IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110311

Docket: E30970

Registry:
New Westminster

Between:

Oleg Andreichikov
also known as
Oleg Yuryevich Andreichikov

Plaintiff

And:

Dina Andreichikov
also known as
Diana Andreichikov also known as
Dina Sanevna Andreichikov

Defendant

Before:
The Honourable Mr. Justice G.R.J. Gaul

Reasons for Judgment

[1]          
The issues that must be determined in this family law proceeding are as
follows:

a)    Divorce;

b)    Spousal Support;

c)    Identification, valuation
& division of Family Assets/Debts;

d)    Compensation
Payment;

e)    Miscellaneous
issues; and

f)     Costs.

Background Facts

[2]          
The plaintiff, Oleg Andreichikov and the defendant, Dina Andreichikov, are
both 54-years-old.

[3]          
The parties met when they were residents of Tashkent, the capital of Uzbekistan
in the former Soviet Union.  The defendant was living in her own apartment with
her five year old son from a previous marriage.  The plaintiff was living with
his grandmother in her home.

[4]          
The defendant has a master’s degree in economics and was working as an
economist when she met the plaintiff.  He was unemployed at the time and was
receiving a disability pension on account of an earlier motorcycle accident.

[5]          
The parties began cohabitating in or around September 1983 when the
plaintiff moved into the defendant’s apartment.  They were married on 27
December 1983 in Tashkent.

[6]          
A few years after they were married, the parties moved to another larger
apartment in Tashkent.

[7]          
In June 1988, the parties’ son Pavel was born.

[8]          
In 1990, on account of social unrest in Uzbekistan, the Andreichikovs,
along with the defendant’s parents, moved to Israel where the defendant’s older
brother, Avraham (Alic) Braverman, lived.

[9]          
Upon arrival in Israel, the plaintiff worked as a general labourer in
low paying jobs.  Since the defendant could not obtain employment as an
economist in Israel, she resorted to working as a house cleaner, in addition to
taking care of the family’s two children.  During these early years in Israel,
the Andreichikovs relied on the defendant’s income to sustain them as it was
significantly higher than the plaintiff’s income.  They also relied upon the
defendant’s mother to assist with childcare.

[10]       
The plaintiff eventually completed his technical training and became an
electrician.  The defendant took courses and became an aesthetician.

[11]       
As an electrician in Israel, the plaintiff’s income increased steadily
and eventually it surpassed what the defendant was earning.

[12]       
In 1996, the parties immigrated to Canada and settled in the Metro Vancouver
region.  At some point in time the defendant’s mother also immigrated to Canada
and settled in Vancouver.

[13]       
In November 1999, the parties purchased and moved into a home at 4291
Granville Avenue, Richmond, B.C. (the “Granville Avenue Property”).  Legal
title to this property was registered under both parties’ names as joint
tenants.

[14]       
On 1 May 2004, the defendant’s son from her previous marriage died. This
tragic event created a significant strain on the marital relationship.  Around
this same time, the plaintiff’s regular and excessive consumption of alcohol began
developing into a troubling matrimonial and family problem.

[15]       
Later in May 2004, a condominium at 8460 Ackroyd Road, in Richmond (the
“Ackroyd Road Condominium”) was purchased and registered solely in the name of the
defendant.

[16]       
In March 2006, the parties purchased a condominium on Lindsay Road in
Richmond, as an investment property (the “Lindsay Road Property”).  Like the
Granville Avenue Property, both parties were registered on title as joint
tenants.  This property was resold within six months at a profit of
approximately $20,000.

[17]       
In November 2006, the parties purchased a new home at 3760 Steveston
Highway, in Richmond (the “Steveston Highway Property”).  Again, the parties
were registered on title as joint tenants.  Shortly after the property was
purchased, the Andreichikovs moved into this residence.  The parties retained
the Granville Avenue Property and used it as an income earning rental property.

[18]       
On 27 May 2008, the RCMP attended at the Steveston Highway Property and arrested
the plaintiff for allegedly assaulting the defendant.  He was taken into
custody that night.  For the purposes of this proceeding, the parties agree
that this was the date upon which they separated.

[19]       
After spending approximately 17 days in custody, the plaintiff appeared
before a judge of the Provincial Court of British Columbia and pleaded guilty
to assaulting the defendant.  The plaintiff was released from custody and
later, on 28 July 2008, the court granted the plaintiff a conditional
discharge and placed him on probation for the period of one year.

[20]       
The Ackroyd Road Condominium was sold in August 2008.  The net proceeds
of sale are presently held in trust by the plaintiff’s former counsel because
of the plaintiff’s claim that they are a family asset and should be divided
equally between the parties.

[21]       
Since the parties separated, the defendant has been living in the
Steveston Highway Property with the parties’ son Pavel.  She has paid for all
the expenses relating to this property, except for two mortgage payments that
were mistakenly taken out of the plaintiff’s bank account by the mortgagee.

[22]       
Since around the time of his release from custody on the assault charge,
the plaintiff has been residing in the basement suite of the Granville Avenue
Property and paying for all of the expenses related to it.

Credibility

[23]       
Both sides to this litigation have challenged the credibility and
reliability of the other.  This challenge was particularly vigorous on the part
of the plaintiff.

[24]       
Counsel for the plaintiff was pointedly critical of the defendant’s testimony
and asserted that during cross examination she was caught repeatedly lying to
the court.

[25]       
For example, counsel pointed to the defendant’s evidence-in-chief where
she claimed that she “owned” the apartment she was living in when she first met
the plaintiff.  When it was suggested to her that this apartment, like all real
property in Uzbekistan, belonged to the government and was not hers to own or
sell, the defendant agreed that was a fact.  She explained that although her apartment
could not be the bought, sold or privately owned per se, the occupancy or
entitlement to reside in it could be sold or bartered on the local black-market
without a formal transfer of title.  I find the defendant’s explanation to be a
reasonable and plausible one and do not find that her use of the term “own”
when referring to the apartment injects into her evidence any element of deceit
or untrustworthiness.

[26]       
Counsel was also critical of the fact that the defendant has failed to
declare on her annual income tax returns the gratuities she has received at
work or the rental income she has received from the suite in the Steveston
Highway Property.  The defendant acknowledged this to be a fact; however she
explained that due to the nature of her work and the fact that most if not all of
her clientele are repeat customers, she receives gifts as opposed to cash
gratuities and that any gratuities she does receive are small in amount.  With
respect to the rental income, she agreed that she did not report that income;
however she explained that all of that money went towards paying a portion of
the mortgage on the residence.  In other words, she did not use the rental
income for her personal use; it was used to pay down some of the mortgage on what
the parties agree is a family asset.  It is important to note that unlike the
income the plaintiff received from the rental of the main portion of the
Granville Avenue Property which paid for the entire mortgage, the amount the
defendant received for renting the suite in Steveston Highway Property only
paid for a portion of the mortgage on that property.  While the defendant’s
failure to report the small amount of cash gratuities she received at work and
the rental income she received from the suite in the Steveston Highway Property
on her tax returns is concerning, I do not find in the circumstances of this
case that this fact reflects so poorly on her that I should find her to be a
discreditable or untrustworthy witness.

