CA018354 Vancouver Registry Court of Appeal for British Columbia BETWEEN: KRISTINE GRACE STUART also known as KRISTINE GRACE SANDBERG PLAINTIFF (APPELLANT) AND: JOHN WILLIAM STUART DEFENDANT (RESPONDENT) Before: The Honourable Chief Justice McEachern The Honourable Madam Justice Southin The Honourable Mr. Justice Gibbs P. W. Hansen Counsel for the Appellant G. B. Kaine and I. A. Pietrow Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia February 12 & 13, 1996 Place and Date of Judgment: Vancouver, British Columbia March 14, 1996 Written Reasons by: The Honourable Madam Justice Southin (page 15, para. 41) Concurred in by: The Honourable Mr. Justice Gibbs Dissenting Reasons by: The Honourable Chief Justice McEachern Court of Appeal for British Columbia KRISTINE GRACE STUART also known as KRISTINE GRACE SANDBERG v. JOHN WILLIAM STUART Reasons for Judgment of Chief Justice McEachern 1 I regret that I am unable to agree with my colleagues about a number of matters on this appeal, particularly spousal maintenance. 2 The facts of this case are somewhat unusual. The parties were married in 1982 and separated in 1992. They have three children now aged 12, 9 and 5 years. At the time of trial the wife was 37 and the husband 39. 3 Early in the marriage, the husband's father died intestate. For several years, the estate was burdened with debts and litigation. In 1989, however, following a major settlement and the sale of some assets, it became clear that the husband had inherited interests in a number of income-earning assets. These assets were so significant that he informed his wife that they were "set for life." It now appears that the husband's assets have a value of about $1.5 million, which produces a secure annual disposable income of up to $90,000 before payment of maintenance and tax. The evidence is that his taxable income is less than the amount just mentioned, but because of depreciation on the capital assets, his actual income is in that range. Although this depreciation might eventually have to be repaid, this repayment may be offset, in part or entirely, by the enhanced value of the properties. 4 In 1984, the Stuarts bought a home for $106,000, financed largely with funds borrowed on the security of the husband's further estate interests. The home was owned in joint tenancy with the wife. It now has a value of approximately $220,000. In 1989, the husband paid off the mortgage of the family home with $100,000 received from the estate. 5 At the time of their marriage, the wife was employed as a swimming pool director. The husband was not employed at the date of their marriage and remained deliberately that way at least to the date of trial. He has a commerce degree with a major in Urban Land Economics which qualifies him to be licensed as a realtor. 6 In 1990, it became apparent that the eldest child was suffering serious behavioral problems that made it necessary for the wife to resign her position. The wife testified that at that time she was exhausted and her life was chaotic. She expected that she would be out of the work force for about a year, but her sons condition did not improve. When she did attempt to return to work, she found that she was not easily employable. She began to upgrade her education, and is continuing to do so. 7 From 1990 to the date of separation in 1992, the husband supported the family from his estate income. 8 The trial judge ordered: (1) that the wife was not entitled to an interest in the husband's inherited assets; (2) that the family home be divided equally. No order was made for sale. Instead, the disposition of this asset was left to the parties to resolve, or to be considered upon a further application; (3) that the husband pay the wife maintenance in the sum of $750 for each of the three children, and $1000 for one year to be reviewed "related to her return to employment"; (4) that each party pay their own costs. 9 This appeal was then launched by the wife. In addition, both parties applied for a review just before the expiration of one year: the husband to obtain an order for sale of the home; the wife for a stay respecting the sale of the home, and for increased maintenance. 10 A different judge heard those applications and increased the child and spousal maintenance to $800 each, and $1,200 per month without a time limit, respectively. The judge further ordered that the family home be listed for sale with joint conduct of sale, but stayed that order until March, 1996, in order to give time for this appeal to be heard. I note that the review judge made the order for sale because he considered that question to have been decided by the trial judge. He made no order for costs on the husbands application, but awarded the wife 50% of her costs on the application for maintenance. 11 The husband has appealed against the review order, seeking the elimination of both the increased maintenance and the stay order on the sale of the home. The wife has not cross-appealed. In her factum on that appeal, the wife only asks that the appeal be dismissed. Unfortunately, that appeal was not brought on to be heard with this one as it should have been. That other appeal has not been set for hearing. 