Turabi v. Nabi

2025 BCSC 48 Turabi v. Nabi

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Turabi v. Nabi, 2025 BCSC 48 Date: 20250113 Docket: E191284 Registry: Vancouver Between: Zarmina Turabi Claimant And Wahed Nabi also known as Wahid Nabi Respondent - and - Docket: S228465 Registry: Vancouver Between: Guhare Nabi Plaintiff And Zarmina Turabi and Wahed Nabi also known as Wahid Nabi Defendants Before: The Honourable Justice Majawa Reasons for Judgment Counsel for Zarmina Turabi: A.M. James H.M. Gowans Counsel for Wahed Nabi also known as Wahid Nabi: J. Dubas Counsel for Guhare Nabi K. Wang Place and Dates of Trial: Vancouver, B.C. April 8-12, 15-19, 2024 September 3-6, 9-13, 2024 October 29-31, 2024 Place and Date of Judgment: Vancouver, B.C. January 13, 2025 Table of Contents OVERVIEW.. 5 BACKGROUND FACTS. 6 CREDIBILITY AND RELIABILITY OF THE PARTIES. 11 Ms. Turabi 12 Mr. Nabi 16 Mme. Nabi 18 Other Witnesses. 19 RETROACTIVE CHILD SUPPORT. 19 Applicable Law.. 20 Alice and Anais Remained Children of the Marriage. 23 A Retroactive Child Support Award is Appropriate. 26 Mr. Nabi's Income for the Purposes of Support 26 The Quantum of the Child Support Award. 29 THE CHARACTERIZATION OF CASH ADVANCES FROM MME. NABI 31 There was no Loan Agreement on the Terms Alleged by Mme. Nabi 32 No Oral Agreement was Formed. 32 No Written Loan Agreement was Entered into Between Mme. Nabi and Mr. Nabi. 35 The Funds Advanced by Mme.

Nabi were a Gift to Mr. Nabi 40 The Applicable Law.. 41 Analysis. 42 The Other Alternative Arguments Advanced by Mme. Nabi 52 Conclusion Regarding Characterization of the Funds Advanced from Mme. Nabi 53 THE DIVISION OF PROPERTY AND DEBT, AND THE SPOUSAL SUPPORT CLAIMS. 54 The Order of Determination: Spousal Support vs. Property Division. 54 What is the Family Property and Family Debt?. 54 The Down Payment on the Surrey Property did not Remain Excluded Property. 56 The ICBC Settlement 59 Other Assets. 60 Pensions. 60 Bank Accounts, Bitcoin, and Vehicles. 61 The Loss on the Tatlow Property is not a Family Debt 61 Other Debts. 66 The Parties' Claims for Spousal Support 67 Mr. Nabi is not Entitled to Spousal Support 69 Ms. Turabi is Entitled to Spousal Support 70 Quantum of Spousal Support under the SSAG.. 76 Reapportionment of Family Property and Lump Sum Spousal Support 78 Conclusion on Division of Property and Spousal Support 84 SUMMARY OF PROPERTY DIVISION AND COMPENSATION PAYMENT. 85 COSTS AND SECURITY FOR COSTS. 87

OVERVIEW [1] This is both a family law case and a civil claim that were heard together on common evidence. In the family law case, property division, spousal support, and retroactive child support are at issue between the claimant, Zarmina Turabi, and the respondent, Wahed Nabi. The parties also sought a divorce which was granted during the trial by way of an order dated September 13, 2024. In the civil claim, Mr. Nabi's mother, Guahare Nabi ("Mme. Nabi"), claims that money she advanced to her son while he was married to Ms. Turabi and that was used for the purchase of a home in Mr. Nabi and Ms. Turabi's name was a loan that must be repaid to her. [2] Not surprisingly, the property division issue in the family law case and the subject of Mme. Nabi's civil claim are interrelated. The principal issue in both matters is the treatment of the funds advanced by Mme. Nabi and the division of the property that was purchased, in part, with those funds. Mr. Nabi and Mme. Nabi are aligned on the treatment of those funds. This court must determine to what extent the property purchased with funds advanced by Mme. Nabi is family property and how it should be divided. This matter is interrelated to the issues of whether or not the funds advanced by Mme. Nabi were a gift or a loan, and how debt and other obligations incurred by Mr. Nabi in the waning moments of the parties' 24-year marriage

should be treated. As will be discussed, credibility of the parties is key in my determination of these issues. [3] Ms. Turabi seeks prospective and retroactive spousal support. Given that Mr. Nabi is currently unemployed, and has been for some time, she seeks an imputation of income and a lump-sum payment from an unequal division of the family property. Mr. Nabi has made a spousal support claim of his own which he seeks to be fulfilled by periodic payments. [4] As will be discussed later in these Reasons, I have determined that Mme. Nabi advanced the funds to Mr. Nabi as a gift. I do not accept Mme. Nabi and Mr. Nabi's evidence that these funds were subject to a loan agreement. I have found that Mr. Nabi fabricated and forged a number of documents in these proceedings. He also provided false evidence while under oath at examination for discovery. Mme. Nabi's evidence was entirely unreliable and there was no basis upon which she could pursue a claim for having entered into a loan agreement with Ms. Turabi. I also do not accept that the funds were subject to a resulting trust. Consequently, her civil claim is dismissed in its entirety. [5] Having found that the funds advanced were a gift to Mr. Nabi, those funds were excluded property for the purposes of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. However, when those funds were used to purchase the home in both his name and

the name of Ms. Turabi, Mr. Nabi gifted the previously excluded property to Ms. Turabi and the exclusion was lost. Therefore, the entirety of the equity in the property is family property and presumptively subject to equal division. [6] I have concluded that Ms. Turabi is entitled to an award of compensatory spousal support and that a lump sum payment, made by way of reapportionment of the family property in Ms. Turabi's favour, is appropriate. Thus, I have determined that the proceeds of the sale of the home that are currently held in trust are to be divided 55%-45% in favour of Ms. Turabi. Mr. Nabi is not entitled to spousal support and his claim is dismissed. [7] I have also determined that Mr. Nabi is obligated to make a payment of retroactive child support in respect of his adult children; however, I have concluded that the amount of the retroactive payment is less than what was sought by the claimant.

BACKGROUND FACTS [8] Ms. Turabi was 44 years old at the time of trial. She was born in Kabul, Afghanistan, and moved to Pakistan with her family in or around 1992 when she was approximately 12 years old. When she was in Pakistan, Ms. Turabi attended a women's school. She was enthusiastic about obtaining an education and her family supported this. [9] Mr. Nabi was 57 years old when the trial concluded. He was also born in Kabul, Afghanistan. When he was approximately 13 years old, Mr. Nabi, his brother and his mother, Mme. Nabi, escaped to Iran where they stayed for a time before emigrating to France in or around 1983 and receiving refugee status. [10] Ms. Turabi and Mr. Nabi were married by way of an arranged marriage on October 16, 1995, in Islamabad, Pakistan. At the time, Ms. Turabi was 15 years old and Mr. Nabi was 28 years old. Relatively shortly after their wedding, Ms. Turabi moved to Paris, France, to live with Mr. Nabi and Mme. Nabi. [11] While in France, Ms. Turabi and Mr. Nabi lived with Mme. Nabi for a period of time. As will be discussed later in these Reasons, I find that Mme. Nabi exerted a high level of control over Ms. Turabi during the approximately eight years Ms. Turabi and Mr. Nabi lived in France. For example, while Ms. Turabi was permitted to attend some French schooling in Paris, she was not allowed to continue her education when she expressed a desire

to do so, nor was she permitted to obtain a driver's license. Moreover, Mme. Nabi, and perhaps Mr. Nabi as well, controlled the type of employment that Ms. Turabi was permitted to have and limited her communication with her parents, who remained in Pakistan. [12] Ms. Turabi gave birth to the couple's first child, Alice, in April 1999 and their second child, Anais, was born in July 2000. Ms. Turabi took on all of the primary care responsibilities of the children, with some limited assistance from Mme. Nabi. At that time, Mr. Nabi worked what he described as freelance work and his involvement in caring for the children was very limited. [13] In 2004, Ms. Turabi, Mr. Nabi, and their two daughters emigrated to Canada, eventually settling in Vancouver. The family lived off of their savings for approximately two years while Mr. Nabi and Ms. Turabi attended English school. Mme. Nabi remained in Paris. [14] Mr. Nabi held a technical support job with Microsoft beginning in or around 2006. In 2010, Mr. Nabi received some qualifications from BCIT in the audiovisual field. In 2011, Mr. Nabi began working for Vancouver General Hospital ("VGH") in a technical support type role which will be discussed in further detail later. He held that position until his employment was terminated due to a restructuring in December 2021. He has not been employed since. [15] Ms. Turabi eventually obtained

her high school equivalency in or around 2011. Ms. Turabi began her employment as a screening officer at the Vancouver International Airport in December 2013 and remains employed in that position. This was Ms. Turabi's first full-time employment as an adult. [16] Mme. Nabi was approximately 71 years of age at the time of trial. She was also born in Kabul, Afghanistan. Mme. Nabi has two sons, Mr. Nabi and his brother David Nabi (whom I will refer to as David to avoid confusion). Mme. Nabi's marriage to her sons' father ended when her sons were in their early teen years. As referenced above, she, Mr. Nabi, and David ultimately emigrated to France in or around 1983. [17] While in France, Mme. Nabi held a job in the public service as a caretaker for a government office building. She earned a modest income but her employment provided her with accommodation in that same building. Mme. Nabi first purchased a property in Paris in 2001 (the "District 20 Property"). This property was relatively affordable because it was tenanted and subject to French laws that provided for strict rent controls that significantly limited the rental income that could be earned, and prohibited the eviction of the tenant for the tenant's life. During the time that she has lived in Paris, Mme. Nabi purchased three properties in total, although it is not clear to me exactly when each of these properties were

purchased. Currently, Mme. Nabi is retired and owns one apartment in Paris, for which she has no mortgage, and in which she currently resides. [18] In 2016, Mme. Nabi sold the District 20 Property for €344,000 Euros. Mme. Nabi provided Mr. Nabi with approximately $322,000 CAD by way of transfer to Mr. Nabi's bank account in Canada on November 14, 2016. It is these funds, along with other funds as will be discussed later, that form the basis of Mme. Nabi's civil claim in which she asserts that she loaned these funds to Mr. Nabi and Ms. Turabi on certain terms. [19] In December 2016, Mr. Nabi entered into an agreement to purchase a residential property located at 5900 139A Avenue in, Surrey, British Columbia (the "Surrey Property"). The purchase of the Surrey Property completed on January 12, 2017, for a purchase price of $847,619.05. The deposit was $30,000 and the balance to complete the transaction was $905,432.98. $284,404.95 of that balance was paid by bank draft from Mr. Nabi's account, which funds originated from the money transferred from Mme. Nabi. The remainder of the balance due came from a mortgage provided by TD Bank to which both Mr. Nabi and Ms. Turabi were signatories. The Surrey Property was registered in Mr. Nabi and Ms. Turabi's names as joint tenants. [20] Ms. Turabi, Mr. Nabi and their daughters did not move into the Surrey property; rather, they remained in

their rental apartment in New Westminster and the Surrey property was rented out. [21] In May 2018, Mr. Nabi entered into a pre-sale contract for the purchase of a condominium located at 309-1633 Tatlow Ave. in North Vancouver (the "Tatlow Property"). The purchase price of the Tatlow Property was $844,700. Mr. Nabi made deposits totalling approximately $125,000, less a $15,000 rebate he later received from the developer. The funds for these deposits came from monies advanced to Mr. Nabi from Mme. Nabi after the Surrey Property was purchased. Ms. Turabi was not involved nor consulted in the purchase of the Tatlow property and she was not a signatory to the pre-sale contract. [22] Ms. Turabi and Mr. Nabi separated in April or May 2019. Mr. Nabi remained in the apartment the family had lived in in New Westminster since shortly after coming to Vancouver (the "New Westminster Home") for a while and moved to the basement of the Surrey property at the end of 2019 or beginning of 2020. When the parties separated, both of their daughters were attending postsecondary institutions and after Mr. Nabi moved out of the New Westminster Home, both daughters resided solely with Ms. Turabi. Both daughters successfully received postsecondary degrees and are currently employed. [23] The Tatlow Property did not complete until November 2020, more than one year after the parties separated. Mr. Nabi

had difficulty in finding affordable financing for the mortgage of the Tatlow Property. In or around November 2020, Mr. Nabi entered into high interest rate mortgages from a secondary lender and a promissory note from the developer. Mr. Nabi closed on the Tatlow Property without the involvement of Ms. Turabi. Mr. Nabi moved into the Tatlow Property in 2021. He continued to rent out the Surrey Property. [24] Mr. Nabi was unable to afford the high interest rate payments on the Tatlow Property. Foreclosure proceedings began in February 2022, culminating in an order approving sale on June 29, 2023. The Tatlow Property was sold at a loss, though the amount of the loss is not clear. What is clear is that any equity that Mr. Nabi had in the Tatlow Property was nullified. [25] Mr. Nabi and Ms. Turabi defaulted on the Surrey Property mortgage in November 2022, about a year and a half after Mr. Nabi was laid off from VGH. Foreclosure proceedings started in January 2023 and the property sold on March 3, 2023, for $1.25 million. The remaining proceeds of sale in the amount of approximately $650,000 was received by Mr. Nabi's counsel and invested into a GIC. At the time of trial, the value of the proceeds of the Surrey Property held in trust was approximately $680,000. [26] Mr. Nabi currently lives in a rental apartment in North Vancouver and Ms. Turabi and her daughters remain as renters

in the New Westminster Home. [27] Ms. Turabi filed her notice of family claim on May 14, 2019, and filed an amended notice of family claim on June 8, 2021. Mr. Nabi filed an amended response to the amended notice of family claim on May 31, 2022. I will discuss the nature of those amendments, and in particular the withdrawal of a key admission, later in these Reasons. A counterclaim and response to counterclaim were filed in May and June 2022, respectively. [28] Mme. Nabi filed her notice of civil claim on October 19, 2022. Ms. Turabi filed her response on December 13, 2022, and Mr. Nabi filed his response on July 12, 2023. On March 22, 2024, an order was made that the family claim and the civil claim proceed together and be tried on the same evidence. [29] The trial of this matter commenced on April 8, 2024. It was originally scheduled for 10 days of court time. However, that estimate proved to be woefully inadequate. The trial ultimately took 22 days of court time to complete. In my view, the amount of trial time taken was entirely disproportionate to the nature of the issues and the amounts at issue.

CREDIBILITY AND RELIABILITY OF THE PARTIES [30] The assessment of reliability and credibility involve different concepts. Justice E. McDonald succinctly summarized the approach in Liu v. Keurdian, 2022 BCSC 1334: [8] ... As explained in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A.) at 526 [Morrissey], credibility refers to the veracity of a witness's testimony, while reliability is concerned with the accuracy of the testimony based on the ability of the witness to observe, recall and recount the events. A witness who is not credible cannot give reliable evidence on the same point. Further, credibility does not equate to reliability which means that a credible witness may give unreliable evidence: R. v. H.C., 2009 ONCA 56 (Ont. C.A.) at para. 41, citing Morrissey, at 526. [31] In M.D. v B.D., 2022 BCSC 1707 [M.D.], Justice D. MacDonald recently reviewed the law on assessing the credibility of a witness. At para. 6, citing Gichuru v. Smith, 2013 BCSC 895 at para. 129, aff'd 2014 BCCA 414, MacDonald J. enumerated the factors to consider when assessing credibility, including: a) the witness's ability and opportunity to observe events; b) the firmness of the witness's memory; c) the witness's ability to resist the influence of interest to modify their recollection; d) whether the witness's evidence harmonizes with independent evidence that has been

accepted; e) whether the witness changes their testimony during direct and cross-examination [or between examination for discovery and trial: see Nearing v. Sauer, 2015 BCSC 58 at para. 32]; f) whether the witness's testimony seems unreasonable, impossible, or unlikely; g) whether a witness has a motive to lie; and h) the demeanour of a witness generally. [32] These are essentially the often-cited factors summarized by Justice Dillon in Bradshaw v. Stenner, 2010 BCSC 1398 at paras. 186-187, aff'd 2012 BCCA 296. I am first to consider whether the witnesses' testimony on a standalone basis is inherently believable. If it is, the second step is to evaluate the testimony based on its consistency with the testimony of other witnesses and documentary evidence that I have accepted. Finally, the court should determine "which version of events is most consistent with the probabilities affecting the case as a whole and shown to be in existence at that time": Naidu v Zhong, 2019 BCSC 1064 at para. 23. [33] I have assessed the credibility of the witnesses with reference to the factors set out in the above-noted authorities. Ms. Turabi [34] I find Ms. Turabi to be a credible and reliable witness. Her memory was firm, did not change during direct and cross-examination, and generally harmonizes with the independent evidence that I have accepted. There were a number of occasions when Ms.

