IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kooner v. Sangha, 2015 BCSC 1113 Date: 20150626 Docket: E045834 Registry: New Westminster Between: Ravinder Kaur Kooner aka Ravi Koonar Claimant And Darren Sangha Respondent Before: The Honourable Madam Justice Gray Reasons for Judgment Counsel for the Claimant: M. Guy Counsel for the Respondent: M. Brandon Place and Date of Trial/Hearing: New Westminster, B.C. December 15 - 18, 2014 and March 18, 2015 Place and Date of Judgment: New Westminster, B.C.

June 26, 2015 INTRODUCTION [ 1 ] The parties to this divorce proceeding were married on August 25, 2002, and separated about 11 ½ years later, on February 1, 2014. They have two children, who are both sons. I refer to the parties’ 10 year old son as “B” and their 8 year old son as “E”. The claimant wife and mother (“Wife”) is a teacher in a private school called Southridge and she is 42 years old. The respondent husband and father (“Husband”) is the operations manager of a car rental company, and he is 46 years old. [ 2 ] The parties resolved most of the issues relating to parenting before the trial.

The remaining parenting issues are how to make ongoing decisions for the children and whether the children should continue to attend Southridge, particularly in light of the cost. [ 3 ] The other issues at trial primarily relate to division of assets, and in particular, determination of what are the family assets and debts. Many of the issues relate to the parties’ financial dealings with their respective mothers and siblings.

For simplicity, I will refer to these extended family members by their first name. [ 4 ] This case was commenced after the coming into force of the Family Law Act , S.B.C. 2011, c. 25 [ FLA ], and is governed by that Act . [ 5 ] The Husband has a registered one-third interest in property ordinarily occupied by his mother, his sister Lesli, and Lesli’s adolescent son, which property I refer to as the “Delta House”. It is subject to a line of credit which I term the “Delta House LOC”.

The Wife’s position is that the Husband’s interest in the Delta House is a family asset of their marriage, but that as between the parties, the interest is not properly encumbered by the Delta House LOC because that is debt of Lesli’s.

The Wife’s position is that the Husband diverted $60,000 of the parties’ family funds by making monthly payments to Lesli over a ten-year period, and that the Wife should be compensated for this wasting of family assets. [ 6 ] At the outset of the trial, it appeared possible that the Husband would argue that the Wife had a beneficial interest in bank accounts which had been in the name of the Wife and another family member jointly.

However, the Husband did not pursue that argument. [ 7 ] Both parties wish to buy the other’s interest in the property the parties lived in before they separated (“Family Residence”). [ 8 ] The parties agree that their RRSPs should be equalized, and that the Wife should get credit for the funds she took from her RRSPs and contributed to the purchase price of the Family Residence. [ 9 ] The issues proceeded to a four-day trial. The parties appeared briefly on a fifth day to give evidence to establish grounds for divorce.

That evidence was not provided earlier because the parties had not been separated for a full year until February 1, 2015.

FACTS

a) Before Marriage [ 10 ] The Husband’s sister, Lesli, has been disabled from working since 1990. She suffers pain and other conditions affecting predominantly her neck and back. [ 11 ] Prior to the parties’ marriage, the Husband lived in the Delta House with his parents, his sister Lesli, and Lesli’s husband and son. The Delta House has six bedrooms and three bathrooms in about 2,850 square feet. Three bedrooms are on the main floor and three are in the basement. [ 12 ] The Husband had been involved in the purchase of the Delta House in 1994.

The Husband testified that he used every penny in his bank account to help with the down payment, and he thought he provided $4,500. On the first day that Lesli testified, her evidence was that the Husband covered the shortfall of about $4,000 to $5,000 for the purchase of the Delta House. On the next day, Lesli testified that she had reviewed some documents and concluded that the Husband wrote a cheque for $5,000 in connection with the purchase, but that she paid him back that amount through cash in her account and cash advances from her credit card and she was reimbursed for that by an uncle.

She did not provide the documents on which she based the change in her evidence. [ 13 ] The Delta House was registered in the names of four people each owning a 25% interest as joint tenants, being the Husband, his mother (“Harbans”), his sister Lesli, and Lesli’s husband. Title had been registered in this way in error. The title should have been registered so that ownership was one-third to the Husband, one-third to Harbans, and one-third to Lesli and her husband jointly. [ 14 ] The Wife is a teacher who started working for Southridge School in 1997. Southridge is an International Baccalaureate school.

It offers classes in kindergarten through grade 12, and has about 700 students. The Wife testified that it was ranked number one across B.C., although she did not explain who did the ranking or the basis of the ranking. Southridge offers small class sizes. Its program is strong academically and also in the areas of arts, athletics, leadership, and service. [ 15 ] The Husband completed high school. Since about 1998, he has worked as an operations manager for a car rental company at the Vancouver airport.

He works an average of 40 hours a week. [ 16 ] The parties met in early 2001. [ 17 ] The assessed value of the Delta House as of July 1, 2001 was $249,900. [ 18 ] The amount outstanding under the mortgage of the Delta House on May 1, 2002, was about $155,000. Assuming that the assessed value represented market value, the equity in the Delta House was about $95,000.

Using the figure of one-third for the Husband’s interest, his net equity in the Delta House was about $32,000. [ 19 ] The mortgage on the Delta House in May 2002 required monthly payments of about $1,850, which was a total of principal, interest, and property taxes.

The amortization period was nine years and seven months and the interest rate was 5.1%. [ 20 ] If the mortgage on the Delta House had remained on title and payments had been made as required, the mortgage would have been fully paid by 2012. [ 21 ] Before the parties were married they agreed to purchase the Family Residence, and they lived in it throughout the time that they lived together. The purchase price was $264,000 and the purchase closed on March 29, 2002, about five months before the marriage. [ 22 ] Both parties contributed to the cost of purchasing the Family Residence.

The Wife provided $18,000 from her savings from prior to the marriage, and a further $20,000 from her RRSPs from prior to the marriage, using the government home buyers program. In addition, she had about $6,500 in other savings as of the date of the marriage. [ 23 ] The Wife testified that she guessed that the Husband put about $24,000 towards the down payment on the Family Residence. [ 24 ] The Husband paid the initial down payment of $5,000. The Husband testified that he contributed a further $24,429.75 from his personal savings.

The statement for his account shows an online transfer into his account of about $4,000 and a deposit into this account of about $16,000 on the same day that he transferred the $24,429.75 from his account. The Husband testified that the $16,000 deposit came from his RRSP. I refer to that RRSP as the “Husband’s TD RRSP”. The Husband testified that he did not know the source of the transfer of about $4,000.

The Husband testified that after withdrawing the $16,000 from his RRSP, he had about $6,000 remaining in the Husband’s TD RRSP prior to marriage. [ 25 ] The Wife has one RRSP account which she had prior to the marriage. It is with Manulife Financial and is associated with Southridge. The value fluctuates with the market. As at March 6, 2002, it had a value of about $25,800. After the processing of the $20,000 withdrawal under the homebuyer program, it had a value on March 8, 2002, of about $5,800.

b) Following Marriage on August 25, 2002 [ 26 ] As stated, the parties were married on August 25, 2002. They moved into the Family Residence. [ 27 ] The parties handled their family finances essentially by the Wife paying the mortgage and the Husband paying the credit card bills. The Husband told the Wife that he was contributing to the mortgage payments for the Delta House, but she did not know how

much he was paying. The only joint bank account that the parties have had was a joint account used for paying the mortgage of the Family Residence. [ 28 ] On April 3, 2003, the Husband opened a RRSP account with Great West Life which I term the “Husband’s GWL RRSP”. [ 29 ] The Husband’s father passed away on January 29, 2004. He had worked in car rentals, like the Husband and Lesli. He did not have significant assets or life insurance when he passed away. [ 30 ] The Husband testified that there was a cultural ceremony within days of his father’s funeral.

