Villeneuve v. Agnew

2021 BCSC 62 Villeneuve v. Agnew

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Villeneuve v. Agnew, 2021 BCSC 62 Date: 20210115 Docket: E052329 Registry: New Westminster Between: Sarah Villeneuve Claimant And Jesse Agnew and Agnes Guss Respondents Before: The Honourable Madam Justice Forth Reasons for Judgment The Claimant, appearing in person, via teleconference: S. Villeneuve Counsel for the Respondent Jesse Agnew, via teleconference: A. Huang Counsel for the Respondent Agnes Guss, via teleconference: C. Szafranski Place and Date of Hearing: New Westminster, B.C. October 21, 2020 Place and Date of Judgment: New Westminster, B.C. January 15, 2021 Table of Contents Introduction. 3 History of the Litigation. 3 Nature of the Application. 6 Position of the Parties. 9 Ms. Villeneuve's Position. 9 Mr. Agnew's Position. 11 Ms. Guss' Position. 11 Applicable Law.. 12 Analysis. 13 Nature of Claim against Respondents. 13 Specific Document Requests. 15 Parenting Time and Child Care Costs for Child K. 15 ICBC Settlement 15 Vehicles. 15 Bank Statements. 16 Pension Documents. 17 RRSPs. 18 Trailer 18 Steinbrunner Property. 19 Tax Returns. 21 Workers' Compensation File. 22 Payments to Children's Savings Accounts. 22 Employment Contract and Benefits. 22 Other Procedural Issues. 23 Conclusion. 23 Introduction [1] This is a family law proceeding in which the claimant, Sarah Villeneuve, seeks an interest in a house and

property, located at 733 Steinbrunner Road, Gibsons, BC, (the "Steinbrunner Property") that is solely registered in the name of the respondent, Agnes Guss. Ms. Guss is the mother of the respondent, Jesse Agnew. Mr. Agnew and Ms. Villeneuve were involved in a common law relationship from approximately November 2008 to January 2016. They had twin boys born in December 2010 (the "Children"). [2] The Steinbrunner Property was created in 2014 when Ms. Guss subdivided a property located at 732 Hillcrest Road, Gibsons, BC (the "Hillcrest Property"). The Hillcrest Property was purchased in 1988 and registered in her sole name. A house was built on the Steinbrunner Property and completed in December 2014 (the "Steinbrunner Home"). Ms. Villeneuve and Mr. Agnew, and their two children, resided in the Steinbrunner Home from approximately November 2014 until their separation in January 2016. [3] At issue in the claim is whether Ms. Villeneuve has any beneficial interest in the Steinbrunner Property or Home and whether Ms. Guss held the Steinbrunner Property or Home in trust for Ms. Villeneuve and Mr. Agnew. [4] In this application Ms. Villeneuve seeks additional documents from Mr. Agnew and Ms. Guss. I have granted some of her requests for the reasons that follow. History of the Litigation [5] Prior to this proceeding being commenced, it appears the parties were involved in a provincial

court proceeding out of the Sechelt Registry, Action No. 162447 (the "Provincial Court proceeding"). It is not clear to me what claims were advanced in the Provincial Court proceeding. [6] On January 4, 2017, Ms. Villeneuve commenced these proceedings. Ms. Villeneuve claims an interest in all trust assets or assets in which Mr. Agnew has a beneficial interest. She claims that the Steinbrunner Property is family property within the meaning of the Family Law Act, S.B.C. 2011, c. 25 [Act]. She also claims directly against Ms. Guss, claiming that Ms. Guss holds the property in trust for her and for Mr. Agnew. She further advanced a claim for spousal support. [7] On February 13, 2017, Mr. Agnew swore a financial statement in the Provincial Court proceeding ("2017 Financial Statement"). [8] On April 10, 2017, Ms. Guss filed a response to family claim denying that she held the property in trust for Mr. Agnew. [9] On the same day, Ms. Guss filed a notice of application seeking to have the claim against her dismissed and the certificate of pending litigation ("CPL") cancelled (the "Summary Trial"). [10] On April 17, 2017, Ms. Guss was granted an exemption to the requirement of a judicial case conference prior to serving Summary Trial materials. There has been no judicial case conference held in this proceeding. [11] On May 1, 2017, Mr. Agnew filed a response to family claim and a

