NEW AND NOTABLE
O.M. v. V.G. 2025 BCSC 209
Registry: Duncan
Judge: Mr. Justice Veenstra
Date: February 10, 2025
Main issues: At issue was the date of separation and whether the Duncan home was acquired prior to separation. Was the Duncan home a family asset and if it is a family asset ought there to be an unequal division?
Background Facts:
• V.G./husband and O.M/ wife met in the Ukraine in April of 2011 and married in September of 2011. They had 1 child born in July of 2012. After getting married in the Ukraine, V,G,/ the husband returned to Canada in 2012, then returned to the Ukraine for the birth of A.G.
• V.G./ the husband O.M/ the wife., and A.G/ child moved to Canada in August 2013, initially living with P.G. (V.G.’S brother) and his family. By all accounts the marriage was not a happy one.
• V.G/ the husband, O.M/ the wife and A.G./ the child travelled to Ukraine in May 2015, acrimony surrounded the planning and moving to the Ukraine. V.G. almost immediately returned to Canada and O.M. and A.G. remained in Ukraine. V.G/ the husband viewed this time period (2015) as the end of the relationship.
• O.M. had medical issues, MCFD was involved in 2016.
• V.G./ the husband went to visit Odessa in December of 2016 (not surprisingly the parties had different evidence as to who slept where during this visit).
• the Duncan Home was purchased in August 2017.
• V.G., O.M. and A.G. travelled to Canada in August 2018, and lived at the Duncan home for the next several months.
• O.M. and A.G. left the Duncan home on June 28, 2019, initially living in a transition home.
Evidence:
• Para 37 It also became clear over the course of the trial that none of the parties had treated their pre-trial disclosure obligations particularly seriously, and there was a steady stream of new documents produced as the trial proceeded.
• Emails between the parties for the 2015-2016 time period were put in evidence, the husband attempting to characterize the translated emails as the wife saying the relationship was over and the wife characterizing the emails as indicating they were still working on their relationship.
• Income tax records indicate V.G. was married, V.G. claimed that was the accountants doing
• The contract of purchase and sale for the Duncan home was signed by the husband/ V.G., but a month later, the brother/ P.G. was added as a buyer with joint and several rights, both V.G. and P.G. signed for a mortgage loan.
• Title was placed in the names of V.G. and P.G. as tenants in common, with V.G. holding a 99% registered interest and P.G. holding a 1% registered interest.
• P.G.’s evidence was that he and V.G. had a verbal agreement that they would each beneficially own 50% of the Duncan Home. He said they were two main reasons for V.G. to be shown as holding a 99% interest. The first was that he understood that because he already owned a house with a substantial mortgage, he was afraid that they would not qualify for a mortgage if he was shown as a 50% owner. The second was that they understood that the property transfer tax would be reduced, since V.G. was a first-time home buyer.
• There was some evidence with respect to who paid the deposit on the Duncan home, P.G. had transferred V.G. some funds $24,000, but it was never determined exactly what those funds were for i.e. it was not clear that P.G. contributed to the downpayment, V.G. denied repaying his brother the $24,000.
Law:
This case provides a very good summary of the case law with respect to separation (paragraphs 239 to 257) an excerpt is included below:
[252] A useful summary can be found in H.S.S. at paras. 46–50:
[46] The Court in Weber v. Leclerc, 2015 BCCA 492, recently considered the definition of “spouse” under the Family Law Act. The Court reviewed the appellate authorities that have evaluated the characteristics of a “marriage-like” relationship and observed that the jurisprudence has evolved in accordance with the changing societal norms surrounding marriage. The Court must apply a holistic approach, having regard to all aspects of the relationship. While the Court must consider the evidence expressly describing the parties’ intentions, the Court must test that evidence by considering whether the objective evidence of the parties’ lifestyle and interactions is consonant with those intentions: at para. 23.
[47] I turn to consider the factors which inform the analysis of whether the parties are living as spouses.
[48] It emerges from the authorities that although the living arrangements of the parties are not determinative, this factor is frequently accorded significant weight: Routley v. Paget, 2006 BCSC 419.
[49] Additionally, the following factors have been accepted as informing the analysis of whether the parties are living as spouses:
• Whether the parties vacationed together;
• Presence or absence of marital relations;
• How the parties conducted their financial affairs, including any financial planning they undertook as a couple and how they filed their tax returns. Notably, the authorities establish that financial dependence is no longer considered an essential element of a marital relationship;
• Estate planning;
• Making shared plans for the future;
• Participation in joint social activities and the manner in which the spouses presented themselves to others.
[See Eisener v. Baker, 2007 BCSC 83 at paras. 29-30; Nearing at paras. 56-58; Oswell v. Oswell (1990), 1990 CanLII 6747 (ON SC), 74 O.R. (2d) 15 (H.C.J.) aff’d (1992), 1992 CanLII 7741 (ON CA), 12 O.R. (3d) 95 (C.A.); Routley v. Paget, 2006 BCSC 419; Greaves v. Greaves, 2004 CanLII 25489 (ON SC), [2004] O.J. No. 2522 (S.C.J.); J.J.G. v. K.M.A., 2009 BCSC 1056; Fuller v. Mathews, 2007 BCSC 444.]
[50] In summary, the authorities mandate a contextual and holistic inquiry, having regard to all aspects of the relationship. The Court in Weber affirmed that there is no checklist of characteristics that will invariably be found in all marriages. The presence or absence of any particular factor is not determinative of whether the parties carried on a spousal relationship: Weber at para. 21, citing Austin v. Goerz, 2007 BCCA 586 at para. 58.
The Law applied to the facts:
In a nutshell although there was acrimony in the relationship the judge found the parties separation date was not until June of 2019:
[280] The best case for V.G.’s claim of separation comes from three emails sent by O.M. between July 10 and August 3, 2016. The context of those emails is found, at least in part, in the exchanges from May 2016. It includes both parties maintaining their position that they wanted to live in Canada (in the case of V.G.) and Ukraine (in the case of O.M.) and a refusal by the other to join them in their preferred country. It included whatever were the allegations in the V.G. letter or email that provoked O.M.’s response of May 25, 2016. And it included V.G.’s refusal to provide financial support for O.M. and A.G. I accept O.M.’s assessment that the middle of 2016 was a very harsh period of their relationship.
[281] O.M.’s email of July 10, 2016, said simply “I want to divorce.” V.G.’s reply rejected that idea, saying “I didn’t get married to get a divorce”. I see this as a reflection of the parties’ deep mutual resistance to separation and divorce, which is rooted in their strongly held religious views as well as their mutual commitment to A.G.
[285] I recognize that O.M.’s emails talk about divorce. In my view, underlying the many cases I have referred to is a recognition that a marriage is not a commercial contract. It is a highly personal relationship infused with emotions, particularly so where the relationship is strained and discussions can become heated. It is not appropriate to parse the language of an email between spouses about their future in the same way as one might parse a lease termination notice drafted by counsel. This is part of the context that gives rise to the requirements in the cases cited above that the Court consider the facts in a holistic manner and ensure that there is a settled intention with respect to a separation.
Conclusion: In making the decision with respect to an unequal division, the judge found it was warranted in light of the circumstances and credited V.G. $60,000 prior to dividing the remaining $400,000 in equity:
[309] In my view, the only two factors that potentially give rise to significant unfairness in this case are:
a) The work done by V.G. to continue renovations to the property after June 2019; and
b) The mortgage payments made by V.G. after June 2019.