Sea v. He

2022 BCSC 2169 Sea v. He

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sea v. He, 2022 BCSC 2169 Date: 20221213 Docket: E058805 Registry: New Westminster Between: David Tai-Jiun Sea Claimant And: Ronghui He also known as Rong Hui He, Rong-Hui He, Randie He and/or Randy He Respondent Before: The Honourable Madam Justice Adair Reasons for Judgment Counsel for the Claimant: L. Zhao A. Wormeli Counsel for the Respondent: C. Ke F. Lamer Place and Date of Trial: Vancouver, B.C. August 15-19, 22-26, 29-31, September 1-2, 6-9, 12-16, 20, 22, October 3-4, 2022 Place and Date of Judgment: New Westminster, B.C. December 13, 2022 1. Introduction.. 2 2. Factual background. 3 3. Comments on the witnesses. 15 4. Property division.. 21 (a) The framework under the Family Law Act 21 (b) Mr. Sea's excluded property claims. 24 (c) Ms. He's excluded property claims. 28 (d) Mr. Sea's interest in Diversified. 29 (e) Real property. 40 (f) Bank and financial institution accounts. 41 (g) Vehicles. 47 (h) RRSPs and pensions. 48 (i) Artwork, jewelry, household contents and miscellaneous assets. 48 (j) Family debt 51 (k) Division and allocation of family property and family debt 51 5. Parenting of DSJ. 61 6. Support - determination of Guidelines incomes. 68 (a) Basic principles. 69 (b) Ms. He's Guidelines income. 70 (c) Mr. Sea's Guidelines income. 73 7. Child support 77 8. Spousal support 80 9. Retroactive child and spousal

support 87 10. Divorce. 94 11. Summary and disposition.. 94 1. Introduction [1] The claimant, David Sea, and the respondent, Randy He, were married on May 1, 2006. They have one child together, a son, who I will refer to as "DSJ." They separated on June 30, 2019. Both Mr. Sea and Ms. He, and their counsel, referred to this proceeding as "a high-conflict family file." [2] The major issues at trial concerned property division, parenting of DSJ, and child and spousal support (both ongoing and retroactive).

2. Factual background [3] Before turning to the narrative, I have some brief comments about the presentation of the evidence. [4] At the trial, I heard evidence from seven non-expert witnesses and three expert witnesses. I will comment on the non-expert witnesses in the next section, where I also discuss credibility. Both of the parties gave evidence. Mr. Sea was cross-examined at length, over about five days. Ms. He's evidence-in-chief occupied about five days, and she was cross-examined for about four and a half days. [5] In addition to the oral evidence, counsel tendered a total of four "Joint Statements of Fact" or agreed statements of facts. These were admitted into evidence at various stages in the trial, and were marked as Exhibits 1, 3, 18 and 24. Exhibit 1 also contained an agreed chronology. The relevance of some of the details, particularly in Exhibit 18, remained obscure. However, having the Joint Statements of Fact eliminated the need to call evidence on a number of points, and also summarized facts (for example, concerning the parties' reported income, and about family property, including real property and bank accounts, in issue) in a convenient way. In describing the Factual Background, I have relied on both the Joint Statements of Fact and the oral evidence. [6] Mr. Sea was born in June 1950, and he is now 72. Ms. He was born in June 1973, and she is now 49.

Both are originally from China. [7] For many years, Mr. Sea has been one of the owners of a local business, Diversified Products of Canada Ltd. Diversified was incorporated in 1990, and is currently based in Surrey, B.C. Since incorporation, it has carried on business importing and selling door hardware (for example, hinges) to customers involved in the construction industry, and, more recently, through big-box home improvement retailers. Most of the products imported and sold by Diversified are manufactured in China. Mr. Sea owns 50% of Diversified's shares. His first wife, Christina Chao, owns the other 50% of Diversified's shares. [8] Mr. Sea and Ms. Chao had two children together, Ginnie Sea and Gina Sea. Mr. Sea and Ms. Chao were divorced in February 2006 after being separated for a number of years. After separation, their daughters lived primarily with Ms. Chao, and Mr. Sea and Ms. Chao worked out an arrangement to divide family assets and also provide for the daughters' financial support. After their divorce, Mr. Sea and Ms. Chao continued to work together at Diversified. However, Mr. Sea did not spend a great deal of time at Diversified's physical offices. Rather, he spent about four or five months out of the year at what was described at trial as a Summer Cottage at Nanoose Bay, B.C. (near Nanaimo) (the "Summer Cottage"). Mr. Sea was semi-retired when he met Ms.

He. [9] Ms. He grew up in Shenzhen, China. Her mother, Xiang Sheng Liu, and her father, Tian Fu He, were both teachers. Ms. He was an only child. Ms. He went to Shenzhen University, and majored in Chinese Literature. Ms. He married for the first time in the late 1990s. Her first husband was a student, and as of the late 1990s, they were living in Canada. Ms. He's oldest child, a son who I will refer to as "HW," was born in Canada in January 1997. Her second child, also a son and who I will refer to as "EW," was born in the United States in July 2000. [10] Ms. He's first marriage did not last. In the early 2000s, Ms. He was living in B.C. with HW. EW was living in Shenzhen with Ms. He's parents. HW and EW's father appears not to have played any part in either their support or their upbringing. Ms. He decided that she and HW should return to Shenzhen, which they did. Ms. He explained that, between 2002 and 2004, she was working as a secretary at a real estate company in Shenzhen. Ms. He and her two sons were living with Ms. He's parents. [11] According to Ms. He, she first met Mr. Sea in the fall of 2004, when she came to B.C. for a short holiday. As Ms. He recalled, she told Mr. Sea that she was divorced with two sons. As she recalled, Mr. Sea told her that he had been separated for three years, but that he and his estranged wife (Ms. Chao) were still living in the same house.

He also told her that he had two daughters. Ms. He recalled that Mr. Sea was driving an expensive car, a Maserati. As Ms. He recalled, Mr. Sea told her that he owned one-half of a company and was semi-retired. As Ms. He recalled, Mr. Sea took her to the Summer Cottage in Nanoose Bay, and she stayed there for a week. As she recalled, when she returned to China, Mr. Sea contacted her almost every day. Much of this had not been put to Mr. Sea on his cross-examination. [12] According to both Ms. He and her mother, Ms. Liu, Mr. Sea came to China for the spring festival in 2005. He spent 10 days there. [13] According to Ms. He and Ms. Liu, Mr. Sea had discussions at that time with Ms. He's parents about his intentions towards Ms. He. According to Ms. He, Mr. Sea talked to her parents about Ms. He coming to the Vancouver area to live with him. According to Ms. He, because she was the mother of two boys, her parents were concerned. According to Ms. He, Mr. Sea told her parents that he was willing to take care of her and her sons. According to Ms. He, she and Mr. Sea also discussed matters directly. According to Ms. He, she told Mr. Sea that she needed both her sons to come to Canada for their education. According to Ms. He, Mr. Sea told her not to worry, and that, since he wanted to be with her, he would also take care of her children. Ms. He recalled Mr. Sea saying that he would

support her and help her. She recalled Mr. Sea saying that he would provide financial support for her sons so that they could attend private schools, just as he was doing for his daughters, and that he would also pay for her sons to attend university. [14] Ms. Liu's evidence concerning her and her husband's discussions with Mr. Sea at the time was to the same effect. She recalled Mr. Sea telling her that it was no problem for him to support Ms. He's sons, and that he was adamant that he would treat Ms. He's sons well. [15] None of this was put to Mr. Sea during his cross-examination. [16] Ms. He then returned to B.C. with Mr. Sea. The parties agree that they began co-habiting in March 2005. As Ms. He recalled, she and Mr. Sea were living in an apartment in a high rise near the Joyce Skytrain station. [17] According to Ms. He, in June 2005, she learned that she was pregnant. According to Ms. He, she was very surprised at her pregnancy and was not prepared for it. According to Ms. He, her surprise was based at least in part on things that Mr. Sea had told her. However, Ms. He's version of events had never been put to Mr. Sea during his cross-examination. [18] During her evidence-in-chief, Ms. He also described discussions she claimed she had with Mr. Sea to the effect that Mr. Sea was encouraging her to have an abortion if the sex of the fetus was female. The content of these

discussions was not put to Mr. Sea during cross-examination either. Ms. He testified that very early in her pregnancy, she and Mr. Sea went to the hospital so that she could have an ultrasound for the purpose of determining the sex of the baby. According to Ms. He, even though the doctor told them it was too early to determine the sex of the baby (something she said she remembered clearly), Mr. Sea was able to determine from the ultrasound that the baby was a boy. There was then no further talk of abortion. These matters were also not put to Mr. Sea on cross-examination. [19] According to Ms. He, Mr. Sea was very happy that she was pregnant with a boy. According to Ms. He, he told her not to worry about the future and that he would be responsible for everything. According to Ms. He, Mr. Sea told her that he would provide a stable environment for her to have the baby and also take care of her children. Again, these matters were not put to Mr. Sea on cross-examination. [20] In early January 2006, Mr. Sea and Ms. He purchased a two-bedroom condominium on Central Boulevard in Burnaby (I will refer to this property as "Central"). Mr. Sea provided the funds to purchase Central, and there was no mortgage. The property was registered in Ms. He's name only. According to Ms. He, Central was put in her name because Mr. Sea intended it to be a gift to her. However, Mr. Sea denies that he

made a gift of either the purchase funds ($465,000) or Central to Ms. He. [21] In any event, Central then became the parties' family home, until a new home was purchased in 2017. [22] According to Mr. Sea, when he and Ms. Chao separated, they agreed on property division and child support for their daughters. Mr. Sea recalled that, among other things, he retained the Summer Cottage, and also about $1.2 million or $1.3 million in cash. Mr. Sea and Ms. Chao were divorced by order pronounced January 7, 2006. Their divorce became final 31 days thereafter. [23] DSJ was born in February 2006. Mr. Sea and Ms. He were married in May 2006. [24] Ms. He explained that early in the parties' relationship, and for about three or four months, she attended English classes designed for new immigrants. However, each year, Mr. Sea spent from about May to September at the Summer Cottage. According to Ms. He, Mr. Sea wanted her and DSJ to come with him, which they did. As a result, according to Ms. He, she had to give up her English classes. As of trial, she had not returned. [25] After Mr. Sea and Ms. He married, Ms. He's sons HW and EW continued to live in Shenzhen with Ms. He's parents. According to Ms. He, Mr. Sea told her that he wanted her to concentrate on looking after DSJ, and Central was too small to accommodate two more children. [26] In January 2007, Mr. Sea purchased two condominium

units on Mainland Street in Vancouver. I will refer to these as "Mainland 2109" and "Mainland 1902." Title to both condos was registered in Mr. Sea's name only, although, according to Ms. He, she and Mr. Sea together looked at the condos before they were purchased. According to Mr. Sea, to purchase Mainland 2109, he used some of the money he had received on the property division with Ms. Chao, money that he had always kept in accounts in his name only. Mr. Sea asserts that the money used to purchase Mainland 2109 was his excluded property. [27] Mr. Sea sold Mainland 1902 in May 2007. However, he has retained Mainland 2109. Ginnie Sea and Gina Sea lived there while they were going to university locally. While they were living there, Mr. Sea paid all of the expenses associated with Mainland 2109. Neither of his daughters paid any rent. When Mr. Sea's daughters moved out, the condo was then rented and produced rental income. This income was deposited to a joint account at the Royal Bank ("RBC"). [28] In 2016, Mr. Sea purchased another condominium property ("Seymour"), title to which was registered in his name only. Seymour was also rented, and the rental income was deposited to a joint RBC account. [29] By spring of 2008, HW had moved to Canada, and he was living with Mr. Sea, Ms. He and DSJ at Central. Later that year, Ms. He's parents also immigrated to Canada and brought EW

with them. According to Ms. He, she had spoken to her parents about coming to Canada and helping her with childcare. This was because Mr. Sea was away at the Summer Cottage for months at a time and she was left to care for DSJ on her own. Mr. Sea does not dispute this. [30] However, Central was too small to accommodate everyone. According to Ms. He, Mr. Sea told her to find a place for her parents, HW and EW to live, which she did. The four of them then moved to a rented apartment. The parties agree that Ms. He's parents "practically raised" HW and EW in a residence separate from Mr. Sea and Ms. He. [31] According to Ms. He, she paid the rent on this apartment for a few months, but then could no longer afford it, and her parents had to take over paying rent, which they did. [32] The parties agree that between December 2006 and May 2019, Diversified paid a company wholly owned by Ms. He, E&H Consultants Ltd. ("E&H"), the sum of $4,000 per month. The reasons for these payments are not entirely clear. In his evidence, Mr. Sea implied that the payments were made as part of a scheme to sponsor the immigration of Ms. He's parents to Canada, and to give the appearance that E&H was carrying on a real business. However, on the evidence, Mr. Sea also used E&H as a vehicle to make substantial investments in several real estate projects, for example. [33] Ms. He's evidence was to the

effect that the $4,000 per month payments from Diversified to E&H were made to her essentially as a salary to maintain the household, pay household expenses and look after DSJ. However, according to Ms. He, the after-tax amount was not enough to pay all of the expenses Mr. Sea expected her to pay. [34] One of the solutions Ms. He adopted was to take out a line of credit (the "TD LOC") secured against Central. Although at one point in his evidence at trial, Mr. Sea suggested that Ms. He did this without his knowledge, it is clear that Mr. Sea was involved and signed documents (in his capacity as Ms. He's spouse) when the TD LOC was being arranged in January 2007. $390,000 was available to Ms. He under the TD LOC. I find that Ms. He drew down the whole of the funds available under the line of credit, and then used this money to finance living expenses, including expenses associated with HW and EW. [35] The parties agree that, prior to separation, Ms. He was DSJ's primary parent, and that Mr. Sea was away from home for four to five months of the year. [36] According to Ms. He, when DSJ was 3, she enrolled him in a Montessori day care at a cost of between $300 and $500 per month. Ms. He explained that, when DSJ started pre-school, the expenses associated with him also increased, as she enrolled him in a variety of activities. By 2012, when DSJ was in Grade 1, he was doing reading

classes at Kumon (which he began when he was in pre-school), skating and figure skating, and dancing. According to Ms. He, when she raised the costs of these activities with Mr. Sea, he would become angry. Ms. He was then left to find a way to pay for the activities in which she had enrolled DSJ. I conclude that Ms. He mostly used credit available to her, either through the TD LOC or through credit cards, and also money resulting from investments made through her HSBC stock trading accounts (which I discuss further below), to finance expenses (which became substantial) connected with DSJ's activities, as well as expenses associated with her support of HW and EW. [37] There is no indication that, once DSJ began attending day care or (at the very least) pre-school, his needs required Ms. He to be unemployed. However, Ms. He never pursued either finding paid employment or upgrading her skills (for example, her English language skills) to improve her employability. I conclude that she preferred to spend her time in other ways, centred around DSJ's activities, and she found the financial means to do that. [38] In 2012, Ms. He's parents purchased a home on Wilson Avenue in Burnaby ("Wilson"). The parties agree that the down payment was no more than $157,500, and that Ms. He's parents financed the balance of the purchase price by way of a mortgage. Mr. Sea asserts that he was the

person who funded the down payment (although in his evidence at trial, and despite what was agreed in Exhibit 1, he claimed the amount was about $250,000). In Mr. Sea's amended notice of family claim, he has advanced a claim to an interest in Wilson on the grounds of either a resulting trust, a constructive trust or unjust enrichment, and a certificate of pending litigation was filed against Wilson on that basis. Ms. He's parents are not parties to this proceeding. [39] However, in closing argument, no submissions were made on behalf of Mr. Sea with respect to his claim concerning Wilson, and the draft final order provided by his counsel, Ms. Zhao, did not contain any terms about Wilson. [40] At trial, Mr. Sea testified that Ms. He had asked him for money - the down payment - to help her parents buy Wilson. He said that he provided the money because it was part of his personality to take care of family members, and that he was not reluctant to give the money to Ms. He's parents. He said he never asked for a promissory note, and that he could not expect the money to be repaid. [41] I conclude that when the money was advanced, Mr. Sea intended to make a gift. The evidence does not support his claim to an interest in Wilson, especially not in the absence of submissions. I find that Mr. Sea has failed to establish any claim to Wilson, and his claim must be dismissed. I so order. In

that light, I will not discuss Wilson any further. [42] In 2013, Mr. Sea experienced some health problems. He explained that he has a heart condition, and, in late 2013, he had multiple surgeries. According to Mr. Sea, for the first two weeks after his discharge home from hospital, Ms. He looked after him. However, after that, she was again focussed on getting DSJ to all of his many activities, and when Mr. Sea talked to her about getting him help, she refused. According to Mr. Sea, he was left alone at home during the day because Ms. He had made arrangements to have a full schedule for DSJ. According to Mr. Sea, he expressed his unhappiness to Ms. He about DSJ being involved in so many activities. However, Ms. He ignored both him and DSJ's own feelings. [43] The parties agree that, in early 2014, Mr. Sea provided $370,000 to Ms. He to pay off the TD LOC, and that, in March 2014, Ms. He did so. The parties also agree that, thereafter, Ms. He again drew down on the TD LOC and, as of March 2018, the amount owing (and secured against Central) was approximately $386,000. [44] DSJ's activities outside school continued to consume much of Ms. He's time and attention, as well as DSJ's. Ms. He made no effort to find paid work or to upgrade her skills, such as her English language skills. [45] In 2013, when DSJ was in Grade 2, he was attending classes in figure skating, jazz dancing and

ballet, in addition to having reading tutorials with Kumon. According to Ms. He, DSJ had one to two jazz dancing classes per week, two ballet classes per week and two figure skating sessions per week. Figure skating, dancing and Kumon tutorials continued when DSJ was in Grade 3 and Grade 4. In 2016, when DSJ was in Grade 5, he gave up figure skating and dancing, and started ice hockey. Ms. He hired a private coach for him, to give him extra lessons in holding a hockey stick. DSJ had also started fencing and guitar lessons. There were times when Ms. He asked for DSJ to be excused early from school so that he could attend an activity. Based on the evidence, DSJ's time outside of school was heavily scheduled. [46] In addition to the time commitment, costs for these activities were also significant. According to Ms. He, the expenses associated with figure skating, including coaching, physical training and costumes for competitions, were between $3,000 and $4,000 per month. As Ms. He recalled, the skates could cost over $1,000. Once DSJ gave up figure skating and started hockey, the expenses remained significant. Ms. He estimated the costs at between $30,000 and $40,000 annually. According to Ms. He, the expenses associated with DSJ's participation in fencing were about $25,000 per year, and increased when DSJ began attending competitions. [47] According to Ms. He, she paid for all

of these expenses herself. I conclude that she mostly used the money available to her under the TD LOC. [48] Mr. Sea does not dispute Ms. He's evidence concerning how DSJ was parented at this time. Indeed, during this period, Mr. Sea was largely absent from DSJ's life in any meaningful way. To the extent Mr. Sea expressed a view or criticism about Ms. He's parenting, it was infrequent. According to Mr. Sea, when DSJ and Ms. He came home after an activity, they would argue. However, Ms. He was left to do as she wished with her and DSJ's time. [49] In June 2017, the parties purchased adjoining condo units ("3601" and "3602," and collectively "Beresford") in Burnaby. The purchases were completed without the need for mortgage financing. The family then moved from Central to Beresford. Both Mr. Sea and Ms. He were registered owners of each of 3601 and 3602. Mr. Sea was not happy about this, because it meant that he could not use either property as security to borrow money for investments unless he obtained Ms. He's consent. However, she was not willing to agree. This was an additional source of friction between Mr. Sea and Ms. He, whose relationship for some time had been strained and distant. The incompatibility and antagonism of DSJ's parents toward one another were also having a negative effect on DSJ. [50] In February 2018, Ms. He sold Central. At trial, Mr. Sea testified that

he had no idea Ms. He was planning on selling Central, and he found out about it from a neighbour. According to Mr. Sea, when he asked Ms. He about her plans, she told him it was none of his business, so he did not pursue it further. According to Mr. Sea, after Central was sold, Ms. He did not tell him what the selling price was and he did not ask her. According to Mr. Sea, he was very surprised that Ms. He sold Central, and he would have kept it as an income-producing rental property. [51] The parties agree on a number of facts concerning the sale of Central, and how Ms. He dealt with the sale proceeds. They agree: ● the sale price was $1,150,000; ● the amount then owing on the TD LOC, approximately $386,000, was paid from the sale proceeds and the security discharged; ● from the net sale proceeds of about $727,500, $67,000 was used to pay personal income tax owing by Mr. Sea; ● Ms. He then used a portion of the balance of the net sale proceeds, plus $60,000 from the parties' mutual funds, to purchase a leasehold property ("University High") in her name for approximately $433,500 (including property purchase tax). ● No mortgage financing was required for Ms. He's purchase of University High. However, in December 2018, Ms. He obtained a new line of credit, from Sharons Credit Union (the "Sharon LOC"), which was secured against University High. ● Ms. He earned rental income from

