[1]           The parties are in the midst of a very high conflict matrimonial proceeding, which began in July 2016. The matter is currently scheduled for a 30 day trial commencing in February 2018.

[2]           Issues between the parties principally involve property division of the substantial assets owned by them, estimated to be worth $50 million. Those assets are located in various jurisdictions, including Singapore, British Columbia (“BC”), Ontario and Florida. In addition, the Claimant wife seeks child support for their 17 year old daughter, K.D., and spousal support.

[3]           The focus of this hearing was two-fold: firstly, an application by the Respondent husband to set aside a protection order and injunction, which I granted on August 8, 2016; and secondly, an application by the Claimant for interim spousal and child support and an interim distribution of assets.

[4]           There has already been considerable delay in bringing both applications before the Court.

[5]           The Claimant is 53 years old; the Respondent is 67 years old. Both were born and raised in Singapore.

[6]           Their relationship began in Singapore in 1984 when the Respondent was working as a neurologist and the Claimant was training to be a nurse’s assistant. Both parties were married at the time. Their first child, D.D., was born in 1987.

[7]           The parties rekindled their relationship in 1993, despite both still being married. At that time, the Respondent began supporting the Claimant and D.D.

[8]           In 1994, the parties began a common law relationship. At that time, the Claimant began working full time in an administrative capacity in the Respondent’s private medical clinic.

[9]           The parties divorced their spouses in late 1995 or early 1996. By that time, the Respondent had two sons from his first marriage, who are now aged 28 and 30. His sons live in Vancouver and Australia.

[10]        The parties were married in Singapore in August 1997.

[11]        The Claimant continued working at the medical clinic until August 1999 when she gave birth to their second child, K.D. 

[12]        This family is very wealthy and they have a lavish lifestyle. The financial engine for that wealth is the Respondent’s Singapore medical practice, which by all accounts, has been very successful. That practice is operated by a corporation, Devathasan Neurology & Medical PTE Ltd., of which the Respondent is the sole director. The income derived from the medical practice has been the sole support for the family since the Claimant stopped working some time ago.

[13]        In 2003, the family decided to relocate to Vancouver. They applied for permanent residency under the “Immigrant Investor Program”.  In June 2004, the family purchased a large home in West Vancouver. Despite initial intentions of moving to Vancouver, the Respondent determined that it was more practical and lucrative for him to continue his medical practice in Singapore while the Claimant and the children remained in BC. He never did immigrate to Canada but did visit from time to time, while supporting his family here with income earned and taxed in Singapore.

[14]        I accept the Claimant’s evidence that the accounts which are used to fund the mortgage on their joint asset – the West Vancouver home – was purposefully put into her name so as to avoid any suggestion that the Respondent was financially active here and therefore, subject to Canadian and BC income tax. Accordingly, but for a small amount of income earned on investments in BC in the Claimant’s name, the vast majority of the family income has been earned elsewhere and presumably taxed elsewhere (if at all) – while the Claimant and K.D. have enjoyed the many benefits of Canadian society, including K.D.’s attendance at the local public high school. Needless to say, this family has also now taken advantage of and sourced another valuable benefit in our society – our legal system – which is funded by Canadian and BC taxpayers.

[15]        Over the years, the parties have amassed a large real estate portfolio which includes: a large home in West Vancouver, a downtown Vancouver condominium, a ski chalet at Big White Ski Resort near Kelowna; a ranch in Merritt; a condominium in Toronto; a condominium in Florida; five properties in Singapore, in addition to the property where the medical practice operates; and a condominium in Thailand. There is also some suggestion that the Respondent has an interest in property in Malaysia.

[16]        All told, the estimated value of these properties is $50 million. The parties have differing opinions as to the split in value as between the properties on each side of the Pacific Ocean.

[17]        K.D. is now 17 years old and is in her last year of high school. She is planning on attending university in the fall.

[18]         This action was filed by the Claimant on July 8, 2016. She sought a divorce, parenting orders relating to K.D., child support, spousal support and property division. Under “Other Orders”, she sought a protection order under s. 183 of the Family Law Act, S.B.C. 2011, c. 25 (“FLA”). She also sought a restraining order under the FLA, s. 91, and a worldwide Mareva injunction pursuant to s. 39 of the Law and Equity Act, R.S.B.C. 1996, c. 253 (“Law and Equity Act”), all to restrain the Respondent from disposing of or transferring both his BC and extraprovincial assets, pending the determination of the issues in this proceeding.

[19]        On August 8, 2016, I granted a protection order and Mareva injunction on an ex parte basis.

[20]        On May 12, 2017, some nine months after the granting of both orders, the Respondent applied to set those orders aside, which is the application now before me.

[21]        The protection order included the following terms: it restrained the Respondent from attending at the family home in West Vancouver or K.D.’s school with a police assistance clause; it restrained the Respondent from possessing a weapon or firearms; it authorized the police to seize any such weapons and, for that purpose, the Respondent was required to provide the security code to the gun safe in the family home to the Claimant’s counsel; and, it restrained the Respondent from communicating with the Claimant or K.D., save through counsel. The protection order was stated to expire after one year, on August 8, 2017.

[22]         The Mareva injunction included the following terms: it granted exclusive occupancy to the family home and the Vancouver condominium to the Claimant, save that the Respondent could reside in the condominium for up to 8 weeks while in Vancouver upon providing two weeks’ notice to the Claimant; the injunction was reciprocal in that both parties were restrained from disposing of or diminishing the value of their assets, both in and outside BC, which properties included the real estate, the medical practice and various accounts.

