Vanden Bos v. Vanden Bos

2008 BCSC 257 Vanden Bos v. Vanden Bos

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Vanden Bos v. Vanden Bos, 2008 BCSC 257 Date: 20080229 Docket: 0423016 Registry: Prince George Between: Alice Marie Vanden Bos Plaintiff And Randall Ray Vanden Bos also known as Randy Vanden Box Defendant Before: The Honourable Mr. Justice Parrett Reasons for Judgment Counsel for the plaintiff: S.N. Mansfield Counsel for the defendant: D.B. McGaughey Date and Place of Trial: April 16, 17, 18, 19, 20, and May 29, 2007 Prince George, B.C.

INTRODUCTION [1] This is a matrimonial proceeding with three main issues to be determined. These are the division of family assets, the quantum of spousal support both prospective and retroactive, and the divorce. [2] The parties are generally agreed that the family assets should be divided equally but there are a series of issues arising with respect to the handling of specific assets.

BACKGROUND [3] The plaintiff is 51 years of age and was born August 25, 1956. The husband, the defendant, is 53 years of age and was born on August 31, 1964. The parties married on May 15, 1976 when the plaintiff was 19 years of age and the defendant was 21 years of age. They separated in May 2004, and although there were some efforts to reconcile, by November of 2005 these had ended. [4] The couple had three children, all of whom are now adults and live independently of the parties. [5] Ms. Vanden Bos graduated from Prince George Senior Secondary in 1974. She then took a course of general studies at the College of New Caledonia and earned her diploma in General Studies in the spring of 1976. Shortly after that the parties were married. [6] This is a matrimonial proceeding which has been marred by rancour and conflict between the parties. The level of conflict has affected not just the parties emotionally in their relationship but it has significantly impacted their evidence and actions throughout. As but one example of the relationship, at the close of the plaintiff's direct evidence the court was advised that the plaintiff would not agree to the granting of a divorce, and in her submissions, she opposes the granting of that relief. [7] Over the course of a six day trial, six witnesses were called. In addition to the two parties, the plaintiff called her sister, Ms. Stablin, and the defendant called two of the couple's daughters. The remaining witness called by the defendant was the Chartered Accountant the defendant uses to prepare his tax returns and attend to his financial affairs.

THE MARRIAGE [8] These parties separated in May 2004 ending a marriage that lasted some 28 years to that point. [9] The plaintiff submits that the marriage was organized along very traditional lines and that "by agreement and conduct" she "did not work outside of the home for the entirety of the marriage". [10] The defendant disputes that characterization of the marriage. He submits that the plaintiff sold Avon products, worked during both federal and provincial elections and up until separation worked driving a pilot car. [11] The defendant, throughout the marriage, worked as a truck driver. Until 2001 he was self-employed as a partner in Larry's Heavy Hauling and since selling out his interest to his partner he has been the owner and operator of a transport truck which he has operated doing long distance trucking and hauling through an unincorporated proprietorship. [12] For at least a portion of the marriage the income earned through the trucking operation was split with a portion being paid to the plaintiff for banking and administrative services as well as pilot car services. The parties tax returns reflect their line 150 incomes as follows:

YEAR

WIFE

HUSBAND

TOTAL 2000 $29,685.24 $93,399.07 $123,084.31 2001 27,346.00 86,066.69 113,412.69 2002 23,829.94 46,373.00 70,202.94 2003 26,323.00 58,838.08 85,161.08 2004 31,561.25 59,869.80 88,431.05 [13] After the parties separated in May 2004, the wife was allocated income of $31,561.25 and the husband paid a tax instalment on her behalf of $7,500. In her tax return the wife claimed that income but she subsequently filed an amended 2004 tax return in which she eliminated that income. As a result of this change in the wife's tax return, the defendant's post-separation income is: 2004 $ 88,431.05 2005 102,516.80 2006 108,445.45 [14] In a decision dated November 21, 2006, Master Baker awarded interim spousal support of $4,300 per month commencing November 1, 2006 and interim lump sum retroactive spousal support for August, September and October 2006 of $12,900 to pay for certain urgent bills of the plaintiff. [15] Plaintiff's counsel, in his written submissions, suggested that the issue of retroactivity beyond three months was adjourned to the trial. The Master, at para. 9 of his reasons, reports that slightly differently: Ms. Vanden Bos' motion requests support retroactive to September 4, 2005, but at the hearing Mr. Mansfield modified this to three months, leaving the issue of further retroactivity to the trial judge. [16] The plaintiff now seeks retroactive spousal support to September 1, 2005 and permanent spousal support of $4,875 per month.