University High. [52] Ms. He sold University High in February 2020 for $404,000. The amount owing on the Sharon LOC, about $178,000, was paid out from the gross sale proceeds, and Ms. He received net sale proceeds of $205,395. [53] By 2019, Mr. Sea and Ms. He were seriously estranged. DSJ was suffering from the effects of the escalating conflict between his parents, and he was acting out in very troubling ways. Mr. Sea and Ms. He agree that they formally separated on June 30, 2019. However, they continued to live at Beresford, under the same roof. Matters came to a head in late November 2019, when the police were called to the family home. [54] Mr. Sea filed his notice of family claim on November 20, 2019. An amended notice of family claim was filed January 20, 2020. Ms. He filed an amended response to family claim on February 5, 2020, and filed an amended counterclaim on April 1, 2020. [55] The door that connected 3601 and 3602 was permanently locked by order pronounced May 31, 2021 (the "May Order"), which also granted exclusive occupancy of 3602 to Mr. Sea and exclusive occupancy of 3601 to Ms. He. In addition, the May Order provided that the parties were to make arrangements through counsel to remove their personal belongings to their respective units, and that the removal was also to be supervised. It provided further: 5. If there is any dispute regarding the nature of certain property of significant value, that property shall not be removed by either party. . . .

7. The parties shall create a list of the valuables with description(s) and corresponding photographs; such items on the list shall not be removed by anybody unless pursuant to Court Order(s) or consent by both parties.

8. If the parties are unable to agree to where to store the valuables at the Family Home, the parties shall rent a storage unit to store the valuables and counsel for Mr. Sea shall keep all key(s) to the storage unit. . . . . . .

12. Unless the Court orders otherwise, Mr. Sea shall continue to be responsible for all expenses and/or costs of the Family Home located at [3601 and 3602]. [56] There is no evidence the court ordered "otherwise" concerning payment of the expenses and costs of Beresford. I find therefore that Mr. Sea paid all of those expenses and costs, without contribution from Ms. He. [57] Mr. Sea and DSJ have continued to live in 3602. Ms. He has continued to live in 3601. [58] After November 2019, DSJ chose to have little contact with Ms. He. However, because they were still living in the same building, they saw one another occasionally.

3. Comments on the witnesses [59] At trial, in addition to three experts, I heard evidence from seven witnesses. Mr. Sea, Gina Sea and Steve Aasen were called as witnesses in Mr. Sea's case. Ms. He, Ms. Liu, EW and HW were called as witnesses in Ms. He's case. As part of Ms. He's case, and despite the length of Mr. Sea's cross-examination, questions and answers from Mr. Sea's examination for discovery were also read into evidence. Mr. Sea, Ms. He and Ms. Liu all gave their evidence through an interpreter qualified to interpret English to Mandarin and Mandarin to English. [60] Mr. Aasen is a long-time Diversified employee. He testified that he started working there in February 2001 and said that Diversified has been his only employer. He spoke very highly of the company and its owners. Mr. Aasen provides basic bookkeeping, records and accounting support to Diversified's owners and the business. He described how Diversified paid its accounts payable, and who had cheque-signing authority. He described how Mr. Sea would come into Diversified twice a month to sign all the cheques, including for payroll. He also described what he knew about Diversified's banking practices, and some of the pandemic-related issues and challenges that Diversified has experienced. At trial, he reviewed and explained (to the extent he was able) some of the general ledger entries for J Spa Studio Corp. ("J

Spa") and E&H. He had no personal knowledge about what these payments were for. (I note that the Joint Statements of Fact Exhibit 1 and Exhibit 3 contained facts about Diversified's payments to J Spa and E&H.) [61] I found Mr. Aasen generally to be a credible and reliable witness. Where Mr. Sea's evidence conflicts with Mr. Aasen's evidence, I give greater weigh to Mr. Aasen's evidence. [62] Gina Sea is the younger of Mr. Sea's daughters. She has a Master's degree in Economics from the University of Calgary, and is currently working as an account executive at a bank. Her husband, Chad Nelson, is trained as an electrician, and is now working with Mr. Sea at Diversified with the idea that he will take over management of the business when Mr. Sea fully retires. Gina Sea did not hesitate to confirm Mr. Sea's evidence that he had been very generous in terms of financial support and gifts to both his daughters, and to provide details. For example, she confirmed that Mr. Sea had given her and Mr. Nelson $580,000 to make a real estate investment in Calgary. She explained that she and Mr. Nelson used the money to buy a house that they then renovated. According to Ms. Sea, the house was sold in 2021, and she and Mr. Nelson then purchased a home in Maple Ridge. She explained the money for the purchase came from her mother, some of the net proceeds from the sale of the Calgary property,

some (possibly) from Mr. Nelson's family and a substantial mortgage. Ms. Sea denied that Mr. Sea had provided funds for this purchase. [63] In submissions, Ms. Ke argued that Ms. Sea's evidence that Mr. Sea did not provide funds to purchase the Maple Ridge property was not believable, and called Ms. Sea's credibility into question. I do not agree. Rather, in my view, Ms. Sea's explanation was reasonable in the context of her evidence as a whole and the circumstances she described. I found Ms. Sea to be a credible witness. [64] HW had very little relevant evidence to give, and it was not clear why he had been called to testify. It was obvious that HW's memories of childhood interactions with Mr. Sea are still unhappy for him. However, I am unable to place much weight on them, and they have little relevance to the issues I am being asked to decide. [65] Ms. Liu, Ms. He's mother, demonstrated a remarkable memory of conversations that occurred in 2005. However, she was clearly biased in favour of her daughter, and against Mr. Sea. In addition, much of what she described had not been put to Mr. Sea on cross-examination. I am unable to place much weight on her evidence with respect to contested matters. However, I accept her evidence concerning the purchase and financing of Wilson. Indeed, there was no reliable evidence to contradict it. [66] EW is connected with two TD direct

trading accounts, which are discussed in more detail below in relation to the Property Division. These accounts are in Ms. He's name, however Ms. He says that they are not family property. EW explained how these accounts came into being, that he was the source of the funds used to open the accounts, explained how he acquired those funds, and that he (not Ms. He) is the person who in fact manages and controls the accounts. EW's explanation (which supported Ms. He's evidence) was consistent with the probabilities that a practical and informed person would recognize as reasonable in the circumstances, and I found him to be a credible and reliable witness. [67] The main witnesses were Mr. Sea and Ms. He. [68] In closing argument, Ms. Zhao submits that Mr. Sea is a credible witness, while Ms. He is not, and that, where there is a conflict, Mr. Sea's evidence should be preferred. On the other hand, Ms. Ke submits that Ms. He is a credible witness, while Mr. Sea is not, and that, where there is a conflict, Ms. He's evidence should be preferred. [69] The assessment of credibility involves examination of various factors such as: the witness's ability and opportunity to observe events; the firmness of the witness's memory; the witness's ability to resist the influence of interest to modify his or her recollection; whether the witness's evidence harmonizes with independent evidence that

has been accepted; whether the witness changes his or her 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. Moreover, the assessment of a witness's credibility must reasonably subject the witness's story to an examination of its consistency with the probabilities of the surrounding conditions or circumstances. 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 circumstances. See generally Bradshaw v. Stenner, 2010 BCSC 1398, at paras. 186-187, aff'd 2012 BCCA 296. [70] Credibility and reliability are different. Credibility has to do with a witness's veracity, while reliability is about the accuracy of the witness's testimony. [71] Moreover, I am not obliged to reject all of a witness's evidence simply because I have concluded that on some issues the witness is not credible or not reliable. As trial judge, I can accept (or reject) some, all or none of a witness's evidence. A witness's credibility may be adversely affected if the witness is imprecise, evasive, long-winded or argumentative in response to questions. [72] There was an additional

problem in this case, which I have mentioned in the Factual background above. During Ms. He's evidence-in-chief, she was asked and gave evidence about many, many matters involving Mr. Sea that had never been put to Mr. Sea during his cross-examination, despite its length. Ms. He's evidence included evidence about conversations she claimed she had had with Mr. Sea and statements she claimed he had made from time to time concerning matters in issue in this case. Ms. He relies on some of this evidence to argue, for example, that she and Mr. Sea had an agreement that she did not need to worry about money and that he would treat her sons just like his own children and pay for their education (including university), and therefore an unequal division of family property is justified. [73] This was such a frequent feature of Ms. He's evidence-in-chief that, on the second full day of her evidence-in-chief, I provided counsel with the citation to a fairly recent decision of the Court of Appeal, R. v. Podolski, 2018 BCCA 96, which (beginning at para. 145) discusses the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.). Mr. Sea had no opportunity to respond to this evidence. In those circumstances, I am unable to give much weight to Ms. He's evidence on these matters. [74] I have concluded that I must approach the evidence of both Mr. Sea and Ms. He, where it conflicts on material matters, very

cautiously. There are significant problems with the credibility and reliability of both of them. Both were often non-responsive to questions put to them (including during their evidence-in-chief) and evasive in their answers. [75] I begin with Mr. Sea. It is correct to say that he made admissions against his interest, for example, that he smashed dishes, a cell phone and a computer. He was forthcoming about the very considerable financial support he provided to his daughters. On the other hand, Mr. Sea appeared to have a terrible memory for dates, numbers and details. From time to time during his examination-in-chief, he needed to correct evidence he had given earlier. It appeared to me that his lack of memory was more a matter of convenience, rather than genuine. In other words, when it was in his interest not to remember, he did not remember. I would describe Mr. Sea as careless with details, and this affected the consistency of his evidence at trial when he was asked about certain topics. It also affects the weight I can place on his evidence because he is not a reliable source. His evidence at trial concerning the cash he was left with when he and Ms. Chao divided up their family property, and on which he relies to advance an excluded property claim, was inconsistent with his discovery evidence. It was his discovery evidence that, in my view, was more consistent with the

preponderance of probabilities. [76] I turn then to Ms. He. Even more than Ms. Liu, Ms. He demonstrated (at least during her evidence-in-chief) a very remarkable memory for conversations and events that occurred more than a decade ago. However, I am left with serious doubts about the reliability of her memory, especially since many of the conversations and events had not been put to Mr. Sea during his very lengthy cross-examination. I have concluded that one of Ms. He's goals during her evidence-in-chief and her re-examination was to give evidence casting Mr. Sea in a very poor light. For example, in her re-examination, she volunteered that Mr. Sea had been convicted of a crime, although that was unnecessary to provide a responsive answer to the question she had been asked. It was also another detail that had not been put to Mr. Sea. This feature made Ms. He an unreliable reporter of matters concerning Mr. Sea. Ms. He also appeared eager to testify about matters where she had no personal knowledge, essentially making arguments and drawing conclusions, rather than providing facts. Because her evidence was being given through an interpreter, the problems could only be identified when her evidence had been translated. [77] Based on Ms. He's evidence concerning the stage of her pregnancy with DSJ when her ultrasound was done, her evidence that she and Mr. Sea had been able to

determine that the baby was a boy is simply not believable. Despite that, she persisted with this story on cross-examination. [78] In an illustration of the high conflict nature of this case, Ms. He swore a number of affidavits in support of and in opposition to interlocutory applications. These affidavits were translated for her, and include the endorsement of the interpreter. As is unfortunately too often the case, these affidavits are not in the client's "voice" at all. Instead, the client's story is transparently packaged in a lawyer's words. Ms. He's cross-examination demonstrated that there were a number of occasions where her affidavit evidence was inconsistent with her evidence at trial, and it was often exaggerated beyond what Ms. He was prepared to say in the courtroom. A more measured, proportionate approach, one less engaged in high conflict, could have avoided these problems for Ms. He at trial. [79] In one of the more notable examples, in Ms. He's Affidavit No. 2 sworn August 14, 2020 (in support of her application for interim spousal support), she described (in para. 46) being "physically assaulted" in Central Park in Burnaby "by an inmate escaped from a mental facility." She claimed that she injured her knees and face. At trial, Ms. He provided quite a different description. She was not assaulted at all. Rather, she injured her knees and face when she fell down

as she was running away. Despite that, the scenario - that Ms. He had been assaulted in Central Park - persisted in the description provided in the index to the document collection marked as Exhibit 15. The description (under the general heading "Proof of Physical Violence and Mental Suffering") reads: "Photos showing Respondent's injuries sustained during an assault." [80] In her Affidavit No. 2, Ms. He also stated (in para. 3) that "I did not go to school or receive any job training after I moved to BC to join Sea." This was inconsistent with her evidence at trial concerning attendance at English language training, and that she received job training for two weeks. [81] The result is that, generally speaking, I accept Mr. Sea's and Ms. He's evidence where that evidence is consistent with reliable documentary evidence, agreed facts or other reliable evidence, where either have made statements against interest, and where they agree. Otherwise, where there is a conflict on a material point, I have looked for, and placed weight on, evidence that is more in harmony with the preponderance of probabilities that a practical and informed person would readily recognize as reasonable in the circumstances.

4. Property division (a) The framework under the Family Law Act [82] On separation, each spouse is presumptively entitled to an undivided half interest in all family property as a tenant in common, regardless of their respective use or contribution, and equally responsible for family debt: see the Family Law Act, S.B.C. 2011, c. 25 (the "FLA"), s. 81. [83] The parties agree that their separation date was June 30, 2019. [84] Property is categorized as either "family property" or "excluded property." All real or personal property owned by either spouse at the date of separation is broadly defined as family property (FLA s. 84(1)). [85] "Excluded property" is described in FLA s. 85(1), which provides in relevant part: 85 (1)The following is excluded from family property: (a) property acquired by a spouse before the relationship between the spouses began; . . . (b.1) gifts to a spouse from a third party; . . . (g) property derived from property or the disposition of property referred to in any of paragraphs (a) to (f). [86] A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property: FLA s. 85(2). [87] The test for establishing a claim for excluded property is proof on a balance of probabilities by the party asserting an excluded property interest. Precision or mathematical certainty is not required, but to discharge

the burden, the party seeking to prove property is excluded property must do so with clear and cogent evidence. See Shih v. Shih, 2017 BCCA 37, at paras. 40-44. [88] "Family debt" is defined under FLA s. 86 as follows: Family debt includes all financial obligations incurred by a spouse (a) during the period beginning when the relationship between the spouses begins and ending when the spouses separate, and (b) after the date of separation, if incurred for the purpose of maintaining family property. Thus, any debt acquired during the relationship, regardless of whether it was for a family purpose, is a family debt. [89] Section 87 of the FLA requires that the value of family property and debt is the fair market value as of the date of the hearing respecting the division of property or debt, unless an agreement or order provides otherwise. A departure from the presumptive date for valuation of family property is effectively a reapportionment or unequal division of the family property, which can only be done under s. 95 of the FLA: see Kumagai v. Campbell Estate, 2018 BCCA 24, at para. 76. [90] Section 95(1) of the FLA allows the court to order an unequal division of family property or family debt, but only if it would be significantly unfair to equally divide such property or debt. Section 95(2) enumerates factors the court may consider in weighing whether an unequal division

should be ordered. These factors include: ● the terms of any agreement between the spouses (s. 95(2)(b)); ● a spouse's contribution to the career or career potential of the other spouse (s. 95(2)(c)); ● whether family debt was incurred in the normal course of the relationship between the spouses (s. 95(2)(d)); ● whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends (s. 95(2)(f)); ● the fact that a spouse, other than a spouse acting in good faith, either (i) substantially reduced the value of family property, or (ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse's interest in the property or family property to be defeated or adversely affected (s. 95(2)(g)); ● a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order (s. 95(2)(h)); ● any other factor (other than the consideration referred to in subsection (3)) that may lead to significant unfairness (s. 95(2)(i)). (b) Mr. Sea's excluded property claims [91] Mr. Sea says that the following is his excluded property: (a) the fair value of his shares in Diversified as of March 2005; (b) the Summer Cottage; (c)

artwork, pictures of which are found at pp. 148-150 and pp. 152-153 of Exhibit 4, Tab 7; (d) Mainland 2109; (e) a boat; and (f) "Various" luxury watches and old jewelry pieces. [92] Mr. Sea says that (a), (b), (c), (e) and (f) are all property he acquired before his relationship with Ms. He began (FLA s. 85(1)(a)), and that (d) is property derived from property he acquired before his relationship with Ms. He began (FLA s. 85(1)(a) and (g)). [93] Ms. Ke argues that, "strictly speaking," Mr. Sea should not be permitted to make any claim in respect of excluded property, since nothing in that respect is pleaded in his amended notice of family claim. However, I must reject this submission. [94] Mr. Sea's amended notice of family claim was filed January 20, 2020. At that time, Form F3 of the Supreme Court Family Rules did not include a section in "Schedule 4 - Property" to provide particulars of excluded property claims. Both Form F3 and Form F8 were revised in 2022, and a specific section to provide particulars in respect of excluded property claims was added. Exhibit 9, Mr. Sea's Form 8 financial statement filed August 19, 2022, includes a statement of excluded property on p. 16. [95] In her closing submissions, Ms. Ke implies that Mr. Sea ought to have further amended his notice of family claim, to conform with the 2022 version. However, in my view, compelling Mr. Sea to take such

