REPORTS of FAMILY LAW Seventh Series/Septi`Eme S´Erie Recueil De Jurisprudence En Droit De La Famille VOLUME 9 (Cited 9 R.F.L

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[Indexed as: Hansen Estate v. Hansen] Gitte Kok and Susan Leckie, Estate Trustees for the Estate of Willy Hansen, deceased (Applicants / Appellants) and Barbara Lorraine Hansen (Respondent / Respondent) Ontario Court of Appeal Docket: CA C53954 2012 ONCA 112 W.K. Winkler C.J.O., Doherty, S.T. Goudge JJ.A. Heard: January 11, 2012 Judgment: February 22, 2012 Family law –––– Division of family property — Matrimonial home — Sever- ance of joint tenancy –––– After 17 years of marriage, wife moved out of matrimonial home couple held in joint tenancy (“JT”) — Wife advised husband that she wished to negotiate separation agreement to divide property quickly and that he could remain in home being appraised if he bought her out, then leased seniors’ residence under 12-month lease and had home appraised — Husband made new will giving estate to daughters from prior marriage and appointing them executors, and changed utilities to own name — Parties executed financial statements — Husband died — Wife claimed ownership of home by way of JT — Daughters brought unsuccessful application for declaration that father’s estate was entitled to undivided, one-half interest in home — Application judge reviewed methods for severing JT, including course of conduct method, referring to definition of “course of dealing” in law dictionary as “clearly recognizable pattern of conduct established through series of transactions or implementation of decisions” — Application judge described fact patterns from previous cases and treated them as recognizable patterns of conduct to be proven to meet course of dealing test — Noting that there was no exchange of offers, discussion division of proceeds or divorce, actions against each other, exchange of correspondence regarding interests or otherwise formal severance of JT such as in other cases, application judge determined that severance was not established — Daughters appealed — Appeal allowed — Application judge correctly enunciated appropriate principles and correct legal test for severing JT, but erred in restricting application of severance by “course of dealing” to cases which followed patterns of conduct established in prior cases — Test for severance by course of conduct required determination of whether parties intended to mutually treat interests in property as constituting tenancy in common, and party asserting that JT was severed did not have to establish that co-owners’ conduct fell into formulation found to have had effect of severing JT in other cases — Court had to look to totality of evidence to determine if parties intended that interests be treated mutually as constituting tenancy in common — Application judge 252 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

minimized significance of such evidence as parties’ opening of separate bank accounts, wife’s departure from house, negotiation of separation agreement, valuation steps, and husband’s new will — Wife’s assertion of right of survivorship was entirely inconsistent with couple’s mutual intention to divide property interests and hold interests in common rather than jointly. Real property –––– Interests in real property — Co-ownership — Creation and incidents — Joint tenancy –––– After 17 years of marriage, wife moved out of matrimonial home couple held in joint tenancy (“JT”) — Wife advised husband that she wished to negotiate separation agreement to divide property quickly and that he could remain in home being appraised if he bought her out, then leased seniors’ residence under 12-month lease and had home appraised — Husband made new will giving estate to daughters from prior marriage and appointing them executors, and changed utilities to own name — Parties executed financial statements — Husband died — Wife claimed ownership of home by way of JT — Daughters brought unsuccessful application for declaration that father’s estate was entitled to undivided, one-half interest in home — Application judge reviewed methods for severing JT, including course of conduct method, referring to definition of “course of dealing” in law dictionary as “clearly recognizable pattern of conduct established through series of transactions or implementation of decisions” — Application judge described fact patterns from previous cases and treated them as recognizable patterns of conduct to be proven to meet course of dealing test — Noting that there was no exchange of offers, discussion division of proceeds or divorce, actions against each other, exchange of correspondence regarding interests or otherwise formal severance of JT such as in other cases, application judge determined that severance was not established — Daughters appealed — Appeal allowed — Application judge correctly enunciated appropriate principles and correct legal test for severing JT, but erred in restricting application of severance by “course of dealing” to cases which followed patterns of conduct established in prior cases — Test for severance by course of conduct required determination of whether parties intended to mutually treat interests in property as constituting tenancy in common, and party asserting that JT was severed did not have to establish that co-owners’ conduct fell into formulation found to have had effect of severing JT in other cases — Court had to look to totality of evidence to determine if parties intended that interests be treated mutually as constituting tenancy in common — Application judge minimized significance of such evidence as parties’ opening of separate bank accounts, wife’s departure from house, negotiation of separation agreement, valuation steps, and husband’s new will — Wife’s assertion of right of survivorship was entirely inconsistent with couple’s mutual intention to divide property interests and hold interests in common rather than jointly. Hansen Estate v. Hansen 253

Cases considered by W.K. Winkler C.J.O.: Alberta (Public Trustee) v. Felske Estate (2009), 2009 CarswellAlta 835, 49 E.T.R. (3d) 279, 82 R.P.R. (4th) 19, 7 Alta. L.R. (5th) 77, 2009 ABCA 209, [2009] 11 W.W.R. 37, (sub nom. Felske Estate, Re) 457 W.A.C. 230, (sub nom. Felske Estate, Re) 457 A.R. 230 (Alta. C.A.) — referred to Brune de Rochebrune Estate v. Salie (2008), 2008 CarswellBC 1810, 2008 BCSC 1166, 42 E.T.R. (3d) 269 (B.C. S.C.) — referred to Burgess v. Rawnsley (1975), [1975] Ch. 429, [1975] 3 All E.R. 142, [1975] 3 W.L.R. 99 (Eng. C.A.) — considered Clark v. Clark (1890), 17 S.C.R. 376, 1890 CarswellNS 67 (S.C.C.) — referred to Davison v. Davison Estate (2009), 251 Man. R. (2d) 1, 478 W.A.C. 1, 2009 MBCA 100, 2009 CarswellMan 462 (Man. C.A.) — referred to Ginn v. Armstrong (1969), 3 D.L.R. (3d) 285, 1969 CarswellBC 282 (S.C.C.) — considered Gusto Estate v. Whyte (1998), 125 Man. R. (2d) 108, 1998 CarswellMan 94, [1998] 10 W.W.R. 405 (Man. Q.B.) — referred to Housen v. Nikolaisen (2002), 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, 2002 CarswellSask 178, 2002 CarswellSask 179, 2002 SCC 33, 30 M.P.L.R. (3d) 1, 219 Sask. R. 1, 272 W.A.C. 1, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, REJB 2002-29758 (S.C.C.) — referred to Jurevicius v. Jurevicius (2011), 2011 ONSC 696, 2011 CarswellOnt 990, 4 R.F.L. (7th) 403 (Ont. S.C.J.) — referred to King v. King Estate (2010), 9 R.P.R. (5th) 312, 2010 CarswellNfld 446, 938 A.P.R. 175, 302 Nfld. & P.E.I.R. 175, 2010 NLTD(G) 162 (N.L. T.D.) — referred to Lam v. Le Estate (2002), 2002 MBQB 31, 2002 CarswellMan 31, 25 R.F.L. (5th) 72, [2002] M.J. No. 35 (Man. Q.B.) — referred to Pearlson Estate v. Pearlson (2001), 2001 CarswellBC 1889, 2001 BCSC 1237, 41 E.T.R. (2d) 49, 22 R.F.L. (5th) 167 (B.C. S.C.) — referred to Pearlson Estate v. Pearlson (2003), 2003 CarswellBC 464, 2003 BCCA 37, 35 R.F.L. (5th) 433 (B.C. C.A.) — referred to Robichaud v. Watson (1983), 14 E.T.R. 135, 147 D.L.R. (3d) 626, 42 O.R. (2d) 38, 1983 CarswellOnt 611, [1983] O.J. No. 3046 (Ont. H.C.) — considered Ryan v. Moore (2005), 254 D.L.R. (4th) 1, 334 N.R. 355, [2005] 2 S.C.R. 53, 2005 SCC 38, 2005 CarswellNfld 157, 2005 CarswellNfld 158, 247 Nfld. & P.E.I.R. 286, 735 A.P.R. 286, 25 C.C.L.I. (4th) 1, 32 C.C.L.T. (3d) 1, [2005] R.R.A. 694, 18 E.T.R. (3d) 163, EYB 2005-91679, [2005] S.C.J. No. 38 (S.C.C.) — referred to Sampaio Estate v. Sampaio (1992), 22 R.P.R. (2d) 314, 90 D.L.R. (4th) 122, 1992 CarswellOnt 560, [1992] O.J. No. 771 (Ont. Gen. Div.) — referred to 254 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Scotsburn Co-operative Services Ltd. v. W.T. Goodwin Ltd. (1985), 155 A.P.R. 163, 1985 CarswellNS 224, 1985 CarswellNS 224F, [1985] 1 S.C.R. 54, 16 D.L.R. (4th) 161, 57 N.R. 81, 67 N.S.R. (2d) 163, [1985] S.C.J. No. 2 (S.C.C.) — referred to Sorensen v. Sorensen (1977), 3 A.R. 8, 90 D.L.R. (3d) 26, 1977 CarswellAlta 196, [1977] 2 W.W.R. 438, [1977] A.J. No. 742 (Alta. C.A.) — considered Tavenor Estate v. Tavenor (2008), 2008 NLCA 2, 2008 CarswellNfld 3, 36 E.T.R. (3d) 27, 272 Nfld. & P.E.I.R. 299, 830 A.P.R. 299 (N.L. C.A.) — referred to Tessier Estate v. Tessier (2001), 2001 SKQB 399, 2001 CarswellSask 551, 44 R.P.R. (3d) 126, [2002] 1 W.W.R. 98, 211 Sask. R. 50, [2001] S.J. No. 515 (Sask. Q.B.) — referred to Tompkins Estate v. Tompkins (1993), 76 B.C.L.R. (2d) 323, 25 B.C.A.C. 61, 43 W.A.C. 61, 99 D.L.R. (4th) 193, 1993 CarswellBC 33 (B.C. C.A.) — considered Walters, Re (1977), 16 O.R. (2d) 702, 1 R.P.R. 150, 79 D.L.R. (3d) 122, 1977 CarswellOnt 404, [1977] O.J. No. 1731 (Ont. H.C.) — considered Walters, Re (1978), 17 O.R. (2d) 592 (note), 84 D.L.R. (3d) 416 (note) (Ont. C.A.) — considered Williams v. Hensman (1861), 70 E.R. 862, 30 L.J. Ch. 878, 1 John. & H. 546 (Eng. V.-C.) — followed Zuk Estate v. Zuk (2007), 31 E.T.R. (3d) 192, 2007 CarswellBC 472, 2007 BCSC 300, 35 R.F.L. (6th) 331 (B.C. S.C.) — referred to

APPEAL from judgment reported at Hansen Estate v. Hansen (2011), 2011 CarswellOnt 15607 (Ont. S.C.J.).

Angela Assuras for Appellants Erin L. Reid for Respondent

W.K. Winkler C.J.O.: A. Overview 1 This appeal raises the question of what constitutes a “course of dealing” sufficient to establish that a joint tenancy in property should be declared severed, with the result that the co-owners’ interests in the property are held by way of a tenancy in common. 2 A married couple — the respondent on appeal, Barbara Lorraine Han- sen, and the deceased, Willy Hansen — held title to their matrimonial home as joint tenants. They were in the process of separating and dividing their matrimonial assets when Mr. Hansen died. At the time of his death, legal title to the home remained as a joint tenancy. After Mr. Han- Hansen Estate v. Hansen W.K. Winkler C.J.O. 255

sen died, the respondent claimed exclusive ownership of the home through the right of survivorship, which is the defining feature of a joint tenancy. 3 Two of the husband’s daughters from a prior marriage, who are the appellants in this appeal, are the trustees for Mr. Hansen’s estate. They were of the contrary view that the joint tenancy was severed before their father died and that he therefore held the home with his wife as tenants in common. Their position was that, upon their father’s death, his one-half interest in the matrimonial home devolved to his estate. Under the terms of his will, which Mr. Hansen had drawn shortly before his death, he left his entire estate to his four daughters. 4 The appellants commenced an application seeking a declaration that their father’s estate is entitled to an undivided one-half interest in the matrimonial home (“the property”). The application judge dismissed the application on the basis that the joint tenancy between Mr. Hansen and Mrs. Hansen (the “respondent”) had not been severed prior to Mr. Han- sen’s death. 5 I would allow the appeal. While the application judge correctly enunciated the appropriate principles concerning how a joint tenancy may be severed, she erred in her application of the established test for severing a joint tenancy. The time-honoured test is whether there was a course of dealing sufficient to intimate that the interests of the parties were mutually treated as constituting a tenancy in common. 6 In purporting to apply this test, the application judge looked to previous cases where a severance was found to have occurred through a course of dealing. However, she fell into reversible error by treating these cases as if they created recognized categories that restrict the course of dealing analysis to established patterns of conduct. She concluded that because the co-owners’ conduct in the present case was not the same as the conduct in these previous cases, severance of the joint tenancy had not been established. 7 A proper application of the course of dealing test for severing a joint tenancy requires the court to discern whether the parties intended to mutually treat their interests in the property as constituting a tenancy in common. It is not essential that the party requesting a severance establish that the co-owners’ conduct falls into a formulation found to have had the effect of severing a joint tenancy in other cases. The court’s inquiry cannot be limited to matching fact patterns to those in prior cases. Rather, the court must look to the co-owners’ entire course of conduct — 256 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

in other words the totality of the evidence — in order to determine if they intended that their interests were mutually treated as constituting a tenancy in common. This evidence may manifest itself in different ways. Each case is idiosyncratic and will turn on its own facts. 8 I thus propose to review the facts as found by the application judge and, after setting out the relevant legal authority concerning severance of a joint tenancy, I will go on to explain how the application judge erred in applying the course of dealing test for a severance to the facts of this case.

B. Facts 9 The property in question, 143 Speight Crescent in London, Ontario, was the matrimonial home of the respondent and her late-husband, Mr. Hansen. They were married in April 1983 and both had children from previous relationships. In 2003, they purchased the property together and held title to the property as joint tenants. 10 In 2001, Mr. Hansen became ill and was confined to a wheelchair. He required a great deal of support from the respondent. She alleges that, as his condition worsened, he became increasingly demanding and verbally abusive towards her. In 2006, the respondent herself suffered a series of heart attacks and was hospitalized for a number of months. 11 In February 2010, both the respondent and Mr. Hansen were hospitalized overnight. The respondent alleges that when they returned home the next day, they were met by Mr. Hansen’s daughters who confronted her and accused her of mistreating their father. 12 Following this encounter, the respondent moved out of the matrimonial home. As the application judge noted, the record is not entirely clear on the specific date that she moved out, but it was sometime in March 2010. The application judge found, at para. 8, that the respondent told her husband that she was leaving to rest and get better, and that she would continue to look after their bills and bank accounts. 13 On March 22, 2010, Mr. Hansen retained counsel to act on his behalf for the purpose of — in the words of his lawyer in an affidavit filed on the application — “a matrimonial proceeding”. On April 7, 2010, Mr. Hansen had his lawyer prepare a new will. The new will distributed his estate amongst his four daughters and did not include the respondent as a beneficiary. His lawyer deposed that the respondent had been a beneficiary under Mr. Hansen’s previous will. Mr. Hansen also signed a continu- Hansen Estate v. Hansen W.K. Winkler C.J.O. 257

ing power of attorney for property and personal care naming the appellants as his powers of attorney. 14 The respondent likewise retained counsel. Her lawyer wrote a detailed letter to Mr. Hansen’s lawyer, dated April 7, 2010. The letter indicates the respondent’s intention to negotiate a separation agreement that would achieve a straightforward division of the parties’ assets. The letter states that the respondent wanted this division of property to occur quickly and that she was amenable to Mr. Hansen remaining in the matrimonial home, provided that he buy out her interest. To this end, the respondent intended to retain a real estate agent to determine the fair market value of the property. The letter states in its entirety: Re: Hansen Separation Agreement I have been retained by Lorraine Hansen. I understand that you represent her husband, Willy Hansen. The parties have separated and Lorraine wishes to negotiate and enter into terms of a Separation Agreement with your client at this time. As I am sure you will agree, given the length of the parties’ marriage a straight-forward equalization of their property and incomes is appropriate. Mrs. Hansen would like to make the process of negotiating the Agreement as swift and amicable as possible. The parties will need to exchange sworn Form 13.1 Financial Statements. I will provide you with Mrs. Hansen’s Statement in short order and I require the same from Mr. Hansen as soon as possible. My understanding of the parties’ assets is as follows: They jointly own the matrimonial home located at 143 Speight Cres- cent, London, Ontario for which we will have to determine current fair market value. We will be having a real estate agent attend at the home for this purpose. Both parties have investments which will need to be equalized.1 There are two joint accounts, one with St. Willibrord and one with T.D. Canada Trust. The parties have two vehicles, a 1993 Volvo automobile in my client’s name and a 2000 Ford Windstar van in your client’s name.

1The spouses’ subsequently executed financial statements that do not refer to any investments aside from several bank accounts. 258 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

In terms of income, Mrs. Hansen advised me that she receives approximately $1,136.00 per month from a combination of C.P.P., O.A.S. and a HOOPP pension. She advises me that your client receives approximately $1,860.00 monthly from a combination of C.P.P., O.A.S. and other pension income. My client is fine with Mr. Hansen remaining in the home; however, he will be required to buy out her interest therein. If he is not prepared, or able, to do so the home will have to be listed and sold as soon as possible. I look forward to hearing from you confirming that you are indeed acting for Mr. Hansen. I look forward, as well, to receiving your client’s sworn Form 13.1 Financial Statement with supporting documentation. My client is moving into an apartment as of April 17, 2010 and she requires resolution of this matter on an expedient basis. If your client is not prepared to negotiate the terms of the Agreement in a timely fashion my client will have no choice but to start a court application which, I would suggest, makes no sense given the straight-forward nature of what should be the resolution in this case. I am requesting that I please hear from you by this Friday April 9, 2010. [Bold in the original. Emphasis added.] 15 Evidently, the couple’s only significant personal assets consisted of the matrimonial home, two joint bank accounts, and two cars. 16 Counsel for Mr. Hansen replied to respondent’s counsel as requested on April 9. In a very brief letter, counsel indicated that he was in the process of having a financial statement prepared for his client. He suggested that the two counsel could meet with each other after the financial statements were exchanged to determine if they “could resolve this matter.” 17 On May 17, 2010, the respondent moved into an apartment in a seniors’ complex and signed a 12-month lease. 18 At some point after the respondent moved out of the matrimonial home, she closed one of the couple’s joint bank accounts and transferred the money to an account in her name. Mr. Hansen did the same with another joint account. The application judge observed, at para. 14, that the respondent closed the joint account in order to better manage the funds after noticing a number of unanticipated withdrawals. Also during this period, the utility bills for the matrimonial home were changed from the respondent’s name to Mr. Hansen’s. In an affidavit filed on the appli- Hansen Estate v. Hansen W.K. Winkler C.J.O. 259

cation, the respondent asserted that the parties maintained phone contact throughout this time. 19 On May 20, 2010, the respondent executed a financial statement, which her counsel sent to Mr. Hansen’s counsel on June 3. Also enclosed was a letter of appraisal for the house. Mr. Hansen executed a financial statement on May 31, but it had not been sent to the respondent’s lawyer before his death. 20 Mr. Hansen died on June 10, 2010. One of his children allegedly told the respondent not to attend the funeral. 21 On the day of Mr. Hansen’s death, counsel for the respondent wrote to Mr. Hansen’s lawyer suggesting they discuss how the matter should proceed. Four days later, respondent’s counsel wrote once again to Mr. Hansen’s lawyer and asserted a right of survivorship in the matrimonial home on behalf of the respondent. 22 As a result of this correspondence, the appellants applied for a declaration that Mr. Hansen’s estate is entitled to an undivided one-half interest in the property.

C. Reasons of the Application Judge 23 The application judge, at para. 24, referred to the following three ways of severing a joint tenancy: (i) by a person acting on his/her own share; (ii) by mutual agreement; or (iii) by “any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.”2 On the application, the appellants relied on the third way for severing a joint tenancy — the course of dealing between the parties — in support of their claim. 24 The application judge enumerated what she described as “the relevant evidence regarding the conduct of the parties”, at para. 27: • the respondent left the matrimonial home; • the respondent executed a 12-month lease for her new accommodation; • the billing name for the expenses relating to the property was changed from the respondent to Mr. Hansen; • each of the co-owners engaged separate counsel for the purpose of sorting out their affairs;

2Williams v. Hensman (1861), 70 E.R. 862 (Eng. V.-C.), at p. 867. 260 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

• Mr. Hansen executed a new will excluding the respondent as a beneficiary and appointing the appellants as his executors and trustees for his estate, his person and his property; • the continued contact between the spouses; • the failure or refusal to formally sever the joint tenancy of the property; • the two letters from the respondent’s counsel prior to Mr. Hansen’s death, which the application judge characterized as “an invitation to negotiate [a] settlement”; • the respondent gave Mr. Hansen the “opportunity ... to purchase her interest” in the property; • the one letter sent by Mr. Hansen’s lawyer to counsel for the respondent prior to Mr. Hansen’s death; • the respondent obtained and disclosed an appraisal of the value of the property; • both spouses executed financial statements, but only the respondent’s was disclosed; • the spouses each opened separate bank accounts; and • the locks on the house were changed. 25 After considering this factual background, the application judge concluded that “there was neither an agreement nor a ‘course of dealing’ between the parties” that would have the effect of severing the joint tenancy prior to Mr. Hansen’s death. As she stated, at para. 41: The evidence discloses an expression of intention but does not establish on a balance of probabilities, a clearly recognizable pattern of conduct by the parties concerning the property in question. They did not exchange offers; there was no discussion concerning a division of proceeds; there was no discussion of divorce; unlike many of the cases to which the applicants referred me including Re Walters and Walters [(1977), 16 O.R. (2d) 702 (H.C.J.), aff’d (1978), 17 O.R (2d) 592n (C.A.)] no action had been started by either party as against each other; and unlike in Ginn v. Armstrong [(1969), 3 D.L.R. (3d) 285 (B.C.S.C.)] there was no exchange of correspondence regarding their interests in the property or corroborative expression or communication of an intention by either party that their interests were to be treated as tenancies in common. [Emphasis added.] 26 The application judge further observed that, although there had been sufficient time and opportunity for the parties to formally sever the tenancy, they had not done so. She referred to the letter from respondent’s Hansen Estate v. Hansen W.K. Winkler C.J.O. 261

counsel to Mr. Hansen’s counsel as “introductory”. In the application judge’s view, other than having the house valued and disclosing the respondent’s financial statement to Mr. Hansen, no further steps had been taken by either spouse that would support an inference that they were mutually treating their interests in the home as a tenancy in common. In the result, she dismissed the application.

D. Analysis 27 The appellants submit that the application judge erred in principle in holding that there was not a sufficient course of dealing between the respondent and Mr. Hansen to establish a severance of the joint tenancy prior to Mr. Hansen’s death. The respondent submits that the application judge did not err, and, in any event, her decision is entitled to deference and should not be interfered with by this court. 28 Before explaining why appellate intervention is required, I will review the pertinent authorities concerning the course of dealing test for establishing a severance of a joint tenancy. In my view, such a review is helpful due to the minimal recent judicial commentary on the subject in this province.

(1) The Law Pertaining to Severance of a Joint Tenancy (a) Joint Tenancy versus Tenancy in Common 29 A joint tenancy and a tenancy in common are the main forms through which two or more persons may collectively hold interests in property. In a joint tenancy, the co-owners hold the property as a unified whole such that each holds an equal interest in the property.3 In contrast, in a tenancy in common, one co-owner may be entitled to a greater proportionate interest in the property than the other(s).

3This characteristic of a joint tenancy is known as “unity of interest”: Sir Wil- liam Blackstone, Commentaries on the Laws of England: a facsimile of the first edition of 1765-1769, vol. 2 (Chicago: Univ. of Chicago Press, 1979), at p. 181. Two other “unities” are also required to establish a joint tenancy: unity of title and unity of time. In contrast, the unities of interest, time and title are not necessary to establish a tenancy in common: Blackstone, pp. 180-82. However, both a joint tenancy and a tenancy in common require the existence of the fourth unity — unity of possession — in that all co-owners must collectively own the undivided whole of the property rather than, for instance, each owning a particular section of the property: Blackstone, p. 182. 262 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

30 There are very few other practical differences between the two forms of land holding. Ultimately, the critical distinction between the two — what Blackstone’s Commentaries refers to as “the remaining grand incident” — is the right of survivorship: Sir William Blackstone, Commenta- ries on the Laws of England: a facsimile of the first edition of 1765-1769, vol. 2 (Chicago: Univ. of Chicago Press, 1979), at p.183. 31 Through the right of survivorship, the interest of a co-owner in a joint tenancy will pass equally to all of the other co-owners upon his or her death. If multiple co-owners remain, the joint tenancy remains in existence, while if only one owner survives, the entire interest in the property passes to the survivor. In contrast, upon the death of a co-owner in a tenancy in common, the deceased’s interest in the property passes to his/her estate.

(b) Methods for Severing a Joint Tenancy 32 As the application judge recognized, the classic statement setting out three ways in which a joint tenancy may be severed4 is that of Vice- Chancellor Wood in Williams v. Hensman (1861), 70 E.R. 862 (Eng. V.- C.), at p. 867: A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus ac- crescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund — losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested. You must find in

4As Professor Bruce Ziff points out in Principles of Property Law, 5th ed. (To- ronto: Thomson Reuters Canada Ltd., 2010), at p. 347, the three modes of severance listed in Williams v. Hensman are not the only means for severing a joint tenancy. Other means include severance that occurs on bankruptcy or by judicial sale. Hansen Estate v. Hansen W.K. Winkler C.J.O. 263

this class of cases a course of dealing by which the shares of all the parties to the contest have been effected, as happened in the cases of Wilson v. Bell [(1843), 5 Ir. Eq. R. 501 (Eng. Eq. Exch.)] and Jackson v. Jackson [(1804), 9 Ves. 591 (Eng. Chancellor)]. [Emphasis added.] 33 In the words of Lord Denning M.R. in Burgess v. Rawnsley, [1975] 3 All E.R. 142 (Eng. C.A.), at p. 146: “Nowadays everyone starts with the judgment of Page Wood V-C in Williams v. Hensman”. This is likewise true of Canadian courts, which have long recognized the Vice-Chancel- lor’s statement as the starting point for assessing severance of a joint tenancy: see, e.g., Clark v. Clark (1890), 17 S.C.R. 376 (S.C.C.), at p. 383 (Gwynne J., dissenting); Ginn v. Armstrong (1969), 3 D.L.R. (3d) 285 (S.C.C.), at p. 286; Re Walters, Re (1977), 16 O.R. (2d) 702 (Ont. H.C.), at p. 705, aff’d (1978), 17 O.R. (2d) 592 (note) (Ont. C.A.); Sorensen v. Sorensen (1977), 90 D.L.R. (3d) 26 (Alta. C.A.), at p. 32; Tompkins Estate v. Tompkins (1993), 99 D.L.R. (4th) 193 (B.C. C.A.), at pp. 196- 99.5 34 The three modes of severance referred to in Williams v. Hensman have come to be known as the “three rules”: see Burgess, at pp. 152-53; Robichaud v. Watson (1983), 42 O.R. (2d) 38 (Ont. H.C.), at p. 44; Bruce Ziff, Principles of Property Law, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2010), at pp. 342 and 345. The three rules may be summarized as follows: Rule 1: unilaterally acting on one’s own share, such as selling or encumbering it; Rule 2: a mutual agreement between the co-owners to sever the joint tenancy; and,

5The common law rules of severance remain in effect in Ontario despite the changes to the registration of title which occurred under the Land Titles Act, R.S.O. 1990, c L.5. As stated in a bulletin issued by the Ontario Ministry of Consumer and Commercial Relations, Bulletin No. 96005, “Land Titles Act: Joint Tenancy” (20 December 1996): In the land titles system, the registration of a charge by fewer than all the joint tenants, does not automatically sever the joint tenancy. The registration of the charge is not, in itself, unequivocal evidence of an intention to sever the joint tenancy. The existence of an intention is a question of fact that should be decided by the Courts. 264 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Rule 3: any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. 35 The apposite rule in the present case is rule 3, or the course of dealing rule. As explained by Professor Ziff in Principles of Property Law, at p. 345, severance under this rule operates in equity. Rule 3 operates so as to prevent a party from asserting a right of survivorship where doing so would not do justice between the parties. In the words of Professor Ziff, at p. 345: “the best way to regard matters is to say that equity will intervene to estop the parties, because of their conduct, from attempting to assert a right of survivorship.” What is determinative under this rule is the expression of intention by the co-owners as evidenced by their conduct: see Robichaud, at p. 45. 36 Rule 3 governs cases where there is no explicit agreement between the co-owners to sever a joint tenancy. In contrast, rule 2 is engaged where a mutual agreement to sever is claimed to exist. This distinction between rule 2 and rule 3 is significant. What follows from this distinction is that the proof of intention contemplated by rule 3 does not require proof of an explicit intention, communicated by each owner to the other(s), to sever the joint tenancy. If such proof were required, then rule 3 would be rendered redundant because a communicated common intention would be tantamount to an agreement. Instead, the mutuality for the purposes of rule 3 is to be inferred from the course of dealing between the parties and does not require evidence of an agreement. 37 This distinction between rules 2 and 3 was recognized in all three sets of reasons given in Burgess: see Lord Denning M.R., at p. 147; Browne L.J., at p. 151, and Sir John Pennycuick, at pp. 153-54. For example, Sir Pennycuick stated, at pp. 153-154: I do not think rule 3 in Page Wood V-C’s statement is a mere sub- heading of rule 2. It covers only acts of the party, including, it seems to me, negotiations which, although not otherwise resulting in any agreement, indicate a common intention that the joint tenancy should be regarded as severed. Accordingly, if there is an agreement between the co-owners, then there is no need to prove a course of dealing. Logically the reverse holds true as well. 38 The phrase in rule 3 — “the interests of all were mutually treated” — requires that the co-owners knew of the other’s position and that they all treated their respective interests in the property as no longer being held Hansen Estate v. Hansen W.K. Winkler C.J.O. 265

jointly. Such knowledge can be inferred from communications or conduct. The requirement that the co-owners knew that their interests in the property were being mutually treated as held in common was emphasized in Williams v. Hensman, at p. 867: [I]t will not suffice to rely on an intention, with respect to the particular share, declared only behind the backs of the other persons interested. 39 While the determination under the course of dealing test is an inher- ently fact-specific assessment, the underlying rationale for rule 3 is that it is a means of ensuring that a right of survivorship does not operate unfairly in favour of one owner (or owners) where the co-owners have shown, through their conduct, a common intention to no longer treat their respective shares in the property as an indivisible, unified whole. For example, in the context of negotiations between spouses who are in the midst of a marriage breakdown, even failed or uncompleted negotiations can lead to a severance because “the negotiation of shares and separate interests represents an attitude that shows that the notional unity of ownership under a joint tenancy has been abandoned” (emphasis in original): Principles of Property Law, at p. 347.

(c) Canadian Jurisprudence on the Course of Dealing Test in the Context of a Marriage Breakdown 40 There are two cases that are routinely cited by Ontario courts in applying the course of dealing test: the 1977 decision of the Ontario High Court of Justice in Re Walters, and the 1969 decision of the British Co- lumbia Supreme Court in Ginn. Both decisions involved conduct by spouses who were in the process of separating and dividing their family assets. 41 In Re Walters, a husband and wife owned their matrimonial home as joint tenants. The couple separated after 14 years of marriage. The wife began proceedings for divorce, maintenance and partition of their property. The couple adjourned the maintenance proceedings in order to negotiate a settlement. The husband took the position that the wife was not entitled to maintenance because she had a one-half interest in the matrimonial home. The husband delivered appraisals of the property to the wife. The wife, through counsel, offered to purchase the husband’s interest, but the husband refused the offer, insisting it was too low. His counter-offer was refused by the wife. The wife obtained another appraisal. During the course of negotiations, the husband executed a new 266 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

will that no longer included his wife as a beneficiary. Before the partition application could be heard or the negotiations could be completed, the husband died. 42 In Ginn, the parties’ matrimonial home was held as joint tenants, but was paid for entirely out of the husband’s earnings. After a number of years of marriage, the wife left the matrimonial home. Correspondence was exchanged between the couple’s lawyers, the “main tenor” of which indicated that the wife wanted a sale of the premises “and the payment of one-half of the proceeds to her”. The husband did not want to pay her anything. He sent the wife a new deed which conveyed her half-interest in the property to her son. The wife refused to sign the deed. The husband died before their affairs could be settled. The wife testified that her sole concern was to receive the value of her half-interest in the matrimonial home. 43 In both cases, the surviving wife asserted the right of survivorship. The courts in each case found that the statements and conduct between the parties and their counsel, including the content of the negotiations over the parties’ interests in the matrimonial home, constituted a course of dealing that demonstrated the parties were mutually treating their interests in the matrimonial home as constituting a tenancy in common. The courts concluded that even though the negotiations did not produce an agreement to sever (under rule 2), the joint tenancy should be found to have been severed based on this course of dealing. 44 Courts in this province have routinely referred to Re Walters and Ginn in deciding whether negotiations between spouses during a marriage breakdown have revealed an intention to mutually treat the interests in a matrimonial home as constituting a tenancy in common: see, e.g., Re National Trust Co. v. McKee (1975), 7 O.R. (2d) 614 (Ont. C.A.), at pp. 618-19; Sampaio Estate v. Sampaio (1992), 90 D.L.R. (4th) 122 (Ont. Gen. Div.)), at pp. 126-28; Robichaud, at pp. 46-47; Jurevicius v. Jurevicius, 2011 ONSC 696 (Ont. S.C.J.), at paras. 21-22. Courts in other provinces have taken a similar approach in applying the course of dealing test in this context: see, e.g., Tessier Estate v. Tessier, 2001 SKQB 399, 211 Sask. R. 50 (Sask. Q.B.), at para. 12; Lam v. Le Estate, 2002 MBQB 31, 25 R.F.L. (5th) 72 (Man. Q.B.), paras. 18-20; Davison v. Davison Estate, 2009 MBCA 100, 251 Man. R. (2d) 1 (Man. C.A.), at para. 4. 45 However, the British Columbia Court of Appeal has framed the course of dealing test somewhat differently than have courts in Ontario Hansen Estate v. Hansen W.K. Winkler C.J.O. 267

and elsewhere in Canada. In Tompkins Estate, the court considered the meaning of the course of dealing test in the context of a marriage breakdown. Southin J.A., speaking for the court, expressed the view, at p. 199, that in articulating the third rule of severance in Williams v. Hensman, the Vice-Chancellor was “postulating a species of estoppel”. In her view, for severance to be established through a course of dealing, there must be evidence of detrimental reliance such as would ordinarily be required to invoke the doctrine of estoppel. Southin J.A. declared, at p. 199, that “in so far as the judgment in Ginn v. Armstrong ... was founded on an application of the third category inconsistent with this judgment” — that is, that did not require evidence of detrimental reliance — “it can no longer be considered good law in this province.”6 46 Southin J.A. may have been correct in stating that the Vice-Chancel- lor applied the course of dealing test to what was, on the facts of Williams v. Hensman, an instance of estoppel. However, to the extent that Southin J.A. interprets rule 3 as a “species of estoppel” requiring proof of detrimental reliance, I cannot agree. 47 In describing the course of dealing test, the reasons of the Vice-Chan- cellor in Williams v. Hensman do not refer to the doctrine of estoppel, nor do his reasons invoke the concept of detrimental reliance. It is possible that Southin J.A. may have viewed the course of dealing test as a species of estoppel because both legal principles are designed to prevent unfairness or injustice as between the parties. However, the elements of each doctrine are different, as are the requirements of proof.

6Several British Columbia courts have followed Tompkins: see Pearlson Estate v. Pearlson, 2001 BCSC 1237, 41 E.T.R. (2d) 49 (B.C. S.C.), at paras. 25-26 and 34, aff’d 2003 BCCA 37, 35 R.F.L. (5th) 433 (B.C. C.A.), (however the Court of Appeal noted, at para. 2, that it was affirming the decision on the basis of rule 2 and that it need not fully consider the “reach and meaning” of Williams v. Hensman); Zuk Estate v. Zuk, 2007 BCSC 300, 31 E.T.R. (3d) 192 (B.C. S.C.), at paras. 16-20; Brune de Rochebrune Estate v. Salie, 2008 BCSC 1166, 42 E.T.R. (3d) 269 (B.C. S.C.), at paras. 17-22. While the Manitoba Court of Queen’s Bench in Gusto Estate v. Whyte (1998), 125 Man. R. (2d) 108 (Man. Q.B.), cites the language of the test from Tompkins, at para. 41, the court went on to rely on Ginn, Re Walters, and Robichaud, in applying the law, at para. 42. A search of reported decisions failed to uncover any commentary on Tompkins by courts in this province. 268 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

48 An estoppel may be established through evidence that one party made a representation, whether communicated expressly or through conduct, to another and that the other party relied on that representation to his or her detriment: see Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R 53 (S.C.C.), at paras. 67-69; Scotsburn Co-operative Services Ltd. v. W.T. Goodwin Ltd., [1985] 1 S.C.R. 54 (S.C.C.), at pp. 65-66. Upon such facts being established, the doctrine of estoppel may be applied to prevent the party from resiling from his or her representation to prevent unfairness. 49 In contrast, a course of dealing that is sufficient to establish a severance of a joint tenancy requires that the co-owners knew of the other’s position and that they all treated their respective interests in the property as no longer being held jointly. However, unlike in the case of an estoppel, the course of dealing test does not require proof that a party relied to his/her detriment on a representation that a co-owner no longer wants to hold the property jointly. The rationale for severing the joint tenancy relates to the inappropriateness of the right of survivorship in circumstances where the co-owners have mutually treated their interests in the property as being held in common. The rationale is not contingent on the fact that one party relied on the representation to his/her detriment.7 50 Indeed, a likely act of reliance in a course of dealing case would be the act of refraining from pursuing other methods of severance based on the understanding that the co-owners were mutually treating the property as a tenancy in common. However, it would be difficult to prove that the failure to pursue a different means of severance was attributable to reliance. Moreover, the challenge in proving reliance is significantly complicated by the fact that such evidence is unlikely to become relevant until after the death of the individual who is said to have relied on the representation. 51 In addition to generally disagreeing with Southin J.A.’s view in Tompkins that the course of dealing test is a form of estoppel requiring evidence of detrimental reliance, I respectfully cannot agree with Southin J.A.’s specific characterization of the third rule as requiring the presence of “facts which preclude one of the parties from asserting that there was no agreement” (at p. 199). Rule 3 does not require evidence of an agree-

7Of course, the equitable doctrine of estoppel could apply in the event that one party attempted to resile from a prior representation to the other co-owners that he or she intended to sever a joint tenancy and the other co-owners had relied on this representation to their detriment. Hansen Estate v. Hansen W.K. Winkler C.J.O. 269

ment. As noted above, the English Court of Appeal concluded in Burgess that the presence of an agreement is not part of the analysis under rule 3. A request for severance in those circumstances would be dealt with under rule 2. Rule 3 relates more broadly to evidence disclosing a course of conduct indicating that the interests in the property were being held in common and not jointly.

(2) Applying the Course of Dealing Test to the Facts of this Case (i) The Application Judge Erred in Applying the Test to the Evidence 52 The application judge correctly described, at para. 35, the governing test that severance can occur through a course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. However, when it came to applying the test to the evidence, the application judge fell into reversible error. Deference to the application judge cannot shield an error in principle: Housen v. Niko- laisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.), at para. 36. 53 It seems to me that the application judge’s error in applying the course of dealing test can be traced to her reliance, at para. 38, on the definition of “course of dealing” in Black’s Law Dictionary, 7th ed. (St. Paul, MN: West Pub. Co., 1999). Black’s Law Dictionary defines this phrase as “a clearly recognizable pattern of conduct established through a series of transactions or the implementation of decisions”. Based on this definition, the application judge proceeded to describe certain fact patterns from previous cases and treated these fact patterns as though they constitute recognizable patterns of conduct that must be proven in order to meet the course of dealing test. Her observation at para. 39 illustrates the point: An attempt to sever a joint tenancy through a will is ineffective but the issuance of a writ to commence a partition application may be sufficient... The commencement of a divorce action, a motion under the Partition Act, and the exchange of mutual offers to purchase all amount to a course of dealing to sever the joint tenancy by mutual agreement but a simple offer and counter-offer cannot. [Emphasis in original. Footnotes omitted.] 54 The application judge went on to apply this category-based approach to the evidence and concluded as follows, at para. 41: The evidence discloses an expression of intention but does not establish on a balance of probabilities, a clearly recognizable pattern of conduct by the parties concerning the property in question. [Mr. and 270 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Mrs. Hansen] did not exchange offers; there was no discussion concerning a division of proceeds; there was no discussion of divorce; unlike many of the cases to which the applicants referred me including Re Walters and Walters no action had been started by either party as against each other; and unlike in Ginn v. Armstrong there was no exchange of correspondence regarding their interests in the property or corroborative expression or communication of an intention by either party that their interests were to be treated as a tenancies in common. [Emphasis added. Citations omitted.] 55 By proceeding in this manner, the application judge reversed the route of analysis required under rule 3 of Williams v. Hensman and imposed an evidentiary threshold that is not mandated by the course of dealing test. She considered only evidence of selected aspects of the spouses’ conduct which was similar to conduct identified in previously decided cases. And she overlooked — or minimized the significance of — much of the evidence of the spouses’ conduct that she had referred to at para. 27 of her reasons (set out at para. 24 above). For example, the application judge stated, at para. 43: I find that the initial letter from counsel for Mrs. Hansen was an introductory letter only addressing the possibility of settlement of the issues. Other than the provision of Mrs. Hansen’s Financial State- ment and an opinion as to the value of the home to counsel for Mr. Hansen, no further steps were taken by either party to raise an intimation on a balance of probabilities that they mutually treated their interests in the home as constituting tenancies in common. 56 By adopting this category-based approach to the course of dealing test, the application judge failed to appreciate the significance of the following aspects of the evidence before her: the respondent moved out of the matrimonial home; the spouses were negotiating the separation of their family assets — the most significant of which was the matrimonial home — on the undisputed premise of achieving an equal division; the respondent took steps towards valuing her half-interest in the home; Mr. Hansen re-wrote his will in a way that was inconsistent with the operation of a right of survivorship; and the spouses opened separate bank accounts.

(ii) Applying the Course of Dealing Test to the Totality of the Evidence 57 When the evidence of the respondent and Mr. Hansen’s course of dealing is considered as a whole, it is clear that the evidence is “suffi- Hansen Estate v. Hansen W.K. Winkler C.J.O. 271

cient to intimate that the interests of all were mutually treated as constituting a tenancy in common”: Williams v. Hensman, at p. 867. From the time the spouses separated until Mr. Hansen’s death, the spouses took a number of steps which reveal that they were each treating their interests in the property as distinct. In other words, their conduct demonstrated they were mutually treating their co-ownership as a tenancy in common and not as a joint tenancy. 58 In the months immediately prior to Mr. Hansen’s death, he and the respondent engaged in a course of conduct that involved separating their lives and dividing their assets. The respondent moved out of the matrimonial home and leased her own apartment, while Mr. Hansen remained in the home and took responsibility for it, including by having the utility bills put in his name. 59 Both parties retained separate lawyers. At the respondent’s instructions, her lawyer wrote a letter to Mr. Hansen’s lawyer setting forth the following demands: • the respondent wanted to begin negotiating a separation agreement with a view to conducting a “straight-forward equalization of their property and incomes”; • the negotiation was to be “swift” and “amicable”; • the negotiation related to all of the co-owners’ assets, including the property at issue; • the co-owners needed to exchange sworn financial statements; • the property was to be appraised; • the respondent was content to allow Mr. Hansen to remain in the matrimonial home, but, if that were to occur, he would have to buy out her interest in the property. If he decided not to remain, the property would have to be listed and sold as soon as possible; • the matter needed to be resolved on an expedient basis and if this could not be done on a timely basis, a court application would be commenced; • Mr. Hansen’s lawyer should reply by April 9 (in two days’ time). 60 Mr. Hansen’s lawyer complied with the request to reply by April 9. He advised that he was preparing a financial statement and suggested a meeting after the exchange of financial statements to see if they could resolve the matter. No issue was taken with the proposed equal division of the spouses’ assets. More importantly, no issue was taken with the 272 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

respondent’s proposal that Mr. Hansen would either have to buy out the respondent’s interest in the property if he chose to remain in the home, or alternatively, the property would have to be listed and sold.8 61 Counsel for the respondent on appeal argued that the exchange of correspondence between the spouses’ lawyers is not evidence of conduct capable of severing the joint tenancy because the spouses had only exchanged an “invitation” to negotiate. I disagree with this characterization of the exchange. The correspondence speaks for itself. The letter of April 7th lists all of the spouses’ assets and proposes an equal division. It imposes tight time restrictions and threatens legal action if the matter is not resolved expediently. Mr. Hansen’s lawyer complied with the demands made of him. He had Mr. Hansen execute a financial statement on May 31, 2010, although it was not sent to the respondent prior to his death. As promised in the April 7th letter, counsel for the respondent sent Mr. Han- sen’s counsel a real estate appraisal valuing the property. It is hard to imagine what remained to be done except for documenting the agreement, given that the principle of equal division driving the resolution was not in dispute. 62 Other evidence supporting the intimation that the spouses were mutually treating their interests in the property as being held in common is that, on April 7, 2010 — the same date that counsel for the respondent’s letter was faxed to Mr. Hansen’s counsel — Mr. Hansen instructed his lawyer to draft a new will reflecting his intention that his estate should pass to his children and not to the respondent. In the new will, Mr. Han- sen bequeathed his entire estate, consisting of “all [of his] property of every nature and kind and wheresoever situate” to his children. The matrimonial home was the only significant asset in his estate. The respondent, who had been a beneficiary under his former will, was not a beneficiary under his new will. 63 I recognize that a testamentary disposition cannot, in itself, sever a joint tenancy: “[t]he right of survivorship takes precedence over any disposition made by a joint tenant’s will”: Sorensen’s Estate, at p. 35, citing Megarry and Wade, The Law of Real Property (London: Stevens & Sons

8Of course, in order to show a mutual intention to a tenancy in common, it is not sufficient that a co-owner simply seeks to sell the property: see Principles of Property Law, at p. 345. However, in this case, the letter from respondent’s counsel demands an equalization of all of the party’s assets, which would likewise apply to any proceeds of sale. Hansen Estate v. Hansen W.K. Winkler C.J.O. 273

Ltd, 1957), at p. 369. A declared intention not communicated to a co- owner is, on its own, insufficient, on its own, to establish a mutual intention to sever a joint tenancy.9 And I accept that no greater weight should be given to such a unilateral expression simply because it is found in a testamentary document. That said, the intention shown by Mr. Hansen’s decision to leave his estate to his daughters is relevant in determining the existence of a course of dealing under rule 3. Specifically, his decision to do so supports the case for severance insofar as the decision is consistent with other evidence that the spouses mutually treated their interests in the property as no longer being held jointly. 64 Similarly, the co-owners’ conduct in closing their joint bank accounts and opening separate bank accounts is consistent with the other evidence militating in favour of severance. This conduct further indicates a mutual intention to divide up their assets. 65 Ultimately, the respondent’s assertion of a right of survivorship whereby she would acquire exclusive ownership of the property is entirely inconsistent with the co-owners’ mutual intention, as revealed by their correspondence and their conduct, to divide their interests in the property and hold their interests in common rather than jointly. Indeed, giving effect to the asserted right of survivorship would confer a windfall upon the respondent at the expense of Mr. Hansen’s estate that would be contrary to these mutual intentions.

E. Disposition 66 I would allow the appeal. I would grant a declaration that the appellants are entitled to an undivided, one-half interest in the property located at 143 Speight Crescent, London, Ontario. 67 The parties consented to a costs award of $5000 to the successful party on appeal and a reversal of a costs order below if the appellants are successful. Thus, I would order that the respondent to pay to the appel-

9It is not necessary for the purpose of this appeal to decide whether a unilateral declaration that is communicated to the other co-owner(s) could effect a severance of a joint tenancy: see Sorensen’s Estate, at p. 39; Tavenor Estate v. Tave- nor, 2008 NLCA 2, 272 Nlfd. & P.E.I.R. 299 (N.L. C.A.), at paras. 13-15; Alberta (Public Trustee) v. Felske Estate, 2009 ABCA 209, 7 Alta. L.R. (5th) 77 (Alta. C.A.), at para. 7; King v. King Estate, 2010 NLTD(G) 162, 302 Nfld. & P.E.I.R. 175 (N.L. T.D.), at para. 18. 274 REPORTS OF FAMILY LAW 9 R.F.L. (7th) lants $5000 inclusive of HST in respect of costs of the appeal, and I would reverse the costs order below.

