Here is somemore information about Bryant Cragun the Boiler Room Guy
Stock promoter's divorce reveals life of luxury
David Baines
Vancouver Sun
Saturday, May 13, 2006
CREDIT: Vancouver Sun/Handout
From 1986 to 1997, Vancouver businessman MARK HARRIS worked in phone rooms that used high-pressure methods to sell stocks, most of dubious value, to people all over the world.
For more than a decade, Vancouver businessman MARK HARRIS made a fortune running boiler rooms -- high-pressure telephone stock sales operations -- in Europe and Asia. Unfortunately for his net worth, his wife Lori made a career out of spending it.
From 1986 to 1997, HARRIS worked in phone rooms that used high-pressure methods to sell stocks, most of dubious value, to people all over the world. Initially, he manned the phones himself, but eventually became involved in setting up and overseeing the sales operations.
For various reasons, some of them regulatory, he moved often -- from Spain to Hong Kong, Macau, back to Hong Kong, then to the Philippines, California and finally Vancouver. Throughout most of this period, he worked closely with BRYANT CRAGUN, owner of a boiler room operation that was rather grandly called Oxford International Management.
Wherever he went, Lori followed. It was a nomadic existence, but it had its rewards. In his peak earning years, he made more than $500,000 US a year.
Neither of them was shy about spending it. They employed a maid, a gardener, a chauffeur, even a dog-walker. Every year, for Lori's birthday, they went to Italy. During the beach season, they spent weekends on Boracay Island, about 90 minutes from Manila.
Aside from the occasional modelling job, Lori HARRIS did not work. She took Spanish lessons, she played tennis, she flew to Hong Kong to have her hair done. But mostly she shopped.
She bought Versace, Dolce & Gabbana and other expensive designer clothes. When her credit card at Saks Fifth Avenue exceeded her limit, she simply opened another account and purchased an $8,000 full-length mink coat. She shopped so much that she hired a personal shopper to help her.
In 1995, the couple began construction of a mansion on an acre of land in Osoyoos. The project, originally budgeted at 3,000 square feet and $500,000, ballooned to 6,000 square feet and $3 million, including an outdoor dining area modelled after the Four Seasons Resort in Bali and five Versace carpets costing more than $100,000.
In 1997, HARRIS returned to Vancouver to provide investor relations services for many of the same companies he had been selling by phone. Business was initially good, but by 2000, the MARKet had collapsed. His income was decimated and his marriage in a shambles. In 2002 they separated.
Unable to agree on a division of assets, the couple went to court. In a 10-day trial earlier this year, and in a 14-page decision released just days ago, their private lives were laid bare, providing unique insight into the controversial and lucrative business of boiler room operators.
Not mentioned are the people who bought stock from HARRIS's teleMARKeters. According to newspaper accounts, court records and securities filings, many of them lost substantial amounts of money.
One was Guy Fletchere-Davies, a 62-year-old carpet manufacturer in Melbourne, Australia. He told the Wall Street Journal in August 2000 that he bought shares of ZIASUN Technologies Inc., which traded on the dreadful OTC Bulletin Board in the U.S., and several other junior stocks, from the Manila office of Oxford International Management, where HARRIS ran the teleMARKeting operation.
Fletchere-Davies said his brokerage account was passed around among several Oxford salespeople, then to a successor firm. In late 1999, "the phone calls stopped and the paperwork dried up." ZIASUN collapsed and he lost $150,000.
By this time, HARRIS had left Oxford and at CRAGUN's behest he had set up an investor relations business, Veritas MARKeting & Communications Group Ltd., with offices in Vancouver and Solana Beach, Calif., to help promote ZIASUN and other stocks that Oxford was selling.
Oxford and Veritas have since shut down and CRAGUN has reportedly retired, but HARRIS continues to provide investor relations services through a private firm, Skylla Capital Corp., which operates out of a corner office in Park Place in downtown Vancouver.
Skylla is the grotesque six-headed monster in Greek mythology that swooped down on passing ships and sea creatures, but HARRIS denies that any of his business activities have been predatory: "Every company I have been associated with was fully registered and all the companies we recommended were legitimate," he said in an interview this week.
n
HARRIS is now 49, but his boyish good looks make him appear much younger. He dresses and speaks in a casual but calculated way. His cell phone rings incessantly. For the most part, he ignores the calls to focus on a Vancouver Sun reporter who, uninvited and unannounced, has dropped into his office.
According to the divorce action, HARRIS was born and raised in Calgary. He dropped out of school in Grade 11 and worked at a steel mill, as a truck driver, at McDonald's, and as a car salesman.
In 1986, he met and married Lori, seven years his junior. He began training as a stock broker, then a friend offered him a job with a firm called Indigo Investments in Torremolinos, Spain.
"He immediately began work as a teleMARKeter persuading prospective clients to purchase stock in companies," Judge Linda Loo noted in her judgment.
It was clear that he had an aptitude for the job. He made $5,000 in his first month. The following year, he got a better job as "teleMARKeting sales manager" for a firm called Equity Management Services in Marbella, Spain. It paid $10,000 per month plus a percentage of the business that the phone room generated.
However, the judge noted, "the job ended abruptly after about a year when the payroll failed to materialize." HARRIS told The Sun he's "not 100 per cent sure why it shut down." But in the fluid world of boiler rooms, such businesses disappear and reappear with alarming frequency and speed. In this instance, the phone team was offered similar work in Hong Kong starting the following week.
Within five months, HARRIS was back making $10,000 per month, but once again, the job suddenly ended, this time when the Hong Kong Securities and Exchange Commission intervened. Why the commission intervened is not explained.
HARRIS found work in a similar operation in Macau, but the couple found the living and working conditions unagreeable, so they decided to use their savings to travel throughout Europe and Asia.
In 1990, HARRIS returned to Hong Kong and teamed with BRYANT CRAGUN, a former senior vice-president with Goldman Sachs, in another teleMARKeting operation. Within months, however, Hong Kong regulators once again stepped in and the phone room was shut down. Once again, no reason is given. HARRIS told The Sun that, to meet capital requirements, the firm had posted shares of an OTC Bulletin Board company rather than a Nasdaq company, and the authorities refused to accept them.
The following year, in April 1991, CRAGUN established another teleMARKeting business in the Philippines, Oxford International Management, which styled itself as a "U.S. equity fund manager." He hired HARRIS to manage the phone room, with huge success.
Within four months, HARRIS was making $10,000 US per month, plus a percentage of sales. By 1993, the firm had grown to 50 employees and he was making more than $250,000 US per year. By 1995, the firm had offices in Spain, Brussels, Taipei, Indonesia and Bangkok, and he was making $500,000 US annually.
Life was good. The couple travelled extensively. Each Christmas they stayed at the Four Seasons Hotel in Bali. During the summer, they spent weekends on Boracay Beach, where HARRIS invested $200,000 in an aquasports business which provided them with boats and jet skis, but generated nothing in the way of profits. They also invested $85,000 in an Indian cuisine restaurant in nearby Subic Bay.