a step before he could advance a claim in respect of excluded property would be contrary to the object of the Family Rules, as set out in Family Rule 1-3. That Ms. He (and her counsel) considered this argument was worth advancing in closing submissions is another illustration of a disproportionate response to resolving the substantive issues in these proceedings. [96] There is no dispute that Mr. Sea has a valid excluded property claim in respect of the value of his shares in Diversified as of March 2005. I will discuss this further in the detailed discussion below concerning Diversified. [97] There is also no dispute that Mr. Sea has a valid excluded property claim in respect of the Summer Cottage. The parties agree (in Exhibit 1) that the value of the Summer Cottage before their relationship began was $327,000, and that the fair value as of trial was $735,000. Thus, the increase in value, and the amount available for division as family property, is $408,000. [98] In closing submissions, Ms. Ke appears to argue that Mr. Sea's and Ms. Chao's former family home ("Buckingham") is also "family property" in this action, subject to an excluded property claim and subject to division. In my view, the appropriate response is this: Buckingham does not qualify as "family property" under s. 84 of the FLA. [99] I turn next to the artwork. Again, there is no dispute that Mr. Sea owned the

artwork shown on pp. 148-150 and pp. 152-153 of Tab 7 of Exhibit 4 before his relationship with Ms. He began. He has satisfied his burden under FLA s. 85(2) to show that this property is excluded property. [100] However, there is little reliable evidence of the value of this artwork as of the date the relationship between Mr. Sea and Ms. He began, and no reliable evidence of the fair market value of this artwork as of trial. There is, therefore, no reliable evidence that the value of any of this artwork has increased since the date the relationship began. As a result, there is nothing for division as family property. Mr. Sea is entitled to this artwork without further division. [101] Similar considerations apply to the boat. There is no serious dispute that Mr. Sea owned the boat before his relationship with Ms. He began. However, there is no reliable evidence of the value of the boat as of the date the relationship began, and no reliable evidence of the fair market value of the boat as of trial. I consider the "current value" assigned in Mr. Sea's F8 (Exhibit 9) to be little more than speculation. There is, therefore, no reliable evidence that the value of the boat has increased since the date the relationship began. From a common sense perspective, the opposite is more likely. There is, therefore, nothing for division as family property, and Mr. Sea is entitled to the boat

without further division. [102] Mr. Sea's evidence concerning the "Various" luxury watches and old jewelry pieces was too vague to be reliable. Gina Sea might have been able to provide some support for Mr. Sea's evidence, but she was not asked about these items. I am left in doubt about their existence and whereabouts. There was no genuine attempt to place a reliable value on these items, either pre-relationship or as of trial. I find that Mr. Sea has failed to make out a claim concerning these items. There is no reliable evidence that, in respect of these items, there is anything for division as family property. If these items are in Mr. Sea's possession (and there was little reliable evidence about that), he is entitled to them without further division. [103] In Exhibit 9, Mr. Sea listed his 2008 Cadillac and 2015 Maserati as excluded property. However, such a claim was not pursued in closing submissions, and I will say no more about it. [104] I turn then to Mainland 2109. [105] The parties agree that Mainland 2109 had a value of $296,900 when purchased, and that its fair market value as of trial is $765,000. The difference is $468,100, which would be the family property subject to division if Mainland 2109 is excluded property. If it is not, the whole of the fair market value as of trial will be subject to division. [106] According to Mr. Sea, he purchased Mainland 2109

using funds - that is, property - he had acquired before his relationship with Ms. He began. Mr. Sea says that, accordingly, Mainland 2109 is property derived from such property, and therefore qualifies as excluded property. [107] At trial, Mr. Sea pointed to funds on deposit in his name at Mega Bank, as the principal source of funds he used to purchase Mainland 2109, although he also said he used profits from Diversified, profits from real estate investing and money he brought from China to purchase Mainland 2109. During his evidence-in-chief, Mr. Sea was taken to a bundle of printouts from Mega Bank (part of Exhibit 4 Tab 6(a)), apparently to corroborate his evidence concerning the existence of funds in his name. However, he simply identified this bundle as bank statements, and did not provide any other meaningful description or explanation linking what was shown in the statements with the purchase of Mainland 2109. Generally speaking, Mr. Sea appeared to have little knowledge about any bank statements, apart from what he or anyone else could read on them. Mr. Sea had testified earlier that, on his divorce from Ms. Chao, he had retained cash of about $1.2 million or $1.3 million, although he acknowledged he was unable to be very accurate. The inference I am being asked to draw is that these were funds that existed before his relationship with Ms. He began, and that they were

(or could have been) used to purchase Mainland 2109. [108] On the other hand, Mr. Sea gave evidence on his examination for discovery, which was read into evidence at trial, that on his separation from Ms. Chao, he had no other significant assets apart from his shares in Diversified, the Summer Cottage and the former family home. He said further that he was unable to recall if he owned other properties or savings as of 2005. [109] In my view, Mr. Sea's evidence concerning the source of funds used to purchase Mainland 2109 is vague and contradictory. His evidence at trial is an example of Mr. Sea's selective memory, and unreliable. The documentary evidence, on its own, was of little assistance. In my view, Mr. Sea has failed to show, with clear and cogent evidence, that Mainland 2109 is derived from property he acquired before his relationship with Ms. He began. He has, therefore, failed to make out an excluded property claim for this asset. The entire fair market value as of trial will therefore be subject to division. (c) Ms. He's excluded property claims [110] Ms. He says that the following property is her excluded property: (a) an insurance policy with Ivari, on the basis that she acquired the policy before her relationship with Mr. Sea began (FLA s. 85(1)(a)); and (b) the "Flowers" painting shown on p. 151 of Tab 7 of Exhibit 4, on the basis that it was a gift to her from

the artist (FLA s. 85(1)(b.1)). [111] There is no reliable evidence of the value of the insurance policy, either before the parties' relationship began or as of trial. Indeed, the evidence of the existence of the insurance policy was sparse. It was not mentioned in Ms. He's F8 filed on July 12, 2022, for example. In the absence of evidence, I am unable to conclude that the value of this insurance policy has increased since the relationship between Ms. He and Mr. Sea began. There is, therefore, no family property to be divided in respect of it. Ms. He is entitled to the Ivari insurance policy as her own property, without any further division. [112] Mr. Sea is agreeable to Ms. He receiving the "Flowers" painting on a division of family property. His position (as reflected in the Scott Schedule provided by Ms. Zhao during closing submissions) is that it should be valued as of trial at $5,000, and he should receive $2,500. Mr. Sea did not make a specific submission concerning Ms. He's claim that the painting was a gift to her (and therefore excluded property), apart from his general submission that Ms. He is neither a credible or reliable witness, but the effect of his position is that this painting is not excluded property. [113] While Ms. He was cross-examined at length, she was not cross-examined on her claim that the "Flowers" painting was a gift to her by the artist. [114] I

accept Ms. He's evidence that she received the painting as a gift. She had a relationship with the artist, and the circumstances in which the artist would make a gift to Ms. He, as described by Ms. He, are reasonable. I find, therefore, that Ms. He has met her burden under FLA s. 85(2) to show that the "Flowers" painting is excluded property. [115] However, there is no reliable evidence of the value of the "Flowers" painting either when Ms. He received it, or as of trial. There is, therefore, no reliable evidence that the value of the "Flowers" painting has increased since Ms. He acquired it. As a result, there is nothing for division as family property. Ms. He is therefore entitled to the "Flowers" painting as her own property, without any further division in favour of Mr. Sea. (d) Mr. Sea's interest in Diversified [116] I turn next to the valuation of Mr. Sea's interest in Diversified. [117] I find that Mr. Sea is the owner of 50% of the shares of Diversified. From time to time during the trial, Ms. He (through her counsel) advanced the position that Mr. Sea owns two-thirds of Diversified's shares. However, there was no reliable evidence to support that conclusion. I accept Mr. Sea's evidence concerning the ownership of the shares in Diversified, that he owns 50%, and that Ms. Chao owns 50%. [118] With respect to the value of Mr. Sea's interest in Diversified, I had the

benefit of opinion evidence from two experts, both of whom were highly qualified chartered professional accountants and chartered business valuators. Mr. Sea's expert was Ron Tidball, while Ms. He's expert was Donald Burnham. Normally, parties are expected to tender opinion evidence on financial issues by means of a jointly appointed expert (see Supreme Court Family Rules, Rule 13-3). However, in this case, by order pronounced July 6, 2022, the parties were granted leave to appoint their own experts for the valuation of Diversified. [119] Mr. Tidball prepared three reports concerning the fair market value of Mr. Sea's shares in Diversified: a main report dated November 11, 2021; an updated report dated August 13, 2022; and a report dated August 23, 2022 commenting on Mr. Burnham's report (the "Comment Report"). These three reports were marked as part of Exhibit 20. [120] Mr. Burnham prepared a single report dated August 9, 2022 concerning the fair market value of Mr. Sea's shares in Diversified. This report was marked as Exhibit 21. [121] I note that both Mr. Tidball and Mr. Burnham were instructed to assume that Mr. Sea held 50% of the shares of Diversified. [122] As required under Family Rule 13-6(1)(f), the reports of both Mr. Tidball and Mr. Burnham set out a description of the factual assumptions on which their opinions were based. These factual assumptions are not

evidence of the facts, which must be proved by other admissible evidence: Mazur v. Lucas, 2010 BCCA 473, at paras. 37 and 40; A.D.J. v. F.J., 2022 BCSC 600, at para. 160. [123] Diversified had been in business for many years before the parties' relationship began, and there was no dispute that the value of Mr. Sea's Diversified shares is subject to an excluded property claim by Mr. Sea. There is a difference of $500 between Mr. Tidball ($851,000) and Mr. Burnham ($851,500) concerning the value of Mr. Sea's shares as of March 2005. I accept Mr. Tidball's number. In his submissions, Mr. Lamer (for Ms. He) did not suggest otherwise. Accordingly, the value of Mr. Sea's shares in Diversified as of March 2005, and for purposes of his excluded property claim, is $851,000. [124] I turn then to the valuation of Mr. Sea's shares as of trial. [125] In Mr. Tidball's opinion, the 2022 fair market value of Mr. Sea's shares in Diversified was in the range of between $2,088,000 (low) and $2,325,000 (high). The midpoint is $2,206,500. [126] On the other hand, in Mr. Burnham's opinion, the 2022 fair market value of Mr. Sea's shares was in the range of between $2,424,000 (low) and $2,485,000 (high), with a mid-point of $2,454,500. [127] In the Comment Report (Exhibit 20, pp. 25-26), Mr. Tidball expressed general agreement with Mr. Burnham's valuation approach and analysis of the fair market value

of Diversified's shares. He commented that there were numerous small differences, and that, as a general observation, the differences in value were within an expected range given the subjective nature of valuation. [128] In closing argument, Ms. Zhao levelled certain criticisms against Mr. Burnham's report. However, these were not mentioned by Mr. Tidball in the Comment Report. In those circumstances, I give greater weight to Mr. Tidball's general endorsement in the Comment Report of Mr. Burnham's valuation approach than to the non-expert criticisms of counsel. [129] In his report (para. 12.02), Mr. Burnham explained that he considered the capitalization of earnings approach is the appropriate valuation method for Diversified as of March 31, 2022. He explained further (para. 14.01): The capitalization of cash flow contemplates the continuation of the business by the purchaser and is based on the purchaser's desire to acquire the future cash generating potential of the business. This approach assumes a continuing business operation with potential for maintaining cash flow from operations at a level that will provide a reasonable return on investment. . . . [130] There are, however, two key differences between Mr. Tidball and Mr. Burnham. One concerns the treatment of Diversified's goodwill, and whether there is commercially transferable goodwill or only personal goodwill. The

second concerns potential tax issues arising from the sale of Diversified's assets. [131] Commercial goodwill is an intangible asset, and it is defined as the amount that the fair market value of the enterprise as a whole exceeds the fair market value of its non-operating assets. The acquirer of commercial goodwill must be economically better off having paid for the goodwill of an existing enterprise rather than starting a new one. In contrast, personal goodwill relates to the reputation, skill and other characteristics that would attract clients or customers to an individual, in preference to someone else. Personal goodwill by definition cannot be transferred to another individual. See T.N. v. J.C.N., 2015 BCSC 439, at para. 86. [132] Mr. Tidball assumed that Diversified's goodwill was personal to the shareholders, and there was, therefore, no commercially transferable goodwill. He wrote (Exhibit 20 p. 6; underlining added): Mr. Sea is a skilled and experienced designer and marketer of door hinges. Ms. Chao is an experienced importer of goods from China. The Company has no other management. It is possible that only Mr. Sea and Ms. Chao have the necessary skills and relationships with clients and Chinese suppliers to operate the business of the Company profitably. If this were true, then it would follow that the business has no commercially transferable goodwill and that

goodwill is personal in nature. Accordingly, the business of the Company would properly be valued on a net asset basis. The net book value and assumed net asset value of the inventory of the Company was in the range of $600,000 at the Valuation Dates. [133] In the Comment Report, Mr. Tidball noted (Exhibit 20 p. 26; underlining added): The low end of the 2022 value per the Burnham Report is higher than in [Mr. Tidball's] 2021 Valuation Report, in part, as it does not fully recognize the possibility that the Company is entirely dependant [sic] on the continued employment of Mr. Sea and the Company subcontract representative in China. If so, any goodwill in the Company would be personal in nature, i.e. not commercially transferable and a net asset approach to value would he appropriate. This issue is discussed at item 12.01 of the Burnham Report. . . . [134] As Mr. Lamer pointed out in his submissions on behalf of Ms. He, Mr. Tidball does not in fact express the opinion that Diversified's income-earning power is dependent solely on Mr. Sea and Ms. Chao, and that any goodwill in the company is therefore personal in nature. Rather, the first proposition is advanced as a possibility, and the second proposition depends on the first being true. [135] I agree with this approach to Mr. Tidball's opinion evidence. It was not up to Mr. Tidball to establish the facts, namely: whether only

Mr. Sea and Ms. Chao had the necessary skills and relationships with clients and Chinese suppliers to operate Diversified's business profitably; and whether Diversified is entirely dependent on the continued employment of Mr. Sea and the company's representative in China. Rather, those facts needed to be proved by other admissible evidence. [136] The obvious source of the evidence to support the assumptions made by Mr. Tidball was Mr. Sea himself. Ms. Chao was not called as a witness, and Mr. Aasen was not in a position to give admissible evidence about the facts. However, Mr. Sea was mostly silent about the relevant facts. There is very little in the evidence that might support a conclusion that Mr. Sea's (and Ms. Chao's) continued presence in Diversified is necessary for the business to continue. Mr. Sea gave virtually no evidence that would reasonably support a conclusion that he is a skilled and experienced designer of door hinges (or even that he was one at one time). He did not say whether he continues to spend any time designing products for Diversified. There was no evidence that Mr. Sea's design skills (whatever they might be) are essential to Diversified's continued profitability. Mr. Sea did not speak about his relationships with suppliers and manufacturers in China, or with customers in B.C., except in the context of steps Diversified needed to take during the

pandemic to ensure that orders were filled in a timely way. Mr. Sea is not a salesperson. Other employees at Diversified do that work. There is nothing based on which I could conclude that without Mr. Sea's involvement, relationships with suppliers, manufacturers and customers would be lost to Diversified. [137] Indeed, Mr. Sea's involvement in Diversified through much of his marriage to Ms. He consisted of visiting the physical premises about every two weeks or so to sign cheques. This does not suggest his presence in the business is essential. Rather, it suggests that Diversified is an established business that does not require Mr. Sea's personal involvement to operate. Even if Mr. Sea makes himself available to customers or suppliers by e-mail or phone, there was little in the evidence to support a conclusion that he spends any significant time responding to communications or in the day-to-day running of the business. On the other hand, Mr. Sea told Mr. Tidball that, since his health issues in 2013, he works only a few hours per week. This is consistent with Mr. Sea's evidence at trial that he is (and has been for some time) semi-retired, and that of Mr. Aasen. Mr. Sea testified about training Chad Nelson, his son-in-law and an electrician, to take over the business. [138] In my view, the inference to be drawn from Mr. Sea's evidence is that the business can and will carry

on without him when he decides finally to fully retire, and that is the plan currently in place. This does not support the assumption made by Mr. Tidball that Diversified's goodwill is personal. Indeed, Mr. Tidball went no further than to note the possibility that there would be no commercial goodwill in Diversified. Mr. Tidball did not express the opinion that there is no commercial goodwill in Diversified. [139] In his submissions, Mr. Lamer argues that the assumption Mr. Tidball has made concerning the absence of commercial goodwill is central to Mr. Tidball's methodology and his opinion concerning the fair market value of Diversified's shares. Mr. Lamer argues that, without evidence to support the assumption, Mr. Tidball's opinion can be given no weight, and Mr. Burnham's opinion would then be left as the only expert opinion evidence concerning the fair market value of Diversified's shares. [140] However, I do not agree. I note that, despite his commentary about possibilities, Mr. Tidball includes valuations (his "high value") assigning a value to goodwill in the operating business. [141] In response to these arguments concerning the weight to be given to Mr. Tidball's opinion, Ms. Zhao, in her submissions, cited T.N. v. J.C.N., in particular the discussion at paras. 86 and following. In T.N. v. J.C.N., a family law case that involved (among other things) valuing the shares

in a business, Mr. Tidball's opinion evidence that there was no commercial goodwill in the business was preferred over the opinion evidence of the other expert. However, the business in that case was the medical practice carried on by T.N., who was a medical doctor. In my view, no proper comparison can be drawn between a medical practice, which necessarily depends on the reputation and skills of the individual medical practitioner, and the type of business carried on by Diversified. [142] Ms. Zhao also relies on the judgment in T.N. to argue that Mr. Burnham ought to have spoken to people in the industry, including Mr. Sea, suppliers and manufacturers, before assuming that Diversified was well-known. However, it is not for the expert (whether Mr. Tidball or Mr. Burnham) to present basic facts to the court. Counsel must ensure that evidence is presented to permit the court to draw appropriate inferences about those facts. Here, Mr. Sea was the person best placed to present evidence about Diversified, and his role in Diversified. However, there was little in his evidence that persuaded me the possibility described by Mr. Tidball - that there was no commercially transferrable goodwill in Diversified - was a real and substantial possibility. [143] Mr. Burnham drew a conclusion that Diversified was "known" in the industry in part from the fact that it had been in business for about

30 years. In my view, this conclusion is supported by both Mr. Sea's evidence and Mr. Aasen's evidence about the longevity of the company and its ability to generate revenues over the long term. If the longevity of Diversified depended on Mr. Sea personally, and his personal relationships with customers and suppliers, I would have expected to hear some details about that. I did not. [144] In my view, Mr. Tidball's assumption that Diversified's goodwill is personal in nature and not commercially transferrable is not supported by the evidence. On the other hand, Mr. Burnham's assumption that some of the earnings of Diversified are attributable to commercial goodwill is supported by the evidence. I therefore prefer Mr. Burnham's treatment of goodwill in the valuation of Diversified. This means that I give Mr. Tidball's low value essentially no weight, because it is not supported by the evidence. [145] In his closing submissions, Mr. Lamer also argued that the court should adjust upward Mr. Burnham's estimate of Diversified's value at the mid-point ($2,454,500) to $2,910,985. This was based on what Mr. Lamer argued were the differences between Mr. Tidball and Mr. Burnham concerning the computations of payments by Diversified to E&H and to J Spa. In calculating Diversified's normalized maintainable cash flow, both Mr. Tidball and Mr. Burnham adjusted net income by adding back the

payments made to E&H and J Spa. However, Mr. Tidball arrived at a total to be added back that was about $772,000 greater than Mr. Burnham's total. Mr. Lamer argued that this difference should be accounted for by an upward adjustment of Mr. Burnham's calculation of the enterprise value. [146] However, I am not persuaded that such an adjustment is appropriate. Cross-examination of Mr. Tidball did not support the conclusion and adjustment Mr. Lamer proposed in argument. Mr. Burnham's computations of payments made to J Spa are consistent with Exhibit 1 para.