[27]       
Finally, the plaintiff claims the defendant unjustly and unconscionably blames
him for her son’s death and is therefore prepared to lie in this proceeding to exact
revenge.  While the defendant acknowledged that she felt the plaintiff
mistreated her son and that she could never forgive him for that, she denied
she was so embittered that she would fabricate her evidence and lie to the
court.  I am not persuaded that the defendant was being untruthful in her
answer.  Clearly she was pained and distressed by the way the plaintiff treated
her son and she attributes some of what happed to him to the plaintiff; however
I do not find that this has translated into a desire to exact revenge at any cost,
including perjury, against the plaintiff in this proceeding.

[28]       
Overall, I reject counsel’s contention that the defendant was deceitful with
the court throughout her evidence.  In general, I found the defendant’s
testimony and evidence to be reliable and credible.  Contrary to the
suggestions of the plaintiff, the defendant’s evidence did not reflect a vindictiveness
or spitefulness towards the plaintiff.  Notwithstanding the fact that she was
assaulted by the plaintiff and she believed he mistreated her son, she was
still willing to give him credit for the instrumental role he played in the parties’
acquisition of the various properties they have owned as well as for the good
work he did on the renovations to the Granville Avenue Property.  In simple
terms, I find the defendant was a believable witness.

[29]       
The plaintiff, on the other hand, was a less than impressive witness.  He
was regularly evasive and argumentative and on more than one occasion he was
clearly less than candid in his answers.

[30]       
The plaintiff’s memory was inexplicably and conveniently vague on issues
that one would have expected him to remember clearly.  The responses to
questions relating to the trips he has taken to Europe post-separation to see a
woman he had met over the internet are good examples of what I have found to be
the plaintiff’s determined effort to avoid providing full and frank answers to
questions relevant to this proceeding.

[31]       
On other issues, the plaintiff was obviously trying to avoid telling the
truth.  His testimony about his union’s group life insurance is but one example
of this.  In cross-examination he was asked if he had such insurance and his
reply was “maybe”.  He eventually acknowledged that he had not disclosed any
documents relating to this insurance policy and confirmed that he had removed the
defendant as the beneficiary.  When asked who the new beneficiary of the policy
was, the plaintiff answer that it was perhaps his brother.  When pressed on the
point, he agreed that the new beneficiary was his girlfriend and that she would
receive approximately $65,000 in the event of his death.

[32]       
I also found the plaintiff’s lackadaisical approach to his obligation to
disclose his financial records to the defendant and the resulting need for me
to make orders during the course of the trial directing him to comply with that
obligation to be indicative of someone intent on frustrating the defendant’s
case.  In my view, after the parties separated, the plaintiff intentionally
took steps with regard to the mortgage on the matrimonial home and payment and management
of the utilities relating to the home designed to pressure the defendant and
exacerbate her financial struggles.  He also created problems for the defendant
with respect to the health coverage she and Pavel had on account of his
employment contract.  Overall, the plaintiff’s evidence left me with the clear
impression that it was he, not the defendant, who had an axe to grind and it
was he who was prepared to stretch or conceal the truth to advance his own position
at trial.

[33]       
In summary, I found the defendant’s testimony and evidence more credible
than that of the plaintiff and therefore unless indicated otherwise in these
reasons, I have given it greater weight whenever the two have conflicted.

I.          Divorce

[34]       
Both parties seek a divorce.  They have been living separate and apart
since 27 May 2008 and there is no prospect for reconciliation: Divorce Act,
R.S.C. 1985, c. 3 (2nd Supp.), ss. 8(2)(a), 10(1) [Divorce Act].
Consequently, the order for divorce sought is granted.

II.         Spousal
Support

[35]       
The defendant seeks spousal support from the plaintiff on the basis of
compensatory and non-compensatory grounds: Bracklow v. Bracklow, [1999]
1 S.C.R. 420.  She also seeks an order for retroactive spousal support dating
from 27 May 2008, the date the parties separated.

[36]       
The plaintiff is prepared to pay the defendant spousal support; however his
position is predicated on there being an equal division of all family assets,
including the Ackroyd Road Condominium.  Moreover, the plaintiff opposes the
defendant’s claim for retroactive spousal support from the date of separation,
arguing that her delay in seeking such support precludes her from requesting it
at this point in time.

[37]       
Section 15.2 of the Divorce Act sets out the provisions that
govern spousal support, and in particular ss. 15.2(4) and (6) provide:

15.2 (4)  In making an order under subsection (1) or an
interim order under subsection (2), the court shall take into consideration the
condition, means, needs and other circumstances of each spouse, including

(a)  the length of time the
spouses cohabited;

(b)  the functions performed
by each spouse during             cohabitation; and

(c)  any order, agreement or
arrangement relating to support of either spouse.

…

(6)  An order made under subsection (1) or an interim order
under subsection (2) that provides for the support of a spouse should

(a)  recognize any economic
advantages or disadvantages to the spouses arising from the marriage or its
breakdown;

(b)  apportion between the
spouses any financial consequences arising from the care of any child of the
marriage over and above any obligation for the support of any child of the
marriage;

(c)  relieve any economic
hardship of the spouses arising from the breakdown of the marriage; and

(d)  in so far as practicable, promote the economic
self-sufficiency of each spouse within a reasonable period of time.

[38]       
The parties were married for 25 years, and although the plaintiff seeks
to characterize the union as a “modern and not a traditional marriage”, I
reject that assertion to the extent it suggests that the defendant did not
sacrifice her career aspirations in the interests of the family.

[39]       
Contrary to the plaintiff’s argument, I find immigrating to Israel resulted
in the defendant abandoning her career as an economist in Uzbekistan.  As she
could not work in her previous profession, financial necessity compelled her to
take lower paying jobs, such as cleaning houses.  She was able to retrain and eventually
become an aesthetician; however her income earning potential was still less
than what it was previously.

[40]       
I have no difficulty in concluding that the parties’ relocation to
Israel reduced the defendant’s employment opportunities and her ability to earn
an income.  On the other hand, the move permitted the plaintiff to complete his
training as an electrician and subsequently embark upon a reasonably secure and
comparatively profitable career in that field.  In other words, I find the move
benefited his career at the expense of hers.

[41]       
The financial dynamics of the marriage changed again when the parties
began to consider emigrating from Israel. At that time, the plaintiff was
working as an electrician earning a good salary.  The defendant was employed as
an aesthetician, earning less than her husband.  To improve the chances that their
application to immigrate to Canada would be successful, the parties agreed it
would be best if the plaintiff improved his English language skills and became
the principal applicant, as there was a higher demand for his skills in Canada
than those of his wife.  In the result, the parties used their limited family
finances to pay for the plaintiff’s private English language lessons.

[42]       
I accept the defendant’s evidence that she and the plaintiff discussed
how they would manage their finances in Canada and who would be the principal
provider for the family upon their arrival here.  In Uzbekistan, and for a
period of time in Israel, it was the defendant’s salary that had been the
primary source of income for the family.  The parties agreed that in Canada the
situation would be reversed.  Both parties anticipated and expected the plaintiff’s
income as an electrician would be greater than the defendant’s as an aesthetician. 
In other words, both parties discussed and accepted that in Canada, the
plaintiff would become the principal wage earner for the family.

[43]       
For the first few years after the parties arrived in Vancouver, the
plaintiff did not pursue work as an electrician.  For reasons that are unclear,
the plaintiff was reluctant to pursue employment opportunities as an
electrician and chose to work at various other jobs.  His income from this work
was modest and that resulted in financial strain on the family.