Lori was, by all accounts, an excellent hostess. She entertained HARRIS's business colleagues at Boracay Beach and helped arrange Oxford's annual Christmas party, which was attended by up to 400 guests. She also attended dinner meetings with MARK's clients and prospective clients.
"He considered his wife an asset because together, they were an attractive, well-dressed couple," Loo noted. But other than spending money, the judge said, "she took almost no interest in her husband's work or their finances."
In an interview this week, Lori HARRIS said she understood her husband was involved in "venture capital," but didn't know any details. "I knew it was teleMARKeting, but I didn't know the stocks or the names of the companies he was promoting," she said.
n
Oxford had a stable of junior companies that it organized, financed and promoted to retail investors. Among them were ZIASUN Technologies Inc. and Chequemate International Inc.
Both were listed on the OTC Bulletin Board, a trading forum that is virtually unregulated. In fact, prior to 1999, bulletin board companies didn't even have to issue financial statements.
ZIASUN and Chequemate financed their businesses by selling large blocks of stocks to foreign purchasers under a U.S. securities rule known as Regulation S.
Under this rule, issuers can avoid going through the onerous process of a registered stock offering by placing the shares with "accredited investors" outside the country. The condition is that these shares cannot be sold back to U.S. investors for at least a year.
CRAGUN, as an officer and director of ZIASUN and Chequemate, arranged for these companies to sell large blocks of unregistered stock to Oxford and related boiler rooms, which MARKed up the share price and hyped them to investors in foreign jurisdictions.
Problem was, neither Oxford nor its employees were registered to sell stock in Ireland, Switzerland, Australia or any of the others countries where the purchasers were located. Also, the companies were long on puffery and short on substance, which made them exceedingly risky investments.
According to a June 2002 article in the St. Louis Post-Dispatch, one of Oxford's clients was Australian rancher Wally Peart. Starting in 1994, he bought seven stocks from Oxford, including Chequemate, for a total investment of $130,000 US. Little did he know, but all of the companies had close ties to CRAGUN and associates.
Peart told the newspaper that, on Oxford's advice, he never sold any of the shares, ostensibly to maximize long-term gains. "Everything seemed to work OK, and they often invited me to visit them in Manila," Peart is quoted as saying. "However, in 1999, it all folded and my retirement fund disappeared."
HARRIS rejects the characterization of Oxford as a "boiler room." He said the firm made sure it was licensed in every jurisdiction in which it sold stock. However, when asked if the firm was licensed to sell stock to Australian investors such as Peart, he replied: "I can't answer that question. I don't know exactly."
He also said the companies that Oxford recommended were all legitimate companies and a lot of Oxford clients made money. "I bought IBM and lost a lot of money on it. It's all based on timing," he said.
He also said neither he nor CRAGUN have ever been accused of wrong-doing. CRAGUN told the Wall Street Journal that the U.S. Securities and Exchange Commission spent five years investigating his role in selling Regulation S shares overseas and it "never filed anything against me."
n
A large chunk of money supplied by investors like Peart found its way back to B.C.
The HARRIS's bought the acre of land in Osoyoos and began constructing their mansion. It had seven bathrooms and marble tiling throughout, even in the mechanical and laundry rooms.
They paid $35,000 for chandeliers, $40,000 for a wrought iron staircase and $25,000 for a desk for MARK's home office. In all, they spent $225,000 on furnishings. The total cost was more than $3 million. "It is the most expensive house in Osoyoos," the judge observed.
But the gravy train was coming to a halt. By 1996, Oxford had over 10,000 clients, but according to Loo, the stock MARKet had turned and HARRIS "was forced to deal with unhappy investors."
CRAGUN opened an investment banking business in San Diego and invited HARRIS to join him. In October 1997, MARK and Lori moved to Del Mar, just outside San Diego, and rented a 3,200-square-foot ocean-view home for $4,750 a month. They also bought a Porsche 911 for $96,000 US and a 540 BMW for $65,000 US.
Within a few months, CRAGUN decided he wanted HARRIS to help him support the public companies that he was promoting. So HARRIS incorporated Veritas MARKeting & Communications with offices in Vancouver and Solana Beach, Calif. He commuted back and forth, spending Tuesdays to Friday in Vancouver, and Saturday to Monday in Del Mar.
Veritas provided investor relations services for several companies, including ZIASUN. At its peak, it had 20 employees, but it was not a lucrative enterprise. HARRIS was paid in shares, which initially soared in value, but by the time they became free-trading, the share price had collapsed. ZIASUN, for example, rose to $30, but plunged to 30 cents by the time they were cleared for trading.
In 2001, HARRIS's total income slumped to $10,000, but Lori could not adjust to this new financial reality. As Judge Loo reMARKed: "Her passion for high-end designer fashions continued undeterred." Among the items she bought, over her husband's objections, was an $8,000 full-length mink coat from Saks. The following month, in September 2002, they separated.
"There is no doubt that Ms. HARRIS has a clothes-buying habit," the judge observed.
n
Since their separation, Lori has been living in the Osoyoos mansion, but Judge Loo has ordered that it be sold and net proceeds divided between them. She also ordered MARK to pay $150,000 spousal support in two equal instalments in January 2007 and January 2008.
It is not clear what Lori will do. "Mr. HARRIS has suggested avenues Ms. HARRIS might explore, such as being a veterinary assistant, because she loves animals, or being a personal shopper, because she has exquisite taste and enjoys interacting with people," Loo noted.
However, she added, Lori "has taken no real steps towards finding work or training because she claims she is too emotionally distraught...."
In 2003, MARK returned to Marbella, Spain, to set up offices for another teleMARKeting firm called Global Capital Asset Advisors. At about the same time, he began a common-law relationship with Jonni-Colleen Sissons, then a broker with IPO Capital Corp.
In January 2004, Sissons gave birth to their son in Malaga, Spain, and they have since returned to Vancouver. Sissons is now registered with Northern Securities and MARK is pursing his investors relations business through Skylla Capital.
He refuses to say who his clients are: "I have been advised by my lawyer not to say anything further to you."
dbaines@png.canwest.com
© The Vancouver Sun 2006
Genmed's Harris pleads not guilty in L.A.
2013-03-07 12:48 ET - Street Wire
Also Street Wire (U-EMPM) Empire Post Media Inc
Also Street Wire (U-FROG) FrogAds Inc
Also Street Wire (U-HAIR) Biostem US Corp
Also Street Wire (U-SENZ) Sport Endurance Inc
by Mike Caswell
Mark Harris, the former Vancouver promoter facing criminal charges in the United States for several pump-and-dumps, has pleaded not guilty. He entered the plea in a brief appearance before a judge in Los Angeles on Feb. 27, 2013. The judge then allowed his release on a $700,000 bond, with the conditions to include house arrest. (All figures are in U.S. dollars.)
Prosecutors claim that Mr. Harris, 56, was part of a group of serial market manipulators that generated $30-million in illegal profits from a number of pump-and-dumps. The group secretly took control of OTC Bulletin Board companies and promoted the stocks with false or misleading information. The men then allegedly dumped millions of shares and moved the proceeds from the scheme offshore.
