[1] These parties were married August 23, 1975 and separated in September 1999. I granted them a decree nisi on April 2, 2001.

[2] When they were married, the plaintiff (Ms. Chambers) had her R.N. and the defendant (Dr. Chambers) was a recent graduate in dentistry. The young couple moved to Killarney where Dr. Chambers set up practice, having made an arrangement with the Province of Manitoba that if he were to practice in a rural area they would determine it to be repayment of his student loan.

[3] There are two children of the marriage, Courtney Anne Chambers, born March 30, 1979 and Reid William Chambers, born August 7, 1981. Both children are attending university and for that reason, would normally be considered children of the marriage. However, Dr. Chambers has generously provided for them with a children's family trust and they simply are not in need of maintenance. In any event, when Courtney has not been at university she has lived with her mother, while Reid has lived with his father when he is not attending McGill University. While Master McCallum amended the pleadings to provide for a claim of maintenance for Courtney, that claim is dismissed. Their tuition is covered by an insurance plan. Further, Dr. Chambers has undertaken to see that the parties' children continue to be paid, as they have been, $1,500.00 per month from the family trust while working on their first university degrees. Their tuition fees are covered by an insurance scheme. The evidence showed that these children have not lacked for anything and have been treated to foreign travel, ski holidays, private schools and the like.

[4] The primary issues left to be resolved are the appropriate means of dividing the family assets, although there is no argument that family assets are to be shared equally between Ms. Chambers and Dr. Chambers.

[5] The major asset is Dr. Chambers' dental practice. He practices through a corporate entity known as Dr. R.W. Chambers Inc. and owns all of the issued shares of that company. The shares were the subject of an extensive appraisal prepared by Al Heaps & Associates Inc., who hold themselves out to be expert dental practice evaluators. Their May 2, 2000 report values the practice at that date at $665,719.00.

[6] I was informed that at the pre-trial conference before Master McCallum, held a few weeks before trial, Mr. Tracy accepted the Heaps' appraisal. At trial he resiled from that admission. Nonetheless, apart from the Heaps' evaluation of goodwill being under attack by Mr. Tracy, there is no reason for the trier of fact not to accept the appraisal as accurate and appropriate.

[7] Dr. Chambers' chartered accountant Adam H. Sharpe, who gave evidence at the trial, filed a letter dated February 2, 2001, indicating that if Dr. Chambers sold his shares in the corporation for $660,000.00, as suggested by the Heaps' appraisal, he would be subject to capital gains tax and other taxes. Mr. Sharpe estimates Dr. Chambers' net proceeds from a sale at $660,000.00 to be $549,000.00.

[8] Mr. Tracy points out that the appraisal was done when Dr. Chambers had an associate, who no doubt decreased the income available to Dr. Chambers from the practice. That associate has since left the practice. However, Master Donaldson made a declaration pursuant to s. 57 of the Family Relations Act on May 23, 2000, creating the triggering event, and thus the Heaps' appraisal must be taken to be the correct figure for division under the Family Relations Act. I would, however, accept the deduction for tax when making the compensation order which both counsel think is the appropriate order for the court to make in this case. I follow the reasoning in Madam Justice Southin in Blackett v. Blackett (1989), 40 B.C.L.R. (2d) 99. After discussing a compensation order under s. 52, Her Ladyship says at page 105:

[9] She goes on and says in her succinct fashion:

[10] Given the parties' agreement that the practice is a family asset, I would value it at $550,000.00.

[11] Other family assets are not much in dispute. Automobiles can be equalized and the outstanding loans adjusted. Airmiles can be divided, as can the value of an Intrawest Blackcomb time-share after each party shoulders one-half of the outstanding dues. Life insurance can be valued at its cash surrender value and Dr. Chambers agrees that Ms. Chambers can maintain Policy No. LI8134,6235-7 on his life, provided that she maintain the premiums. There was a pre-trial distribution of a Nesbitt Burns account, and the Nesbitt Burns account No. 81013542 can similarly be divided. However, Nesbitt Burns account No. 8101596 is not a family asset, having been acquired by Dr. Chambers after the triggering event when he used half of the proceeds of the pre-trial distribution of one of the Nesbitt Burns accounts (Ms. Chambers needed her half of the proceeds to retire her outstanding credit card accounts). R.R.S.P. accounts owned by the parties should be rolled over and divided equally between them.