counterclaim. In the response to family claim, Mr. Agnew denied that Ms. Guss held any property in trust for him or the claimant. In the counterclaim, he sought an equal division of family property and family debt. The family debt includes monies borrowed from Ms. Guss with an approximate balance of $46,000. [12] In June 2017, correspondence was exchanged between Ms. Villeneuve and Mr. Agnew's then counsel respecting the production of Mr. Agnew's financial statement and a list of documents. Counsel for Mr. Agnew advised that the documents would be provided by June 23, 2017. [13] The Summary Trial was heard in August, September, and November 2017 before Justice Verhoeven. He gave reasons on April 6, 2018, which are indexed at 2018 BCSC 546. At the time of the Summary Trial the parties had not exchanged form F8 financial statements and there had been no discovery of documents. The Summary Trial was dismissed. [14] In 2018, the parties were engaged in some settlement negotiations. Ms. Villeneuve has attached to her affidavit #6 sworn October 3, 2020 a settlement offer made by Mr. Agnew. I did not review this document as settlement offers are confidential. [15] On November 14, 2018, Ms. Villeneuve filed a notice of intention to proceed. [16] On December 19, 2019, Ms. Villeneuve filed her form F8 financial statement which was sworn on November 13, 2019. [17] On June 21, 2019, a

further request was made by Ms. Villeneuve seeking production of documents. [18] On July 30, 2019, Ms. Guss delivered her list of documents. [19] On February 15, 2020, Ms. Villeneuve delivered a list of documents dated February 13, 2020. [20] On June 19, 2020, Ms. Villeneuve attempted to file a notice of intention to proceed. She experienced difficulties but it was ultimately filed on August 17, 2020. [21] On June 30, 2020, Ms. Villeneuve wrote to the respondents making requests for documents. [22] On August 24, 2020, Ms. Guss provided to Ms. Villeneuve her income tax returns for the tax years 2017, 2018, and 2019, and account transaction histories showing Ms. Guss' mortgage payments from April 2015 to April 2020. [23] On September 8, 2020, Mr. Agnew swore his form F8 financial statement in this proceeding ("2020 Financial Statement"). [24] On October 13, 2020, Mr. Agnew served his list of documents dated October 12, 2020. Nature of the Application [25] Ms. Villeneuve filed a notice of application on August 6, 2020 (the "NOA"). It is addressed to the respondents but also to twelve third parties. Paragraphs 5 through 17 sought specific relief against the twelve third parties. Ms. Villeneuve confirmed at the commencement of the hearing that she had not served any of the third parties with the NOA and the supporting affidavits. As a result I ordered paras. 5 through 17 of the NOA

adjourned generally. [26] At para. 1, Ms. Villeneuve seeks an order that Mr. Agnew provide a form 8 financial statement and the required attachments. This order was not needed since the 2020 Financial Statement has been filed and served. Paragraph 1 of the NOA is dismissed. [27] At para. 3r, Ms. Villeneuve seeks an order that ICBC produce a name search for all vehicles registered in Mr. Agnew's name between 2008 and 2016. Since this is a request to ICBC it is not appropriate for me to rule on this request without notice being given to ICBC. As such, para. 3r is adjourned generally. I will have some further comments to make respecting the nature of Ms. Villeneuve's requests for documents from third parties. [28] In para. 4 of the NOA the third and fourth requests are misidentified. For clarity I will reference the third request as 4c and the fourth request as 4d. [29] The application sought production from Mr. Agnew and Ms. Guss of a wide range of documents. The documents can be described as generally fitting into the following groups: a. Pension documents received by Mr. Agnew from Pacific Blue Cross (para. 3a); b. All bank statements for accounts held by Mr. Agnew from October 2007 to present for all RRSPs, accounts, and any other investments (para. 3b) and from Ms. Guss from November 1, 2007 to present (para. 4a); c. All personal tax returns of Mr. Agnew from November 1, 2008

to present (para. 3c) and from Ms. Guss from 2007 to present (paras. 4b and 4h) including all schedules; d. Relating to vehicles: i. Documents relating to the purchase of a Dodge Caravan by Mr. Agnew (para. 3d); ii. Documents relating to the sale and purchase of a KIA vehicle by Mr. Agnew in 2012 (para. 3g); iii. Transfer tax form and proof of sale of a 2007 Dodge Caliber by Mr. Agnew from Ms. Villeneuve (para. 3v); and iv. Transfer papers and proof of sale of a 1998 Plymouth Breeze (para. 3y). e. Mr. Agnew's credit card limit in 2012 (para. 3e); f. Visa Card statement for Mr. Agnew for 2012 showing a $25,000 payment (para. 3f); g. All documents relating to the settlement of Mr. Agnew's personal injury action by ICBC (the "ICBC settlement") (paras. 2 and 3h); h. Workers' Compensation file respecting Mr. Agnew from 2008 to present (para. 3i); i. Mr. Agnew's employment contract and the benefits he receives from his employment (para. 3j); j. Documents verifying the amount of contributions made to each child's savings account (para. 3k); k. Document proving Mr. Agnew is a licensed general contractor (para. 3l); l. Relating to the Steinbrunner Home: i. Rental agreement and BC Tenancy Agreement signed by Ms. Villeneuve in 2014 for the Steinbrunner Home (paras. 3m and 4c); ii. Rent receipts and proof of all rent paid, including bank statements, to Ms. Guss (paras. 3n and 4d); iii.

