Vidican v. Dinu

2020 BCSC 178 Vidican v. Dinu

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Vidican v. Dinu, 2020 BCSC 178 Date: 20200213 Docket: E53187 Registry: New Westminster Between: Gabriela Mariana Vidican Claimant And Marius Dinu Respondent Before: The Honourable Mr. Justice Schultes Reasons for Judgment Counsel for the Claimant: N. Radac T. Sediqi, A/S Respondent, appearing in person: M. Dinu Place and Date of Trial: New Westminster, B.C. November 26 -30, 2018; January 10, 25, February 20, 2019 Place and Date of Judgment: New Westminster, B.C. February 13, 2020 Introduction [1] This trial dealt with the financial consequences of the end of the 14-year marriage of the claimant Gabriela Vidican and the respondent Marius Dinu. The most contentious issues were (1) whether their family property should be unequally divided, based on the nature of their financial arrangements and Mr. Dinu's contributions to renovating the family residence; and (2) whether the decline in Ms. Vidican's standard of living since the separation entitles her to receive spousal support. [2] Mr. Dinu discharged his counsel just before the trial began and represented himself. On the third day of trial, he applied for an adjournment, which was opposed by Ms. Vidican's counsel. The grounds were his conclusion that he needed to carry out additional trial preparation and investigate the possibility of obtaining legal advice or retaining new

counsel; as well as the distraction caused by a diagnostic medical procedure that he was scheduled to undergo about a month after the trial dates. [3] Considering the stage of the trial we had already reached, his capable performance to that point, my ability to provide him with any required assistance (including breaks to cope with any lapses in concentration caused by worry over his medical situation), and the significant additional cost to Ms. Vidican of funding counsel for new trial dates, I concluded that the interests of justice did not require an adjournment. With assistance, he continued to represent himself capably in the trial. Evidence Background [4] Ms. Vidican was 50 years old at the time of trial and Mr. Dinu was 48. They are both originally from Romania and both were educated as engineers before coming to Canada. [5] They had a romantic relationship in Romania as young adults but then went their separate ways. [6] Ms. Vidican married another person and immigrated to Canada with him in 1998. She and her spouse separated after being here for about six months and ended up divorcing. [7] Mr. Dinu spent several years in Germany and eventually got married there, before separating from his spouse in 2001. They divorced at some point. He has a daughter with that spouse, who was 17 at the time of trial and lives in Germany. [8] It is common ground that Ms. Vidican and Mr.

Dinu re-established contact and resumed their relationship to some extent in 2002, and that Mr. Dinu then sought to immigrate to Canada as well. They married on February 1, 2003. [9] Differences between them arose as a result of Mr. Dinu's repeated returns to Germany to pursue employment before he was approved to work here, both before and after the marriage. When he went to Germany several months after their wedding, she cancelled her sponsorship of his immigration application. Her perspective was that he needed to commit to staying with her in Canada. His was that he needed to work and was not yet able to do so here, and that she was using the immigration issue to pressure him into staying. [10] When he returned in 2004, she was sufficiently satisfied with his commitment to remain that she reinstated her sponsorship. He received his permanent resident status in 2005. Relevant Aspects of the Relationship [11] Since 2000 Ms. Vidican has worked as a technician for a multinational company that manufactures components for large-scale printing machines. Since 2006, Mr. Dinu has worked as a technical officer and, more recently, as a "research council officer" for a government scientific research agency. [12] After renting for several years, they bought the family residence in Burnaby in 2008. They each paid an equal share of the 20% down payment on the purchase price of $525,000. It

was a house that had been built in the 1930's and not updated since the 70's. [13] They kept their personal finances separate during the marriage. They contributed jointly to the mortgage, property taxes and utilities, as well as the purchase of food and other household supplies. Payments by either of them towards common requirements would be reconciled periodically. They had a joint bank account that was used solely for making the mortgage payments. Their respective contributions to the down payment came from their separate financial resources. Ms. Vidican agreed with Mr. Dinu's suggestion in cross-examination that they each had their own money to spend as they saw fit. [14] Ms. Vidican testified explicitly that there was never a "pre-nuptial agreement" governing the division of property in the event of a separation and Mr. Dinu confirmed in cross-examination that the extent of the agreement was for the sharing of responsibility for ongoing home expenses. However, when he was being cross-examined about the basis of his belief that his pension should not be divided he said that "it was never a true marriage" and "we had an agreement not to share". At other points in his evidence, he described himself and Ms. Vidican as leading "practically separate lives" and that living together was "solely a matter of convenience". He characterized her as being "like a guest in her own home"