PROPERTY DIVISION [17] The triggering event, in this case, is the s. 57 declaration made by Master Baker on December 12, 2005. The presumption is that each is entitled to an undivided half-interest in each family asset when that declaration is made (s. 56(1) and (2)). The Farm Property [18] This property is located on Enns Road in Vanderhoof, B.C., and includes 610 acres of land, a modular home, a shop, a hayshed and other farm improvements. An appraisal, commissioned by the plaintiff, estimates the market value of this property at $535,000, but contains separate assessments of the various components. This appraisal estimates the component values at: Raw Land $ 334,000 Modular Home 81,641 Shop 113,160 Hayshed 45,600 Pumphouse, Well, Lagoon, Driveway, Landscaping 24,000 The Mobile Home [19] The modular home located on this property is not a family asset in the sense that it was never used for a family purpose and it was acquired after the triggering event. [20] The plaintiff submits that the modular home and the hayshed were assets purchased after separation but with income flowing from the trucking enterprise which: . . . is clearly a venture to which the Wife has made contributions, either direct or indirect, throughout the entirety of the marriage. The fact is that the parties were partners in the enterprise. [21] With the greatest of respect to Mr. Mansfield, this submission

seeks to treat the "enterprise" by the simple means of characterizing it as such as a capital asset in which the plaintiff has an interest while at the same time seeking retroactive spousal support from the whole of the income earned through the "enterprise". [22] This is, with respect, the ultimate form of 'double dipping'. Here, the plaintiff, not only seeks spousal support retroactive to the date of separation, by asserting an interest in this 'enterprise' she seeks a half-interest in all assets acquired by the defendant post-separation by the defendant's use of that income. [23] In my view, the modular home is not a family asset and if I am incorrect in that assessment, it would be unfair for her to take an interest in that asset given all the circumstances. The Hayshed [24] The PERKA building package for the construction of the hayshed on the property was acquired more than a year after separation and just months before the triggering event. In this case, in addition to the post-separation acquisition, all of the labour and materials for assembling the package was provided by the defendant. Once again, I find this was not a family asset and if it was it would be unfair for the plaintiff to take an interest in it in the circumstances. The Shop [25] The shop is a 3,400 square foot structure used to support the defendant's trucking business. [26] The defendant submits that

while "the shell of the shop was already constructed" at the date of separation, significant additions and improvements were made after the date of separation. [27] The defendant, in his evidence, estimates that approximately one-half of the shop's value was added after the date of separation. In giving that evidence he produced a series of receipts which totalled some $13,559.39 and covered a period from September 2004 to September 2006. These receipts cover nothing close to one-half the value of the shop. [28] The estimate given by the defendant appears to be out of accord with the Capital Cost Allowance declarations filed by the defendant in 2005 which describe the shop and pumphouse as being acquired on June 30, 2003 and assigns an adjusted cost base of $68,383.49. [29] Doing the best I can with inadequate information, I find that approximately three-quarters of the value of the shop was present at the time of the triggering event and would find that value to be $84,870 at the date of trial. Miscellaneous Improvements [30] This category includes the well, pumphouse, lagoon, site development and landscaping. The first two were complete before separation and the last three post-separation. The appraisal estimates the value of these improvements at $24,000 but the evidence does little to allow any accurate assessment of the values of each item. [31] Once again I would allocate

three-quarters of the value of these improvements to completion at the date of the triggering event. Leaving out of the present calculation for the moment the defendant's submission that capital gain and recaptured depreciation should be adjusted, I summarize the value of the Enns Road property as follows: Appraised Value $ 535,000 Less: Value of Modular Home 81,641 Less: Value of Hayshed 45,500 Less: ¼ value of shop 28,290 Less: ¼ value of miscellaneous 6,000 $373,569 [32] In my view, a further adjustment must be made to reflect the fact that the defendant has paid all of the ongoing mortgage and property taxes with respect to this property since separation. [33] Whether this is done by taking a current mortgage balance and adjusting it to credit the defendant for payments made or using the mortgage balance at separation is of necessity somewhat 'rough and ready'. I prefer, in this case, to use the mortgage balance at separation: Balance from above $373,569 Less: Mortgage Balance 104,758 $268,811 The Former Matrimonial Home [34] This property consists of two adjoining parcels of land, near Vanderhoof, with the residence located at 1464 Aspen Drive. The adjacent property is an additional five acre parcel. Both titles are free and clear of financial charges. [35] These properties are appraised at $293,000 and the plaintiff continues to occupy them. The appraisal values the

