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MARITAL PROPERTY - Equalization or division - Conduct of parties - Concealment of assets

Wednesday, February 19, 2020 @ 8:31 AM  

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Appeal by the husband from an order valuing and dividing family property. The parties married in India in 1977 and immigrated to Canada in 1979. They raised two children. The parties separated in 2014. The wife, age 62, was a registered nurse. The husband, age 65, was a businessman. He owned property in British Columbia, Arizona, Palm Springs and India. A 27-day trial addressed conflicting claims to assets and debts, their values and legal ownership. The trial was complicated by the husband’s inadequate and misleading disclosure of his assets. He breached court orders, made false sworn statements, forged documents and gave false testimony. The trial judge found that the husband lacked credibility and reliability as a witness, whereas the wife was careful and reliable. The judge determined that the wife made significant financial and non-financial contributions to the family in its investments. The judge rejected the husband’s request to exclude certain assets as non-family property. The judge awarded the wife lump-sum spousal support, adjusted family property by $250,000 in the wife’s favour due to concerns of unfairness arising from the husband’s conduct, and awarded the wife special costs. The husband appealed.

HELD: Appeal allowed to limited extent. Based on fresh evidence admitted on appeal, the trial judge erred in attributing the value of one of the four properties located in India to the husband, as the purchase of that property was never completed and remained the subject of ongoing litigation. The husband’s prospects of receiving any interest in that property were too uncertain to ascribe any value to it. Otherwise, the husband’s interest in the remaining properties was clear at trial and no error arose in their valuation and treatment as family property. With respect to the remaining assets and loans, the findings of inclusion as family property and their valuations were available to the trial judge given the husband’s inconsistent evidence and the adverse inferences available on the record. The award of properties to the husband in specie was within the trial judge’s discretion. In awarding unequal division against the husband based on significant unfairness related to a bad faith bankruptcy of corporate holdings, and material non-disclosure, the trial judge did not err in applying s. 95 of the Family Law Act. The finding that an equal division of assets would result in unfairness had an evidentiary basis related to the husband’s additional undisclosed assets in India. No error was established with respect to the award of special costs in the wife’s favour.

Singh v. Singh, [2020] B.C.J. No. 86, British Columbia Court of Appeal, D.M. Smith, N.J. Garson and B. Fisher JJ.A., January 23, 2020. Digest No. TLD-February172020004