[1]           The issues in this family action concern the division of family property and support for the claimant and the remaining child of the marriage. These are ordinary issues, but the facts are complicated and the case has several distinctive features.

[2]           First, there is a foreign element. The claimant, Ms. Christie Devathasan (“Ms. Devathasan”), and the respondent, Dr. Gobinathan Devathasan (“Dr. Devathasan”) met and married in Singapore. Dr. Devathasan has remained in Singapore and continues to practice his profession there, while Ms. Devathasan moved to British Columbia with the children in 2004 and has lived here ever since. Notwithstanding their different principal residences, it is common ground that the parties remained a couple and that the date of separation coincides with the commencement of this action by Ms. Devathasan in July 2016. Though he resisted it strenuously for some time, Dr. Devathasan now accepts this Court’s jurisdiction to address all the matters in issue. There is no issue as to the application of foreign law.

[3]           Second, Dr. Devathasan and Ms. Devathasan are uncommonly wealthy with assets in diverse jurisdictions. The family property subject to division in this case includes homes and investment properties in British Columbia, Ontario, Florida, Singapore, Thailand and Malaysia. The parties also own expensive automobiles, jewellery and artworks. The family assets subject to division are said by Dr. Devasathan to total $38 million, and by Ms. Devasathan to total $41.4 million.

[4]           Third, the sole source from which all this wealth has been generated is Dr. Devasathan’s medical practice as a neurologist in Singapore, supplemented in later years by rental income from investment properties and the capital gains on the sale of two investment properties. On any view, the medical practice has been exceedingly lucrative. As appears to be common in Singapore, many patients pay cash. More than 40% of the practice’s declared revenues are cash revenues. Ms. Devathasan claims that the declared revenues are understated in the practice records and that Dr. Devathasan’s actual revenues are substantially larger than he admits.

[5]           Fourth, this case has been marred by sustained and deliberate misconduct on the part of Dr. Devathasan from the commencement of the action in July 2016 through January 2018. In this period, Dr. Devathasan admits that he dealt with assets contrary to the terms of an asset freezing order or Mareva injunction, communicated with his wife and daughter and his daughter’s university contrary to the terms of a protection order, concealed assets that he was required to disclose by swearing false affidavits from which these assets were omitted, and engaged in unseemly and abusive correspondence with Ms. Devathasan’s counsel and the Court. At issue is whether Dr. Devathasan has persisted in his misconduct since February 2018.

[6]           The parties each led evidence accusing the other of misconduct during the marriage. It is worth bearing in mind that spousal misconduct has no bearing on the division of assets pursuant to Part 5 of the Family Law Act, S.B.C. 2011, c. 5 [FLA] and only bears on spousal support in the limited circumstances identified in s. 166 of the FLA. Misconduct in the course of the litigation is another matter and I will have to deal with that in addressing costs.

[7]           Dr. Devathasan was born in Singapore in August 1949. His parents had immigrated there from Southern India. His father was a police officer and his mother was a housewife. He had six siblings. The family was poor. Dr. Devathasan was an excellent student who, by dint of ability and hard work, obtained scholarships and was able to attend medical school in Singapore. Following graduation he qualified as a neurologist in the United Kingdom and returned to Singapore where he taught at a university affiliated with the Singapore General Hospital until 1990, when he went into private practice.

[8]           Ms. Devasathan was born in Singapore in April 1964. Her parents had immigrated there from Northern India. She had six siblings. Her family was traditional and her upbringing was strict. Following her graduation from high school, Ms. Devathasan undertook nursing training at the Singapore General Hospital and qualified as an assistant nurse in 1985.

[9]           Dr. Devathansan and Ms. Devathasan met on the wards at the Singapore General Hospital in 1984. He was 34 and she was 19 years old. Both were married to other people in marriages that had been arranged by their parents. They fell in love and commenced an affair that they did not disclose to their respective spouses. At this point, Dr. Devathasan and his first wife had one child, a son I will call “J”. Ms. Devasathan was childless.

[10]        In early 1987, Ms. Devasathan learned that she was pregnant with Dr. Devasathan’s child. At this point, their stories diverge and I will address the divergence, so far as it is relevant, later on in these reasons. Certain matters are not in dispute. Their son, whom I will call “D”, was born in September 1987. Shortly afterwards, their relationship ended. Ms. Devasathan raised D independently until 1993 or 1994. Dr. Devasathan and his first wife had a second child, Dillon Devasathan, who is a respondent in this action. Dillon Devathasan’s first name is spelled “Dhillon” in the style of cause; I have adopted the spelling used in the correspondence that is in evidence.

[11]        Ms. Devasathan stopped working as an assistant nurse. She says that she could not obtain suitable childcare. She separated from her first husband and found work as a model and event planner. This was her occupation in 1993, when she reconnected with Dr. Devasathan.

[12]        There is a significant dispute as to when the renewed relationship matured to the point that the parties were living together in a marriage-like relationship, within the meaning of s. 3(1)(b) of the FLA. I will address this issue later in these reasons. It is common ground that in the fall of 1993, the parties were again intimately involved with one another and Ms. Devasathan had begun working part-time in Dr. Devasathan’s neurology clinic (the “Clinic”). At some point in late 1993 or in 1994, Ms. Devasathan and D moved into a house at 9 Gambir Walk in Singapore (the “Gambir Walk property”) that Dr. Devathasan had purchased in 1993.

[13]        At some point in 1994, Dr. Devasathan’s first wife learned of his relationship with Ms. Devasathan. She left him, taking their children, J and Dillon, and sued for divorce. Ms. Devasathan was named as a co-respondent.

[14]        In 1994, Ms. Devathasan’s employment at the Clinic became her full-time occupation. She stopped working as a model and event planner.

[15]        Dr. Devathasan had established the Clinic in June 1991, following a short period in private practice in partnership with a neurosurgeon. He purchased premises on the 14^th floor of a medical building (“Mount Elizabeth”) that is part of the Singapore General Hospital complex. He continues to practise there today. It was a proprietorship at first.

[16]        In late 1993, Dr. Devathasan was the subject of a tax audit by the Singaporean authorities. The outcome was an assessment of S$900,000 comprised of unpaid taxes and a fine for “negligent bookkeeping”. By liquidating assets and working very hard, with Ms. Devathasan’s support and encouragement, Dr. Devathasan was able to pay the assessment before the end of 1994.

[17]        At some point in 1994 or 1995, Dr. Devathasan moved into the Gambir Walk property to live with Ms. Devathasan and D.

[18]        In 1995, Dr. Devasathan incorporated the respondent, Devathasan Neurology & Medical Pte. (“DNM”), to operate the Clinic. He has always been the only doctor practising there.

[19]        Ms. Devathasan and her first husband were divorced in 1996, and Dr. Devathasan and his first wife were divorced in 1997. Dr. Devathasan and Ms. Devathasan were married in Singapore on August 20, 1997.

[20]        On August 11, 1999, Ms. Devathasan gave birth to the parties’ second child, a daughter I will call “K”. Ms. Devathasan returned to work at the Clinic and continued working there until 2002, when she stopped working to spend all her time looking after D and K.

[21]        In 2003, Dr. Devathasan proposed that the family move to Canada where the educational opportunities for the children would be better. He and Ms. Devathasan obtained permanent resident status by depositing C$500,000 with the Immigrant Investor Program. Dr. Devathasan determined that his opportunities to work as a physician in Canada were not at all attractive, and it was decided that Ms. Devathasan and the children would move here, and he would remain working at the Clinic in Singapore. They purchased a large house at 1091 Groveland in West Vancouver (the “Groveland property”). Ms. Devathasan and the children made the move in June 2004.

[22]        Following the move, Dr. Devathasan would come to British Columbia several times a year, Ms. Devathasan and K would visit him in Singapore annually, and they spoke daily by telephone and Skype.

[23]        In 2015 and early 2016, the parties’ relationship was deteriorating, as was Dr. Devathasan’s relationship with the children. In April 2016, a visit by Dr. Devathasan to British Columbia went very badly and K refused to speak with him after that. In this period, Dr. Devathasan frequently threatened divorce, forecasting that it would be bitter.

[24]        Ms. Devathasan commenced this action on July 8, 2016. On August 8, 2016, she applied for and obtained without notice an asset freezing order and a protection order. The notice of family claim and these orders were served on Dr. Devathasan on August 26, 2016.

[25]        Dr. Devathasan felt that the orders were not binding on him because he was in Singapore, and he took various steps to deal with his assets in violation of the asset freezing order. These included gratuitously transferring his shares in DNM to Dillon Devathasan and incorporating the respondent, David Nathan Neurology & Medical Pte. (“David Nathan”), with the respondent, Senna William and Dillon Devathasan as directors and shareholders, to assume conduct of the Clinic from DNM. He back-dated the transfer documentation to make it appear as though the transfer of his shares to Dillon Devasathan had occurred before he was served.

[26]        At the time, Dillon Devathason was working in Australia and he is now studying in the United States to became a veterinarian, after which Dr. Devathasan expects that he will return to Australia. He has never worked in the Clinic. Ms. William is an ordinary member of the Clinic staff who has no special qualifications to own or operate a neurology clinic. Dr. Devathasan continues to control the Clinic. At trial, Dr. Devathasan did not contend that the steps he took in 2016 were legally effective as against Ms. Devathasan. Dillon Devathasan and Ms. William were served and did not appear at trial.

[27]        Dr. Devathasan retained counsel in British Columbia and Singapore. He commenced divorce proceedings in Singapore and argued that Singapore was the more appropriate forum. In May 2017, he applied in this action to set aside the asset freezing order and the protection order. Ms. Devathasan cross-applied for interim spousal and child support. A judge of this court reserved judgment and issued written reasons, indexed at 2017 BCSC 1010, on June 19, 2017. She refused Dr. Devathasan’s application and allowed Ms. Devathasan’s application. She ordered Dr. Devathasan to pay arrears of support, ongoing interim child support at $20,143 per month, and ongoing spousal support at $83,721 per month. She also awarded Ms. Devathasan an interim advance of $400,000 for legal fees.

[28]        Following this decision, Dr. Devathasan and his British Columbia counsel parted company and he was unrepresented here for much of the period until February 2018.

[29]        On July 31, 2017, another judge of this court extended the protection order and made it indefinite in duration. At the trial before me, it was not suggested that the protection order should be varied.

[30]        This trial of this action was scheduled to begin on February 19, 2018. Earlier that month, Dr. Devathasan retained his present counsel. On February 14, the Singaporean court issued an order affirming an earlier decision in Ms. Devathasan’s favour and held that the parties’ dispute should be tried in Canada rather than Singapore. The same day, Dr. Devathasan applied to Master Dick to adjourn the trial and the application was dismissed unless Dr. Devathasan paid $1.5 million to secure his ongoing obligation to pay child and spousal support. Dr. Devathasan did not satisfy that condition. On the first day of trial, he applied to Iyer J. to adjourn the trial. The trial was put over to February 26, 2018 to permit him to satisfy the same condition, and additional conditions were imposed. These included requirements that Dr. Devathasan formally submit to this Court’s exclusive jurisdiction, give the claimant a $7 million mortgage over properties in Singapore as security for her claims in this action, and consent to immediately listing various properties for sale. Dr. Devathasan agreed and satisfied the conditions and the trial was adjourned.

[31]        Since February 2018, only one of the properties that was to be listed for sale under Iyer J.’s order has been sold. Ms. Devasathan contends, and Dr. Devasathan denies, that he obstructed the selling of the properties. On September 24, 2018, on Ms. Devathasan’s application, Watchuk J. ordered that Ms. Devathasan have sole conduct of sale of all but one of the properties listed for sale under Iyer J.’s order.

[32]        D is now 31 years old and established in a career as a professional engineer. He is no longer a “child of the marriage” as defined in the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.) [Divorce Act or DA] and the FLA. K is presently a second year arts student attending university in British Columbia. It is conceded that she remains a child of the marriage.

[33]        The parties accumulated a good deal of real estate over the course of the marriage. At the outset, Dr. Devathasan owned the Gambir Walk and Mount Elizabeth Properties. Dr. Devathasan essentially exhausted his liquid assets paying off the S$900,000 fine in 1994. In the years following, he made property purchases and other investments as follows. Figures in this table given in foreign currencies are converted to Canadian dollars at today’s exchange rate. All figures are rounded. The exchange rates have varied over the years and the table must be read with that in mind. Accordingly, the Canadian dollar figures shown in the right hand column provide only a general indication of the amounts invested:

[34]        In short, from 1995 to 2018, Dr. Devathasan accumulated approximately C$16.7 million for investment at a rate of about C$700,000 per year.

[35]        Many of these properties – Saint Tropez, Toronto, Rosyth, the two Gambir Ridge condominiums, Hotel Georgia apartment, Astra and Molek – involved buildings under construction or renovation with contracts of purchase that required payments of the purchase price in stages. Dr. Devathasan testified that he was funding these payments from his earnings and rental revenues. He took out mortgage loans only on the Suettenham, Groveland and Goodwood purchases.

[36]        In the same period, the parties lived what Ms. Devathasan described as a luxurious lifestyle. They purchased expensive furnishings and took extravagant holidays in far flung locations. After 2004, they maintained two large homes (the Gambir Walk and Groveland properties). After 2007, they also had a ski chalet at the Big White property. After 2013, they had the Hotel Georgia apartment in downtown Vancouver. Ms. Devathasan testified that it was intended to provide accommodation for K when she went to university. Dr. Devathasan disagreed that this was the intention. It has never been rented out.

[37]        Though he was living alone in Singapore, at the date of separation, Dr. Devathasan owned two cars in Singapore: a Masarati Gran Cabrio that he valued at C$200,000 and an Audi 8L that he valued at C$145,000. Living with K in West Vancouver, Ms. Devathasan owned three cars: a Rolls Royce Ghost Sedan that she valued at US$250,000, a 2015 Range Rover that she valued at C$150,000, and a 2015 Audi RS7 Quattro that she valued at C$160,000. Ms. Devathasan was a full time homemaker after 2002. All of this was paid for by Dr. Devasathan.

[38]        At trial, the parties through their counsel made significant reasonable concessions that narrowed the issues and simplified somewhat the matters I have to decide. These may be summarized as follows.

[39]        One issue is the division of family property and debt pursuant to Part 5 of the FLA. The parties agree that, once the family property and debt have been identified and valued, subject to exclusions, the appropriate order is that Ms. Devathasan should receive all of the North American properties, and Dr. Devathasan, should receive all of the Asian properties. On any view of the matter, this will leave Dr. Devathasan with more than his share of the property, and there will have to be an order that he compensate Ms. Devathasan to make things right. At the end of the day, the real issue is the amount of compensation required.

[40]        A second issue is child support. Because it is common ground that K remains a child of the marriage, entitlement to child support is not an issue. What I must decide is the amount and form of the child support that should be ordered. Ms. Devathasan seeks a lump sum order, and Dr. Devathasan argues for periodic payments.

[41]        A third issue is spousal support. Dr. Devathasan concedes that Ms. Devathasan is entitled to spousal support. There are issues as to the amount and form of the support that should be ordered. Ms. Devathasan again seeks a lump sum order, and Dr. Devathasan again argues for periodic payments.

[42]        Ms. Devathasan seeks special costs. Dr. Devasathan opposes and asks me to postpone consideration of costs until all other issues have been determined.

[43]        Underlying all of these issues are certain factual disputes that dominated the trial. I will address these before turning to the issues.

[44]        Each side says that the other is lying about important points and it is unfortunately necessary that I comment on the reliability and credibility of the evidence given by the parties.

[45]        Ms. Devathasan was a careful, and well prepared witness. I thought she was generally truthful. Unsurprisingly, she had difficulty assigning dates to events that took place long ago and she relied on documents in providing an account of the early years of her relationship with Dr. Devathasan.

[46]        Ms. Devathasan presented herself as subservient and Dr. Devathasan as dominant within their relationship. She said that she left financial matters entirely to him. I think that there was a degree of overstatement in this. Dr. Devathasan is older and better educated than Ms. Devathasan, and he has a forceful personality. She is highly intelligent, perceptive, and well organized. Within the relationship, Ms. Devathasan considered it her role to be a loyal and supportive wife. While she was working at the Clinic, Dr. Devathasan was in charge and she was his chief of staff. At one point in her evidence, referring to her work at the Clinic, she referred to “my staff” before changing the words to “the staff”, but I think her original formulation was more accurate. Later on, though a newcomer to Canada, Ms. Devathasan ran a household here competently and to Dr. Devathasan’s high standards. She dealt with bankers and located properties for Dr. Devathasan to purchase. I believe that he underestimated her.

[47]        Dr. Devathasan is an intelligent and emotional man, and was a problematic witness. He gave considered evidence that I cannot accept. Here are three instances.