and suggested that she had "paid the minimum to protect her financial interest" (in the home, presumably). Despite these comments, he also said that "she envisioned up front that she has access to half". [15] Ms. Vidican said that her domestic responsibilities were for cooking, grocery shopping, and cleaning, while Mr. Dinu dealt more with home maintenance issues. She denied Mr. Dinu's suggestions that she cooked only irregularly, requiring them to eat pre-prepared meals, and that the house was not cleaned properly. She agreed that he occasionally bought dairy products in the U.S., but not that he had played a significant role in the grocery shopping, as he suggested. [16] Ms. Vidican said that they began the relationship with the furniture that she already owned and that during it Mr. Dinu purchased their TV, entertainment system, microwave, kitchen furniture and computer. They bought their bed together. [17] Ms. Vidican described suffering from herniated disks in her back, which restrict the amount of time that she can spend continuously standing or sitting, as well as the amount of weight that she can lift. During the late 1990's she was bedridden with pain for several weeks (she noted that when she was disabled, Mr. Dinu did not pick up the slack with house cleaning). She continues to suffer from regular flare-ups of the problems and has to spend a considerable amount on

physiotherapy. She also has problems with her joints, she said. She did not provide any medical evidence in support of this condition and the resulting limitations that she claims. [18] While they were together she underwent a series of fertility treatments in an effort to have a child. It was common ground that Mr. Dinu was not supportive of these efforts, and participated in them only to the minimum level required, as well as by allowing her to claim the procedures on his extended medical benefits. She spent $30,000 herself, for aspects of the procedures that were not covered. [19] She described acts of physical and verbal abuse towards her by Mr. Dinu during the marriage. Early in the relationship, he became angry and kicked her repeatedly in the leg, causing a permanent bruise. There were about five other incidents during the course of their relationship in which he lost his temper and hit her. He also made repeated comments to the effect that she was not good or capable enough. Overall she described feeling very intimidated by him. For his part Mr. Dinu denied any such behaviour and instead claimed that Ms. Vidican was aggressive towards him, including an incident in which she "came at" him with a kitchen knife after he returned from one of his trips from Germany. Renovations [20] As I indicated earlier, the value of the renovations to the house by Mr. Dinu is one of the

contentious issues in the case, but Ms. Vidican does not dispute that he carried out a significant number of such tasks. This included replacing the windows in the living room and bedrooms (which required renovating the interior and exterior walls as well), putting new floors in the bedrooms and kitchen, replacing the ceiling in the living room and enlarging the bedroom closets. He also planted trees and performed other upgrades to the yard. [21] He provided receipts for about $17,500 worth of purchases for the renovation. These were mainly for tools that she said he used during the process, as well as some building materials. Since many of the tools were purchased from the U.S., he suggested that the cost represented by the receipts was actually $20,000 in Canadian funds. Although he still has those tools that were not used up during the renovation process, he said that they have very little useful life left and no significant value should be attributed to them. [22] According to Mr. Dinu, this total only represented the purchases for which he had retained receipts - the actual out of pocket expense to him was in the range of $50,000. He suggested that the overall "market value" of having such renovations done, including the cost of his own labour and that of the various friends who assisted him, was in the range of $130,000 - $150,000. He sought to rely on a printout from the

website of a renovation company to provide costs for work that he had completed. The appraiser he retained quoted him as saying that "around $100,000 was spent on the renovations", but he clarified that he actually said that he had spent "more than $100,000". [23] Ms. Vidican's view was that no more than $30,000 was spent on the renovations, although she conceded that this was just a guess. She described giving Mr. Dinu $4500 towards the purchase of the windows, which he told her cost a total of $9000. Not all of the windows had been used by the time she left the home. [24] He produced a receipt for $10,091.64 for the windows and said that he had to pay another $1000 for the screens, which arrived separately. Although he had written in his Response to Family Claim (which he prepared himself) that Ms. Vidican had contributed $3000 to the windows, his testimony on this point varied in cross-examination. He went from indicating that he could not recall such a contribution and that he was under tremendous pressure from Ms. Vidican's counsel when he included it, to conceding that she may have done so and could not afford to contribute more. [25] Ms. Vidican's overall position with respect to the renovations is that she contributed to the limited extent that she was able. Mr. Dinu takes the position that he performed them in good faith, with the expectation that she would eventually

contribute, but that she failed to follow though. Post-Separation Mortgage and Banking Issues [26] The parties ultimately separated on May 5, 2017. Ms. Vidican moved out three weeks later. Since then Mr. Dinu has maintained the mortgage payments himself. [27] Those mortgage payments were $1200 bi-weekly at the time of separation. This continued until April 2018, when he was successful in reducing them to $700 biweekly, where they remained as of the trial. Taxes, insurance and utilities totalled about $5000 per year. Mr. Dinu agreed that Ms. Vidican paid her share of the mortgage for May 2017, the month she moved out, and that she may have paid half of the insurance (and definitely paid half the utilities), for that year. [28] He accused her of deliberately refusing to respond to efforts by the bank to contact her to obtain her agreement to reduce the mortgage payments. He was only able to reduce the payments by $200 per bi-weekly period without her cooperation. She denied this, explaining that Mr. Dinu had tried to pressure her into signing the relevant document the day before she moved out. In the ensuing months, she only received one call from the bank. She was suspicious of the fact that the bank was not aware that they had separated, and was also acting on legal advice in refusing. She eventually agreed to the reduction. [29] During her evidence, Ms. Vidican's counsel