Turabi was unable to recall certain details, and on those occasions, she readily admitted this. While there were occasions that Ms. Turabi had difficulty answering certain questions put to her on cross-examination, the difficulty in my view was not attributable to a lack of reliability or credibility. Rather, it was likely a result of the often long, confusing, and compound questions put to her by the opposing counsel. [35] Ms. Turabi, and some of the witnesses called on her behalf, provided considerable evidence in respect of what her counsel characterizes as a pattern of coercion and control exerted over Ms. Turabi by Mme. Nabi and Mr. Nabi, as well as a number of occasions in which Mr. Nabi is alleged to have physically assaulted Ms. Turabi. While the allegations of family violence made by Ms. Turabi are not particularly relevant to the main issues that I must decide on this case, they are pertinent to the overall narrative of the parties' marriage and provide the backdrop and explanation for the roles which the parties assumed during that marriage. [36] I generally accept Ms. Turabi's version of events with respect to the allegations of family violence, including the specific incidents of physical violence that she testified about. In his oral submissions, counsel for Mr. Nabi urged me to find that Ms. Turabi's allegations of physical violence should not be believed because

she did not report the assaults to the police when they occurred. He submits that the report she ultimately did make to the police was only made at the urging of her counsel and suggests that the report was made for an improper purpose in the context of the family law litigation. There is absolutely no basis in the evidence for this submission and I reject it entirely. [37] For some time now, the courts of this country have been careful to not rely on myths and stereotypes about how victims of sexual assault are expected to behave. Recently, the Court of Appeal also cautioned against the use of myths and stereotypes when assessing allegations of family violence in the family law context. Writing for the court in K.M.N. v. S.Z.M., 2024 BCCA 70, Madam Justice DeWitt-Van Oosten said this: [110] When I use the words "myths" and "stereotypes", I am referring to " assumptions or expectations that are false or faulty and are linked to disadvantaging beliefs, attitudes, and narratives": Jennifer Koshan, "Challenging Myths and Stereotypes in Domestic Violence Cases" (2023) 35:1 Can J of Fam L 33X at 38-39. [111] There is no question that at the trial, the father accused the mother of fabricating her allegations of family violence for the specific purpose of obtaining an advantage in the litigation. [120] In her article entitled "The Myth of False Allegations of Intimate Partner

Violence", Professor Koshan suggests there is a "longstanding and pervasive" myth that women falsely allege family violence in family law proceedings: For example, when women report violence to the police, apply for protection orders, or raise [intimate partner violence] in family proceedings, they are often met with the accusation that they are fabricating the violence to gain an upper hand in family disputes. [Citation omitted]. [121] Other myths or stereotypes said to reveal themselves in family law proceedings include: a credible woman would disclose violence early; a credible women would report the assault to the police; a credible women would leave the relationship; violence against a woman by a man does not have an impact on the children and has nothing to do with his parenting ability; there is now family violence symmetry--women are just as "guilty" as men; and abuse will likely stop once the relationship ends so there is no risk of future harm. [Citation omitted]. [122] Whether and the extent to which these myths and stereotypes exist and operate in practice was not a matter raised at the trial or fully argued before us. However, the law is clear that trial judges must assiduously guard against the potential for myths and stereotypes or unfounded or generalized assumptions about human behaviour--in whatever form--to affect their reasoning process. Doing so takes on

heightened importance in the context of alleged family violence. As recently accepted by the Ontario Court of Appeal in Ahluwalia v. Ahluwalia, 2023 ONCA 476: [1] Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise. What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects. [123] The Supreme Court of Canada has recognized that "[d]omestic violence allegations are notoriously difficult to prove ": Barendregt at para. 144, internal references omitted. As such, an inability to prove family violence on a balance of probabilities does not mean that it must not have occurred or, importantly, that it was falsely alleged for the specific purpose of furthering a litigation objective. [125] Given the theory advanced by the father, it was incumbent on the judge to carefully assess the allegations of family violence and to ensure that if the mother's evidence about physical and psychological abuse towards her and/or the child was to be given little or no weight, as suggested by the father, that determination was the result of reasoned fact‑finding specific to the asserted incidents rather than

potentially unfounded assumptions about a woman's motivation for alleging family violence in the context of family law proceedings . [126] In Ahluwalia, the Ontario Court of Appeal acknowledged there will be cases in which claims of family violence are shown to have been made for strategic reasons (at para. 120). I take no issue with that proposition. However, whether that has happened in a given case requires that the judge assess the credibility and reliability of the assertion as part of a thorough fact‑finding process. To approach allegations of family violence on the assumption (explicit or implied) that these allegations are routinely made for tactical reasons, is impermissible and will give rise to reversible error. [Emphasis added.] [38] No evidence was put forward in support of Mr. Nabi's submission that Ms. Turabi only reported the 2017 incident in 2021 for a litigation advantage. The fact that Ms. Turabi was advised by counsel to report the incident to the police does not lead to the conclusion that the report was made for strategic purpose. A lawyer may be well advised to recommend that their client report incidents of physical violence to the police if such incidents are disclosed to them. There is nothing inherently wrong with, or tactical about, this. [39] Similarly, I entirely reject the submission that the fact that Ms. Turabi did not seek a restraining order

against Mr. Nabi is proof that she has fabricated the allegations of family violence. I also reject Mr. Nabi's suggestion that Alice's allegations of physical abuse at the hands of Mr. Nabi when she was a young child were not true because the incidents were not reported to the police and she continued to spend time with her father. These submissions invoke the myth that true victims of family violence would report matters to the police and leave the situation. [40] Mr. Nabi says that he should be believed because there is no evidence that he assaulted anyone in the home at the time when Ms. Turabi decided to keep the proceeds of her motor vehicle accident claim settlement in her own bank account as opposed to agreeing to spend it in the manner that Mr. Nabi wanted her to. The suggestion appears to be that if Mr. Nabi was a violent person he would have assaulted Ms. Turabi on this occasion. I disagree; the fact that Mr. Nabi did not physically assault Ms. Turabi on this occasion does not prove that other incidents of physical violence did not happen. [41] Mr. Nabi called a number of witnesses who had limited interactions with the family over the course of their residence in Paris and in Canada. These witnesses had not observed incidents of physical violence and in their view, Ms. Turabi was not subjected to elements of coercive control. However, this does not necessarily lead to

the conclusion that no family violence occurred. Family violence often occurs behind closed doors and the limited observations of others who have not witnessed such violence is of little assistance in determining that no such violence existed. Mr. Nabi [42] Mr. Nabi was neither a credible nor a reliable witness. His answers to questions in cross-examination were often vague and evasive. His evidence was frequently inconsistent between direct and cross-examination. For example, in chief, he testified that he had a discussion with his previous lawyer, Dr. Mortazavi, when he met with him and they discussed the Surrey Property. However, when it was put to him on cross-examination that they discussed the money for the Surrey Property being a gift he claimed "we didn't go through all of these things". [43] On numerous occasions, Mr. Nabi's evidence at discovery and in his affidavits directly conflicted with his evidence at trial. During cross-examination, Mr. Nabi admitted to lying under oath numerous times during his examination for discovery and in the affidavit he swore in this proceeding which was used in support of his application to withdraw a key admission. I do not accept Mr. Nabi's submission that I should make little of these lies because they were about immaterial matters and were readily discoverable. [44] First, the matters that Mr. Nabi provided false evidence for in

his examination for discovery and in his affidavit were not immaterial. They were in relation to his income and the validity of a document respecting the nature of the funds advanced from Mme. Nabi, both of which are significant issues at this trial. [45] Second, I fail to see how the fact that a lie is readily discoverable somehow makes lying under oath on numerous occasions less serious or have a lesser effect on his credibility. A bad liar is a liar nonetheless. I also fail to see how the fact that Mr. Nabi dealt with lending institutions in a proactive manner when he was facing financial difficulty in respect of the properties he owned adds to his credibility before me. [46] Mr. Nabi attempted to explain in his cross-examination that he lied at his discovery because he was concerned about the potential tax consequences of disclosing unreported income. He said that he lied to "save himself" because he could not afford a tax liability at that time. In essence, Mr. Nabi stated he was willing to lie under oath at discovery to save himself from the potential financial consequences of telling the truth. The determination of the issues before this Court will likewise have financial consequences for him; Mr. Nabi has provided no reason why I should accept his testimony now, at trial, as being truthful when he was willing to lie to avoid financial consequences in the past. [47] Mr.

Nabi readily admitted to forging documents, including a letter of gift purportedly signed by his mother and that he lied about it in his affidavit under oath to permit him to amend his pleadings. He repeated that lie during his examination for discovery. I will discuss the forgery of various documents later in these Reasons in greater detail. [48] I agree with counsel for Ms. Turabi that the only reason that Mr. Nabi acknowledged his various lies is because they were impossible to maintain in light of other evidence at trial. He acknowledged his lies at discovery regarding his income when faced with his own documents at trial that irrefutably contradicted his discovery testimony. With respect to the gift letter, he acknowledged his lies at trial because he could not maintain his position that his mother had signed it given Mme. Nabi's testimony that she had never seen the letter. One must wonder what lies Mr. Nabi has told to the Court that were not as readily discoverable. [49] I will comment further on Mr. Nabi's credibility throughout the course of these Reasons. For present purposes it is sufficient to say that, where Mr. Nabi's evidence conflicts with the evidence of Ms. Turabi, I prefer Ms. Turabi's evidence. Mme. Nabi [50] I also found Mme. Nabi to be neither a credible nor reliable witness. I agree with Ms. Turabi that Mme. Nabi was often vague and evasive on

cross-examination. An example of her vagueness is the evidence she gave about the initial discussions regarding her advancement of funds. She stated that she and Mr. Nabi had talked about the loan initially when Ms. Turabi was not working and Mr. Nabi was having heart problems, and that he gave her a paper to confirm the loan money in 2016. When confronted with the fact that Mr. Nabi was in the hospital in 2013, not 2016, her answer was vaguely that he "always has heart problems" and that she wasn't sure of the dates. [51] With respect to one of the loan documents tendered on her and Mr. Nabi's behalf, Mme. Nabi testified at trial that she recalled signing it in front of the witness on October 20, 2016, in Paris. This was shown to not be possible given that Mme. Nabi was in Canada at that time. Interestingly, at discovery she had testified that she had no memory of signing the same document. Even more interestingly, Mr. Nabi has acknowledged that this particular document was actually created in 2020, after the parties separated, and was backdated to 2016. [52] There were a number of examples of Mme. Nabi's evidence differing between her examination for discovery, only three weeks before trial, and trial. For example, in her direct examination, Mme. Nabi said that she was the one who, in 2016, had suggested that she sell her Paris apartment and loan the money to Ms. Turabi and

Mr. Nabi. On cross-examination, she was confronted with her answer at examination for discovery where she had said that Ms. Turabi was not working in 2016 and that she asked for Mme. Nabi's financial assistance. This is inconsistent with her previous evidence that she suggested the loan and with the undisputable fact that Ms. Turabi was working full time in 2016 and had began working three years earlier. [53] At times, Mme. Nabi denied the answers that she provided at discovery and blamed her tiredness and the interpreter for any inconsistencies between her evidence then and her evidence at trial. I do not accept this explanation. At no time during the discovery did Mme. Nabi indicate that she had any difficulty understanding questions or that she was suffering from some sort of impairment due to being tired. Other Witnesses [54] Mr. Nabi and Ms. Turabi each called a number of witnesses in support of their case. Many of the witnesses did not provide relevant evidence to any material extent. I will comment on those witness's credibility and reliability where I find it necessary throughout these reasons.

RETROACTIVE CHILD SUPPORT [55] Ms. Turabi originally sought retroactive child support from the date of separation until Anais and Alice graduated from their post-secondary studies. During submissions, counsel advised that Ms. Turabi conceded that Mr. Nabi was not liable for child support for the period of time that Mr. Nabi continued to live with Ms. Turabi and their daughters in the New Westminster Home after separation and continued paying the expenses he did during the relationship: C.D.F.B. v. A.G.B., 2022 BCSC 511 at para.

204. Thus, Ms. Turabi seeks retroactive child support from the time that Mr. Nabi moved to the Surrey Property in January 2020 until their daughters' respective graduation from post-secondary studies in June 2020 and June 2022, respectively. [56] Mr. Nabi submits that he is not liable for child support for Alice and Anais during the relevant period. As I understand his argument, he denies liability for child support of his adult children, even though they were attending post-secondary education, because (1) Alice and Anais have refused to contact Mr. Nabi since July 2021 and he says there is no reasonable explanation for the estrangement; and (2) given his means and financial circumstances, he should not have to pay child support. Mr. Nabi made some child support payments pursuant to a consent order between June and November 2021 totaling $3,408. He seeks return of those payments or that they be otherwise credited to him. Applicable Law [57] Alice turned 19 on April 7, 2018, and Anais turned 19 on July 8, 2019. [58] Under s. 2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), a child of or over the age of majority may still be a "child of the marriage" for child support purposes if they are unable to withdraw from their parent's charge or "obtain the necessaries of life" because of illness, disability, or other cause. Ms. Turabi, as the applicant parent, bears the onus of

establishing that Alice and Anais remained children of the marriage, despite having reached the age of majority. [59] In deciding whether an adult child attending post-secondary education is a child of the marriage for the purposes of support, the court considers a number of factors including whether the child's educational pursuits are reasonable, and if so, whether it is appropriate for the parents to finance the child's education. [60] The relevant factors were enumerated by Master Joyce in Farden v. Farden (1993), 1993 CanLII 2570 (B.C.S.C.) and were recently set out by Chief Justice Hinkson (as he then was) in Gron v. Gron, 2021 BCSC 1375 at para.

24. The factors include: a) whether the child is enrolled in a course of studies and whether it is a full-time or part-time course of studies; b) whether or not the child has applied for or is eligible for student loans or other financial assistance; c) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do; d) the ability of the child to contribute to his support through part-time employment; e) the age of the child; f) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies; g) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; and h) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought. [61] Mr. Nabi places a significant emphasis on the final Farden factor. He says that because Anais refused to have contact with him beginning in July 2021, she should not be considered a child of the marriage for the purpose of support. [62] If it is determined that an adult child remains a child of the marriage, the amount of support for children over the majority is set out in s. 3(2) of the Federal Child Support

Guidelines, SOR/97-175 ("Guidelines"). A four-part test to determine whether the Guidelines income should be followed in a case where an adult child is attending post-secondary schooling was endorsed by the Court of Appeal in Neufeld v. Neufeld, 2005 BCCA 7 at para. 38: a) Decide whether the child is a "child of the marriage" as defined in the Divorce Act? If s/he is not, that ends the matter. b) Determine whether the approach of applying the Guidelines as if the child were under the age of majority ("the usual Guidelines approach") is challenged. If that approach is not challenged, determine the amount payable based on the usual Guidelines approach. c) If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach is inappropriate. If not, the usual Guidelines amount applies. d) If the usual Guidelines approach is inappropriate, decide what amount is appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [63] Section 15.1 of the Divorce Act provides for the authority to make an award of retroactive child support. The factors the Court may consider in deciding whether a retroactive award is appropriate were set out in D.B.S. v. S.R.G., 2006 SCC 37, summarized by the Court of Appeal in Sampley v.

Burns, 2018 BCCA 178 at para. 48: a) Reasonable Excuse for Why Support Was Not Sought Earlier; b) Conduct of the Payor Parent; c) Circumstances of the Child; and d) Hardship Occasioned by a Retroactive Award. [64] Section 19(1) of the Guidelines gives the court discretion to impute income to a spouse in certain circumstances. Of particular relevance to this case is s. 19(1)(a) which provides that the court may impute income to a spouse where that spouse is intentionally unemployed, other than where the unemployment is required by the needs of the child or by the reasonable educational or health needs of the parent. [65] The court is to answer three questions in determining whether to impute income to a spouse, set out in Drygala v. Pauli (2002), 61 O.R. (3d) 711, 2002 CanLII 41868 (O.N.C.A.) at para. 23: a) Is the spouse intentionally under-employed or unemployed? b) If so, is the intentional under-employment or unemployment required by virtue of the spouse's reasonable educational or health needs or the needs of a child of the marriage? c) If the answer to question #2 is negative, what income is appropriately imputed in the circumstances? [66] A spouse is intentionally under-employed when they choose to earn less than what they are capable of earning: Barker v. Barker, 2005 BCCA 177 at paras.18-19. Section 19(1)(a) does not apply where, through no fault or act of their own, the spouse is terminated from their employment or given reduced hours: Drygala at para.

28. In British Columbia it is not necessary for a party alleging under-employment to show that their former spouse is under-employed with the intent of avoiding support obligations: Barker at paras.18-19. The party seeking to have income imputed to their former spouse bears the onus of showing, on a balance of probabilities, that their former spouse is intentionally unemployed: Windle v. Windle, 2010 BCSC 18 at para. 88. [67] In exercising its discretion under question three of the Drygala framework, the court must consider whether the spouse's unemployment is reasonable in the circumstances having regard to the spouse's employment history, age, education, skills, health and available employment opportunities: Marquez v. Zapiola, 2013 BCCA 433 at para. 37; Drygala at para.

45. Alice and Anais Remained Children of the Marriage [68] In my view, both Alice and Anais remained children of the marriage during the period of time that they attended post-secondary education, despite any subsequent termination of contact with Mr. Nabi. [69] The first seven Farden factors weigh in favour of Alice and Anais being treated as children of the marriage while they attended post-secondary institutions. Although Alice and Anais may not have pursued studies in the fields that Mr. Nabi originally would have preferred, before separation, both Mr. Nabi and Ms. Turabi encouraged their daughters to pursue an education after graduation from high school. Alice and Anais did this, and both were registered in a full-time course of studies following their graduation from high school. [70] Alice graduated from high school in June 2017 and she attended Douglas College in general studies beginning in September 2017, and later moved into the nursing program. She graduated from that program in June 2020. Anais graduated from high school in June 2018 and began her full-time studies at SFU in the fall of 2018. She obtained her degree in the spring of 2022. Both of the daughters were very successful in their chosen course of studies and they both found steady, full-time employment almost immediately following graduation. I note that Alice and Anais were relatively young when they

graduated from their chosen programs: approximately 21 years of age. Given how quickly they both completed their programs, it seems likely that they consistently bore a full-time coarse load for the duration of their degrees. [71] Both Alice and Anais financed their educations with a combination of student loans, scholarships and employment. Both Alice and Anais lived with Ms. Turabi while they completed their educations and Ms. Turabi generally paid for the vast majority of their living expenses after Mr. Nabi left the New Westminster Home at the end of 2019. I find that despite the fact that they contributed to the cost of their educations, they were unable to withdraw from their parent's charge. [72] Alice and Anais terminated contact with Mr. Nabi in or around June 2021 following a disturbing conversation that Mr. Nabi had with Alice in a car in which he graphically described how violence might be inflicted upon Ms. Turabi. Alice testified that during that conversation, Mr. Nabi told her that Ms. Turabi should consider herself lucky that she is in Canada because if she was in Afghanistan, she would be spat on, buried up to the neck. and kicked and stoned until she bled to death. Alice also testified that Mr. Nabi told, or suggested to her, that he had connections in Afghanistan if he wanted someone dead. At that time, Mr. Nabi was experiencing financial difficulty given the

large debt he had undertaken in relation to the Tatlow Property and, upon his own testimony, was very frustrated with Ms. Turabi's refusal to assist him with his financial obligations. [73] Alice's version of this conversation was not shaken on cross-examination. Nonetheless, Mr. Nabi suggests that she recently fabricated this conversation as a means of justifying her decision to terminate contact with Mr. Nabi when she did. However, this allegation of recent fabrication is rebutted by the testimony of Detective Sevdiani. Detective Sevdiani received an initial report from Ms. Turabi in June 2021 about an incident of physical violence that occurred in 2017. The detective spoke with both Alice and Anais and Alice told the detective what Mr. Nabi said to her in the car earlier that month. Her description of that conversation then was very similar to her description at trial. Given Mr. Nabi's lack of credibility, I find that the incident occurred as described by Alice. [74] In any event, Ms. Turabi does not seek retroactive child support in respect of Alice after her graduation in June 2020, so her decision to cease contact with her father in June 2021 is not relevant. Anais did not testify at the trial. However, Alice testified that she told Anais about the things that their father said in the car in June 2021. I also infer from Detective Sevdiani's testimony that Anais was