The Husband testified that the Wife’s eldest brother, Pavitar, went to Harbans’ home, and sat with the Husband, and said something like, “you are the eldest son in the family and you have the responsibility to look after your mother and sister, will you do that”, and the Husband agreed to do so. [ 31 ] The Wife did not recall being present at any ceremony following the death of the Husband’s father or any gathering where it was said that the Husband was head of his family and responsible for looking after it. [ 32 ] Commencing in January 2004, and unknown to the Wife, the Husband gave Lesli $500.01 monthly.

The Husband testified that he gave these funds to Lesli to help take care of her and Harbans, and that they could use the funds as they wished. The Husband testified that he was taking over his late father’s roles, including basic household repairs and supporting his mother and sister financially.

The Husband testified that he did not have any “official” conversation with the Wife about these monthly payments, but thought that in general conversation he would say things like, “I need to write a cheque to my mother”. [ 33 ] In January 2004, when these monthly payments began, Lesli was still married to her then husband. [ 34 ] B was born in July 2004.

Since that time, the parties have made annual contributions to a Registered Educational Savings Plan (“RESP”) for him. [ 35 ] Around 2006, Lesli received about $16,000 as the net proceeds of her claim for injuries arising from a car accident including repayment for out of pocket expenses. [ 36 ] In March 2007, Lesli and her then husband were involved in divorce proceedings, and reached an agreement relating to the Delta House. A lawyer acting on behalf of all the registered owners of the Delta House took steps to change title in two ways.

First, to correct the mistaken registration of one-quarter shares and instead reflect the one-third shares, and second, to lead to the one-third shares being owned by each of the Husband, Lesli, and Harbans. The plan required Lesli to pay $52,000 to her then husband. Lesli testified that the figure was an all-inclusive figure which took into account more than just the equity in the Delta House. In order to make the payment to her then husband, Lesli used part of the $16,000 funds from her settlement of the car accident injury claim, $22,000 of her own funds, and also borrowed money from a bank.

On my calculations, she would have borrowed something more than $14,000. [ 37 ] E was born in August 2008. [ 38 ] In early 2009, Harbans worked at a shop which sold soap. She stopped working later that year. [ 39 ] In June 2009, the Husband and Lesli obtained the Delta House LOC, which permits borrowing up to $275,000 secured against the Delta House. Initially, the Delta House LOC was used to pay off the outstanding Delta House mortgage of about $37,000, and Lesli’s indebtedness under two other lines of credit totalling about $29,000, for a total of about $66,000.

One debt was the loan to Lesli to complete her payment two years earlier to her husband. The other debt arose from payments to maintain the Delta House. [ 40 ] In June 2009, the Wife signed a TD Canada Trust form entitled “Spousal Consent”. It refers to the Delta House and to Lesli and the Husband and to a mortgage reference number which presumably relates to the mortgage on the Delta House. The form states as follows: I, Ravi Sangha, acknowledge and consent as follow: 1. I am the spouse of the Mortgagor, Darren Sangha. 2.

I understand that TD Canada Trust (the bank) is making a conventional Variable Rate Open in the amount of $275,000 together with interest thereon to [blank] which loans are secured by a collateral mortgage over the Property noted above in favour of the Bank. [ 41 ] The Wife testified that she was not told what the Delta House LOC would be used for. She testified that she understood that the Husband and Lesli would be taking out a line of credit, and they needed her signature in order to obtain approval for it.

The Wife called her brother in law prior to signing this document, but testified that she did not recall obtaining legal advice about it. She was concerned to ensure that she would not be personally responsible for paying back the Delta House LOC and to ensure that it would not be registered against the Family Residence. [ 42 ] The Husband testified that the Delta House LOC was used to consolidate debts which had been incurred to maintain the Delta House.

He testified that he told the Wife that the plan was to close the mortgage at Scotiabank and consolidate debt into the Delta House LOC to obtain a significantly lower interest rate. The Husband testified that a lawyer was present and asked to speak to the Wife alone. The Husband testified that he and Lesli left the lawyer alone to speak to the Wife.

The Husband testified that the Wife left the meeting and said she needed to make a telephone call, and returned about twenty minutes later and signed the Spousal Consent document. [ 43 ] The Husband testified that Harbans, who was then unemployed, was removed from title to the Delta House because the bank would not provide the Delta House LOC if she remained on title. Harbans’ one-third interest was transferred to Lesli, who now has a two-third interest in the Delta House. [ 44 ] In September 2009, B started kindergarten at Southridge. Southridge is about a 20 or 25 minute, 20 km drive from the Family

Residence. School starts at 8:00 am, which is earlier than public schools. Southridge’s professional development days sometimes fall on days which are not professional development days in the public system. [ 45 ] When the children were in preschool, Harbans looked after the children and transported them to and from preschool when the Wife and Husband were working.

The Husband compensated Harbans for direct expenses like food and gasoline. [ 46 ] The parties paid off the mortgage on the Family Residence in April 2011. [ 47 ] E started attending Southridge when he was eligible for preschool. [ 48 ] The Wife testified that the Husband frequently criticized her, including in front of the children. She also testified that the Husband has a bad temper, and had punched a hole in a wall and kicked in a door in anger.

She testified that E began imitating this behaviour. [ 49 ] The Husband testified that the Wife had an indirect communication style which upset the children and sometimes escalated to B getting physical and doing things like hitting the Wife. The Husband denied that he has a bad temper. [ 50 ] The Wife spoke to the Husband about taking B for counselling, and the Husband did not agree that it was necessary. [ 51 ] Around 2011, the Wife started taking B to counselling without telling the Husband, and later also took E. The Wife paid the counselling expenses.

B attended counselling on an as-needed basis, which worked out to about once every two to four weeks. [ 52 ] The Wife testified that she was concerned that the Husband did not make decisions in the best interests of the children.

She referred in particular to his unwillingness to send the children for counselling, his reluctance to send them to Southridge, and his views regarding dental x-rays and anesthetic for dentistry. [ 53 ] The Wife testified that the pediatric dentist recommended panoramic x-rays of B’s mouth, and advised her that the amount of radiation would be comparable to two hours of watching television.

She testified that the Husband would not agree to B undergoing the panoramic dental x-rays. [ 54 ] The Husband testified that the nurse told him that the panoramic x-ray was like having ten x-rays done on your head at the same time. The Husband testified that he is uncomfortable with x-rays, in part because his father was diagnosed with throat cancer.

The Husband testified that the dentist told him that if he was uncomfortable with B having a panoramic x-ray, they could wait and discuss it when B is older. [ 55 ] The Wife testified that the pediatric dentist wanted to use an anesthetic while repairing a cavity in B’s tooth, and told her he had a notation in the chart that the Husband did not agree to the use of anesthetic.

The Wife testified that she authorized the dentist to do the work without using anesthetic because she was afraid of the Husband’s reaction if she disobeyed his wishes, but she felt terrible about it because of the discomfort and possible pain for B. [ 56 ] The Husband testified that someone in the dental office asked him to sign a form consenting to B having a general anesthetic which would result in unconsciousness, and he wanted to consider it and discuss it with the Wife.

The Husband testified that he and the Wife discussed it, and she was also uncomfortable with a general anesthetic, but they signed the form. The Husband testified that he took B to a dental appointment and was told that B could not have a general anesthetic that day because he had drunk milk or water. The Husband testified that he was told that the procedure could be done with a local anesthetic and it was. [ 57 ] There was an incident in April 2012 involving the Wife and Lesli. Lesli says that she was ill with the flu and recovering from a car accident on the day in question.