Mr. Harris was initially arrested in Arizona on Feb. 13, 2013, when a pair of indictments against him and 13 others were unsealed in California. The U.S. Marshals Service transported him to Los Angeles, where he remained in custody until he pleaded not guilty last week. After he entered the plea, the judge fixed his bond at $700,000, of which $100,000 his wife Jonni would satisfy and the remainder he and his wife would jointly provide.
ARIZONA REAL ESTATE
Mark Harris's House
The judge also ordered him to remain under house arrest at his home in Arizona, to be enforced by electronic monitoring. He may only leave to drive his son to and from school. Other terms of his release include travel restrictions, avoiding contact with his co-defendants, and submitting to drug and alcohol testing.
The move from jail to home will be a substantial upgrade in accommodations for Mr. Harris. The address listed in his release documents is for a 4,407-square-foot home in Scottsdale, Ariz. According to an old real estate advertisement, the house has five bathrooms, a pool and parking for three cars. The average list price of homes in his ZIP code is $1.55-million.
Fraud charges
The charges against Mr. Harris are detailed in a pair of indictments unsealed in the Central District of California on Feb. 13, 2013. The charges included securities fraud, wire fraud and international promotional money laundering. Prosecutors claimed that Mr. Harris and others ran a pump-and-dump scheme that began around 2009 and continued until at least December, 2012. The promotions, as described in the indictments, all followed a similar pattern: the men took control of an OTC-BB company, promoted it with false or misleading news, and then dumped their shares.
One of the examples prosecutors provided was Genmed Holding Corp., a Dutch company that claimed to be developing generic drugs. The Genmed scheme, as described in the indictment, began in early 2011, when then stock was thinly traded and was around 30 cents. According to prosecutors, the men took control of the company and then arranged a touting campaign that included paid promoters, a celebrity video and mass mailings that overstated the company's revenues.
(The recipients of that promotional money, as listed in the indictment, included a West Vancouver company called Raincity Marketing Group. The indictment did not accuse Raincity of any wrongdoing, but said that it received $165,000 through wire transfers to HSBC Bank Canada.)
As the promotion began, the stock became far more active, trading hundreds of thousands of shares per day, and reaching a 52-cent high. The company issued a news release in which it claimed to have an agreement with a pharmaceutical distributor in Ireland that would see its products sold in several countries.
Part of the promotion, according to prosecutors, was a video news release with a known actor. (Prosecutors did not identify the actor, but one of the other companies in the indictment claimed to have Pamela Anderson pitching its products.) The video shoot was the subject of a string of text messages that Mr. Harris received on March 20, 2011, prosecutors claimed. One text said the video would be distributed on "CNN Bloomberg, msnbc, local tv as well as cable across the nation ... I believe it will [be] a great tool for [the third party stock promotion groups]."
One of Mr. Harris's co-defendants, Grover Nix, had high expectations for the promotion, according to the indictment. In an intercepted conversation he said, "I'm fucking truly excited like a kid at Christmas." In all, prosecutors claim that the men made $2.1-million from the Genmed promotion.
The defendants, in addition to Mr. Harris, are Sherman Mazur, Ari Kaplan, Grover "Colin" Nix, Regis Possino, Edon Moyal, Joseph Davis, Curtis Platt, Dwight Brunoehler, Tarun Mendiratta, Ivano Angelastri, Joseph Scarpello, Julian Spitari, Peter Dunn and William Mackey. Most of the men are from California.
The stocks, in addition to Genmed, were Sport Endurance Inc., Empire Post Media Inc., FrogAds Inc. and Biostem U.S. Corp. None of the companies are named as defendants.
The case is scheduled for a trial by jury starting April 23, 2013.
Prior to Arizona, Mr. Harris lived in Vancouver on and off for many years, holding himself out as an investor relations man. He ran a private firm called Skylla Capital Corp., which operated from an office on Burrard Street. The Vancouver Sun's David Baines reported in 2006 that he had a child with former Northern Securities Inc. broker Jonni-Colleen Sissons.
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Bryant Cragun,
Mid 90's, Philippines
web.archive.org
Boiler Room operator Bryant Cragun and wife Mrs World 2008 Eimee Cragun (The beautiful people)
Harris v. Harris, 2006 BCSC 644 2006-04-21
IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
Harris v. Harris,
2006 BCSC 644
Date: 20060421
Docket: E042154
Registry: Vancouver
Between:
Lori Lynn Harris
Plaintiff
And
Mark Alan Harris
Defendant
Before: The Honourable Madam Justice Loo
Reasons for Judgment
Counsel for the Plaintiff
G. A. Lang and M. Bjelos
Counsel for the Defendant
S. J. Zukerman
Date and Place of Trial/Hearing:
14-17 November 2005; and
1-3 and 8-10 February 2006
Vancouver, B.C.
[1] After 16 years of marriage, the plaintiff Lori Harris and the defendant Mark Harris separated in September 2002. There are no children of the marriage. Ms. Harris who was 38 years old at separation, did not work during the marriage and has not worked since. She seeks seventy per cent of the net equity in the matrimonial home based on a value of $1.9 million, and lump sum spousal support of $200,000. The legal foundation for her claims is said to be as follows:
1. This is a long marriage.
2. Ms. Harris has no employment skills and was not able to advance her education or work skills during the marriage.
3. Ms. Harris followed her husband from Florida to Spain to Hong Kong to the Philippines and then to California.
4. Ms. Harris has no benefits, no life insurance, no pension, and no future security beyond her share of the family assets.
5. Ms. Harris is unlikely in the short term to achieve self-sufficiency. If Ms. Harris is able to complete a real estate course, she will be part of an industry that is economy driven with a reputation for significant drop-out rates.
6. Mr. Harris' tax-free and off-shore existence will make it difficult for Ms. Harris to rely on monthly periodic payments.
[2] The parties started their married life in 1986 with few, if any, assets. Ten years later, they had over $1 million (U.S.) in a Swiss bank account and lived a fairly luxurious lifestyle. The bank account has dwindled to less than $30,000.
[3] Ms. Harris in her evidence focussed on the lavish lifestyle she once had. Mr. Harris focussed on the rise and fall of his income in telemarketing and investor relations and Ms. Harris' excessive shopping habits. Ms. Harris argues that Mr. Harris is not credible, that he "ran his affairs like one big ball", and that all of his business assets, primarily a brokerage account, should be considered family assets.
Background
[4] The parties were married in Banff, Alberta in May 1986 when Ms. Harris was 22 years old and Mr. Harris was 29.
[5] Ms. Harris was raised in Calgary and has a grade 11 education.
[6] Mr. Harris attended junior high school in Arizona before moving to Calgary. He dropped out of school in grade 11 and went to work in a steel mill. He saved money and travelled for 10 months throughout Asia. When he returned to Canada he took jobs that ranged from truck driving, to working at McDonalds, and selling cars. He was a car salesman when the parties met and married.