present when Alice told him about what Mr. Nabi said to her. In my view, it is reasonable to infer that Anais ceased contact with Mr. Nabi, at least in part, due to the disturbing comments he made to Alice about violence that could be inflicted upon their mother. [75] Whether an adult child has unilaterally terminated the relationship with the parent from whom support is sought is only one consideration in the analysis. In Shaw v. Arndt, 2016 BCCA 78 at para. 31, the Court of Appeal held that the final Farden factor will only justify cessation of support in rare and egregious circumstances. Neither Alice nor Anais' decision to terminate contact with Mr. Nabi was egregious nor irrational in the face of the disturbing comments he made. [76] If I am wrong in my inference that Anais ceased contact with her father because of the disturbing comments he made to Alice, I would nonetheless conclude that Anais remained a child of the marriage until she graduated from SFU. In Nordeen v. Nordeen, 2013 BCCA 178 at para. 17, Justice Groberman confirmed that the Farden factors are not a checklist, nor a mandatory set of criteria. Rather, the factors are "considerations for the court in assessing whether the child's situation is consistent with the definition of "child of the marriage" in the Divorce Act". The other relevant considerations, as described above, weigh heavily in favour of a

conclusion that Anais remained a child of the marriage throughout her post-secondary studies. A Retroactive Child Support Award is Appropriate [77] In my view, a retroactive child support order is appropriate beginning in January 2020 and concluding when each child graduated from post-secondary school. Applying the D.B.S. factors, child support was sought at the date of separation in the notice of the family claim and Mr. Nabi ought to have been aware of his obligation to pay support. Mr. Nabi paid child support for a few months pursuant to a consent order made at a JCC before unilaterally terminating child support without varying the order. The children were in full-time school and being supported by Ms. Turabi. There is no hardship from a retroactive award because the amount can be paid out of money's held in trust. Mr. Nabi's Income for the Purposes of Support [78] Ms. Turabi argues that Mr. Nabi's income since 2022 should be imputed at the same level as his 2021 reported income on the basis that he is intentionally unemployed. [79] Mr. Nabi is currently unemployed and has been since he lost his employment with VGH in 2021. Mr. Nabi has experience in the audio/visual field dating back to his time as what he described as a "freelance" worker in France. He is fluent in French and held a position with Microsoft doing French language technical support after he arrived in Canada

in or around 2005-2006. That employment ended, and in or around 2009-2010, he attended BCIT for a one-year program in what I understand to be the audio/visual technician field. He received a diploma in January 2010 or 2011. [80] In or around fall of 2011, Mr. Nabi started his employment with VGH as an Audio Visual and Digital Media Technician. It appears that employment became full-time in early 2012. In that role, Mr. Nabi provided technical support to what I understand to be a very sophisticated lab wherein medical students, physicians and first responders were trained on automated mannequins in a variety of scenarios. Mr. Nabi filmed and edited autopsy videos that were used to for training purposes, designed some posters and assisted with website design. Mr. Nabi lost his employment with VGH in February 2021 as a result of an internal restructuring. He was provided with nine months severance pay such that he received his employment income until the end of 2021. I accept that he lost this employment through no fault of his own. [81] In his most recent F8 Financial Statement, sworn on April 7, 2024, Mr. Nabi deposes to having an income of zero for the purposes of support. As I understand it, Mme. Nabi has assisted Mr. Nabi in covering his living expenses by continuing to transfer and otherwise provide funds to him on a regular basis. Mr. Nabi says no income should be imputed

to him because since he lost his employment, he has and is currently "working to capacity." [82] Despite having lost his most recent employment through no fault of his own, I have no trouble in concluding that Mr. Nabi is intentionally unemployed for the purposes of the Guidelines. [83] Mr. Nabi argues that he has done everything he can to find employment in the more than three years since he was terminated. However, the evidence does not bear this out. Notably, Mr. Nabi inexplicably took no steps to find employment until 2023. Rather, he chose to live on Employment Insurance for the first eight months of 2022, funds from his mother, and rental income from the Surrey Property. He testified that he did not look for work in 2022 because he was too busy dealing with this litigation and issues with the real estate that he owned. He did not search for employment during the period he received severance pay in 2021 in the misguided hope that he would be provided with a position in newly restructured organization. [84] Mr. Nabi provided some evidence of jobs he has applied to beginning in 2023. He recently had an interview with BCIT but was not selected. He testified to having recently applied for an office job in Calgary "working on computers" and being optimistic as to his chances of success. [85] Mr. Nabi submits that he is unable to find employment because "he has trouble with

interviewing due to his age and French language and his way of communicating in interviews." A former co-worker testified to having helped Mr. Nabi make applications and expressed the view that Mr. Nabi is not good at interviewing. I place very little weight on this self-serving evidence. I note that Mr. Nabi testified at length, and in great detail, in English at this trial. He has provided no explanation, other than his interviewing ability, to justify his inability to find work. [86] The better explanation is that the jobs that Mr. Nabi has applied for since he began his "search" in 2023 are generally not jobs that he is qualified for. For example, he has applied for relatively senior level position with Immigration, Refugee and Citizenship Canada on the basis that he would be well-qualified as an immigrant himself. He applied to be an appliance technician despite not having any qualifications in this area. He applied as a receptionist despite never having had experience in this line of work. He submitted applications to some employers where there were no actual positions open. Mr. Nabi is trained in the audio/visual field but yet seems determined not to pursue employment that is even marginally related to that experience. It is appropriate to impute income where a person has unrealistic career aspirations: Fong v. Fong, 2011 BCSC 42 at para.

82. Similarly, it is open to impute income where a parties' job search is not genuine. [87] It does appear that Mr. Nabi has held some part-time tutoring roles as a French language tutor and he has given no reasonable explanation as to why he has not pursued employment, or further self-employment, in this field for which he appears to be qualified. When shown some such opportunities posted on the internet during cross-examination, Mr. Nabi explained he had not applied because he did not know those jobs existed. [88] Mr. Nabi also alluded to having physical and mental health problems that are hindering his ability to work. As I understand it, the mental health issues he alleges are in relation to the breakdown of his marriage and the stress of litigation. However, there is simply no evidence that Mr. Nabi is unemployed due to any health reasons. While Mr. Nabi is older than Ms. Turabi, at 57 years old he is still of working age. [89] On the evidence before me, I have decided that it is reasonable to impute income to Mr. Nabi for 2022 at the same level as his 2021 reported income. There is no reasonable explanation for why Mr. Nabi has remained unemployed since then and as to why he could not earn an equivalent income. [90] I note that in using Mr. Nabi's reported income for the purposes of child support, I have not included any rental income that Mr. Nabi received from the

Surrey Property in 2020, 2021, or 2022. Although Mr. Nabi acknowledged that the Surrey Property was net positive, he did not report that income on his tax returns. The way in which he kept his books, or did not keep his books as the case may be, makes it very difficult to determine how much income he did earn from the Surrey Property at the relevant time. Counsel for Ms. Turabi did not pursue an imputation based upon this unreported rental income. The Quantum of the Child Support Award [91] As I understand his argument, Mr. Nabi suggests that if a child support order is made, it would be inappropriate to apply the usual Guidelines method as if Alice and Anais were under the age of majority. He argues that consideration of the conditions, means, needs and other circumstances of the children and his financial circumstances during the relevant times should lead to a much lower award, or perhaps no award at all. As discussed above, s. 3(2) of the Guidelines provides that in some circumstances, the amount of child support payable may be determined with reference to the means of the children and the financial ability of each parent to contribute to the support of the child. [92] The crux of Mr. Nabi's argument in respect of quantum is that by November 2020, he was experiencing significant financial strain given the high debt obligation he took on in respect of the Tatlow Property. He

also suggests that Alice and Anais were capable of contributing more to their support. [93] In my view, Mr. Nabi's decision to complete on the Tatlow Property by taking on a significant amount of debt at a high interest rate does not absolve him of his obligation to pay child support. At the time he took on this obligation in November 2020, both Alice and Anais had been enrolled in post-secondary education for a number of years. Mr. Nabi had a choice in incurring the extra debt he did and should have considered the obligations he had to his children when he did so. I have decided not to depart from the usual way of determining child support under the Guidelines. If I am wrong and should have departed from the usual way of determining child support under the Guidelines, not including Mr. Nabi's unreported rental income would, in my view, more than account for Mr. Nabi's reduced ability to pay resulting from his high debt obligations. [94] Mr. Nabi's Line 150 income in 2020 was $60,078. Both Alice and Anais were full-time students from January to June 2020, at which time Alice graduated and ceased being a child of the marriage. Under the Guidelines, Mr. Nabi's child support payments for this six-month period was $932 per month for a total of $5,592. From July to December 2020, Mr. Nabi's child support obligation in respect of Anais was $568 per month for a total of $3,408. [95]

Mr. Nabi's Line 150 income in 2021 was $55,813. Anais remained in full-time studies during this year. Under the Guidelines, Mr. Nabi's child support payments for Anais for 2021 are $525 per month for a total of $6,300. [96] Mr. Nabi's Line 150 income in 2022 was $22,693. However, as discussed, I have decided to impute income to him at his 2021 income such that for the purposes of child support, Mr. Nabi's 2022 income is $55,813. Anais graduated from her program in June 2022. Under the Guidelines, Mr. Nabi's child support payments for Anais for the six months that she was in school in 2022 are $525 per month for a total of $3,150. [97] Given the above, Mr. Nabi's retroactive child support obligation from January 2020 until each of his daughters graduated from their post-secondary program is $18,450. Pursuant to the order made at the JCC, Mr. Nabi paid a total of $3,408. Consequently, Mr. Nabi is liable for a retroactive child support award in the amount of $15,042. This payment is to be made out of the funds held in trust by Mr. Nabi's counsel. THE CHARACTERIZATION OF CASH ADVANCES FROM MME. NABI [98] The characterization of the funds advanced from Mme. Nabi to Mr. Nabi sets the stage for many of the financial issues in this litigation. Whether the funds advanced were a loan, a gift, or held in trust for Mme. Nabi's benefit is the subject matter of Mme. Nabi's civil claim. Given

that these funds were used (at least in part) to purchase the Surrey Property in Mr. Nabi and Ms. Turabi's name, their characterization is also a key issue in respect of property division in the family law matter. [99] In her civil claim, Mme. Nabi has named Mr. Nabi and Ms. Turabi as defendants. She says that she entered into an agreement to loan €400,000 to Mr. Nabi and Ms. Turabi in 2016 on terms that it would be repaid to her when she retired in October 2020 with 5% simple interest (the "Alleged Loan Agreement"). Thus, she submits that the defendants owe her €420,000 which is equivalent to $626,690.40 CAD as of October 22, 2024. She says she loaned these funds to the defendants so they could purchase a home. [100] If no loan agreement is found, then Mme. Nabi argues in the alternative that the €400,000 was held by the defendants for her benefit pursuant to a resulting or constructive trust. Mme. Nabi and Mr. Nabi are aligned in their position with respect to characterization of the funds advanced. [101] Ms. Turabi denies the existence of a loan agreement on the terms put forward by Mme. Nabi, or at all. Rather, Ms. Turabi says that the funds advanced by Mme. Nabi were a gift to Mr. Nabi. Being a gift, the funds were not being held subject to any trust in favour of Mme. Nabi. There was no Loan Agreement on the Terms Alleged by Mme. Nabi [102] Mme. Nabi is unable to meet the

onus upon her of proving a loan agreement on the terms she has put forward. There was no meeting of the minds with respect to the existence, nature, and scope of Mr. Nabi, Mme. Nabi and Ms. Turabi's respective rights and duties at the time the loan agreement was allegedly entered into. I agree with Ms. Turabi that there is no credible or reliable evidence that establishes that in 2016, the parties entered into a loan agreement, the terms of which were €400,000 Euros loaned with 5% interest to be returned by October 2020. No Oral Agreement was Formed [103] Mme. Nabi relies on Rosas v. Toca, 2018 BCCA 191, in which the Court of Appeal referred to the objective theory of contractual interpretation. At para. 36, the Court of Appeal stated that this approach calls for "a reasonable person to conclude that the parties had entered into an agreement". Mme. Nabi submits that a reasonable person would conclude that the funds were lent to the Ms. Turabi and Mr. Nabi and were not a gift. She relies upon four reasons in support of her submission that a contract was formed (i.e. the Alleged Loan Agreement) on what she refers to as the "reasonable observer" test. [104] There is a fundamental issue with Mme. Nabi's position that must be dealt with at the outset: While there are a number of documents that have purportedly been signed by Mme. Nabi and Mr. Nabi in respect of the Alleged Loan

Agreement, there is not a single document evidencing Ms. Turabi's participation in such an agreement. Her signature appears on none of the documents tendered by Mme. Nabi and Mr. Nabi. Consequently, in order to prove that Ms. Turabi is a party to the Alleged Loan Agreement, Mme. Nabi faces the task of proving that an oral agreement was entered into by Ms. Turabi. While she did not address this issue directly in her submissions, she did plead that the Alleged Loan Agreement was an oral agreement or a combination of an oral and written agreement. [105] A contract is formed when there is an objective intention to contract, the essential terms are agreed to by the parties, and the essential terms are sufficiently certain: Oswald v. Start Up SRL, 2021 BCCA 352 at paras. 33-34 and the authorities cited therein. In Go Transport Ltd. v. Moore, 2021 BCSC 1099 at paras. 17-19 [Go Transport], MacDonald J. summarized the key principles that apply when determining whether an enforceable oral agreement was reached between parties. From these authorities, the following principles are particularly relevant to the case at bar: a) The party relying on the contract must prove its existence. In this case, that is Mme. Nabi. b) The onus is on Mme. Nabi to establish that she and the defendants intended to form a contract and that the essential terms of that contract can be determined with a

reasonable degree of certainty: Copcan Contracting Ltd. v. Ashlaur Trading Inc., 2010 BCCA 597 at para. 8. c) Whether Mme. Nabi (or Mr. Nabi for that matter) subjectively intended to contract is irrelevant. The test with respect to intention is objective; did the parties to the Alleged Loan Agreement indicate to the outside world their intention to contract and the terms of such contract? Berthin v. Berthin, 2016 BCCA 104 at para. 46 and the authorities cited therein. d) The surrounding circumstances (i.e. the factual matrix) known to the parties at the material time is relevant to determining the parties' intention to contract. The court can consider the conduct of the parties before and at the time of the alleged agreement was made and what was said, communicated or done by the parties: Oswald at paras. 34, 57. e) Evidence of subsequent conduct can be relevant to ascertain whether the parties objectively had entered into a contract: Oswald at para. 50. [106] The submissions made on behalf of Mme. Nabi focus on her stated subjective intention to enter into a loan agreement with the defendants, which provides little insight to objective intention. She also focusses on what could arguably be characterized as the surrounding circumstances such as the contemplation of her retirement in 2020 and her need to fund that retirement, the fact that she worked hard her entire life to save

money and was not the type of person to give it away, and that she discussed the Alleged Loan Agreement with third-parties. Some of these considerations will be discussed later in my analysis of whether a resulting trust was created. [107] Where her evidence could weigh on objective intention, such as discussions of the Alleged Loan Agreement with third parties, it is not sufficient to show an enforceable oral contract was reached. I find Mme. Nabi failed to meet the onus upon her of proving that Ms. Turabi intended to enter into a contract with her. [108] Ms. Turabi has denied being a party to any discussions regarding a loan on the terms put forward by Mme. Nabi, or on any terms at all. In fact, on cross-examination, Mme. Nabi acknowledged that Ms. Turabi was not present for any of the discussions about the specific terms of the Alleged Loan Agreement; leaving the only people supposedly present being Mme. Nabi and Mr. Nabi. Mme. Nabi has not explained how someone can be made a party to an oral agreement when they were not present for any of the discussions that supposedly gave rise to that agreement. There is no evidence whatsoever that Mr. Nabi had any authority to act on Ms. Turabi's behalf as an agent in entering into an oral agreement or in signing the documents he did sign (and in any event, the authenticity of those documents is very much at issue, as will be discussed

later). [109] While Mme. Nabi and Mr. Nabi testified that Ms. Turabi later made statements to them acknowledging the existence of the Alleged Loan Agreement, I do not find that such statements were made. Given my credibility findings, I prefer Ms. Turabi's evidence that she never discussed the terms of the Alleged Loan Agreement with either Mr. Nabi or Mme. Nabi. Having not been a party to the alleged discussions giving rise to the Alleged Loan Agreement, I find that the Mme. Nabi's claim made against the defendants in respect of the Alleged Loan Agreement fails. No Written Loan Agreement was Entered into Between Mme. Nabi and Mr. Nabi. [110] My finding that Ms. Turabi was not part of any discussions regarding the terms of the Alleged Loan Agreement is sufficient on its own to dismiss Mme. Nabi's claim that the Alleged Loan Agreement exists. However, in submissions, counsel for Mme. Nabi suggested that if Ms. Turabi was not a party to the Alleged Loan Agreement, there was an enforceable loan agreement between Mme. Nabi and Mr. Nabi on the same terms (the "Nabi Alleged Loan Agreement"). While it is questionable as to whether this argument is open to Mme. Nabi on her pleadings, I will consider it given that the documents at issue are also relevant to my later analysis of whether a resulting trust was created. [111] I disagree with Mme. Nabi that the Nabi Alleged Loan Agreement

was made. I find that the documents tendered by Mme. Nabi and Mr. Nabi in support of the Nabi Alleged Loan Agreement were not created contemporaneously to the advancement of the funds; rather, they were likely created after-the-fact as a means of frustrating Ms. Turabi's claim to the Surrey Property which was purchased with some of those funds. [112] Four documents were tendered in evidence by Mr. Nabi and Mme. Nabi in support of the existence of a contractual loan agreement: a) Exhibit 16 is a two-paragraph long note titled "Acknowledgement of Loan Money" purportedly dated June 15, 2016, and signed in Paris by Mme. Nabi indicating that she agreed to lend Mr. Nabi €400,000 + 5% interest that would be paid in the event of resale (the "Guhare Nabi June 2016 Note"). b) Exhibit 24 is a one-paragraph long note titled "Re: Acknowledgement of Debt" purportedly dated and signed in Paris on June 15, 2016, by Mr. Nabi acknowledging that he owes Mme. Nabi €400,000 and will undertake to repay Mme. Nabi that amount plus interest at 5% or €20,000 payable at the same time as the principal in the event of a resale (the "Wahid Nabi June 2016 Note"). c) Exhibit 25 is a two-paragraph long note titled "Acknowledgement of Debt" purportedly dated October 20, 2016, and signed by Mr. Nabi in Vancouver acknowledging that he received the sum of €400,000 to enable him to acquire a house as a loan and

