Goegan v. Stockley Date:, 2017 BCPC 195

Citation: Goegan v. Stockley Date: 20170515 2017 BCPC 195 File No: C-1450568 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: JANICE GOEGAN CLAIMANT AND: MARTIN JOHN STOCKLEY DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Appearing on her own behalf: J. Goegan Counsel for the Defendant: J.G. Diamond Place of Hearing: Vancouver , B.C.

Dates of Hearing: April 19, 20; June 8; November 9, 2016 Date of Judgment: May 15, 2017 [ 1 ] The claimant, Janice Goegan, seeks to enforce part of an agreement reached at a mediation which resolved all matrimonial property matters between herself and the defendant, Mr. Stockley. The parties lived together from 1990 to 2012. At issue is the division of the household contents of their home in Whistler where they lived from 1997 to late 2011.

At the commencement of the hearing, the issue of the proper forum for the resolution of this matter was canvassed and both parties consented to proceeding in Provincial Court and dealing with the dispute as a contractual matter. [ 2 ] The mediation dealt with two real properties, two businesses, and various investments. The evidence is that the issue of division of the household contents was the last matter dealt with after a very lengthy shuttle mediation session which had consumed an entire day and carried on into the early morning hours of the next day.

The parties separated in December of 2011. [ 3 ] At the time of the mediation in early May of 2014, Ms. Goegan had not been living in the home and had returned to it only on a few brief occasions up to the fall of 2012. In preparation for the mediation, she prepared from memory a list of what she believed the contents were. The list contains over 200 items for the Whistler home and also listed the contents of the Seattle home. I accept the list was reviewed by Mr. Stockley for the first time at the mediation. Mr. Stockley agreed she could take any of the contents she desired. Later, through her counsel, Ms.

Goegan said she wanted everything on the list. Ms. Goegan said all the dollar values on the list were agreed to while Mr. Stockley says the monetary values were never discussed at all. I accept he did not agree to the values listed as many are patently unreasonable. As an example, Ms. Goegan suggested that a well-used set of Tupperware had a value of $300.00. [ 4 ] Although it does not directly figure in the matters to be resolved, for purpose of the assessment of the reliability of the perceptions and recollections of the parties, I have considered and given weight to the matter of the dogs.

As a couple they shared two border collies that were aged and very dear to both of them. As the dogs had spent their lives to the point of separation in Whistler and Ms. Goegan was living in the city of Seattle, it was agreed the dogs would remain with Mr. Stockley in their former home in Whistler. Ms. Goegan was to have visits with the dogs when she was in Whistler. Ms. Goegan believes that Mr. Stockley intentionally denied her access to the dogs. The dogs then passed and Ms. Goegan was understandably very upset that she had not been able to care for them and spend more time with them prior to their passing.

Needless to say the parties hold different perspectives on the issue of the dogs which, among other issues, negatively impacted their respect for each other and their willingness to cooperate to finalize the details of their mediation agreement and in particular to deal appropriately with the household contents in Whistler. I also note that by the time of the mediation the parties were communicating only through counsel. [ 5 ] Conflicts about various matters arose between the time of the mediation and when Ms. Goegan eventually arrived with a moving van in Whistler on July 19, 2014 (the move or moving day). Mr.

Stockley had a new partner who he had married the summer before and did not want Ms. Goegan in the home. He agreed to move the items out of the home and secure them in the driveway. He also took the position that a crane would be required to remove a hot tub and some planters from a deck and the dining table from the living area. Mr. Stockley was unwilling to move the large solid plank dining table out through the interior of the home due to the potential for damage or injury. Ms. Goegan did not agree a crane was required and refused to arrange for one.

A utility trailer, which was not roadworthy and was uninsured, and some scaffolding were stored in a container in Pemberton. Ms. Goegan expected Mr. Stockley to move these items to Whistler while he took the position she should go there and get them. No discussions were had regarding his personal property which was on the list such as his sporting equipment. [ 6 ] The household inventory was not addressed further by counsel when drafting the formal mediation agreement. Mr. Stockley did not take the list Ms.