[48]        Dr. Devathasan owns an expensive, diamond encrusted “AP” watch. It is worth S$80,000 to S$100,000. The Singapore Medical Council Ethical Guidelines, clause H2(4), require a doctor to refuse gifts that reasonable observers would deem extravagant. Dr. Devathasan says that the AP watch was a gift from a grateful patient that qualified as an extravagant gift. He says that he was afraid that he could get into trouble with the Medical Council, his governing body, for accepting this gift.

[49]        Dr. Devathasan says that his fear of having the gift exposed led him to tell Ms. Devathasan and D falsely that he had purchased it. Both testified that he told them detailed stories about the purchase. D’s account of the story he was told was striking: it involved staff at a high-end jeweler’s shop treating Dr. Devathasan badly, “like a Bangladeshi rickshaw driver”, so he left the store and returned with cash to purchase the watch for S$80,000. Dr. Devathasan says that D got the details wrong. D was not cross-examined on his account of what he was told and I accept his evidence.

[50]        The real difficulty is that, when Dr. Devathasan was asked on discovery in October 2018 for evidence to corroborate his account of a gift, he produced a document that purports to be a note printed out from clinical records kept in his computer. These records, he explained, are unalterable. Dr. Devathasan’s note is dated October 27, 2009. It is an account of a patient visit followed by a separate paragraph said by Dr. Devathasan to relate to something that occurred a month previously:

[51]        Dr. Devathasan testified that his clinical records were audited by the Medical Council in 2009. It simply does not make sense that Dr. Devathasan, fearing that he might get into trouble for accepting an extravagant gift, would make a point of recording the gift where it was relatively likely to come to the Medical Council’s attention. Moreover, if it made sense to make a note of the gift, why would he do so a month later in the context of an unrelated patient visit? Having heard Dr. Devathasan’s evidence under cross-examination, I do not accept that the purported clinical record produced by Dr. Devathasan is authentic. I think that he made it up in October 2018 to substantiate an argument that the AP watch should be treated as excluded property pursuant to s. 85(1)(b.1) of the FLA.

[52]        A second instance involves an apartment in Singapore described at the trial as the “Rosyth” property. It was purchased by Dr. Devathasan in 2011. He now states in his Form 8 Financial Disclosure Statement (“F8”) sworn on January 11, 2019 that it is his property, but in his first F8 sworn on January 10, 2017, he described it as a property held in trust for his employee, Ms. Dosado, and said that the property was to be transferred to Ms. Dosado and her spouse, Mr. Matabilas, who financed the property. At trial, he testified that Mr. Matabilas provided S$800,000 of the S$1 million purchase price.

[53]        In corresponding with the conveyancing lawyer in connection with the purchase of the Rosyth property, Dr. Devathasan agreed that a 4% deposit might be released to the vendor and added:

[54]        Early in this proceeding, Ms. Devathasan filed caveats against properties in Singapore owned by Dr. Devathasan, but not against the Rosyth property because she was unaware of its existence. After he was served  and aware of the action and the caveats, Dr. Devathasan emailed a lawyer in Singapore, stating:

[55]        If 80% of the purchase price was provided by Mr. Matabilas, I do not think that Dr. Devathasan would have advised the conveyancing lawyer that he was accumulating cash for the purchase. If Dr. Devathason’s intention was to convey the property to its true owner, the person for whom he held it in trust, I do not think he would have told his lawyer that he had a property to give away to staff. I reject Dr. Devathasan’s evidence that he received S$800,000 from Mr. Matabilas for the purchase of this property.

[56]        A third instance involves Dr. Devathasan’s evidence that he had accumulated S$2M in cash in a safe in his house at the end of 2014. This evidence is part of an explanation given by him for a finding on a forensic audit of his bank accounts that cash deposits to the accounts exceeded cash withdrawals in 2014 (S$625,335), 2015 (S$638,790) and 2016 (S$439,648). He maintains that he accumulated the cash in prior years, and it was his practice to keep large amounts of cash on hand because he does not have confidence in the stability of Singaporean banks. The underlying issue is not whether Dr. Devathasan kept large amounts of cash in his safe – it is clear that sometimes he did – but its source, specifically, whether he obtained it by unrecorded cash withdrawals from the Clinic. If the excess cash deposited into his bank accounts in 2015 and 2016 did not come from his safe, where else could it have come from? I will address this question in some detail later in these reasons.

[57]        In October 2014, Dr. Devathasan sent his lawyer an email stating:

[58]        On cross-examination, Dr. Devathasan’s explanation for his statement to his lawyer that he had no liquid cash was that he could not tell her what was in his safe. The contents were savings for his old age. He suggested that he was meaning to refer to the fact that he did not have stock market investments. None of this is at all persuasive. Dr. Devathasan had no reason to conceal cash on hand from his lawyer by affirmatively volunteering that he had none. I find that, in October 2014, Dr. Devathasan had temporarily exhausted his liquid cash reserves.

[59]        I find that these are three instances of deliberately false evidence given by Dr. Devathasan in the course of his testimony. I will point to others in the course of these reasons. As well, Dr. Devathasan concedes that he gave false evidence of his income and assets in an affidavit sworn on September 15, 2016 and his F8 sworn on January 10, 2017.

[60]        I must mention one other matter pertaining to Dr. Devasathan’s evidence generally. As I have already noted, Dr. Devathasan was served with the notice of family claim, asset freezing order, and protection order on August 26, 2016. He testified that he remembers this event very well. He described signing for a package that he thought would contain a book he was expecting. He opened the package and was flabbergasted. He said that this occurred at about 4 pm, and it was a shocking event. Dr. Devathasan was shown the affidavit of service, which shows that he was served at 10:10 am on August 26. It includes what appears to be his signature acknowledging receipt on a “Notice to the Respondent” briefly describing the asset freezing order and advising him to read it carefully and consult a lawyer as soon as possible. The acknowledgement is dated at 10:10 am. Dr. Devathasan insisted that only a part of the signature is his, though he was not prepared to say that it was forged. He appeared sincerely confused, as the document establishes that he was served in a manner and at a time that differs from his clear recollection. I am satisfied that Dr. Devathasan has conflated in his memory this occasion with some other occasion when he was served with documents. He was confidently mistaken in his firm recollection of the circumstances in which he was served, a notable event that I would have expected him to remember well.

[61]        I am left with doubt both as to the reliability of Dr. Devathasan’s recollection and his credibility as a witness, and am obliged to view his evidence with considerable scepticism. I should add, however, that scepticism does not equate to automatic disbelief. I do not think that every conflict between the evidence of Ms. Devasathan and that of Dr. Devathasan must be resolved in her favour, simply because she is generally a credible witness and he is not. As noted by Adair J. in Gichuru v. Smith, 2013 BCSC 895 at para. 130, aff’d 2014 BCCA 414, I must have regard to “the probabilities of the surrounding conditions or circumstances”.

[62]        Dr. Devathasan and Ms. Devathasan are spouses because they are married. Pursuant to s. 3(1)(a) of the FLA, their relationship as spouses is deemed to have begun on “the date on which they began to live together in a marriage-like relationship”.

[63]        The authorities do not disclose an easily stated test as to what constitutes a “marriage-like relationship”. This question is addressed in Austin v. Goertz, 2007 BCCA 586 and Weber v. Leclerc, 2015 BCCA 492. In Dey v. Blackett, 2018 BCSC 244 at paras. 192-196, Schultes J. offers a helpful overview of principles arising from the authorities. Fortunately, in this case I need not grapple with this in any depth because, on the view I take of this question, the real dispute is as to when the parties began to live together in the Gambir Walk property.

[64]        Ms. Devathasan says that she moved into the Gambir Walk property with D in October 1993. From the beginning, they were supported by Dr. Devathasan and he was spending two nights a week with them. Accepting that Dr. Devathasan continued to spend the rest of his nights at home with his first wife and their son, she maintains that she and Dr. Devathasan were then living together in a marriage-like relationship.

[65]        Dr. Devathasan says that, while he obtained the keys to the Gambir Walk property in October 1993, it required another two months of work by a contractor to repair leaks before it was ready for occupancy. He testified that the house was unfurnished and remained empty after that until he moved Ms. Devathasan and D in in mid-1994. He said that he himself did not move in with them until 1995.

[66]        I do not accept either of these positions.

[67]        In her evidence in chief, Ms. Devathasan tied her recollection of the moving in date to the Gambir Walk property to D’s schooling. The property was in the catchment of a particularly good school that D attended, commencing in January of 1994, and she had to be living there in advance to register him. On cross-examination, she acknowledged that she and D were already living at another address in the school’s catchment area before she moved into the Gambir Walk property. I do not think she has a reliable recollection of when she moved in.

[68]        More important, even if she and D were installed in the Gambir Walk property before the end of 1993, on her own account, Dr. Devathasan was not. He was still hiding his relationship with her from his first wife. While Ms. Devathasan and Dr. Devathasan had renewed their sexual intimacy, the intermittent and secretive nights they were spending together did not qualify as living together in a marriage-like relationship.

[69]        I do not accept Dr. Devathasan’s assertion that Ms. Devathasan and D did not move into the Gambir Walk property until mid-1994. By late 1993 he had re-established his intimate relationship with Ms. Devathasan and was employing her at the Clinic. He did not approve of her living arrangement because she was sharing a house with the man, a Mr. Vimel, who employed her as a model and event planner. The Gambir Walk property is an expensive house (now worth C$3.6 million) in a good neighbourhood. Dr. Devathasan had purchased it and was making mortgage payments on it. He says that it was in a better neighborhood than the house where he lived with his first wife and J, and that he hoped to move them in, but he did not do that. He had no reason to leave the Gambir Walk property empty. I find that Dr. Devathasan moved Ms. Devathasan and D into the Gambir Walk property as soon as the house was available in late 1993 or early 1994, and that he was paying their living expenses after that.

[70]        Dr. Devathasan testified that, even after his first wife moved out and commenced divorce proceedings in mid-1994, naming Ms. Devathasan as a co-respondent – unfortunately, the exact date is not in evidence – he continued living in the former matrimonial home, hoping that his first wife would return to him. This is implausible. Ms. Devathasan testified that both of them were served together at the Gambir Walk property. Dr. Devathasan could not recall. I accept her evidence on this point.

[71]        On May 23, 1994, Dr. Devathasan signed D’s grade one report card as D’s parent. This could have occurred at the Clinic, but I think it more likely that it occurred at the Gambir Walk property and that Dr. Devasathan was living there with Ms. Devasathan and D by this point.

[72]        By signing the report card, Dr. Devathasan was performing a parental responsibility in the context of a loving familial relationship. He was supporting Ms. Devasathan and D and living with them in a house that he owned. I find that, by May 1994, the parties were living together in a marriage-like relationship.

[73]        Dr. Devasathan denies that he ever took unrecorded cash from the Clinic. He says that he was the victim of embezzlement by a former staff member that he discovered in 1993. He filed a police report, and the consequence was the tax audit that resulted in a S$900,000 fine for negligent bookkeeping. Before this, he was naïve, and afterwards he became very careful. He incorporated DNM which produced audited financial statements every year, as required by Singaporean law. He converted to electronic accounting ledgers, supported by a computerized cash register. The potential penalties for financial mismanagement or tax evasion in Singapore are harsh. Dr. Devathasan testified that he is terrified of imprisonment, and he was not taking chances.

[74]        Ms. Devathasan testified that, while she was working at the Clinic until 2002, certain patients paid in cash and some of that cash was given to Dr. Devathasan and removed from the books before the ledgers were finalized each day. Another former employee at the Clinic, Ms. Yap, overlapped Ms. Devathasan and worked at the Clinic until 2008. She testified that certain patients paid in cash and their payments were recorded in a second set of books. Dr. Devathasan called a former employee, Ms. Lim, a present employee, Ms. Dosado, and the Clinic’s bookkeeper, Ms. Foo, to contradict the evidence of Ms. Devathasan and Ms. Yap. In argument, his counsel focused on differences between the schemes described by Ms. Devathasan and Ms. Yap and contended, broadly speaking, that it was impossible that off-book cash was extracted as described, or at all.

[75]        It is helpful to begin with evidence that is not controversial.

[76]        Ms. Patti Daum was appointed as a joint expert to conduct a forensic accounting of the Clinic’s operations. Ms. Daum gave evidence carefully and professionally, and I found her report exceptionally helpful. Pursuant to Family Rule 13-4(10), she was cross-examined by both parties. The cross-examinations pointed to matters of detail, assumptions, and an aspect of Ms. Daum’s qualifications not relevant to the forensic accounting she performed. Unfortunately, the parties were unable to provide her with financial records preceding 2011.

[77]        Examining the Clinic’s revenues, Ms. Daum observed that, between 2013 and 2018, cash deposits made up 42.9% to 46.7% of the total. Put another way, the Clinic’s recorded revenues included cash receipts exceeding S$1.3 million in every year through 2017. Overall, patients paid by cash more than 43% of the time and the rest of the payments were by credit card. This is very different revenue profile than would be found in a comparable professional clinic in Canada.

[78]        Ms. Daum has professional experience as an auditor. She testified that companies or societies that receive cash are often challenging to audit. It requires an inquiry into internal cash control systems, and the segregation of duties among persons handling cash. In Canada, the challenge of assessing internal cash controls often gives rise to a qualified audit opinion. She did not investigate these matters herself, in this case, and does not know how the Clinic’s auditors satisfied themselves to give unqualified audit opinions, as they did.

[79]        From its inception, the Clinic has been staffed by Dr. Devathasan and between 2 and 4 staff members. Dr. Devathasan is in effect the owner and the only professional. There has been no one with standing to challenge any of his decisions or practices.

[80]        Ms. Foo has been the bookkeeper for the last five years or so. Her practice has been to come in on Wednesday mornings for several hours. She does not observe staff handling cash. She does not review the cash register receipts. She has no way of knowing whether cash is received that is not recorded in the computer and not deposited in the bank. She does not have access to Dr. Devathasan’s personal bank records. She is not aware of the clinic’s cash control procedures. She does not use the clinic’s computers, only her own accounting system, and does not know whether computer records can be changed. She does not discuss clinic finances with the staff.

[81]        All of this is to say that, if Dr. Devathasan wished to divert cash from the very substantial stream flowing into the Clinic, he was in a position to arrange matters to that end without leaving traces for the auditors to find.

[82]        Ms. Daum examined all the bank records produced by Dr. Devathasan. She was able to compare cash deposits to personal bank accounts of Dr. Devathasan with cash withdrawals from personal and corporate accounts for the years 2011 through September 30, 2018. Expressed in Canadian dollars, the results were as follows:

[83]        The 2017 and 2018 results were recorded under the shadow of this lawsuit. Prior to that, 2013 was the only year in which withdrawals (including corporate drawings recorded in DNM’s books) exceeded cash deposited. The overall deposits exceeded withdrawals in the years 2011 through 2016 by more than $2.6 million or $436,000 per year. Where did the extra cash come from? Apart from rental income on investment properties, the Clinic was Dr. Devathasan’s only source of income.

[84]        In her report, Ms. Daum records the rental income reported by Dr. Devathasan from properties in Singapore in the years 2014 through 2017. (There were other investment properties generating rental income, but those rents were deposited in North American bank accounts until Dr. Devathasan took steps to avoid the asset freezing order in late 2016.) The Singaporean rents were:

[85]        Ms. Daum states:

[86]        I have already found that, in October 2014, Dr. Devathasan had temporarily exhausted his liquid cash reserves, including the money in his safe. I am left without any cogent explanation for the excess of deposits over withdrawals in 2015.

[87]        Dr. Devathasan offers an explanation for the excess of deposits over withdrawals in 2016. He says that he borrowed S$450,000 from a friend and received the funds in cash. This was an unsecured personal loan from a Djan Faridz. Dr. Devathasan identifies Mr. Faridz as an extremely wealthy Indonesian businessman and politician who is both a friend and a patient. The loan is ostensibly documented by an agreement dated June 15, 2016. There is no email correspondence or other documentation of any kind.

[88]        The supposed agreement is suspect – all that has been produced is a photocopy and the signatures are not as crisply rendered as the rest of the document – and the process by which Dr. Devathasan says he obtained the loan is exceptionally odd. As it emerged on cross-examination, Dr. Devathasan says that Mr. Faridz agreed to the loan and sent his “banker” over to the Clinic with 450 S$1,000 bills in a satchel. Dr. Devathasan cannot give the banker’s name and describes him simply as a man with a moustache in a shirt and tie. The banker did not ask for a receipt.

[89]        Dr. Devathasan says that the funds were delivered in this way because he asked for cash. It is not clear why and the purpose of the loan is unclear. Dr. Devathasan gave two reasons for the loan, neither of which makes sense. The first was that the loan was to meet his legal expenses but, assuming that the document is correctly dated, so far as Dr. Devathasan was concerned, it preceded the commencement of this action by more than two months. The second was that Dr. Devathasan was gathering funds to complete a purchase of the “Mulgrave” property in British Columbia. The Mulgrave deposit was paid in May 2016. The timing is better but, if the money was about to be wired to Canada, taking the funds in cash could only be an unnecessary and potentially risky inconvenience.