12 With respect, I cannot agree with my colleagues that the original order for spousal maintenance is moot. I regard the review order, insofar as maintenance is concerned, as an adjustment to the order under appeal as authorized by the trial judge. Spousal maintenance may be decided in this appeal particularly as the wife has not appealed against the review order. Neither, on this appeal, does the wife seek any further adjustment in the amount of children's maintenance ordered on the review. 13 I turn then to consider the issues now under appeal. The Husband's Inherited Assets. 14 I agree with my colleagues that the husband's inherited capital assets should not be designated family assets in the particular circumstances of this case, mainly because the income from those assets was only used for family purposes for a short time. 15 I regard that as a very close call. The income from those assets was used as collateral in the purchase of the family home and to retire the mortgage. The assets producing that income, and the income itself, could have become family assets if they had been ordinarily used to support the family for a longer period prior to separation. The limited extent such income was used for such purposes distinguishes this case from Wallace v. Wallace (21 May 1985) Vancouver D51159 (B.C.S.C.); Starko v. Starko (6 Feb. 1986) Vancouver D51502 (B.C.S.C.) and Tezcan v. Tezcan (1990), 44 B.C.L.R. (2d) 343 (S.C.). Division of the Family Home. 16 I agree with my colleagues that the family home should be divided unequally and vested entirely in the wife. I base this principally upon s. 51 (e) and (f) of the Family Relations Act. I need only mention that the husband has capital assets of about $1.5 million, while the house is the only capital asset the wife will have. She needs to use it to provide shelter for herself and the children. If, for any reason, that home becomes unsuitable she will need its value to provide almost any kind of alternative accommodation. In my view, it would be patently unfair to award a further capital sum to the husband when the wife has the near and long-term needs I have just described. Compensatory Maintenance 17 The controlling factors on the issue of maintenance in this case are the familys needs and the husbands substantial income from his capital assets, plus the income he could earn if he chose to work (which must be attributed to him for this purpose). It must be remembered that there are three children and a former spouse on one side of the equation, and only the husband on the other side. Unlike most family law cases, this is one where there is enough money for the court, consonant with Moge v. Moge, [1992] 3 S.C.R. 813, to give effect to compensatory features in the overall disposition of this appeal to reflect the economic disadvantages suffered by the wife by the marriage and its breakdown. 18 In this respect, I do not read either the pleadings or the decision of the Supreme Court of Canada in Moge v. Moge as narrowly as my colleagues. 19 As to the pleadings, Madam Justice Southin has quoted the relevant provisions of the Divorce Act and the Family Relations Act, and I need not repeat them. The wife brought proceedings under both of those statutes. First she brought proceedings under the Divorce Act for a decree of divorce. In her Petition, she claimed spousal maintenance. The divorce was granted. Second, in an action, she also sought the usual remedies provided by the Family Relations Act, including the division of family assets. Both proceedings were before the trial judge. In my view, because she brought proceedings under the Divorce Act, the court is entitled to exercise the corollary jurisdiction found in that Act. The trial judge was not confined to just the Family Relations Act, which provides what L'Heureux-Dub‚ J. in Moge (at pp. 860-61), describes as a strict "self-sufficiency" model. I say this because there will undoubtedly be review applications from time to time, and I wish to record that, in my view, the wife's entitlement should not, subject always to changing circumstances, be determined solely upon a self- sufficiency model. 20 In this case, the wife was the principal breadwinner during the early years of the marriage and left her employment only because it became apparent that the children, particularly the oldest child, needed her attention at home. When that happened, the family began to live on her unemployment benefits and the husbands inherited income. It was her intention to be away from her employment for only one year. The wife gave up her paid employment to take on the responsibility, equal to or greater than that assumed by her husband, of looking after the children. Thus, there is an identifiable past and potential future economic loss arising out of both the marriage and its breakdown: the loss of employment advantages and other satisfying pursuits, the cost of retraining for possible future employment, and the cost of alternative care (day or other care) if she returns to paid employment. 