[23]        Exceptions to the injunction allowed the Claimant to spend up to $50,000 for legal fees and the monthly sum of $65,000. Similarly, the Respondent was allowed to spend up to $50,000 for legal fees, $50,000 for personal expenses and $60,000 for payment of overhead and business expenses from the medical practice.

[24]        The Mareva injunction was also directed to third parties regarding assets in the names of the Claimant and Respondent, which was intended to freeze any accounts held in their names. However, the order expressly did not purport to affect any person outside BC unless the order was declared enforceable in that jurisdiction.

[25]        Finally, the Mareva injunction required disclosure by the Respondent within 14 days, by the provision of an affidavit outlining the nature and value of his worldwide assets. Many of the provisions required disclosure back to 1994, when the parties’ relationship began. The Respondent provided his Affidavit #1 sworn September 15, 2016, purportedly in response to this provision in the Mareva injunction. The Claimant contends that this disclosure is wholly inadequate.

[26]        Minor amendments were made to the Mareva injunction by order of Justice Sewell on August 15, 2016. With the corrected order in hand, the Claimant’s counsel, in both Florida and Singapore, set out to serve third parties with the order and secure caveats against the real property located in those jurisdictions.

[27]        Once registrations were accomplished, the Respondent was served with the Notice of Family Claim and the two orders on August 26, 2016.

[28]        As the Claimant feared, the backlash from the Respondent arising from these proceedings and the granting of the two orders was swift and severe.

[29]        Despite the terms of the Mareva injunction, the evidence indicates that almost immediately, the Respondent either transferred or attempted to transfer certain Singapore properties and the Thailand property in his name to others. This included a purported transfer of his lucrative medical practice (which was backdated to a date before the service of the Mareva injunction on him) along with dividends from the practice of $300,000. There is also the suggestion that the Respondent has set up an entirely new practice only after the service of this proceeding on him. He also withdrew funds from his Singapore bank accounts in excess of $539,000. He also diverted rental funds from the Toronto property to himself in Singapore commencing in December 2016.

[30]        The vitriolic and abusive comments of the Respondent directed at the Claimant continued and continues to this day. The description of these communications by the Respondent by his counsel as “intemperate” hardly does justice to the word. He alleges, as of late May 2017, that the Claimant is “fat and laid back” and that she was a prostitute. These past and continuing comments are simply abusive, vile and hateful.

[31]        Further amendments to the Mareva injunction were granted by Justice Macintosh on October 3, 2016. These amendments, in part, allowed the Respondent full access to the bank account in Florida, which was used in relation to payment of expenses relating to the condominium there.

[32]        The issue largely falls to be determined based on the evidence before me on August 8, 2016, while considering the relevant authorities. I also have the benefit of a transcript of the hearing which was obtained by the parties. That evidence included the Affidavit #1 of the Claimant, the Form F8 of the Claimant and the Affidavit of D.D.

[33]        The Respondent argues that the protection order should be set aside for a number of reasons: that it was not urgent; that it was overreaching; and that there was a failure to disclose material evidence. In my view, none of these arguments are persuasive.

[34]        The following relevant FLA provisions deal with protection orders:

[35]        The FLA provides in s. 1 that “family violence” includes:

[36]        The evidence of the Claimant in her Affidavit #1 from August 2016 is replete with instances where the Respondent has directed both psychological and emotional abuse toward both her and K.D. He has repeatedly threatened, intimidated and humiliated both of them. It appears that this controlling behavior on the part of the Respondent began at least as early as September 2015 and escalated to the time of the filing of the Notice of Family Claim.

[37]        There was a visit by the Respondent in late April 2016 which was strained to say the least. During that visit, the Respondent was screaming at K.D. such that the Claimant was concerned that he was going to hit their daughter. The Claimant tried to push the Respondent and the Respondent shoved her out of the way.

[38]        I had no hesitation in August 2016 in finding that the actions of the Respondent toward the Claimant and K.D. in the period leading to August 2016 constituted family violence.

[39]        The Respondent’s argument that there was no urgency, and therefore no need to proceed without notice, rests on the proposition that there was no evidence that the Respondent was coming to Vancouver in the period after the hearing.

[40]        The Claimant’s evidence was that she had learned that the Respondent intended to come to BC in early August 2016. The Respondent argues that this evidence is not sufficient since the source of that knowledge is not identified. I do not agree. The source for this concern came from the Respondent himself in his June 5, 2016 email where he refers to coming to Vancouver in the next two months, which was also confirmed by his simultaneous request that he be provided with the keys to the Vancouver condominium.

[41]        To accept the Respondent’s argument is to contend that the Claimant had to wait until he showed up on the doorstop of the West Vancouver family home before she could allege urgency. The evidence established that the Respondent came to Vancouver on a regular basis and, given the acrimony in their relationship, the Claimant could not have expected that she would be given sufficient notice of a visit to seek a protection order. There was also ample evidence to support that giving notice of an application seeking a protection order would have exposed the Claimant and K.D. to further abuse and threats and possible physical altercations. 

[42]        The Respondent also argues that the order was overreaching in terms of restricting his use of both the West Vancouver home and the downtown Vancouver condominium. This argument is also without merit. The evidence was that he came to Vancouver only occasionally. The terms of the protection order allowed him use of the condominium while he was in Vancouver, while also allowing the Claimant and K.D. to use it while he was not there.  If it was such that he needed to use the condominium for more than 8 weeks, then it would be open to the Respondent to either seek agreement or an amending order to accommodate that. No such application has been made.