1986-1989: Telemarketing in Spain and Hong Kong
[7] Shortly after they were married, Mr. Harris worked as a floor tiler in Florida, but found the work too physically demanding. He began training as a stock broker when a friend offered him a job telemarketing with Indigo Investments in Torremolinos, Spain. The couple had only $500 and no credit. Mr. Harris purchased an airline ticket on his mother’s credit card and gave the $500 to Ms. Harris so that she could travel to Spain ahead of him and stay at a friend’s place. Mr. Harris worked for another six weeks, saved about $2,500, and joined his wife in Spain in October 1986. He immediately began work as a telemarketer persuading prospective clients to purchase stock in companies. He earned $5,000 in his first month.
[8] The couple returned to Calgary for a summer vacation in 1987. Shortly after they returned to Spain, they moved to Marbella, Spain when Mr. Harris became the telemarketing sales manager for Equity Management Services ("EMS"). For his work Mr. Harris received a percentage of the business and a salary of about $10,000 a month. The job ended abruptly after about a year when the payroll failed to materialize. However, EMS' telemarketing team was offered similar work in Hong Kong starting the following week.
[9] Within a few days the parties moved from Spain to Hong Kong and within five months, Mr. Harris' commission income was back up to $10,000 a month. However, eight months later, the Hong Kong Securities and Exchange Commission (SEC) forced the telemarketing operations to shut down. Mr. Harris tried working for a similar operation in Macau but the parties found working and living in Macau extremely uncomfortable. After about a month the parties decided to leave Macau and use their $100,000 in savings and travel.
1989-1990: Travelling and Living off Savings
[10] The parties travelled to the Philippines, Indonesia, Thailand, Europe and London. They returned to Calgary in February 1990 with about $35,000. They spent $20,000 for a 1989 GMC four wheel drive so they could go skiing, and by the summer of 1990, they had used up all of their savings.
1990-1997: Hong Kong and the Philippines
[11] Around August 1990, Bryant Cragun, a former senior vice-president with Goldman Sachs, sought Mr. Harris' assistance in setting up a telemarketing operation in Hong Kong. After borrowing $5,000 from his father the parties moved to Hong Kong in October 1990 and Mr. Harris started work. Just four months later, the Hong Kong SEC caused the telemarketing operations to close.
[12] The parties and Mr. Cragun travelled through Singapore, Jakarta, Bangkok, and the Philippines looking for another jurisdiction in which to live and establish a similar telemarketing operation. Mr. Cragun chose the Philippines where Oxford International Management ("OIM") began operating as a U.S. equity fund manager.
[13] OIM began operations in April 1991, and within four months, Mr. Harris' salary doubled to $10,000 (U.S.) a month, plus a business override and a percentage of the sales he generated. By the end of 1991, Mr. Harris' earnings approached $15,000 a month. By 1993 OIM had grown to fifty employees and Mr. Harris earned over $250,000 (U.S.) annually.
[14] In 1993 Mr. Harris incorporated United Holdings Ltd. (“United Holdings”), an off-shore company, in order to open a joint bank account with Swiss Bank Corp. in Geneva, later the Union Bank of Switzerland (the ”UBS account”). He explained to Ms. Harris about the UBS account and where the UBS account documents were located. The parties are equal shareholders in United Holdings.
[15] By 1995 OIM had offices in Spain, Brussels, Taipei, Indonesia, and Bangkok, and Mr. Harris' earnings were upwards of $500,000 (U.S.) annually.
[16] Other than the occasional modelling job, Ms. Harris did not work. However, she took Spanish lessons in the Philippines for four months, and spent her time shopping, playing tennis, travelling with Mr. Harris, flying to Hong Kong to have her hair done, and looking after the house and staff. The parties had a maid, gardener, part-time carpenter, dog walker, and a driver who drove Mr. Harris to work, and then returned to the house to drive Ms. Harris wherever she wanted to go.
[17] The couple went to Italy for Ms. Harris' birthday each year, and to the Four Seasons Resort in Bali each Christmas. They stayed at some of the world's top hotels and each summer returned to Calgary and the Okanagan to visit their families.
[18] During the beach season from November to April the parties spent their weekends on Boracay Island about an hour and a half from Manila. Mr. Harris bought a boat they could use on the weekends. However, after recognizing the effort involved in pulling the boat in and out of the water every weekend, he started a small aquasports business. Mr. Harris invested approximately $200,000 in boats, jet skis, and other equipment, and built a small beach house upstairs from the aquasports business that had up to five employees. Mr. Harris made no money from the venture. As he stated, it gave them a lot of enjoyment for three or four years, but otherwise, the business lined the pockets of others.
[19] During the beach season, Mr. Harris' business colleagues, most of whom were expatriates, arrived at the beach house on Fridays after work. Ms. Harris was a good hostess and looked after the wine and cheese and other appetizers.
[20] Ms. Harris also helped arrange OIM's annual Christmas party which had as many as 400 people attending. She also helped Mr. Harris entertain at home at least twice a month.
[21] Mr. Harris invested approximately $85,000 in a small restaurant known as Rama Mahal in Subic Bay that Ms. Harris helped decorate. The parties agree that the restaurant is a family asset valued at $30,000 (U.S.) and that it will be retained by Mr. Harris.
[22] Mr. Harris' work included travel, and meeting clients and prospective clients for lunch or dinner. He often brought Ms. Harris along with him at dinners. He considered his wife an asset, because together, they were an attractive, well-dressed couple. Ms. Harris enjoyed the travelling and being able to use her credit cards "freely", but otherwise she took almost no interest in her husband's work or their finances.
The House in Osoyoos
[23] In 1995 the parties purchased from Ms. Harris' step-father, Ted Takacs, one acre of his Osoyoos orchard for $115,000. Their initial plan was to build a 3,000 square foot retirement home for approximately $500,000. Construction started in 1995 and completed in 1996. During that time, the parties lived in the Philippines so most of their directives to the contractor or architect went by fax.
[24] The house grew to 6,000 square feet, with seven bathrooms and marble flooring throughout, including the mechanical and laundry rooms. Ms. Harris had the outdoor dining area copied after the Four Seasons Resort in Bali; chandeliers cost $35,000, and a wrought iron staircase cost $40,000.
[25] In the summer of 1998 the parties began furnishing the house. A desk for Mr. Harris' home office cost $25,000 and Ms. Harris insisted on purchasing five Versace carpets for more than $100,000. Mr. Harris estimated they spent $250,000 furnishing the house. All of it came from their UBS account.
[26] The final cost for constructing and furnishing the house was over $3 million. The house was appraised at $1.7 million in January 2006. This appraisal is the average of an estimated market value of $1.5 million using the direct comparison approach, and $1.9 million using a cost approach.
[27] The comparison approach was based on three comparable sales in the Penticton area because no comparable sales exist in the Osoyoos area. It is the most expensive house in Osoyoos and would likely take months to sell if it were listed for sale.
[28] Ms. Harris testified that she wanted to retain the home but said that she would not remain in Osoyoos but would likely return to California if she does not get the home. In closing argument, Ms. Harris did not seek to retain the home but sought seventy per cent of the net equity in the home based on a value of $1.,9 million.
1997: Del Mar, California
[29] By 1996 OIM had over 10,000 clients, but Mr. Harris was under tremendous pressure as the markets began a downward turn and he was forced to deal with unhappy investors. He needed and wanted a change.