Doherty J.A.:

I agree

S.T. Goudge J.A.:

I agree Appeal allowed. Berg v. Berg 275

[Indexed as: Berg v. Berg] Terry Dawn Berg (Respondent / Claimant) and Tenny Buster Berg (Appellant / Respondent) British Columbia Court of Appeal Docket: Vancouver CA039351 2012 BCCA 92 Lowry, Tysoe, Bennett JJ.A. Heard: February 22, 2012 Judgment: February 22, 2012 Family law –––– Division of family property — Valuation of specific assets — Date of valuation –––– Parties separated in January 2005 after 19-year marriage — Parties engaged in divorce litigation — One of assets owned by parties was shares in company which were owned equally by them — Husband appealed from order of chambers judge in which he ordered that valuation date for investment account with PHN be October 9, 2007 — Appeal allowed — It was not appropriate to have placed value on investments in account at any given time because family asset was shareholding in company, not assets it may own from time to time — More importantly, however, it was premature to fix any valuation date because there had been no order that wife was to transfer shares to husband in exchange for payment of compensation. Cases considered by Tysoe J.A.: Blackett v. Blackett (1989), 40 B.C.L.R. (2d) 99, 22 R.F.L. (3d) 337, 63 D.L.R. (4th) 18, 1989 CarswellBC 183, [1989] B.C.J. No. 1889 (B.C. C.A.) — followed Statutes considered: Family Relations Act, R.S.B.C. 1996, c. 128 s. 56 — considered s. 65 — considered

APPEAL by husband from order of chambers judge in which he ordered that valuation date for investment account with PHN be October 9, 2007.

R. Aldana, for Appellant J. Hittrich, for Respondent 276 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Tysoe J.A. (orally):

1 Mr. Berg appeals from an order of a chambers judge dated September 2, 2011 in which he ordered that the valuation date for an investment account with Phillips, Hager and North be October 9, 2007. 2 The parties separated in January 2005 after a 19-year marriage. A proceeding was commenced in the Supreme Court to deal with the issues arising from the breakdown of the marriage, including issues relating to the division of family assets. One of the assets owned by the parties was shares in a company named 598464 BC Ltd., which were owned equally by them. 598464 BC Ltd. owns the investment account with Phillips, Ha- ger & North, as well as recreational property near Princeton. 3 A trial in the matrimonial proceeding was scheduled for October 9, 2007, but the parties were able to reach a settlement of most issues shortly before the trial. On the first day of the trial, counsel appeared and spoke to a consent order. The consent order contained specific provisions with respect to a few of the family assets, and the remainder of the assets, including the shares in 598464 BC Ltd., were dealt with in the follow paragraph: 10. All other current assets of the parties shall be divided equally and the parties shall attempt to agree on values, associated liabilities and the mechanism of the final division between themselves and in the event of a dispute arising on valuation and the eventual division, there shall be liberty to apply for further directions and orders. 4 The parties entered into discussions and obtained professional assistance with respect to the division of these assets, but no agreement was reached before Mrs. Berg was diagnosed with kidney disease in Novem- ber 2008. She ultimately had a kidney transplant in November 2009. 5 In the meantime, it appears that Mr. Berg continued to deal with the investment account in question. He says he invested a further $150,000 in the account, but it is not known whether the monies were advanced by him to the owner of the account, 598464 BC Ltd., as a gift or a shareholder loan. Mr. Berg has also apparently caused 598464 BC Ltd. to change the mix of the investments in the account. 6 Mrs. Berg is not satisfied with the accounting she has been provided in respect of the account, and she is concerned that there may have been withdrawals from the account. The value of the account has changed over the past four years as the market has fluctuated. Berg v. Berg Tysoe J.A. 277

7 In November 2010, Mr. Berg swore an affidavit stating that he was seeking to have Ms. Berg transfer all her shares in 598464 BC Ltd. to him. 8 In August 2011, each of the parties brought on applications for various forms of relief. Mr. Berg’s notice of application requested, among other things, that “the mutual funds be divided with the number of shares held as at October 2007 by the price of those shares as at November 1, 2008”. Mr. Berg’s notice of application also sought an order that Mrs. Berg transfer her shares in 598464 BC Ltd. but he did not propose that she be paid any compensation for the shares and, in any event, this aspect of the application was not addressed by the chambers judge because, we are told, there were outstanding tax issues that could not be resolved at that time. 9 The hearing of the two applications commenced on August 29, 2011 and concluded with the judge’s order on September 2, 2011. The judge adjourned the aspects of both parties’ applications concerning spousal support, and the only issue dealt with by him was the valuation date for the investment account with Phillips, Hager & North. 10 The chambers judge stated that Mr. Berg took the position at the hearing that the proper valuation date was the date of the hearing of the application (para. 26). He stated that while Mrs. Berg took the position that it would be appropriate to use the current date as long as the account was valued as it then stood, but not using the basket of investments in the account as at October 9, 2007, she was also content to use the October 9, 2007 date as the date to value the investments in the account as at that date (para. 27. 11 There was evidence that Mrs. Berg had agreed to a valuation date of November 1, 2008 for the mutual funds in an email sent on November 13, 2008. The chambers judge found that her agreement was conditional on the account remaining unchanged and on a division occurring within a reasonable period of time, and that the conditions were not satisfied. This finding is not challenged on appeal. 12 The judge’s conclusion with respect to the valuation date was as follows: [28] I am not convinced that there is any merit to using a date that would require a notional valuation of securities in the investment account. In my view, in this situation, the trial date that is the appropriate date to use is the October 9, 2007 date, and not today’s date. 278 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

13 In my opinion, it was not appropriate to have placed a value on the investments in the account at any given time because the family asset is the shareholding in 598464 BC Ltd., not the assets it may own from time to time. More importantly, however, it was premature to fix any valuation date because there had been no order that Mrs. Berg was to transfer her shares to Mr. Berg in exchange for payment of compensation. 14 The appropriate valuation date was at issue in the leading decision of this Court in Blackett v. Blackett (1989), 40 B.C.L.R. (2d) 99, 22 R.F.L. (3d) 337 (B.C. C.A.). In that case, the trial judge had ordered that the husband was to pay compensation to the wife for shares in a company held to be a family asset, and he ordered the valuation date for the shares to be the date of the parties’ separation. In allowing the appeal and ordering the valuation date to be the date of the trial, Madam Justice Southin said the following: [22] When an asset is determined to be a family asset, the Court must ask itself whether s. 51 should be invoked. For that purpose, it is often necessary to have some idea of the value of an asset as at the triggering event for whether or not there is to be a variation of the right given by s. 43 must be determined by the facts existing when that right came into existence. It is then, and then only, that the right can be unfair. [23] But when the Court considers what to do by way of a compensation order under s. 52, it is the value at date of trial which is significant for it is at that point that one spouse is having taken away a vested interest and the other spouse is paying for that vested interest. 15 Although Southin J.A. made reference to the date of trial, its significance in that case was that it was the trial date on which the court took away the interest of one spouse in the family asset and ordered the other spouse to pay compensation for it. Put another way, the appropriate time for fixing a valuation date is when one spouse’s interest in a family asset is taken away and a compensation order is made. 16 In the present case, Mrs. Berg has owned half the shares in 598464 BC Ltd. at all material times. She did not need to rely on a triggering event under s. 56 of the Family Relations Act, R.S.B.C. 1996, c. 128, because she already owned half the shares. The consent order of October 9, 2007 did not affect her interest in the shares other than ordering all the shares in 598464 B.C. Ltd. be divided equally, such that neither party could thereafter claim reapportionment under s. 65 of the Act. Berg v. Berg Lowry J.A. 279

17 There was no order on October 9, 2007 or at any subsequent time taking away the interest of Mrs. Berg in the shares (or her indirect interest in the investment account) and no compensation order has been made. She continues to own the shares and, until there is such an order, it is premature in my view for the court to set a valuation date. As held by Blackett, the appropriate valuation date is the date on which her interest in the shares is taken away, and this has not yet occurred. Rather than setting the valuation date requested by Mr. Berg or an alternate valuation date, the chambers judge should have dismissed Mr. Berg’s application or adjourned the application. 18 It is, of course, open to the parties to agree in the absence of a court order that the shares be transferred to Mr. Berg for mutually agreed consideration. When parties negotiate for the purchase and sale of an asset, they typically negotiate a price that reflects the fair market value of the asset at the time of the negotiations. 19 I would allow the appeal and set aside the September 2, 2011 order. In the circumstances, I would order that each party bear their own costs of this appeal.

Lowry J.A.:

20 I agree.

Bennett J.A.:

21 I agree.

Lowry J.A.:

22 There will be an order accordingly. Appeal allowed. 280 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

[Indexed as: Nesbitt v. Neufeld] Patrick Michael Nesbitt (Appellant / Plaintiff) and Wendy Lee Neufeld (Respondent / Defendant) Patrick Michael Nesbitt (Appellant / Plaintiff) and Wendy Lee Neufeld (Respondent / Defendant) British Columbia Court of Appeal Docket: Vancouver CA038650; CA038722 2011 BCCA 529 Finch C.J.B.C., Donald, Low JJ.A. Heard: December 2, 2011 Judgment: December 22, 2011 Civil practice and procedure –––– Pleadings — Application to strike — Amendment as alternative to striking –––– Dispute arose following custody battle over parties’ child — Father commenced action against mother alleging false arrest, malicious prosecution, defamation and harassment — Mother counterclaimed for breach of privacy and defamation — Father’s statement of claim was struck out and mother succeeded on counterclaim for defamation — Father filed amended statement of claim that was struck out — Father appealed from orders striking out amended statement of claim and awarding damages for defamation — Appeals dismissed — No basis existed to interfere with order striking out amended statement of claim, as there was no misapprehension of fact, error in law or principle or any improper exercise of judicial discretion — With respect to counterclaim, there was no merit to procedural objections — There was sound basis for proceeding by way of summary trial given protracted nature of proceedings and father’s misuse of court’s process — There was no finding of fact that was not amply supported by evidence and there was no error of law or principle. Torts –––– Defamation — Damages — Types of damages available — Gen- eral damages –––– Dispute arose following custody battle over parties’ child — Father commenced action against mother alleging false arrest, malicious prosecution, defamation and harassment — Mother counterclaimed for breach of privacy and defamation — Mother succeeded on counterclaim for defamation — Father filed amended statement of claim that was struck out — Father appealed from orders striking out amended statement of claim and awarding damages for defamation — Appeals dismissed — With respect to counterclaim, there was no merit to procedural objections — There was sound basis for proceeding by way of summary trial given protracted nature of proceedings and father’s misuse of Nesbitt v. Neufeld Per curiam 281

court’s process — There was no finding of fact that was not amply supported by evidence and there was no error of law or principle. Torts –––– Invasion of privacy — Miscellaneous –––– Dispute arose following custody battle over parties’ child — Father commenced action against mother alleging false arrest, malicious prosecution, defamation and harassment — Mother counterclaimed for breach of privacy and defamation — Father’s statement of claim was struck out and mother succeeded on counterclaim for defamation — Father appealed from order awarding damages for defamation — Appeal dismissed — With respect to counterclaim, there was no merit to procedural objections — There was sound basis for proceeding by way of summary trial given protracted nature of proceedings and father’s misuse of court’s process — There was no finding of fact that was not amply supported by evidence and there was no error of law or principle. Civil practice and procedure –––– Costs — Costs of appeals — Persons entitled to costs — General principles –––– Dispute arose following custody battle over parties’ child — Father commenced action against mother alleging false arrest, malicious prosecution, defamation and harassment — Mother counterclaimed for breach of privacy and defamation — Father’s statement of claim was struck out and mother succeeded on counterclaim for defamation — Father appealed from orders striking out amended statement of claim and awarding damages for defamation — Appeals dismissed — Mother had been awarded special costs by applications judges — Orders were clearly merited based on father’s malicious and vindictive conduct — Mother was entitled to costs of appeals.

APPEALS from judgments reported at Nesbitt v. Neufeld (2010), 2010 BCSC 1605, 2010 CarswellBC 3085 (B.C. S.C.) and Nesbitt v. Neufeld (2010), 2010 CarswellBC 3400, 2010 BCSC 1751, 96 R.F.L. (6th) 493 (B.C. S.C.), awarding damages to mother and striking out father’s amended statement of claim.

Patrick Michael Nesbitt, for himself Wendy Lee Neufeld, for herself

Per curiam:

1 At the conclusion of the hearing for these two appeals on 2 December 2011, the Court dismissed both of them with reasons to follow. These are those reasons. 2 These two appeals raise different issues, but both have their origins in the unhappy differences between the parties which arose in the course of family court litigation commenced in 2006, on the issue of custody and 282 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

access to the parties’ child. Ms. Neufeld was awarded primary care, custody, and control of the child, and Dr. Nesbitt was granted an order for supervised access. 3 Matters subsequently escalated. Dr. Nesbitt’s appeal in CA038650 is from the judgment of Mr. Justice Crawford, pronounced 15 November 2010, awarding Ms. Neufeld damages on her counterclaim for defamation and breach of privacy. His appeal in CA038722 is from the order of Madam Justice Gropper on 8 December 2010, striking out Dr. Nesbitt’s amended statement of claim in Supreme Court action number S118846. 4 The background to the two proceedings is conveniently summarized by Mr. Justice Lowry in his ruling on 19 May 2011, granting Dr. Nesbitt an extension of time to file appeal records and transcripts for the two appeals. Mr. Justice Lowry said: [2] Dr. Nesbitt commenced an action against Ms. Neufeld in which he alleged, among other things, false arrest, malicious prosecution, defamation and harassment. Ms. Neufeld counterclaimed for breach of privacy and defamation. Ms. Neufeld applied to strike out Dr. Nesbitt’s statement of claim. Madam Justice Hyslop granted Ms. Neufeld’s application on the basis that Dr. Nesbitt’s statement of claim was little more than an irrelevant opinion of Dr. Nesbitt and others and that he had pleaded conclusions of law without any of the supporting material facts. Dr. Nesbitt was ordered to amend his statement of claim within a stated timeline if he wished to pursue his action. The judge awarded Ms. Neufeld special costs on the basis that the action as pleaded was intended to punish Ms. Neufeld. [3] Dr. Nesbitt sought leave to appeal the order of Hyslop J. Madam Justice Kirkpatrick dismissed Dr. Nesbitt’s application. [4] Ms. Neufeld’s counterclaim was then tried before Mr. Justice Crawford who, on 15 November 2010, gave judgment awarding her $40,000 for breach of privacy and defamation. Ms. Neufeld was also awarded special costs on the basis that Dr. Nesbitt’s claims were malicious and relentless, and deliberately designed to humiliate Ms. Neufeld and cause her emotional suffering. [5] Dr. Nesbitt then filed an amended statement of claim. Ms. Neufeld applied to have it struck out before Madam Justice Gropper. On 8 December 2010, the amended pleading was struck for Dr. Nes- bitt’s failure to comply with the timeline set out in the order of Hys- lop J. and for not complying with the Rules of Court in the same ways as did the original statement of claim struck out by Hyslop J. In particular, the amended statement of claim was found to be meritless as it contained little more than irrelevant facts and opinion. Follow- Nesbitt v. Neufeld Per curiam 283

ing the reasoning of Crawford J., Gropper J. awarded Ms. Neufeld special costs.

The Order in CA038722 5 We will address first the appeal from the order of Gropper J. in CA038722. Ms. Neufeld applied to strike out Dr. Nesbitt’s statement of claim. She also sought an order that Dr. Nesbitt was in breach of the order of Mr. Justice Truscott, pronounced 14 October 2009. 6 Madam Justice Gropper found that Dr. Nesbitt was in breach of the order of Hyslop J. of 24 November 2009, requiring him to amend his statement of claim by 18 December 2009, and to deliver a copy of it to Ms. Neufeld’s solicitor no later than 12:00 p.m. on 22 December 2009. Madam Justice Hyslop struck out paras. 2 through 164 of the original statement of claim. 7 Ms. Neufeld, through her counsel, received an unfiled amended statement of claim by fax at 6:33 p.m. on 21 December 2009. 8 Applying the relevant rules and legal principles to Dr. Nesbitt’s amended statement of claim, Gropper J. held that it too should be struck out. She made a detailed assessment of that document, and concluded that apart from the paragraphs which Dr. Nesbitt agreed to strike out, the remainder failed to plead material facts and contained either conclusions of law or statements that were irrelevant to the plaintiff’s claim. 9 With respect to the amended statement of claim, Gropper J. concluded: [14] Dr. Nesbitt’s amended statement of claim does not disclose a reasonable claim or ones that can be resolved by amendments. Some are barred by the Limitation Act and others are not properly plead. [15] This is the second opportunity Dr. Nesbitt has had to file a statement of claim which conforms with the Rules. He has not done so. [16] There is nothing to be gained by directing Dr. Nesbitt to file an amended amended statement of claim. The basis of his claim is without merit. It appears, as Hyslop J. found, that Dr. Nesbitt’s statement of claim is intended to punish Ms. Neufeld. 10 Madam Justice Gropper did not find it necessary to conclude whether Dr. Nesbitt’s application for default judgment had merit. She said: [18] I find that a decision on this issue is unnecessary. It appears that Dr. Nesbitt did not abide by the order of Truscott J. regarding the provision of unaltered exhibits. However, as I have struck the statement of claim, the issue concerning whether Dr. Nesbitt’s application 284 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

for default judgment has merit is entirely academic. He has no claim against Ms. Neufeld in these proceedings and therefore he is not entitled default judgment. 11 In both his written and oral submissions before us, Dr. Nesbitt has failed to show any ground on which this Court could properly interfere with the ruling of Gropper J. He has not pointed to any misapprehension of fact, any error in law or principle, or any improper exercise of judicial discretion. 12 For these reasons, the appeal from the order of Gropper J. striking out the statement of claim must be, and was, dismissed.

The Order in CA038650 13 Dr. Nesbitt’s second appeal is from the order of Crawford J. granting Ms. Neufeld judgment in the sum of $40,000 on her counterclaim against Dr. Nesbitt for breach of privacy and defamation. Mr. Justice Crawford set out in detail the many defamatory statements concerning Ms. Neufeld, which were published by Dr. Nesbitt in a variety of ways, including faxes, emails, an Internet website, a Facebook page, and letters to the Ministry of Child Welfare and to her child’s doctor. 14 Some of these communications contained personal, confidential information about Ms. Neufeld which Dr. Nesbitt appears to have obtained from her computer. Mr. Justice Crawford held (para. 91) that Dr. Nes- bitt’s use of Ms. Neufeld’s private correspondence was a deliberate act that violated her privacy. After correctly summarizing the law of defamation, he held that Dr. Nesbitt’s various communications would tend to lower Ms. Neufeld’s reputation in the eyes of a reasonable person. He further held that none of the communications were protected by qualified privilege. He said: [86] Dr. Nesbitt’s desire to win the custody and access dispute by any means is plainly the motive that defeats his claim for qualified privilege which would otherwise extend to reports alleging sexual and physical abuse of the Child. 15 In his appeal against the order of Crawford J., Dr. Nesbitt makes various allegations. He argues that Ms. Neufeld’s counterclaim for damages for breach of privacy and defamation should not have been heard as a summary trial on affidavit evidence. He states that he did not have adequate notice that the trial would proceed in that manner, and that it was an irregular proceeding because the counterclaim duplicated allegations Nesbitt v. Neufeld Per curiam 285

that had been made by Ms. Neufeld in the separate action she had commenced. 16 We see no merit in any of these procedural objections. Mr. Justice Crawford found that the affidavit material before him provided clear in- sight into the events that had occurred, that he could find the facts necessary to render judgment, and that it would be just to do so. Given the protracted nature of the proceedings, and Dr. Nesbitt’s misuse of the Court’s process, there was a sound basis for proceeding by way of summary trial, and for not permitting further delay. 17 Dr. Nesbitt has not raised any ground of appeal going to the merits of Crawford J.’s judgment. We have been unable to detect any finding of fact that is not amply supported by the evidence, nor any error of law or principle. 18 For these reasons, the appeal from the judgment of Crawford J. pronounced 15 November 2010, was dismissed.

Costs 19 Both Crawford and Gropper JJ. made orders that Ms. Neufeld recover special costs from Dr. Nesbitt. Mr. Justice Crawford said: [106] Ms. Neufeld sought special costs. I am of the opinion that she is clearly entitled. Relying on Garcia v. Crestbrook Forest Industries Ltd. (1995), 9 B.C.L.R. (3d) 242, 45 B.C.A.C. 222, at para. 17 of B.C.L.R., and Young v. Borzoni, 2007 BCCA 16, 277 D.L.R. (4th) 685, at para. 68 of BCCA, counsel for Ms. Neufeld submitted that Dr. Nesbitt continued to subject Ms. Neufeld to the same groundless claims in his pleadings; that his claims are designed to cause her emotional suffering; and that they are malicious and relentless, deliberately designed to humiliate Ms. Neufeld and force her to acknowledge him. I agree that Dr. Nesbitt engaged in reprehensible conduct, giving rise to Ms. Neufeld’s counterclaim, and that his misconduct is deserving of the Court’s reproof or rebuke. Ms. Neufeld is entitled to special costs. 20 In her reasons, Gropper J. quoted that paragraph, and said she reached the same conclusion. Given the groundless and malicious nature of Dr. Nesbitt’s conduct in this litigation, those orders were clearly merited. 21 Ms. Neufeld did not seek special costs on either of these appeals. She is, however, entitled to the costs of both appeals against Dr. Nesbitt. 22 Dr. Nesbitt’s signature on the order to be signed is dispensed with. Appeals dismissed. 286 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

[Indexed as: Smith v. Smith] Katherine Adavilla Smith (Petitioner / Appellant) and George John Smith (Respondent / Respondent) New Brunswick Court of Appeal Docket: 71-10-CA 2011 NBCA 66 M.E.L. Larlee, Kathleen A. Quigg, Bradely V. Green JJ.A. Heard: February 16, 2011 Judgment: July 21, 2011 Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Quantum of support –––– Parties commenced cohabitation in 1976, married in 1978, had two children, and separated in 2007 — Wife’s 2008 income was $7,372.50, and experienced deficit in 2009 — At time of trial, wife was working as bookkeeper for $10 per hour, 30 hours per week — At trial, husband was ordered to pay wife spousal support of $1,000 per month on husband’s annual income of $62,500 — Parties’ children were financially independent — Wife appealed — Appeal allowed — Husband was ordered to pay spousal support of $1,709.50 per month — Trial judge’s decision was unsupported by evidence — Trial judge committed error of mixed fact and law in applying Divorce Act to misapprehended facts that caused him to order inappropriate support award — Trial judge failed to undertake proper analysis to explain why he rejected amounts suggested in Spousal Support Advisory Guidelines — Trial judge erred in making palpable and overriding error by considering husband’s possible future debt to be present-day actual debt — Trial judge erred by finding that husband faced risk of further claims that would increase his indebtedness, and by finding that husband faced possibility of bankruptcy. Cases considered by Kathleen A. Quigg J.A.: Adams v. Adams (2003), 2003 NBCA 10, 2003 CarswellNB 55, 2003 Car- swellNB 56, 256 N.B.R. (2d) 136, 670 A.P.R. 136, 35 R.F.L. (5th) 245, [2003] N.B.J. No. 51 (N.B. C.A.) — referred to Boudreau v. Brun (2005), 2005 NBCA 106, 2005 CarswellNB 700, 2005 Car- swellNB 701, 293 N.B.R. (2d) 126, 762 A.P.R. 126, [2005] N.B.J. No. 501 (N.B. C.A.) — referred to C. (J.D.E.) v. C. (S.M.) (2006), 27 R.F.L. (6th) 19, 2006 NBCA 46, 2006 Car- swellNB 242, 2006 CarswellNB 243, 778 A.P.R. 334, 299 N.B.R. (2d) 334, [2006] N.B.J. No. 186 (N.B. C.A.) — considered Cassidy v. McNeil (2010), 266 O.A.C. 62, 99 O.R. (3d) 81, 2010 CarswellOnt 1637, 2010 ONCA 218, [2010] O.J. No. 1158 (Ont. C.A.) — considered Smith v. Smith 287

Fisher v. Fisher (2008), 2008 ONCA 11, 2008 CarswellOnt 43, 88 O.R. (3d) 241, 232 O.A.C. 213, 47 R.F.L. (6th) 235, 288 D.L.R. (4th) 513, [2008] O.J. No. 38 (Ont. C.A.) — considered Hickey v. Hickey (1999), [1999] 2 S.C.R. 518, 172 D.L.R. (4th) 577, 1999 Car- swellMan 254, 1999 CarswellMan 255, 46 R.F.L. (4th) 1, 240 N.R. 312, [1999] 8 W.W.R. 485, 138 Man. R. (2d) 40, 202 W.A.C. 40, [1999] S.C.J. No. 9 (S.C.C.) — considered Housen v. Nikolaisen (2002), 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, 2002 CarswellSask 178, 2002 CarswellSask 179, 2002 SCC 33, 30 M.P.L.R. (3d) 1, 219 Sask. R. 1, 272 W.A.C. 1, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, REJB 2002-29758 (S.C.C.) — followed Lang v. Lang (2007), 2007 CarswellNB 445, [2007] N.B.J. No. 348 (N.B. C.A.) — considered M. (J.A.) v. M. (D.L.) (2008), 2008 CarswellNB 24, 2008 CarswellNB 25, 2008 NBCA 2, 838 A.P.R. 111, 326 N.B.R. (2d) 111, 289 D.L.R. (4th) 37, [2008] N.B.J. No. 9 (N.B. C.A.) — considered MacDonald v. MacDonald (2011), 2011 CarswellNB 126, 2011 CarswellNB 127, 2011 NBCA 25, [2011] N.B.J. No. 81 (N.B. C.A.) — considered Mills v. Mills (2010), 356 N.B.R. (2d) 351, 919 A.P.R. 351, 82 R.F.L. (6th) 247, 2010 NBCA 20, 2010 CarswellNB 126, 2010 CarswellNB 127, 319 D.L.R. (4th) 183 (N.B. C.A.) — referred to Milton v. Milton (2008), 338 N.B.R. (2d) 300, 866 A.P.R. 300, 305 D.L.R. (4th) 94, 2008 CarswellNB 591, 2008 CarswellNB 592, 2008 NBCA 87, 62 R.F.L. (6th) 286, [2008] N.B.J. No. 467 (N.B. C.A.) — considered R. v. Ferguson (2008), [2008] 5 W.W.R. 387, 290 D.L.R. (4th) 17, 371 N.R. 231, 87 Alta. L.R. (4th) 203, [2008] 1 S.C.R. 96, 2008 SCC 6, 418 W.A.C. 79, 2008 CarswellAlta 228, 2008 CarswellAlta 229, 54 C.R. (6th) 197, 228 C.C.C. (3d) 385, 425 A.R. 79, 168 C.R.R. (2d) 34, [2008] S.C.J. No. 6 (S.C.C.) — referred to R. v. Salituro (1991), 9 C.R. (4th) 324, 8 C.R.R. (2d) 173, 50 O.A.C. 125, [1991] 3 S.C.R. 654, 131 N.R. 161, 68 C.C.C. (3d) 289, 1991 CarswellOnt 1031, 1991 CarswellOnt 124, EYB 1991-67635, [1991] S.C.J. No. 97 (S.C.C.) — considered Redpath v. Redpath (2006), 376 W.A.C. 272, 228 B.C.A.C. 272, 2006 BCCA 338, 2006 CarswellBC 1709, 62 B.C.L.R. (4th) 233, 33 R.F.L. (6th) 91, [2006] B.C.J. No. 1550 (B.C. C.A.) — considered Yemchuk v. Yemchuk (2005), 2005 CarswellBC 1881, 2005 BCCA 406, [2005] 10 W.W.R. 634, 257 D.L.R. (4th) 476, 44 B.C.L.R. (4th) 77, 16 R.F.L. (6th) 430, 215 B.C.A.C. 193, 355 W.A.C. 193, [2005] B.C.J. No. 1748 (B.C. C.A.) — referred to 288 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to s. 15.2 [en. 1997, c. 1, s. 2] — considered s. 15.2(4) [en. 1997, c. 1, s. 2] — considered s. 15.2(6) [en. 1997, c. 1, s. 2] — considered s. 15.2(6)(d) [en. 1997, c. 1, s. 2] — considered Marital Property Act, S.N.B. 1980, c. M-1.1 Generally — referred to

APPEAL by wife from judgment awarding wife spousal support.

Sheila J. Cameron, for Appellant Allison Whitehead, Q.C., for Respondent

Kathleen A. Quigg J.A.: I. Introduction 1 This appeal raises the question of whether a trial judge errs in law, if he or she disregards the range of payments that would apply if the Spousal Support Advisory Guidelines were followed, without providing an explanation as to why they were not followed. Mrs. Smith appeals the decision of a judge of the Court of Queen’s Bench, Family Division, following a trial on the issues of divorce and spousal support pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as well as a division of marital property under the Marital Property Act, S.N.B. 1980, c. M-1.1. Based on the trial judge’s misapprehension of the evidence, I would allow the appeal and award the amount of $1,709.50 per month in spousal support.

II. Factual and Procedural Background 2 The parties began cohabiting in Alberta in 1976, where Mr. Smith was posted with the RCMP. They married in New Brunswick on October 14, 1978. The respondent accepted a transfer to Nova Scotia in 1979. During this period the parties became the parents of two children. In 1980, after four years of service, Mr. Smith left the RCMP. The parties relocated to New Glasgow, Nova Scotia, in 1980, as Mr. Smith had accepted employment as an insurance adjuster. Mrs. Smith obtained her real estate agent’s licence. In 1984, Mr. Smith undertook employment with a wholesale furniture warehouse distribution centre in New Glas- Smith v. Smith Kathleen A. Quigg J.A. 289

gow. At this time, Mrs. Smith established a Benjamin Moore franchise and an interior decorating business with another individual. 3 In 1989, the parties returned to New Brunswick in order to purchase and operate a Greco Pizza franchise. The parties incorporated G.S. Pizza Ltd. to acquire the assets and franchise. The building and land where the restaurant was situated were acquired by a transfer of the title to the parties in joint tenancy. They then leased the property to G.S. Pizza Ltd. Mrs. Smith worked in the restaurant for a period of one to two years. She obtained her New Brunswick real estate licence between 1989 and 1990, and began working as a real estate agent on a full time basis. Mrs. Smith worked in this field until 2005, earning an average annual salary of $15,000. She undertook further studies in order to obtain her New Bruns- wick Real Estate Appraiser licence, but did not complete the program. 4 In 1995, the parties expanded their pizza business and opened a second establishment. A numbered company, owned equally by Mr. Smith and another business person, purchased a building, and G.S. Pizza Ltd. rented space in that building. This property was sold in 2005, and Mr. Smith netted $13,000 from the sale, which he deposited to an account referred to by the trial judge as a “general living account” (paras. 15-16). G.S. Pizza Ltd. continued to do business in this property as well as in the original premises. 5 From 1999 to 2001, Mr. Smith managed a wood products company. In August 2002, he began to work as an instructor at the New Brunswick Community College. He continues to be employed in this position, and at the time of trial, was earning an annual salary of $62,500. In April 2005, Mrs. Smith became the manager of G.S. Pizza Ltd. and she worked full time in this position until May 2007, when she moved to Nova Scotia. Although she had ceased being the manager of G.S. Pizza Ltd., she remained on the payroll until December 2007. Mrs. Smith earned an annual salary of $30,000 between April 2005 and December 2007. 6 The parties separated in January 2007, after 28 years of marriage. Mrs. Smith is presently 52 years of age. Mr. Smith is currently 54 years of age. Their two children are financially independent. After the separation, Mrs. Smith returned to Nova Scotia. She obtained her Nova Scotia real estate agent’s licence in 2008. Her gross commissions for 2008 were $7,372.50, and by May 2009, her real estate practice was in a deficit position. She therefore discontinued selling real estate. Mrs. Smith had no income between May and December 2009. At the time of the trial, she was working as a bookkeeper for $10 per hour, 30 hours per week, but 290 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

this employment was uncertain as the business she worked for was for sale. 7 Mrs. Smith filed a petition for divorce on June 29, 2009. Mr. Smith filed an answer to the petition on February 19, 2010. An order, dated December 7, 2009, provided interim spousal support was to be paid to Mrs. Smith in the amount of $2,000 per month, retroactive to September 1, 2009. The trial was heard on February 22 and 23, 2010.

III. The Trial Decision 8 With respect to spousal support, Mr. Smith was ordered to pay Mrs. Smith $1,000 per month, retroactive to March 1, 2010. The trial judge’s reasons are as follows: In the present circumstances as I assess the situation the request for payment of monthly spousal support of $2,300.00 per month as asked for is not justified and Mr. Smith does not have the income or ability to pay it in his present financial circumstances. The Spousal Support Guidelines are advisory only, there are exceptions. Many other relevant circumstances that exist in the present circumstances must be considered. This particular matter is somewhat different and as such it must be approached differently. The parties enjoyed a good lifestyle, one obviously beyond their means. Mr. Smith has much debt, his earnings are subject to garnishment and he has very little left from the division of marital assets. He faces a risk of other claims as a result of the failure of the restaurant operations; personal bankruptcy has to be a consideration. In his unfortunate financial circumstances as is clear from the evidence he is not able to pay monthly spousal support of $2,300.00. Mrs. Smith, as far as I know, enjoys good health, she has many job skills. She has a grade 12 education and worked throughout the marriage. She has experience as a real estate agent and as such in this area was successful. She managed the restaurant businesses. She took and completed all the necessary courses to qualify as a real estate appraiser. Should she complete the “demo”, which is not as I understand it overly difficult and become qualified, there are many opportunities for work in the real estate appraisal field. She holds a real estate agent license in the province of Nova Scotia. I do appreciate that after moving to that area she needed time to build up a clientele to generate a reasonable income from selling real estate. She did have clientele in this area before relocating to Nova Scotia. She should not have too much difficulty to complete her appraisal certification. She has a fairly significant amount of money Smith v. Smith Kathleen A. Quigg J.A. 291

from the proceeds of the sale of the marital home and reimbursement of other monies payable to her as above set out. This should relieve her from some economic hardship as a result of the breakup. It will also assist her in setting up a business as she has contemplated which should allow for self sufficiency. She has experience in business which should assist her in such endeavours. I do not see that her career nor employment opportunities were overly negatively impacted by her lack of a post secondary education, childcare responsibilities or involvement in advancing her husband’s career. [paras. 106-110]

IV. Grounds of Appeal 9 Mrs. Smith raises two grounds of appeal: 1. The Trial Judge committed an error in law in not applying the Spousal Support Advisory Guidelines to determine the appropriate amount of spousal support payable to [her], when entitlement to spousal support was admitted by [Mr. Smith]. 2. Alternatively, the Trial Judge committed an error in law in failing to determine the quantum of spousal support in accordance with the factors and objectives of section 15.2 of the Divorce Act.

V. Standard of Review 10 In family matters, trial judges’ decisions are given considerable deference. In MacDonald v. MacDonald, 2011 NBCA 25, [2011] N.B.J. No. 81 (N.B. C.A.), Larlee J.A. says: The standard of review that applies to family matters generally is that the judge’s decision must be given considerable deference. An appellate court is empowered to set aside or vary a decision or order where it is the product of an error of law, an error in principle, a significant misapprehension of the evidence or if it is clearly wrong (see Hickey v. Hickey, [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9 (QL) para. 11; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Sa- voie v. Levesque, 2009 NBCA 47, [2009] N.B.J. No. 282 (QL); Ms. P.H. v. Mr. P.H., 2008 NBCA 17, [2008] N.B.J. No. 52 (QL); Milton v. Milton 2008 NBCA 87, 338 N.B.R. (2d) 300, para. 14.; J.E.J. v. S.L.M., 2007 NBCA 33, [2007] N.B.J. No. 249 (QL), para. 35; S.H. v. V.B., 2007 NBCA 69, 321 N.B.R. (2d) 314, para. 2). [para. 7] 292 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

11 The standard of review in spousal support cases is discussed in Milton v. Milton, 2008 NBCA 87, 338 N.B.R. (2d) 300 (N.B. C.A.), where Larlee J.A. stated: [...] In addition we will only interfere with a support order where there has been an error in principle, a significant misapprehension of the evidence, or the award is clearly wrong (see Hickey v. Hickey, [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9 (QL), at para. 11 and Pol- lock v. Rioux (2004), 278 N.B.R. (2d) 351, [2004] N.B.J. No. 467 (QL), 2004 NBCA 98, para. 27). [para. 14] 12 Richard J.A. discusses the standard of review respecting findings of fact in Lang v. Lang, [2007] N.B.J. No. 348 (N.B. C.A.): The law is equally clear that the Court of Appeal cannot re-try a case. The Court of Appeal may only overturn a trial judge’s finding of fact [if] it is the result of a palpable and overriding error, and may only interfere with a discretionary order if it is founded upon an error of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence (see Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 (QL), 2002 S.C.C. 33 and H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24 (QL), 2005 SCC 25 with regard to findings of fact, and British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371, [2003] S.C.J. No. 76 (QL), 2003 S.C.C. 71, at para. 43, with regard to discretionary orders). [para. 3] Therefore, in New Brunswick, although this deferential standard of review has been applied in spousal support cases, appellate courts can interfere when a trial judge’s key findings rest upon palpable and overriding errors of fact.

VI. Analysis 13 The Divorce Act provides for judicial discretion in the fashioning of spousal support orders: Spousal support order 15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. Smith v. Smith Kathleen A. Quigg J.A. 293

Ordonnance alimentaire au profit d’un epoux´ 15.2 (1) Sur demande des epoux´ ou de l’un d’eux, le tribunal comp´e- tent peut rendre une ordonnance enjoignant a` un epoux´ de garantir ou de verser, ou de garantir et de verser, la prestation, sous forme de capital, de pension ou des deux, qu’il estime raisonnable pour les aliments de l’autre epoux.´ 14 Mrs. Smith’s first ground of appeal contends the trial judge committed an error in law by not applying the Spousal Support Advisory Guide- lines in determining the amount of spousal support payable by Mr. Smith. This ground of appeal suggests that a trial judge’s use of discretion in support awards, as per the Divorce Act, is constrained by the Guidelines. Therefore, not following the Guidelines would constitute an error in law. It could also be argued that awarding spousal support in an amount lower than the Guidelines’ range is an error. 15 Mrs. Smith contends that the award was clearly wrong, as the amount ordered was much lower than the range provided by the Guidelines, and no exceptional circumstances exist to explain this discrepancy. In my view, it is clear the trial judge’s reasons disclose a significant misapprehension of the evidence. 16 Some of the factual assumptions made by the judge concerning Mrs. Smith were as follows: (1) Mrs. Smith has many job skills; (2) She has been successful as a real estate agent; (3) The “demo” portion of the real estate appraiser licensing process is not “overly difficult”; (4) There are many opportunities for work in the real estate appraisal field; (5) She has the means and experience to start her own business “which should allow for self-sufficiency”, and; (6) Her career and employment opportunities were not overly negatively impacted by her lack of post-secondary education, child care responsibilities or involvement in advancing her husband’s career. 17 The difficulty with these findings of fact are as follows: (1) Although Mrs. Smith has had various types of employment, there is nothing in the record detailing exactly what job skills she possesses; 294 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

(2) The trial judge noted Mrs. Smith was not “overly successful” in her real estate work, and her annual income during her real estate career bears that out; (3) Because there was no evidence put forward at trial to suggest the “demo” for the real estate appraising license was not “overly difficult”, the judge could not take judicial notice of this proposition as a fact; (4) Because there was no evidence at trial to suggest there are many opportunities for work in Nova Scotia in the real estate appraising field, the judge could not take judicial notice of this proposition as a fact, and; (5) Mrs. Smith’s lack of success at entrepreneurial endeavours in the past certainly does not suggest she has the means and experience to start and maintain her own business, and thereby become self- sufficient; (6) It is unclear what the trial judge meant when he found “her career and employment opportunities were not overly negatively impacted...” During this long term marriage, Mrs. Smith parented two children and moved on numerous occasions to allow Mr. Smith to make his various career changes. In my view, these findings of fact demonstrate Mrs. Smith’s career and employment opportunities were negatively impacted. 18 It is my view that the conditions, means and needs of Mrs. Smith at the time of trial did not accord with the trial judge’s findings. However, entitlement to spousal support was conceded by Mr. Smith in this case. Therefore, the only issue outstanding is quantum. Determination of the appropriate quantum largely turned on Mr. Smith’s ability to pay. It is therefore the findings of fact regarding Mr. Smith’s financial situation that are most important in assessing whether there was a significant misapprehension of the evidence that constituted a reversible error of fact. 19 It is apparent, from paragraphs 106-110 of the trial judge’s decision, that he made an award lower than suggested by the Guidelines because of the following: (1) Mr. Smith has much debt; (2) Mr. Smith’s earnings are subject to garnishment; (3) Mr. Smith faces a risk of further claims that would increase his indebtedness, and; Smith v. Smith Kathleen A. Quigg J.A. 295

(4) Mr. Smith could possibly face bankruptcy as a result of his debts. 20 The difficulties I have with these findings of fact are: (1) The Respondent’s debts, as listed in paragraph 71 of the Trial Judgment, included an amount that was not truly a debt of the Re- spondent; other amounts related to a debt incurred after separation of the parties; and a further amount for a debt that was not documented in evidence. (2) The Respondent’s earnings would no longer be subject to garnishment, as the Trial Judge noted that the parties agreed that HST amount owing of $12,831.28 was a joint responsibility, and should be paid from funds held in trust by the Appellant’s solicitor (Trial Judgment at paragraph 79). (3) The finding that the Respondent faces a “risk” of further claims that would increase his indebtedness is purely speculative (Trial Judgment at paragraph 72). If further indebtedness actually occurs, it may constitute a material change in circumstances, and the Respondent would be free to apply for a variation of the spousal support award. (4) The risk of “possible” bankruptcy is again speculative and seem- ingly contingent upon debts that may or may not accrue in the future. 21 The trial judge made a palpable and overriding error by considering Mr. Smith’s possible future debt to be present-day actual debt. This was pure conjecture on his part. His decision is therefore reviewable, and the quantum of spousal support may be adjusted by this Court. 22 The standard of review for an error of fact has been met in the case at bar. However, Mrs. Smith has raised an issue regarding the appropriate standard of review in cases involving spousal support awards. This issue must be addressed. Mrs. Smith refers to the British Colombia Court of Appeal case of Redpath v. Redpath, 2006 BCCA 338, [2006] B.C.J. No. 1550 (B.C. C.A.), in order to suggest that the standard of review should be reformulated if the amount of spousal support awarded at trial level is substantially outside the Guidelines’ range and no exceptional circumstances exist to justify the departure. In Redpath, the Court states: Cases such as Hickey, however, were decided prior to the introduction of the Advisory Guidelines. Now that they are available to provide what is effectively a “range” within which the awards in most cases of this kind should fall, it may be that if a particular award is substantially lower or higher than the range and there are no excep- 296 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

tional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate intervention. [...] [para. 42] [Emphasis in original.] 23 Although the Court in Redpath did not specifically state that such an unjustified departure from the Guidelines would constitute an error of law, Mrs. Smith suggests that it should. Her argument is that the correct- ness standard should apply. In Redpath, the Court held the trial judge considered the appropriate factors and did not misapprehend the evidence, yet the spousal support awarded was too low in relation to the Guidelines range (see para. 42). 24 Mrs. Smith asserts the circumstances enunciated by the trial judge fail to meet the accepted list of exceptions set out by the Guidelines and the jurisprudence. This argument is flawed in that it suggests an exhaustive list of legitimate exceptions exists, which can be relied upon when calculating the support range pursuant to the Guidelines. No such exhaustive list exists in the Guidelines. The authors of the Guidelines have stated: “We recognize that any list of itemized exceptions will not be exhaustive” (Rogerson, Carol and Thompson, Rollie, Spousal Support Advisory Guidelines, Department of Justice Canada, July 2008, s. 12). More importantly, no such list exists at law. 25 Mrs. Smith’s written submission refers to a number of appellate court decisions, from this Court, as well as other jurisdictions, in arguing that when entitlement to spousal support exists, courts must determine if there are any exceptional circumstances that would justify an amount other than those included in the Guidelines range, and if no such exceptional circumstances exist, the court must order support as per the Guide- lines range. I would point out that this Court did not find that courts are bound by the Guidelines range, unless exceptional circumstances exist, in any of the cases referred to by Mrs. Smith in her written submission. 26 In M. (J.A.) v. M. (D.L.), 2008 NBCA 2, 326 N.B.R. (2d) 111 (N.B. C.A.), this Court held that judges “should” apply the Guidelines: Spousal support raises another issue. A judge must first determine entitlement, and then, if entitlement exists, should apply the federal Spousal Support Advisory Guidelines. Yemchuk v. Yemchuk (2005), 215 B.C.A.C. 193, [2005] B.C.J. No. 1748 (QL), 2005 BCCA 406, at paras. 63 and 64, illustrates the need to do a thorough analysis of Smith v. Smith Kathleen A. Quigg J.A. 297

entitlement before any consideration of the Federal Spousal Advisory Guidelines: It is also important to note that the Advisory Guidelines do not deal with entitlement to support, but are only relevant to issues of quantum and duration of support once entitlement has been resolved. Nor do they address situations in which there are prior agreements between the parties dealing with spousal support. It should also be stressed that the Advisory Guidelines are intended to reflect the current law, rather than to change it. They were drafted by the authors after extensive analyses of the authorities regarding spousal support across the country, particularly the Moge, [1992] 3 S.C.R. 813, and Bracklow, [1999] 1 S.C.R. 420, decisions and those following thereafter. As recently as July 2005, in the recent decision of W. v. W., 2005 BCSC 1010, [2005] B.C.J. No. 1481, Madam Justice Martinson reviewed numerous decisions in British Columbia following Moge and Bracklow and stated (at para. 25) that in her view, the Advisory Guidelines were in accordance with those authorities. While decisions can undoubtedly be found in which the result would not accord with the Advisory Guidelines, I am satisfied that their intention and general effect is to build upon the law as it exists, rather than to present an entirely new approach to the issue of spousal support. For that reason, like Madam Justice Martinson and many other judges, I have no hesitation in viewing the Advisory Guidelines as a useful tool to assist judges in assessing the quantum and duration of spousal support. They do not operate to displace the courts’ reliance on decided authorities (to the extent that relevant authorities are forthcoming) but to supplement them. In that regard, they do not constitute evidence, but are properly considered as part of counsels’ submissions. This Court endorsed this approach at para. 6 of Crosman v. Crosman (2006), 299 N.B.R. (2d) 334, [2006] N.B.J. No. 186 (QL), 2006 NBCA 46. Since the analysis regarding entitlement was not done in the case at bar, I would remit the matter of spousal support to the trial judge for consideration. [para. 45] 27 Mrs. Smith also contends that in C. (J.D.E.) v. C. (S.M.), 2006 NBCA 46, 299 N.B.R. (2d) 334 (N.B. C.A.), this Court held that a trial judge “must” utilize the Guidelines when determining quantum of spousal sup- 298 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

port. This assertion is erroneous. At paragraph 6 of C. (J.D.E.) v. C. (S.M.), Larlee J.A. quotes Yemchuk v. Yemchuk [2005 CarswellBC 1881 (B.C. C.A.)] to the effect that the Guidelines “[...] do not operate to displace the court’s reliance on decided authorities [...] but are properly considered as part of counsel’s submissions”. There is a great difference between demanding that a court order support as per the Guidelines and suggesting that the Guidelines may be properly considered by a court. In Redpath, the Court stated: “I do not read Yemchuk as indicating that the Guidelines must as a matter of law be used by a judge in determining support” (para. 38) (emphasis in original). 28 Mrs. Smith submits the Court in Redpath found that, if an award of spousal support is substantially lower or higher than the range, and if there are no exceptional circumstances to explain the discrepancy or spread, the standard of review should be reformulated. In fact, the Court in Redpath found no such thing. The Court in Redpath held “[...] it may be that if a particular award is substantially lower or higher than the range and there are no exceptional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate intervention” (para. 42). 29 Mrs. Smith’s written submission also relies on Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. No. 38 (Ont. C.A.), to bolster her argument that courts must order support per the Guidelines when no exceptional circumstances exist. However, the Court in Fisher noted: “[...] The parties, their lawyers, and the courts are not required to employ [the Guidelines]” (para. 95). The Court also noted the Guidelines “[...] will not help in atypical cases” (para. 96). This is not an argument for mandatory application of Guidelines ranges by courts. 30 Mrs. Smith also contends that the decision Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. No. 1158 (Ont. C.A.), suggests that “[...] not only must the Guidelines be respected, selection of the support amount within the ranges must be explained”. However, the Court in Cassidy did not impose any such obligation. The Court held the trial judge was required to consider various factors mandated by the Divorce Act, but had not. As the trial judge had attempted to use the Guidelines range in calculating the award, it is only logical that the Court of Appeal would do so when varying the award. This does not entail mandatory application of Guidelines ranges. 31 In the case before us, we need not consider whether the common law should be adapted to provide that a spousal support award which does Smith v. Smith Kathleen A. Quigg J.A. 299

not follow the Guidelines gives rise to an error of law. This appeal suc- ceeds based on an error of fact. However, it is worthwhile to briefly comment on the judicial role in adapting the common law. Justice Iacobucci, speaking for the Supreme Court in R. v. Salituro, [1991] 3 S.C.R. 654, [1991] S.C.J. No. 97 (S.C.C.), stated: [...] The courts are the custodians of the common law, and it is their duty to see that the common law reflects the emerging needs and values of our society. [para. 54] 32 However, the Court in Salituro also cautioned against courts being overly quick in reshaping the common law: [...] Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. [para. 37] [Emphasis added.] 33 While it is within the jurisdiction of this Court to make incremental changes to the common law, such action should be taken with great care. 34 Although the Guidelines are not law per se, following them can enhance the legitimacy of a spousal support award, as the Guidelines promote consistency and therefore aid in the avoidance of arbitrary decision- making. However, while the Guidelines had been considered in over 350 reported decisions nationwide by 2008 (see Rogerson, Carol & Thomp- son, Rollie, Spousal Support Advisory Guidelines: Report on Revisions, July 2008, Department of Justice Canada), they are still a relatively recent development. Constraining the discretion conferred upon judges by the Divorce Act with regard to spousal support awards is best left to Parliament. 35 The Guidelines are intended to promote consistency but are not meant to usurp the discretionary powers of trial judges. Indeed, it is too early to know whether an over-dependence on the Guidelines may present problems. The Guidelines have not been subjected to the rigorous debate 300 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

to which legislation is typically subjected, nor have they been in use by courts long enough to warrant their incorporation into the common law. 36 This is not to say that the Guidelines may not be included at some point in the legislation, or incorporated into the common law. Certainty of outcome is an important principle in law. The Guidelines can help promote these values. As Larlee J.A. wrote in C. (J.D.E.) v. C. (S.M.) concerning the Guidelines: [...] [T]heir use, through the available software, will help in the long run to bring consistency and predictability to spousal support awards. Not only will they foster settlement, they will also allow spouses to anticipate their support responsibilities at the time of separation. [para. 5] 37 While the Guidelines help to promote consistency in judgments, and therefore a greater measure of certainty in law, they do not constitute law. Therefore, while judges would be wise to follow the Guidelines, and usually do so, they should not be mandated to do so even when their reasons for decision do not bring into play an exception listed in ch. 12 of the Guidelines.

