October 2, 2025 • 22 mins
A seven‑month marriage sparked on a sugar‑arrangement site, a $12,000/month support bid, and a dog named Frankie—this one has layers. We open with a candid walk‑through of interim spousal support: what it’s for, how courts weigh “capacity to pay,” and why selling capital assets to fund an opulent lifestyle isn’t the same as earning income. The applicant’s luxury‑level budget meets judicial scrutiny, while the respondent’s push to impute escort income and point to family wealth hits legal limits. The end result—$4,000/month plus a retroactive lump—shows how judges balance short marriages, realistic needs, and the difference between lifestyle and income.
Then the plot thickens. A same‑day, ex parte protection order leads to disputed removals from the home and a tussle over Frankie. We unpack how BC’s Family Law Act treats companion animals: not as handbags, but through factors like who provided care, safety concerns, and well‑being. On an interim basis, Frankie stays put—illustrating how courts separate urgent stability from final outcomes and insist on full candour when seeking protective relief.
The second half pivots to evidence law and a rare rebuke: the province sought a lifetime ban on a man from a welfare office, relying on an internal incident report as a “business record.” Both the trial court and the Court of Appeal said no. We explain why “ordinary course of business” demands reliability—think automated receipts and bank statements—not a narrative drafted post‑incident for litigation. Even beyond admissibility, the appellate court flags proportionality: a permanent injunction is an extraordinary remedy, not a default response.
If you care about how courts actually draw the line between income and spending, how interim orders stabilize without deciding the future, how pet custody really works, and when business records are admissible, this conversation is your blueprint. Listen, share with a friend who loves law done plainly, and leave a quick review to help others find the show.
Follow this link for a transcript of the show and links to the cases discussed.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Michael Mulligan (00:28):
You read that right.
Okay.
That is uh fortunately not uhpart of the I'm sure the uh uh
warning labels on a websitecalled Seeking Arrangement, uh
which uh is a apparently awebsite which is intended to
connect up sugar babies, aquotes, with sugar daddies slash
mamas.
Uh and apparently the siteworks.
(00:50):
Uh this particular case uhinvolved a 23-year-old uh who
wound up uh eventually marryinga 77-year-old sugar daddy.
They uh managed to find eachother uh on that site.
Uh probably not surprising touh many listeners, uh that was
not a successful uh not asuccessful uh marriage, or at
(01:12):
least for very long.
Uh the uh couple begancohabiting in March of 2021.
They that that lasted a while.
They they got married uh onApril 4th, 2023, uh, but I guess
things went downhill sevenmonths later, as of November
2024, they separatedpermanently, uh, which brings us
to the case we're going to talkabout first.
(01:33):
Okay.
And this is an unusual case.
It's a BC decision, just cameout, uh, and it is uh an
application for interim spousalsupport, which is indeed a
thing.
Um and uh pursuant to sectionit's fifteen point two for those
uh keeping score at home uh ofthe divorce act, uh, it sets out
uh the uh reasons why uh aninterim support order might be
(01:58):
made.
And I should say an interimsupport order is to be
distinguished from like a finaldecision following uh a trial,
right, about you know how muchmoney should somebody get, a
division of property, this sortof thing.
Uh and the Divorce Act sets outwhy we have such things, right?
Uh and uh it speaks there aboutvarious objectives, including
(02:20):
uh recognizing economicadvantages and disadvantages
arising from marriage or itsbreakdown, after seven months in
this case, uh the desire toapportion financial consequences
uh for uh children, there werenone happily here, uh, to
relieve economic hardship and tofinally promote economic
self-sufficiency for each spousewith any reasonable period of
(02:43):
time.
Uh and the idea when one ofthese uh applications is being
made is it's not intended to bea uh you know a long process.
Interim orders are supposed tosort of bridge the gap between
the time they're being appliedfor and the trial, which would
eventually sort out what's tohappen long term.
Uh now in this particular uhcase, the sugar baby applicant
(03:08):
uh was applying for, as yousaid, some twelve thousand
dollars per month uh in interimsupport.
Uh and uh in uh support of thatuh application, um she uh
alleged that uh the 77-year-olduh soon-to-be ex-husband uh was
uh uh should have a substantialuh income imputed to him despite
(03:34):
the fact that on his taxreturns uh he made very little
income.
In fact, as the judge pointedout, looking at his tax returns
for the previous four years,they were like $22,000 in one
year and twenty-nine thousandanother year.
One year he did uh claim$123,000, but most of it I was
pretty modest.
Uh and uh her argument was thatthis uh she said he should have
(03:57):
an imputed income of $2.45million per year.
Uh and the argument for thatwas based on the opulent
lifestyle uh that they enjoyedtogether.
Uh and it would appear that itwas common ground.
They were living a fairlyopulent lifestyle, um, uh
traveling frequently, giving herexpensive gifts, jewelry,
(04:19):
handbags, watches, eating atexpensive restaurants.
They were really living it up.
Uh but and this is the otherinteresting legal issue that
arose in this case, uh, hisevidence, which again appears to
have been just completelyaccepted by the the judge, it
wasn't a case where it'ssomebody who was like failing to
report their income, likemaking money under the table or
cheating on their taxes orsomething.