[90]        Taking everything into account, I am satisfied that this is another instance of deliberately untruthful evidence given by Dr. Devathasan. The supposed $450,000 loan would directly reduce Dr. Devathasan’s liability to Ms. Devasathan on the division of family assets and debts as well as explaining the excess of deposits over withdrawals into Dr. Devathasan’s accounts in 2016, but it is not a real loan. Accordingly, I am left without a cogent explanation for the excess of deposits over withdrawals in 2016.

[91]        Taking a broader view, the $2.6 million total excess of deposits over withdrawals into Dr. Devathasan’s accounts over the years 2011 through 2016 is a reason to believe that Dr. Devathasan was extracting cash off the books from the Clinic, but it is important to address the evidence of Ms. Lim and Ms. Dosado and the superficially plausible explanation given by Dr. Devathasan that he would not take chances and risk imprisonment in a Singaporean jail.

[92]        Ms. Lim was employed at the Clinic from 2004 to 2009. She worked alongside Ms. Yap and testified that she was unaware of a second set of books or of cash being taken out and given to Dr. Devathasan. Most days, Ms. Yap stayed later than she did, so Ms. Lim might not have had an opportunity to observe cash being passed to Dr. Devathasan by Ms. Yap.

[93]        Ms. Lim left the Clinic after Ms. Devathasan accused her of having an affair with Dr. Devathasan. The accusation seems to have originated with Ms. Yap. Ms. Lim felt that she was subjected to intolerable harassment by Ms. Devathasan, whom she had considered a friend, and she was angry. She denies that she is still angry at Ms. Devathasan, but I was left in some doubt at to that, in part because she insisted that she could not even remember the accusation until she was confronted with a letter she signed at Dr. Devathasan’s request in February 2017. I do not believe that she was truthful in her initial insistence that she did not remember the accusation.

[94]        Ms. Dosado has worked at the Clinic since 2008. She started work about a month before Ms. Yap’s departure. She arrives at the Clinic in the mornings about two hours after Dr. Devathasan. She testified that she has not seen him handle or remove cash from the Clinic.

[95]        Ms. Dosado occupies the Rosyth apartment in exchange for a S$1,200 monthly reduction in her salary. In the fall of 2018, Dr. Devathasan took steps to obstruct a potential sale of the apartment by signing and posting notices for the attention of potential purchasers that any attempt to evict Ms. Dosado and the other tenants would lead to criminal charges. Dr. Devathasan has told her that he will settle what will happen to the Rosyth apartment after this case is over and has at least intimated that he will transfer to her an interest in the Clinic. I think it clear that Ms. Dosado is beholden to Dr. Devathasan and wishes him to succeed in this law suit.

[96]        Neither Ms. Lim’s nor Ms. Dosado’s evidence persuasively establishes that Dr. Devathasan has not been extracting off-book cash from the Clinic in the years since 2011. Both are to some degree partisan witnesses. Ms. Lim has not worked there since 2009. Neither witness can say what Dr. Devathasan might have done outside their presence.

[97]        Dr. Devathasan’s testimony that he would not take chances with the clinic finances and risk imprisonment must be set against evidence that conclusively establishes that he has been taking chances.

[98]        He has what were described as “ghost” or “phantom” workers on the Clinic payroll. These are Singapore residents listed as employees who do not actually work there. The purpose, Dr. Devathasan explained, is to satisfy a Singapore government requirement that obliges an employer to employ at least five residents for every non-resident worker. The ghost workers on the Clinic’s payroll have included Ms. Devathasan, K, J, and Dillon. Ms. Devasathan has not worked there since 2002 and none of the children have ever been employed there. In her report, Ms. Daum identified 11 ghost workers listed on the payroll of David Nathan, stating:

[99]        In his evidence, Dr. Devathasan suggested that the practice is winked at by the government, which only really cares that contributions for the workers in question are made to the Central Provident Fund (described by counsel as a Singaporean equivalent to the Canada Pension Plan, only much more flexible). Ms. Foo testified that, so far as she is aware, ghost worker schemes are illegal and can lead to fines and jail time. Putting that to one side, it is obvious that any scheme that leads to funds paid to the owner of a company for his own benefit being treated as corporate expenses artificially depresses the company’s income and must be viewed by the authorities as a form of tax fraud. Dr. Devathasan’s fear of imprisonment did not deter him from engaging in this scheme.

[100]     Ms. Daum also noted that referral and administration fees paid by medical scanning and drug companies were deposited into his personal bank accounts rather than the corporate accounts. Dr. Devathasan admits the practice, although he says that it is only medical scanning companies that pay the fees. Dr. Devathasan said that no taxes were avoided, because the fees were taxed at source, like dividend payments (which are not taxable in the hands of the recipient in Singapore). This seems unlikely, though I am not in a position to make a finding either way. On any view of the matter, the income belonged to the companies, DNM and David Nathan, and their income was accordingly understated in their financial statements.

[101]     Dr. Devasathan has an affinity for cash. He paid cash for the AP watch and he kept large amounts of cash on hand from time to time. He has a safe in his office at the Clinic as well as one at home, and he regularly carried large amounts of cash on his trips to Canada. Once he was stopped and fined by Canada Border Services for failing to declare the cash he was carrying; he says it was $15,000. He is not someone whose conduct evinces a great respect for rules and regulations. In this light, his assertion that he never touched or handled cash at the Clinic is not credible. If he needed cash, it was there for the taking, and there was no one there to tell him no.

[102]     I need not address the evidence given by Ms. Devasathan and Ms. Yap as to the details of a scheme or schemes by which cash was taken out and given to Dr. Devasathan at the Clinic prior to 2008. Taking everything into account, I think it likely that cash was taken out in this period, but the real concern in this case is to establish Dr. Devasathan’s income in recent years, and assess the probability of undisclosed assets at this time.

[103]     Taking everything I have reviewed into account, I am satisfied that, over the years since 2011, it has been Dr. Devathasan’s practice to extract cash from his medical practice that was not recorded in the Clinic’s books of account in the years covered by Ms. Daum’s report. I find that this is the primary explanation for the excess of deposits over withdrawals noted by Ms. Daum. I will address the implications of this finding and questions of quantification in addressing the division of family property and debt, and in assessing the support payable.

[104]     Dr. Devathasan is 69 years old. Ms. Devathasan asks me to find that he will continue working until he is 75. Dr. Devathasan says that he intends to wind up his medical practice as soon as this litigation is concluded.

[105]     This is not a case of early retirement. Dr. Devathasan has already worked beyond an age at which many people retire. He has sufficient savings to live comfortably without working. He has been in that position for many years now. If he retires immediately, Ms. Daum forecasts that his share of the family assets will generate annual Guideline income exceeding C$659,000, on the most conservative assumptions (referring to the Federal Child Support Guidelines, SOR/97-175 (the “FCS Guidelines”)).

[106]     In my opinion, if Dr. Devathasan chooses to retire at this time, it cannot be said that he will be intentionally unemployed within the meaning of s. 19(1)(a) of the FCS Guidelines. On the other hand, if he is likely to continue working until age 75, his obligation to pay support should be determined on that basis. I cannot simply rely on his statement of his intentions, because it may be motivated by his self-interest, or he may change his mind following issuance of this judgment. I must make an objective assessment of what is most likely to occur.

[107]     In 2004, Dr. Devathasan was making arrangements to move Ms. Devathasan and the children to Canada. They talked about making plans for retirement. He was 55 years old. He said that he would stay in Singapore and work for a few years to build up their savings.

[108]     Dr. Devasathan would bring up retirement from time to time after that. Ms. Devasathan testified, and I accept, that it was always something that he was planning to do a few years in the future, and the horizon was always receding.

[109]     The parties agree that one of the reasons he gave for the acquisition of a portfolio of income-generating investment properties – something that began in 2010 – was to have a source of retirement income. Dr. Devasathan was taking concrete steps towards retirement but, as of 2016 when the litigation commenced, he had not gone further.

[110]     Dr. Devathasan enjoys his work as a physician. He is well known and respected as a neurologist in Indonesia and the surrounding areas. Patients come from far away to see him. He described them as begging for his services. He does not want to disappoint them.

[111]     Dr. Devathasan suffered minor strokes in 2008, 2014 and 2016. He consulted with a neurosurgical colleague, Dr. Tang, who advised him to slow down. The 2014 and 2016 episodes occurred while Dr. Devathasan was at work at the Clinic. In describing his symptoms, Dr. Devathasan was precise and commendably clinical. I accept his evidence concerning the strokes he has suffered. They are relatively minor and have not materially interfered with his ability to practice medicine to date. They worry him because he does not know what is causing them and he fears being crippled by a future stroke. He testified that he is unable to provide any forecast as to the likelihood of a future stroke – it would have been very easy for him to provide a pessimistic forecast – and I accept his evidence that he simply does not have a sense of what lies ahead for him. He suffers from hypertension and he is aware that this increases the risk. Controlling the stress he is experiencing – the end of this lawsuit will likely help – will be good for him. Apart from the hypertension and risk of stroke, he is in very good physical condition.

[112]     It is significant that, following both the episodes at his clinic, he continued seeing patients that day. He is strongly motivated. In the past, he has said to Ms. Devathasan that the day he stops working will be the day he dies. He says he was much younger when he said that and that his perspective has changed since the strokes.

[113]     Dr. Devathasan has been a hardworking man all his life. Throughout his career in private practice, he has worked Monday to Friday and Saturday mornings. His practice has been to open the Clinic at 6:30 am and keep it open until 5 pm or later. He has loyal patients.

[114]     On November 23, 2016, Dr. Devathasan consulted Dr. Tang having experienced an episode of left arm weakness and speech and vision difficulties that day. Dr. Tang advised him to take four weeks off work. On December 1, Dr. Devathasan was back at work. In cross-examination, he explained that it is very difficult just to stop. The patients are mainly foreigners who fly to Singapore to see him. Even now, he has been unable to find a neurologist to substitute for him in terms of the kind of care he delivers. He feels very guilty if he does not go to the office.

[115]     In 2018, Dr. Devathasan has worked less and the Clinic’s revenues have fallen. He is currently working four days a week. Revenues from credit card transactions have fallen proportionately to the overall decline, which persuades me that the overall decline is real.

[116]     Dr. Devathasan testified that his plan is to retire in Thailand, where the cost of living is lower than in Singapore. He says that he will not be able to obtain credentials to practice medicine there. I do not think it is likely that he will simply close the Clinic and leave his patients behind.

[117]     Viewing the matter objectively, as I must, I think that it is most likely that Dr. Devathasan will continue to practice medicine as a neurologist in Singapore until he is 75 years old. I think he will continue practicing at a reduced pace as he did in 2018.

[118]     Part 5 of the FLA requires the court to identify and value family property and family debt. The discussion that follows is confined to those provisions that bear on the issues in this case.

[119]     The right to an equal division arises on separation; s. 81(b). Ms. Devathasan pleads and Dr. Devathasan does not dispute that the separation date was July 5, 2016.

[120]     Family property includes all property legally or beneficially owned by either spouse on the separation date; ss. 83(4) and 84(1)(a). It also includes property and beneficial interests in property acquired by either spouse after the separation date if the property or beneficial interest was derived from property or a beneficial interest held at the separation date; s. 85(1)(b). These are subject to exclusions listed in s. 85(1). They include:

[121]     Despite the exclusion under s. 85(1)(a) of property acquired before the relationship began, s. 84(2)(g)(i) provides that family property includes the amount by which the value of excluded property has increased since the relationship began.

[122]     The party claiming the benefit of an exclusion is responsible for demonstrating that the exclusion applies; s. 85(2).

[123]     Family debt includes all financial obligations incurred by a spouse during the period of the relationship; s. 86(a). In this case, that is all financial obligations incurred between May 1994 and July 5, 2016. It also includes financial obligations incurred after the date of separation, if they were incurred for the purpose of maintaining family property; s. 86(b).

[124]     Family property and debt must be valued at the time of the trial, and the value of family property is its fair market value at that time; s. 87. The combined effect of ss. 85(1)(a) and 84(2)(g)(i) is that, in respect of assets that were owned by a spouse before the relationship began, it is necessary to value the property at the time of trial and subtract the value at the time the relationship began.

[125]     In dividing family property and debt, the court may order an unequal division of family property or family debt if equal division would be significantly unfair; s. 95(1)(a). Section 95(2) provides in part:

[126]     Section 97 affords the court broad powers to determine matters respecting the ownership, possession or division of property or family debt. Under s. 97(2)(c) these include the power to:

[127]     Schedule 10 of Ms. Daum’s report offers a comprehensive listing of assets and their values, taking into account the various appraisal reports in evidence and matters such as latent taxes. It also values excluded asset claims. Various elements in the schedule are contested. I find that it is an appropriate starting point and will address the contested elements below. In respect of matters that are not specifically addressed in these reasons, I accept the amounts and calculations set out in the schedule. I have appended to these reasons a table that summarizes my conclusions. In the appendix, I have rounded all amounts to the nearest thousand.

[128]     The Groveland property is a large house on a quiet street in the British Properties development in West Vancouver. Ms. Daum’s schedule lists the Groveland property at C$7 million, before deductions for latent taxes payable on the transfer of Dr. Devathasan’s interest in the property to Ms. Devathasan. Ms. Daum assumed that Ms. Devathasan will retain the property indefinitely. Ms. Devathasan’s position at trial is that she would like to sell it immediately.

[129]     The $7 million amount comes from the appraisal of Mr. Rivard, who attended for cross-examination at trial. It was suggested to Mr. Rivard that $7 million is too high because it does not take into account the deteriorating physical condition of the property and the currently declining real estate market. He testified that his appraisal takes into account the depreciation associated with the age and construction of the building. In his view, there is no satisfactory evidence of excessive depreciation. He would reduce the value by 1.5% to reflect a fall in the real estate market since the appraisal was prepared. I accept Mr. Rivard’s evidence and find that the fair market value of the Groveland property, at the time of trial, is $6.895 million.

[130]     The deduction for latent taxes must be reduced accordingly, from $460,645 to $453,735. I accept Ms. Devathasan’s evidence that she intends to sell the property as soon as she can. In that light, there should be a deduction for selling costs. Applying the formula set out at note 2 on p. 79 of Ms. Daum’s report, they would be $185,719. The adjusted value is therefore $6,255,546, or $6.256 million (rounded).

[131]     Based on her concern that Mr. Rivard’s appraisal is overstated and her belief that the real estate market is continuing to decline, Ms. Devasathan proposes that I can avoid valuing the Groveland property and instead wait until it is sold and the value is crystallized. Dr. Devathasan opposes this proposal. In some circumstances, Ms. Devasathan’s proposal might be tempting. This is not one of them. On the evidence, the valuation issue is straight-forward. Awaiting the sale of the Groveland property (and Ms. Devathasan would also await the sale of the St. Tropez property) would prolong the final resolution of matters between these parties. It is possible that the parties would disagree on the reasonableness of a proposed sale, giving rise to a court application. The amount owing by Dr. Devathasan to Ms. Devathasan in consequence of the property division could not be determined. Absent a final judgment, enforceable in Singapore, it is likely that the sale of properties in Singapore to raise the funds necessary to satisfy the judgment would be further delayed. The trial having taken place, I consider that it is now my task to address the issues on the evidence, rather than putting matters off.

[132]     The appraised value of the Mount Elizabeth property (S$9.5 million) is not in dispute. Ms. Daum’s schedule includes a deduction for selling costs that she noted in her evidence may not be properly included. On my findings, it is likely that the Clinic will continue to operate and the property will not be sold in the near future. The deduction should be eliminated.  

[133]     The value of the property at the start of the relationship in May 1994 must be excluded. There are two relevant appraisals in evidence, valuing the property at S$1.8 million on January 1, 1994, and at S$2.6 million on June 1, 1995. Interpolating, I find that the fair market value was S$2 million in May 1994.

[134]     The parties agree that the value of the exclusion is reduced by the balance owing on a mortgage against the property at the start of the relationship. The mortgage was taken out in October 1991 in the amount of S$785,000. It was to be repaid by monthly instalments of S$6,175 over 20 years, at an annual interest rate of 7%. I do not have evidence of the amount of the mortgage debt in May 1994, although it can be determined to be $545,617 by an arithmetical calculation from the information in evidence and would not appear to be controversial. The net value of the exclusion was therefore S$1.454 million (rounded) at the start of the relationship.