[12] The second issue involving the practice is Dr. Chambers' argument that he should receive a compensation order for monies Ms. Chambers took from the practice and apparently dissipated without acquiring any significant assets to share.

[13] The rather bizarre manner in which Ms. Chambers removed approximately $250,000.00 from Dr. Chambers' company account to her personal chequing account over a period of approximately 18 months, ending in March 2001, gives rise to the contentious issue. The problem seems to have arisen after Dr. Chambers incorporated his practice and put his wife in charge of the books of account and the payment of corporate accounts. The bank seems to have accepted an agreement signed by Dr. Chambers and Ms. Chambers, dated September 23, 1997, instructing it to accept verbal and facsimile banking requests from Ms. Chambers without seeking further verification (Exhibit 6). The document makes no mention of the corporate entity, nor the corporate account, however, which may have been an oversight by the bank.

[14] However it occurred, the funds were moved to Ms. Chambers' personal account from the corporate account and it would seem that she spent it largely on lavish entertainment, furniture, art supplies, clothing and hair styling.

[15] Dr. Chambers testified that it was not until his accountants brought these matters to his attention early in March 1999 that he had any idea that Ms. Chambers had access to the practice account. Ms. Chambers responds by pointing out that no one could have lived their lifestyle on the amount of money he paid her as salary. She could not be expected to run the day-to-day household accounts on that sum. I accept that argument as Ms. Wong, Mr. Sharpe's colleague, traced the expenditures from Ms. Chambers' bank account, fattened by the transfers from the practice account, showing items that clearly would have been visible to Dr. Chambers. His counsel argues that there should be a compensation order of $250,000.00 made against the value of the practice. To that I cannot accede.

[16] In coming to that conclusion, it is important to briefly review Ms. Chambers' mental condition following her husband's discovery of her financial misadventures. On March 28, 1999 she was admitted to Edgewood, a 74-bed in-patient chemical dependency treatment centre in Nanaimo. After a 42-day stay, her discharge summary made May 15, 1999 indicates that Ms. Chambers was receiving treatment primarily for her addiction to shopping, having spent $250,000.00 in the past 12 to 18 months. The report indicated that Ms. Chambers shopped five days per week for the last 28 years, with the amount of money spent increasing steadily over that time. It also indicates that she was taking sleeping pills on a daily basis for the past 18 years and drinks wine three times per week. She was also addicted to codeine from age 34 to 41, stopping use only after she was hospitalized and detoxified. Her counsel argues that she has a compulsive-addictive personality and that she must continue treatment and counselling for her problems.

[17] Edgewood's aftercare recommendation (Exhibit 4, Tab 87) was:

(a) attend a minimum of two Alcoholics Anonymous meetings each week (she testified that she had followed this recommendation steadfastly);

(b) obtain a temporary sponsor within two weeks (this she has done);

(c) commit to an A.A. home group and actively participate (she testified she does);

(d) eat three small meals each day;

(e) attend aftercare at UVic each Sunday;

(f) remember that she could call Edgewood at any time day or night;

(g) nurture her spiritual connection on a daily basis for the next year; and,

(h) as a reminder to be active in recovery, she will write a list of five things she is grateful for each day.

[18] Dr. Chambers expressed grave doubts that Edgewood had cured her of her difficulties and one can sympathize with his position. As a result of an interim maintenance order made June 15, 2000, Dr. Chambers has paid $16,100.00 per month for spousal maintenance. However, her financial records show that during this period she increased debts on her credit cards. Apart from putting aside money for her annual income tax, there is little indication that she is capable of changing her somewhat elaborate lifestyle in order to live within her means.