Goegan prepared and do an inventory of what remained in the home at any time prior to her arriving to pick up the contents. He did say he used the list to go through the home locating items. Mr. Stockley says some of the property was not in the home any longer because it had been disposed of before separation or in the period between separation and the mediation or had already been removed by Ms. Goegan. [ 7 ] As noted above, Ms. Goegan prepared the list from memory and had already removed many items from the home after separation and had not kept a list of what she had taken. Ms.

Goegan firmly relies on the premise that her list is accurate and the inventory she and her sister kept on the moving day was complete and accurate. The greater likelihood is that neither is entirely accurate. In particular, omissions were bound to have occurred as only she and her sister kept the inventory although others were on hand to assist in unloading, sorting, and reloading the items. Her recollection and perception was and is motivated by self-interest and impacted by significant animus. Her account is also subject to the frailties of human memory and simple errors due to the nature of the task.

It is more likely than not that some items she listed were disposed of or misplaced during their relationship, disposed of by Mr. Stockley before the mediation or were already removed by her. I find on all the evidence that the inventory Ms. Goegan and her sister kept was not completely accurate. [ 8 ] Only some issues were identified and most were not resolved in advance of the move. Many of the potential problems were not addressed at all.

On the basis of their testimony and the correspondence between their lawyers, I find that both parties failed to reach an understanding as to logistics or what items were available to be provided in the driveway on the moving day. Ms. Goegan approached this matter in a punctilious and rigid manner while Mr. Stockley was somewhat indifferent and off hand. I find that by the time moving day arrived, each party was very upset and frustrated with the other and this substantially impacted the manner in which Mr. Stockley approached providing the items on the list and the approach Ms.

Goegan took to dealing with what was located in the driveway. Furthermore, Ms. Goegan held a “Garage Sale” in Mr. Stockley’s driveway on moving day and did not keep a list of the items that were sold. At one point, the police were called and attended. Ms. Goegan also abandoned many items in the driveway which Mr. Stockley then had to move back into the house or dispose of. [ 9 ] There are many items on the list which, at law, are of no value such as Tupperware and well used Ikea furniture and many used household items which are of minimal value (see: G.L.N. v. C.L.N. , 2005 BCSC 768 at para. 46 ).

There are some items which are

categories and for some of these Ms. Goegan failed to establish to the balance of probability what specific items were contemplated and which she did not obtain. There were some items she decided not to pursue at trial. I find at the time of the mediation the parties were not in fact ad idem with respect to some items and further clarification was required but did not occur. Therefore the Court must infer what the parties would reasonably have agreed to had these issues been addressed. [ 10 ] Overall, I find both Ms. Goegan and Mr. Stockley were honest witnesses who testified to the truth as they recall it.

Both parties are of excellent character and were forthright in their testimony. I find they were each equally reliable. However, all of the events they testified to were fraught. Each was impacted by high emotion and an entrenched point of view as to the conduct and motivation of the other. [ 11 ] After a careful review of the evidence of both parties and the witness, I find as follows with respect to those items which I understand Ms. Goegan is seeking damages: A. Spare king bed - Mr. Stockley said it was left in driveway. There are photos which support this. He also says Ms.

Goegan left all the mattresses he provided behind. Ms. Goegan says the mattress and frame depicted is a different bed. I am unable to find on all the evidence that Ms. Goegan has proven to the balance this item, being both the mattress and frame, was not provided by Mr. Stockley. In any event, a used mattress has no value and I have insufficient evidence to determine if the frame alone was of any value. B. Mirror for pine dresser - Ms. Goegan says she did not get the mirror. Mr. Stockley says he did leave the mirror. I am unable to find on all the evidence that Ms.