undertaking to pay Mme. Nabi in one or more instalments by date of October 20, 2020, with €20,000 interest (the "October 2016 Note"). d) Exhibit 20 is a four-page document titled "Loan Agreement" purportedly dated October 20, 2016, and signed by Mme. Nabi and Mr. Nabi on that date, indicating that Mr. Nabi promises to repay €400,000 to the lender with €20,000 in interest in one installment on October 20, 2020. (the "October 2016 Agreement"). (Collectively, the "Written Loan Notes and Agreements".) [113] Certified translations of the Guhare Nabi June 2016 Note, the Wahid Nabi June 2016 Note, and the October 2016 Note were entered into evidence as the originals of these documents were in French. The October 2016 Agreement was originally made in English. [114] I agree with counsel for Ms. Turabi that the evidence pertaining to the Written Loan Notes and Agreements is inconsistent, entirely unreliable, and strains credulity. I will discuss the most significant problems with each document in turn. In regards to Mme. Nabi's testimony concerning the Written Loan Notes and Agreement, it was frequently contradicted by other evidence, and I find it unreliable. [115] I find that the Guhare Nabi June 2016 Note was not executed on the date it was purportedly signed by Mme. Nabi. Mme. Nabi's testimony about the circumstances of its execution is unreliable: a) She testified that she signed

the Guhare Nabi June 2016 Note because Mr. Nabi was suffering heart problems and he gave her the note as means of confirming the money she had loaned to him in case something happened to him. However, Mr. Nabi was not suffering heart problems in 2016; he had had his heart attack in 2013 and acknowledged on cross-examination that he had no significant heart issues between 2014 and 2019. b) Mme. Nabi testified that Mr. Nabi sent the Guhare Nabi June 2016 Note from Canada to her in France and asked her to sign it and bring it to Canada. However, Mr. Nabi testified that he created this document while he was in France in May 2016 and had Mme. Nabi sign it then. c) Mme. Nabi said she signed the document on June 15, 2016, as indicated in the document. However, Mr. Nabi says that they chose the date of June 15, 2016, "randomly" as it was a date that they agreed the funds would be ready by. d) The Guhare Nabi June 2016 Note refers to repayment of the funds being due in the event of resale (presumably of the home to be purchased with those funds). This is inconsistent with the terms advanced by Mme. Nabi in this litigation which is that they were due to be repaid by October 2020. [116] The Wahid Nabi June 2016 Note suffers from similar problems: a) Mr. Nabi says he created it in France in May 2016 and he signed it in the presence of Mme. Nabi while he was there; however, Mme. Nabi says

that Mr. Nabi created this document in Canada and signed it there and sent it to her. She then modified her testimony and said that Mr. Nabi signed the Wahid Nabi June 2016 Note in Canada and brought it to her in France so they could exchange these two documents. b) It refers to repayment being due "in the event of resale of my house"; however, Mr. Nabi did not own a house in June 2016; the Surrey Property did not close until January 2017. c) The terms of repayment are also inconsistent with the terms advanced by Mme. Nabi in this litigation which is that they were due to be repaid by October 2020. d) It indicates that Mr. Nabi "owes" Mme. Nabi €400,000. However, the funds used to purchase the Surrey Property had not yet been advanced to Mr. Nabi and were not advanced until the fall of 2016. Even then, a total of €400,000 was not advanced to Mr. Nabi until many years after the initial advance in the fall of 2016. [117] The October 2016 Agreement suffers similar evidentiary issues: a) At discovery, Mme. Nabi testified that she had no recollection of signing the October 2016 Agreement. At trial, she contradicted her previous evidence and testified that she signed the October 2016 Agreement in Paris as indicated on the document on October 16, 2020, in front of Hassib Raouf who has also signed the document as a witness. However, that could not be true because Mme. Nabi was in

Canada on October 16, 2020, and if she did sign it in Canada on a different date, it could not have been signed in front of Mr. Raouf as he has never been to Canada. b) Mr. Nabi admitted in his testimony that the October 2016 Agreement was created in 2020, after he and Ms. Turabi separated, and that he backdated it to October 20, 2016. He explained that he created this document to "reflect" the other written notes. The October 2016 Agreement itself does not say this at all. Mr. Nabi had no satisfactory explanation as to why, on its face, the document appears to have been signed on October 20, 2016, and does not reference an earlier agreement. I am skeptical that Mr. Nabi would have been forthcoming about backdating this document had Mme. Nabi's evidence of signing the document in 2016 not been so effectively undermined before he took the witness stand. [118] The sole document that avoids conflicts in the evidence is the October 2016 Note signed by Mr. Nabi; likely because Mme. Nabi provided no evidence at all about this particular document. It refers to repayment being due in one or more installments before the date of October 20, 2020. Mr. Nabi says that he signed this document when his mother was visiting Canada in October 2016 and he explained that the repayment terms differed because he knew she would retire then. [119] Each of the Written Loan Notes and Agreements

references the amount loaned or owed as being €400,000. However, the amount advanced by Mme. Nabi before the Surrey Property was purchased was approximately $30,000 CAD and €230,000 which combined made up the down payment of $314,405 CAD. Mme. Nabi and Mr. Nabi say that amounts advanced after the purchase of the Surrey Property totalled €400,000. However, all of the documents refer to €400,000 being loaned for the specific purchase of a home, there is no reference to ongoing transfers being made over the course of many subsequent years. [120] The only other documentary evidence that €400,000 was loaned to Mr. Nabi by Mme. Nabi is a spreadsheet created by Mr. Nabi. I do not accept that this spreadsheet accurately reflects the amount of money received, or loaned to him, from Mme. Nabi or that it was created contemporaneously when amounts were advanced to him. The amounts recorded in the spreadsheet do not match Mr. Nabi's bank account statements. The spreadsheet also includes amounts purportedly transferred after Mr. Nabi and Ms. Turabi's separation. [121] It is also telling that none of the Written Loan Notes and Agreements were provided to, shown to, or referenced by Mr. Nabi when he met with his previous lawyer, Dr. Samin Mortazavi, shortly after receiving the notice of family claim to prepare the response. At that meeting on June 18, 2019, the only document about the Surrey

Property that Mr. Nabi referenced and showed to Dr. Mortazavi was a gift letter purportedly signed by Mme. Nabi which stated that the funds she advanced and that were used for the down payment on the Surrey Property were a gift. This meeting with his previous counsel will be discussed in greater detail later. For present purposes, it is sufficient to say that the Court was provided with no cogent explanation as to why Mr. Nabi would not have provided the documents evidencing the existence of the loan that he says were created in 2016 at that meeting with his lawyer in 2019 if they in fact existed. [122] It is also notable that, of the four Written Loan Notes and Agreements, only the October 2016 Agreement was disclosed in the litigation on the respondent's November 5, 2020, list of documents. The other three documents, purportedly executed in 2016, were not disclosed until June 2022 and absolutely no explanation has been provided for this delayed disclosure. [123] For all of these reasons, in conjunction with Mme. Nabi and Mr. Nabi's lack of credibility, I find that the Written Loan Notes and Agreements are fraudulent documents, likely created by Mr. Nabi, with Mme. Nabi's consent or assistance, for the purpose of misleading the Court to defeat Ms. Turabi's claim to the Surrey Property which was purchased with funds advanced by Mme. Nabi. Consequently, I find that Mme. Nabi's

claim that Mr. Nabi owes her €400,000 subject to a written agreement fails. The Funds Advanced by Mme. Nabi were a Gift to Mr. Nabi [124] I have found that there was no contractual loan agreement between Mme. Nabi and Mr. Nabi and/or Ms. Turabi. However, this does not end the analysis: A gift requires that the transferor intends to gift the property. If the transferor's intent was otherwise, for example their intent was to loan the funds, then they would be impressed with a trust. I must consider whether Mme. Nabi intended the funds to be a gift, or a loan as she alleges. Specifically, I must determine whether the funds were subject to a resulting trust in favour of Mme. Nabi such that the €400,000 allegedly advanced by her is owed to Mme. Nabi by one or both of Mr. Nabi and Ms. Turabi (the "Alleged Trust Funds"). [125] Mme. Nabi and Mr. Nabi submit that the presumption of resulting trust operates and has not been rebutted by Ms. Turabi. For her part, Ms. Turabi submits that the funds advanced by Mme. Nabi for the purchase of the Surrey Property, and any other funds advanced afterwards, were a gift to Mr. Nabi. The Applicable Law [126] Whether the Alleged Trust Funds are a gift or are subject to a resulting trust depends upon the intention of Mme. Nabi when the transfer was made: Pecore v. Pecore, 2007 SCC 17 at para.

5. As equity presumes a bargain, the law presumes that the transferor intended to convey legal title but retain the beneficial interest: Pavlovich v. Danilovic, 2019 BCSC 153 at para 40, aff'd 2020 BCCA 36. Where the presumption of resulting trust applies, the transferee bears the onus of showing that the transfer was a gift: Pavlovich at para.

40. The governing consideration is the transferor's actual intention: Pavlovich at para 44. [127] While I have found that there was no loan agreement, I now must determine if Mme. Nabi nonetheless intended to advance the funds as a loan, or if she intended to advance them as a gift. If Mme. Nabi intended to advance them as a loan, then her intention at the time the funds were transferred was not to gift them and so the funds would be subject to a resulting trust in her favor. [128] In Beaverstock v. Beaverstock, 2011 BCCA 413, the Court of Appeal summarized the approach to resolving the issue of whether the provision of funds was intended as a gift or a loan: [9] The correct approach to the resolution of this dispute is not in dispute. It is set out in Pecore v. Pecore Whether the transfer was a loan or a gift depends on the actual intention of the appellant when she made the advance, which is a question of fact. As the advance was gratuitous, the onus was on the respondent to demonstrate that the appellant intended a gift, since equity presumes bargains, not gifts (para. 24). This equitable principle gives rise to a presumption the son received the money on a resulting trust, which is a rebuttable presumption of law. The trial judge was therefore required to presume the advance was not a gift and to determine whether the respondent had satisfied the burden of rebutting the presumption of resulting trust on a balance of probabilities (para. 44). [129] The parties agree that the framework in the family law context for determining whether monies or transfers are loans or gifts is set out in Locke v. Locke, 2000 BCSC 1300 at para.

20. Those factors are: a) whether there were any contemporaneous documents evidencing a loan; b) whether the manner for repayment is specified; c) whether there is security held for the loan; d) whether there are advances to one child and not others, or advances of unequal amounts to various children; e) whether there has been any demand for payment before the separation of the parties; f) whether there has been any partial repayment; and g) whether there was any expectation, or likelihood, of repayment. [130] These factors are circumstantial evidence of the transferor's intention. The list of considerations is not exhaustive and are to be weighed along with all the other evidence to determine the transferor's intention: Beaverstock at para.

11. Advances from a parent to an adult child, even if they are described as loans in some documents, may nonetheless be characterized as gifts: E.P.J. v. A.P.E., 2010 BCSC 1121 at paras 46-70. Analysis [131] Starting with the presumption that the Alleged Trust Funds are subject to a resulting trust in Mme. Nabi's favour, I will first address the factors set out in Locke in an effort to determine Mme. Nabi's intention in transferring the funds. [132] The first consideration is whether there were any contemporaneous documents evidencing a loan. For the reasons discussed earlier, I have found that the Written Loan Notes and Agreements were not made contemporaneously with the transfer of the Alleged Trust Funds, and in fact, as I have found, they were likely created ex post facto to defeat Ms. Turabi's claim. [133] In any event, even if I was to accept veracity of the Written Loan Notes and Agreements, not a single one of these documents is even purportedly made contemporaneously with the transfers. The first transfer appears to have been made on November 7, 2016, in the amount of approximately €230,000. Other amounts were transferred from Mme. Nabi to Mr. Nabi's bank account over the subsequent years. No transfers were made in June or October 2016 and none of those documents accurately reflect the amount advanced for the purchase of the Surrey Property, or the Tatlow Property for

that matter. [134] The next consideration is whether the manner for repayment is specified. Mme. Nabi and Mr. Nabi's evidence is inconsistent on this point as well. As described above, the manner of repayment described in the Written Loan Notes and Agreements varies from the funds being repayable in one installment "in the event of resale" on an unspecified date to repayment being made by one installment by the specific date of October 20, 2020, and in yet another document, repayment is to be made by one or more installments on a specific date. [135] Reza Dastanpour testified that he had knowledge of Mme. Nabi's intent to loan the funds used for the purchase of the Surrey Property. However, he had no knowledge of any terms respecting interest. He did not know any specifics about the terms of repayment other than Mme. Nabi telling him that she would be repaid by Mr. Nabi and Ms. Turabi refinancing the mortgage or selling the property. His understanding was that Mme. Nabi was providing the funds from the sale of her property in France "like a loan" but with no date or interest on it. This evidence falls well short of establishing that the funds advanced were a loan. [136] Furthermore, I have some skepticism with respect to the reliability of Mr. Dastanpour's testimony in any event and assign it little weight. He was contacted by Mr. Nabi in 2020 to be a witness to the October

2016 Agreement. At that time, Mr. Nabi told Mr. Dastanpour that Ms. Turabi had put a "lien" on the Surrey Property and that he needed to create a document that supports his position that the funds were advanced as a loan. This may well have influenced Mr. Dastanpour's recollection of events and he certainly seemed to have no issue with signing a document dated some four years earlier than it was actually signed upon. [137] Mr. Raouf, the individual who witnessed Mme. Nabi's signature to the October 16 Agreement in Paris in 2020 provided some evidence of his knowledge of the nature of the funds advanced. His evidence was that Mme. Nabi told him in or around 2015 that she wanted to sell her Paris apartment and send them some money because Ms. Turabi and Mr. Nabi intended to buy a property but did not have personal money to make the purchase, or against which to borrow. He testified that he understood Mme. Nabi to be talking about a loan and not a gift, but he acknowledged that never saw any loan document and did not know any of the terms of repayment. He made no mention of interest. He said that Mme. Nabi was "hoping to have her money back". This evidence does not assist in establishing that any terms of repayment were specified. [138] There is simply no credible and reliable evidence that supports that the funds were transferred subject to the terms of repayment advanced by Mme.

Nabi and Mr. Nabi. [139] The next consideration is whether there is security held for the alleged loan. It is indisputable that there is no security held for the loan and that Mme. Nabi did not go on title to the Surrey Property. Mme. Nabi relies upon Darmantchev v. Darmantchev, 2023 ONSC 5754, in support of her position that there essentially was security because the Alleged Trust Funds were provided for the purchase of a property, and that property was expected to be sold to repay the loan. I accept that Mme. Nabi may have had no concern about repayment at the time the funds were advanced because she expected the Surrey Property would increase in value by that time. However, I balance this with the fact that only a portion of the Alleged Trust Funds were used for the purchase of the Surrey Property; certainly not the entire €400,000 allegedly advanced. Moreover, as discussed extensively, there is inconsistent evidence about whether the resale of the property was a term of the alleged loan. [140] The next consideration is whether there have been advances to one child and not the other, or advances of unequal amounts to Mme. Nabi's other child, David. I accept that Mme. Nabi did not make substantial gifts to her other son David. The only evidence before the Court with respect to this factor is that David received a loan of $20,000 USD for him to purchase a home in California.

He testified that there was no formal agreement but that he understood the amount was to be paid back and he did pay it back. No interest was added. It is not clear when this loan was made but I infer that David owned a house by 2016. [141] I agree with Mme. Nabi that, on its face, it would be inconsistent for Mme. Nabi to treat Mr. Nabi so much more favourably than David by gifting Mr. Nabi up to €400,000 (or at least the amount the approximately €230,000 used for the down payment on the Surrey Property). However, the evidence is that prior to Mr. Nabi and Ms. Turabi's separation, Mme. Nabi planned to split her time in retirement between David's house in California and Mr. Nabi and Ms. Turabi's residence in Canada, and perhaps some time in Paris. In my view, it is open to me to infer that Ms. Turabi's intention was to assist Mr. Nabi with purchasing a house that would be suitable for her to live with them in for part of the year during her retirement. Given that David appears to have been in a much better financial position and already owned his own home, it is not unreasonable that Mme. Nabi would make such a large gift to her other son in order to secure a place that she could live in with her family. [142] The next factors are whether there has been any demand for repayment before Mr. Nabi and Ms. Turabi separated and whether there has been any partial repayment. This

factor is not particularly relevant in this case because, even on Mme. Nabi's stated position, there was no requirement to repay until October 2020. The parties separated in May 2019 so there would not have been any reason to demand payment before then. However, I do note that there is no written evidence of any demand for repayment being made prior to Mme. Nabi filing her notice of civil claim in October 2022. Given that she takes the position that the funds were loaned to both Mr. Nabi and Ms. Turabi, one might expect that Mme. Nabi would have made a demand for repayment to Ms. Turabi in the two-year period between October 2020 and 2022. [143] All the parties agree that there has been no partial repayment made by either Mr. Nabi or Ms. Turabi. The conduct of Mme. Nabi and Mr. Nabi is inconsistent with a large amount of money owing to Mme. Nabi. For example, Mme. Nabi has continued to provide Mr. Nabi with considerable amounts of money even after not having received any repayment of the Alleged Trust Funds. Moreover, Mr. Nabi recently withdrew $30,500, yielding $21,313.25 after tax, from his locked-in account and instead of using it to begin paying back Mme. Nabi, who has testified that she is struggling financially, he spent it on a trip to visit Mme. Nabi in Paris during the 2024 summer Olympics. [144] The final factor for consideration under Locke is whether there was any

expectation or likelihood of repayment. I do not find that the evidence supports Mme. Nabi's contention that there was an expectation of repayment. Mme. Nabi did not keep any written record or track any of the funds advanced to Mr. Nabi over the years. As mentioned earlier, I do not accept the veracity of Mr. Nabi's spreadsheet which purportedly tracks the amounts advanced. And in any event, one would expect the borrower and the lender, not only the borrower, to keep track of moneys advances that were expected to be repaid. [145] As discussed earlier, the alleged terms of repayment are inconsistent. Moreover, it seems very unlikely that, in 2016 when the funds were advanced, Mme. Nabi actually expected her son and Ms. Turabi to sell the Surrey Property in October 2020 to repay her. At that time, there was absolutely no guarantee that there would have been funds remaining from the sale for Mr. Nabi and Ms. Turabi to purchase a home for them to live in post October 2020. In any event, as discussed above, I have found that Mme. Nabi's plan, as she reluctantly acknowledged on cross-examination, was to spend part of her time in Canada during her retirement living with Mr. Nabi and that in order for that plan to work, Ms. Turabi and Mr. Nabi would need to have a house that she could live in. [146] Mr. Nabi's conduct is also inconsistent with an expectation of repayment. For example,