[44]       
In or around 1998 or 1999, with the assistance and encouragement of the
defendant, the plaintiff obtained work as a marine electrician.  In doing so, he
became a member of the International Brotherhood of Electrical Workers (“IBEW”).

[45]       
The documentary evidence entered at trial indicates that the plaintiff
began working with Vancouver Shipyards on a temporary basis in 1999 and accepted
a permanent position with them in June 2000.  While the plaintiff has been laid
off and recalled a number of times over the years, his seniority date with his
union and Vancouver Shipyards is 21 June 2000.  His status as a senior member
with his union places him in a favourable position for call-back in the event
of layoffs.

[46]       
The plaintiff confirmed in cross-examination that he worked full time
for Vancouver Shipyards from 26 February 2006 to 9 April 2009, when he was
laid-off.  He received employment insurance benefits of approximately $1,600
per month until he was recalled to work for a brief period between August and
October 2009.  He was laid off again in October 2009 and returned to collecting
employment insurance.

[47]       
According to the income tax records filed at trial, the plaintiff’s
income for the years 2005 to 2009 inclusive was:

2005:  $53,610

2006:  $71,203

2007:  $62,591

2008:  $90,718

2009:  $58,640

[48]       
In addition to working as a marine electrician during these years, the
plaintiff worked part-time doing home renovations.  He was paid cash for this
work and this income was never declared on his tax returns.  The amount he was
paid varied, however it would appear he earned on average between $5,000 and
$10,000 per year.

[49]       
The plaintiff acknowledged that he is a “workaholic” and proud of his work
ethic, productivity and quality of his work. Moreover, he agreed that he did
part-time renovation work in the past; however since 2009 he has reduced the
number of jobs he has taken and has earned very little from such work.

[50]       
The defendant’s income for these same years, according to her income tax
records, was:

2005:  $23,085

2006:  $28,698

2007:  $28,698

2008  $26,876

2009:  $25,076

[51]       
I accept that the defendant is nearing the end of her career as an
aesthetician.  The physical nature of the work has taken a toll on her
physically and it is unclear how much longer she can carry on in this field of
employment.  Whether she will be able to find employment in some other field is
unknown.  I accept that she has suffered and will continue to suffer economic
hardship as a result of the breakdown of the marriage.  I have no hesitancy in
concluding that the defendant will require some financial assistance from the
plaintiff and that he has the present ability and capacity to pay such
support.  Although the plaintiff argues that he has not been able to work to
the level he has in the past because of depression, I am not satisfied that
condition is a genuine one or that it prohibits him from working as a marine
electrician.  I accept that he is upset by the collapse of his marriage and the
events that led to its end, however I still find that he is qualified and able
to resume work as a unionized marine electrician.  I also find it is not
unreasonable to expect that the plaintiff can and will resume his part-time
renovation work.

[52]       
In my opinion, the defendant’s claim for spousal support is well founded
on both the compensatory and non-compensatory grounds.  This was, in my
opinion, a long term marriage where the defendant ended her career as an
economist for the betterment of the family.  The parties’ move to Israel and
then to Canada benefited the plaintiff’s career development and earning
capacity far more than it did the defendant’s.

[53]       
Using an average of the last five years of income as reported on the
plaintiff’s income tax returns and factoring a small amount for income derived
from other sources, I find the plaintiff’s income for the purpose of calculating
spousal support is $69,000 per annum.

[54]       
Using the same formula for the defendant and factoring a small amount
for gratuities she receives at work as well as the rental income from the
Steveston Highway Property, I conclude the defendant’s income for the purpose
of calculating spousal support is $27,500.

[55]       
According to the Spousal Support Advisory Guidelines, the range
of spousal support payable in the circumstances of this case is between $1,297
and $1,666.

[56]       
I am satisfied that the appropriate amount of spousal support payable by
the plaintiff to the defendant is $1,500 per month, commencing on 1 November
2009 and continuing indefinitely.  The parties will be able to apply to the
court for a review and variation of this spousal support obligation in the event
there is a material change in circumstances (Family Relations Act,
R.S.B.C. 1996, c. 128, s. 96(1), [FRA]).

  Retroactive
Spousal Support

[57]       
In her counterclaim filed 30 December 2008, the defendant sought amongst
other things an order for spousal support.  For reasons that were not
satisfactorily explained at trial, the defendant did not apply for interim
spousal support until the fall of 2009.  That application was heard by Bruce J.
on 14 October 2009 and resulted in an order directing the plaintiff to pay the
defendant $500 per month in spousal support commencing on 15 October 2009.  The
defendant’s application for spousal support retroactive to the date of
separation was adjourned generally.

[58]       
At trial, the defendant sought an order directing that the plaintiff pay
her spousal support retroactively from the date of separation to the date of
Bruce J.’s order.

[59]       
In light of the division of the remaining family assets I have made and
given the lack of any explanation why an application was not made in a more
timely manner, I find it would not be just or equitable in the circumstances to
allow this additional claim for retroactive spousal support.

III.        Identification,
valuation & division of Family Assets/Debts

[60]       
The FRA sets out the legal framework to be used in determining
what a family asset is and how it should be divided between parties upon the
dissolution of their relationship.

[61]       
The relevant provisions of the FRA relating to the division of
family assets are ss. 56 and 65, which provide in part:

56. (1)  Subject to this Part and Part 6, each spouse is
entitled to an interest in each family asset on or after
March 31, 1979 when

(a)  a separation agreement,

(b)  a declaratory judgment under
section 57,

(c)  an order for dissolution of
marriage or judicial separation, or

(d)  an order declaring the
marriage null and void respecting the marriage is first made.

(2)  The interest under subsection (1) is an undivided half
interest in the family asset as a tenant in common.

(3)  An interest under subsection (1) is subject to

(a)  an order under this Part or
Part 6, or

(b)  a marriage agreement or a
separation agreement.

…

65. (1)  If the provisions for division of property between
spouses under section 56, Part 6 or their marriage agreement, as the
case may be, would be unfair having regard to

(a)  the duration of the marriage,

(b)  the duration of the period
during which the spouses have lived separate and apart,

(c)  the date when property was
acquired or disposed of,

(d)  the extent to which property
was acquired by one spouse through inheritance or gift,

(e)  the needs of each spouse to
become or remain economically independent and self sufficient, or

(f)  any other circumstances relating to the acquisition,
preservation, maintenance, improvement or use of property or the capacity or
liabilities of a spouse, the Supreme Court, on application, may order that the
property covered by section 56, Part 6 or the marriage agreement, as
the case may be, be divided into shares fixed by the court.

[62]       
The s. 56(1)(b) FRA triggering event for this proceeding occurred
on 12 September 2008 with the issuance of a s. 57 FRA order by
Master Caldwell.

[63]       
The parties agree that the following are family assets:

a)    the Granville Avenue
Property;

b)    the Steveston
Highway Property;

c)    a “time-share”
property located in Las Vegas, Nevada, USA;

d)    two family
vehicles;

e)    the plaintiff’s
pensions with the IBEW; and

f)     the
parties’ respective Canada Pensions and Old Age Security Pensions.

[64]       
The parties disagree over whether the Ackroyd Road Condominium is a
family asset.  The plaintiff asserts this property is a family asset; the
defendant argues it is not.

