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MARITAL PROPERTY - Equalization or division - Dissipation of assets, preservation of property

Wednesday, May 05, 2021 @ 6:31 AM  

Lexis Advance® Quicklaw®
Appeal by the husband from trial judgment dividing matrimonial property, ordering him to pay lump sum spousal support and apportioning 70 per cent of the children’s special expenses to him. The parties married in 1999 and separated in 2012. The wife was a stay at home mother throughout the marriage. She had very limited work experience and worked part time earning $25 per hour at the time of trial. The husband, a building contractor, operated the family business, Spot. Spot was the main source of family income. Many expenses were run through the company as well, including vehicles and fuel. The husband controlled a joint line of credit, bank accounts and credit cards as well as the assets of Spot. The trial judge reapportioned two assets, investment certificates in a real property development and Spot, in favour of the wife after finding the husband wasted these assets. After imputing income of $150,000 to the husband and $25,000 to the wife, the judge ordered the husband to pay lump‑sum spousal support of $113,500.

HELD: Appeal allowed in part. The trial judge erred in finding that the husband wasted the investment certificates. While the judge found that the certificates had no value at the time of trial, her finding that the $175,000 face value of the certificates could have been applied to an alternative real estate development sometime after separation but prior to 2015, suggesting there was some value in the investment, was too speculative and was not an inference that could be drawn from the evidence. The judge did not err in valuating the other assets or in reapportioning Spot. The trial judge did not err in averaging the husband’s historical income in years when his lack of motivation to work and his preoccupation with this trial were not factors. There was no basis for interfering in the judge’s finding of fact that the wife made reasonable efforts towards her own self‑sufficiency prior to trial. The judge’s assessment of her abilities, and what she could reasonably earn in the future, based on consideration of several connected factors, was entitled to considerable deference. The husband did not establish that the judge made an error in principle or any other error in the determination of spousal support. The lump‑sum amount, while significant to the parties, could easily be exceeded by legal fees if there was ongoing litigation. The historical power dynamics between the two parties also made a lump‑sum award appropriate. It was reasonable to consider the lump‑sum payment of spousal support as though it was amortized over the years it was meant to address when determining the parties’ incomes for purposes of calculating their proportionate share of s. 7 expenses. The husband did not establish any principled basis for interfering with the exercise of the judge’s discretion in respect of the payment of the children’s special expenses.

Zilic v. Zilic, [2021] B.C.J. No. 442, British Columbia Court of Appeal, B. Fisher, S.A. Griffin and P.G. Voith JJ.A., March 9, 2021. Digest No. TLD-May32021007