residential property at $248,000 and the adjoining property at $45,000. Aljean Road Property [36] This is a 20 acre property with a road passing through it, creating an eight acre parcel on one side and a twelve acre parcel on the other. [37] The appraisal on this property estimates its value at $42,000 unless an application is made to rezone the property to permit its subdivision. The author of the appraisal opines that approval of such an application is "quite likely" resulting in the valuation. Chattels 2005 Inland Kenworth T800B Truck [38] The defendant offered to purchase this new truck on November 30, 2003 and the Conditional Sales Contract reflecting the purchase was signed on July 6, 2004, just after separation. [39] This transaction was in keeping with the ordinary course of business, by replacing his major truck used to earn income as it aged. In this case the truck had been ordered prior to separation but no down payment was paid because of the plaintiff's refusal to release funds from the Credit Union account. [40] The existing truck, a 1993 Kenworth, was traded in for a trade in allowance, including taxes, of $16,050. A down payment of $32,680 was paid by means of the defendant's Visa card and the balance of $128,913 was financed through Inland Kenworth. The defendant's monthly payments of $3,074.35 since the purchase have reduced the outstanding balance to

$49,661.18 as at March 19, 2007, and his payments to that date had totalled $79,252. [41] There are two appraisals of this vehicle before the court. The plaintiff's report assesses the truck at $105,000 while the defendant's, prepared by Inland Kenworth, assesses the truck at $96,600. [42] I prefer the defendant's valuation in this case. This is a valuation by the dealer most familiar with the vehicle, while the author of the plaintiff's appraisal did not testify despite the defendant's notice requiring him to attend for cross-examination. [43] I have earlier dealt with the plaintiff's submission that she is entitled both to spousal support and one-half of the assets acquired by the defendant since separation with his income. The same reasoning is applicable here. [44] In my view, the plaintiff's claim with respect to this vehicle is limited to one-half of the trade in value of $15,000, or $7,500. 1993 Ford Aerostar Van [45] The plaintiff retains this vehicle which both parties agree is valued at $2,890. 1995 Peerless Axle Booster [46] The defendant will retain this item which the parties agree is valued at $3,500. All Other Vehicles, Machinery and Equipment [47] These items, found within the report of Heitman Appraisal, the parties agree will be retained by the defendant and are valued at $268,565. [48] The remaining issue is whether the defendant is entitled to deduct

notional taxes from the appraised value. [49] With respect to these assets, the defendant seeks to deduct Capital Gains of $79,000 plus Recaptured Depreciation plus taxes, for a combined value of $95,090. The defendant submits that these amounts will be chargeable as a result of the notional sale. [50] This calculation and the effect of the notional sale were canvassed by Sheila Nelson, the defendant's Chartered Accountant, in her evidence and in her written report. [51] I have some difficulty with the submission that there should be an adjustment made for Capital Gains treatment and for recaptured depreciation. [52] The evidence, in my view, falls short of establishing that these items are triggered in a domestic dispute where the triggering event creates the undivided half interest in each family asset. [53] The notional sale which would trigger these adjustments is, in fact, the notional sale at fair market value which presumes a sale to an arms length bona fide purchaser. The defendant, in his evidence, made it abundantly clear that he has no intention of disposing of the various items but will continue to use them. [54] The question of whether these assets should be valued by a reference to their adjusted cost base does not arise here as the parties have agreed on the value given in the plaintiff's appraisal. [55] In my view, there is no established evidentiary basis for

deducting the notional taxes advanced by the defendant. Household Effects - Aspen Drive [56] The plaintiff has retained all of the household contents and furniture of the Aspen Drive property. During the course of her evidence she agreed it had a value of at least $5,000. [57] Insofar as she retains any of the following items, they are to be delivered to the defendant, forthwith. a) his personal possessions and effects; b) his Dad's ruby ring; c) his guns, hunting equipment and gun cabinet; d) his replica die cast toy collection; e) the cabinet located in the basement of the Aspen Drive residence constructed by the defendant; f) miscellaneous shop tools of the defendant; g) the deep freeze in the garage of Aspen Drive. Registered Retirement Savings Plans [58] Ms. Vanden Bos' financial statement, sworn April 16, 2007 and filed as Exhibit 2, lists a series of RRSP's, some of which appear somewhat dated. My references to specific RRSP account numbers should be taken as a reference to their current values. [59] The RRSP's of the parties, with one exception, constitute family assets and will be equalized by spousal rollover, or retained and credited against any equalization payment. The exception is the defendant's contribution of February 25, 2006 of $35,000 which was made after the triggering event and is not a family asset. Plaintiff 1. RBC Spousal RRSP No. . . . 48 $

