and which has the effect, of hindering or impairing the right of a creditor or other person to satisfy a claim against the

transferor. [ ] 27 Fraudulent intent is essentially a matter of fact to be proved in the circumstances of each particular case. Proof that the transferor intended to defeat or delay its creditors usually involves drawing inferences from the circumstances surrounding the transaction. Where some consideration has flowed from the transferee to the transferor, the court may consider the adequacy of the consideration in relation to the issue of intent, since a transfer at an undervalue raises suspicions about motive. Inadequate consideration may be considered to be a badge of fraud. [239] Rajvinder submits that the February 2011 transfer bears several badges of fraud and refers to Kim v. Kim, 2011 BCSC 1347 [Kim], to support her submission. [240] In Kim, Justice Fenlon addressed a husband's transfer of shares in property to his son for $1.00, right before the husband separated from his wife. The husband claimed that the property was his retirement savings and he simply wished his son to have it. The true value of the shares was $250,000. To effect the transfer, the husband forged a document stating his wife gave her consent. Also, prior to the transfer, the spouses had been fighting over money (paras. 39-40). Fenlon J. had "no difficulty" finding that the sale of the shares was a fraudulent conveyance (para. 40). At para. 42, Fenlon J. stated: [42] I draw an adverse inference from

the timing of the transfer, the lack of consideration, and the lack of reasonable explanation for the transfer. I find that Mr. Kim made a gift of the Nanaimo property to his son for the purpose of defeating Ms. Kim's claim to an interest in that property. Ms. Kim did not know about the transfer and did not consent to it. I find she has established both that the transfer was a fraudulent conveyance and that she is entitled to relief under s. 66(3) of the Family Relations Act. Accordingly, I find that the conveyance to [Mr. Kim's son] is void and I vest the Nanaimo property in the names of the claimant and respondent as tenants in common. [241] I find that the transfer on February 11, 2011 occurred in the context of Balbir in the throes of actively using illicit substances. All the witnesses agree on this point. I have found that Balbir did not have independent legal advice when he signed the transfer. I also find that Manjit persuaded Balbir to sign the transfer by promising to give him a bank draft for $2,000, despite the interest being worth $143,600 in 2011. I accept Rajvinder's testimony that she was not told about the transfer and only learned of it in September 2011 when she hired her first lawyer. [242] Similar to Kim, I draw an adverse inference from the timing of the transfer (a few months after the parties separated), and the nominal consideration. I do not accept the

explanation provided that the transfer was done because of Balbir's condition and had nothing to do with Rajvinder's potential claim against the No. 5 Road Property and/or because Balbir never had beneficial interest in the first place. As Jaspal testified, the Olks had been trying for some time after the separation to get Balbir to transfer his title. As Balbir was not cooperating in that, they could not get him to attend to sign the transfer. It was only when Manjit delivered the $2,000 that she and Charan were able to get him to sign the transfer. [243] Moreover, Manjit admitted that one motivation for the transfer was to protect the property from Balbir's creditors at the time. I also have not accepted that Manjit did not contemplate that Balbir's marriage to Rajvinder had broken down by February 2011. No one told the lawyer for the transfer about Balbir's marital breakdown, which ought to have been disclosed. [244] Based on the evidence I have accepted, I find that the respondents by counterclaim instigated the transfer for the purpose of defeating Rajvinder's claim to an interest in that property. Rajvinder did not know about the transfer and did not consent to it. I find she has established on a balance of probabilities both that the transfer was a fraudulent conveyance and that she is entitled to relief under s. 66(3) of the FRA. Accordingly, I find that the conveyance