Invoices for light fixtures for the Steinbrunner Home (para. 3p); iv. Tenant insurance on the Steinbrunner Home (para. 3s); v. Bank statements showing the payment of property taxes, insurance, and utilities for the Steinbrunner Home for the period of 2014 to present (para. 4e); vi. Mortgage application made by Ms. Guss and Mr. Agnew to finance the construction mortgage, all mortgage statements, and bank statements showing the payments made by Ms. Guss from 2013 to present (para. 4f). m. Relating to a trailer identified as the "1416, unit 17 North Rd trailer" (the "trailer") including: i. Transfer documents showing the transfer of the trailer from Mr. Agnew to Ms. Guss, bank statements relating to the sale of the trailer, and relating to the transfer of funds from Mr. Agnew to Ms. Guss (paras. 3o and 4g); ii. Rent pad receipts for the trailer from 2007 to 2014 (para. 3q); iii. Municipal property taxes for the period 2007 to 2014 respecting the trailer (paras. 3t and 3z) and property taxes from the time Ms. Guss owned the trailer to 2007 (para. 4i); iv. BC Assessment Roll Report for the period of 2017 (paras. 3u and 4k); v. Invoices for all renovations to the trailer between 2007 and 2017 (para. 3w); vi. Bank statements and receipts between 2007 and 2014 on the trailer (para. 3z); vii. Appraisal report on the trailer from 2006 showing comparable and conclusion (para. 4j);

and viii. A list of all renovations, receipts, invoices, and bank statements reflecting the renovations that Ms. Guss made to the trailer during the time she owned it (paras. 4l and 4m). n. Copies of Mr. Agnew's parenting time and child support costs for Child K, a child of Mr. Agnew's prior relationship, from 2008 to present (para. 3x); and o. Bank statements and receipts showing any and all debts paid to Ms. Guss between 2007 to present (para. 3aa). Position of the Parties Ms. Villeneuve's Position [30] Ms. Villeneuve says that documents relating to the ICBC settlement are needed to confirm the total amount of the settlement and how much was included for lost wages. She claims that Mr. Agnew told her that $40,000 of the $80,000 settlement was used as a down payment for the Steinbrunner Home. [31] Ms. Villeneuve asserts that particulars of Mr. Agnew's parenting time and expenses relating to Child K is relevant to provide "clarity" on Mr. Agnew's claims that he "is the breadwinner of 5". [32] She argues that all the bank statements for Mr. Agnew and Ms. Guss are relevant to show what debts were repaid to Ms. Guss and what loans were made by Ms. Guss. She claims the statements are needed to better understand the finances, including the payment for renovations on the trailer, whether rent was paid, and to verify why Mr. Agnew needed to withdraw money from his RRSP in 2016. [33]

She requests the documents respecting the trailer to show how much was spent on renovations and payments of pad rent, in order to determine if there was a need to borrow money from Ms. Guss and to run up Mr. Agnew's line of credit. In addition, the BC Assessment Roll Report for the trailer shows a cash sale for $30,000 in October 2007, the year that the trailer was allegedly purchased for $80,000 by Mr. Agnew. [34] The documents requested respecting the Steinbrunner Property include the documents relating to the construction mortgage obtained. Ms. Villeneuve says these are relevant to show that Mr. Agnew was making more than enough money to afford the mortgage. She further claims that the documents relating to tenant/owner insurance will determine if Mr. Agnew's conflicting statements are true. She asserts that in the 2017 Financial Statement he claimed he paid $650 for tenant/owner insurance but he now claims he paid no insurance. [35] Ms. Villeneuve claims that the personal tax returns of Ms. Guss are relevant to see if she declared a capital gains on her taxes for the sale of the trailer, and if so, the amount of that capital gain. Ms. Villeneuve claims this will help her determine whether Mr. Agnew purchased the trailer for $80,000 as he claims. The personal tax returns for Mr. Agnew are relevant in order to determine what income he earned. [36] She argues that all

documents relating to the Kia, Dodge Caliber, Dodge Caravan, and Plymouth vehicles are relevant since credibility is important and because Mr. Agnew claims that he used some of the ICBC settlement monies to purchase the vehicles. She further argues that this information is relevant to the division of property. It will help trace back the money that Mr. Agnew told her was for the deposit for the Steinbrunner Home. Mr. Agnew's Position [37] Mr. Agnew's position is that many of the document requests are overly broad, some are not relevant, some of the documents sought do not exist, or are not obtainable by him. I will incorporate his specific concerns for the production of particular documents in my analysis. [38] Mr. Agnew advised that if any document requests are granted he seeks that he be provided at least 90 days to respond since he suffered a mild traumatic brain injury in May 2020 which affects his concentration, memory, and energy. [39] The ICBC settlement was for approximately $80,000. Mr. Agnew says that those funds were used to pay off credit card debt, purchase two vehicles, a Kia and a Dodge Caravan, and for living expenses. He asserts that any documentation respecting the settlement is not relevant since all the money was used to cover daily living expenses, purchase vehicles, and pay debt. Ms. Guss' Position [40] Ms. Guss' position is that many of the requests are