[43]        The Respondent also argues that the provisions regarding the firearm prohibition were overreaching and in any event, arose from non-disclosure of material evidence. I was advised at the hearing that the Respondent had firearms in a locked safe in the West Vancouver home. The Claimant professed to be very nervous about this given the Respondent’s propensity for anger. She said that she would feel safer if the police picked up the guns and held them while the Respondent was in BC.

[44]        There is no issue regarding non-disclosure here. The Respondent argues he did not have the code to gain access to the West Vancouver home and that the Claimant did not disclose this point to the Court. In my view, that is hardly material as the concern was simply that he would gain entry, which he could have done in a variety of means without actually knowing and using the code. At bottom, the concern was that the Respondent would be in the home and potentially have access to these weapons which could be used in an angry confrontation, such as occurred in April 2016. 

[45]        Further, issues regarding him having licenses for these firearms is hardly relevant in these circumstances. The Claimant did disclose this in her affidavit, although I acknowledge that this portion of her affidavit was not specifically brought to my attention. No issue arises in that respect.

[46]        In summary, I am more than satisfied that the factors to be considered in the FLA, ss. 184-185, supported the protection order sought and granted. In any event, they continue to do so now, which would justify the granting of such an order even if the original order was set aside: FLA, s. 186(2)(b). In that regard, I have considered the Respondent’s evidence on the matter, including his Affidavit #3 sworn September 23, 2016. The Respondent did not seek any specific change to the protection order, such as its duration, although I would note that it will in any event expire soon.

[47]        Accordingly, I dismiss the application to set aside the protection order.

[48]        The Respondent argues that the Mareva injunction should be set aside for a number of reasons: that it was not urgent; that it was overreaching; and that its provisions were not in accordance with the FLA, s. 109. Again, in my view, none of these arguments are persuasive.

[49]        The evidence established that the Respondent was very controlling and threatening with the family finances and that he exerted this control at times to punish family members. As the Claimant put it, he ruled the family with an “iron fist”. Just prior to the granting of the Mareva injunction, the Respondent had closed or frozen some accounts, including one in the name of K.D. in Singapore.

[50]        On May 26, 2016, the Respondent emailed the Claimant and told her that “divorce is inevitable.” This was further confirmed in his email to D.D. on May 28, 2016 that “[a]n official separation from you[r] mum is inevitable”. In that circumstance, I have no doubt that the Respondent expected he would be able to dictate the terms of the separation, given his overall control of the family assets and income and his previous behavior to that time. The Claimant said that during past arguments, the Respondent had threatened that she would not receive anything upon a divorce. Needless to say, that comment must be tempered by the fact that certain assets, such as the BC real property and certain expensive vehicles, are in her name. Even so, it displays a mentality on the part of the Respondent diametrically opposed to a fair sharing of the family property upon separation.

[51]        On June 1, 2016, the Respondent sent a number of demands, mostly financial, to the Claimant. He further stated:

[52]        The Claimant’s evidence was also that the Respondent was very secretive about the family finances to the point that she did not know what assets were actually owned by him or how the family income was being spent. Just before this action was filed, the Claimant learned that the Respondent was planning to buy another property in West Vancouver. Not only did he not disclose this to the Claimant, he told his son, D.D., not to tell his mother about it.

[53]        Finally, the Claimant stated her belief that the Respondent had changed his will recently. As the Respondent’s counsel argues, such a change is not unusual when couples separate, but again it shows that he was making efforts to formalize the separation while making demands on the Claimant and not disclosing the use of family resources by him.

[54]        The Claimant stated in para. 168 of her Affidavit #1:

[55]        In my view, the above comment was supported by the evidence. The circumstances at play in August 2016 amply demonstrate that there was urgency in securing the family properties around the world before the Respondent took action to dispose of them so as to frustrate the Claimant’s entitlement and interest in the family property pursuant to the FLA, s. 81.

[56]        Nor do I agree that the Mareva injunction was overly broad, save for one matter. The Respondent argues that tying up all the properties around the world was not necessary when the Claimant had more than sufficient assets in her name in North America to satisfy her claims.

[57]        The FLA provides:

[58]        In my view, the evidence before me on August 8, 2016 provided a sufficient basis for determining that a restraining order was appropriate under the FLA, s. 91. Indeed, s. 91(1) mandates that such an order be granted unless the Respondent has established that the Claimant’s claim will not be defeated or adversely affected. It goes without saying that, if such an order is sought on an ex parte basis (s. 91(3)), the order must be made since the “other spouse” would obviously not have produced any such evidence. 

[59]        The Respondent now argues that the value of the real estate alone, in BC, Ontario and Florida, is approximately $21-23.5 million. The Claimant and the Respondent hold title to all these properties in joint tenancy save for the BC ranch which is held in the joint names of the Claimant and D.D. The Claimant also has valuable vehicles valued at $568,000. The Respondent holds title to all the Asian properties in his name only. I also understand that he owns vehicles there.

[60]        The Respondent states the value of the North American assets is more than sufficient to satisfy the Claimant’s property claims and there is no need to tie up other assets, such as those in Asia.

[61]        In my view, considering the matter afresh, the Respondent’s argument ignores that the Claimant has a property interest in all of the family property, including the Asian properties held in his name alone. Further, the true value of all the real property and other interests has not yet been established. For example, the value of the medical practice may be quite large and well beyond the real estate values which have been suggested by the Respondent. There may be other assets in Asia or elsewhere held by the Respondent of which the Claimant is not yet aware. Simply put, the valuation issues are such that I cannot be assured that the Claimant’s claim may not be adversely affected by simply preserving the North American assets. The Respondent has not met his burden under the FLA, s. 91(1).

