Van Der Zee v. Borsboom

2026 BCSC 287 Van Der Zee v. Borsboom IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Van Der Zee v. Borsboom, 2026 BCSC 287 Date: 20260223 Docket: E98063 Registry: Nanaimo Between: Evert Van Der Zee Claimant And: Trina Marie Borsboom also known as Trina Marie Van Der Zee Respondent Before: The Honourable Justice Young Reasons for Judgment The Claimant Appearing in Person: E. Van Der Zee Counsel for the Respondent: H. A. Wenngatz Place and Date of Trial/Hearing: Nanaimo, B.C. January 30, 2026 Place and Date of Judgment: Nanaimo, B.C. February 23, 2026 Table of Contents Overview.. 3 Material Facts. 3 Separation agreement. 4 Family Property. 6 Family debts. 7 Excluded property. 8 Overview [1] In this summary trial the respondent seeks the division of family assets and family debt. The claimant has counterclaimed seeking to enforce a purported separation agreement. [2] The family property is modest, and the financial disclosure is incomplete especially from the claimant. The respondent has requested "rough justice or broadbrush approach" in order to finalize this matter. There has been an extensive litigation history even though the net worth of the family property is small. I have taken liberties in order to achieve finality for these parties which I find is in the interests of justice. Material Facts [3] The parties commenced cohabitation April 15, 2015, married September 3, 2016, and separated August 9, 2022. The main asset the parties own is a condominium on Dogwood Lane in Port Alice, British Columbia (the "Condominium") which the parties purchased for $50,000 on October 9, 2020. Title to the Condominium was placed in the respondent's name. The claimant contributed the entire $50,000 to the purchase price and says that this $50,000 is excluded property under s. 85 of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. [4] Prior to their separation in 2022, the parties obtained a Scotia Bank line of credit to pay for renovations to the Condominium. That line of credit was placed in the respondent's name and since the separation, the respondent has been solely responsible for paying that line of credit. The respondent seeks an unequal division of family assets pursuant to s. 95 of the FLA taking into account her claim for occupational rent. [5] I will first address the threshold issue of whether or not a separation agreement was entered into. Separation Agreement [6] The claimant deposes that between August 9, 2022 and November 21, 2022, he and the respondent came to an agreement for him to purchase the respondent's interest in the Condominium for $30,000. He deposes that this agreement has all the elements of a contract with consideration of five $1,000 payments made. This agreement was also placed into a draft separation agreement. [7] The claimant attaches to his affidavit several undated texts wherein he offers to the respondent a payment of $30,000 for her interest in the Condominium. According to the texts, the respondent wanted the claimant to also pay all the legal bills on both sides plus "take off all expenses of the home as of August 2022". She texted: "This is NOT final wording". She insisted that the agreement be put in writing. In a further undated text, the respondent wrote: "In reality it means nothing without a proper seperation [sic] agreement". I was advised during the hearing that the date of those texts was January 23, 2023. [8] The claimant deposes in another affidavit that on March 9, 2023, he sent a copy of a draft separation agreement to the respondent. This separation agreement values the Condominium at $88,100. It states that the parties are registered as joint tenants in the Condominium. This is incorrect. The Condominium is in the respondent's sole name. The separation agreement states that the parties have disclosed all income information required under the federal and British Columbia child support guidelines which did not occur. The draft agreement requires that the respondent transfer her interest in the Condominium to the claimant and that the respondent remain responsible for discharging the line of credit registered against title to the Condominium. The draft agreement says after completion of the transfer the claimant will pay the respondent $30,000 in monthly instalments of $1,000. The parties waived any interest to each other's pension and any other assets. The agreement says the parties do not have any outstanding debts which is also not correct. [9] The draft agreement was never signed. [10] I have reviewed the emails, and it appears on June 17, 2024, the claimant received an email from his own lawyer saying that the respondent's lawyer contacted him about "restarting negotiations on your separation agreement". I interpret that to mean that an agreement has not been reached. In a previous email between counsel, the lawyer for the respondent said "we need to modify the separation agreement before we proceed with the divorce. I will be writing you later today". [11] The respondent has provided a number of without prejudice communications while the parties were attempting to reach an agreement. At one stage the claimant accepted an offer of $30,000 by email but did not want to formalize the agreement until it was reviewed by a lawyer. [12] The claimant paid five payments of $1,000 to the respondent. He will receive credit for these payments against any division of property made in this proceeding. [13] The respondent deposes that following the separation, she and the claimant attempted to finalize a division of the respective family property interests however they were unsuccessful in doing so. She denies that they reached any final agreement. The respondent wished to seek legal advice on the claimant's claim that he had a $50,000 excluded property claim. She wished to have a written document so that she could take it to a lawyer to review and see if it was fair. [14] I find that no agreement has been reached. The parties may have at one point agreed on a sum of $30,000. They did not agree on how the line of credit would be paid or on who would pay the legal fees. The respondent did not want to transfer title before she received the full payout. She also