O’Connor v. Mills, 2024 BCSC 20

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: O’Connor v. Mills, 2024 BCSC 20 Date: 20240105 Docket: E191117 Registry: Vancouver Between: Nicola Elizabeth O’Connor Claimant And Michael John Mills Respondent Before: The Honourable Justice Hardwick Supplementary Reasons for Judgment Counsel for the Claimant: S. Beebe Counsel for the Respondent: A. Winters J. Harrigan Place and Date of Trial/Hearing: Vancouver, B.C. December 14, 2023 Place and Date of Judgment: Vancouver, B.C.

January 5, 2024 [ 1 ] On October 30, 2023 my written reasons for judgment were released in this family matter, after a lengthy trial which commenced in 2022 and continued into 2023.

The reasons for judgment are indexed as 2023 BCSC 1886 (the “Trial Reasons”). [ 2 ] Having regard to the degree of complexity of the legal issues, at para. 265 of the Trial Reasons I gave leave to the parties to submit their preferred form of final order through Supreme Court Scheduling, if necessary, rather than requiring them to utilize the usual process of settling the terms of an order before the registrar pursuant to the Supreme Court Family Rules . [ 3 ] It was contemplated that this process would occur concurrently with the delivery of written submissions on the issue of costs.

As it turns out, the parties have since consented to a delayed timeline for the delivery of the costs submissions and that issue remains live to be argued before me on a subsequent date. [ 4 ] The issue of settling the terms of the order, however, is paramount as the respondent, Mr. Mills, filed a notice of appeal. A cross- appeal had not yet been filed on behalf of the claimant, Ms. O’Connor, at the time I heard oral submissions by the parties in December 2023, but she was still within the permitted time to do so.

I thus accept the representation of counsel that filing a cross-appeal was imminent and thus resolution of these matters in a timely way is to the mutual benefit of both parties. [ 5 ] Specifically, both parties, and their respective appellate counsel, require the terms of final order made October 30, 2023 (“Final Order”) to be settled so that it can be included in the Appeal Record and they can draft the legal arguments in their factums accordingly. [ 6 ] At the time the application records were originally filed (December 12, 2023), the respondent had an application before the Court for, in

summary terms, a stay of execution, an interim distribution of certain trust funds and certain ancillary orders. Fortunately, counsel was able to negotiate a resolution of those issues on terms satisfactory to the parties. I have already endorsed the mutually approved form of consent order. [ 7 ] This, given the mutual consent to defer submissions on the issue of costs, leaves for determination only the claimant’s notice of application filed December 4, 2023 (“Claimant’s Notice of Application”). The Claimant’s Notice of Application seeks the following relief: 1. Pursuant to

section 15-1(18) of the Supreme Court Family Rules (“ SCFR ”), a clarification or amendment of the Reasons for Judgment pronounced by the Honourable Justice Hardwick on October 30, 2023 (“the Reasons”), to provide for a matter that was not adjudicated on, via a clarifying order confirming that apart from $1,850,000 in inherited value that the Court found to be excluded value

belonging to the Respondent, all funds contained in the Monck Park Trust Fund prior to or after trial are or were family property. 2. Pursuant to

section 15-1(18) of the SCFR , a clarification or amendment of the Reasons to provide for a matter that was not adjudicated on, via a clarifying order confirming that pursuant to section 24(2)(

d) and (

g) of the Family Law Act , all family property shall be divided on an equal basis in terms of final order. 3. Pursuant to

section 15-1(18) of the SCFR , a correction to a clerical mistake or error arising in the Reasons, such that paragraph 213(

b) be omitted from the terms of final order as an accounting oversight erroneously calculating the parties’ pre-trial advances as credits against existing funds. 4. Costs, pursuant to Rule 5-1(28)(

h) and 16-1 of the SCFR . [ 8 ] The basis for the relief sought is set out as follows at paras. 18 to 23 of the Claimant’s Notice of Application: 18. The Claimant seeks to address discrepancies in the terms of final order proposed by the parties. 19. The primary points of contention arise from the following findings of fact in the Reasons: a. [99] Ultimately, the respondent did very competently manage the insurance claim arising from the Monck Park Fire to the overall benefit of the family unit.