21 The trial judge has found that the wife will probably resume employment; that finding accords with her expressed wishes. I do not consider her early return to employment to be inevitable, as the burdens of child care could cause her to decide that she should remain home for that purpose, especially when one of the children may need her more than the others. It cannot reasonably be disputed that the wife's responsibilities as the primary, and possibly the only, caregiver for three young children will represent a substantial potential for economic disadvantage "arising out of the breakdown of the marriage" and "in relation to [her] former spouse". 22 The question of how trial judges are to introduce the Moge principles into every day family law is not easily answered. This was well analyzed by Newbury J. (as she then was) in Kennedy v. Kennedy (1994), 98 B.C.L.R. (2d) 287 (S.C.), and I shall not repeat what she says there. I add that I find the concept of "compensatory maintenance" to be a difficult one to grapple with. There may be cases where a lump sum additional to conventional maintenance should be awarded on account of lost opportunities, but I do not think the Supreme Court of Canada in Moge intended to confine that judgment so narrowly. In most cases, including even this one, it will be sufficient to recognize compensation in spousal maintenance, perhaps by avoiding self-sufficiency as the only criterion. 23 In the circumstances of this case, therefore, where the husbands income is secure, and his capital is the only present source of income for the payment of maintenance, there is no need to depart from the usual practice of a single award without making an additional lump sum award. At the same time, it is possible to recognize the Moge principles in fixing the quantum of spousal maintenance more generously than would perhaps ordinarily be the case, but without ignoring the expectation that the wife may resume employment if it becomes possible for her to do so. 24 The decision of the wife to return to paid employment or to stay home to look after the children, or to combine these functions in the dynamics of this family, can be made by her alone. She cannot be criticized if she elects to forgo a career in order to stay home and look after the children; this is especially so in a case where the husband has not worked since before the marriage. It hardly lies in his mouth to argue that she should resume paid employment. Periodic reviews are the only way to ensure fairness to the wife, the children and the husband. By all means, the wife should return to employment if she can, and thereby possibly reduce the husbands obligation, but the needs of the children come first and the self-sufficiency provisions of the Family Relations Act take second place to those important considerations. Spousal Maintenance 25 I have concluded that both the original and the review awards of spousal maintenance were inadequate, mainly because they made no allowance for many major items of expense the wife must expect, or for the taxes she will incur on her maintenance award. 26 In 1992 the wife's Property and Financial Statement estimated her minimum requirements at $3,566.74 per month. This assumed that she would be staying in the matrimonial home. She mentioned the inevitable obligation to pay tax on her award which must be included in the amount of her claim. Against that anticipated need, she has been awarded a total of $3,600. The following is a breakdown of her estimate on a monthly basis: 27 Housing - $309.19: Since the separation, the wife has been responsible for house expenses. There is only a $53 allowance for minor repairs and nothing for major repairs, which are inevitable, or for periodic redecorating. Eventually, a new roof will be required and the house will have to be painted from time to time. Water tanks break or wear out, as do furnaces. Everything costs more today than it did in 1992. 28 Automobile - $292.95: There is no allowance for major repairs or replacement of the wife's automobile. 29 Household Expenses - $694.35: The only items claimed are $600 for food and $94.35 for telephone and cablevision. The children will soon need a computer if one has not already been provided. Furniture and equipment replacement are not covered. The generic terms "replacement" and "refurbishing" consume substantial amounts of family income. 30 Medical and Dental - $283.63: The only claims are for medical insurance, dental payments of $72.19 for four persons because there is no dental insurance, and $90 for pharmaceuticals. 31 Children - $857.22: Clothing for three children is claimed at only $127.40, which is grossly inadequate. The balance is for activities. $400 is claimed for child care which would be excessive except that, at that time, the wife was attending educational courses. Any excess on that account could easily be absorbed by a proper allowance for children's clothing. 