49. Moreover, in my view, Mr. Burnham's computations of the payments to E&H (which were much lower than Mr. Tidball's) are more consistent with the evidence from Mr. Aasen concerning the payments to E&H in Diversified's 2019 and 2020 fiscal years, and also the parties' agreement that E&H was dissolved August 13, 2019. [147] On the whole, I prefer Mr. Burnham's analysis and find it more consistent with the evidence at trial. I conclude therefore that the value of Mr. Sea's shares in Diversified available for division is $1,603,500 ($2,454,500 minus $851,000). [148] I turn then to the tax issues. These arise principally from the question whether provision should be made for payment by Mr. Sea of distributive personal income tax, essentially reducing the value available for division because of distributive taxes. Distributive taxes are taxes that are imposed when a shareholder takes money out of a company and then, as a result, incurs tax (either dividend tax or income tax). [149] Mr. Tidball raises the issue of distributive personal income tax in his first report, and says (p. 1): Distributive personal income taxes at a high marginal rate of up to approximately 38% would arise on removal of cash or other assets from [Diversified] by the individual shareholders. There is varying case law regarding the applicability of distributive income taxes for purposes of matrimonial asset

division. [150] On the other hand, concerning income tax considerations, Mr. Burnham said (para. 13.03): Provision should be made for tax liabilities if the notional purchaser were to contemplate the substantive distribution of [Diversified's] assets or the wind-up of the Company soon after the Valuation Date. Neither of these actions was contemplated in this valuation as a most likely course of action for an arm's length purchaser of the shares on a notional basis. [151] From my perspective, it is significant that neither Mr. Tidball nor Mr. Burnham made any deduction on account of distributive tax liabilities from a valuation standpoint. I agree with Mr. Lamer's submission that the reason is because a notional purchaser would never purchase Diversified simply to wind it up. Rather, the notional purchaser would purchase Diversified in order to continue its operations as a going concern. There was no suggestion in the evidence that Mr. Sea intended to liquidate Diversified, or that he and Ms. Chao intended to sell off Diversified's assets to realize the value in the company, or that Mr. Sea would be required to do so in order to satisfy any order in this case concerning property division. [152] Ms. Zhao argues (citing Sanai v. Mahmoud, 2017 BCCA 155, at paras. 29-33) that, in arriving at the value of Mr. Sea's interest in Diversified available for division, an allowance must be

made for distributive personal tax arising on the sale of Diversified's assets. In Ms. Zhao's submission, a distributive tax of 37% (as mentioned in the Comment Report) should be applied to the value of Diversified available for distribution. In her written submissions, Ms. Zhao provided the following illustration (using Mr. Tidball's opinion evidence) of how the division of Mr. Sea's interest in Diversified should occur: Description Amount Tidball valuation $2,206,500.00 Minus Mr. Sea's excluded property ($851,000.00) Minus tax at 37% ($501,535.00) Value of Mr. Sea's interest available for division $853,965.00 [153] Assuming an equal division, Ms. He would be entitled to $426,982.50, in Ms. Zhao's submission. [154] On the other hand, Mr. Lamer argued that no deduction for distributive taxes should be made. [155] There is no absolute rule concerning whether tax consequences should or should not be taken into account in the division of family assets. Corporate and distributive taxes can and should be taken into account in the division of property in appropriate cases. Where there is evidence that a division of family assets will attract tax consequences, an allowance should be made for tax. Where it is not clear when or in what amount taxes will be exigible, an allowance may not be made. See Maguire v. Maguire, 2016 BCCA 431, at paras. 38-39. [156] The principles that apply to

distributive taxes were summarized by Savage J. (as he then was) in McKenzie v. McKenzie, 2015 BCSC 241, at para. 8: (1) where there is sufficient evidence to satisfy the Court of tax consequences or other costs inherent in a compensation order the Court should take these into account in setting the compensation amount; (2) the onus is on the payor to provide the trial judge with the necessary evidence of the tax consequences arising from the division of assets or other consequences of having to acquire the funds to pay the payee; (3) there is no absolute rule as to how the compensation order might be calculated, depending, as it does, on the type of assets to divided, timing, the parties involved and other orders in the action; (4) the matter should be considered as of the date of trial, not as of the date the matter comes back before the court; and (5) the overriding principle is fairness. [157] In this case, the tax implications and tax consequences respecting Diversified are, at best, speculative. There was no evidence that Mr. Sea intended to sell Diversified (or his interest in Diversified), whether in a share sale or an asset sale. The Scott Schedules provided in closing submissions did not show that, assuming Mr. Sea would be required to make a compensation payment to Ms. He, he would need to liquidate his interest in Diversified to do that. Mr. Sea was not asked about

the matter during his evidence at trial. Rather, the inference I draw from Mr. Sea's evidence is that he intends for Diversified to continue as a going concern, and is training Mr. Nelson to take over running the business once Mr. Sea fully retires. The value in Diversified comes from its income-earning power, rather than through liquidation of its assets and winding up the company. These facts make this case distinguishable from Sanai v. Mahmoud, where the companies at issue were holding companies. [158] I am therefore not persuaded that there should be any deduction for distributive taxes payable by Mr. Sea from the value available for division. [159] In addition to distributive taxes, Mr. Tidball also mentioned the possibility of Diversified having a contingent tax liability related to the payments made to E&H and J Spa. [160] In his first report (p.8), under the heading "Distributive Income Taxes and Contingent Income Tax Liability," Mr. Tidball says: . . . [I]n our opinion, a potential purchaser should not acquire the shares of [Diversified] considering the significant risks related to a CRA audit and the contingent income tax liability related to possible personal expenses and the payments to E & H and J Spa . . .. In our opinion, the net assets and goodwill, if any, of the business of [Diversified] would be sold, and not the shares of [Diversified]. . . . [161] Mr.

Tidball acknowledged that he is not an income tax expert, and he was not qualified to give opinion evidence as an expert in income tax. However, in his first report, Mr. Tidball set out his opinion concerning some of the tax consequences "that would arise if CRA audited [Diversified] and learned of [Diversified's] transactions with" E&H and J Spa. In Mr. Tidball's opinion, Diversified's liability "could approach or exceed" $1 million. [162] However, I note that Mr. Tidball made no deduction on account of this potential liability in arriving at his opinion concerning the fair market value of Diversified. Diversified can be sold as either a share sale or an asset sale. I agree with Mr. Lamer's submission that, if Diversified's assets are sold, the purchaser would obtain the benefit of Diversified's enterprise value without taking on any contingent tax liability. [163] I also agree with Mr. Lamer's submission that Mr. Tidball offered no opinion concerning the probability that deductions in respect of payments to E&H and J Spa (included as cost of goods sold) will ever be the subject of an audit by CRA. In that light, the concern raised concerning a potentially significant contingent tax liability is highly speculative. There were no submissions made by Mr. Sea's counsel that, for example, Mr. Tidball's opinion as to Diversified's value should be discounted to take into account a

contingent tax liability. Indeed, if that argument was going to be advanced, I would have expected more in the way of opinion evidence from Mr. Tidball to support it, telling me, what, in his opinion, an appropriate discount in value should be. [164] Moreover, I agree with Mr. Lamer's submission that the contingent tax liability mentioned by Mr. Tidball will only arise if a tax audit of Diversified were to occur, and the likelihood of such an audit is a matter of pure conjecture. All that is known as of trial is that Diversified's tax returns for the subject years have not been reassessed. [165] In the result, I am also not persuaded that there should be any discount in the value of Mr. Sea's interest in Diversified available for distribution on account of the possibility of a contingent tax liability. (e) Real property [166] The following real property is family property, subject to division: Property Registered owner Value as of trial 3601 Joint $1,300,000.00 3602 Joint $1,700,000.00 Mainland 2109 Sea $765,000.00 Seymour Sea $675,000.00 Summer Cottage (after deducting excluded property claim) Sea $408,000.00 [167] University High was also family property. As I described above, Ms. He sold University High in February 2020, for net proceeds of $205,395. Those net proceeds are also family property available for division because, as a result of the sale, Ms. He essentially

received an advance payment. (f) Bank and financial institution accounts [168] In closing submissions, Ms. Zhao argued that, with respect to bank and financial institution accounts, I should use the amounts in these accounts as of the separation date, not trial, and her Scott Schedule was prepared on that basis. She did not provide an alternative presentation, in the event I rejected her submission concerning the valuation date. [169] However, as I noted above, a departure from the presumptive date for valuation of family property is effectively a reapportionment of the family property, which can only be done under s. 95 of the FLA. Ms. Zhao provided no convincing argument to depart from the trial date as the date for valuation. [170] Some of the accounts included on the F8 financial statements filed shortly before trial, and on the Scott Schedules, have balances of $125 or less, and I will ignore them in the property division. Instead, I order that, except for joint accounts, the accounts with balances of $125 or less shall be retained by the account holder as her or his sole property, without further division. With respect to joint accounts, I order that all balances shall be divided equally between Mr. Sea and Ms. He. [171] The accounts in issue (some of which were identified on the Further Joint Statement of Facts marked as Exhibit 3) are as follows (brackets indicate a

negative value or debt owing): Account Account holder Value (cents are omitted) CIBC 5982 Mr. Sea $12,080.00 CIBC USD 8892 Mr. Sea $4,770.00 CIBC GIC 2671 Mr. Sea $70,683.00 TD 1710 Mr. Sea $7,600.00 RBC 3493 Mr. Sea $14,240.00 Fidelity TFSA Mr. Sea $46,024.00 Manulife TFSA Mr. Sea $49,070.00 RBC Dominion Account 9320 Ginnie Sea $490,545.00 HSBC 150 Ms. He $423.00 HSBC 2G2E (C$ stock trading account) Ms. He $183,186.00 HSBC 2G2F (US$ stock trading account) Ms. He ($182,486.00) HSBC 2G2H (stock trading account) Ms. He not on Ms. He's F8 TD direct trading account - C$ Ms. He not on Ms. He's F8 TD direct trading account - US$ Ms. He not on Ms. He's F8 [172] Where available, I have used the values in the F8 financial statements filed by Mr. Sea on August 19, 2022 (entered as Exhibit 9) and by Ms. He on July 12, 2022. Counsel did not provide me with a currency conversion for US dollars to Canadian dollars. Rather than do my own conversion, I will treat US$1.00 as equivalent to C$1.00. [173] I will address HSBC 2G2H first. This account (with a balance of $205.90) appears on a statement covering the period July 1, 2019 to July 31, 2019, together with HSBC 2G2E and HSBC 2G2F. The statement is issued by "HSBC InvestDirect." These accounts were identified in the evidence as Ms. He's stock trading accounts. On the statement covering the period September 1, 2019 to September 30, 2019, HSBC

2G2H had disappeared, and it is not found on subsequent statements in evidence. I conclude that the account was closed shortly after the parties separated, and the "value" as of trial was zero. I will not mention this account any further. [174] I turn then to Ms. He's two remaining HSBC stock trading accounts, 2G2E and 2G2F. These accounts were listed together on consolidated statements issued to Ms. He by HSBC InvestDirect. Account 2G2E was a Canadian dollar margin account, and Account 2G2F was a US dollar margin account. Based on the statements produced, the Canadian dollar account always had a positive account value. However, the US dollar account always had a negative cash balance and a negative balance at the end of a month. In very simple terms, Ms. He borrowed money for transactions in this account. Ms. He was asked about the operation of these two stock trading accounts on cross-examination, using the account statements. Ms. He appeared to be easily confused by the questions, and it was often difficult to make sense of her answers. She was also very defensive when responding to Ms. Zhao's questions. [175] In my opinion, Ms. He, who appeared to me to be relatively sophisticated in financial matters, knew more about the operation of the two stock trading accounts, and the meaning of the entries on the statements produced, than she was willing to say in court. However, I

conclude from her evidence that the amount in her Canadian dollar account always needed to be more than the Canadian dollar equivalent of the negative balance in her US dollar account. This made sense in the context of a margin account. [176] For reasons she never satisfactorily explained, Ms. He did not produce more than the first page of the consolidated statements. She was unable to provide any information about transactions from 2021 and 2022 in either of these accounts, apart from the basic information shown on the first page (the account value as of the end of the previous month, the cash balance, the market value of securities, and the account value at the end of the month for the statement period). Her inability to testify about recent events made her apparent remarkable memory for events from the mid-2000s even more suspect. [177] The consolidated statement for the period January 1, 2022 to January 31, 2022, shows an account value on January 31 in the Canadian dollar account of $387,114, and an account value in the US dollar account of ($296,331). By the statement for the period June 1, 2022 to June 30, 2022, the account value shown for June 30 in the Canadian dollar account is $183,595, and ($139,986) in the US dollar account. Ms. He was unable to explain in any satisfactory way what happened to the money. [178] In the absence of an explanation, the inference I am

left to draw is that, since separation, Ms. He used the money available to her in these accounts as she saw fit. This is essentially what Mr. Sea did with money in accounts (including GIC accounts) in his name. [179] The result is that I accept Ms. He's evidence, as reflected in her F8 financial statement, of the amounts in her two HSBC stock trading accounts as of trial. [180] Next, I turn to the RBC Dominion account that is in Ginnie Sea's name. This account is not mentioned in either the Scott Schedule or the draft final order Ms. Zhao provided as part of her closing submissions. I conclude therefore that Mr. Sea's position is that nothing in this account constitutes family property subject to division. On the other hand, based on Ms. Ke's closing submissions, Ms. He's position is that the whole of the account is family property subject to division. [181] In the Joint Statement of Facts Exhibit 1, the parties agreed that Ginnie Sea opened this account in March 2022, and that Mr. Sea deposited $190,000 to the account for the benefit of DSJ. The account statement (part of Exhibit 4 Tab 6(c)) shows a deposit of $190,000 to the account on March 24, 2022, described as "transfer of funds from RBC." Otherwise, the actual source of the funds is not identified, and Mr. Sea did not provide an explanation. Most of the value in the account (about $327,000) is shown as mutual funds.

According to Mr. Sea, he had the idea of putting together a mutual fund for DSJ. However, he had no explanation for why the account was in his daughter's name, and, in giving his evidence, he appeared to be guessing based on what he could read in the statement. [182] According to Mr. Sea, he obtained the funds to make the deposit through a shareholder loan of $200,000 from Diversified. However, Mr. Aasen was unaware of any such shareholder's loan. He recalled only one shareholder loan to Mr. Sea, for $100,000 and made (as he recalled) two or three years ago. He did not recall anything in the last two years. [183] Ms. Ke says that Mr. Sea's evidence should not be believed. She argues, essentially, that Mr. Sea is using this account to divert to his daughter Ginnie what would otherwise be family property, and that the whole amount in the account should be treated as a family property available for division. However, it was never put to Mr. Sea on cross-examination that all of the money in this account was in fact Mr. Sea's money, and his daughter was not the true owner. [184] Ginnie Sea was not called as a witness at trial. Mr. Sea would have been the obvious party to call her to give evidence. As the named account holder, Ginnie Sea would have been the person best positioned to provide me with relevant details about this account, explain why (if money was on deposit for the

benefit of DSJ) the account was opened in her name, and, if true, support Mr. Sea's evidence concerning the account. However, apart from what is contained in Exhibit 1, Mr. Sea's evidence stands alone. [185] I am troubled by the failure to call Ginnie Sea as a witness. However, especially in the absence of cross-examination, I am not prepared to conclude that the entire proceeds in the account belong to Mr. Sea. On the other hand, I do not believe Mr. Sea's evidence that he obtained the $190,000 as a shareholder loan, although I find that Mr. Sea was the source of this money. Even if (as reflected in Exhibit 1) the money was deposited for the benefit of DSJ, I would not treat this money as equivalent to money being held in trust for DSJ. In my view, the evidence is simply too thin to support that conclusion. Rather, I find that, given that Mr. Sea was the source of this money, $190,000 should be treated as family property, subject to division. The balance of the account is not family property, subject to division. [186] I turn next to the two TD Direct trading accounts. [187] There is no dispute that these accounts are in Ms. He's name. However, I heard evidence from both Ms. He and EW that the accounts were opened using funds EW had saved, and were opened at a time when he was interested in stock trading but was too young to be permitted by TD to do so. The solution was to

open the accounts in Ms. He's name. On the evidence, EW completely controlled the accounts. Ms. He contributed no funds. [188] In closing submissions, Ms. Zhao argued that I should not accept EW's evidence, in part because on cross-examination he did not recall that he had traded in stocks of a clothing company (Canada Goose). The account statements showed that he did. However, I do not find this a persuasive reason to reject EW's evidence. Based on the statements, there were many different companies involved in the trades. That EW would forget whether an individual company was there or not, without having his memory refreshed by review of the statements, would not be unusual. I find that the assets in these accounts belong to EW, and Ms. He is a bare nominee on the accounts. These accounts are not family assets subject to division. [189] The result with respect to these accounts is as follows: Account Value for division CIBC 5982 $12,080.00 CIBC USD 8892 $4,770.00 CIBC GIC 2671 $70,683.00 TD 1710 $7,600.00 RBC 3493 $14,240.00 Fidelity TFSA $46,024.00 Manulife TFSA $49,070.00 RBC Dominion 9320 $190,000.00 HSBC 150 $423.00 HSBC 2G2E $183,186.00 HSBC 2G2F ($182,486.00) (g) Vehicles [190] The vehicles in issue (using the values in the most recent F8 financial statements) are: Item Mr. Sea's value Ms. He's value 2015 Maserati (in Mr. Sea's name) $20,000.00 (none provided) 2008