overly broad and not relevant. She points out that she is not the claimant's spouse and the claimant has not made a division of property claim against her pursuant to Part 5 of the Act. [41] She does not dispute the relevance of documents detailing who paid for what with respect to the subdivision of the Hillcrest Property and the home building on the Steinbrunner Property. [42] She takes the position that the majority of the documents requested are for Mr. Agnew to produce. [43] She is currently working to provide a supplementary list with further documents relating to the Steinbrunner Property in her possession and control. Applicable Law [44] Rule 9-1 of the Supreme Court Family Rules [Rules] requires a party to list any documents that are or have been in the party's possession or control that could, if available, be used by any party at trial to prove or disprove a material fact. The Rules have incorporated the concept of proportionality, and a party needs to satisfy the court that any additional documents requested by that party should be produced: Kaladjian v. Jose, 2012 BCSC 357 at para. 46. [45] Rule 9-1 of the Rules sets out a process to be followed if a party believes that documents, or a class of documents, are lacking in the list of documents from the other parties. A party who receives a demand for documents has 35 days to reply. If the demanded documents are not

produced then the demanding party may apply for an order for their production. [46] The demands made cannot be overly broad or in vague terms: Lit v. Hare, 2012 BCSC 1918 at para. 68. [47] I find the statement made by Justice Perell in Boyd v. Fields, [2007] W.D.F.L. 2449, 2006 CarswellOnt 8675 at para. 12 helpful in delineating the limit on a party's disclosure: Full and frank disclosure is a fundamental tenet of the Family Law Rules. However, there is also an element of proportionally, common sense and fairness built into these rules. A party's understandable aspiration for the outmost disclosure is not the standard. Fairness and some degree of genuine relevance, which is the ability of the evidence to contribute to the fact finding process are factors. I also observe that just as non-disclosure can be harmful to a fair trial, so can excessive disclosure be harmful because it can confuse, mislead or distract the trier of fact's attention from the main issues and unduly occupy the trier of fact's time and ultimately impair a fair trial. [48] The burden of producing the documents in terms of time, cost, and effort needs to be balanced against the materiality and probative value of those documents: Marsh Canada Limited v. BFL Canada Insurance Services Inc., 2014 BCSC 1171 at para. 67. [49] Justice Rogers summarized this balancing exercise in Chernyakhovsky v. Chernyakhovsky, 137

A.C.W.S. (3d) 988, [2005] CarswellOnt 942 at para. 8: The courts must, however, be clear that the disclosure process cannot be used to cause delay or to reap tactical advantage. The court must consider the burden certain disclosure requests bring for the disclosing party. Is the probative value of the sought-after disclosure so great in relation to the difficulty of obtaining the disclosure that said disclosure would be ordered and sanctions imposed for failure to comply? How does the disclosure request fit into the overall context of the case? Is the issue for which disclosure is requested a central issue in the case? Or is it peripheral? Does the cost of obtaining the disclosure outweigh the value of the issue in the case? Is there a more expeditious and cheaper way of getting the same information? As the case develops, is the disclosure still related to an important issue in the case? As always, the court must balance these competing interests to ensure fairness. Analysis Nature of Claim against Respondents [50] The pleadings are important since their purpose is to define the issues, give the opposing parties notice of the case they have to meet, and to provide the "boundaries and the context for effective pre-trial case management, the extent of disclosure required, as well as the parameters or necessity of expert opinions": Keene v. British Columbia (Ministry of Children and Family Development), 2003 BCSC 1544 at para.

27. The pleadings continue to govern the determination of issues of relevance in relation to the discovery obligations of parties: Kaladjian at para.

61. The pleadings in this proceeding raise the following issues: a. Who paid for the cost of subdividing the Hillcrest Property and the construction of the Steinbrunner Home? b. Was rent or the mortgage paid by Ms. Villeneuve and Mr. Agnew during their occupation of the Steinbrunner Home? c. Who paid property taxes, insurance, utilities, and maintenance of the Steinbrunner Home? d. What contributions did Ms. Villeneuve and Mr. Agnew make to the construction and maintenance of the Steinbrunner Home? e. What are the family debts? f. What is the history of repayment of the family debts? g. What is the current family debt owned by Mr. Agnew to Ms. Guss? h. Does Ms. Villeneuve have a claim for spousal support, and if so, for what amount and time period? i. What are the financial family assets, including bank accounts and RRSP accounts? [51] Documents in the possession or control of the parties that are relevant to the above issues should be produced. As already noted, Ms. Guss continues to compile relevant documents with respect to the Steinbrunner Property that are in her possession or control. She served her list of documents on July 30, 2019, but is preparing a supplementary list. [52] Mr. Agnew served his list of documents on October 13, 2020. [53] I am of the view that a deadline should be imposed on Mr. Agnew and Ms. Guss for production of a supplementary list of documents.