VII. Section 15.2 of the Divorce Act 38 Mrs. Smith says that the trial judge made an error of law in misapply- ing section 15.2 of the Divorce Act. It is my view that Mrs. Smith is incorrect in framing the trial judge’s findings as an error in law. The error is one of mixed law and fact. In Housen v. Nikolaisen [2002 Car- swellSask 178 (S.C.C.)], the Court states: Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error. [para. 36] 39 In regard to the case before us, the following statement from Housen is most apposite: However, where the error does not amount to an error of law, a higher standard is mandated. Where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to a more stringent standard of review: Southam, supra, at paras. 41 and 45. [para. 28] Smith v. Smith Kathleen A. Quigg J.A. 301

40 Section 15.2(4) of the Divorce Act states that courts must take the means of each spouse into consideration. In the case at bar, the judge considered the appropriate facts, but misapprehended them. The issue in the second ground of appeal involves the trial judge’s interpretation of the evidence and its application to the Divorce Act. The issue on appeal is therefore a matter of mixed fact and law, and the standard of review is that of palpable and overriding error. 41 A trial judge’s application of section 15.2 of the Divorce Act involves broad discretion. In order to avoid the appearance of arbitrary decision- making, reasons must be given when exercising discretion. However, as the Supreme Court noted in Hickey v. Hickey [1999 CarswellMan 254 (S.C.C.)]: When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges. They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. [para. 10] [Emphasis added.] 42 Section 15.2(6)(d) of the Divorce Act requires that spousal support orders promote the economic self-sufficiency of the parties. Section 15.2(6) of the Divorce Act states in part: 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 [...] (d) in so far as practicable, promote the economic self- sufficiency of each spouse within a reasonable period of time. [Emphasis added.] Objectifs de l’ordonnance alimentaire au profit d’un epoux´ 15.2(6) L’ordonnance ou l’ordonnance provisoire rendue pour les aliments d’un epoux´ au titre du pr´esent article vise: [...] 302 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

d) a` favoriser, dans la mesure du possible, l’indépendance economique´ de chacun d’eux dans un délai raisonnable. [Je souligne.] 43 In C. (J.D.E.) v. C. (S.M.), Larlee J.A. states: Self-sufficiency is but one of four factors that must be examined. However as Bastarache J.A. pointed out in Ross v. Ross (1995), 168 N.B.R. (2d) 147 (C.A.), at para. 12: “[s]elf-sufficiency is nonetheless a goal to be pursued by both spouses. Spousal support is essentially designed to alleviate the economic burden of the disadvantaged spouse during the period required to attain self-sufficiency, if at all possible.” [para.12] [Emphasis added.] 44 Promotion of economic self-sufficiency is one of the objectives of a spousal support order, as per s. 15.2(6)(d) of the Divorce Act. This objective of spousal support could not be met due to palpable and overriding error in the trial judge’s view of Mrs. Smith’s circumstances. 45 Section 15.2(4) of the Divorce Act provides in part: Factors 15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse [...] [Emphasis added.] Facteurs 15.2(4) En rendant une ordonnance ou une ordonnance provisoire au titre du présent article, le tribunal tient compte des ressources, des besoins et, d’une fa¸con générale, de la situation de chaque epoux´ [...] [Je souligne] 46 The trial judge misapprehended, in a palpable and overriding way, the evidence relating to Mr. Smith’s means. It follows that he did not properly consider those means as required by s. 15.2(4) of the Divorce Act.

VIII. Conclusion 47 The Guidelines can enhance the legitimacy of a spousal support award, as they promote consistency, and therefore aid in the avoidance of arbitrary decision-making. Certainty and predictability are hallmarks of the rule of law (see R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 (S.C.C.), at para. 69). However, trial judges should retain discretion to award spousal support either above or below the levels set in the Guide- Smith v. Smith Kathleen A. Quigg J.A. 303

lines. Spousal support awards demand the use of discretion on the part of the trial judge applied to the facts on a case by case basis. The exceptional circumstances listed in s. 12 of the Guidelines do not constitute an exhaustive list. 48 The spousal support award in this case was not founded upon a correct appreciation of the facts. While it is true that a lack of reasons for judgment suggests arbitrary decision-making, the trial judge did give reasons and relied upon the facts, as he found them, to come to his decision. It was therefore not arbitrary decision-making that caused the trial judge to order an inappropriate support award. It was an error of mixed fact and law in applying the Divorce Act to misapprehended facts that caused him to order an inappropriate support award. 49 To summarize, findings of fact by a trial judge are to be given deference by an appellate court. Such findings are not to be overturned, unless palpable and overriding error is clearly present. Such an error must be plainly discernable. The Guidelines are not law, and this Court should not be quick to limit a judge’s discretionary powers as provided for by the Divorce Act. However, in order to avoid the appearance of arbitrary decision-making, a trial judge should give reasons for spousal support awards above or below the Guideline amounts. Failing to give reasons or giving reasons based on erroneous fact-finding subjects trial decisions to appellate review. In this case, the trial judge’s decision was unsupported by the evidence, and the result of palpable and overriding errors of fact. The context provided by the trial judge’s decision, along with the trial transcripts, allows us to determine a more appropriate result without having to order a new trial. 50 In order to promote consistency in spousal support awards generally and provide fairness in the case at bar, this Court should look to the Guidelines when ordering a new spousal support award, just as the trial judge did, even though he erroneously settled upon an award outside the Guidelines range. In this case, counsel for Mrs. Smith provided the Guidelines range based upon Mr. Smith’s income of $62,500, Mrs. Smith having no income and a marriage of 31 years. Those Guideline amounts are as follows: a. Low: $1,965 per month b. Middle: $2,293 per month c. High: $2,511 per month 304 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Counsel for Mr. Smith argued the Guidelines are “advisory only”. As such, it was not necessary to fall “squarely within one of the exceptions in order to set the spousal support range in a range that differs from these guidelines”. 51 The trial judge decided Mr. Smith could not pay spousal support according to the Guidelines and ordered a payment of $1,000 per month. There is an obligation upon the judge to undertake an analysis to explain why he rejected the amounts suggested in the Guidelines. 52 I have undertaken a calculation utilizing the “Without Children Sup- port Formula” of the Guidelines. Using Mr. Smith’s annual income of $62,500, Mrs. Smith’s annual income at the time of trial, $15,600 (30 hours/week × $10/hour × 52 weeks), the length of co-habitation (31 years) and Mrs. Smith’s age, 52, the resulting Guidelines ranges are: a. Low: $1,465 per month b. Middle: $1,709.50 per month c. High: $1,954 per month Considering that Mrs. Smith did have income at the time of trial (contrary to what was utilized in her calculation) I would award the amount of $1,709.50 per month (middle range in the Guidelines). 53 The marriage of the parties lasted well over 20 years. Therefore, indefinite (without specified duration) support is appropriate, as per s. 7.1 of the Guidelines. The Guidelines’ recommendations concerning indefinite support also reflect New Brunswick jurisprudence in long-term marriages. (See Boudreau v. Brun, 2005 NBCA 106, 293 N.B.R. (2d) 126 (N.B. C.A.), Adams v. Adams, 2003 NBCA 10, 256 N.B.R. (2d) 136 (N.B. C.A.), and exceptions Mills v. Mills, 2010 NBCA 20, 356 N.B.R. (2d) 351 (N.B. C.A.), C. (J.D.E.) v. C. (S.M.)).

IX. Disposition 54 For these reasons, I would allow the appeal, set aside the order made in the court below and set the amount of spousal support payable in the amount of $1,709.50 per month. I would order costs in the amount of $2,000.

M.E.L. Larlee J.A.:

I concur Smith v. Smith Kathleen A. Quigg, J.C.A. 305

Bradely V. Green J.A.:

I concur

Kathleen A. Quigg, J.C.A.: I. Introduction 1 L’appel soulève la question de savoir si un juge de procès commet une erreur de droit en ne tenant pas compte de la fourchette des montants des pensions alimentaires qui s’appliquerait si les Lignes directrices facultatives en matière de pensions alimentaires pour epoux´ etaient´ suivies, sans fournir une explication quant a` savoir pourquoi elles n’ont pas et´´ e suivies. Mme Smith interjette appel de la décision d’un juge de la Cour du Banc de la Reine, Division de la famille, a` la suite de l’instruction des questions relatives au divorce et a` la pension alimentaire qui lui revient en tant qu’épouse en vertu de la Loi sur le divorce, L.R.C. 1985, ch. 3 (2e suppl.), ainsi qu’à la répartition des biens matrimoniaux effectuée en vertu de la Loi sur les biens matrimoniaux, L.N.-B. 1980, ch. M-1.1. Compte tenu de l’interprétation erronée de la preuve par le juge, je suis d’avis d’accueillir l’appel et d’accorder le montant de 1 709,50 $ par mois en pension alimentaire au profit de l’épouse.

II. Contexte factuel et procédural 2 Les parties ont commencé a` habiter ensemble en 1976 en Alberta, où M. Smith avait et´´ e affecté par la GRC. Elles se sont mariées au Nouveau- Brunswick le 14 octobre 1978. L’intimé a accepté d’être muté en Nou- velle-Ecosse´ en 1979. Au cours de cette période, les parties sont devenues les parents de deux enfants. En 1980, après quatre années de service, M. Smith a quitté la GRC. Les parties se sont etablies´ a` New Glasgow, en Nouvelle-Ecosse,´ en 1980, parce que M. Smith avait ac- cepté un emploi d’expert en sinistres. Mme Smith a obtenu son permis d’agente immobilière. En 1984, M. Smith a accepté un emploi dans un centre de distribution de meubles vendus en gros a` New Glasgow. A` l’époque, Mme Smith a ouvert une franchise Benjamin Moore et une entreprise de décoration intérieure avec une autre personne. 3 En 1989, les parties sont retournées au Nouveau-Brunswick et y ont acheté et exploité une franchise Greco Pizza. Les parties ont créé la so- ciété G. S. Pizza Ltd. pour acquérir les el´´ ements d’actif et la franchise. L’immeuble et le bien-fonds où le restaurant etait´ situé ont et´´ e acquis par transfert de titre aux parties en tenance conjointe. Elles ont ensuite loué 306 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

la propriété a` G. S. Pizza Ltd. Mme Smith a travaillé au restaurant pendant une période d’au moins un an et d’au plus deux ans. Elle a obtenu son permis d’agente immobilière du Nouveau-Brunswick entre 1989 et 1990 et elle a commencé a` travailler a` plein temps comme agente im- mobilière. Mme Smith a travaillé dans ce domaine jusqu’en 2005, gagnant en moyenne 15 000 $ par année. Elle a entrepris d’autres etudes´ en vue d’obtenir son permis d’évaluatrice immobilière au Nouveau- Brunswick, mais elle n’a pas terminé le programme. 4 En 1995, les parties ont agrandi leur entreprise de pizzeria en ouvrant un deuxième etablissement.´ Une société a` numéro, détenue a` parts egales´ par M. Smith et une autre personne en affaires, a acheté un immeuble et G. S. Pizza Ltd. a loué de l’espace dans cet immeuble. Cette propriété a et´´ e vendue en 2005 et M. Smith a retiré de la vente un bénéfice de 13 000 $ qu’il a déposé dans un compte qualifié par le juge du procès de [TRADUCTION] « compte consacré aux dépenses de subsistance » (par. 15 et 16). G. S. Pizza Ltd. a continué de faire des affaires a` cet endroit ainsi qu’au premier etablissement.´ 5 De 1999 a` 2001, M. Smith a géré une entreprise de produits du bois. En août 2002, il a commencé a` travailler comme instructeur au Collège communautaire du Nouveau-Brunswick. Il occupe toujours cet emploi et, au moment du procès, il touchait un salaire annuel de 62 500 $. En avril 2005, Mme Smith est devenue directrice de G. S. Pizza Ltd. et elle a oc- cupé ce poste a` temps plein jusqu’à ce qu’elle déménage en Nouvelle- Ecosse´ en mai 2007. Même si elle avait cessé d’être directrice de G. S. Pizza Ltd., elle est demeurée inscrite sur la liste de paye jusqu’en décem- bre 2007. Mme Smith a touché un salaire annuel de 30 000 $ entre avril 2005 et décembre 2007. 6 Les parties se sont séparées en janvier 2007, après 28 ans de mariage. Mme Smith est actuellement ag´ˆ ee de 52 ans. M. Smith a 54 ans. Leurs deux enfants sont financièrement indépendants. Après la séparation, Mme Smith est retournée en Nouvelle-Ecosse.´ Elle a obtenu son permis d’agente immobilière de la Nouvelle-Ecosse´ en 2008. Les commissions brutes qu’elle a touchées en 2008 se chiffraient a` 7 372,50 $ et, en mai 2009, le bilan de ses activités professionnelles etait´ déficitaire. Elle a donc cessé de vendre des immeubles. Mme Smith n’a touché aucun revenu entre mai et décembre 2009. Au moment du procès, elle travaillait comme aide-comptable pour 10 $ l’heure, a` raison de 30 heures par semaine, mais cet emploi etait´ incertain puisque l’entreprise pour laquelle elle travaillait etait´ a` vendre. Smith v. Smith Kathleen A. Quigg, J.C.A. 307

7 Mme Smith a déposé une requête en divorce le 29 juin 2009. M. Smith a déposé sa réponse le 19 février 2010. Une ordonnance alimentaire provisoire datée du 7 décembre 2009 prévoyait le versement de 2 000 $ par mois a` Mme Smith, avec effet rétroactif au 1er septembre 2009. Le procès a eu lieu les 22 et 23 février 2010.

III. La décision de première instance 8 En ce qui a trait a` la pension alimentaire, il a et´´ e ordonné a` M. Smith de verser 1 000 $ par mois a` Mme Smith, avec effet rétroactif au 1er mars 2010. Les motifs exposés par le juge du procès sont les suivants: [TRADUCTION] Dans les circonstances, selon mon evaluation´ de la situation, la demande de versement d’une pension alimentaire de 2 300 $ par mois au profit de l’épouse n’est pas justifiée et M. Smith n’a pas les revenus nécessaires pour payer pareil montant, compte tenu de sa situation financière actuelle, ni la capacité de payer. Les Lignes directrices [...] en matière de pensions alimentaires pour epoux´ sont facultatives, il existe des exceptions. Beaucoup d’autres circonstances pertinentes qui existent en l’espèce doivent etreˆ prises en considération. La présente affaire est assez différente et, pour cette raison, elle doit etreˆ envisagée différemment. Manifestement, les parties avaient un bon style de vie, mais ce style de vie dépassait leurs moyens. M. Smith a beaucoup de dettes, son salaire fait l’objet d’une saisie-arrêt et il lui reste très peu de la répar- tition des biens matrimoniaux. Il risque de faire l’objet d’autres récla- mations en raison de l’insuccès des restaurants; il doit envisager la faillite personnelle. Compte tenu de sa situation financière malheureuse, qui ressort clairement de la preuve, il n’est pas en mesure de verser une pension alimentaire de 2 300 $ par mois. Mme Smith, autant que je sache, est en bonne santé et elle présente beaucoup d’aptitudes professionnelles. Elle a une 12e année et elle a travaillé pendant toute la durée du mariage. Elle a de l’expérience comme agente immobilière et elle a obtenu du succès dans ce secteur d’activité. Elle a géré les restaurants. Elle a suivi et terminé tous les cours nécessaires en vue de son inscription comme evaluatrice´ im- mobilière. Si elle effectue le [TRADUCTION] « rapport d’évaluation immobilière de démonstration », qui n’est pas, d’après ce que je comprends, trop difficile, et obtient le permis d’évaluatrice im- mobilière, elle aura beaucoup de possibilités d’emploi dans ce domaine. Elle est titulaire d’un permis d’agente immobilière dans la province de la Nouvelle-Ecosse.´ 308 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Je suis bien conscient du fait que, après avoir déménagé là-bas, elle avait besoin de temps pour se faire une clientèle qui lui permettrait de tirer un revenu raisonnable de la vente d’immeubles. Elle avait une clientèle dans cette région-ci avant de s’établir en Nouvelle-Ecosse.´ Elle ne devrait pas avoir trop de difficultés a` obtenir le permis d’évaluatrice. Elle a tiré un montant d’argent assez important de la vente de la résidence matrimoniale et du remboursement d’autres montants, décrits précédemment, qui lui etaient´ dus. Cela devrait la mettre a` l’abri de difficultés economiques,´ par suite de la rupture du mariage, et l’aidera egalement´ a` lancer une entreprise, comme elle l’a envisagé, qui devrait lui permettre de subvenir a` ses propres besoins. Elle a de l’expérience en affaires, ce qui devrait l’aider dans cette initiative. Je ne crois pas que sa carrière et ses possibilités d’emploi aient trop souffert du fait qu’elle n’a pas fait d’études postsecondaires, qu’elle a eu la responsabilité du soin des enfants ou qu’elle a joué un rôle dans l’avancement de la carrière de son mari. [Par. 106 a` 110]

IV. Moyens d’appel 9 Mme Smith soulève les deux moyens d’appel suivants: 1. Le juge du procès a commis une erreur de droit en n’appliquant pas les Lignes directrices facultatives en matière de pensions alimentaires pour epoux´ pour déterminer le montant de pension ap- proprié qui [lui] etait´ dû, une fois le droit a` la pension reconnu par [M. Smith]. 2. Subsidiairement, le juge du procès a commis une erreur de droit en ne déterminant pas le montant de la pension alimentaire en tenant compte des facteurs et objectifs enonc´´ es a` l’article 15.2 de la Loi sur le divorce.

V. Norme de contrôle applicable 10 S’agissant d’affaires relevant du droit de la famille, il faut faire preuve d’une grande retenue a` l’égard des décisions des juges de pre- mière instance. Dans MacDonald v. MacDonald, 2011 NBCA 25, [2011] N.B.J. No. 81 (N.B. C.A.), la juge d’appel Larlee affirme ce qui suit: La norme de contrôle qui s’applique généralement aux affaires familiales exige une grande retenue face a` la décision du juge. Un tribunal d’appel a le pouvoir d’annuler ou de modifier une décision ou une ordonnance lorsqu’elle est le fruit d’une erreur de droit, d’une erreur de principe, d’une erreur significative dans l’interprétation de la preuve, ou si elle est manifestement erronée (voir Hickey c. Smith v. Smith Kathleen A. Quigg, J.C.A. 309

Hickey, [1999] 2 R.C.S. 518, [1999] A.C.S. nº 9 (QL), par. 11, Van de Perre c. Edwards, 2001 CSC 60, [2001] 2 R.C.S. 1014, Savoie c. Levesque, 2009 NBCA 47, [2009] A.N.-B. nº 282 (QL), Mme P.H. c. M. P.H., 2008 NBCA 17, [2008] A.N.-B. nº 52 (QL), Milton c. Milton, 2008 NBCA 87, 338 R.N.-B. (2e) 300, par. 14., J.E.J. c. S.L.M., 2007 NBCA 33, [2007] A.N.-B. nº 249 (QL), par. 35, et S.H. c. V.B., 2007 NBCA 69, 321 R.N.-B. (2e) 314, par. 2). [Par. 7] 11 La norme de contrôle applicable aux affaires de pension alimentaire au profit de l’époux a et´´ e abordée dans Milton v. Milton, 2008 NBCA 87, 338 N.B.R. (2d) 300 (N.B. C.A.), où la juge Larlee a mentionné ce qui suit: [...] De plus, nous ne modifierons une ordonnance alimentaire qu’en cas d’erreur de principe ou d’erreur significative dans l’interprétation de la preuve, ou encore si la décision est manifestement erronée (voir Hickey c. Hickey, [1999] 2 R.C.S. 518, [1999] A.C.S. nº 9 (QL), au par. 11 et J.P. c. R.R. (2004), 278 R.N.-B. (2e) 351, [2004] A.N.-B. nº 467 (QL), 2004 NBCA 98, par. 27). [Par. 14] 12 Dans l’arrêt Lang v. Lang, [2007] N.B.J. No. 348 (N.B. C.A.), le juge d’appel Richard a examiné la norme de contrôle qui s’applique aux conclusions de fait: [TRADUCTION] Il est tout aussi clair, en droit, que la Cour d’appel ne peut juger l’affaire de nouveau. La Cour d’appel ne peut infirmer une conclusion de fait du juge du procès que si celle-ci résulte d’une erreur manifeste et dominante et ne peut modifier une ordonnance discré- tionnaire que si celle-ci est fondée sur une erreur de droit, une erreur dans l’application des principes directeurs ou une erreur manifeste et dominante dans l’appréciation de la preuve (voir les arrêts Housen c. Nikolaisen, [2002] 2 R.C.S. 235, [2002] A.C.S. nº 31 (QL), 2002 CSC 33 et H.L. c. Canada (Procureur général), [2005] 1 R.C.S. 401, [2005] A.C.S. nº 24 (QL), 2005 CSC 25, pour ce qui concerne les conclusions de fait, et l’arrêt Colombie-Britannique (Ministre des Forêts) c. Bande indienne Okanagan, [2003] 3 R.C.S. 371, [2003] A.C.S. nº 76 (QL), 2003 CSC 71, au par. 43, pour ce qui concerne les ordonnances discrétionnaires). [Par. 3] Par conséquent, au Nouveau-Brunswick, même si cette norme de con- trôle fondée sur la retenue judiciaire a et´´ e suivie dans les affaires de pension alimentaire au profit de l’époux, les cours d’appel peuvent intervenir si les principales conclusions du juge du procès reposent sur une erreur de fait manifeste et dominante. 310 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

VI. Analyse 13 La Loi sur le divorce prévoit un pouvoir discrétionnaire judiciaire pour l’établissement des ordonnances alimentaires au profit d’un epoux:´ Spousal support order 15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. Ordonnance alimentaire au profit d’un epoux´ 15.2 (1) Sur demande des epoux´ ou de l’un d’eux, le tribunal compé- tent peut rendre une ordonnance enjoignant a` un epoux´ de garantir ou de verser, ou de garantir et de verser, la prestation, sous forme de capital, de pension ou des deux, qu’il estime raisonnable pour les aliments de l’autre epoux.´ 14 Dans son premier moyen d’appel, Mme Smith soutient que le juge du procès a commis une erreur de droit en n’appliquant pas les Lignes directrices facultatives en matière de pensions alimentaires pour epoux´ (les Lignes directrices) pour déterminer le montant des aliments a` verser par M. Smith. Ce moyen d’appel laisse entendre que l’exercice du pouvoir discrétionnaire par un juge de première instance pour fixer les montants de pension alimentaire, conformément a` la Loi sur le divorce, est limité par les Lignes directrices. Ainsi, le fait de ne pas suivre les Lignes directrices constituerait une erreur de droit. Il peut egalement´ etreˆ avancé qu’accorder a` l’époux un montant de pension inférieur a` la fourchette des Lignes directrices constitue une erreur. 15 Mme Smith soutient que les aliments accordés etaient´ clairement er- ronés puisque le montant de l’ordonnance etait´ bien inférieur a` la fourchette prévue par les Lignes directrices et qu’il n’existe aucune circonstance exceptionnelle pour expliquer pareil ecart.´ A` mon avis, il est clair que les motifs du juge de première instance révèlent une erreur importante dans l’appréciation de la preuve. 16 Les hypothèses factuelles posées par le juge concernant Mme Smith etaient´ notamment les suivantes: (1) Mme Smith présente beaucoup d’aptitudes professionnelles. (2) Elle a obtenu du succès comme agente immobilière. Smith v. Smith Kathleen A. Quigg, J.C.A. 311

(3) La partie [TRADUCTION] « rapport d’évaluation immobilière de démonstration » du processus d’obtention du permis d’évaluateur immobilier n’est pas [TRADUCTION] « trop difficile ». (4) Il y a beaucoup de possibilités d’emploi dans le domaine de l’évaluation immobilière. (5) Elle a les moyens et l’expérience nécessaires pour lancer sa propre entreprise [TRADUCTION] « qui devrait lui permettre de subvenir a` ses propres besoins ». (6) Sa carrière et ses possibilités d’emploi n’ont pas trop souffert du fait qu’elle n’a pas fait d’études postsecondaires, qu’elle a eu la responsabilité du soin des enfants ou qu’elle a joué un rôle dans l’avancement de la carrière de son mari. 17 Les difficultés que posent ces conclusions de fait sont les suivantes: (1) Même si Mme Smith a occupé des emplois de divers types, il n’y a rien au dossier qui décrit exactement les compétences professionnelles qu’elle possède. (2) Le juge du procès a souligné que Mme Smith n’avait pas connu [TRADUCTION] « trop de succès » comme agente immobilière et le revenu annuel qu’elle a touché durant sa carrière d’agente immobilière le confirme. (3) Etant´ donné qu’aucune preuve n’a et´´ e présentée au procès pour avancer que la rédaction du [TRADUCTION] « rapport d’évaluation immobilière de démonstration », nécessaire pour l’obtention du permis d’évaluateur immobilier, n’était pas [TRA- DUCTION] « trop difficile », le juge ne pouvait admettre d’office cette proposition comme un fait. (4) Etant´ donné qu’aucune preuve n’a et´´ e présentée au procès pour avancer que les perspectives d’emploi dans le domaine de l’évaluation immobilière etaient´ nombreuses en Nouvelle-Ecosse,´ le juge ne pouvait admettre d’office cette proposition comme un fait. (5) L’insuccès des efforts poursuivis par Mme Smith dans l’exploitation d’entreprises par le passé n’incite certainement pas a` croire qu’elle a les moyens et l’expérience nécessaires pour lancer et maintenir sa propre entreprise et qu’elle pourra ainsi subvenir a` ses propres besoins. (6) On ne sait pas trop ce que le juge du procès voulait dire lorsqu’il a conclu que [TRADUCTION] « [s]a carrière et ses possibilités 312 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

d’emploi [n’ont pas] trop souffert [...] ». Au cours de ce long mariage, Mme Smith a vu a` l’éducation des deux enfants et déménagé de nombreuses fois pour permettre a` M. Smith d’apporter divers changements a` sa carrière. A` mon avis, ces conclusions de fait démontrent que la carrière et les possibilités d’emploi de Mme Smith en ont souffert. 18 Je suis d’avis que la situation, les ressources et les besoins de Mme Smith a` la date du procès ne concordaient pas avec les conclusions du juge. Par ailleurs, le droit de Mme Smith a` une pension alimentaire a et´´ e reconnu par M. Smith dans la présente affaire. Par conséquent, la seule question qu’il reste a` trancher est le montant. La détermination du montant approprié dépend en grande partie de la capacité de payer de M. Smith. Ce sont donc les conclusions de fait concernant la situation financière de M. Smith qui sont les plus importantes dans l’examen de la question de savoir si une erreur importante constituant une erreur de fait justifiant l’infirmation a et´´ e commise dans l’appréciation de la preuve. 19 Il ressort clairement des paragraphes 106 a` 110 de la décision du juge du procès qu’il a accordé un montant inférieur a` ce qui est prévu par les Lignes directrices pour les raisons suivantes: (1) M. Smith a beaucoup de dettes. (2) Le salaire de M. Smith fait l’objet d’une saisie-arrêt. (3) M. Smith risque de faire l’objet d’autres réclamations qui pour- raient augmenter son endettement. (4) M. Smith devra peut-être faire faillite en raison de ses dettes. 20 Les difficultés que posent, a` mon sens, ces conclusions de fait sont les suivantes: (1) Les dettes de l’intimé enum´´ erées au par. 71 du jugement de pre- mière instance incluaient un montant qui n’était pas vraiment une dette de l’intimé. D’autres montants se rapportaient a` une dette contractée après la séparation des parties. Un autre montant n’était pas etay´´ e par une preuve documentaire. (2) Le salaire de l’intimé ne ferait plus l’objet d’une saisie-arrêt, puisque le juge du procès a souligné que les parties ont convenu que le montant de TVH dû, qui se chiffrait a` 12 831,28 $, etait´ une dette commune et devrait etreˆ prélevé sur les fonds détenus en fiducie par l’avocate de l’appelante (jugement de première instance, par. 79). Smith v. Smith Kathleen A. Quigg, J.C.A. 313

(3) La conclusion suivant laquelle l’intimé [TRADUCTION] « risque » de faire l’objet d’autres réclamations qui augmenter- aient son endettement est purement hypothétique (jugement de première instance, au par. 72). Si l’endettement augmente réelle- ment, cela pourrait indiquer un changement de situation important et il serait loisible a` l’intimé de demander une modification de la pension alimentaire au profit de l’épouse. (4) Le risque de [TRADUCTION] « peut-être » faire faillite est egale-´ ment hypothétique et dépend apparemment des dettes qui pour- raient peut-être s’ajouter dans le futur. 21 Le juge du procès a fait une erreur manifeste et dominante en con- sidérant les dettes futures possibles de M. Smith comme des dettes réel- les actuelles. Il s’agissait de simples suppositions de sa part. Sa décision est donc susceptible de révision et le montant de la pension alimentaire a` verser a` Mme Smith peut etreˆ rajusté par notre Cour. 22 Dans la présente affaire, il a et´´ e satisfait a` la norme de contrôle applicable dans le cas d’une erreur de fait. Toutefois, Mme Smith a soulevé une question concernant la norme de contrôle qui s’applique aux affaires portant sur l’attribution de pensions alimentaires au profit de l’époux. La Cour doit se pencher sur cette question. Mme Smith invoque la décision de la Cour d’appel de la Colombie-Britannique rendue dans l’affaire Redpath v. Redpath, 2006 BCCA 338, [2006] B.C.J. No. 1550 (B.C. C.A.), pour affirmer que la norme de contrôle devrait etreˆ reformulée si le montant de pension accordé en première instance diffère considérable- ment des montants de la fourchette des Lignes directrices et si aucune circonstance exceptionnelle ne justifie la dérogation. Dans Redpath, la Cour déclare ce qui suit: [TRADUCTION] Cependant, les affaires comme Hickey ont et´´ e tranchées avant l’avènement des Lignes directrices facultatives. Maintenant qu’elles existent et proposent en fait des fourchettes a` l’intérieur desquelles devraient se situer les montants attribués dans la plupart des cas, lorsqu’une décision accorde un montant sensiblement inférieur ou supérieur a` cette fourchette alors qu’il n’y a aucune circonstance exceptionnelle qui puisse expliquer cet ecart,´ il se pourrait que la norme de contrôle doive etreˆ reformulée de manière a` permettre l’intervention des cours d’appel. [...] [Par. 42] 23 Même si la Cour d’appel de la Colombie-Britannique dans Redpath n’a pas précisément affirmé que pareille dérogation injustifiée aux 314 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Lignes directrices constituerait une erreur de droit, Mme Smith soutient que cela devrait etreˆ le cas. Selon elle, la norme de la décision correcte devrait etreˆ appliquée. Dans Redpath, la Cour d’appel a conclu que le juge du procès avait examiné les facteurs appropriés et n’avait pas mal interprété la preuve, mais le montant de pension alimentaire accordé a` l’épouse etait´ trop bas par rapport a` la fourchette des Lignes directrices (voir par. 42). 24 Mme Smith soutient que les circonstances relatées par le juge du procès n’entrent pas dans la liste des exceptions acceptées enonc´´ ees dans les Lignes directrices et la jurisprudence. Cet argument est inexact en ce sens qu’il laisse entendre qu’il existe une liste exhaustive d’exceptions légitimes, sur laquelle on peut s’appuyer pour calculer les montants de la fourchette conformément aux Lignes directrices. Or, les Lignes directrices ne donnent aucune liste exhaustive. Les auteurs des Lignes directrices ont d’ailleurs affirmé: « Nous admettons d’emblée que toute liste d’exceptions détaillée, quelle qu’elle soit, ne pourra jamais etreˆ exhaustive » (Carol Rogerson et Rollie Thompson, Lignes directrices facultatives en matière de pensions alimentaires pour epoux´ , ministère de la Justice du Canada, juillet 2008, chapitre 12). Plus important encore, il n’existe aucune liste de ce genre en droit. 25 Dans ses observations ecrites,´ Mme Smith s’appuie sur un certain nombre de décisions rendues en appel, par notre Cour et les cours d’appel d’autres provinces, pour soutenir que, lorsque le droit d’un epoux´ a` une pension alimentaire est etabli,´ les tribunaux doivent déterminer s’il existe des circonstances exceptionnelles qui justifieraient qu’un montant autre que ceux de la fourchette des Lignes directrices soit accordé et, s’il n’existe aucune circonstance exceptionnelle, ils doivent prononcer une ordonnance alimentaire en conformité avec les Lignes directrices. Je sou- lignerais que, dans aucune des décisions de notre Cour invoquées par Mme Smith dans ses observations ecrites,´ il n’a et´´ e conclu que les tribunaux devaient s’en tenir a` la fourchette des Lignes directrices, sauf circonstances exceptionnelles. 26 Dans M. (J.A.) v. M. (D.L.), 2008 NBCA 2, 326 N.B.R. (2d) 111 (N.B. C.A.), notre Cour a affirmé que le juge « devrait » appliquer les Lignes directrices: Les aliments au profit de l’épouse soulèvent une autre question. Le juge doit d’abord déterminer si le droit a` des aliments existe et ensuite, dans l’affirmative, il devrait appliquer les Lignes directrices facultatives en matière de pensions alimentaires pour epoux´ publiées Smith v. Smith Kathleen A. Quigg, J.C.A. 315

par le gouvernement fédéral. On trouve, aux par. 63 et 64 de l’arrêt Yemchuk c. Yemchuk (2005), 215 B.C.A.C. 193, [2005] B.C.J. No. 1748 (QL), 2005 BCCA 406, une illustration de la nécessité d’effectuer une analyse approfondie du droit a` des aliments avant toute prise en compte des Lignes directrices facultatives en matière de pensions alimentaires pour epoux´ : [TRADUCTION] Il est egalement´ important de noter que les Lignes directrices facultatives ne traitent pas du droit a` une pension, mais uniquement du montant et de la durée de la pension alimentaire une fois que ce droit a et´´ e etabli.´ Elles ne visent pas non plus les situations dans lesquelles il existe déjà des ententes portant sur des pensions alimentaires pour epoux.´ Il faut par ailleurs souligner que les Lignes directrices facultatives se veulent un reflet du droit actuel et n’ont pas vocation a` le modifier. Leurs auteurs les ont rédigées après avoir analysé de fa¸con approfondie la jurisprudence de tout le pays en matière de fixation des pensions alimentaires pour epoux,´ notamment les arrêts Moge, [1992] 3 R.C.S. 813, et Bracklow, [1999] 1 R.C.S. 420, et les dé- cisions rendues par la suite. Tout récemment, en juillet 2005, dans l’affaire W. c. W., 2005 BCSC 1010, [2005] B.C.J. No. 1481, la juge Martinson a passé en revue les nombreuses décisions rendues en Colombie-Britannique depuis les arrêts Moge et Bracklow, et elle a déclaré (au paragraphe 25) qu’à son avis, les Lignes directrices facultatives etaient´ conformes a` cette jurisprudence. Cer- tes, il est toujours possible de trouver des décisions dans lesquelles le résultat ne concorde pas avec les Lignes directrices facultatives, mais j’ai la conviction que l’objet et l’effet général de ces lignes directrices est de prendre le droit existant comme point de départ, et non de présenter un cadre entièrement nouveau en matière de pensions alimentaires au profit du conjoint. C’est pourquoi, a` l’instar de la juge Martinson et de nombreux autres juges, je n’hésite aucunement a` considérer ces Lignes directrices facultatives comme un outil utile susceptible d’aider les juges a` fixer le montant et la durée des pensions alimentaires pour epoux.´ Elles ont pour objet non pas de se substituer a` la jurisprudence que les tribunaux sont en droit d’invoquer (dans la mesure où il existe une jurisprudence pertinente), mais de la compléter. A` cet egard,´ elles 316 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

ne constituent pas une preuve, mais font partie de l’argumentation des avocats et peuvent etreˆ prises en con- sidération a` ce titre. Notre Cour a souscrit a` ce point de vue au par. 6 de l’arrêt Crosman c. Crosman (2006), 299 R.N.-B. (2e) 334, [2006] A.N.-B. nº 186 (QL), 2006 NBCA 46. Puisque l’analyse du droit a` une pension n’a pas et´´ e effectuée en l’espèce, je suis d’avis de renvoyer la question des aliments au profit de l’épouse a` la juge du procès afin qu’elle l’examine. [Par. 45] 27 Mme Smith prétend egalement´ que, dans C. (J.D.E.) v. C. (S.M.), 2006 NBCA 46, 299 N.B.R. (2d) 334 (N.B. C.A.), notre Cour a soutenu qu’un juge de procès [TRADUCTION] « doit » utiliser les Lignes directrices pour déterminer le montant de la pension alimentaire au profit de l’époux. Cette affirmation est erronée. Au par. 6 de la décision C. (J.D.E.) v. C. (S.M.), la juge Larlee cite Yemchuk v. Yemchuk [2005 Car- swellBC 1881 (B.C. C.A.)] pour expliquer que les Lignes directrices [TRADUCTION] « [...] ont pour objet non pas de se substituer a` la jurisprudence que les tribunaux sont en droit d’invoquer [...] mais font partie de l’argumentation des avocats et peuvent etreˆ prises en considération a` ce titre ». Il existe une grande différence entre exiger qu’un tribunal pro- nonce une ordonnance alimentaire en conformité avec les Lignes directrices et proposer que le tribunal prenne en considération les Lignes directrices a` juste titre. Dans Redpath, le juge qui s’exprimait au nom du tribunal a affirmé: [TRADUCTION] « Selon mon interprétation de Yemchuk, le juge n’a pas l’obligation en droit d’utiliser les Lignes directrices lorsqu’il détermine la pension alimentaire. » (par. 38) (souligne- ment dans l’original). 28 Mme Smith soutient que le tribunal dans Redpath a conclu que, si le montant accordé au titre des aliments est beaucoup plus bas ou elev´´ e que les montants de la fourchette et s’il n’existe aucune circonstance exceptionnelle pour expliquer cet ecart,´ la norme de contrôle doit etreˆ reformulée. En fait, le tribunal dans Redpath n’a pas tiré pareille conclusion. Il a affirmé que [TRADUCTION] « [...] lorsqu’une décision accorde un montant sensiblement inférieur ou supérieur a` cette fourchette alors qu’il n’y a aucune circonstance exceptionnelle qui puisse expliquer cet ecart,´ il se pourrait que la norme de contrôle doive etreˆ reformulée de manière a` permettre l’intervention des cours d’appel » (par. 42). 29 Dans ses observations ecrites,´ Mme Smith invoque egalement´ la décision Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. No. 38 (Ont. C.A.), pour renforcer l’argument selon lequel les tribunaux doivent pro- Smith v. Smith Kathleen A. Quigg, J.C.A. 317

noncer une ordonnance alimentaire en conformité avec les Lignes directrices lorsqu’il n’existe aucune circonstance exceptionnelle. Toutefois, la Cour d’appel de l’Ontario dans Fisher a souligné ce qui suit: [TRADUC- TION] « [...] Les parties, leurs avocats et les tribunaux ne sont pas tenus d’utiliser [les Lignes directrices] » (par. 95). Elle a egalement´ souligné que les Lignes directrices [TRADUCTION] « [...] ne seront d’aucune utilité dans les cas atypiques » (par. 96). Ces affirmations ne plaident pas en faveur de l’application obligatoire par les tribunaux des fourchettes prévues par les Lignes directrices. 30 Mme Smith soutient egalement´ que la décision Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. No. 1158 (Ont. C.A.), laisse entendre que [TRADUCTION] « [...] non seulement les Lignes directrices doivent etreˆ respectées, mais le choix du montant des aliments dans la fourchette doit etreˆ justifié ». Cependant, le tribunal dans Cassidy n’a pas imposé pareille obligation. Il a affirmé que le juge du procès etait´ tenu d’examiner les divers facteurs prescrits par la Loi sur le divorce, mais qu’il ne l’avait pas fait. Comme le juge du procès avait tenté d’utiliser la fourchette des Lignes directrices dans le calcul du montant accordé, il est seulement logique que la Cour d’appel de l’Ontario l’utilise pour modifier le montant. Cela ne veut pas dire que l’application des fourchettes des Lignes directrices est obligatoire. 31 Dans la présente affaire, il ne nous est pas nécessaire d’examiner la question de savoir si la common law devrait etreˆ adaptée pour prescrire qu’une ordonnance alimentaire au profit de l’époux qui ne suit pas les Lignes directrices donne lieu a` une erreur de droit. L’appel a et´´ e accueilli en raison d’une erreur de fait. Par ailleurs, il vaut la peine de formuler quelques observations au sujet du rôle des tribunaux dans l’adaptation de la common law. Le juge Iacobucci, s’exprimant au nom de la Cour su- prême dans R. v. Salituro, [1991] 3 S.C.R. 654, [1991] S.C.J. No. 97 (S.C.C.), a déclaré ce qui suit: [...] Les tribunaux sont les gardiens de la common law et il leur in- combe de veiller a` ce qu’elle reflète l’évolution des besoins et des valeurs de notre société. [Par. 54] 32 Par ailleurs, la Cour suprême dans Salituro a egalement´ mis en garde les tribunaux contre un trop grand empressement a` réformer la common law: [...] Les juges peuvent et doivent adapter la common law aux changements qui se produisent dans le tissu social, moral et economique´ du pays. Ils ne doivent pas s’empresser de perpétuer des règles dont le 318 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

fondement social a depuis longtemps disparu. D’importantes con- traintes pèsent cependant sur le pouvoir des tribunaux de changer le droit. Comme le juge McLachlin l’a souligné dans l’arrêt Watkins, précité, en régime de démocratie constitutionnelle comme le nôtre, c’est le législateur et non les tribunaux qui assume, quant a` la réforme du droit, la responsabilité principale; et tout changement qui risquerait d’entraˆıner des conséquences complexes devrait, aussi nécessaire ou souhaitable soit-il, etreˆ laissé au législateur. Le pouvoir judiciaire doit limiter son intervention aux changements progressifs nécessaires pour que la common law suive l’évolution et le dynam- isme de la société. [Par. 37] [Je souligne.] 33 Même si la Cour a le pouvoir d’apporter progressivement des changements a` la common law, elle doit le faire avec un grand soin. 34 Même si les Lignes directrices ne constituent pas des règles de droit en soi, le fait de les suivre peut rehausser la légitimité du montant de pension alimentaire pour l’époux puisqu’elles favorisent l’uniformité et aident donc a` eviter´ la prise de décisions arbitraires. Par ailleurs, même si, dès 2008, les Lignes directrices avaient et´´ e prises en considération dans plus de 350 décisions publiées dans le pays (voir Carol Rogerson et Rollie Thompson, Lignes directrices facultatives en matière de pensions alimentaires pour epoux:´ compte rendu des modifications, ministère de la Justice du Canada, juillet 2008), elles constituent encore une evolution´ relativement récente. Il vaut mieux laisser au législateur le soin de restreindre le pouvoir discrétionnaire conféré aux juges par la Loi sur le divorce relativement aux montants des aliments accordés aux epoux.´ 35 Les Lignes directrices visent a` favoriser l’uniformité et non a` usurper le pouvoir discrétionnaire des juges de première instance. A` vrai dire, il est trop tôt pour savoir si le fait de recourir démesurément aux Lignes directrices peut poser des problèmes. Les Lignes directrices n’ont pas fait l’objet du débat rigoureux dont les lois font normalement l’objet et elles n’ont pas et´´ e utilisées suffisamment longtemps par les tribunaux pour justifier leur incorporation a` la common law. 36 Cela ne veut pas dire que les Lignes directrices ne pourront pas a` un moment donné etreˆ incluses dans la législation ou incorporées a` la common law. La certitude du résultat est un principe important en droit. Les Lignes directrices peuvent aider a` promouvoir ces valeurs. Comme la Smith v. Smith Kathleen A. Quigg, J.C.A. 319

juge Larlee l’a mentionné dans C. (J.D.E.) v. C. (S.M.) a` propos des Lignes directrices: [...] [L]eur utilisation, grâce au logiciel prévu a` cette fin, contribuera a` accroˆıtre l’uniformité et la prévisibilité des ordonnances alimentaires au profit du conjoint. Non seulement favoriseront-elles les règlements a` l’amiable, mais elles permettront aussi aux conjoints de prévoir, au moment de la séparation, quelles seront leurs obligations alimentaires futures. [Par. 5] 37 Les Lignes directrices aident a` assurer une certaine uniformité dans les jugements et, par conséquent, a` connaˆıtre de fa¸con plus certaine l’état du droit, mais elles ne constituent pas des règles de droit. Par conséquent, même s’il serait judicieux pour les juges de suivre les Lignes directrices, et c’est ce qu’ils font généralement, ces derniers ne devraient pas avoir l’obligation de le faire même si leurs motifs de décision ne font pas en- trer en jeu une exception dont il est question au chapitre 12 des Lignes directrices.