[62]        The only provision that I do agree was overly broad was the requirement to produce certain documents going back to 1994. This is, of course, well beyond what might be considered relevant in normal document disclosure.

[63]        I appreciate that the Claimant wished to research matters well into the past to determine what assets and income might have been held or earned by the Respondent. However, the ex parte nature of the order is such that it should only have provided for a reasonable amount of disclosure before service on the Respondent.

[64]        The requirement for disclosure of assets after the granting of a Mareva injunction was discussed in Sekisui House Kabushiki Kaisha (Sekisui House Co. Ltd.) v. Nagashima (1982), 1982 CanLII 800 (BC CA), 42 B.C.L.R. 1 (C.A.). The idea is to “breathe some life” into the injunction by requiring a list of assets and their location. In Tracy v. Instaloans Financial Solutions Centres (B.C.) Ltd., 2007 BCCA 481 at paras. 74-75, the Court stated that the purpose of such an affidavit was enforcement of the order and to ensure compliance.

[65]        Such an order has been a regular feature in many Mareva injunctions granted since that time.  This provision is also highlighted for consideration by the party seeking the order and the Court in the Model Order posted on the Court’s website.

[66]        Nevertheless, the purpose of the Mareva injunction is not to obtain discovery. However, this is essentially what was required by portions of paras. 20-22 of the order which dealt with the extent of the disclosure.

[67]        Accordingly, the Mareva injunction is set aside as follows:

[68]        This clarification, that the Respondent shall provide current documents and those going back three years relating to his assets and income, should be sufficient to “breathe life” into the Mareva injunction to ensure compliance and enforcement. I understand that the Respondent has already complied with some of the disclosure ordered. If the Claimant seeks further disclosure, she may file an application for such an order in the usual fashion.

[69]        Section 109(2)(b)(i) provides that the Court may make an order for the purpose of dividing extraprovincial property and to preserve such property:

[70]        The above section was specifically discussed at the hearing on August 8, 2016. I am unclear as to whether the Respondent is disputing that this Court had jurisdiction in relation to him given his substantial connections to British Columbia. There seems to be some confusion in that regard: the Respondent has filed responsive pleadings to this proceeding, although I also understand that he has filed a jurisdictional challenge. 

[71]        In any event, there was no apparent issue concerning the ability of the Claimant to seek to enforce the Mareva injunction against the Respondent in the jurisdictions beyond BC. In fact, the order was recognized and enforced by the court in Florida. In addition, the order was sufficient to enable the Claimant to register caveats against the real property in Singapore.

[72]        It is my understanding that the Respondent has commenced two proceedings in Singapore. One of those proceedings is to obtain an order that the caveats be removed from the Singapore properties; the other is for a divorce. The overall tenor of the Respondent’s current evidence, as of May 2017, is that he is adamant that the family issues should be resolved in Singapore.

[73]        I disagree with the Respondent that there was no discussion between the Claimant’s counsel and the Court about how an order under s. 109 would operate. It was clearly the intention of the Claimant to take the order and enforce it, if possible, in Florida and Singapore. Paragraph 16 of the injunction also stated that the terms of the order would not apply to any person or entity outside BC “until this Order is declared enforceable or is enforced by a Court in the relevant jurisdiction”.  I fail to see how this was, as the Respondent’s counsel now argues, an “end run” around the requirements of s. 109. I disagree that the Claimant was required, as a prerequisite to obtaining the order, to present evidence from someone confirming that the Singapore court would enforce the order. If nothing else, I fail to see how anyone could confirm or opine on what a court would do in respect of any particular fact pattern.

[74]        The fact that the Mareva order has been ignored by the banks in Singapore does not detract from my finding under s. 109(2)(b).

[75]        In any event, the alternate basis for the granting of the Mareva injunction in respect of family property, which supplements my jurisdiction under the FLA, is found in the equitable jurisdiction of the Court, pursuant to s. 39 of the Law and Equity Act.  See for example, Cabaniss v. Cabaniss, 2010 BCSC 326; Tidy v. Tidy, 2014 BCSC 1445 at paras. 29-31 regarding restraining dealing with property which is the subject of the lawsuit.

[76]        In my view, the evidence before me on August 8, 2016 was sufficient to determine that a strong prima facie case had been made out to support the granting of the Mareva injunction. In addition, I was satisfied, and continue to be so, that the balance of convenience justified the granting of that order. The Mareva injunction was simply intended to preserve the status quo while the issues in this proceeding are sorted out and prevent dissipation of the family property.

[77]        The Respondent does not argue that the Claimant failed to disclose any material facts in relation to the Mareva injunction.

[78]        The Respondent has not alleged any prejudice per se that would justify the setting aside or amendment of that order. In fact, he has provided no evidence in support of the application to set aside the Mareva injunction. His counsel specifically advised that none of his affidavits were being relied on for his application, including the very late delivered Affidavit #6 sworn May 22 and filed May 25, 2017.

[79]        Accordingly, I dismiss the application to set aside the Mareva injunction, save with respect to the amendments to paras. 20-22, as noted above.

[80]        The Respondent has not paid any support for the Claimant or K.D. since the filing of this proceeding.

[81]        The Claimant seeks retroactive child and spousal support commencing July 2016 and an order for ongoing support under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (“Divorce Act”). The central issue driving a determination of both interim child and spousal support is a determination of the Respondent’s income.

[82]        I accept that the Claimant’s income, pursuant to the Federal Child Support Guidelines, SOR/97-175 (“Guidelines”) for the period from July 2016 to June 2017 is $173,190. This amount is based on the Claimant’s 2016 tax return and has been adjusted for tax credits and applicable gross ups as calculated by the DivorceMate calculations provided by the Claimant’s counsel.

