[1] The plaintiff, Mervyn Keith Polson, and the defendant, Deanna Lois Polson, married in 1973 and separated in 1998. The issues include the granting of a divorce, the valuation and apportionment of the family's assets, determination of Mr. Polson's income, spousal and child support, and costs.

[2] Mr. Polson, 47 years old, was aged 20 when he married Ms. Polson who was then 16 years old. The marriage produced three children, Amber Krista Polson, born January 31, 1976, Erin Lindsay Polson, born April 25, 1978, and Lee Samuel Polson, born June 16, 1981. I will for clarity refer to the children by their first names.

[3] Mr. Polson entered the forest industry after high school graduation, working briefly in the Sicamous area before moving in 1977 to Enderby where the family built the home in which Ms. Polson presently resides. In 1974 Mr. Polson and a partner started a logging operation, subsequently incorporated as Schapol Logging Ltd. ("Schapol"), with the Polsons later obtaining full control of the company. Mr. Polson attended to the business with some assistance from Ms. Polson who assumed primary responsibility for the children and the home.

[4] The parties' principal asset is Schapol, which employs up to 10 workers in its logging and milling operations. The company prospered over the years as reflected in the April 11, 2000, report prepared by Donald Spence, a certified business valuator, who valued Schapol at $1 million to $1.1 million. I find Schapol to have a value of $1.05 million, the midpoint in Mr. Spence's valuation.

[5] The parties agree Schapol is a family asset to be divided equally in a process outlined in a letter dated September 7, 2000, from accountant S.M. Carson ("the Carson report"). The Carson report assumes Schapol's $1.05 million value is divided between shareholder loans of $116,000 and shares worth $934,000, with the parties to each receive one-half of the loans and one-half of the shares. Mr. Polson will transfer 50 percent of Schapol's shares worth $467,000 to Ms. Polson's newly incorporated company. Schapol then redeems the shares held in Ms. Polson's company, resulting in Ms. Polson's company possessing $467,000 in cash and Mr. Polson owning Schapol.

[6] If the shareholders' loans are less than the $116,000 assumed in the Carson report, the value of the shares will be increased to ensure that Ms. Polson receives $525,000, being one-half of Schapol's $1.05 million value. If difficulties arise with the transaction envisaged in the Carson report, counsel have liberty to apply for further directions.

[7] The parties agree the Enderby home is a family asset with a value of $209,000 and both seek the other's interest in the home. Ms. Polson submits the home ought to be reapportioned 100 percent in her favour pursuant to s. 65(1) of the Family Relations Act, R.S.B.C. 1996, c. 128. If the home is not reapportioned in her favour, she seeks an order that she can purchase Mr. Polson's interest in the home. Her counsel submits that the marriage left Ms. Polson disadvantaged and requiring reapportionment to become economically independent and self-sufficient, a difficult goal given her age and her lack of education.

[8] Ms. Polson completed grade 10 before marrying Mr. Polson and has limited work experience. Following separation, she obtained minimum wage employment at a tourist ranch near Vernon, a job she retains as she commences her academic upgrading at Okanagan College.

[9] I conclude Ms. Polson leaves the marriage with some marketable skills as well as substantial assets which ought to provide her with an income sufficient to offset some of the disadvantage resulting from the marriage. Taking into account the advantages and disadvantages flowing to the parties from the marriage and its breakup, I conclude that reapportionment of the home, a tax-free asset with a $209,000 value, cannot be justified. The home, like the other family assets, will be divided equally, pursuant to s. 56(2) of the Family Relations Act. The remaining disadvantage suffered by Ms. Polson will be compensated by the payment to her of spousal maintenance: Wood v. Wood (25 June 1997) Vancouver Registry D096752, paras. 58 and 62.

[10] If denied reapportionment, Ms. Polson seeks an order that she be allowed to purchase Mr. Polson's interest in the home which the parties built in 1977 and renovated in 1996. The home, located on 1.2 acres of land, covers 2,444 square feet on the main floor and 1,224 square feet in the basement and includes seven bedrooms, a two-car garage and a 600-square-foot workshop. It has high maintenance costs which Ms. Polson estimates at $8,400, including $3,204 for heating.

[11] Ms. Polson wants the home because it contains her spinning and weaving studio, she was responsible for the home's interior decorating and furnishings, and the home, in her possession, will provide a base for the parties' three children. Although the parties' youngest son, Lee, who has just turned 19, presently resides with his mother, he leaves home in November 2000 to commence 75 weeks of study at the DeVry Institute of Technology ("DeVry") in Calgary to obtain a diploma as an electronics engineering technician. Amber, the oldest daughter, resides in Kelowna where she obtained employment after completing courses at Selkirk and Okanagan colleges. Erin attends the University of Victoria and receives her education degree in May 2001.