Goegan has proven to the balance this item was not provided by Mr. Stockley. C. Linens - Ms. Goegan said she didn’t receive all the bedding she believed was in the home. She was unable to specify which particular items she did not get. Some of the duvets were made by her although not hand crafted. Mr. Stockley said one set she says she didn’t get is shown in a photograph being carried away by someone at the garage sale. I find that Ms. Goegan has failed to prove to the balance that she did not obtain these items. In any event I find these items to have no value. D. Bedding - This item is shown as received on Ms.

Goegan’s inventory list. She conceded that one bedding set was purchased after separation by Mr. Stockley. He said he did not want to keep any bedding he had shared with Ms. Geogan. I do not find it was reasonable to include the new bedding as part of the household effects contemplated by the parties at the time of mediation. Ms. Goegan referenced another very high end set of sheets which she said was purchased late in the relationship. I find she failed to prove this set of sheets existed at the time of the mediation and was available to be provided to her. E. Replacement glass for pictures - Ms.

Goegan is claiming $411.00 for replacement picture glass. She says she found the glass broken when she unpacked the truck. Mr. Stockley says the glass was not broken when he left the pictures in the truck. There is nothing in the evidence to assist to resolve this issue. I find Ms. Goegan has failed to prove to the balance that Mr. Stockley was responsible for the breakage as opposed to it having been broken by her activities. F. 3 small lamb’s wool rugs - Ms. Goegan said these rugs were not provided. Mr.

Stockley said these rugs were no longer in the home and he believed she had already removed them on a prior occasion. I am unable to find on all the evidence that Ms. Goegan has proven to the balance these items were in the home and should have been provided by Mr. Stockley. G. 2 of 4 solid wood benches - Ms. Goegan says only two benches were provided. She said she could see the others inside the home and on the deck on the day of the move. Mr. Stockley says four were left on the driveway and two were left behind by Ms. Goegan. Mr.

Stockley says his neighbour bought two of them for $40.00 each at the garage sale and his sister bought them both back for $100.00. Ms. Goegan estimated their value prior to mediation at $100.00 each. At trial she submitted two benches would have an estimated value of $3463.00. The benches were made by Mr. Stockley from scrap wood in 1997 or over the years. On all the evidence I find that Ms. Goegan has proven to the balance that only two benches were left for her. I find the value of each bench to be $40.00. H. Tiffany style lamps - Mr. Stockley says these lamps were broken and discarded prior to the mediation.

He said he broke all of them when he was rearranging the house after Ms. Goegan left. He implied they were of little value and I took from his tone as he testified to this that he did not regret the loss of these lamps. I do not find Ms. Goegan has proved to the balance that the two or three lamps she expected to receive still existed and were able to be provided to her. I. Bohusalon Ikea chair - Mr. Stockley says this chair was purchased before they moved into the Whistler house. Ms. Goegan agreed this chair had been around for a considerable period of time. Mr.

Stockley said he had discarded it prior to the mediation. I find this item to be of no value and do not need to resolve any issues of credibility as to whether it could have been provided to Ms. Goegan. J. Langostino pots and pans - This item was not checked off on Ms. Goegan list. She did not address it further in her testimony and did not cross-examine Mr. Stockley about it. Mr. Stockley did not mention it in his evidence in direct. As a result I am unable to find Ms. Goegan has proved it to be more likely than not that it existed and was not provided. K. Stock pot - Ms.

Goegan said she did not receive the stock pot but rather received another pot. Mr. Stockley said he provided a stock pot. I find I am unable to resolve whether there is any difference in value between the pot received and the pot expected or whether the pot received was not a stock pot. L. Alessi silver platter - Mr. Stockley was unclear about whether he had provided this serving plate to Ms. Goegan and said that it was not in the house anymore now. I find Ms. Goegan has proved this platter existed and should have been provided. I find that value of this platter to be $50.00. M. Tupperware set - Mr.

