Main v. Barry

2025 BCSC 1555 Main v. Barry IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Main v. Barry, 2025 BCSC 1555 Date: 20250716 Docket: E69419 Registry: New Westminster Between: Beverley Joan Main Claimant And Thomas Ace Barry Respondent Before: Associate Judge Nielsen Oral Reasons for Judgment In Chambers Counsel for the Claimant: J.J. Hittrich Counsel for the Respondent: R.W. Mostar Place and Date of Hearing: New Westminster, B.C. July 16, 2025 Place and Date of Judgment: New Westminster, B.C. July 16, 2025 [1] THE COURT: The claimant has brought an application for orders related to disclosure and to vary an earlier order of March 15, 2025, to freeze accounts of the parties so that the claimant can withdraw money from two investment accounts, RBC Account Number 81404772‑1‑0 (the "772 account") and the RBC Account 404612335 (the "2335 account"), for the purpose of purchasing a property. [2] Although the application did not specify an amount sought, the claimant submitted on this application that she was seeking between $1.7 and $2 million dollars. [3] The application is opposed, in part, by the respondent, who submits that he has an excluded claim that encompasses the 772 account. The respondent agrees that the 233 account can be accessed as it is clearly the claimant's funds. [4] By way of background, the claimant is 76 and the respondent 78 years of age. They are both retired. They began living together in February of 2007. They married September 28, 2013, and separated February 5, 2024. [5] The respondent currently lives in the former family home and the claimant is living with her sister. The claimant has difficulty negotiating stairs and would like to buy her own place. [6] The claimant submits the combined assets of the parties are approximately $9 million and the respondent's excluded claims are not at risk, nor will the respondent be prejudiced in any way. [7] I am advised there is a 10‑day trial scheduled in January of 2026. [8] The applicant relies on the recent B.C. Court of Appeal decision of Mills v. O'Connor, 2025 BCCA 34, which sets out the principles of tracing. There are three methods of tracing that are set out in that decision: there is the first‑in/first‑out method, the lowest intermediate balance rule, and the pro rata ex post facto method. [9] I note that at para. 91 of the court's decision, they state: [91] I would add that, given the complexities that can be associated with tracing, a trial judge may refer the matter to the registrar, an associate judge, or a special referee for an inquiry under Rule 18-1(1) of the Supreme Court Family Rules, B.C. Reg. 188/2024. [10] This matter was set for an hour. It did not complete in the time estimated, and therefore a further hour was set aside for completing the application. The applicant has taken me through various financial account entries in an attempt to show that the respondent's excluded claim would not be jeopardized by the withdrawal of the amount sought. [11] In my view, having looked at those account entries, that is not entirely clear. By taking the approach suggested by the claimant, that is certainly one possible method to approach the matter. However, it is possible a trial judge could take another approach as suggested by the respondent, and even on a cursory view, the first‑in/first‑out approach has its appeal. It would look at the amount of money invested versus the final amount in the fund. Arguably, this would attribute risk and reward, include dividends, and take into account Black Swan events such as market crashes. That would be one approach. [12] However, in my view, this matter was set in regular AJ chambers with a total time estimate of an hour. There realistically is not time for an analysis that does justice to any of the possible approaches to tracing. [13] In Mills, the B.C. Court of Appeal's decision followed what the court described as a "lengthy trial in a family law proceeding". In regular AJ chambers, the best that can be achieved is a measure of rough justice which I do not view as appropriate in the current circumstances, where the application seeks the withdrawal of $2 million and potentially, and I say potentially, puts the respondent's excluded claim in jeopardy. [14] Further, dividing the account at this stage will tie the hands of the trial judge with respect to the 772 account and potentially mess up a potential global approach which would otherwise include the 772 account. [15] In my view, this matter is best left for the trial judge. The application to withdraw money from the 772 account is dismissed. The respondent does not object to the claimant's access to the 233 account, and therefore she may have free access to that account and I so order. [16] The success on the application has been mixed and I going to order that each party bear their own costs. Anything else? [17] CNSL J. HITTRICH: The disclosure is, I think, by consent. [18] THE COURT: Yes, I meant to mention that the issue concerning disclosure was resolved at the outset of the hearing, by consent. [19] We are adjourned. "Nielsen A.J."