There was a mess to clean up because E, who was three years old, had failed to use the toilet when he urinated and had a bowel movement. Lesli and the Wife disagree about what occurred. Lesli says that the Wife refused to help clean up, while the Wife says she was willing to clean up but retrieved B from the car first. Lesli says that this led to an incident in which the Wife opened her car door, stopping Lesli from leaving to pick up her son, and pushed Lesli. The Wife denies hitting or pushing Lesli.

After that incident, the Wife stopped visiting at the Delta House, and if the children are there, she waits around the corner to pick them up. [ 58 ] The Wife’s father, Sohan, passed away on July 26, 2012. His wife Gurdev, being the Wife’s mother, survived him. [ 59 ] The Wife signed a “Counselling Agreement” with Dr. Montgomery, Registered Clinical Counsellor, dated December 2, 2012. This dealt with fees, confidentiality, and other matters. The Wife signed it as part of registering the children with Dr.

Montgomery. [ 60 ] By the end of 2012 the Delta House LOC was almost fully drawn down, and Lesli started cashing her RRSPs to pay expenses. [ 61 ] From time to time the Wife purchased items for her sisters and mother, such as groceries. Sometimes she was paid back in cash, and sometimes by services like child-minding. [ 62 ] In 2013, the Wife made some payments towards the indebtedness of her sister Rosie on a credit card. The Wife paid $1,000 on June 17, 2013; $200 on October 31, 2013; $300 on January 2, 2014; and $200 on January 6, 2014.

Rosie paid the Wife back. [ 63 ] The assessed value of the Delta House at July 1, 2013, was $521,700. [ 64 ] The Husband worked extra hours in 2013 because there was a union walkout for 30 days and as a manager he was required to perform staff duties. The Husband was paid about $8,900 more in 2013 than usual. His line 150 income in 2013 was assessed at $76,753. [ 65 ] The value of the Husband’s GWL RRSP on January 1, 2014, was about $36,300. [ 66 ] As at December 31, 2013, the Wife’s RRSP had a value of about $83,000.

[ 67 ] On January 8, 2014, the Wife owed about $2,700 on her credit card. [ 68 ] On January 31, 2014, the amount outstanding under the Delta House LOC was $257,954.09. The amount outstanding had increased by about $192,000 from the $66,000 outstanding in June 2009, about four and one-half years earlier. That was an average increase of about $42,700 per year. [ 69 ] The Husband did not withdraw any funds from the Delta House LOC.

The Husband did not receive the statements about the amount outstanding under the Delta House LOC and first became aware of the amount outstanding in February 2014. [ 70 ] The withdrawals from the Delta House LOC include payments for Lesli’s legal fees, credit cards, and investments. Lesli used about $92,000 for investments and about $40,000 for legal fees relating to her divorce.

c) Following Separation on February 1, 2014 [ 71 ] As stated, the parties separated on February 1, 2014. The Wife moved in with her sister Paula and stayed there until sometime in the summer. [ 72 ] The Husband did not see the children for about three weeks following the separation. There were significant tensions about parenting but the parties were able to resolve most of the issues before trial. Relatively soon, both children were spending equal time with each parent on an alternating week schedule. [ 73 ] At the time the parties separated, the Family Residence was mortgage-free.

The children both continued to attend Southridge. The annual cost of tuition is about $8,000 for B and about $7,000 for E. [ 74 ] On February 8, 2014, the Wife owed about $1,900 on her credit card. [ 75 ] Around the time of separation, there was about $13,500 in the Husband’s savings account, and about $3,000 in accounts controlled by the Wife, one in her name and one in the name of each son. [ 76 ] At the time of separation, the Wife took possession of a 2005 Pathfinder vehicle.

The Husband testified that it was in good working order at the time of separation. [ 77 ] The value of the Husband’s GWL RRSP on March 20, 2014 was nil, following withdrawals of $38,672.98. [ 78 ] The value of the Wife’s RRSP increased by $56,616.24 during the marriage. [ 79 ] The Wife commenced this divorce proceeding on February 13, 2014.

At some point during the legal process, the Husband first learned that the children were in counselling. [ 80 ] The value of the Husband’s TD RRSP on March 31, 2014, was about $4,900. [ 81 ] The Wife applied for a variety of protection and non-removal orders, exclusive possession of the Family Residence, and to have the Husband’s parenting time supervised.

Her applications were heard on March 26, 2014. [ 82 ] In April 2014, Lesli commenced a small claims court proceeding against the Wife, in which Lesli claims $25,000 for damages relating to an alleged assault two years earlier, and possibly also for an alleged defamation. Lesli has not served the court documents on the Wife. [ 83 ] On April 24, 2014, Master Caldwell made an interim order (“Caldwell Order”) including what are sometimes called “nesting” terms, by which the children will stay in the family home and the parents will rotate in and out of it. The order included the following terms:

a) that the parties will both remain guardians of the children;

b) the children will remain in the Family Residence;

c) the parties “will rotate in and out of the [Family Residence] as of 9:00 pm each Friday”;

d) each party may take only their clothes and strictly personal belongings for use during their times out of the Family Residence;

e) neither party would enter the residence of the other, being the Family Residence during the other’s week there and such additional residence as the other may establish during their week out of the Family Residence; and

f) neither party was to change the children’s residence or remove them from B.C. without further order or written consent. [ 84 ] The Wife and the children have not been staying in the Family Residence during the Wife’s parenting weeks. Since she moved out of Paula’s home, the Wife has been living in Gurdev’s home, sometimes alone or with only the children, and sometimes with a cousin as well. Gurdev was out of town for about a year prior to trial. [ 85 ] The Wife testified that she felt that she could not live in the Family Residence for her own emotional safety.

The Wife testified that she understood that Master Caldwell wanted her to leave the children in the Family Residence, but she did not understand that it was unlawful for her to remove the children from the Family Residence during her parenting weeks. [ 86 ] The Wife testified that she wanted to change the time for exchanges from Fridays at 9:00 pm, as in the Caldwell Order, to

Fridays at 3:00 pm, on the basis that it would avoid interrupting the children’s bedtime and that the exchanges could take place at the school rather than the Family Residence.

After a number of months of discussions, the Husband agreed to the 3:00 pm exchanges. [ 87 ] The Husband’s employer has allowed him some flexibility in work hours to facilitate things like picking the children up from school, so long as the Husband makes up missed time at another point. [ 88 ] The Husband’s May 28, 2014 Form F8 Financial Statement claimed about $1,000 per month for housing expenses, consisting of $500 per month for rent or mortgage, and additional sums for property taxes, insurance, water, sewer, garbage, repairs, and lawn care.

In the assets section, the Husband set out the Family Residence and the Delta House, described as “1/3 interest with sister” and having a value of $173,900. The only secured debt he described was the Delta House LOC in the amount of $86,000. I note that $173,900 is one- third of $519,000, and that the assessed value of the Delta House at July 1, 2013 was $521,700. I note that $86,000 is one-third of $258,000, and that $258,000 is about the amount outstanding under the Delta House LOC. [ 89 ] The appraised value of the Delta House as at July 30, 2014 was $550,000.

That was about 5% more than the assessed value. [ 90 ] The appraised value of the Family Residence as of July 30, 2014 was $585,000. [ 91 ] As at November 21, 2014, the Wife’s RRSP had a value of about $100,000. The value prior to the marriage was about $26,000, and the growth following separation was about $18,000.