(04:40):
What was going on for thisfellow?
Um yeah, his evidence was thathe most of his expenses were
made by the selling off ofcapital assets.
Interesting.
And so he had some uh capitalassets uh in a uh corporation,
and the corporation owed him ashareholders' loan.
It started out back in 22 ofsome 2.2 million dollars, and by
2024, I guess owing to thehandbags purse's expensive
(05:04):
lifestyle, it was down to$708,000.
So he was just spending hiscapital, basically.
Yeah.
Um and there is someconflicting law about well, how
does that to be accounted for,right?
Because that is genuinely notincome, right?
If you're just selling stuffand spending it, you haven't
made income.
Like you don't pay income taxon that, you're just you know
selling off your stuff, right?
(05:25):
It's like if you sold yourhouse and sold the you've spent
all that money over the next fewyears, you don't have an
income, you you've just sold acapital asset.
Uh now there are cases thathave considered that before, and
it's not as clear as just,well, you just look at the
income tax returns.
Uh and in fact, the way it's tobe looked at um is that one of
(05:45):
the uh considerations in settingan interim uh order for support
is the sort of capacity of theperson to pay.
And you can take that kind ofincome into account in a general
way uh when deciding whetherthere should be uh uh an interim
support order.
So you don't have to just stickwith the income tax return,
even though those were accurate,right?
(06:06):
Uh but then the judge looked alittle further at what this uh
woman was uh asking for.
Uh and she asked for this largeamount of money, um, setting
out uh various things sheclaimed to be um sort of
necessary expenses, right?
And the judge took a look atthose things, uh, and uh they uh
they would have paid for whatthe judge I think fairly
(06:27):
described as an opulentlifestyle.
Um she first of all was askingfor the cost of insuring and
fueling a Range Rover, which sheno longer had.
That was part of her monthlyexpenses.
She also wanted tuition for afashion school.
She apparently uh previouslywas a uh UBC student at the time
she hooked up here, but thenmoved to fashion design, she
(06:47):
said, at his urging.
Um she wanted $3,000 for rent,even though she wasn't paying
any rent.
She wanted $500 for toiletriesand cosmetics, and then finally
she had an item listed there ofsalon visits.
She wanted $850 per month topay for facials, massages, and
eyelashes.
There's no breakdown of howmuch the eyelashes were, but
that was her that was her figurethere.
Uh and conversely, uh the uhhusband on this uh uh husband in
(07:13):
this uh circumstance, um, hisuh view of it was that uh she
didn't require any support, thatshe could uh pay for her
expenses by selling the manygifts that he had given her
during the relationship, uh thatshe had a wealthy family, and
that she was capable of working,uh, including including by her
own admission of previouslyworking and earning income
(07:34):
occasionally as a paid escort,probably not a great surprise.
Uh, and he therefore are arguedthat they should be imputing an
income of thirty thousanddollars per year for her
escorting activities.
Well, some of that the judgetook into account, uh, but you
can't, for example, argue that,well, your wealthy family should
uh pick up the slack.
That didn't get too far.
(07:54):
Uh but the the judge wasn'tbuying her uh breakdown of why
she needed this $12,000 some odddollars per month, uh including
for things like the uh you knowwanting uh the cost of her
online fashion school being paidfor, even though she was
separately asking for that underanother heading.
By the way, she also wantedretroactive payment for the last
11 months.
So her initial claim amountedto this uh twelve thousand some
(08:18):
odd dollars, but another hundredgrand or so representing the
last eleven months when shedidn't get this cash.
Uh the judge, I think, quitesensibly, concluded that uh that
was a bit much, uh, and thather needs could be met on a much
more modest budget, uh, and souh ordered uh that uh this
fellow pay her four thousanddollars per month, but it'd be
(08:38):
retroactive, and so she'd belooking at a uh forty-four
thousand dollar uh payment uhretroactively.
That didn't end the case,however.
There's another element to it,which also is some legal
interest, um, which is that shehad applied for and obtained
what is referred to as an exparte protection order.
And what that means is that thesame day she commenced the
(09:00):
action asking for this money,she went to court without
telling uh the husband, uh, andmanaged to get a judge to order
a protection order claiming thatshe had been threatened or was
in danger.
And she got the protectionorder.
Uh, and that wasn't the end ofit.
She got this order and then shemade a report, which the
husband claimed was a falsereport, and I should say
(09:21):
ultimately Crown did not approvecharges, but she made a
complaint that he had tried tocontact her through her
hairdresser, as as one would.
Um, and uh as a result of that,he wound up getting arrested uh
and being taken into custody.
Um and when he was taken intocustody, um she then showed up
at the former family residenceuh and wound up taking a bunch
(09:44):
of things, uh including the dog,Frankie.
Uh and so she had the dog.
Uh and the husband's complaintwas well twofold.
One, you know, she neverrevealed to the judge she was
going to take a bunch ofexpensive things from the home,
and she wound up taking likeexpensive handbags and jewelry
and stuff like that, not just,you know, socks and underwear
and her passport or whatnot.
(10:04):
But then the dog.
The dog was spirited away.
Uh, and so he was asking tohave the protection order set
aside on the basis that she hadmisled the judge uh about what
she was going to do and takefrom the house and the
circumstances, and he wanted thedog back.