[65]       
The plaintiff submits that all family assets, including the Ackroyd Road
Condominium, should be divided equally between the parties.  The defendant
agrees that most of the family assets should be divided equally; however she seeks
a greater share of the Steveston Highway Property as a means of securing her
financial self-sufficiency.

  Granville Avenue
Property

[66]       
The parties purchased the Granville Avenue Property in December 1999. 
It was the first family home that they owned in Canada.  The property included
a suite in the basement that the parties rented for approximately $650 per
month.

[67]       
As mentioned above, title to the property is registered in the parties’
names as joint tenants.

[68]       
In 2006, the parties moved to the Steveston Highway Property.  An
unsuccessful attempt to sell the Granville Avenue Property led the parties to
retain it and use it as an income generating rental property.

[69]       
The upper portion of the Granville Avenue property was rented for $2,195
per month and the lower portion was rented for $650 per month, totalling $2,845
per month in rental income.  The mortgage payment on the property at that time
was approximately $1,500 per month, which meant the parties earned
approximately $1,245 per month from this rental property.

[70]       
For the three months following the parties’ separation in May 2008, the
defendant made all of the mortgage payments on both the Granville Avenue
Property and the Steveston Highway Property.  In doing so, she relied upon the
rental income being generated by both properties.

[71]       
Shortly after his release from custody, the plaintiff returned to the
Granville Avenue Property and began residing in the basement suite.  The upper
portion of the residence continued to be rented at a rate of $2,195 per month,
with the tenant also paying all of the utilities.  The plaintiff made a small
token contribution to these expenses.  All of the rental payments for the
property went to the plaintiff.

[72]       
In early 2009, the plaintiff renegotiated the mortgage on the Granville
Avenue Property, resulting in the monthly mortgage payment being reduced to
approximately $600.  This resulted in significant savings for the plaintiff;
however that benefit was not shared with the defendant.

[73]       
The plaintiff retained all of the rental income for himself and did not
begin declaring it on his income tax return until 2009.  While the plaintiff
was unable to quantify an amount, I accept he used a small portion of the
rental income to pay for maintenance of the property.  He also used the funds
to pay the mortgage for the property.  Notwithstanding these expenses, I find
the plaintiff was still able to pocket a reasonable monthly income from this
rental property.  He did so knowing full well that the defendant was struggling
to pay the mortgage and associated operating expense for the Steveston Highway
Property on her small income and the rental income she was receiving from her
tenant.  In what I find to be a callous disregard of the difficulties the
defendant was having maintaining a home for herself and the parties’ son, the
plaintiff refused to assist them in any way, including sharing the rental
income he was collecting from the Granville Avenue Property.

[74]       
Notwithstanding the fact that the plaintiff was residing at the
Granville Avenue Property and was openly resistant to having the value of the
property assessed, the defendant retained Josephine Guevara, a certified
residential appraiser, to prepare an independent valuation of the property.

[75]       
The BC Assessment Authority’s valuation of the Granville Avenue Property
as of 31 October 2009 was $631,200.  This was an increase of approximately
$75,000 from the previous year’s assessment.

[76]       
Ms. Guevara’s first appraisal report, dated 26 October 2009, assessed
the value of the Granville Avenue Property at $660,000.  An updated appraisal
was prepared in February 2010 and at that point the property was valued at
$850,000.  This represented an approximate 29% increase in the value of the
property over the period of four months.

[77]       
Although the plaintiff vigorously challenged Mrs. Guevara’s evidence and
argued that her opinion of the value of the Granville Avenue Property was
grossly inflated, he provided no independent evidence supporting this position
or suggesting what the proper and accurate value of the property should be.

[78]       
Contrary to the urging of counsel for the plaintiff, I did not find Josephine
Guevara to be a biased witness or one who was tailoring her evidence to favour
the defendant.  Although I agree that a 29% increase in value of a property
over the course of four months is astounding, I found Ms. Guevara’s explanation
for it plausible.  More importantly, I have no reason to disbelieve Mr. Guevara
as I found her to have been a credible witness.  I reject the plaintiff’s
assertion that Ms. Guevara’s methodology was flawed or that her opinions
were biased in favour of the defendant.

[79]       
I find the only reliable, independent evidence of the value of the
Granville Avenue Property is that of Ms. Guevara and I accept it.

[80]       
The Granville Avenue Property is a family asset.  The mortgage of
approximately $460,000 registered against its title is a family debt. 
Deducting the mortgage amount from the appraised value of the property would
indicate that its equity is approximately $390,000.

[81]       
The property will be sold and any equity remaining after the mortgage
has been paid out, the costs associated with the sale have been paid, and the
parties’ joint line of credit has been paid, is to be divided equally between
the parties.

  Steveston Highway Property

[82]       
The parties purchased and moved into their new matrimonial home on Steveston
Highway in Richmond in 2006.

[83]       
Like the Granville Avenue Property, title to the Steveston Highway
Property was registered in the names of both parties as joint tenants.

[84]       
A rental suite in the residence provided the parties with $755 per month
in income.

[85]       
The parties resided in this home together with their son Pavel until the
incident of 27 May 2008 that resulted in their separation.

[86]       
After separation, the defendant and Pavel continued to reside in the
home and the defendant assumed responsibility for all of its operating
expenses.

[87]       
The mortgage registered against the property is approximately $444,000
and the monthly payments $2,378.  Since the parties separated, the defendant has
made all of the mortgage payments, except for two which were inadvertently paid
out of the plaintiff’s bank account.  This mistake was made by the financial
institution that holds the mortgage and was not on account of any action of the
defendant.  Aside from those two payments, for which the defendant acknowledges
the plaintiff should receive credit, the plaintiff made little to no financial
contribution towards the upkeep or maintenance of the Steveston Highway Property.

[88]       
The mortgage on the Steveston Highway Property was to be renegotiated in
November 2009.  Counsel for the defendant wrote to counsel for the plaintiff on
27 October 2009, requesting the plaintiff’s consent to renew the mortgage for a
year at an interest rate of 3%.  The result would have been a reduction of the
monthly mortgage payment by approximately $600 to $1,792.  The defendant
received no response to this request.  A second letter was sent on 6 November
2009.  In this second letter, counsel for the defendant expressed concern that
if the mortgage documents were not signed before 9 November 2009 the mortgage
would be automatically renewed for 6 months at a 4.65% interest rate.  The
difference in monthly mortgage payments between the 3% and 4.65% rates was
approximately $400 per month.  Counsel for the plaintiff responded on 9
November 2009 by writing to counsel for the defendant:

My client has checked with the
mortgagor on the Steveston property and has been advised that there will be no
adverse effect of failure to renew by November 9, 2009.

[89]       
In cross-examination the plaintiff denied that the defendant had asked
him, through counsel, to agree to a 1-year renewal of the mortgage at 3%
interest.  The plaintiff asserted that he spoke with an official at the bank
and was satisfied with the provision of the mortgage that would automatically
renew it for 6 months at 4.65% interest.  When asked if he had enquired of that
official whether the mortgage’s auto-renewal provision entailed a higher rate
of interest, the plaintiff acknowledged that he had not.  The plaintiff
explained that he “did not have time” to make this enquiry.  I find this
response unconvincing and disingenuous.  Moreover, I find the plaintiff’s
approach to the renewal of this mortgage is another example of his troubling
attitude towards the defendant’s financial interests.