32 Personal and education - $404.80: This claim includes only only $140 for the wifes clothing. This is clearly inadequate. The balance is $50 for hairdressing, $100 for entertainment, and $114.66 for her education costs. 33 Miscellaneous - $522.60: This item includes $200 for restaurants, some other minor matters and a reserve of $166.47 for vacations. 34 Debts - $247.00: This item is for payment of current credit card expenses only. 35 These items total $3,566.74 without an allowance for income tax. 36 While many families survive on the same amounts or less, it is apparent that the above is a bare-bones budget that is unsuitable for the family of a wealthy man. The wife's budget includes no allowance for major home repairs, car replacement, income tax, savings and R.R.S.P., extraordinary children's medical, dental, school and other expenses, charitable donations and the many other advantages that are common for well-to-do families. 37 On the present awards, which total $3,600, the wife will require $850 each month for income tax, leaving her with $2,750 of disposable income. This, of course, is less than her sparse budget, with no provision for contingencies. I have taken these tax figures from the Coopers and Lybrand 1994 B.C. Matrimonial Tax Tables. I am also concerned that it may be unfair to the wife to load her total maintenance so heavily towards the children so that her own award is disproportionally low but as the children are young, there is no need to revisit that question at this time. 38 Nevertheless, in my view, an upward adjustment of spousal maintenance is indicated. I would increase it so that her total maintenance, for the children and herself will be $4,000 plus the amount of income tax she will be required to pay on full award. 39 I would further direct that the wife's maintenance be payable until further order, and be binding upon the husband's estate if he should predecease her. 40 I would order costs as directed by Madam Justice Southin. "The Honourable Chief Justice McEachern" REASONS FOR JUDGMENT OF MADAM JUSTICE SOUTHIN: 41 This is an appeal from this judgment of the Honourable Mr. Justice Harvey pronounced the 24th January, 1994, after an eight day trial which concluded on the 13th January, 1994 (I omit paragraphs irrelevant to the appeal): AND THIS COURT FURTHER ORDERS that the Defendant pay to the Plaintiff maintenance for the children of the marriage, Todd Alexander Stuart, Kelly Grace Stuart and Molly Elizabeth Stuart, in the sum of $750.00 per month per child commencing February 1, 1994 and continuing on the first day of each and every month thereafter until further ordered. AND THIS COURT FURTHER ORDERS that the Defendant pay to the Plaintiff maintenance for the Plaintiff in the sum of $1,000.00 per month commencing February 1, 1994 and continuing on the first day of each and every month thereafter until February 1, 1995, after which time the issue can be reviewed. AND THIS COURT FURTHER ORDERS AND DECLARES pursuant to Part III of the Family Relations Act, R.S.B.C. 1979, Chapter 121 and amendments thereto, that the following are family assets to which the parties are entitled to a 50% share: (a) the matrimonial home at 8053 Mackie Court, Delta, British Columbia; and (b) household chattels appraised at $6,260.00. * * * AND THIS COURT FURTHER ORDERS AND DECLARES that the Plaintiff is not entitled to any share in the following assets: (a) Emery Village (1214 Emery Place) (1/9th interest); (b) 170 W. 4th Avenue (1/9th interest); (c) El Matador (321 E. 2nd Avenue) (1/12th interest); (d) Citadel (163 W. 5th Avenue) (1/9th interest); (e) Stettler Agreement for Sale (Alberta); (f) Quanah; (g) 412294 B.C. Ltd. (Parksville Lots) (1/9th interest); and (h) The National Trust Bank Accounts (West Vancouver). AND THIS COURT FURTHER ORDERS that the Plaintiff's claim for compensatory maintenance be and the same is hereby dismissed. AND THIS COURT FURTHER ORDERS that the Plaintiff's claim for re-apportionment pursuant to Section 51 of the Family Relations Act be and the same is hereby dismissed; 42 The parties were married in 1982. At the time of the trial, the appellant, the plaintiff below, was 38 and the respondent, the defendant below, was 40. The children were born, respectively, on the 19th July, 1984, the 19th August, 1987, and the 10th November, 1989, and, thus, at the time of judgment below, were 9, 6, and 4. 43 These proceedings were launched on the 21st July, 1992. 44 The appellant attacks, first, the award of maintenance, seeking, as a separate head of claim, what counsel called compensatory maintenance, and an increase in quantum quite apart from that issue as on a footing I shall set out hereafter; secondly, the finding that she is not entitled to a share in the respondent's interest in 1214 Emery Place and the other assets mentioned; and, thirdly, the refusal of the learned judge to exercise the power under s. 51 of the Family Relations Act to divide the property found to be family assets "into shares fixed by the court". 