S.L.M.W. v. M.R.G.W.

2016 BCSC 919 S.L.M.W. v. M.R.G.W.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: S.L.M.W. v. M.R.G.W., 2016 BCSC 919 Date: 20160524 Docket: E133036 Registry: Vancouver Between: S.L.M.W. Claimant And M.R.G.W. Respondent Before: The Honourable Mr. Justice Steeves Reasons for Judgment Counsel for the Claimant: Penny Paul Counsel for the Respondent: Steven N. Mansfield Place and Date of Hearing: Vancouver, B.C. May 12, 2016 Place and Date of Judgment: Vancouver, B.C. May 24, 2016 A. INTRODUCTION [1] A previous judgment dated February 19, 2016 between these parties (2016 BCSC 272) dealt with a number of issues including the date their marriage-like relationship commenced, division of family property under the Family Law Act, S.B.C. 2011, c. 24 ("FLA") (some of which was excluded property), a family trust and child support. I issued a divorce decree in a previous order and the parties have shared parenting time and guardianship with their young daughter. [2] In the previous judgment I requested further submissions on some issues and the parties also requested consideration of some implementation issues. To their credit they have resolved all but one issue. [3] That issue relates to one property, Panorama Ridge, in Whistler, British Columbia. The respondent is currently on title as sole owner but I decided in the February 2016 judgment that it is family property. At trial it was valued at $1,280,000 as a result of

an appraisal in November 2015. In the February 2016 judgment I considered who should be the owner and said this: [84] To a considerable extent the parties' dispute over this issue relates to what each says they contributed to Panorama Ridge. That, however, is not the approach to be taken under the FLA. A related matter is that there is no evidence that either party has the funds to buy-out the other party. [85] In light of the impasse between the parties the logical and usual next step is an order for sale of Panorama Ridge with the net proceeds distributed between the parties. If the parties are unable to resolve the issue of the ownership of Panorama Ridge, either party may apply for an order for sale. I will hear that application. [4] There is now evidence that each party has the financial capacity to buy out the other party's interest in Panorama Ridge. The original impasse continues to the extent that each party now says he or she should buy out the other. [5] The respondent lives in another property, Alpine Crescent, also in Whistler. He purchased the property before the marriage-like relationship commenced and he rents out part of it. In the February 2016 judgment I found that the Alpine Crescent property was excluded property under the FLA but the claimant was entitled to her share of the increased value of that property from the date the relationship started until the

date of trial. Counsel advise that has been paid or will be. I also found in my previous judgment that a significant part of the respondent's income has been and continues to be from rental income from the two properties. [6] At trial the claimant was living with her sister in Whistler. She has a consulting business and much of that work is in Vancouver, away from the community where the two properties are located. The parties share parenting time with their daughter who is well-settled in Whistler where she attends school and has activities such as dance. [7] A complicating factor is that the value of Panorama Ridge includes a rental business as well as the value of the land and building. It provided significant financial support to the family before separation and a significant part of the respondent's current income is from it (he also paid the expenses). Until my judgment in February 2016 the claimant was not receiving any of the rental income (or paying any expenses). She has now received her share of past income or payment is imminent and there is a system in place for her to receive her share of future income (and pay expenses). [8] Panorama Ridge is currently rented out to a tenant on a one-year lease, from March 2016 to March 2017 for $8,000 per month. This contract was arranged by the respondent after the February 2016 judgment. At trial the evidence was that the

property had been subject to term contracts previously but it was rented out on a month to month basis. The claimant apparently did not know about the 2016 - 2017 contract until the hearing of these post-judgment issues. [9] As canvassed with the parties, there are three possible results here. The respondent can buy out the interest of the claimant and become the sole owner or the claimant can buy out the interest of the respondent and become sole owner. Again, each party has demonstrated that he or she has the financial capacity to buy out the other. The third possibility is that the property could be sold with the net proceeds divided equally between the parties. [10] Each of these options has their advantages and disadvantages. The respondent relies on the rental income from Panorama Ridge for a significant part of his income and he does not want to lose that income. For her part the claimant lives with her sister in Whistler and she would like to have a stable home for her and her daughter. The claimant works as a consultant primarily in Vancouver, away from Whistler, and she travels between there and Whistler for work and to have her equal time with the daughter. [11] Selling Panorama Ridge and dividing the proceeds equally has the attraction of not appearing to give the advantage to either party. However, the business would be lost or at least it would be disrupted while

another business was set up. As well, the claimant would have to find accommodation other than Panorama Ridge. This is achievable financially but the daughter has a history and an attachment to Panorama Ridge. The claimant also has an attachment having made significant contributions in time and some money to the negotiations to purchase Panorama Ridge, its renovation, its advertising and its management during the relationship. [12] As usual in family law there is no resolution of this issue that will please everyone. Taken overall, I conclude that the claimant should be permitted to purchase the respondent's interest in Panorama Ridge and thereby become sole owner. She does not have a permanent residence in Whistler, although she could have made those arrangements. As well, there is fairness in the respondent keeping Alpine Crescent and the claimant having ownership of Panorama Ridge, a place that is familiar to her and the daughter. [13] The particulars of the process for the claimant to be sole owner of Panorama Ridge will be as follows: (a) Valuation of Panorama Ridge will be as of the date of trial, $1,280,000. (b) Within two weeks of the date of this judgment the claimant will deliver to counsel for the respondent a statement of the financial details of the transfer of ownership of Panorama Ridge to the claimant. The primary purpose of this statement is for the claimant to

demonstrate the transfer of the necessary funds to the respondent, the date of that transfer and the mechanism of transfer. The transfer will be complete before July 1, 2016, or at least the funds will be deposited in trust before that date. (c) The claimant is entitled to be registered on title as sole owner of Panorama Ridge effective July 1, 2016. The respondent will provide reasonable cooperation for the transfer of the property as well as transfer of matters such as hydro, insurance, keys and taxes. (d) Possession will be July 1, 2016, unless otherwise agreed. (e) Panorama Ridge as a business is currently subject to a one-year lease, to expire in February 2017. That is for the whole building and, therefore, it will not be available for the claimant to live in until the lease expires. If necessary, the respondent will provide reasonable cooperation for the transfer of the lease to the claimant. (f) The claimant may rent out all or part of Panorama Ridge after February 28, 2017, subject to notice and other provisions of the rental contract. She may choose to use the entire property for a residence or rent out part of it and live in another part of it, with consequential changes to rental income. (g) To compensate the respondent for the loss of business income the claimant will pay the respondent a one-time payment of $10,000 within 30 days of the date of this judgment. She

will also pay to the respondent one-half of any net income received from Panorama Ridge on a quarterly basis, beginning with the period July 1, 2016 to September 30, 2016. This will continue for a two-year period and payments will cease after payment for the quarter ending June 30, 2018. (h) Net income is rental income (or other business income derived from Panorama Ridge) minus reasonable expenses. With each payment to the respondent the claimant will provide a written accounting of the income and expenses for Panorama Ridge (not necessarily prepared by an accountant) for the quarter. (i) I will hear and decide any disputes over the transfer of Panorama Ridge to the sole ownership of the claimant. [14] Neither party is entitled to costs against the other for the post-judgment hearing and preparation for it. "Steeves, J."