IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100507

Docket: 77219

Registry:
Kelowna

Between:

C.G.H.

Plaintiff

And:

N.M.H.

Defendant

Before:
Master Young

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The plaintiff seeks an order for an interim sale of
the family home in West Kelowna on Country Pines Drive. She seeks this order
prior to trial pursuant to Rule 43 of the Supreme Court Rules. Rule 43
gives the court discretion to order an interim sale of the matrimonial home
where it is necessary or expedient to do so. The court has considered many
factors in determining necessity and expedience, including the factors set out
in the Continuing Legal Education of B.C. Family Law Source Book at page
844. I am going to summarize some of those:

(a)      whether a sale is apt to
promote an early settlement;

(b)      where a sale is apt to
defeat a spouse’s claim for reapportionment;

(c)      whether the sale is
inevitable;

(d)      whether
the sale would put a spouse and children on the street pending resolution of
the litigation;

(e)      whether
there is alterative accommodations available; and

(f)       whether
the proceeds would fall entirely to creditors.

[2]            
Where the court finds that necessity is not a factor, the court must
look to find that it is expedient. “Expedient” according to the Shorter
Oxford English Dictionary means advantageous, fit, proper or suitable to
the circumstances of the case.

[3]            
In Reilly v. Reilly (1992), 44 R.F.L. (3d) 72, the British
Columbia Court of Appeal found that where necessity is not in issue the Rule
requires that the proposed sale be advantageous to both parties. That is a
thumbnail sketch of the law.

[4]            
The facts of the case are unusual. The defendant is a paraplegic, and
has been since a motor vehicle accident in 1994 prior to this relationship. As
a result of that accident, he received a personal injury settlement of $950,000.
That was the amount that was deposited into an Investors Group account in his
name. The parties then commenced a relationship sometime in 2000 and commenced
cohabitation in 2000. They were married in 2001. They separated in 2007. There
are no children of this marriage. The defendant did have children from a
previous marriage. The plaintiff is 32; I think she is 33 years of age now. She
is in a new relationship and is now expecting her first child. The defendant is
45 years of age. He is currently in very poor health. This application was
originally scheduled for October of 2009, but the defendant was hospitalized
from November 8 to February 12, 2010. Two days after that discharge, he was
readmitted, and physicians are now recommending the amputation of one of his
legs.

[5]            
The defendant is permanently disabled from work. He receives a
disability pension of $2,600 per month and interest income from the investments.
His annual income ranges between $37,000 and $39,000 per year.

[6]            
The plaintiff is a journeyman electrician working for Horizon Electric. Her
income has ranged between $23,000 and $36,000 in the last three or four years. She
is now laid off, but there was some speculation by the defendant that that is
because she is pregnant now. She has provided up-to-date financial information
indicating that her 2009 income was $28,000. I assume she is cohabiting with
her partner, Mark Whitney, but I am not sure of that, and I do not know if the
expenses she reports on her financial statement are only her share of the
expenses or whether they include Mr. Whitney’s expenses. As well, I do not
know what Mr. Whitney’s income is.

[7]            
During the marriage, the defendant had sole signing authority over the
Investors Group fund, and the plaintiff did not have a say on how those monies
were to be applied. Both parties agree to that fact. The defendant did make use
of the funds from time to time to pay for his personal expenses and to pay for
family expenses.

[8]            
In August of 2001, the parties purchased the family home on Country
Pines Drive in West Kelowna. The defendant provided the down payment of $40,000
and the mortgage was held by CIBC. The house was registered in their joint
names, as was the mortgage. The plaintiff worked outside the home, at times
part-time and at times full-time, and contributed her income to the mortgage,
utilities and household expenses.

[9]            
In 2007, the parties purchased their second home on Lodge Road in Lake
Country, B.C. The defendant provided the down payment of approximately $80,000.
This property was registered in both of their names, and they were jointly
responsible for the mortgage on the property.

[10]        
When the parties separated in November of 2007, initially the defendant
moved into the Lodge Road property, and then they switched houses and the
plaintiff moved into the Lodge Road property and the defendant continued to
reside in the Country Pines Drive property. In 2008, the parties agreed to sell
the Lodge Road property, and after the sale, they netted $4,800. It was clearly
a bad investment.

[11]        
At the time of separation, there was approximately $93,000 remaining in
the Investors Group fund.