VII. Article 15.2 de la Loi sur le divorce 38 Mme Smith dit que le juge du procès a commis une erreur de droit dans l’application de l’article 15.2 de la Loi sur le divorce. A` mon avis, Mme Smith n’a pas raison d’assimiler les conclusions du juge du procès a` une erreur de droit. Il s’agit en fait d’une erreur mixte de droit et de fait. Dans Housen v. Nikolaisen [2002 CarswellSask 178 (S.C.C.)], la Cour suprême déclare ce qui suit: Si le principe juridique n’est pas facilement isolable, il s’agit alors d’une « question mixte de fait et de droit », assujettie a` une norme de contrôle plus rigoureuse. Selon la règle générale enonc´´ ee dans l’arrêt Jaegli Enterprises, précité, si la question litigieuse en appel soulève l’interprétation de l’ensemble de la preuve par le juge de première instance, cette interprétation ne doit pas etreˆ infirmée en l’absence d’erreur manifeste et dominante. [Par. 36] 39 En ce qui concerne la présente affaire, l’extrait suivant tiré de l’arrêt Housen est tout a` fait a` propos: Cependant, lorsque l’erreur ne constitue pas une erreur de droit, une norme de contrôle plus exigeante s’impose. Dans les cas où le juge des faits examine tous les el´´ ements de preuve que le droit lui com- mande de prendre en considération mais en tire néanmoins une conclusion erronée, il commet alors une erreur mixte de fait et de droit, qui est assujettie a` une norme de contrôle plus rigoureuse: Southam, précité, par. 41 et 45. [Par. 28] 320 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

40 Le paragraphe 15.2(4) de la Loi sur le divorce prévoit que les tribunaux doivent tenir compte des ressources de chaque epoux.´ En l’espèce, le juge a tenu compte des faits pertinents, mais il a fait une erreur dans son appréciation de ceux-ci. La question soulevée dans le deuxième moyen d’appel concerne l’interprétation de la preuve par le juge du procès et l’application de la Loi sur le divorce a` celle-ci. La question litigieuse en appel est donc une question mixte de fait et de droit et la norme de contrôle applicable est celle de l’erreur manifeste et dominante. 41 L’application de l’article 15.2 de la Loi sur le divorce par un juge de première instance passe par l’exercice d’un large pouvoir discrétionnaire. Afin d’éviter qu’une décision soit per¸cue comme etant´ arbitraire, l’exercice de ce pouvoir discrétionnaire doit etreˆ justifié dans les motifs. Par ailleurs, comme la Cour suprême l’a souligné dans Hickey v. Hickey [1999 CarswellMan 254 (S.C.C.)]: Lorsque des dispositions législatives en matière de droit de la famille confèrent aux juges de première instance le pouvoir de rendre des ordonnances alimentaires en fonction de certains objectifs, de certaines valeurs, de certains facteurs et de certains critères, ceux-ci doivent jouir d’une grande discrétion pour décider si une pension alimentaire sera accordée ou modifiée et, dans l’affirmative, pour en fixer le montant. Ils doivent, dans l’appréciation des faits, soupeser les objectifs et les facteurs enonc´´ es dans la Loi sur le divorce ou dans les lois provinciales relatives aux ordonnances alimentaires. Il s’agit d’une décision difficile mais importante, qui peut s’avérer cruciale dans la vie des ex-époux et de leurs enfants. Vu sa nature factuelle et discrétionnaire, la décision du juge de première instance doit faire l’objet d’une grande déférence par la cour d’appel appelée a` réviser une telle décision. [Par. 10] [Je souligne.] 42 L’alinéa 15.2(6)d) de la Loi sur le divorce exige que les ordonnances alimentaires au profit des epoux´ favorisent l’indépendance economique´ des parties. Le par. 15.2(6) de la Loi sur le divorce s’énonce en partie comme suit: 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 [...] Smith v. Smith Kathleen A. Quigg, J.C.A. 321

(d) in so far as practicable, promote the economic self- sufficiency of each spouse within a reasonable period of time. [Emphasis added.] Objectifs de l’ordonnance alimentaire au profit d’un epoux´ 15.2(6) L’ordonnance ou l’ordonnance provisoire rendue pour les aliments d’un epoux´ au titre du présent article vise: [...] d) a` favoriser, dans la mesure du possible, l’indépendance economique´ de chacun d’eux dans un délai raisonnable. [Je souligne.] 43 Dans C. (J.D.E.) v. C. (S.M.), la juge Larlee affirme ce qui suit: L’indépendance economique´ n’est que l’un des quatre facteurs a` examiner. Toutefois, comme le juge Bastarache l’a souligné dans l’arrêt Ross c. Ross (1995), 168 R.N.-B. (2e) 147 (C.A.), au paragraphe 12: [TRADUCTION] « L’indépendance economique´ demeure cependant un but que doivent chercher a` atteindre les deux epoux.´ L’obligation alimentaire conjugale est essentiellement con¸cue pour alléger le fardeau economique´ de l’époux désavantagé le temps nécessaire a` l’atteinte de l’indépendance economique,´ si tant est qu’elle soit possible ». [Par. 12] [Je souligne.] 44 Favoriser l’indépendance economique´ est l’un des objectifs de l’ordonnance alimentaire au profit d’un epoux,´ comme le prévoit l’al. 15.2(6)d) de la Loi sur le divorce. Cet objectif n’a pu etreˆ atteint en raison des erreurs manifestes et dominantes commises par le juge du procès dans l’appréciation de la situation de Mme Smith. 45 Le par. 15.2(4) de la Loi sur le divorce est en partie rédigé comme suit: Factors 15.2(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse [...] [Emphasis added.] Facteurs 15.2(4) En rendant une ordonnance ou une ordonnance provisoire au titre du présent article, le tribunal tient compte des ressources, des besoins et, d’une fa¸con générale, de la situation de chaque epoux´ [...] 322 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

[Je souligne.] 46 Le juge du proc`es a commis des erreurs manifestes et dominantes dans l’appr´eciation de la preuve concernant les ressources de M. Smith. Il s’ensuit qu’il n’a pas bien tenu compte de ces ressources comme l’exige le par. 15.2(4) de la Loi sur le divorce.

VIII. Conclusion 47 Les Lignes directrices peuvent renforcer la légitimité d’une ordonnance alimentaire au profit d’un epoux´ puisqu’elles favorisent l’uniformité et, par conséquent, contribuent a` eviter´ la prise de décisions arbitraires. La certitude et la prévisibilité caractérisent la primauté du droit (voir R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 (S.C.C.), au par. 69). Toutefois, les juges de première instance devraient conserver le pouvoir discrétionnaire d’accorder des aliments a` un epoux´ d’un montant supérieur ou inférieur aux montants etablis´ par les Lignes directrices. Les ordonnances alimentaires au profit d’un epoux´ exigent l’exercice d’un pouvoir discrétionnaire par le juge de première instance dans l’appréciation des faits selon les circonstances de l’affaire. Les circonstances exceptionnelles dont il est question au chapitre 12 des Lignes directrices ne constituent pas une liste exhaustive. 48 L’ordonnance alimentaire en l’espèce n’était pas fondée sur une ap- préciation judicieuse des faits. Il est vrai que l’absence de motifs de jugement donne a` penser que la décision prise est arbitraire, mais le juge du procès a fourni des motifs et s’est appuyé sur les faits, tels qu’ils lui ont et´´ e présentés, pour parvenir a` sa décision. Ce n’était donc pas une déci- sion prise de fa¸con arbitraire qui a amené le juge du procès a` prononcer une ordonnance alimentaire inappropriée. C’est plutôt une erreur mixte de fait et de droit commise dans l’application de la Loi sur le divorce a` des faits interprétés de manière erronée qui l’a amené a` prononcer une ordonnance alimentaire inappropriée. 49 Pour résumer, les cours d’appel doivent faire preuve de retenue judiciaire a` l’égard des conclusions de fait d’un juge de procès. Ces conclusions ne peuvent etreˆ infirmées a` moins qu’il n’existe clairement une erreur manifeste et dominante. Cette erreur doit etreˆ nettement discernable. Les Lignes directrices ne constituent pas des règles de droit et notre Cour ne doit pas s’empresser de restreindre le pouvoir discrétionnaire conféré aux juges par la Loi sur le divorce. Toutefois, afin d’éviter qu’une décision soit per¸cue comme etant´ arbitraire, le juge du procès devrait exposer les motifs d’une ordonnance alimentaire dont le montant Smith v. Smith Kathleen A. Quigg, J.C.A. 323

est supérieur ou inférieur aux montants des Lignes directrices. Si le juge de première instance ne fournit pas de motifs ou s’il en fournit qui sont fondées sur des conclusions de fait erronées, sa décision pourra faire l’objet d’un examen en appel. Dans la présente affaire, la décision du juge n’était pas etay´´ ee par la preuve et elle résultait d’erreurs de fait manifestes et dominantes. Le contexte relaté dans la décision du juge et les transcriptions du procès nous permettent d’établir un résultat plus ap- proprié sans avoir a` ordonner la tenue d’un nouveau procès. 50 Pour favoriser l’uniformité dans les ordonnances alimentaires au profit d’un epoux´ de fa¸con générale et pour assurer l’équité dans la présente affaire, notre Cour devrait tenir compte des Lignes directrices pour rendre une nouvelle ordonnance alimentaire au profit de l’épouse, tout comme le juge du procès l’a fait, quoiqu’il ait a` tort fixé un montant a` l’extérieur de la fourchette des Lignes directrices. Dans la présente affaire, l’avocate de Mme Smith a calculé la fourchette des Lignes directrices a` partir du revenu de 62 500 $ de M. Smith, en tenant compte du fait que Mme Smith n’avait aucun revenu et que le mariage avait duré 31 ans. Les montants des Lignes directrices sont les suivants: a. Montant inférieur: 1 965 $ par mois b. Montant moyen: 2 293 $ par mois c. Montant supérieur: 2 511 $ par mois L’avocate de M. Smith a allégué que les Lignes directrices sont [TRA- DUCTION] « facultatives ». Par conséquent, il n’était pas nécessaire d’être visé [TRADUCTION] « directement par l’une des exceptions pour etablir´ une fourchette de montants de pension alimentaire au profit de l’épouse différente de celle prévue dans les Lignes directrices ». 51 Le juge du procès a décidé que M. Smith n’était pas en mesure de payer les montants calculés conformément aux Lignes directrices et il lui a ordonné de verser un montant de 1 000 $ par mois. Le juge a l’obligation d’entreprendre une analyse pour expliquer pourquoi il a rejeté les montants proposés dans les Lignes directrices. 52 J’ai procédé au calcul en utilisant la « Formule sans pension alimentaire pour enfant » contenue dans les Lignes directrices. En tenant compte du revenu annuel de 62 500 $ de M. Smith, du revenu annuel de 15 600 $ (30 heures par semaine × 10 $ l’heure × 52 semaines) de Mme Smith a` la date du procès, de la durée de l’union (31 ans) et de l’âge de 324 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Mme Smith (52 ans), la fourchette des montants calculés selon les Lignes directrices s’établit comme suit: a. Montant inférieur: 1 465 $ par mois b. Montant moyen: 1 709,50 $ par mois c. Montant supérieur: 1 954 $ par mois Compte tenu du fait que Mme Smith touchait un salaire au moment du procès (contrairement a` ce qui est indiqué dans son calcul), je suis d’avis de fixer le montant de la pension a` 1 709,50 $ par mois (le montant moyen de la fourchette des Lignes directrices). 53 Le mariage des parties a duré bien plus que 20 ans. Par conséquent, la pension alimentaire illimitée (durée non précisée) est appropriée, con- formément a` la section 7.1 des Lignes directrices. Les recommandations contenues dans les Lignes directrices concernant la pension alimentaire illimitée concordent avec la jurisprudence du Nouveau-Brunswick portant sur les mariages de longue durée. (Voir Boudreau v. Brun, 2005 NBCA 106, 293 N.B.R. (2d) 126 (N.B. C.A.), et Adams v. Adams, 2003 NBCA 10, 256 N.B.R. (2d) 136 (N.B. C.A.), ainsi que les exceptions Mills v. Mills, 2010 NBCA 20, 356 N.B.R. (2d) 351 (N.B. C.A.) et C. (J.D.E.) v. C. (S.M.), précité).

IX. Dispositif 54 Pour les motifs exposés ci-dessus, je suis d’avis d’accueillir l’appel, d’annuler l’ordonnance prononcée en première instance et de fixer le montant des aliments a` 1 709,50 $ par mois. J’accorderais des dépens de 2 000 $. Appeal allowed. Baker v. Baker 325

[Indexed as: Baker v. Baker] Thomas Arthur Baker (Appellant) v. Joyce Marie Baker (Respondent) Nova Scotia Court of Appeal Docket: C.A. 347495 2012 NSCA 24 Oland, Fichaud, Farrar JJ.A. Heard: February 14, 2012 Judgment: March 2, 2012 Family law –––– Domestic contracts and settlements — Validity — Essential validity and capacity — Non est factum and lack of understanding –––– Par- ties married in 1971 and separated in early November 2005 — Parties had four children, who were all over age of majority — On November 3, 2005, parties executed separation agreement, which provided that neither party would make demands for support and that wife would convey matrimonial home to husband — Since separation, husband’s only income was disability pension of about $10,000 annually — Wife had moved to Calgary and was earning income of approximately $39,000 per year — Wife claimed that separation agreement was unconscionable — Wife successfully brought application to set aside separation agreement — Husband appealed — Appeal allowed — What was missing from judge’s reasons was analysis of whether net result of separation agreement’s property allocation and spousal support provisions were unconscionable or unduly harsh — Had judge done that, conclusion would not have been that property division was unduly harsh on wife and that elimination of spousal support was unduly harsh on husband — Rather, conclusion would have been that separation agreement “in its totality” achieved equitable sharing of economic consequences of marriage and its breakdown. Family law –––– Domestic contracts and settlements — Effect of contract — On spousal support — Under Divorce Act — General principles –––– Parties married in 1971 and separated in early November 2005 — Parties had four children, who were all over age of majority — On November 3, 2005, parties executed separation agreement, which provided that neither party would make demands for support and that wife would convey matrimonial home to husband — Since separation, husband’s only income was disability pension of about $10,000 annually — Wife had moved to Calgary and was earning income of approximately $39,000 per year — Wife claimed that separation agreement was unconscionable — Wife successfully brought application to set aside separation agreement — Husband appealed — Appeal allowed — What was missing from 326 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

judge’s reasons was analysis of whether net result of separation agreement’s property allocation and spousal support provisions were unconscionable or unduly harsh — Had judge done that, conclusion would not have been that property division was unduly harsh on wife and that elimination of spousal support was unduly harsh on husband — Rather, conclusion would have been that separation agreement “in its totality” achieved equitable sharing of economic consequences of marriage and its breakdown. Family law –––– Domestic contracts and settlements — Effect of contract — On division of family property — General principles –––– Parties married in 1971 and separated in early November 2005 — Parties had four children, who were all over age of majority — On November 3, 2005, parties executed separation agreement, which provided that neither party would make demands for support and that wife would convey matrimonial home to husband — Since separation, husband’s only income was disability pension of about $10,000 annually — Wife had moved to Calgary and was earning income of approximately $39,000 per year — Wife claimed that separation agreement was unconscionable — Wife successfully brought application to set aside separation agreement — Husband appealed — Appeal allowed — What was missing from judge’s reasons was analysis of whether net result of separation agreement’s property allocation and spousal support provisions were unconscionable or unduly harsh — Had judge done that, conclusion would not have been that property division was unduly harsh on wife and that elimination of spousal support was unduly harsh on husband — Rather, conclusion would have been that separation agreement “in its totality” achieved equitable sharing of economic consequences of marriage and its breakdown. Cases considered by Fichaud J.A.: Ezurike v. Ezurike (2008), 2008 NSCA 82, 2008 CarswellNS 508, 269 N.S.R. (2d) 72, 860 A.P.R. 72 (N.S. C.A.) — referred to Gray v. Lace (2009), 2009 CarswellNS 133, 2009 NSCA 26, 63 R.F.L. (6th) 277 (N.S. C.A.) — referred to Hickey v. Hickey (1999), [1999] 2 S.C.R. 518, 172 D.L.R. (4th) 577, 1999 Car- swellMan 254, 1999 CarswellMan 255, 46 R.F.L. (4th) 1, 240 N.R. 312, [1999] 8 W.W.R. 485, 138 Man. R. (2d) 40, 202 W.A.C. 40, [1999] S.C.J. No. 9 (S.C.C.) — considered MacLennan v. MacLennan (2003), 2003 NSCA 9, 2003 CarswellNS 16, 212 N.S.R. (2d) 116, 665 A.P.R. 116, 35 R.F.L. (5th) 384, [2003] N.S.J. No. 15 (N.S. C.A.) — referred to Miglin v. Miglin (2003), 2003 SCC 24, 2003 CarswellOnt 1374, 2003 Carswell- Ont 1375, 224 D.L.R. (4th) 193, 34 R.F.L. (5th) 255, 66 O.R. (3d) 736 (note), [2003] 1 S.C.R. 303, 171 O.A.C. 201, 302 N.R. 201, REJB 2003- 40012, [2003] S.C.J. No. 21 (S.C.C.) — followed Baker v. Baker Fichaud J.A. 327

Rick v. Brandsema (2009), 266 B.C.A.C. 1, 449 W.A.C. 1, [2009] 1 S.C.R. 295, 2009 SCC 10, 2009 CarswellBC 342, 2009 CarswellBC 343, 62 R.F.L. (6th) 239, 303 D.L.R. (4th) 193, [2009] 5 W.W.R. 191, (sub nom. N.R. v. B.B.) 385 N.R. 85, 90 B.C.L.R. (4th) 1, [2009] S.C.J. No. 10, [2009] A.C.S. No. 10 (S.C.C.) — considered Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to Matrimonial Property Act, R.S.N.S. 1989, c. 275 s. 29 — considered

APPEAL by husband from judgment reported at Baker v. Baker (2011), 2011 NSSC 272, 2011 CarswellNS 456 (N.S. S.C.), granting wife’s application to set aside separation agreement.

Daniel J. MacIsaac, for Appellant M. Louise Campbell, Q.C., for Respondent

Fichaud J.A.:

1 The question is whether the judge committed an appealable error by setting aside a separation agreement.

Background 2 The pleadings describe the respondent as Joyce Baker. The respondent now uses the name Joyce Gosbee, which is how I will identify her in these reasons. 3 Mr. Baker and Ms. Gosbee are now 61 and 58 years of age, respectively. They married in October 1971 and were together for 34 years until they separated in early November 2005. They have four children, all over the age of majority. Their daughter Viola, now 38, has severe epi- lepsy, needs attention, and still lives with her father. 4 Mr. Baker worked in auto body repair. But health problems forced him to give that up in 1987. He has lung and heart afflictions. At the separation in 2005, his only income was a CPP disability pension of about $10,000 annually. 5 Ms. Gosbee had taken accounting and tax preparation courses. During the marriage she worked for 14 years part time with Canada Post, and at a retail operation in the Antigonish Mall. At the separation in November 328 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

2005, her only income was Employment Insurance of about $10,000 per annum, which was near expiry. 6 In October of 2004 Ms. Gosbee learned she had breast cancer, and reevaluated her life path. She decided to leave the marriage and move to Calgary. At the beginning of November 2005, she told Mr. Baker of her intention: So I said to him [Mr. Baker] and Viola, I have to think of myself. My daughter, my youngest daughter had just got her Masters, and I said it’s time for me to get some sanity, live on my own. I just wanted peace. I wanted some peace. And I said if I have two years or five years or whatever, I just want to live it peacefully. 7 In a discussion at the kitchen table Mr. Baker and Ms. Gosbee agreed to a quick separation agreement. Mr. Baker’s lawyer drafted it. Ms. Gos- bee took it to another lawyer for independent legal advice. They signed it. The executed Separation Agreement, dated November 3, 2005, included the following: 1. DEFINITIONS: In this agreement, ..... (b) “matrimonial home” means house and land at South Side Harbour, in the County of Antigonish, Province of Nova Scotia; ..... 2. BACKGROUND ..... (2) The children of the marriage are as follows: There are no longer children of the marriage. (3) The husband and wife are living separate and apart from each other and desire to settle by way of agreement all their rights and obligations which they have or may acquire with respect to their property and maintenance or support from the other. (4) The parties separated on the 2nd day of November, A.D., 2005. 3. AGREEMENT The husband and the wife agree to be bound by the provisions of this agreement. Baker v. Baker Fichaud J.A. 329

..... 6. MAINTENANCE The parties hereto covenant and agree to make no demands for maintenance upon each other whether under any provincial, or federal statute or common law. This renunciation shall exist irregardless of any change in the circumstance...... 9. DEBTS AND OBLIGATIONS ..... (4) the husband agrees to assume responsibility for any family debt incurred prior to this agreement. 10. RELEASE OF RIGHTS TO AND INTEREST IN PROPERTY ..... (f) The wife does covenant and agree to convey the matrimonial home and land situate at South Side Harbour, An- tigonish County, Nova Scotia, to the husband...... 13. SEPARATION AGREEMENT TO SURVIVE DIVORCE If either the husband or the wife obtains a decree of divorce under the laws of any jurisdiction, all the terms of this agreement shall be incorporated into and form part of the decree of divorce...... 15. EXECUTION The husband and the wife acknowledge that each of them: (a) understands his or her rights and obligations under this agreement; (b) has had satisfactory disclosure of the financial circumstances of the other; and (c) is signing this agreement voluntarily...... 18. INDEPENDENT LEGAL ADVICE Each party hereto acknowledges and agrees that they each had the opportunity to seek independent legal advice and they are each signing this Agreement voluntarily and are not under any duress or undue influence. 330 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

[emphasis added] I have emphasized clauses 6 and 10(f), that were the focus of the submissions on this appeal. 8 The Separation Agreement also provided that Mr. Baker would have the furniture in the matrimonial home, each party would have their personal effects and belongings, and each would be responsible for his or her own debts after the Agreement. 9 Attached to the Separation Agreement were Certificates of Indepen- dent Legal Advice signed by the solicitors for Mr. Baker and Ms. Gos- bee. The Certificate signed by Ms. Gosbee’s solicitor said: CERTIFICATE OF INDEPENDENT LEGAL ADVICE TO WIFE I, Meghan MacGillivray, of Antigonish, in the County of Antigonish, Barrister and Solicitor, DO HEREBY CERTIFY that I was this day consulted in my professional capacity by Joyce Marie Baker, named in the annexed Separation Agreement, dated as of the 3rd day of No- vember, 2005, as to her obligations and rights under the said Agree- ment, that I acted solely for her and explained fully to her the nature and effect of the said Agreement and she did acknowledge and declare that she fully understood the nature and effect thereof and did execute the said document in my presence and did [sic] acknowledge and declare that it appeared to me that she was executing the said document of her own volition and without fear, threats, compulsion or influence by Thomas Arthur Baker or any other person. 10 Ms. Gosbee testified that she signed the Separation Agreement against the advice of her lawyer. Her lawyer was not called as a witness. 11 Ms. Gosbee signed the deed to the matrimonial home, as provided in clause 10(f) of the Separation Agreement. 12 Shortly after signing the Separation Agreement, Ms. Gosbee moved to Calgary. She testified: I stayed with my sister. I was there for ... at her place for two and a half months. It took me a week, exactly a week, to get a job. 13 Ms. Gosbee is still employed where she was hired upon her arrival in Calgary. She manages inventory at three stores. At the trial in 2011, she discussed her income: Q. And you were showing income of $39,000 per year? A. When I started working in Calgary, yes. Q. And what do you earn now? Baker v. Baker Fichaud J.A. 331

A. Approximately 39 to 40,000 a year. 14 Since the separation, Mr. Baker’s income virtually has been unchanged, and is confined to his CPP disability pension. The trial judge found: [12] Mr. Baker’s income since the separation in 2005 has remained around $10,000.00 per year. 15 In May 2009, Mr. Baker petitioned for divorce. Ms. Gosbee responded by claiming that the 2005 Separation Agreement should be set aside under s. 29 of the Matrimonial Property Act, R.S.N.S. 1989, c. 275. Section 29 permits the court to set aside a separation agreement that “is unconscionable, unduly harsh on one party or fraudulent”. Mr. Baker’s position was that the Agreement should stand but, if it were set aside, he was entitled to retroactive and prospective spousal support. 16 Justice Douglas MacLellan of the Supreme Court of Nova Scotia conducted the trial on March 24, 2011 and issued a written decision on June 23, 2011 (2011 NSSC 272 (N.S. S.C.)). The judge: (1) set aside the Sep- aration Agreement under s. 29; (2) ruled that Mr. Baker must pay to Ms. Gosbee an equalization payment of $88,360 to allocate the matrimonial net worth, principally the value of the matrimonial home; and (3) said the following about spousal support: [33] The issue of spousal support to Mr. Baker still hangs over this proceeding. I conclude that if the property had been settled fairly in 2005 that Mr. Baker would, in the years following, have been entitled to spousal support. The judge did not quantify spousal support, but left that for later litigation. His decision said: [36] In the circumstances, I would order that there be no payment of the property settlement until the issue of spousal support is dealt with by the Court. The judge noted (para 38) the situation “is complicated by the fact that Mr. Baker might not have any capacity to buy-out his wife’s share of the property”. 17 Spousal support has not yet been determined. The judge has retired. So spousal support would have to be re-litigated afresh before another judge. 18 Mr. Baker has appealed. He says that the judge erred by setting aside the Separation Agreement under s. 29. 332 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Issue 19 The issue is whether the judge’s reasons disclose an appealable error in his interpretation or application of s. 29 of the Matrimonial Property Act.

Standard of Review 20 In Hickey v. Hickey, [1999] 2 S.C.R. 518 (S.C.C.), Justice L’Heureux-Dub´e for the Court said: Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong. This Court’s standard of review, involving deference but permitting appellate interference to correct an error in principle, applies to both support issues and property division: Gray v. Lace, 2009 NSCA 26 (N.S. C.A.), para. 12, per Roscoe, J.A.; Ezurike v. Ezurike, 2008 NSCA 82 (N.S. C.A.), at para. 6, per Bateman, J.A.; MacLennan v. MacLennan, 2003 NSCA 9 (N.S. C.A.), at para. 9, per Cromwell, J.A. 21 The issue on this appeal is whether the judge erred in principle.

Analysis 22 Section 29 of the Matrimonial Property Act says: Harsh or fraudulent contract or agreement 29 Upon an application by a party to a marriage contract or separation agreement, the court may, where it is satisfied that any term of the contract or agreement is unconscionable, unduly harsh on one party or fraudulent, make an order varying the terms of the contract or agreement as the court sees fit. 23 The principles that govern a judicial departure from a Separation Agreement stem from Miglin v. Miglin, [2003] 1 S.C.R. 303 (S.C.C.). Justices Bastarache and Arbour for the majority established a two stage test (summarized at paras 79-91), with two components in stage one. 24 At stage one, the court first examines the circumstances that led to the separation agreement to determine whether oppression, pressure or vulnerabilities tainted the integrity of the negotiation. Justices Bastarache and Arbour added three qualifiers: 82 We pause here to note three important points. First, we are not suggesting that courts must necessarily look for “unconscionability” as it is understood in the common law of contract. There is a danger Baker v. Baker Fichaud J.A. 333

in borrowing terminology rooted in other branches of the law and transposing it into what all agree is a unique legal context. There may be persuasive evidence brought before the court that one party took advantage of the vulnerability of the other party in separation or divorce negotiations that would fall short of evidence of the power imbalance necessary to demonstrate unconscionability in a commercial context between, say, a consumer and a large financial institution. Next, the court should not presume an imbalance of power in the relationship or a vulnerability on the part of one party, nor should it presume that the apparently stronger party took advantage of any vulnerability on the part of the other. Rather, there must be evidence to warrant the court’s finding that the agreement should not stand on the basis of a fundamental flaw in the negotiation process. Recognition of the emotional stress of separation or divorce should not be taken as giving rise to a presumption that parties in such circumstances are incapable of assenting to a binding agreement. If separating or di- vorcing parties were generally incapable of making agreements it would be fair to enforce, it would be difficult to see why Parliament included “agreement or arrangement” in s. 15.2(4)(c). Finally, we stress that the mere presence of vulnerabilities will not, in and of itself, justify the court’s intervention. The degree of professional assistance received by the parties will often overcome any systemic im- balances between the parties. Justices Bastarache and Arbour summarized the first component of stage one: 83 Where vulnerabilities are not present, or are effectively compen- sated by the presence of counsel or other professionals or both, or have not been taken advantage of, the court should consider the agreement as a genuine mutual desire to finalize the terms of the parties’ separation and as indicative of their substantive intentions. Ac- cordingly, the court should be loathe to interfere. In contrast, where the power imbalance did vitiate the bargaining process, the agreement should not be read as expressing the parties’ notion of equitable sharing in their circumstances and the agreement will merit little weight. Earlier, in their Introduction, Justices Bastarache and Arbour had dis- tilled the point even further: 4 ... The court would inquire whether one party was vulnerable and the other party took advantage of that vulnerability. 25 Where the agreement survives this circumstantial analysis, the court, in the second component of stage one, determines whether the agreement substantially complies with the objectives of the Divorce Act, “thereby 334 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

reflecting an equitable sharing of the economic consequences of marriage and its breakdown” (para 84). Justices Bastarache and Arbour said that “[O]nly a significant departure” from those objectives will warrant the court’s intervention (para 84) and that “a court should be loathe to interfere with a pre-existing agreement unless it is convinced that the agreement does not comply substantially with the overall objectives of the Divorce Act” (para 46). Those objectives “include, as well as the spousal support considerations in s. 15.2, finality, certainty, and the invitation in the Act for parties to determine their own affairs” (para 85). The court must examine the agreement “in its totality, bearing in mind that all aspects of the agreement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves” (para 84). 26 Stage two moves the gauge forward in time to assess whether the parties “find themselves down the road of their post-divorce life in circumstances not contemplated” (para 87). Justices Bastarache and Arbour said: 88 ... the applicant must nevertheless clearly show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties’ intentions at the time of execution and the objectives of the Act. Accordingly, it will be necessary to show that these new circumstances were not reasonably anticipated by the parties, and have led to a situation that cannot be condoned. 27 In Rick v. Brandsema, [2009] 1 S.C.R. 295 (S.C.C.), Justice Abella for the Court noted that Miglin also guides the court’s assessment of the property aspects of separation agreements: [39] While Miglin dealt with spousal support agreements in the context of a divorce, it nonetheless offers guidance for the conduct of negotiations for separation agreements generally, including negotiations for the division of matrimonial assets. Justice Abella summarized Miglin’s approach: [44] Where, therefore, “there were any circumstances of oppression, pressure or other vulnerabilities”, and if one party’s exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation, the Court in Miglin concluded that the agreement need not be enforced (paras. 81-83). [45] Notably, the Court also stressed the importance of respecting the “parties’ right to decide for themselves what constitutes for them, in the circumstances of their marriage, mutually acceptable equitable Baker v. Baker Fichaud J.A. 335

sharing” (para 73). Parties should generally be free to decide for themselves what bargain they are prepared to make. 28 With those principles in mind, I will turn to this appeal. 29 The judge did not cite Miglin or any judicial authority. He referred only to s. 29, that the agreement may be set aside if it “is unconscionable, unduly harsh on one party or fraudulent”. The judge said: [18] There is no question in my mind but that the separation agreement must be set aside under Section 29 of the Matrimonial Pro- perty Act. I have serious concerns about Ms. Gosbee’s state of mind in November 2005 when she did not follow the legal advice given to her by her lawyer not to sign the agreement. She was at that time facing an uncertain medical situation and was very unhappy in her present circumstances. She simply just wanted out, to spend her last years of her life out of the marriage. The judge concluded: [20] I find that at the time of the separation agreement there was, in effect, no discussion about spousal support. I therefore find that the separation agreement is unconscionable and unduly harsh on Ms. Gosbee and I set it aside. The terms of the agreement indicating that neither party has a claim to spousal support and/or that Ms. Gosbee has no claim to property. 30 The judge concluded that the agreement was “unconscionable and unduly harsh” in two respects. First, the property division was unduly harsh to Ms. Gosbee. This refers particularly to clause 10(f) [quoted above, para 7], that allocated the matrimonial home to Mr. Baker. Second, clause 6 [quoted above, para 7], that precluded claims for spousal support, also was unconscionable and unduly harsh. From the judge’s ruling (quoted above para 16) - “if the property had been settled fairly in 2005 ... Mr. Baker would, in the years following, have been entitled to spousal support” - it appears that the preclusion of spousal support was unduly harsh to Mr. Baker. 31 What is missing from the judge’s reasons is any analysis of whether the net result of the Separation Agreement’s property allocation and spousal support provisions is unconscionable or unduly harsh to either party. 32 The judge unstitched property allocation and spousal support. Then the judge calculated that Ms. Gosbee was entitled to equalization payment of $88,360 for the division of matrimonial net worth. The judge 336 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

said Mr. Baker would have been entitled to spousal support in the years following 2005, but did not quantify that spousal support. 33 Mr. Baker’s factum to this Court used the parties’ incomes since 2005 to estimate Mr. Baker’s spousal support entitlement at $9,375 per annum, based on a conservative application of the Spousal Support Advisory Guidelines. At the appeal hearing, Ms. Gosbee’s counsel was asked to comment on what might be an appropriate quantum of spousal support. Counsel for Ms. Gosbee replied that the calculation in Mr. Baker’s factum was generally satisfactory. 34 The judge said that Mr. Baker would have been entitled to spousal support “in the years following” 2005. At the separation, Mr. Baker and Ms. Gosbee were 55 and 52 years of age, respectively. The parties’ 34 year marriage was long term under the Spousal Support Advisory Guide- lines. So spousal support likely would continue for an indefinite period, barring a material change of circumstances. At $9,375 per annum, or thereabouts, it is not difficult to see that the cumulative spousal support, retroactive and prospective, payable to Mr. Baker, soon would exceed Ms. Gosbee’s equalization payment of $88,360 from the allocation of matrimonial net worth. 35 My point is not to pre-judge the calculation of spousal support. The point is that, had the judge considered the net effect of the Separation Agreement’s provisions respecting (1) property division and (2) spousal support, the conclusion would not have been (1) a ruling that property division was unduly harsh to Ms. Gosbee and (2) a separate ruling that elimination of spousal support was unduly harsh to Mr. Baker. Rather, the conclusion would have been, to quote Miglin, that the Separation Agreement “in its totality” achieved “an equitable sharing of the economic consequences of [the] marriage and its breakdown”, and therefore neither party “took advantage of the vulnerability” of the other. 36 As a matter of principle, the Separation Agreement is to be considered as a whole. Property division and spousal support are not siloed for two opposing assessments of harshness. In Miglin, Justices Bastarache and Arbour said (para 84): The court must not view spousal support arrangements in a vacuum, however; it must look at the agreement or arrangement in its totality, bearing in mind that all aspects of the agreement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves. Baker v. Baker Fichaud J.A. 337

37 The judge effectively acknowledged the inextricable linking in his ruling that Ms. Gosbee’s equalization amount not be paid until after Mr. Baker’s spousal support was calculated. The judge contemplated that, in the end, there should be a net payment. The harshness analysis similarly should have contemplated the net impact of the Separation Agreement’s provisions. 38 In my respectful view, the judge erred in principle by not assessing the provisions of the Separation Agreement governing property allocation and spousal support in their totality, bearing in mind that those provisions were linked. Had he done so, the conclusion would have been that the Separation Agreement achieved an overall equitable sharing of the consequences of the marriage and its breakdown, and that neither party exploited the vulnerability of the other.

Conclusion 39 I would allow the appeal, and overturn the ruling that the Separation Agreement, or any of its provisions, be set aside. 40 This was a divorce. The judge has retired. Before retiring, the judge did not issue a final order, as I have explained. The post-retirement date when the judge may finalize outstanding matters has passed. I would remit the wording of the divorce order to The Supreme Court of Nova Sco- tia, to be finalized by another judge, consistently with the reasons and order of this Court. 41 Mr. Baker did not request costs. The parties should bear their own costs. Appeal allowed. 338 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

[Indexed as: Children’s Aid Society of London v. B. (C.D.)] Children’s Aid Society of London and Middlesex (Applicant) and C.D.B. and L.D.B. (Respondents) Ontario Superior Court of Justice Docket: C849/10-01 2011 ONSC 5853 R. John Harper J. Heard: November 24-25, 28-30, December 1-2, 2011 Judgment: December 7, 2011 Family law –––– Children in need of protection — Practice and procedure in custody hearings — Evidence at hearing — General principles –––– Par- ents had three children — In attempt to deal with extreme parental conflict around custody, access and parenting plan parents entered into closed mediation agreement with mediator D in June 2010 — Agreement contained confidentiality and reporting restrictions limiting D’s disclosure, and provided exemptions and exceptions from restrictions — Agreement provided for disclosure on agreement of some or all issues, but failure to agree restricted admissibility of any admission or communication made in mediation, except if D was required to testify in criminal matter — Parents disagreed whether mediation achieved agreement — Oldest child M was charged with attempted murder of mother — Mother alleged that father’s abusive and controlling behaviour contributed to events leading to murder charge, and father alleged that mother’s serious alcohol problems were threat to children’s safety — Assessors noted that closed mediation between parents was highly problematic — Children’s Aid Society brought application for protection order — At voir dire D testified to viewing of case as complex, and acknowledged having reached conclusions relative to issues of harm and parental conflict — Issue arose whether D’s evidence was privileged — Ruling was required on admissibility of D’s evidence at child protection hearing — Ruling was issued that all D’s evidence on voir dire was admissible at trial only after hearing all evidence in case — Although parties intended for privilege to apply, applying Wigmore analysis of privilege led to reasonable conclusion that closed mediation agreement was not subject to privilege — Bal- ancing privilege against probative value of evidence within mediation process, with children’s protection and well-being at issue, admission of D’s testimony was appropriate — Hearing other significant witnesses before D was required to segregate parts of D’s evidence not so probative as to require privilege. Children’s Aid Society of London v. B. (C.D.) R. John Harper J. 339

Cases considered by R. John Harper J.: Duits v. Duits (2006), 27 R.F.L. (6th) 407, 2006 CarswellOnt 2712, [2006] O.J. No. 1762 (Ont. S.C.J.) — considered Rudd v. Trossacs Investments Inc. (2006), 2006 CarswellOnt 1417, 208 O.A.C. 95, 27 C.P.C. (6th) 147, 79 O.R. (3d) 687, 265 D.L.R. (4th) 718, [2006] O.J. No. 922 (Ont. Div. Ct.) — followed

RULING on admissibility of mediator’s evidence at child protection hearing.

Tim Price, for Applicant Hamoody Hassan, for Mr. C.B. Lisa Walters, for Ms L.B.

R. John Harper J.: Issues 1 Whether Paula DeVeto is allowed to testify as to facts within the process of “Closed Mediation” that she participated in with L.B and C.B. in May and June of 2010. 2 L.B. and C.B. entered into an agreement on June 25, 2010, with a mediator, Paula DeVeto. Ms. DeVeto had been contacted by Ms. Wal- ters, on behalf of L.B and Ms. Barr, solicitor for C.B. at the time, in early May 2010, in order to retain Ms. DeVeto as a mediator for custody, access and a parenting plan. After an initial intake process, Ms. DeVeto had both L.B. and C.B. into her office on June 25, 2010 (“the mediation”). 3 This agreement is titled “Closed Mediation Agreement to Mediate.” There are two sections of the agreement dealing with issues of confidentiality and reporting restrictions. They are paragraphs 4 and 6 and read as follows: 4. CONFIDENTIALITY a) Parents are screened individually for the suitability of mediation. The intake questionnaire and the screening meetings are confidential and will not be disclosed to anyone, absent the appropriate consents. b) Other than the information referred to in 4(a), the Mediator shall be free to disclose all information, documentation and correspondence provided by each parent or generated by the mediation process, with each parent, with the lawyer for each parent. No such professionals or experts shall be retained without the expressed written consent of the parties. 340 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

c) This signed agreement serves as the parents’ informed consent for Paula DeVeto to obtain information from the Court, counsel and both parents AND for Paula DeVeto to provide information received from all sources to counsel and the other parent. Information provided to counsel is privileged and cannot be used for Court purposes. d) The Mediator may disclose non-indentifying information for research or education purposes. e) The Mediator is obliged to notify the proper authorities if she has a “reasonable suspicion” that a client may harm himself or herself or the other parent, or that a child is being abused, harmed or neglected. (my emphasis) f) In the event the Mediator is required to resort to small claims court and/or collection agency to retrieve payment, the client information is required for the claim. 6. REPORTING a) If the parents reach an agreement on some or all the issues, the Mediator shall prepare a final draft Parenting Plan with respect to those issues for consideration by the parents and their respective counsel. The final draft Plan is not legally binding and a statement of intention by the parents. b) If the parents fail to agree on one or more issues it is understood that: i) Anything said or any admission or communication in the course of the mediation is not admissible in any legal proceeding. ii) The mediator will not be called as a witness by or on behalf of either parent in any legal proceeding; iii) The Mediator may be required by the court to testify despite this agreement to the contrary, in the event there are criminal matters pending. iv) If the parents do not reach an agreement through mediation on any specific issue that will be so reported by the Mediator.

C.B.’s Position 4 C.B. submits that the parties did reach an agreement as contemplated in paragraph 6(a) and that that agreement was later incorporated in a document titled “Interim Without Prejudice Minutes of Settlement” that set- Children’s Aid Society of London v. B. (C.D.) R. John Harper J. 341

tled access to the children and other parenting issues related to communication and time sharing. 5 C.B. submits that paragraph 6(a) of the agreement - when the parties reach an agreement on some or all of the issues - takes the parties out of the confidential process contemplated in 6(b). He submits that if that were not the case, there would be no need to separate the two concepts. He suggests that if the intention was to clothe the whole process with privilege, regardless of whether an agreement was reached or not, the agreement would simply contain the provisions set out in paragraph 6(b). C.B. submits that by separating paragraph 6(a) from the privilege pathway of 6(b), the parties could bring forth evidence of the process in order to clarify any questions if the parties disagreed with the meaning of any clause in the agreement reached. 6 In the alternative, C.B. argues that even if confidentiality provisions apply to this “closed mediation” process, the court should enter into a balancing of the protection of the privilege versus the need to receive all of the relevant evidence as contemplated and set out in the Wigmore conditions. He submits that after the court does such an analysis, it would be clear that it should receive the evidence of the mediator as its probative value far outweighs the need to protect the privilege. 7 C.B. also takes the position that paragraph 6(b)(iii) became operative, as criminal charges are pending against their eldest son.

L.B.’s Position 8 L.B. argues that paragraph 6 of the agreement calls for a “final agreement” to be reached before it becomes operative and no final agreement was reached. She submits that the fact that the parties only entered into an interim without prejudice agreement relating to some parenting issues is evidence that the process was not complete and that paragraph 6(a) is not triggered. She further submits that even if paragraph 6(a) applies, it would only allow the parties to use the minutes of settlement as evidence and not any portion of the mediation process. 9 With respect to the legal process to be followed, all counsel agree that the law is properly set out in the multiple cases that reiterate the conditions of privilege referred to in what has become known as the Wigmore analysis. 10 Ms. Walters, on behalf of L.B., submits that even if the Wigmore conditions are applied to this case, the balance of the protection of the 342 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

privilege with the probative value of any evidence is in favour of the protection of the privilege.

The Position of the child, M.X.B. (submitted by his lawyer Barbara Hoover) 11 Ms. Hoover takes the same position as L.B. She argues that the protection of the privilege in closed mediation is too important to break that privilege. According to Ms. Hoover, the implications of doing so would have far reaching negative effects on parties who wish to mediate and fear that such mediation might be exposed to future litigation despite the parties’ agreement to the contrary.

The Position of the child, R.B. (submitted by his lawyer Salim Khot) 12 Mr. Khot submits that the evidence of Ms. DeVeto has such probative value to the determinations that I must make that it should be admitted in its entirety. He submits that although privilege in mediation should not be easily dispensed with, the balance in this case favours the admission of such evidence.

The Position of the child, M.T.B. (submitted by his lawyer Donald Kilpatrick) 13 Mr. Kilpatrick’s submissions are the same as Mr. Khot’s. He argues strongly that the probative value of Ms. DeVeto’s evidence far outweighs the protection of any privilege. He further submits that the interviews of both R.B. and M.T.B. by Ms DeVeto should be admitted in their entirety. He submits that parents cannot bind their children with an agreement of privilege as the children are not privy to this contract nor were they even consulted on the issue of privilege. Mr. Kilpatrick submits that his client has instructed him to consent to the admission of his interview with Ms. DeVeto.

The Position of the Children’s Aid Society of London Middlesex 14 Mr. Price, on behalf of his client, argues that I should be very cau- tious in choosing what part of the evidence to admit. He does argue that some of the evidence of Ms. DeVeto should be admitted as the balance of probative value versus protection of the privilege favours such admission in this case. Mr. Price states that Ms. DeVeto’s evidence on the voir dire was replete with opinion evidence. He urges me to reject any opinions that were given by Ms. DeVeto as she was not qualified as an ex- Children’s Aid Society of London v. B. (C.D.) R. John Harper J. 343

pert. He also submits that the evidence of interviews by Ms. DeVeto of the children should not be admitted for the proof of the facts contained in such interview.

The Law and Analysis 15 Justice Turnbull, in Duits v. Duits, [2006] O.J. No. 1762 (Ont. S.C.J.), reviewed the law on this issue of privilege. He stated, commencing at para. 21: The common law has an established history of considering whether privilege attaches to communications between individuals and persons acting in the capacity of marriage counselors. The general approach has been to view communications made with a marriage counselor as privileged. See: Dembie v. Dembie (1963), 21 R.F.L. 46 (Ont. H.C.J.); Torok v Torok (1983), 44 O.R. (2d) 118 (S.C); Shakotko v. Shakotko, (1976), 27 R.F.L. (Ont. H.C.J.) and Porter v. Porter (1983), 40 O.R. (2d) 471. In order to determine whether privilege applies, the Supreme Court of Canada in R. v. Fosty (1991), 8 C.R. (4th) 368 (S.C.C.) accepted that the four criteria established by Wigmore in his classic text on evidence, must be considered before determining whether the communications should be privileged. In a “case by case” privilege, there is a prima facie assumption that the communications are not privileged and thereby are admissible. The four criteria are as follows: (a) The communications must originate in a confidence that they will not be disclosed. In this case, the moving party acknowledged that the parties signed a confidentiality agreement with the marriage counselor at the outset of their sessions. In fact, when Mr. Lobsinger testified on the voir dire, it became evi- dent that the parties had not signed the confidentiality agreement through oversight on his part but the agreement had been explained to each of them and they understood its terms. He testified that he would not have proceeded if there was not an understanding that confidentiality was essential to the relationship. (b) The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. The moving party agrees that is the case in this matter. (c) The relation must be one which in the opinion of the community ought to be sedulously fostered. Both counsel have agreed that is the case with marriage counselling generally. 344 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

(d) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. It is on this fourth point that the parties really differ and which made this enquiry necessary. In M.(A.) v. Ryan (1997), 143 D.L.R. (4th) 1 (S.C.C.) the Supreme Court was presented with another opportunity to go through the Wig- more criteria. In that case, the seventeen-year old plaintiff was suing her former psychiatrist for sexual relations that occurred during the course of her treatment. The plaintiff went to see another psychiatrist and wanted to keep the communications with her new psychiatrist confidential. The defendant requested production of the new psychiatrist’s records and notes. The claim of psychiatrist-patient privilege was raised. In regard to the first factor, Justice McLachlin held that the mere possibility that the communications might have to be divulged did not change the fact that they were made in confidence. Secondly, the psychiatrist’s evidence established both that confidentiality was essential to the psychiatrist-patient relationship in general and that it was particularly necessary in order to assist the plaintiff. The third factor was accepted by the court along with the comment “the mental health of the citizenry, no less than its physical health, is a public good of great importance”. Finally, Justice McLachlin observed that the balancing involved more than the short-term interests of the specific parties but the long-term injury to the professional relationship in general. The psychiatric profession had an interest along with other patients to see that their communications remain protected. Overall, where the balancing of interests favours disclosure, the court should consider whether partial disclosure may achieve the appropriate goals. The Supreme Court has effectively ruled that privilege should not be a bar to justice. Thus the court must determine if a document or class of documents must be produced to get at the truth and prevent an unjust verdict. 16 The first criteria set out by Wigmore is that the communication must originate in a confidence that they will not be disclosed. In regard to the agreement signed by L.B. and C.B., I find this agreement to be vague and conflicting, in parts, that are crucial to any determination of what the precise pathway of privilege was agreed to by the parties. 17 Paragraph 6 provides for different treatment with respect to privilege in circumstances where an agreement is reached than when an agreement Children’s Aid Society of London v. B. (C.D.) R. John Harper J. 345

is not reached. Paragraph 6(a) states that “if the parents reach an agreement on some or all of the issues the mediator shall prepare a final parenting plan.” It is difficult to understand how a final parenting plan can be prepared if there is an agreement on only “some of the issues.” Nevertheless, paragraph 6(b) seems to contradict paragraph 6(a) when it states “if the parents fail to agree on one or more issues” a strict regimen of privilege and confidentiality would apply. 18 In this case there were four different agreements over the period June 25, 2010 to August 25, 2010 that led to four separate memoranda of understanding on “some of the issues.” According to Ms. DeVeto, in her testimony in the voir dire, these various memoranda were sent by her to the parties in order to allow them the opportunity to correct anything set out in the memoranda that they felt was not accurate. The parties never sent any corrections to any of the memoranda. After each memorandum, L.B. sent her lawyer an email that contained detailed versions of L.B.’s complaints as to how the agreement was not being implemented by C.B. These emails were copied to the mediator but not to C.B. or his solicitor.

