Trial & Chambers Decisions
Garry K. Thomas has appeared as lead counsel in many important decisions in BC Family law, including trial and appeal successes involving custody, income, support, division of assets and estate litigation. Several cases below demonstrate nuanced use of the Rules of Court to obtain significant results for clients.
Our Trial and Chambers cases argued by Garry K. Thomas (née Bhate) include:
Agar v Healey 2018 BCSC 991
Spousal Support, Child Support, Division of Family Debt
We acted for the Claimant in this case. At this summary trial, our client sought prospective and retroactive spousal support, child support and a division of family debt, among other orders. The Respondent took the position that his actual income was only $78,000.00, which would result in very little monthly spousal support being paid to the Claimant. We successfully argued that income ought to be imputed to the Respondent in the amount of $123,901.11, as this figure represented the amount of income the Respondent had the ability to earn based on his earnings in previous years. Based on this figure, our client was awarded $30,770.00 in retroactive spousal support and $1,332.00 in monthly spousal support. Our client was also awarded her costs at Scale B.
Kemp v Kemp 2018 BCSC 381 (Garry K. Thomas)
In this case, the calculation of income for the purpose of spousal support was the main issue; specifically, whether the other party was entitled to have her spousal support calculated on the basis of our client’s significant increase in income after separation. The trial judge found that the quantum of spousal support would be limited to the amount our client earned in the last year prior to the separation. This was a favourable result for our client because it meant that our client’s post separation increases in income would not form part of his income for the purposes of paying spousal support.
Waldron v Wong 2018 BCSC 418
We acted for the Respondents in this case. The Claimant filed a lawsuit, alleging that one of the Respondents was unjustly enriched in light of the contributions the Claimant made to the Respondent’s home over the span of 17 years. The Claimant filed a Certificate of Pending Litigation against the Respondent’s home and sought an order at trial that the Respondent’s home be sold. At trial, we successfully argued that the Claimant’s lawsuit should be dismissed, given that the Claimant had enjoyed the benefit of living at the Respondent’s home for numerous years and never paid market rent. The Claimant’s claim for an interest in the Respondent’s home was dismissed.
Cao v Chen 2018 BCSC 786 (Garry K. Thomas)
Family Law, Divorce, Division of Assets
In this case, the Claimant seeks to litigate family law issues in British Columbia – divorce, division of assets – that have already been decided by a foreign court. Our client seeks to have that foreign divorce decree recognized at trial. We were successful in arguing before the Court that the Claimant should be the first to address the court at the trial of the recognition of the foreign divorce decree because there is a legal presumption in favour of the validity of a foreign divorce decree, and therefore the legal onus is on the Claimant to rebut that presumption.
D.L. v J.L., 2017 BCSC 801
In this summary trial, we successfully argued that the Claimant was intentionally under-employed. We successfully argued for income to be “imputed” to him based on what he could earn if he was working to capacity. We also successfully opposed the Claimant’s claim for spousal support.
Boardwalk Contracting Inc v. Naples 2017 BCSC 1367 (Garry K. Thomas)
Asset Preservation, Case Management
In this complex, high-conflict file, we appeared before the court, before trial, to address matters related to asset preservation and case management in two separate lawsuits – a family law lawsuit and a civil lawsuit. We were successful in obtaining court orders related to asset preservation, and document disclosure, and court orders that enabled our client to deal with family property before trial. We also successfully opposed the other party’s application to have both lawsuits heard at the same time. The factual background allowed the court to appreciate that the civil action was an ill-conceived vehicle that ultimately resulted in that action being stayed, that is stopped.
KMF v SMF 2011 BCSC 1563 (Garry K. Thomas)
Child Support, Spousal Support
This case involved the determination of a business owner’s income for the purposes of calculating child support and spousal support. We were successful in arguing that based on the facts of this case the court should consider and add to the party’s T-4 income the pre-tax corporate income and as well non-arms length transactions without value to the company and inappropriate or invalid expenses. All such amounts were added to the income of the payor party. We were successful in obtaining retroactive child support, retroactive spousal support and indefinite prospective spousal support for our client.
Dykman v Dykman 2011 BSCC 1169 (Garry K. Thomas)
Spousal Support, Child Support, Special Expenses
This case had numerous factual and legal issues including the determination of the appropriate date for the valuation of a business, the determination of the income of the husband businessman – where he obtained his income through an incorporated business – retroactive spousal support, child support and special expenses, and prospective spousal support, child support and special expenses.
Fitzgibbon v Fitzgibbon 2013 (unreported) (Garry K. Thomas)
In this case we successfully obtained an order on behalf of our client that the other party’s parenting time with the child be professionally supervised on an interim basis in light of certain recent events.