[83]        On this issue, the Respondent’s counsel suggests that the Claimant may obtain further income by renting out the Vancouver condominium. I reject this suggestion; the evidence is that it is used by the Claimant and K.D. from time to time, consistent with their previous use of it before these proceedings began. I would also note that the Respondent continues to have access to various properties in addition to his home in Singapore. There is no suggestion by him that these other properties be rented to create more family income.

[84]        In addition, the Claimant seeks an order that she be entitled to the rental income from the Toronto and Florida properties. In my view, such an order is appropriate in the circumstances, particularly since the Respondent continues to obtain rental income from certain Singapore properties for his own use. Applying those figures, the Claimant’s Guidelines income commencing July 2017 will be $272,379.

[85]        The Claimant has amassed a substantial amount of evidence, including from the Respondent’s disclosure to date, which she says supports a proper analysis of the Respondent’s income. She contends that his present yearly income is a minimum of $2.08 million and more likely in excess of $4.3 million.

[86]        There are various aspects of this analysis which includes: the salary the Respondent receives from the medical practice; the pre-tax profits of the medical practice; alleged payments to family members; and, rental income from various Singapore properties and properties in Toronto and Florida. The lower figure of $2.08 million in income is calculated from these sources in 2016 as follows:

[87]        The agreed or proven facts indicate: that any child support or spousal support is not deductible from the Respondent’s income in Singapore; that dividends and foreign rental income are received tax free in Singapore; and that the income rates in Singapore are substantially less than that in Canada. On the latter point, for 2016, income on the first $320,000 was taxed at 13% and any excess at 20%. For 2017, those figures rose to 14% and 22% respectively.

[88]        It bears emphasizing at this time that this is an application for interim support pending a final determination to take place at the trial, which is only some eight months away.

[89]        The proper approach to such an application has been described in many ways, but the phrase “rough justice” nicely captures the idea. I have in mind the comments of the Court in M.(D.R.) v. M.(R.B.), 2006 BCSC 1921 at paras. 7-8.

[90]        Such an application is not intended to involve an extensive exercise of fact finding and findings of credibility based on volumes of documentation and detailed and complex allegations. The interim nature of the application indicates that the general purpose of interim spousal and child support is to stabilize matters before the trial. In addition, the intention is not to put the parties to great expense in producing all relevant evidence towards seeking (or opposing) such relief, which adds to the already heavy financial burden of these types of proceedings. Where issues, such as appropriate income levels, are hotly contested and raise valid issues, it will often be the case that such matters are best left to a more fulsome exploration of the evidence, such as at trial.

[91]        I appreciate that the Claimant has gathered a substantial amount of evidence and has compiled an analysis of the Respondent’s income in support of her argument that income over $4 million per year should be imputed to the Respondent. The analysis has been extensive, comprising of almost a hundred pages of argument and many large binders of affidavits, from which it is argued that the Respondent’s stated income sources are but one aspect of his true income. This is similar to what was addressed by this Court in I.F. v. R.J.R., 2015 BCSC 793 at paras. 10-15 and I would echo the comments of Justice Ballance in that regard.

[92]         Here, there are many aspects of the Claimant’s analysis that are vehemently denied by the Respondent.

[93]        Firstly, the Claimant alleges that the Respondent purports to be paying income and benefits to the Claimant and his four children from the medical practice’s profits. The Claimant alleges that this is simply a scheme to avoid paying tax in Singapore and that such amounts are not in fact paid. She says that this amount - $117,940 per year - should be added back to the Respondent’s income.

[94]        Secondly, the Claimant alleges that in addition to his recorded salary and the profits from the medical practice, the Respondent receives substantial cash from patients, which is not recorded and is therefore tax free. This allegation is supported at least in part from evidence of a former employee at the practice, but she was only employed at the practice until 2008, some nine years ago. The Claimant contends that this allegation is further supported by her “lifestyle audit” which analyses various spending patterns of the family and transfers of money from Singapore to Canada.

[95]        The Claimant argues that there is no way the Respondent would have been able to purchase the assets held by the family, live the luxurious lifestyle and support the family in the way that he has if his reported income is to be believed. The Claimant contends that this type of tax free income is still received by the Respondent at this time and she estimates that amount to be $1.2 million per year.

[96]        I am simply unable to adequately assess these allegations and counter arguments on this application, given the limits that must apply here. In my view, it would be inappropriate to embark upon an assessment of such evidence, which requires an extensive consideration of all evidence (and likely more than is before me) including the viva voce testimony of the parties and perhaps others. Further, I am not in a position to resolve issues of credibility relating to this issue at this type of hearing: Plese v. Herjavec, 2015 ONSC 7572 at para. 52.

[97]        The evidence does, however, establish a sufficient basis upon which to attribute income to the Respondent for the purposes of this interim application.

[98]        The preliminary issue concerns claims of the Respondent regarding his medical practice. For all that there is evidence of a purported transfer of the medical practice to his oldest son in Australia after service upon him; the Respondent did not press that position on this application.

[99]        In addition, the Respondent contends that he has been planning his retirement for years and that more recent health issues faced by him have accelerated that process. He purported to give notice to the “owner and shareholder” of the medical practice (presumably his son in Australia to whom he purported to transfer the practice in late August 2016) that he was retiring. In January 2017, the Respondent’s evidence suggested that he was on a medical leave from his practice. The Claimant disputes this evidence and she refers to evidence from private investigators showing that into mid-January 2017, the Respondent was actively involved and working in the medical practice and that he was fully engaged in other aspects of his active lifestyle.