wanted the entirety of the agreement reviewed by a lawyer. She was not sure that the claimant's asserted $50,000 excluded property claim was fair and she wanted legal advice. [15] Since no agreement was reached, I will review the respondent's claim for an unequal division of property and the claimant's claim for excluded property. Family Property [16] The Condominium was jointly appraised by Cunningham Rivard on September 9, 2025 for $91,000. This appraisal is significantly lower than the B.C. Assessment on July 24, 2025, for $139,400. Registered against title to the Condominium is a line of credit in favour of the Bank of Nova Scotia which was registered on title six months before separation. Prior to the separation the parties agreed to obtain funds through the line of credit for the purpose of renovating and upgrading the Condominium and to consolidate family debt. Because the Condominium was placed in the respondent's sole name, the line of credit is also in her sole name, and she has been solely responsible for making payments. [17] The respondent had a Scotia Bank savings account ending in the numbers 0725 with the balance of $1,748.84 around the date of separation and a preferred account ending in the numbers 0326 with a balance of $673.18. [18] The respondent had an RRSP with an unknown balance as at the date of separation. In August 2025 the balance of the RRSP was $3,270.16. The claimant said during his oral submissions that the balance on this RRSP around the date of separation was approximately $11,000 but he has no proof. [19] The claimant has not provided the same financial disclosure and so the balances of his bank accounts and credit cards as at the date of separation are unknown. In his sparce financial statement he swears that he has a bank balance of $700 from an unidentified financial institution. He also claims he has a consumer proposal but has not provided any documentary proof. [20] Both parties have vehicles. The claimant has purchased two vehicles since the date of separation. He has not disclosed disposal of vehicles owned prior to the separation. The respondent deposes that her Nissan Qashqai has a current value of $16,000 with the loan balance registered against it in the amount of $20,742.04. This vehicle was purchased prior to the parties' separation. Family Debts [21] Around the date of separation, which was August 9, 2022, the balance owing on the line of credit was $8,016.36. Since then, the line of credit has increased significantly to $22,221.96 as of January 20, 2025, when the respondent's financial statement was sworn. I have reviewed some line of credit statements which show that the respondent has used the line of credit for her personal expenses and cash advance since separation. I find that the $8,016.36 owing as at the date of separation is a family debt. The balance accumulated since the date of separation is personal debt of the respondent. [22] The respondent had credit card debt including an American Express with a balance owing of $1,782.12 around the date of separation and the Scotia Bank Visa card with a balance of $765.41 around the date of separation. These debts were not consolidated with the line of credit and are family debts. [23] The claimant has resided in the Condominium since the date of separation with a new partner. He has not paid the property taxes and as of July 24, 2025, the property tax arrears were in the amount of $2,943.46. [24] As of July 2025, the strata fees for the Condominium were in arrears in the amount of $1,726.60. The claimant says that he has paid this amount. [25] The respondent's credit card debts and vehicle debt exceed the value of her vehicle, RRSP and bank balances as of the date of separation and so there will be no division of the RRSP or bank balances disclosed by the respondent, and no division of the credit card debts and vehicle debt as they are closely offset by the value of the assets. I think this is a fair resolution especially considering the lack of financial disclosure from the claimant. [26] That leaves the Condominium valued at $91,000 minus the family debt on the line of credit in the amount of $8,016.36 and minus the property tax arrears of $2,943.46. I accept the claimant's evidence that he did pay the arrears in strata fees. If he has not paid it then I find he is responsible for paying any strata fee arrears as he has enjoyed the full benefit of occupation since the parties' separation. [27] Subtracting the family debt from the family assets the parties are left with a net asset balance of $80,040.18. Excluded Property [28] The claimant advances an excluded property claim pursuant to s. 85 of the FLA. [29] The claimant paid the full purchase price of $50,000 to purchase the Condominium in October 2020. He deposes that the $50,000 came from his savings which he calls his excluded property. [30] On May 30, 2018, the claimant received $65,918.93 from the sale of 1786 Jordan Place, Port McNeill, British Columbia which was property owned by the claimant and his former spouse since 2012. It appears that the claimant received title to this property as part of the division of family assets in his previous marriage. He had also received an equalization payment of $32,500 in June 2016 from the property division in his former marriage. [31] There is no indication of what the value of the Jordan Place property was when the claimant and the respondent commenced cohabitation in 2015. There is evidence that Jordan Place was purchased in 2012 for $160,000 and sold in 2018 for $217,000. Over the six years it increased in value by $57,000. It appears from the statement of receipts and disbursements of sale proceeds that the claimant received the full net proceeds of sale from the Jordan Place property. [32] If the Jordan Place property increased in value from April 15, 2015 to May 30, 2018, then that increase in value is family property in this relationship pursuant to s. 84(2)(g) of the FLA. [33] Since I do not have evidence needed to determine what the increase in value has been since April 15, 2015, I divide the $57,000 increase in value by six years (since the date of purchase in 2012) and infer that the Jordan Place property increased in