45 I turn, first, to the issue of maintenance. 46 The prayer in the statement of claim is this: WHEREFORE the Plaintiff claims: * * * (e) Maintenance for the Plaintiff and for the infant children of the marriage, namely, Todd Alexander Stuart, born July 19, 1984, Kelly Grace Stuart, born August 19, 1987, and Molly Elizabeth Stuart, born November 10, 1989, both lump sum and periodic, interim and permanent, pursuant to the provisions of the Family Relations Act; 47 Thus, this claim is governed by the Family Relations Act under which: 56. (1)Each parent of a child is responsible and liable for the reasonable and necessary support and maintenance of the child, taking into account the (a) cost of reasonable residential accommodation, housekeeping, food, clothing, education, recreation and supervision for the child; (b) child's need for a stable and supportive environment; and (c) financial circumstances and obligations of each person liable for the support and maintenance of the child. (2)The making of an order against one parent for the maintenance and support of a child does not affect the liability of another parent for the maintenance and support of the child or bar the making of an order against the other parent. 57. (1)A spouse is responsible and liable for the support and maintenance of the other spouse having regard to (a) the role of each spouse in their family; (b) an express or implied agreement between the spouses that one has the responsibility to support and maintain the other; (c) custodial obligations respecting a child; (d) the ability and capacity of, and the reasonable efforts made by, either or both spouses to support themselves; or (e) economic circumstances. (2)Except as provided in subsection (1), a spouse or former spouse is required to be self sufficient in relation to the other spouse or former spouse. * * * 61. (1)Subject to the Divorce Act (Canada), a court may make an order on application, or where the court makes or refuses an order for judicial separation or dissolution of marriage or a declaration that a marriage is null and void, requiring a party to the proceeding to discharge his liability under section 56, 57 or 58, as the case may be, by paying to the person designated in the order the amount the court considers reasonable. (2)Where a spouse or child will be living separate and apart from the spouse or parent against whom the application is made, the court may, as it considers appropriate, adjust the amount of its order under subsection (1) to take into account the needs, means, capacities and economic circumstances of each spouse, parent or child, including capacities and economic circumstances of each spouse, parent or child, including (a) the effect on the earning capacity of each spouse arising from responsibilities assumed by each spouse during cohabitation; (b) any other source of support and maintenance for the applicant spouse or children; (c) the desirability of the applicant spouse or child having special assistance to achieve financial independence from the spouse or parent against whom the application is made; (d) the obligation of the spouse or parent against whom application is made to support another person; and (e) the capacity and reasonable prospects of a spouse or child obtaining an education or training.... [Emphasis mine.] 48 These words may be contrasted with the section of the Divorce Act, 1985, in pari materia: [15.] (2) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring one spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of (a) the other spouse; (b) any or all children of the marriage; or (c) the other spouse and any or all children of the marriage. * * * (4)The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. (5)In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including (a) the length of time the spouses cohabited; (b) the functions performed by the spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of the spouse or child. (6)In making an order under this section, the court shall not take into consideration any misconduct of a spouse in relation to the marriage. (7)An order made under this section that provides for the support of a spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses pursuant to subsection (8); (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. [Emphasis mine.] 49 The term "compensatory spousal support" comes from the judgment of Madam Justice L'Heureux-Dub‚ in Moge v. Moge, [1992] 3 S.C.R. 813. After addressing the differences between the self- sufficiency model of spousal support and the compensatory model, she said, at 860-61: Legislative support for the principles of compensation may be found in s. 15(7)(a) to (c) and s. 17(7)(a) to (c) which are extremely broad in scope and which direct the court, in making or varying a support order, to recognize any economic advantages or disadvantages arising from the marriage or its breakdown, to apportion between the spouses any financial consequences arising from the care of children over and above those consequences which have already