[19] It is obvious on the totality of the evidence, both viva voce and in the 93-tabbed four volumes, that Dr. Chambers was well aware of Ms. Chambers' inability to successfully or parsimoniously manage the family finances. Nonetheless, he put her in charge of the corporation's financial affairs. It is for that reason that I cannot accept his proposition that he should be compensated for her mismanagement. He knew, or ought to have known, that her financial management was open to question.

[20] That then brings me to the question of spousal maintenance for Ms. Chambers.

[21] While it is clear she has an obligation to make herself self-supporting, at age 49 she can never hope to achieve the kind of lifestyle that she grew accustomed to during the marriage. It is clear Dr. Chambers has the means to support her in a more affluent style than will be available to her if she graduates from her present hairdressing course and becomes a hair stylist. Mr. Murphy-Dyson, on behalf of Dr. Chambers, argues that Ms. Chambers should take a one-year course and become a certified dental assistant of which she has had some practical experience. Alternatively, he suggests, she should upgrade her nursing skills since she was an R.N. Ms. Chambers indicates that she does not wish to go back to nursing nor to become a dental assistant. She testified that it was not a healthy environment which I understood to mean that given her previous addiction to codeine, she would be too close to prescription and non-prescription drugs.

[22] It is clear that the marital break-up has been highly detrimental to Ms. Chambers' well being and health.

[23] Fortunately, now that Dr. Chambers has reached the age and experience to be at his highest earning years, he is in a position to maintain Ms. Chambers somewhat in the lifestyle she has become accustomed to. Tab 13 of Exhibit 8 from his accountants shows that the corporation is in a position to make approximately $525,000.00 per year available to shareholders, prior to personal taxes. Even continuing Ms. Chambers' present support of $16,150.00 per month, leaves $330,000.00 to Dr. Chambers for himself and the family trust for the children.

[24] However, he is entitled to put aside sufficient sums for retirement, a concern that he legitimately has. Indeed, one of the financial disputes during the marriage arose when Ms. Chambers cashed in and spent the proceeds from a spousal R.R.S.P. that Dr. Chambers set up. As a single practitioner, he is entitled to take a larger share of the family income to prepare for his retirement.

[25] Before arriving at a final figure for spousal maintenance, one has to take into account assets gained by Ms. Chambers as a result of a division of assets.

[26] Taking the asset and liability table as revised by Mr. Tracy, and substituting the sum of $550,000.00 for the value of the dental practice shares, and deleting the Nesbitt Burns account No. 8101596, the equalization payment required to be paid by Dr. Chambers to Ms. Chambers would, on Mr. Tracy's valuations, be $291,964.91. I accept the proposition that the investment accounts should be divided between the parties at their value on the day of division, each bearing the profit or loss since the figures were prepared for trial. Similarly, as noted previously, the life insurance policies should be divided on the basis of their cash surrender value at the date of division. I also take it that counsel have agreed that should any Clarica Life Insurance shares turn up, they will be divided equally between the parties.

[27] Assuming that Mr. Tracy's numbers are roughly correct after the required adjustments, Dr. Chambers will have to make an equalization payment in excess of $250,000.00 to Ms. Chambers. He shall pay forthwith to Ms. Chambers any sum in excess of $250,000.00. As for the additional $250,000.00, Dr. Chambers may pay the sum to Ms. Chambers over a five-year period at $50,000.00 per annum, with the whole sum bearing interest at the rate of 5% per annum, payable monthly and commencing May 1, 2001.

[28] If the interest payments are made monthly, that will give Ms. Chambers an income of $1,000.00 per month until the first principal payment of $50,000.00 is paid on the 1st day of June 2002, with the subsequent payments being made on the 1st day of June for the next four years thereafter.

[29] One can only hope that Ms. Chambers is wise enough to maximize her R.R.S.P. contributions and save her capital payments on their receipt.

[30] I fix monthly maintenance for Ms. Chambers at $14,000.00 per month, commencing May 1, 2001 until December 31, 2001; thereafter, the monthly maintenance will be reduced to $12,000.00 per month, since by that time, Ms. Chambers will have completed her hair styling course, and should have found some gainful employment.

"R.B.McD. Hutchison, J."
The Honourable Mr. Justice R.B.McD. Hutchison