[12] The difficulty with Ms. Polson retaining the home is similar to that found by Mr. Justice Holmes in Wood in which he determined the matrimonial home exceeded the petitioner's reasonable accommodation needs. He stated at para. 52:

[13] Ms. Polson's circumstances are similar as the home provides accommodation well in excess of her reasonable needs. Two of the couple's three children have left home, the youngest leaves in November, and I consider it unlikely that the children will return to live in the home. Ms. Polson's retention of the home for her own use and the occasional return of the parties' children would leave her with a significant financial burden.

[14] If Ms. Polson purchases the home she will have to utilize $104,500 from her capital to pay Mr. Polson for his one-half interest which would reduce by 20 to 25 percent the amount of capital available to her for investment. A five and one-half to six percent return on the $104,500 would produce income of approximately $6,000 annually, that income being lost to Ms. Polson if the money is tied up in the home. In addition to reducing her capital base by tying up funds in a non-income producing asset, Ms. Polson would incur significant home maintenance costs.

[15] Ms. Polson will have the opportunity to determine whether she wishes to purchase Mr. Polson's interest in the home as it is her decision how she uses her substantial, but still finite resources. If Ms. Polson purchases the home she cannot expect to receive higher spousal support from Mr. Polson either to make up the income lost because she has tied up investment capital in the home, or to contribute towards the home's excessive maintenance costs.

[16] Ms. Polson will have 21 days from the filing of these Reasons to advise Mr. Polson in writing whether she wishes to purchase his interest in the home. If Ms. Polson decides not to purchase the home, then Mr. Polson will have the opportunity to purchase Ms. Polson's half interest at the agreed-upon value of $104,500, with Mr. Polson to advise in writing within 21 days whether he intends to purchase the home. If neither party wishes to purchase the home, I order pursuant to s. 66(2)(d) of the Family Relations Act that the property be listed for sale with the proceeds to be divided equally between the parties. Counsel have liberty to seek further direction regarding the sale of the home.

[17] The parties agreed on the division of other family assets. Ms. Polson will credit Mr. Polson with $11,200 as a result of the furniture division. Mr. Polson has a registered retirement savings plan containing $57,326.73 and Ms. Polson has a similar plan, but it contains just $44,563.37. Mr. Polson will roll over $6,381.50 to Ms. Polson's RRSP. Mr. Polson has a policy with Great-West Life Assurance Company containing an RRSP component of some $8,300 as well as a cash surrender value of approximately $9,600. Mr. Polson will roll over one-half of the RRSP to Ms. Polson's RRSP and will credit to her one-half of the plan's cash surrender value, subject to the accounting and adjustment for Mr. Polson's payments.

[18] Mr. Polson retains the family's 14-foot boat and equipment and will credit Ms. Polson with its half value of $750. The parties' credit at Central Hardware will be divided equally, each receiving a credit of $1,193.46. Ms. Polson will credit $1,500 to Mr. Polson, the amount due regarding a $3,000 cheque utilized by Ms. Polson.

[19] Basic to the determination of spousal and child support is the calculation of Mr. Polson's income which Mr. Fiddes contends has averaged $265,000 annually in the past three years. Jerry Spice, a chartered accountant, arrived at the $265,000 figure by averaging the sum of Schapol's profits plus the salaries paid to Mr. and Mrs. Polson for the three years to January 2, 2000. Mr. Polson says he earns $60,000 annually.

[20] In urging this court to establish Mr. Polson's income at $265,000, Mr. Fiddes relies upon ss. 16 and 18(1)(a) of the Federal Child Support Guidelines ("the Guidelines") which address the determination of the payor's annual income for child support purposes. Mr. Fiddes submits that the Guidelines are also applicable for the determination of income for spousal support purposes, a position which I do not necessarily accept. However, the determination of Mr. Polson's income is necessary to address the issue of child support. The relevant provisions of the Guidelines are as follows:

[21] Mr. Fiddes contends that Mr. Polson's income should be calculated under s. 18(1)(a) by including Schapol's pre-tax income rather than be limited to the taxable income under s.16. Mr. Polson's tax returns show income of $48,900 in 1995, $40,200 in 1996, $24,200 in 1997, $33,200 in 1998, and $60,400 in 1999. Mr. Fiddes submits that Mr. Polson's tax returns ignore the advantages received from Schapol which he describes as paying for a "plethora of personal or family expenses" including the use of motor vehicles, gas and vehicle maintenance costs, hotel room charges, a cellular telephone, and part of the rent in the home where Mr. Polson resides and in which Schapol's office is located. Mr. Fiddes says Mr. Polson's true income exceeds that of his taxable income and is reflected in the 1995 purchase of a 1995 Mustang for Ms. Polson, extensive renovations to the family's home in 1996, and the purchase of a recreation cabin at Lac des Roches, the latter bought at Ms. Polson's instigation, but little used by the family.