Janis v Janis 2013 BCSC 116 (Garry K. Thomas)
On a procedural point, in this case, the other party sought permission from the court to obtain an updated joint expert business valuation report before trial. We successfully argued that the preparation of an updated joint business valuation report was not necessary. Further, this case stands for the proposition that Guideline Income Reports unlike joint valuation reports, do not require the reports to be requisitioned on a joint basis. That represented a significant cost savings to our client. The court said the following:
In my respectful opinion, and as submitted by Mr. Thomas on behalf of the respondent, the issue of Guideline income for purposes of support calculations is not a “financial issue” as that term is defined by Rule 13-3(1). Accordingly Rule 13-3(3) provides that the claimant is at liberty to retain an expert of her choice and to tender such evidence at trial subject to the normal rules and notice provisions regarding expert reports and evidence.
We were also successful in contesting the other party’s request that our client produce various documents that we deemed were irrelevant to the issues in dispute.
Ghuman v Ghuman 2014 BCSC 254 (Garry K. Thomas)
Division of Family Property, Determination of Family Debt
In this case the main issues in dispute were the division of family property and the determination of family debt. The other party alleged that he had incurred substantial debt primarily related to the construction of the former matrimonial home by way of mortgages and by way work done by friends and associates who had filed lien claims. The other party sought an order that he be reimbursed such amounts, which were significant. Our client saw the suspect debts as a means by the other party to obtain an improper reapportionment of family assets. We were successful in convincing the court that the alleged debts were not family debts, and additionally, the court ordered that the amounts received by the other party related to the suspect debts had to credited and paid to our client. We were also successful in obtaining an award of costs for our client as the court accepted our argument that the case was of more than ordinary difficulty in light of the other party’s disregard of various court orders and non-disclosure of documents.
French v French 2013 BCSC 837 (Garry K. Thomas)
Enforceability of Marriage Agreements, Division of Family Assets
This case involved the enforceability of three marriage agreements that restricted or eliminated our client’s interest in certain family assets including two valuable commercial properties located in Vancouver. We successfully argued at trial that none of the agreements were valid and enforceable and as a result the court should decide the case on the basis of the governing family law legislation at the time – the Family Relations Act. The court agreed. In result, the court ordered that all family assets should be divided equally. Additionally, a result of the marriage agreements being found not to be valid or enforceable, our client shared in the increase in value of two very valuable commercial properties in Vancouver. We were also successful in obtaining an award of not just ordinary costs of the proceeding but also increased costs of $5,000 for our client due to the other party’s failure to provide accurate financial statements and fully disclose his financial records.
Squair v Squair 2015 BCSC 2321 (Garry K. Thomas)
Child Support, Special Expenses, Division of U.S. Social Security Entitlement
In this case we obtained retroactive child support for our client and retroactive special expenses and a division of the other party’s U.S. Social Security entitlement.
Boski v Boski 2014 BCSC 1599 (Garry K. Thomas)
Parenting Arrangement, Division of Assets, Child Support, Spousal Support
This case involved the determination of parenting arrangements, division of assets, child support and spousal support. We were successful in obtaining an order that our client have sole custody of the children and an order that the parental responsibilities set out in section 41 of the Family Law Act be allocated to our client. With respect to the division of assets, one of the main issues was whether the other party’s inheritance received during the marriage was a family asset. Normally, inheritances are treated as a personal and not a family asset. However, we were successful in arguing that the financial assets making up the other party’s inheritance was a family asset that should be equally divided. We were also successful in obtaining child support and spousal support for our client, in addition to an award of special costs which are awarded only in exceptional circumstances to punish a party’s conduct in the litigation.
D.M.D v R.L.D 2015 BCSC 2332 (Garry K. Thomas)
Determination of Income, Child Support
The issues in this case included the determination of income of both parties and the amount of child support payable for a child of the marriage and a step-child. The other party sought an order at trial that significant income be imputed to our client – a high-earning professional – but was not successful. In fact, the court found upon review of the facts that it was appropriate to impute income to the other party – not our client – because she was intentionally unemployed. With respect to child support for a step-child, the issue for the court’s determination was the obligation of a high-earning step-parent to pay support for a step-child. While the court did order our client to pay child support for his step-child the amount was relatively modest in comparison with what the other party sought our client to pay.
Read the press coverage of this case by CBC news
Ling v Reely 2015 – unreported
One of the main issues in this case was the guardianship of the parties’ young child. Our client, the father, sought a declaration at trial that he was a guardian of the child because he ‘regularly cared for the child’, or in the alternative he sought an order from the court that he be appointed a guardian of the child. We were successful on both grounds.