40,451.28 2. RBC RRSP No. . . . 72 12,730.00 3. Integris RRSP No. . . . 03 23,599.36 4. Integris RRSP No. . . . 06 25,938.58 5. Integris RRSP No. . . . 01 12,980.13 $115,699.35 Defendant Royal Bank RRSP . . . 34 $59,622.43 Integris Credit Union Account . . . 05 [60] This was the Credit Union account which was set up in the plaintiff's sole name. As at the date of separation she had, in the account, a balance of $25,677.25 which she retained and utilized. [61] These funds were a family asset. Royal Bank Visa [62] At the time of separation the defendant had a credit card and the plaintiff had a card which also accessed that account and allowed her to charge items to his account. [63] Without his knowledge, the plaintiff withdrew a $16,000 cash advance which was originally charged to his account. At the date of trial this debt was outstanding in a balance of approximately $20,500. The plaintiff acknowledges that she had the exclusive use of these funds and that this is her debt.

SUMMARY OF ASSET DIVISION [64] Plaintiff to retain/receive: Aspen Drive Properties $293,000.00 Aljean Road Property 42,000.00 1993 Ford Aerostar 2,890.00 Household Contents and Effects 5,000.00 RRSP's 115,699.35 Credit Union Account Balance 25,677.25 $484,266.60 [65] Defendant to retain/receive: Enns Road Property $268,811.00 1995 Peerless Axle Booster 3,500.00 Vehicles, Machinery and Equipment 268,565.00

RRSP 59,622.43 $600,498.43 [66] The difference is $116,231.83 in the defendant's favour. To equalize these assets there will be a compensation order directing that he pay to the plaintiff $58,115.91 plus $7,500 representing her half-interest in the trade in value of the old Inland Kenworth truck or $65,615.91. [67] In closing, I cannot let pass without comment Mr. Mansfield's tables on page 11 of his written submissions which, not only ignore the $25,677.25 the plaintiff took from the Credit Union account and the $16,000 cash advance she took against the defendant's credit card, thus understating her assets by $41,677.25, but actually credits her with the $20,500 outstanding on the credit card debt she acknowledged thus reducing her assets by that debt. The effect is to understate her asset position by $62,177.25. THE RELATIONSHIP OF THE PARTIES POST-SEPARATION [68] At the outset of these reasons I commented on the relationship between these parties and that relationship's impact on their evidence. [69] The importance of this issue emerges from the fact that in the plaintiff's case she seeks retroactive spousal support, in part, on the basis of what she characterizes as the defendant's refusal to support her during their separation and, then eventually, difficulties with the payments he was ordered to make by the Master. [70] On the defendant's side, he submits that the

plaintiff has refused to seek employment and has misrepresented her medical condition while concealing assets and failing to make adequate financial disclosure. [71] The plaintiff testified in her evidence in chief that the defendant did little to support her after their separation. She testified that in August of 2004 the defendant closed down all her credit cards and accounts and that as a result she took $10,000 out on his credit card and then another $6,000 'to pay bills'. She testified that she 'put it in the CIBC and used it to live on as he had left me penniless'. [72] According to the plaintiff, "between 2000 and 2003" they had quite a bit of money saved and something on the order of $150,000 in their joint account. In May of 2001 she took one-half of the $150,000 and put it in her personal bank account. She testified that this 'dwindled down' to approximately $25,000 and that money plus the $16,000 she took as cash against his credit card is what she has had to live on. [73] She went on to testify that "he" wouldn't give me cash, that she went to welfare and that her church had given her fuel and groceries. [74] She also testified that she suffered from back pain to the extent that she couldn't walk or move because of "radiating pain from nerve damage". She testified that this condition currently causes her 24 hour a day chronic pain. [75] The plaintiff applied for a

Canada Pension Plan Disability Pension which was denied based on medical reports which indicated "there was no evidence of a significant back condition causing pain" and evidence that she has continued to work doing accounting and piloting since 1996. [76] The evidence and specifically the bank records entered at this trial establish that on August 30, 2004 the plaintiff withdrew $13,000 by way of a cashier's cheque from her CIBC account and placed it in a safety deposit box. [77] On November 17, 2004 she withdrew a series of four $5,000 withdrawals from her Credit Union account apparently placing this $20,000 in the same safety deposit box. [78] As a direct result of the way in which the plaintiff handled these items, there is, effectively, no record of what became of these funds or how she spent them or when. [79] Similarly, throughout this period she was selling Avon products. No documents or accounting was kept or produced with respect to that undertaking. [80] When the plaintiff's application for interim spousal support was brought before Master Baker on October 23 and November 7, 2006, her material disclosed that her annual income was $650. This income allegation was accepted and relied on by the Master in his reasons which were released on November 21, 2006 (para. 27). [81] It is also clear from those reasons that the Master was aware of the death of the plaintiff's