Now, on the application to setaside the protection order, the
judge did find, who was hearingthis application, that uh there
(10:27):
were some things in there thatwere kind of misleading.
Like the judge intentionallyhad a had a discussion about
what it was she wanted to getfrom the house when she was to
attend there on some occasion.
Uh, and it was clear that thejudge was intended her to be
permitted to get personal itemslike identification or her
laptop, not a bunch of uhjewelry and handbags that the
husband said were worth inexcess of two hundred thousand
(10:49):
dollars or scooping them up atthe house.
Uh, but that wasn't enough inthe judge's view to set aside
the protection order completely.
Um, and so the judge had tothen move on to what about
Frankie, the dog?
Yeah.
And we have we have we have theFamily Law Act in BC that
actually sets out things thatare now to be considered when
determining who's to be takingcare of pets.
(11:10):
They're not treated just likethe handbag.
Uh and so under section ninetyseven of the Family Law Act, uh
there are a variety of thingsthat a judge must decide when
they are to determine who's tokeep the pet.
And there are things like thecircumstances when the companion
animal was acquired, the extentto which each person cared for
it, a history of familyviolence, any threats of
(11:31):
cruelty, uh whether the uh childhad a companion animal.
Anyways, all these factors thejudge should take into
consideration.
She, by the way, alleged thatuh the dog was for her as a uh
support animal, emotionalsupport animal, again, not
surprisingly, unsurprising, notsurprisingly.
Uh, and she alleged that thehusband had uh insisted on
feeding Frankie inappropriatehuman food, making him ill, and
(11:54):
so that was one of the reasonsshe wanted to have I guess he's
giving the dog table scraps.
And so on all of that, thoserepresentations, the judge
concluded that she got to keepFrankie, at least on an interim
basis.
And so uh the net result of allof this, on all those
considerations about interimorders and lifestyle and all
this, was even after only aseven-month marriage, uh, he'll
(12:15):
be paying her some four thousanddollars a month until this
matter can get to trial to sortout what ought to happen long
term.
Uh and so really this entirething should be appended to the
the entire decision should beappended to the seeking
arrangements website, uh lestany other 77-year-olds think
that this might be a great ideauh to uh uh go and uh marry the
(12:37):
uh 20-something-year-old uh UBCstudent uh part-time uh escort.
So that's the latest from theDC Supreme Court uh in terms of
some very bad matrimonialchoices and how interim support
works in combination with uhdifferent kinds of income, and
of course, who gets the dog onan interim basis?
So that's the latest uh on uhsugar babies uh seeking interim
(13:02):
support.
Adam Stirling (13:02):
All right.
Michael Malkenberg Michael ispreventing a man from attending
a welfare office and appeal forattempting to rely on
(13:24):
inadmissible hearts andevidence.
What happened?
Michael Mulligan (13:28):
Well, I uh the province lost twice despite the
fact that this man did not showup at either hearing.
So uh credit to the judgesinvolved for carefully looking
at it uh without uh this maneven being there.
And so the the background ofthis goes back to uh back in
2022 uh in Kelowna when this manshowed up apparently at a
(13:48):
welfare office there, uh, andaccording to a report, which
we'll come to in a moment, uhdid things including uh using
intemperate language, whateverthat might be, threatening staff
and using a large stick to hitthe ministry office, not hitting
people, apparently just theoffice with the large stick
there.
Uh and so the provinceresponded by suing the man.
(14:09):
Uh and uh so they started uh uhan action uh and uh served him.
Uh and uh then uh come trial, Iguess, of this action, the man
didn't turn up.
Probably not a great bigsurprise that the person who's
alleged to have hit the officewith a big stick might not be
the most reliable fellow.
Yes.
But in any case, he doesn'tshow up, so they get default
judgment.
Congratulations, the provincehas won.
(14:31):
But they then ask the judge togrant what's referred to as a
permanent injunction.
And a permanent the permanentinjunction they're seeking would
have permanently banned thisman from attending uh the
welfare office without priorauthorization or communicating
with staff through a thirdparty, and it would last
forever.
Now, this is going back a bit,but uh some uh movie boss might
(14:54):
recall, Oh brother, where artthou with the ban from going to
Woolworths.
It sort of had a ring of that.
Uh I appreciate that maybe alittle uh a little dated.
But in any case, they wantedthis uh permanent ban.
And the uh sharp-eyed judgelooked at the evidence that the
province was relying upon.
And the province was trying torely upon uh this document,
(15:16):
which was uh referred to as anIRT document prepared by uh some
of the ministry staff at thatoffice.
Uh and the province was tryingto use that report, which sort
of sets out the complaint aboutwhat this fellow is alleged to
have done, uh, and they wereattempting to use that as what's
referred to as a businessrecord.
(15:36):
And here's what that's about.
So in the Evidence Act, andthere's both a provincial and
federal evidence act that hassome of the rules, like some
special rules of evidence listedin it, and in British Columbia,
one of the sections of thatEvidence Act, section 42, and
that's the act that would applyto civil cases like this, um,
uh, provides that a businessrecord uh can be admissible uh
(15:58):
as evidence in a civil case likethis.