been made the subject of child support and to relieve economic hardships arising from the marriage. As a matter of statutory interpretation, it is precisely the manner in which compensatory spousal support is able to respond to the diversity of objectives the Act contains that makes it superior to the strict self-sufficiency model. Although the promotion of self-sufficiency remains relevant under this view of spousal support, it does not deserve unwarranted pre-eminence. After divorce, spouses would still have an obligation to contribute to their own support in a manner commensurate with their abilities. (Rogerson, "Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)", supra, at p. 171). In cases where relatively few advantages have been conferred or disadvantages incurred, transitional support allowing for full and unimpaired reintegration back into the labour force might be all that is required to afford sufficient compensation. However, in many cases a former spouse will continue to suffer the economic disadvantages of the marriage and its dissolution while the other spouse reaps its economic advantages. In such cases, compensatory spousal support would require long-term support or an alternative settlement which provides an equivalent degree of assistance in light of all of the objectives of the Act. ("Judicial Interpretation of the Spousal and Child Support Provisions of the Divorce Act, 1985 (Part I)", supra, at pp. 171-72.) 50 Even if the British Columbia statute could be taken, despite the emphasized words of s. 57(2), as having a compensatory model, rather than a self-sufficiency model, there is no separate head of relief in either statute for "compensatory spousal support" and Madam Justice L'Heureux-Dub‚ did not say that there was. She was simply addressing the factors which, under the federal Act, are to be taken into account in determining support and the weight to be given to each. 51 Thus, the paragraph in the judgment dismissing the claim for "compensatory maintenance" is superfluous. 52 The other aspect of the appellant's claim concerning maintenance is expressed thus in her factum: (v) that the Appellant is entitled to child and spousal maintenance of an adequate quantum to satisfy the needs of the Appellant and her children for a period of time commensurate with the behavioural problems of the eldest child of the marriage and the Appellant's need for further retraining to enable her to re-enter the workforce and her ability to find work outside the home; 53 The difficulty the appellant faces on that aspect is that the order of Mr. Justice Harvey fixing maintenance is no longer in effect. It is spent. 54 On the 19th May, 1995, Mr. Justice Hall conducted the review of maintenance which is mentioned in Mr. Justice Harvey's order. He fixed maintenance for the appellant at $1,200.00 per month and for the children at $800.00 per month per child, both commencing on 1st June, 1995, and to continue until further order. Thus, the appeal, insofar as it relates to Mr. Justice Harvey's order on maintenance, is now moot. 55 I turn next to the question of whether what counsel have called "the disputed assets" are family assets. 56 The respondent asserts that those assets, all of which are his property, are neither family assets nor business assets but simply assets. See Underhill v. Underhill (1983), 45 B.C.L.R. 244, [1983] 5 W.W.R. 481, 34 R.F.L. (2d) 419 (C.A.). 57 These assets, which have a combined value of about $1.4 million, came to the respondent by inheritance from his father who died in 1983 intestate. The respondent, his brother and his sister, were the heirs. The administrator did not register title to these various interests in the respondent's name until 1988 or 1989 because, until then, the creditors had not been paid. 58 By s. 45 of the Family Relations Act: [45.] (2) Property owned by one or both spouses and ordinarily used by a spouse or a minor child of either spouse for a family purpose is a family asset. (3)Without restricting the generality of subsection (2), the definition of family asset includes (a)where a corporation or trust owns property that would be a family asset if owned by a spouse, (i)a share in the corporation; or (ii)an interest in the trust owned by the spouse; (b)where property would be a family asset if owned by a spouse, property (i)over which the spouse has, either alone or with another person, a power of appointment exercisable in favour of himself; or (ii)disposed of by the spouse but over which the spouse has, either alone or with another person a power to revoke the disposition or a power to use or dispose of the property; (c)money of a spouse in an account with a savings institution where that account is ordinarily used for a family purpose; (d)a right of a spouse under an annuity or a pension, home ownership or retirement savings plan; or (e)a right, share or an interest of a spouse in a venture to which money or money's worth was, directly or indirectly, contributed by or on behalf of the other spouse. 