father and, as he notes in para. 28: . . . her possible inheritance from her father's estate. No evidence whatsoever was given to show the size of the estate, the number of other possible (or actual) beneficiaries, the scheme of distribution, or even the progress of the probate and distribution of the estate. [82] It seems to me, with the greatest of respect, that the only likely source for these details was the plaintiff who clearly did not provide them. It seems likely that she was quite capable of having provided them in light of the fact that the Affidavit of Executor (Exhibit 3), signed by the plaintiff and her sister, was signed and sworn by them on November 23, 2006, two days after the Master's reasons were released. [83] The plaintiff's father died on August 9, 2006 after spending some time in a coma. On that same date, a joint account in the names of the plaintiff and her sister was opened in the Integris Credit Union and on August 15, 2006 some $10,000 was transferred into that account (Exhibit 12). [84] On October 17, 2006, six days before the initial hearing of her spousal support application before Master Baker, another account was opened by the plaintiff with the Integris Credit Union. This account was solely in the plaintiff's name and some $14,000 was deposited to this account the same day (Exhibit 13). [85] The plaintiff's explanation for this deposit which she

transferred from the joint account was that her sister was not available at the time and she wanted to place it in a term deposit to earn interest. In her evidence she did not directly assert that her sister's signature was necessary. [86] The improbability of that explanation is patent. The Credit Union allowed her, according to her, to set up an account in her own name and transfer the funds out of a joint account to place it in a term deposit because her sister was not available. [87] On March 27, 2007 the plaintiff swore a financial statement that made no mention of this inheritance or her new bank accounts. [88] What is clear from the evidence is that within a week of the plaintiff's father's death on August 9, 2006, her brother and sister each received $10,000 from their father's estate as an advance on their inheritance. The plaintiff conceded in her cross-examination that she and her sister agreed that the plaintiff would not take hers until later. This conveniently left her and her counsel in a position to make the arguments they did before the Master on October 23 and November 7, 2006, while she asserted that she had an annual income of $650 and urgent medical and dental bills as well as repairs to her heating system. [89] The order for three months retroactive spousal support to assist with these bills was made at a time when she had declined to take her $10,000

advance and failed to disclose that fact. [90] A document was produced and entered as Exhibit 11 during the course of the plaintiff's cross-examination. This document is a handwritten log of trips from June 1996 to April 2004. It covers nearly an eight year period up to the date of separation. Included within the record are logged entries for piloting for the years 2000 through 2004. [91] The plaintiff's evidence during this portion of her cross-examination was a model of prevarication. She denied making all of these trips, denied making some specific trips, at one point claimed that her son, who had in fact moved to Calgary in 2001, had made them, and also announced that the defendant simply told her what to write down. [92] I very much regret it, but I have concluded that the plaintiff's evidence is largely unreliable. I am persuaded that she is prepared to and has either hidden or destroyed documents, failed deliberately to make proper financial disclosure, and that she has calculatedly withheld information all in an effort to advance her interests in these proceedings at the defendant's expense. [93] I am persuaded and find that she has exaggerated her medical condition as is evident both from her pilot car trips and her walking vacation in Europe, as well as the limited medical evidence presented. [94] Most significantly, in my view, she materially misled Master Baker with

respect to her interim spousal support application. [95] I have dwelt on the plaintiff's evidence at some length because of the conclusions I have reached. Even in this lengthy recital I have not gone into the details of her forays onto the property occupied by the defendant, her liberation of equipment and tools he had at that location, and her attempts, successful and otherwise, to break into his premises. [96] The evidence of the plaintiff's sister is of some significance. Her evidence contradicts the plaintiff as to the nature of their joint account which was set up to allow either of them to pay bills and required only a single signature of either. It is also of some interest that the sister testified that after taking the initial $10,000 advance, she took, to the plaintiff's knowledge, another $4,000, which by coincidence, brings the total of the advance to her sister to the same amount as the $14,000 the plaintiff transferred into the account in the her name on October 17, 2006, just before the hearing before the Master. [97] Subsequent financial statements sworn by the plaintiff are also of some interest. [98] In a financial statement sworn March 27, 2007 the plaintiff makes no references to the estate of her father, her inheritance or the bank accounts set up following her father's death. The statement does, however, refer to the safety deposit box and notes that it is