[100]     The ambiguousness of the Respondent’s statement concerning any retirement is such that he now states that he intends to retire before July 2017.

[101]     In my view, the suggestion by the Respondent that he had left the practice or is about to retire should be given no weight at this time. I consider it appropriate to attribute income to him on the basis of the historical income he has received from his medical practice, particularly from 2016.

[102]     In addition, I consider it appropriate to attribute or impute certain income to the Respondent in relation to aspects of the medical practice’s income and the rental income.

[103]     The evidence establishes that the Respondent has consistently withdrawn the pre-tax income of the medical practice over the years. The Guidelines provide:

[104]     The task of the Court is to assess which income is truly available to the Respondent for support purposes, despite certain income being generated by a corporate vehicle, such as his medical practice.

[105]     In Hausmann v. Klukas, 2009 BCCA 32, the Court found that the presumption is that a corporation’s pre-tax income will be assumed to be available to the shareholder unless that shareholder spouse establishes some need for the corporation to retain and use that income. Where the income is generated in a personal services corporation, such as a medical practice, that presumption will be highlighted since it will not often be the case that such corporations will have a great need to use cash resources for their business activities: Taja v. Dhanda, 2009 BCCA 198; J.(A.R.) v. J. (Z.S.), 2009 BCSC 1662.

[106]     The Respondent says that the dividends he has been taking out of his medical practice have been declining: $1.5 million in 2014; $1.2 million in 2015 and $900,000 in 2016. His counsel suggests that the correct figure to be attributed from the corporate income is $600,000.

[107]     I reject this contention. There is absolutely no evidence to support that a further decline is what was reasonably anticipated or in fact experienced by the medical practice from the last year end in June 2016. In addition, the Respondent has also failed to satisfy his onus that some lesser amount than the pre-tax income of the medical practice should be added to his income, per s. 18(1) of the Guidelines.

[108]     Accordingly, I conclude that the following income sources and amounts should apply in determining the Respondent’s Guidelines income(s) for the retroactive period and into the future:

[109]     The pre-tax corporate income and the rental income from Florida and Toronto have been grossed up because the Respondent receives this income tax free in Singapore. The Respondent’s counsel provided DivorceMate calculations which inputted the Respondent’s dividends under the category of “other non-taxable income (auto-gross up)”. This same method was used to estimate the gross ups for the pre-tax corporate income and the rental income from Florida and Toronto as set out in the above table.

[110]     The salary from the medical practice and the rental income from Singapore should also be gross up based on the lower taxation rates in Singapore (Guidelines, s.19(1)(c) and (h)). However, I decline to do so on this interim application because no evidence was provided with respect to the appropriate method for the gross up or the “bundle of services” provided in Singapore in exchange for tax dollars paid: Gonabady-Namadon v. Mohammadzadeh, 2009 BCCA 448 at para. 36; Watson v. Watson, 2006 BCSC 256 at paras. 23-29.

[111]     Furthermore, as stated above, this is an interim order for support meant to maintain the status quo until the parties can have their issues fully resolved at trial. I find it would be more appropriate for these gross ups to be dealt with at trial when the relevant evidence can be fully considered by the trial judge.

[112]     In my view, a strict application of the Guidelines in relation to the Respondent’s income, as determined above, would not be inappropriate despite the income amounts being in excess of $150,000: see Guidelines, s. 4.

[113]     In Hollenbach v. Hollenbach, 2000 BCCA 620, the Court stated that the Guidelines amount will presumptively apply, unless the payor spouse provides “clear and compelling” evidence as to inappropriateness: paras. 36.

[114]     The comments of Master Caldwell in Williams v. Williams, 2015 BCSC 112 are apposite:

[115]     The Respondent does not appear to contest this approach; he certainly has not attempted to meet the onus discussed in Hollenbach, which in Hathaway at para. 29, the Court also described as a “formidable onus”.   

[116]     In addition, the Claimant seeks retroactive child support from July 2016 to the hearing. The Respondent argues that any child support arrears should be payable only from September 2016 after he was served with notice of these proceedings.

[117]     The circumstances in which retroactive child support may be awarded were addressed in D.B.S. v. S.R.G., 2006 SCC 37. The Supreme Court of Canada directed trial judges to adopt a broad and holistic approach in the application of four factors, summarized at para. 133, none of which are determinative on their own:

[118]     At paras. 120-125 of D.B.S., the Court stated that the commencement date for an award of retroactive child support should not be restricted to the date an application to a court or formal notice is given. Rather, the Court should look to the date of effective notice by the recipient parent to the payor parent. Effective notice was defined as “any indication by the recipient parent that child support should be paid …”: para. 121. The Court suggested that this is generally when the topic of child support is broached.

[119]     There are circumstances where it is reasonable to infer that effective notice has been given to a payor parent, even in the absence of a specific request. This is founded in the principle that both parents have a legal obligation to contribute to the support of their child after separation.

[120]     Applying the factors from D.B.S., I conclude that on an interim basis, child support should be paid from September 2016 and going forward. The parties are in substantial dispute as to the appropriateness of imposing an obligation on the Respondent to pay from any earlier date. The Respondent argues that there was no separation until August 26, 2016, which coincided with him being provided with notice of these proceedings. However, I would note the Respondent’s evidence, as set out above; that as of June 2016 he considered that the parties had already been “separated” and that a “formal” separation would be necessary in the future.

[121]     Again, I consider it appropriate to leave the issue as to any obligation to pay retroactive support for July/August 2016 for consideration and determination at the trial. At that time, there can be a determination as to the date of separation and when the obligation of the Respondent to pay child support began.