[135]     The Singaporean dollar has appreciated in value against the Canadian dollar since 1994. The current exchange rate is S$1:C$1.0011. Ms. Devathasan contends that I should subtract the former value from the present value after converting each amount into Canadian dollars. It seems to me that it is fairer to make the deduction first. The increase in the value of the property during the relationship is a consequence of changing property values in Singapore. It is this increase, measured in Singapore dollars, that should be converted to Canadian dollars at the end of the day.

[136]     Accordingly, the value of the family property associated with Mount Elizabeth is S$8.046 million or C$8.054 million.

[137]     As with the Mount Elizabeth property, the present appraised value of the Gambir Walk property is not in dispute. I do not think that Dr. Devathasan is likely to sell the property in the near future and the deduction for selling costs should be eliminated. The value is therefore S$3.6 million, subject to excluding its value in May 1994.

[138]     There are two appraisals in evidence, appraising the property at S$1.45 million at January 1, 1994 and at S$1.7 million at June 1, 1995. Interpolating, I find that the value was S$1.51 million in May 1994.

[139]     Ms. Devathasan submits that the exclusion is offset by a mortgage taken out by Dr. Devathasan when he purchased the property in October 1993. The mortgage balance on completion of the purchase of the property was S$818,000. There is no evidence as to the mortgage terms. If the amortization period were 20 years, as it was with the Mount Elizabeth mortgage, the reduction in the principal between October 1993 and May 1994 would be very modest, even if the interest rate were substantially changed. On any reasonable view, the mortgage balance would exceed S$800,000 at the start of the relationship. Conservatively, I will take the equity in the property at the start of the relationship as equal to the difference between S$1.51 million and S$800,000, or S$710,000.

[140]     For the reason given above in connection with the Mount Elizabeth exclusion, I consider that the exclusion should be calculated in Singaporean dollars and converted to Canadian dollars afterwards. Accordingly, the value of the Gambir Walk property is S$2.89 million or C$2.893 million.

[141]     Ms. Daum’s report utilizes the appraised value of the St. Tropez property, US$1.865 million. Ms. Devathasan maintains that, having regard to her efforts to sell the property, the appraiser has over-valued the property. Iyer J. ordered that the property be listed for sale and awarded Ms. Devathasan sole conduct of the sale on February 19, 2018. Ms. Devathasan listed the property and reduced the asking price several times to a low of US$1.2 million, before changing brokers and relisting the property at US$1.5 million in December 2018. She testified that the new realtor proposes cleaning up and painting the property at a cost of US$3,500 to US$4,000 before conducting an open house. Ms. Devathasan is taking the new realtor’s advice.

[142]     The appraiser was a joint expert appointed pursuant to Family Rule 13-3. He was not called for cross-examination. His report indicates that he inspected the apartment. He states:

[143]     I do not think that the lack of success in selling the apartment after February 19, 2018 through November 2018, and the hearsay views of the new realtor, are sufficient grounds to discard an apparently competently prepared appraisal by a joint expert in the absence of cross-examination. I accept the appraised value, subject to the adjustments set out in Ms. Daum’s report.

[144]     The Astra property is an apartment in Chiang Mai, Thailand, purchased by Dr. Devathasan under a contract dated November 24, 2015. The purchase price was 10,949,076 baht, equivalent to approximately C$405,000 in 2015.

[145]     The parties did not engage a joint appraiser of this property, because they considered the cost exorbitant by comparison to the amount in issue. Ms. Daum has valued the property at C$425,000, but both parties agree that it is worth more than that.

[146]     Ms. Devathasan relies on the August 2018 listing price of another unit with the same floor plan in the same apartment building. It is 13.3 million baht or approximately C$549,000.

[147]     Dr. Devathasan relies on a notice to admit delivered by Ms. Devathasan on January 31, 2018, in which Ms. Devathasan valued the property at C$520,745.

[148]     Neither is particularly satisfactory. It may well be that the apartment has significantly appreciated in value since January 2018. The August 2018 listing price is just an asking price and not a reliable indicator of value. However, the parties have attempted to deal with this question reasonably and pragmatically and I think that, in the context of this proceeding, I can fairly conclude that the fair market value of the Astra lies somewhere between the parties’ positions. I assess the fair market value at the mid-point of C$535,000.

[149]     Dr. Devathasan is spending time with a companion in Thailand, where he has rented an apartment in Bangkok, not Chiang Mai. I assume that the Astra property will be sold. Using the method adopted in Ms. Daum’s report, the latent selling costs are C$17,875, and the adjusted value is C$517,125.

[150]     Ms. Daum did not value the Toronto apartment in her schedule, presumably because it has been sold and the net proceeds of sale are in a lawyer’s trust account awaiting this court’s judgment. It was listed for sale under Iyer J.’s order and was sold on April 23, 2018. The proceeds of sale, net of conveyancing expenses, were C$2,839,627.08.

[151]     The sale proceeds were applied to pay a $96,750 tax liability on the disposition, incurred because Dr. Devathasan is a non-resident. This was an obligation of Dr. Devathasan’s; it was not a shared obligation. Ms. Devathasan submits that this liability is to his account rather than a family debt. Having regard to s. 86 of the FLA, this submission is sound because the obligation was incurred after the date of separation and was not incurred for the maintenance of family property; Maguire v. Maguire, 2016 BCCA 431 at para. 32.

[152]     Notwithstanding that the obligation is not a family debt, the Court of Appeal has held that, as a general rule, expected tax liabilities on the disposition of assets should be taken into account in the distribution of family property because it would be unfair not to; Maguire at para. 38; Sanai v. Mahmoud, 2017 BCCA 155 at para. 32; Baryla v. Baryla, 2019 BCCA 22 at para. 38. This issue usually arises when the court is asked to make an order for the disposition or distribution of family property, the tax liabilities are anticipated, and must be addressed in the court’s order. In this case, the tax debt has been paid and issue is whether there will be significant unfairness to Dr. Devathasan if the payment is not taken into account. I will address this below in the context of other submissions predicated on significant unfairness.

[153]     Net of the tax liability, the sale proceeds are $2,740,897.07. Subject to reallocation, the parties are each entitled to one-half this amount, or $1,370,448.53.

[154]     Payments have been made from Dr. Devathasan’s share of the proceeds pursuant to various court orders. These payments must be addressed in the final accounting between the parties.

[155]     Dr. Devathasan also incurred a fee of C$2,393.33 on account of the late filing of his tax return. This was not a family debt. If it was paid from the proceeds of sale, it must be reimbursed.

[156]     Ms. Daum’s report credits Dr. Devathasan with post separation contributions of S$1,168,528. These are payments made to complete the purchase of the Astra, Gambir Ridge and Molek properties after the parties separated. They are broken down as follows:

[157]     The theory underlying the credit is that Dr. Devathasan should be compensated for his contributions to the equity in property after the separation date. To the extent that this theory is legally supported, a matter I will address below, it could not apply to contributions that were themselves family property or the proceeds of family property.

[158]     Given the timing, I am satisfied that the Gambir Ridge payments in mid-August 2016 were made from funds already in Dr. Devathasan’s possession on the date of separation (July 5, 2016) and that they therefore constituted family property.

[159]     As I have already noted in general terms, immediately after Dr. Devathasan was served on August 26, 2016, he took steps to conceal and sequester assets, contrary to the asset freezing order. These steps included:

[160]     Addressing the cash transfers in cross-examination, Dr. Devathasan was unable to speak to details but asserted that at this time he was removing cash in order to make the payments required on the Astra and Molek properties. That is, he was breaching the asset freezing order in order to secure these properties rather than going into default on the purchases.

[161]     I do not accept that Dr. Devathasan had to breach the asset freezing order to make payments required to save the properties. He was represented by British Columbia counsel by September 8, 2016. He could have applied for and undoubtedly would have obtained a variation of the asset freezing order to make these payments. Instead, he was hoping to conceal the existence of the Molek and Astra properties, and did not disclose them as required by the asset freezing order or in his first F8 sworn in January 2017.

[162]     However, Dr. Devathasan’s response confirms me in the inference that the Astra payment on September 25, 2016 was made from funds already in Dr. Devathasan’s possession prior to the date of separation. Accordingly, the Astra payment constituted family property.

[163]     The first post-separation Molek payment of S$28,361 was made by Dr. Devathasan on January 17, 2017. The second was made in the amount of S$84,303 on March 30, 2017 from the David Nathan bank account. All the rest were made by Dillon Devasathan and the total corresponds almost precisely to the total of dividends received by Dillon Devasathan from David Nathan over the same period. Ms. Daum has assumed, and the parties accept, that the funds drawn by Dillon Devathasan from DNM and David Nathan were funds owned beneficially by Dr. Devathasan. I agree.

[164]     Having regard to the timing, source and amounts of the Molek payments, I think it most likely that all the Molek payments were made from profits earned by the Clinic after the date of separation. They were not family property.

[165]     It is therefore necessary to address whether Dr. Devathasan should be compensated for these post-separation contributions. The general rule is that each spouse is entitled to share equally in the value of property at the date of the hearing, regardless of contribution. Speaking for the court in Jaszczewska v. Kostanski, 2016 BCCA 286, Harris J.A. explained:

[166]     The question is whether an adjustment in respect of the S$461,064 (or C$461,571) paid on Molek is necessary to avoid significant unfairness, as contemplated by FLA s. 95. I will address this issue below in the context of other arguments predicated on significant unfairness.

[167]     The parties have 19 bank or investment accounts, an insurance policy, an RESP for K, and two mortgage accounts. Ms. Daum has valued these according to the most recent balances shown on the F8s sworn by Ms. Devathasan on December 14, 2018 and by Dr. Devathasan on January 11, 2019, supplemented by recent account statements. This is consistent with the rule in s. 87 of the FLA that the value of family property and debt must be determined as of the date of the trial.

[168]     However, the court may otherwise order. Counsel for Ms. Devathasan submits that the bank and investment accounts should be valued at the date of separation in order to more easily address issues of dissipation of assets and interim advances that have been ordered. Ms. Devathasan has more money in her accounts now than she did at the date of separation, but this is because she has been receiving support payments and court ordered advances totalling $850,000. Counsel advises that she owes over $500,000 in legal fees, though this debt is not listed in her F8. Counsel also points to the dissipation of funds by Dr. Devathasan, contrary to the asset freezing order.

[169]     Counsel for Dr. Devathasan advised that he agreed in principle to valuing financial assets at the separation date, but he adopted the more recent balances in his written submission.

[170]     It has been held that that adoption of a different valuation date is equivalent to an unequal division of family property to be justified only on the ground of significant unfairness under s. 95 of the FLA; Blair v. Johnson, 2015 BCSC 761 at para. 69; Kumagai v. Campbell Estate, 2018 BCCA 24 at para. 76.

[171]     Counsel for Ms. Devathasan emphasized a passage from the Family Law Sourcebook for British Columbia (CLEBC, downloaded February 17, 2019) at §4.23 citing Asselin v. Roy, 2013 BCSC 1681, at paras. 171-172 for the proposition that for accounts with financial institutions subject to day to day use, the valuation should be taken at the date of separation, while accounts representing long term investments should be valued at the date of trial, subject to an accounting for contributions and withdrawals post-separation. Asselin was decided immediately following the enactment of the FLA. It does not appear to have been cited for this proposition which seems inconsistent with the later decisions of the Court of Appeal in Jaszczewska and Kumagai.

[172]     I conclude that I should only deviate from the most recent account balances available if or to the extent that it would give rise to significant unfairness as contemplated by s. 95.

[173]     In my view, the dissipation of funds by Dr. Devathasan, contrary to the terms of the asset freezing order, is only significant to the extent that the funds were not applied to the purchase or maintenance of family property. Ms. Devathasan asks me to infer the existence of undisclosed assets. I will deal with the dissipation of funds into undisclosed assets under that heading later in these reasons.

[174]     Ms. Devathasan submits:

[175]     There are really two arguments here. The first is that Ms. Devathasan should not be required to share funds that have been paid to her as interim support or an interim advance, because the court has ordered that the funds are for her. This argument is without merit. The orders to date have all been interim orders to enable Ms. Devathasan to support herself and K, and to fund this litigation. They did not establish a personal entitlement that prevents them from being considered as family property. If Ms. Devathasan has been able to save funds from the amounts she has received, it is no more unfair that they be divided than it is to divide financial assets in the hands of Dr. Devathasan that he has accumulated or grown since the date of separation. There is no substantial unfairness arising simply from the fact of an accumulation or growth of assets in the hands of a spouse in receipt of payments by court order.

[176]     Ms. Devathasan’s second argument is that the reason she has accumulated assets is that she has been saving part of the money she has received to pay her lawyers, and it is unconscionable that she should have to share these funds with Dr. Devathasan. I accept that this has been very expensive litigation for both parties, but probably more expensive for Ms. Devathasan. I would think that there could be substantial unfairness if one spouse has been saving money to pay her lawyers at some point in the future, while the other’s lawyers are paid up to date. The difficulty is that I have no evidence at all on this point. Ms. Devathasan did not testify that she has been saving up monies received from Dr. Devathasan to pay her lawyers, or that she owes her lawyers $500,000. She was awarded a $400,000 interim advance for legal fees on June 19, 2017, another $400,000 interim advance on February 19, 2018, and $50,000 in interim costs on February 19, 2018. All of these amounts could have been paid to her lawyers and I have no evidence as to what was done with them. Unsurprisingly, I have no evidence as to Dr. Devathasan’s arrangements with his lawyers. It is possible that he owes them as much money as Ms. Devathasan owes her lawyers. I do not have an adequate evidentiary basis to consider and give effect to Ms. Devathasan’s second argument.

[177]     For these reasons, I am unpersuaded that I should value the financial assets at the separation date rather than the trial date.

[178]     One adjustment to Ms. Daum’s figures is necessary. At line 39, Ms. Daum has taken the balance of Dr. Devathasan’s HSBC account ending in 1-203 from the statement at September 17, 2018: C$1,405,956. No later statements are in evidence. The account is frozen and monthly support payments totalling C$83,721 are paid from it. The balance should be adjusted downward to C$987,351 to reflect five further months of support payments made by the time of trial.

[179]     Ms. Daum has credited Dr. Devathasan with family debt in the amount of S$1.050 million. Dr. Devathasan submits that the credit is understated by S$60,000, because it fails to take into account a loan from a friend of Dr. Devathasan’s named Tonny Permana. Ms. Devathasan submits that none of the loans claimed by Dr. Devathasan is real, and there should be no credit at all.

[180]     One element of the S$1.050 million is the purported S$450,000 loan from Mr. Faridz. I have already found that there was no such loan.

[181]     Dr. Devathasan says that he borrowed a further S$750,000 from Mr. Faridz advanced on February 23, 2018. He received three wire transfers, in the amounts of C$249,933.76, C$249,950.00 and C$252,950.00. There is in evidence a photocopy of parts of a wire transfer confirmation indicating that the transferors were companies in Indonesia. Receipt of the wire transfers is confirmed by Dr. Devathasan’s bank statement.

[182]     As with the purported S$450,000 loan, the only written documentation is a purported loan agreement. This one is dated February 21, 2018. The document that has been produced is a photocopy and the signatures are not as crisply copied as the rest of the document.

[183]     The purported loan agreement states that the purpose of the loan is to complete the purchase of the Mulgrave property. In fact, Dr. Devathasan testified that was not the purpose, but he needed the money to satisfy conditions imposed for the adjournment of the trial. Iyer J.’s order required him to deposit C$750,000 for the payment of his ongoing support obligations.

[184]     The purported loan agreement contemplates repayment at the conclusion of the matrimonial litigation. It states:

[185]     A notable difficulty with this agreement is that it is not for the correct amount. The total of the S$450,000 cash advance in June 2016 and the further S$750,000 advance on February 23, 2017 would be S$1.2 million, not S$1.15 million. The loan is mis-described. It is not a revolving loan facility at all. Acceptance of this agreement would require me to accept the validity of the S$450,000 predecessor loan I have already rejected.

[186]     Notwithstanding the wire transfers, I am not persuaded that the purported further S$750,000 loan is any more real than the S$450,000 cash advance that supposedly preceded it. I reject Dr. Devathasan’s evidence that he is indebted to Mr. Faridz. If Mr. Faridz is real and Dr. Devathasan is indebted to him at all, he has not provided cogent and believable evidence of the circumstances, reasons and amount of the indebtedness, and I am not prepared to speculate in his favour.

[187]     Even if the S$750,000 loan were real, it would not constitute family debt. It was required to satisfy Dr. Devasathan’s support obligations and not for the purpose of maintaining the family property, as required in the case of debt incurred after the separation by FLA s. 86(b).

