Tracy Denean Duriez Claimant v. Daniel Paul Duriez, 2013 BCSC 1564

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Duriez v. Duriez, 2013 BCSC 1564 Date: 20130828 Docket: 21714 Registry: Fort St. John Between: Tracy Denean Duriez Claimant And Daniel Paul Duriez Respondent Before: The Honourable R. S. Tindale Reasons for Judgment In Chambers Counsel for the claimant: P.S. Boles Counsel for the respondent: A. Hutchinson Place and Date of Hearing: Prince George, B.C. August 23, 2013 Place and Date of Judgment: Fort St. John, B.C.

August 28, 2013 INTRODUCTION [ 1 ] This hearing involved cross-applications by the parties for the interim disposition of matrimonial property. [ 2 ] The respondent, by way of a notice of application filed July 16, 2013, seeks a number of orders including the sale of the former matrimonial home (the "Charlie Lake Farm"). [ 3 ] The respondent also seeks orders to sell all of the farm equipment, as well as livestock associated with a business venture of the parties that is operated from the Charlie Lake Farm.

The respondent also seeks an order that if the Charlie Lake Farm has not sold by August 31, 2013 it would be sold by way of an auction. [ 4 ] The claimant, by way of a notice of application filed August 2, 2013, seeks the sale of seven other pieces of vacant land which the parties own (the "Taylor properties"). [ 5 ] The claimant is opposed to the sale of the Charlie Lake Farm as she is currently residing there and wishes to retain that property once this litigation is complete. [ 6 ] The respondent is agreeable to selling three of the lots associated with the Taylor properties however he does not wish to sell the remaining four lots.

BACKGROUND [ 7 ] The parties were married in 1996 after living together in a common-law relationship since 1992. [ 8 ] There are no children of the relationship. [ 9 ] The respondent is employed as a superintendent with an energy company located in Fort St. John. The claimant spends her time operating what was once a joint business venture of the parties from the Charlie Lake Farm.

[ 10 ] The parties separated in November of 2012. [ 11 ] There is currently a trial date set for November, 2013. Examinations for discovery are currently set for August 26, 2013. [ 12 ] On July 5, 2013 the Honourable Mr. Justice Williams pronounced an order that the respondent pay to the claimant $3,000 per month in spousal support. This was based on a finding that the respondent’s base salary was $148,000 per year. There was also an order that the respondent pay $2,000 per month towards the mortgage and two lines of credit associated with the Charlie Lake Farm and the joint business venture.

Finally, the claimant was ordered to pay the day-to-day expenses of this joint business venture. POSITION OF THE PARTIES [ 13 ] The respondent argues that it is necessary to sell the Charlie Lake Farm as he cannot meet his current expenses based on the spousal support order made.

The respondent also argues that the Charlie Lake Farm joint venture is hemorrhaging money and the claimant cannot afford to operate the farm. [ 14 ] The respondent further argues that the claimant will not be able to afford to buy out the respondent’s interest in the Charlie Lake Farm and that she will not become self-sufficient if she keeps operating the joint business venture which, in the respondent’s view, is a losing operation. [ 15 ] The respondent also argues that the Taylor properties will be difficult to sell because of the lack of public road access to them and the fact that they are located on a flood plain.

The respondent wishes to keep four of the Taylor property lots for what I can only describe as sentimental reasons. He is willing to sell three of the Taylor property lots. [ 16 ] The claimant argues that the Taylor properties should be sold particularly if the respondent needs access to money because these are vacant lots which are unencumbered by any mortgages. [ 17 ] The claimant further argues that the Taylor properties should be sold because, in her view, the lots are worth in excess of $1 million.

If this is the case then there are clearly sufficient assets for the claimant to buy out the respondent’s interest in the Charlie Lake Farm. [ 18 ] The respondent argues that the Taylor properties are worth $341,000. This is based on a recent appraisal by Edwina Nearhood. Counsel for the respondent handed me this appraisal during the application. It was not attached to an affidavit nor does it comply with the Rules for expert evidence. The appraisal also clearly states that the timber and gravel pit potential have not been valued in the report.

I am giving no weight to this appraisal. [ 19 ] There are also two other appraisals for the Taylor properties. One from a real estate agent by the name of Lanna Tucker who values Taylor properties at $1,339,700. Another realtor by the name of Mike Ellerington values the Taylor properties at approximately $600,000. [ 20 ] The claimant in these proceedings is also seeking a reapportionment of the family property. DISCUSSION [ 21 ] This is clearly a very acrimonious matrimonial case. I question the respondent’s motives for bringing his application.

In particular, the respondent's argument for the sale of the Charlie Lake Farm is primarily based on the fact that he cannot afford to pay the amount of spousal support and his contribution towards the mortgage and lines of credit as ordered by Mr. Justice Williams in July of this year. In my view, the respondent’s application to sell the Charlie Lake Farm is really an effort to revisit the spousal support order. [ 22 ] Also, the respondent does not, for instance, make application to liquidate various RRSP’s in his name which have a value, based on his financial statement filed June 25, 2013, of over $250,000.

Finally, there is approximately $46,000 in cash that the respondent could have applied to have access to. [ 23 ] Neither of the parties can agree on the value or disposition of their personal belongings. [ 24 ] Neither of the parties can agree on the value of or which of the lots of the Taylor properties should be sold. [ 25 ] The recent decision of the British Columbia Court of Appeal in Tomic v. Tough , 2013 BCCA 355 , at para. 26 , states with regard to the interim disposition of matrimonial property: The criteria for an interlocutory order for sale of property are whether it is expedient and necessary.

Those words were described in Bodo as encompassing, in family law proceedings, a number of factors: the needs of the children; the availability of alternative accommodation; the emotional condition of the spouses; external economic factors; wasting of the asset; and the capacity of both parties to maintain the asset. [ 26 ] In my view it is not necessary or expedient to sell any of the properties at this point. In particular, there is insufficient evidence for me to conclude that the Charlie Lake Farm asset is wasting.

Also, as I have already commented, the respondent’s motive in bringing this application has more to do with ousting the claimant from her residence and defeating the spousal support order of Mr. Justice Williams than his ability to maintain that asset. [ 27 ] With regard to the Taylor properties, there is no agreement as to which lots should be sold and there is clearly a significant disagreement as to their value. It is not necessary or expedient to sell these properties at this time.

[ 28 ] Given the fact that the claimant is advancing a reapportionment argument and there is a significant disagreement as to the value of the Taylor properties as well as the claimant's ability to buy out the respondent’s interest in the Charlie Lake Farm, in my view both of the applications are premature and ill-suited for a chambers application. [ 29 ] The trial of this matter is currently set for November 2013. The trial judge would be in a better position to make a determination regarding property. CONCLUSION [ 30 ] I dismiss the respondent's notice of application filed July 16, 2013.

I also dismiss the claimant’s notice of application filed August 2, 2013. [ 31 ] The parties will bear their own costs of these applications. “R. S. Tindale, J.”