[22] Mr. Fiddes submits as applicable Sachs J.'s analysis in Sarafinchin v. Sarafinchin (2000) Carswell Ont 2640 (Ont. S.C.) which concluded Mr. Sarafinchin's income for child support purposes required the inclusion of the personal benefits Mr. Sarafinchin received from companies he controlled. Sachs J. found that Mr. Sarafinchin, who admitted an income of $80,000, while declaring an income of $60,000 on his tax return, actually received an income for Guideline purposes of $384,500 a year.

[23] Sachs J. reviewed Mr. Sarafinchin's life-style which included the use of a Toronto condominium, a substantial waterfront cottage, a ski chalet, a $32,000 boat, membership in two golf clubs, a yacht club, a fitness club and a ski club, and several corporate credit cards. Although the analysis is of some assistance in considering Mr. Polson's situation, there is no similarity between Mr. Sarafinchin's life-style and that of Mr. Polson. Mr. Sarafinchin lived as might be anticipated with a $384,500 income, whereas I find Mr. Polson's life-style reflects a $60,000 income, not the $265,000 submitted by Mr. Fiddes.

[24] Schapol's accounting records indicate the company's accountant attributed back to Mr. Polson as his personal responsibility many expenses initially billed to the company. Mr. Polson's gas, motor vehicle and other expenses reflect a business use, although I accept there might be some minor personal benefit to Mr. Polson. Nor do I find that the home renovations, the Mustang automobile and the recreation cabin suggest benefits from which I might attribute to Mr. Polson an income greater than that declared on his tax returns. Such a conclusion is required before turning to s. 18 of the Guidelines and the availability to Mr. Polson of all or part of Schapol's income.

[25] To conclude that Mr. Polson earns $265,000 annually would result in the court making what I perceive to be a significant intrusion into Schapol's business operations, a topic addressed in L.S. v. E.P., [1997] B.C.J. No. 2206 (B.C.S.C.). In his decision Mr. Justice Pitfield considered the plaintiff's allegation that the defendant's tax return did not properly reflect his income. Pitfield J., in rejecting the plaintiff's submissions that the income from the defendant's corporation ought to be included as income for child support purposes, stated at paras. 42 - 47:

[26] To require Mr. Polson to pay child and spousal support based on an income of $265,000 would result in a radical change to Schapol's business operations, as Mr. Polson would be required to withdraw from the company monies needed to pay support. These monies traditionally remained in the company for its operations, this business decision allowing Schapol to finance itself rather than having to operate with borrowed funds. The savings, the balance of which varies widely over the fiscal year depending on the company's needs, will be reduced substantially by the transaction described earlier which will see the payment to Ms. Polson of her half interest in the company.

[27] I am unable to infer that Mr. Polson has structured his compensation in an attempt to defeat the Guidelines or that he obtains a subsidy through corporate disbursements. Sachs J. noted at para. 60 of Sarafinchin:

That, too, is my mandate. I repeat my conclusion that Mr. Polson's annual income is $60,000 and it is upon that amount which I address spousal and child support.

[28] Ms. Polson seeks spousal support pursuant to section 15.2 of the Divorce Act, R.S.C. 1985, c. 3 which provides in ss. (4) that:

Subsection (6) provides that an order for spousal support should:

[29] The parties had a traditional and lengthy relationship lasting some 25 years. Although Ms. Polson worked briefly before and after marriage, her role within the family was primarily that of homemaker, looking after the home and the children, while Mr. Polson devoted his efforts to providing financially for the family.

[30] Ms. Polson's responsibilities for the parties' three children have diminished considerably. The eldest daughter, Amber, lives and works in Kelowna. Erin, the second child, will graduate from university in May 2001, and Lee, 19, commences a 75-week course in Calgary in November 2000. Ms. Polson's reduced responsibilities for the children since 1998 when the parties separated, placed her in a position to address her future. Regrettably, she did little with this opportunity and only this year did she take steps to upgrade her education in a move towards economic self-sufficiency, although she is still unclear about her plans. Ms. Polson anticipates her part-time employment will continue while she attends college.