And the idea there with abusiness record uh is like,
let's say, for example, you'retrying to prove like um, you
know, how much money didsomebody charge up on their
credit card, for example, right?
There's probably no human beingyou could call in from Visa or
wherever to say, yeah, I waskeeping an eye on it, and you
(16:19):
know, so-and-so put $300 ontheir credit card, right?
That just doesn't exist.
It's not a human process.
But the idea with that sectionof that act is that if you have
a record which a business recordwhich is made, and this is
important, in the ordinarycourse of business, right?
Like things like, you know,till receipts that get printed
out, or, you know, bankstatements that come out of the
(16:40):
computer, things like that,right?
Adam Stirling (16:42):
Yeah.
Michael Mulligan (16:42):
The idea is that if you follow the other
requirements to introduce abusiness record, those things
can be introduced to prove whatthey say.
And so that's how you would tryto prove like somebody charged
$300 on their credit card,right?
You'd get that thing and you'dhave to prove it was made
contemporaneously, and you know,be somebody cut there'd be some
evidence about what that thingis and so on, but you can get
(17:03):
that in to prove those things,because frankly, it would be
very difficult, time consuming,or nay impossible to otherwise
prove things like that.
But the rub, as pointed out bythe judge, the original judge,
and now the court of appeal, um,is that that particular thing
that the province was trying touse to prove exactly what this
man uh did was not really thekind of document produced in the
(17:26):
ordinary course of business.
And the Sharpie judge, and theCourt of Appeal agreed, looked
at things like, Well, how is itthat that thing gets prepared?
Is this just something thatgets typed up anytime somebody
comes along and hits theministry office with a stick in
some kind of an automated way?
Like, oh yeah, let's fill outthe uh office was hit today
form, uh right?
Yeah.
It's not.
And what the judge looked atwas, well, this is a thing that
(17:49):
gets filled out when like asupervisor can ask somebody to
say, hey, you should make one ofthese reports.
But the problem with that, whenit's sort of uh, hey, we've
just been hit with a stick, andthe supervisor says to the
employee, hey, let's fill outone of these reports so we can
go to court, it's not reallykind of an automatic thing.
It's not really the ordinarycourse of business.
And the risk is that, ofcourse, when you know, somebody
(18:11):
who quite reasonably doesn'twant to work in an office
getting hit with large sticksmight be inclined to, you know,
maybe uh exaggerate something,or, you know, sort of uh express
something in a way that mightbe more favorable to whatever
their objective was, like stopthis man from coming in and
using intemperate language.
And so the judge found thatwell, sorry, this is not a
(18:32):
business record, this is justsomething written up by the
staff member when the supervisorasked them to after whatever
this guy did uh he did in the inthe the the office.
And so the judge at trial said,no, you you win, the man hasn't
showed up, but you don't getyour permanent injunction.
And so the province didn't likethat.
And so they decided to appealit to the court of appeal, which
(18:54):
comes to the which brings us tothe decision that just came
out.
And once again, they dulyserved this man with the notice
of the appeal, but again, notsurprisingly given what's
alleged here, he was at no-showat the Court of Appeal.
But the judge of the Court ofAppeal, like the trial judge,
were also sharp-eyed and carefuland looked at the whole
background of this thing.
And so uh the argument beingmade by the province in the
(19:17):
Court of Appeal without this guyeven being there, is they're
saying, oh yeah, the judge madea mistake here, in that the uh
judge, they argue, that is tosay the province argued, applied
this inappropriate extra testto whether this record should be
in, suggesting that the judgewas trying to determine whether
this was reliable or not.
And he shouldn't have donethat, because they, I guess,
want to be able to use this sortof thing in future cases, hence
(19:40):
their trip to the Court ofAppeal.
Uh and uh so the Court ofAppeal took the time to
carefully look at that sectionand consider that argument and
look carefully at what the judgehad done.
And indeed, the judge had uhconsidered issues about whether
this might be reliable for thereason I've indicated, because
it's like, you know, theemployee that just says we were
hit with a stick, and themanager says, well, write up
(20:00):
this report.
And so the Court of Appeal hadtook the time now to look at,
well, what does that section ofthe Evidence Act mean?
And indeed, they found thatthat language of in the ordinary
course of business, and thiswas referencing a previous
decision of uh Justice Hinkson,uh says that there must be some
evidence of reliability advancedfor each document before it
(20:20):
could be admitted under section42.
And so we now have thisdecision, which is now clear
authority, if there was anydoubt given that language used
by Justice Hinkson in theprevious decision that was
cited, is that when you refer tothat language of in the
ordinary course of business,there needs to be some evidence
and some basis for a judge todetermine uh that this appears
(20:44):
to be reliable.
Uh and the court talked aboutthe difference between things
like the automated uh tillreceipt that prints out or like
the you know the bank's visastatement or something, uh,
versus this kind of a documentthat's kind of written up uh by
somebody in this way.
And so the province lost uh andthe uh trial judge's decision
(21:04):
was upheld.
And the court of appeal went onto say, and I think this is not
inappropriate either, the courtof appeal said even if this
wasn't was a problem, which itwasn't, analyzing the document
in that way, the decision toissue an injunction, a permanent
lifetime ban is discretionary.