from Balbir to Manjit and Charan is void. At the time of the transfer there were five joint tenants. Per the instructions given to the solicitor for the transfer, Balbir was entitled to a "1/5" interest upon severing the joint tenancy. Thus, I would have vested the 20 percent share of the No. 5 Road Property in the names of the claimant and respondent as tenants in common. C. Date of Valuation [245] Unlike the FLA, there is not a statutory provision in the FRA expressly setting out the deemed valuation date. [246] The respondents by counterclaim contend that the date of valuation should be the date of the triggering event: September 20, 2011, the date of the s. 57 declaration. [247] Rajvinder submits otherwise. She takes the position that there is no reason to depart from the rule that the date of valuation should be the date of trial. [248] This issue has been resolved by the Court of Appeal in Janis v. Janis, 2016 BCCA 364. After reviewing the caselaw, Justice Garcon wrote at para. 54: [54] In summary, the foregoing authorities support the following propositions. When considering reapportionment under FRA s. 65, the presumptive valuation date is the date of the triggering event. When considering a compensation order under s. 66, the presumptive valuation date is the date of trial. However, the court retains the discretion to determine a different valuation date for the

purpose of achieving fairness between the parties. Setting a different valuation date may be appropriate where there has been an increase or decrease in the value of a family asset between the triggering date and the date of trial. The conduct of one party as it relates to an increase or decrease in value may be a relevant consideration. [249] The spouse's interest in the property under s. 56(2) of the FRA is an undivided half interest, not an undivided half interest in the value of the property on a certain date. Thus, when a compensation order is made, the relevant date is the date of trial since that is when one spouse has their interest taken away and the other pays for it: Blackett v. Blackett, B.C.L.R. (2d) 99, 1989 CanLII 239 at 7 (C.A.). [250] I have already found that Rajvinder is entitled to compensation under s. 66(3) of the FRA. Based on the authorities, the correct date to value this compensation is the date of trial, unless it is ultimately unfair. [251] Manjit takes the position that it would cause a grave injustice to her if the Court were to use the date of the trial as the appropriate date for valuation. Manjit submits that the home was "purchased with her late husband long before the respondent arrived in the country." In addition, Manjit submits that even if the Court accepts the respondent's position that she contributed to the household expenses from 2006

- 2010, the evidence is uncontroverted that Rajvinder has not contributed anything since separation. [252] In my view, this submission ignores the analysis in Blackett. [253] Indeed, the property has increased in value since February 9, 2011, the date of the second to last valuation. However, Rajvinder has never received any of the rental income--ever. Manjit has had the full benefit of the rental income because it was fully rented between 2010 and 2020 despite the fact that Rajvinder was rightfully a legal owner starting from the triggering date in 2011. The rental income assisted Manjit to pay the mortgage and other property related expenses. [254] The parties tendered an appraisal of the No. 5 Road Property dated August 2022 valuing the property at $1,765,000. No party objected to the admissibility of this valuation. I am satisfied that the No. 5 Road Property, at the time of trial, is $1,765,000. I have determined that the family asset is 1/5 of this amount, or $353,000. [255] Rajvinder is entitled to half of this family asset, valued at $176,500. VIII. REAPPORTIONMENT OF FAMILY ASSETS [256] As I have stated, Rajvinder was not given the benefit of any of the rental income from the No. 5 Road Property. [257] The evidence was uncontroversial that tenants occupied the No. 5 Road Property at times, both during the marriage and after. However, the respondents by counterclaim did

not provide T1 General income tax returns with statements of real estate rentals for the No. 5 Road Property (or their other properties). Manjit provided her CRA tax returns, but those showed only the gross rental income received. This included rental income from the No. 5 Road Property and her other properties. The respondent submits that because of her failure to disclose the underlying documents, the Court should infer that the balance of the gross rental income as reported to CRA should be attributed to the No. 5 Road Property. I have not accepted that the rental income from 2010 through 2020 is as high as submitted by the respondent. However, I am satisfied that there was rental income of about $30,000 per year, based on Manjit's evidence about what she was collecting from tenants. [258] The rental income is relevant to the court's determination of reapportionment. [259] Under s. 65(1) of the FRA, courts may reapportion a division of property to avoid unfairness: 65(1) If the provisions for division of property between spouses under section 56, [or] Part 6 [ ] would be unfair having regard to [ ] (e) the needs of each spouse to become or remain economically independent and self sufficient, or (f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse, the Supreme Court, on