"empty". Presumably the approximate $20,000 in cashier's cheques had been removed and disposed of in some fashion and at some time between her previous financial statement of January 3, 2006 and that of this statement. [99] The plaintiff's next financial statement is also of some interest. It is sworn April 16, 2007, something like three weeks after the previous one, and just to put it properly in perspective, on the opening day of this trial. [100] In this statement there are some interesting changes. These begin with a series of entries entitled "Notes to Financial Statements". Three of these are noteworthy. Firstly: The former matrimonial residence which I currently reside in requires the following substantial repairs: i) Pump replacement for the well (at a cost of approximately $2,000.00); ii) Underground oil tank needs to be removed and a new aboveground oil tank needs to be installed (at a cost of approximately $15,000.00); iii) Driveway culvert needs to be replaced (cost unknown); and iv) A new roof needs to be installed (cost unknown). [101] This is of interest in part because the repairs to the oil tank were part of the submissions made and the specific reason that the Master awarded 3 month's retroactive lump sum spousal support on November 21, 2006. [102] Secondly: I owe $20,000.00 to a collection agency for a credit card advance of $16,000.00 taken in August of 2004

on the Defendant's RBC credit card shortly after the time of separation when I was receiving no support from the Defendant. I deposited the monies into an account I had at the CIBC. The Defendant has disputed the advance and the collection agency has said that I am responsible. Given that I received the money, I feel it is my responsibility to pay the collection agency and will do so following the conclusion of this proceeding when the issues of property division and retroactive spousal support are determined. [103] This entry is of interest because of what it does not disclose. The plaintiff does disclose depositing the money into an account she had with the CIBC. What she does not mention is removing it in the form of a cashier's cheque and placing it in her safety deposit box or what she did with it thereafter. [104] Thirdly: My father, John Zagozdzon, died on August 9, 2006. The residue of his estate was left to his three children and is currently in probate. My sister, Teresa Steblin, and I are named as co-executrix of his estate. In August of 2006, it was agreed that a joint bank account be opened in our names to facilitate payment of certain expenses payable on my late father's behalf including the ongoing expenses with his home, income tax and other expenses that may arise. I established two term deposits in my name but the monies do not belong to me as they are to be

used for my father's expenses. My brother, Daniel Zagozdzon, died very suddenly on March 9, 2007. It has been a very difficult time for me dealing with the death of my father and brother and these proceedings. When I completed my Financial Statement on March 27, 2007, I did not make reference to these accounts as the monies do not belong to me. When my lawyer, Mr. Mansfield, was recently in Prince George, he attended at the bank with me and was able to obtain the account information to clarify this matter. [105] This entry is the first disclosure of these accounts in her financial statements. The entry gives no explanation at all for why she set up the term deposits in her name, fails completely to mention the advances taken by her sister or brother and makes no mention of 'deferral' of her own. [106] As a final matter, she gives no explanation why Mr. Mansfield's attendance was necessary to "obtain the account information to clarify this matter" when it concerned an account she opened in her own name in October 2006. [107] The next item of interest in this financial statement is the fact that her financial assets have gone up, in three weeks, by nearly $17,000 by including the two term deposits in her name and the joint account with her sister. [108] The final entry of note is the reference on this financial statement as in that sworn on March 27, 2007 to the empty safety

deposit box. [109] Once again there is no disclosure of what became of the cashier's cheques which were presumably disposed of. [110] This evidence, in my view, further supports my conclusion that the plaintiff has actively misled both the defendant and this court to advance what she perceives to be her interests. In my view, her evidence and disclosure is the furthest thing conceivable from being either candid or forthcoming.

SPOUSAL SUPPORT Entitlement [111] The plaintiff wife seeks permanent spousal support, both retroactive and prospective, following the breakdown of a long term marriage. The parties separated after 28 years of marriage and the defendant now seeks to end that marriage with a divorce order which the plaintiff opposes. [112] Entitlement is not really in issue here. Rather, the defendant opposes any order for retroactive spousal support and seeks to have income imputed to the plaintiff on a number of approaches. [113] The plaintiff asserts that she has done little in the way of paid employment since her marriage to the defendant and, according to her counsel, she suffers from a "longstanding serious and debilitating back problem". [114] While it was conceded for the purpose of this trial that the plaintiff suffers from back problems, the extent to which she suffers from those problems was not a part of that agreement. [115] The medical reports do little to support her present claim of disability. The first two, those of Dr. Johnston and Dr. Lanprecht, are less than helpful as both appear to simply report the opinions of others who have seen her and her own complaints. [116] Dr. Travelos' opinion is helpful but does little to document or explain any physical limitations. His physical observations report inconsistent results and the balance of the report repeatedly references the fact