[188]     That leaves the supposed loan from Mr. Permana. Dr. Devathasan says that Mr. Permana is a wealthy patient, the owner of a brassiere factory in Singapore, who agreed to lend him S$60,000 in January 2017. The loan was arranged by a telephone call and Mr. Permana brought cash – 60 S$1,000 notes in his pouch – to the Clinic. The only documentation is an email from Mr. Permana to Dr. Devathasan on January 31, 2017, repeated and expanded on February 1, 2017. The expanded email states:

[189]     I doubt that the Permana loan is real, but need not decide the point. Dr. Devasathan testified that he borrowed this money to pay legal fees in Singapore. If the loan is real, it could not constitute family debt because it was not incurred for the purpose of maintaining family property.

[190]     I conclude that Ms. Daum’s adjustments for personal loans should be removed from the accounting.

[191]     Ms. Daum has credited the parties with balances in their CPF accounts at November and December 2017. More recent balances are not in evidence. Ms. Devathasan argues for the use of separation date balances. I reject that submission for the reasons already given.

[192]     In principle, both parties are entitled to an exclusion to the extent of the balance in their CPF accounts at the start of the marriage-like relationship. Ms. Daum credited Dr. Devathasan with an exclusion of S$126,019 on this basis, partially offsetting his positive account balance at December 31, 2017 of S$192,057.

[193]     It emerged at trial that Dr. Devathasan had S$375,338.55 transferred into his CPF account in May 1996 based on his pensionable service as an employee of the National University of Singapore. That service preceded the start of the marriage-like relationship. I find that Dr. Devathasan was entitled to a balance exceeding S$375,338.55 at the start of the relationship. Where the potential exclusion exceeds the value of his CPF account, the CPF fund cannot be treated as a negative asset. The result is that the exclusion should be valued at the value assigned to the asset (S$192,057) reflecting the fact that, at the end of the day, this asset has not increased in value since the start of the relationship.

[194]     Ms. Devathasan submits that she is entitled to an exclusion of S$6,000 to S$8,000 based on her recollection of the balance in her CPF account at the start of the relationship. I do not have a note of her giving that evidence. In any event, the amount is not material in the context of this case.

[195]     Ms. Daum’s schedule lists an Audi 8L in Dr. Devathasan’s possession, valued at S$145,349. Dr. Devathasan testified that he sold this vehicle in October 2018 for S$92,000 to raise money to pay his legal fees. He did so in breach of the asset freezing order. In the circumstances, Dr. Devathasan must be credited with the sale proceeds as standing in place of the asset he ought to have retained, and the amount listed in Ms. Daum’s schedule should be adjusted to S$92,000 or C$92,100.

[196]     Based on a recent appraisal, the parties agree that the total credited to Ms. Devathasan should be C$76,580. Ms. Daum’s schedule does not include an amount for Dr. Devathasan’s household furnishings. I accept Dr. Devathasan’s valuation of $28,221.

[197]     Ms. Daum’s schedule credits Ms. Devathasan with $100,000 worth of Persian rugs. Nothing is credited to Dr. Devathasan under this heading, probably because he did not list Persian rugs in his F8. It is not in dispute that Dr. Devathasan purchased expensive Persian rugs for both the Gambir Walk and Groveland properties. His documents include invoices for S$70,000 spent in Singapore for seven Persian rugs in 2013 and S$15,450 (both including 3% GST) in 2002. There is a vendor’s certificate of authenticity unexpectedly valuing one of these rugs at S$17,500 for insurance purposes. There is also a vendor’s certificate of authenticity for a rug sold to him in 2007, valuing it at S$10,000 for insurance purposes. Absent any other evidence, I think it is fair to value the Persian rugs in Dr. Devathasan’s possession at C$100,000, the same as Ms. Devathasan’s.

[198]     Ms. Daum’s schedule credits Dr. Devathasan with watches valued at S$100,000.

[199]     Dr. Devathasan told Dillon that he purchased the AP watch for S$80,000. Ms. Devathasan testified that he told her he purchased it for S$120,000 or S$150,000. Dr. Devathasan acknowledged that he told people he had bought it for S$100,000. I find that it is worth S$100,000.

[200]     Dr. Devathasan testified that he owned a Breitling watch that he bought for S$30,000 and sold for S$25,000, again in breach of the asset freezing order, to pay his legal fees. He testified that he owns another Breitling watch given to him by a patient that is worth S$10,000 to S$12,000; at another point in his evidence he valued it at S$15,000. He testified that he owns a Rolex, given to him by a patient, that he values at S$10,000.

[201]     I am not persuaded by Dr. Devathasan’s evidence that he is entitled to an exclusion in respect of any of these watches. I think that they were extravagant personal purchases that he made for himself. Dr. Devathasan should be credited with the S$25,000 proceeds of the Breitling watch he sold. I value the remaining three watches collectively at S$35,000. The total is S$160,000, or C$160,176.

[202]     Ms. Devathasan asks me to conclude on all of the evidence that Dr. Devathasan has undisclosed cash assets totalling approximately S$3 million and other undisclosed assets, including a residential property in Singapore of unknown but substantial value. Ms. Devathasan asks me to come to this conclusion partly on the basis of an adverse inference from Dr. Devathasan’s conduct, following the reasoning in Cunha v. da Cunha (1994), 1994 CanLII 3195 (BC SC), 99 B.C.L.R. (2d) 93 (S.C.) and Lombardo v. Lombardo, 2007 BCSC 284 at paras. 1-4 and 350-354. Alternatively, she maintains that, in light of Dr. Devathasan’s conduct, pursuant to s. 97(2) of the FLA, I should order him to compensate Ms. Devathasan for his conduct in dissipating assets. I will deal with the alternative argument separately.

[203]     Adverse inferences are commonly drawn against parties who have exclusive access to relevant evidence and fail to disclose it. The inference is that the evidence would not favour that party’s case. Cunha and Lombardo illustrate the use of this kind of reasoning against parties who were apparently in possession of family property but would not disclose the details. In Cunha, Fraser J. was prepared to infer that the value of the undisclosed property equalled the value of that which had been disclosed. In Lombardo, McEwan J. inferred that the unreported revenue diverted by the respondent from his restaurant business equalled the known, reported revenue.

[204]     This kind of reasoning must be undertaken with caution, in light of the warning stated by Donald J.A. in Wu v. Sun, 2011 BCCA 239, at para. 41:

[205]     In Kiamanesh v. Kiamanesh, 2004 BCSC 1052 at para. 38, McEwan J. stated that:

[206]     I agree with the statement I have quoted from Kiamanesh In my view, the kind of inference drawn in Cunha and Lombardo should only be invoked as a last resort, if it is clear that there are concealed assets in Dr. Devathasan’s possession or control that I cannot ascertain or value, and only then if I am able to come to conclusions that are more than a guess.

[207]     Turning to the evidence, I begin with the allegation of an undisclosed residential property in Singapore. Ms. Devathasan testified that, one evening while she and K were visiting Dr. Devathasan in Singapore in 2015, he took them to dinner at the Hollandse Club. Afterwards, he drove them a short distance to look at a residential property where construction was taking place. There was a fence around the property and people were working there. Dr. Devathasan said that he was building this property like Groveland. Nobody got out of the car. Ms. Devathasan could not identify the address. She acknowledged that this was not an episode that came to mind at the outset of the litigation, when she applied for an asset freezing order and, though she pursued allegations of undisclosed property in various places in pretrial applications for document production, this was not one of them.

[208]     K also testified about driving to look at a house at night after dinner with her parents at the Hollandse Club. She was unsure of the year; she thought it might have been 2014. Dr. Devathasan said that he wanted to show them this house, and drove them to look at a house under construction. He said that he wanted to make it like Groveland. They stopped and looked from the car, and nobody got out. K was not asked why this episode stuck in her mind.

[209]     Dr. Devathasan testified that he and Ms. Devathasan used to drive about and look at properties together. It was a hobby. He said that this is what he was doing when he took Ms. Devathasan and K to look at a residential bungalow in the neighbourhood of the Hollandse Club one evening. It was already built, not under construction, in an exclusive neighbourhood, and he said that this was the kind of place he would like. It was not a property he owned or could afford.

[210]     By all accounts, this was a brief and not particularly memorable episode. It is plausible that Dr. Devathasan was pointing out a house he would like to own, rather than a property he already owned. If he was showing off a house he had acquired, I think he would have made more of a production of it, and I doubt that this would be the only time the house was ever mentioned. It is easy to see how Ms. Devathasan and K may have reconstructed the conversation in their minds, years afterwards and in the light of Dr. Devathasan’s subsequent concealment of assets and the approaching trial. I am not persuaded that Dr. Devathasan is in possession of an undisclosed residential property in Singapore, as alleged by Ms. Devathasan.

[211]     Until February 2018, Dr. Devathasan resisted his discovery obligations in this action. Subsequently, he produced to Ms. Daum and Ms. Devathasan a great volume of financial records: bank statements, income tax returns, corporate records of DNM and David Nathan, records pertaining to his ownership of properties discussed in these reasons, and so on. He tendered in evidence 11 4” binders mostly consisting of this kind of material.

[212]     Nevertheless, there are reasons to believe Dr. Devathasan has still failed to fully disclose financial assets in his possession. These include:

[213]     On a balance of probabilities, I find that Dr. Devathasan is in possession of undisclosed financial assets. The problem is to value them.

[214]     Ms. Devathasan argues that I can conclude that Dr. Devathasan’s undisclosed assets total at least $3 million based on inferences to be drawn from Ms. Daum’s report as to the amounts of cash extracted from the Clinic over the years since 2014. There are problems with the suggested inferences but the fundamental problem is logical. Ms. Daum’s report supports an inference that cash has been extracted from the Clinic based on the recorded deposits into Dr. Devathasan’s personal accounts. The deposited funds are disclosed assets. It would be happenstance if the excess of funds deposited into disclosed accounts over four years equals the funds now held in undisclosed accounts. It is no more than a guess.

[215]     In the years prior to the separation, Dr. Devathasan was not sharing with Ms. Devathasan the details of his financial dealings, but neither was he going out of his way to hide them from her. He was not expecting that he would have to account to her for them in divorce proceedings.

[216]     Dr. Devathasan has a history of investing in real estate and cash or cash equivalents. He has no history of investing in equities or debt instruments to earn interest or dividend income. He pursued a business venture called Y Linen that failed in 2015. His contacts with Indonesian businessmen suggest that he may have had access to other business opportunities. If he had achieved substantial success in a business venture prior to 2016, I think that he would have boasted of it to Ms. Devathasan.

[217]     Since 2016, Dr. Devathasan has refused to pay interim support and, with the exception of the $750,000 he was required to provide as a condition of the trial adjournment in February 2018, his support obligations have been funded from his share of disclosed family assets. I infer that this was a deliberate choice on Dr. Devathasan’s part, at least in part because he did not want to reveal his undisclosed assets. The exception was the $750,000 payment. In that case he was not ready to proceed to trial and had no alternative, and so he came up with the story of the loan from Mr. Faridz.

[218]     The interim support paid by Dr. Devathasan to the commencement of trial has been $1,674,420, of which $924,420 has been funded from family property as opposed to Dr. Devathasan’s income or undisclosed family property. Absent a credible explanation from Dr. Devathasan, I am prepared to infer that he funded these payments in this way to preserve undisclosed family property of equivalent value. I am also prepared to infer that he realised $153,000 from the liquidation of the Thai bank account that he should account for as undisclosed family property. Looking at the matter broadly, and doing the best I can with the evidence, I find that Dr. Devathasan is in possession of undisclosed financial assets that are family property worth at least C$1.1 million.

[219]     Relying on s. 97(2)(c) of the FLA, Ms. Devathasan contends that Dr. Devathasan should pay compensation for his actions in dissipating a $480,000 deposit towards the purchase of a residential property at 410 Mulgrave Place in West Vancouver.

[220]     Dr. Devathasan initially proposed to purchase the Mulgrave property as a tenant in common with D. They signed a contract dated May 11, 2016 for the purchase of the property. The purchase price was $2.7 million, subsequently reduced to $2.65 million. Dr. Devathasan funded the payment of the $480,000 deposit on May 18, 2016.

[221]     Dr. Devathasan subsequently realized that a foreign buyer’s tax would be payable if he was on title for a 50% interest. He and D agreed that he would be shown on title as a 10% owner, and D would hold 40% of his 90% interest on title in trust from Dr. Devathasan. The intention was that Dr. Devathasan would pay the entire purchase price.

[222]     Upon being served with the notice of family claim on August 26, 2016, Dr. Devathasan told D that he did not want to appear on title, because he was fearful that Ms. Devathasan would use that to make a claim against the property. Shortly after this, he concluded that D was taking Ms. Devathasan’s side in their dispute. He sent the realtor a letter on September 8, 2016 in which he stated:

[223]     Through her counsel, Ms. Devasathan proposed that the parties agree to vary the asset freezing order in order to permit completion of the purchase on a without prejudice basis, with title to the property being taken in D’s name pending the court’s determination of the parties’ interests in the property. Dr. Devathasan ignored the proposal. Lawyers who had been retained by D and Dr. Devathasan for the purchase wrote to both of them, advising:

[224]     As Dr. Devathasan had anticipated in his letter of September 8, 2016, D could not afford to complete the transaction on his own. Dr. Devathasan refused to have anything more to do with the matter. The sale did not complete. The sellers found another buyer. In subsequent negotiations with the sellers, D negotiated the return of $125,000 of the $480,000 deposit, $25,000 of which he spent on lawyers. He has loaned the $100,000 balance to Ms. Devasathan.

[225]     On signing the contract of purchase and sale, Dr. Devathasan possessed a chose in action, that is, a right to purchase the Mulgrave property. The chose in action was personal property of Dr. Devathasan. The $480,000 deposit contributed to the value of the chose in action. In effect, half of it was gifted to D.

[226]     At the separation date, the purchase was set to proceed to a closing. The chose in action was presumptively worth the $480,000 deposit, absent evidence that the purchase price was greater or less than the fair market value of the Mulgrave property. There is no evidence of that. By the operation of s. 84(1)(a) of the FLA, Dr. Devathasan’s 50% interest in the chose in action became family property presumptively worth $240,000.

[227]     By his subsequent actions, Dr. Devathasan caused the family property in the chose in action to be entirely lost. D was able to recover $150,000 on account of his interest in the chose in action, but he is not obliged to account to Dr. Devathasan for that, and no claim has been advanced against D by Dr. Devathasan. Dr. Devathasan had the resources to complete the purchase. In my view, his refusal to do so was unreasonable and imprudent. It was motivated by pique.

[228]     I conclude that Dr. Devathasan’s compensatory payment to Ms. Devathasan should be increased by $120,000 as compensation for wasting $240,000 of family property.

[229]     I must consider whether there will be significant unfairness to Dr. Devathasan if he is not credited with his post separation contributions of C$461,571 towards the purchase of the Molek property. These represent approximately 90% of the value of the property. S. 95(2)(f) directs me to consider “whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt, beyond market trends”. By making these contributions, Dr. Devathasan increased the value of the Molek property by about ten times. I have found that the contributions came from his post-separation earnings.

[230]     In Remmem v. Remmem, 2014 BCSC 1552 at para. 44, Butler J. (as he then was) observed that the test of significant unfairness is more difficult to satisfy than the test of “unfairness” under the former Family Relations Act, R.S.B.C. 1996, c. 128. He stated that:

[231]     In my opinion, it will be significantly unfair to Dr. Devathasan if his contribution of 90% of the value of the Molek property from post-separation earnings is not taken into account. The fair way to address this is to reduce the compensatory payment Dr. Devathasan will have to pay Ms. Devathasan by $231,000 (rounded), which is half the value of the contribution in question.

[232]     I must determine whether it is significantly unfair to Dr. Devathasan if he is left on his own to bear the $96,750 tax liability personal tax liability consequent on the sale of the Toronto condominium. Section 95(2)(h) of the FLA directs me to consider “a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order”. [Emphasis added.]

[233]     In my view, it is equally open to me to consider a tax liability that has been incurred by a spouse as a result of an order.

[234]     In Sanai, at para. 32, Saunders J.A. stated that:

[235]     The forceful statement that “an allowance should be made for tax” has application in this case. The Toronto condominium was an investment property acquired in 2010 to generate income that would be shared by the parties. The parties took title as co-owners. The only reason that the tax liability falls unequally on the parties is because Ms. Devathasan is a Canadian resident, and Dr. Devathasan is not. During the marriage, the parties would never have anticipated that a tax liability on disposition of the property would not be equally shared, and it would be significantly unfair for that to occur now.

[236]     The fair way to address this unfairness is to reduce the compensatory payment Dr. Devathasan will have to pay Ms. Devathasan by $48,000 (rounded), which is half the tax liability.

[237]     Ms. Devathasan contends that it is significantly unfair that Dr. Devathasan should be able to claim an exclusion in respect of the Gambir Walk and Mount Elizabeth properties in light of his failure to pay child support in respect of D prior to 1994. It will be recalled that D was born in September 1987, the relationship ended shortly afterwards, Dr. Devathasan and Ms. Devathasan reconnected in 1993 and Dr. Devathasan began to support Ms. Devathasan and D in the Gambir Walk property in late 1993 or early 1994.