showed her a document from the bank dated November 22, 2018 showing an outstanding principal on the mortgage of $198,561.93 and a maturity date in April 2023. She said that she had not signed any mortgage renewal documents and had not verbally agreed to such a renewal. [30] The other post-separation financial wrongdoing that Mr. Dinu attributed to Ms. Vidican were two fraudulent withdrawals totalling $5500 (on successive days in October, 2017), from the joint bank account that they used for their mortgage payments. Mr. Dinu continued to use the account for that purpose after the separation. The transactions were accomplished by depositing empty envelopes purporting to contain deposits into an ATM and the withdrawing cash. Mr. Dinu had to make good the loss to the bank in order to "normalize" his relationship with it, even though his bank card was not the one used, and with service charges this amounted to a repayment by him of $6200. He said that Ms. Vidican refused to cooperate with the bank or the police until she was shown the relevant documents by his lawyer at her examination for discovery. [31] She claimed to have had no knowledge of or involvement in these transactions, and explained that she had never even activated the most current bank card that had been mailed to her. She was not aware of what had occurred until the discovery and no one from the bank had contacted

her. She would have needed the relevant documents in order to go to the police about it, and her access to the account online was blocked. Home Appraisals [32] A joint appraisal of the family home was ordered by consent at a judicial case conference on August 15, 2017. It was eventually carried out, with its opinion of value expressed as of July 6, 2018. The appraiser concluded that the market value was $1,200,000. Crucially for our purposes, he explained that "[o]wing mostly to the age and relatively small size of the home, and the demand for large building lots throughout Burnaby over that past number of years, these improvements [that is, the house itself] no longer contribute any measurable additional value to the underlying land." In light of this, his opinion was that "the [h]ighest and [b]est [u]se of the property, as improved, would be its continued actual use as a single family dwelling pending the eventual redevelopment of the site with a new, much larger residence." [33] Despite his consent at the time, Mr. Dinu explained on cross-examination that he did not really want the appraisal unless Ms. Vidican intended to have him buy out her interest in the property. Despite the JCC order, he then obtained his own appraisal. He started to say in his testimony that he had "ignored" the order, then corrected himself to explain that he "had something to say" about the value of

the property. He was able to have this separate appraisal carried out before the joint one, with an effective date of September 8, 2017. [34] He asked the appraiser first to consider the value of the property on the hypothetical basis that the renovations had not been done, and then to give a value taking them into account. The appraiser's opinion was that the property was worth $1,250,000 without the renovations and $1,280,000 with them - a difference of $30,000. Mr. Dinu's comment during cross-examination on this relatively small increase in value was to say that three different appraisers will arrive at three different property values, and that as a profession they are in a conflict of interest (I took him to mean with the real estate industry) because of their role in the rising property market. Ms. Vidican's Situation [35] Ms. Vidican has been responsible for her own accommodation costs since moving out. Her first apartment cost $1125 per month until June 2018, then $1155 until October. In November of that year, she found a smaller and cheaper apartment in a co-op building, as it was hard to meet her expenses with no one to share them. It costs $687 per month and because of the co-op structure she is required to perform four hours of volunteer work per month. The co-op association's lease on the property expires this year, so there is a possibility that it may not continue

in existence beyond that point. In addition to the decrease in space from her previous apartment, she expects to pay more for heating, which is not included in her rent, because the new apartment is a "cold unit". [36] She left the home with very few household items - "a few pots and pans" a couch and an armchair that she had from before the relationship - and had to spend "several thousand dollars" replacing essential furniture items and $1000 on moving expenses. Her current accommodation required a $2000 damage deposit. Mr. Dinu said she also took their vacuum and declined his offer to take the TV. [37] As of the time she testified (in November 2018), Ms. Vidican expected to earn $46,613 for that year. [38] She had a tax free savings account containing $19,508.67, representing the balance of a personal injury settlement she had received during that time as well (the portion of the settlement relating to wage loss had been paid directly to her employer, which had continued to pay her while she was off work). She owned a vehicle worth $13,500 that she had bought during the relationship, using some of the proceeds of the settlement. [39] She also had two RRSPs containing funds provided by her employer. The first, containing $4463, was based on the employers contribution to her of 5% of her income to deposit into her RRSP. It was established in 2000, before the marriage, and was