The balance of about $56,000 represents the growth during the marriage. [ 92 ] As of November 27, 2014, the value of the RESP was about $66,000. [ 93 ] The Wife’s December 10, 2014 Form F8 Financial Statement claimed $1,630 for housing expenses, consisting of $430 per month estimated for property taxes, insurance, water, sewer, and garbage, and a further $1,200 for “room and board, laundry, internet, home phone and cable”.

d) At Trial [ 94 ] At the time of the trial, the Delta House was registered one-third in the name of the Husband and two-thirds in the name of his sister, Lesli. The amount outstanding under the Delta House LOC was about $265,000, being about $7,000 more than at the time the parties separated. Over the years some of the payments towards the Delta House LOC have only satisfied the interest owing, and some have reduced the principal owing. The best available information is that the amount outstanding can be broken down as follows:

a) about $66,000 represents the initial payout of the mortgage and other debt;

b) about $28,000 represents transfers to Lesli for home expenses;

c) about $13,000 represents payments to Harbans;

d) about $92,000 represents investments by Lesli;

e) about $40,000 represents Lesli’s personal legal fees; and

f) about $26,000 represents payments of Lesli’s credit cards. [ 95 ] Accepting that payment of the original mortgage of about $37,000 plus $15,000 of the other debt related to the Delta House, plus $28,000 regarding item (

b) above, all relate to the ongoing maintenance of the Delta House, has the effect that about $80,000 of the $265,000 outstanding could be considered costs relating to the Delta House. [ 96 ] At the time of trial, the Husband was living in the Family Residence during the weeks that he was parenting the children, and the Delta House when he was not at the Family Residence. The other residents of the Delta House are Harbans, Lesli, and Lesli’s son, who is 17 years old. [ 97 ] Harbans is retired, and receives old age pension benefits, Canada Pension Plan benefits, and guaranteed income supplement benefits. The total amount was not in evidence. I take judicial notice of the following facts:

a) the amount payable as old age pension benefits depends on how long a pensioner has lived in Canada as an adult, and is a maximum of about $6,000 per year;

b) the amount payable for Canada Pension Plan benefits depends on the pensioner’s earnings and periods worked; and

c) the amount payable for guaranteed income supplement benefits varies on a complex formula. [ 98 ] Lesli receives a monthly disability pension of about $1,600 which is taxable in her hands, and child support of about $1,000 per month. Lesli has an RESP for her son which is worth about $29,000, an RRSP worth about $40,000, and investments of about $3,000. She made an investment in an American bank which went bankrupt, and she lost the entire value of the investment.

Lesli testified that she did not consider that the Husband owned the Delta House. [ 99 ] The Wife understood that she was entitled to live in the Family Residence during the weeks that she was parenting the children, but she chose not to do so. [ 100 ] At the time of trial, a tenant was living in a basement suite in the Family Residence and paying rent of $500 per month plus providing about $150 in services such as housekeeping, gardening, or helping with the children.

At the time of trial, the rent was being deposited to the Wife’s personal account, from which she was paying the children’s Southridge expenses for items like uniforms and

field trips. [ 101 ] At trial, the Wife was 41 years old. She was teaching grade one at Southridge. Her salary is about $81,000 per year, although she also receives a taxable benefit of about $6,500 per year reflecting her employer’s contributions to her RRSP. Another benefit of the Wife’s position as a teacher at Southridge is that her children are entitled to a 50% tuition discount.

Another benefit of her position is that she does not work in the summers and other school breaks and is available to spend time with the children at those times. [ 102 ] At the time of trial, the Husband was earning about $61,000 per year. He is paid $1,774.13 every two weeks for 80 hours of work, which is about $46,000 for 26 pay periods. His car benefit is considered to be a taxable benefit of about $500 per month, being about $6,000 per year. He anticipated total bonuses of about $7,000. The total of those three figures is $59,000.

His employer will also match RRSP contributions, probably up to 5% of wages, being about $2,000 per year. The Husband works out of the Vancouver airport, which is about a 45 minute drive from Southridge. [ 103 ] At the time of trial, the parties communicated strictly by email or by occasional text messages if there were emergencies dealing with the children. [ 104 ] B is doing well at Southridge, and was reading at a grade 9 level even though he is only ten years old. E is also doing well at Southridge. [ 105 ] The Wife wants the children to continue to attend Southridge.

The Husband would prefer that they attend a public school close to the Family Residence.

He is against the children attending Southridge, partly because of the expense and partly because he feels uncomfortable there and wonders if everyone knows about the issues between him and the Wife. [ 106 ] The Wife testified that on the occasions when she is not available after school, such as when she has a meeting, she hires high school students to look after the children for a couple of hours at the school and pays them $7.50 per hour. [ 107 ] At the time of the trial, the parties had not divided the contents of the Family Residence between them. The Wife suggested that they should divide them equally.

The Husband thought they could agree, and testified that he was willing to agree that the Wife could keep the bedroom suite which was a gift from the Wife’s parents. [ 108 ] The Wife had possession of a 2005 Pathfinder vehicle, but was not driving it because of problems with the transmission. She was advised that the repair cost is about $5,000. The Husband estimated that the vehicle was worth about $14,000 less something for the cost of repairs. [ 109 ] The Husband had possession of a 1999 Pontiac Grand Prix car. He testified that it had major engine problems, and might be worth $500 to $1,500.

The Husband testified that commencing in 2014, he was entitled to drive a company vehicle. [ 110 ] The Wife would not have an objection to splitting the RESPs with the Husband, so long as the funds go to the children’s post- secondary education. The Husband is willing to keep the RESP as a joint account. The Husband testified that he had opened an RESP in his own name and that he deposited $2,500 to it in 2014. [ 111 ] By the time of trial, the Husband’s GWL RRSP, which was worth about $38,500 on separation, was closed. [ 112 ] The Wife wants to continue taking the children to counselling.

She would prefer not to change the counsellor on the basis that the children have established a good relationship with the counsellor. [ 113 ] The Husband testified that he is in favour of the children attending counselling. He testified that he did not think it was necessary for the children to continue to see a pediatric dentist at their current ages, and that the fees of the pediatric dentist were higher than of a general dentist. [ 114 ] The Husband wants to have the right to make decisions in the event of disagreement with the Wife.

He testified that the Wife made the decisions regarding all aspects of the children’s lives throughout the marriage regardless of his input. He testified that he always felt he had minimal say in what the children could do and which professionals they would see. He did not suggest that any of the Wife’s decisions had not been in the best interests of the children. [ 115 ] The Wife wants to purchase the Husband’s interest in the Family Residence.

She testified that if she purchased it, she could install an alarm system, which would make her feel safe living there. [ 116 ] The Husband wants to purchase the Wife’s interest in the Family Residence. He testified that he has financing to buy her out, but did not provide details. The Husband also testified that he has done the upkeep of the Family Residence to date together with the disabled tenant. The Husband also testified that he provided the labour for lengthy and continuing renovations. He testified that the children enjoy being at the Family Residence.

The Delta House is about a five minute drive away, and his mother and Lesli occasionally care for the children. [ 117 ] The Husband is reluctant to live in the Delta House with the children. He is concerned that there will not be enough space for everyone. Lesli does not want to have the Husband and the children living at the Delta House owing to the effect on her privacy. LEGISLATION [ 118 ] The FLA includes the following in ss. 81 , 84 to 87 , and 95 : Equal entitlement and responsibility

81 Subject to an agreement or order that provides otherwise and except as set out in this Part and

Part 6 [Pension Division] , (

a) spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and (

b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt. … Family property 84

(1) Subject to

section 85 [excluded property] , family property is all real property and personal property as follows: (

a) on the date the spouses separate, (

i) property that is owned by at least one spouse, or (ii) a beneficial interest of at least one spouse in property; …

(2) Without limiting subsection (1), family property includes the following: … (

d) money of a spouse in an account with a financial institution; (

e) a spouse's entitlement under an annuity, a pension, a retirement savings plan or an income plan; … (

g) the amount by which the value of excluded property has increased since the later of the date (

i) the relationship between the spouses began, or (ii) the excluded property was acquired. … Excluded property 85

(1) The following is excluded from family property: (

a) property acquired by a spouse before the relationship between the spouses began; …

(2) A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property. Family debt 86 Family debt includes all financial obligations incurred by a spouse (

a) during the period beginning when the relationship between the spouses begins and ending when the spouses separate, and (

b) after the date of separation, if incurred for the purpose of maintaining family property. Valuing family property and family debt 87 Unless an agreement or order provides otherwise and except in relation to a benefit under a pension plan, (

a) the value of family property must be based on its fair market value, and (

b) the value of family property and family debt must be determined as of the date (

i) an agreement dividing the family property and family debt is made, or (ii) of the hearing before the court respecting the division of property and family debt. … Unequal division by order 95

(1) The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to (

a) equally divide family property or family debt, or both, or

(

b) divide benefits as required under

Part 6 [Pension Division] .