application, may order that the property [ ] be divided into shares fixed by the court. [260] As discussed, the court can also make compensation orders: FRA at s. 66. [261] In R.V. v. L.V., 2012 BCSC 1939 [R.V.], Justice Wilcock reapportioned in circumstances where the claimant has established a substantial claim for retroactive child support. He said this at para 91: [91] The claimant has established a substantial claim for retroactive child support. The respondent has refused to pay the child support he ought to have paid since separation. The claimant cannot pay the arears and the ongoing support he should be required to pay from his limited, current income. There is clearly a basis for a compensation order reapportioning the matrimonial assets to pay the award. [262] Balbir has not paid child support. Manjit made one court-ordered payment to Rajvinder for H.O. in the amount of $2,200. This payment was made many years ago. As such, Balbir has substantial arrears for child support and for s. 7 expenses. He has similarly never contributed to H.O.'s s. 7 expenses. [263] Moving forward, I accept Rajvinder's submission that it is highly unlikely that Balbir will ever fulfill his child support obligations. I have found that Rajvinder has had the financial burden of raising H.O. on her own, and has paid for all of his expenses on her own. She had to incur the additional expense of

renting a basement suite while Balbir and his family benefited from the rental income from the No. 5 Road Property between 2010 and 2020. I agree that had Rajvinder received her portion of the family asset in 2011 she would have had a chance to invest it herself. Instead, she has struggled since her separation from Balbir. She has worked often two jobs as she put herself through school. She continues to rent a small basement. This is in the face of Manjit paying for all of Balbir's living expenses. He has had the full benefit of someone taking care of him by providing him a home, food and living expenses. [264] Rajvinder's position about reapportionment is reasonable. She seeks 70 percent of Balbir's 20 percent interest in the No. 5 Road Property. Based on the above valuation, she is entitled to a 14 percent interest in the No. 5 Road property valued at $247,100. That amount is intended to deal with the child support arrears and retrospective s. 7 expenses. [265] In summary, I am following Willcock J.'s decision in R.V. and order reapportionment as set out above. [266] I have also accepted Rajvinder's submission that she be entitled to security for monies owing. Accordingly, I accept that $50,000 should be deposited into counsel's trust account to secure child support and Balbir's share of any costs award moving forward. IX. UNJUST ENRICHMENT [267] In the response to

counterclaim, it was alleged that Rajvinder, Balbir, Jaspal and Gurvinder, had all been unjustly enriched by Manjit's expenditures on the No. 5 Road Property. This was in response to Rajvinder's pleading that the respondents by counterclaim and Balbir were unjustly enriched by her contributions to the house. Rajvinder did not pursue this claim at trial. [268] I briefly address Manjit's purported claims against her fellow respondents by counterclaim and the claimant. These issues are improperly before the Court and I decline to decide them. [269] First, the unjust enrichment pleading in the response to counterclaim is incongruent. Jaspal and Gurvinder, essentially, attempted to bring a claim against themselves in their own response pleading. If Jaspal and Gurvinder agree that they were unjustly enriched by their mother, then there is no need for the Court to hear this claim as there is no dispute requiring adjudication. [270] Second, R. 4-4(5) of the Rules, requires that the respondents by counterclaim file their response to counterclaim in Form F6. This is a very structured form that requires the parties to respond to the specific allegations in the counterclaim before them, not to use the pleading to make collateral claims. Manjit did not have a counterclaim to respond to from any of her children. If she wished to sue Balbir, Jaspal, and Gurvinder, she ought to have filed a

new claim. [271] Thus, I decline to consider Manjit's proposed claims in unjust enrichment against her children. [272] Regarding Manjit's unjust enrichment claim against Rajvinder, I find that Manjit has not proven any of the requisite elements of her claim. [273] The three-step test for unjust enrichment is uncontroversial. The claimant must prove that: the defendant received a benefit, that the claimant suffered a corresponding deprivation, and that there is no juristic reason for the deprivation: Moore at para. 37. [274] I received no submissions on the amount of the benefit Manjit alleges Rajvinder, or any other party for that matter, received at her expense. She cited her payments towards the No. 5 Road Property mortgage and household expenses. However, Manjit did not submit the value of these contributions or how they should be apportioned to Rajvinder. [275] Manjit also did not prove her corresponding deprivation. Specifically, she failed to properly disclose her banking records for the material time. Consistently with the adverse inference I drew, I must assume that Manjit was using funds given to her by Balbir and Rajvinder to make at least some of the payments alleged. There is also no submission on the amount of the corresponding deprivation. Thus, Manjit has not actually proven that she suffered a loss. [276] Further, Manjit failed to prove that there was no