Cadillac (in Mr. Sea's name) $10,000.00 (none provided) 2016 Buick (in Ms. He's name) (none provided) $27,000.00 [191] I note that in Ms. Ke's Scott Schedule, she listed a value for the Maserati and Cadillac substantially higher than the values in Exhibit 9. However, Exhibit 9 is sworn evidence, on which Mr. Sea was cross-examined. The values in Ms. Ke's Scott Schedule are not. I will therefore use the values in Exhibit 9. [192] There is no independent evidence of the fair market value as of trial of any of these vehicles. [193] Ms. He says that the amount owing on the Buick as of June 30, 2019 ($21,743) was family debt. However, as of trial, the debt was fully paid off. I find, therefore, that as of trial, there was no family debt in relation to the Buick. [194] The result with respect to this property is: Item Value for division 2015 Maserati $20,000.00 2008 Cadillac $10,000.00 2016 Buick $27,000.00 (h) RRSPs and pensions [195] According to Exhibit 9, Mr. Sea has an RRSP with stated a value of $256,400.86. This is family property subject to division. [196] There is no evidence that Ms. He has any RRSPs. [197] I had no submissions on behalf of either party concerning Canada Pension Plan entitlements. However, Ms. Ke included a term in her draft final order that provided either party would be at liberty to file a notice to equalize CPP pension credits. Ms. Zhao's draft order

was silent. [198] Pensions and a spouse's entitlement under a pension plan are specifically identified as family property under s. 84(2)(e) of the FLA. Part 6 of the Act deals specifically with pension division. In the absence of submissions, I conclude that the parties are content to have Canada Pension Plan entitlements divided in accordance with Part 6 of the FLA. Accordingly, I order that these be divided in accordance with Part 6 of the FLA from May 1, 2006 (the date of the marriage) to June 30, 2019 (the date of separation). (i) Artwork, jewelry, household contents and miscellaneous assets [199] I will first address the remaining artwork. Photographs of this artwork are found at pp. 154-155 of Tab 7 of Exhibit 4. It was painted by the same artist who painted the "Flowers." [200] The parties agree that this artwork (the "Four Beauties") was purchased for US$46,000. At trial, Ms. He explained that she gave the artist another $5,000, without telling Mr. Sea. [201] None of the artwork has been appraised. Its value as of trial is unknown. The location is the artwork is uncertain. [202] Mr. Sea proposes that the artwork be valued at US$46,000, and that, in the property division, it be allocated to Ms. He at that value, with the result that he receive US$23,000 for his 50% interest. [203] On the other hand, Ms. He proposes that the artwork be valued at $65,000, and that, in the

property division, it be allocated to Mr. Sea at that value, with the result that Ms. He receive $32,500 for her 50% interest. [204] Neither proposal is helpful. [205] I order that, unless within 45 days of the date of these Reasons, the parties have agreed on disposal of the artwork: (a) within 60 days of the date of these Reasons, the artwork is to be appraised by a suitably qualified appraiser; (b) for items that are in Mr. Sea's possession, he will, within 30 days of delivery of the appraisal, pay Ms. He 50% of the appraised value, and he will be entitled to that artwork free of any further claims by Ms. He; and (c) for items that are in Ms. He's possession, she will, within 30 days of delivery of the appraisal, pay Mr. Sea 50% of the appraised value, and she will be entitled to that artwork free of any further claims by Mr. Sea. [206] I turn next to the burial plots. [207] In 2017, the parties purchased two burial plots for $75,037. As of trial, the fair market value for similar sites is $110,800. The parties can also cancel the contract and obtain a refund of approximately $58,698. [208] Like the artwork, neither party wants to keep these burial plots. Rather, each wants the value of the plots to be allocated to the other party on the property division and to receive compensation accordingly. [209] I order that, unless within 45 days of the date of these Reasons, the

parties have agreed on disposition of the burial plots, the burial plots be sold, with the parties having joint conduct of sale, and the net proceeds be divided equally between Mr. Sea and Ms. He. [210] I turn next to household contents, including jewelry. [211] Based on the May Order, the parties were to have dealt with household contents in a comprehensive and organized way. Regrettably, based on the evidence I heard at trial, they did not. There is no satisfactory or reliable evidence either identifying particular items that might be in issue, or identifying the actual whereabouts of any such items. The fair market value of any items is unknown. It was up to the parties and their counsel, if they wished orders to be made, to provide details supported by reliable evidence concerning what was in dispute. They did not. Without reliable evidence, I decline to attempt to make any orders now allocating household contents (including jewelry) to either party for purposes of property division. Instead, I order that: (a) all household contents (including jewelry) retained by either of the parties after the "Effective Date" as defined in the May Order shall remain that party's sole and separate property without any further equalization between the parties; and (b) if items were removed to a storage unit (see the May Order para. 8), and unless the parties agree on the disposition of

such items, all such items shall be sold, with the parties having joint conduct of sale, and the proceeds divided equally. [212] On Exhibit 9, Mr. Sea lists a debt owing to him by a third party, which is described as "to be collected in due course." The amount of the debt is $280,000. This is also family property subject to division. (j) Family debt [213] Both Mr. Sea and Ms. He list debts on their most recent F8 financial statements. [214] There was no real attempt to identify whether the debt had been incurred before or after separation. Debt incurred after the separation date qualifies as family debt only if it was incurred for the purpose of maintaining family property: FLA s. 86(b). [215] I have already taken the debt associated with Ms. He's HSBC stock trading accounts into account above. [216] Mr. Sea listed "Diversified Shareholder Loan" of $200,000 as a family debt. I have already explained above why I do not believe his evidence concerning his claim of a shareholder loan. In any event, even if there was a legitimate shareholder loan, Mr. Sea did not show that it was a debt incurred for the purpose of maintaining family property. It is not family debt. [217] The other debt listed by both Mr. Sea and Ms. He is credit card debt. There was again no real attempt to justify this credit card debt as being incurred "for the purpose of maintaining family property." Counsel

provided no such analysis of specific charges in their closing submissions. The most likely explanation for this debt is that the parties (Ms. He in particular) were using credit cards to pay day-to-day expenses. The money was used for purposes other than maintaining family property, and I so find. These are not family debts. (k) Division and allocation of family property and family debt [218] I turn then to final division and allocation of family property and family debt. [219] To determine whether an equal division of family property and family debt is significantly unfair, the court must first determine the property to be divided and then go through the notional exercise of dividing the property and debt equally. Once this is done, the court must then determine whether such an equal division would be significantly unfair, given the provisions of FLA s.

95. See Polard v. Polard, 2017 BCSC 1963, at para. 19. [220] The remaining family property and family debt subject to division are as follows: Item Value for division 3601 $1,300,000.00 3602 $1,700,000.00 Seymour $675,000.00 Mainland 2109 $765,000.00 Summer Cottage $408,000.00 University High $205,395.00 Maserati $20,000.00 Cadillac $10,000.00 Buick $27,000.00 Sea RRSP $256,400.00 Debt owed to Mr. Sea by third party $280,000.00 Diversified $1,603,500.00 CIBC 5982 $12,080.00 CIBC USD 8892 $4,770.00 CIBC GIC 2671 $70,683.00 TD 1710 $7,600.00 RBC 3493 $14,240.00 Fidelity TFSA $46,024.00 Manulife TFSA $49,070.00 RBC Dominion 9320 $190,000.00 Advance to Ms. He $150,000.00 HSBC 150 $423.00 HSBC 2G2E $183,186.00 HSBC 2G2F ($182,486.00) Total: $7,795,885.00 [221] The "net" family property subject to division is, therefore, $7,795,885.00. 50%, or an equal division, is $3,897,942.50. [222] A proposed allocation, having regard to the allocations presented in the parties' respective Scott Schedules and draft final orders, is as follows: Item Mr. Sea Ms. He Advance to Ms. He $0.00 $150,000.00 3601 $1,300,000.00 $0.00 3602 $1,700,000.00 $0.00 Seymour $0.00 $675,000.00 Mainland 2109 $0.00 $765,000.00 Summer Cottage $408,000.00 $0.00 University High $0.00 $205,395.00 Maserati $20,000.00 $0.00 Cadillac $10,000.00 $0.00 Buick $0.00 $27,000.00 Sea RRSP $256,400.00 $0.00 Debt owed to Mr. Sea by

third party $280,000.00 $0.00 Diversified $1,603,500.00 $0.00 CIBC 5982 $12,080.00 $0.00 CIBC USD 8892 $4,770.00 $0.00 CIBC GIC 2671 $70,683.00 $0.00 TD 1710 $7,600.00 $0.00 RBC 3493 $14,240.00 $0.00 Fidelity TFSA $46,024.00 $0.00 Manulife TFSA $49,070.00 $0.00 RBC Dominion 9320 $190,000.00 $0.00 HSBC 150 $0.00 $423.00 HSBC 2G2E $0.00 $183,186.00 HSBC 2G2F $0.00 ($182,486.00) Totals: $5,972,367.00 $1,823,518.00 [223] Based on this allocation, and to equalize the division, Mr. Sea would make a compensation payment to Ms. He of $2,074,424.50 ($5,972,367.00 minus $3,897,942.50 (i.e., 50% of the net family property)), which I will round to $2,074,400.00. Each party keeps bank and financial accounts that are in that person's name. All of the real property is clear title, and based on the fair market values, Mr. Sea can borrow against the equity in the properties being allocated to him to make the compensation payment. Mr. Sea will not need to liquidate his interest in Diversified. Ms. He receives fewer cash assets than Mr. Sea. However, she received the cash advance of $150,000 and the net proceeds from the sale of University High, and she will receive very substantial cash through the compensation payment. In addition, she will receive income-producing properties in Mainland 2109 and Seymour (assuming she wishes to continue to rent both or one of them). [224] I turn then to

consider whether an equal division would be significantly unfair. [225] In his notice of family claim (as amended), Mr. Sea sought an order for unequal division of family property and family debt. However, in Mr. Sea's closing submissions, Scott Schedule and draft final order, the property division presented and sought by Mr. Sea appeared to be essentially equal. The submissions made by Ms. Zhao on Mr. Sea's behalf focussed on what Mr. Sea asserted was the dissipation of certain family assets (Central, University High and Ms. He's HSBC stock trading accounts) by Ms. He. As I understood them, these submissions were essentially defensive, in response to Ms. He's claims for an unequal division of family property and family debt, and designed to show that an equal division was not significantly unfair. [226] On the other hand, based on Ms. Ke's closing submissions, Ms. He is seeking an unequal division (in her favour) of family property and family debt, and says that she should receive 60% of the net family property. Ms. He relies on s. 95(2)(b), (c), (d), (f), (g), (h) and (i) to support her claim to an unequal division. [227] However, neither counsel provided me with submissions showing what an equal division would look like. Based on Polard (which Ms. Ke in fact cites in her submissions), that is the foundation for submissions that an equal division is substantially

unfair. [228] Ms. Ke's submissions on behalf of Ms. He, for the most part, say that the various factors in FLA s. 95(2) favour Ms. He. She then argues that the manner in which family property is proposed to be dealt with results in an equal division of family property that is substantially unfair. [229] For example, Ms. Ke's submissions relying on s. 95(2)(b) focus on Central, and on Ms. He's claims about various promises she says Mr. Sea made to her about taking care of her and her sons, buying them cars, putting them through university and so on. Ms. Ke argues that these discussions reflected "oral agreements" between Mr. Sea and Ms. He, for purposes of s. 95(2)(b), and says that Ms. He's testimony about them was not challenged at trial. However, the explanation for the lack of challenge is that the discussions Ms. He described were never put to Mr. Sea during his very lengthy cross-examination. In any event, an "agreement" referred to in s. 95(2)(b) must, in my view, have the elements of a legally enforceable agreement. A bare promise (which is what, essentially, Ms. He described) is not a legally enforceable agreement. Moreover, I did not find Ms. He's evidence (or Ms. Liu's to the extent she supported Ms. He) to be credible, and I find that no "oral agreements" existed. In particular, I find there was no agreement that Central would be (or was) given by Mr. Sea to Ms. He

as a gift. Rather, for over a decade, it was the family home. Even if Ms. He had established through credible and reliable evidence that some legally enforceable agreement existed, it would not follow that an equal division of family property and family debt generally was substantially unfair. [230] Ms. Ke submits that s. 95(2)(c) favours Ms. He, and supports her claim for an unequal division because "arguably [Ms. He's] domestic work availed Mr. Sea to have the freedom in life that he wanted," and he did not contribute to Ms. He's career or career potential. However, the evidence simply does not support the conclusion that Ms. He contributed to Mr. Sea's career or career potential in any meaningful way. Diversified, and Mr. Sea's career as a businessman, was already well-established when the parties began their relationship. It is fair to say that Ms. He's parenting of DSJ prior to separation (a period when Mr. Sea had little involvement) freed up Mr. Sea's time for other pursuits, but these, generally speaking, were not career-related. Once DSJ was in school, Ms. He made her own choices about how she wished to spend her time. She preferred to spend it organizing and attending to the many activities in which she had enrolled DSJ, rather than upgrading her skills and education or pursuing paid work. Ms. He did little or nothing to contribute to her own career or career

potential. In any event, even if this factor favoured Ms. He, it still does not follow that an equal division of family property and family debt is significantly unfair. [231] With respect to s. 95(2)(d), family debt, Ms. Ke points to the credit card debt. However, as I described above, I found that this was not family debt. In addition, as I described above, Ms. He used the equity available to her originally through her ownership of Central (something made possible by Mr. Sea), and the credit available to her through the TD LOC, to fund her expenses, including expenses associated with HW and EW. After Mr. Sea paid off the TD LOC principal in 2014, Ms. He for a second time drew down all the funds available. Family debt cannot, in my view, justify an unequal division of family property. [232] In her submissions concerning s. 95(2)(f), Ms. Ke mentions the payments made by Diversified to J Spa. However, based on both Mr. Burnham's and Mr. Tidball's valuations of Diversified, the evidence does not support the conclusion that these payments, after the date of separation, caused any significant decrease in the value of Mr. Sea's shares in Diversified, beyond market trends. Again, even if this factor favoured Ms. He (and I am not persuaded it does), it does not follow that an equal division is significantly unfair. [233] Ms. He says that she paid off the loan on the Buick and

therefore caused a significant increase in the net value of that family property. However, the property division proposed above contemplates that she be allocated the whole of the fair market value of that asset. [234] In her submissions concerning s. 95(2)(g), Ms. Ke comments on the money and other financial support Mr. Sea gave to his daughters during his relationship with Ms. He. In my view, Ms. Ke's submissions to the effect that Mr. Sea contributed significantly to the purchase price of the current homes of his daughters are essentially conjecture and not consistent with the evidence at trial. There is little doubt that money and other financial support Mr. Sea provided to his daughters were indeed substantial. However, and assuming for the sake of argument that Mr. Sea's treatment of his daughters resulted in a disposition of family property that caused Ms. He's interest to be adversely affected, Ms. He has failed to show that Mr. Sea was not acting in good faith. Ms. He does not complain that Mr. Sea providing the down payment that enabled Ms. He's parents to purchase Wilson is a factor under s. 95(2)(g), for example. [235] Ms. He also spent substantial sums of money on HW and EW. She has not accounted in detail for how she used the money from the TD LOC after it was paid down for the first time in March 2014, or for how she used the net proceeds (over $200,000) from the

sale of University High. But Mr. Sea has also failed to show that she was not acting in good faith. In that sense, the arguments each advances against the other are similar. However, in my view, the facts do not fall within what is described in FLA s. 95(2)(g), so as to justify an unequal division. [236] Ms. Ke also relies on FLA s. 95(2)(h) to argue that an equal division is substantially unfair to Ms. He. Ms. Ke argues that, if 3601 and 3602 are transferred to Mr. Sea, while Mainland 2109 and Seymour are transferred to Ms. He, then Ms. He will not get the benefit of the capital gains exemption associated with sale of a principal residence, and be liable for capital gains tax on the sale of her two properties. [237] However, there was no suggestion at trial that, if Mainland 2109 and Seymour are allocated to her, Ms. He had any immediate plans to sell either of them. Rather, the more likely scenario is that she will retain them as income-producing rental properties for at least the foreseeable future. When either of them might be sold, for what amount, and triggering what kind of tax consequences and liabilities are all purely speculative. [238] In Jaszczewska v. Kostanski, 2016 BCCA 286, Harris J.A. (for the court) noted that contingent tax liabilities can be dealt with on an "if and when" basis: see para.

69. However, in this case, it is not clear when or in what amount taxes will be exigible: see Maguire, at para.

38. In those circumstances, I am not persuaded that, having regard to s. 95(2)(h), an equal division is substantially unfair. [239] Finally, Ms. Ke relies on s. 95(2)(i), "any other factor . . . that may lead to significant unfairness." Ms. Ke argues that lack of financial disclosure and adverse inferences can be factors under s. 95(2)(i) to support an unequal division, in favour of Ms. He. Ms. Ke argues that such an order is justified because "on a preponderance of evidence it is more likely than not" that Mr. Sea hid assets or transferred what would have been family assets into other forms, thus depriving Ms. He of her fair share of family assets. However, this again is essentially speculation, and Ms. He has failed to establish that Mr. Sea has undisclosed assets. Ms. He's suspicions are not evidence. Ms. Ke says further that, if Ms. He's arguments relying on s. 95(2)(f) and (g) have not succeeded, they should be considered again here. Having rejected them as providing a basis for an unequal division, I cannot see a rational basis for giving them new life under s. 95(2)(i). It is true that Mr. Sea did not call Ginnie Sea to give evidence, which might possibly provide the basis for an adverse inference to be drawn. However, Mr. Sea was open about the money and financial support he provided for his daughters. Gina Sea's evidence confirmed what Mr. Sea had said. There is no

reason to think that, if she had been called, Ginnie Sea would have given evidence that was materially different. [240] The test for significant unfairness under FLA s. 95 is explained in Jaszczewska, at paras. 41-43: [41] . . . The test of "significant unfairness" imposes a more stringent threshold than the mere "unfairness" test of the FRA to allow unequal division by a court. As Mr. Justice Butler observed in Remmem v. Remmem, 2014 BCSC 1552, "significant" is defined as "extensive or important enough to merit attention" and the term refers to something that is "weighty, meaningful or compelling." He concluded that to justify an unequal distribution "[i]t is necessary to find that the unfairness is compelling or meaningful having regard to the factors set out in s. 95(2)": Remmem at para.

44. As the judge here noted at para. 162 of her reasons, the Legislature intended the general rule of equal division to prevail unless persuasive reasons can be shown for a different result. I agree. [42] No doubt the nuanced meaning attaching to the test of "significant unfairness" will develop in the case law. . . . [H]owever, one can say that reapportionment will require something objectively unjust, unreasonable or unfair in some important or substantial sense. [43] The determination of whether an equal division would be significantly unfair is also guided by a more precise identification of relevant factors than was found in the FRA. . . . [241] More recently, Garson J.A. (for the court) summarized the test in Singh v. Singh, 2020 BCCA 21, at para. 134: [134] In summary, it is clear that the Legislature intended the general rule of equal division to prevail unless persuasive reasons can be shown for a different result: Jaszczewska at para.