[90]       
The BC Assessment Authority’s valuation of the Steveston Highway
Property as of 31 October 2009 was $673,000.  This reflected a slight decrease
from the previous year’s assessment.

[91]       
The most recent professional appraisal of the property, dated 19 August
2009, estimated the value to be approximately $700,000. Like the Granville
Avenue Property, the appraisal for the Steveston Highway Property was completed
by Ms. Guevara.  Although the plaintiff forcefully criticized the
appraisal for being too low, he offered no expert evidence to support his
position. I accept that the value of the property has likely increased since
the appraisal was completed; however it would be a complete guess on my part to
say by how much.  I will not engage in such speculation and will consequently
accept for the purposes of dividing the family assets that the property is
worth approximately $700,000. The equity in the property, after deducting the
mortgage, is approximately $256,000.

[92]       
The defendant seeks to have this family asset reapportioned 100% in her
favour.

[93]       
In advancing her position, the defendant maintains she needs to remain
in the Steveston Highway Property as she does not and will not have the
capacity to acquire a residence of a comparable quality for herself and Pavel. 
Moreover, this asset, reapportioned in her favour, will provide her with the
opportunity and means to become economically independent and self-sufficient.

[94]       
The defendant relies upon the following case authorities for the general
proposition that a court can and should reapportion a family asset where it finds
the applicant spouse had been disadvantaged by the marriage and its breakdown: R.L.G.
v. R.G.G., 2006 BCSC 348; M.A.L. v. G.L., 2005 BCSC 1198; Greene
v Greene, 2008 BCSC 426.

[95]       
The plaintiff argues the Steveston Highway Property should be treated
like all other family assets and divided equally between the parties.  In
maintaining this position, the plaintiff claims an unequal division of this
asset in the defendant’s favour coupled with the receipt of spousal support
would represent a dramatic windfall for the defendant and equate to an
unjustified double recovery.

[96]       
The plaintiff relies upon the following authorities that caution against
the risk and consequences of double recovery in situations where
reapportionment of an asset and spousal support are sought: Toth v. Toth
(1995), 13 B.C.L.R. (3d) 1 (C.A.); Metzner v Metzner (1997), 34 B.C.L.R.
(3d) 314 (C.A.); and Hartshorne v. Hartshorne, 2004 SCC 22.

[97]       
Section 65 of the FRA allows for the reapportionment of a family
asset where the court is satisfied that an equal division of the asset would be
unfair.  The onus of satisfying the court that such a reapportionment should be
made lies on the party who is seeking it.  The defendant bases her argument on
the factors described in s. 65(1) (e) and (f) of the FRA.

[98]       
The facts of this case persuade me that the defendant’s claim to a
reapportioment of the Steveston Highway Property is well founded and justified. 
Those facts include:

·        
The marriage was of a long duration (25 years);

·        
When the parties left Uzbekistan and relocated to Israel, the
defendant abandoned her career as an economist;

·        
In Israel, the plaintiff became a certified electrician.  The
defendant, on account of her professional credentials not being recognized,
worked as a house cleaner and also became the primary caregiver for the
children.  The defendant eventually retrained and became an aesthetician;

·        
The parties agreed that when they immigrated to Canada, the
family would rely on his income for their financial security and wellbeing;

·        
The plaintiff’s income as a unionized marine electrician in
British Columbia has always been substantially higher than the income the
defendant has earned as an aesthetician working on commission;

·        
The plaintiff is still a reasonable number of years away from retirement
and will always have a stronger and better income earning capacity than the
defendant;

·        
The monthly rental payments the plaintiff has received from the suite
at the Granville Avenue Property since September 2008 have been more than
sufficient to pay the monthly mortgage payments for the property;

·        
The monthly rental income from the suite in the Steveston Highway
Property only pays for a fraction of the property’s monthly mortgage payment
and the defendant regularly struggles to make ends meet for her and the
parties’ son.  The defendant’s financial resources are so minimal that she
often must rely on her credit cards or loans from friends;

·        
The defendant has developed arthritis in her hands and other
ailments resulting from the physical nature of her work and at 54 years of age
she is reaching the end of her career as an aesthetician;

·        
The defendant has limited employment or income earning opportunities
on the horizon;

·        
The parties’ son Pavel is unemployed and on account of a serious
medical condition, he receives provincial disability assistance payments.  He is
attending school and resides with the defendant in the Steveston Highway
Property and she is his main source of care and support.  Pavel has limited
contact with the plaintiff and receives little if any assistance from the
plaintiff.

[99]       
I accept the defendant’s submission that she has been significantly disadvantaged
by the marriage and its breakdown and requires a greater portion of this family
asset in order to achieve financial independence and self-sufficiency. Furthermore,
it makes sense that this be the family asset that is reapportioned on account
of the fact that it is her and the parties’ son’s principal residence.

[100]     The
plaintiff attempted to paint a stark contrast between his standard of living and
the defendant’s.  He claims that since separation he has been living in a
basement suite, with second hand furniture and has been driving an old car.  In
contrast, he points to the fact that the defendant has been living in the newer
home, driving the newer vehicle and generally living a comfortable lifestyle. 
According to the plaintiff, this divergence in the parties’ standard of living
is the principal reason why both the Granville Avenue Property and the
Steveston Highway Property should be divided equally between the parties.

[101]     I do not
agree with the plaintiff’s characterization of the parties’ respective standards
of living.  While I accept that the plaintiff has chosen to live in modest accommodations,
I do not accept that he lives a “Spartan lifestyle”.  He has taken holidays and
trips to Europe on more than one occasion since the parties separated and he has
purchased gifts for his new woman friend in Germany.  This alone puts to rest
any suggestion that the plaintiff does not have the financial means to live at
a reasonably comfortable level.

[102]     In light
of the defendant’s financial struggles that have resulted from the parties’ marriage
and its breakdown, her need to reach financial independence and
self-sufficiency and the improbability of her being able to obtain a similar
residence for her and the parties’ son, given her limited financial means, I find
it would be unfair to divide this asset equally between the parties.

[103]     It is
appropriate in my opinion to reapportion the property 100% to the defendant.

  The Las
Vegas Time-Share

[104]     In 2006,
the parties invested $24,000 into a Las Vegas time-share property.

[105]     The
defendant has paid maintenance fees for the property and the plaintiff accepts
that he should compensate her for half of these expenses.

[106]     The
evidence relating to this property’s present value is non-existent.
Notwithstanding this lack of evidence, both parties agree that this family
asset should be disposed of and net proceeds divided equally between them.

  Motor
Vehicles

[107]     The two
vehicles in question are a 2001 Toyota Echo subcompact and a Toyota RAV 4 sport
utility vehicle.

[108]     The Echo
is in the plaintiff’s possession, while the RAV 4 is with the defendant.

[109]     The
evidence relating to the respective values of these two vehicles is next to
non-existent.  No expert appraisals were obtained for either of these vehicles.

[110]     The
plaintiff estimated the value of the Echo at $1,500 while the defendant
submitted its value was closer to $4,600. With respect to the RAV 4, the
plaintiff claimed it was worth $18,000 while the defendant put its value at
$17,000.