[30] Mr. Cragun was opening an investment banking business in San Diego, and Mr. Harris saw that as an opportunity to expand his knowledge of investment banking. Mr. Harris felt comfortable starting a new life in California and accumulating more wealth. Their UBS account had reached over $1 million (U.S.) and they had paid cash for the house in Osoyoos, although it still had to be furnished.
[31] In October 1997 the couple moved to Del Mar, just outside of San Diego, and rented a 3,200 square foot ocean view home for $4,750 a month.
[32] After Mr. Harris had received two pay cheques for a total of $20,000 (U.S.), around the fall of 1997 Mr. Cragun decided he wanted Mr. Harris to help him support the public companies he had invested in and work in investor relations ("IR") rather than investment banking.
[33] In December 1997 Mr. Harris purchased a 1998 Porsche 911 for $96,000 (U.S.) and in January 1998 he ordered a 1998 540 BMW for $65,000 (U.S.). The money came from their UBS account.
The Osoyoos Vineyard
[34] Sometime in 1998 Mr. Takacs convinced Mr. Harris to become a partner in his vineyard and enter into an option to purchase a portion of his property when it could be subdivided. In the last four years, the parties have spent $350,000 in equipment and grapes for the vineyard, but the venture has gone sideways. The parties have jointly commenced litigation against the Takacs and agreed that they will share equally in any resulting proceeds.
1998-1999: Veritas Communications
[35] In the spring of 1998, Mr. Harris began operating Veritas Communications, an IR firm in Vancouver, and six months later, he also began operating an IR firm in Solana Beach near San Diego. He spent Tuesday to Friday in Vancouver, and Saturday to Monday in Del Mar.
[36] Veritas leased a vehicle for Mr. Harris, and an apartment in Vancouver where he and other Veritas employees stayed when they were in town.
[37] Starting in the summer of 1998 the parties used their house in Osoyoos as a summer home and Mr. Harris continued to commute extensively. The full-time maid that the parties had in the Philippines for seven years came to work in Del Mar and Osoyoos during the summers.
[38] Other than the $20,000 in salary earned in the fall of 1997, and approximately $23,000 which represented a one per cent override on the operations in the Philippines that Mr. Cragun had agreed to pay him for six months following his departure from the Philippines, Mr. Harris received no other income in 1997. The parties lived off their UBS account.
[39] Mr. Harris explained how the IR business works:
Investor relations works like any other business. I go out and find product, stock or companies that are looking to promote their shares, give it more value, more visibility, and they will pay me in either stock or cash for those services. When the stock is given to me its not necessarily my stock; it's stock to be used to generate income to provide marketing services, and if a contract is cancelled, then quite often I will have to send the stock back, because the contracts are over normally three months, six months or a year periods. Once the stock is sold I create income and then I use that income to provide marketing services, telemarketing services, email services, direct mail services, a whole number of ways. I get them listed on foreign exchanges, such as Frankfurt, Berlin, the AIM Exchange in London, which all require costs, and at the end of the day its like running a grocery store. Once I have created the revenue, I spend whatever it takes to get the job done and I anticipate, you know, maintaining at the end of the day at least a 20% profit margin, and if things go well, a 40% margin, and if the stocks or company does exceptionally well and the stock actually goes up dramatically in value, possibly a lot more than that. And then the opposite side: if the stock or company is failing for one reason due to economic conditions or not hitting their financial targets, their stocks go down, and so then my profit margins sometimes completely evaporates. So it's a risky business and to a certain degree a stressful business.
[40] Mr. Harris received no income and drew no salary in 1998 or 1999 as the "war chest" of stock grew and he anticipated recovering a large profit or equity position in the companies Veritas was promoting. At its peak, Veritas had more than 20 employees and monthly overhead of over $100,000. At times the overhead exceeded profit, and Mr. Harris lent the company money to meet its payroll.
[41] Ash Katey is a chartered accountant who looks after a number of IR firms. Mr. Katey's explanation as to how IR firms generally operate is consistent with Mr. Harris' statement:
Q And is there a business model that investor relations people use when conducting their business?
A Well, generally the standard way will be that the investor relations person will receive a lot of shares from either the public company or, more often, from the principal shareholder of public company as an inducement to start working in increasing the price of those shares in the stock market. As the price goes up, then he can sell those shares, receive the cash, pay for the expenses, and it, of course, benefits the principal shareholders who have stock shares in those companies to now get larger sale price for their shares. From the sale price of shares, then they pay their expenses, subcontractor, and all the other things, but almost all the time the remuneration depends on how well the share prices do. If they go down and down and down, they may not have enough money to pay all their expenses. If they go up, they will become rich.
[42] Mr. Harris did not become rich. The shares were almost worthless by the time he was able to trade them. For example, ZiaSun Technologies Inc. traded between $3 and $5 a share when Mr. Harris received several thousand restricted shares as compensation under the terms of an IR contract. The stock went as high as $30. By the time the shares became freetrading in late 1999 they had plunged to $0.30 a share.
[43] When Mr. Cragun retired in 1999, Rory Boyce-Varley, an internet marketing specialist, became Mr. Harris' business partner in Veritas. The financial prospects for 2000 looked promising when Trademex placed a million shares in escrow, and Internet Studios promised two million shares. However, in 2000 things went from bad to worse. Internet marketing started its downward spiral, Trademex was de-listed, and unbeknownst to Mr. Harris, Mr. Boyce-Varley swapped Internet Studios restricted shares for freetrading shares and sold them. Mr. Harris returned from California to find that his partner had cleaned out his office and apartment, and left the country.
[44] In 2000 Mr. Harris' income was only $12,700 plus $85,000 in loan repayments from Veritas. By the end of 2000 the UBS account stood at $631,000.
[45] In early 2001, with tax losses of $888,632, and unpaid payroll taxes of over $10,000, Veritas ceased operations.
[46] Throughout these difficult financial times, Mr. Harris tried to explain to Ms. Harris that they had to live with less, but Ms. Harris refused to listen, and continued with her shopping habits.
2001: IMI Net Media
[47] In 2001 Mr. Harris started IMI Net Media, a small IR company with two employees. It had one or two clients that Mr. Harris hoped would be sufficiently successful so his company could profit.
[48] In March 2001 United Holdings opened a brokerage account with Research Capital, a Canadian brokerage firm which Mr. Harris used to place stock that he received as compensation for his IR work. Unfortunately, the stock market for internet companies was still depressed, and IMI Net Media ceased operating in early 2002 with net losses of $187,338.
[49] Mr. Harris' only income in 2001 was $10,000. By the end of 2001 the parties had spent more than $300,000 of their savings. They could not afford to travel in 2000 or 2001, but Ms. Harris' passion for high-end designer fashions continued undeterred. She spent around $100,000 on clothes and merchandise in 2000 or 2001.
The Separation
[50] The parties separated in September 2002 after 16 years of marriage.
[51] Unable to afford the cost of two homes, Mr. Harris ended the tenancy on the house in Del Mar. The household contents were packed and shipped to their home in Osoyoos. Ms. Harris' statement that she "did it all myself without any help from Mark" is an exaggeration. Mr. Harris paid $20,000 in moving costs that included three men who took two days to pack the household contents. Ms. Harris' mother helped Ms. Harris pack her personal belongings.