value by $9,500 per year. $28,500 of that increase was earned prior to April 15, 2015 and $28,500 was earned after April 15, 2015. I find that $28,500 is a family asset as it reflects the increase in value of the Jordan Place property since the claimant and respondent commenced cohabitation. [34] From the $65,918.93 the claimant received from the sale of the Jordan Place property he purchased a trailer for the parties to live in in December 2018 for $13,000. That trailer was traded in for a larger unit. I have no evidence of what happened to either trailer. [35] Using broad strokes and "rough justice" to finalize this matter, I conclude that $28,500 of the $50,000 purchase price for the Condominium was a family asset and the balance of $21,500 is excluded property of the claimant. [36] Once the excluded property is subtracted from the value of the Condominium and the family debt is subtracted, the balance to be divided between the parties is $58,540.18. [37] The claimant says that amount should be divided equally between the parties. [38] The respondent makes a claim for an unequal division of that amount because she claims occupational rent from the claimant who has lived in the property since separation and has not contributed to the line of credit. [39] The respondent relies on Parmer v. Parmer, 2024 BCSC 402 where Justice Sharma considers s. 95 of the FLA which permits the Court to order an unequal division of family property if equal division would be significantly unfair to a party. [40] Justice Sharma said a claim for occupational rent is not a "stand-alone" claim but can be considered in the reapportionment analysis: Holland v. Holland, 2017 BCCA 75 at para. 19. Courts have cautioned that occupational rent is an exceptional remedy. [41] Occupational rent is asserted where one party remained living in the family home usually paying all the expenses while the other party had to pay for alternate accommodation. [42] The case before me is unusual because the claimant remained in the family home while the respondent remained responsible for paying the line of credit. [43] There is evidence that the respondent paid for alternate accommodation for short period of time until she moved to Ontario. There is no evidence that she has paid rent since then. The claimant's new partner has been occupying the Condominium rent-free. I have no evidence of what fair market rent for the Condominium would have been, but I assume that it would be modest given that the walls of the Condominium were stripped to the studs at least in some rooms to prepare for renovations that never took place. I select a notional rent of $800 per month for the Condominium in that condition. [44] The respondent has been out of possession for 42 months. I find a reasonable occupational rent claim is one-half of $800 for 42 months which equals $16,800. This should be credited to the respondent before the balance is divided equally between the parties. [45] If the parties were to receive $91,000 from the sale of the property, the claimant will be entitled to $21,500 as the return of excluded property. $8,016.36 should be paid to the Scotia line of credit in the respondent's name. $2,943.46 should be paid to the Village of Port Alice for the arrears in property tax. The respondent should receive the next $16,800 as occupational rent before the balance is divided between the parties. The balance of $41,740.18 should be divided equally so each party receive $20,870.09. [46] The respondent must then reimburse the claimant $5,000 from her $20,870.09 for the amount she received in instalments from him. [47] The claimant would receive $47,370.09 from the proceeds of sale and the respondent received $32,670.09. The two family debts totalling $10,959.82 would be paid. [48] If the claimant wishes to pay out the respondent's interest rather than list the property for sale he may do so within the next 30 days by paying $8,016.36 to the Scotia line of credit, $2,943.46 to the Village of Port Alice to pay the arrears in property tax and $32,670.09 to the respondent. He is responsible for any arrears in strata fees. The respondent should sign a transfer of title, and have it held in trust. Upon proof of payment and receipt of the same, in trust, the respondent shall transfer unencumbered title to the claimant. In order to do so she will have to pay off the balance of the line of credit which is registered against title to the Condominium. [49] The respondent has applied for an order that the claimant vacate the Condominium to enable her to upgrade it to market standards. She has sought an order to sell the Condominium and to give her exclusive conduct of sale. I deny this request. Given the modest value in the Condominium and the protracted litigation between these parties I find this is not a reasonable solution. The cost of renovation will likely exceed any value added to the Condominium. If the claimant is not prepared to buy out the respondent's interest by making the payments set out in the previous paragraph within 30 days, then, I order that the Condominium be listed for sale on an MLS listing service as is and the parties shall have joint conduct of sale. The sale will be subject to court approval, and the proceeds of sale will be distributed according to the formula set out above. The balance that each party receives from the net proceeds may change depending on the sale price, real estate commission and legal fees. The parties have liberty to apply to the Court for further directions regarding the listing if they are unable to agree on a realtor or listing price. [50] I grant the parties leave to reappear before me to speak to costs. [51] Due to the protracted difficulties in communications between the claimant and counsel for the respondent, I direct that counsel for the respondent prepare the court order and send it to me for signature, thereby dispensing with the requirement of the claimant's signature. I ask that the draft order be sent to me electronically in Word format through Supreme Court Scheduling. Once the order is entered, I direct that counsel for the respondent email a copy of the entered order to the claimant. "B. M. Young, J." The Honourable Justice Young