And even if all that evidencewas properly admissible, the
Court of Appeal added they wouldnot have exercised their
(21:26):
discretion to from for alifetime ban this man from going
to the welfare office.
Uh and so that's the latestfrom the Court of Appeal.
The prophets got just what theyasked for, and now very clear
evidence about very clear lawabout when you can use those
business records, and that's uhthe latest uh from them.
And uh I guess if this fellowwants to go back to the welfare
office, he can do so.
(21:46):
He just uh shouldn't bring thebig stick.
Adam Stirling (21:48):
So that's the latest on business records uh
and the Court of Appeal.
Legally speaking, on T FactsIntevity with Michael Mulligan
from Mulligan Defense Lawyers.
Thank you so much, Michael.
Pleasure as always.
Thanks so much.
Always great to be here.
All right.
Quick break news is next.
You read that right.
Okay.
That is uh fortunately not uhpart of the I'm sure the uh uh
warning labels on a websitecalled Seeking Arrangement, uh
which uh is a apparently awebsite which is intended to
connect up sugar babies, aquotes, with sugar daddies slash
mamas.
Uh and apparently the siteworks.
(00:50):
Uh this particular case uhinvolved a 23-year-old uh who
wound up uh eventually marryinga 77-year-old sugar daddy.
They uh managed to find eachother uh on that site.
Uh probably not surprising touh many listeners, uh that was
not a successful uh not asuccessful uh marriage, or at
(01:12):
least for very long.
Uh the uh couple begancohabiting in March of 2021.
They that that lasted a while.
They they got married uh onApril 4th, 2023, uh, but I guess
things went downhill sevenmonths later, as of November
2024, they separatedpermanently, uh, which brings us
to the case we're going to talkabout first.
(01:33):
Okay.
And this is an unusual case.
It's a BC decision, just cameout, uh, and it is uh an
application for interim spousalsupport, which is indeed a
thing.
Um and uh pursuant to sectionit's fifteen point two for those
uh keeping score at home uh ofthe divorce act, uh, it sets out
uh the uh reasons why uh aninterim support order might be
(01:58):
made.
And I should say an interimsupport order is to be
distinguished from like a finaldecision following uh a trial,
right, about you know how muchmoney should somebody get, a
division of property, this sortof thing.
Uh and the Divorce Act sets outwhy we have such things, right?
Uh and uh it speaks there aboutvarious objectives, including
(02:20):
uh recognizing economicadvantages and disadvantages
arising from marriage or itsbreakdown, after seven months in
this case, uh the desire toapportion financial consequences
uh for uh children, there werenone happily here, uh, to
relieve economic hardship and tofinally promote economic
self-sufficiency for each spousewith any reasonable period of
(02:43):
time.
Uh and the idea when one ofthese uh applications is being
made is it's not intended to bea uh you know a long process.
Interim orders are supposed tosort of bridge the gap between
the time they're being appliedfor and the trial, which would
eventually sort out what's tohappen long term.
Uh now in this particular uhcase, the sugar baby applicant
(03:08):
uh was applying for, as yousaid, some twelve thousand
dollars per month uh in interimsupport.
Uh and uh in uh support of thatuh application, um she uh
alleged that uh the 77-year-olduh soon-to-be ex-husband uh was
uh uh should have a substantialuh income imputed to him despite
(03:34):
the fact that on his taxreturns uh he made very little
income.
In fact, as the judge pointedout, looking at his tax returns
for the previous four years,they were like $22,000 in one
year and twenty-nine thousandanother year.
One year he did uh claim$123,000, but most of it I was
pretty modest.
Uh and uh her argument was thatthis uh she said he should have
(03:57):
an imputed income of $2.45million per year.
Uh and the argument for thatwas based on the opulent
lifestyle uh that they enjoyedtogether.
Uh and it would appear that itwas common ground.
They were living a fairlyopulent lifestyle, um, uh
traveling frequently, giving herexpensive gifts, jewelry,
(04:19):
handbags, watches, eating atexpensive restaurants.
They were really living it up.
Uh but and this is the otherinteresting legal issue that
arose in this case, uh, hisevidence, which again appears to
have been just completelyaccepted by the the judge, it
wasn't a case where it'ssomebody who was like failing to
report their income, likemaking money under the table or
cheating on their taxes orsomething.
(04:40):
What was going on for thisfellow?
Um yeah, his evidence was thathe most of his expenses were
made by the selling off ofcapital assets.
Interesting.
And so he had some uh capitalassets uh in a uh corporation,
and the corporation owed him ashareholders' loan.
It started out back in 22 ofsome 2.2 million dollars, and by
2024, I guess owing to thehandbags purse's expensive
(05:04):
lifestyle, it was down to$708,000.
So he was just spending hiscapital, basically.
Yeah.
Um and there is someconflicting law about well, how
does that to be accounted for,right?
Because that is genuinely notincome, right?
If you're just selling stuffand spending it, you haven't
made income.
Like you don't pay income taxon that, you're just you know
selling off your stuff, right?
(05:25):
It's like if you sold yourhouse and sold the you've spent
all that money over the next fewyears, you don't have an
income, you you've just sold acapital asset.