41. Reapportionment will require something objectively unjust, unreasonable, or unfair in some important or substantial sense. This is in contrast to the previous legislation where courts had discretion under s. 65 to reapportion property or debt where it would be simply "unfair" not to do so. The threshold for "significant unfairness" is high. There must be a real sense of injustice that would permeate the result if the court did not deviate from the presumptive equal division. [242] When I consider the results of an equal division, in the light of the factors under s. 95(2) relied on by Ms. He, I am not persuaded that an equal division of the net family property, as set out in the proposed allocation, is substantially unfair to Ms. He. I have explained above why the proposed allocation, with a compensation payment payable by Mr. Sea to Ms. He, is reasonable and fair. [243] Accordingly, I order that the following family property be allocated as follows: Item To Mr. Sea To Ms. He Advance to Ms. He $0.00 $150,000.00 3601 $1,300,000.00 $0.00 3602 $1,700,000.00 $0.00 Seymour $0.00 $675,000.00 Mainland 2109 $0.00 $765,000.00 Summer Cottage $408,000.00 $0.00 University High $0.00 $205,395.00 Maserati $20,000.00 $0.00 Cadillac $10,000.00 $0.00 Buick $0.00 $27,000.00 Sea RRSP $256,400.00 $0.00 Debt owed to Mr. Sea by third party $280,000.00 $0.00 Diversified $1,603,500.00 $0.00 CIBC

5982 $12,080.00 $0.00 CIBC USD 8892 $4,770.00 $0.00 CIBC GIC 2671 $70,683.00 $0.00 TD 1710 $7,600.00 $0.00 RBC 3493 $14,240.00 $0.00 Fidelity TFSA $46,024.00 $0.00 Manulife TFSA $49,070.00 $0.00 RBC Dominion 9320 $190,000.00 $0.00 HSBC 150 $0.00 $423.00 HSBC 2G2E $0.00 $183,186.00 HSBC 2G2F $0.00 ($182,486.00) Totals: $5,972,367.00 $1,823,518.00 [244] Based on this allocation, and to equalize the division, I order that Mr. Sea make a compensation payment of $2,074,400.00 (the "Compensation Payment") to Ms. He. One-half of the Compensation Payment will be due and payable by Mr. Sea not later than 90 days after the date of these Reasons, and the balance owing will be due and payable by Mr. Sea not later than 180 days after the date of these Reasons. There will be no interest owing by Mr. Sea on the outstanding amount provided the Compensation Payment is paid in full by not later than 180 days after the date of these Reasons. [245] Furthermore, based on this allocation, title to 3601, 3602, Mainland 2109 and Seymour will change. I therefore order that: (a) within 30 days of the date of these Reasons, Mr. Sea shall have Form A transfers created for both 3601 and 3602 for execution by Ms. He; (b) Ms. He will return fully executed Form A transfers for 3601 and 3602 to Mr. Sea (or, if directed, to his legal representative) within seven days of receipt; (c) within 30 days of the date

of these Reasons, Ms. He shall have Form A transfers created for both Mainland 2109 and Seymour for execution by Mr. Sea; (d) Mr. Sea will return fully executed Form A transfers for 2109 Mainland and Seymour to Ms. He (or, if directed, to her legal representative) within seven days of receipt; (e) the costs of all transfers shall be born equally. [246] Further, with respect to 3601, I order that, within 45 days of the date of these Reasons, Ms. He shall cause to be removed all of her personal belongings from 3601 and deliver all keys and fobs to Mr. Sea (or, if directed, to his authorized representative), and thereafter, Mr. Sea is entitled to exclusive occupancy of both 3601 and 3602.

5. Parenting of DSJ [247] To their credit, the parties agree on some things concerning DSJ's parenting. They agree that they should both be guardians of DSJ. They also agree that DSJ's primary residence will be with Mr. Sea, as it has been for some time. [248] There is also some agreement concerning Ms. He's parenting time with DSJ. The parties agree that parenting time should be in accordance with DSJ's wishes. However, Ms. He seeks an additional term whereby her parenting time with DSJ would also be in accordance with a counsellor's recommendations. [249] The parties do not agree concerning the allocation of parental responsibilities. Mr. Sea says that he should have final decision-making power if he and Ms. He are unable to agree. Ms. He says that if they are unable to agree, then a court application should be required. [250] A consent order was made at the parties' judicial case conference on September 30, 2020 for the preparation of a full report under s. 211 of the FLA. Dr. Michael Elterman was retained, and his report dated April 22, 2021 was entered into evidence as Exhibit 19. Dr. Elterman also testified at trial. [251] Dr. Elterman interviewed all of Mr. Sea, Ms. He and DSJ twice. The interviews with Mr. Sea and Ms. He were through interpreters. Dr. Elterman explained that he saw DSJ alone. DSJ had just turned 15 when he was interviewed, so the information about him

and from him in Dr. Elterman's report is somewhat dated. Nevertheless, I found Dr. Elterman's report to be a valuable source for DSJ's views on his circumstances and his relationships with his parents. [252] DSJ declined to see Dr. Elterman with Ms. He, explaining that they had not talked to one another for over a year. [253] In his report, Dr. Elterman commented on the negative effects on DSJ of the parties continuing to live together under one roof after separation: . . . Since the time of the separation . . . the parents have continued to reside in the same home together. [DSJ] has overheard many of their arguments and clearly understands what they each allege about each other. It is unfortunate that they have had to remain in the same home together because [DSJ] has been brought into the situation in a way that he should not have been. [DSJ] has made it clear to both parents that he wants to live with his father . . . [254] In his evidence at trial, Dr. Elterman said that there was no discrepancy between what Mr. Sea and Ms. He described to him and what DSJ told him. [255] Later in his report, Dr. Elterman said concerning his interviews with DSJ: [DSJ] says that the situation leading up to the separation and following the separation has caused him to develop in a particular direction. He feels that he is more emotionally independent of his parents and he has become more

assertive in asking teachers and others for help. He says that his mother would compare his grades to other students and thereby try to create an incentive which acted only to unmotivate him. In contrast, he says that his father was strict when he was younger but now is more understanding and less strict. He says that the advice he would give his father to be a better parent is to listen more and be less stubborn. When I spoke to [DSJ] about his mother and his relationship with her, he says that she would be very loud and at times would scare him. He says that as a young child he had a fear of her. He describes that there were incidents where she was physically abusive. The advice that he would give her to be a better parent is that her temper was too fast and intense and that she has difficulty talking without getting angry. He says that throughout his childhood he would hear his parents fighting and in order to cope, he began to see himself as an outsider. He also feels that he shut down emotionally to cope with the situation. The effect on him was that now when he sees two parents with a child in public, it has an effect on him because he wishes that he had that kind of family and the kind of relationship with his parents. [DSJ] clearly says that he has taken sides between the 2 parents . . . He now says that he feels more relaxed with his father and sees him as less

reactive and less controlling. . . . Asked about a relationship with his mother now, he says that he is not ready but when things settle down in the family, he may reconcile with her. [256] In his evidence at trial, Dr. Elterman elaborated on DSJ taking sides, and explained that DSJ felt compelled to take his father's side based on what he had experienced. According to Dr. Elterman, DSJ did not see the intensity of Ms. He's parenting when he was younger as good parenting, and he did not understand why Ms. He pushed him in a way that was unpleasant for him. Putting DSJ in fencing competitions, for example, was not a pleasant experience for him. Rather than enjoying activities, DSJ felt pushed and pressured by his mother. Dr. Elterman explained that DSJ had found a way to survive in a high-conflict family where he felt under pressure from his mother. In Dr. Elterman's opinion, DSJ's feelings towards Ms. He were reasonable as a consequence of Ms. He's parenting, which was too intense and too much. On the other hand, DSJ was not uncritical of Mr. Sea or of his parenting. [257] Dr. Elterman described DSJ's feelings (at least as of February 2021) and his reaction to the conflict between his parents as somewhat immature for a 15-year-old. This was one of the reasons why Dr. Elterman believed that DSJ would benefit from counselling. In his report, Dr. Elterman said: While [DSJ] is 15

years old, he is also quite caught up in the dispute between his 2 parents. . . . Although he is 15 he is still at a point in his development where he is functioning as an early adolescent where following a divorce, there needs to be someone who is right and someone who is wrong, someone who is at fault and someone who is a victim. . . . He has yet to develop the perspective of an older teen who sees his parents as just people . . . In order to move towards a situation where [DSJ] finds more peace and is able to have a relationship with both parents, I would recommend as follows: I would recommend that as [DSJ] is still caught up in the emotional turmoil and the negative effects that this has had on his personality and functioning, it might be helpful for him to see a counsellor in order to sort out what has happened. The aim of this is to move him towards a more mature perspective of the fact that there may be a different way of looking at what has taken place between his parents and within the family. Through this, he will likely develop a more mature perspective on what has happened and come to understand that even though his mother might have taken the wrong approach to motivating him, that it was well-intentioned and done out of anxiety for his future and care for him. I think that at a certain point in his counselling there may be an opportunity for the counsellor to say

that [DSJ] is now ready to have his mother attend some sessions so that they can start talking about the future and what she might want to apologize for and demonstrate to him that she has now some insight into what she did that she takes responsibility for. At that point he may be more receptive to hearing an apology and a desire to have a more meaningful relationship as he gets older. [258] In his evidence at trial, Dr. Elterman explained further that counselling would help DSJ reframe the situation relating to his parents. A good counsellor can help DSJ gain perspective on his parents' divorce and help him feel less angry toward his mother. In Dr. Elterman's opinion, DSJ has room for change, and he was not outright rejecting his mother. Dr. Elterman observed DSJ to be mildly irritated when speaking about his mother. However, the irritation really seemed to be about the family situation. Dr. Elterman explained that the conflict between Mr. Sea and Ms. He is detrimental to DSJ, and the sooner each parent can have their own home (in contrast to the current arrangement), the better it is likely to be for DSJ. [259] Moreover, Dr. Elterman considered it important that Ms. He also have appropriate counselling by someone who has read Dr. Elterman's report and who could coach Ms. He on the approach she should take to rebuild her relationship with DSJ, including what she should and

should not say to her son. To rebuild their relationship, Ms. He needs to remember that their history was not a pleasant experience for her son. She needs to be willing to apologize to him for that and change the way she relates to him. [260] When Mr. Sea and Ms. He separated (and as DSJ described to Dr. Elterman), DSJ was not doing well. He was very angry and acting out in very concerning ways. However, according to Mr. Sea, in the last two years, the situation is much improved. As of trial, DSJ has a circle of close friends who play basketball and play computer games together. According to Mr. Sea, DSJ's school work has improved significantly, and in addition to receiving straight As, he also received the Principal's award at school. According to Mr. Sea, DSJ has decided that he would like to go on to study nuclear engineering after he finishes high school. When Mr. Sea is in Nanoose Bay, DSJ stays with his half-sister Ginnie Sea and her husband. According to Mr. Sea, they have a very good relationship, and Ginnie Sea is teaching DSJ how to drive. This past summer, DSJ attended summer school. Mr. Sea explained that DSJ finished a whole year of programs in six weeks, getting straight As. DSJ continues to take guitar lessons, which he enjoys, and has also started teaching guitar. According to Mr. Sea, DSJ is helping out with household chores, including laundry and meal

preparation. DSJ is in a much better frame of mind and more settled. [261] There is no dispute that, when making an order respecting parenting, guardianship or parenting time, I must consider the best interests of the child only, and all of the child's needs and circumstances must be considered: the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16 and the FLA s. 37. [262] I am satisfied that it is in DSJ's best interests that both of his parents be guardians, and I so order. [263] I am also satisfied that it is in DSJ's best interests that his primary residence be with Mr. Sea, and I so order. [264] I turn next to parenting time for Ms. He. [265] Given DSJ's age (almost 17) and the evidence concerning his current status and level of maturity, I give the views DSJ expressed to Dr. Elterman concerning his relationship with his mother and the circumstances in which he is willing to have contact with her substantial weight. I have concluded that any parenting time for Ms. He should be in accordance with DSJ's wishes. Ordering parenting time in accordance with DSJ's wishes and "as per a counsellor's recommendations," as proposed in Ms. Ke's draft final order, is neither practical nor realistic for someone who is almost 17. Based on the evidence from Dr. Elterman, DSJ is open to reinstating a relationship with his mother. However, there are things that need to happen first,

including things that Ms. He herself needs to undertake, such as the counselling described by Dr. Elterman. [266] I therefore order that Ms. He's parenting time, including phone and on-line time, with DSJ will be determined by DSJ and in accordance with his wishes. [267] I note that at the judicial case conference on September 30, 2020, the parties consented to an order that they would enroll DSJ in counselling "with a counselor to be mutually agreed upon." However, nothing was done. There can be little doubt, particularly in view of Dr. Elterman's evidence, that counselling is in DSJ's best interests, especially to move forward with repairing his relationship with his mother. At trial, when Dr. Elterman was asked if he could provide recommendations for counsellors, he said this was something he could do. [268] I therefore order that: (a) within 30 days of the date of these Reasons, the parties seek recommendations from Dr. Elterman with respect to counsellors for DSJ; (b) if the parties are unable to agree on a choice of counsellor within 30 days after Dr. Elterman provides his recommendations, then Mr. Sea will have the authority to decide on the counsellor and also the responsibility for making the arrangements for DSJ to begin counselling with that counsellor; and (c) the arrangements for DSJ to begin counselling must be completed not later than 60 days after Dr. Elterman

provides his recommendations. [269] I turn next to the allocation of parental responsibilities. [270] I have considered the terms relating to the allocation of parental responsibilities in the draft final orders provided by Ms. Zhao and Ms. Ke. Both propose that the parties share (or jointly exercise) decision making responsibilities and essentially adopt the list in s. 41 of the FLA (although Ms. Zhao's draft final order contemplates the terms being made under s. 16.3 of the Divorce Act). The principal difference is that, in the event the parties are unable to reach agreement after consulting with one another, Ms. Zhao proposes that Mr. Sea have the final say, while Ms. Ke proposes that the parties must apply to court for an order or direction. [271] I note that there has been no order or agreement allocating parental responsibilities. Thus, strictly speaking, the parties have been operating under s. 40(2) of the FLA, which provides: Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances. [272] In practice, Mr. Sea has made the decisions. I conclude that this is on the basis of the "high conflict" nature of this case, and that

consultation between Mr. Sea and Ms. He would be unreasonable or inappropriate (or both) in the circumstances. [273] In any event, each party is now asking for orders to be made. [274] Because DSJ's primary residence will continue to be with Mr. Sea, and having regard to DSJ's age and estrangement from Ms. He, I have concluded it is in DSJ's best interests that the parental responsibilities in s. 41 of the FLA should be allocated to Mr. Sea, with the following exceptions: (a) with respect to those responsibilities in s. 41(d), (f) and (h), each party will exercise each of those responsibilities in consultation with the other party. If, after consultation, the parties are unable to agree, Mr. Sea shall have final decision-making authority, and Ms. He will have the right to apply for directions on any decision that Ms. He considers contrary to the best interests of DSJ, under s. 49 of the FLA; (b) with respect to s. 41(j), each party is entitled to request and receive from third parties health, education or other information respecting DSJ. [275] In their draft final orders, both Ms. Zhao and Ms. Ke included conduct orders (paras. 48-50 in Ms. Zhao's draft order and paras. 10-12 in Ms. Ke's draft order) concerning communications. The terms proposed are similar but not identical. Neither Ms. Zhao nor Ms. Ke made submissions concerning them in closing argument. [276] There was some

evidence from Dr. Elterman that Mr. Sea is at the very least careless in how he describes Ms. He to others, including to DSJ, and uses unflattering and pejorative language. This conduct is not in the best interests of DSJ in particular, and shows poor judgment on Mr. Sea's part. In that light, conduct orders are appropriate. I therefore order that: (a) neither party shall make any negative, insulting, derogatory or disparaging comments about the other party within the hearing or in the presence of DSJ; and (b) neither party shall permit third parties to make any negative, insulting, derogatory or disparaging comments about the other party within the hearing or in the presence of DSJ.

6. Support - determination of Guidelines incomes [277] The main issues relating to child and spousal support concern quantification of each party's income for purposes of the Federal Child Support Guidelines, SOR/97-175 (the "Guidelines"). [278] Quantification of Mr. Sea's Guidelines income is relevant in relation to sharing of s. 7 expenses under the Guidelines. It is also relevant to quantification of spousal support payable to Ms. He. The definition of "guideline income" under the Guidelines is used as the starting point for determining a payor spouse's income under the Spousal Support Advisory Guidelines (the "SSAG"): see s. 6.1 of the SSAG and McKenzie v. McKenzie, 2014 BCCA 381, at para. 96. (a) Basic principles [279] The basic principles relating to a parent's child support obligations are well-established. [280] Child support is the right of the child, and it survives the breakdown of a marriage. Parents have a joint and ongoing legal obligation to support a child of the marriage, so that the children continue to benefit from the financial means of both parents just as they would if the parents were still together. [281] Section 15.1(3) of the Divorce Act provides that the calculation of child support is governed by the Guidelines. In order to meet a parent's child support obligation, each parent must earn what that parent is capable of earning within the specific

context and circumstances of the family. This principle is reflected in s. 26.1(2) of the Divorce Act, which provides that the Guidelines are "based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation." [282] The Guidelines provide that a spouse's annual income is determined by the court in accordance with sections 16 to 20. Section 20 is not relevant here. However, the other sections provide in relevant part as follows: Calculation of annual income 16 Subject to sections 17 to 20, a spouse's annual income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III. Pattern of income 17 (1) If the court is of the opinion that the determination of a spouse's annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse's income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. . . . Shareholder, director or officer 18 (1) Where a spouse is a shareholder, director or officer of a corporation and the

court is of the opinion that the amount of the spouse's annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse's annual income to include (a) all or part of the pre-tax income of the corporation . . . for the most recent taxation year; . . . . . . Adjustment to corporation's pre-tax income (2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm's length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances. Imputing income 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; . . . (b) Ms. He's Guidelines income [283] In Ms. He's case, especially since she will be

the payor of basic child support, the main questions are whether income should be imputed to her under s. 19 of the Guidelines, and, if so, how much. [284] Imputing income is the mechanism by which the court gives effect to the legal requirement that a parent must earn what the parent is capable of earning. In other words, when determining the child support obligation, the court considers not only the amount of income a parent actually earns, but the amount of income a parent could earn if working to capacity. [285] For the purposes of both child and spousal support, there is a broad judicial discretion to impute income to either or both spouses. The party seeking to have income imputed to the other spouse has the burden of establishing an evidentiary basis for such a finding. However, the payor parent must establish that the needs of the child require the parent to stay home. The test for imputing income for intentional under-employment or unemployment is one of reasonableness, having regard to a parent's capacity to earn income in light of the parent's age, education, health, work history and work availability. See Marquez v. Zapiola, 2013 BCCA 433, at paras. 36-38; McCaffrey v. Paleolog, 2011 BCCA 378, at paras. 47-49; Hanson v. Hanson, 1999 CanLII 6307 (B.C.S.C.), at para. 14; Watts v. Willie, 2004 BCCA 600, at para. 16; J.R.G. v. J.C.K., 2021 BCSC 616, at para. 107 (and