Mr. Nabi (and Ms. Turabi) signed a five-year closed mortgage in January 2017 on the Surrey Property. In order to sell the property and repay his mother in October 2020, he would have incurred penalties for terminating the mortgage early. If the plan was to sell the property in October 2020, it is more likely that Mr. Nabi would have entered into a shorter term or open mortgage. Furthermore, Mr. Nabi made no attempts and did not suggest that he and Ms. Turabi should sell the Surrey Property to pay his mother back. Instead, he sought to refinance the property in an effort to buy Ms. Turabi out during the course of this litigation. [147] The factors enumerated in Locke are not exhaustive. I have also considered other circumstantial evidence such as the financial position that Mme. Nabi would have expected to be in when she retired at the time she made the transfers in 2016. I accept that in 2016, Mme. Nabi was nearing the end of her working career and that she intended to retire in or around 2020 and that her income upon retirement would be relatively modest. However, this is juxtaposed with the fact that in 2016, Mme. Nabi owned three properties in Paris. She sold one of them and used the proceeds to make the advances to Mr. Nabi leaving her with two apartments at the time she advanced the funds to Mr. Nabi: the apartment she currently lives in and another one. This is not

inconsistent with her then pending retirement and plan to move to Canada and the United States to live with her sons and their families. Mme. Nabi ultimately sold the third property in 2023 and used the proceeds to extinguish the mortgage on her residential apartment. In my view, Mme. Nabi's financial issues did not arise because she was not repaid the funds she advanced; but rather because her retirement plan to live part-time in Canada with Mr. Nabi and Ms. Turabi did not come to fruition and she continued to fund Mr. Nabi's living expenses after she retired. [148] I have also considered the position that Mr. Nabi initially took in response to the notice of family claim and what he told his previous lawyer about the funds received from his mother. While communications between Mr. Nabi and his former lawyer are protected by solicitor-client privilege, in a mid-trial ruling, I ruled that privilege had been waived over communications during a discrete period of time. This is because Mr. Nabi put the instructions he gave to his former lawyer, Dr. Mortazavi, at issue in his 2022 application to withdraw an admission in his original response to family claim. The admission that Mr. Nabi sought, and was ultimately granted leave, to withdraw in 2022 was that the Surrey Property was purchased with a gift from Mr. Nabi's mother. Mr. Nabi's position is that he never told Dr. Mortazavi

that the funds were a gift from his mother. At the time the application was argued before the associate judge, Ms. Turabi was represented by different counsel than the counsel who represented her at trial. [149] Following my ruling, Dr. Mortazavi testified at the trial. Contrary to Mr. Nabi's submissions, I found Dr. Mortazavi to be a credible and reliable witness. His evidence was not successfully challenged on cross-examination. Dr. Mortazavi was admittedly relatively inexperienced at the time he met with Mr. Nabi in June 2019. However, he testified to specifically remembering certain aspects of his meeting with Mr. Nabi which makes sense as it is more likely that a lawyer would remember one of his earlier clients. Furthermore, given my findings with respect to Mr. Nabi's credibility, I prefer the evidence of Dr. Mortazavi where it contradicts with that of Mr. Nabi's. [150] Dr. Mortazavi testified that he met with Mr. Nabi to discuss the response to family claim. He asked Mr. Nabi about the money used to purchase the Surrey Property and Mr. Nabi told him that it was a gift from his mother. Mr. Nabi provided Dr. Mortazavi with a gift letter on TD Bank letter head (the "TD Bank Gift Letter"). Dr. Mortazavi testified that there was no discussion about a loan made by Mme. Nabi with respect to the Surrey or Tatlow Property. [151] As Mr. Nabi did not contact a lawyer for some time

following his receipt of the notice of family claim, there was not much time left to file the response when he met with Dr. Mortazavi. I accept Dr. Mortazavi's testimony that he prepared the response to family claim while Mr. Nabi was in the room with him and that Dr. Mortazavi handwrote much of the response in a template because his printer was not working. The relevant part of the response reads: The property that the respondent has [the Surrey Property] is purchased with a "gift" received from his mother, gift letter and bank documents available. [152] I accept that Dr. Mortazavi discussed Ms. Turabi's claim for division of family property and that he explained the difference between a loan and a gift to Mr. Nabi. I also accept that he explained the consequences of receiving a gift and using that gift to purchase property in his and Ms. Turabi's name. In response to this advice, Dr. Mortazavi specifically recalls Mr. Nabi saying words to the effect that Ms. Turabi had helped him raise their two daughters and that he wanted her to receive her fair share of the property. He recalls Mr. Nabi showing him the TD Bank Gift Letter and telling him that his mother had gifted him the down payment. [153] Dr. Mortazavi's notes, prepared at the same time as he met with Mr. Nabi, indicate that the money provided by Mme. Nabi was provided to Mr. Nabi only, and not for the family. His notes

do not reference a loan. If Mr. Nabi truly believed he alone, or he and Ms. Turabi, were bound by a loan agreement to repay his mother, the logical thing to have done would have been to bring the Written Loan Notes and Agreements to the meeting with Dr. Mortazavi, or at least mention their existence. He did neither; instead, the only document he brought was a document that referred to the funds as being a gift (the TD Bank Gift Letter). [154] Mr. Nabi also swore and filed a F8 Financial Statement in November 2020 that was prepared by Dr. Mortazavi. That F8 Financial statement makes no mention of a loan owing to Mme. Nabi in any amount. It is notable that the alleged €400,000 loan from his mother would be the largest debt owing other than the mortgage, which he did list. Mr. Nabi clearly turned his mind to his outstanding debts at the time given that he listed a credit card debt in the amount of $69 on that same F8. Not cogent explanation has been given for the omission of the Alleged Trust Funds from his liabilities in that F8 statement prepared in 2020. [155] Mr. Nabi says that he mentioned the French versions of the Written Loan Notes and Agreements to Dr. Mortazavi but that Dr. Mortazavi said something to the effect of not being able to understand French. I do not accept this for two reasons. First, this was not put to Dr. Mortazavi during this cross-examination. Second,

this makes little sense. Mr. Nabi speaks French and English fluently and could have easily provided his translation of the documents. The more likely scenario is that Mr. Nabi had yet to create the Written Loan Notes and Agreements and only did so after later realizing the legal effect of a gift. [156] In any event, as mentioned, I do not accept Mr. Nabi's version of this meeting. In addition to Mr. Nabi's penchant for lying under oath when it suits him, the testimony he provided about this meeting is inconsistent. He first testified that Dr. Mortazavi went through the notice of family claim and response with him but later testified that nothing was discussed about any of the properties. He gave inconsistent testimony about whether he mentioned the French documents or only the TD Bank Gift Letter. At one point, he claimed he did not have a clear recollection of the meeting. I place absolutely no weight on Mr. Nabi's evidence with respect to what occurred at the meeting. [157] When taken together, the evidence provided in respect of all of the relevant factors leads to the conclusion that Ms. Turabi has successfully rebutted the presumption of resulting trust. [158] While Mme. Nabi claimed that the funds were advanced to both Mr. Nabi and Ms. Turabi, I find that her intention was to gift the Alleged Trust Funds to Mr. Nabi. On the evidence, Ms. Turabi was at most aware of the

dealings between Mr. Nabi and Mme. Nabi. She was not involved in discussions, did not consent nor accept transfers, nor did she sign any documents. While, as I found earlier, this shows that she was not party to any loan, it also indicates that Mme. Nabi intended to gift the funds to Mr. Nabi alone. [159] Before leaving this topic, I must comment further on the TD Bank Gift Letter referenced above. The TD Bank Gift Letter is purportedly signed by Mme. Nabi and Mr. Nabi and is dated December 17, 2016. It states that Mme. Nabi is gifting the amount of €229,989.58 to Mr. Nabi for the purchase of the Surrey Property. In the affidavit filed in support of his application to withdraw the admission from his original response to family claim, Mr. Nabi explained the existence of the TD Bank Gift Letter as follows: 35. At that time we were told by Abdul Safi that we cannot have two loans to qualify for the mortgage usually and he prepared a gift letter on December 17, 2016 for me to send to my mother for her signature which he said we would require to get a loan. I went home with the Claimant and I sent the document to my mother that Mr. Safi had prepared. I spoke to my mother over the phone and she asked me what the document was because she doesn't know how to speak or write English. She knows French and Farsi. I told her it is a letter that the bank needs for us to get a mortgage. She expressed to me concerns and wanted to make sure that she was still getting her money back. I told her not to worry, that I and the Claimant knew she had to be paid back and this would happen and not be a problem no matter what documents would be signed.

36. My mother said she would sign the document even though she can't read it, and she said she was trusting me by signing the document that everything would be okay and she would get her money back.

37. After I spoke with my mother, I talked to the Claimant and I reminded her that even though my mother was going to sign the gift letter provided by the bank to me that we had to pay my mother back all the money we had received from her. The Claimant said that she knew that this had to be done and that she knew my mother needed the money back. Had the Claimant said anything to me at any time that we would not be paying my mother back the monies we had borrowed from her to purchase the Surrey Property or other Property, I would not have gone ahead with the transaction and I would have given my mother her money back then. By December 19, 2016 my mother had signed the gift letter and it had been sent back to Abdul Safi. A copy of the TD Canada Trust Gift Letter signed by my mother and myself is marked and attached as Exhibit "I" to this my affidavit [160] Despite his clear and unequivocal evidence in the affidavit that his mother signed the TD Bank Gift Letter, at trial, Mr. Nabi admitted that his mother did not in fact sign the TD Bank Gift Letter and that he forged her signature. He testified that he was embarrassed to admit this to his lawyer at the time he swore the affidavit and he also suggested that he did not understand that the affidavit would be relied upon by the Court in his application for withdrawal of the admission. I do not accept this explanation. Mr. Nabi

clearly understood the nature of the affidavit and the use it would be put to. However, he was willing to lie in order to get the order he sought. [161] At trial, Mr. Nabi maintained and expanded upon the position expressed in his affidavit regarding the TD Bank employee's participation in the preparation of the TD Bank Gift Letter. Mr. Nabi testified that he told the mortgage broker he was dealing with, who was an employee of TD Bank, that the funds from his mother were a loan. He says that the TD Bank employee told him that he would not qualify for a mortgage from the bank if he was also borrowing money from his mother. Mr. Nabi says that the TD Bank employee told him that this problem could be remedied if his mother signed a letter confirming that the funds advanced were a gift, even though they were truly a loan. In essence, Mr. Nabi testified that the TD Bank employee counselled him to commit fraud against the employee's own employer. [162] I have exercised my discretion to draw an adverse inference from Mr. Nabi's failure to call the TD Bank employee: Singh v. Reddy, 2019 BCCA 79 at paras. 8-9; P.W. v G.Z, 2022 BCSC 1323 at paras. 53-56. Mr. Nabi did not call the TD Bank employee to testify, even though he is aware of his name and apparently knows how to contact him. The TD Bank employee's evidence about the source of the funds at the time the mortgage was advanced was

material and no cogent explanation was given for why he was not called. I conclude that had the bank employee been called to testify, his evidence would not have assisted Mr. Nabi's case. The Other Alternative Arguments Advanced by Mme. Nabi [163] In the further alternative, Mme. Nabi argues that the Alleged Trust Funds were subject to a constructive trust. A constructive trust is an equitable remedy available when there is a breach of fiduciary duty, unjust enrichment, or a where good conscience requires: Zou v Rai, 2021 BCSC 1931 at para.

14. Mme. Nabi's argument must fail. Having found the Alleged Trust Funds were actually a gift, I do not understand how there could be a fiduciary duty upon Mr. Nabi in respect of those funds. Similarly, there can be no basis for a finding that the recipient was unjustly enriched. That is because the juristic reason for the enrichment is the fact that the funds were made as a gift: M.S. v. G.M.K., 2003 BCSC 178 at para.

54. Mme. Nabi did not advance any arguments regarding the good conscience ground. [164] In her written submissions, Mme. Nabi seeks, "in the even further alternative a declaration that the Defendants repay her the amount representing the net sale proceeds from the sale of the [Surrey Property] within 30 days of the court order from the proceeds of sale held in trust." I decline to make such a declaration. Absolutely no authority was presented in support of this unusual declaratory relief and no such prayer for relief was made in her notice of civil claim. Conclusion Regarding Characterization of the Funds Advanced from Mme. Nabi [165] There is no contractual loan arrangement on the terms alleged by Mme. Nabi, or on any other terms suggested at trial. The funds advanced by Mme. Nabi to Mr. Nabi were a gift to her son; they were not impressed with a resulting trust, or any other form of trust, in Mme. Nabi's favour. [166] It is most likely that Mme. Nabi gifted the funds for the down payment on the Surrey Property to Mr. Nabi with the intention that she would live there, at least part-time, when her retirement occurred some four or five years later. The circumstances are very similar to those in M.F.R. v. B.P.R., 2010 BCSC 1063, where a father had paid the entire purchase price for the family home and the father wished to have his own residence at the home for part of the year.

In that case, like this one, there were documents allegedly evidencing a loan that had differing repayment terms. Like this case, there was also evidence that the husband had referred to the funds provided by his father as a gift during the course of separation with his spouse. The court concluded the money was a gift and said this at para. 37: I am left with considerable doubt that these advances were intended to be loans. I am satisfied that upon the breakdown of the marriage, the husband was scrambling to turn gifts into loans in order to support his position that the wife should receive nothing from the house. Therefore, I find on the balance of probabilities that the advances were gifts. [167] I have come to a very similar conclusion. I do not accept that the Alleged Trust Funds advanced by Mme. Nabi were intended to be loans. When the marriage first broke down, Mr. Nabi met with his lawyer and told him the truth - that the funds were a gift. At some later point, perhaps after coming to understand the consequences of the situation, Mr. Nabi scrambled to turn what were intended to be gifts into loans. In furtherance of this, Mr. Nabi created false documents to evidence a loan and swore a false affidavit to withdraw a key admission. Some of this he did with his mother's participation. I find on a balance of probabilities that the funds advanced by Mme. Nabi were a gift to

Mr. Nabi. THE DIVISION OF PROPERTY AND DEBT, AND THE SPOUSAL SUPPORT CLAIMS The Order of Determination: Spousal Support vs. Property Division [168] While the general practice of the Court has been to first determine property division before making a final order for spousal support, the Court of Appeal recently affirmed that cases where reapportionment is at issue under s. 95(3) of the FLA often lend themselves to a less rigid approach in which spousal support may have to be considered as part of the property division analysis: Healey v. Healey, 2024 BCCA 68 at paras. 63-65. [169] In this case, Ms. Turabi seeks unequal division of family property in order to meet the objectives of spousal support. Key to whether family property should be divided unequally is the determination of what is family property, which is very much at issue in this case. Therefore, I have decided that it is appropriate to consider the question of spousal support, as part of the claim for unequal division of property, within the context of determining what is the parties' family property. What is the Family Property and Family Debt? [170] I have determined that the funds advanced by Mme. Nabi were a gift and not a loan. I must still determine what portion of the equity in the Surrey Property is family property, whether the loss that Mr. Nabi experienced upon foreclosure of the Tatlow Property is a family

debt, and what part of an insurance settlement received by Ms. Turabi during the relationship is family property. [171] Pursuant to s. 81 of the FLA, on separation, each spouse is presumptively entitled to an undivided half interest in all family property, regardless of their respective contributions, and equally responsible for all family debt. The Court of Appeal in Zilic v. Zilic, 2021 BCCA 107 summarized the general principles with respect to property division in the family law context. The general principles identified at para. 13 that are most relevant to this case are: a) Family property includes all real and personal property owned by at least one spouse on the date of separation: FLA, s. 84(1). It also includes property acquired by a spouse that is derived from family property and the value by which "excluded property" increased during the relationship: FLA, ss. 84(1)(b)(i), (2)(g). b) Some property held by a spouse is excluded from family property. Excluded property is property acquired before the relationship, inheritances [and gifts], property derived from excluded property, and some additional categories of property: FLA, s.

85. The onus of proof is on the spouse claiming that property is excluded property: FLA, s. 85(2). c) Family debt includes all financial obligations "incurred by a spouse" during the period of the relationship before separation and debt incurred after separation if incurred for the purpose of maintaining family property: FLA, s. 86. [172] In Zilic, the Court also discussed the basic principles of unequal division under s. 95 of the FLA. I will refer to these principles when I consider the issue of reapportionment later in these Reasons. [173] Certain property is excluded from family property under s. 85 of the FLA. Relevant to this case are the exclusions of gifts to a spouse from a third party, and a settlement of an award of damages to a spouse as compensation for injury or loss unless that loss is in respect of lost income. [174] The party claiming the exclusion has the onus to demonstrate its exclusion on a balance of probabilities: FLA s. 85(2). A claim for excluded property cannot succeed where the excluded property cannot be traced to any remaining assets and a party cannot look to other family property to make up the difference where the excluded property is lost or dissipated: Dragovan v. Kirkvold, 2017 BCSC 1482 at para 16; Asselin v. Roy, 2013 BCSC 1681 at para 222. The Down Payment on the Surrey Property did not Remain Excluded Property [175] There is no dispute

that the funds used for the down payment on the Surrey Property in the amount of $284,404.95 (the "Surrey Down Payment") came from the funds advanced by Mme. Nabi to Mr. Nabi. Having found that those advances were a gift to Mr. Nabi, the starting point is that the Surrey Down Payment is excluded from family property. [176] However, excluded property can lose its status as such and become family property in certain circumstances. One such circumstance is when the party who received the original gift, takes that gift and gives it to their spouse. That is what happened here when the Surrey Property was registered in both Mr. Nabi and Ms. Turabi's name when the purchase closed. [177] The presumption of advancement provides that a transfer of property between spouses is presumed to be a gift from one spouse to the other. In Baryla v. Baryla, 2019 BCCA 22 at para. 33, the Court of Appeal held that "excluded property, or the proceeds thereof, that is gratuitously transferred between spouses during the course of a relationship may lose excluded status unless the presumption of advancement is rebutted." [178] Given that this family law proceeding was commenced before May 11, 2023, recent amendments to the FLA that provide that the presumption of advancement is not to be applied in resolving questions respecting ownership of property as between spouses, are not applicable. Similarly, new

subsection 85(3) of the FLA is also not applicable. That section provides that an exclusion to family property continues to apply despite the transfer of legal or beneficial ownership among spouses. Thus, the presumption of advancement applies to the facts of this case. It is up to Mr. Nabi, as the party claiming the exclusion, to prove that he did not intend to gift half of the Surrey Down Payment to Ms. Turabi when the property was registered in both their names. [179] Counsel for Mr. Nabi urges me to approach this case as if the recent amendments to the FLA apply to this case. I decline to do so. In essence, counsel is inviting me to ignore the transitional provisions of the FLA which provide that unless the parties otherwise agree (which they have not), the new s. 81.1 and the amendments to ss. 85 and 96 do not apply to proceedings under the FLA respecting property division commenced before the date on which the amendments received Royal Assent (May 11, 2023). In my view, it is appropriate to analyze this case consistent with the principles enunciated in Venables v. Venables, 2019 BCCA 281 and Baryla. [180] Regardless of whether the presumption operates, it is consistent with the scheme of the FLA to determine whether the excluded property became family property by looking at whether the spouse transferring the property intended the transfer to be a gift at the time of the

