Wu v. Wu

2012 BCSC 1508 Wu v. Wu IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Wu v. Wu, 2012 BCSC 1508 Date: 20121012 Docket: E081952 Registry: Vancouver Between: Fook Michael Wu Claimant And Patsy Yin Tong Lai Wu, Hong Kong Bank Trust Co. Inc. and Wood-Lawn Trust Respondents Before: The Honourable Mr. Justice D.A. Betton Supplementary Reasons for Judgment Counsel for the Claimant: P.R. Lundrie Counsel for the Respondent, P. Wu: T. Yu Counsel for the Respondents, Hong Kong Bank Trust Co. Inc. and Wood-Lawn Trust: M.S. Kerwin Place and Date of Trial/Hearing: Vancouver, B.C. November 14-18, 21 and 22, 2011 Written Submissions: April 30, 2012 May 1, 2012 Place and Date of Judgment: Vancouver, B.C. October 12, 2012 Introduction [1] On June 25, 2012, I delivered judgment in this matter but indicated that there were several issues upon which I required further submissions from counsel. Having received those submissions, I am now in a position to provide this decision to conclude the matter. Background [2] I do not intend to repeat the facts in any detail as they were dealt with in my earlier decision. [3] The principle issue at the trial was the plaintiff's claim for an interest in property referred to as the "Marguerite house". Other issues had been pled but had not been the subject of significant focus during the trial or submissions. I did not feel that I could adequately address them without the benefit of further submissions. Those issues were: 1. Spousal Support 2. Pension Division 3. The defendant's claim for an interest in the "Richmond property" 4. Costs [4] One additional issue was raised by me as a product of my decision regarding the plaintiff's claim to the Marguerite house. Specifically, I queried with counsel whether or not the defendant's residual right to reside in that property was a family asset and subject to division. [5] The defendant, Patsy Wu, received by way of a gift from her terminally ill sister, monies exceeding $2 million. Those monies had been used for a variety of family purposes, including the acquisition of several matrimonial homes over a period of years. The last was the Marguerite house. Long before the s. 57 declaration in April 2009, the defendant, Patsy Wu, disposed of the Marguerite house by way of transfer to a trust for the benefit of the parties' daughters. [6] The claimant, Michael Wu, acquired a pension entitlement of $4,820.28 annually from his employment with the British Columbia Government during his marriage to the respondent. He is also in receipt of Canada Pension Plan benefits of $5,511.24 per annum. [7] The respondent, Patsy Wu, did not work outside the home during the time the couple resided in Canada, and there is no evidence of any acquired pension entitlement for her. [8] The claimant, Michael Wu, had an interest with the parties' daughter, Sonia, in a Richmond condominium. That condominium went into foreclosure and was sold. Approximately $54,000 is being held in trust to the benefit of either or both of the claimant and Sonia Wu in those foreclosure proceedings. There is an ongoing dispute which is before the court between the claimant and Sonia Wu in respect of those monies. [9] The claimant says that sums used to purchase the property were his funds from his bank account. He was cross-examined on and denied the proposition that he appropriated a cheque in the amount of $80,000 from the respondent's sister payable to Sonia to purchase the property. [10] The respondent says that she provided $23,000 as the deposit for the purchase of the Richmond property. The claimant was not cross-examined on that proposition. [11] Following the respondent's disposition of the Marguerite house to the trust, an arrangement was documented providing the respondent with a right to reside at the Marguerite house conditional on her paying the expenses. Both Sonia Wu and the respondent, Patsy Wu, testified that the respondent has not been paying expenses, but that her daughters have allowed her to remain in occupancy of the property in any event. [12] There is no evidence that the respondent has any independent source of income or any funds remaining from the gifts received from her sister or any other assets other than personal possessions. Analysis [13] I will, as I must, deal with the determination of what assets are family assets and their division before I address the issue of spousal support. I will conclude by addressing the issue of costs. [14] In respect of the Richmond property, there is conflicting evidence. The claimant says that he made the down payment and the payments on the property from a bank account that was funded by his earnings. The respondent says that she provided a $23,000 deposit on the property. [15] It is very clear from the evidence on the whole and in particular from the respondent, Patsy Wu, that she kept the monies that she had acquired from her sister separate from the claimant's monies. It is also clear that she used those funds to fund family