[111]     For the
purposes of dividing these assets, I will place a value of $3,750 on the Toyota
Echo and a value of $17,000 on the RAV 4.

[112]     Given that
these two assets should be divided equally, it will be necessary for the
defendant to pay the plaintiff an equalization payment of $6,625.

  IBEW
Pensions

[113]     The
parties agree that the plaintiff’s IBEW pensions are family assets and should
therefore be divided evenly between them pursuant to the provisions of the FRA.

  Canada
Pensions & Old Age Security Pensions

[114]     There is
also a consensus on the parties’ respective Canada Pensions and Old Age Security
Pensions.  The pensions are also family assets and are to be divided equally
pursuant to the provisions of the FRA.

  Ackroyd Road
Condominium

[115]     In 2004,
the Ackroyd Road Condominium was purchased and registered in the defendant’s
name.  The plaintiff was not registered on title as a joint tenant.  The
property was sold in August 2008 and the net sale proceeds of approximately $113,000
are, as mentioned above, being held in trust pending the results of this proceeding.

[116]     Ownership
of these proceeds is a hotly contested issue between the parties.  A
significant amount of evidence was presented to address this issue.

[117]     According
to the plaintiff, the Ackroyd Road Condominium was a family asset and therefore
the proceeds of its sale are subject to equal division between himself and the
defendant pursuant to the FRA.

[118]     The
defendant argues the property was never ordinarily used for a family purpose and
therefore it should not be classified as a family asset.  According to the
defendant, this property rightfully belonged to her brother, Alic Braverman, as
it was he who paid for it using funds he borrowed from a friend in the United
States.  Mr. Braverman and his friend Mr. Naum Azrilyan testified on behalf of
the plaintiff and both of them provided evidence that corroborated the
defendant’s version of events.

[119]    
Section 58(2) of the FRA defines a “family asset” as follows:

Property owned by one or both
spouses and ordinarily used by a spouse or a minor child of either spouse for a
family purpose …

[120]    
Section 59(1) of the FRA defines “business asset” as follows:

If property is owned by one
spouse to the exclusion of the other and is used primarily for business
purposes and if the spouse who does not own the property made no direct or
indirect contribution to the acquisition of the property by the other spouse or
to the operation of the business, the property is not a family asset.

[121]     The onus
to prove that the Ackroyd Road Condominium is not a family asset lies with the defendant: 
FRA, s. 60.

[122]     The
defendant testified that in 2004, her brother contacted her and discussed with
her the possibility of him and his wife purchasing a condominium in Vancouver. 
Mr. Braverman was considering immigrating to Canada with his family to join the
defendant and their mother in British Columbia.  According to the defendant, Mr. Braverman
wanted a condominium that had a price of approximately $100,000.  The defendant
was to be registered on title to the property because Mr. Braverman and
his wife resided in Israel.  The property would be rented while Mr. Braverman
was still in Israel and the rental income would be used towards paying any
expenses, including the mortgage on the property.  The plaintiff and the
defendant would assist in caring for the property and any surplus income could
be used by them as compensation for their efforts.

[123]     The
defendant claimed she spoke with the plaintiff about her brother’s request and
that the plaintiff agreed with the idea.  In her evidence, the defendant
insisted that the plaintiff knew the property was being purchased for Mr.
Braverman and his wife and would not belong to the plaintiff and the defendant
or be a family asset of theirs.  The defendant testified that this explained why
the plaintiff did not participate in locating the property or in obtaining the
funds for a down payment.

[124]     During the
early spring of 2004, the defendant searched for an appropriate property for
her brother and she eventually found the Ackroyd Road Condominium.

[125]     In or
around April 2004, Mr. Braverman informed the defendant that he had borrowed $35,000
USD from his friend Mr. Azrilyan and that the funds would be sent to her to use
as a deposit and down payment for the purchase of the Ackroyd Road Condominium. 
The defendant confirmed that the first $10,000 arrived in late April 2004
and shortly thereafter, on 27 April 2004, the funds were deposited into the
parties’ existing joint chequing account.  Seven days later the defendant
withdrew the $10,000 and used them as a deposit for the purchase of the Ackroyd
Road Condominium.

[126]     Mr. Braverman
asked the defendant to open a separate bank account for the Ackroyd Road
Condominium so that all financial transactions relating to the property could
be recorded and kept separate from the parties’ personal finances.  The
defendant complied with this request and a distinct account for the condominium
was opened on 30 April 2004.  Given that both the defendant and the plaintiff
would be accessing the account, it was registered in both parties’ names (the
“Condominium Account”).

[127]     In May
2004, the defendant received the second instalment of the funds from Mr.
Azrilyan.  The defendant deposited the funds into the Condominium Account on 13
May 2004 and five days later the defendant withdrew them to pay the balance of
the down payment for the purchase of the property.

[128]     The
balance of the funds necessary to purchase the Ackroyd Road Condominium,
approximately $68,000, was obtained by way of a mortgage taken out by the
defendant as the mortgagor.  She alone arranged for the financing; however on
account of her income she required a guarantor.  The defendant testified that
the plaintiff was prepared and content to act as the guarantor and that this made
practical sense because of his close familial relationship and friendship with Mr.
Braverman.  The defendant explained that had the plaintiff not been the
guarantor, she could have had someone else act in that capacity.

[129]     The
purchase of the property was completed on 17 May 2004.  The mortgage payments
were approximately $350 per month.

[130]     The
parties spent two or three days completing minor renovations to the property
prior to renting it.  The expenses relating to this work were paid for from the
funds that had been deposited into the Condominium Account.

[131]     The
defendant did all of the work to find a tenant for the property, with no
assistance from the plaintiff.  The property was rented and the amount received
was sufficient to pay for the monthly mortgage payments.  Occasionally, if
there were special expenses associated with the property, Mr. Braverman would
provide the defendant with additional funds to deposit into the Condominium
Account.

[132]     The
defendant explained that in the late summer of 2008, she and Mr. Braverman
discussed the possibility of selling the property.  Mr. Braverman was concerned
about the real estate market in Vancouver and had yet to decide whether he and
his family would immigrate to Canada.  The defendant was also finding her
personal situation difficult and stressful.  Mr. Braverman decided to sell the
property and told his sister to take the necessary steps to complete the sale.

[133]     On 21
August 2008, the Ackroyd Road Condominium was sold for $183,000.  The sale was
completed on 29 September 2008.

[134]     The
defendant has testified that the net proceeds from the sale of the property
belong to Mr. Braverman, and not herself or the plaintiff.

[135]     Mr.
Braverman travelled to British Columbia from Israel to testify in this
proceeding.  He explained that the idea to purchase a condominium in Metro
Vancouver was his and his wife’s as they were considering immigrating to Canada
to join his sister and their mother.  He spoke with the defendant about the
idea and arranged for her to locate a condominium with a price in the range of
$100,000.

[136]     As he did
not have sufficient funds for a down payment, Mr. Braverman arranged for a $35,000
USD loan from his long-time friend Mr. Azrilyan.  Mr. Braverman explained
that the two of them had done business together many times before and that on
account of their close personal relationship and trust, documentation
identifying and confirming any loans were rarely necessary or completed.

[137]     Mr.
Braverman described how he trusted the plaintiff and considered him a member of
his family and a personal friend at the time the Ackroyd Road Condominium was
purchased.  It was for that reason that no formal documents were prepared confirming
his ownership of the property.