replaced by her current program, in which the company contributes directly to a plan administered by Great West Life on her behalf. That RRSP, which contained $25,573, began some time after 2005. [40] She withdrew $14,658.69 from that RRSP in 2008 to make up part of her contribution to the down payment for the house, leaving the balance at zero. This withdrawal, pursuant to a government program to assist new buyers, has to be paid back to her RRSP at a rate of $977 per year, failing which she has to pay tax on that amount as income, which is in the range of $250-$300 per year. So far she has been unable to afford to make the repayments, and has had to pay the additional taxes. [41] In general, Ms. Vidican says that her standard of living has changed since the separation because she no longer has anyone with whom to share expenses. As a result, she has had to reduce her spending level in order to have enough to live on [42] She was cross-examined on her failure to reach the same professional level and income as Mr. Dinu has, even though they have the same education. Mr. Dinu suggested that she had refused to expend the effort necessary to develop her career and that she had "rigged her income to decrease" (I infer that he meant for the purposes of this litigation) in recent years. [43] She attributed her lack of career progress mainly to her back issues, which restrict her

ability to troubleshoot the large machines that are involved in her work by lifting or manipulating the heavy components, and the number of years that she spent focusing her attention on attempting to conceive with medical assistance. She has also struggled with "stress" (by which I took her to mean anxiety) since being in Canada. [44] Her continuing professional education has consisted of two computer assisted drafting courses at BCIT and a course offered by her employer. She applied for an engineering position (as opposed to her current level of technician) within the company and was not selected. She was also told that she was not qualified for an engineering position in another department. She believes that the result will be the same for any attempts on her part to work as an engineer. She does not have the financial resources to take engineering refresher courses at UBC or BCIT to make herself a more attractive candidate in that regard, and her back would not withstand it anyway - she had difficulties previously following through with a course that was only three months long. As a result she expressed her position as, "Technician is for me." [45] She accepted that Mr. Dinu has taken extensive additional training on his own time to progress in his career. She said that she understands what an engineering career entails but said that is "not doable' for her. In addition to

her view that Mr. Dinu had more skill and ability in their profession, she pointed out that he did not have to do the housework during those years, presumably leaving him with more time to devote to professional education. [46] Even in her technician's position, Ms. Vidican's income has decreased, from a high of $53,913 in 2016 and $51,670 in 2017. She explained that the company is not doing well and that the overtime that she was previously able to work is no longer available. Mr. Dinu's Situation [47] Mr. Dinu's paystubs for 2018 indicated that he earned $96,433 - his gross pay was higher but it included a non-recurring amount of $16,259 for retroactive pay and overtime. His income for support purposes, deducting professional dues, is $95,572. [48] He had $11,494 in a bank account that was accumulated during the relationship. He explained that he did not list his other bank accounts in his financial statement because they did not have any money in them. He agreed that the $55,427 in his tax-free savings account, to which he contributes the maximum possible of $5500 per year, was also accumulated during that period. [49] He explained that the money in the TFSA was put aside for the education of his daughter from his first marriage, who was beginning post-secondary studies in Germany. He also needs to support his mother in Romania, who has had cancer and survives on an

extremely small income. [50] In 2018 he was able to exchange the vehicle he had owned during the relationship for one worth $25,000 by paying only $5000, through the manufacturer's recall program. [51] He has a government pension, reflecting nine years of pensionable service as of December 31, with a "transfer value" of $223,831.61. He listed its value as zero in his financial statement, because he did not "know the rates" or what he had accumulated, but emphasized that he had disclosed his pension statement from 2014 and was not trying to hide anything. [52] He has received two personal injury settlements, one during the relationship and one after separation. Neither involved a component of wage loss, which he said he did not claim. The one that he received before separation were spent on the everyday costs that he "usually has." [53] Since December 2017, Mr. Dinu's new intimate partner, who is also from Romania, has shared the house with him. As of the time of trial, she was not yet eligible to work. They were expecting a child together later in 2019. [54] He said that covering the mortgage and the fraudulent withdrawals has prevented him from being able to travel since the separation. However, during cross-examination on his financial statement he confirmed the accuracy of its allocation of $10,200 per year for "vacation". In terms of his overall financial situation, he said

that he "cannot go on like this any longer" and may have to go on sick leave, I infer because of stress. Discussion Credibility [55] The issues in this case cannot be resolved by resorting to independent evidence, such as financial records, so the assessment of credibility is important. Neither party appeared to provide any deliberate falsehoods on specific factual matters in their testimony. Instead, what determined the believability of their respective versions of events was the extent to which each was affected by hostility or other negative emotions towards the other party. [56] Mr. Dinu was overtly hostile towards Ms. Vidican in virtually every aspect of his evidence. He expressed the most unfavourable possible interpretation of her actions in all of the relevant situations. This led him to portray overall quite an unrealistic version of their relationship in human terms - in which he was pressured into entering it by her use of the immigration sponsorship and then compelled to remain solely for financial self-preservation. This self-portrait - of an entirely passive victim of her machinations, deprived completely of any agency of his own - was simply not believable, and his attempt to present it as an accurate representation of all aspects of their relationship requires me to view his evidence with caution. [57] In contrast, Ms. Vidican described what seems to have been