Stockley agreed that this was missed. He said his sister packed up the kitchen for him. The set was at least 10 years old and I find it to have no value. N. Butcher block knife set - Mr. Stockley said he did provide the knife set and also that he failed to provide the knife set. He also said his sister packed up the kitchen items. He said the knife set was purchased prior to their move to Whistler. I find Ms. Goegan

has proved to the balance that this item was not provided and did exist. No information was provided as to the brand or quality of the knife set or what the set was worth other than Ms. Goegan providing the price of a new set of Wusthof knives as $279.99 USD. Given the age of the knife set but accepting it was of high quality and is a product that should last “a lifetime”, I find the value to be $200.00 CDN. O. Dining table - According to Mr. Stockley the dining table was a very large and heavy item that was put together inside the home and could not be taken apart.

He made it shortly after they moved into the Whistler home from scrap wood from his landscaping business. In his view, it was too large and heavy to be carried up the stairs from the main floor to the driveway level. He believed a crane would be required to remove the table from the main floor deck. His position in this regard was communicated to Ms. Goegan well in advance of the move. Ms. Goegan did not believe a crane was necessary and did not arrange for one. I find it was within Mr. Stockley’s rights as the occupant and new owner of the Whistler property to determine if a crane should be used.

Due to the nature of his business he has experience with moving heavy items around residences and in using cranes to do so. Ms. Goegan simply refused to accede to his view. I find this item to have been abandoned by her. P. Remote for stereo component - Mr. Stockley said it was broken and had been for some time prior to the mediation. I find Ms. Goegan has not proven to the balance this item was available to be provided. Q. Bose Sound dock - Mr. Stockley conceded he failed to provide this item as it was at his store and was overlooked. Ms. Goegan said she believed it cost $499.00 in 2009. Mr.

Stockley said he believed it cost $150.00 in 2006. It did not have a blue tooth function. Ms. Goegan provided information about the price of a used Bose dock but there is insufficient evidence to allow the Court to determine if it is a comparable item. I find Ms. Goegan has failed to prove this item was of any value. R. iPod - Ms. Goegan received a mini iPod. She said it should have been a full size iPod. I find that Ms. Goegan has failed to prove that a used iPod has any greater value than a used mini iPod. S. Spool of wire for entertainment system - Mr.

Stockley says he put the spool of extra wire in the driveway. He said they never had any high tech wire and only ever used regular speaker wire. Ms. Goegan agrees a spool of wire was provided but it was not the high tech wire they had from when they set up their stereo. On the evidence I am unable to resolve whether there ever was any high tech wire. I find Ms. Goegan has failed to prove she did not get the wire contemplated. T. 4 televisions - Ms. Goegan’s list indicates two televisions being a 40” “Daylect” and a 32” Sony.

She did not testify as to whether these were the televisions she received or were the two that were missing. She was unable to describe the two she did get or the two she did not get. She provided evidence of the value of a used 42” LG HD LCD etc. item as $899.99 USD. Mr. Stockley says he left four televisions for her being a 42” Ditech (pre HD), a 42” Samsung, and two 27” Samsungs. I find Ms. Goegan has failed to prove to the balance that she did not get the televisions contemplated. In any event, the evidence is insufficient to establish what if any value the two items she said she did get would have. U.

Motorola radios - Mr. Stockley says that over the years his business purchased various Motorola vehicle mount or hand-held radios and bases. He provided two hand-held and one vehicle mount radios to Ms. Goegan. All were functional. Ms. Goegan says she only got one “crappy” radio. I find that, even though they may have also been used for personal purposes during the relationship, these were the property of Mr. Stockley’s business and the parties were not ad idem about this item. V. 3 barbeques - Ms. Goegan received 2 gas barbeques and one small charcoal grill. Mr.