The Monck Park Trust Funds are what remains from those efforts, less certain payments and interim distributions. b. [152] The starting point of the family property and excluded property analysis is thus, I find, that the respondent starts out with a presumptive exclusion, pursuant to s. 85 of the FLA, of $1,850,000. [Emphasis added in the Claimant’s Notice of Application.] c. [156] The Monck Park Trust Funds were, as at the end of October 2022, $1,878,580.26.

Interest will have been earned on those funds and there may, based upon discussions at the conclusion of trial, have been some further interim distributions from the Monck Park Trust Funds by consent. I am, however, conducting my analysis on the basis that the Monck Park Trust funds are approximately $1,878,580.26.” [Emphasis added in the Claimant’s Notice of Application.] d. [170] . . .I find I cannot reach any other conclusion than that the Monck Park Trust Funds constitute the respondent’s presumptive excluded property pursuant to s. 85(2)(

b) of the FLA. e. [171] This amount [i.e. the sum of the Monck Park Trust Funds] is less than the amount of the respondent’s presumptive exclusion of $1,850,000 representing the value of the Bellevue Property at the time he became the sole registered owner of said property.

The respondent is not entitled to credit for this discrepancy —nor is it submitted by his counsel that he should. [Emphasis added in Claimant’s Notice of Application.] f. [172] The litigation thus turns on whether the claimant is entitled to a share of the Monck Park Trust Funds under either ss. 95 or 96 of the FLA. g. 9183] . . .[I]n my view, s. 95(3) must be read in conjunction to s. 95(1).

This means that the claimant is also unable to avail herself of relying on this provision in light of my conclusion that the Monck Park Trust Funds are not family property . [Emphasis added in Claimant’s Notice of Application.] h. [213] For clarity, I consider it appropriate to summarize my key orders with respect to property division before dealing with the remaining issues:

a) The Monck Park Trust Funds shall, at first instance, be allocated 65% to the respondent and 35% to the claimant.

b) The $320,000 in interim distributions made prior to trial shall be allocated in accordance with subparagraph (

a) such that the respondent shall be entitled to credit for 65% of these interim distributions and the claimant entitled to credit for 35% of these distributions in the overall accounting. . . . [Emphasis added in the Claimant’s Notice of Application.] 20. Paragraph 99 contains the first instance of “Monck Park Trust Funds” in the Reasons. Although it is not strictly defined, the Court finds that the Fund encompasses “what remains” of the insurance payout for the loss of the Monck Park home. 21. The Court appears to find that paragraph 156 that the MPTF contained $1.878 million at the commencement of trial. 22.

However, at paragraph 171, the Court appears to find that the MPFT contained “less than the amount of the respondent’s presumptive exclusion of $1,850,000” and that he was not entitled to credit for the difference. 23.

The crux of the parties’ dispute concerning terms of final order thus turns on whether the Court intended to divide only excluded value of $1,850,000 on a 65/35 ratio, as the Claimant advocates, or to divide all property on that ratio, per the Respondent. [ 9 ] This relief is generally opposed by the respondent on the basis that the Court’s orders are clear when read in the overall context of the Trial Reasons. [ 10 ] On balance, I accept the respondent’s position.

Whether any or all of the orders I made contain a reviewable error of fact, law or mixed fact/law is now appropriately within the jurisdiction of the Court of Appeal. [ 11 ] More specifically, except as set out below, I cannot conclude that the Trial Reasons contain any clerical error which permits me to revisit my orders pursuant to Rule 15-1(18) of the Supreme Court Family Rules , even though the parties do agree I am not yet functus

officio as the Final Order remains unentered to date. [ 12 ] The first exception to this pertains to para. 171 of the Trial Reasons. Upon reflection, the wording used in this paragraph does contain a clerical drafting error which requires clarification.

