Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A U G U S T 2 0 1 6 13 \ AT L A N T I C \ C E N T R A L \ P R A I R I E S \ W E S T REGIONAL WRAP-UP and then claimed there was no oral agreement in place regarding the Ross Street property. At the divorce proceeding, BCSC Madame Justice Catherine Bruce had to determine if there was an oral agreement in place and its validity as well as how it impacted the division of family assets and debt. She relied upon credibility of the individuals testi- fying to determine the validity of the oral agreement. Bruce favoured Ms. Brown's testimony over Dr. Brown's. "I found Dr. Brown's evidence generally to be unreliable and incred- ible. He did not give his evidence in a straightforward manner," Bruce ruled, adding he "obfuscated his answers", "evidence at trial was inconsistent with his examination of discovery", and "answers were confusing. . . . His inability to explain certain deductions on his income tax returns was also a clear indication that Dr. Brown has little respect for the truth and the affirmation he swore." Bruce called Dr. Brown's conduct in connection with his billings under the Medical Services Plan in the years prior to his marriage to Ms. Brown bordering on "fraudulent." Bruce reasoned that after being penalized for improper billing practices in the late 1990s and early 2000s, Dr. Brown then "engaged in the same misconduct during 2007 to 2010, resulting in further penalties by MSP, including a three-month suspension, a $25,000 fine, and $15,000 in costs imposed by the College of Physicians and Sur- geons. He also disclosed to Ms. Brown that he continued to engage in these improper billing practices in 2014 after the second audit by MSP and a hearing into his conduct from 2007 to 2010." Bruce admonished Dr. Brown for improperly accessing private e-mail communications of Ms. Brown after the separation. "He made copies of these emails and shared them with his counsel. This breach of her privacy is inexcusable and demonstrates Dr. Brown's lack of respect for the legal process." Bruce concluded that Dr. Brown "is not a trustworthy person and his evidence should not be preferred where it is in conflict with Ms. Brown's." Bruce found Ms. Brown's "evidence to be gener- ally more consistent with the probabilities of the case surrounding circumstances of the parties' relationship." Bruce, in accepting there was an agreement in place regarding excluded assets, found that the actions of the parties also under- scored that oral agreement. Bruce pointed to Ms. Brown discussing the exclusion of the Ross Street property with a family lawyer and her former husband. The couple also did not live in the home in order to protect it from being considered a family asset, another action that underscored the mutual agreement on assets. "Dr. Brown did not share in the rents received from the Ross Street property and he did not contribute to the cost of its mortgage or its maintenance," Bruce reasoned. Dr. Brown's actions also showed that Ms. Brown laid no claim to the assets he wanted excluded. "He spent freely from his pre-marital investment accounts that contained the money from the first marriage settle; he collapsed RRSP funds and he bought a Porsche for $85,000 without any consultation with Ms. Brown." Bruce said that while the couple didn't discuss what happened if those excluded items rose in value, it was generally regarded that the increased value was part of the original oral agreement. "I find the parties' agreement regarding these specific assets, although an oral agreement, is certain and enforceable," Bruce ruled. Bruce ruled that the oral agreement had limitations; while each paid their own debts including credit cards during the marriage, they shared mutual expenses. "I am unable to conclude there was a specific, enforceable agreement that upon dissolution of their mar- riage the debts incurred during the marriage would not be shared in some fashion. There was also no evidence of an agreement that debt incurred for shared trips and other mutually enjoyed pur- chases would be borne solely by the party who paid for the trip." Bruce also reasoned that the marriage began with a pattern of sharing of mutual expenses, despite later years when Dr. Brown's "spending became so out of control that it was not possible for her to contribute 50% based on her income and it is apparent that she did not do so." Bruce pointed to Dr. Brown's $5,000 weeklong rent- al of a Lamborghini as one example of an extravagant expense that both parties enjoyed but only Dr. Brown paid for. Bruce applied the same reasoning to the Browns' assets. "I am not satisfied an agreement to keep their finances separate effectively meant that other assets, apart from Dr. Brown's investment and RRSP monies and Ms. Brown's house, would remain excluded property even if they increased in value during the marriage." She granted the Ross Street home and Dr. Brown's MD Management investment accounts and all of his RRSP funds as excluded property but drew the line there. "All other assets and debts remain subject to division pursuant to the [Family Law] Act. — JEAN SORENSEN jean_sorensen@telus.net Canadian Lawyer Corporate Counsel Survey ATTENTION IN-HOUSE COUNSEL! Weigh in on relationships with external law firms, alternative fee arrangements and more 5IFTurvey JTopen GSPNAuH 15 – Sept 12 canadianlawyermag.com/surveys Untitled-1 1 2016-07-08 11:29 AM

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