quite an unhappy marriage in a restrained and rueful manner, projecting a sense of resignation towards the situation, rather than hostility towards Mr. Dinu. Even her recitations of the violent incidents were provided in a drily factual manner, and overall she tended to add negative details about his behaviour only in response to cross-examination questions from him that accused her of misconduct. [58] Importantly in my opinion, she was prepared to concede various favourable aspects of his behaviour, such as her gratitude for his handiness around the home and his purchase of numerous items for it, and she tended to denigrate herself in the face of his accusations about her lack of career progress. Of particular significance, she acknowledged that the relationship had had its positive aspects and times, which resonated in human terms as the recounting of actual events. In general, I found her evidence quite believable and, as I will explain, I prefer it in the important areas of conflict. Property Division Principles [59] Section 81 of the Family Law Act provides for a presumptive equal sharing of all family property at the time of separation, in the form of an undivided half interest for each spouse as a tenant in common. [60] Section 84 defines family property, in part, as property that is owned by at least one spouse on the date of separation. Section 85 excludes certain

kinds of property from this definition. For our purposes, it is sufficient to note that one of the exclusions is of those insurance payments that do not include compensation for lost income. [61] Family debt, which includes all financial obligations incurred by a spouse during the relationship, is also presumptively shared pursuant to s.81. Significantly for this case, it includes obligations incurred by a spouse after separation, if that was done "for the purposes of maintaining family property" (s.86(b)). However, when a spouse who remains in possession of a property after separation seeks to recover expenses for maintaining it against the other spouse, the court has the discretion to set off occupation rent from the spouse in possession against those expenses, as a means of doing what is just and equitable between the parties: J.D.G. v. J.J.V., 2016 BCSC 2389, at paras. 226 and 227. [62] This presumptive equal sharing is subject to the spouses agreeing to an unequal division, or an order to that effect by the court. [63] Oral agreements to divide property or debt can be enforceable if they are properly proven on the evidence: Asselin v. Roy, 2013 BCSC 1681 at para. 132. [64] Unequal division of family property or debt by order can be ordered pursuant to s.95(1) if it would be "significantly unfair" to divide it equally. This includes the equal division of pensions. Section

95(2) lists the factors that the court may consider in determining whether that threshold has been met. The ones that potentially arise on our facts are: (a) the duration of the relationship between the spouses; (b) the terms of any agreement between the spouses [other than a written, witnessed agreement] and (i) any other factor that may lead to significant unfairness. [65] If an oral agreement is found to exist, the court may consider it under s.92(2)(b) on the issue of whether equal division would be significantly unfair. [66] What is required is a degree of unfairness resulting from equal division that is "compelling or meaningful having regard to the factors set out in s. 95(2)": Remmem v. Remmem, 2014 BCSC 1552, at para.

44. Put another way, it will require "something objectively unjust, unreasonable or unfair in some important or substantial sense": Jaszczewska v. Kostanski, 2016 BCCA 286 at para. 42. [67] The ability to consider "any other factor that may lead to significant unfairness" means that the relative contributions of the spouses during the relationship, which courts were explicitly permitted to consider under the former Family Relations Act, have not been completely eliminated as a relevant factor. Nevertheless, the court in Jaszczewska agreed with the trial judge that "if relative contribution to the acquisition, preservation, maintenance or improvement of family property during the relationship was intended to be a significant factor or one frequently relied on in justifying the conclusion that the equal division of family property is significantly unfair, the Legislature would have said so". In addition, "[a]llowing relative contribution to become a regular consideration in the context of s. 95 would likely create uncertainty and complexity", contrary to the legislative objectives of the FLA's property division regime (para.43). [68] As it was explained in Slavenova v. Ranguelov, 2015 BCSC 79 at para.60: The "significant unfairness" contemplated by s. 95 requires much more than differing financial contributions in a relationship. Exactly equal contribution is more likely

exceptional than commonplace. The new regime under the FLA recognizes that partners will come to a relationship in differing circumstances and accounts for those in the concepts of "family property" and "excluded property". The starting point in the division of property analysis already applies significant exclusions. [69] In Khan v. Gilbert, 2019 BCCA 80 at para. 36, the court found that the trial judge had erred by approaching reapportionment on the basis of "a dollar for dollar comparison of contribution to expenses [,] which does not reflect the nature of marriage as a family venture". Such an approach failed to recognize that "in most marriages, one spouse will earn more than another and therefore contribute more to the family finances" (para. 36). [70] As explained in Khan, cases in which unequal contribution has led to reapportionment under s. 95 "involved marked, prolonged, and intentional or unexplained disparities in contribution to family burdens" (para.32). In contrast, factors such as one spouse providing two-thirds of the down payment for the family residence and performing most of the renovations to it were not sufficient to render an equal division significantly unfair: Hamill v. Dunlop, 2016 BCSC 1337. Application [71] In my opinion, none of the matters referred to by Mr. Dinu justify an unequal division of family property. [72] There is no meaningful evidence