[31] Ms. Polson has suffered an economic disadvantage in that she has not been able to obtain the benefits of work experience, training and job security during the marriage, however, those disadvantages are tempered by the advantages she obtained from the marriage. She ends the relationship with a $525,000 payout from Schapol, a $104,500 interest in a home, and RRSPs worth some $55,000.

[32] Ms. Polson at 44 years of age is young enough to obtain training to improve her future employment opportunities although the attainment of self-sufficiency will be more difficult given her age and the time it will take to train and obtain employment. Ms. Polson will require spousal support for several years, with the support level reflecting Mr. Polson's $60,000 annual income and the income which Ms. Polson ought to earn from the $450,000 she can anticipate investing from her share in Schapol. I use the $450,000 figure on the premise that Ms. Polson will not spend her capital to purchase Mr. Polson's interest in the family home. Ms. Hyslop suggested the $450,000 capital should produce income of $31,500 at a seven percent return or $36,000 at an eight percent return, but I anticipate an annual income of about $25,000 on a five to six percent return, or about $2,100 a month.

[33] In her financial statement sworn August 2, 2000, Ms. Polson claimed annual expenses totalling $68,200, a figure which includes $8,400 for housing and utilities, $12,000 for furnishings and equipment, $7,500 to operate two vehicles, $3,300 for dental care, $6,000 for clothing, entertainment and gifts, $11,200 for the children, and $5,000 towards her RRSP, the latter figure being claimed in spite of her showing no income upon which to base an RRSP contribution. I consider that her annual expenses on a more practical level should be in the range of $48,000, which would provide her with a comfortable life-style.

[34] Taking into account the $25,000 received through her capital, I find she will have a shortfall of some $23,000 based on expenses of $48,000 a year. Ms. Polson works part-time and, although the details of her earnings are sketchy, I find that she will earn approximately $4,000 a year, or $334 a month, from part-time employment. The remaining $19,000 a year in Ms. Polson's expenses will be met in the immediate future by Mr. Polson paying spousal support of $1,600 a month, commencing November 1, 2000, and payable half on the first day of the month and half on the 15th day of each month. Given the circumstances I am not prepared to set a termination date for the payment of spousal support, however Mr. Polson may apply for a review of this support any time after May 16, 2002.

[35] Ms. Polson, for so long as she receives spousal support, will deliver to Mr. Polson copies of her income tax returns, together with all attachments, within 30 days of the returns being filed with Revenue Canada and, in addition, will deliver to Mr. Polson copies of Revenue Canada's assessments or reassessments of her income tax.

[36] Ms. Polson also raised the issue of a $3,300 debt for dental care. I understand that a portion of this debt can be paid through Mr. Polson's dental plan and Ms. Polson will be responsible for the remainder. She has sufficient funds to make such payment.

[37] Ms. Polson advances a claim for child support for Erin and Lee, who are both over the age of 19 years, with Erin attending university and Lee set to commence at DeVry in November 2000. Section 3(2) of the Guidelines provides:

[38] Ms. Polson seeks child support based on Mr. Polson's purported income of $265,000 a year which she says is sufficient to enable him to pay $1,320 a month support for Erin until she graduates. As I understand counsel's submissions, Ms. Polson says Mr. Polson should pay Lee's $19,000 tuition at DeVry plus $625 a month less any sum that Lee might earn from part-time employment when attending DeVry. I previously concluded that Mr. Polson's annual income is $60,000, not $265,000, and I find that with this income he cannot meet Ms. Polson's expectations regarding child support. Ms. Polson, who did not express a willingness to support either child, said there was no need for Erin and Lee to take student loans.

[39] Mr. Polson testified that he assists Erin with her financial needs at university and will continue to do so when she seeks assistance, but prefers to continue dealing with her directly. Ms. Polson acknowledged Mr. Polson and Erin have made their financial arrangements directly in the past. Erin did not testify, although a list of her monthly expenses totalling $1,320 was filed. Mr. Polson is prepared to pay support to Lee in the amount of $501 a month while he attends DeVry, that being the sum he presently pays Ms. Polson for child support.

[40] Mr. Polson noted that both Amber and Erin received financial support from the family when attending college and that both young women financed their education with work, family support and student loans. Mr. Polson testified, and I accept, that both he and Ms. Polson have encouraged and supported their children in furthering their education. I also accept that there is an expectation that the children will bear some of their educational costs through part-time employment and student loans. Mr. Polson believes that the children's participation in financing their education encourages them to work harder on their educational goals.

[41] Given Ms. Polson's present lack of income as she furthers her education, the reality of any support order I make for Erin and Lee under s. 3(2)(b) of the Guidelines which I find is the applicable provision in the circumstances, is that Mr. Polson will pay such support.