Agreement not Subject to Privilege? 19 The fourth memorandum resulted in a document entitled “interim without prejudice minutes of settlement.” This latter document was signed by L.B. on August 25, 2010, and by C.B. in early September 2010. The minutes of settlement set out a parenting plan that allowed for a custody and access regime, as well as communication methodology, among other things. It also provided a time frame for reviewing the regime. If it were intended for paragraph 6(a) to apply to this circumstance, the fact that the strict privilege regime was provided in 6(b) only would allow for the conclusion that, if such agreement were reached, the privilege pathway in 6(b) would not apply and the mediator could testify with respect to any issue not otherwise specifically provided for in the agreement. This conclusion is further reinforced by the fact that there are other very specific clauses that detail when privilege applies. Paragraph 4(a) states: Parents are screened individually for the suitability of mediation. The intake questionnaire and the screening meetings are confidential and will not be disclosed to anyone, absent the appropriate consents. 20 Paragraph 4(c) provides for certain information to be provided to counsel and the other parent. It further states “Information provided to counsel is privileged and cannot be used for Court purposes.” 346 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Exceptions and Exemptions? 21 In this case, the parties opted for closed mediation. Their agreement to mediate was premised on the fact that certain communication could not be used later. I have already elaborated on the confusion relative to the specifics of privilege in this contract of mediation. There are two further provisions in this agreement to mediate that provide additional confusion relative to the extent that any privilege was to apply. Paragraph 4(e) of this agreement states: “the Mediator is obliged to notify the proper authorities if she has a ‘reasonable suspicion’ that a client may harm himself or herself or the other parent, or that a child is being abused, harmed or neglected.” This provision may conflict with paragraph 4(a), which states that the screening information will not be disclosed to anyone. 22 A second vague exception is set out in paragraph 6(b)(iii). It states that “the Mediator may be required by the court to testify despite this agreement to the contrary, in the event there are criminal matters pending.” 23 In this case, the eldest son is charged with attempted murder of his mother. That issue is a most significant and material consideration in this protection application. Despite the significance of this issue, there is no clarification in the agreement as to what is meant by the exemption “in the event that there are criminal charges pending.” In the voir dire, Ms. DeVeto stated that C.B. took the position that the criminal proceedings against M.T.B. would qualify for this exemption. Ms. DeVeto felt that that exception only applied to criminal proceedings against one of the parents. She stated that the reasoning behind that was that she may be called upon in the criminal proceedings to testify to information she may have that might be relevant to a possible charge against one of the parents. I do not see how that would differ in what the parties were trying to accomplish with this exemption. The concept is the same and it relates to criminal charges that have a serious impact on all of this family’s life relationships. The complication is that that exemption does not make it clear and it does not specifically apply to the case before me as I am not hearing the criminal charges. However, I am dealing with the same facts that will require findings of fact by me.

Intention for Privilege to Apply 24 I find that the mediation contract is inconsistent and unclear with respect to the triggering mechanisms of privilege and the exceptions that Children’s Aid Society of London v. B. (C.D.) R. John Harper J. 347

might apply. Having said that, I find that the parties did intend to create privilege under certain circumstances. I find that to make an attempt to define when an exemption to the privilege would apply, such as where there are “criminal proceedings pending” and whether that would include charges against the eldest child, is not helpful to the determination I must make. I find that there is no guidance provided in the agreement in order to make that determination. I also find the exception provided in paragraph 6(b)(iii) of the agreement not to be helpful as the mediator never acted on that section during the process of mediation. 25 I intend to proceed on the premise that the parties did have a reasonable expectation that the process of mediation was privileged. The agreement is titled “Closed Mediation.” Confidentiality is defined in paragraphs 4 and 6. It is not unreasonable to interpret paragraph 6(a) as applying to situations where a final agreement is reached and paragraph 6(b) might be triggered even if one issue is not agreed to. I find that the first consideration in the Wigmore analysis is met. 26 With respect to the second consideration, I find this is also met. The parties determined that confidential communication during the mediation was essential to the continuation of the functioning of the mediation in which they were engaged. That is not changed by the vague and somewhat contradictory provisions I discussed above. 27 With respect to the third consideration, it is my view that when parties and a mediator opt for a closed mediation, they do so for an important purpose. This was outlined in Rudd v. Trossacs Investments Inc. (2006), 79 O.R. (3d) 687 (Ont. Div. Ct.) by Swinton J. at para. 32 when he cited from the article “Protecting the Confidentiality of Communica- tions in Mediation” (1998), 36 Osgoode Hall L.J. 667 at 671: The mediator encourages the parties to be candid with the mediator and each other, not just about their willingness to compromise, but also and especially about the needs and interests that underlie their positions. As those needs and interests surface, the possibility of finding a satisfactory resolution increases. The parties will be wary and guarded in their communications if they think that the information they reveal may later be used outside of the mediation process to their possible disadvantage. When they have resorted to mediation in an attempt to settle pending or threatened litigation, they will be particularly alert to the possibility that information they reveal to others in mediation may later be used against them by those others in that, or other, litigation. The parties may also be concerned that their communications might be used by other adversaries or potential adversa- 348 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

ries, including public authorities, in other present or future conflicts. The possibility of prejudice to legal rights, or of exposure to legal liability or prosecution, may not be a party’s only concern. Parties may also be concerned that disclosure of information they reveal in the mediation process may prejudice them in commercial dealings or embarrass them in their personal lives. Accordingly, mediation works best if the parties are assured that their discussions with each other and with the mediator will be kept confidential. 28 I am well aware of the importance of the protection of privilege in mediation. It should never be set aside lightly. It must only be done so when the balance of ensuring the integrity and fairness of the litigation at hand commands that it be done. In the case before me, the consequences to the children are extreme. One child faces serious criminal charges. The facts surrounding these charges are also the subject of my determination. The mother, in this case, has made a direct link between those charges and the historical conduct of the father. She claims that he has been abusive, controlling, and coercive, and that he has subjected the children to alienating behaviour such that he has significantly contributed to the events that culminated in the criminal charges. 29 Despite the fact that I view the agreement as confusing and poorly drafted, I find that the essential and more important analysis in this case needs to be the fourth consideration set out in Wigmore. In my view, the balancing of the issues of protection of privilege against the probative value of evidence that may be within the process falling within that protection is the most important task facing any court when dealing with children’s protection and wellbeing. This is especially so when the findings that I must make in this case will have extreme implications in the lives of these children and their parents. 30 One of the significant conclusions of the assessors is set out in the assessment report at page 76 as follows: The parental conflict in this family is extreme and reportedly efforts to negotiate on their own, in closed mediation and even at Court have proven highly problematic for the B. parents. This is not surprising with the context of a pattern of coercive controlling behavior by the father with his ex-partner and will be difficult to shift without clear direction from the Court and the willingness by Mr. C.B. to fully engage in therapy to address such unhealthy dynamics. 31 The assessors apparently accepted that the highly problematic efforts to negotiate were connected to coercive and controlling conduct on the part of the father. These two opinions raise the question of how this con- Children’s Aid Society of London v. B. (C.D.) R. John Harper J. 349

clusion was arrived at by the assessors. The only two persons, other than the lawyers, who talked to the assessors about the mediation process would have been the mother and the father. It is safe for me to assume that the father did not tell the assessors that he caused the mediation process to be highly problematic. It is more likely, on the balance of probabilities, that the mother talked about the father’s conduct during the process of the mediation. There is a legitimate concern that the mother waived any privilege if she had done this. Given that the mother, father and assessors have not testified, I am not prepared to make a finding that the mother waived privilege. However, I do find that in order to properly explore this very important issue with the parties and the assessors, it is necessary to allow the evidence of Paula DeVeto about the process into the evidence of this case. 32 There are certain issues, in this case, that are central to my findings of whether the children are in need of protection and, if so, the proper disposition. The mother asserts that the father is abusive and controlling and has alienated these children to such an extent that his conduct has, at least, contributed to the serious events that led to their oldest child M.T.B. being charged with attempted murder of his mother. On the other hand, the father asserts that the mother, over approximately the last two years, has had significant problems with alcohol and her behaviour has been erratic and confrontational with the children to the point that they fear her. The father further asserts that the mother has purposefully manipulated situations and made false allegations against him, including that the children have had to return from England without their father due to fear of his arrest because of the mother withdrawing herself as his surety. They were also present when their father was arrested on a number of occasions, as a result of what the father asserts are false allegations. The father submits that the children are realistically estranged from their mother and are not safe with her. 33 Within this context I heard five days of evidence of the mediator, Paula DeVeto. Ms. DeVeto testified on many of the issues that I have related that are central to my ultimate determination. Her evidence was largely a recanting of the concerns of the mother and the father at various times. Ms. DeVeto commented in the voir dire on the reasons she felt this case was extremely complex and often contradictory. She commented on her ability to continue as a mediator despite her contractual and statutory duty to report if she had any reasonable suspicion that any of the children or the other parent would be harmed. She testified during the voir dire that she came to certain conclusions relative to issues of 350 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

harm and possible parental alienation, not from the perspective of an as- sessor, but as someone who needed to understand the dynamics between the parties and the children in order to determine if she could assist the parties with appropriate solution options that were in the best interest of the children. In addition, the conclusions she reached relative to these issues would of necessity impact her reporting duties. I do not find that she was expressing opinion evidence that she was not qualified to give on the voir dire. 34 The process to enter into mediation, in this case, was started early in May 2010. This was shortly after C.B. had returned home from England. At that time, L.B. had obtained an ex parte order for the return of the children from England. She obtained that order from me in April 2010 on the basis of her affidavit in which she claimed that the father was refusing to return the children from England. That order was set aside by Campbell J. on May 26, 2010. The parties had by that time started the process to engage Ms. DeVeto as a mediator. 35 I find that Ms. DeVeto’s testimony is very important on the material facts that I must make findings on in this case. I will admit all of her evidence and put it in its proper context only after hearing all of the evidence in this case. I make no findings at this stage of the proceedings as to Ms. DeVeto’s credibility or the extent to which her evidence should be given any weight until I have heard all of the evidence. I will not place any limitations, at this stage, on what part of her evidence is to be admitted. I find that without hearing the other significant witnesses, it is not possible to segregate the parts of the evidence that would not be so probative as to clothe them with any form of privilege. 36 As a result of my analysis set out above, all of the evidence of Paula DeVeto on the voir dire will form Paula DeVeto’s evidence in this trial. Order accordingly. Mayson-Blacklaws v. Blacklaws 351

[Indexed as: Mayson-Blacklaws v. Blacklaws] RHONDA JODIE MAYSON-BLACKLAWS (PETITIONER) and BRIAN ROBERT BLACKLAWS (RESPONDENT) Saskatchewan Court of Queen’s Bench Docket: Moose Jaw D.I.V. 51/07 2011 SKQB 334 L.M. Schwann J. Judgment: September 13, 2011 Family law –––– Support — Child support under federal and provincial guidelines — Interim award –––– Parties married in 1996, had two children, and separated in 2006 — Following separation, parties agreed to shared parenting agreement — In May 2009, son began living with mother and refusing to see father — Father’s 2010 income was $68,728, and wife’s was $28,745 — Mother brought motion for interim child support, retroactive to May 2009 — Motion granted in part — Father was ordered to pay ongoing child support of $593 per month — Retroactive support was denied on interim application and instead matter was directed to pre-trial, and if necessary to trial — Evidence presented by mother was insufficient to address specified factors for retroactive awards. Cases considered by L.M. Schwann J.: Graham v. Tomlinson (2010), 2010 CarswellSask 561, 2010 SKCA 101, 87 R.F.L. (6th) 243, [2010] 11 W.W.R. 199, 324 D.L.R. (4th) 156, 359 Sask. R. 251, 494 W.A.C. 251 (Sask. C.A.) — considered R. (L.) v. T. (D.) (1998), 1998 CarswellSask 726, 178 Sask. R. 115, [1998] S.J. No. 733 (Sask. Q.B.) — referred to S. (D.B.) v. G. (S.R.) (2006), 61 Alta. L.R. (4th) 1, 31 R.F.L. (6th) 1, 391 A.R. 297, 377 W.A.C. 297, 2006 SCC 37, 2006 CarswellAlta 976, 2006 Carswell- Alta 977, 351 N.R. 201, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, [2006] 2 S.C.R. 231, [2006] S.C.J. No. 37 (S.C.C.) — followed S. (K.B.A.) v. S. (G.E.) (2006), 2006 SKQB 439, 2006 CarswellSask 588, 286 Sask. R. 16, [2006] S.J. No. 604 (Sask. Q.B.) — considered Ukrainetz v. Kessler (2009), 2009 CarswellSask 244, 2009 SKQB 115, 332 Sask. R. 294 (Sask. Q.B.) — considered Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) s. 2(1) “child” — referred to 352 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 s. 3 — referred to s. 7 — referred to

MOTION by mother for ongoing and retroactive interim child support.

Timothy Stodalka, for Petitioner Jeff Deagle, for Respondent

L.M. Schwann J.:

1 The petitioner, Rhonda Mayson-Blacklaws, applied in June of this year for interim child support under both s. 3 and s. 7 of the Federal Child Support Guidelines (SOR/97-175, as am.) (the “Guidelines”) in respect of the child, Rylan Brier Chase Blacklaws, born October 15, 1997. In addition to ongoing child support, she seeks a retroactive order dating back to May, 2009. 2 Rhonda and the respondent, Brian Blacklaws, were married on June 8, 1996 and separated on June 24, 2006. They have two children of the marriage – Rylan and Cayden Cheyne Thomas Blacklaws. Since the time of separation, the parties have experienced a high level of acrimony with regard to custody and access as evidenced by the many court applications on file. 3 A summary of the proceedings taken to date in relation to Rylan provides helpful context for purposes of this application. Following separation, Rhonda petitioned for divorce, custody, access, support and other related relief in 2007. Brian counter-petitioned. Ultimately, the parties agreed to a shared custody arrangement as reflected in the court order of McLellan J. of February 12, 2009. With regard to Rylan, the parties agreed that initially the primary residence was to be with Rhonda subject to a gradual ramping up of parenting time with Brian leading to a shared parenting arrangement on a week on / week off basis commencing in May, 2009. Cayden’s primary residence was to be with his father. (Cayden lives with neither father nor mother at the time of the within application.) 4 Things did not unfold as agreed. In early May, 2009 following an unfortunate incident between father and son, relations between Rylan and his father became strained to the point where Rylan refused to reside Mayson-Blacklaws v. Blacklaws L.M. Schwann J. 353

with or have anything to do with his father. He has resided with Rhonda ever since. At Rylan’s insistence, Brian has not exercised access since that time. This alienation prompted Brian to bring a “variation application” in relation to the February, 2009 order essentially seeking an order requiring Rylan to spend 50% of his time with his father and directing the parties and Rylan to counselling. 5 Ultimately a consent order was agreed to by the parties amending the earlier order which provided that Brian would temporarily refrain from exercising access pending counselling between the parties and Rylan. For various reasons given by the parties, counselling did not transpire. Brian brought another motion in March, 2010 to recommence access with Ry- lan on a graduated basis leading to alternating weeks of parenting. In response to this application, Rhonda said the following at para. 25 of her affidavit of April 9, 2010: 25. Amy Cruz has recommended a further custody and access assessment. The Respondent’s income is approximately $60,000.00 per year, and mine is $20,000.00. Although Rylan has been in my sole care for the past year, the Respondent has not paid me any child support. I seek that he pay for any further custody and access assessment, or any Voices of a Child Report. ... 6 It is worthy of note that while Rhonda chose to oppose Brian’s applications, she did not concurrently apply for child support even though this issue could have been easily addressed at the same time. That said, Brian’s failure to pay child support was flagged by her in para. 25 above in 2010 after Rylan had been in her sole care for a year. In any event, although the matter proceeded, it appears as though no order was made such that the prior “amending order” remains in effect. 7 A year passed and in March, 2011, Rhonda applied for permission to obtain a passport for Rylan and for Brian’s out-of-country travel authori- zation. The parties agreed and a consent order issued. Rhonda’s motion was accompanied by a notice to file income information served upon Brian’s then counsel in March, 2011. Brian did not respond to this demand for income information. 8 Nothing further transpired until the present application. 354 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

On-going Child Support 9 At the time of the hearing, Brian’s counsel agreed to an ongoing support order of $593.00 per month taking effect on March 1, 2011, along with payment by him of his proportionate share of s. 7 expenses. 10 Brian’s line 150 income set out in his 2010 tax return is $68,728.00 and Rhonda’s is $28,745.00. Counsel for Rhonda urges me to use Brian’s current pay stub to extrapolate his 2011 income. This approach, however, assumes the same level of overtime pay for the remainder of the year which may not prove to be the case. For this reason, and because his “projected” 2011 income is not significantly higher than 2010, I have chosen to fix Brian’s income at $68,728.00 for purposes of child support. 11 An order shall therefore issue requiring the respondent, Brian Robert Blacklaws, having an income of $68,728.00 per year, to pay Rhonda the sum of $593.00 per month for the support of Rylan Brier Chase Blacklaws, born October 15, 1997, commencing on March 1, 2011. This order shall remain in effect until Rylan ceases to be a child with the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) or until further order of this Court. The sum of $593.00 shall be paid by the respondent to the petitioner on the first of each and every month, with the September support payment payable forthwith. In addition to monthly child support, support payments for the months of March to August, 2011 inclusive ($593.00 × 6 months = $3,558.00) shall be paid at the rate of $250.00 per month on the first of each and every month until the full amount of $3,558.00 has been paid. 12 Rhonda’s financial statement filed in June of 2011 itemizes expenses Rhonda has incurred for Rylan’s dental care and extracurricular activities in the recent past. Apart from “hotels and meals” for hockey trips, except to the extent same are incurred for Rylan, the list seems reasonable and I see no reason why Brian should not be required to contribute. By all accounts Rylan is a gifted athlete, but his participation comes at a cost which should be borne by both parents. 13 Therefore, I order that in respect of extraordinary expenses incurred from March 1, 2011 and onward, each of the parties will contribute in proportion to their 2010 income. With Brian’s income fixed at $68,728.00 and Rhonda’s at $28,745.00, Brian’s proportionate share is 70% and Rhonda’s is 30% at this time. The parties should consult upon any extraordinary expense exceeding $300.00, otherwise one parent shall reimburse the other for his or her proportionate share of any extraordi- Mayson-Blacklaws v. Blacklaws L.M. Schwann J. 355

nary expense within 30 days of receipt of a copy of the statement or invoice from the payor parent.

Retroactive Child Support 14 Rhonda also seeks child support retroactive to May, 2009. On an application of this nature, the first issue to be determined is whether a retroactive order can be granted on an interim basis. Brian’s counsel contends the relief requested is either unsupported by the facts or should not be granted on an interim basis. Indeed, there is support for this proposition (R. (L.) v. T. (D.) (1998), 178 Sask. R. 115 (Sask. Q.B.); S. (K.B.A.) v. S. (G.E.), 2006 SKQB 439, 286 Sask. R. 16 (Sask. Q.B.)). 15 Counsel for Rhonda, on the other hand, points to the recent Saskatch- ewan Court of Appeal decision in Graham v. Tomlinson, 2010 SKCA 101, 359 Sask. R. 251 (Sask. C.A.) which concluded that in the appropriate circumstance a Chamber’s judge may make a retroactive order on an interim basis. At paras. 26 and 27, Jackson, J.A., speaking for the Court, said: [26] ... There is, however, another line of authority that has held that retroactive child support may be ordered on an application for interim child support when the facts and law relative to that issue are not in dispute and there is no triable issue: ... [27] After having reviewed these authorities, the Court prefers the line of cases that permits a Chambers judge to award retroactive child support on an interim application when the relevant facts and law are not in dispute. Such an award remains an interim order, and in principle subject to variation, but once the issue of retroactive support is concluded in Chambers in a clear case, the parties may find it unnecessary to further address the issue by way of a pre-trial conference or a trial. (emphasis added) 16 In my opinion, a proper reading of the Graham decision, along with the cases which underpin it, does not establish an irrefutable right to a retroactive order on an interim application. Indeed, as the underlined words above make clear, an interim order is only open to a Chamber’s judge when “the facts and law relative to that issue are not in dispute and there is no triable issue”. This approach accords with the earlier decision in Ukrainetz v. Kessler, 2009 SKQB 115, 332 Sask. R. 294 (Sask. 356 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Q.B.) where Popescul J. outlined circumstances when the exception could arise. He said, at para. 10: [10] ... However, this general rule is qualified by the exception that courts will do so in the clearest of circumstances or in exceptional circumstances. In this case, the facts are clear and the circumstances are somewhat unique in that the court is being asked to rule on a specific finite period of time (January 4, 2008 - January 22, 2009) and all other matters have been resolved. Although the orders being sought are merely interim, it appears that a trial is unlikely, unless one is required to resolve the current dispute. The child will turn 17 years old in July. All other issues have been resolved by consent. The facts are largely undisputed and the amount of money involved is relatively small. It would be, under these circumstances, an unnecessary expenditure of time, energy and resources to set this lone issue down for trial when the relevant facts are clear and future judicial intervention will likely not be necessary. 17 In contrast, as observed by Wilkinson J. in S. (K.B.A.) v. S. (G.E.), supra, where the facts are in dispute and the circumstances not quite so clear in relation to the detailed review required on such applications, the matter ought not be determined on an interim application. At para. 13 she says: [13] There is nothing in the Supreme Court’s recent pronounce- ments on retroactive support that calls into question the prior decisions of this Court that the issue is not a matter that can be determined on interim application. If anything, the Su- preme Court of Canada’s call for a detailed review and a delicate balancing of the many relevant factors at play under- scores the importance of adjudicating the issue on oral evidence, tested by cross-examination. ... 18 The “detailed review” or factors considered in determining whether retroactive child support should be ordered are those articulated by the Supreme Court of Canada in S. (D.B.) v. G. (S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231 (S.C.C.). As Bastarache, J. observes at paras. 95 and 96 of that decision, the granting of a retroactive order should not be presumed and the Court’s discretionary authority must be assessed within an appropriate factual framework. He says, at paras. 95 and 96: [95] It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so Mayson-Blacklaws v. Blacklaws L.M. Schwann J. 357

where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one’s children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. [96] Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. Prospective awards serve to define a new and predictable status quo; retroactive awards serve to supplant it. 19 Those factors include consideration of why support was not sought earlier, the conduct of the payor parent, the circumstances of the child, and any hardship occasioned by a retroactive award. As the Supreme Court observes, no one factor is decisive; courts should instead take a holistic view of the matter and the particular factual matrix presented. 20 This brings me to the matter before me. Although the award sought covers a specific period of time and most (but not all) of the matters between the parties have been resolved, I conclude the evidence presented is insufficient to address the specified factors. As noted by this Court in S. (K.B.A.) v. S. (G.E.), supra the Supreme Court’s decision in S. (D.B.) calls for a detailed review and a delicate balancing of the many relevant factors at play. Having reviewed the evidence presented, I re- grettably conclude that it does not provide a sufficient factual foundation for that review to take place nor does it allow Brian to properly respond. Accordingly, I decline to grant a retroactive support order on the basis of an interim application and instead direct this matter to pre-trial, and if necessary to trial.

Costs 21 Although the results are mixed, I have decided to grant costs to the applicant in the fixed amount of $800.00 in recognition of Rhonda’s need to bring this application in the face of Brian’s clear obligation to support Rylan. Although this amount falls short of what she seeks for costs, Brian ultimately consented to an ongoing order retroactive to March of 358 REPORTS OF FAMILY LAW 9 R.F.L. (7th) this year, and the applicant has already been awarded costs when this matter first came before this Court. Motion granted in part. Shaw v. Shaw 359

[Indexed as: Shaw v. Shaw] Frank Kevin Shaw (Applicant) and Suzanne Shaw (now known as Suzanne Brunelle) (Respondent) Ontario Superior Court of Justice Docket: 07-FL-2834 2012 ONSC 590 Blishen J. Heard: February 22-25, May 16-20, 24-25, 2011 Judgment: January 26, 2012 Family law –––– Division of family property — Events after separation — Sale or dissipation of assets — Compensation –––– Parties married in August 2006 and separated in August 2007 when husband was criminally charged with assaulting wife — Parties had adult children from previous marriages — Hus- band inherited certain items from first wife and silver from mother (“items”) — Matrimonial home was ordered sold to husband — Wife moved belongings from matrimonial home to new residence — Husband took possession of matrimonial home after wife’s departure — Some boxes containing items remained in home — Husband alleged that wife removed items — Whereabouts of missing silver was not determined — Parties reached partial minutes of settlement for division of property with equalization payment of $40,000 payable by wife, subject to determination of location and value of missing items — Husband applied for various corollary relief, and issue arose as to missing items — Onus was on husband to prove on balance of probabilities that items were located in matrimonial home when he left — Evidence of exact number and value of items missing from first wife’s estate was weak — Wife had de facto exclusive possession of boxes of items and their contents until she left home — Husband’s son removed unidentified items from home — Based on evidence, missing items found in wife’s possession were worth at least $10,000 on date of separation — Sum of $10,000 was added to equalization payment of $40,000 that wife owed to husband. Family law –––– Division of family property — Valuation of specific assets — Miscellaneous. Torts –––– Trespass — Trespass to person — Assault and battery — Miscel- laneous –––– Parties married in August 2006 and separated in August 2007 when husband was criminally charged with assaulting wife — Courtship was very short — Wife took early retirement and gave up home to marry husband — Wife felt ignored by husband — Husband argued that wife was constantly jeal- 360 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

ous — Husband allegedly lifted and pushed wife out of front door onto walkway during argument — Wife suffered severely fractured wrist — Wife told husband’s son that his dad had thrown her out of house — Husband alleged that wife accidentally fell on walkway — Husband was charged with assault causing bodily harm but found not guilty — Wife brought claim for damages, and issue arose as to whether there was battery — Wife needed to prove that husband intentionally caused harmful contact — Determination as to whether battery occurred was to be made on balance of probabilities — Wife’s statement to husband’s son and hospital staff was corroborated by statement to police — Husband either pushed or threw wife out of house, thereby causing severe fracture to wife’s right wrist — Husband committed intentional tort of battery. Remedies –––– Damages — Damages in tort — Personal injury — Princi- ples relating to awards of general damages — Assault and battery — Mis- cellaneous –––– Parties married in August 2006 and separated in August 2007 when husband was criminally charged with assaulting wife — Wife, aged 59, suffered spiral fracture to right wrist after husband threw her out of house onto walkway — Wife required surgery to dominant right wrist, was in cast for six weeks and required extensive physiotherapy — Wife remained with long scar and suffered from chronic pain — Wife also suffered from significant depression — Wife brought claim for damages — Claim allowed — Husband ordered to pay general damages of $65,000 — Impact of injury on wife was significant and life-altering — Parties were married for only one year when husband violently ejected wife from home — Violence was perpetrated by individual whom wife should have been able to trust — Wife was physically injured and suffered psychological damage due to husband’s conduct — Amount of award included aggravating factors in case. Remedies –––– Damages — Exemplary, punitive and aggravated damages — Grounds for awarding exemplary, punitive and aggravated damages — Assault and battery — Miscellaneous –––– Parties married in August 2006 and separated in August 2007 when husband was criminally charged with assaulting wife — Wife, aged 59, suffered spiral fracture to right wrist after husband threw her out of house onto walkway — Wife required surgery to dominant right wrist, was in cast for six weeks and required extensive physiotherapy — Wife remained with long scar and suffered from chronic pain — Wife also suffered from significant depression — Wife brought claim for damages — Claim allowed — Husband ordered to pay general damages of $65,000 — Pur- suant to Supreme Court authority, “punitive damages were designed to punish, whereas aggravated damages were designed to compensate” — Impact of injury on wife was significant and life-altering — Parties were married for only one year when husband violently ejected wife from home — Violence was perpetrated by individual whom wife should have been able to trust — Wife was physically injured and suffered psychological damage due to husband’s con- Shaw v. Shaw 361

duct — Amount of award included aggravating factors in case — Husband’s conduct was reprehensible and extreme but did not warrant award of punitive damages in order to punish him and deter him and others from committing similar act. Remedies –––– Damages — Damages in tort — Personal injury — Prospec- tive pecuniary loss — Loss of opportunity — Miscellaneous –––– Loss of competitive advantage — Parties married in August 2006 and separated in Au- gust 2007 when husband was criminally charged with assaulting wife — Wife, school teacher, took early retirement to marry husband — Wife, aged 59, suffered spiral fracture to right wrist after husband threw her out of house onto walkway — Wife required surgery to dominant right wrist, was in cast for six weeks and required extensive physiotherapy — Wife remained with long scar and suffered from chronic pain — Wife also suffered from significant depression — Wife brought claim for damages — Claim allowed — Husband ordered to pay loss of opportunity costs of $25,000 — Damages for loss of competitive advantage could be awarded where injury could have impact on plaintiff’s future employability — Wife’s marketability and employability as employee or self- employed life insurance agent was substantially affected by her injury — Wife could not even work as supply teacher — Due to injury, wife could only work minimal hours — Without suffering wrist injury, wife would have been able to earn at least $10,000 to $15,000 by supply teaching part-time — With her injury, wife would only be able to earn approximately $2,700 to $4,200 annually for five years. Remedies –––– Damages — Damages in tort — Personal injury — Cost of future care — Miscellaneous –––– Homemaking aids, housekeeping and outdoor maintenance assistance. Cases considered by Blishen J.: Andrews v. Grand & Toy Alberta Ltd. (1978), 1978 CarswellAlta 214, 1978 CarswellAlta 295, [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452, 19 N.R. 50, [1978] 1 W.W.R. 577, 8 A.R. 182, 3 C.C.L.T. 225, [1978] S.C.J. No. 6 (S.C.C.) — followed Cerilli v. Ottawa (City) (2006), 30 M.P.L.R. (4th) 110, 2006 CarswellOnt 7828, [2006] O.J. No. 4850 (Ont. S.C.J.) — considered Honey v. Gamache (February 28, 1997), Doc. 4122A/91, [1997] O.J. No. 5820 (Ont. Gen. Div.) — referred to Norberg v. Wynrib (1992), [1992] 4 W.W.R. 577, [1992] 2 S.C.R. 226, 92 D.L.R. (4th) 449, 12 C.C.L.T. (2d) 1, 9 B.C.A.C. 1, 19 W.A.C. 1, 138 N.R. 81, 68 B.C.L.R. (2d) 29, 1992 CarswellBC 907, 1992 CarswellBC 155, [1992] R.R.A. 668, [1992] S.C.J. No. 60, EYB 1992-67036 (S.C.C.) — considered O’Day v. Facoetti Estate (2002), 2002 CarswellOnt 2103, [2002] O.J. No. 2374 (Ont. S.C.J.) — referred to 362 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

R. v. C. (D.A.R.) (2002), 2002 CarswellPEI 89, 2002 PESCAD 22, 170 C.C.C. (3d) 64, 218 Nfld. & P.E.I.R. 329, 653 A.P.R. 329, [2002] P.E.I.J. No. 91 (P.E.I. C.A.) — referred to R. v. Cudjoe (2009), 2009 ONCA 543, 2009 CarswellOnt 3726, 251 O.A.C. 163, 68 C.R. (6th) 86, [2009] O.J. No. 2761 (Ont. C.A.) — referred to R. v. MacDonald (2002), 2002 CarswellOnt 4104, 166 O.A.C. 121, 170 C.C.C. (3d) 46, [2002] O.J. No. 4657 (Ont. C.A.) — referred to R. v. Middleton (2007), 227 O.A.C. 59, 2007 CarswellOnt 4722, 2007 ONCA 538, [2007] O.J. No. 2900 (Ont. C.A.) — referred to R. v. Q. (M.) (2010), 2010 CarswellOnt 513, 2010 ONSC 61, [2010] O.J. No. 378 (Ont. S.C.J.) — referred to Shaw v. Brunelle-Shaw (2008), 2008 CarswellOnt 5815 (Ont. S.C.J.) — referred to Weingerl v. Seo (2005), 2005 CarswellOnt 2474, 199 O.A.C. 172, 256 D.L.R. (4th) 1, [2005] O.J. No. 2467 (Ont. C.A.) — considered Statutes considered: Courts of Justice Act, R.S.O. 1990, c. C.43 s. 128 — referred to Family Law Act, R.S.O. 1990, c. F.3 s. 4(1) — pursuant to s. 4(2) — pursuant to

DETERMINATION of issues of equalization payment and wife’s claim for damages for battery.

Ross Stewart, for Applicant Michele Labrosse, Richard Shanbaum, for Respondent

Blishen J.: Introduction 1 This case involves a number of family law claims as well as Ms. Brunelle’s claim for damages resulting from an alleged assault by Mr. Shaw. It was agreed that the trial be divided into two parts, the first to deal with the parties’ family law claims and the second, Ms. Brunelle’s claim for damages. 2 Prior to trial, the parties resolved the majority of the family law issues including spousal support and the disbursement of the balance of net proceeds of sale of the matrimonial home, by partial Minutes of Settlement dated February 23, 2011. It was agreed that the division of net family property be by way of an equalization payment from Suzanne Brunelle, to Kevin Shaw in the amount of $40,000.00, subject to a determination Shaw v. Shaw Blishen J. 363

of the location, possession and value of certain items from: (1) the parties’ family property; (2) the estate of Jane Shaw, Kevin Shaw’s mother; and (3) the estate of Madelaine Shaw, Mr. Shaw’s former wife. 3 It was agreed that pursuant to s. 4(2) of the Family Law Act, R.S.O. 1990, c. F.3, the value of any assets inherited by Mr. Shaw from his mother after the date of marriage would normally be excluded from a calculation of his net family property. Further, it was agreed that pursuant to s. 4(1) of the Family Law Act any assets inherited by Mr. Shaw from the estate of his late wife, Madeline Shaw, prior to the date of marriage, would be deducted in calculating Mr. Shaw’s net family property.

Background 4 The parties were involved in a short term marriage between August 18, 2006 and August 22, 2007. Both had been previously married and both have two adult children from those marriages. Ms. Brunelle was a high school teacher in Toronto. She met Mr. Shaw in August 2005 while doing some part-time work with World Financial Group (WFG). The relationship developed quickly. At Mr. Shaw’s request, Ms. Brunelle took early retirement from the Toronto District School Board in May 2006 and moved to Ottawa to reside with him. They were married in Victoria, B.C. on August 18, 2006. Mr. Shaw was, and continues to be, a branch manager for World Financial Group in Ottawa. 5 At the time of marriage, the parties resided in Mr. Shaw’s home at 6033 Meadowhill Crescent, Ottawa. In the fall of 2006 they moved to the matrimonial home at 1658 Autumn Ridge Drive, Ottawa. At the time of separation, the parties were residing in the matrimonial home with Mr. Shaw’s two children from his previous marriage, Jason and Byron Shaw who were then 20 and 16 years old respectively. 6 The parties separated on August 22, 2007, when Mr. Shaw was criminally charged with assaulting Ms. Brunelle. As a result of an incident between the parties on August 22, 2007, Ms. Brunelle suffered a serious fracture to her right wrist, which required surgery and the insertion of screws and a metal plate. Mr. Shaw was ordered not to attend the matrimonial home nor to have any contact with Ms. Brunelle. When he left the home he took only a few personal items and for some time resided at his office on Youville Drive in Ottawa. Jason and Byron Shaw continued to reside in the matrimonial home with Ms. Brunelle until early October 2007. From October, 2007 to May 14, 2008 the only person residing in the matrimonial home on Autumn Ridge Drive was Ms. Brunelle. 364 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

7 In October 2007, Mr. Shaw brought an Application, amended on consent on January 26, 2011, requesting, among other things, an unequal division of net family property and exclusive possession of the matrimonial home and its contents. In her Answer, Ms. Brunelle requested spousal support, exclusive possession of the matrimonial home and contents and damages for the intentional infliction of physical and emotional harm, the amount of which was to be further specified. 8 On March 17, 2008, Hackland RSJ ordered the matrimonial home be sold to Mr. Shaw for $510,000 with the net proceeds of sale to be held in trust. The sale was to be finalized and vacant possession provided to Mr. Shaw on May 15, 2008. 9 Ms. Brunelle found alternate accommodation and left the matrimonial home on May 14, 2008. Two to three weeks prior to her move, she began to move items from the matrimonial home to her new residence. On May 15, 2008, Mr. Shaw took possession of 1658 Autumn Ridge Drive and continues to reside there. 10 On October 6, 2008, Ratushny J. [2008 CarswellOnt 5815 (Ont. S.C.J.)] ordered Mr. Shaw pay Ms. Brunelle $1,000.00 a month spousal support. She further ordered $90,000.00 from the net proceeds of sale of the home released to Ms. Brunelle. Pursuant to the partial Minutes of Settlement, spousal support terminated April 30, 2011. 11 On December 18, 2008 after trial, Mr. Shaw was found not guilty of assault causing bodily harm to Ms. Brunelle. 12 Ms. Brunelle, who is now 63 years old, resides alone and maintains herself on some self-employment and pension income. According to her February 16, 2011 Financial Statement, without spousal support, her annual income is approximately $52,690.00. She continues to suffer pain and some disability due to the fracture of her right wrist which has required therapy, rehabilitation and medical care. 13 Mr. Shaw continues to reside in the former matrimonial home and to work as a branch manager for WFG. His February 3, 2011 Financial Statement indicates an annual income of $60,926.16.

Property Issues Positions of the Parties 14 Mr. Shaw alleged three categories of missing items (Exhibit 1) were in the matrimonial home and in Ms. Brunelle’s possession from August 22, 2007 until his return on May 15, 2008. He argued an inference can be Shaw v. Shaw Blishen J. 365

drawn that the items were either removed or disposed of by Ms. Brunelle, prior to or on May 14, 2008. The categories are: 1. items inherited by him prior to marriage from the estate of his late wife, Madeline Shaw; 2. items inherited from the estate of his late mother, Jane Shaw, during the marriage; and 3. household items and furniture to which he was at least partially entitled. 15 Ms. Brunelle argued that, with a few exceptions, she did not see nor have in her possession the items from Madeline Shaw’s estate, nor the items from Jane Shaw’s estate, while residing in the matrimonial home from August 22, 2007 to May 14, 2008. She testified she does not know the location of those items and denied removing or disposing of them. She further argued that the items listed in category three of Exhibit 1 were largely joint purchases. When she left the matrimonial home, she took all items that belonged to her prior to marriage, along with what she considered a fair share of items jointly purchased. 16 At the end of part one of the trial, Mr. Shaw proposed a resolution regarding the items in category three, by an order that Ms. Brunelle return the IBM laptop computer and the light fixture that had been over the dining room table, whereas Ms. Brunelle offered to return an oil painting Mr. Shaw alleged was a gift from his sister and which he valued at $10,000.00. 17 Based on a review of the relevant evidence including photographs filed (Exhibits 4, 7) and the DVD (Exhibit 2) and based on the proposed resolution by both parties, I order Ms. Brunelle to return to Mr. Shaw the laptop computer and the former dining room light fixture. The only remaining items in dispute are those from Madelaine and Jane Shaw’s estates.

Issues 18 Has Mr. Shaw met the burden of proving on a balance of probabilities the following: 1. The estate items listed in categories one and two of Exhibit 1 were located within the matrimonial home on Autumn Ridge when he left on August 22, 2007. 2. Ms. Brunelle was in possession of the matrimonial home and its contents including the items in question. 366 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

3. There is evidence or it can be inferred that Ms. Brunelle either removed or disposed of the items. 4. The appropriate values of the items to be imputed to Ms. Brunelle are those outlined by Mr. Shaw in Exhibit 1 with attachments. 19 The credibility of the parties is important in determining these issues.

Items from Madelaine Shaw’s estate 20 In Exhibit 1, Mr. Shaw lists 25 missing items from his former wife’s estate that he alleges were left in the matrimonial home on August 22, 2007. His evidence regarding these items was minimal. 21 Mr. Shaw testified that before she died Madelaine made a list of items and to whom they should be bequeathed. Mr. Shaw did not produce the list. He did not provide any evidence as to: (1) what items he was to receive; (2) where they were located in the first home; (3) whether they were used by the family; (4) whether some or all were packed to be moved; (5) how they were packed; (6) whether they were ever unpacked or used in the new home; and (7) if unpacked, where they were located in the new home. Four people resided in both homes: Mr. Shaw, Ms. Brunelle, Jason Shaw and Byron Shaw. Unfortunately Jason Shaw did not testify and Byron Shaw provided no evidence regarding any of the items from his mother’s estate. 22 Mr. Shaw testified that jewellery, which he valued at $17,500.00, was worn by Madelaine days before she died on February 23, 2005, was then placed in her jewellery box. It was never placed in the home safe on Autumn Ridge. Mr. Shaw provided no explanation as to why over two years later when he left the matrimonial home, this very expensive jewellery would still be left in a jewellery box. 23 Ms. Brunelle testified she had seen this jewellery but it was replaced in the household safe. The only individuals with the combination to the safe were Mr. Shaw and his son Jason. 24 Ms. Brunelle went through each item listed by Mr. Shaw and provided evidence as to whether she had ever seen the item in the matrimonial home and, if so, where and what transpired with respect to it. She testified she never saw the jewellery in the new matrimonial home, nor the Christmas china, Dansk items, silver goblets, porcelain vase, painting, mirror or other jewellery in the jewellery box. It was Ms. Brunelle’s recollection that all the valuable jewellery was kept in the safe to which she did not have the combination. She did see the fine china in the Shaw v. Shaw Blishen J. 367

kitchen cupboards but indicated that she never used this china as she had her own and the couple seldom entertained. With respect to Madelaine’s dresses, Ms. Brunelle testified she last saw them in the first home. Mr. Shaw gave them away when they moved. The silver goblets referred to by Mr. Shaw were last seen by Ms. Brunelle in the original home. Mr. Shaw referenced some patio furniture some of which Ms. Brunelle acknowledged removing. Ms. Brunelle testified that the paints and paint brushes Mr. Shaw valued at $3,500.00, were seen by her at both houses. She recalled seeing them in the corner in the back room of the basement. It was her evidence that the paints were dried up and Byron took some of the brushes. 25 There are difficulties with Mr. Shaw’s valuation of these items as follows: 1. He provides replacement values not fair market values as of the date of separation. 2. There is no evidence as to when these items were purchased, the specific nature of a number of the items and their appraised value on the separation date; 3. Mr. Shaw provides computer printouts and E-Bay values for a number of the items. This is clearly not evidence that can be af- forded much weight. Given the number of items and the value attributed to them by Mr. Shaw, the onus was on him to provide expert evidence. 4. Mr. Shaw provided no direct evidence as to: the manufacturer or pattern of the dinnerware or flatware, when it was purchased, what was the cost, how many pieces were in the set, the value of the pieces, etc. He simply attached computer printouts and asks the court to assume that these were the items. There was no direct evidence in this regard. 26 Finally, it is to be emphasized that this is a family law proceeding. As was noted at the outset, any items that Mr. Shaw received from his first wife’s estate that were brought into the marriage would be considered pre-marital deductions from his net family property. As the net family property noted on his NFP statement equals zero, then such deductions would make no difference. 27 In conclusion, given the weaknesses in the evidence with respect to location, possession, and valuation, I do not find Mr. Shaw has met the 368 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

onus on him with respect to the items from Madelaine Shaw’s estate. There will be no order with respect to those items.

Items from the estate of Frank and Jane Shaw 28 Mr. Shaw testified that he received certain items from his parents prior to their death which were in the matrimonial home on August 22, 2007. Included were: a rocking chair, Royal Dalton figurines, a Royal Dalton foot warmer, Toby jugs and mugs, Pinwheel crystal and a pine bookcase with doors. He provided no evidence as to when he received those items, although his sister, Brenda Marin-Link, testified that some items were distributed in 1999. As with the items from Madelaine Shaw’s estate, Mr. Shaw provided no evidence as to the location in the first home; if they were moved; the location in the second home and whether the items were used by the family. Again, Jason Shaw did not testify and Byron Shaw who was a witness provided no evidence regarding these items. 29 Ms. Brunelle testified as follows: the rocking chair was a rocking chair she inherited from her father. She was aware of the Royal Dalton figurines but last saw them in the original matrimonial home stored by Mr. Shaw in his socks. The pine bookcase she alleges was left in the garage at the Autumn Ridge home. 30 I do not find Mr. Shaw to have met the onus upon him with respect to these items. In fact, at the end of part one of the trial, Mr. Shaw no longer requested an order with respect to those items. 31 Mr. Shaw testified, corroborated by his sister, that he received a number of boxes containing what he understood to be items of silver purchased by his mother and bequeathed to him. They had been packed and sent by his sister Ms. Marin-Link prior to Jane Shaw’s death on or about August 19, 2007. Mr. Shaw testified the boxes were delivered to the Au- tumn Ridge home but he never opened them prior to leaving on August 22, 2007. When he returned to the home on May 15, 2008, the boxes had been opened from the bottom and taped. When he looked in they were empty. Mr. Shaw testified that between May 15 and May 29 he put together a list of items he considered missing. It is unclear how he knew exactly which items were missing as he had no master list of what had been sent by his sister. Ms. Marin-Link returned to the Autumn Ridge home later that summer and assisted Mr. Shaw in making a list. 32 Ms. Marin-Link testified that Mr. Shaw spread out the silver items and she noticed right away the silver tea service was gone. She then Shaw v. Shaw Blishen J. 369

listed from memory other missing items she had shipped to her brother. Values for those items were later obtained by Ms. Marin-Link by con- sulting with the Manager of Birks and the Birks’ website. Mr. Shaw argued there was sufficient evidence to prove on a balance of probabilities certain items were in Ms. Brunelle’s possession and were missing. He requested the value of those items, $18,100.00, be added to the equalization payment owing to him. 33 Ms. Marin-Link testified that after her father’s death her mother came to live with Ms. Marin-Link and her husband in Sidney, British Colum- bia. Prior to her mother’s death, the items which had previously been identified to go to Mr. Shaw, were packaged by Ms. Marin-Link in what she recalls to be five (5) or six (6) boxes and were sent. Mr. Shaw testified that sometime prior to his mother’s death, in August 2007, he received a number of boxes from his sister which he did not open. When Ms. Marin-Link arrived on August 22, 2007, Ms. Brunelle was in the hospital and Mr. Shaw had been charged with assault and required to leave the home. Ms. Marin-Link recalled Jason showing her some of the boxes in the basement on that occasion and again when she returned to the matrimonial home on September 22, 2007. 34 Ms. Brunelle testified she also saw the boxes in the basement but paid no attention to them. The basement was extremely disorganized, messy, and piled high with Mr. Shaw’s junk including a piano and the boxes. In addition, she testified Jason was doing some renovations in the basement. This was confirmed by Ms. Marin-Link who testified Jason showed her the bar he was building in the basement and where the boxes were located. 35 Ms. Brunelle indicated that after Mr. Shaw left the matrimonial home on August 22, 2007, both Jason and Byron remained in the matrimonial home with her until early October, 2007. Byron Shaw confirmed this evidence. Ms. Brunelle testified Jason had a number of friends over and a number of parties which were disruptive to her, particularly as she was in pain due to her broken wrist. In addition, Jason fixed the lock on the back door so his friends could go in and out at their leisure. 36 When Jason moved out of the matrimonial home in early October, a few days before Byron, he had friends helping him. According to Ms. Brunelle they removed a number of items from the home, including a large television. She was unable to determine exactly what was taken. When Ms. Brunelle asked Jason to give her a list of the items he was 370 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

removing, he stated it was only his stuff and she was not his mother. He ignored her request. 37 Byron Shaw testified the boys did have parties and friends over to the home, but less so during the last month they were there. He denied that something had been done to the back door lock. Byron did not provide any evidence as to what happened on the day Jason left the home. Unfor- tunately, Jason Shaw did not testify. 38 I found both Mr. Shaw and Ms. Brunelle consistent in testifying. Neither was shaken under cross-examination. Ms. Brunelle’s evidence was more extensive and detailed. Mr. Shaw’s evidence as to the items sent was to some extent corroborated by the testimony of his sister. 39 As noted above, the onus is on Mr. Shaw to prove on a balance of probabilities the items were located in the matrimonial home when he left on August 22, 2007 and they remained in the possession of Ms. Brunelle. There are a number of weaknesses in the evidence of Mr. Shaw and Ms. Marin-Link regarding the specific items as follows: 1. It is unclear how many boxes were sent by Ms. Marin-Link. She thought she sent five or six but was not sure. She saw only four boxes in the home. Mr. Shaw gave no evidence on this issue. Only four boxes were in the home when Mr. Shaw returned in May 2008. 2. Neither Mr. Shaw nor Ms. Marin-Link indicated exactly when the boxes were sent and when they arrived, although it was sometime before Ms. Jane Shaw’s death. 3. Ms. Marin-Link could not recall how she sent the items whether through a moving company or by parcel delivery. 4. There was no evidence from either a moving or delivery company. No invoices or other documentary evidence was provided as to what items were sent and whether they all arrived safely. 5. Ms. Marin-Link did not provide the original list, if there was one, as to what exactly was sent and therefore had to rely on her memory. She also acknowledged she was packing up other items to send to her children at the same time. 6. Mr. Shaw says that he noticed a problem with the boxes when he returned to the home May 15, 2008 and began making a list at that time. It is unclear how he would know exactly what was missing during that time frame. It was not until later in the summer when Shaw v. Shaw Blishen J. 371

Ms. Marin-Link returned to the matrimonial home that she was able to help in compiling a list. 7. Ms. Marin-Link made a list of replacement values from discussions with a Birks’ Manager and the Birks’ website. This is hearsay evidence. There is no evidence from any expert appraiser as to the fair market value of the items on the date of separation or whether their value would have appreciated or depreciated since the date of purchase. There is no evidence as to specifically when they were purchased. 40 Nevertheless, having considered and weighed all the evidence, I find on a balance of probabilities the following: 1. Ms. Marin-Link sent Mr. Shaw a number of boxes containing items of silver purchased by her mother from Birks sometime prior to her mother’s death. 2. Some of the boxes of silver arrived and were placed in the basement of the matrimonial home; 3. These boxes remained in the matrimonial home when Mr. Shaw left on August 22, 2007. 4. Jason Shaw left the home in early October 2007 with some unidentified items. There was no evidence that he took individual items of silver. Byron left a few days later with no items of silver. 5. After Jason and Byron left the home, Ms. Brunelle resided alone in the matrimonial home until May 14, 2008. 6. Two or three weeks prior to leaving the home, Ms. Brunelle began moving furniture and other items to her new residence. There was no independent evidence from friends, a moving company, or otherwise as to the exact nature of the items removed. 7. Some of the boxes shipped by Ms. Marin-Link remained in the home and were there when Mr. Shaw returned. They appeared to have been opened and re-taped on the bottom. Ms. Brunelle had de facto exclusive possession of those boxes and their contents until she left the home. 8. Items of silver contained in three or four boxes were missing. Ms. Marin-Link provided some evidence as to replacement values obtained from Birks. Mr. Shaw ultimately claimed $18,100. 41 Although the evidence as to the exact number of items missing and their value is weak, based on the testimony and evidence provided by 372 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Mr. Shaw and Ms. Marin-Link, I find that the missing items were in Ms. Brunelle’s possession and were worth at least $10,000 on the date of separation. Therefore, $10,000 is to be added to the equalization payment owed by Ms. Brunelle to Mr. Shaw for a total payment of $50,000.