59 The learned judge first asked himself the question, "Are the disputed assets or any of them family assets?". He answered it thus: Were the assets or any of them used for a family purpose? The test, as stated in Elsom v. Elsom (1983), 49 B.C.L.R. 297; 3 D.L.R. (4th) 500 (C.A.) is "customary" as opposed to "casual or occasional use". The evidence confirms the disputed assets were never actually or physically used by the Stuart family. The most that can be said is that some of the income from the apartment buildings and the Quanah oil lease were used. In my view, such use with no encroachment on capital and where the assets were not acquired to secure financial security does not allow characterization of the assets as family assets. Counsel for the plaintiff relies, in part, upon my decision in Tezcan v. Tezcan (1990), 44 B.C.L.R. (2d) 343 and the authorities referred to therein to support his submission that use of the income in part from such investments for a family purpose converts capital assets (the apartment buildings) to family assets. The facts in Tezcan, supra, are clearly distinguishable from the facts here. In Tezcan, the course the husband followed during the entirety of the marriage was to spend considerable time surveying the property market and making investments in property "for the purpose of securing the family's financial future". Furthermore, the income from the investment in that case was frequently used for family purposes, including the transfer of monies to the parties' joint account Ä their family account. For these reasons and the circumstances of this case, I find the disputed assets are not family assets. 60 On the question thus posed by the learned judge, the crucial words are "ordinarily used for a family purpose". What was used for a family purpose for a year or two before the separation of the parties which took place, in effect, in 1990 or 1991, was some of the income from these assets. Indeed, the respondent, who is not employed, has continued to use the income for paying the maintenance awarded against him. Does a spouse's use of income from property to support his or her family, in and of itself, turn that property into a family asset? 61 I think not. If the Legislature intended that result, then the extended definitions in subsection (3), especially in subsections (3)(c) and (3)(e), would have been unnecessary. 62 The learned judge then posed to himself the question, "Are the disputed assets or any of them business assets or ventures to which the plaintiff made a contribution?" In so doing, he was referring to s. 45(3)(e) and s. 46, which I need not quote, both of which contemplate that assets can become family assets by certain kinds of contribution by the other spouse. 63 He answered this question "no": Both at the time they commenced living together and the date of the marriage and for some considerable time thereafter, there was no anticipation or expectation of the acquisition of the disputed assets by inheritance or otherwise. The husband did not bring to the marriage any such assets. The husband's father died intestate leaving his estate substantially in debt. As I understand what occurred, it is due to an upward turn in the economy, particularly in the real estate market, following the 1982-1983 downturn, that in due course gave rise to the estate having its present value. The estate has been managed by a trustee with the assistance of accountants and attorneys. The evidence here discloses the following: (a) the husband was not involved in the administration of the intestacy; (b) the husband played no part in the acquisition of any of the real properties, their sale and management; (c) the husband has never participated in nor does he now participate in the management and operation of the properties and, particularly, the North Shore apartments; (d) the North Shore apartments have at all times been managed by Stuart Nassim Developments Ltd. pursuant to an exclusive management contract. Mr. Nassim was involved with the husband's father and himself is a part owner of the apartment buildings. It is clear from the evidence the husband made no direct or indirect contribution to the acquisition of the properties. He, together with his two siblings, simply inherited his respective interests in the properties. In such circumstances, it follows that the wife has not made a direct or indirect contribution to the acquisition of the properties. 64 In my opinion, the learned judge came to the correct conclusion on the facts before him. Lest there be any misunderstanding, however, I should state that neither the judgment below nor this judgment stands for the proposition that subsection 45(3)(e) can only be brought into operation by a contribution to the acquisition of the venture. If, for instance, a wife inherited an apartment building and, thereafter, the husband did the maintenance on it, he could properly be held to have "contributed" to the venture. 