[122]     The Claimant states that she has also incurred certain s. 7 expenses for K.D., since the date of separation as follows: math, French, piano and voice tutoring costs; rowing and regatta fees; health expenses; driving lessons; a country club membership; and car insurance. These expenses total in excess of $13,600.  She also claims future s. 7 expenses in relation to the rowing fees (estimated at $3,203 per year) and university expenses expected to begin in the fall of 2017 (approximately $8,245 per year).

[123]     The Claimant’s Form F8 financial statement outlines that she has monthly expenses totalling $64,414.86, which includes expenses for K.D.

[124]     The Respondent opposes payment of special expenses. He suggests that after deducting certain income taxes from the Claimant’s expenses (assumed to be paid by her in the future from the Toronto and Florida rental income) and the mortgage expenses on the West Vancouver home covered by the investment fund, she only has approximately $23,000 in actual expenses. The Respondent contends that half of such expenses should be attributed to K.D., resulting in expenses of approximately $11,500. The Respondent argues that these expenses are adequately covered by the Claimant’s income of approximately $170,000.

[125]     I am satisfied that the Respondent should contribute to certain special expenses, both past and into the future. Accordingly, I find the special expenses, on an interim basis, to be:

[126]     In summary, the Respondent will pay retroactive child support (from September 1, 2016 to June 30, 2017) in the amount of $21,360 per month and ongoing child support, commencing July 1, 2017, in the amount of $20,143 per month. The Respondent will also pay s. 7 expenses proportionate to the parties’ respective incomes, which results in the Respondent paying for 67% of the s. 7 expenses from September 1, 2016 to June 30, 2017 and 65% of the s. 7 expenses from July 1, 2017 onwards.

[127]     The Divorce Act provides:

[128]     The general considerations to be considered in relation to interim spousal support are summarized in Robles v. Kuhn, 2009 BCSC 1163:

[129]     In my view, there is no issue concerning the Claimant’s prima facie entitlement to spousal support, whether based on compensatory principles or arising from the economic disadvantages and financial consequences arising from the separation and need of the Claimant.

[130]     The Claimant is 53 years of age. She has not worked since approximately 1999. The relationship of the parties was some 22 years long, certainly a long one by any standard.

[131]     Further, the Claimant has been primarily responsible for the upbringing of their children and care of the West Vancouver family home and other BC properties.  Given the wealth of the family, one can only presume that she had help from others in that regard, such as from nannies and housekeepers. However, that does not detract from the overall description of the Claimant as a “stay at home” mother for the past 18 years.

[132]     The Claimant states that she has been unable to work as a direct result of the emotional consequences arising from the breakdown of the marriage and the financial consequences that have resulted. 

[133]     In addition, I agree that the Claimant has suffered a stark decline in her standard of living and that she has been economically disadvantaged due to the separation and the Respondent’s failure to provide financial support to her.

[134]     I also agree with the Claimant that there has been a distinct contrast in the standard of living of both parties since separation since her personal assets and investments have been frozen whilst the Respondent has had free access to his personal assets and investments in Singapore.

[135]     The Claimant’s current expenses outstrip her income. The Claimant’s Form F8 financial statement outlines that she has monthly expenses totalling $64,414. This amount is inclusive of the required payment under two mortgages on the West Vancouver home totalling approximately $25,800 per month. She has also had to incur significant legal and other costs in order to protect her provincial and extraprovincial assets.

[136]     The Claimant continues to receive funds from her mortgage investment accounts, which total approximately $12,000 per month. From this, the Claimant is required to pay for numerous household expenses and expenses related to the other BC properties (such as taxes, insurance and repairs) and costs associated with K.D. Without further support from the Respondent, the amount that the Claimant receives from her other income is insufficient to cover these monthly expenses and maintain her and K.D.’s standard of living.

[137]     The Claimant’s financial position has deteriorated to the extent that she has had to borrow funds from her son, D.D., in order to assist her in covering her legal and household expenses.

[138]     In contrast, the Respondent has apparently continued to enjoy his extravagant lifestyle, with unlimited access to his overseas liquid assets. The Respondent does not appear to have suffered any financial consequences as a result of the separation.

[139]     The Respondent’s Form F8 is sworn January 10, 2017. He indicates a Guidelines income of $455,315, which includes his Singapore rental income. This figure appears to disregard the pre-tax income in his medical practice. He also indicates monthly expenses of $79,629 and annual expenses of $955,550. However, as his counsel notes, these expenses include those that the Claimant is paying, including those relating to the West Vancouver home and the other BC properties. After backing out those expenses, his monthly expenses are $35,888 and his annual expenses are $430,662. In other words, his income far outstrips his expenses.

[140]     I am aware of the principles applicable to determining interim spousal support above the “ceiling” of $350,000, as set out in the Spousal Support Advisory Guidelines (“SSAG”); the matter is highly discretionary; the SSAG formulas are not to be automatically applied where the income levels are above that figure; the ceiling is not a hard “cap”; and, what is required is to apply an individualized, fact-specific analysis.

[141]     The authors of the Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016), in Chapter 11(b), describe the outcomes in cases involving high earners as “divergent and unpredictable”. That certainly appears to be the case, as indicated by the summary in that chapter, including:

[142]     I have considered the objectives and factors relating to interim spousal support, as set out in the Divorce Act, s. 15.2(4) and (6). I have considered that the Claimant’s strong prima facie entitlement to support arises under both a compensatory and needs basis. I considered the history of the parties’ relationship, including that theirs is a long one in excess of 20 years. I have considered their individual circumstances now, as disclosed on their respective Form F8 financial statements. I have also considered the standard of living enjoyed by the family prior to the separation. Clearly, the Respondent has a far greater ability to earn income than the Claimant, just as he had over the course of the relationship.