[42] I concur with the conclusion of Mr. Justice Pitfield in Whitley v. Whitely, [1997] B.C.J. No. 3116 at para. 21 that the opportunity to pursue post-secondary education is a privilege and not a right. He further found, as I find in the instant case, that there was no reason why a child:

[43] I conclude that both Erin and Lee are entitled to support from Mr. Polson, but in a manner which reflects Mr. Polson's financial capacities, the previous support arrangements made between the parents and the children, particularly Amber and Erin, the children's abilities to contribute to their education and the availability of student loans.

[44] I am not prepared to make a support order for Erin, given the previous arrangements between Mr. Polson and Erin in which she has requested assistance from her father and it has been provided. Between her employment savings and $8,800 in student loans, it appears that Erin will be able to pay most if not all of her expenses while attending university. However, I anticipate that she might incur further costs before finishing her degree next spring and it is open to her to request support from Mr. Polson and, if necessary, to apply for support pursuant to the Divorce Act.

[45] The course at DeVry will take Lee 75 weeks, or 18 months, and the tuition will cost $19,000, plus living costs of approximately $700 a month or $12,600 over the 18 months, for a total of $31,600. The course runs without a break between the five semesters, limiting Lee's earning ability to part-time employment while attending DeVry. Lee anticipates employment will provide him with $475 a month, or $8,550 over the 18-month course, and he has savings of approximately $1,000, a gift of $1,000 from his grandfather, and student loans of $8,500, for a total of about $19,000 of the $31,600 cost of attending DeVrey, leaving a shortfall of some $12,600.

[46] I find Mr. Polson will have to bear this $12,600 shortfall given Ms. Polson's inability to contribute, the timing and location of the course, Lee's restricted student loan entitlement, and his lack of employment opportunities. Lee seeks the support payable by his father be paid directly to him, however, given the sometimes difficult relationship between he and his father as reflected in his refusals both to discuss DeVry with his father and to show his school marks to his father, I conclude that Mr. Polson will satisfy his support obligations to Lee by payment to DeVry of the tuition costs for the first three semesters, plus a portion of the fourth semester, up to a total amount of $12,600. Mr. Polson's obligation to pay support as outlined will continue only for so long as Lee is attending at DeVry. Mr. Polson has agreed to continue child support of $501 a month for Lee payable to Ms. Polson until October 31, 2000.

[47] The divorce order sought will be determined at such time as I am advised by counsel in a joint submission that the issue ought to be resolved. I note that this court on April 19, 1999, found there to be no reasonable prospect of reconciliation between the parties.

[48] In the normal course I would anticipate directing that the parties should bear their own costs, subject to certain specific directions. To order otherwise might alter the financial balance between the parties which I have sought to achieve by this judgment. The order that each party bear their own costs would reflect the extensive cooperation between the parties which, as I understand Mr. Fiddes, left outstanding only the issue of Mr. Polson's income, an issue on which Mr. Polson was successful. Schapol has paid the real estate appraisals, Mr. Spence's valuation and the Ritchie Bros. equipment appraisal. The furniture appraisal, the Carson report, and the second equipment appraisal might well be shared equally between the parties, as might the daily hearing fees paid to date by counsel for Mr. Polson.

[49] However, having expressed the foregoing thoughts on costs, I acknowledge that although Ms. Hyslop has addressed of costs, Mr. Fiddes wished to address the issue after reviewing my Reasons. He has 14 days following the filing of these Reasons to make a submission on costs, with Ms. Hyslop to file her response within seven days of receiving the submissions from Mr. Fiddes.

"R.M.L. Blair, J."
The Honourable Mr. Justice R.M.L. Blair

December 5, 2000 -- Addendum to the Reasons for Judgment issued by Mr. Justice R.M.L. Blair advising that in my judgment filed October 6, 2000, I invited counsel to address the issue of costs. After reviewing their submissions, I conclude that the parties should bear their own costs, but that the costs of the following be shared equally:

1. the furniture appraisal;

2. the Carson accounting report;

3. the second equipment appraisal;

4. the daily hearing fees;

5. the fees payable to the accountants, Messrs. Vanderbugh and Carson; and

6. the fees and disbursements incurred completing the arrangements referred to in Mr. Carson's letter of September 7, 2000, including the reasonable fees and disbursements to incorporate a company for Ms. Polsons.

Ms. Polson will be solely responsible for the payment of the account rendered by the accountant Jerry Spice.

"R.M.L. Blair, J."
The Honourable Mr. Justice R.M.L. Blair