Claim for Damages 42 The second part of the trial dealt with the claim by Ms. Brunelle for damages due to an alleged assault by Mr. Shaw on August 22, 2007. On February 25, 2011 Ms. Brunelle filed an amended Answer detailing her claim. An amended Reply was filed by Mr. Shaw.

Issues 43 The amended pleadings raise the following issues: 1. Has Ms. Brunelle proven on a balance of probabilities the intentional tort of assault and/or battery committed by Mr. Shaw on August 22, 2007, resulting in an injury to her right wrist? 2. Is the evidence of two prior occasions of alleged aggression by Mr. Shaw towards Ms. Brunelle causing her physical harm admissible as similar fact evidence? Has Ms. Brunelle established on a balance of probabilities that the probative value of the evidence outweighs its potential prejudice? 3. Is Ms. Brunelle entitled to general damages in the amount of $100,000.00 for pain suffering and loss of enjoyment of life as a result of the assault? 4. Has Ms. Brunelle established damages in the amount of approximately $160,000.00 for the costs of: past and future treatment, aids for daily activities, home accessibility and home maintenance tasks? 5. Has Ms. Brunelle established damages in the amount of $25,000.00 for past and future income loss, loss of earning capacity and/or loss of competitive advantage? 6. Does Mr. Shaw’s conduct warrant aggravated damages or punitive damages in the amount of $25,000.00? Is his conduct of such a nature that punitive damages should be awarded in order to punish and deter him and others from committing a similar act? Shaw v. Shaw Blishen J. 373

Assault/Battery 44 There is no dispute that Ms. Brunelle badly fractured her right wrist after an argument with Mr. Shaw on August 22, 2007. The question is whether that injury occurred as a result of Mr. Shaw’s actions or as a result of an accidental fall on the front walkway of the matrimonial home, as alleged in Mr. Shaw’s amended reply. Mr. Shaw does not plead any specific defences such as self-defence or provocation. He simply denies assaulting Ms. Brunelle. 45 A person who “intentionally causes a harmful or offensive contact with another person is liable for battery”: see Linden and Feldthusen, Canada Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006), p. 44, “A battery may occur even when no harm is intended. The only intention required is that of making contact.” 46 In Canadian Tort Law, the authors provide the following definition of assault at pp. 46-47: Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault provides protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehen- sive of immediate physical contact, even though that contact never actually occurs. The underlying policy of the tort of assault, like that of battery, is the reduction of violence. Because threatening to inflict harm is apt to attract retaliation in the same way as causing harm, it must also be discouraged by tort law. Assault should be distinguished from battery, although the two are often blurred together and called “assault”. This does not usually matter very much because in most cases both assault and battery are committed in rapid succession. If a battery occurs, the assault tends to be ignored since the quantum of damages for it will be rather small. An assault can be committed without a battery and battery can occur without an assault preceding it. For example, swinging at someone and missing is an assault but not a battery; striking someone from behind, without his or her knowledge, is a battery but not an assault. Conduct which intentionally arouses apprehension of an imminent battery constitutes an assault. [Emphasis added.] 47 In this case both parties blurred the torts of assault and battery and used the term “assault” throughout. I do not find this a significant problem. The essence of Ms. Brunelle’s argument is that Mr. Shaw intention- 374 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

ally physically ejected her from the home, causing her to break her right wrist. Therefore, “battery” is the more accurate description of what is alleged.

Evidence re Battery 48 The parties began their relationship in August, 2005, five months after Mr. Shaw’s first wife, Madelaine Shaw died on February 23, 2005. The relationship progressed quickly and in August, 2006 Ms. Brunelle and Mr. Shaw were married. They separated a year later on August 22, 2007. 49 The description by Ms. Brunelle is of a relationship where she gave up a great deal to be with Mr. Shaw including: her home in Toronto, her community of friends and neighbours and in particular, by taking early retirement, her job as a high school teacher with the Toronto District School Board. Despite these sacrifices, by August, 2007, Ms. Brunelle felt ignored by her husband and left out, as if she was not part of the family. She describes Mr. Shaw as cold, unresponsive, and at times aggressive. 50 Mr. Shaw describes the short term relationship and marriage as one where Ms. Brunelle was constantly jealous. She did not want him to meet or receive telephone calls from female clients or interact with other women. He describes one occasion, at a party on a visit with his sister in B.C. in July, 2007, when Ms. Brunelle became angry and upset when she thought Mr. Shaw was focussing his attention on other women at the party. Her reaction was corroborated by Mr. Shaw’s sister Brenda Marin- Link. 51 Based on the evidence of the parties and Ms. Marin-Link I find that as time went on, Ms. Brunelle felt more and more ignored by her husband and less and less a part of the Shaw family. She reacted jealously with respect to Mr. Shaw’s interaction with other women, which led to disagreements between the parties. Mr. Shaw did not handle the situation with a great deal of sensitivity or understanding, at times excluding and ignoring Ms. Brunelle who desperately wanted his love and attention. 52 It was within this context that the incident occurred on August 22, 2007. 53 Mr. Shaw’s mother died on or about August 19, 2007. Plans were made for Mr. Shaw’s sister Brenda Marin-Link to come to Ottawa on August 22, 2007 to discuss financial arrangements and a service in Wel- land, where his mother had resided for many years. On August 21, 2007, Shaw v. Shaw Blishen J. 375

despite the fact that she was ill with bronchitis and taking medication, Ms. Brunelle went with Mr. Shaw, Jason and Byron for a pizza dinner. Mr. Shaw was talking to the boys about the arrangements for his sister’s arrival the next day and for the funeral service in Welland. In addition, Byron asked his father for some money for an upcoming trip with some friends. Ms. Brunelle acknowledges that, as she was tired and ill, she did not eat much and said very little. 54 Upon returning home, Mr. Shaw delegated work to everyone to get ready for his sister’s visit. Ms. Brunelle was working on the library/office on the main floor, Mr. Shaw was painting and the boys were helping with other chores. At midnight Mr. Shaw went to bed. Ms. Brunelle testified that he wanted her to come up with him and have sex but she refused as she still had work to do. She continued working until 3:00 a.m. 55 Ms. Brunelle testified that the next morning she got up and went downstairs for breakfast. She met Mr. Shaw in the hall and asked if he needed her to assist him in the WFG office or with any errands on that day. It was at that point that he confronted her as to why she had not spoken to him the previous night at the restaurant. She indicated she had not been feeling well. Mr. Shaw testified this conversation took place the night before and that Ms. Brunelle was gone when he got up the next day. However, both agreed there was such a conversation and Mr. Shaw was not pleased with Ms. Brunelle’s behaviour. Ms. Brunelle spent the morning of August 22, 2007 at the WFG office where she had been working part time with Mr. Shaw. She returned home at approximately 1:30 p.m. 56 Ms. Brunelle testified that upon entering the home she saw Mr. Shaw holding a small paint brush in his hand. She asked him how he was doing and his response was something to the effect of “why should I tell you where I go or what I do?” Mr. Shaw then went downstairs to the “mud room” or utility room off the sitting area. Byron was sitting on the couch downstairs playing video games or watching T.V. The parties had a discussion as to when Brenda Marin-Link’s flight was arriving, Ms. Brunelle was clear that she wished to accompany Mr. Shaw to the airport. He refused and indicated that, given how she acted the night before, she was not really part of the family. 57 Mr. Shaw testified that upon returning home that afternoon, Ms. Brunelle began to question him as to where he had been and what he had been doing the day before. Ms. Brunelle wanted to accompany him to the 376 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

airport. Mr. Shaw stated his sister indicated in advance she wanted to spend time alone with him to discuss their mother’s affairs. He made that clear to Ms. Brunelle. Mr. Shaw further testified he told Ms. Brunelle, given how she acted the previous night, the boys were wondering if she was really part of the family. He did not wish her to come to the airport with him. Mr. Shaw had his back to Ms. Brunelle and was washing out the paintbrush. 58 Ms. Brunelle testified she put her hand on Mr. Shaw’s shoulder to get his attention and have him listen to her. She said she was part of the family and referred to the work she had done the night before. Mr. Shaw continued asking her not to speak to him and stating she was not part of the family. He was cold and unemotional. Ms. Brunelle acknowledged speaking rather loudly. 59 Mr. Shaw turned around. Ms. Brunelle stepped away and said: “Ke- vin sometimes I just feel like ... and” at which point Mr. Shaw responded: “Do it, do it, do it” and pushed her causing her to fall into some debris. He then left the area and went upstairs with Ms. Brunelle following him. 60 Mr. Shaw testified that after Ms. Brunelle grabbed his shoulder, he turned around and she hit him in the face which is denied by Ms. Brunelle. Mr. Shaw denied pushing Ms. Brunelle but stated he may have brushed against her. He testified that, after being hit in the face, he left Ms. Brunelle, closed the door to the utility room and went back upstairs, intending to go to the airport to pick up his sister. He opened the front door and went out to the front stoop before realising that he did not have his car keys. He returned to the vestibule inside the front door and stepped into the closet to look for his keys. As he was coming out of the closet with his keys in his hand, he saw Ms. Brunelle running down the hall towards him with her fists clenched and frowning. He stepped back into the closet and put his hands up at shoulder level with his palms out as he was worried he might get hit again. Mr. Shaw stated that he may have brushed against her as she ran by and out the front door. After Ms. Brunelle ran out the door, Mr. Shaw closed it and intended to go out to the car through the garage. 61 Ms. Brunelle’s testimony completely contradicted that of Mr. Shaw. She testified she followed Mr. Shaw as he went up the stairs to the land- ing by the front door. He remained cold and emotionless and she asked him: “Why are you so cruel?” He looked at her, came forward grabbed her right biceps with his right hand and pulled her towards him yelling: Shaw v. Shaw Blishen J. 377

“Get out of my house!” He then dragged her towards the front door, opened it with his left hand and tried to shove her out of the door. She grabbed the edge of the closet door frame saying: “No, Kevin, no!” At that point Mr. Shaw put both his hands under her armpits, lifted her up, dislodged her hands from the closet door, stepped outside and thrust her forward on the cement. She blacked out momentarily. When she came to, Ms. Brunelle noted she was on her right side on the walkway approximately 12 feet from the door. She was experiencing a great deal of pain in her right hand. Ms. Brunelle got up, staggered to the front door, opened it, and went inside with the intention of calling 9-1-1 to get medical attention. 62 When Ms. Brunelle entered the home, Byron was near the kitchen. She told him “Your Dad threw me out of the house.” In his statement later that day to Cst. Jennings, Byron confirmed that Ms. Brunelle made this statement. Ms. Brunelle called 9-1-1. At that point, Mr. Shaw was standing beside her in the kitchen. 63 Mr. Shaw acknowledges that Ms. Brunelle came back into the house, was in pain and called 9-1-1. He proposed to take her to an emergency clinic. She agreed and hung up. Both parties agree Mr. Shaw drove Ms. Brunelle to the Orl´eans walk-in clinic. Given the wait time, they proceeded to a clinic on St-Joseph Blvd. where Mr. Shaw testified Ms. Brunelle was to have an X-Ray. Mr. Shaw indicated he would leave her there and she could call Jason to pick her up. Ms. Brunelle did not wish to wait at the clinic and asked Mr. Shaw to take her home. 64 When they arrived home, two police cruisers were there. Mr. Shaw left the car and went into the house, while Ms. Brunelle exited the car on her own and walked towards the house. She was stopped by Constable Trudeau who asked her what happened. She provided him with a verbal statement. Mr. Shaw came out of the house briefly but then went back in and spoke with Constable Elmi. 65 Ms. Brunelle was taken by ambulance to the hospital with Constable Trudeau. She was admitted and diagnosed with a badly fractured right wrist. Orthopaedic surgeon Dr. Kim surgically inserted a plate and screws. She remained in the hospital for two days, returning home Au- gust 24, 2007. 66 Mr. Shaw provided a statement to Constable Elmi, was arrested for assault and escorted to the Police Station. He was ultimately charged with assault causing bodily harm and was released on a recognizance not 378 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

to have contact with Ms. Brunelle nor attend at the matrimonial home. On December 18, 2008, after trial, Mr. Shaw was found not guilty.

Credibility 67 The determination as to whether or not an assault and/or battery occurred is to be made on the balance of probabilities not, as in a criminal trial, beyond a reasonable doubt. Therefore it is important to carefully consider and weigh the testimony and evidence of both parties, as well as any corroborative evidence. 68 There are weaknesses in the testimony of Ms. Brunelle as follows: (1) Ms. Brunelle portrayed herself as a victim, who was not jealous of her husband’s interaction with other women but who was ignored by a man she considered cold and unemotional. She downplayed her role in any disagreements with her husband and tended to dramatize events. For example, when testifying that Mr. Shaw threw her out of the house she indicated, “I was fighting for my life.” Her evidence that she was not jealous is somewhat contradicted by the evidence of Brenda Marin-Link who testified that she became angry and upset at a party in B.C., when she perceived Mr. Shaw to be ignoring her and paying attention to other women. (2) Ms. Brunelle testified that on August 22, 2007, when she came into the home from the office she asked Mr. Shaw how his day was going and he responded, “Why should I tell you where I go and what I do?” This answer is not responsive to her question and I find it more likely Ms. Brunelle was asking where he was and what he was doing on August 21 and was indeed jealous, as Mr. Shaw testified. (3) Ms. Brunelle denies there was any argument between the parties, and again downplays her role in the situation that escalated on Au- gust 22, 2007. When questioned as to why she would pursue Mr. Shaw to the basement, she indicated this was simply to soothe him and to get him in a good mood because his sister was coming. When pressed on cross-examination she reluctantly agreed that there was a “difference of opinion” which could have been inter- preted as an argument. (4) The testimony of Byron Shaw, whom I found to be a straightforward, reliable young man placed in a very difficult position, confirmed there was indeed an argument. Although Byron was in the basement at the outset of the disagreement, the door at the top of Shaw v. Shaw Blishen J. 379

the stairs was open and he could hear Ms. Brunelle asking where Mr. Shaw had been and questioning him aggressively. Mr. Shaw indicated it was none of her business. They also discussed the night before. At that point Mr. Shaw indicated he had enough, went downstairs and closed the door to the utility room. Although Ms. Brunelle testified she followed him down simply to soothe him, it was Byron’s evidence there was a disagreement, she followed Mr. Shaw into the room. Byron then heard a skin-on-skin slapping noise which to some extent corroborates the evidence of Mr. Shaw that Ms. Brunelle hit him on the face. (5) Ms. Brunelle testified that when Mr. Shaw told her that she did not appear to be part of the family, she was merely “disappointed”. She further stated that even after Mr. Shaw pushed her down in the basement, she was still just sad and disappointed and wanted to go to the bedroom to lie down. I do not find this to be the complete story. Although Ms. Brunelle may well have been sad and disappointed, she did pursue Mr. Shaw up the stairs, and according to her testimony then continued the argument or disagreement by asking him, “Why are you so cruel?” (6) In her oral statement to Constable Trudeau, Ms. Brunelle indicated Mr. Shaw had pushed her in the basement against a wall whereas at trial she stated he pushed her into some debris. There is a minor inconsistency in this statement. (7) Although Ms. Brunelle testified that Mr. Shaw, who was six foot four and weighed approximately 210-215 pounds, grabbed both her biceps, there was no bruising noted in the medical records. There was, however, no expert evidence as to whether there would necessarily be bruising at the time Ms. Brunelle was examined. In addition, no further injuries were noted in the medical records; however, Ms. Brunelle testified that when Mr. Shaw threw her out of the house she landed 12 feet down the cement walkway. She did testify that she was not entirely sure how she landed there and that she blacked out momentarily. 69 As with Ms. Brunelle, there are a number of weaknesses in the evidence of Mr. Shaw as follows: 380 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

(1) He portrays himself as an attentive, understanding husband with a jealous wife. However, I note the following: (a) He asked Ms. Brunelle to work on getting things ready for his sister, which she did until 3.00 a.m., despite the fact she was ill with bronchitis. (b) Although Ms. Marin-Link testified it would not be unusual for Suzanne to come to the airport, Mr. Shaw did not agree to have his wife accompany him. It was his testimony that he needed to meet privately with his sister at that time. Ms. Marin-Link testified she had requested they have a meeting alone, but not that it be at the airport or in the car on the way home. (c) Mr. Shaw acknowledges telling Ms. Brunelle that the boys were wondering whether she was even part of the family. (d) On August 22, when Ms. Brunelle was trying to discuss matters with him, he ignored her when she was trying to talk and turned his back to her. (e) When driving Ms. Brunelle to the clinics after the injury occurred, Mr. Shaw stayed in the car and Ms. Brunelle went in unaccompanied. Further, Mr. Shaw suggested Ms. Brunelle stay at the clinic, he would leave and Jason would pick her up later. (2) Mr. Shaw denied he was angry or upset during the argument. Sim- ilar to Ms. Brunelle, he downplayed the situation and his role in it. Although Byron Shaw testified Ms. Brunelle was speaking loudly and aggressively and questioning Mr. Shaw while pursuing him down the stairs, Mr. Shaw maintained his position that he was not angry. Even after Ms. Brunelle hit him in the face, he stated that he was surprised more than angry and denied reacting in any way. (3) Mr. Shaw was inconsistent in describing how Ms. Brunelle hit him in the face. At trial he testified that she “struck me in the face” on his left cheek and mouth area. At the criminal trial on a number of occasions Mr. Shaw described this as a slap. However, at his questioning on July 30, 2010, Mr. Shaw stated, “When I turned around, I was punched in the mouth.” He was asked, “With her fist?” he answered, “Closed fist, yes.” I find that Mr. Shaw was therefore either embellishing or exaggerating. His evidence is unreliable in this respect. Shaw v. Shaw Blishen J. 381

(4) Mr. Shaw denied pushing Ms. Brunelle into debris or a wall in the basement during the disagreement; however, he did state that he may have “brushed against her.” (5) Mr. Shaw testified when he saw Ms. Brunelle running towards him with her fists clenched, he stepped back into the front hall closet. As to whether or not there was any contact between him and Ms. Shaw, he stated in-chief there was no contact. Under cross-examination he indicated that she might have brushed against him, a similar description to what happened downstairs. He stated his palms were up and facing forward as he was afraid she might hit him again and that she might have brushed against him. During the questioning he did not indicate there was any contact. Again, Mr. Shaw’s statements are inconsistent. (6) Mr. Shaw’s evidence was that on August 22 Ms. Brunelle would not leave him alone and was pursuing him and continuing the argument. Ms. Brunelle’s evidence was that she came upstairs to go to the master bedroom and lie down. Nevertheless, Mr. Shaw testified that she ran down the hall towards him and then just kept running out the front door. This does not make logical sense if she was pursuing him to continue the argument or if, she simply wanted to go to the master bedroom. Why would she run down the hall towards him and then keep running out the front door? (7) Byron Shaw testified that when Mr. Shaw went upstairs, Ms. Brunelle followed approximately three feet behind him. This directly contradicts the evidence of Mr. Shaw that he went upstairs alone for the purpose of driving to the airport to pick up his sister. I note he would have been hours early for her flight. He testified that he went out the front door and then, when he realized he did not have his car keys, he re-entered the home and went into the closet to look for them. Having found them he was on his way out again, and it was at that point that Ms. Brunelle came running down the hall at him. This is impossible if, as Byron Shaw testified, Ms. Brunelle was following about three feet behind him when he first came up the stairs. 70 Byron Shaw to some extent corroborates Mr. Shaw’s evidence as to the fact that there was an argument and that Ms. Brunelle was aggressively questioning Mr. Shaw. In addition he confirms hearing the sound of skin-on-skin when the parties continued their disagreement in the basement and his father’s statement, “Don’t ever do that again.” How- 382 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

ever, in most other respects he corroborates the evidence of Ms. Brunelle as follows: (1) Mr. Shaw went upstairs and Ms. Brunelle followed approximately three feet behind. (2) Once upstairs, Byron heard Mr. Shaw’s footsteps going towards the front door with Ms. Brunelle’s footsteps following. He heard the door open and then close, and then heard Mr. Shaw’s footsteps going down the hall towards the kitchen. (3) When Byron came upstairs, he observed Ms. Brunelle coming into the home indicating that her wrist hurt and that she wished to call 9-1-1. (4) Most importantly, in his statement to Constable Jennings, Byron confirms Suzanne’s statement to him that Mr. Shaw had thrown her out of the house. Byron recalled telling Constable Jennings Ms. Brunelle stated Mr. Shaw had taken her and “like kind of pushed her out of the house.” This confirms Ms. Brunelle’s evidence of her statement to Byron that, “Your dad threw me out of the house.” 71 Brenda Marin-Link corroborated Mr. Shaw’s evidence that Ms. Brunelle was jealous and overreacted as to any interaction Mr. Shaw had with other women. Despite the incident on August 22, Ms. Marin-Link described later conversations with Ms. Brunelle who indicated Mr. Shaw was a wonderful husband, she was now on her own and wanted him back but was concerned as he was often looking at other women. Ms. Marin- Link previously had similar discussions with Ms. Brunelle who went back and forth as to her feelings towards her husband. 72 Ms. Marin-Link testified that Ms. Brunelle told her the following in describing the incident of August 22: (1) She was angry. (2) She slapped Mr. Shaw on the arm to get his attention. (3) She ran up the stairs after Mr. Shaw to stop him leaving without her. (4) He did not stop and she did not stop and she ended up falling going out the front door. (5) The last step from the porch to the outside was somewhat treacherous. Shaw v. Shaw Blishen J. 383

(6) Ms. Brunelle was wearing high heels. 73 Although, according to Ms. Marin-Link, Ms. Brunelle stated she somehow fell out the front door, her statements to the police, ambulance attendants, and nurses at the hospital were different. She told Constable Trudeau that after she grabbed Mr. Shaw’s shoulder to get his attention, he turned around, shoved her into the wall, and they went upstairs together. She stated to Byron Shaw Mr. Shaw had thrown her out of the house and to the ambulance attendants that Mr. Shaw “pushed her down in the basement, then physically picked her up and threw her out.” The emergency report and the nursing note record the same statement that she had been “thrown out of the house.” 74 Ms. Brunelle’s evidence is further corroborated by Constable Elmi. He and Constable Trudeau were dispatched to the residence at approximately 2 p.m. after the 9-1-1 call by Ms. Brunelle. Upon arrival, Consta- ble Elmi spoke briefly to Byron and Jason who indicated their father and stepmother had an argument and their stepmother had gone to the hospital complaining of a sore wrist and arm. As Constable Elmi was about to leave, Mr. Shaw and Ms. Brunelle returned to the home. Mr. Shaw went inside and Constable Elmi went with him. In speaking to Mr. Shaw, Con- stable Elmi recalled Mr. Shaw stating that there had been an argument with his wife in the basement over a family issue and he had shoved her after the argument became heated. After receiving information from his partner that there were grounds to arrest Mr. Shaw for assault, Constable Elmi proceeded to arrest him and read his rights and caution. Mr. Shaw then stated to Constable Elmi he pushed his wife outside the house and thought she broke her hand. Although there are weaknesses in Constable Elmi’s evidence in that he did not record these statements in his notes but only in his investigative action report, he was clear despite vigorous cross-examination that, as he put it, “That’s what your client said.” 75 There is a significant disparity in size between Mr. Shaw and Ms. Brunelle. She is approximately five-feet three-inches tall and, at the time, weighed 125-130 pounds, whereas Mr. Shaw is six-feet four-inches tall and weighed at the time approximately 210-215 pounds. Although he is a large man, Mr. Shaw testified that at the time of the incident he was having back problems and would not have been able to lift Ms. Brunelle as she described. The only evidence to corroborate this statement is a report from 1999 indicating a problem with his back. At the Queensway Carleton Hospital it was determined that Mr. Shaw’s disc space was nar- rowing and he was treated. A letter provided by Dr. Day dated November 384 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

27, 2002 (five years prior to the incident) noted an acute reoccurrence of the back pain, which required treatment. I do not find this evidence persuasive. There is no evidence that Mr. Shaw was experiencing an acute reoccurrence of any back problems on August 22, 2007. Ms. Brunelle testified that Mr. Shaw helped her with her move from Toronto in Au- gust 2006. She also testified he picked her up during their wedding and she had not observed any problems with his back. 76 As was noted above, this is not a criminal trial where the Court needs to make a determination beyond a reasonable doubt. The issue is whether or not, on a balance of probabilities, Ms. Brunelle has proven that Mr. Shaw intentionally caused harmful contact, thereby committing the tort of battery. Although there are weaknesses in the evidence of both parties, on balance I prefer the evidence of Ms. Brunelle which is corroborated by Byron Shaw and Constable Elmi. I find that Mr. Shaw either pushed or threw Ms. Brunelle out of the house on August 22, 2007, thereby causing a severe fracture to her right wrist. I do not find the injury to have been caused by an accidental fall on the front walkway, as alleged by Mr. Shaw.

Similar Fact Evidence 77 Having determined on the evidence of the parties and other witnesses that Mr. Shaw committed the intentional tort of battery, thereby causing Ms. Brunelle’s injury, I do not need to determine the admissibility of the evidence of two prior occasions of alleged aggression by Mr. Shaw towards Ms. Brunelle as similar fact evidence. 78 Ms. Brunelle wished the court to admit the evidence in order to draw the inference that Mr. Shaw had a disposition to act in an aggressive and violent manner towards her when he became angry, as circumstantial evidence of the battery on August 22, 2007. The similar fact evidence was not argued with respect to the issue of damages. 79 Although it is not necessary to make any specific determination as to admissibility, I would note the following. Although similar fact evidence in the domestic context remains presumptively inadmissible, events of this kind can be admitted in domestic cases both criminal and civil, as there is a decreased risk of impermissible propensity reasoning. The evidence is not tendered to demonstrate that the impugned party has a general disposition to act violently or aggressively. Rather, the evidence demonstrates that the party has a disposition to act violently towards a specific complainant. Therefore, in the domestic context, the evidence Shaw v. Shaw Blishen J. 385

can lend itself to permissible propensity reasoning which can be used to determine the ultimate issues presented at trial. The propensity reasoning in these circumstances may be permitted as the prior acts of aggression are directly linked to the impugned acts alleged in the pleadings. In addition, the direct link between the similar fact evidence and the acts alleged creates only a modest risk that a trier of fact will engage in prohibited propensity reasoning. This is particularly true in a case such as this where there is a civil claim for damages and the trial is by judge alone. 80 There are a number of cases where evidence of the nature of relationship between the parties is found to provide background and context essential to an accurate interpretation of the relevant event. Such evidence has been held to provide valuable context within which to analyse the evidence and to constitute circumstantial evidence that assault or battery occurred. See R. v. MacDonald, [2002] O.J. No. 4657 (Ont. C.A.); R. v. C. (D.A.R.), [2002] P.E.I.J. No. 91 (P.E.I. C.A.); R. v. Q. (M.), [2010] O.J. No. 378 (Ont. S.C.J.); R. v. Cudjoe, [2009] O.J. No. 2761 (Ont. C.A.); and R. v. Middleton, [2007] O.J. No. 2900 (Ont. C.A.).

Damages Injury and Its Effect 81 Suzanne Brunelle was 59 years old and had been married to Mr. Shaw for a year when she suffered a badly broken right wrist due to the actions of her husband. Ms. Brunelle, who is right-hand dominant, sus- tained a spiral fracture of her right distal radius on August 22, 2007. On August 23 she underwent an open reduction and internal fixation performed by Dr. Paul Kim, orthopaedic and joint reconstruction surgeon. After a general anaesthetic, a longitudinal incision was made of the radial aspect of the wrist. A long plate was inserted at the fracture site and held in place with multiple screws distally and proximally. Ms. Brunelle then underwent an autogenous bone graft in the area of the fracture. The wound was closed with numerous staples and a plaster cast was applied covering her right arm, wrist and hand. She was discharged from the hospital two days later with a prescription for the painkiller Endocet (ox- ycodone HCl/acetaminophen). Ms. Brunelle remained in a cast for six weeks and after its removal began physiotherapy sessions at the Montfort Hospital. She attended 17 sessions from November 2007 to January 2008, after which she continued doing the prescribed exercises at home. 82 Ms. Brunelle had and has a diminished range of motion in her right wrist. She also suffered and continues to suffer significant pain and dis- 386 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

comfort in her hand and wrist. She initially complained of weakness and numbness in the fingers of her right hand. 83 Ms. Brunelle continued to see Dr. Kim who referred her for nerve conduction studies to determine whether she might be suffering from carpal tunnel syndrome. The studies, done in February, 2008 noted carpal tunnel neuropathies in both median nerves, slightly worse on the left than the right. Ms. Brunelle testified that she was using her left hand a great deal more given the difficulties with her right. It was suggested that she use a brace or splint on her right wrist, generally at night time. By May 2009, Ms. Brunelle noted an improvement regarding the numbness with the use of the night splint; however, she continued to suffer from sharp pain when using her right hand. 84 Dr. Kim continued to follow Ms. Brunelle until June 24, 2009. At her last visit with him she continued to complain of persistent pain and discomfort in the right hand and wrist area, causing her difficulty performing activities of daily living. Dr. Kim did not feel her pain and discomfort was directly related to carpal tunnel syndrome. He was unable to find a precise mechanical source for her pain and therefore referred her to a colleague, Dr. Pollack, another orthopaedic surgeon who first saw Ms. Brunelle on August 11, 2009. At that time Ms. Brunelle continued to indicate writing and working with her right wrist was difficult and that she was suffering from pain which radiated from the wrist up to the shoulder. She told Dr. Pollack she had reduced strength, and limited gross and fine motor movement due to the injury. 85 Dr. Pollack’s examination revealed: (1) Swelling of both the dorsal and ulnar aspect of her wrist; (2) Restricted rotation and loss of extension and flexion; (3) Pain with all wrist movements; and (4) Hypersensitivity of her wrist and wrist tenderness. He noted that, although the plate was initially well positioned, it had collapsed somewhat during the healing process. He testified that the tendons can roll over the plate and cause irritation. It is possible to remove the plate and possibly alleviate some of the pain. However, it was Dr. Pollack’s opinion that Ms. Brunelle’s pain was due to more than a mechanical problem. In his report dated August 11, 2009 he stated it was very difficult to associate Ms. Brunelle’s pain with a particular area of pathology. It was his view that there was an element of chronic regional pain syndrome. Therefore, he recommended consultation with the Chronic Pain Service at the Ottawa Hospital and made a referral. Shaw v. Shaw Blishen J. 387

86 On September 23, 2009 Ms. Brunelle was seen by Dr. Howard Na- than at the Chronic Pain Service who at that time felt it unlikely she was suffering from complex regional pain syndrome. It was his opinion that the pain was more characteristic of a chronic inflammation of the tendons. He therefore prescribed Celebrex as an anti-inflammatory. At that time Ms. Brunelle was taking Tylenol for her pain and no other medication. As the anti-inflammatory medication did not make much of a difference, Ms. Brunelle was subsequently treated with chronic pain medication and began to attend the pain clinic. She continued to attend pain clinic sessions of three-and-a-half hours once a week for 10 weeks. She then went once per month until the end of 2010 and in 2011, prior to trial, had been back to the clinic two or three times. 87 Dr. Pollack saw her once again on March 8, 2011. At that time Ms. Brunelle continued to notice significant pain, some weakness with gripping and fatigue when writing. Dr. Pollack’s examination continued to be consistent with chronic pain syndrome. He noted tenderness and swelling in the front and the back of Ms. Brunelle’s wrist and a weak grip strength. Her range of motion had improved and was fairly good at that point in time. 88 Dr. Pollack noted that an element of Ms. Brunelle’s pain was mechanical due to the plate and the shortening of the radius. It was his opinion that there was not one particular specific cause for the pain. He recommended Ms. Brunelle continue to be treated for pain and agreed to see her again in six months. If she continues to demonstrate no improvement, Dr. Pollack testified he would consider the possibility of plate removal, although he was clear that procedure would not guarantee improvement and could actually worsen the hypersensitivity in her hand. Dr. Pollack was not qualified as an expert in chronic pain syndrome but given the symptoms, as an experienced orthopaedic surgeon, it as his opinion Ms. Brunelle was genuinely suffering from a great deal of pain which had been long-lasting and was therefore chronic. 89 In addition to the pain, Ms. Brunelle suffered sleep deprivation. She attended a Sleep Deprivation Clinic in the late fall of 2010. 90 Ms. Brunelle has also been plagued by depression since the incident on August 22, 2007. On October 11, 2007 she went to the Emergency Department of the Montfort Hospital, overwhelmed by suicidal ideation. She was initially assessed in the Emergency Room by a psychiatrist, Dr. Serge Lessard, who diagnosed a major depressive episode of severe in- tensity. Dr. Lessard referred her to psychologist Dr. Deramchi for psy- 388 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

chotherapy and prescribed medication for her depression. Dr. Lessard decided to monitor Ms. Brunelle and evaluate her for possible post- traumatic stress syndrome. Both Dr. Lessard and Dr. Deramchi saw Ms. Brunelle weekly for psychotherapy and pharmacotherapy. Ultimately, Dr. Lessard diagnosed Ms. Brunelle as suffering from a major depressive disorder as well as post-traumatic stress syndrome/anxiety disorder. 91 Dr. Deramchi’s report dated November 12, 2007 states that Ms. Brunelle was suffering from the following symptoms: “Powerlessness, sense of failure, sadness, despair, hypervigilance, fearful behaviour, loss of interest, apprehensiveness, indecisiveness, nausea, and vomiting.” She noted that these are indicative of severe anxiety and it was her opinion that they were related to Ms. Brunelle’s recent losses, uncertainties in her current life, and financial strain. It was Dr. Deramchi’s view, supported by Dr. Lessard that Ms. Brunelle was unable to resume gainful employment at that time. This opinion was repeated in March and July of 2008. Ms. Brunelle continued to be compliant with proposed treatment and presented herself on time at all appointments. Dr. Lessard prescribed medication for depression which Ms. Brunelle continues to take, with Tylenol for the pain. She also continues to wear a brace on her right wrist and arm mostly at night to stabilize her arm, wrist and hand, to help with the pain. 92 Ms. Brunelle testified she is able to perform tasks and do activities but always suffers pain and has difficulty with: her range of motion, gripping, strength and stamina while gripping, numbness in her fingers, and dexterity which causes her difficulty picking things up and with grasping cylindrical objects. She finds it difficult to vacuum, make a bed, wash the dishes, and do other household tasks. 93 On May 19, 2012, Sheri Mosher Taillefer observed Ms. Brunelle and performed an occupational therapy assessment of her general functioning at her three-bedroom townhouse. She provided a written report dated April 15, 2010. Ms. Taillefer was qualified as an expert in occupational therapy with 18 years of extensive experience in the field. Over the last nine years Ms. Taillefer has been an independent consultant. She testified she does approximately five to six home assessments per week, always using the same methodology. She has done approximately 800 such assessments for the insurance industry. In addition to being an occupational therapist, Ms. Taillefer is a Canadian certified life care planner and uses that expertise in making her recommendations. Shaw v. Shaw Blishen J. 389

94 At the time of the assessment Ms. Brunelle reported continuing pain in her right wrist, and shooting pain when using the thumb or index fingers. She indicated an inability to pick up items requiring a cylindrical grip without pain. In terms of pain management Ms. Brunelle was utilizing heat, a hand splint at night, and Tylenol as needed. 95 In performing her assessment, Ms. Taillefer observed that any flexion of Ms. Brunelle’s right wrist caused pain and she had minimal wrist extension. Further she had “full opposition with pain, and ulnar/deviation is full with pain.” Ms. Taillefer also observed her left thumb to be swollen and apparently arthritic, probably due to overuse of her left hand. In assessing Ms. Brunelle’s strength, Ms. Taillefer observed that gripping or grasping caused Ms. Brunelle extreme pain, which at times resulted in her dropping items. She measured Ms. Brunelle’s left and right hand strength using a Dynamometer three times for each hand. Ms. Brunelle’s left hand strength was 35 lbs, 35 lbs, and 37 lbs, whereas her right hand (dominant) measured 15 lbs, 10 lbs, and 15 lbs. Ms. Taillefer observed that when Ms. Brunelle attempted to pick up or use cylindrical objects she would do this in an odd manner, in an attempt to avoid pain. For example, she would palm items and attempt to hold them in that way. Even using that method, she suffered pain. Ms. Brunelle was further limited in her ability to reach. She did not use her right hand to reach or pick up items and was observed to continually use her left hand for these tasks. 96 Although Ms. Brunelle described herself as previously independent and energetic, she noted that the chronic pain due to her wrist energy is now interfering with her energy level. Although she continues to drive, she has difficulty opening the gas tank, holding the steering wheel, and operating the remote control to open the vehicle as it is very painful to use either of her thumbs. Finally, as noted by her treating physicians, Ms. Brunelle had difficulty sleeping, which continued at the time of Ms. Tail- lefer’s assessment. 97 It was Ms. Taillefer’s opinion that Ms. Brunelle could minimally perform most of the tasks of daily living but only with a great deal of pain, due to her right wrist injury. This accorded with Ms. Brunelle’s evidence that she does drive but not as much as previously; she does light housekeeping but sparingly and carefully; she cooks for herself and does a little bit of shopping at a time; and will do some minimal snow-shovelling, yard work, and planting. It was her evidence that she had no choice, as she lived alone and did not have any other support. 390 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

98 Ms. Taillefer recommended assistance for housekeeping and home maintenance. In addition to the goods and services recommended, Ms. Taillefer recommended Ms. Brunelle have further occupational therapy assessments and possible interventions due to potential changes in functioning as she ages. The costs for the recommended goods and services on a one-time and annual basis, totalled $9,751.00 as a one-time cost and $10,411.81, annually. Ms. Taillefer’s report was reviewed by both Dr. Kim and Dr. Pollack who indicated that the recommendations appeared reasonable. 99 After the assessment, Ms. Brunelle moved in August 2010 to another 3-bedroom townhouse. Ms. Taillefer visited her there and noted the new townhouse was basically the same as the previous one. Ms. Taillefer had the opportunity to review a video surveillance tape taken by a private investigator hired by Mr. Shaw which showed Ms. Brunelle engaging in certain activities. Ms. Taillefer reviewed those activities and the video surveillance with Ms. Brunelle and asked her to comment. After reas- sessing Ms. Brunelle and viewing the videotape, Ms. Taillefer continued to recommend the aids and assistance. Her opinion as to Ms. Brunelle’s abilities did not change.

General and Aggravated Damages 100 The Supreme Court of Canada in discussing the issue of general damages and the cap on those damages makes the following comments in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 (S.C.C.), as follows: ... The monetary evaluation of non-pecuniary losses is a philosophi- cal and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conven- tional. No money can provide true restitution.... 101 On August 22, 2007, Suzanne Brunelle was a 59-year-old retired teacher working part-time for her husband at World Financial Group, when he committed the intentional tort of battery, causing a spiral fracture to her right wrist. The spiral fracture of the distal radius of Ms. Brunelle’s dominant right wrist required surgery under general anaesthetic and the insertion of a plate and screws. Ms. Brunelle was in a full plaster cast for six weeks and thereafter underwent physical therapy for approximately three months. She has a long scar up her right arm as a result of the surgery. Shaw v. Shaw Blishen J. 391

102 Ms. Brunelle suffered and continues to suffer a great deal of pain when using her right hand and wrist, as confirmed by both Dr. Kim and Dr. Pollack, as well as the occupational therapist, Ms. Taillefer. This pain which is termed ‘chronic pain’ by Dr. Kim, resulted in her attendance at a pain clinic once a week for 10 weeks and thereafter from time to time up to the date of trial. She also took prescribed pain killers. Although neither Dr. Kim nor Dr. Pollack were qualified as experts in chronic regional pain syndrome, they both noted that the most likely diagnosis is chronic regional pain syndrome, following her injury which may be complicated by ongoing psychological and social issues. Ms. Brunelle also suffers from mild carpal tunnel syndrome. Dr. Pollack felt there was some potential mechanical contribution to her pain, based on the most recent X-rays. Nevertheless, he indicated the mechanical contribution is small relative to the chronic regional pain syndrome. 103 Ms. Brunelle’s right wrist is often tender and swollen and she experiences some numbness in her fingers. In addition, her left thumb is now tender and swollen due to overuse. She is no longer able to write or type for any length of time with her dominant right hand. Therefore her opportunities for part-time teaching are limited. In addition, although she can perform the activities of daily living, she does so in a limited fashion and experiences significant pain. These symptoms are likely to persist. Dr. Pollack noted the most important thing is for Ms. Brunelle to comply with pain treatment. Only if that treatment fails, would he consider further surgery to remove the plate and screws. He does not advise the procedure. 104 Ms. Brunelle, who was 63 years old at the time of trial, now lives alone in a three-bedroom townhouse. She has suffered from significant depression, to some extent as a result of the violence inflicted on her by her husband of only one year. This violence resulted in: a badly broken dominant wrist, police involvement, criminal charges, a criminal trial, and a family/civil trial for damages. In March 2008, the clinical opinion of treating psychiatrist Dr. Lessard was that Ms. Brunelle was not able to be gainfully employed. He diagnosed her with a major depressive disorder, post-traumatic stress syndrome and anxiety disorder. These conditions did not precede the injury suffered on August 22, 2007. Ms. Brunelle continues to be treated by Dr. Lessard. 105 The most recent summary of Ms. Brunelle’s medical status is that of her general practitioner, Dr. Catherine Marks. In her report of March 8, 2011, she states Ms. Brunelle continues to experience ongoing chronic 392 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

pain and ongoing partial disability of her right wrist, resulting in continuing sleep deprivation, depression, and diminished quality of life. In addition she states: ... the patient has developed advanced osteoarthritis and chronic tendonitis of the left thumb as compensation for the disability of her right hand. My observation is that the condition of her left thumb has worsened in the last few months with ongoing changes and deformity of the joint between the thumb and the rest of the hand. 106 Dr. Marks recommended Ms. Brunelle continue the use of pain medication and antidepressants and pursue pain and sleep management therapies, as recommended by Dr. Nathan, to address chronic regional pain syndrome. 107 Based on the evidence of Ms. Brunelle, the doctors and the occupational therapist, I find the impact of the injury on Ms. Brunelle has been significant and life-altering. 108 Ms. Brunelle claims $25,000.00 in aggravated and punitive damages. 109 In Norberg v. Wynrib, [1992] 2 S.C.R. 226 (S.C.C.), the Supreme Court of Canada indicated aggravated damages are not awarded in addition to general damages but general damages are assessed “taking into account any aggravating features of the case and to that extent increasing the amount awarded.” Further, in a more recent decision of the Ontario Court of Appeal in Weingerl v. Seo (2005), 199 O.A.C. 172, 256 D.L.R. (4th) 1 (Ont. C.A.), the Court noted the following at paras. 69-70: 69. General non-pecuniary damage should be assessed after taking into account any aggravating features of the defendant’s conduct. The court may separately identify the aggravated damages, however, in principle they are not to be assessed separately. The purpose of aggravated damages, in cases of intentional torts, is to compensate the plaintiff for humiliating, oppressive, and malicious aspects of the defendant’s conduct which aggravate the plaintiff’s suffering. In cases of negligence, aggravating factors can also be taken into account where the defendant’s conduct recklessly disregards the plaintiff’s rights. 70. The following are aggravating factors which should be taken into account to determine whether the non-pecuniary damages should be increased: humiliation, degradation, violence, oppression, inability to complain, reckless conduct which displays a disregard of the victim, and post-incident conduct which aggravates the harm to the victim. 110 In this case Ms. Brunelle, who had been married to Mr. Shaw for only one year, was violently ejected from her home by her husband. This vio- Shaw v. Shaw Blishen J. 393

lence was perpetrated by an individual she should have been able to trust and rely upon. Her ejection from the home took place in the middle of the day and with Mr. Shaw’s son, Byron Shaw, also in the home. Not only was Ms. Brunelle physically injured but she has suffered psychological damage due to Mr. Shaw’s conduct as outlined by Dr. Lessard. Al- though Ms. Brunelle’s depression and anxiety cannot be solely attributed to the actions of her husband, I find on a balance of probabilities that his conduct has contributed to her ongoing mental health problems. 111 Therefore, considering all these circumstances, including the aggravating factors in this case, the expert evidence, and the case law, I assess Ms. Brunelle’s general damages in the amount of $65,000.00. Without the aggravating factors I would have assessed general damages in the amount of $50,000.00.

Punitive Damages 112 As noted, Ms. Brunelle also claimed punitive damages. 113 Aggravated and punitive damages are fundamentally different. As explained by the Supreme Court of Canada in Norberg v. Wynrib, supra, general damages are assessed taking into account any aggravating features of the case and must be distinguished from punitive or exemplary damages. The Court states at para. 54: “The latter are awarded to punish the defendant and to make an example of him or her in order to deter others from committing the same tort.” The Court goes on to indicate: “Although aggravated damages will frequently cover conduct which could be also the subject of punitive damages, as I noted, the two types of damages are distinguishable; punitive damages are designed to punish whereas aggravated damages are designed to compensate.” 114 I have already considered the aggravating factors in this case in assessing general damages. Although reprehensible, I do not find Mr. Shaw’s conduct, though extreme, to warrant an award of punitive damages in order to punish him and deter him and others from committing a similar act. Therefore, I will not order punitive damages.

Future Loss of Income and/or Loss of Competitive Advantage 115 Ms. Brunelle’s financial statement filed before trial indicates she is now earning more net income than she did before the injury occurred on August 22, 2007. At this time her income sources are Canada Pension, her teacher’s pension and minimal self-employment income. Ms. 394 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Brunelle testified she has not taken on any new life insurance clients since February 2010. 116 While working with Mr. Shaw and World Financial Group, Ms. Brunelle’s income was minimal. She had retired from teaching and prior to the injury had no intention of teaching again. She was 59 years old at the time of the injury and 63 at the time of trial. I prefer to deal with Ms. Brunelle’s future loss of income claim on the basis of her loss of competitive advantage. Based on all the evidence I am satisfied that due to the severe injury to her right (dominant) wrist she has and will suffer economic loss due to the impairment of her ability to compete for employment. As noted by McKinnon J. in Cerilli v. Ottawa (City) (2006), 30 M.P.L.R. (4th) 110 (Ont. S.C.J.) , damages for loss of competitive damage have been awarded where the injury could have some impact on the Plaintiff’s future employability: see O’Day v. Facoetti Estate, [2002] O.J. No. 2374 (Ont. S.C.J.) at para. 67. 117 The evidence in this case indicates that Ms. Brunelle’s marketability as an employee or as a self-employed life insurance agent has been substantially affected by her injury: see Honey v. Gamache, [1997] O.J. No. 5820 (Ont. Gen. Div.) at para. 28. Although she has the desire, she is now unable to work even part-time as a supply teacher which was her chosen field of work. Although she could do some minimal life insurance work, given that she has a licence, this too has become difficult and her ability to attract and retain clients is negatively impacted by her injury. 118 Due to her injury, Ms. Brunelle will only be able to work minimal hours. No evidence was provided as to the method by which to quantify Ms. Brunelle’s specific loss of competitive advantage. As a newly separated single woman no longer receiving spousal support, I find her evidence that she hoped and intended to do some form of part-time supply teaching or to expand her roster of life insurance clients to be credible. The fact is that Ms. Brunelle is now unable to do either in a meaningful way. Although she has tried to maintain some life insurance clients, she has not taken on any new clients since February 2010. 119 I must consider that Ms. Brunelle was 59 when she was injured and separated from her husband. I find it unlikely she would work as a part- time supply teacher or do the research and marketing necessary to expand her roster of her life insurance clients beyond the age of 65, whether or not she had suffered the wrist injury. I find that without suffering a wrist injury, Ms. Brunelle would have been able to earn at least $10,000 to $15,000 annually by supply teaching part-time. Her financial Shaw v. Shaw Blishen J. 395

statements indicate that she has only been able, and I find will only continue to be able, to earn approximately $2,700 to $4,200 annually for five years. Therefore, I order damages for loss of competitive advantage, as requested, in the amount of $25,000.00.