[238]     Counsel for Ms. Devathasan concedes that his argument on this point is novel. I think that it lacks merit. The argument requires me to assume that the law of child support in Singapore in the period 1987 to 1993 was essentially the same as the current Canadian law. On that basis, child support is the right of the child. He is now an adult. A child support claim could no longer be advanced, even retrospectively. The argument now advanced by Ms. Devathasan would be to her sole benefit by adjusting in her favour the allocation of property rights and payments between her and Dr. Devathasan. I do not think such an adjustment can be justified by alleging a failure to pay child support for D’s benefit more than 25 years ago. The parties’ present financial circumstances have very little to do with whether support was or should have been paid before the spousal relationship began.

[239]     To summarize, the amount Dr. Devathasan must pay to Ms. Devathasan to equalize their financial positions should be reduced by $279,000 (the sum of $231,000 and $48,000) to avoid significant unfairness.

[240]     The arithmetic consequences of my analysis are set out in the appendix. It sets out the allocation of property and debt and reveals that Dr. Devathasan must make a compensatory payment to Ms. Devathasan of $2.351 million. This is before consideration of court ordered advances, support obligations, and costs.

[241]     Ms. Devathasan seeks child support for K pursuant to Part 7 of the FLA and s. 15.1 of the Divorce Act. Both statutes require that I have regard to the FCS Guidelines. I will address this matter pursuant to the Divorce Act.

[242]     Until August 2018, K was a child of the marriage who was under the age of majority. Section 3(1) of the FCS Guidelines determines the calculation of child support in these circumstances. It states:

[243]     The tables referenced in s. 3(1)(a) determine the amount of support payable on a formula according to the parties’ respective incomes having regard to the parenting arrangements. Under s. 4 of the FCS Guidelines, there is a discretion to depart from the formula where the incomes exceed $150,000. In addition, consideration must be given to special or extraordinary expenses incurred in the child’s best interests pursuant to s. 7.

[244]     K attained her majority in August 2018, and it is common ground that she remains a child of the marriage. Section 3(2) of the FCS Guidelines governs in these circumstances. It states:

[245]     Subsection 3(2)(a) requires me to order child support calculated as provided under s. 3(1) or, if that approach is inappropriate, to instead adopt the approach described in subsection 3(2)(b). I will refer to the approach under subsection (a) as the ‘minor child approach’ and to the approach under subsection (b) as the ‘alternative approach’.

[246]     In contrast to the minor child approach, the alternative approach is not formulaic and requires the exercise of a broader discretion. The requirement that I consider the financial ability of each spouse to contribute to the support of the child means that the parties’ incomes remain important. The requirement that I consider the condition, means, needs and other circumstances of the child makes this approach somewhat more expense driven. The difference should not be overstated because, even under the minor child approach, s. 4 contemplates that, in exercising the discretion conferred on the court to address incomes in excess of $150,000, I may have regard to the condition, means, needs and other circumstances of the child.

[247]     While the parties agree that child support is payable by Dr. Devathasan, they differ as to whether the amount payable should be determined under the minor child or the alternative approach. Ms. Devathasan argues for the minor child approach. Dr. Devathasan says that, because K is attending university and living at least some of the time at the Georgia apartment, the alternative approach is more appropriate. The parties’ high incomes underlie this divergence.

[248]     Ms. Devathasen submits that, in addressing this issue, I should have regard to a four-step procedure outlined in Wesemann v. Wesemann, 1999 CanLII 5873 (BC SC), [1999] B.C.J. No. 1387 (S.C.) at para. 6. In brief, the four-step procedure directs the court to apply the minor child approach unless it is challenged, in which case the challenger must prove that it is inappropriate.

[249]     The four-step procedure outlined in Wesemann has been overtaken by subsequent jurisprudence. Speaking for the Court in Neufeld v. Neufeld, 2005 BCCA 7 at para. 42, Levine J.A. held that support for an adult child who is entitled to support because of his or her attendance at a post-secondary institution should generally be determined under the alternative approach. In De Beck v. De Beck, 2012 BCCA 465 at para. 56, D. Smith J.A. clarified that, in these circumstances, neither approach is presumptively correct. Harris J.A. considered these cases in McClement v. McClement, 2017 BCCA 416 and concluded:

[250]     In Tome v. Furtado, 2018 BCSC 2280, Madam Justice Dardi elaborated on the considerations to be taken into account in the exercise of my discretion:

[251]     To summarize, before determining the amount of child support, I must first address which of the two approaches to determining the amount is most appropriate. This is a discretionary determination. In exercising my discretion, I should consider the extent to which the assumptions underlying the minor child approach fit the situation at hand. How closely do K’s circumstances as an undergraduate student resemble those of a minor child living at home?

[252]     K is a second year student at a university in Metro Vancouver, studying psychology. She expects her undergraduate degree program to take five years. On weekdays when school is in session, she resides at the Hotel Georgia apartment in downtown Vancouver. On weekends and during holidays, she stays with her mother in the Groveland property in West Vancouver. K has the use of a car for herself, a 2018 Audi A5, which she uses to get back and forth.

[253]     For part of the summer of 2018, after her first year at university, K worked as an intern at a tech company. She earned $1,100 at $15 per hour. K’s outside activities include music and rowing. She participates in a band that has released an album. At present, her musical interests are taking a back seat to her studies.

[254]     As is common for young people at her stage in life, K is removing herself from her mother’s care in stages. She is living at home on weekends, but not during the week. What sets K apart is that her family is wealthier than most, and so she has the use of a luxury condominium in downtown Vancouver and is driving a new Audi rather than a used Toyota Corolla or taking the bus. In some respects, her situation still resembles that of a minor child living at home, but the direction in which she is progressing is clear. I think it likely that she will earn more income in 2019 than she earned in 2018, and she will probably spend less time at her mother’s house than she has in the past. Her mother plans to sell the Groveland house in which K grew up, and that is likely to accelerate the process.

[255]     Taking all this into account, I think that, going forward, it is most appropriate to adopt the alternative approach and assess child support under subsection 3(2)(b).

[256]     The child support that has been paid to date was only ordered on an interim basis. I must also determine whether it has been over or underpaid.

[257]     The minor child approach must be used in determining the amount of child support owing until August 2018, when K had completed her first year of university. I will use the alternative approach from that point forward.

[258]     Ms. Daum’s report contains a calculation of income for support purposes. Certain aspects of the calculation are contested.

[259]     Ms. Daum has calculated a tax gross-up on the basis that the taxes paid by Dr. Devathasan on his income earned in Singapore are lower than the rates he would pay in Canada. This is important because the formulas and tables in the FCS Guidelines assume the application of Canadian tax rates, and may be adjusted, in the court’s discretion, where the paying spouse is taxed at a lower rate. Dr. Devathasan maintains that an adjustment is unjustified because it is a legal precondition to the adjustment that Ms. Devathasan produce evidence of the “bundle of services” a typical taxpayer receives in Singapore in exchange for his tax dollars, and she has not done so.

[260]     It is clear that income is taxed at lower rates in Singapore than in Canada. The evidence is that the top marginal tax rate on personal income in Singapore is 22%. In British Columbia, it is more than twice that. In Singapore, in contrast to British Columbia, there is no tax payable on capital gains, or on dividend income. Dr. Devathasan has structured his recorded remuneration through DMN and David Nathan so that the greater part of it has been received as dividend income, and no tax was deducted.

[261]     On the other side of the coin, the evidence is that Singapore does not have a publicly funded health care plan. It appears that residents are able to make some provision for health care costs through their CPF accounts.

[262]     Like Canada, Singapore has a GST, though the rate disclosed on invoices in evidence is only 3% rather than 5%. There is no evidence of a tax equivalent to British Columbia’s Provincial Sales Tax.

[263]     There are other taxes in Singapore, as there are in Canada. Dr. Devathasan testified that, when everything is taken into account, he ends up paying 50 cents on the dollar in taxes: he mentioned a property tax, a road tax, and a foreign employer tax, all of which he said were very high. I do not accept his estimate of the total tax burden, because it is entirely lacking in detail and is influenced by what I take to be Dr. Devathasan’s general detestation of taxes. He does his best to avoid them at every turn.

[264]     Taking all this into account, I am satisfied that the taxes paid on income earned in Singapore are much lower than in Canada.

[265]     Sections 19(1) and 20 of the FCS Guidelines provide in part as follows:

[266]     In Gonabady-Namadon v. Mohammadzadeh, 2009 BCCA 448 at para. 36, Newbury J.A. stated:

[267]     Dr. Devathasan relies on the sentences I have emphasized and objects to the tax gross-up because Ms. Daum has not examined the bundle of services provided by the Canadian and Singaporean governments. He points in particular to the absence of government funded health care in Singapore. On cross-examination, Ms. Daum acknowledged that she is an accountant, not an economist, and that she does not have the expertise to carry out a full review of what taxpayers get in exchange for their taxes in Singapore, as opposed to Canada. Nor did she attempt to conduct such a review.

[268]     In Gonabady-Namadon, Newbury J.A. did not state that expert evidence concerning the bundle of services is necessarily required. In one of the cases she cites in the passage quoted above, Patrick v. Patrick, the trial judge concluded that a tax gross-up was appropriate without such evidence. In one of the others, Ward v. Ward, the trial judge found that he was unable to order a tax gross-up without expert evidence that the tax rate in the paying spouse’s jurisdiction was significantly lower than in Canada. He commented, at para. 40:

[269]     In the third case, Watson v. Watson, the trial judge held that the issue of a tax gross-up was res judicata by virtue of a previous order in the case. He added, in obiter, that he had expert evidence that did not address the question of the bundle of services, and he agreed with the view expressed in Ward that the bundle of services is material.

[270]     In my view, these cases do not establish a legal rule that expert evidence from an economist who has conducted a “bundle of services” review is an essential foundation in this case for the exercise of my discretion under ss. 19(1)(c) and 20 of the FCS Guidelines. The FCS Guidelines direct me to consider the difference in effective rates of income tax. While a broader inquiry may inform the exercise of the court’s discretion, it is not essential in every case: if it were, Patrick would be wrongly decided and Newbury J.A. would not have referred to it with apparent approval.

[271]     For what it is worth, I should add that a full review of the bundle of government services offered in two different countries strikes me as a large, expensive and probably controversial undertaking. With respect for what may seem to be contrary views expressed in Ward and Watson, I doubt that it would be good policy or consistent with the intention underlying the FCS Guidelines to require such an inquiry as a matter of course.

[272]     I do not think that the absence of expert evidence from an economist addressing the bundle of services is necessary on the evidence in this case to persuade me that the effective tax rate in Singapore is significantly lower than in Canada. The evidence is clear that it is. It was open to Dr. Devathasan to attempt to persuade me of the contrary by leading evidence of the bundle of services, but no such evidence was tendered.

[273]     I short, I accept Ms. Daum’s tax gross-up calculations and find them appropriate on the evidence in this case.

[274]     Ms. Daum has prepared a calculation imputing to Dr. Devathasan cash income in the amount of the excess of deposits over withdrawals in his personal accounts. Section 19 of the FCS Guidelines authorizes me to impute such income to Dr. Devathasan as I consider appropriate in the circumstances. In light of my finding that it was Dr. Devathasan’s practice to extract cash from the Clinic that was not recorded in the books, I accept Ms. Daum’s “cash income” scenario calculation (Table 2b) as providing a reasonable estimate of the amount of the unrecorded income that must be taken into account in determining the amount of support payable for the years 2016 and 2017.

[275]     I have found that Dr. Devathasan will likely continue working at the same pace as in 2018 until he turns 75. For the years 2018 and following until Dr. Devathasan’s retirement, I accept Ms. Daum’s calculation of Dr. Devathasan’s income from the Clinic, apart from cash income, at C$2,068,000, taking into account the tax gross-up.

[276]     It is necessary to take into account the likelihood of continuing cash extractions, by some means or another. It would be unfair to simply average the imputed cash income found by Ms. Daum for the years 2015 through 2017, as proposed by Ms. Devathasan, because it is likely that the cash extracted will decline in proportion to the overall decline in business at the Clinic. Based on Ms. Daum’s analysis, the average clinic revenues apart from imputed cash income over 2014 to 2016 were C$2.89 million, the average imputed cash income was C$1.408 million, and the average total income, including the cash, was the sum of these two amounts, or C$4.298 million. (All these numbers are inclusive of the tax gross-up.)  The imputed cash made up approximately one-third of the total.

[277]     Accordingly, on the reasonable assumption of a decline in cash extracted that is proportionate to the decline in known revenues, Dr. Devathasan’s income from the Clinic in 2018 and future years will be C$3.102 million.  

[278]     Ms. Daum has also calculated an amount of investment income Dr. Devathasan might be expected to earn on his share of the divided family assets. A different calculation is required in light of my findings.

[279]     Following issuance of these reasons, it is reasonable to assume that Dr. Devathasan will liquidate the Gambir Ridge, Goodwood, Rosyth, Molek and Astra properties. He will pay the Goodwood mortgage debt. He will have available to him the $1.1 million in concealed family property, but will have to make a $2.351 million equalization payment to Ms. Devathasan. Taking all this into account, applying the values set out in the appendix, he will have assets available for investment worth C$4.358 million. This does not include his share of the Toronto apartment proceeds of $1.37 million.

[280]     Dr. Devathasan will also have substantial further liabilities addressed later in these reasons. When they are taken into account, it is unlikely that he will have substantial investment income before he sells the Gambir Walk property or the closes the Clinic and sells the Mount Elizabeth property. In the circumstances, I do not impute any investment income to him.

[281]     Accordingly, I find that Dr. Devathasan’s income calculated pursuant to the FCS Guidelines is as follows:

[282]     Ms. Devathasan earns investment income that will increase significantly following the division of family property. In 2016 and 2017, her net income was negative taking into account payments on a mortgage taken out during the marriage to acquire an investment portfolio. Ms. Devathasan submits that her investment income should be calculated net of these costs, and I agree. Ms. Daum has prepared a detailed calculation taking various tax considerations into account. It is not contested. Accordingly, I accept Ms. Daum’s statement of Ms. Devathasan’s FCS Guideline income for 2016 and 2017 as set out in Table 3, scenario 2 of Ms. Daum’s report.

[283]     The position for 2018 and prospectively is more contentious. It requires, first, that I determine what funds will be available to Ms. Devathasan for investment, following judgment, and when they will likely become available to her. Second, I must address the likely rate of return.

[284]     Following issuance of these reasons, Ms. Devathasan will have to sell the St. Tropez, Dot Ranch, and Big White properties. She will receive her share of the proceeds of sale of the Toronto apartment. She intends to sell the Groveland property and purchase a smaller house, and she will net funds for investment in that transaction. I will assume, somewhat arbitrarily, that the amount realised for investment on the house swap will be $3 million. On that basis, the sale of these assets should realise $6.346 million in aggregate.

[285]     Ms. Devathasan will receive an equalization payment of $2.351 million. That increases the total to $8.797 million.

[286]     I assume that Ms. Devathasan will not sell the Hotel Georgia apartment while K remains a student in Vancouver. This results in foregone investment income, assuming a 3% real rate of return on invested funds for reasons discussed below, of $70,350 annually and makes it unnecessary for K to rent an apartment of her own.

[287]     Ms. Devathasan’s financial assets net of debt total $420,000. Of the $420,000, $60,000 of this is contained in an RESP that should be applied to K’s expenses. The balance is $360,000. Accordingly, on the sale of her properties, she will have approximately $9 million to invest.

[288]     Some of these funds will be available for investment in 2019 and some not until some point in 2020. It is fair to assume that by June 30, 2019, Ms. Devathasan will be in a position to discharge the debt that has caused her to suffer an income loss in 2017 and that the balance of the funds will be invested effective January 1, 2020. Whatever investment income is earned before then will make up for the shortfall from funds that are not available for investment until later.

[289]     Accordingly, I find that Ms. Devathasan’s FCS Guideline income for 2018 will be half the loss she incurred in 2017, as calculated by Ms. Daum. Her FCS Guideline income for 2019 and future years will include the investment income she could expect to earn by investing $9 million.

[290]     I should briefly address whether employment income should be imputed to Ms. Devathasan. This question was addressed in the evidence, though not strenuously pursued in argument. Ms. Devathasan is 55 years old. She has been a full-time homemaker since 2002. She has never held paid employment in Canada. Her training as an assistant nurse in Singapore is out of date and she would not be recognized as qualified here without significant retraining. She estimates that it would take her eight years to obtain a Bachelor’s Degree in Nursing Science, by which time she would be 63 years old. She has some health issues: back pain and sciatica consequent on a slipped disc, osteoarthritis in her left knee, glaucoma and a thyroid condition. Taking all this into account and the family’s history and resources, I find that it is not reasonable to expect her to earn the very limited employment income that is all she would likely obtain, were she to re-enter the workforce.