Taking into consideration Mr. Agnew's health issues, I order the production of the supplementary lists of documents by April 15, 2021. [54] I point out that under Form F20 of the Rules, a party is to list documents that are or have been in the listing party's possession or control. Form F20 has a column that states "Indicate by a check mark if the document is no longer in the listing party's possession or control". This column is missing from the list of documents of Mr. Agnew and should be included. The parties should comply with this requirement. Specific Document Requests Parenting Time and Child Care Costs for Child K [55] There is no relevance to the request for documents setting out Mr. Agnew's parenting time or child support costs for Child K. Paragraph 3x of the NOA is dismissed. ICBC Settlement [56] If Mr. Agnew is in possession of documents that confirm the amount of the ICBC settlement he received those documents should be produced. In my view, Mr. Agnew's use of the ICBC settlement funds is relevant and any documents showing how those funds were used are relevant. If he had documents but they are no longer in his possession or control he should comply with the requirement to indicate that they are no longer in his possession or control on his list of documents. [57] The settlement may have been broken down between the various claims advanced in the personal injury

action, or it may not. If Mr. Agnew has a document showing the breakdown of the settlement funds he should produce it. [58] Mr. Agnew claims that he used some of the ICBC settlement funds to purchase a new Kia and a used Dodge Caravan. Although these documents are relevant, Mr. Agnew states that he does not have the documents respecting the Dodge Caravan and the Kia. I see no purpose in ordering the production of documents that Mr. Agnew does not possess. Paras. 3d and 3g of the NOA are dismissed. If Mr. Agnew did have possession or control of these documents, but no longer has them, he should comply with the requirement to indicate they are no longer in his possession or control on his list of documents. Vehicles [59] I have already dealt with the documents respecting the Kia and Dodge Caravan. Ms. Villeneuve also seeks production of the transfer tax form and proof of sale for a 2007 Dodge Caliber and a 1998 Plymouth Breeze. It is not clear to me that these vehicles have any relevance to the issues in this proceeding. I do note that Mr. Agnew has produced a copy of the motor vehicle transfer for the 2007 Dodge Caliber on his list of documents. Paragraphs 3v and 3y of the NOA are dismissed. Bank Statements [60] Ms. Villeneuve wants all bank statements from both respondents from 2007 to present. Mr. Agnew advised that he has produced bank statements back to 2013 which is as far

back as they can be produced, being seven years. [61] Mr. Agnew advises that he does not have any bank accounts with the Bank of Montreal. As such no order should be granted for production of bank statements from that financial institution. [62] Mr. Agnew has advised that he had accounts at the Sunshine Coast Credit Union ("SCCU") and the Royal Bank. He attaches to his affidavit #4 a current statement from his SCCU and RBC accounts from January 2016 and more currently as of July 31 and August 24, 2020. He advises he does not have a statement from the USD account with Royal Bank but the current balance is $155.87. [63] I am not convinced that an order should be made that Mr. Agnew and Ms. Guss produce all of their bank statements for a period of almost 13 years. This is an overly broad request. The net has been cast too broadly. Ms. Villeneuve has to be more direct when making such requests. I agree that the balance of Mr. Agnew's bank accounts at the time of separation is relevant to determining the value of family assets. He has now produced that information. Ms. Villeneuve, in her oral submissions, explained that the bank statements would support whether the $971 was coming out in the middle of the month, which would support that it was not a rental payment since rent is paid at the beginning of each month. I am not convinced that rents are only paid at the beginning of each

month. The date for payment of rent would be negotiated between the parties. Paras. 3a and 4a of the NOA are dismissed. I will give leave to Ms. Villeneuve to seek production of some further bank statements if she is able to establish their particular relevance to the claims advanced in the pleadings, and to narrow the request appropriately. [64] I do see some relevance in the line of credit statement to show when Mr. Agnew allegedly paid off the $25,000. He claims he used a portion of the ICBC settlement to do so. I also see some potential relevance to the credit limit that Mr. Agnew had in 2012. Mr. Agnew advised that he does not have these documents and that he cannot get copies since his credit card company can only produce documents back to 2013. Since he does not have these documents and cannot obtain them there is no purpose in making the production order sought. Paras. 3e and 3f of the NOA are dismissed. If Mr. Agnew had possession or control of these documents he should indicate that these documents are no longer in his possession or control. Pension Documents [65] Mr. Agnew acknowledges that Ms. Villeneuve is entitled to half of his pension that accrued during the length of the relationship. He attaches to his affidavit #4, sworn September 8, 2020, a copy of a letter from the Municipal Pension Plan dated February 18, 2019, which should be 2020, and a printout titled