juristic reason for the alleged enrichment. Notably, she made no submissions on whether the alleged payments were gifts made to family. Indeed, this appears at odds with the repeated evidence from all the parties, except Rajvinder, that the parties were allowed to live at the No. 5 Road Property at Manjit's expense with no expectation that they ever pay anything. [277] On this point, Manjit merely cites Bennett v. Scanlan, 2009 BCSC 668 at para.

74. This case relates to the common law approach to dividing property between spouses when there is a breakdown of a marriage-like relationship. It is unclear how this applies to Manjit's claim in unjust enrichment against Rajvinder. [278] Also, given my finding that Rajvinder made contributions towards groceries, property taxes, and mortgage payments, I cannot find that there was no juristic reason for her alleged enrichment. Rajvinder gave ample consideration in return for living at the No. 5 Road Property. [279] In sum, I dismiss the respondent by counterclaim's submission that Rajvinder was unjustly enriched at Manjit's expense. X. CONCLUSION AND ORDERS [280] In sum and for the reasons set out above, I have made the following determinations and grant the orders accordingly: a) That the parties respective Guideline incomes for the purposes of calculating child support to be as follows: i. The claimant: $39,700; and ii. The respondent: $70,000. b) That the claimant has child support arrears as calculated in accordance with para. 200; c) That the claimant has arrears of s. 7 expenses in the amount of $13,220; d) That the claimant pay monthly child support in the amount of $373 commencing April 1, 2023 in accordance with the Court's income determination and the Guidelines; e) That the claimant contribute 40% to the cost of special or extraordinary expenses for H.O. moving

forward; f) The transfer of title on February 9, 2011 of the No. 5 Road Property constituted a fraudulent conveyance entitling the respondent to relief under s. 66(3) of the FRA and that the conveyance from Balbir to Manjit and Charan is void; g) The claimant was entitled to a "1/5" interest upon severing the joint tenancy and I would have thus vested the 20 percent share of the No. 5 Road Property in the names of the claimant and respondent as tenants in common; h) The No. 5 Road Property is valued at $1,765,000 and the family asset is thus determined to be $353,000; i) The respondent is entitled to half of this family asset valued at $176,500, to be reapportioned in accordance with paragraph 264 above such that the respondent's portion is calculated at $247,100. This reapportionment is intended to satisfy the arrears of child support and s. 7 expenses; j) The claimant deposit $50,000 in counsel's trust account for the payment of legal fees, costs, and disbursements and for the ongoing payment of child support and s. 7 expenses moving forward; and k) For as long as H.O. is a child of the marriage and is eligible to receive child support, the parties will exchange: i. Copies of their respective income tax returns for the previous year, including all attachments, no later than June 1 each year, commencing June 1, 2024; and ii. Copies of any Notice of Assessment or Reassessment

provided to them by Canada Revenue Agency, immediately upon receipt. [281] As set out earlier in these reasons, I have found that Balbir did not hold his interest in the No. 5 Road Property in trust for Manjit and Charan. [282] The parties are at liberty to apply to make further submissions if there are errors in the calculations. [283] The respondent sought liberty to reappear for the purpose of making submissions on costs. Having now received the Court's determination on the various issues, the parties are at liberty to provide further submissions in writing on the issue of costs by May 1, 2023, including the respondent's cost of obtaining the appraisal for the No. 5 Road Property and special costs. If oral submissions are required, the parties can organize a hearing. If no further submissions are sought to be made on the issue of costs, the respondent, as the successful party, is entitled to costs. "Winteringham J." [1] Ms. Kaur Sanghera testified that the proper spelling of her first name is Rajvinder. I have referred to her throughout these reasons in accordance with her testimony. [2] This reflects that the Guideline tables where revised effective November 21, 2017.