[291]     The real rate of return on the investment portfolio since its inception in October 2007 has been 4.78%. Ms. Daum has calculated the FCS Guideline income on variously sized investment portfolios at a 4.78% rate of return, and also at a 3% rate of return. Dr. Devathasan argued for the 4.78% rate, based on past performance, and Ms. Devathasan argued for the 3% rate. Ms. Daum’s evident preference was for 4.78%.

[292]     It is a truism that past performance is not a guarantee of future results. Another truism is that risk and rate of return are inversely related. One achieves a higher rate of return by assuming more risk. The funds in question are Ms. Devathasan’s nest egg. She has no way to replace them if they are lost. It is most reasonable to assume a relatively conservative approach.

[293]     Under s. 56(2) of the Law and Equity Act, R.S.B.C. 1996, c. 253, the Chief Justice of the Supreme Court of British Columbia is authorized to make regulations prescribing “a discount rate that is deemed to be the future difference between the investment rate of interest and the rate of general price inflation”. The prescribed rate is 2%. It is used to calculate the lump sum damages that will compensate for a loss of a stream of future earnings. This is the converse problem to the question at hand: instead of determining the present value of a lost stream of future earnings, I must determine the likely stream of future earnings to be generated from a capital sum. In my opinion, the prescribed 2% discount rate is a strong indication that 4.78% is too aggressive, and 3% is much closer to the mark.

[294]     No one argued for a lower rate than 3%, and I find that it is the better rate to use in this case.

[295]     Taking tax considerations into account, Ms. Daum found that, at a 3% real rate of return on investments, an investment portfolio of $8.675 million would generate for Ms. Devathasan FCS Guideline income of $260,243. Pro-rating, I find that an investment portfolio of $9 million will generate for Ms. Devathasan FCS Guideline income of $270,000.

[296]     Accordingly, I find that Ms. Devathasan’s income calculated according to the FCS Guidelines is as follows:

[297]     The interim spousal support order made on June 19, 2017 made provision for the payment of special and extraordinary expenses pursuant to s. 7 of the FCS Guidelines (“special expenses”). At 2017 BCSC 1010, the judge stated:

[298]      These special expenses seem to have been overlooked in the evidence at trial. If evidence of the expenses described in the passage I have quoted or other special expenses is buried in the voluminous binders the parties put in evidence, I have not found it. In the circumstances, I am not prepared to find that the special expenses were either overpaid or underpaid. In what follows, I put special expenses to one side.

[299]     Based on my findings as to Dr. Devathasan’s income as set out above, the child support payable pursuant to the FCS Guidelines formula was as follows:

[300]     Even taking the family’s means and circumstances into account, these amounts are high. The monthly amounts in 2016 and 2017 are substantially exceed the annual income before taxes of a British Columbian working full time at the minimum wage.

[301]     Section 4 of the FCS Guidelines directs me to consider whether the Guideline formula amounts are appropriate and, as stated in s. 4(b):

[302]     The principles governing the exercise of my discretion under s. 4 were established in Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250 and summarized by Finch J.A. in Metzner v. Metzner, 2000 BCCA 474 at para. 30. This remains the leading authority: Hathaway v. Hathaway, 2014 BCCA 310 at para. 28. The summary is as follows:

[303]     In Hathaway at para. 30, Harris J.A. stated:

[304]     In Hollenbach at para. 38, Donald J.A., giving judgment for the Court, elaborated on the “formidable onus” faced by a wealthy payor seeking to displace the presumption in favour of the table amount. He said that:

[305]     In this case, there is no evidence to establish that, while she was living at home and attending high school, K’s circumstances were such that the monthly amounts payable pursuant to the FCS Guidelines formula could not have been useful to K as the child of very wealthy parents. There is no basis for me to conclude that these amounts are inappropriate in light of K’s “condition, means, needs and other circumstances”.

[306]     When K began attending university in September 2017, her circumstances changed. From that point forward, she was commuting to school from the Georgia apartment and had to pay tuition, buy books and so on. In giving evidence, K presented a budget she prepared. It lists annual expenses of approximately $49,000 (excluding housing and including her car expenses) for 2018. It includes expenses of at least $7,000 in respect of musical activities she is not at present pursuing. In that light, $42,000 is probably more accurate. If one adds to that an imputed expense of $70,000 for the Hotel Georgia apartment, the annual total is $112,000.

[307]     The financial burden on Ms. Devathasan of supporting K at home was reduced, though not eliminated, when she started university. If one assumes that the remaining financial burden on Ms. Devathasan of supporting K at home (apart from the imputed expense of the Hotel Georgia apartment, which is included in the $112,000 amount) was 50% of K’s actual and imputed expenses, the total would be $168,000 annually or $14,000 per month. This is much lower than the amount of child support payable pursuant to the FCS Guideline formula. If one assumes extravagantly that the remaining financial burden on Ms. Devathasan was 100% of K’s actual and imputed expenses, the total would be $224,000 annually or $18,667 per month. This is still lower than the amount of child support payable pursuant to the FCS Guideline formula.

[308]     I am required to balance predictability, consistency and efficiency (favouring the application of the FCS Guideline formula) against fairness, flexibility and recognition of the K’s actual condition, means, needs and other circumstances, taking into account her position as the child of very wealthy parents. Bearing in mind that the objective is child maintenance rather than household equalization or spousal support, in my judgment, the formidable onus is satisfied and the application of the FCS Guideline formula is inappropriate in this case. K’s maintenance as a university student with her own apartment away from home does not require monthly payments exceeding $24,000. I consider that a monthly payment of $16,000 is more appropriate for the twelve month period from September 2017 through August 2018.

[309]     Pursuant to the court’s order of June 19, 2017, Dr. Devathasan paid interim child support of $21,360 per month from September 1, 2016 through June 2017, and has paid $20,143 per month ever since.

[310]     Accordingly, the child support payable until K came of age in August 2018, the amounts of interim support actually paid, and the resulting over or underpayments are set out in the following table:

[311]     In short, Dr. Devathasan has underpaid child support to August 2018 in the amount of $66,228.

[312]     I have already concluded that child support for K since she attained her majority should be determined pursuant to s. 3(2)(b) of the FCS Guidelines, “having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child”. I have found that the appropriate amount of child support for K while she attended university for the year before she attained her majority to be $16,000 per month. I have found Dr. Devathasan’s income to be $3.102 million in 2018 and prospectively, and Ms. Devathasan’s income to be a loss of $149,000 in 2018 and $270,000 in 2019 and prospectively.

[313]     The considerations under s. 3(2)(b) of the FCS Guidelines are framed in the same language as is found in s. 4(b)(ii) (a reference to the condition, means, needs and other circumstances of the child or children) with the addition of a reference to the financial ability of each spouse to contribute to the child’s support. I have ordered monthly child support of $16,000 under s. 4(b)(ii), taking Dr. Devathasan’s ability to pay under account. In my opinion, the fact that Ms. Devathasan is expected to have investment income of $270,000 beginning in 2019 – less than 10% of Dr. Devathasan’s income – should not change the analysis. I order that child support continue to be payable at $16,000 per month in respect of the period following K’s majority.

[314]     Dr. Devathasan has been paying interim child support at $20,143 per month from September 2018 through April 2019 (8 months) when this judgment is rendered. The total is $161,144. The amount payable in this period at $16,000 per month was $128,000. Dr. Devathasan has overpaid by $33,144, which partially offsets his $66,228 underpayment in the period prior to September 2018. The amount owing by Dr. Devathasan in respect of his past child support obligations is reduced to $33,084.

[315]     I turn to ongoing and future child support.

[316]     Section 11 of the FCS Guidelines provides:

[317]     In the exercise of the discretion afforded under s. 11, lump sum awards are restricted to cases involving special circumstances, which may include animosity between the parties or a history of non-compliance with court orders; Komori v. Malins, (1996), 1996 CanLII 470 (BC CA), 24 R.F.L. (4^th) 1 (B.C.C.A.) at paras. 70-71; K.V. v. T.E., 2004 BCSC 537 at paras. 38-43; Mansoor v. Mansoor, 2012 BCSC 602 at paras. 95-96.

[318]     Ms. Devathasan seeks a lump sum award. Dr. Devathasan argues that periodic payments are more appropriate.

[319]     The question must be considered in light of Dr. Devathasan’s past conduct. For a long time he was utterly unwilling to acknowledge or fulfill his parental and spousal responsibilities or acknowledge this Court’s role in adjudicating those responsibilities. In an affidavit sworn on May 22, 2017, he stated: “I will not pay a dollar for alimony now or till death or whatever any one decrees no matter what.” He also said that “I have sworn I will pay with my ashes only”. He said of K, “I do not think she needs child support at all at this age of 17 years.” In his testimony at trial, he explained that he swore this affidavit before he had experienced first hand the court process in British Columbia, that he has been favourably impressed by the process, and that he is now prepared to abide by this Court’s orders. There is at least a risk that he will change his mind again. Ms. Devathasan should not be required to pursue further proceedings here and likely collection proceedings in Singapore on a monthly basis as payments come due. For these reasons, I find that special circumstances justifying a lump sum award are present.

[320]     I should add that one of the sad features of the dispute that gave rise to this case is the utter collapse of Dr. Devathasan’s relationship with K. They were once very close. They began to fight during K’s teenage years and, just prior to the separation, he sent a letter to her mother and her high school disowning her. She no longer wishes to have anything to do with him. It is clear to me that, in hindsight, Dr. Devathasan regrets his conduct towards K and wishes to reestablish a relationship with her. Whether this will be possible is not foreseeable, but the change in Dr. Devathasan’s feelings does give reason to hope that he may in the future honour his obligations to her. It would be naïve to put too much weight on that.

[321]     The difficulty with a lump sum award is that it requires one to forecast K’s future as a child of the marriage. At present, she is a child of the marriage as defined in s. 2(1) of the Divorce Act because she is, by reason of her educational program, unable to withdraw from her mother’s charge and support and because the program is reasonable for her to pursue in all the circumstances. She will cease to be a child of the marriage and child support will cease to be payable when these conditions are no longer satisfied. K’s educational future beyond the completion of her undergraduate degree is difficult to predict.

[322]     K aspires to carry on with her studies in psychology following her undergraduate degree, ultimately with a view to obtaining a doctorate in clinical psychology. She has also thought about pursuing studies in law, medicine, or sound engineering. She acknowledges that, at present, her marks are not good enough to get her into law school or medical school at UBC. She believes that she can do better when she is not burdened with the distraction and upset of this litigation. I think that is a reasonable prospect, but it is not a certainty.

[323]     It is possible that K will successfully pursue her studies in psychology all the way to becoming a clinical psychologist. It is at least as likely that she will end up doing something else. It is reasonable to expect that she will pursue further post-secondary studies following her undergraduate degree. Two of her brothers have done that and her family can afford it. If she does, however, it is utterly unclear whether her further program will last two more years or six more years, whether it will be in Canada or elsewhere, and how much it might cost.

[324]     I conclude that a lump sum award is appropriate in respect of the period through June of 2022, when K is expected to obtain her undergraduate degree. After that, further child support may be payable if K remains a child of the marriage, and the amount will have to be determined according to her condition, means, needs and other circumstances.

[325]     A lump sum award should reflect the present value of child support at $16,000 per month following the release of this judgment from May 2019 through June 2022 (38 months). For consistency with the other calculations in these reasons, the discount rate should be 3%. The present value is $579,000 (rounded).

[326]     For these reasons, I order that Dr. Devathasan pay to Ms. Devathasan child support of $33,084 in respect of past child support and lump sum child support of $579,000 in respect of the period through June 2022. Whether further child support will be payable in respect of K after June 2022 will have to be addressed at that time.

[327]     Ms. Devathasan seeks spousal support pursuant to s. 15.2 of the Divorce Act and Part 7 of the FLA. I will address this matter pursuant to the Divorce Act.

[328]     Section 15.2 confers on the court a broad discretion and directs how it is to be exercised. Subsection (1) authorizes the court to order a spouse to pay “such lump sum or periodic sums … as the court thinks reasonable for the support of the other spouse”. By subsection (3), the order may be “for a definite or indefinite period or until a specified event occurs” and may be made on terms. Subsection (4) directs the court to take into consideration “the condition, means, needs and other circumstances of each spouse” including the length of time the spouses cohabited and the functions performed by each spouse during cohabitation. By subsection (5), the court shall not take spousal misconduct into account. Subsection (6) lists the objectives of an order for spousal support. They are that the order should:

[329]     A support order that fulfills the first two objectives is characterized as “compensatory”, and an order that fulfills the third and fourth objectives is characterized as “non-compensatory”. An award may fulfill both compensatory and non-compensatory objectives. In reasons written for the Court in Chutter v. Chutter, 2008 BCCA 507, Madam Justice Rowles explained:

[330]     In T.N. v. J.C.N., 2015 BCSC 439, Madam Justice Dardi noted that the maintenance of the “marital standard of living” is an important consideration where the marriage was a lengthy one and the parties’ finances were integrated. She stated:

[331]     The matters that must be addressed in determining a claim for spousal support are: (1) entitlement; (2) amount and duration (on the assumption of an award structured as a series of monthly payments); and (3) form of the award (monthly payments, lump sum, or something more exotic).

[332]     The first question is that of entitlement. Has the party claiming support established that compensatory or non-compensatory principles justify an award?

[333]     If entitlement is established, the second matter is that of amount and duration, on the assumption of an award structured as a series of monthly payments. In considering these questions, the courts have regard to the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) (the “SSAG”). Unlike the FCS Guidelines, the SSAG do not have legislative force, but they should be considered as a useful tool, and the failure to consider them may attract appellate intervention; Redpath v. Redpath, 2006 BCCA 338 at para. 42; H.C.F. v. D.T.F., 2017 BCSC 1226 at para. 220.

[334]     The premise of the SSAG is that entitlement has already been established, but the considerations that bear on entitlement also bear on discretionary exercises under the SSAG. As SSAG s. 3.2.2 puts it, “the basis of entitlement is important, not only as a threshold issue, but also to determine location within the formula ranges or to justify departure from the ranges as an exception”. At s. 4.2, the SSAG state that “an analysis of the basis of entitlement is a necessary underpinning to the determination of the amount and duration of support”.

[335]     At the heart of the SSAG are formulas based on the income of the parties calculated consistently with the FCS Guidelines. The formulas generate ranges of monthly support amounts, and ranges of duration. There are different formulas where child support is payable than where it is not, and a special variation of the formula where child support is payable under s. 3(2)(b) of the FCS Guidelines (under. SSAG s. 8.10).

[336]     Section 11.1 of the SSAG provides that the formulas do not automatically apply where the payor’s gross income exceeds $350,000. Section 11.3 of the SSAG outlines two approaches in this situation: one that is suggested for use where the payor’s income is close to the ceiling and the second for use where the payor’s income is well above the ceiling, as in this case. It states:

[337]     Even so, the “pure discretion” afforded the Court under the second approach accommodates a decision to apply the relevant formula following a detailed assessment of the economic consequences of the marriage, as well as a decision not to apply the formula; Hathaway, at paras. 45-57.

[338]     In the Spousal Support Advisory Guidelines: the Revised User’s Guide (Ottawa: Department of Justice, 2016), Professors Carol Rogerson and Rollie Thompson state at p. 57:

[339]     The third matter is the question of the form of the award. In this case, Ms. Devathasan seeks a lump sum rather than a series of monthly payments. In Parton v. Parton, 2018 BCCA 273 at paras. 47-48, the Court adopted the analytical framework for addressing this question outlined in Davis v. Crawford, 2011 ONCA 294, where the Ontario Court of Appeal stated:

[340]     Dr. Devathasan concedes that Ms. Devathasan is entitled to spousal support but submits that her entitlement is not strong on either a compensatory or a non-compensatory basis. With respect to compensatory objectives, he contends that Ms. Devathasan had already abandoned her career in nursing before cohabitation began. He maintains that her removal from the workforce after that did not benefit his career, and that he encouraged her to re-enter the workforce after the move to Canada, but she resisted.

[341]     For her part, Ms. Devathasan says that she gave up her nursing career to care for D, gave up working entirely to care for K, and moved to Canada at Dr. Devathasan’s behest so that the children would get a better education. She has been out of the workforce for 17 years. She denies that Dr. Devathasan ever encouraged her to re-enter the workforce after the move to Canada.