"Person Profile", which shows the information on file for Mr. Agnew's participation in the pension plan on an annual basis. As the letter indicates, all that is needed to carry out the pension division under Part 6 of the Act is a signed separation agreement or court order that indicates the pension entitlement. I am not convinced that any further documentation is needed relating the pension plan. Ms. Villeneuve sought production of documents relating to the "Pacific Blue Cross Pension". It is not clear to me what pension plan that is. According to the evidence before me, the pension plan that Mr. Agnew has is the Municipal Pension Plan. He confirms this in his 2020 Financial Statement. It appears that Ms. Villeneuve is aware of this, since on May 23, 2019, she sent to the Municipal Pension Plan a Form P1: Claim and Request for Information and Notice. During her oral submissions Ms. Villeneuve advised that she now has this information. Para. 3a of the NOA is dismissed. RRSPs [66] Ms. Villeneuve requests information regarding RRSPs that Mr. Agnew has. Mr. Agnew's 2020 Financial Statement discloses an RRSP with Sun Life Financial. He states that he cashed out and closed this RRSP in 2016 shortly after the separation. He states that the parties did not have any other RRSPs. A letter from Sun Life Financial confirms the account value at $3,500.01 as of January 6, 2016. There is no

evidence before me that supports that Mr. Agnew had any other RRSP accounts. As such, para. 3b of the NOA, which seeks production of all accounts for RRSPs from October 2007 to present, is dismissed. Trailer [67] I am not convinced that documents relating to the pad rental need to be produced. It is clear that during the period of time the couple lived in the trailer the pad rental would have been paid. The evidence supports that the pad rent was paid monthly and Mr. Agnew states that he does not have copies of cancelled cheques or receipts. Paragraph 3q of the NOA is dismissed. [68] It appears that there were some renovations done to the trailer during the time the parties resided in it. I am not convinced all the receipts and invoices relating to the renovations to the trailer are relevant, or that they should be produced by either Ms. Guss or Mr. Agnew. Paragraphs 3w, 4l, and 4m are dismissed. [69] Ms. Villeneuve seeks production from Mr. Agnew and Ms. Guss of records of the payment of Municipal Property taxes for the trailer, bank statements, and receipts. She submits that the municipal property taxes will show the value of the trailer at $30,000. As noted below, she has obtained the BC Assessment Roll Report respecting the trailer. I have already ruled that receipts relating to the renovations to the trailer need not be produced. It is not clear what bank statements

respecting the trailer are being requested. I note that the trailer was sold in 2014. I am not convinced that any such documents are relevant. Paragraphs 3t, 3z, and 4i of the NOA are dismissed. [70] Ms. Villeneuve seeks production of the BC Assessment Roll Report for the trailer. She attaches to her affidavit #6 the Assessment Roll Report dated September 18, 2020 for the trailer. There is no need for an order when the document is already in the possession of the claimant. Paragraphs 3u and 4k of the NOA are dismissed. [71] Mr. Agnew says that he does not have in his possession any documents relating to the transfer of the trailer to him by his mother in 2007. Since it occurred about 13 years ago, that is understandable. That said, the amount paid for the trailer is an issue since it is part of the debt that Mr. Agnew says is owed to Ms. Guss. Any documents relating to the transfer are relevant. I will make the order to ensure that both Mr. Agnew and Ms. Guss have carried out a diligent search. Paragraphs 3o and 4g of the NOA are granted. If Mr. Agnew or Ms. Guss no longer have possession or control of these documents then they should indicate so. [72] Ms. Villeneuve seeks from Ms. Guss a complete copy of the appraisal report on the trailer from 2006. A letter dated December 15, 2006 from M.J.C. (Mike) Shanks, Appraisal Consultant, of Sechelt Real Estate Appraisal Services has