[138]     Mr.
Braverman was surprised when he discovered the plaintiff was alleging the property
belonged to the defendant and that it was a family asset of theirs.  Mr.
Braverman could recall a number of specific instances when he spoke with the
plaintiff about the condominium.  The first occasion was in 2005 when the parties
were visiting Israel.  During this conversation, the plaintiff indicated that
Mr. Braverman should not be concerned about his (Mr. Braverman’s)
condominium as he (the plaintiff), was there to fix any problems if they
arose.  The plaintiff confirmed he had a conversation with Mr. Braverman in
2005 when they were in Israel, but he could not recall the specific details of
it.  The second conversation arose in the spring of 2008, prior to the parties’
separation.  The parties were again visiting Mr. Braverman in Israel and during
a conversation with him the plaintiff again confirmed that Mr. Braverman should
not worry about his condominium because he (the plaintiff) was keeping an eye
on it.  Finally Mr. Braverman claims that he called and spoke with the plaintiff
in August 2008.  They spoke of the marital difficulties the parties were having
as well as the status of the Ackroyd Road Condominium.  During this
conversation Mr. Braverman told the plaintiff to refrain from doing anything in
relation to the condominium.  The plaintiff told Mr. Braverman that he should not
worry about the property and that the problems the plaintiff and defendant were
having would not affect or interfere with the property in any way.

[139]     Mr.
Braverman asserts that the proceeds from the sale of the Ackroyd Road
Condominium are his, subject to him repaying the loan he received from
Mr. Azrilyan.

[140]     Mr.
Azrilyan travelled to British Columbia from California, U.S.A. to testify in
this proceeding.  He has no familial or personal connection to the plaintiff or
the defendant.  I found Mr. Azrilyan to be a reliable and credible witness.

[141]     Mr.
Azrilyan confirmed that he loaned $35,000 USD to Mr. Braverman in 2004,
ostensibly for the purposes of Mr. Braverman purchasing a condominium in
Vancouver.  He confirmed that there was no documentation prepared for the loan
as there was no need for it.  Mr. Azrilyan explained that he and Mr. Braverman
have been friends since childhood and he trusts Mr. Braverman unconditionally. 
Moreover, the two men have participated in this type of financial arrangements
in the past without any documentation and it has always ended positively.

[142]     Mr. Azrilyan
confirmed that he sent the funds to the defendant in two instalments of $10,000
and $25,000 respectively.

[143]     Mr.
Azrilyan testified that he expects Mr. Braverman to repay the loan from the
proceeds of the sale of the Ackroyd Road Condominium.

[144]     The
plaintiff’s version of events relating to the purchase of the Ackroyd Road
Condominium is markedly different from that of the defendant, Mr. Braverman and
Mr. Azrilyan.  In very stark terms, the plaintiff asserts that the defendant
and the witnesses who testified on her behalf have fabricated their evidence
relating to the condominium so that the court will find the property was not a
family asset.  The plaintiff was particularly vigorous in his challenge to the
veracity of Mr. Braverman’s evidence.   The plaintiff argued that his
testimony was tailored to support his sister’s attempt to exempt the property
from the pool of family assets so that she could claim it for her exclusive
benefit.  I accept that there is always a risk that a family member testifying
in a proceeding may advertently colour their evidence to assist their relative;
however in the present case I do not find that has occurred.  I found Mr. Braverman
to be a credible and reliable witness and reject the suggestion that he has
attempted to mislead the court regarding his understanding and role in the
acquisition of the Ackroyd Road Condominium.

[145]     The
plaintiff testified that in 2004, the defendant approached him with the idea of
purchasing another investment property for the family.  According to the
plaintiff, he was “too busy” to get involved in the project, so he left it to
the defendant to find the property and to arrange the financing.  The plaintiff
did not know where the defendant obtained the funds for a down payment; however
once she had done so and had located a property to purchase, he agreed to act
as a guarantor on the mortgage that was required.

[146]     The
plaintiff claims that after the property was purchased, he completed
renovations to it in advance of it being rented.  The plaintiff occasionally
collected the rent from the tenants and all of the funds associated with the
property were deposited into and paid out from an account he held jointly with
the defendant.

[147]     The
plaintiff was noticeably vague regarding any discussions he had with his
brother-in-law Mr. Braverman about the ownership of the property. During his
testimony, the plaintiff initially denied having spoken with Mr. Braverman in
August 2008; however he changed his evidence at a later point and acknowledged
the two of them had spoken but that Mr. Braverman had called only to see how the
plaintiff was doing.  I found the plaintiff’s evidence relating to his
conversations with Mr. Braverman weak and unpersuasive and accept Mr.
Braverman’s version of events.

[148]     In
advancing his argument that the defendant’s evidence regarding the Ackroyd Road
Condominium as well as that of Mr. Braverman and Mr. Azrilyan has been
fabricated, the plaintiff places great weight on the fact that there is no
documentation of any loan from Mr. Azrilyan to Mr. Braverman, nor is there any
documentation confirming the property was purchased for Mr. Braverman.  While
I accept the proposition that the failure to document the loan may have been
imprudent on the part of Mr. Braverman and Mr. Azrilyan, it is understandable
given their high level of trust in each other and their long-standing
friendship.  It is not as startling as suggested by the plaintiff that there is
no documentation confirming the property was intended for and actually belonged
to Mr. Braverman.  In this regard, I cannot ignore the fact that the asserted
arrangement was between family members, for a family member who lived on
another continent.  Moreover, I accept that the parties and their family
members did business and managed their affairs by way of oral agreements.  When
cross-examined about his business practices and more specifically the paid
renovation work he did for others and the lack of any documentation confirming
the contracts and payments, the plaintiff responded by saying all of the
contracts were made orally and that “between Russians” it was normal to have
verbal contracts that were not documented.  I accept the plaintiff’s evidence
in this respect and find that the purchase of the Ackroyd Road Condominium was
a similar type of oral business arrangement “between Russians”.

[149]     On the
evidence before me, I find the defendant’s version of events, corroborated as
it is by the evidence of Mr. Braverman and Mr. Azrilyan, more credible and
persuasive than the plaintiff’s.  In other words, I am satisfied the Ackroyd
Road Condominium was not purchased with family resources nor was it a property
ordinarily used or relied upon for a family purpose.  The following findings of
fact lead me to this conclusion:

·        
The plaintiff had no involvement in the decision to purchase the Ackroyd
Road Condominium.  The idea originated between the defendant and
Mr. Braverman;

·        
The plaintiff played no role in searching for or locating the
property.  That task was completed exclusively by defendant;

·        
The plaintiff had no involvement in securing of the funds for the
down payment, nor did he know where those funds came from.  The plaintiff’s
evidence that he was “too busy” to get involved is rejected as being dubious at
best;

·        
The down payment for the property was obtained by Mr. Braverman. 
He obtained a loan from Mr. Azrilyan, who forwarded the funds, in two
instalments, directly to the defendant;

·        
Unlike the properties the parties had purchased jointly that had
them registered on title as joint tenants, only the defendant was registered on
title to the Ackroyd Road Condominium;

·        
The defendant and the plaintiff discussed the fact that the title
to the property would be registered solely in the defendant’s name and the
plaintiff was not bothered by that fact or interested in having his name on
title as he knew and acknowledged that the property rightfully belonged to Mr.
Braverman;

·        
Again, unlike the properties the parties had purchased jointly,
only the Ackroyd Road Condominium had a separate bank account especially
designated for the rent and expenses associated with the property.  The
Condominium Account was opened and maintained so that the property’s finances
could be kept separate from the parties’ personal finances;

·        
The plaintiff’s only role in the financing of the property was
that of guarantor of the mortgage and he agreed to act in that capacity knowing
the property was being purchased for Mr. Braverman.  Had the plaintiff not been
the guarantor of the mortgage, the defendant would have found someone else;

·        
The plaintiff’s role in the day-to-day operations of the property
was limited to occasionally collecting the rent and depositing the funds into
the Condominium Account;

·        
Mr. Braverman allowed the plaintiff and defendant to use some of
the excess income in the Condominium Account as reimbursement for their efforts
in taking care of the property;

·        
The plaintiff spoke with Mr. Braverman in 2005 and in 2008 and
acknowledged that the property belonged to Mr. Braverman.

