IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Athwal v. Walia,

 

2019 BCSC 582

Date: 20190416

Docket: E54415

Registry: New Westminster

Between:

Sukhvir Singh Athwal

Claimant

And:

Jasvir Kaur Walia also known as Jessie Walia,
Rockhill Trucking Ltd. and 1098369 B.C. Ltd.

Respondents

Before: Master Bouck

Reasons for Judgment

Counsel for Claimant:

S. Ahuja

Counsel for Respondents:

L. Rudovica

Place and date of Hearing:

Vancouver, B.C.

April 8, 2019

Place and Date of Judgment:

New Westminster, B.C.

April 16, 2019

 

[1]             As described in the pleadings and the voluminous affidavit material filed to date, the issues to be resolved at trial in this family law proceeding are financial in nature. Ms. Walia also raises the threshold issue as to whether the parties were ever spouses as defined by the Family Law Act, S.B.C. 2011, c. 25 (the “FLA”). The trial of the action is set to commence in June of this year.

[2]             These brief reasons address one aspect of the relief sought by the claimant in notices of application filed on February 5th and March 21st, 2019, respectively. The balance of the relief requested in the notices was dealt with on April 8th by way of agreement or oral reasons, with costs of the applications to be in the cause.

[3]             The remedy left to address is the claimant’s request for:

An Order pursuant to section 230 of the Family Law Act, that the Respondent, Jasvir Kaur Walia also known as Jesse Walia, forthwith insure the Cube Van as ordered by the Honourable Madam Justice Devlin, pronounced January 26, 2018.

[4]             Ms. Walia is identified as both Jesse and Jessie in the affidavit material and orders of the court.

[5]             Because the outcome of the application is of interest solely to the parties, I do not intend to address the factual background to the applications in any detail. The substance of the dispute over this particular remedy is whether Ms. Walia has complied with the order of the court and, if not, whether a remedy under s. 230 is appropriate.

[6]             Section 230 of the FLA provides that:

230      (1) Subject to section 188 [enforcing orders respecting protection], an order under this section may be made only if no other provision of this Act applies for the purposes of enforcing an order made under this Act.

(2) For the purposes of enforcing an order made under this Act, the court on application by a party may make an order to do one or more of the following:

(a) require a party to give security in any form the court directs;

(b) require a party to pay

(i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees and expenses related to family dispute resolution,

(ii) an amount not exceeding $5,000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the party's actions, or

(iii) a fine not exceeding $5,000.

[7]             The relevant terms of Madam Justice Devlin’s order are:

7. BY CONSENT: Within 48 hours of the date of this Order, the Respondent, JASVIR KAUR WALIA also known as JESSE WALIA, will attend ICBC and take the necessary steps to add the Claimant, Sukhvir Singh Athwal, as the principal operator of the 2011 GMC Savanna Van with VIN number: 1GD374BGXB1138163 bearing license plat (sic) number LG8900 (the “GMC Van”) and provide the GMC Van to the Claimant.

8. BY CONSENT: The Claimant will exclusive use and possession of the GMC Van. On an interim and without prejudice basis, the Claimant will be responsible for payment of any expenses, maintenance costs and ICBC insurance debt related to the GMC Van.

[8]             The GMC Van is also identified as the “Cube Van” in the material before the court. The affidavit evidence with respect to the parties dealings with the Cube Van is disjointed and confusing.

[9]             During the parties relationship, the Cube Van was used by the claimant as his work vehicle although Ms. Walia has always been the registered owner and was named as the principal operator during the relationship.

[10]         The Cube Van was in Ms. Walia’s possession when the January 26, 2018 order was pronounced. Ms. Walia acknowledges that she did not provide the vehicle to Mr. Athwal as required by the court’s order. However, Ms. Walia did take steps to identify the claimant as the principal operator for insurance purposes. The vehicle is no longer insured, with coverage having expired on January 27, 2018.

[11]          Ms. Walia is willing to transfer full ownership of the Cube Van to Mr. Athwal if the latter will assume the cost of insurance and become the sole registered owner. According to his counsel’s email communication of February 2, 2018, the claimant is unwilling to take on either of these responsibilities. Because of this stalemate, the court made a further order on February 2, 2018 that Ms. Walia and Mr. Athwal attend an ICBC office that day in order to carry out the steps to comply with paragraph 7 of Madam Justice Devlin’s order. The court also ordered that Ms. Walia provide Mr. Athwal with the location of the van and the keys to the vehicle. It is not clear from the evidence as to whether the parties did in fact attend at an ICBC office that day, but the Cube Van was in Mr. Athwal’s possession by the summer of 2018. The vehicle remains uninsured.

[12]         Ms. Walia raises two primary concerns with respect to retaining ownership and paying to insure the vehicle: the claimant’s poor driving abilities; and the failure of the claimant to obtain his own “National Safety Code” (the “Code”). Ms. Walia says that she qualified for the Code sometime ago and Mr. Athwal must obtain his own designation in that regard. The issue with respect to the Code appears to have first been raised in a June, 2018 communication from Ms. Walia’s previous counsel to the claimant’s counsel.

[13]         The Code is apparently some sort of licence and part of federal trucking regulations. Ms. Walia says that the claimant’s poor operation of the Cube Van could jeopardize her standing as the Code holder. The claimant deposes that the parties jointly obtained the Code to operate one or more trucks but also acknowledges that he could pursue his own Code. In his 5th affidavit, Mr. Athwal describes the Code as a family asset.

[14]         There is a cost associated with obtaining an independent Code and the claimant will be required to write or perform tests in that regard. It is not clear from the evidence as to whether these are written or road tests or both. English is Mr. Athwal’s second language and this circumstance could be a barrier to obtaining an independent Code.

[15]         The parties each rely on a subjective interpretation of Madam Justice Devlin’s order. Mr. Athwal submits that it is an implied term of the order that Ms. Walia retain ownership and pay to insure the van. Ms. Walia interprets the order as requiring Mr. Athwal to assume those responsibilities. As I read terms 7 and 8 of Madam Justice Devlin’s order, the present obligations of Ms. Walia and Mr. Athwal are as follows:

·       Mr. Athwal is to be identified as the principal operator of the Cube Van, with this step to be undertaken by either Ms. Walia individually or the parties jointly at an ICBC office; and,

·       The Cube Van is to be provided to Mr. Athwal and he is to be responsible for any expenses, maintenance costs and ICBC insurance debt related to the Van.

[16]         The court’s orders do not specify that Ms. Walia should retain registered ownership or that she is solely responsible for the cost of insurance. I am unable to find conclusively that such terms are implied. Indeed, requiring Ms. Walia to bear the costs of insurance would appear contrary to the term that Mr. Athwal be responsible for ICBC insurance “debt”. It may be that Mr. Athwal is prepared to pay for the vehicle’s insurance now but that was obviously not his position on this application.

[17]         Given the parties differing and perhaps equally valid interpretation of the court’s order, no remedy pursuant to s. 230 of the FLA is warranted. In any event, an order to “insure” the Cube Van is not a remedy available under that provision. In the result, the relief sought in the paragraph 3 of the claimant’s February 5, 2019 notice of application is dismissed. Lest there be any confusion, I reiterate that the costs related to both of the notices of applications will be in the cause.

“Master C.P. Bouck”