of an agreement between the spouses beyond equally sharing the household expenses and keeping their finances separate. Mr. Dinu's single comment about an "agreement not to share" his pension was unsupported by a description of any discussions to that effect between them, and is contradicted by his acceptance of the suggestion by Ms. Vidican's counsel that the scope of the agreement between them did not extend beyond sharing expenses. [73] Nor is it possible, as Mr. Dinu has attempted, to go beyond the legal reality of the marriage and attempt to characterize as something less than a "true one" for the purposes of property division. First of all, I do not believe his evidence that it was at all times the bleakly hostile and detached relationship of mere economic convenience that he described. But even if these spouses led separate lives to a degree, that only matters to the extent that it engages the factors that lead to significant unfairness under s.95. Mr. Dinu appears to be importing the kind of analysis that is used to determine whether unmarried partners were in a marriage-like relationship. Such an analysis has no application here of course, and instead we begin from the presumption, based on the fact of the marriage itself, of equal sharing. [74] As to the effect of the efforts Mr. Dinu made towards renovating the family residence, there is no question that he spent

considerably more than the $4500 for windows that I accept Ms. Vidican contributed, and that the time and effort he devoted to these projects was substantial. Given my concerns about his credibility and in the absence of receipts, I am reluctant to attach a significant additional dollar value to the further purchases he claims to have made , and his attempts to attach an overall market value to his efforts is based only on hearsay. [75] More importantly, it is difficult to find significant unfairness in equal division of the family residence when his renovation efforts have not meaningfully increased its value. The joint appraisal, which was properly obtained pursuant to a consent order, finds that the value is in the land and that the house itself does not really contribute to that value. Even if I excuse Mr. Dinu's self-help remedy of obtaining his own appraisal and exercise my discretion to admit it pursuant to Rule 13-3 (2) of the Supreme Court Family Rules, it concludes that, at best, the renovations enhanced the value of the property by $30,000 - a very small amount in light of its overall value. [76] At the end of the day, this seems to me to be one of the usual situations envisioned in the cases, in which spouses of differing earning abilities and inclinations devote their time to different aspects of the joint marital venture. I accept Ms. Vidican's evidence that she

was responsible for most of the "indoor" domestic responsibilities and that her contribution to renovation materials was limited by her salary. In these particular circumstances, I can find nothing unfair, let alone significantly so, in the presumptive equal sharing of family property under the legislation being given effect. [77] With respect to family debt, the parties are obviously jointly responsible for the mortgage on the family residence. It is also appropriate for Mr. Dinu to be credited for those payments he has made towards the mortgage, as well as those related expenses of property taxes, insurance and utilities since the separation to which Ms. Vidican did not contribute. [78] On the evidence, I am unable to attribute responsibility to her for the empty envelope withdrawals of which Mr. Dinu accused her, but it was a cost to their joint account for the mortgage that Mr. Dinu had to absorb and that they should bear equally. [79] On the other hand, I was not convinced that her unwillingness to agree to reduce the mortgage payments reflected a deliberate attempt to increase his costs of remaining in the home. The issue is self-regulating in any event because she will share equally in any increased mortgage costs that resulted from the delay by crediting of his payments towards the family debt. [80] Fairness requires Ms. Vidican's accommodation costs since the

separation to be set off against that total as occupation rent, to recognize that he has had the benefit of living in the residence since then. [81] Mr. Dinu's intended use of the money in his TFSA account for his daughter's education is admirable and I have sympathy for his situation, but it is nonetheless family property that must be divided equally between him and Ms. Vidican. The priority given to payments relating to child support does not apply to gratuitous allocations of family property for the educational needs of a child from a previous relationship, in the absence of an order designating those funds for that purpose. [82] Ms. Vidican's counsel candidly indicated that the out-of-pocket costs for the fertility treatments were raised simply to show that there were also significant costs to Ms. Vidican during the relationship, beyond day-to-day household expenses, in which Mr. Dinu did not share. Counsel was not seeking, nor would I have granted, a reapportionment on that basis. Spousal Support Principles [83] The analysis of entitlement to spousal support must take into account "the condition, means, needs and other circumstances of each spouse", including such factors as the length of cohabitation and the functions that each spouse performed during it (Divorce Act, s.15.2(4)). [84] In this case, Ms. Vidican is seeking what is known as non-compensatory or "needs-based"