Uh now there are cases thathave considered that before, and
it's not as clear as just,well, you just look at the
income tax returns.
Uh and in fact, the way it's tobe looked at um is that one of
(05:45):
the uh considerations in settingan interim uh order for support
is the sort of capacity of theperson to pay.
And you can take that kind ofincome into account in a general
way uh when deciding whetherthere should be uh uh an interim
support order.
So you don't have to just stickwith the income tax return,
even though those were accurate,right?
(06:06):
Uh but then the judge looked alittle further at what this uh
woman was uh asking for.
Uh and she asked for this largeamount of money, um, setting
out uh various things sheclaimed to be um sort of
necessary expenses, right?
And the judge took a look atthose things, uh, and uh they uh
they would have paid for whatthe judge I think fairly
(06:27):
described as an opulentlifestyle.
Um she first of all was askingfor the cost of insuring and
fueling a Range Rover, which sheno longer had.
That was part of her monthlyexpenses.
She also wanted tuition for afashion school.
She apparently uh previouslywas a uh UBC student at the time
she hooked up here, but thenmoved to fashion design, she
(06:47):
said, at his urging.
Um she wanted $3,000 for rent,even though she wasn't paying
any rent.
She wanted $500 for toiletriesand cosmetics, and then finally
she had an item listed there ofsalon visits.
She wanted $850 per month topay for facials, massages, and
eyelashes.
There's no breakdown of howmuch the eyelashes were, but
that was her that was her figurethere.
Uh and conversely, uh the uhhusband on this uh uh husband in
(07:13):
this uh circumstance, um, hisuh view of it was that uh she
didn't require any support, thatshe could uh pay for her
expenses by selling the manygifts that he had given her
during the relationship, uh thatshe had a wealthy family, and
that she was capable of working,uh, including including by her
own admission of previouslyworking and earning income
(07:34):
occasionally as a paid escort,probably not a great surprise.
Uh, and he therefore are arguedthat they should be imputing an
income of thirty thousanddollars per year for her
escorting activities.
Well, some of that the judgetook into account, uh, but you
can't, for example, argue that,well, your wealthy family should
uh pick up the slack.
That didn't get too far.
(07:54):
Uh but the the judge wasn'tbuying her uh breakdown of why
she needed this $12,000 some odddollars per month, uh including
for things like the uh you knowwanting uh the cost of her
online fashion school being paidfor, even though she was
separately asking for that underanother heading.
By the way, she also wantedretroactive payment for the last
11 months.
So her initial claim amountedto this uh twelve thousand some
(08:18):
odd dollars, but another hundredgrand or so representing the
last eleven months when shedidn't get this cash.
Uh the judge, I think, quitesensibly, concluded that uh that
was a bit much, uh, and thather needs could be met on a much
more modest budget, uh, and souh ordered uh that uh this
fellow pay her four thousanddollars per month, but it'd be
(08:38):
retroactive, and so she'd belooking at a uh forty-four
thousand dollar uh payment uhretroactively.
That didn't end the case,however.
There's another element to it,which also is some legal
interest, um, which is that shehad applied for and obtained
what is referred to as an exparte protection order.
And what that means is that thesame day she commenced the
(09:00):
action asking for this money,she went to court without
telling uh the husband, uh, andmanaged to get a judge to order
a protection order claiming thatshe had been threatened or was
in danger.
And she got the protectionorder.
Uh, and that wasn't the end ofit.
She got this order and then shemade a report, which the
husband claimed was a falsereport, and I should say
(09:21):
ultimately Crown did not approvecharges, but she made a
complaint that he had tried tocontact her through her
hairdresser, as as one would.
Um, and uh as a result of that,he wound up getting arrested uh
and being taken into custody.
Um and when he was taken intocustody, um she then showed up
at the former family residenceuh and wound up taking a bunch
(09:44):
of things, uh including the dog,Frankie.
Uh and so she had the dog.
Uh and the husband's complaintwas well twofold.
One, you know, she neverrevealed to the judge she was
going to take a bunch ofexpensive things from the home,
and she wound up taking likeexpensive handbags and jewelry
and stuff like that, not just,you know, socks and underwear
and her passport or whatnot.
(10:04):
But then the dog.
The dog was spirited away.
Uh, and so he was asking tohave the protection order set
aside on the basis that she hadmisled the judge uh about what
she was going to do and takefrom the house and the
circumstances, and he wanted thedog back.
Now, on the application to setaside the protection order, the
judge did find, who was hearingthis application, that uh there
(10:27):
were some things in there thatwere kind of misleading.
Like the judge intentionallyhad a had a discussion about
what it was she wanted to getfrom the house when she was to
attend there on some occasion.
Uh, and it was clear that thejudge was intended her to be
permitted to get personal itemslike identification or her
laptop, not a bunch of uhjewelry and handbags that the
husband said were worth inexcess of two hundred thousand
(10:49):
dollars or scooping them up atthe house.
Uh, but that wasn't enough inthe judge's view to set aside
the protection order completely.
Um, and so the judge had tothen move on to what about
Frankie, the dog?
Yeah.
And we have we have we have theFamily Law Act in BC that
actually sets out things thatare now to be considered when
determining who's to be takingcare of pets.