Clearly, the amount of the Monck Park Trust Funds as they existed at trial, as defined at para. 156 of the Trial Reasons, exceeded what I concluded was the respondent’s presumptive exclusion of $1,850,000 (as determined upon consideration of the evidence at para. 152 of the Trial Reasons). [ 13 ] What I had intended at para. 171 was to state the general proposition that if the respondent’s presumptive exclusion had been less than the amount of the Monck Park Trust Funds as they existed at trial, the respondent would not be entitled to credit for this discrepancy in the overall allocation of assets.

It would appear that in the course of editing the lengthy Trial Reasons I inadvertently missed noting that para. 171 does, at present, read as though I was making a factual conclusion that the Monck Park Trust Funds were less than the respondent’s presumptive exclusion.

That was not my intention and contradicts my specific analysis about my ultimate conclusion as to the value of the respondent’s exclusion which I dealt with in considerable detail in the Trial Reasons having regard to the lack of expert evidence on the point. [ 14 ] Paragraph 171 of the Trial Reasons should be corrected to state as follows: [171] Had this amount been less than the amount of the respondent’s presumptive exclusion of $1,850,000 representing the value of the Bellevue Property at the time he became the sole registered owner of said property, the respondent would not be entitled to credit for this discrepancy—nor is it submitted by his counsel that he should. [ 15 ] I also recognize upon reviewing submissions of counsel that I did not specifically address any distinction between the household content portion of the insurance claim which generated Monck Park Trust Funds versus the residential structure component of the claim.

My intention was to deal with the Monck Park Trust Funds on a global basis and I did not differentiate, in making my order, between these two portions of the claim. No further order is required in this regard. [ 16 ] Leaving these clarifications aside, my key orders regarding property division are summarized in para. 213 of the Trial Reasons.

They provide, as stated therein, for an overall 65%/35% division of the Monck Park Trust Funds subject to certain exceptions where I ordered equal division. [ 17 ] The final point I will address is that I recognize that I did omit from the Trial Reasons an order that any interest that has accrued on the Monck Park Trust Funds since the time of trial is divisible using the overall 65%/35% ratio which I concluded was appropriate pursuant to the Family Law Act.

I neglected to add this as an express term, however, as I thought it was self-explanatory, and because the there was discussion at the end of the trial about interim distributions being made such that the actual amount of trust funds and, any interest accrued thereon, was unknown to me at the time that the Trial Reasons were released. [ 18 ] There shall thus be a further term included in the order arising from these supplementary reasons for judgment that any post-trial interest on the Monck Park Trust Funds is divisible 65%/35% in favour of the respondent in accordance with my order as articulated in para. 196 of the Trial Reasons and summarized in para. 213(

a) of the Trial Reasons. [ 19 ] In terms of settling the form of the Final Order, I generally prefer the draft form provided by the respondent’s counsel with the following revisions:

a) The

preamble does not reflect, “and judgment being reserved to this date”;

b) The statement in the

preamble regarding “Kate” being a child of the marriage is incorrect. Kate is no longer a “child of the marriage” as defined by the Divorce Act and the retroactive support order was premised upon it being mutually acknowledged that Kate “was a child of the marriage” at the date of separation, namely March 20, 2015. For further context in this regard, it was mutually acknowledged that Kate continued to retain status as a “child of the marriage” at the commencement of the proceedings such that jurisdiction for the Court to make a retroactive support claim was not in issue at trial. Rather, the dispute was limited to quantum of said claim and my ultimate order was made accordingly;

c) Pursuant to my above conclusion wherein I recognize that I omitted to expressly address the issue of interest on the Monck Park Trust Funds in the Trial Reasons, para. 7 needs to be amended accordingly. The net result is the same, but for the benefit of clarity of the record the interest issue needs to be addressed separately in the order arising from these supplementary reasons;

d) Paragraph 8(

b) can be omitted given my clarification provided above;

e) Paragraph 11 can be omitted. No specific order was made regarding any claim for occupational rent as this was considered in the overall analysis regarding the division of the Monck Park Trust Funds. Although not expressly articulated in the Trial Reasons, this conclusion was grounded upon the principles in this area of law summarized by the Court of Appeal in Storey v. Terry , 2020 BCCA 30 . “Hardwick J.”