the cases cited there). A parent is intentionally under-employed if that parent chooses to earn less than the parent is capable of earning: Melnyk v. Glynn, 2012 BCSC 219, at para. 29. [286] Ms. Zhao argues that, with respect to ongoing child support, an annual Guidelines income of $69,000 should be imputed to Ms. He, based on imputed employment income of $48,000 and interest and other investment income of $21,000. In the alternative, Mr. Zhao argues that, at a minimum, an annual Guidelines income of $53,500 should be imputed to Ms. He, based on imputed employment income of $32,500 together with interest and other investment income of $21,000. Employment income of $32,500 is based on the minimum wage of $15.65 per hour, for a 40 hour week. [287] Ms. Zhao argues that Ms. He has made no genuine efforts to find paid work since the parties separated in June 2019, and she is intentionally unemployed. [288] On the other hand, Ms. Ke argues that, in the first year following pronouncement of judgment, an annual Guidelines income of $15,000 should be imputed to Ms. He, provided that, in the division of family property she receives Mainland and Seymour, both of which have been (and are likely to continue to be) income-producing. Ms. Ke argues that, in the second year and thereafter, an annual Guidelines income of $30,000 should be imputed to Ms. He. [289] In my view, the position

advanced by Ms. Ke in argument is not reasonable and unacceptably minimizes Ms. He's child support obligations. [290] There is no reliable evidence that Ms. He's age, education, health or work history would present barriers to Ms. He earning at least the minimum wage. There is little dispute that when DSJ was young, Mr. Sea was uninvolved as a parent, and left DSJ's parenting to Ms. He. However, I have not been persuaded that, once DSJ started school, there was a good reason why Ms. He could not have spent at least some of her time upgrading her skills to improve her employability, and finding paid work. Instead, Ms. He preferred to spend her time organizing and attending DSJ's many activities, which often involved considerable expense. This was a matter of Ms. He's personal choice, and her absence from the workforce was not something dictated by DSJ's needs. Ms. He has not shown that DSJ's needs, at a time when she was the primary parent, required her to be unemployed. In hindsight, the benefits to both Ms. He and DSJ of Ms. He's intense pursuit of multiple activities for DSJ when he was young are doubtful. As I discussed above, they became a source of unhappiness for DSJ and contributed to his eventual estrangement from his mother. [291] Since separation, Ms. He's efforts to find paid work have been meagre at best. Her claims that her health prevents her from working even

part-time are based almost completely on her self-reports. There is no reliable, independent evidence to support her claims. It was suggested that Ms. He's poor English language skills present a significant obstacle to Ms. He earning at least minimum wage. However, there is very little to support the conclusion that this is the reason why she is unable to find paid work, earning at least a minimum wage. Ms. He has done virtually nothing, either during the marriage or after the parties separated, to improve her skills. On the other hand, on the evidence, Ms. He is an intelligent person, and she has reasonable organizational and bookkeeping skills that could be put to use to earn at least a minimum wage income. [292] I also note that in the budget presented as part of Ms. He's F8 financial statement filed July 12, 2022, she shows monthly expenses of over $14,000. After removing legal expenses, her remaining monthly expenses are about $6,000 including about $1,600 per month for expenses related to HW and EW. To fund these expenses requires a reasonable gross income, much more than an annual income of $30,000. Ms. He must expect to contribute to both her own and DSJ's support. [293] Given the principles that apply when the court is asked to impute income to a parent under s. 19(1)(a) of the Guidelines, and on the evidence, I conclude that employment income of $32,500 should imputed

to Ms. He, and that an annual income of $53,500 should be imputed to her for purposes of the Guidelines and her obligation to pay basic child support for DSJ. (c) Mr. Sea's Guidelines income [294] In Mr. Sea's case, the main question concerns how his Guidelines income should be quantified in the light of sections 17 and 18 of the Guidelines. [295] Both Mr. Burnham and Mr. Tidball prepared Guidelines income reports for Mr. Sea. [296] Mr. Burnham prepared two reports, marked as Exhibit 22 and Exhibit 23. Exhibit 22 provided a calculation of Guidelines income for Mr. Sea for the years 2016 to 2020. Exhibit 23 provided a calculation for the years 2019 to 2022. Mr. Tidball prepared a report dated September 11, 2022, which was marked as part of Exhibit 20, and which commented on Mr. Burnham's Exhibit 23 report. [297] Ms. Zhao objected to the admissibility of Mr. Burnham's reports, on the grounds that neither satisfied the criteria for admission as expert reports. The same could be said for Mr. Tidball's income report. [298] However, as Mr. Lamer made clear in his closing submissions on behalf of Ms. He, Mr. Burnham's reports were not being tendered as expert reports. Despite some of the language used in the reports, they did not contain opinions. Rather, they simply set out computations. Mr. Lamer pointed out that a practice has developed to request Guidelines income reports from

accountants because, as compared with legal counsel, accountants are better able to prepare a presentation of the facts consistent with the accounting information available. [299] I agree with Mr. Lamer. Neither Mr. Burnham's reports nor Mr. Tidball's report concerning Guidelines income qualify as opinion evidence and none of the reports is admissible as an expert report. They are therefore not entitled to be "weighed" as expert opinion evidence would be. Rather, the reports function essentially as argument, organizing and summarizing information and evidence before the court in the manner that would be expected in closing submissions. [300] In closing submissions, counsel for both Mr. Sea and Ms. He accepted that Mr. Sea's Guidelines income should be determined having regard to his income over the last three years (see Guidelines s. 17(1)), and accepted that Diversified's pre-tax income (adjusted to add back the payments to E&H and J Spa) should be included (see Guidelines s. 18(1)(a)). Based on the calculations in both Mr. Burnham's and Mr. Tidball's income reports, there is also general agreement about the treatment of Mr. Sea's dividend income. [301] In her closing submissions, Ms. Zhao argued that the most appropriate determination of Mr. Sea's Guidelines income is as follows: Description 2019 2020 2021 50% of Diversified's pre-tax

profit $125,362.00 $164,185.00 $38,909.00 Employment income $100,000.00 $120,000.00 $120,000.00 CPP and OAS $1.00 $0.00 $14,885.00 Interest and other investment income $7,045.00 $5,339.00 $3,874.00 Rental income (net) $31,121.00 $27,359.00 $20,559.00 Total income $263,529.00 $316,883.00 $198,227.00 [302] Based on this presentation, the three-year average would be $259,546. [303] Ms. Zhao also argues (relying on cases such as Bell v. Bell, 2009 BCCA 280, at para. 7, and B.D.D. v. G.T.S., 2021 BCSC 1010, at para. 29) that Mr. Sea's Guidelines income for a given year should be calculated based on the previous year's income, so that (for example) Mr. Sea's 2020 income would be used as his Guidelines income for 2021. However, if Mr. Sea's income is being determined under s. 17 of the Guidelines, what matters is the pattern of income over three years. [304] In Mr. Lamer's submission, I should start with the calculations in Mr. Burnham's reports. This results in an average annual income of $550,330 for the period 2016 to 2020, and $535,840 for the period 2019 to 2021. Thus, in Mr. Lamer's submission, Mr. Sea's Guidelines income for 2022 should be determined at (at a minimum) $535,840, and this amount should be used for both child support and spousal support. [305] In Mr. Tidball's calculations, the three-year average of normalized income for Mr. Sea over the period 2019 to 2021 was

$454,560, in contrast to Mr. Burnham's calculation of $535,840. Among other things, to arrive at his calculation, Mr. Tidball's matched Mr. Sea's personal income (for a calendar year ending December 31) to the following year's corporately available income (with the year ending March 31). [306] However, Mr. Lamer argued that Mr. Sea's Guidelines income (using a three-year average) should be determined to be much higher, namely $612,566, using Mr. Tidball's figures (rather than Mr. Burnham's) for Diversified's normalized income. In submissions, Mr. Lamer noted the reduction in Diversified's profitability in 2020 and 2021, after the parties separated, and despite (for example) an increase in Diversified's revenue for the year ending March 31, 2021. In Mr. Lamer's submission, the increase in Diversified's revenue should have resulted in a corresponding increase in Mr. Sea's Guidelines income. Instead (and essentially adopting Mr. Burnham's figures for Diversified's normalized income), Mr. Tidball concluded that Mr. Sea's Guidelines income decreased by 24.6%, from $447,917 (2020) to $337,998 (2021). Mr. Lamer urges me to conclude that, after the parties separated, Mr. Sea simply funnelled money that had previously been paid to E&H to another - unidentified - non-arm's length entity that he controls. In that light, Mr. Lamer argues that Mr. Tidball's lower calculations should not be

accepted. Rather, in Mr. Lamer's submission, the best estimate of Mr. Sea's Guidelines income averaged over three years is $612,566. [307] However, the primary difficulty with this submission is that it is built on speculation, and the theory (or even parts of it) was never put to Mr. Sea during his very lengthy cross-examination. [308] On the other hand, I do not consider the presentation advanced by Ms. Zhao in submissions accurately reflects all of the money that is available to Mr. Sea for purposes of the Guidelines. It is too low. [309] In my view, the calculation that best reflects the money available to Mr. Sea for purposes of the Guidelines is found in Mr. Tidball's critique of Mr. Burnham's reports. Mr. Tidball did not use his own computations of the amounts paid to E&H and J Spa in his critique, as Mr. Lamer pointed out. However, I did not accept those amounts as accurate based on the evidence before me at trial. Rather, I concluded that Mr. Burnham's amounts were the ones best supported by the evidence. Mr. Tidball's matching of Mr. Sea's personal income (for a calendar year ending December 31) to the following year's corporately available income (with the year ending March 31) was also a reasonable approach to take, in contrast to the approach taken by Mr. Burnham. [310] I conclude therefore that Mr. Sea's Guidelines income for 2022 is $454,560.

7. Child support [311] I order that, based on an imputed Guidelines income of $53,500, and for so long as DSJ remains a child of the marriage, Ms. He pay to Mr. Sea child support for DSJ in the amount of $503 per month, commencing January 15, 2023, and on the 15th of each and every month thereafter for so long as DSJ remains eligible for support, and until further order of the court or agreement of the parties. [312] Ms. Zhao's draft final order included terms (paras. 37-38) concerning the annual exchange of income information and adjustment (if required) of monthly child support. Ms. Ke's draft final order did not. Neither counsel made any submissions on such terms. [313] Section 14 of the Guidelines provides for variation of child support orders in the circumstances described, and no specific order is necessary in that respect. The parties' circumstances are more complicated (as compared to those where a party's line 150 income can be used to determine the Guidelines income) given that I have imputed an income to Ms. He (see Williams v. Williams, 2020 BCSC 597, at paras. 91-93), and determined Mr. Sea's Guidelines income on the basis of a three-year average. However, if the parties wish to include in the order following trial terms concerning review and adjustment of child support that would go by consent, they have liberty to do so. [314] Section 7 expenses will be shared by

DSJ's parents in accordance with s. 7(2) of the Guidelines. The expenses for the counselling that I have ordered for DSJ will qualify as a s. 7 expense, as will other expenses that fall within s. 7(1)(c), which provides as follows: (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic 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; [315] In her draft final order, Ms. Zhao set out items that would be essentially pre-approved as s. 7 expenses. These included expenses for guitar lessons, for post-secondary education and for computer camps/education, software and hardware. In Ms. Ke's draft final order, a term was proposed that Ms. He would be consulted "if s. 7 expenses that are over $5,000 a year will be incurred for" DSJ. Neither proposal is satisfactory. [316] In that light, I remind the parties of the very helpful guidance concerning s. 7 expenses provided by Baird J. in Clarke v. Clarke, 2014 BCSC 824, beginning at para. 48 [emphasis in original]: [48] Section 7 of the [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: [citation omitted]. Food, shelter, clothing and other necessities are all ordinary, as are many educational, extracurricular and recreational expenses: [citation omitted]. [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, as follows: (a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic 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; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. [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: [citation omitted]. [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: [citation omitted]. [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: [citation omitted]. ● A home computer and other similar technologies do not qualify as extraordinary as they are "common item[s] found in most homes": [citation omitted]. ● 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": [citation omitted]. [317]

Like Baird J., I express the hope that this guidance and explanation will allow the parties to come to agreement on special and extraordinary expenses without any more bitterness between them or the necessity of further court proceedings. Accordingly, I decline to make any further orders at this time concerning s. 7 expenses. [318] In her draft final order, Ms. Zhao included a term that, pursuant to s. 6 of the Guidelines, the parties would each be required to obtain any health insurance for DSJ that is offered through their respective workplaces (if any), and each party would be responsible to maintain that health insurance. Ms. Ke's draft final order was silent on this point. I had no evidence at trial concerning the availability or cost of any such insurance. The budget presented by Mr. Sea in Exhibit 9 is of no assistance. In those circumstances, I decline to make any order. However, if counsel are able to agree on suitable terms that could go by consent, they have leave to include them in the order following trial.

8. Spousal support [319] The objectives of a spousal support order are set out in the Divorce Act s. 15.2(6), which provides that: An order . . . that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [320] No single objective set out in s. 15.2(6) is paramount, and all must be considered by the court: see Moge v. Moge, [1992] S.C.R. 813, at pp. 850-853. The first two objectives relate to compensatory support, and the last two objectives relate to non-compensatory support. Compensatory entitlement will arise where, as a result of the parties' roles during the marriage, one spouse has suffered economic disadvantage or has conferred economic advantages on the other. Most often, such entitlement will arise where one spouse has sacrificed career opportunities in order to take on more of the family's household or child-rearing responsibilities. Upon the dissolution of the marriage, the spouse who has given up opportunities may be entitled to spousal support, either to compensate for diminished earning capacity, or to share in the augmented earning capacity of the other spouse. See Zacharias v. Zacharias, 2015 BCCA 376, at para.

26. Non-compensatory support entitlement focuses on the needs of the spouses and on their respective means. It is based on the idea that spouses, by virtue of marriage, have some ongoing responsibility to care for one another. The degree to which non-compensatory principles will apply will depend on a close examination of not only the means and needs of the spouses, but also of the nature of the marital relationship and its duration: Zacharias, at para. 27. [321] A court is not required to decide one basis of support to the exclusion of the others, and the doctrine of equitable sharing is the overarching principle to be focussed on by the court: see Chutter v. Chutter, 2008 BCCA 507, at para. 49. [322] Moreover, under the Divorce Act s. 15.2(4), courts must: . . . take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. [323] Ms. He says that she is entitled to spousal support on both compensatory and non-compensatory grounds. With respect to quantum, Ms. He says that it should be at the high end of the range under the SSAG and that she is entitled to indefinite spousal support. [324] Mr. Sea does not dispute Ms. He's entitlement to spousal

support, although he says that her compensatory grounds are weak. However, with respect to quantum, he says that support should be at the low end of the SSAG range and must take into account his age and plans to retire. He also seeks an order that his obligation to pay support terminate absolutely in August 2028. [325] Counsel for both parties also made relatively brief submissions concerning lump-sum spousal support. Ms. He sought lump-sum spousal support in the alternative to periodic monthly payments, and Ms. Ke's draft final order proposed lump-sum support of between about $584,000 and $700,000. Mr. Sea says that a lump-sum award is not appropriate in the circumstances. [326] The factors for consideration where a request is made for lump-sum support are described in Parton v. Parton, 2018 BCCA 273, at paras. 47-48, and N.K. v. M.H., 2020 BCCA 121, at para.

66. One of the considerations is whether the payor has insufficient income to pay spousal support on an ongoing basis. That is not the case here. [327] In my view, the facts do not justify an award of lump-sum spousal support. My analysis will therefore focus on periodic support. [328] In closing submissions, both Ms. Zhao and Ms. Ke provided me with DivorceMate calculations showing the monthly amounts payable at the low, mid and high end of the SSAG range. For example, Ms. Zhao provided a calculation for 2022 (and onward) based on a Guidelines income of $202,346 for Mr. Sea, and assuming that Ms. He would be paying child support for DSJ to Mr. Sea. Using the "custodial payor" formula, monthly spousal support payable by Mr. Sea was calculated at $1,624 at the low end, $1,894 at the mid-range, and $2,165 at the high end. Ms. Ke provided a calculation for 2022 (and onward) based on a Guidelines income of $612,566 for Mr. Sea. Using the "custodial payor" formula, monthly spousal support payable by Mr. Sea was calculated at $8,232 at the low end, $9,604 at the mid-range, and $10,976 at the high end. [329] Unfortunately, counsel's DivorceMate calculations were based on assumptions that I have not accepted concerning each party's Guidelines income, and the calculations therefore provided no real assistance. [330] Based on a Guidelines income for Mr. Sea of $454,560 and using the