(11:10):
They're not treated just likethe handbag.
Uh and so under section ninetyseven of the Family Law Act, uh
there are a variety of thingsthat a judge must decide when
they are to determine who's tokeep the pet.
And there are things like thecircumstances when the companion
animal was acquired, the extentto which each person cared for
it, a history of familyviolence, any threats of
(11:31):
cruelty, uh whether the uh childhad a companion animal.
Anyways, all these factors thejudge should take into
consideration.
She, by the way, alleged thatuh the dog was for her as a uh
support animal, emotionalsupport animal, again, not
surprisingly, unsurprising, notsurprisingly.
Uh, and she alleged that thehusband had uh insisted on
feeding Frankie inappropriatehuman food, making him ill, and
(11:54):
so that was one of the reasonsshe wanted to have I guess he's
giving the dog table scraps.
And so on all of that, thoserepresentations, the judge
concluded that she got to keepFrankie, at least on an interim
basis.
And so uh the net result of allof this, on all those
considerations about interimorders and lifestyle and all
this, was even after only aseven-month marriage, uh, he'll
(12:15):
be paying her some four thousanddollars a month until this
matter can get to trial to sortout what ought to happen long
term.
Uh and so really this entirething should be appended to the
the entire decision should beappended to the seeking
arrangements website, uh lestany other 77-year-olds think
that this might be a great ideauh to uh uh go and uh marry the
(12:37):
uh 20-something-year-old uh UBCstudent uh part-time uh escort.
So that's the latest from theDC Supreme Court uh in terms of
some very bad matrimonialchoices and how interim support
works in combination with uhdifferent kinds of income, and
of course, who gets the dog onan interim basis?
So that's the latest uh on uhsugar babies uh seeking interim
(13:02):
support.
Adam Stirling (13:02):
All right.
Michael Malkenberg Michael ispreventing a man from attending
a welfare office and appeal forattempting to rely on
(13:24):
inadmissible hearts andevidence.
What happened?
Michael Mulligan (13:28):
Well, I uh the province lost twice despite the
fact that this man did not showup at either hearing.
So uh credit to the judgesinvolved for carefully looking
at it uh without uh this maneven being there.
And so the the background ofthis goes back to uh back in
2022 uh in Kelowna when this manshowed up apparently at a
(13:48):
welfare office there, uh, andaccording to a report, which
we'll come to in a moment, uhdid things including uh using
intemperate language, whateverthat might be, threatening staff
and using a large stick to hitthe ministry office, not hitting
people, apparently just theoffice with the large stick
there.
Uh and so the provinceresponded by suing the man.
(14:09):
Uh and uh so they started uh uhan action uh and uh served him.
Uh and uh then uh come trial, Iguess, of this action, the man
didn't turn up.
Probably not a great bigsurprise that the person who's
alleged to have hit the officewith a big stick might not be
the most reliable fellow.
Yes.
But in any case, he doesn'tshow up, so they get default
judgment.
Congratulations, the provincehas won.
(14:31):
But they then ask the judge togrant what's referred to as a
permanent injunction.
And a permanent the permanentinjunction they're seeking would
have permanently banned thisman from attending uh the
welfare office without priorauthorization or communicating
with staff through a thirdparty, and it would last
forever.
Now, this is going back a bit,but uh some uh movie boss might
(14:54):
recall, Oh brother, where artthou with the ban from going to
Woolworths.
It sort of had a ring of that.
Uh I appreciate that maybe alittle uh a little dated.
But in any case, they wantedthis uh permanent ban.
And the uh sharp-eyed judgelooked at the evidence that the
province was relying upon.
And the province was trying torely upon uh this document,
(15:16):
which was uh referred to as anIRT document prepared by uh some
of the ministry staff at thatoffice.
Uh and the province was tryingto use that report, which sort
of sets out the complaint aboutwhat this fellow is alleged to
have done, uh, and they wereattempting to use that as what's
referred to as a businessrecord.
(15:36):
And here's what that's about.
So in the Evidence Act, andthere's both a provincial and
federal evidence act that hassome of the rules, like some
special rules of evidence listedin it, and in British Columbia,
one of the sections of thatEvidence Act, section 42, and
that's the act that would applyto civil cases like this, um,
uh, provides that a businessrecord uh can be admissible uh
(15:58):
as evidence in a civil case likethis.
And the idea there with abusiness record uh is like,
let's say, for example, you'retrying to prove like um, you
know, how much money didsomebody charge up on their
credit card, for example, right?
There's probably no human beingyou could call in from Visa or
wherever to say, yeah, I waskeeping an eye on it, and you
(16:19):
know, so-and-so put $300 ontheir credit card, right?
That just doesn't exist.
It's not a human process.
But the idea with that sectionof that act is that if you have
a record which a business recordwhich is made, and this is
important, in the ordinarycourse of business, right?
Like things like, you know,till receipts that get printed
out, or, you know, bankstatements that come out of the
(16:40):
computer, things like that,right?
Adam Stirling (16:42):
Yeah.
Michael Mulligan (16:42):
The idea is that if you follow the other
requirements to introduce abusiness record, those things
can be introduced to prove whatthey say.