transfer. If the property transferred was intended it to be a gift, it will become family property unless there is an agreement that it remain excluded: Venables at paras. 95 and 121. [181] Ms. Turabi was not a signatory to the contract of purchase and sale for the Surrey Property. In fact, she was not made aware that Mr. Nabi had entered into a contract of purchase and sale until some weeks after he had signed. The family had previously discussed purchasing a family home and Ms. Turabi had accompanied Mr. Nabi, sometimes with and sometimes without Mme. Nabi, on a number of house hunting trips in the months leading up to the purchase of the Surrey Property. [182] Despite not being a signatory to the contract of purchase and sale, Ms. Turabi was registered as a joint owner on title with Mr. Nabi when the sale closed on January 12, 2017. Moreover, both parties were signatories to the mortgage documents. [183] Mr. Nabi denied that the lender required Ms. Turabi to be on title to qualify for the mortgage. He stated that he put Ms. Turabi on title because she was his wife and because they were a family. Mr. Nabi also made no attempt to keep the Surrey Down Payment separate, which supports an intention to gift the property to the other spouse: Small v. Small, 2020 BCSC 707 at para. 108. [184] There is no evidence that Mr. Nabi and Ms. Turabi discussed whether the Surrey Down Payment

was a gift or if it was to remain an excluded asset. On Ms. Turabi's evidence, the couple was experiencing marital difficulties around the time that the Surrey Property was purchased in late 2016 and early 2017. However, from Mr. Nabi's point of view, there were no issues in their relationship. In fact, he maintains that everything was "perfect" and that he was shocked when the couple separated at Ms. Turabi's instigation in 2019. Thus, at the time Ms. Turabi was put on title, Mr. Nabi was committed to continuing to build a family and was content to contribute his gift to the family as a unit. This is supported by Mr. Nabi's testimony that he had Ms. Turabi put on title because she was his wife and they were a family. It is further evidence of a donative intent by Mr. Nabi to share the Surrey Down Payment. Put another way, it is evidence of Mr. Nabi's intent to "gift" the Surrey Down Payment to the marriage as an entity, and as such, the Surrey Down Payment lost its excluded status at the time it was purchased: S.A.T. v. D.I.T., 2022 BCSC 1176 at paras. 198-199, citing World v. World, 2021 BCSC 1177 at para. 18. [185] Moreover, once Ms. Turabi became employed in 2013, the parties generally pooled their resources to pay for the family's expenses throughout the relationship: Mr. Nabi paid for fixed bills, such as internet and cellular phones, and Ms. Turabi paid for groceries,

gifts and dinners at restaurants, and anything other than the family's fixed bills. [186] Although the family did not end up moving into the Property, I accept that the original plan was for them to do so. They did not because they decided, as a family, that it was best if the daughters did not move schools, which they would otherwise would have had to. On the evidence before me, I am satisfied that when the parties bought the Surrey Property in 2017, Mr. Nabi intended to use the Surrey Down Payment to the benefit of the family as a gift and a pooled resource. Consequently, I find that the Surrey Down Payment lost its status as excluded property when the Surrey Property was purchased in January 2017. Thus, the entirety of the equity in the Surrey Property, currently held in trust by Mr. Nabi's counsel, is family property and subject to division. The ICBC Settlement [187] In 2016, Ms. Turabi received a settlement from ICBC in respect of an accident where she was struck by a motor vehicle while cycling. The claim was settled for a total amount of $202,000. After the deduction of legal fees, costs and disbursements, she received $110,737.23. Of this, she used $20,000 to purchase a car for herself and to help finance her daughters' high school graduation expenses. The remainder was put in a TFSA. At the date of separation, the amount in that TFSA was $78,232.73 (the "Remaining ICBC Settlement Funds"). The balance at the time of trial was zero. [188] The Remaining ICBC Settlement Funds are excluded from family property except for the portion that is attributable to past lost income: Hopson v. Hannon, 2020 BCSC 794 at para.

191. In determining what part of the Remaining ICBC Settlement Funds are excluded from family property, the Court is entitled to draw reasonable inferences from the available evidence, such as from mediation briefs: Boyd v Foster, 2019 BCSC 901 at paras 68-70. [189] Ms. Turabi submits that the portion of the Remaining ICBC Settlement Funds attributable to loss of income is $6,259, representing 8% of the Remaining ICBC Settlement Funds. Mr. Nabi originally argued that 44% of the Remaining ICBC Settlement Funds are attributable to loss of income, and that therefore, approximately $34,000 is family property. However, this amount included his calculation for the portion of the settlement for loss of future income earning capacity. During submissions, counsel for Mr. Nabi conceded that only the amount of the award attributable to past loss of income is family property. [190] I have reviewed the settlement correspondence between Ms. Turabi's counsel and the insurer. The correspondence reveals that, at an earlier stage of negotiations, the insurer was prepared to settle the claim for a total of $124,000. In the email the insurer sent in which that offer was made, the adjuster indicates that they were willing to agree to $15,000 for loss of past income. There is no further mention of the amount attributable to past income loss in the remainder of the correspondence culminating in the

accepted global offer of $202,000. [191] Ms. Turabi submits that $15,000 remained attributable to past loss of income when the accepted offer was made in the global amount of $202,000. As I understand it, this is where the 8% number referenced above comes from (although I note that $15,000 is 7.4% of 202,000). Counsel for Ms. Turabi submits that it is likely that the insurer was not willing to increase the offer of $15,000 for loss of past income when it increased its global offer from $124,000 to $202,000. However, she could not point to any evidence in support of this inference. [192] In my view, it is more reasonable to assume that the amount attributable to loss of past income increased proportionally with the offer. $15,000 is approximately 12% of the original offer of $124,000. Thus, I find that the proportion of the settlement attributable to loss of past income is 12% of the accepted settlement. Applying this to the Remaining ICBC Settlement Funds results in $9,388 being on account of past lost income and included in family property. Other Assets Pensions [193] Mr. Nabi received a pension payout following the end of his employment with VGH and he chose the lump sum payment option of $64,275.99 which was paid into a locked-in account in Mr. Nabi's name. As of March 28, 2024, the value was $90,277.53 (the "VGH Pension"). This is the valuation date closest to the date of

trial. Mr. Nabi acknowledged that he made no contributions post-separation, and therefore, there is no need to adjust the value for any such contributions. [194] Mr. Nabi withdrew $30,500 June 2024 (during an adjournment of this trial) and spent it on a trip to Paris to visit his mother. He received $21,313.25 after tax was withheld. Whatever amount that remains of the VGH Pension in the locked-in account is to be divided by spousal rollover. Mr. Nabi must account for the $21,313.25 he withdrew during the trial, and thus, it is to be divided equally and will be deducted from Mr. Nabi's share of the amount held in trust by his counsel. [195] Ms. Turabi began accumulating a pension when she started her employment at Vancouver International Airport in 2014. The pension is with Allied Universal and is to be divided at source under Part 6 of the FLA from the date of the commencement of the pension to the date of separation, that being May 1, 2019. Bank Accounts, Bitcoin, and Vehicles [196] The balance of the parties non-registered bank accounts at the date of separation are to be equally divided. Ms. Turabi's total balance was $1,977.02, and therefore, each are entitled to $988.51. Mr. Nabi's total balance was $5,679.50, and therefore, each are entitled to $2,839.75. [197] Although they have since been disposed of, Mr. Nabi owned bitcoin at the date of separation. It is difficult to

discern what the value was at that date, but based on his later disposals, I agree with counsel for Ms. Turabi that it would be fair to ascribe a value of $7,224.72. Mr. Nabi did not make any submissions in respect of the value of the bitcoin. Mr. Nabi and Ms. Turabi are each entitled to half which is $3,612.36. [198] Each of the parties' vehicles are listed on their financial statement as having roughly the same value. In the absence of any other evidence about their current value, each party will retain the vehicles currently in their own names. The Loss on the Tatlow Property is not a Family Debt [199] On May 5, 2018, Mr. Nabi entered into a pre-sale contract for the purchase of the Tatlow Property. The purchase price was $844,770. Mr. Nabi made deposits totalling approximately $110,000 (the "Tatlow Deposit"). The Tatlow Deposit came from funds advanced to Mr. Nabi from Mme. Nabi in the months preceding the date he made the deposit. [200] As will be discussed, the Tatlow Property was eventually foreclosed upon. Mr. Nabi calculates that the net loss on the Tatlow Property was $45,000. His principal argument is that the funds advanced by Mme. Nabi that were used for the Tatlow Deposit was part of the alleged €400,000 loan or formed part of the funds over which he and Mme. Nabi say that there is resulting trust. [201] I am not entirely clear on Mr. Nabi's argument with respect

to the Tatlow Property. On the one hand, he seems to take the position that the $45,000 loss on the Tatlow Property is a family debt that should be equally split. On the other hand, he seems to take the position that his loss on the Tatlow Property, perhaps including the entire amount of the Tatlow Deposit in addition to the $45,000 loss, can be recouped from Ms. Turabi's share of the equity in the Surrey Property (which is now held in his lawyer's trust account). He also seems to take the position that Ms. Turabi should be responsible for the funds Mr. Nabi expended to pay the mortgages on the Tatlow Property in what ended up being a futile attempt to prevent its foreclosure. I will not attempt to address these rather confusing arguments directly. My conclusion that the entirety of the funds advanced by Mme. Nabi, including those used for the Tatlow Deposit, are gifts dispose of much his arguments. I will, however, discuss what I have found to be the proper treatment of the Tatlow Property on the evidence before me. [202] Ms. Turabi was not part of the decision to purchase the Tatlow Property and she was not a signatory to the pre-sale agreement. Mr. Nabi explained his plan to make the down payment on the Tatlow Property with money he received from his mother to Ms. Turabi. According to both of them, Ms. Turabi was not interested and said words to the effect that the

transaction had nothing to do with her and was between Mr. Nabi and his mother. Other than this conversation, Ms. Turabi had no other involvement with the Tatlow Property. Unlike the Surrey Property, she was not put on title, nor did she pledge her credit to, the Tatlow Property. [203] The Tatlow Property was not completed until November 2020; more than one year after Mr. Nabi and Ms. Turabi separated. Mr. Nabi was unable to obtain conventional financing to complete on the Tatlow Property. He ultimately obtained a mortgage from a secondary lender in the amount of 6.95% (with a monthly payment of $4,110). The balance of the purchase price was financed by way of the provision of a promissory note to the developer in the amount of $139,000 at 8% for a 1-year term with monthly interest only payments of $926.67. The monthly payments for the Tatlow Property exceeded $5,000 per month. This was clearly beyond Mr. Nabi's means even though he continued to keep all of the rental income from the Surrey Property post-separation. By June 2021, Mr. Nabi owed more on the Tatlow Property than he did when the mortgage funds were advanced. [204] While Mr. Nabi acknowledged that he could not really afford the Tatlow Property, he testified that he did not walk away from the pre-sale contract because he hoped to be able to save the Tatlow Deposit by eventually getting another more affordable

mortgage. [205] Foreclosure proceedings began on the Tatlow Property in February 2022, culminating in an order approving sale on June 29, 2023. The Tatlow Property was sold at a shortfall. Although the exact amount is unclear, it is clear that any equity in the property was erased. Mr. Nabi's most recent financial statement indicates a loss of $45,000-$60,000 still owing on the promissory note provided to the developer since June 2023. [206] For reasons which I cannot understand, Mr. Nabi blames Ms. Turabi for the fact that the Tatlow Property was foreclosed upon. He says that she should have helped him obtain financing on better terms and that the placement of a CPL on the Tatlow Property prevented him from obtaining a mortgage at a better rate. At the time that the Tatlow Property closed, the parties had been separated for more than a year. I can think of no reason why Ms. Turabi would be expected to assist Mr. Nabi obtain better financing for a property that she was not involved in purchasing, with a person she was then separated from. [207] I find nothing nefarious in Ms. Turabi having registered a CPL against the Tatlow Property in June 2021. While it turns out that I have found that the Tatlow Deposit came from a gift to Mr. Nabi from Mme. Nabi, no such finding had been made at the time the CPL was registered in 2021. It would be unusual for a former spouse to not claim

an interest in property apparently acquired by the other spouse before separation at a time when the source of the funds used to acquire the property was not clear. [208] In any event, the CPL could not have been responsible for Mr. Nabi's inability to obtain more favourable financing in November 2020 as it was not yet registered against title. Moreover, there is no evidence that had Ms. Turabi agreed to remove the CPL after June 2021, Mr. Nabi would have been able to re-finance the Tatlow mortgages at a more reasonable rate on his own. It is notable that, at that time, Mr. Nabi was unemployed, and although the Surrey Property was rented out and was net positive, that net rental income was only approximately $2,000 per month. Ultimately, it was Mr. Nabi's choice to complete on the Tatlow Property on terms that were clearly unaffordable instead of walking away or re-assigning the pre-sale contract. Similarly, Mr. Nabi made no attempt to sell the Tatlow Property prior to its foreclosure. The only offer that Mr. Nabi made to Ms. Turabi was to sell the Surrey Property and pay her $100,000 from the proceeds in satisfaction of her entire family law claim. [209] In any event, Mr. Nabi's argument with respect to the alleged family debt arising from the loss of the Tatlow Deposit and its foreclosure fundamentally misunderstands the nature of the pre-sale contract as such contracts

relate to the concepts of family property and debt. As discussed above, Mr. Nabi entered into the pre-sale contract for the Tatlow Property near the end of the parties' marriage. The property did not complete, and title was not transferred to Mr. Nabi, until more than one year after the parties separated. This court has considered the nature of pre-sale contracts entered into before the parties' separation but not completed until after separation: see e.g. Wang v. Mitchell, 2024 BCSC 988; Mach v. Mach, 2021 BCSC 1655. [210] In essence, these cases stand for the proposition that the existence of a pre-sale contract to purchase real property in the name of one spouse at the date of separation does not result in the after-separation property acquired pursuant to the pre-sale contract being family property for the purposes of the FLA. In these circumstances, at the time of separation, neither spouse owned the real property as it was not yet in existence. Rather, the family property at separation is the pre-sale agreement itself which is the right to purchase the property in the future, and any related contractual rights under the agreement. [211] The situation in Mach is particularly illustrative. In that case, the respondent entered into a pre-sale agreement for a condominium before separation. After separation, he paid an additional deposit and completed the purchase without the

involvement of his former spouse by obtaining financing with a private lender. In the litigation, the respondent claimed that the condominium was family property and that the claimant owed him 50% of the mortgage and strata payments he had made to maintain the condominium since completion. The claimant argued that the respondent had completed the purchase on his own and that only 50% of the deposit could be traced as family property. [212] The Court rejected any claim for the expenses incurred by the respondent and found that the pre-sale agreement was not a form of family property that was capable of being "maintained" post-separation under s. 86(a). The condominium in and of itself was not family property: [121] The pre-sale agreement for Navio was entered into with the expectation that it would replace Opsal as the family residence. Shortly after the agreement was entered, the family's future was precarious. Prior to the closing, the family had dissolved and it was clear that Navio would not become the family residence. [122] I find that the Navio pre-sale agreement was not a form of family property capable of being "maintained" post-separation within the meaning of the FLA, s. 86(a). The family property at separation was the pre-sale agreement: the "property" was the right to purchase Navio and the related contractual rights under the agreement. [123] The parties did not

agree to exercise the right to purchase. Rather, the respondent exercised the right unilaterally. He incurred debt in order to close on the purchase, and then made Navio his personal residence. Closing on Navio was not "maintaining" the pre-sale agreement. [124] Because he chose to buy Navio and chose to live in it, the respondent had to pay mortgage and strata fees out of pocket to maintain Navio (and not to maintain the family property, which was the pre-sale agreement itself). [125] Navio is not, in and of itself, family property. Rather, it is a property the purchase of which can, in part, be traced to family property. [213] Importantly in the case at bar, the funds used by Mr. Nabi to make the Tatlow Deposit were a gift from Mme. Nabi and thus, they are excluded property. The Tatlow Property cannot be traced to family property. Unlike the Surrey Down Payment, the Tatlow Deposit was never transferred or gifted to Ms. Turabi. The Tatlow Property was in Mr. Nabi's name only from the time the pre-sale contract was executed. Thus, the pre-sale contract for the Tatlow Property, and the Tatlow Property itself, remained excluded property under the FLA. Had it increased in value, Ms. Turabi would not be entitled to the profit. Similarly, she is not liable for any losses associated with it. [214] Even if the funds used to make the Tatlow Deposit were family property, the only family

property would be the deposit which was lost in the foreclosure. Other Debts [215] Ms. Turabi did not have any debt at separation that must be divided. On his financial statement made November 2019, Mr. Nabi listed no debts of any material amount in existence at the time of separation other than the mortgage on the Surrey Property. [216] That leaves debts incurred post-separation. I have already addressed why any expenses incurred in maintaining the Tatlow Property are not family debts. Although Mr. Nabi asserts numerous debts and expenses that he incurred post-separation in relation to the Surrey Property, I agree with Ms. Turabi that Mr. Nabi has not met the onus of proving that any debts he incurred subsequent to separation were incurred for the purpose of maintaining family property. [217] Mr. Nabi faced a great challenge in demonstrating that he incurred debt in relation to the Surrey Property post-separation because he managed his finances through a complicated web of withdrawals and deposits from various bank accounts for both properties. However, on the evidence before me, the Surrey Property was cashflow positive post-separation such that rent received covered the mortgage and expenses. Mr. Nabi acknowledged on cross examination that when the Surrey Property was rented it netted between $1,450 and $2,000 per month. I note that none of this income was shared with Ms.

Turabi despite the fact that she was a joint owner of the property. [218] In these circumstances, any debt incurred after separation is not in relation to maintaining the Surrey Property; rather, it is a result of Mr. Nabi's ill-fated attempt to use the rental income from the Surrey Property to pay for the high interest rate mortgage and promissory note on the Tatlow Property. I agree with Ms. Turabi's submission that Mr. Nabi simply made a poor real estate investment in purchasing the Tatlow Property, a property which he could not afford, and for which he accumulated significant personal debt. Ms. Turabi is not responsible for Mr. Nabi's decision to proceed in this manner. [219] All of the other debts listed in Mr. Nabi's F8 Financial Statement were acquired after separation and are not family debts. The Parties' Claims for Spousal Support [220] Both Mr. Nabi and Ms. Turabi seek spousal support. Ms. Turabi claims entitlement to spousal support on a compensatory basis while Mr. Nabi's claims he is entitled to spousal support on a non-compensatory basis. Both parties argue that the other should have income imputed to them for the purposes of support. Given that Mr. Nabi is unemployed, Ms. Turabi seeks a lump-sum payment by way of reapportionment of the equity in the Surrey Property. [221] Section 15.2 of the Divorce Act provides the framework for spousal support awards. The

factors to be considered, and the objective sought to be achieved, in making an order for spousal support are found in ss. 15.2(4) and (6): 15.2 (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall 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. (6) An order made under subsection (1) or an interim order under subsection (2) 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. [222] Subsections 15.2(6)(a) and (b) are referred to as the compensatory entitlement to support, whereas ss. 15.2(6)(c) and (d) are commonly referred to as the non-compensatory or needs-based entitlement to support: Chutter v. Chutter, 2008 BCCA 507 at para.