(2) For the purposes of subsection (1), the Supreme Court may consider one or more of the following: (

a) the duration of the relationship between the spouses; (

b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division] ; (

c) a spouse's contribution to the career or career potential of the other spouse; (

d) whether family debt was incurred in the normal course of the relationship between the spouses; (

e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt; (

f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends; (

g) the fact that a spouse, other than a spouse acting in good faith, (

i) substantially reduced the value of family property, or (ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse's interest in the property or family property to be defeated or adversely affected; (

h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order; (

i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness. … ANALYSIS

a) Decision-making Regarding the Children

i) General Decision-making [ 119 ] The Wife’s position is that the Husband should not be given decision-making authority for the children. She argued that the Husband has demonstrated his lack of insight into the children’s needs by his unwillingness to have them continue at Southridge.

The Wife’s position is that she is agreeable to the Husband having a voice in decision-making, but she seeks the right to make a decision in the event of disagreement. [ 120 ] The Husband’s position is that a third party, such as a family justice counsellor or parenting coordinator, should settle future disagreements regarding decisions involving the children. [ 121 ] During the time that the parties lived together, the Wife did most of the decision-making regarding the children.

The only issues which have arisen regarding decision-making for the children have related to whether the children should attend Southridge, whether they should attend counselling, and what dental treatments they should receive. [ 122 ] There has been a significant degree of acrimony between the parties since separation, although the parties have managed to reduce it over time. It is in the best interests of the children to continue to reduce the degree of tension between the parties. It is appropriate that one of the parties be able to act in the event of disagreements that cannot be resolved.

If the other party believes that a decision is not in the best interests of the child or the children, he or she has the right to seek a review and directions from the court under s. 49 of the FLA . [ 123 ] It might be helpful if the parties could obtain the assistance of an impartial third party, such as a parenting coordinator or a family justice counsellor, to assist them in the event of disagreement about decisions for the children. However, there was no evidence in this case about the cost or availability of such services.

In the financial circumstances of the parties, it is not appropriate to make an order for the involvement of such third parties without knowing the related cost. It is appropriate here to have one parent make the decisions, subject to review by the court under s. 49 of the FLA . [ 124 ] The Wife historically made most of the decisions on behalf of the children. All of her decisions were consistent with the best interests of the children.

While the parents did not agree about such matters as whether the children needed counselling, the evidence does not establish that the view of either parent was so unreasonable that it should be considered to be contrary to the best interests of the children. Owing to her work

schedule as a teacher, the Wife is available for the children after school and in the summer. [ 125 ] In light of her history of decision-making on behalf of the children and her work

schedule allowing greater availability for the children, it is appropriate for the Wife to be the parent who makes decisions on behalf of the children in the event of disagreement between the parents. However, the Wife must inform the Husband about anticipated decisions and must request and consider his views before making any decisions, and they are subject to review by the court under s. 49 of the FLA .

ii) Southridge School [ 126 ] The Wife’s position is that the children should continue to attend Southridge school. The Husband’s contribution for tuition would be $645 per month, calculated as 43% of the annual tuition of $18,000. The Wife calculated her contribution to the Husband for child support, on a set-off basis, to be $298 per month. The result would be a net contribution by the Husband of about $347 per month. [ 127 ] The Husband’s position is that he cannot afford to send the children to Southridge school.

He argued that the children should attend public school, or alternatively, that the court should place a cap on this expense as was done in Marino v. Marino , 2008 BCSC 1402 . [ 128 ] In that case, N. Smith J. ordered a father of three children, who was held to earn the imputed sum of $127,000 per year, to contribute proportionately to not only the cost of private school of $9,000 per year but also a further $5,000 per year for extracurricular activities. The father in Marino agreed that private school was important.

The mother had sought contribution for almost $16,000 per year in extracurricular activities like dance, soccer, music, and martial arts. [ 129 ] There was no evidence about the location of public schools near the Family Residence, nor about the quality of the school program. There was no evidence about the costs and availability of before-school and after-school care if the children attended at a school other than Southridge.

Because classes begin at 8:00 am at Southridge, which is earlier than public schools, the children might require before-school care on weeks they are with the Wife if they attend public school. [ 130 ] The Husband expressed some personal discomfort in being at Southridge school. His discomfort arose from the difficulties of the initial separation and parenting arrangements, and the fact that the Wife is a teacher there. The Husband has already become more comfortable participating in Southridge activities over time. He should be able to participate appropriately for the benefit of the children.

His discomfort should not restrict the children from attending the school which it is in their best interests to attend. [ 131 ] The children have attended Southridge throughout their schooling. It is common for students to attend the school throughout their schooling. It is a good school. Because the Wife works there, she can be available for the children most of the time before and after school hours. This is likely achieving some saving in before and after school care costs. [ 132 ] It is in the best interests of the children to continue to attend Southridge.

In light of the separation of the parents, it would be helpful to provide the children with the continuity of school and school friends. The children should continue to attend Southridge so long as the parties can afford to pay the tuition. [ 133 ] The Husband has claimed some of the Southridge tuition as childcare expenses for the purposes of income tax, and it appears likely that he can continue to do so. [ 134 ] The children shall continue to attend Southridge school, and the parents shall share the expense in proportion to their respective incomes.

However, the parties are not obligated to contribute to any other special and extraordinary expenses for the children unless there is a further written agreement or court order.

b) Assets and Debts

i) Excluded Property [ 135 ] The parties agree that the Wife’s initial contribution to the Family Residence of $18,000 should be considered excluded property. The Wife’s contribution of $20,000 from her RRSP was then replaced in her RRSP, so it is important to ensure that the RRSP analysis uses the figures after the $20,000 was returned. [ 136 ] The parties agree that the Husband’s initial contribution to the Family Residence should be considered excluded property, but disagree about the amount of that contribution.

The Wife’s position is that the Husband should be credited with about $21,000 representing his initial contributions of $5,000 and about $16,000 to the Family Residence. The Husband’s position is that he should be credited with $29,000 representing his initial contributions to the Family Residence. [ 137 ] The parties disagree about whether the Husband has an interest in the Delta House, but agree that if he does, the value of his interest prior to the marriage is excluded property. I discuss that under the heading “Delta House and Delta House LOC” below.

I also discuss the portion of the parties’ RRSPs which are excluded assets under the heading “RRSPs” below. [ 138 ] With respect to determining the amount of the Husband’s initial contribution to the Family Residence, the bank records show that the Husband transferred about $29,000 at the time of the purchase of the Family Residence. The Husband was not able to explain the source of all of the funds leading to his transfer of about $24,000.

That is not surprising, in light of the dozen years which have passed since the initial purchase, and the fact that the law has changed only recently to exclude property each spouse brought into a relationship. The Husband’s evidence is sufficient to establish that he contributed $29,000 to the initial purchase of the Family Residence. [ 139 ] The Wife brought savings of about $6,500 into the marriage, which is also excluded property.