And so that's how you would tryto prove like somebody charged
$300 on their credit card,right?
You'd get that thing and you'dhave to prove it was made
contemporaneously, and you know,be somebody cut there'd be some
evidence about what that thingis and so on, but you can get
(17:03):
that in to prove those things,because frankly, it would be
very difficult, time consuming,or nay impossible to otherwise
prove things like that.
But the rub, as pointed out bythe judge, the original judge,
and now the court of appeal, um,is that that particular thing
that the province was trying touse to prove exactly what this
man uh did was not really thekind of document produced in the
(17:26):
ordinary course of business.
And the Sharpie judge, and theCourt of Appeal agreed, looked
at things like, Well, how is itthat that thing gets prepared?
Is this just something thatgets typed up anytime somebody
comes along and hits theministry office with a stick in
some kind of an automated way?
Like, oh yeah, let's fill outthe uh office was hit today
form, uh right?
Yeah.
It's not.
And what the judge looked atwas, well, this is a thing that
(17:49):
gets filled out when like asupervisor can ask somebody to
say, hey, you should make one ofthese reports.
But the problem with that, whenit's sort of uh, hey, we've
just been hit with a stick, andthe supervisor says to the
employee, hey, let's fill outone of these reports so we can
go to court, it's not reallykind of an automatic thing.
It's not really the ordinarycourse of business.
And the risk is that, ofcourse, when you know, somebody
(18:11):
who quite reasonably doesn'twant to work in an office
getting hit with large sticksmight be inclined to, you know,
maybe uh exaggerate something,or, you know, sort of uh express
something in a way that mightbe more favorable to whatever
their objective was, like stopthis man from coming in and
using intemperate language.
And so the judge found thatwell, sorry, this is not a
(18:32):
business record, this is justsomething written up by the
staff member when the supervisorasked them to after whatever
this guy did uh he did in the inthe the the office.
And so the judge at trial said,no, you you win, the man hasn't
showed up, but you don't getyour permanent injunction.
And so the province didn't likethat.
And so they decided to appealit to the court of appeal, which
(18:54):
comes to the which brings us tothe decision that just came
out.
And once again, they dulyserved this man with the notice
of the appeal, but again, notsurprisingly given what's
alleged here, he was at no-showat the Court of Appeal.
But the judge of the Court ofAppeal, like the trial judge,
were also sharp-eyed and carefuland looked at the whole
background of this thing.
And so uh the argument beingmade by the province in the
(19:17):
Court of Appeal without this guyeven being there, is they're
saying, oh yeah, the judge madea mistake here, in that the uh
judge, they argue, that is tosay the province argued, applied
this inappropriate extra testto whether this record should be
in, suggesting that the judgewas trying to determine whether
this was reliable or not.
And he shouldn't have donethat, because they, I guess,
want to be able to use this sortof thing in future cases, hence
(19:40):
their trip to the Court ofAppeal.
Uh and uh so the Court ofAppeal took the time to
carefully look at that sectionand consider that argument and
look carefully at what the judgehad done.
And indeed, the judge had uhconsidered issues about whether
this might be reliable for thereason I've indicated, because
it's like, you know, theemployee that just says we were
hit with a stick, and themanager says, well, write up
(20:00):
this report.
And so the Court of Appeal hadtook the time now to look at,
well, what does that section ofthe Evidence Act mean?
And indeed, they found thatthat language of in the ordinary
course of business, and thiswas referencing a previous
decision of uh Justice Hinkson,uh says that there must be some
evidence of reliability advancedfor each document before it
(20:20):
could be admitted under section42.
And so we now have thisdecision, which is now clear
authority, if there was anydoubt given that language used
by Justice Hinkson in theprevious decision that was
cited, is that when you refer tothat language of in the
ordinary course of business,there needs to be some evidence
and some basis for a judge todetermine uh that this appears
(20:44):
to be reliable.
Uh and the court talked aboutthe difference between things
like the automated uh tillreceipt that prints out or like
the you know the bank's visastatement or something, uh,
versus this kind of a documentthat's kind of written up uh by
somebody in this way.
And so the province lost uh andthe uh trial judge's decision
(21:04):
was upheld.
And the court of appeal went onto say, and I think this is not
inappropriate either, the courtof appeal said even if this
wasn't was a problem, which itwasn't, analyzing the document
in that way, the decision toissue an injunction, a permanent
lifetime ban is discretionary.
And even if all that evidencewas properly admissible, the
Court of Appeal added they wouldnot have exercised their
(21:26):
discretion to from for alifetime ban this man from going
to the welfare office.
Uh and so that's the latestfrom the Court of Appeal.
The prophets got just what theyasked for, and now very clear
evidence about very clear lawabout when you can use those
business records, and that's uhthe latest uh from them.
And uh I guess if this fellowwants to go back to the welfare
office, he can do so.
(21:46):
He just uh shouldn't bring thebig stick.
Adam Stirling (21:48):
So that's the latest on business records uh
and the Court of Appeal.
Legally speaking, on T FactsIntevity with Michael Mulligan
from Mulligan Defense Lawyers.
Thank you so much, Michael.
Pleasure as always.
Thanks so much.
Always great to be here.
All right.
Quick break news is next.
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