[342]     In my opinion, Ms. Devathasan has a strong entitlement to spousal support on a compensatory basis. This was a long-term spousal relationship, lasting 22 years from the commencement of cohabitation in May 1994 until the separation in July 2016. While Ms. Devathasan had established herself in the workforce in Singapore as a nurse, model and event planner and worked in the Clinic in the early years of cohabitation, by 2002 the parties had settled into traditional roles, with Dr. Devathasan as the breadwinner and managing the family’s finances while Ms. Devathasan was looking after the household and raising the children.

[343]     Dr. Devathasan benefited from the marriage, because it enabled him to have and raise his children without putting too much time into child rearing and household responsibilities. After 2002, he was having his children raised in Canada as he wished without coming to Canada more than a few times a year. His marriage to Ms. Devathasan enabled him to focus on his profession and earn a great deal of money while largely leaving it to her to raise the children.

[344]     Ms. Devathasan suffered corresponding disadvantages. As in any long-term, traditional marriage, she was removed from the workforce. This limited her future income-earning capacity. The disadvantage was compounded by the move to Canada. She now resides, and her children reside, in a country where she has never held a job. I have already noted her limited prospects for finding employment here, at this stage in her life.

[345]     It is not that Ms. Devathasan is necessarily worse off, as a result of the marriage, than perhaps she would have been had she not reconnected with Dr. Devathasan in 1993. For the past 20 years, she has lived the lifestyle of a wealthy wife and mother, enjoying multiple residences, luxury vehicles and expensive international vacations. Dr. Devathasan enjoyed the same wealthy lifestyle. It was made possible by Ms. Devathasan’s efforts in the household as well as by Dr. Devathasan’s work in the Clinic. Repeating words I have already quoted from Rowles J.A.’s judgment in Chutter, at para. 51, “compensatory spousal support may … address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts”.

[346]     Non-compensatory or “means and needs” considerations also support Ms. Devathasan’s claim for spousal support. In the circumstances of these parties, “needs” extends well beyond the basic necessities of life. Ms. Devathasan’s most recent F8 lists monthly expenses (exclusive of legal expenses) exceeding $85,000. These include legal fees, debt servicing charges, and substantial property expenses. She has relied upon monthly interim spousal support payments of $62,958 and also interim advances to make ends meet. Even after the division of family property is effected, there will remain a large discrepancy in the parties’ respective incomes while Dr. Devathasan is working.

[347]     In short, I find that Ms. Devathasan has a strong entitlement to spousal support on a compensatory basis and is also entitled on a non-compensatory basis.

[348]     For ease of reference, I repeat here my findings with respect to the parties’ incomes:

[349]     Dr. Devathasan’s income far exceeds the $350,000 ceiling under s. 11.1 and 11.3 of the SSAG. Use of the relevant SSAG formula is discretionary in this case. In exercising my discretion, I should consider the amounts payable under the relevant SSAG formula as well as the factors and objectives set out in s. 15.2(4) and (6) of the Divorce Act. A helpful list of the factual matters I should take into account was provided by Dardi J. in T.N. v. J.C.N. at para. 178. They include Ms. Devathasan’s needs, the standard of living during the marriage, the standard of living of each spouse post-separation, the disparity in the parties’ incomes and earning capacity, the division of assets, and both parties’ stated current expenses.

[350]     I must also consider a difficulty inherent in the use of the SSAG formulas in the circumstances of this case. The formulas are income-driven, based on a comparison of the net after-tax disposable income available to each party, after payment of child support. An underlying premise is that spousal support is tax-deductible; SSAG s. 8.2. This is the case for Canadian taxpayers, but Dr. Devathasan pays taxes in Singapore and his spousal support payments are not tax-deductible.

[351]     The SSAG formulas are complicated, particularly the “with children” formulas. They involve iterative tax calculations and, as a practical matter, are applied through software. In this case, the SSAG formulas built into the software overstate Dr. Devathasan’s financial position, by comparison to that of a Canadian taxpayer.

[352]     The SSAG formulas, as interpreted by “Divorcemate” software, suggest the following ranges of spousal support in this case:

[353]     These are amounts that would roughly equalize the net disposable income of the parties, if the spousal support payable by Dr. Devathasan were tax-deductible.

[354]     The “condition, means, needs and circumstances of each spouse” will be affected by the division of property and debt that is now taking place. They will be further affected by Dr. Devathasan’s retirement from the practice of medicine, but I have found that is not likely to take place until August 2024 when he turns 75.

[355]     I will begin with an assessment of the position as it stood from the date of separation through to the time of the trial. Then I will assess the position going forward from the completion of the division of property and debt and consider when that is likely to be completed.

[356]     I need not repeat the considerations that lead me to conclude that Ms. Devathasan has a strong entitlement on a compensatory basis. The features of this long-term traditional marriage in which Ms. Devathasan remains the primary parent of a child of the marriage include: a great disparity of earnings and earning capacity; the maintenance of an extravagant standard of living during the marriage; Dr. Devathasan’s ample means to pay; and Ms. Devathasan’s inability to maintain herself without spousal support. All this favours a generous award.

[357]     I have compared the monthly expenses recorded by Ms. Devathasan and Dr. Devathasan in their F8 financial disclosure statements made on December 14, 2018 and January 11, 2019, respectively. This comparison leads me to conclude that Ms. Devathasan is paying expenses that should be funded by Dr. Devathasan in this period, and that Dr. Devathasan is maintaining a higher standard of living than Ms. Devathasan. My reasoning follows.

[358]     Ms. Devathasan’s monthly expenses include monthly legal fees estimated to exceed $75,000. In my view, legal expenses should not be taken into account in assessing support in this case. They may be the subject of a costs award. Putting the estimated legal fees to one side, Ms. Devathasan’s monthly expenses total $85,787.

[359]     More than $42,000 of Ms. Devathasan’s monthly expenses comprise debt servicing charges on family debt (exceeding $26,000) and expenses of ownership of the North American family properties. (This total excludes food and household supplies for three households maintained by Ms. Devathasan: Groveland, the Hotel Georgia apartment, and the Big White vacation property.)  Bearing in mind that the properties are valued and divided at the conclusion of the trial, the $42,000 amount reflects necessary expenses that should fall to be paid from Dr. Devathasan’s income stream during the period of separation.

[360]     Ms. Devathasan’s monthly expenses also include taxes of approximately $23,000. I infer that she pays substantial taxes largely based on her receipt of interim spousal support payments of $62,958.

[361]     Backing out Ms. Devathasan’s expenses of ownership, debt servicing and tax expenses from the monthly total of $85,787, Ms. Devathasan’s residual monthly expenses are in the order of $16,500. This includes a monthly vacation allowance of $3,333 for a single round trip to Singapore annually and approximately $4,200 per month of expenses for K (including car insurance and maintenance).

[362]     Dr. Devathasan records monthly expenses of S$23,990 in his F8. He records taxes of only S$2,500 per month and expenses of property ownership totalling approximately S$5,000. His residual monthly expenses are in the order of S$16,500. The Singaporean dollar and the Canadian dollar are very close in value at this time. Dr. Devathasan’s budget for what I have termed residual monthly expenses is essentially equivalent to Ms. Devathasan’s budget.

[363]     Dr. Devathasan’s circumstances are different. He has no child care expenses. He records vacation expenses of S$6,000 per month for frequent trips to Thailand to see his new partner, and he pays for her travel to Singapore. Dr. Devathasan has a live-in maid. Ms. Devathasan has cleaners who come in regularly. This difference probably reflects a lower cost of labour in Singapore than in Vancouver. Given that reality, it is striking that Ms. Devathasan is maintaining three households and a child on budget that is equivalent to Dr. Devathasan’s budget for maintaining a single household without a child. Dr. Devathasan is spending more money on himself than is Ms. Devathasan.

[364]     I also conclude that Ms. Devathasan has suffered some reduction in her standard of living since the separation, in that she is taking fewer, less expensive vacations.

[365]     In my opinion, having regard to Ms. Devathasan’s strong compensatory entitlement and Dr. Devathasan’s means, a fair spousal support award for the period from separation to trial should permit Ms. Devathasan to maintain her standard of living at a level that is roughly equivalent to that enjoyed by her before the separation and that continues to be enjoyed by Dr. Devathasan.

[366]     The results generated by the SSAG formula offer a signpost, but I do not place too much weight on them. The application of the SSAG formulas by software produces amounts that are much more exact than can be justified by the income information that is inputted – I have come to conclusions as to the parties’ incomes in this case through the exercise of judgment based on inferences and approximations grounded in imperfect evidence – and my conclusions as to an appropriate support award also require the exercise of discretionary judgment. There is nothing exact about this exercise. In addition, as I have noted, the SSAG formulas tend to overstate Dr. Devathasan’s financial position.

[367]     The parties’ needs, as reflected in the budgets contained in their F8s are more helpful in the circumstances of this case. While I have noted that Ms. Devathasan is paying child care expenses and Dr. Devathasan is not, those expenses are addressed through the child support award, and must not be taken into account again in quantifying an award of spousal support. What is relevant is Dr. Devathasan’s greater level of expenditures on himself.

[368]     Taking everything into account, I conclude that a fair award of spousal support in this period is $100,000 per month. This should suffice to cover the debt servicing charges, expenses of property ownership, and taxes, with an amount left over for Ms. Devathasan to spend on herself that is roughly equivalent to what Dr. Devathasan has been spending on himself.

[369]     I would not adjust this amount to reflect the fluctuations in Dr. Devathasan’s income since July 2016. It is an amount based on my assessment of the parties’ means, needs and circumstances over the entire period.

[370]     In consequence, I conclude that the interim monthly spousal support award of $62,958 was too low, and Ms. Devathasan is entitled to additional support of $37,042 per month for the period covered by the interim order, that is, September 1, 2016 to April 1, 2019. The total over 32 months is $1,185,344.

[371]     When the division of property is completed, Ms. Devathasan will be relieved of many of the expenses of ownership and debt servicing she is presently incurring. She will have a significant investment income of her own. Both these considerations point in the direction of a reduced though still substantial entitlement to spousal support.

[372]     I have forecast that Ms. Devathasan will sell the Groveland property and replace it with a property that will undoubtedly be cheaper to maintain. She will still have the Hotel Georgia apartment for the time being. Examining the breakdown of her expenses of debt servicing and property ownership, I estimate that they will be reduced from approximately $42,000 per month to approximately $7,000 per month, a reduction of $35,000. A strictly needs-based analysis would suggest a reduction in the support of more than $35,000 per month, perhaps as much as $60,000 per month, because the taxes Ms. Devathasan must pay are also reduced.

[373]     Based on his F8, Dr. Devathasan’s budgeted expenses will not be significantly reduced by his anticipated disposition of the Groveland property and other Asian properties. The saving of family expenses consequent on the division of property is a saving of expenses that have been borne by Ms. Devathasan since the separation.

[374]     A strictly needs-based analysis would not be appropriate. Ms. Devathasan’s strong entitlement on a compensatory basis remains. The SSAG formula, though it must be applied with caution, points towards a range of $78,000 to $94,000 per month. In my view, it would not be right to apportion to Dr. Devathasan the entire benefit from the elimination of family expenses by reducing his support obligation in an amount equal to the expenses eliminated. This long-term marriage had many of the attributes of a financial partnership, and the benefit from the reduction of expenses incurred for the benefit of both parties should inure to both parties.

[375]     Taking everything into account, I conclude that an appropriate award of support in respect of the period after the division of assets has taken place is $70,000 per month. Support should be payable on this basis at least until Dr. Devathasan turns 75 in August 2024, when I have forecast that he will retire. At that point, his income will sharply reduce.

[376]     I have found (para. 288 above) that the division of assets will be implemented in 2019 and may continue into 2020, but should be treated as complete, for the purpose of determining incomes, as of January 1, 2020. For consistency, I treat January 1, 2020, as the date for implementation of spousal support at $70,000 per month. In all the circumstances, I think that support should remain at $100,000 per month until then.

[377]     In my opinion, the circumstances favour a lump sum award of spousal support covering the period from the issuance of this decision until August 2024. A lump sum award offers two of the advantages specifically noted in the passage I quoted from Davis v. Crawford (at para. 339 above): this has been a high-conflict proceeding, and a lump sum award will terminate ongoing contact between Ms. Devathasan and Dr. Devathasan; and it will address the real risk of non-payment of periodic support that must be recognized by virtue of Dr. Devathasan’s past declarations and misconduct. If Dr. Devathasan elects to put Ms. Devathasan to the trouble of collection proceedings in Singapore, she should not be put through that exercise repeatedly.

[378]     As against these advantages, there are the disadvantages also noted in Davis v. Crawford: a lump sum award effectively deprives the paying party of the right to apply for a variation on the ground of a change of circumstances; and may present difficulties of calculation. Difficulties of calculation are not a major consideration in respect of a lump sum award covering a five year period. As for the possibility of a change of circumstances, in my view, depriving the parties of something else to fight about is not a real disadvantage in this case. A lump sum award will relieve Dr. Devathasan of the temptation to retire for tactical purposes even if it is not what he would choose to do but for the litigation. There are other possibilities – Dr. Devathasan or Ms. Devathasan might die or become disabled before 2024 – giving rise to some risk of unfairness to one party or another. Nevertheless, these are relatively unlikely contingencies when set against the advantages I have identified.   

[379]     Weighing the advantages against the disadvantages as I must, in my view, the balance favours a lump sum award covering the five years and three months until August 2024.

[380]     Assuming a discount rate of 3% (for consistency with other calculations in this judgment), the present value of a stream of $100,000 payments from now through December 2019 and $70,000 payments from then until August 2024 is $4.313 million.

[381]     For these reasons, I order Dr. Devathasan to pay to Ms. Devathasan past spousal support of $1,185,344 and lump sum future spousal support of $4.313 million.

[382]     After September 2024, Ms. Devathasan will have liberty to apply for spousal support in respect of the period commencing in October 2024.

[383]     The requirements of the Divorce Act are satisfied. I am satisfied that this judgment establishes reasonable arrangements for the support of K, having regard to the FCS Guidelines, and s. 11(1) of the Divorce Act does not prevent my granting an order of divorce.

[384]     Ms. Devathasan seeks special costs of this action. Dr. Devathasan asks that the consideration of costs await the determination of all other issues in the case. Ordinarily, I would accede to Dr. Devathasan’s request as a matter of course. This is not an ordinary case.

[385]     Special costs are awarded to punish misconduct in the course of litigation that is reprehensible in the sense of “deserving of reproof or rebuke”; Garcia v. Crestbrook Forest Industries Ltd. (1994), 1994 CanLII 2570 (BC CA), 119 D.L.R. (4^th) 740 (B.C.C.A.). Examples of reprehensible conduct justifying an award of special costs in family litigation can include dissipating assets, failing to disclose assets, misleading the court, and disobeying court orders; Kim v. Hong, 2013 BCSC 2248 at paras. 10-18; Hu v. Dickson, 2015 BCSC 218 at para. 9.

[386]     At various points in these reasons, I have already referred to episodes of misconduct by Dr. Devathasan in the litigation. To be clear, from the commencement of the action until February 2018, Dr. Devathasan repeatedly engaged in reprehensible misconduct. This included:

[387]     I have found that Dr. Devathasan continued to conceal assets after February 2018, and maintained that position at the trial in January and February 2019.

[388]     This is not a comprehensive listing of Dr. Devathasan’s misconduct. It is sufficient to make the point that, until February 2018, Dr. Devathasan’s attitude and actions evinced contempt for this Court and its processes. This was conduct richly deserving of rebuke. It is of a piece with his insistence that he would not pay support ordered by the Court.

[389]     In February 2018, Dr. Devathasan reached the end of the line in his attempt to have the Singaporean courts assume jurisdiction. He retained his present Canadian counsel, produced documentation he had withheld until then, and otherwise began to cooperate with the litigation process in British Columbia. He began his testimony at trial with a fulsome apology to the Court, Claimant’s counsel, the Claimant and K. I accept that he regrets his conduct towards the Court and K, and also regrets the manner in which he expressed himself to the Claimant and her counsel. Dr. Devathasan’s apology was well advised, but it cannot relieve him of the consequences of his gross misconduct.

[390]     Dr. Devathasan’s misconduct undoubtedly made this litigation more difficult and much more expensive than it ought to have been. An award of special costs against him is necessary.

[391]     It may be that offers of settlement were delivered pursuant to Family Rule 11-1 that can only be brought to my attention following the release of these reasons for judgment. Such an offer could possibly affect the disposition of costs in respect of the period after the offer was delivered. Subject to that possibility, Ms. Devathasan is entitled to special costs of this action.

[392]     The quantum of special costs payable by Dr. Devathasan will have to be assessed at a hearing before the Registrar.

[393]     To recapitulate, for these reasons, I order as follows:

[394]     In these reasons, I have not addressed the accounting for interim advances made in the course of the litigation. If the parties cannot agree upon this, or if other disputes arise in the preparation of an order giving effect to my judgment, the parties may schedule a hearing before me through the registry.