that she has "significant psychosocial issues". Retroactive Spousal Support [117] The factors to be considered by the court in approaching the issue of whether to award retroactive spousal support include - a) need and the corresponding ability to pay; b) blameworthy conduct on the part of the payor; c) incomplete or misleading financial disclosure; d) encroaching on capital or incurring debt on the part of the payee; e) significant delay; f) unreasonable burden on the payor. [118] This is, in some respects, an unusual case for, in this case, not only do these factors not justify a further order for retroactive spousal support, in almost every case it is the plaintiff whose conduct meets the criteria - a) The plaintiff's conduct and her failure to make meaningful or timely disclosure makes it difficult, if not impossible, to assess her need; b) The blameworthy conduct in the present case rests largely at the feet of the plaintiff; c) The plaintiff has not simply provided incomplete or misleading financial disclosure; she has actively taken steps to prevent timely or accurate disclosure; d) Rather than encroaching on capital, the plaintiff has maintained ownership, particularly of real property; she neither needs nor, apparently, wants rather than converting them to income earning capital; e) The plaintiff commenced the present proceedings in April 2004 but did not serve the

defendant until August 24, 2005. The plaintiff's notice of motion seeking spousal support was prepared and signed by her then counsel on May 4, 2006 and scheduled for hearing on June 26, 2006. On the day set for hearing the plaintiff changed counsel and her notice of motion was next set for hearing on October 23, 2006. No real explanation is provided for these various delays; f) From the date of separation in May 2004, the defendant continued to pay various expenses for the benefit of the plaintiff. These included - (i) mortgage payments on Aspen Road properties; (ii) Property Taxes on Aspen Road; (iii) Heating fuel; (iv) Hydro; (v) Telus account; (vi) B.C. Medical; (vii) Cablevision (viii) Vehicle insurance; and (ix) House insurance. [119] Throughout much of this time the plaintiff had significant amounts of cash which she had extracted from the family accounts and secured in the form of cashier's cheques in a safety deposit box for the express purpose of preventing these monies from being traced, at least by the Royal Bank, who was trying to recover it. [120] The complete absence of any records or accounting by the plaintiff makes it impossible to determine what she spent these funds on or when. Indeed, given her conduct it is difficult to reach any considered finding on how much she had available to her at all. [121] In my view, the circumstances here do not justify any

further award of retroactive spousal support. Spousal Support [122] The Master, in making his decision on interim spousal support, accepted the plaintiff's evidence from her financial statement that her guideline income was $650 per annum or slightly more than $54 per month. It appears that he found the defendant's guideline income to be $101,300 per annum (para. 24-25). [123] The plaintiff, at this trial, submits that her income for spousal support purposes from 2004 to 2006 was - 2004 $2,688.21 2005 1,482.54 2006 526.60 [124] There are, in my view, some significant problems with this version of events; but dealing initially with what she apparently reported as income, her Income Tax Returns report the following: Year Total Income Other Income Interest & Investment Income Self Employed Income 2000 $29,685.24 $ 184.50 $2,421.56 - $2,920.82 2001 27,346.00 73.00 3,670.00 - 7,114.00 2002 23,829.94 1,600.50 - 7,770.56 2003 26,323.00 1.455.74 - 5,132.74 2004 2,688.21 661.02 322.63 2005 1,482.54 707.74 2006 35,526.60 [125] In 2006 the plaintiff collapsed an RRSP of $35,000 that was transferred to her by the defendant which accounted for the bulk of her line 150 income. Her tax return for 2006 and her notice of assessment reflects an income tax refund of some $5,327.69. This was a pattern that was well established by 2006: Year Income Tax

Refund 2000 $1,130.98 2001 1,685.91 2002 2,262.49 2003 2,238.48 2004 229.04 2005 310.73 2006 5,327.69 [126] The refund the plaintiff received for 2006 was itself more than 8 times what she said to the Master was her annual income, but, of course, it flowed in large part from the results of the spousal support order made on November 21, 2006. [127] In her financial statement sworn on January 3, 2006, the plaintiff gave her guideline income as $650 per annum, but interestingly enough, on page 13 she revealed that her safety deposit box at the Integris Credit Union contained "Approx. $20,000 in cashier's cheques". If this statement is true then her evidence at this trial that she ran out of funds and went to welfare and had to rely on her church for groceries and fuel is, at best, seriously misleading. [128] If this statement is accurate, the $20,000 in cashier's cheques were apparently kept in a safety deposit box from November 17, 2004 until at least January 3, 2006 rather than earning interest and those funds were not used to pay bills and expenses, at least during that period. [129] The plaintiff resides, by herself, in a four bedroom home on five acres of property. She indicated in her evidence that she did not know if she would continue to live there and listed a series of problems which seem to indicate that doing so is costly and problematic for her. [130] This property