"custodial payor" formula under DivorceMate, the monthly amounts payable in respect of spousal support for Ms. He are $5,676 at the low end, $6,622 at the mid-range and $7,568 at the high end of the SSAG range, for a duration of 7.25 to 14.5 years from the date of separation, subject to variation and possibly review. [331] In submissions, Ms. Zhao advanced seven reasons to justify an order for spousal support at the low end of the range: ● the parties' relationship of about 14 years was mid-length; ● as the primary income-earner, Mr. Sea will be the parent primarily responsible for providing DSJ with a solid footing as he reaches adulthood, and paying the larger share of s. 7 expenses related to DSJ's post-secondary education; ● given his age, Mr. Sea is much closer to retirement and has a greater need for retirement savings than Ms. He; ● support at the low end is more likely to provide an incentive for Mr. Sea to continue working; ● the $350,000 "ceiling" under the SSAG s. 11.1; ● Ms. He will benefit from a significant family property award; and ● Ms. He has not become employed since separation and put little or no effort into finding paid work. Support at the low end will provide an incentive for Ms. He to find paid work, so that she can contribute to her own support. [332] With respect to duration, Ms. Zhao submits that eight years from separation would be appropriate and

justified. [333] On the other hand, Ms. Ke argues that support at the high end of the SSAG range is justified because: ● Ms. He has a strong compensatory claim for support, and that this has been recognized as favouring a support award at the higher end of the SSAG ranges both for amount and duration (see the SSAG s. 9.1); ● The parties' 14-year relationship is one of "significant length" and justifies both support at the high end of the range, but also a duration close to that of the parties' relationship; ● Ms. He also has a strong non-compensatory claim to support because the parties' relationship was structured in a way that caused Ms. He to be "fully financially dependent" on Mr. Sea; and ● Mr. Sea's role as the primary income earner and the person primarily responsible for providing DSJ with a solid footing as he moves toward adulthood are factors that are already taken into account in the "custodial payor" formula, and cannot also justify support for Ms. He being at the low end of the range. [334] With respect to duration, Ms. Ke submits (through the terms of her draft final order) that it should be a minimum of 10 years from the date of separation, provided that Ms. He also receive retroactive spousal support calculated at the high end of the range. [335] Section 9 of the SSAG discusses in a general way the factors that can be taken into account in fixing an amount

within the ranges, and determining a time period. These factors include: the strength of any compensatory claim; the recipient's needs; the needs and ability to pay of the payor; work incentives for the payor; property division; and self-sufficiency incentives for the recipient. A strong compensatory claim will be a factor that favours the higher end of the ranges for both amount and duration. Where a recipient has limited income or earning capacity (or both), the recipient's needs may also push an award to the higher end of the ranges for amount and duration. On the other hand, the absence of compelling need may be a factor that pushes an award to the lower end of the range. With respect to self-sufficiency initiatives, support might be fixed at the lower end of the ranges to encourage the recipient to make greater efforts to self-sufficiency, although imputing income also responds to this concern. [336] Section 11 of the SSAG concerns "Ceilings and Floors." It notes that a gross payor income of $350,000 is the "ceiling," and that the formulas should no longer be automatically applied to divide income beyond that threshold. However, it also notes that $350,000 is not a "cap," as spousal support can and often will increase for income above that ceiling. [337] The treatment of payor incomes over $350,000 is discussed in Hathaway v. Hathaway, 2014 BCCA 310, at paras. 44 and

following. Harris J.A. (for the court) wrote, at para. 48 [underlining in original]: [48] In The Spousal Support Advisory Guidelines: A New and Improved User's Guide to the Final Version (2010), the authors comment that "[t]he formulas are not to be applied automatically above the ceiling, although the formulas may provide an appropriate method of determining spousal support in an individual case, depending on the facts" (emphasis in original). The authors state that "[a]bove the ceiling, spousal support cases require an individualized, fact-specific analysis" (emphasis in original). . . . [338] Thus, that Mr. Sea's Guidelines income is more than $350,000 simply means that a more individualized, fact-specific analysis is required when applying the SSAG formulas. It is very clear that an income of $350,000 is not a cap. [339] I do not agree with Ms. Ke concerning the strength of Ms. He's compensatory claim. Ms. He did not sacrifice a lucrative career, or career prospects, in China to come to Canada with Mr. Sea. As I have discussed above in connection with both the division of family property and Ms. He's Guidelines income, Ms. He made personal choices about how she wished to spend her time after DSJ started school. Her absence from the paid workforce was not a financial consequence arising from care of DSJ, whose needs (once he began school) did not require either that Ms. He

remain unemployed or meant that she was unable to upgrade her skills to improve her employability. As a result, Ms. He's actual earning capacity is largely untested. Ms. He was able to finance DSJ's activities (and also provide financial support for HW and EW) by drawing on the TD LOC, to its limits. This was a debt that Mr. Sea paid off in full in 2014, again giving Ms. He access to the whole of the limits (almost $400,000) available, which she again drew down. Ms. He had available to her the majority of the net proceeds from the sale of Central, some of which she used to invest in University High, an income-producing property. [340] Although I have imputed income to Ms. He to arrive at her Guidelines income, setting spousal support at a level that encourages her to pursue economic self-sufficiency within a reasonable period of time remains an important consideration. In my view, a support order at the high end of the range will provide little encouragement to Ms. He. [341] On the other hand, Ms. He has experienced economic hardship as a consequence of the breakdown of the parties' marriage, and currently lacks the means to support herself at a level approaching the marital standard of living. Thus, in my view, Ms. He has a reasonably strong non-compensatory claim. However, she will also benefit from the property division, and have access to a significant amount of cash

through the Compensation Payment. [342] Mr. Sea's age is also a consideration. However, there has never been a time during the parties' relationship when he was working full-time. Rather, he has always been at the least semi-retired. He is not in the position of someone, well past what might be said to be "normal" retirement age, who must continue to work a full-time job to earn enough income to pay spousal support. Mr. Sea has had the luxury of being able to enjoy a very substantial income, one that has (among other things) permitted him to be very generous to his daughters and Diversified employees, without the burden of full-time work. [343] When I take into account all of these factors, as well as the objectives of a spousal support order, I conclude that support at the SSAG mid-range is fair to both parties, subject to a review on the application of either party any time after one year from the date of this judgment. The focus of the review will be Ms. He's employment qualifications and status, and the extent to which she continues to be in need of spousal support. In terms of duration of Ms. He's entitlement to support, I consider that 10 years from separation is fair and reasonable to both parties. [344] I therefore order that, until further court order or agreement of the parties, and subject to review: (a) Mr. Sea pay spousal support to Ms. He in the sum of $6,600 per

month, beginning on January 15, 2023 and on the 15th day of every month thereafter; (b) either party may apply for a review of spousal support any time after one year from the date of this judgment, the focus of the review to be on Ms. He's employment qualifications and status and the extent to which she continues to be in need of spousal support; and (c) Mr. Sea's obligation to pay spousal support to Ms. He will terminate with the payment due and payable on June 15, 2029. [345] The law is clear that either party can apply for a variation in spousal support if there is a material change which justifies a variation. No specific order is necessary in that respect.

9. Retroactive child and spousal support [346] I will deal first with retroactive child support. [347] No child support has been paid by either parent to the other since separation. According to Mr. Sea, he has been paying for DSJ's guitar lessons. He has also been paying for DSJ's orthodontic treatment, which he estimated has cost about $200 per month for several years. Orthodontic treatment would qualify as a s. 7 expense; guitar lessons would not. [348] Mr. Sea's position in closing submissions was that he was content "to essentially let all past spousal and child support be a wash." However, if a retroactive spousal support award is made in favour of Ms. He, Mr. Sea's position is that there should also be a retroactive child support award, requiring Ms. He to pay child support, covering the same period. Mr. Sea presented a calculation of basic child support owing by Ms. He (based on an imputed income of $48,000) through to October 2022 amounting to about $12,000. [349] With respect to Ms. He, it is not altogether clear what is meant by the orders sought in Schedule 2 - Children in Ms. He's amended counterclaim. With respect to support, she asks for [all sic; underlining added]: support in the amount set out in the child support guidelines table for [DSJ] is payable by the respondent. special or extraordinary expenses in accordance with section 7 of the child support

guidelines . . . by consent, an order for support in an amount different than the amount set out in the child support guidelines . . . The "respondent" is Ms. He. [350] As I read her amended counterclaim, Ms. He did not ask for an order that Mr. Sea pay child support. This is not surprising since DSJ's primary residence was with Mr. Sea, and, because of the estrangement between DSJ and Ms. He, Ms. He had no parenting time. In her trial brief filed October 20, 2021, Ms. He did not ask for an order that Mr. Sea pay her child support. Rather, Ms. He's claim that Mr. Sea pay her retroactive child support for DSJ was advanced for the first time at trial. [351] In closing submissions, Ms. He's position concerning retroactive child support was essentially this: ● she does not owe any retroactive child support because she (notionally) contributed rental income from Mainland 2109 and Seymour, and Mr. Sea kept all the income from the parties' joint assets; ● Mr. Sea did not make a claim against her for child support for DSJ; ● Mr. Sea never made an application for any interim order requiring her to pay child support, suggesting that he did not need her to pay child support for DSJ, and no one suffered any hardship as a result of her failure to pay child support; ● there is no reasonable explanation for Mr. Sea's delay in seeking retroactive child support; ● her conduct is not

blameworthy; and ● if she is liable to pay retroactive child support, no income should be imputed to her, and Mr. Sea should be ordered to pay her retroactive child support, based on his Guidelines income, for a period of about three months in 2019, on the basis that after separation, there was a period of shared parenting of DSJ. Ms. He says the amount owing by Mr. Sea is $4,960 per month (based on a Guidelines income of $612,000) and a total of $14,880. [352] The leading case on retroactive child support is D.B.S. v. S.R.G., 2006 SCC 37. Factors that the court will consider in exercising its discretion in making a retroactive child support order include: the circumstances surrounding the delay in applying; the payor parent's conduct; the child's circumstances; and any hardship caused by a retroactive award. See D.B.S., at paras. 100-116, and para.

133. The parental obligation to support a child of the marriage, like the child's concomitant right to support, exists independently of any statute or court order: see D.B.S., at para.

54. An order for retroactive support is discretionary, but not exceptional: D.B.S., at paras. 5 and 97. [353] Ms. He is not correct that Mr. Sea failed to make a claim for child support against her. A claim for child support for DSJ was made when the original notice of family claim was filed in November 2019. That document provided notice to Ms. He that Mr. Sea would be seeking an order requiring her to pay child support for DSJ. [354] I do not see any justification for an order that Mr. Sea is obligated to pay retroactive child support to Ms. He on the grounds that for about three months in 2019 there was shared parenting. This is wishful thinking on Ms. He's part, and in my view, is not supported by the evidence. In addition, Ms. He's claim was advanced for the first time at trial, and therefore unfairness would attach to any award. Moreover, DSJ would get no benefit from such an order; it would simply be a windfall to Ms. He. I note that, in Ms. Ke's draft final order, there is no term requiring the payment by Mr. Sea of retroactive child support to Ms. He. There is only a term that no retroactive child support is owing by Ms. He to Mr. Sea. [355] Mr. Sea has always been capable of financially supporting DSJ, and, since separation he has done so. In that sense, DSJ did not suffer hardship or go without because Ms. He was not paying child support to Mr. Sea. That does not

excuse Ms. He's conduct however, as she remained and remains obligated to provide financial support to her son. In my view, Ms. He's failure to take even minimal steps to put herself in a position to provide financial support to her son amounts to blameworthy conduct. [356] I have concluded that an order requiring Ms. He to pay retroactive child support needs to be made, to reinforce for Ms. He that she has obligations to provide financial support to DSJ and cannot expect Mr. Sea to shoulder the entire burden. The amount at issue, including something for s. 7 expenses for DSJ's orthodontic treatment and based on an imputed income of $48,000 for Ms. He, is (conservatively) about $14,000. I order that Ms. He pay retroactive child support to Mr. Sea in the amount of $10,000. [357] I turn then to retroactive spousal support. [358] Ms. He first made a claim for spousal support when her amended counterclaim was filed in April 2020. By order pronounced September 1, 2020, Mr. Sea was required to pay Ms. He interim spousal support of $4,000 per month, which he has done. [359] Similar considerations to those applicable in the context of child support are also relevant to deciding the suitability of a retroactive award of spousal support: the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on

the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal support as compared with child support. As Cromwell J. explained in Kerr v. Baranow, 2011 SCC 10, at para. 208: [208] Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. In that sense, the entitlement to child support is "automatic" and both parents must put their child's interests ahead of their own in negotiating and litigating child support. . . . In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse's legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. . . . [360] Ms. He seeks an order that Mr. Sea pay retroactive spousal support beginning on the separation date of June 30, 2019, and that the monthly amount be calculated at the high end of the SSAG range. In the draft final order delivered with her closing submissions, Ms. Ke proposed that the amount of retroactive spousal support should be quantified at about

$285,000 (after giving Mr. Sea credit for interim support paid) and an order be made that payment of that amount be due within 90 days of judgment being pronounced. [361] In closing submissions, Mr. Sea reiterated his primary position that retroactive child support and retroactive spousal support should be treated as essentially a wash, with neither party owing anything to the other. However, with respect to retroactive spousal support specifically, his proposal was that the parties (and their counsel) be given 30 days after judgment is pronounced to work out amounts, based on my conclusions concerning Guidelines incomes (among other things), and liberty to come back if they were unable to agree. [362] I am unable to accept the positions advanced by either party. [363] First, with respect to Ms. He, there is no justification for an order retroactive to the date of separation, since she did not make a claim for spousal support until April 2020. As I have explained above, spousal support has a different legal foundation and, unlike child support, there is no "automatic" entitlement. [364] Second, Mr. Sea's proposal that the parties be given 30 days to agree on dollar amounts with liberty to come back to court if they do not agree fails to recognize that when judgment is pronounced at the conclusion of a trial, finality is required. It is not in anyone's interest - including the

court's - to leave the door open for further litigation on significant matters, especially after a long trial in what counsel describe as a high-conflict case. In that regard, I note (and endorse) the comments of Choi J. in Zellweger v. Zellweger, 2018 BCSC 1227, at para. 122 and following, concerning the importance of finality of trial orders in family proceedings. [365] Before deciding whether I should order Mr. Sea to pay retroactive spousal support, I must first quantify an amount. Unfortunately, counsel's submissions did not provide much assistance. [366] From and including April 2020 to December 2022 is 33 months. If I use the same monthly amount for spousal support as I have ordered Mr. Sea to pay going forward ($6,600), the total is $217,800. Mr. Sea has paid interim spousal support of $4,000 per month beginning September 1, 2020. Up to and including December 2022, the total paid (for 28 months) is $112,000. The difference is $105,800. If I use the SSAG low range (about $5,700), the difference is $76,100. [367] However, it does not necessarily follow that either should be the amount Mr. Sea should be ordered to pay as retroactive spousal support. [368] I turn then to the factors to be considered. [369] As will be apparent from my discussion above, Ms. He is in need of spousal support. However, to the extent that Ms. He felt in need of spousal support, it did not rise to

the level where she made any genuine efforts to find paid work or to improve her employability. Instead, in February 2020, she sold University High and had access to over $200,000 in net proceeds. A precise accounting of what she did with that money was never provided. Mr. Sea was paying the housing costs at Beresford. He had no obligation to provide money so that Ms. He could support either HW or EW, neither of whom was a child of the marriage. Based on the budget in Ms. He's F8 filed July 12, 2022, she was spending an average of $800 per month on school fees and supplies for EW, for example. [370] However, I am persuaded that, in the period since April 2020, Ms. He has demonstrated some need for support over and above the court-ordered support of $4,000 per month. [371] In submissions, Ms. He at least implies that Mr. Sea's conduct was blameworthy. However, this was based mostly on speculation. Neither Mr. Sea nor Ms. He fully complied with their respective obligations concerning document disclosure for example. I give this factor little weight. [372] In addition, the trial was originally scheduled to begin in November 2021. However, it was adjourned on Ms. He's application. Mr. Sea opposed the adjournment. This indicates that Mr. Sea was prepared, as of the original trial date, to have matters fully resolved, and was not guilty of delay. [373] Finally, I find there would be

some hardship to Mr. Sea, the payor spouse, if he is required to pay a significant award of retroactive spousal support. Since separation, he has been paying for DSJ's support, without contribution from Ms. He. He has been paying the housing costs for Beresford, which has benefitted Ms. He. As a result of the property division, he will be required to fund the Compensation Payment to Ms. He, which is over $2 million. [374] When I take a holistic view of all of the factors, and the different legal principles and objectives that underpin spousal support, I conclude that an award of $50,000 for retroactive spousal support, payable by Mr. Sea to Ms. He, is appropriate and fair to both parties. [375] In my view, it is appropriate for the retroactive child support owing by Ms. He to be set-off against the retroactive spousal support owing by Mr. Sea. The result is that Mr. Sea is required to pay net retroactive spousal support in the amount of $40,000 to Ms. He. Mr. Sea is to pay this amount in instalments of $2,000 per month beginning February 15, 2023 until fully paid. The balance owing can be paid in full at any time. There will be no interest on the amount outstanding from time to time.

10. Divorce [376] The parties are entitled to a divorce on the grounds that they have lived separate and apart for more than one year. Accordingly, subject to s. 12 of the Divorce Act, I order that the claimant and the respondent are divorced from each other, the divorce to take effect on the 31st day after the date of these Reasons.

11. Summary and disposition [377] In summary, I make the following orders: (1) Mr. Sea's claim to an interest in Wilson is dismissed, and the certificate of pending litigation filed and registered in respect of Wilson is to be cancelled forthwith; (2) subject to s. 12 of the Divorce Act, Mr. Sea and Ms. He are divorced from each other, the divorce to take effect on the 31st day after the date of these Reasons; (3) family property (including pension assets) and family debt are to be divided and allocated as set out above; (4) Mr. Sea and Ms. He are both guardians of DSJ; (5) DSJ's primary residence shall be with Mr. Sea; (6) Ms. He's parenting time, including phone and on-line time, with DSJ will be determined by DSJ and in accordance with his wishes; (7) DSJ be enrolled in counselling, and in that respect: (a) within 30 days of the date of these Reasons, the parties seek recommendations from Dr. Elterman with respect to counsellors for DSJ; (b) if the parties are unable to agree on a choice of counsellor within 30 days after Dr. Elterman provides his recommendations, then Mr. Sea will have the authority to decide on the counsellor and also the responsibility for making the arrangements for DSJ to begin counselling with that counsellor; and (c) the arrangements for DSJ to begin counselling must be completed not later than 60 days after Dr. Elterman provides his

recommendations. (8) the parental responsibilities in s. 41 of the FLA are allocated to Mr. Sea, with the following exceptions: (a) with respect to those responsibilities in s. 41(d), (f) and (h), each party will exercise each of those responsibilities in consultation with the other party. If, after consultation, the parties are unable to agree, Mr. Sea shall have final decision-making authority, and Ms. He will have the right to apply for directions on any decision that Ms. He considers contrary to the best interests of DSJ, under s. 49 of the FLA; and (b) with respect to s. 41(j), each party is entitled to request and receive from third parties health, education or other information respecting DSJ; (9) neither party shall make any negative, insulting, derogatory or disparaging comments about the other party within the hearing or in the presence of DSJ. Moreover, neither party shall permit third parties to make any negative, insulting, derogatory or disparaging comments about the other party within the hearing or in the presence of DSJ; (10) based on an imputed Guidelines income for Ms. He of $53,500, Ms. He pay to Mr. Sea basic child support in the sum of $503 per month, commencing January 15, 2023 and continuing on the 15th day of each and every month thereafter for so long as the child, DSJ, remains eligible for support, and until further agreement of the parties or court

order; (11) section 7 expenses will be shared by DSJ's parents in accordance with s. 7(2) of the Guidelines. The expenses for the counselling that I have ordered for DSJ will qualify as a s. 7 expense, as will other expenses that fall within s. 7(1)(c) of the Guidelines; (12) until further court order or agreement of the parties, and subject to review: (a) Mr. Sea pay spousal support to Ms. He in the sum of $6,600 per month, beginning on January 15, 2023 and on the 15th day of every month thereafter; (b) either party may apply for a review of spousal support any time after one year from the date of this judgment, the focus of the review to be on Ms. He's employment qualifications and status and the extent to which she continues to be in need of spousal support; and (c) Mr. Sea's obligation to pay spousal support to Ms. He will terminate with the payment due and payable on June 15, 2029; (13) after set-off of retroactive child support owing by Ms. He to Mr. Sea and retroactive spousal support owing by Mr. Sea to Ms. He, Mr. Sea pay net retroactive spousal support in the amount of $40,000 to Ms. He. Mr. Sea is to pay this amount in instalments of $2,000 per month beginning February 15, 2023 until fully paid. The balance owing can be paid in full at any time. There will be no interest on the amount outstanding from time to time. [378] If the parties are unable to agree on costs, and wish to make submissions, they must contact Scheduling within 30 days of the date of these Reasons to arrange a hearing date convenient to counsel and to the Court. "Adair J."