support, based on the decline in her standard of living as a result of the end of the marriage. Non-compensatory support is intended to give effect to the third and fourth objectives set out in s.15.2(6), which are to: 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. [85] Although she also described her domestic duties restricting her ability to pursue additional professional training, this was in response to Mr. Dinu's accusations that she had failed to advance her career diligently. I did not understand her to be saying that her involvement in the marriage, in itself, had resulted in ongoing economic consequences for her of the kind that would entitle her to so-called compensatory support, which is intended to remedy such disadvantages. [86] When considering the needs of a spouse for the purposes of non-compensatory support, the question goes beyond their ability to meet expenses. One must consider the marital standard of living and that spouse's post-separation standard: Marquez v. Zapiola, 2013 BCCA 433 at para.34. It is important to note however, that a mere disparity in the spouse's incomes is not sufficient to create entitlement (Lee v. Lee, 2014 BCCA 383 at para.60). Instead "there must at least be some

evidence of how the applicant's lifestyle has been diminished and, even then, other factors may have to be considered": Madruga v. Madruga, 2015 BCSC 1605. [87] As to the objective of promoting self-sufficiency, the frequently-cited decision in Tedham v. Tedham,2005 BCCA 502 is helpful: [33] As already stated, however, s.152(6) (d) of the Act does not require self-sufficiency, but simply seeks to promote self-sufficiency "in so far as practicable". In determining what is practicable, regard must be had to all of the circumstances, including the age and gender of the spouse, her/his skills and education, or lack thereof, the opportunities for retraining, and the realistic prospect of the spouse being able to find not just a job, but one which enables her/him to become self-sufficient, which may be quite a different matter. [88] While a.15.2(5) prohibits the court from taking into consideration any spousal misconduct, the consequences of such conduct on relevant matters such as the other spouse's ability to earn income is still an appropriate factor: Leskun v. Leskun, [2006] 1 S.C.R. 920 at para. 21. (Section 166 of the FLA is a legislative reflection of this principle, allowing consideration of misconduct that "arbitrarily or unreasonably causes, prolongs or aggravates the need for spousal support ") Application [89] I am satisfied that the termination of this marriage has

caused economic hardship to Ms. Vidican, even in light of the meaningful separation of the spouses' finances during it, by depriving her of the ability to pool resources to achieve a higher standard of living, both in terms of day to day living and acquisition of property, than would otherwise have been available to her. This goes well beyond the simple disparity in incomes between her and Mr. Dinu. It is the loss of the critical economic benefit to her of the joint enterprise of the marriage. The reduced circumstances that she now lives in are a graphic illustration of that loss in action. [90] Both on the question of economic hardship and her future self-sufficiency, I reject the suggestion that she has artificially suppressed her income for the purposes of this litigation, or that she is under-employed relative to better-paying positions that are reasonably available to her. I would not impute a higher income to her in either analysis. [91] The lack of medical evidence prevents me from attributing any specific level of disability to her, but in general I accept her evidence that she suffers from serious ongoing back problems, and indeed Mr. Dinu did not suggest otherwise. I also accept her evidence about how those problems reduce her ability to perform the current physical requirements of her job, and about the company's less favourable situation in recent years, which has

restricted the availability of overtime. [92] Mr. Dinu's lack of support for Ms. Vidican's fertility treatments prevents them from being considered as a sacrifice by her, comparable to child rearing for example, for the purposes of compensatory support. Despite this, I accept that it was a legitimate personal objective that preoccupied her emotionally for several years, and which prevented her from focusing solely on career advancement, as it appears Mr. Dinu did. [93] More generally, I cannot find that the amount of professional training she has taken since coming to Canada or her efforts to advance to an engineering position within the company represent any sort of complacency on her part about her earning ability. At end of the day, I think that she is just not as focused or ambitious as Mr. Dinu in this aspect of her life, and his accomplishments are not a proxy for what is reasonable to expect from her career-wise. The evidence fails to demonstrate that there are better-paying jobs available to her with her current qualifications, or that the time and expense required for her to upgrade to be competitive for a higher-level position would be realistic in her personal circumstances in the short term. [94] Accordingly, I find that Ms. Vidican is entitled to needs-based spousal support. In reaching this conclusion I am not relying on the incidents of family violence that she

described, which I am satisfied occurred. While all such conduct is inherently serious, I was not able to identify a clear link between Mr. Dinu's actions towards her and Ms. Vidican's ability to earn income and requirement for support. [95] She seeks mid-range support according to the Spousal Support Advisory Guidelines on an indefinite basis, with the alternative of an order for a transitional period, effective as of the date of separation. [96] On the current evidence it is not possible to determine exactly when pre-marriage co-habitation began, given Mr. Dinu's frequent departures during that period. My general preference for Ms. Vidican's evidence does not assist, since these ongoing departures appeared to have undermined her view of the viability of the relationship, even after the marriage. I think the only reliable date is the actual marriage date of February 1, 2003, which is slightly more than 14 years from the date of separation, rather than the 15 years used in counsel's SSAG calculations. [97] In addition, it is important to note that the "Rule of 65" (the recipient spouse's age plus the years of co-habitation) that leads to an indefinite duration of support under the SSAGs refers to the recipient's age at separation: Domirti v Domirti, 2010 BCSC 472 at para.