[12]        
I made a s. 67 restraining order in 2007, by consent at a judicial
case conference. Both parties were represented by counsel, and there were no
exceptions made to the s. 67 order. None were requested. The defendant has
breached that order and has liquidated over $60,000 of that investment fund
since that date, with no explanation. The only asset remaining is the balance
of the investment fund, which I am told is approximately $28,000, and the
Country Pines Drive home.

[13]        
The plaintiff seeks the sale of the Country Pines Drive home immediately.
She says the defendant cannot afford to pay her out, or pay out her interest in
this home, and so the sale is inevitable. The defendant says that he intends to
pursue a substantial reapportionment of the matrimonial home asset, and so
depending on how significant the reapportionment is, he will be able to pay out
of the plaintiff’s claim.

[14]        
The house on Country Pines Drive is wheelchair accessible. The defendant
does not have another home to go to. An interim sale would be highly
prejudicial to him, in that it would render him homeless, looking for
wheelchair-accessible housing, and the funds from the sale would be held up in
court pending a resolution of the issue of reapportionment.

[15]        
These are my findings. I find that the sale of the house is not
inevitable. There is foundation here for at least an argument in favour of a
substantial reapportionment. Even if the Investors Group fund is found to be a
family asset, which is not necessarily going to happen, the court may well
reapportion some or all of it, and some or all of the proceeds of sale for the
Country Pines Drive house to the defendant.

[16]        
There is also a claim for an accounting of investment monies liquidated
after the restraining order was made. The defendant was clearly in breach of my
order, but if the court at trial finds that he was entitled to those monies in
any event, he may not have to reimburse the plaintiff. The defendant is
currently in very poor health, and the move right now would be stressful and
disruptive and leave him with no wheelchair-accessible home to go to. If he is
not able to care for himself in his own home in the future, then that would be
a change of circumstance which would permit The plaintiff to reapply to court
for a sale of the home.

[17]        
The plaintiff is in a much better position. She is cohabiting with a
partner. I have to assume that he is working. I have not heard otherwise. They
are expecting their first child. She is an electrician and is employable if she
chooses to be. She is 33 years of age and has no health concerns that I am
aware of.

[18]        
I do not find that the sale is necessary. The payments are current and
there is substantial equity in this home. When the defendant is in hospital, his
father checks the house, so it is not wasting. I do not find that it is
advantageous to the defendant to sell the home at this time. I do not find that
the sale will be inevitable. I do find that a sale would prejudice the
defendant’s reapportionment claim at trial. I do find that he is in ill health
and has nowhere to move to at this time and is not able to cope right now with
the sale of the home.

[19]        
I am denying the plaintiff’s application. I am going to refer to the
notice of motion that was filed on October 21, 2009. I am dismissing the
applications at paragraphs 1, 2 and 3.

[20]        
At paragraph 4 of the notice of motion, the plaintiff applies for an
order to be relieved of paying one-half of the mortgage payments to CIBC, which
monies are being paid out on account of the property located on Country Pines
Drive, and I am going to make that order. I will relieve the plaintiff from
paying any future mortgage or property tax on the Country Pines Drive house. The
defendant will be solely responsible for those costs, given that he is
occupying the house and wishes to retain it. This will be a good test to see if
he truly can afford to keep the house. If he is not current on the mortgages
when this matter comes to trial, then a judge would likely decide that he
cannot afford to pay out the plaintiff’s interest.

[21]        
I turn now to paragraph 5 of the motion. I believe this deals with how
the $4,800 from Lodge Road was to be used, and I believe that there has been a
previous order that the plaintiff could apply that balance to the mortgage
payments, and that has already been done. So, with respect to paragraph 5,
there has already been a court order made. I also believe that a court order
was consented to for paragraph 6 previously, and that is for an accounting of
the investment monies, so I do not need to make orders for paragraph 5 or
6.

[22]        
A request was made that the court sanction the defendant as a result of
disposing of proceeds contrary to my restraining order. I am adjourning that to
the trial judge to deal with.

[23]        
On the issue of costs, I am going to make an order that costs be costs
in the cause for this application.

[24]        
At the end of these reasons, I will indicate again that I will order a
transcript, given that there was a misunderstanding as to where Mr. Shields
was to hear these reasons and Mr. Shea is just sitting in, so the court
will order a transcript and provide a transcript to both counsel.

Master
Young