been produced on the list of documents of Ms. Guss. The letter states the appraisal was being done for "mortgage purposes". There is no evidence that supports that Ms. Guss is in possession of anything further from Mr. Shanks. Paragraph 4j of the NOA is dismissed. Steinbrunner Property [73] Ms. Villeneuve seeks the production of a rental agreement that she signed in 2014. She confirmed during the hearing that she did not sign any rental agreement. There is no basis for an order for production of a non-existent document. Paragraphs 3m and 4c of the NOA are dismissed. [74] Ms. Villeneuve seeks from Ms. Guss copies of bank statements showing the payment of property taxes, insurance, and utilities for the Steinbrunner Home from 2014 to present. Ms. Guss deposes that she has paid property taxes, property insurance, and municipal utilities on the Steinbrunner Property since subdivision. There is no evidence that disputes this evidence. I am not convinced that Ms. Guss is obliged to produce bank statements to prove these payments. Paragraph 4e of the NOA is dismissed. [75] Ms. Villeneuve seeks production of documents respecting the mortgage on the Steinbrunner Property and rent paid. The evidence of the respondents is that the mortgage payments were made by Ms. Guss with rent being paid by Mr. Agnew and Ms. Villeneuve. According to Ms. Guss, the amount of "rent" was $1,250 a month,

paid by combination of $971 monthly in cash and the balance made up for completing the landscaping and deck on the Steinbrunner House. Ms. Guss has already produced a copy of the account transaction histories showing her mortgage payments from April 2015 to April 2020. Two key issues in this proceeding are who paid the mortgage and what "rent" was being paid while Ms. Villeneuve and Mr. Agnew occupied the Steinbrunner Home from the end of December 2014 to January 2016. Any bank statements showing that Mr. Agnew paid rent to Ms. Guss should be produced. The respondents are not required to obtain these bank statements but only to produce the documents they have in their possession. If Ms. Guss has in her possession any further documents relating to the mortgage she should produce them. Paragraphs 3n, 4d, and 4f of the NOA are granted but only for the period from December 2014 to January 2016. [76] Ms. Villeneuve seeks copies of invoices and receipts for the light fixtures in the Steinbrunner Home for the purpose of determining who paid for them. Mr. Agnew deposes that he provided cash to Ms. Villeneuve to purchase the light fixtures and he was then reimbursed by his mother out of the construction line of credit. If any parties are in possession of the receipts or invoices, including Ms. Villeneuve, then those invoices and receipts should be produced. Paragraph 3p of the NOA is

granted as against all parties. [77] Mr. Agnew explained that he assisted his mother in the construction of the Steinbrunner Home by acting as the "general contractor". He was the contact person for the trades' people. He does not have a general contractor's licence. Paragraph 3l of the NOA is dismissed. [78] Ms. Villeneuve seeks production of any tenant insurance that Mr. Agnew obtained for the Steinbrunner Home. She notes that in the 2017 Financial Statement he claimed $650 for annual expenses for owner's/tenant's insurance. Mr. Agnew states that he did not have tenant insurance for the Steinbrunner Home since the couple could not afford it. Based on that evidence, there is no reason to make an order for production. Paragraph 3s of the NOA is dismissed. Any inconsistency in Mr. Agnew's evidence respecting the payment of tenant's insurance can be canvassed at an examination for discovery, if one is scheduled. Tax Returns [79] Ms. Villeneuve seeks production of the tax returns, including schedules, from Mr. Agnew from 2008 to present and from Ms. Guss from 2007 to present. Mr. Agnew has attached to his 2020 Financial Statement copies of his income tax return information, either regular or the notice of assessment from 2008 to 2019. Ms. Villeneuve wants a complete copy of the tax returns, including schedules, on the basis that it will show rental payments made. It is not clear

to me on what basis rental income would be declared on an individual's personal tax returns. In my view the tax documents attached to the 2020 Financial Statement are sufficient. Mr. Agnew has deposed that he did not claim any capital gain or loss on his tax returns in relation to the trailer. Paragraph 3c of the NOA is dismissed. [80] Ms. Guss has provided copies of her income tax returns for 2017, 2018, and 2019. It is not clear to me if those copies included schedules. At issue is whether Ms. Guss was collecting rent for the Steinbrunner Property or whether Mr. Agnew and Ms. Villeneuve were paying the mortgage through Ms. Guss. I see the potential relevance of Ms. Guss' complete tax returns for 2015 and 2016, as that was the period that Ms. Villeneuve and Mr. Agnew were residing in the Steinbrunner Property. Paragraph 4b of the NOA is granted limited to the production of the 2015 and 2016 tax returns, including all schedules, of Ms. Guss. [81] Ms. Villeneuve seeks personal tax returns from Ms. Guss going back to 2007 to show the rental income she claimed on the trailer. Ms. Guss advised that she did not rent out the trailer. I see no relevance in this request. Paragraph 4h of the NOA is dismissed. Workers' Compensation File [82] It is not clear to me on what basis Ms. Villeneuve is seeking the production of Mr. Agnew's Workers' Compensation file from 2008 to present. She