[150]     At the
risk of repeating myself, I will note that in reaching these findings of fact I
have accepted the evidence of the defendant, Mr. Braverman and Mr. Azrilyan
over that of the plaintiff.

[151]     I conclude
that the Ackroyd Road Condominium was not a family asset and therefore the
proceeds from its sale are not subject to division between the parties pursuant
to the FRA.

  Gulf &
Fraser Financial Line of Credit

[152]     The
parties agree that they shared a line of credit at Gulf & Fraser Financial
Group and that the balance that should be divided equally between them is
$52,000.

IV.       Compensation
Payment

[153]     The
defendant argues that the plaintiff should compensate her for the approximately
$20,000 of the post-separation expenses she has incurred in relation to the
Granville Avenue Property and the Steveston Highway Property, as well as the
payments she has made towards family liabilities such as the parties’ line of
credit.

[154]     I find the
defendant’s claim is well founded.  The figures justifying the amount sought
are set out in detail the chart found at Tab 91 of Exhibit 40 and the
additional documentary evidence presented at trial satisfies me that the
defendant did incur these costs and that they should be characterized as
“family expenses”.

[155]     In my
opinion, however, he order reapportioning the Steveston Highway Property 100%
to the defendant and the inclusion of all of the household furnishings sufficiently
addresses this issue of compensation for post-separation expenses.

[156]     I
therefore decline to make the compensation order sought.

V.        Miscellaneous
Orders

  Restraining Order

[157]     During the
course of this trial, the parties consented to a mutual restraining order
pursuant to s. 37 of the FRA prohibiting them from molesting, annoying,
harassing or communicating with each other.  This order will remain in place
and become a term of the order resulting from this judgment.

  Security
for Spousal Support

[158]     The
defendant seeks an order securing the plaintiff’s obligation to pay spousal
support against some or his entire share of the net proceeds from the sale of
the Granville Avenue Property or by designating her as the sole beneficiary of
his IBEW life insurance policy.

[159]     I accept
the defendant’s argument that the actions of the plaintiff towards the defendant
support such an order.  These actions of the plaintiff include his unilateral
decision to deduct the defendant’s portion of property insurance from a Blue
Cross reimbursement cheque intended for the defendant.  In addition, the
plaintiff failed to inform the defendant that he had made changes to the
property insurance premiums and had changed the address for delivery of the utility
bills relating to the Steveston Highway Property.  This latter action nearly
resulted in BC Hydro cancelling service to that property.

[160]     The
plaintiff has begun a new relationship with a woman in Europe and has attempted
to secure employment there on more than one occasion post-separation.  Although
the plaintiff denied any desire or intention to relocate permanently to Europe,
I found those denials to be hollow and unconvincing.

[161]     In the
circumstances of this case I will make the order sought and direct that the
plaintiff designate the defendant as the sole beneficiary of his IBEW life
insurance policy.

VI.       Summary

[162]     In
summary, the order resulting from these reasons will consist of the following terms:

a)    an order for
divorce, on the usual terms;

b)    the following items
are family assets:

i.      the
Granville Avenue property, valued at $850,000;

ii.    the Steveston
Highway Property, valued at $700,000;

iii.   the 2001 Toyota Echo,
valued at $3,750;

iv.   the 2004 Toyota RAV 4,
valued at $17,000;

v.    the Las Vegas
“time share”, value unknown;

vi.   the plaintiff’s
pensions with the International Brotherhood of Electrical Workers; and

vii.  the parties’ respective
Canada Pensions and Old Age Security Pensions;

c)    the following items
are family liabilities:

i.      the
mortgage against the Granville Avenue Property; and

ii.    the joint line
of credit with Gulf & Fraser Financial Group, estimated to be $52,000;

d)    the Ackroyd Road
Condominium is not a family asset pursuant to the FRA;

e)    the proceeds
from the sale of the Ackroyd Road Condominium, currently held in trust, are to
be released to the defendant;

f)     the
Granville Avenue Property is to be sold, with the parties having joint conduct
of sale.  Any outstanding mortgages or charges on title to the property are to
be paid out from the sale proceeds as is the full balance remaining on the
above-noted joint line of credit.  Any remaining proceeds are to be divided
equally between the parties;

g)    The Las Vegas
time-share property is to be sold and the net sale proceeds are to be shared
equally between the parties;

h)   the division of the
Steveston Highway Property is reapportioned 100% in favour of the defendant;

i)     the
defendant is responsible for the mortgage associated with the Steveston Highway
Property;

j)      subject
to paragraph (k) of this order, the household contents, consisting of but not
limited to the furniture and appliances, of the Steveston Highway Property are
the property of the defendant;

k)    the defendant is
to make a genuine and concerted effort to find, retrieve and deliver to counsel
for the plaintiff any personal items within the Steveston Highway Property that
belong to the plaintiff;

l)     the plaintiff’s
IBEW pensions are to be divided between the parties in accordance with Part 6
of the FRA;

m)  the plaintiff is a trustee
of the defendant’s share of the IBEW pensions;

n)   effective 1 November
2009, the plaintiff is to pay to the defendant $1,500 per month in
spousal support for an indefinite duration, subject to the right to seek a
variation under s. 96(1) of the FRA;

o)    the plaintiff is
to be credited for all of the $500 spousal support payments he has made in
compliance with the order of Bruce J. dated 14 October 2009;

p)    the plaintiff
will pay the defendant $683.50 for his share of the Las Vegas time-share
maintenance fee that the defendant has already paid and all future fees
relating to this property are to be paid equally between the parties until such
time as the property is sold;

q)    the defendant
will pay the plaintiff $6,625 as an equalization payment for her retaining the
RAV4 motor vehicle;

r)     the
parties are subject to a mutual restraining order pursuant to s. 37 of the FRA;
and

s)    as a means of
securing future spousal support payments, the plaintiff is to forthwith
designate the defendant as the sole beneficiary of his IBEW life insurance
policy.

VII       Costs

[163]     If the
parties cannot resolve the issue of costs, then they may provide written
submissions within 30 days of the date of this judgment.

[164]    
Furthermore, either party will have liberty to apply for directions
whether in respect to the implementation of any of the terms of this judgment
or any other matter within the scope of the pleadings that has not been
addressed.  In such an event, they are to arrange an appearance date through
the registry.

G.R.J. Gaul, J.