[52] Since October 2002, Ms. Harris has resided in Osoyoos.
[53] Daniel Munroe, the landlord of the house in Del Mar, obtained judgment against the parties for $11,600 (U.S.) for the unexpired term of the lease and registered the judgment against the Osoyoos property.
[54] The parties have a joint bank account at the CIBC branch in Osoyoos. At the time of separation their line of credit stood at $59,000. In November 2002 Ms. Harris withdrew $25,500 from the line of credit. She used $6,000 for plastic surgery and the balance for living expenses. In January 2003 Mr. Harris began depositing regular monthly payments of $5,000 (U.S.) a month into the CIBC account. From that Ms. Harris pays $2,370 a month for the mortgage, house insurance, and utilities. In addition to the $60,000 (U.S.), Mr. Harris also pays for the property taxes, Ms. Harris' car insurance and repair costs, the house, pool, and garden maintenance expenses, including the wages and accommodation expenses of the gardener for six months of the year, for a total of close to $100,000 each year since separation. Ms. Harris has also spent an additional $80,000 from the joint line of credit since separation.
2003-2004: Mr. Harris Returns to Work in Spain
[55] In February 2003 Mr. Harris sold the 1998 Porsche for $65,000. On February 17, 2003 he opened a Bank of Montreal account, deposited the $65,000 and transferred $10,000 to pay for the parties’ outstanding debt in their Wells Fargo account in California.
[56] At the beginning of 2003 there was only $127,000 remaining in the UBS account. Due to his lack of financial success in Vancouver, Mr. Harris returned to Marbella, Spain as a United Holdings consultant, to set up offices for Global Asset Advisors. At the same time he began a common law relationship with Jonni Sissons.
[57] Mr. Harris found the work environment in Spain much more difficult and competitive than before. From his 2003 gross revenue of $273,000 that he deposited into the UBS account, roughly $153,000 remained after operating expenses, including office overhead and the salary of three employees. Mr. Harris sent $97,000 to Osoyoos, which included $5,000 (U.S.) per month for spousal support in addition to money for property taxes and house maintenance. That left Mr. Harris with under $60,000 to support himself and Ms. Sissons. He supplemented this amount with $7,000 withdrawn from the UBS account and approximately $40,000 in gains generated in the Research Capital account. That year, Mr. Harris also paid $7,000 in legal fees incurred by Ms. Harris to defend a driving offence.
[58] In 2004, Mr. Harris generated gross revenue of $335,000, out of which he paid operating expenses of $150,000. He again sent $97,000 to Osoyoos, leaving him with about $88,000. He supplemented this amount with $38,000 from the UBS account, reducing its balance to below $100,000. On January 24, 2004, Ms. Sissons gave birth to their son in Malaga, Spain. The cost for hospital care was approximately $25,000, leaving Mr. Harris with about $100,000 to support himself, Ms. Sissons, and their newborn.
[59] In June 2004 Mr. Harris and his new family returned to Canada. He became a Canadian resident on June 27, 2004. Until then, and for most of the marriage, Mr. Harris had been a non-resident. He began working as an IR consultant and using the United Holdings brokerage account Research Capital for his business dealings. In the fall of 2004 he became the sole shareholder of Skylla Capital Corp. and rolled into that company the IR contracts he entered into that year. His income from Skylla from June 2004 to June 2005 before tax amounted to $133,588. His income for the calendar year 2005 is approximately $130,000. He anticipates earning the same income in 2006.
Allegation credibility and allegations of non-disclosure.
[60] A constant and strident theme throughout the trial was that Mr. Harris made late disclosure or failed to disclose. A similar theme was Mr. Harris’ “ability to spin tales” and his lack of credibility. There is no doubt from the manner in which this trial was conducted and from Ms. Harris’ evidence that Ms. Harris sought to establish that Mr. Harris has a greater income and more assets at his disposal than he has disclosed.
[61] I observed Mr. Harris testify for more than four days. He answered the questions as best he could; he was not evasive. If there were any inconsistencies in his answers, they were minor discrepancies that he was able to explain. His evidence regarding his financial affairs was uncontradicted. I was impressed with his ability to recall dates and events and understand and recall voluminous financial records. Although Ms. Harris and her counsel tried to paint a portrait of a man who evades his taxes and bills, hides his assets, and cannot be believed, I find Mr. Harris to be credible. If there is any conflict between the evidence of Ms. Harris and Mr. Harris, I prefer the evidence of Mr. Harris.
[62] Ms. Harris struck me as quite uninterested in Mr. Harris’ business dealings or their finances during the marriage. She resolutely denied knowing anything about their finances, his work, or even why they moved from Spain to Hong Kong or elsewhere. Her answers were generally along the lines of “I had nothing to do with his office things”.
[63] For example, Ms. Harris testified that Mr. Harris told her that he had a Banco Italiano account. She said that they were out for dinner with a Banco Italiano banker and his wife when the banker said that Mr. Harris could not open an account with less than $1 million. Ms. Harris also said that she found the Banco Italiano account number from a printout from Mr. Harris’ Palm Pilot. There is however no Banco Italiano account.
[64] Mr. Harris explained the situation. He said that a UBS bank manager he had been working with left UBS to work for Prime Partners where they had higher capital limits of $1 million. He was interested in Mr. Harris’ business, but Mr. Harris was not interested in changing banks. Similarly, a bank manager at UBS went to work for Banco Italiano. He tried unsuccessfully to encourage Mr. Harris to move his account to Banco Italiano. Mr. Harris told Ms. Harris that they should have just one savings account and that it should remain at UBS.
[65] This is not a case where one spouse has kept details of his or their finances from the other spouse. This is a case where one spouse has repeatedly tried to explain details of their finances, but the other spouse was not interested in listening.
[66] This action was commenced in June 2004. The statement of defence was filed in March 2005. Ms. Harris was not examined for discovery. Mr. Harris was examined for discovery in July 2005. There were no interim applications. In October 2005 Mr. Harris delivered to the lawyer for Ms. Harris four large bankers’ boxes containing Veritas documents, cancelled cheques, GST records, banking records, financial statements, credit card statements, wire transfers, and all of the other document records that Mr. Harris was able to obtain up to that date.
[67] Mr. Harris has made more than reasonable efforts to obtain documents from the Philippines, Spain, Switzerland, California, and every place in the world he has worked or opened a bank or credit card account in the last several years, including documents of the companies that he has worked for. Understandably, it took time to obtain some of the documents. Mr. Harris was unable to obtain other documents, such as OIM's tax filings in the Philippines despite a concerted effort. Almost as soon as Mr. Harris received documents as a consequence of his search, his counsel delivered a supplemental list. Mr. Harris has produced his sixth supplementary list of documents.
[68] Mr. Harris was not examined for discovery on any of the documents contained in the four bankers' boxes. At trial he was taken almost line by line through credit card statements, bank statements, cheques, and financial statements, on the basis that it was necessitated by Mr. Harris' late disclosure. However, the cross-examination failed to shed any light on any assets that Mr. Harris has not otherwise disclosed.
[69] In preparation for trial, Mr. Harris cross-checked hundreds of documents in order to reconcile all of the funds in his Bank of Montreal account. In extensive cross-examination, he was able to state what each cheque was for, the source of the funds, and how to read various banking documents, including UBS account statements. None of his material evidence was contradicted.
The Brokerage Accounts
[70] Ms. Harris alleges that Mr. Harris avoids paying taxes, has an off-shore existence, “ran his affairs like one big ball”, and intermingled his personal and business assets. She therefore contends that all of his business assets, particularly the Research Capital brokerage account, should be considered family assets. Ms. Harris produced various schedules showing large sums of money going in and out of the Research Capital and other accounts. However, I found the schedules alone, without explanation, to be meaningless.
[71] Mr. Harris produced tax returns and financial statements for Veritas, IMI Net Media and Skylla. He said that he filed tax returns in the Philippines and described his unsuccessful efforts to obtain copies of the tax filings made in that country. Based on advice from an accountant in Spain, he understands that he has five years within which to report income.
[72] Mr. Katey testified that Mr. Harris only needed to declare income earned in Canada after June 27, 2004. Mr. Katey helped prepare Mr. Harris’ 2004 personal tax return and Skylla's corporate tax return. Over the course of three meetings between Mr. Harris and Mr. Katey or his assistant, Mr. Katey carefully reviewed and questioned various IR contracts, receipts, banking documents, credit card statements, transfers in and out of the different accounts, including UBS account records, chequebooks, the Research Capital account, and Veritas’ loss of over $800,000, in order to determine to his satisfaction which expenses and items were personal to Mr. Harris and which were business related. Except for one unrelated question, Mr. Katey was not cross-examined. I accept his evidence.
[73] Between February 2002 and August 2005 all of the cheques issued from the Research Capital account totalling close to $174,000 in Canadian funds and $247,000 in U.S. funds went towards IR contract obligations. No funds from any of the parties’ bank accounts, including the UBS account, or another personal bank account, were deposited into the Research Capital account.
[74] While United Holdings was incorporated off-shore, I do not find that Mr. Harris otherwise has an "off-shore existence". I am satisfied that he has made full financial disclosure, and that his current annual income is approximately $130,000. As his counsel asked rhetorically during closing argument: “If Mr. Harris was truly trying to hide his income, why would he deposit his 2003 and 2004 income into the UBS account? Why not open a secret account and deposit monies there?”
[75] Ms. Harris contributed neither directly nor indirectly to the Research Capital account. I am satisfied that the Research Capital account is an excluded business asset and not a family asset.
Ms. Harris' Spending Habits during the Marriage and since separation.
[76] Ms. Harris testified about expensive jewellery Mr. Harris bought during their marriage, her personal shopper, and her ability to buy Versace, Dolce & Gabbana and other expensive designer clothes on sale.
[77] Mr. Harris testified about closets so full of her clothes and shoes that he had little room in a closet for more than one shirt. He complained that she would not listen when he tried to talk to her about their finances, the cost of maintaining two expensive homes, and the need to reduce her spending. Ms. Harris continued to shop and spend as she always had.
[78] In August 2002, shortly before separation, Ms. Harris insisted that Mr. Harris come with her to Saks Fifth Avenue because she wanted an $8,000 full length mink coat. An argument ensued over the coat, and Mr. Harris stormed out knowing that Ms. Harris’ Saks Fifth Avenue credit card was at its maximum limit. Undeterred, Ms. Harris opened another Saks Fifth Avenue account and purchased the coat. The account remains unpaid. When asked about the account, Ms. Harris’ retort was that Mr. Harris has a habit of not paying his accounts.
[79] Ms. Harris swore two Financial Statements. The Financial Statement she swore in November 2005 lists total annual expenses of $218,424 which she describes as her “lifestyle before separation”, including $3,000 a month for clothing, and $537 a month for hair care and cosmetics. The Financial Statement she swore on April 21, 2005 lists total annual expenses of $97,572 or what Ms. Harris describes as her “bare minimum” including $1,000 a month for clothes and $500 a month for hair care and cosmetics.
[80] Mr. Harris argues that Ms. Harris' profligate spending habits contributed only to the depletion of the parties’ assets rather than to the acquisition, preservation or maintenance of the assets.
[81] There is no doubt that Ms. Harris has a clothes buying habit, but it is not the function of this court to delve into the parties’ spending habits during the marriage. Her expensive clothes and jewellery are not considered by the parties to be a family asset but they are a factor that may be taken into account in apportioning the family assets under s. 65(1)(f) of the Family Relations Act, R.S.B.C. 1996, c. 128: see Uchikoshi v. Suzuki, 2004 BCSC 1763 , 2004 BCSC 1763 at ¶ 49-53. In my view this must be so because the credit card debts that were incurred by Ms. Harris prior to separation and up to the triggering event, including the Saks Fifth Avenue credit card debt for the fur coat are agreed to be family debts. It is appropriate to consider the purpose for which family debt was incurred in determining an apportionment of the family assets: Mallen v. Mallen 1992 4034 (BC CA), (1992), 40 R.F.L. (3d) 114 at 117, 65 B.C.L.R. (2d) 241 (C.A.).
The Assets and the Liabilities
[82] A s. 57 declaration was made on April 21, 2005. The parties are entitled to an undivided half interest in the family assets as of that date, subject to any reapportionment.
[83] The family assets, excluding the former matrimonial home, are as follows:
ASSETS
ITEM
VALUE
(CDN Dollars)
RETAINED BY
1998 BMW 840
$24,000.00
Plaintiff
CIBC Account #72-56337
$1,869.31
Plaintiff
Dzigurski Painting
$10,000.00
Plaintiff
Versace carpets
$50,000.00
Plaintiff
1991 BMW 850
$15,000.00
Defendant
1998 Yamaha Scooter
$2,100.00
Defendant
21 Foot SeaRay Boat
$20,000.00
Defendant
CIBC USD Account Term Deposit
$109,973.22
Defendant
UBS Swiss Account
$34,296.00
Defendant
Thai Oil Painting
$10,000.00
Defendant
Persian carpets
$50,000.00
Defendant
Shares in Rama Mahal Restaurant
$34,296.00
Defendant
Other household contents, excluding clothing and jewellery
To be determined by inventory and valuation
Plaintiff and Defendant equally
Value of assets retained
$85,869.31
Plaintiff
Value of assets retained
$275,665.22
Defendant
[84] The family debts are as follows:
DEBTS
ITEM
AMOUNT
(CDN Dollar)
CIBC Mortgage (as of May 19, 2005)
$233,875.00
CIBC Joint Line of Credit
$119,694.50
CCRA owing by Mark Harris
$9,711.00
Property Taxes owing
$4,227.33
Del Mar landlord's judgment
$19,958.11
Taxes payable by Mr. Harris on 2004 income
$17,995.00
Ms. Harris' credit card debt
$42,796.46
Mr. Harris' credit card debt
$29,591.08
TOTAL DEBTS TO BE DIVIDED
$477,848.48
[85] I have not included in the assets the proceeds of the 1986 and 1988 Porsches as Ms. Harris would like because they were sold before the triggering event and the proceeds were used by Ms. Harris or otherwise used for the Osoyoos property for a family purpose.
[86] As I indicated earlier, while I do not include Ms. Harris’ fur coat or jewellery worth approximately $100,000 in the family assets, it is appropriate to consider their value, because they were purchased with family assets and some of the purchases remain a family debt. Mr. Harris’ four brokerage accounts, including the United Holdings account with Research Capital, are excluded business assets. The gross value of these brokerage accounts as of December 31, 2005 was $51,460.36. Finally, while United Holdings is a family asset, the shares currently have no value. Mr. Harris will retain the shares in United Holdings, Veritas, IMI, and Skylla, all of which have no value.
Ms. Harris’ Claim for Reapportionment and Support
[87] Ms. Harris seeks seventy per cent of the net equity of the former matrimonial home based on a value of $1.9 million and $200,000 in lump sum spousal support. Her claim appears to be based primarily on need.
[88] Mr. Harris is willing to pay Ms. Harris one-half the $1.9 million value of the matrimonial home which is $200,000 above the appraised value and lump sum spousal support of $100,000. However he requires time to organize his affairs in order to raise the funds to do so.
[89] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides:
Objectives of spousal support order
15.2(6) An order made under subsection (1) or an interim order under subsection (2) 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 any obligation for the support of any child of the marriage;
(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.
[90] The Family Relations Act, R.S.B.C. 1996, c. 128, provides:
Judicial reapportionment on basis of fairness
65(1) If the provisions for division of property between spouses under section 56, Part 6 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 56, Part 6 or the marriage agreement, as the case may be, be divided into shares fixed by the court.
Obligation to support spouse
89(1) A spouse is responsible and liable for the support and maintenance of the other spouse having regard to the following:
(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;
(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.
[91] Under s. 65 of the Family Relations Act, it is necessary to determine whether an equal division of the assets would be unfair.
[92] The duration of the marriage was 16 years which by itself would tend towards equality of division (see S.B.M. v. N.M. 2003 BCCA 300 , (2003), 14 B.C.L.R. (4th) 90, 2003 BCCA 300 at ¶ 23). The parties have been apart for three and a half years. During this time Ms. Harris has been supported by Mr. Harris. She recognizes that she is required to become self-sufficient, but her conduct indicates otherwise.
[93] Ms. Harris was 38 years old when the parties separated in September 2002. Other than working as a receptionist for four months before the marriage, and the occasional modelling assignment during the marriage, she has no work history. While Ms. Harris says that Mr. Harris never asked her to work during the marriage, he encouraged her to work at OIM’s offices in the Philippines when she frequently said that she was bored. When she expressed an interest in importing furniture from Bali to the Okanagan, he set up a company and a bank account for her, but that is as far as it went. There is no evidence that Ms. Harris wanted to advance her education or work skills during the marriage. Nonetheless, I accept that during the marriage, both parties assumed that there was no necessity for Ms. Harris to work or further her education.
[94] In February 2003 Mr. Harris offered to pay for Ms. Harris to take various aptitude and interest tests through the Women’s Resource Centre at UBC to help her determine what work she might be suited for or interested in. She has refused his offer.
[95] Mr. Harris has suggested avenues Ms. Harris might explore, such as being a veterinary assistant, because she loves animals, or being a personal shopper, because she has exquisite taste and enjoys interacting with people. He has offered to pay for any training programs that would assist her in becoming self-sufficient. Instead she has taken no real steps towards finding work or training because she claims she is too emotionally distraught from moving and unpacking in 2002, not knowing where Mr. Harris was at times, and learning about his girlfriend.
[96] While there is no doubt that Ms. Harris was distraught over the break up of the marriage, there is no medical evidence that she is physically or emotionally unable to take at least some steps towards becoming economically independent. She has no child care obligations. I recognize it will be more challenging for her to become self-sufficient at this point in her life than it would have been had she not met and married Mr. Harris. However it could also be said that given her education and work history, she has been economically advantaged by the marriage and its breakdown.
[97] Having considered the applicable factors enumerated, I do not find that an equal division of the assets would be unfair.
[98] Ms. Harris is entitled to one-half of the net value of the matrimonial home remaining after payment of the family debts. The home is appraised at $1.7 million. For the purpose of equalizing the family assets, I fix the value of the home at $1.9 million. Mr. Harris will have ninety days within which to pay Ms. Harris one-half of the net value of the home after payment of the family debts based on a value of $1.9 million. Ms. Harris shall deliver vacant possession to Mr. Harris within sixty days of her counsel's receipt of written notification that the buyout will proceed. In the event that Mr. Harris is not able to purchase Ms. Harris' interest, the home shall be listed for sale with joint conduct of sale, with liberty to either party to apply to court for directions regarding the sale.
[99] While the standard of living during marriage is a relevant consideration in determining spousal support, Mr. Harris is not required to fund the lifestyle to which Ms. Harris became accustomed to during the marriage. Spousal support is affected by the paying spouse’s ability to pay. The parties’ earn-and-spend lifestyle was contingent: Mr. Harris rode the internet marketing wave and crashed with it. They spent beyond their means.
[100] Since their separation, Mr. Harris has paid $5,000 (U.S.) a month in spousal support and in addition, he has paid for maintenance of the Osoyoos property, property taxes, Ms. Harris' car insurance, and gardener’s wages. His total annual support of nearly $100,000 for the past three years exceeds fifty per cent of his annual income, well in excess of the Spousal Support Guidelines. In addition, Ms. Harris has used and increased the line of credit by approximately $60,000. The time has come where Ms. Harris must learn how to live with less, and how to earn a living on her own.
[101] I award Ms. Harris spousal support of $150,000 to be paid in two equal installments on January 1, 2007 and January 1, 2008.
[102] Ms. Harris requested payment by Mr. Harris of fees for her to take a real estate course. She has "looked into" being a realtor because a girlfriend has two real estate franchises. I decline to make this award, because I see no reasonable prospect of Ms. Harris taking the course and remaining in B.C.
Conclusion
[103] In conclusion:
1. The parties will retain the family assets as set out at paragraph 83.
2. Ms. Harris is entitled to one-half of the net value of the matrimonial home set at $1.9 million, after payment of the family debts set out at paragraph 84. Mr. Harris will have ninety days within which to pay Ms. Harris her share of the asset. Ms. Harris shall deliver vacant possession to Mr. Harris within sixty days of her counsel's receipt of written notification that the buyout will proceed. In the event that Mr. Harris is not able to purchase Ms. Harris' interest, the home shall be listed for sale with joint conduct of sale, with liberty to either party to apply to court for directions regarding the sale.
3. Ms. Harris will receive spousal support of $150,000 to be paid in two equal installments on January 1, 2007 and January 1, 2008.
4. The divorce order is granted.
5. Mr. Harris was largely successful and is entitled to seventy-five per cent of his costs.
“L.A. Loo, J.”
The Honourable Madam Justice L.A. Loo
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