Future Care Costs 120 It was the opinion of expert occupational therapist, Sherry Taillefer, that Ms. Brunelle would require future professional services in the amount of $5,400.00; activities of daily living aids — a one-time cost of $3,317.00 and an annual cost of $356.20; home accessibility aids — a one-time cost of $254.00 and an annual cost of $58.00; assistance with indoor and outdoor home maintenance tasks — a one-time cost of $780.00 and an annual cost of $9,997.59; as well as contingency costs for surgery in the amount of $7,543.16. These figures were used by expert actuary Mr. Guy Martel in determining the present value of the care and expenses recommended by Ms. Taillefer. His report, dated February 24, 2011, notes a present value on April 27, 2010, before contingency costs for surgery, of $160,555.00 and with contingency costs for surgery on the date of valuation $168,098.00 or, if the surgery took place at age 74, $166,167.00. No issue was taken with Mr. Martel’s qualifications nor his methodology. 121 Ms. Sherry Taillefer was qualified as an expert in occupational therapy. She held up well and strongly maintained her opinion as to Ms. Brunelle’s future needs and future care costs under vigorous cross-examination. I find she is a professional with a great deal of expertise. She was clear that her role was not to diagnose or investigate but to observe and assess Ms. Brunelle’s functioning. She found no evidence that Ms. Brunelle was feigning or exaggerating her disability. Ms. Taillefer testified that her goal was to determine what Ms. Brunelle did before her injury and to make recommendations which would enable her to regain that level of functioning and independence. 122 There are some weaknesses in the evidence of Ms. Taillefer as follows: (1) She is registered and qualified as an occupational therapist by the College of Occupational Therapists of Ontario and is also certified by the College as a life care planner. Under cross-examination she was clear there was no separate qualification or certification spe- cialty for hands or wrists. In reviewing Ms. Taillefer’s curriculum vitae and considering the courses she has taken, it appears her ma- 396 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

jor interest lies in cognition, brain and spinal cord injuries. She took approximately ten courses in these areas whereas she took only one course in upper extremities in 1995. (2) Other than her own assessment of Ms. Brunelle, Ms. Taillefer relied on source documents which were limited and approximately two years old. She did not have any discussions with the doctors to update herself as to Ms. Brunelle’s medical progress. (3) Ms. Taillefer was clear that, apart from her own observations, she relied largely on self-reporting by Ms. Brunelle as to tasks such as driving, shovelling show, et cetera. She did observe Ms. Brunelle in her home doing tasks which would require similar actions and similar utilization of the hand, thumb and wrist. (4) The surveillance video taken in January 2010 by the investigator hired by Mr. Shaw, does, to some extent, contradict what Ms. Brunelle told Ms. Taillefer. Ms. Brunelle stated that she could not grasp a cylindrical object, however the video shows her holding and using a snow brush. The video also shows Ms. Brunelle opening her car door and holding up the hood of her car with her right hand. When questioned about the surveillance video, Ms. Taillefer stated that, although Ms. Brunelle may be able to do some of these tasks, she would have suffered pain in doing so. (5) Ms. Brunelle told Ms. Taillefer that she could not open a gas tank and yet she drove for approximately two-and-a-half years after the injury prior to trial and would of necessity had to open the gas tank from time to time. 123 Ms. Brunelle was able to cope to some extent with the activities of daily living although with significant pain, for the two-and-a-half years prior to trial without aids, housekeeping, and home maintenance assistance. Although I find Ms. Brunelle has significant difficulty due to her right wrist injury which caused weakness, swelling and pain, I find her claim of $160,555.00 for therapies, activities of daily living aids, home accessibility and home maintenance unreasonable. 124 The aids prescribed by Ms. Taillefer for homemaking, activities of daily living and home accessibility will reduce Ms. Brunelle’s pain, ena- bling her to perform daily household tasks more effectively and frequently and to do the weekly light housekeeping required for her townhouse. In addition, given her age, it is likely Ms. Brunelle will move to a smaller residence, by age 70, particularly given her limitations, and thereby reduce her costs. Shaw v. Shaw Blishen J. 397

125 I am not prepared to make any award for future surgery costs. Future surgery is speculative at best, according to the evidence of Dr. Pollack and Dr. Kim. In addition, I will not award damages for future occupational therapy assessments and treatment. Although those costs are less speculative, it is unclear whether they will be necessary and, if so, when. 126 I find that Ms. Brunelle will need the following: (1) Aids for homemaking, activities of daily living and home accessibility at a one-time cost of $3,571.00 and an annual cost of $414.23. (2) Housekeeping assistance for fall and spring cleaning (two times per year) for four hours each at $39.00 per hour for a total annual cost of $312.00. (3) The services of a handyperson to do inside home maintenance at what I consider to be a reasonable cost of $500.00 per year. (4) Lawn maintenance and snow removal at an annual cost of $1,000.00 to age 70, when I find it likely that Ms. Brunelle will move to a smaller residence, likely a condo or apartment where such maintenance will not be required. 127 The first three items of reasonable future costs are to be calculated by Mr. Martel using the same methodology and assumptions used in his report of February 24, 2011. He is also to recalculate the amount for lawn maintenance and snow removal to age 70. After Mr. Martel has done these recalculations based on my findings, both lawyers are to submit to me a final figure for each identified item and a total prior to my signing Judgment.

Summary of Damages 128 The damages are as follows: General and Aggravagted Damages $65,000.00 Loss of Competitive Advantage $25,000.00 Future Care Costs (Final figures to be provided by actuary, Mr. Guy Martel.) 129 Interest on the general damages and loss of competitive advantage is to be calculated as per s. 128 of the Courts of Justice Act from the date of the injury to the date of the release of my Judgment after I receive the final figures from Mr. Martel. 398 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Costs 130 In the event that the parties are unable to agree on costs, Mr. Shaw is to provide me with written submissions as to costs with regard to both the family law and damages claims within 60 days. Ms. Brunelle is to provide her submissions in response within 30 days of receipt of Mr. Shaw’s submissions. 131 Mr. Shaw is then permitted a further 14 days to reply regarding Ms. Brunelle’s submissions on the family claim, and Ms. Brunelle is permitted a further 14 days to reply regarding her claim for damages. Order accordingly. Stadelmann v. Dmytruk 399

[Indexed as: Stadelmann v. Dmytruk] Thomas Robert Charles Stadelmann (Claimant) and Kathleen Jessica Dmytruk (Respondent) British Columbia Supreme Court [In Chambers] Docket: Vancouver E102212 2011 BCSC 1323 Stromberg-Stein J. Heard: June 24, 2011 Judgment: June 24, 2011* Family law –––– Custody and access — Interim custody — Factors considered — Miscellaneous –––– Child began living in primary care of her mother and maternal grandmother and extended family — Pursuant to interim order of master, child lived with her father and paternal grandmother — Child was apprehended from her father and grandmother by Ministry, and since had lived in foster care of maternal aunt where she was essentially being cared for again by her maternal grandmother — Director sought to place child back with mother, but had been unable because of outstanding interim custody order in favour of father and paternal grandmother — Child was currently two years of age — Mother appealed interim order — Appeal allowed — Order was set aside — Parties were awarded joint custody and guardianship of child, and each party was awarded on interim basis primary residence with child on 50 per cent basis — Master was clearly wrong in continuing custody order on review considering that child protection order superseded his custody order — There was absolutely no reason why both parents should not have maximum contact with child. Cases considered by Stromberg-Stein J.: Baynes v. Lukyn (2008), 2008 BCSC 8, 53 R.F.L. (6th) 108, 2008 CarswellBC 1002, [2008] B.C.J. No. 3 (B.C. S.C.) — considered Van de Perre v. Edwards (2001), 2001 SCC 60, 19 R.F.L. (5th) 396, [2001] 11 W.W.R. 1, 204 D.L.R. (4th) 257, (sub nom. P. (K.V.) v. E. (T.)) 275 N.R. 52, (sub nom. K.V.P. v. T.E.) 156 B.C.A.C. 161, (sub nom. K.V.P. v. T.E.) 255 W.A.C. 161, 94 B.C.L.R. (3d) 199, 2001 CarswellBC 1999, 2001 Car- swellBC 2000, [2001] 2 S.C.R. 1014, [2001] S.C.J. No. 60, REJB 2001- 25876 (S.C.C.) — referred to

*A corrigendum issued by the court on October 12, 2011 has been incorporated herein. 400 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Statutes considered: Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 Generally — referred to

APPEAL by mother from interim custody order.

M.E. Mortimer, Q.C., for Claimant A.J. Rose, for Respondent

Stromberg-Stein J. (orally):

1 I will just do a very quick overview of some of the thoughts that I have here. 2 Sierra Rose-Lilly Stadelmann, born May 28, 2009, is the two-year- old daughter of the claimant, Thomas Stadelmann, and the respondent, Kathleen Dmytruk. In Sierra’s short life she has lived with her mother and father. She has lived in the primary care of her mother and maternal grandmother and extended family. She, pursuant to the order of a master, lived with her father and paternal grandmother. She was apprehended from her father and grandmother by the Ministry of Children and Family Development, and since has lived in the foster care of a maternal aunt where she is essentially being cared for again by her maternal grandmother. 3 There is a presentation hearing in Provincial Court, on July 6, 2011. At that time, the issue will be whether the Director had grounds to remove the child from her father and paternal grandmother. The Ministry apparently required the father and paternal grandmother to take anger management and parenting courses in order to reinstate the child to their care. They were somewhat resistant and have only just completed these courses. 4 The intention of the Ministry at the presentation hearing, if the grounds for removal are established, is to transition the child back to her father and paternal grandmother on a graduated basis with a six-month supervision order. Under the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 [CFCSA] the Provincial Court could not return the child to her mother because of the outstanding custody order of the master. Stadelmann v. Dmytruk Stromberg-Stein J. 401

5 The master on April 28, 2011, following a review of his earlier order, made the following orders, as set out in the notice of appeal: • that Thomas Robert Charles Stadelmann and his mother, Susan Litke, shall have interim custody of the child, Sierra Rose-Lilly Stadelmann, born May 28, 2009, from and after May 28, 2011; • that Thomas Stadelmann and Susan Litke shall facilitate regular and meaningful access between the child and Kath- leen Jessica Dmytruk, the mother, at least once per week for eight hours but not overnight; • the middle portion of the eight-hour access visit shall be supervised by an adult family member other than Caroline Dmytruk or James Dmytruk; • each party shall be responsible for delivery of the child or pickup of the child at the beginning and end of each access visit, and • both parties shall have a suitable car seat installed in their vehicle for the purpose of the pickup and drop-off of the child. 6 The appeal is brought by the respondent mother, Ms. Dmytruk, on the following grounds: • that the master erred in awarding joint custody to someone who was not a party and did not have an application or claim before the court; • that the master made a material error by not giving sufficient weight to the evidence of safety concerns with respect to the claimant father identified in an investigation by the Ministry of Children and Family Development; and • that the master misapprehended the evidence supplied by the Ministry in requiring that the respondent mother’s access be supervised. 7 The position of the claimant father is that the mother is, in effect, appealing the original order of the master. The master was brought up to date on review and the decision of the master on the review date, April 28, 2011, is correct. 8 The facts are essentially undisputed as to how the parties got to this state. I have read all of the material that has been placed before me, in- 402 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

cluding a number of affidavits. I intend to extensively adopt the written submissions provided by counsel for the respondent, as I agree with and cannot improve on them. I am not going to attribute, as I go along, this is a general attribution. 9 MR. MORTIMER: I’m only laughing because — I’m sorry, I’m only laughing because of a recent Court of Appeal decision. 10 THE COURT: And that is exactly the reason why I am saying it. Lis- ten to me. I am attributing. 11 The claimant commenced a proceeding in this court for custody of the child. On June 29, 2010, the claimant, and I am going to call the claimant the father, by notice of motion, applied for interim custody of the child. At the time the custody application was filed by the father, the child was living with her mother, the respondent, who maintains that she had been the primary caregiver since birth. 12 On September 28, 2010, there was a contested interim custody application that was heard by the master. Before this application was heard, there had been a complaint made to the Director by the father’s mother, Susan Litke, relating to the quality of care of the child given by the mother and her family. At the time the child had health issues, and I suppose still does, and was required to take medication. Eventually she did have open-heart surgery. Her medical issues are not as serious as they once were, but they are still there. 13 During the Director’s investigation of the complaint against the mother, the mother then raised concerns about physical abuse by the father against the mother’s three-year-old child by another man. An investigation was conducted by the Director into concerns with respect to the father. 14 In the result, the Director found there was no neglect by the mother, particularly with respect to medical treatment for the child. The Director concluded the child was not in need of protection while in the care of the mother. 15 At the same time, the Director made findings of physical abuse with respect to the three-year-old child, the stepchild of the father, with respect to an inappropriate spanking incident. As a result, the Director issued directions with respect to planning for the safety of the children. The first was the father not be given unsupervised access to Sierra; he was to have no access to his stepchildren, there were two boys but only one made allegations that were investigated; and if the father were Stadelmann v. Dmytruk Stromberg-Stein J. 403

awarded custody, the Director should be notified forthwith as the Direc- tor would be forced to bring Sierra into care. 16 That is the background and that was set out in a letter dated Septem- ber 30, 2010. On September 28, 2010, the parties appeared before the master who granted the following orders: Sierra be placed in the interim joint custody of the father and the father’s mother, Susan Litke, with a requirement that Susan Litke be present at all times when the father was in the presence of the child. 17 Susan Litke, the paternal grandmother of the child, was not a party and did not have an application before the court for relief. 18 There were two orders with respect to the Director, although the Di- rector was not a party. Following the master’s orders, the Director applied to the master to reconsider his decision, and also applied with respect to the orders that had been made against the Director. The master refused to reconsider the matter. 19 On November 16, 2010, the Director successfully appealed the portion of the master’s order relating to the requirement that the Director must appear before the master prior to acting on any intention to remove the child from the father’s care. 20 Despite that successful appeal, the joint custody order with respect to the father and his mother was still in place. The Director attempted to work with these parties to plan for a safe placement for the child. 21 The father was told by the Director, as early as June 30, 2010, that he was required to complete anger management and parenting courses in order to address the findings the Director had made that he had physically abused his three-year-old stepson. 22 I want to interject at this point to say those are in fact unproven allegations. The Director was acting on those allegations and found them to require the steps that the Director eventually took, but I am not assuming that in fact the Director is correct in her finding. That would be a matter for the Provincial Court at the appropriate time to decide in the protection proceedings. 23 In any event, neither the father nor his mother took the required courses and the Director felt their attempt to work with the father and his mother were unsuccessful, raised safety concerns, and therefore the Di- rector removed the child from the care of her father and her paternal grandmother. The child was placed in a foster home, with the mother’s aunt. 404 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

24 There is an allegation that during the time the father had custody of Sierra, he provided limited access to the mother. There is an allegation he placed restrictions on the master’s access, such that it would not include her family members, and her two stepbrothers. 25 With respect to the Provincial Court proceedings, I have already indicated they were commenced on December 2, 2010, under s. 30 of the CFCSA. The Director has asserted there were reasonable grounds to believe Sierra was in need of protection and there were no less disruptive measures available. The parties appeared at a presentation hearing in early January 2011. At that time it was adjourned so the father could complete the anger management courses he had been requested to take and had yet to complete, so Sierra could be returned to him under supervision. 26 The Director has not been able to return the child to the child’s mother because of the outstanding interim custody order in favour of the father and the paternal grandmother. The CFCSA requires or provides that the child can only be returned to a parent apparently entitled to custody. That necessitated the placement of the child in foster care with the aunt. 27 Both parties have had access. The father’s has been supervised until he completes anger management, which I understand he has now done. 28 The presentation hearing is now set for July 6, 2011. In the meantime, on April 28, 2011, there was a review before the master, as envisioned in his original order, and at that time the mother asked that the order be changed so she and the father would both have joint custody. The master refused to make that change, and again ordered joint custody to the father and the father’s mother, and further ordered that the mother of the child only have eight hours of specified access, again to be supervised by an adult other than her own mother or brother. 29 The appeal is based on error by the master. With respect to the first ground, it is alleged the master erred in awarding joint custody to someone who was not a party and did not have an application before the court. The test is whether the master was clearly wrong. There is clear law that awarding custody to a person who is not a party to the proceeding meets the clearly wrong test: Van de Perre v. Edwards, 2001 SCC 60, 94 B.C.L.R. (3d) 199 (S.C.C.). The decision of this court in Baynes v. Lukyn, 2008 BCSC 8, [2008] B.C.W.L.D. 4856 (B.C. S.C.), stands for the same proposition. Stadelmann v. Dmytruk Stromberg-Stein J. 405

30 Allowing a person who does not have an application before the court does not permit the other side to either examine or have notice that the person is being considered. In this case Ms. Litke did not have such an application and therefore the order relating to Ms. Litke is set aside as clearly wrong. 31 With respect to the second ground of appeal, it is alleged the master made a material error by not giving sufficient weight to the evidence of the safety concerns with respect to the father identified after an investigation by the Ministry for Children and Families. At the original proceeding before Master Taylor, counsel for the mother brought to the attention of the master significant safety concerns with respect to the father, presenting a risk to the child, and the master was told the child would be apprehended if placed with her father. 32 The affidavit in these proceedings at Tab 22 sets out the findings of the Director after a lengthy investigation. On April 28, 2011, the master made no mention of any of the matters involving the Director’s investigation with respect to the issue of the safety of the child with the father. 33 The master appears to have based his findings on what he must have perceived to be duelling parents in a custody battle without any consideration of the child protection matters. In my view, in that regard, he made a material error. 34 The third ground of appeal is that the master misapprehended the evidence supplied by the Ministry in requiring that the respondent’s access be supervised. In the April 28, 2011 decision, the master set the mother’s access to be specified but with supervision. There was no evidence before the master that could justify or support a supervision order. In fact, that was contrary to the finding of the Director that there were clearly no concerns with respect to the ability of the mother to parent. In my view, the master clearly misapprehended the evidence. 35 Awarding custody to Susan Litke, who is not a party to the family law action, was an error by the master. Ignoring the Ministry’s safety concerns was a material error. The master incorrectly applied the test for the best interests of the child by awarding custody to the father, who had been found to be a risk to her safety, when there was a parent available who had been determined by the Ministry to be an appropriate caregiver. 36 The master granted the father custody of the child, notwithstanding the involvement of the Ministry and the stated concerns for the safety of the child, and the stated intention of the Ministry that if the father be granted custody, the Ministry would take the child into care. 406 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

37 The conclusion of the Ministry that there were no child protection findings of physical or medical neglect with respect to the mother basically dissipated any concern with respect to parenting abilities of the mother. With respect to the father, as I have indicated, the issue is really still outstanding. The Ministry has determined there are some concerns, but I note there were no police charges with respect to allegations of physical abuse by the father toward the stepchild, and further, one has to be suspicious about the timing of such concerns in the custody proceedings. 38 However, that is not for me to determine. The Ministry has decided that the father not have unsupervised access to the child, in any event, and that was what was facing the master. The requirement for supervision was with respect to the father. There is simply nothing with respect to the mother. 39 The master should have considered that the child protection order superseded his custody order, but notwithstanding he held on review that he would continue the original custody order. In my view he was clearly wrong. 40 The issue is what should be done. The mother suggests the child be returned to her custody on the basis of maintaining status quo. As I said to counsel in argument, in this child’s short life and what has passed, it is hard to discern what the status quo is. So what is in Sierra’s best interests? 41 In my view, applying all the principles I have to with respect to custody and access of children, to maximize the contact with both parents, there is absolutely no reason, why both parents should not have maximum contact with the child. 42 In setting aside the orders of Master Taylor, to give effect to my reasons, I make the following order: The claimant and the respondent will have joint custody and joint guardianship of the child, Sierra. This order is without prejudice to the Provincial Court child protection proceedings. 43 Each parent, in the interim, should have primary residence of the child 50 % of the time. I leave it to counsel to work out a parenting plan. The parties could do it week-on/week-off or two weeks on/two weeks off, whatever they mutually agree to. If they cannot agree, then it can be week-on-/week-off. Counsel can address the drop-offs and the pickups if you wish, or I can deal with that now. 44 Can I leave it to counsel to work out now? Stadelmann v. Dmytruk Stromberg-Stein J. 407

45 MR. MORTIMER: I would hope so. 46 MS. ROSE: Yes. 47 MR. MORTIMER: Unless my friend objects, I indicated to my friend something I learned today regarding July. 48 THE COURT: Oh. 49 MR. MORTIMER: And unless my friend objects — 50 THE COURT: Go ahead and tell me. 51 MR. MORTIMER: — I think we should tell you under the circumstances. 52 THE COURT: Sure. 53 MR. MORTIMER: I am instructed by my client, who I phoned at the lunch break, that yesterday Debbie Young, the social worker, indicated that on July — he’s now getting overnight visits. 54 THE COURT: Okay. 55 MR. MORTIMER: On July, subject of course to what happened today, they were going to return the child Sierra to his care. 56 THE COURT: Okay. 57 MR. MORTIMER: With his mother, and that they would be supervis- ing monthly. 58 THE COURT: Okay. 59 MR. MORTIMER: And I can’t recall if he even told me what term that supervision would be. 60 THE COURT: So then my order jives with what is going to happen, obviously. 61 MR. MORTIMER: Yes. I would expect with your order that when we appear on July the 6th, if Ms. Young’s position doesn’t change, because it has changed from time to time, but that’s an aside, my friend and I will appear and we will tell the court what order you have made, and I assume that the child will fit into that schedule. So if my friend and I have not agreed on how the 50/50 should work, then we will be talking about week-on/week-off. 62 THE COURT: Okay. 63 MR. MORTIMER: But I’m fairly confident that my friend and I can work it out. 64 THE COURT: I do not want you to be in a situation where they cannot agree. I am actually away for two months as of June 30. The order 408 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

can read 50 %, and if the parties cannot otherwise agree, one week on/one week off, so you do not have to try to get back before me. 65 MR. MORTIMER: That’s very helpful, My Lady. 66 MS. ROSE: Yes. Appeal allowed. Welsh v. Welsh 409

[Indexed as: Welsh v. Welsh] James Alan Welsh (Plaintiff / Respondent) and Ina Meintiena Welsh (Defendant / Applicant) Alberta Court of Queen’s Bench Docket: Edmonton 4803-144777 2011 ABQB 686 D.C. Read J. Heard: September 13, 2011 Judgment: November 8, 2011 Conflict of laws –––– Property — Jurisdiction over real property — In miscellaneous personal actions –––– Parties were married in 2000 and signed prenuptial agreement shortly before marriage — Parties separated in 2008 — Before separation, parties sold matrimonial home in Alberta to buy property in British Columbia — Sale was completed after separation and at time of hearing, husband resided in BC property while wife lived in Alberta — Both parties had ownership of several businesses including one that was jointly owned by them — Divorce action was initiated by husband and that relief was granted — Wife applied for several orders including exclusive possession of BC property, freezing of husband’s corporate assets, and payment from corporation to husband and wife personally — Wife also sought order that she be named director of husband’s corporation — Wife finally sought order for full financial disclosure from husband’s corporation — Application granted as to exclusive possession and freezing of assets; application dismissed as to other relief — Husband claimed that court had no jurisdiction over out-of-province property — How- ever, personal obligation between parties, ability of local court to supervise judgment, and fact that order would have effect in local jurisdiction all argued for wife’s relief — Husband attorned to Alberta jurisdiction and could not claim that local court did not have jurisdiction — BC law allowed transfer of home from husband to wife so there was no reason for Alberta court to oppose transfer — As well, husband had US citizenship and could live in his Arizona property while no such option existed for wife — Mareva injunction was appropriate to freeze husband’s assets as requested by wife — Wife had strong case to assets as matrimonial property — As husband failed to cooperate with financial disclosure requests, it was reasonable to believe that he could try to dissipate assets if these were not frozen — Corporation was not actively in business so freezing order would not have negative effect on husband — Order to make wife co-director was highly unusual and intrusive in circumstances — Freezing order was sufficient to protect wife’s interests in matrimonial property — There was 410 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

similarly no justification for payments to be made from corporation to wife and husband directly — Financial disclosure was requested of husband forthwith, failing which he could be liable for contempt. Family law –––– Division of family property — Determination of ownership of property — Miscellaneous –––– Parties were married in 2000 and signed prenuptial agreement shortly before marriage — Parties separated in 2008 — Before separation, parties sold matrimonial home in Alberta to buy property in British Columbia — Sale was completed after separation and at time of hearing, husband resided in BC property while wife lived in Alberta — Both parties had ownership of several businesses including one that was jointly owned by them — Divorce action was initiated by husband and that relief was granted — Wife applied for several orders including exclusive possession of BC property, freezing of husband’s corporate assets, and payment from corporation to husband and wife personally — Wife also sought order that she be named director of husband’s corporation — Wife finally sought order for full financial disclosure from husband’s corporation — Application granted as to exclusive possession and freezing of assets; application dismissed as to other relief — Order to make wife co-director was highly unusual and intrusive in circumstances — Freezing order was sufficient to protect wife’s interests in matrimonial property — There was similarly no justification for payments to be made from corporation to wife and husband directly. Family law –––– Division of family property — Practice and procedure — Documents on application — Financial statements –––– Parties were married in 2000 and signed prenuptial agreement shortly before marriage — Parties separated in 2008 — Before separation, parties sold matrimonial home in Alberta to buy property in British Columbia — Sale was completed after separation and at time of hearing, husband resided in BC property while wife lived in Alberta — Both parties had ownership of several businesses including one that was jointly owned by them — Divorce action was initiated by husband and that relief was granted — Wife applied for several orders including exclusive possession of BC property, freezing of husband’s corporate assets, and payment from corporation to husband and wife personally — Wife also sought order that she be named director of husband’s corporation — Wife finally sought order for full financial disclosure from husband’s corporation — Application granted as to exclusive possession and freezing of assets; application dismissed as to other relief — Fi- nancial disclosure was requested of husband forthwith, failing which he could be liable for contempt. Remedies –––– Injunctions — Availability of injunctions — Mareva injunctions — General principles –––– Parties were married in 2000 and signed prenuptial agreement shortly before marriage — Parties separated in 2008 — Before separation, parties sold matrimonial home in Alberta to buy property in British Columbia — Sale was completed after separation and at time of hearing, Welsh v. Welsh 411

husband resided in BC property while wife lived in Alberta — Both parties had ownership of several businesses including one that was jointly owned by them — Divorce action was initiated by husband and that relief was granted — Wife applied for several orders including exclusive possession of BC property, freezing of husband’s corporate assets, and payment from corporation to husband and wife personally — Wife also sought order that she be named director of husband’s corporation — Wife finally sought order for full financial disclosure from husband’s corporation — Application granted as to exclusive possession and freezing of assets; application dismissed as to other relief — Husband claimed that court had no jurisdiction over out-of-province property — How- ever, personal obligation between parties, ability of local court to supervise judgment, and fact that order would have effect in local jurisdiction all argued for wife’s relief — Husband attorned to Alberta jurisdiction and could not claim that local court did not have jurisdiction — BC law allowed transfer of home from husband to wife so there was no reason for Alberta court to oppose transfer — As well, husband had US citizenship and could live in his Arizona property while no such option existed for wife — Mareva injunction was appropriate to freeze husband’s assets as requested by wife — Wife had strong case to assets as matrimonial property — As husband failed to cooperate with financial disclosure requests, it was reasonable to believe that he could try to dissipate assets if these were not frozen — Corporation was not actively in business so freezing order would not have negative effect on husband. Cases considered by D.C. Read J.: Aetna Financial Services Ltd. v. Feigelman (1985), 1985 CarswellMan 19, 1985 CarswellMan 379, [1985] 1 S.C.R. 2, 15 D.L.R. (4th) 161, [1985] 2 W.W.R. 97, 56 N.R. 241, 32 Man. R. (2d) 241, 29 B.L.R. 5, 55 C.B.R. (N.S.) 1, 4 C.P.R. (3d) 145, [1985] S.C.J. No. 1 (S.C.C.) — referred to Catania v. Giannattasio (1999), 1999 CarswellOnt 950, 28 C.P.C. (4th) 207, 118 O.A.C. 330, 174 D.L.R. (4th) 170, [1999] I.L.Pr. 630, [1999] O.J. No. 1197 (Ont. C.A.) — followed Duke v. Andler (1932), 1932 CarswellBC 101, [1932] S.C.R. 734, [1932] 4 D.L.R. 529 (S.C.C.) — referred to Hamza v. Hamza (1997), (sub nom. International Assn. of Science & Technology for Development v. Hamza) 146 W.A.C. 342, (sub nom. International Assn. of Science & Technology for Development v. Hamza) 200 A.R. 342, 29 R.F.L. (4th) 460, [1997] 9 W.W.R. 592, 1997 Carswell- Alta 723, 53 Alta. L.R. (3d) 80, [1997] A.J. No. 836 (Alta. C.A.) — considered Jeske v. Jeske (1982), 1982 CarswellBC 256, 39 B.C.L.R. 396, 29 R.F.L. (2d) 348 (B.C. S.C.) — referred to Katz v. Katz (1993), 48 R.F.L. (3d) 1, 141 A.R. 287, 46 W.A.C. 287, 1993 CarswellAlta 447, [1993] A.J. No. 554 (Alta. C.A.) — considered 412 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Minera Aquiline Argentina SA v. IMA Exploration Inc. (2006), 32 C.P.C. (6th) 31, 58 B.C.L.R. (4th) 217, [2007] 1 W.W.R. 43, 2006 BCSC 1102, 2006 CarswellBC 1776, 32 B.L.R. (4th) 165, [2006] B.C.J. No. 1626 (B.C. S.C.) — referred to Mitrovic v. Mitrovic (2007), 2007 CarswellAlta 69, 2007 ABQB 44 (Alta. Q.B.) — followed T. (S.L.) v. T. (A.K.) (2008), 2008 ABQB 76, 2008 CarswellAlta 108 (Alta. Q.B.) — referred to Statutes considered: Bank Act, S.C. 1991, c. 46 s. 461(4) — considered Matrimonial Property Act, R.S.A. 2000, c. M-8 Generally — referred to s. 1(c) “matrimonial home” — referred to s. 1(c) “matrimonial home” (ii) — considered s. 7 — considered s. 19 — considered s. 20 — considered s. 34 — considered

APPLICATION by wife for relief including exclusive possession of property, order that she be named director of husband’s company, and payment from husband’s company.

No one for Plaintiff Harold Hinz, for Respondent

D.C. Read J.: Facts: 1 James Welsh and Ina Welsh married on December 23, 2000 in Sher- wood Park, Alberta. The parties had signed an pre-nuptial agreement on December 21, 2000, which provided for the distribution of property upon divorce. The agreement also stated that the parties agreed to be governed by the laws of Alberta. The parties separated on February 3, 2008, and Mr. Welsh initiated divorce proceedings in Alberta on February 8, 2008 by a combined Statement of Claim for Divorce and Division of Matrimo- nial Property (“Alberta Action”). The matter is under case management. I am case management judge. Corollary relief was severed from the divorce by my order, and a Divorce Judgment was granted on July 18, 2011. Welsh v. Welsh D.C. Read J. 413

2 From 2004 until their separation, the parties’ matrimonial home was in Edmonton. Shortly before they separated, Mr. and Ms. Welsh decided to sell their home in Edmonton and purchase a property in Osoyoos, Brit- ish Columbia. Prior to February 3, 2008, the parties had put a deposit down on the Osoyoos property, but had not completed the purchase. The Edmonton home had sold but the parties retained possession of it until the end of March. Money from the sale of the Edmonton home was used to fund the deposit on the Osoyoos property. A line of credit with Sco- tiabank provided the remainder of the purchase price. At the time of their separation, the parties also owned a house in Phoenix, Arizona. 3 After the parties separated, for some time Ms. Welsh lived in the Phoenix property and Mr. Welsh lived in the Osoyoos property. Ms. Welsh has currently returned to Edmonton for family reasons. Mr. Welsh is still living in the Osoyoos property. The parties have not resided together since separating on February 3, 2008, and have never resided together at the Osoyoos property. 4 Mr. Welsh has dual Canadian and American citizenship and could relocate to Phoenix. Ms. Welsh is Canadian and cannot live permanently at the Phoenix property. 5 In addition, Mr. and Ms. Welsh owned multiple corporations. Mr. Welsh was the sole shareholder of Markdale Ltd., which became R. J. Welsh Holdings Ltd. The primary asset of Markdale, and later R. J. Welsh Holdings Ltd. was a strip mall. This strip mall has now been sold. As of September 13, 2011 Mr. Welsh continues to be the sole shareholder of R. J. Welsh Holdings according to corporate records. Mr. and Ms. Welsh each owned 50% of the shares of Pegasus Saddlery & West- ern Wear Ltd., which operated a saddle and western wear shop. The shop has now been sold. Pegasus has now been struck for failure to file annual returns. 6 Ms. Welsh estimates that the corporations received somewhere between $1.5 million to $2 million dollars from the sales of corporate assets. Mr. Welsh controls the proceeds from these sales and all the information concerning the corporations. On March 17, 2011, at a case management hearing, I ordered all accounting and corporate documentation from R. J. Welsh Holdings Ltd., Pegasus Saddlery & Western Wear Ltd., and Markdale Ltd. to be delivered to an accountant appointed by court order. Mr. Welsh was present when the order was made. He has failed to comply with this order. 414 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

7 Ms. Welsh believes that the funds from the sale of the various assets are deposited in bank accounts in the name of Mr. Welsh and R. J. Welsh Holdings. R. J. Welsh Holdings has an account with TD Canada Trust in St. Albert, Alberta and one with Bank of Montreal in Osoyoos, B.C.. Pegasus Saddlery & Western Wear Ltd. has an account with Servus Credit Union in Edmonton. Mr. Welsh has a line of credit with Sco- tiabank in Osoyoos, secured against the Osoyoos property. 8 In addition to the Alberta Action, Mr. Welsh also commenced an action in the State of Arizona (“Arizona Action”) and brought a parallel application concerning matrimonial property in Arizona. Mr. Welsh agreed on the record in the Alberta Action that Alberta is the proper jurisdiction to hear the matter, and when pressed to do so at a case management hearing, Mr. Welsh promised the Court that he would end the Ari- zona Action. At a later case management hearing, Mr. Welsh represented that he had discontinued the Arizona Action, as promised. However, recent correspondence from counsel in Arizona seems to indicate that the Arizona Action remains live. 9 Mr. Welsh also started an action in British Columbia (“British Co- lumbia Action”) concerning the Osoyoos property. As with the Arizona Action, Mr. Welsh also promised to end the British Columbia Action. However, it remains live as well. 10 Since the parties’ separation, Mr. Welsh has failed to pay various expenses associated with maintaining the Osoyoos property, even though he has been living there. These include property taxes, payments on the Scotiabank line of credit, condominium fees, gas and utilities. In order to maintain the property, and to prevent Scotiabank from foreclosing, Ms. Welsh has paid these expenses herself. At previous case management hearings, held on August 20, 2008 and on September 17, 2008, Mr. Welsh was ordered to reimburse Ms. Welsh for these expenses. On May 26, 2011, the Court again ordered Mr. Welsh to reimburse Ms. Welsh for expenditures for the Osoyoos property that she paid. Mr. Welsh did provide some funds as a consequence of these orders but has not completely complied with them. 11 At the May 26, 2011 case management hearing, it was agreed between the parties that they would proceed by desk application to obtain the divorce and that corollary relief and matrimonial property would be severed in order to permit this to occur. The divorce has now been granted. Welsh v. Welsh D.C. Read J. 415

12 At a case management hearing held on September 13, 2011, Ms. Welsh applied for several orders: an order for exclusive possession of the Osoyoos property; an order prohibiting R. J. Welsh Holdings Ltd. from paying out, disposing of, or otherwise dissipating any assets of the corporations including any bank accounts in the name of the corporations; an order naming Ms. Welsh a Director of R. J. Welsh Holdings; an order requiring R. J. Welsh Holdings to pay Ms. Welsh the money the Court previously ordered Mr. Welsh to pay; an order requiring R. J. Welsh Holdings to pay the outstanding amount on the Scotiabank line of credit registered against the Osoyoos property; an order for R. J. Welsh Hold- ings to pay both Mr. and Ms. Welsh a lump sum payment of $75,000; and an order for R. J. Welsh Holdings to deliver all financial and banking documentation, as previously ordered by the Court. Mr. Welsh did not appear at this hearing, although properly served. He did send a letter to the Court saying that he would not attend the hearing and indicating that it was now his position that there was no need for the continued involvement of the Alberta courts. Mr. Welsh has not discontinued the Alberta Action.

Issues: 13 Ms. Welsh’s application raises nine issues: 1. Does the Alberta Court have jurisdiction to grant Ms. Welsh exclusive possession of the property located in Osoyoos, British Columbia? 2. If so, should Ms. Welsh receive exclusive possession of the Osoyoos property? 3. Does the Alberta Court have jurisdiction to deal with bank accounts located outside of Alberta? 4. If so, should the Court grant a freezing order respecting the bank accounts held in the name of the matrimonial corporations and Mr. Welsh? 5. Should the Court order that Ms. Welsh be named a Director of R. J. Welsh Holdings Ltd.? 6. Should R. J. Welsh Holdings Ltd. be ordered to pay to Ms. Welsh all funds that the Court previously ordered Mr. Welsh to pay, including ongoing monthly spousal support? 416 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

7. Should R. J. Welsh Holdings Ltd. be ordered to pay out in full the outstanding amount due and owing on the Line of Credit registered against the Osoyoos property? 8. Should R. J. Welsh Holdings Ltd. be ordered to pay Mr. and Ms. Welsh an equal lump sum amount of $75,000? 9. Should James Welsh as director of R. J. Welsh Holdings Ltd. be ordered to deliver all financial accounting and banking documentation to the court appointed accountant as previously ordered?

Analysis: Jurisdiction to Grant Exclusive Possession to the Osoyoos Property 14 The Osoyoos property is, of course, located outside of Alberta. As a general rule, courts in one country have no jurisdiction to deal with immovables in another: Duke v. Andler, [1932] S.C.R. 734 (S.C.C.), at 738- 39. This restriction on jurisdiction applies equally to immovables located in another province of Canada: Jean-Gabriel Castel & Janet Walker, Ca- nadian Conflict of Laws 6th ed. (Markham: LexisNexis Canada, 2005). However, courts may affect rights to foreign immovables by exercising in personam jurisdiction and enforcing a personal obligation between the parties: Duke, supra at 739; Mitrovic v. Mitrovic, 2007 ABQB 44 (Alta. Q.B.) at para. 25. 15 Catania v. Giannattasio, [1999] O.J. No. 1197, 118 O.A.C. 330 (Ont. C.A.) lists four requirements that must be met before a court will exercise in personam jurisdiction to affect interests in foreign immovables: 1. The Court must have jurisdiction over the defendant; 2. The parties must have a personal obligation running between them; 3. The local court must have the ability to supervise the execution of the judgment; and 4. The Court will not exercise jurisdiction if the order would be of no effect in the lex situs, but the mere fact that courts in the situs would not recognize the personal obligation will not bar the exercise of in personam jurisdiction. 16 Since an order granting Ms. Welsh possession of the matrimonial home would affect rights to a foreign immovable, I can only grant the order sought if these requirements are met. Welsh v. Welsh D.C. Read J. 417

17 At first blush, the requirement that the Court have jurisdiction over the defendant seems easily met. This Court has jurisdiction over the De- fendant Ms. Welsh, who currently resides in Alberta. However, in this case, it is Ms. Welsh who has brought the application. As a consequence, in my view, I cannot grant the order unless this Court could also exercise in personam jurisdiction over Mr. Welsh, the Respondent to the application. 18 I conclude, however, that this Court has jurisdiction over Mr. Welsh because he agreed on the record to attorn to Alberta. In addition, he is the Plaintiff in these proceedings and the party who brought the action for divorce and division of matrimonial property in Alberta. 19 Historically, a contractual or equitable obligation between the parties met the second requirement: that the parties have a personal obligation running between them. Here the requirement is complicated by the fact that unlike most cases, where the parties have a contract or trust relationship, in this case a statute, the Matrimonial Property Act, R.S.A. 2000 c. M-8 [“MPA”], grants the Court the ability to distribute property or assign rights between the parties. 20 In Mitrovic, supra, Veit J. considered whether to exercise in personam jurisdiction to award a wife an interest in property held by the husband in Croatia, under the MPA. Justice Veit specifically addressed the second requirement, and concluded: “Mr. Mitrovic has an obligation to his wife; this is not only the moral obligation imposed by the marriage itself but the legal obligation imposed by the Matrimonial Property Act.”: Mitrovic, supra at para. 25. The wife received half of the husband’s interest in the property. 21 In Mitrovic, the order was made under s. 7 of the MPA which expressly provides that the court is to distribute the property “in a manner that it considers just and equitable.” Ms. Welsh seeks a matrimonial possession order under s. 19 of the MPA. This provision does not contain a specific reference to equity. However, when read in the context of the rest of Act, particularly the factors set out in s. 20, it seems clear that the court is to grant an order for matrimonial home possession on equitable principles. 22 Based on the reasoning in Mitrovic, I find that Ms. Welsh meets the second requirement, and there is a personal obligation between the parties. 23 The third factor concerns the Court’s ability to supervise the judgment. This depends upon Mr. Welsh’s presence in Alberta. Currently, 418 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Mr. Welsh lives in British Columbia. However, his corporation, R. J. Welsh Holdings is registered in Alberta and Mr. Welsh also has family in Alberta. In addition, he has bank accounts in Alberta. 24 Mr. Welsh has not obeyed all of this Court’s orders in the past. In- deed, he has now questioned the jurisdiction of this Court. However, in my view, he has a sufficiently significant connection to Alberta that the execution on the judgment can be supervised by this Court. Therefore, the third requirement is satisfied. 25 The fourth requirement has created some confusion. Although it sounds limiting, it merely requires that the defendant have the ability to transfer an interest in the immovable according to the laws of the lex situs. In other words, such a transfer must not be illegal or impossible according to the laws where the property is situated: Minera Aquiline Argentina SA v. IMA Exploration Inc., 2006 BCSC 1102 (B.C. S.C.) at paras. 175-77. 26 Nothing in British Columbia law prevents Mr. Welsh from giving exclusive possession of the home in Osoyoos to Ms. Welsh. Such a transfer is neither illegal nor impossible. 27 As Ms. Welsh meets all four criteria for the Court to exercise in personam jurisdiction over Mr. Welsh, I find that this Court may order Mr. Welsh personally to give Ms. Welsh exclusive possession of the Osoyoos property.

Should Ms. Welsh Receive Exclusive Possession of the Osoyoos Property? 28 Section 19 of the MPA allows the Court to grant a spouse exclusive possession of the matrimonial home. The MPA does not allow the Court to grant a spouse exclusive possession of real property that is not the matrimonial home. 29 The definition of “matrimonial home” requires that the property “is or has been occupied by the spouses as their family home.”: MPA, s. 1(c)(ii). The parties did not obtain possession of the Osoyoos property until after they had separated, and never lived in it together. However, before they separated, Mr. and Ms. Welsh had already sold their Edmonton matrimonial home, and had put a deposit down on the Osoyoos property. They intended it to be their new family home. Both have lived in the Osoyoos property separately. The parties had no other family home from March, 2008 onwards. Because both parties have oc- Welsh v. Welsh D.C. Read J. 419

cupied it, and it was intended to be their family home, I conclude that the Osoyoos property is a “matrimonial home” for the purposes of the MPA. 30 Section 20 of the MPA, supra, lists the factors the Court should consider when determining whether to grant an order for exclusive possession of the matrimonial home: (a) the availability of other accommodation within the means of both the spouses; (b) the needs of any children residing in the matrimonial home; (c) the financial position of each of the spouses; and (d) any order made by a court with respect to the property or the support or maintenance of one or both of the spouses. 31 In this case, all of the factors favour granting Ms. Welsh exclusive possession of the Osoyoos property. As an American citizen, Mr. Welsh could live permanently in the Arizona property whereas Ms. Welsh lacks the necessary status in the United States to relocate there. There are no children, and so the second factor is not applicable. Mr. Welsh is in a significantly better financial position than Ms. Welsh. 32 In addition to the factors listed in the MPA, Mr. Welsh’s actions indicate a desire not to maintain the Osoyoos property. On several occasions he has failed to pay many of the expenses associated with the property despite the fact that he was living there. Ms. Welsh has paid these expenses and prevented the property from going into foreclosure. 33 Weighing the factors in the MPA as well as Mr. Welsh’s failure to properly maintain the Osoyoos property, I find that Ms. Welsh should receive exclusive possession of the Osoyoos property.

Jurisdiction to Affect Rights to Bank Accounts Outside Alberta 34 Ms. Welsh seeks an order prohibiting the paying out or dissipation of assets in bank accounts. Some of these accounts are in British Columbia, which again raises the problem of the Court issuing an order affecting rights to property located in a foreign jurisdiction. 35 The Bank Act, S.C. 1991, c. 46, s. 461(4), states that the indebtedness of a bank by reason of a deposit in an account is located in the same place as the branch of the account. Therefore, bank accounts in branches outside of Alberta are located in a foreign jurisdiction. 36 Bank accounts are moveable property. Unlike immovables, courts have jurisdiction to deal with moveables located in a foreign jurisdiction: 420 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Jeske v. Jeske (1982), 39 B.C.L.R. 396 (B.C. S.C.). Therefore, this Court may affect rights to bank accounts located in British Columbia.