expenses and from time to time to buy things including, on at least one occasion, a car for the claimant. The claimant's earnings, too, were kept in a separate account of his own. [16] There were a number of examples where the respondent in her evidence contradicted the claimant when the claimant had not been cross-examined with respect to those contradictions. The respondent's suggestion that she had provided the $23,000 deposit on the property is one of those examples. [17] The claimant was cross-examined about his having possibly used an $80,000 cheque in favour of Sonia to purchase the property, but he was not cross-examined with respect to the respondent's assertion regarding the $23,000 deposit. [18] The respondent introduced no evidence to support her assertion that the $23,000 had been taken from her account for that purpose. In many other respects on other issues, she had independent evidence to support her allegations. [19] Generally, it was my observation that the respondent was inclined to mold her evidence, particularly in respect of the description of the state of their relationship, in ways that would support her allegations. That tendency causes me to question her credibility generally and specifically on this issue. In these particular circumstances, I am also concerned about the lack of cross-examination of the claimant on that particular point. [20] It is clear that the property was an investment and was not used for a family purpose. [21] In all of the circumstances, I am not prepared to conclude that the property or the funds that remain following the foreclosure are a family asset subject to division, if indeed the plaintiff is found to have an entitlement to some or all of those funds. [22] I turn next to the respondent's right to reside in the Marguerite house. The acknowledgement and consent which gave her the right reads: I, [Tanya], a beneficiary of the Trust settled the 22nd day of October, 1996, hereby acknowledge and consent to my mother, [Patsy], occupying the lands and premises located at 6666 Marguerite Street, Vancouver, British Columbia (the "Property"), an asset of the Trust, rent free for as long as she wishes to live there, provided that my said mother continues to pay personally all expenses relating to the Property. The evidence is that the respondent, sometime in 2004, was no longer able to pay the expenses relating to the property. Since that time, Sonia has apparently paid the expenses but the respondent has been allowed to remain. [23] On that evidence, the only conclusion I can reach is that the contractual right to reside ended when the respondent ceased making the payments. I have no evidence that she has any legal entitlement or that there is any obligation on the part of the trust to allow her to continue to reside on the property. [24] In those circumstances, there is no asset as at the date of the triggering event capable of division. [25] However critical the claimant or others may be inclined to be of the respondent for her disposition of the property that occurred long before the triggering event (approximately 13 years), it does not give rise to any basis to compensate the claimant for the "loss" that he may have suffered as a result. [26] The pensions to which the claimant is entitled are, by virtue of the provisions of the Family Relations Act, R.S.B.C. 1996, c. 128, a family asset. I have considered whether some reapportionment would be appropriate on the basis of the respondent, Patsy Wu's actions during the course of the marriage with respect of the principle asset, the Marguerite house. I have not been referred to any authorities in that respect, and I see no basis in this case to treat the division of pensions differently because of that historical conduct. Accordingly, it is my view that those pensions should be split equally. [27] I turn next to the issue of spousal support. The respondent has put forward an argument and provided calculations suggesting that spousal support should be $949 per month. The respondent's position is that spousal support should be paid until such time as the pensions are divided. The pensions total $10,331.52 per annum or $5,165.76 if divided equally. On a monthly basis that equals $430.48. In the circumstances of this case, I am ordering that the claimant pay spousal support in that amount until such time as the pensions are divided and that the spousal support order will then terminate. [28] The final issue is costs. There can be no doubt that the respondent, Patsy Wu, has been substantially successful in this trial. It is always difficult when the financial position of parties is limited, but I see no basis to depart from the ordinary rule that costs should follow the event. Accordingly, the respondent, Patsy Wu, will have her costs. I am not, however, inclined to fix those costs given the amount claimed and the indication from the claimant that he seeks to tax the bill of costs. "D.A. Betton, J." The Honourable Mr. Justice Betton