Together with her contribution to the Family Residence of $18,000, the Wife’s excluded property is $24,500. [ 140 ] As a result, the Husband is entitled to a credit of $4,500 more in than the Wife for excluded property, before taking into account the Delta House and the RRSPs. That figure is calculated as $29,000 less $24,500. In order to equalize that excluded property, the Wife must pay the Husband $2,250, being one-half of $4,500.

ii) RESP [141] The value of the RESP is about $66,000. [142] The parties agree that they will either continue with the existing joint RESP, or to split it into equal shares, with each parentdepositing half into an RESP for such individual parent to manage. If the parties cannot agree on which option to pursue, the RESP shallbe split into equal shares, with each parent maintaining a separate RESP. iii) Delta House and Delta House LOC [143] The appraised value of the Delta House as at July 30, 2014, was $550,000. The amount outstanding under the Delta House LOCas at trial was about $265,000.

Using those figures, the net equity in the Delta House was $285,000, one-third of which is $95,000. [144] The Wife’s position is that the Husband has a beneficial one-third interest in the Delta House of about $183,000, which shouldbe divided equally between the parties. The Wife’s position is that the Husband’s interest should not be considered as encumbered by theDelta House LOC at all. The Wife argued that the mortgage on the Delta House should have been satisfied by now, and the advances onthe Delta House LOC were incurred for Lesli’s purposes and should not be taken into account.

The Wife argues that it would besignificantly unfair to consider the Delta House LOC to be family debt. The Wife argues that Lesli and the Husband’s mother ought tohave paid any costs relating to maintenance of the Delta House, since they were living there without paying any rent. [145] The Wife’s position is that the Husband should retain his interest in the Delta House and should be considered to have retainedabout $183,000 for that share. [146] The Husband’s position is that he does not have any beneficial interest in the Delta House.

It is his position that his initialdeposit to the real estate agent was repaid, and that he did not pay anything for his registered interest in the Delta House. He argued thatthere is a resulting trust, and relied on Rascal Trucking Ltd. v. Nishi, 2011 BCCA 348, rev’d 2013 SCC 33; and Kooner v. Kooner(1989), (BC CA), 22 R.F.L. (3d) 260 (B.C.C.A.). [147] Alternatively, the Husband argued that the Delta House is excluded property under s. 85(1)(

a) of the FLA. If so, pursuant to s.84(2)(g), the increase in value during the relationship is divisible equally. The Husband’s position is that the entire amount of the DeltaHouse LOC should be taken into account. He argued in this alternative that the value of $550,000, less the Delta House LOC amountoutstanding on separation of about $258,000, resulted in total equity of about $292,000, and his one-third should be considered to beabout $97,000. The Husband argued that his interest at the time of marriage was about $35,500.

He calculated that by using the 2002assessed value of $249,900 and grossing it up by 5% to reflect the difference between assessed and appraised values. That grossed upfigure is about $262,000. He then deducted the amount of the mortgage of $155,000, for a net equity of about $107,000.

He calculatedhis one-third at about $35,500. [148] On that basis, the Husband argued in the alternative that his interest in the Delta House increased by about $61,500 during themarriage, and that the Wife’s interest should be considered to be about $30,800. [149] It is difficult to characterize the Husband’s interest in the Delta House and Delta House LOC. [150] The following facts suggest that the Husband owns a one-third beneficial interest in the Delta House:

a) he is a registered owner of a one-third interest;

b) he has been a one-third registered owner since the registered ownership was corrected in 2007;

c) he signed the original mortgage and the Delta House LOC documentation, agreeing that as between the lender and himself, he wasresponsible to repay the debt;

d) he has made payments to Lesli since 2004 of $500.01 per month; and

e) he has lived at the Delta House since the parties separated, on the alternating weeks when not at the Family Residence. [151] While not all the mortgage information was in evidence, the mortgage in 2002 required monthly payments of about $1,800, and$500 is almost one-third of that sum. [152] The facts which suggest that the Husband is not a beneficial owner of the Delta House are as follows:

a) the Husband did not receive any rent for the 11 ½ year period from August 2002 until early 2014 when he was not living at the DeltaHouse at all;

b) Lesli does not welcome him to live at the Delta House with the children; and

c) the Husband did not monitor the extent of withdrawals on the Delta House LOC. However, the equity remaining after deducting thefull amount of the Delta House LOC is $285,000, being more than $183,500, which is one-third of the appraised value of the DeltaHouse. In other words, if the Delta House LOC were considered, as between the Husband’s family members, to be the obligation of theHarbans and Lesli only, there is still enough equity in the Delta House to provide the Husband with one-third. [153] The Husband feels an obligation to support his widowed, retired mother Harbans and his disabled sister Lesli. However, theHusband does not have a legal obligation to support them.

[ 154 ] The Land Title Act , R.S.B.C. 1996, c. 250, provides as follows at ss. 22 and 23 : Operation of instrument as from time of registration 22 An instrument purporting to transfer, charge, deal with or affect land or an estate or interest in land passes the estate or interest, either at law or in equity, created or covered by the instrument at the time of its registration, irrespective of the date of its execution. Effect of indefeasible title 23

(1) In this section, "court" includes a person or statutory body having, by law or consent of parties, authority to hear, receive and examine evidence.

(2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following: (

a) the subsisting conditions, provisos, restrictions, exceptions and reservations, including royalties, contained in the original grant or contained in any other grant or disposition from the Crown; (

b) a federal or Provincial tax, rate or assessment at the date of the application for registration imposed or made a lien or that may after that date be imposed or made a lien on the land; (

c) a municipal charge, rate or assessment at the date of the application for registration imposed or that may after that date be imposed on the land, or which had before that date been imposed for local improvements or otherwise and that was not then due and payable, including a charge, rate or assessment imposed by a public body having taxing powers over an area in which the land is located; (

d) a lease or agreement for lease for a term not exceeding 3 years if there is actual occupation under the lease or agreement; (

e) a highway or public right of way, watercourse, right of water or other public easement; (

f) a right of expropriation or to an escheat under

an Act; (

g) a caution, caveat, charge, claim of builder's lien, condition, entry, exception, judgment, notice, pending court proceeding, reservation, right of entry, transfer or other matter noted or endorsed on the title or that may be noted or endorsed after the date of the registration of the title; (

h) the right of a person to show that all or a portion of the land is, by wrong description of boundaries or parcels, improperly included in the title; (

i) the right of a person deprived of land to show fraud, including forgery, in which the registered owner has participated in any degree; (

j) a restrictive condition, right of reverter, or obligation imposed on the land by the Forest Act , that is endorsed on the title.

(3) After an indefeasible title is registered, a title adverse to or in derogation of the title of the registered owner is not acquired by length of possession.

(4) Despite subsection (3), in the case only of the first indefeasible title registered, it is void against the title of a person adversely in actual possession of and rightly entitled to the land included in the indefeasible title at the time registration was applied for and who continues in possession. [ 155 ] The most important fact is that the Husband is registered owner of a one-third interest in the Delta House. There is nothing registered on title providing that the Husband holds the interest in trust, nor is there any written agreement to that effect.

As stated, pursuant to the Land Title Act , the Husband’s title to a one-third interest is “conclusive evidence at law and in equity, as against … all other persons” that the Husband owns the registered one-third interest. [ 156 ] In addition, the Husband has contributed to the ongoing costs of repair and maintenance of the Delta House, including during the period of about 11 ½ years when he did not live at the Delta House and did not receive rent from it.

Neither Harbans nor Lesli are parties to this litigation, and so the decision in this case can bind only the parties. [ 157 ] In Rascal Trucking , title was registered in the name of Mr. Nishi pursuant to a vesting order in foreclosure proceedings. Rascal paid about $110,000 towards the purchase price with the intention of becoming an owner. The total purchase price was $237,500 plus expenses. The Court of Appeal concluded that there was a resulting trust and the property was held in trust for Rascal in the proportion that its contribution to the purchase price bore to the total purchase price and expenses.