says it is because he was off work as a result of the car accident for two years and was compensated not only through the ICBC settlement. The information I have regarding the car accident indicates it happened when Mr. Agnew was returning to his parked vehicle in the parking lot of the Gilligan's Pub. An accident of that nature would not trigger the payment of any workers' compensation. Mr. Agnew confirmed it was not a workplace accident in his submissions. I am not satisfied that production should be ordered. Paragraph 3i of the NOA is dismissed. Payments to Children's Savings Accounts [83] Mr. Agnew deposes that the Children have RESP accounts. He has produced a statement showing the Children's RESP account balances at the time of separation in January 2016 and currently in August 2020. Ms. Villeneuve stated in her oral submissions that some of the ICBC settlement went into the Children's saving accounts, and the statement would help her understand how the ICBC settlement monies were used. Mr. Agnew does not state that any of the $80,000 ICBC settlement went into the Children's RESPs but that the monies were used to cover expense, to pay debts, and to purchase two vehicles. [84] Mr. Agnew's list of documents lists as item 1.6.2 a Royal Bank Investment RESP statement of 152 pages, from April 1, 2014 to June 20, 2020. I am not convinced that any further disclosure needs to be

made. Paragraph 3k of the NOA is dismissed. Employment Contract and Benefits [85] Ms. Villeneuve advises that the reason for this request is that she is trying to understand Mr. Agnew's credibility respecting the 2017 Financial Statement. Credibility is not an appropriate basis for seeking the production of documents. The evidence supports that Mr. Agnew works for the Sunshine Coast Regional District and he has produced his most recent pay stubs, attached to his 2020 Financial Statement. I see no relevance in this request. Paragraph 3j of the NOA is dismissed. Other Procedural Issues [86] I have gone into some detail in these reasons with the hopes that this will influence whether Ms. Villeneuve proceeds with serving an application for production of documents from third parties. [87] Ms. Villeneuve appears to be under the impression that she must list all documents that are listed in the lists of documents of the other parties. That is not necessary. A party has to list documents that are in their possession or control. [88] She further states her understanding is that she "is only allowed to amend" her list of documents once. That is incorrect. A party can provide a list, a first supplementary list, a second supplementary list, and continuing if the party comes into possession or control of other relevant documents. The obligation to disclose is ongoing as provided for in R. 9-1(6) of the Rules. Conclusion [89] The following orders are made: 1. Ms. Guss is to deliver a supplementary list of documents by April 15, 2021.

2. Mr. Agnew is to deliver a supplementary list of documents by April 15, 2021.

3. The following paragraphs of the notice to application of the claimant dated August 6, 2020 are dismissed: paras. 1, 3a, 3b, 3c, 3d, 3e, 3f, 3g, 3i, 3j, 3k, 3l, 3m, 3q, 3s, 3t, 3u, 3v, 3w, 3x, 3y, 3z, 4a, 4c, 4e, 4h, 4i, 4j, 4k, 4l, and 4m.

4. The following paragraphs of the notice of application of the claimant dated August 6, 2020 are granted and the documents should be listed on the supplementary list of documents of Mr. Agnew or Ms. Guss by April 15, 2021: i. Paragraphs 2 and 3h are limited to documents in the possession of Mr. Agnew that confirm the amount of the ICBC settlement he received, the breakdown of the settlement, if any, and what use he made of the settlement proceeds. ii. Paragraphs 3n and 4d are limited to the time period from December 2014 to January 2016. iii. Paragraph 3aa is limited to all documents that support all debts owed to Ms. Guss and any payments made to reimburse those debts. iv. Paragraphs 3o and 4g, Mr. Agnew and Ms. Guss must produce any documents relating to the transfer of the trailer in their possession or control. v. Paragraph 3p, if any of the parties are in possession of receipts or invoices for the purchase of light fixtures for the Steinbrunner Property they should be produced. vi. Paragraph 4b is limited to the 2015 and 2016 tax returns, including schedules, for Ms. Guss. vii. Paragraph 4d is limited to proof of payment of rents in 2015 and 2016. viii. Paragraph 4e is granted limited to the time period from December 2014 to January 2016. Ms. Guss need only produce entries relating to the payment of property taxes, insurance, and utilities, and any other information can be redacted. ix. Paragraph 4f is limited to any bank statements from December 2014 to January 2016 and need only show the mortgage payments made.

5. The following paragraphs of the notice of application of the claimant dated August 6, 2020 are adjourned generally: paras. 3r and 5 - 15.

6. The respondents are entitled to make any redactions to any documents produced in compliance with this order for matters not relevant to the claims advanced in this proceeding.

7. If the respondents cannot locate any of the documents they should list in part 1 of their supplementary list of documents that they no longer have the documents in their possession or control. [90] The costs of this application will be in the cause, meaning which party is ultimately successful in this proceeding. [91] I request that counsel for Mr. Agnew draft the form of the order. Ms. Villeneuve's signature is dispensed with. The filed order should be served on Ms. Villeneuve. "Forth J."