43. Ms. Vidican's counsel calculated duration based on that rule, when in fact the total of the age at separation (49) and years of marriage (1) is 63, slightly below the threshold for the application of the rule. [98] Given the amount of time that has elapsed since the Notice of Family Claim was filed, the length of the marriage and the fairly extensive efforts that Ms. Vidican will have to undergo to increase her earning capacity to a point where her standard of living will not be compromised by the loss of a domestic joint venture, I conclude that an additional period of five years of support from the date of this order is appropriate. [99] The order will be effective on the date that the NOFC was filed - May 17, 2017. It cannot be said that Mr. Dinu was in any uncertainty about his potential obligations from that point, and Ms. Vidican had an acute need for support as soon as she left the family residence. As it was expressed in Kerr v. Baranow, [2011] 1 S.C.R. 269 at paras. 210 -211: [210] Commencement of proceedings provided clear notice to the payor that support was being claimed and permitted some planning for the eventuality that it was ordered. There is thus little concern about certainty of the payor's obligations [211] While in my view, the decision to order support for a period before the date of the order should be the product of the exercise of judicial

discretion in light of the particular circumstances, the fact that the order is sought effective from the commencement of proceedings will often be a significant factor in how the relevant considerations are weighed. [100] As to the range of support, none of the examples of factors supporting lower or higher-range support under the SSAGs (the depth of the recipient's need, the payor's limited ability to pay, the need to provide work incentives for either party, or unusually large or small property division amounts) that are provided in Professors Rogerson and Thompson's Spousal Support Advisory Guidelines: The Revised User's Guide (2016: Department of Justice Canada) seem to be present here, so the award will be in the mid-range. Resulting Orders [101] The parties will be divorced from each other on the 31st day following the date of this order. [102] The following family property will be equally divided: · The family residence at 7230 Boundary Road, Burnaby, British Columbia; · The portions of Ms. Vidican's two RRSPs representing contributions by her or on her behalf made between February 1, 2003 and May 5, 2017; · Mr. Dinu's Government of Canada pension between the date that he began contributing to it and May 5, 2017; · The parties' respective CPP credits between February 1, 2003 and May 5, 2017; · The amounts of $55,427 in Mr. Dinu's Tax Free Savings Account and $11,494 in

a TD Canada Trust, representing amounts that he accumulated in those accounts before May 5, 2017. [103] The following family debt will be equally divided: · The mortgage on the family residence; · Payments on the mortgage on the family residence from the date of separation; · Property taxes for the family residence from 2017 onwards, and insurance and utilities for it from 2018 onwards; and · The $6200 charged to Mr. Dinu for empty-envelope withdrawals on the parties' mortgage account. [104] Ms. Vidican may set off against her share of the family debt the amounts she has paid in rent, mandatory fees associated with renting, and utilities that are not included in the rent from May 5, 2017. She may set off a further amount of $3000 to reflect her moving costs and the cost of replacing essential household items, given the minimal furniture and household goods that she retained following separation. [105] On November 30, 2018 I made an order that the family residence be listed for sale, with the parties having joint conduct of sale. If that sale has not yet been carried out, the property is to be relisted for sale immediately, again with joint conduct of sale (but with liberty to either party to apply for sole conduct if any difficulties develop). [106] Mr. Dinu may purchase Ms. Vidican's interest in the family residence by obtaining a current appraisal from an appraiser approved

by Ms. Vidican's counsel and then paying Ms. Vidican one half of the value established by the appraisal, after the amount outstanding on the mortgage has been deducted. Such a purchase, if it is to be carried out, must be completed within 90 days of this order. [107] The funds in Ms. Vidican's tax-free savings account as of the date of separation and her vehicle are excluded property, having been derived from the portion of a personal injury settlement received before separation that did not relate to income loss. [108] Effective May 17, 2017 Mr. Dinu will pay Ms. Vidican monthly spousal support in the mid-range amount established by the Spousal Support Advisory Guidelines, for his income of $95,572 per year and her income of $46, 613 per year. The duration of support will be five years from the date of this order. [109] Each year, the parties will exchange copies of their tax returns as soon as they are filed and of their notices of assessment as soon as they are received [110] Ms. Vidican's counsel may perform the calculations needed to give effect to these orders and provide them to Mr. Dinu for his agreement. There can be a reference to the Registrar to determine any of the various amounts if the parties are unable to agree with respect to them. [111] Ms. Vidican has had substantial success in this trial and, subject to any further submissions on costs that either party may wish to make, she will receive her costs of this trial at the ordinary scale of difficulty. "Schultes J. "