47. Before the quantum of support is determined, it must be found that a spouse has an entitlement to support on either a compensatory or non-compensatory basis, or both. [223] Moge v. Moge, [1992] 3 S.C.R. 813, 1992 CanLII 25, is the seminal case in respect of compensatory based support. The compensatory support model is rooted in the "independent" model of marriage in which each spouse is seen to retain economic autonomy in the union and is entitled to receive compensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise: Moge at 861-83; Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 1999 CanLII 715 at para. 39; Chutter at para.

50. It recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success. [224] Non-compensatory support principles address the needs of a spouse after the breakdown of a relationship; hence non-compensatory support is also referred to as needs-based support. This type of support arises out of the relationship itself and is based on the social obligation of a spouse to look after a former partner who is in difficulty, rather than letting that burden fall upon the public: Chutter at para. 54, citing Bracklow at para.

23. Determination of entitlement to needs-based support is highly dependent upon the particular facts of the case: L.A.I. v. K.B.Z., 2014 BCSC 652 at paras. 133-134. Mr. Nabi is not Entitled to Spousal Support [225] As I understand his argument, Mr. Nabi claims to be entitled to a non-compensatory award for spousal support. This claim appears to be based upon the discrepancy between Mr. Nabi's and Ms. Turabi's current incomes. [226] I have already determined that Mr. Nabi's income for child support purposes should be imputed to be $55,813 for 2022. Imputing income for spousal support is, for present purposes, identical to the test I applied for imputing income for child support. The essential issue is reasonableness, considering the spouse's capacity to earn income given their age, education, health, work history, work availability, and retraining prospects: Hseih v. Lui, 2017 BCCA 51 at para. 48. [227] For the same reasons already discussed, I find that it is reasonable to impute income to Mr. Nabi in the amount of $55,813 for 2022. His efforts to find employment since he lost his job in 2021 are not genuine. I find that the analysis provided in my discussion of his income for child support leads to the reasonable conclusion that Mr. Nabi should be imputed income in that amount for 2023 and 2024 as he continues to be intentionally unemployed. [228] Ms. Turabi's income has been

relatively similar to Mr. Nabi's actual and imputed income since 2019. In 2019, Ms. Turabi's Line 150 income was $55,065. In 2020, it was $57,622. In 2021, it was $62,146. In 2022 it was $60,224. In 2023 it was approximately $50,000 and in 2024, she expects her Guidelines income to also be approximately $50,000. Thus, there is no disparity upon which a non-compensatory claim could be based. Any disparity in income between what Ms. Turabi earns and Mr. Nabi's reported income of zero is self-created and due to his lack of diligent efforts to obtain employment. [229] Mr. Nabi appears to argue that Ms. Turabi should be imputed income in the amount of $113,000 per year on account of the salaries earned by Alice and Anais, who currently reside with Ms. Turabi in the New Westminster Home. I do not accept this argument. There is no evidence that Ms. Turabi's living arrangement, and the contributions made to the household expenses by her daughters, has resulted in a disparity in the parties' standard of living post-separation that would entitle Mr. Nabi to support. Entitlement requires evidence of a diminution in the standard of living from what was enjoyed during the marriage and a significant difference between the parties with respect to their current lifestyles: Lee v. Lee, 2014 BCCA 383 at para. 55; Madruga v. Madruga, 2015 BCSC 1605 at paras. 41-44. In this case, both parties live

in relatively modest apartments, both have automobiles, and both generally tend to have a similar standard of living as they did during the marriage. [230] Mr. Nabi's claim for spousal support is dismissed. Ms. Turabi is Entitled to Spousal Support [231] In my view, Ms. Turabi is entitled to a compensatory award of spousal support. The role that Ms. Turabi assumed during the marriage as primary caregiver of Alice and Anais has resulted in Ms. Turabi having a lower earning potential and fewer future prospects of financial success than she otherwise would have had. [232] Ms. Turabi was married to Mr. Nabi by way of an arranged marriage when she was 15 years old. While that is a somewhat shocking scenario in the standards of Canadian society, I accept that it was not particularly unusual in the Afghan tradition as it was explained to me by a number of witnesses. I do not attach any pejorative value to the fact that Ms. Turabi was married at 15 years old for the purposes of determining an entitled to support. However, the fact that she was married at a very young age means that the role she assumed in the household upon marriage, and the educational and occupational opportunities that were foreclosed to her, had a significant effect on her income earning capacity for a very long time. [233] At the time she was married, Ms. Turabi was enrolled in school in Pakistan. I accept that

she and her family valued education and had a strong desire that she continue her education once she was married to Mr. Nabi. In 1998, Ms. Turabi completed her two years of French language schooling after her arrival in Paris in 1996. I accept that she would like to have continued with her education but was not permitted to do so by Mme. Nabi and Mr. Nabi who had told her it was time to start a family. [234] Ms. Turabi was engaged in some very part-time janitorial work following the birth of her second daughter in 2000. Mme. Nabi found this employment for Ms. Turabi as it was related to her role as a building caretaker. Ms. Turabi preferred to seek employment elsewhere but was not permitted to do so. As I understand it, Ms. Turabi worked less than four hours per week in the janitorial job. [235] It is not seriously disputed that Ms. Turabi was responsible for child care, cooking, and other housework for the family while they lived in Paris. I accept that Ms. Turabi and Mr. Nabi spent most of their time at Mme. Nabi's apartment, despite the fact that they obtained an apartment of their own nearby sometime after arriving in Paris. I accept that Mme. Nabi assisted with a marginal amount of childcare by caring for Alice on occasion. However, Mr. Nabi admitted that his contribution to the childrearing duties in early years of his daughters' lives was very minimal. During the time in

Paris, Mr. Nabi worked full time hours and he was able to do so, in part, because Ms. Turabi took on the childcare and household responsibilities. [236] Both Mr. Nabi and Ms. Turabi were unemployed and enrolled in English language school after they and their daughters arrived in Canada. Mr. Nabi secured full-time employment in approximately 2006, and this employment required him to work a considerable amount of overtime on weekends. Ms. Turabi took care of the children and the household duties while Mr. Nabi worked. Mr. Nabi was generally employed full-time from 2006 until after the parties separated, except for approximately 1-2 years in or around 2009 and 2010. [237] Sometime after their arrival in Vancouver, Ms. Turabi enrolled in an adult learning centre to obtain her high school equivalency. While attending the adult learning school, Ms. Turabi worked part-time in a clothing store in 2008 and 2009. Ms. Turabi began her employment as a screening officer at Vancouver International Airport in 2013. At this time, Ms. Turabi was 34 years old. This was the first full-time employment that Ms. Turabi had and marks her entrance to the workforce. Ms. Turabi is unable to advance to a higher position in her current employment because she does not have an education beyond her high-school equivalency. [238] As the children got older, Mr. Nabi's contributions to their care and assistance

with schooling increased. However, Ms. Turabi continued to do all the cooking, cleaning and grocery shopping for the household after she began her full-time employment. Each of them contributed parts of their earnings to different household expenses. [239] I heard a significant amount of evidence in respect of the relationship between Mme. Nabi and Ms. Turabi while they lived in Paris. Ms. Turabi alleges that Mme. Nabi was physically violent with her on occasion. She also claims that Mme. Nabi exerted elements of coercive control and emotional abuse upon her. For example, Ms. Turabi says that she was not permitted to speak to her parents on the telephone without being monitored and she was not permitted to interact with guests when they visited or engage in the educational and job opportunities that she desired. Mr. Nabi is said to have condoned this behaviour. The controlling behaviour is alleged to have continued after the parties moved to Canada. For example, Mr. Nabi refused to let Ms. Turabi obtain a driver license for a long time, discouraged her from completing her high school education, and did not permit her to continue with any post-secondary studies. All of these allegations are denied by both Mme. Nabi and Mr. Nabi. [240] As mentioned earlier in my discussion of the parties' credibility, I also heard a significant amount of evidence regarding Ms. Turabi's

allegations that Mr. Nabi was physically violent with her on a number of occasions while the family lived in Canada. [241] While I accept Ms. Turabi's allegations of Mr. Nabi and Mme. Nabi's treatment of her in France and in Canada, I have not considered that behaviour as a reason for making a spousal support order. Pursuant to s. 15.2(5) of the Divorce Act, I am not permitted to consider the misconduct of a spouse in making a spousal support order. However, the effect of such conduct on relevant matters, such as a spouse's ability to earn income, is still appropriate to consider: B.S.D. v S.K.D, 2021 BCSC 2327 at para. 340, citing Leskun v. Leskun, 2006 SCC 25 at para.

21. In my view, the effects of the control exerted over Ms. Turabi by Mme. Nabi, condoned by Mr. Nabi, and continued, to an extent, after they moved to Canada, is relevant in my consideration of the roles assumed by the parties and the economic disadvantages experienced by Ms. Turabi that arose from the marriage. [242] As I understand his argument, relying on Larochelle v. Larochelle, 2018 BCSC 1347, counsel for Mr. Nabi submits that Ms. Turabi is not entitled to compensatory support because she has not demonstrated with evidence that she has suffered an actual economic loss arising from the roles assumed in the marriage or its breakdown. Mr. Nabi says that it is purely speculative that Ms. Turabi's economic fortunes would be improved if she had continued with her education. [243] Counsel for Mr. Nabi also submits that Mr. Nabi has not experienced any advantage from the roles assumed during the marriage. He says that the parties never had very much money and he points to the relatively modest maximum income earned by Mr. Nabi since he has been in Canada, which is approximately $60,000 per year. He says the parties earned relatively similar incomes after Ms. Turabi began her employment at the airport. He notes that Mr. Nabi has been unemployed since 2021 (after the parties separated). Counsel submits that Ms. Turabi cannot "make up economic loss" where the parties have the same

economic outcome or in circumstance where Ms. Turabi is better off financially than Mr. Nabi which is the case since he has been unemployed. [244] I am not persuaded by Mr. Nabi's submissions. The parties were married for approximately 24 years before they separated in 2019. Ms. Turabi assumed the primary childcare and household responsibilities throughout the marriage which allowed Mr. Nabi to pursue his career and develop his skills, further his education with additional training at BCIT, and pursue a career in his field at VGH, from which he earned a pension. To the contrary, Ms. Turabi was out of the workforce for 18 of the 24 years the parties were together and she was unable to build seniority, obtain promotions, or obtain benefits such as pension plans. Ms. Turabi was unable to build any occupational skills for nearly 20 years of the marriage while she took on the role of managing the home and being the primary caregiver for the children. [245] The fact that Ms. Turabi did not tender evidence of the actual economic loss she has suffered is by no means fatal to her claim. The financial consequences at the end of a marriage are not limited to a simple calculation of loss of future earning power. As the Supreme Court of Canada in Moge at 867 commented, the consequences include, loss of seniority, missed promotions and lack of access to fringe benefits such as pension plans,

life, disability, dental and health insurance as well as the inability to take advantage of job-retraining and upgrading skills provided by employers. Ms. Turabi has experienced all of these. [246] Moreover, Ms. Turabi is not required to provide detailed evidence enumerating the actual economic loss she has suffered. Ms. Turabi has established a prima facie entitlement to support by demonstrating that the role she assumed has been detrimental to her income earning ability. The Court is not required to conduct a mathematical exercise or use expert evidence to quantify detriment suffered by one spouse. Such an exercise would be extremely time consuming, expensive, and complicated. In most cases, it will be sufficient for the parties to tell the Court in a general way what each party did: Zacharias v. Zacharias, 2015 BCCA 376 at para. 51, citing Moge at 871. [247] I do not agree with Mr. Nabi that Larochelle stands for the proposition that an actual loss in an economic sense must be identified before compensatory support can be ordered. Rather, that case reinforced what is stated in Bracklow, that determining entitlement to compensatory support is "a matter of applying the relevant factors and striking the balance that best achieves justice in the particular case before the court": Larochelle at para. 35, citing Bracklow at 438. Moreover, Larochelle is distinguishable from the

case at hand. In that case, the claimant had not sacrificed any education opportunities and she was engaged in the workforce for much longer than Ms. Turabi was. [248] The fact that the parties earned a similar income for the last few years of the marriage while Ms. Turabi was employed, and that Ms. Turabi is currently better-off than Mr. Nabi, is not determinative of Ms. Turabi's entitlement. It is true that the standard of living during the course of the marriage is often used as a means of measuring the appropriate compensation: Zacharias at paras. 52-54. However, this is not a bar to entitlement. Rather, in my view, such factors are better considered in the determining the appropriate quantum of support. This distinction is clear from Justice Groberman's comments at para. 54: Where entitlement to compensatory support is established, and the marriage has been a long one, the marital standard of living is often a reasonable measure of appropriate compensation. [Emphasis added] [249] I find support for this conclusion in Justice Armstrong's decision in A.K.K. v. A.S.K., 2024 BCSC 1237. As Mr. Nabi has in this case, the husband in A.K.K. argued that the wife was not entitled to spousal support despite being the primary caregiver to the child and having taken the household responsibilities because she continued to enjoy a standard of life better or equal to that at separation.

The wife in that case had the benefit of exclusive occupancy of the family home post-separation and was renting out the suites in the home. As Mr. Nabi has in this case, the husband argued that Larochelle stood for the proposition that in the absence of evidence of sacrificed opportunities as a result of being the primary caregiver, there was no entitlement to spousal support. [250] Referring to Marquez v. Zapiola, 2013 BCCA 433, Armstrong J. rejected that argument and found that the wife had a modest compensatory claim to spousal support. In a marriage with some similar characteristics to the one at bar, Armstrong J. held that by assuming the primary responsibilities for the children and household management, the wife experienced an economic disadvantage because she was less able to venture into the workforce and not free to pursue roles that could have offered her better prospects while the husband enjoyed a release from the household management and childcare: A.K.K. at paras. 389-395. [251] As discussed above, the same applies to this case. Given the length of the marriage and her contribution to the household and childrearing, Ms. Turabi is entitled to compensatory support. Quantum of Spousal Support under the SSAG [252] Once entitlement is established, the amount and duration of the spousal support award must be determined. As explained by the Court of Appeal in Parton v.

Parton, 2018 BCCA 273 at para. 46, the Spousal Support Advisory Guidelines [SSAG] play an important role in quantifying spousal support by providing a range for periodic payment or lump sum spousal support awards taking into account various factors such as the length of the marriage, the parties' ages and their respective incomes. Further, the Court also noted, at para. 43, that: the amount and duration of spousal support are determined based on consideration of the conditions, means, needs and other circumstances of the spouses [and that a spouse's means] include his or her capital base, employment income or earning capacity and any other available source of benefits or gains. [253] The starting point for determining income for spousal support purposes is the definition of income under the Guidelines for child support purposes. As discussed above, Mr. Nabi's Guideline income at the time of separation in 2019 was $57,424. In 2019, Ms. Turabi's reported income was $55,065. These incomes are representative of the marital standard of living enjoyed by the parties during the course of the last six years of the 24-year long marriage. [254] Using these 2019 incomes, the SSAG provides that Mr. Nabi is liable for spousal support ranging from $69 per month at the low end to $92 at the high end with a mid-range amount being $81. Given the length of the marriage and the age of the

parties, this award is presumptively indefinite. [255] The SSAG also provides a range of lump sum support awards: the low being $19,644, the mid being $22,787 and the high being $25,930. This lump-sum award range has been adjusted for net-present value based on the after-tax cost/benefit of spousal support to the parties. [256] However, as the Court of Appeal held in Zacharias at para. 55, while the marital standard of living is often a reasonable approach to determining the amount of spousal support, it is not always determinative. The objectives of spousal support must be considered when fixing an appropriate amount that achieves an equitable sharing of the economic consequences of the marriage. In Moge at 866-67, the Supreme Court of Canada suggested that a broad approach is warranted and the objective is to recognize and incorporate significant features of the marriage which adversely affect the economic prospects of the disadvantaged spouse; in this case, Ms. Turabi. Unlike an award for non-compensatory support, an award for compensatory spousal support, to which Mr. Turabi is entitled, does not "hinge upon the respective means and needs of the parties": Cook v. Cook, 2021 BCCA 194 at para. 58. [257] In my view, an award at the higher end of the range is necessary to achieve the objectives of spousal support and to recognize the length of the marriage (24 years) and the

functions of each during cohabitation. I acknowledge that Ms. Turabi has become self-sufficient since obtaining her employment. However, in my view, the significant disadvantages experienced by Ms. Turabi arising from the role she assumed during the marriage are entitled to more weight in the analysis. Ms. Turabi was kept out of the workforce and deterred from pursuing education for nearly the first 20 years of the marriage, until she was age 34. During this time, while Ms. Turabi took care of the child-rearing duties and household responsibilities, Mr. Nabi was able to re-train at BCIT, build career skills and was able to take advantage of employment opportunities. The fact that he has chosen to not take advantage of that since he lost his employment is not Ms. Turabi's responsibility and does not affect her entitlement. [258] As division of family property and the form of spousal support are interconnected by operation of s. 95(3), I will consider Mr. Turabi's request for lump sum support as part of that analysis. Reapportionment of Family Property and Lump Sum Spousal Support [259] Both parties seek to reapportion the proceeds from the Surrey Property in their favour. Ms. Turabi argues that the objectives of spousal support cannot be met by a periodic support order because Mr. Nabi does not currently earn any income. She further argues that the amount provided for under the

SSAG is insufficient to address her 18-year absence from the workforce. She submits that the Surrey Property proceeds should be reapportioned 60%-40% in her favour. [260] Mr. Nabi argues that the proceeds from the Surrey Property should be reapportioned in his favour on the basis that it would be significantly unfair to divide the proceeds equally when a large portion of the family property originated as a gift from his mother (i.e. the Surrey Down Payment). It is not clear to me on exactly what percentage he seeks reapportionment, although the tenor of his oral submissions suggests that he seeks a reapportionment ranging from the equivalent of excluding the Surrey Down Payment from proceeds with the remainder being equally divided (approximately 70%-30% in Mr. Nabi's favour), to the entire proceeds being reapportioned 100% in his favour. [261] Although family property is presumptively divided equally, under s. 95 of the FLA, the Court may order unequal division if equal division would be significantly unfair. The factors that may be considered in making an unequal division are set out in s. 95(2): (2) For the purposes of subsection (1), the Supreme Court may consider one or more of the following: (a) the duration of the relationship between the spouses; (b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside

agreements respecting property division]; (c) a spouse's contribution to the career or career potential of the other spouse; (d) whether family debt was incurred in the normal course of the relationship between the spouses; (e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt; (f) 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; (g) the fact that a spouse, other than a spouse acting in good faith, (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; (h) 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; (i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness. [262] Section 95(3) of the FLA specifically provides the Court with the authority to divide family property unequally if the objectives of spousal support cannot be met by an order for periodic support: (3) The

Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal support, the objectives of spousal support under section 161 [objectives of spousal support] have not been met. [263] The SSAG may be of assistance in determining the quantum of the lump sum award to be made by reapportioning the family property. [264] In determining whether reapportionment is warranted, the court must go through "the notional exercise" of equal division and then consider if the equal division would lead to significant unfairness: Nanara v. Nanara, 2017 BCSC 1447 at para.