J.AF. v J.J.F. 2016 BCSC 300 (Garry K. Thomas)
Provisions of a Marriage Agreement
In this case at trial we successfully set aside provisions of a marriage agreement that our client was compelled to sign by the other party in an attempt to reconcile. The court found that our client was manipulated, misled and pressured into signing a marriage agreement without having meaningful legal advice. As a result, the family assets were divided equally, including the other party’s alleged ‘excluded property’, and the court recognized our client’s strong claim to compensatory and need-based spousal support should not be restricted to the amounts set out in the marriage agreement.
Ashak v Ashak 2016 BCSC 941
Spousal Support, Child Support
In this case there were several issues for the court’s determination including our client’s entitlement to spousal support. We were successful in obtaining a child support order for our client, proving our client’s entitlement to compensatory spousal support and obtaining an order that the other party must maintain a life insurance policy with our client designated as the beneficiary (in trust,) while he had an obligation to pay child support.
Bailie v Bailie 2010 BCSC 946 (Garry K. Thomas)
In this case almost immediately after separation the husband transferred title to the former matrimonial home to a third party. We represented the wife who filed a law suit against her former husband and the third party. We were successful at trial in having her interest in the home not only protected but the home was also re-conveyed to her. Further, the third party appealed the result but we were successful also at the B.C Court Appeal in upholding the decision. The case was argued on the basis of family law principles and the law of fraudulent conveyances.
Chand v I.C.B.C. 2009 BCSC 1720 (Garry K. Thomas)
This case at both the level of the Masters Chamber and at the Judges’ Chambers level showed what attention to detail can achieve. That is, the defendant by its failure to provide documents as required by a court order had its Statement of Defence struck. Although the decision was overturned on appeal, throughout the Claimant was successful in terms of costs.
Reis v Bucholtz 2008 BCSC 1156 (Garry K. Thomas)
Child Custody, Common Law Marriage, Child and Spousal Support
This case dealt with custody, where our client obtained primary residence of the children. The case also shows how we successfully marshaled both expert evidence and other testimony to convince the court what the payor’s self-employed income was for the purposes of calculating child and spousal support. The case also shows how we retroactively obtained child and spousal support in a common-law marriage.
Frith v Frith 2007 BCSC 1236 (Garry K. Thomas)
In this case costs were awarded to our client who was successful in enforcing a court-ordered parenting schedule when the other party failed to comply with the court order and was found in contempt of court.
Watson v Watson 2006 BCSC 256 (Garry K. Thomas)
Child Support Decision Regarding American Citizen
In this case we acted for an American father living and earning his income in the United States. The former wife sought to impute considerable income to the father based on a number of factors. We were successful in convincing the court not to do so. The court refused to impute income to our client for the period in question.
Sherrill v Fahrni 2004 BCSC 1835 (Garry K. Thomas)
Decision Resulting in Indefinite Spousal Support
This case dealt with the determination of a self-employed businessman where most of his income was earned through a personal services corporation. We employed a business valuator to not only value the business but we had the same business valuator provide an opinion as to the real or effective income that was available to the party to pay child and spousal support. The other part party attempted to file late their own business value report but the same was held to be inadmissible. However, the other party was able to file their competing income report but after cross examinations of the respective experts and the parties, the court agreed with the submissions made by our client. We were successful in arguing that income be imputed to the business owner and as a result indefinite spousal support was ordered.
Garry K. Thomas has appeared as lead counsel in many important decisions in BC Family law, including trial and appeal successes involving custody, income, support, division of assets and estate litigation. Several cases below demonstrate nuanced use of the Rules of Court to obtain significant results for clients. Our Appeal decisions include:
Siebel v Davis 2017 BCSC 847 (Garry K. Thomas)
Appeal Regarding Unsupervised Visitation Rights
This was a successful appeal of a Provincial Court Order that dismissed our client’s application for unsupervised contact with his son, among other issues, following a three-day hearing. The appeal judge accepted our argument that the trial judge made palpable and overriding errors, such as finding that there was hostility between the parties that would justify a continuation of supervised contact, when this was not the case. The appeal judge also accepted our argument that the trial judge committed an error by focusing too heavily on how often our client was able to see his son – which was somewhat limited due to travel costs – rather than the quality of the visits, as summarized in the contact supervisor’s notes. In the result, the appeal judge set aside the order for supervised contact and our client was awarded his costs. Our client now exercises contact without the need for supervision.