is, on its own, worth $248,000. The plaintiff acknowledged that she had no use for the adjoining Aspen Drive property or the Aljean Road property which could be sold for their values of $45,000 and $42,000 respectively. [131] The sale of these three properties would yield some $335,000. Even replacing her residence with a substantial property in the Vanderhoof area would likely leave her with a substantial interest income if she invests reasonably, as opposed to placing cashier's cheques in a safety deposit box. [132] Assuming as well that the plaintiff is likely to receive at least one-half of the assessed value of her father's former residence, or $80,000 given the recent market increases plus the $14,000 advance she is entitled to (either from the account into which she deposited $14,000 on October 17, 2006 or from the sale of the house), her cash reserves will increase by a further $94,000. [133] There is, in my view, no medical evidence to substantiate any incapacity to pursue any employment on the part of the plaintiff, and a body of evidence that she is certainly capable of maintaining some level of employment. [134] Whether the plaintiff's decision to remain wholly unemployed was based on a desire to advance her disability claim or her claim in the present proceedings, I am satisfied that she remains unemployed, not because of incapacity, but as a result of conscious

tactical decisions. [135] I am satisfied that she has the skills and physical ability to work, at least part-time, as a pilot car operator and that she will continue to work as she has in the past during Provincial and Federal Elections. While this income is modest and somewhat sporadic, it is a well established pattern she has followed. [136] This is a case in which it is appropriate in the circumstances to impute income to the plaintiff. In 2004 the plaintiff was recording a charge of $50 per hour for pilot car services. Even at 10 hours per week she has the capacity to earn some $25,000 per year. In summary, I would impute the following amounts as income to the plaintiff - Employment Income $25,000.00 Interest Income from Value Lot 11 $45,000 Aljean Road $42,000 Share of Father's Estate $94,000 Sale of Aspen Road $98,000 $279,000 Interest Rate @ 6% 16,740 16,740 [137] In allocating $98,000 from the sale of the Aspen Road property I have allowed an estimated $150,000 to purchase a more suitable residence in the Vanderhoof area and applied the Registrar's rates in calculating a 6% return on her capital. I impute $41,000 worth of income to the plaintiff and find that to be her income for guideline purposes. [138] Over the last three years, the defendant's financial information records the following: Gross Business Income Line 150 Income 2004 $277,134 $

56,869 2005 309,256 102,516 2006 272,245 108,445 [139] The year 2004 is, in my view, an anomaly and I find that the defendant's guideline income is the average of those in 2005 and 2006 or $105,480.50. [140] Applying the "Without Child" support formula of the Spousal Support Advisory Guidelines, the result is intended to reflect both the compensatory and non-compensatory spousal support objectives of the Divorce Act as expressed in Moge v. Moge, [1992] 3 S.C.R. 813, and Bracklow v. Bracklow, [1999] 1 S.C.R.

420. The range is $2,015 to $2,686. [141] In my view, the appropriate order here, considering all the factors including the length of marriage, is an indefinite order with support payable by the defendant of $2,500 per month. [142] The existing order for spousal support will be varied to this amount as at June 1, 2007 after completion of this trial. The defendant will be credited with $1,800 per month for each payment made since that date against the compensation order specified in paragraph 66 above. [143] The spousal support order in the amount of $2,500 will take effect as at March 1, 2008 and will be payable on the first of each month thereafter. [144] In light of the issues and adjustments necessary by both parties, I think this is an appropriate case in which to order the quantum of maintenance to be reviewed in two years' time.

CANADA PENSION PLAN [145] The parties are in agreement that their unadjusted Canada Pension Plan credits should be divided in accordance with the Act.

RESTRAINING ORDER [146] While I have not dealt in detail within these reasons with the difficulties which led to the granting of an interim personal restraining order being pronounced against the plaintiff on May 29, 2006, suffice it to say that I am satisfied that this order should be made permanent. [147] In November of 2004, the plaintiff entered the defendant's property and his shop and removed various items. In March of 2006 she once again attempted to force entry into the shop and in May of 2006 she made a number of attempts to gain access. On the final occasion, in May, she again forced entry through the overhead door, damaging both the door and the operating mechanism, and removing a number of items. [148] I am satisfied from the evidence at this trial and my observations of the plaintiff that this is a case where the continuation of this order is necessary to restrain the plaintiff from repeating this conduct and to preserve the peace.

DIVORCE [149] I am satisfied that the requirements of the Act have been met and that a divorce order may go on the basis of one year's separation and despite the plaintiff's opposition that order will go.

COSTS [150] As requested, costs may be addressed if the parties are unable to agree. The Honourable Mr. Justice Parrett