[143]     In addition to the factors referred to above, I have considered the following factors as relevant to this issue:

[144]     The mechanics of payments of any spousal support is another factor. The Claimant has approached this aspect of her application in light of the Respondent’s recent (May 22, 2017) declaration in his Affidavit #6 that:

[145]     The Claimant proposes to source any spousal support payments from the BC bank account in the Respondent’s name, at least until it is exhausted. There is no suggestion that drawing on this fund will diminish in any way the Respondent’s lifestyle. This would amount to dipping into a capital asset which is presumptively family property. Any consequences from the payments from this fund, arising from the property division exercised, are to be considered at trial.

[146]     For the period of July 2016 to June 2017, the range of spousal support produced by DivorceMate is $64,243-$68,657-$72,898, based on the Respondent having an income of $2,857,749 and the Claimant having an income of $173,190. For the period of July 2017 and ongoing, the range of spousal support produced by DivorceMate is $58,534-$62,958-$67,211, based on the Respondent having an income of $2,693,177 and the Claimant having an income of $272,379. I am satisfied that the mid-range SSAG from the calculations is the appropriate amount for interim spousal support until the trial. In particular, the Respondent has failed to establish any exceptional circumstances that would justify a different approach: Ladd.

[147]     For the same reasons relating to my order of retroactive child support, the principles arising from D.B.S. support an award of retroactive spousal support. Just as with child support, the Respondent would have been fully aware after service that the Claimant would be reliant on him for support, just as he had supported her in the past.

[148]     I have considered and rejected the Respondent’s argument against any award of spousal support. In part, he argues that the income levels assume that he was receiving income from the Toronto property over that period of time when there was some delay before he diverted the rental funds in December 2016. In addition, sometime over the past year, the Florida property was not tenanted. The Respondent has not provided any details as to how such adjustments, if appropriate, would affect the calculations.

[149]     Even so, on balance, I consider that it is appropriate to order retroactive spousal support from September 2016 to June 2017 at the mid-range SSAG amount of $68,657. In addition, I am ordering interim spousal support from July 2017 going forward, again at the mid-range SSAG amount of $62,958.

[150]     The Claimant is seeking an interim advance of $400,000 in order to fund this litigation. She has already expended more than $125,000 in this litigation. She has presented a draft bill of costs for a 30 day trial which references a total of $412,385 plus taxes (approximately $50,000).

[151]     The FLA provides:

[152]     The Claimant contends that such a payment is appropriate in order to “level the playing field” and provide her a sufficient financial basis upon which to continue with what is clearly going to be a long, complex and hotly contested proceeding. She estimates that this amount is just over 1% of the value of the parties’ real estate assets alone.

[153]     I have no doubt that the high conflict nature of this litigation will continue. There appears to be no middle ground upon which these parties can agree. All matters are contested concerning support payable from the Respondent and of course, the property division issue. The nature of the material before me indicates that the final resolution of these matters will involve a great deal of complexity, particularly relating to the valuation of assets, including corporate interests. There are issues, at least from the Claimant’s point of view, concerning the validity of certain transactions undertaken by the Respondent after he was served. There will quite likely be some forensic analysis of the complex financial picture of these parties’ lives. Disclosure issues remain extant. There are proceedings in foreign jurisdictions, such as Singapore and Florida. The Respondent also has now applied for various relief in Singapore.

[154]     The Respondent argues that such a payment is not “necessary” because the Claimant has $3.8 million in cash assets, upon which she should draw. However, the majority of that amount is represented by the mortgage investment account, the income which is used to pay the West Vancouver home’s mortgage payments.

[155]     It bears repeating here that the Respondent has already helped himself to over $539,000 in liquid funds from his Singapore bank accounts, arguably contrary to the Mareva injunction. 

[156]     In I.R., Ballance J. stated:

[157]     I am satisfied that a $400,000 interim distribution from family property can be made without negatively impacting the Respondent. Indeed, the proposal is that this amount be paid, along with the support payments, both retroactive and in the future, from a BC bank account in the Respondent’s name that has been frozen. It will be open to the trial judge to consider this payment in the overall resolution of the property division exercise that will be done at the trial. I see no prejudice to either party in proceeding in that fashion.

[158]     The Respondent’s application to set aside the protection order and Mareva injunction is dismissed, save with respect to portions of paragraphs 20-22 of the Mareva injunction, as set out above.

[159]     The detailed aspects of the orders sought by the Claimant and granted are as set out in Schedule “A” to these reasons. If the parties require any clarification of any aspect of these provisions, liberty is granted for them to apply.

[160]     Nothing in these reasons should be taken as binding on the trial judge as to the entitlement to spousal support or the quantum of both child and spousal support.

[161]     The Claimant sought special costs against the Respondent, principally relating to her allegations that there have been many breaches of the Mareva injunction in aid of his attempts to frustrate the Claimant’s efforts for a just result.

[162]     In my view, the costs consequences of this application are best adjudicated by the trial judge who will have the benefit of hearing about all matters from the inception of this litigation to its conclusion, including relating to the actions of the Respondent. The trial judge will be in a position to review the entirety of the matter and make the necessary findings of fact based on a full review of the evidence.

[163]     Accordingly, costs of both applications are reserved to the trial judge hearing the matter. If, for some reason, the matter does not proceed to trial, either party may seek to have me consider the costs issue.