63. For equal division to be significantly unfair, the unfairness must be compelling having regard the factors set out in s. 95(2) and there must be very persuasive reasons to justify departure from equal division: at para.

63. In addition to the factors enumerated in s. 95(2), I may also look at the cumulative effect of the evidence: Yousefian v. Jafarmadar, 2018 BCSC 855 at para 88. [265] I will first consider whether equal division of the Surrey Property proceeds would be significantly unfair from the perspective of Mr. Nabi. His argument in this respect is based upon the Court of Appeal's decision in Venables. In that case, the Court of Appeal upheld the trial judge's decision that it would be significantly unfair to divide the family property equally because one party would be significantly better off from the division of formerly excluded property. [266] There are some similarities between this case and the situation in Venables. In Venables, the husband inherited money during the relationship and put much of the money in his and his wife's joint names, without either of them contemplating what would happen if the marriage broke down. Like I have done in this case, the trial judge in Venables found that the husband gifted the previously excluded property to his wife when it was put in their joint names, and thereby, the property became family property. [267] I certainly accept that Venables stands for the proposition that the scheme of the FLA does not preclude reapportionment of family property to take into account the origins of that property. In certain circumstances, the fact that family

property was formerly-excluded may be a significant factor. However, as the Court pointed out in Venables at para. 112, "[t]he degree of attention paid to this factor will, as in all property division matters, depend on all the circumstances." [268] In the circumstances of this case, I have concluded that the equal division of the Surrey Property proceeds would not lead to significant unfairness from Mr. Nabi's point of view. It is true that the Surrey Down Payment was gifted to Mr. Nabi in the last three years of the parties' relationship. While this might weigh in favour of unequal division, other factors outweigh it. [269] The parties' 24 year-long marriage was a long one by any standard and they have raised two children together. As has been discussed, Ms. Turabi has made significant sacrifices arising from the role she has assumed during the marriage. Moreover, I find that although there was no discussion about the nature of the transfer of the Surrey Down Payment from Mr. Nabi into their joint names at the time it happened, Mr. Nabi intended to make such a gift. At the time of the transfer, Mr. Nabi was committed to continuing to build the family unit and he testified that he put her name on title because Ms. Turabi was his wife and they were a family. I also accept that Mr. Nabi told his former counsel that Ms. Turabi had helped him raise their two daughters and that he

wanted her to receive her fair share of the property in support of a position that the property should be divided equally. As a result, I find that Mr. Nabi has not established it would be significantly unfair to divide the family property equally. [270] Next, I will consider Ms. Turabi's claim for unequal division under s. 95(3). Section 95(3) provides for an order for the division of property as a means to provide compensatory spousal support in circumstances where the objectives of spousal support cannot be met by an order for periodic payment: Cook at para.

51. Before an order can be made to reapportion property to meet the objectives of spousal support, a finding must be made that the receiving spouse is entitled to a compensatory award and that a lump sum award is appropriate: Cook at para.

51. I have already determined that Ms. Turabi is entitled to a compensatory award. In my view, the objectives of spousal support cannot be met in this case by an equal division of the Surrey Property proceeds. I come to this conclusion for two main reasons. [271] First, in my view, it is appropriate that Ms. Turabi's spousal support award be made payable by way of a lump sum. The Court of Appeal in Parton at paras. 47-48 endorsed the advantages and disadvantages of lump-sum spousal support awards discussed in Davis v. Crawford, 2011 ONCA 294: [66] Most importantly, a court considering an award of lump sum spousal support must weigh the perceived advantages of making a lump sum award in the particular case against any presenting disadvantages of making such an order. [67] The advantages of making such an award will be highly variable and case-specific. They can include but are not limited to: terminating ongoing contact or ties between the spouses for any number of reasons (for example, short-term marriage; domestic violence; second marriage with no children, etc.); providing capital to meet an immediate need on the part of a dependant spouse; ensuring adequate support will be paid in circumstances where there is a real risk of non-payment of periodic support, a lack of proper financial disclosure or where the payor has the ability to pay lump sum but not periodic support; and

satisfying immediately an award of retroactive spousal support. [68] Similarly, the disadvantages of such an award can include the real possibility that the means and needs of the parties will change over time, leading to the need for a variation; the fact that the parties will be effectively deprived of the right to apply for a variation of the lump sum award; and the difficulties inherent in calculating an appropriate award of lump sum spousal support where lump sum support is awarded in place of ongoing indefinite periodic support. [272] In consideration of those factors, I find that a lump sum award is appropriate because Mr. Nabi, being unemployed, does not have a source of income from which to pay support. I am not at all persuaded that Mr. Nabi will obtain gainful employment at any time in the near future, and thus, there is a real risk of non-payment of support on a periodic basis. Moreover, as will be discussed shortly, there is a capital from which a lump sum payment can be made: the equity in the Surrey Property that is currently held in trust by Mr. Nabi's counsel. Given that Ms. Turabi's entitlement is solely based on the compensatory model it is unlikely that a variation would be needed in the future. [273] Second, as Ms. Turabi is now earning considerably more than Mr. Nabi's zero employment income, spousal support is likely to become nil under the SSAG if Mr.

Nabi does not return to work. Given the role that Ms. Turabi took on in raising the children and the effect that not entering the workforce until age 34 has had on her income earning capacity, the objectives of spousal support have not and will not be met by a periodic order. Moreover, dividing the family property equally fails to recognize the economic disadvantages experienced by Ms. Turabi arising from the relationship, particularly the consequences arising from her care for the children and the household during the marriage. The monthly amount of support payable at the high end of the SSAG as being $92 per month does not adequately address these factors. [274] I thus find, considering the factors set out in s. 95(2) and s. 95(3), that an equal division of family property would be significantly unfair and so an unequal division is appropriate. However, I do not agree with Ms. Turabi that the proceeds from the Surrey Property should be divided 60%-40% in Ms. Turabi's favour. Given the approximate $680,000 of the Surrey Property proceeds, a reapportionment in this ratio would represent a spousal support award of approximately $68,000. However, as discussed above, the SSAG calculations provide for a lump sum spousal support award in the amount of $26,000 at the high end, based upon the parties' incomes at the time of separation. In essence, the amount of spousal support sought

by Ms. Turabi is more than twice the amount provided for in the SSAG. Exceptional circumstances are generally required to justify such a substantial departure from the SSAG: Redpath v. Redpath, 2006 BCCA 338 at para. 42. [275] Although Ms. Turabi's compensatory claim is strong, I do not find that there are any exceptional circumstances which would justify a spousal support award of more than twice that provided for in the SSAG. In my view, an award at the high end is appropriate and can be made by reapportioning the Surrey Property proceeds 55%-45% in Ms. Turabi's favour. At the present value of the Surrey Property proceeds, this would be equivalent to a spousal support award of approximately $30,000. Such an award considers the lengthy duration of the parties' marriage and the significant sacrifices Ms. Turabi made in foregoing education and not-entering the workforce until she was 34 years old. It also, in my view, appropriately considers the previously excluded nature of the Surrey Down Payment as militating against reapportionment. Conclusion on Division of Property and Spousal Support [276] For the reasons discussed, I have concluded that the Surrey Down Payment on was gifted to Ms. Turabi by Mr. Nabi when the property was purchased in the parties' joint names. Thus, the entire proceeds of the Surrey Property are family property and presumptively subject to equal

division. [277] I have determined that $9,388 of the Remaining ICBC Settlement Funds is in respect of her past loss of income and is therefore family property. [278] Mr. Nabi's VGH Pension is to be shared equally. Half of the amount remaining in his locked-in account is to be rolled-over to Ms. Turabi by way of spousal rollover. Ms. Turabi is entitled to half of the $21,313.25 after tax amount that Mr. Nabi withdrew from the locked in account during an adjournment of the trial. That $10,656.63 is to be deducted from Mr. Nabi's share of the Surrey Proceeds. [279] Ms. Turabi's pension with Allied Universal is to be divided at source under Part 6 from the date of the commencement of the pension to the date of separation, that being May 1, 2019. [280] Each party is entitled to half of the balances in their respective bank accounts at the time of separation. Ms. Turabi's total balance was $1,977.02, and therefore, each are entitled to $988.51. Mr. Nabi's total balance was $5,679.50, and therefore, each are entitled to $2,839.75. [281] Each party is entitled to half of the $7,224.72 of bitcoin held by Mr. Nabi at the end of the relationship. Thus, each are entitled to is $3,612.36. [282] The parties will retain the vehicles registered in their names. [283] The loss suffered by Mr. Nabi on the Tatlow Property is not a family debt, and therefore, is not subject to division. There are no other debts in the parties' names that are to be divided. [284] Mr. Nabi is not entitled to an award of spousal support. [285] Ms. Turabi is entitled to an award of spousal support on a compensatory basis at the high end of the SSAG. The objectives of spousal support can be achieved by an unequal division of the Surrey Property proceeds 55%-45% in favour of Ms. Turabi.

SUMMARY OF PROPERTY DIVISION AND COMPENSATION PAYMENT [286] The following table sets out the division of property. Family Property Value Ms. Turabi's Share Mr. Nabi's Share Proceeds of the Surrey Property (55%-45% in favour of Ms. Turabi) $681,084 $374,596 $306,488 Ms. Turabi's Bank Accounts $1,977 $989 $988 Mr. Nabi's Bank Accounts $5,680 $2,840 $2,840 Mr. Nabi's Bitcoins $7,225 $3,612 $3,613 Ms. Turabi's Income Loss Portion of the Remaining ICBC Settlement Funds $9,388 $4,694 $4,694 Mr. Nabi's VGH Pension Remaining in Locked-in Account $63,660 $31,830 $31,830 Mr. Nabi's VGH Pension Withdrawn During Adjournment of Trial - net of Tax $21,313 $10,656 $10,657 Total $790,327 $429,217 $361,110 [287] The following table details the debits and credits to be made to the proceeds of the Surrey Property that are currently held in the lawyer's trust account based on my conclusions detailed above. The equalization of Mr. Nabi's pension remaining in the locked-in account is excluded from this calculation as that equalization will be done at source. Ms. Turabi's Share Mr. Nabi's Share Surrey Property proceeds held in trust in amount of $681,084 $374,596 $306,488 Ms. Turabi to Mr. Nabi to equalize her bank account balances ($988) $988 Mr. Nabi to Ms. Turabi to equalize his bank account balances $2,840 ($2,840) Mr. Nabi to Ms. Turabi to equalize his bitcoin balance $3,612 ($3,612) Ms. Turabi to Mr. Nabi to equalize Remaining ICBC Settlement Funds ($4,694) $4,694 Mr. Nabi to Ms. Turabi to equalize the amount of his VGH pension withdrawn from the locked in account during the trial $10,656 ($10,656) Retroactive Child Support $15,042 ($15,042) Total Payable to each party from the Surrey Proceeds Held in Trust $401,064 $280,020

COSTS AND SECURITY FOR COSTS [288] Ms. Turabi has been entirely successful on Mme. Nabi's civil claim and she is entitled to her costs on the normal scale. Mr. Nabi and Mme. Nabi were aligned in position on her civil claim and there will be no costs ordered as between them. [289] Ms. Turabi has been substantially successful on the family claim and is entitled to an award of costs. In the event that she was successful, Ms. Turabi sought an opportunity to make submissions on the appropriate costs order after judgment was rendered. Consequently, should the parties be unable to come to an agreement on costs, they may arrange with Supreme Court Scheduling to speak to the matter before me. [290] In the meantime, Ms. Turabi seeks an order that a portion of the funds that are payable to Mr. Nabi for his share of the division of the Surrey Property proceeds remain held in trust by Mr. Dubas as security for costs. Given that Mr. Nabi has allegedly no income and no other assets, Ms. Turabi submits that there is a high likelihood that she will not be able to recover costs from Mr. Nabi. [291] Rule 22-1(6) of the Supreme Court Family Rules provides that the court may make an order for security for costs of a party. Such an order may also be made pursuant to this court's inherent jurisdiction: Shiell v. Coach House Hotel Ltd., 1982 CanLII 454 (B.C.C.A.), 37 B.C.L.R. 254 (C.A.) at para.

18. The purpose of an order for security for costs is to protect a litigant from the possibility that it will be unable to recover costs from its opponent if the litigant is ultimately successful in the litigation: L.S. v. G.S., 2016 BCSC 1130 at paras. 31-32. Such orders are considered on a case-by-case basis: L.S. at para. 37. [292] In Rizzuto v. Grover, 2021 BCCA 389 at para. 25 the Court of Appeal endorsed the discussion of security for costs in Javaheri v. Heidari, 2019 BCSC 1438, and L.S. The test for ordering security for costs against an individual is more stringent that against a corporate plaintiff, and the power is exercised cautiously and only in special circumstances: L.S. at para.

32. A motivating concern is behind the cautious exercise is access to justice, as security for costs in the pre-trial context risks stifling a legitimate claim: L.S. at para. 36. [293] Javaheri, citing L.S. at para. 34, sets out factors the Court should consider in exercising its discretion: a. the ability of the defendant to pay costs, if ordered; b. the merits of the case; c. the level of costs; d. any prejudice to the plaintiff as a result of a delay in the application; and e. prejudice to the plaintiff in the sense of preventing it from proceeding with a meritorious claim if an order is made. [294] This case is unusual, however, as security for costs is typically applied for and granted prior to trial. The concerns motivating the cautious exercise of security for costs are not as salient when security for costs is being resolved in the final judgment. The merits of the case are decided, there is no possibility of prejudice as a result of delay in the matter, and access to justice concerns are not raised as the parties have had their day in court. In my view, security for costs in the context of a final judgment raises fewer concerns and so requires less exceptional circumstances to justify relative to the pre-trial context. [295] As Ms. Turabi seeks security after the trial, in my view, the relevant factors include: a) the level of a likely costs award; b) the ability of

Mr. Nabi to pay costs; and c) any prejudice to Ms. Turabi if an order for security is not made weighed against any prejudice to Mr. Nabi if an order for security is made. [296] I have yet to determine the amount of costs that Ms. Turabi is entitled to. However, given the 22 days of trial that was ultimately needed to complete this matter, the award is likely to be substantial on any scale. [297] The prejudice to Mr. Nabi by having a portion of his entitlement to the Surrey Property proceeds held in trust pending the resolution of the costs matter is low. The remainder of those funds will be available to Mr. Nabi once the matter is resolved. While he is currently unemployed, the evidence is that he is still capable of meeting his monthly expenses and not incurring any additional debt as any shortfalls appear to be covered by financial advances that Mme. Nabi continues to make. Moreover, whatever amount not held as security for costs will be payable to Mr. Nabi at the same time the payment is made to Ms. Turabi. [298] On the other hand, I agree with Ms. Turabi's counsel that Ms. Turabi may suffer significant prejudice if Mr. Nabi receives his entire portion of the Surrey Property proceeds because it is very likely that she will have to expend significant resources pursuing enforcement to obtain her costs award. [299] The court considered security for costs as part of a final judgment in Small v. Small, 2020 BCSC 707. Justice Horsman, as she then was, in Small found that in an appropriate case the court would have jurisdiction to do so if there was a concern that the successful party would be unable to recover trial costs absent the order: at para.

288. However, she declined to order them in that case for the same reasons as she found that a lump sum order for spousal support was inappropriate, including that there was no history of non-compliance, the respondent would have an ability to pay from the proceeds of the sale of family property, and because the party's entitlement to costs was unclear because of their divided success. [300] However, the facts of Small are distinguishable on several grounds. First, Mr. Nabi has little ability to pay a significant award of costs. He has no liquid assets other than his 45% share of the Surrey Property Proceeds. He is currently unemployed. And given he has already depleted a family asset (part of the proceeds of his pension) during an adjournment of this trial, I do not have confidence that he would not deplete any portion of his entitlement to the Surrey Property proceeds. Second, Ms. Turabi has been substantially successful in this matter and her entitlement to costs is clear; only the quantum remains to be determined. Finally, Mr. Nabi has demonstrated his willingness to ignore orders of this court when he unilaterally terminated child support payments required by the May 2021 consent order without applying to vary it. [301] I have also considered B.A.W.B. v. S.L.S., 2024 BCSC 488. In that case, Justice Basran found that the husband was entitled to costs of a comprehensive

family trial at more than ordinary difficulty. To ensure that the husband received the amount owing as costs, he ordered that a portion of the wife's share of the family assets to be held back as security for costs. [302] While it would be reasonable to withhold some of the funds held in trust as security for costs, in my view, it is not reasonable to hold all of it. Ms. Turabi did not provide a specific amount that she says should be held in trust other than a "portion". While I make no determinations regarding costs at this point, I note that Appendix B of the Supreme Court Family Rules sets out costs for the preparation and attendance at trial at $2,000 per day for the first 5 days, and $3,000 for each additional day after that, which for this 22-day trial would generate costs of $61,000. While I do not have evidence for the other items set out in Appendix B, I anticipate there to be substantial additions to the trial costs as well as the need to account for disbursements. [303] In my view, $125,000 of the $280,021 (the net amount Mr. Nabi is entitled to from the division of family property and the payment from the funds held in trust) is to be held in trust as security for costs. To be clear, I am not making a costs award of $125,000. The parties are to either agree on a bill of costs, or if they are unable to do so, schedule a hearing before me. [304] Nonetheless, Mr.

Nabi's share of the Surrey Property proceeds cannot be held in trust indefinitely. The parties are to proceed expeditiously to resolve the matter of costs. If the matter of costs has not been resolved within six months of the date of these Reasons, Mr. Nabi may apply for the release of some or all of the amount held as security for costs, with evidence supporting the prejudice to him of those funds continuing to be held as security. "Majawa J."