Stockley said those were all the barbeques in the home except for a new one he purchased in anticipation of giving the others to Ms. Goegan. I find Ms. Goegan received the items contemplated at the mediation. W. 3 large concrete planter pots - I find these items were abandoned as Ms. Goegan did not arrange for a crane. I also find she refused to accept reasonable substitutes. X. Umbrella stand - Mr. Stockley said they had never had a cast iron umbrella stand at the home in Whistler. Ms. Goegan said it had been at the Seattle condo and she had brought it to Whistler.

There is no evidence to support one party’s evidence over the other and I find Ms. Goegan has not proven this item to have been at Whistler property. Y. Hot tub - For the same reasons stated above with respect to the dining table and planters, I find this item was abandoned. Z. Carpet beater for central vacuum - The parties agree they had hoses and a beater bar set for each floor. Mr. Stockley provided Ms. Goegan with one full set. I find this was reasonable and is what would have been agreed to if it had been clear from the list prepared for the mediation that Ms.

Goegan wanted all of the central vacuum system tools and attachments. AA. Landscape equipment, small tools, power tools, and Shop Vac - Ms. Goegan was unable to specify what items existed that she expected to receive. She did receive some assorted items in these categories. She did not recall receiving some items until put to her in cross-examination. Mr. Stockley says that, aside from a few small hand tools such as hammers and screwdrivers, he would bring home whatever tools they might need from his business and then return them.

This included any Shop Vacs which he described as a “disposable” item in his business. I find Ms. Goegan has failed to prove that there were other items contemplated by the parties which she did not receive or that there were items which existed that she did not get. BB. Christmas decorations and bulbs - Mr. Stockley says he did not find any Christmas decorations in the home except those he brought to the relationship and a stuffed Moose. There is nothing in the evidence which assists me to resolve this issue and I find Ms. Goegan has not proven to the balance these items were available to be provided to her. CC.

Trailer and scaffolding - I find that, had the issue been addressed, Ms. Goegan would have been responsible to take steps to repair and insure the trailer and go to Pemberton to get it and the scaffolding. As a result I find these items were abandoned. DD. Bicycles - Ms. Goegan says she should have received two mountain bikes and one road bike. Mr. Stockley says the road bike

was his and he did not agree to allow Ms. Goegan to take his personal sporting equipment. I find the parties were not as ad idem on such items. Ms. Goegan received one mountain bike which was intact except for a broken chain. The other mountain bike had been given away previously by Mr. Stockley. A second mountain bike was brought to Ms. Goegan but she refused to take it believing it to be a child’s bicycle. I find Ms. Goegan has failed to prove to the balance the second mountain bike in question was of any value or was able to be provided. In any event she should have accepted the replacement offered. EE.

Surfboards - Mr. Stockley pointed out a surfboard in the photographs of the items on the driveway. There was also a windsurfer and a boogie board provided. Ms. Goegan had taken one surfboard on an earlier occasion. Ms. Goegan says there was no surfboard. The surfboard in question was Mr. Stockley’s and I find it would not reasonably have been found to be part of the household contents contemplated at the mediation. Therefore, I need not resolve whether it was or was not provided. FF. Bonair hotel credit - Mr. Stockley agreed Ms.

Goegan could have the hotel credit in the amount of $1000.00 provided it will still be honoured. Mr. Stockley will take any steps necessary to facilitate this. [ 12 ] Overall, I find Mr. Stockley was in substantial compliance with the agreement reached at mediation. I find he acted reasonably, although not perfectly, in attempting to comply with the spirit of the agreement. [ 13 ] On June 27, 2016, I commenced my reasons for judgment orally in an attempt to bring an end to proceedings which had become disproportionate in relation to the matters in issue.

As a result of comments made by the parties, I suspended those oral reasons and advised the parties I would prepare written reasons after carefully considering all the evidence and submissions. Any differences in my findings here are due to that more careful consideration. [ 14 ] Judgment is awarded to Ms. Goegan in the amount of $330.00. _______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia