"I Built This Business." Why That Argument Failed on a $5.3 Million Sale.

Family property includes the sweat equity to build your business.

If you own a business and you are separating, you have probably had this thought.

I built this company and worked the long days, so why should my spouse receive half of its value?

It is a very human reaction, but a new decision from Kelowna shows why it rarely works in a BC courtroom.

In Oczkowski-Witham v. Witham, 2026 BCSC 1714, a business owner sold his company for $5,315,000 shortly after separating. He argued that his former spouse deserved less than half, and the Honourable Mr. Justice Hori disagreed on almost every point.

The background

The couple lived together from July 2011 until July 23, 2021, and they had no children together.

He purchased a drilling and blasting company in 1991, long before the relationship began. In 2013, during the relationship, he reorganized so that a new company took over the business. A family trust, with him as trustee, owned the new company's shares, and he and his two adult children were the beneficiaries.

In February 2022, the trust sold the shares for $5,315,000, and he sold a commercial property to the same buyer. The couple also owned a 10 acre farm property in Lake Country, which the parties agreed was worth $2.6 million.

He accepted that the trust was family property, so the dispute centred on its valuation and how it should be divided.

Argument 1: "I was the driving force"

Under the Family Law Act, family property is split equally unless an equal split would be "significantly unfair." The BC Court of Appeal says that means the unfairness must be weighty, meaningful or compelling.

He argued that the relationship lasted only ten years, that he had the business experience, and that she contributed very little.

The judge rejected this, pointing out that the new company was created during the relationship and that is when it grew. The judge also described his evidence about the business as "entirely self-centred."

Then came cross-examination, where he admitted that he worked ten hours a day away from home. He also admitted that she cared for the animals, kept the garden and the house, bought most of the farm supplies, and prepared the profit and loss statements for his sole proprietorship.

She had also kept records: from 2014 to 2020, she logged an average of 753 hours a year managing the rental properties.

The biggest lesson is this. Under the Family Law Act, a spouse does not have to contribute to family property to share it. Relative contribution is not a listed factor, and the Court of Appeal has said the Legislature left it out on purpose.

The result was an equal division, with each party receiving $1,679,373 from the share sale.

Argument 2: "Part of this was mine before we met"

He tried to trace the value of his original 1991 company into the new one, so that part of the sale price would be excluded.

The judge said no. The new company had paid the old one $1.3 million for its assets through a promissory note, and that note was paid in full, so this was a completed commercial deal rather than a transfer of value that could be traced.

He also said $71,362 of his RRSP pre-dated the relationship. His proof was a statement from 2005 and another from 2008, but there was no evidence of the balance in 2011 and no clear evidence that he had made no withdrawals.

It got worse for him. In one affidavit he said he paid $100,000 toward the farm's down payment, but later he said it was $15,000, taken from his RRSP. The judge found that this change made his memory of RRSP withdrawals unreliable.

The claim failed, and the whole RRSP was divided.

Argument 3: "The buyer never paid me"

The trust had agreed to finance $850,000 of the price, but the buyer never paid it.

He wanted that unpaid amount taken off the value, and the judge refused. The fair market value of the shares is the price an arm's length buyer agreed to pay. How the trust chose to structure the deal does not change that.

So she receives her share now, while the trust carries the risk of collecting from the buyer.

The evidence problems that cost him

His accountant's evidence was largely inadmissible hearsay. The accountant who swore the affidavit was not the one who did the work, and he mostly repeated what others told him, so much of it could not be used.

The hobby farm did not reduce his income. The farm's egg sales never brought in more than $790 a year, yet the farm claimed expenses of $35,000 to $52,000 annually. The judge said these were not reasonable deductions for support purposes.

A line of credit he called family debt was not proven. He had been ordered to produce the statements, but the court saw only one.

Where she lost

This was not a clean sweep for her. The judge refused to let her use his adult children's capital gains exemptions to reduce the tax bill. She could not claim that benefit without the trust paying the children. She also had to pay half of his 2021 income tax bill, $41,634.50, because it was a family debt.

Her claims for personal security costs and lost interest on trust funds were also dismissed.

The contempt finding

He had been paying $1,500 a month in interim spousal support, but after November 1, 2023, he stopped. He decided his income had dropped and that he had paid enough, and he never got a court order first.

He also took money out of his holding company for personal use while an order barred him from doing so.

The judge found him in contempt of court on both counts and imposed a $500 fine, payable to the Province. The court also dismissed his bid to end support. He owes $46,885 in past support and must pay $968 a month going forward, with no end date.

What this means for business owners

"I built it" is not a legal test. Equal division is the rule, and the exceptions are narrow.

Prove exclusions with documents from the right dates. Old statements are not enough, because you need the value on the date the relationship began.

Credibility might be you most important asset. After years of a relationship often documents are not available of historic transactions. If the court cannot rely on the credibility of your oral evidence, then you will likely have no evidence to win the issue.

Never stop paying on your own. Apply to change the order first, because stopping without one can lead to a contempt finding.

If you own a business or hold assets in a family trust, start organizing your evidence before you separate.