The Supreme Court of Canada upheld the longstanding doctrine of the purchase money resulting trust; however, the Court allowed the appeal because there was no resulting trust arising on the facts as found by the trial judge. [ 158 ] Here, the Husband argues that he did not contribute to the purchase price of the Delta House, relying on Lesli’s evidence as corrected on the second day. [ 159 ] I reject that evidence. Instead, I accept the Husband’s evidence that he contributed about $5,000 to the purchase price, using “every penny” in his bank account. That is consistent with Lesli’s original evidence.

Her corrected evidence was based on documentation which was not produced at trial and apparently not produced in the pre-trial process. Lesli’s corrected evidence was complex, referring to funds passing between her and the Husband and an uncle. I reject her evidence on that point. [ 160 ] Because I have concluded that the Husband contributed to the purchase price for the Delta House, and received a legal interest in

the property, the resulting trust analysis in Rascal Trucking is not relevant. [161] In addition to contributing to the purchase price, the Husband contributed to the ongoing costs of the Delta House. In 2007, theregistered owners changed title. It was “corrected” to show the Husband as a one-third owner. Essentially, Harbans’ interest wastransferred to Lesli. [162] Coincidentally, the Kooner decision involved the Wife’s brother Pavitar and their parents. The Court of Appeal upheld the trialcourt decision that Pavitar did not have an interest in property registered in the name of his parents.

The Court of Appeal concluded thatPavitar had made a loan of $3,000 at the time the property was purchased, which loan was repaid, and that Pavitar paid rent when he andhis wife occupied the basement suite. [163] Here, I have concluded that the Husband did not make a loan for the down payment on the Delta House but instead contributedto the purchase price, and that he made payments to the mortgage and other expenses when he was not living in the Delta House.

As aresult, the analysis in Kooner is not of assistance. [164] In conclusion, as between the Husband and the Wife, the Husband is the beneficial owner of one-third of the Delta House. I notethat this conclusion is consistent with the registered ownership and with the Husband’s statement in his Form F8 Financial Statement. [165] Not all of the advances under the Delta House LOC have been for the purpose of maintaining the Delta House. Most of themhave been for the benefit of Lesli.

Effectively, Lesli and Harbans have used some of the equity in the Delta House to borrow funds forongoing living expenses and things like personal investments. Whatever might be the result between the Husband and Harbans and Lesli,with respect to the division of assets between the parties to this lawsuit, the Husband’s interest in the Delta House should be reduced onlyby the amount of advances appropriate for the ongoing repair and maintenance of the Delta House. [166] The evidence does not permit an exact determination of those expenses.

The best determination possible on the evidence is thatabout $80,000 of the indebtedness under the Delta House LOC is properly considered as diminishing the Husband’s interest in the DeltaHouse.

That figure consists of $37,000 regarding the payout of the original mortgage, $15,000 regarding the additional debt paid out atthe time of obtaining the Delta House LOC, and $28,000 regarding ongoing costs. [167] On that basis, the value of the Husband’s interest in the Delta House at trial is $157,000, being $550,000 less $80,000 =$470,000 x 1/3. [168] I do not accept the Husband’s calculation that the value of his interest at the commencement of the marriage was about $35,500as set out above. The best evidence of the value at the time of the marriage is the assessed value without gross up.

It was $31,500, beingabout $250,000 in market value less the mortgage of about $155,000. [169] The increase in the value of the Husband’s interest in the Delta House over the period from the parties’ marriage until trial wasabout $125,500, being $157,000 less $31,500. The Husband shall retain his interest. The Wife is entitled to $62,750 to reflect her one-half of that interest. iv) Wasting of Family Assets [170] The Wife argued that the Husband had wasted family assets by paying $500.01 per month to Lesli for about ten years, being atotal payment of about $60,000.

The Wife argued that these payments were made from family funds. She claims an additional $30,000 ascompensation for this “diversion” of funds to Lesli and Harbans. That figure is one-half of the amount paid without taking any growthinto consideration. [171] Under the Family Relations Act, R.S.B.C. 1996, c. 128, the legislation which preceded the FLA, the court ordered unequaldivision of family assets where a spouse spent family money on a secret second marriage or common law relationship. See Yang v. Yang,2001 BCSC 1322, rev’d on other grounds 2003 BCCA 473; and Fernandez v.

Fernandez, (B.C.S.C.), rev’d in part byconsent (B.C.C.A.). [172] Justice Macaulay wrote as follows in Johnstone v. Johnstone (1981), (BC SC), 33 B.C.L.R. 368 at 388 (S.C.): The conduct between the parties is not relevant, but what can be relevant are the activities of each spouse in developing the assets. If onespouse conscientiously and carefully works to develop the assets, whether by contribution of money or labour or time and the other bywhatever contribution he or she is capable of or does make, actively decreased and devalues the assets it would be unfair to divide themequally.

This consideration does not relate to the salaries earned by the spouses, but to their contributions, considering their abilities,opportunities, capabilities, etc. [173] In cases under the FLA where a spouse had wasted assets prior to trial, I would be inclined to consider whether an unequaldivision would be appropriate under s. 95, and in particular s. 95(2)(g)(ii). [174] Here, I have determined that the Husband’s contribution of $500.01 per month was in part a basis for concluding that he owned aone-third interest in the Delta House, and could be considered part of his contribution to the financing and costs of the Delta House.

As aresult, such payments were not wasting family assets. The payments are properly taken into account through assessing the Husband’sinterest in the Delta House.

v) Family Residence [175] The value of the Family Residence as at July 30, 2014, was $585,000. It is not encumbered by a mortgage. Both parties take theposition that the value of the Family Residence should be divided equally. Accordingly, the vendor is entitled to $292,500 in respect of

his or her share of the Family Residence. vi) RRSPs [ 176 ] The parties agreed that the increase in their RRSPs during the period from marriage until trial should be equalized, but their calculations were initially different. [ 177 ] The parties agreed that the Husband’s TD RRSP was entirely excluded property and should not be considered. [ 178 ] The Wife’s position was that the Husband should be credited with retaining $38,700 in RRSPs, and she should be considered to have retained about $58,000.

The Wife is entitled to recognition for the fact that she removed $20,000 from her RRSP to contribute to the costs of the Family Residence, and then replaced it. [ 179 ] The Husband’s position is that his RRSP for the purposes of division consisted of the Husband’s GWL RRSP with a value on separation of about $36,000.

His position changed during argument about the amount of the Wife’s RRSPs acquired during the relationship, but he ultimately agreed with the Wife’s position that the growth during the period from marriage until trial was about $58,000. [ 180 ] On my calculations, the total growth in the parties’ respective RRSPs from marriage until trial was about $94,000, being $58,000 plus $36,000.

One-half of that is $47,000. [ 181 ] The Wife shall transfer $11,000 to the Husband to equalize the value of the growth in the parties’ RRSPs between the date of the marriage and trial. vii) Canada Pension Plan [ 182 ] The parties agree that their Canada Pension Plan credits should be divided on the basis of the date of marriage of August 25, 2002, and the date of separation of February 1, 2014. viii) Household Contents and Vehicles [ 183 ] The parties agreed that if they cannot reach an agreement as between themselves about the division of household contents and vehicles, the question shall be referred to the registrar to effect an equal division. ix) Bank Accounts and Credit Card Debt [ 184 ] On separation, the Wife had about $3,000 in bank accounts and owed about $2,000 in credit card debt, for a net of about $1,000.

The Husband had about $13,500 on deposit in a bank. [ 185 ] Pursuant to s. 87 (b)(ii) of the FLA , the value of family property and family debt must be determined as of the date of the hearing before the court respecting the division of property and family debt, unless an order provides otherwise. Pursuant to s. 86, family debt includes all obligations incurred by a spouse for the period ending when the spouses separate, unless the debt was incurred for the purposes of maintaining family property.