65 I turn then to the National Trust accounts referred to in the judgment. The triggering event occurred on the 30th October, 1992, when Master Tokarek declared there was no reasonable prospect of reconciliation. The respondent's property and financial statement shows that, as of the 9th October, 1992, he had in an account at National Trust, $78,916.38. I assume, no evidence to the contrary having been pointed out on the hearing of this appeal, that the account had approximately the same amount of money in it at the date of the triggering event. 66 Neither the learned judge below nor counsel for the appellant before us expressly addressed the question of whether this account fell within subsection 45(3)(c) as an account ordinarily used for a family purpose. The account was opened on the 3rd June, 1989, apparently with inherited funds. From the date of its being opened until the triggering event, there were only nine withdrawals and the account grew from its original amount of $36,302.97 to over $70,000.00. It is not possible to conclude on this evidence that the account was "ordinarily used for a family purpose". 67 I come now to the final question which is whether the learned judge ought to have made a reapportionment of the only substantial asset found to be a family asset, the matrimonial home, which was valued on the 18th March, 1993, at $230,000.00. 68 By s. 51: 51.Where the provisions for division of property between spouses under section 43 or their marriage agreement, as the case may be, would be unfair having regard to (a)the duration of the marriage; (b)the duration of the period during which the spouses have lived separate and apart; (c)the date when property was acquired or disposed of; (d)the extent to which property was acquired by one spouse through inheritance or gift; (e)the needs of each spouse to become or remain economically independent and self sufficient; or (f)any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse, the Supreme Court, on application, may order that the property covered by section 43 or the marriage agreement, as the case may be, be divided into shares fixed by the court. Additionally or alternatively the court may order that other property not covered by section 43 or the marriage agreement, as the case may be, of one spouse be vested in the other spouse. 69 The learned judge said this: Section 43 of the Family Relations Act requires that the assets under consideration be divided equally subject, however, to re-apportionment pursuant to Section 51. Section 51 is predicated upon the basis of equal apportionment unless such an apportionment would be unfair. The word "unfair" is not defined. There is no criteria regarding the fixing of appropriate shares when the decision has been made to re-distribute. What is unfair appears to be dependent upon the circumstances in the given case with the assistance of the factors set out in Section 51. The focus is on whether an equal division of family assets would be unfair having regard to the factors enumerated in Section 51. I am mindful as well that all of the factors listed in Section 51 interact and overlap to some degree and that the weight given to each factor and the division that is made in the end ultimately depends primarily upon the individual judge's determination of what is fair. The factors that have guided my determination of what is fair in this case include Sections 51(a), (c), (d), (e) and (f). This was not a traditional marriage. During the marriage, the financial contributions made by the husband and wife were disproportionate, the husband having made a substantially greater contribution. I find, however, that in all other respects, the wife made the larger contribution. 70 In my opinion, the learned judge, in the unusual circumstances of this case, did not give sufficient weight to subclause (e). The respondent is now a wealthy man with a sufficient private income that he has no need to work. 71 In my opinion, the phrase "economically independent and self- sufficient" in this clause is not an absolute term but a relative term. By that, I mean the needs of the spouses are not to be measured solely, for instance, against the amount of money Statistics Canada says a family needs to live on but also by taking into account the standard of living the resources of the spouses can provide. Here, as I have mentioned, the respondent has, apart from his interest in the matrimonial home, assets valued at $1.4 million. On these assets, she has no claim. She has only, under this judgment, a one-half interest in the matrimonial home, a one- half interest in its contents, and a motor car. In my opinion, in the unusual circumstances of this case, the matrimonial home and its contents should vest solely in the appellant, even though it was largely money the respondent inherited which enabled the discharge of the mortgage which had been taken out to purchase it. 72 To that extent only, I would allow the appeal. The wife shall have her costs in this Court on the footing that the amount involved is over $100,000.00 but less than $250,000.00. "THE HONOURABLE MADAM JUSTICE SOUTHIN" I AGREE: "THE HONOURABLE MR. JUSTICE GIBBS"