Reid v Reid 2017 BCCA 73 (Garry K. Thomas)
Appeal with Regards to an Increase in Child Support due to the Sale of a Company
This appeal involved whether the failure of one party to provide financial information and documents during the negotiation phase of a separation agreement and at the time that the agreement was signed would have the impact of allowing the non-informed party to revisit the support provisions with respect to child and spousal support. Further, the successful appeal also included a detailed review of the terms of the particular agreement, especially where child support was concerned. The BCCA ruled that as the appellant was due significant child support arrears by reason of the fact that the respondent had earned several million dollars from the sale of a company that he operated during the marriage and which company he “purchased” from our client as part of the post separation agreement process. The specific issue on appeal was whether the terms of the parties’ separation agreement obligated the payor to disclose increased Guideline income and adjust his child support payments accordingly. The trial judge found that the terms of the separation agreement precluded adjustment for changes in income. On appeal, we successfully argued that the trial judge erred in his interpretation. The Court of Appeal ordered the payor to pay increased child support for the particular and significant income year. The appellant was also awarded both her appeal costs and the cost of the trial, which were very significant in value.
Kopp v Kopp 2012 BCCA 140 (Garry K. Thomas)
Appeal for Pre-Corporate Tax Earnings and Personal Tax Return
This case involved two issues. The first issue was the interpretation to be given to two poorly drafted provisions regarding deferred asset payment clauses. The second issue involved the extent to which our client’s income was higher than his T-4 Line 150 income by reason of the benefits and potentially available pre-corporate tax earned income. The law allows courts to potentially add to a business owner’s income over and above his T-4 income all or a part of what are referred to as pre-corporate tax earnings of the business for support purposes. The business owner has the obligation to provide evidence as to why all or some of the pre-corporate tax earnings are not “available” to the business owner. In this case the Chamber’s Trial Judge had found that our client’s income by reason of his operation through a solely owned business was much higher than his Line 150 income as set out in his personal tax return. At the appeal, based on the evidence that indicated that much of the pre-corporate tax earnings and benefits were not available to the client, the Court of Appeal significantly reduced the income amount imputed to him. On the other issue, the three judge panel split 2-1 with the dissenting Justice writing a very compelling rebuttal.
This was a factually involved case. The parties had separated years before either one of them went to court for a divorce or to otherwise deal with a division of assets. At separation, the parties mostly on their own, and at times with legal assistance, attempted to negotiate a separation agreement. They were unable to come to agreement. However, our client had transferred to his former wife the matrimonial home but he received no consideration for the transfer. Later, after a number of years, he applied to receive his pension. He received his pension for a number of years before his wife commenced legal action. At trial, the judge held that our client had to compensate the former wife for all the years he had received his pension even the years before any court action had been commenced. That order but for a successful appeal would have cost the client significant funds. On appeal, the Court of Appeal agreed with us that the pension payments could not in law be shared before the initial section 57 date, which in this case was the date of divorce. That result saved the client his retirement funds. The appeal deals with what are referred to as compensatory orders in the Court of Appeal and when such orders are and are not available. The result was of significant benefit to the client.
Reis v Bucholts 2010 BCCA 115 (Garry K. Thomas)
Appeal of Court Decision Regarding Spousal Support
The Court of Appeal upheld the trial decision. The decision also confirmed that retroactive spousal support in B.C. is premised on the same principles as retroactive child support, as declared by a previous Supreme Court of Canada case.
L. v D. 2011 BCCA 66 (Garry K. Thomas)
Successfully Appealed Supreme Court Decision
This appeal involved a detailed appreciation of procedural rights to a party who failed to show or attend court when they had intended to do so. In this case, the appellant had failed to attend a scheduled court proceeding but thereafter had made efforts to contact the court to provide a remedy. The court at the level of the Registrar’s decided against the client and she then appealed to a Supreme Court Judge. That judge affirmed the registrar’s decision. It was at that stage that this office was retained to run the appeal. On behalf of the Appellant we successfully appealed a decision made by the Chief Justice of the British Columbia Supreme Court on a Chamber’s Application.
Frith v Frith 2008 BCCA 2 (Garry K. Thomas)
Successful Appeal of Decision
In this case we successfully opposed an appeal of a decision made in Chambers where the other party was found in contempt of court for wrongly denying our client access to his two daughters.
Mirza v Mirza 2007 BCCA 106 (Garry K. Thomas)
Fair Separation Agreement over Tax Issues
The Court of appeal overturned a trial decision concerning what parties could accomplish on their own through a separation agreement where they dealt with the division assets. Part of the decision allows parties to treat such things as a pension not solely as an asset to be divided but an income stream. The decision also shows that courts are concerned about fairness and related tax issues.