Pursuant to s. 95(1), the court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to divide them equally. [ 186 ] Here, the parties operated separate bank accounts both before and after separation. The amount on deposit in those accounts at trial reflected their separate spending between separation and trial. It would be significantly unfair to divide the amounts on account at banks on the basis of the value at trial. It is appropriate to consider both the parties’ indebtedness and the amount on deposit in bank accounts using the values at separation.

To equalize these items, the Husband should pay the Wife $6,250 ($13,500 plus $1,000 = $14,500 ÷ 2 = $7,250 less the $1,000 retained by the Wife).

x) Summary [ 187 ] In

summary regarding assets and debts:

a) the Wife must pay the Husband $2,250 to equalize the excluded property (before considering the RRSPs and the Delta House);

b) the parties agree that they will either continue with the existing joint RESP, or to split it into equal shares, with each parent depositing half into an RESP for such individual parent to manage, and if the parties cannot agree on which option to pursue, the RESP shall be split into equal shares, with each parent maintaining a separate RESP;

c) the Wife is entitled to $62,750 to reflect her one-half of the increase in value of the Husband’s interest in the Delta House;

d) the vendor of his or her interest in the Family Residence is entitled to $292,500 in respect of that interest;

e) the Wife shall transfer $11,000 to the Husband to equalize the value of the growth from marriage until trial in the parties’ RRSPs;

f) the Husband shall pay the Wife $6,250 to equalize the bank accounts and credit card debt;

g) the parties agree that their Canada Pension Plan credits should be divided on the basis of the date of marriage of August 25, 2002,

and the date of separation of February 1, 2014; and

h) if the parties cannot reach an agreement as between themselves about the division of household contents and vehicles, the question shall be referred to the registrar to effect an equal division. [ 188 ] The effect of these determinations is that if the Wife retains the Family Residence, she must pay the Husband $236,750.

That consists of $2,250 (excluded property equalization) plus $292,500 (Family Residence equalization), plus $11,000 (RRSP equalization) less $62,750 (Delta House growth equalization), and less a further $6,250 (bank accounts and credit card equalization). [ 189 ] The effect of these determinations is that if the Husband retains the Family Residence, he must pay the Wife $348,250.

That consists of $292,500 (Family Residence equalization), plus $62,750 (Delta House growth equalization), plus $6,250 (bank accounts and credit card equalization), less $2,250 (excluded property equalization), and further less $11,000 (RRSP equalization).

c) Purchase of Other’s Interest in the Family Residence [ 190 ] Both parties wish to purchase the other’s interest in the Family Residence. Both argue that the children will enjoy the continuity of staying in the Family Residence. The Wife’s position is that it is an issue of affordability, and that because the Husband will likely retain his interest in the Delta House, he is not realistically in a position to purchase the Wife’s interest in the Family Residence. [ 191 ] It can sometimes assist parties and children to move forward if neither of them retain the former family home.

However, if one parent retains the former family home, the children can have the benefit of the stability of spending time in that home. In this case, the children have continued to stay in the Family Residence, although only during the Husband’s parenting weeks. [ 192 ] The Wife did not follow the intention of the Caldwell Order, which was that the children would remain in the Family Residence and the parents would alternate weeks of living there. She was anxious about living there while the Husband retained a key to the Family Residence.

It is reasonable that her anxiety will resolve if she is able to change the locks and install an alarm system in the Family Residence. Her failure to live at the Family Residence during her parenting weeks is not sufficient to disentitle her from purchasing the Family Residence. [ 193 ] The Husband will have ongoing expenses relating to his interest in the Delta House, unless it is sold. There are no present plans to sell either the Delta House or the Husband’s interest in it. The Husband has demonstrated an intention to continue to provide some financial support to Harbans and Lesli.

Those ongoing expenses would be in addition to any costs relating to purchasing the Wife’s interest in the Family Residence.

While the Husband testified that he wished to purchase the Wife’s interest in the Family Residence, he did not provide details, and in particular, he did not establish that he could afford to do so if the court determined that he had an interest in the Delta House. [ 194 ] In contrast, the Wife established that she has arranged financing to purchase the Husband’s interest in the Family Residence. [ 195 ] The Wife is entitled to purchase the Husband’s interest in the Family Residence on the basis that she pays him $236,750 within 60 days of the release of these reasons for judgment.

If the Wife does not complete the purchase within that time, the Family Residence shall be listed for sale, with the parties to have joint conduct of that sale and liberty to apply for any orders relating to the sale. In that case, the net sale proceeds will distribute so that, to equalize the parties’ interests in assets other than the Family Residence and excluded assets, the Husband pays $55,750 to the Wife.

That consists of $62,750 (Delta House growth equalization), plus $6,250 (bank accounts and credit card equalization) less $2,250 (excluded property equalization), and less a further $11,000 (RRSP equalization). After that adjustment, the net sale proceeds will be divided equally.

d) Divorce [ 196 ] The parties have lived separate and apart for over a year. Reasonable arrangements for the support of the children will be made by the order resulting from these reasons for judgment. The other requirements for a divorce have been proven. The parties are divorced, with the divorce to be effective 31 days after the release of these reasons for judgment, pursuant to s. 12 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.).

e) Costs [ 197 ] The Wife sought leave to address the subject of costs after receiving the reasons for judgment on the issues at trial. [ 198 ] The Husband argued that he should be entitled to costs from two chambers appearances related to the Wife’s Notice of Application filed February 13, 2014, where she sought police assisted restraining orders against the Husband, exclusive occupancy of the Family Residence, and an order that the Husband’s parenting time must be supervised.

However, the Husband also took the position that he is prepared to speak to the issue of costs after the release of the reasons for judgment on the issues at trial. [ 199 ] The parties have liberty to address the issue of costs. They should estimate the time required for such a hearing, and arrange a hearing before me through the registry.

SUMMARY [ 200 ] In

summary:

a) The Wife will be the parent who makes decisions on behalf of the children in the event of disagreement between the parents.

However, the Wife must inform the Husband about anticipated decisions and must request and consider his views before making any decisions, and they are subject to review by the court under s. 49 of the FLA ;

b) The children shall continue to attend Southridge school, and the parents shall share the expense in proportion to their respective incomes. However, the parties are not obligated to contribute to any other special and extraordinary expenses for the children unless there is a further written agreement or court order;

c) By consent, the parties will either continue with the existing joint RESP, or split it into equal shares, with each parent depositing half into an RESP for such individual parent to manage. If the parties cannot agree on which option to pursue, the RESP shall be split into equal shares, with each parent maintaining a separate RESP;

d) By consent, the parties’ respective Canada Pension Plan credits shall be divided on the basis of the date of marriage of August 25, 2002, and the date of separation of February 1, 2014.

e) If the parties cannot reach an agreement as between themselves about the division of household contents and vehicles, the question shall be referred to the registrar to effect an equal division;

f) The Wife is entitled to purchase the Husband’s interest in the Family Residence on the basis that she pays him $236,750 within 60 days of the release of these reasons for judgment. If the Wife does not complete the purchase within that time, the Family Residence shall be listed for sale, with the parties to have joint conduct of that sale and liberty to apply for any orders relating to the sale. The net sale proceeds will be distributed so that, to equalize the parties’ interests in assets other than the Family Residence and excluded assets, the Husband pays the Wife $55,750. After that adjustment, the net sale proceeds will be divided equally;

g) The parties are divorced, with the divorce to be effective 31 days after the release of these reasons for judgment, pursuant to s. 12 of the Divorce Act ; and

h) The parties have liberty to set a hearing before me to address the issue of costs. “Gray J.”