Should the Court Grant a Freezing Order Respecting the Bank Accounts? 37 Ms. Welsh applies for a freezing order on all bank accounts, citing section 34 of the MPA in support of her application. Section 34 provides: 34(1) If the Court is satisfied that a spouse intends to transfer property to a person who is not a bona fide purchaser for value or to make a substantial gift of property that may defeat a claim of the other spouse under this Act, the Court may, by order, restrain the making of the transfer or gift. (2) An application for an order under subsection (1) may be made while the spouses are cohabiting. (3) An application for an order under subsection (1) may be made as an application in proceedings commenced under this Act or by separate application. (4) An application for an order under subsection (1) may be made ex parte. (5) If an application is made ex parte, the Court may dispense with service of notice of the application or direct that the application be served at a time and in a manner that it sees fit. 38 I do not read s. 34 as creating a general prohibition on disposition of property before trial. Nor am I able to find any other express general prohibition on disposition of property within the MPA. 39 In Katz v. Katz (1993), 141 A.R. 287 (Alta. C.A.) on a motion for a stay of execution pending an appeal, Cˆot´e J.A., stated “[a]nd I daresay that she is right when [counsel for one of the parties] says that ordinarily orders intended to stop the frittering away of assets pending trial in a matrimonial property case are made under the court’s equitable jurisdiction as Mareva injunctions... and not under express words of the Matri- monial Property Act. 40 In Hamza v. Hamza (1997), 200 A.R. 342 (Alta. C.A.) [Hamza], a husband kept significant assets in societies incorporated in Switzerland to prevent the Court from distributing the assets to his wife in a matrimonial property dispute. Among the number of interim orders made by a chambers judge and appealed to the Court of Appeal was an order for a Mareva-type injunction. Speaking for the majority of the Court, Conrad J.A. found that while the order was discretionary, the chambers judge Welsh v. Welsh D.C. Read J. 421

had properly exercised his discretion in granting the order and there was no error in principle in the chambers judge granting the Mareva injunction. 41 I conclude that there is no authority under the MPA to grant Ms. Welsh the freezing order she seeks and I will treat her application as an application for a Mareva injunction. 42 Mareva-type injunctions are an exceptional remedy: Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2 (S.C.C.). In order to obtain a Mareva-type injunction, Ms. Welsh must establish a strong prima facie case and a real risk that Mr. Welsh will dissipate the assets. The balance of convenience must also be in favour of granting the injunction: Fiegelman, supra. 43 Ms. Welsh meets all three requirements for a Mareva injunction. She has a strong prima facie case. The parties’ pre-nuptial agreement and matrimonial property law entitle her to a portion of the matrimonial property. Indeed, the MPA presumes an equal division of non-exempt matrimonial property, unless an equal division would be unjust and inequita- ble. In such a case, the Act allows for an unequal distribution of property and dissipation of assets is one of those considerations for an unequal division. In addition, the MPA provides for setting aside improper transfers. 44 Ms. Welsh has not provided any evidence that Mr. Welsh intends to dissipate assets. However, Mr. Welsh has failed to cooperate in many ways, including failing to follow a court order requiring him to provide financial and banking information for R. J. Welsh Holdings. Given that Mr. Welsh has not been forthcoming, it is difficult to determine his intentions. I conclude that without an injunction there is a real danger that he could dissipate the matrimonial property. 45 I find that the balance of convenience favours granting a Mareva injunction. Freezing the bank accounts of R. J. Welsh Holdings Ltd. will not prevent the corporation from running a business, as the corporation has no business to operate. Failing to freeze the bank accounts could result in Mr. Welsh dissipating the assets, which would prejudice Ms. Welsh’s ability to collect her share of the matrimonial property. 46 Ordinarily, Mareva injunctions are limited to assets within the jurisdiction. However, in Hamza, Conrad J.A. ruled that in some cases “world-wide” Mareva injunctions are appropriate. If granted, a world- wide injunction is an in personam order prohibiting the person enjoined from disposing of the frozen assets. 422 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

47 I will grant Ms. Welsh a Mareva injunction freezing the assets of Mr. Welsh and those of R. J. Welsh Holding Ltd.

Should Ms. Welsh be Named a Director of R. J. Welsh Holdings Ltd.? 48 A corporation is a separate legal entity, and it would be highly intrusive of the Court to simply dictate that a person be named a director. A party that requests such an order must provide a good reason why such an intrusive order is necessary. 49 Ms. Welsh relies upon T. (S.L.) v. T. (A.K.), 2008 ABQB 76 (Alta. Q.B.), in support of her application to be named co-director of R. J. Welsh Holdings Ltd. In that case, a corporation, Teem Energy, was the subject of a matrimonial property dispute. Prior to the litigation, the husband was the sole director of Teem. In a previous related decision, the Court had found that Teem was matrimonial property, and ordered the husband to transfer 50% of the shares to his wife, but the husband did not comply with the order. Teem was also involved in litigation with another company, Tycholis, and a monitor had been appointed for Teem. How- ever, evidence indicated that the husband failed to cooperate with the monitor. The Court was concerned that the husband’s failure to cooperate with the monitor could prejudice the rights of those beneficially interested in Teem, and as a result decided to appoint the wife a co-director of Teem. This would give her the ability to give litigation instructions to the Monitor. Madam Justice Veit held at para. 16: There is an urgent need for those who are beneficially interested in Teem to provide direction and assistance to the Monitor in the management of Teem’s affairs: although the Tycholis litigation did not commence in October, 2007 as originally scheduled, the new trial of that claim is looming and the need to provide instructions concerning that litigation affects the very core of the [family’s] interests in Teem. Mr. A.K.T. has been consistently uncooperative with the Monitor, in relation to the Tycholis litigation as well as in every other respect. 50 The reasons for naming the wife in A.K.T., a co-director do not exist in the present case. Although Mr. Welsh has been uncooperative in the past, there is no necessity for him to give instructions to anyone in respect to the corporation. The primary danger is that Mr. Welsh, as sole director of R. J. Welsh Holdings, will dissipate assets held by the company. The freezing order is sufficient to protect Ms. Welsh’s interests in those assets. Welsh v. Welsh D.C. Read J. 423

51 I decline to order that Ms. Welsh be named a co-director of R. J. Welsh Holdings as such an order is unnecessary to protect her rights and because such an order intrudes on the affairs of a separate legal entity.

Orders for R. J. Welsh Holdings to Pay Monies to Ms. Welsh 52 Ms. Welsh has also asked for an order to require R. J. Welsh Hold- ings Ltd. to pay her amounts ordered to be paid to her by Mr. Welsh. However, it is Mr. Welsh, personally, who has the obligation to reimburse Ms. Welsh for expenses related to the Osoyoos property and the responsibility of paying Ms. Welsh spousal support. R. J. Welsh Hold- ings is a stranger to those obligations. I decline to make the requested order. 53 Similarly, although I would be prepared to order that Mr. Welsh pay the outstanding amount of the Scotiabank line of credit secured against the Osoyoos property, I am not going to order that R. J. Welsh Holdings pay the line of credit. 54 Finally, there is no justifiable reason to order that R. J. Welsh Hold- ings pay Mr. and Ms. Welsh lump sum payments of $75,000.

Delivery of Financial and Banking Information of R. J. Welsh Holdings to the Court Appointed Accountant 55 This Court has previously ordered on three occasions that the financial and banking information for R. J. Welsh Holdings be provided to the court appointed accountant. I reaffirm that this information must be provided, and both Mr. and Ms. Welsh must cooperate fully and completely with the accountant, as was also ordered previously. If Mr. Welsh fails to provide all of the previously ordered financial information within 30 days of the date that this order is sent to him at the address for service that he has provided to this Court, then I order that he be arrested and brought before me or another justice of this Court to show cause why he should not be found in contempt. Application granted in part. 424 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

[Indexed as: Zeeman v. Zeeman] Cornelus Jakob Zeeman (Plaintiff) and Sharon Lee Zeeman (Defendant) British Columbia Supreme Court Docket: Nelson 14887 2011 BCSC 1633 McEwan J. Heard: September 12-14, 2011 Judgment: November 30, 2011 Family law –––– Division of family property — Factors affecting equal or unequal division — Miscellaneous –––– Parties were married in 1988 and separated in September 2007 — In 1997, parties made arrangement with wife’s father, permitting him to build modular house at own expense on back part of property on which family home was built — Husband applied to court to determine division of property — Order accordingly — Actual division of property could not be effected other than on basis of about 60-40 percent split, and that incorporated value of interest of wife’s father as if parties owned it — Given impediment it imposed to sale, land ought to be distributed so that husband took front lot and wife took back lot — That meant she took land, and contractual right or chose-in-action represented by her father’s house — Because wife took her share subject to interest of her father and subject also to imposition of husband’s septic field, roughly 60-40 percent division in value was sufficient to adjust unfairness to husband of equal division — Parties were to work out arrangement respecting encroachments, by way of, for example, easement or licence. Cases considered by McEwan J.: Davidson v. Dudka (2010), 2010 BCSC 225, 2010 CarswellBC 641 (B.C. S.C.) — considered Dudka v. Davidson (2010), 2010 CarswellBC 633, 2010 BCSC 226 (B.C. S.C.) — considered Hill v. Camfield (2008), 2008 CarswellBC 3236, 2008 BCSC 1874 (B.C. S.C.) — followed Hill v. Camfield (2009), 2009 BCCA 398, 2009 CarswellBC 2587, 275 B.C.A.C. 220, 465 W.A.C. 220 (B.C. C.A.) — referred to Perasso v. Perasso (2011), 3 R.P.R. (5th) 43, 2011 CarswellBC 419, 2011 BCSC 230 (B.C. S.C.) — considered Zeeman v. Zeeman McEwan J. 425

Statutes considered: Family Relations Act, R.S.B.C. 1996, c. 128 Generally — referred to s. 56 — referred to s. 65 — considered

APPLICATION by husband to determine division of property.

J. Shkooratoff, for Plaintiff S. Wallach, for Defendant

McEwan J.: I 1 In this case the court is called upon to adjudicate questions involving the division of matrimonial property in a context where informal arrangements have been made with a relative who is not a party, but whose economic interests may be affected by the court’s decision. This kind of complication in a family case is not rare in this part of British Columbia. In Perasso v. Perasso, 2011 BCSC 230 (B.C. S.C.), the Court was called upon to decide the legal effect of an arrangement between spouses who had built a house on land owned by one spouse’s parents. In Davidson v. Dudka, 2010 BCSC 225 (B.C. S.C.), and Dudka v. Davidson, 2010 BCSC 226 (B.C. S.C.), it was called upon to determine the rights of spouses who permitted the husband’s mother to build a house on their property, with awkward consequences when they separated. The present case bears some similarity to the Davidson cases, except that the parties agree, at least informally, as to the nature of the parental interest involved. The situation is, however, complicated by the presumptions that follow upon marriage under the Family Relations Act.

II 2 Mr. Zeeman was born January 8, 1948 in Holland. He is presently 63 years old. He moved to Canada as a boy of 6, and lived with his parents in various places in Alberta and later in the Kootenays. He is a qualified carpenter. He apprenticed to his father and worked with him for many years in Balfour, in a company called “All Star Woodworking”. His father retired in 1989 and Mr. Zeeman bought his shares and carried on, mostly working on home construction and renovations. 3 Mr. Zeeman owns 118 shares in the company and his mother owns 2. The plaintiff says that his father left some $16,000 in the company which 426 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

is recorded as a shareholders’ loan owing to his mother, although he con- cedes she may never ask for the money. If she does not, he expects it to simply remain in the business. He says his mother also owns the shop where the business is located. 4 Ms. Zeeman was born on September 17, 1960. She is presently 51. She worked before marriage but did not acquire significant assets beyond some pension entitlements. She now works on the Ferries that operate between Balfour and Crawford Bay on Kootenay Lake on an on-call basis, although she has considerable seniority and a reasonable prospect of full time work in the future. 5 When the parties were married in 1988, Mr. Zeeman owned the lands and premises that have been occupied as the family home throughout the marriage. He bought the land as a vacant 10-acre parcel in 1976. He lived in a trailer while he built a house on the site with some assistance from his father. He bartered his services with friends in the trades for other parts of the work that needed to be done. Once the house was built, he spent several years landscaping the surrounding grounds. Mr. Zeeman was 40 years old when he married Ms. Zeeman, and she was 28. 6 The parties had two children: Sheldon Thomas Zeeman, born July 18, 1989; and Cassandra Dawn Zeeman, born March 14, 1991. Both children are on good terms with the parties, despite their differences. They are independent, although Ms. Zeeman has made a claim to custody and guardianship and seeks a declaration of primary care in relation to Cassandra. 7 The parties are at odds as to the effective date of separation. Both acknowledge that their conjugal relationship ended almost two decades ago. The evidence suggests, however, that they remained together, functioning as one household until approximately September of 2007, when there was an altercation following which Mr. Zeeman stopped speaking to Ms. Zeeman. Since then, the parties have not shared meals together, but have prepared dinner for themselves and the children in an informal arrangement that depended on who was around and found it most convenient. More often than not, Ms. Zeeman has taken her meals elsewhere, since she was around the house less, owing to her shifts on the ferries. Eating out has become a significant monthly expense to her. 8 Ms. Zeeman dates the separation from May 13, 2009, which was the first time Mr. Zeeman specifically used the word “divorce”. The evi- Zeeman v. Zeeman McEwan J. 427

dence is, however, that that was merely a semantic acknowledgment of a separation that had been ongoing since Mr. Zeeman had stopped talking to her. Accordingly, I find that the effective date of separation (which I will use for some purposes of valuation) is September 1, 2007. There has been no triggering event as defined in the Family Relations Act. 9 While the parties resided in the home they made several improvements, including the addition of two bedrooms and a carport. In 1993 Ms. Zeeman moved out of the master bedroom and into one of the additional bedrooms. 10 Going into the marriage, the parties agreed that they would establish what is often referred to as a “traditional” household. Ms. Zeeman stopped work and functioned primarily as a homemaker for a number of years. She cashed out her accumulated pension credits and applied the money to family purposes. When the children were old enough, she re- sumed working on a part time basis as a noon hour supervisor at the children’s school. She earned a bit of money working for air cadets while her children were involved. 11 I do not consider it necessary to outline Ms. Zeeman’s activities during the marriage in great detail, except to acknowledge that she was constantly busy with the ordinary activities of a mother and homemaker. She did most of the driving for the children and many of the domestic chores, while Mr. Zeeman worked in his shop. He was also active in the children’s lives, and took on a share of the chores and obligations of the household consistent with his other contributions. Until the separation, the parties shouldered the burdens and responsibilities of the relationship equally. 12 Money was tight. The parties originally operated a joint account and Ms. Zeeman had some discretion over spending. Over time, Mr. Zeeman became aware that Ms. Zeeman was operating the household on a deficit basis using credit cards. Mr. Zeeman put a stop to this by borrowing money to pay the cards off and having the cards cut up. Thereafter he placed Ms. Zeeman on an allowance of $100 per week (it later rose to $125) out of which she was expected to manage the part of the household spending for which she was responsible. 13 In the spring of 2007 Ms. Zeeman began work with the ferries on a part-time basis. She expects that this will develop into permanent full- time work, and is well up the list in seniority. She points out that nothing is certain, but it appears that her employment prospects and her longer 428 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

term prospects for earning a pension are substantially better than Mr. Zeeman’s. 14 The parties’ earning pattern for the last few years is as follows: Mr. Zeeman Ms. Zeeman 2008 $34,211 $33,950 2009 $38,982 $42,055 (incl. $ 6,527 CPP) 2010 $30,384 $47,422 (incl. $6,470 CPP) 15 I do not overlook the fact that Mr. Zeeman realizes some of the econ- omies of running his own business and that his line 150 income may not accurately reflect the full extent of his personal use of company assets. I also do not overlook the fact that Mr. Zeeman’s frugality appears to have been supplemented by bartering. I have no way of knowing whether he does some business in cash, although it would not be surprising. Even if his recent income is somewhat underestimated, however, he makes less than Ms. Zeeman and has no pension at all except his government entitlements. At 63, he has fewer income earning years ahead of him than Ms. Zeeman, and his income earning capacity appears to be declining. His future security is largely wrapped up in his interest in the house. He may have some expectation of ultimately benefitting from his mother’s estate.

III 16 In 1997 the parties made an arrangement with Martin Koshlay, Ms. Zeeman’s father, permitting him to build a modular house at his own expense on the back part of the property on which the family home is built. Although there was some suggestion that it is movable, I am satisfied that it is a fixture, and that in practical terms, the property now con- sists of an unsubdivided lot with two dwellings on it. 17 Mr. Koshlay testified. He said that the understanding that passed between him and the parties was that he would pay for the house and live on the property rent-free until his death, at which time the parties would own the house as an improvement on the property. The parties did not put the arrangement in writing, or place anything registrable on the title to the land. All there is is the understanding Mr. Koshlay confirmed in court at the hearing. Zeeman v. Zeeman McEwan J. 429

18 I have considered whether Mr. Koshlay should seek representation, or be joined as a party, or commence a separate proceeding. These were the sort of concerns that arose in both Davidson and Perasso, alluded to earlier. I have concluded, however, that any resolution of this action open to the court under the Family Relations Act will not affect Mr. Koshlay’s interests adversely. If the property were subdivided (which is one possibility) his interest in the part of the property represented by his investment would not be impaired. He would simply have a larger share of a smaller parcel of land. If the entire property were ordered to be sold, or subdivided and sold, his interest would have to be fairly accounted for out of the proceeds. If he did not wish the property to be sold, it would be open to him to assert his interest against the Zeemans, and to seek a court determination of his interest at that time. Since all the possibilities leave him with adequate recourse, I think it safe, in the circumstances, to proceed on the action presently before the court. 19 There is a further complication. It is possible to subdivide the property into two equal parts but local zoning restrictions will not permit any other fraction. If the property were divided into equal parts there would be one lot with the family home on it and one lot with Mr. Koshlay’s house on it. The “back” portion (where Mr. Koshlay’s house is) also presently hosts the septic field for the family home and a large walled garden that is effectively part of the yard surrounding that house. 20 Ms. Zeeman indicated that she might be open to an easement to accommodate the septic tank and the garden should subdivision be part of the remedy, although she did not seem to appreciate that an easement might imply more than a mere license.

IV 21 The parties have agreed to the distribution of most of their chattel property. There was an issue over an unvalued coin collection, said to have been given by Mr. Koshlay to Mr. Zeeman, or to the parties. Mr. Koshlay suggests, somewhat improbably, that the Zeemans were just holding it for him. Whatever the facts are, I simply direct that this unvalued coin collection be placed in Ms. Zeeman’s possession and that she deal with her father with respect to it. There was one more issue with respect to a 1961 Ford motor vehicle that the parties have agreed should go to their son, and does not form part of the matrimonial property. 22 The parties have agreed that as both children are working, there is no claim to child support. Because both are adults I am of the view that 430 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

there should be no order respecting custody or guardianship, and that any future child support should be dealt with on the initiative of the adult children as, and if, required. 23 There is an issue respecting past payment of special and extraordinary expenses. There are a number of expenses that Ms. Zeeman seeks to have reimbursed, totalling $8,027.90. 24 Ms. Zeeman has incurred a number of loans and credit card debts. These totalled some $35,000 in May of 2009. She seeks reimbursement of half of that amount. These expenditures took place during the time when the parties were not communicating. Mr. Zeeman did not authorize them in any way, either expressly or implicitly. During the marriage he was, in fact, near phobic about debt. As I have noted earlier, Ms. Zeeman’s early forays into deficit financing resulted in Mr. Zeeman taking away Ms. Zeeman’s credit cards and putting her on an allowance until she returned to the work force. 25 It is not part of the court’s function to be critical of either party in this regard. Mr. Zeeman can live with a level of frugality few would happily tolerate. For her part, Ms. Zeeman’s debts are no doubt justifiable from her perspective as reasonable expenditures for things that were necessary. 26 It is a little difficult to adjust spending between the parties now, because it appears that in the last few years Mr. Zeeman has prepared the majority of the meals with the children. Expenditures that might have been shared more equitably had the parties communicated better are essentially impossible to address retroactively, and it is difficult to determine what part of the debt is related to Ms. Zeeman’s expensive choice to eat in restaurants, which is not really a household expense at all.

V 27 Because Ms. Zeeman seeks an equal distribution of the assets, while Mr. Zeeman seeks a reapportionment on the basis that an equal division would be unfair, I think it best to outline what equal division would mean as a preface to assessing the issue of reapportionment. 28 Counsel for Ms. Zeeman prepared a helpful schedule summarizing the evidence of assets and values tendered in the documentary evidence. I have worked from it in what follows. 29 As I outlined briefly earlier, the real property upon which Mr. Zeeman built a house before marriage was improved during the marriage Zeeman v. Zeeman McEwan J. 431

by the renovations that he undertook and, in a manner of speaking, by his permitting Ms. Zeeman’s father to build a house of his own on the property, on the basis that it would become the parties’ property when he died. This gives rise to various ways of approaching valuation. The appraisals before the court establish the following: • The property assessment of the whole parcel in 2011 without the modular home was $356,000. The modular home was assessed at $110,000. • The appraisal of the property as a whole with the modular home included is $490,000; the modular alone is appraised at $110,000 and the property without the modular, at $390,000. • The bare land value of the existing one acre lot, subdivided into two half-acre parcels, is $95,000 for each lot. • The appraisal of the half-acre parcel with the matrimonial home on it would be $337,000. • The appraisal of the half acre parcel with the modular home on it would be $220,000. 30 Ms. Zeeman’s position is that she is entitled to half the value of the matrimonial home, subtracting the value of the modular home, which be- longs to her father. This amounts to half of $390,000 or $195,000. If the property is subdivided and she takes the land on which the modular home rests, this would reduce the amount by $95,000 (the value of the lot) leaving Mr. Zeeman owing her $100,000 for the net half value of the real estate. 31 Mr. Zeeman has tools worth $2,300. Ms. Zeeman seeks half, or $1,150. 32 Ms. Zeeman seeks compensation for vehicles in Mr. Zeeman’s name worth $6,500, or $3,250. 33 Ms. Zeeman seeks compensation for half the business assets owned by All Star Woodworking Ltd. including its bank account ($13,900.44 on May 13/90), tools and equipment ($22,470 - $9,697 loan), material ($4,739) and shareholder’s loan $15,431.00). The total is some $45,000. It is important to note that these are the assets of a limited company and that the shareholder’s loan is due to Ms. Zeeman’s mother. 34 Ms. Zeeman seeks compensation for half of her credit card liabilities totalling some $35,000, or $17,500. 432 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

35 Ms. Zeeman seeks compensation for the half of the CPP Mr. Zeeman has received in each of the last three years, a sum of some $8,800. 36 Ms. Zeeman seeks compensation for half of Cassandra’s dental expenses, an amount of $3,500. 37 Ms. Zeeman also seeks division of the parties’ bank accounts totalling some $26,000 in Mr. Zeeman’s hands and $1,300 in Ms. Zeeman’s hands in May of 2009. 38 All of these “adjustments” would amount to a compensatory payment to Ms. Zeeman of $160,000, if she keeps the subdivided lot, and her father’s house is excluded from the calculation, as she proposes.

VI 39 Mr. Zeeman’s position is that equal division is unfair and that there should be a reapportionment under s. 65 of the Family Relations Act. It reads as follow: 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. (2) Additionally or alternatively, the court may order that other property not covered by section 56, Part 6 or the marriage agreement, as the case may be, of one spouse be vested in the other spouse. (3) If the division of a pension under Part 6 would be unfair having regard to the exclusion from division of the portion of a pension Zeeman v. Zeeman McEwan J. 433

earned before the marriage and it is inconvenient to adjust the division by reapportioning entitlement to another asset, the Supreme Court, on application, may divide the excluded portion between the spouse and member into shares fixed by the court. 40 Before that question is addressed however, I think I must rule on which assets are properly within the family assets to be divided. 41 The matrimonial home is clearly a family asset having been used by the parties for the duration of the marriage of about 20 years. It was improved by Mr. Zeeman during that time, but these improvements reflect a mutual sacrifice to which each party made a material (if different) contribution. The accommodation of Mr. Koshlay’s use of the back half of the property is somewhat problematic in that the parties appear to have given him an informal life estate on a promise that they would eventually get the benefit of the improved property. As such it is not an interest that can simply be “deleted” or treated as if it is not an asset, as Ms. Zeeman suggests. On the face of the parties’ dealings, they hold a promise of a future benefit against a deprivation they have already experienced. In this regard it is a chose in-action or akin to such: a right under a contract that may, upon the occurrence of future events, be acted upon. The reversion- ary interest in Mr. Koshlay’s interest in the property is therefore, a family asset. His presence on the property clearly served a family purpose. 42 I do not think Mr. Zeeman’s business, which still operates, although it does not yield much income, can be treated as if it is being liquidated. Its assets are not, even notionally, distributable. In the first place it is a corporation and not precisely the same entity as Mr. Zeeman. The material and inventory the company holds is presumably a cost recoverable from those who do business with Mr. Zeeman, in the sense that these materials find their way into projects he completes, and the gain is represented in net revenue to the company. 43 The shareholder’s loan is money owed to Mr. Zeeman’s father, and now due to his mother as his father’s successor, but it is not his and is not a family asset. It, along with the shop property, are assets he may have an expectation of acquiring through inheritance. The assets in the business are the shares by which Mr. Zeeman earns his income, and the bank account which approximately offsets the shareholder’s loan. 44 I am of the view that the net value of the business as a family asset would be a modest sum based on the net value of the Dodge Ram and equipment, or approximately $5,000, making an estimate of the personal 434 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

or family use value of those nominally corporate assets. Ms. Zeeman is entitled to half, or $2,500. 45 Despite the fact that he was not consulted by Ms. Zeeman as to the special and extraordinary expenses she incurred, I think it unfair that she should pay those expenses by herself and I allow $4,000 to her for this claim. 46 The bank accounts and debts are an awkward issue. The date of separation was September 1, 2007. Any adjustment should be made as of then, not on the basis of the figures provided for May of 2009. I think that whatever had accumulated in the parties’ accounts at that point represented money that should have been shared. To the extent that there is more money in Mr. Zeeman’s account (as I anticipate) it would represent money that both parties had sacrificed to accumulate given the frugality which made such savings possible. I order an enquiry, if necessary, into the state of the bank accounts on Sept. 1, 2007, and equal division of what was in the accounts at that time. 47 Ms. Zeeman’s credit card debts are of a particular kind, and appear to represent deficit financing of household and personal expenditures that Mr. Zeeman did not authorize and from which he did not specifically derive a benefit. Given the parties’ early experience with debt and deficit financing, there was no consent or implicit consent to go into debt. It is difficult to draw a line objectively as to what was reasonable, given Mr. Zeeman’s belief that it was important to live within the available means, and Ms. Zeeman’s notion that she incurred debt for the good of the family. There is very little evidence as to what these expenditures were. The court must also avoid double counting of, for example, the credit due to Ms. Zeeman for special and extraordinary expenses, some of which may have been financed by credit cards. I think however that some allowance should be made for debt incurred to make things better for the family. I will allow 25% of the credit card debts as they stood at September 1, 2007 as due from Mr. Zeeman to Ms. Zeeman, in the absence of better proof. 48 The value of the automobiles and the farm tractor in Mr. Zeeman’s possession should be divided equally, with Mr. Zeeman paying Ms. Zeeman $3,250. 49 Mr. Zeeman submits that pensions should be divided as of the date of separation fixed at September 1, 2007. This means that very little, if any, of Ms. Zeeman’s pensionable service was really within the period of time during which the parties were together, if that is used as the valuation Zeeman v. Zeeman McEwan J. 435

date. Her long but limited service for the school board amounts to the equivalent of 1.15 years of pensionable service. Ms. Zeeman’s years out of the workforce necessarily mean that her CPP credits are limited. On the other hand, her prospect of 14 or 15 more years of employment at about $50,000 per year means that she has an opportunity to improve those benefits significantly. 50 Mr. Zeeman has always been self-employed or employed in capacities where he is not earning credits toward any pension other than his government entitlements. He has been receiving Canada Pension Plan benefits since he turned 60. This supplements his income to a level that remains somewhat behind that of Ms. Zeeman. Anything Mr. Zeeman accumulated for the future was in the equity in the house. 51 I do not think Ms. Zeeman’s approach to Mr. Zeeman’s CPP is appropriate. That is, I do not think it correct to simply declare that he owes half of it to her. I have not been informed as to what proportion of his CPP entitlement was earned before marriage, for instance. 52 In ordinary circumstances the courts simply leave the issue of the appropriate division of the Canada Pension Plan benefits of the parties to the administrators of the plan, who calculate the division on the basis of the length of the marriage and of each party’s contributions. Given Mr. Zeeman’s relative age and the likelihood that his CPP benefits will soon be an even more significant share of his income, I direct that each party retain his or her own pension benefits, of whatever kind, free of any claim by the other. I am not certain that this court can enjoin a party from applying for a division of the CPP benefits, but in the circumstances of this case, if such an application is made, the court will be required to consider spousal support, or the exchange of cheques for small fractions of Ms. Zeeman’s pension(s). There shall be liberty to apply if necessary.

VII 53 A case that bears some resemblance to the issues that arise here is Hill v. Camfield, 2008 BCSC 1874 (B.C. S.C.) (affirmed, 2009 BCCA 398 (B.C. C.A.)). In that case Cullen J. addressed a nine year marriage between a 54-year old man and a 37-year old woman. They were 67 and 50 at the time of trial. The defendant, Mr. Camfield, anticipated retiring in the next year. His pension would be about $3,100 per month, reduced to $2,500 per month if he were obliged to share it with Ms. Hill. Mr. Camfield had acquired the family home some 10 years before the marriage, and it had a net equity of some $350,000 at the time of the mar- 436 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

riage. The home was renovated during the marriage, which required refi- nancing. The parties kept separate bank accounts but used their income for family purposes. Ms. Hill made some career sacrifices to care for their child. At the time of trial Mr. Camfield was drawing old age pension and Canada pension plan benefits as well as a salary in the $80,000 range. Cullen J. described Mr. Camfield’s position as follows: [85] The defendant submits that a combination of his age, deteriorat- ing health, imminent retirement, superior contribution to the acquisition, preservation and maintenance of matrimonial home, before, during and after the marriage, when combined with the plaintiff’s relatively healthy financial circumstances, including the retention of her inheritance and proceeds of sale of her apartment, her relative youth and income earning capacity, all favour such a reapportionment in light of the provisions of s. 65(1)(c),(e) and (f) of the Family Rela- tions Act. [86] The defendant agrees to waive his interest to 50% of the plaintiff’s pension accrued during the marriage, and submits that if she is awarded 50% of his pension during that same time, given her current financial position and prospects, her economic self-sufficiency is secured. Mr. Justice Cullen approached the division of assets as follows (after setting out ss. 56 and 65 of the Family Relations Act): [108] The critical dimension of this case is the 17 year age difference between the parties, with the plaintiff at 50, in her prime earning years, and the defendant, at 67, near the end of his working life. [109] Section 56 meets it clear that there is a presumption in favour of an equal division of assets based on a presumption of an equal contribution towards the accumulation and preservation of those assets. Section 65(1)(a) to (f), sets out factors which a court may consider in determining whether giving effect to the presumption of equal division would create unfairness to one party or the other. [110] The issue facing the court is not whether an unequal division would be fair, it is whether an equal division would be unfair. In M(SB) v. M(N), [2003], BCCA, 300 at para. 23 the court held: The issue of fairness is not at large, in allowing a judge to pick the outcome he prefers from among various alternative dispositions, all of which may be arguably fair. He must decide, in accordance with the language of section 65(1) that an equal difference would be unfair before he considers apportionment. Zeeman v. Zeeman McEwan J. 437

[111] Such an exercise has an onus of proof and it lies on the person seeking reapportionment, in this case the defendant. Although there’s a presumption of joint contribution, the court can look at the specifics of a particular case to determine if there has been an imbalance of contribution rendering an equal division unfair in light of s. 65(1)(a) to (d) and (f), see Sonas v. Sonas (1985), 45 R.F.L. 353, and Johnson v. Johnson, (1981), 26 RFL 2nd FAT. [112] The court may also look to the circumstances of each party and their need for economic self-sufficiency through the prism of s. 65(1)(e) in considering whether a presumptive equal division would be unfair. [113] In the present case, several factors set forth in s. 65(1) combined to make an equal division of the matrimonial assets unfair. [114] The first is the primary asset, that is, the matrimonial home was acquired by the defendant nine years before the marriage and he was, during that time, solely responsible for its acquisition, maintenance and preservation. That factor is relevant to a consideration of s. 65(1)(c) and (f). [115] Weighing against that factor, the length of the marriage, at nearly nine years, and the fact that the plaintiff made a contribution to the maintenance and preservation of the matrimonial home through her financial contributions to the household budget, through the use of her apartment for periods while the house was undergoing renovations, through her assumption of child care responsibilities by taking maternity leave and working part-time. [116] This is not a case where the plaintiff has made little or no contribution to the matrimonial home, nor is it a case where the marriage was a short one. It is, however, a case where the defendant’s contribution to the acquisition, preservation, maintenance and improvement of the matrimonial home has been to the exclusion of his acquisition of other assets while the plaintiff’s contribution has not. [Emphasis added.] 54 It must be said at this juncture that the economic circumstances of the plaintiff, Ms. Hill, in the case before Cullen J. were better than those of Ms. Zeeman. 55 Cullen J. went on to make the following further comments: [119] In addition, the provisions of s. 65(1)(e) augment the foundation for a conclusion that an equal division of assets would be unfair. It is apparent that, given his age and some developing health concerns, the defendant cannot be expected to carry on working far into the future. In my view, his projected retirements dates, particularly 438 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

given the question is not entirely in his hands, of June 30th, 2009 or December 31st, 2009, are realistic. As of then, his income will substantially diminish and his ability to acquire assets, or even maintain his present assets will be compromised. ... [121] In contrast to the defendant, the plaintiff, although when Aiden was born, having sacrificed some income earning potential, is now working full-time in the workforce in a responsible and relatively well-paid position with a growing pension and assets not subject to division of nearly $300,000. She retains the potential to accumulate assets for some time to come. [122] In the circumstances I have outlined, having regard for s. 56 and 65(1)(c), (e) and (f), I consider it would be unfair to equally divide the matrimonial assets and conclude that it is appropriate to reapportion the matrimonial home in favour of the defendant. [123] As to the proper division, I’m not satisfied that the 90/10 split contended for by the defendant is appropriate. While that is what may be necessary in the circumstances to permit him to retain the matrimonial home for himself and the eventual benefit of Aiden, that is not, in my view, a justification for the reapportionment he seeks, however desirable it may be from his perspective. [124] As I indicated, the plaintiff has contributed to that asset through various means, and has forgone other possibilities or opportunities through her nine year contribution and commitment to the marriage and to the assets which accumulated during it. In all the circumstances, I conclude that after payment of the mortgage, the matrimonial home should be reapportioned 70% to the defendant and 30% to the plaintiff. [125] Each party’s pension and RRSPs will be reapportioned 100% to that party, and each party will retain all the other assets in his or her possession. [Emphasis added.] 56 The Zeemans’ case is complicated by the fact that it is not immediately feasible to effect a property distribution on the basis that the matrimonial property be sold and each party receive a share, because of the impediment Mr. Koshlay’s interest imposes. He wishes to remain on the property and that is an arrangement to which both the parties have acqui- esced. A subdivision in half results in a 60/40 division in value, approximately, between lot 1 ($337,000) and lot 2 ($220,000) if Mr. Koshlay’s interest is treated as an asset. As I have previously noted, the property can only be subdivided into two equal parcels, and the situation is further Zeeman v. Zeeman McEwan J. 439

complicated by the fact the back lot presently hosts the septic field for the front lot. 57 There are many circumstances in which equal division is applied to situations where one party brings much more in assets than the other into the marriage. Where the marriage is long, there is often an assumption that as a consequence of marriage the wealthier party merged his or her assets into the marriage and a “money in money out” analysis is not applied. This was a long marriage. 58 The real difference between the parties at this point in their lives is that it is quite foreseeable that within a few years Mr. Zeeman’s only income will be his government pensions, while Ms. Zeeman will probably continue to work at a $50,000 a year job and will accumulate substantial pension benefits. I am satisfied that, as in the circumstances outlined in Hill v. Camfield (above), equal division would be unfair, because it would impair Mr. Zeeman’s ability to become or remain economically independent and self sufficient, and because of the circumstances of the acquisition, maintenance and preservation of the property in the years before marriage.

VIII 59 I think that one way to look at this situation is that Mr. Zeeman’s working life falls into roughly two parts, before marriage and after marriage. He built up equity before the marriage through his efforts. During the marriage the parties together (by fulfilling their different roles) improved the property somewhat, enjoyed its use, and participated in the increase in equity over the time they were together. Ms. Zeeman’s working life is similarly bifurcated, roughly speaking. She had not accumulated assets before the marriage except to contribute the buy-out of her accumulated pension entitlements when she stopped working. The last 20 years of her working life, including the time from the separation date to the trial, will see her accumulate money and benefits in which Mr. Zeeman will not be participate. The parties have therefore contributed roughly half of their working lives to the family enterprise. In the circumstances, a case could be made that Mr. Zeeman is entitled to a reapportionment of half the equity in the property outright, and obliged to share half the equity in the property with Ms. Zeeman, or to a 75-25% reapportionment. 60 The actual division of the property cannot be effected other than on the basis of about a 60-40% split, and that incorporates the value of Mr. 440 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Koshlay’s interest as if the parties own it. Given the impediment it imposes to sale, I think the land ought to be distributed so that Mr. Zeeman takes the front and Ms. Zeeman takes the back. That means she takes the land, and the contractual right or chose-in-action represented by her father’s house. Because Ms. Zeeman takes her share subject to the interest of her father and subject also to the imposition of Mr. Zeeman’s septic field, a roughly 60-40% division in value is sufficient to adjust the unfairness to Mr. Zeeman of an equal division. I leave the parties to work out an arrangement respecting the encroachments, by way of, for example, an easement or license. If they are unable to come to terms they may return to court for directions or further submissions. The costs of the subdivision should be borne equally by Mr. Zeeman and Ms. Zeeman. 61 I grant liberty to the parties to apply for directions on any matters arising. 62 I make no order for costs. Order accordingly. Trifonas v. Trifonas 441

[Indexed as: Trifonas v. Trifonas] Julia Trifonas aka Iuliia Vitaliyivna Kachulina (Claimant) and Stavros Steve Trifonas (Respondent) British Columbia Supreme Court Docket: Vancouver E090763 2011 BCSC 1090 Silverman J. Heard: June 7-9, 2011 Judgment: August 11, 2011* Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Determination of spouse’s annual income — Imputed income –––– Parties married in 2002, had one child, and separated in 2008 — Child lived with father following separation — Wife did not work for two years following separation, and currently was working part time at retail store earning $12,376.89 per year — Husband’s income tax returns for several years prior to application showed annual income in $10,000 range — Wife brought application for spousal support — Application granted — Husband was ordered to pay spousal support of $350 per month based on husband’s imputed annual income of $58,000 per year for period of six years — It was appropriate to impute income to husband — Evidence indicated that husband received additional income from his mother and from rental incomes in form of cash — Husband lived in manner that was consistent with having far greater financial means than he declared — Husband paid no rent in home he lived in — Wife suffered economic disadvantage from marriage — Wife was discouraged from working during marriage — Wife did not pay child support, and husband had not sought order that she do so. Family law –––– Division of family property — Determination of ownership of property — Miscellaneous. Cases considered by Silverman J.: Hartshorne v. Hartshorne (2004), 236 D.L.R. (4th) 193, 47 R.F.L. (5th) 5, 25 B.C.L.R. (4th) 1, 318 N.R. 1, 2004 SCC 22, 2004 CarswellBC 603, 2004 CarswellBC 604, [2004] 6 W.W.R. 1, 194 B.C.A.C. 161, 317 W.A.C. 161,

*A corrigendum issued by the court on September 7, 2011 has been incorporated herein. 442 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

[2004] 1 S.C.R. 550, [2004] S.C.J. No. 20, REJB 2004-55588 (S.C.C.) — followed Kahn v. Kahn (2009), 2009 BCSC 1186, 2009 CarswellBC 2287 (B.C. S.C.) — considered Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to s. 15.2(4) [en. 1997, c. 1, s. 2] — considered s. 15.2(6) [en. 1997, c. 1, s. 2] — considered Family Relations Act, R.S.B.C. 1996, c. 128 s. 65 — considered Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to

APPLICATION by wife for spousal support.

K.L. Anderson, for Claimant M.E. Mortimer, Q.C., for Respondent

Silverman J.: Introduction 1 In addition to both parties seeking to be divorced, the only issues at stake in this family trial are: 1. the fairness of the Marriage Agreement/division of assets; 2. spousal support. 2 Only the claimant (“wife”) and the respondent (“husband”) gave evidence. 3 In addition to the writ and statement of claim, and the statement of defence, the husband has filed a counterclaim seeking resolution of the same issues. 4 In assessing the credibility of the wife, it is necessary to note that she acknowledged, during her evidence, that with respect to one issue at the examination for discovery she was less than completely truthful. She acknowledged that this also occurred with respect to her application to the Legal Services Society for counsel to assist her. Although she acknowledged in both instances that she was the owner of a rental accommoda- Trifonas v. Trifonas Silverman J. 443

tion in Kiev, Ukraine, she was less than forthcoming about whether or not there was a tenant in place, paying rent. At trial, she acknowledged the foregoing, and explained the reasons why she had not been completely truthful. I caution myself that her credibility and all of her evidence must be given special and careful consideration in view the circumstance I have just described. Having so cautioned myself, I have nevertheless concluded that she has attempted to tell me the truth throughout her testimony, and has done so to the best of her ability. 5 The evidence suggests that the mother of the husband may have a beneficial interest in certain properties that the wife claims are family assets. The mother is not a party to these proceedings, and did not make submissions.

Background Chronology 6 The wife was born on July 17, 1974. The husband was born on July 30, 1960. The wife lived in Kiev, Ukraine, until 2003. She had a college degree and had been working for six years as a credit manager with Pep- sico. Prior to that, she had been a teacher, although the pay was much lower. With Pepsico, she was self-sufficient and was earning what she considered to be an average income. 7 The parties “met” on an internet dating site in 2002. In September of that year, the husband flew to Kiev to meet her. They were married there on November 24, 2002. The parties lived in Kiev, in an apartment owned by the wife and her father, until October of 2003. At that time, they both returned to Vancouver. 8 On December 12, 2003, the wife attended at a lawyer’s office and signed a Marriage Agreement. 9 They have one child, Panagiotis Pete Trifonas, born December 5, 2006. 10 During the marriage, in Canada, all of the wife’s day to day financial needs were met in every way. She was given money, and credit cards. The husband discouraged her from working. He told her that if she worked, the amount of her income would be “chicken shit”; and that she would always be looked after. She took care of the house, the child and her husband. She also assisted her husband with various tasks in taking care of various rental properties. 11 In 2006, the wife’s father, in Kiev, died. 444 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

12 In the spring of 2007, the husband’s father died. In his will, executed in 1989, he left to his son a one-half interest in two pieces of real estate: 259 20th Street East, North Vancouver (“E. 20th”), and 446 16th Street East, North Vancouver (“E. 16th”). 13 On April 20, 2007, the wife’s signature was apparently placed on a document disclaiming any “interest, control or ownership” in a particular bank account. The circumstances of the signing of this letter are contentious. 14 On May 1, 2007, the wife’s signature was apparently placed on a letter disclaiming any interest in her father-in-law’s estate. The circumstances of the signing of this letter are also contentious. 15 On May 14, 2007, the husband signed a document entitled “Dis- claimer of Interest” which states that: I hereby disclaim all my interest in, to and under the Estate and the will of [my father]. 16 On July 5, 2007, the husband and his mother entered into 12 different agreements (prepared by a lawyer) appointing the husband as a trustee of certain real estate without any beneficial interest. His mother was the beneficial owner of all the real estate. These 12 agreements included E. 20th and E.16th. The other trust agreements refer to properties which were either already owned by the husband’s mother, or which were bequeathed to her in the husband’s father’s will. The husband testified that the documents were all prepared as an aspect of tax planning for his mother. 17 From September 15 to 28, 2007, the wife was hospitalized with post- partum depression. 18 From May to July of 2008, the wife was hospitalized with various other maladies. She was discharged on July 2, 2008 to a transition home with medical advice indicating that she was under tremendous stress in the marriage and that she should not go home until her marital difficulties were resolved. 19 July 2, 2008 is the effective date of separation. 20 On July 8, 2008, the husband obtained, in Provincial Court, an ex parte custody order for their son. That order remains in force. 21 In the same month, the husband cut off all of the wife’s funds and credit cards. From July to December 2008, she survived on income assistance. In January of 2009, she obtained a part-time job selling retail clothing. She still works there at 16-23 hours per week. She has applied Trifonas v. Trifonas Silverman J. 445

for other jobs. She has also attempted to market herself as a tutor to children of Russian-speaking families, although with only very limited success. 22 Since August 15 of 2009, the wife has lived in a bachelor apartment in New Westminster, near her work, paying $540 per month. It is a long distance from her son who continues to reside in North Vancouver with the husband. By Consent Order in Provincial Court, the wife has been granted access to her son, which she continues to exercise. It is her hope that the amount of access time will be expanded, and discussions between the parties are ongoing in that regard.

Assets The Husband’s Assets 23 There are four pieces of real estate which the wife claims are family assets, and of which the husband is currently the registered owner: 1. E. 20th (a one-half interest in which the husband claims he has no beneficial interest); 2. E. 16th (a one-half interest in which the husband claims he has no beneficial interest); 3. Apartment 103 - 2016 Fullerton Avenue, North Vancouver (“Fullerton #1”); 4. Apartment 317 - 2012 Fullerton Avenue, North Vancouver (“Fullerton #2”). 24 As already noted, there are trust agreements in place, in favour of the husband’s mother with respect to E. 16th and E. 20th. 25 As also previously noted, the husband’s mother is beneficial owner of numerous other pieces of real estate for which there are trust agreements in place naming the husband as trustee. The wife does not argue that these are family assets.

History of Ownership of the Properties 26 In the Marriage Agreement of December 12, 2003, the husband’s family’s real estate holdings are listed in the following terms: “[the husband and the husband’s parents] either alone or jointly are the registered and/or beneficial owners of the real property described in Schedule A ...” 27 Schedule A itemizes 14 pieces of real estate which includes the four which are at stake on this application. There is no indication in Schedule 446 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

A, or anywhere else in the Marriage Agreement, which explains in any other detail, than already noted, which of the husband or other members of his family, own which pieces of property and in what proportions or capacities. 28 With respect to E. 20th, the evidence, including the documentary evidence, establishes the following: 1. This property was gifted to the husband by his parents in 1982 (together with E. 16th). He did not pay for it. It was a gift. 2. He did not live in it (but instead rented it out) until 1988 when he began to live in it. He has lived in it, rent free, since that time. 3. On December 22, 1989, he returned legal ownership of E. 20th (and E. 16th) to his parents so that his father could use them as collateral in securing a loan for some unrelated investment. They did not pay him for the properties. 4. The husband’s father executed his will of December 28, 1989, bequeathing to the son his one-half interest in E. 20th and E. 16th. 5. There is disagreement about what the husband told his wife about E. 20th, while in Kiev, prior to the marriage. I am satisfied that he told her that he was the owner of the home and that he had worked very hard to earn it. He did not tell the wife that his parents had given it to him and he had returned it to them, although he did tell the wife long after they were married that it in fact belonged to his father. 6. The family lived in the home as their sole family home, from the time of their arrival in Canada in 2003 until the date of the separation. 7. The family lived in the upstairs portion of the home, and the husband still lives there with their son. However, there are also two suites downstairs for which rent is collected. The only evidence of the amount is the 2008 rent at $430 per month per suite. 8. In the spring of 2007, the husband’s father died with his will of December 28, 1989, remaining as his Last Will and Testament, bequeathing his one-half interest in E. 20th (and E. 16th) to the husband. 9. On May 14, 2007, the husband signed the “Disclaimer of Interest” disclaiming his interest in his father’s estate, including E. 20th (and E. 16th). Trifonas v. Trifonas Silverman J. 447

10. On July 5, 2007, the husband and his mother entered the various trust agreements previously referred to which included E. 20th (and E. 16th). 11. There is no evidence before me of the value of E. 20th. 29 E. 16th has an ownership history similar to E. 20th, including: 1. It was gifted to the son and returned to the parents at the same time as the E. 20th property. 2. It was a bequest in the father’s will in the same terms as the E. 20th property. 3. It is one of the properties about which the husband told the wife he was the owner and had worked hard to earn it. 4. It is a rental property which earns between $1,600 and $1,800 per month. 5. The most significant difference between it and E. 20th is that the husband and the wife never lived in it. 30 With respect to Fullerton #1 and #2: 1. These are two apartments in the same complex. 2. They were purchased in 1993 when the husband was married to his first wife. (That marriage ended in the same year). 3. He does not purport to hold these in trust for his mother. He acknowledges that he is the owner. 4. He describes his current occupation as “landlord” and indicates that the extent of his “landlord” holdings is these two properties. 5. In his 2011 financial statement, he acknowledges rental income in the amount of $14,307. This income comes from the two Fullerton properties. 6. With respect to their value, the following evidence is present: (a) In his 2011 financial statement, he lists their value as $180,000 each. In Court, he indicated that this was based on the land assessments. (b) With respect to one of the properties, the 2009 assessment indicates a value of $183,200. (c) With respect to the other of the properties, the assessments appear as follows: 2009 - $193,800; 2010 - $184,500; 2011 - $199,000. 448 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

(d) The husband testified that, in his opinion, the assessments were too high.

The Wife’s Assets 31 The wife has an interest in four assets: 1. In Kiev, she has a three-quarter interest in an apartment. 2. In Kiev, she has an unknown interest in a second apartment. 3. In Kiev, she owns a Lada car. 4. Jewellery, which she believes to be worth approximately $7,000 which she received from the husband’s parents. 32 With respect to the three-quarter interest in the Kiev apartment: 1. When her husband and she were first married, she already owned one-half of this apartment. Her father owned the other half. After her father’s death in 2006, he bequeathed half his interest to the wife, and half to her brother. Therefore, she now owns three quarters. 2. This is the apartment in which she and her husband lived from the time of their marriage until they came to Canada in 2003. 3. The wife purchased her half in 1996 and has owned it continuously. 4. I am satisfied on the totality of the evidence that it receives rental income in the amount of $420.36 per year, net after expenses. This is the aspect of the wife’s evidence where she was less than completely truthful during her examination for discovery. 5. I am satisfied, based on the totality of the evidence that the value of 100 percent of the property is $38,000. Therefore, her share is valued at $28,500. 33 The unknown interest in the second apartment refers to what may be a one-half interest in an extremely small apartment originally received by her father from “the government”. Her father has attempted to bequeath it to the wife and her brother equally, although its source as originally from the government apparently causes complications. It has been involved in a process of bureaucratic red tape since her father’s death in 2006 and therefore I have described her interest as “unknown”. While she believes she ultimately will inherit her one-half, she cannot be certain. She believes the value to be between $1,800 and $3,000. There was Trifonas v. Trifonas Silverman J. 449

no evidence explaining why the value is so low. The witness was not cross-examined on it. 34 She owns a Lada automobile in the Ukraine. She believes it to be worth $1,800 to $2,000. She originally paid more than $5,000 for it. The husband assisted in paying for repairs. He also paid storage for it in Kiev from the time they came to Canada until the separation. Now she pays the storage. It is her hope that it will sell for approximately $2,000. 35 With respect to the jewellery, she acknowledges the generosity of her husband’s parents. However, she does not have the jewellery. It was kept in a safe in the family home. She testified that she did not take it, and indeed did not have access to the safe. Her husband testified that he does not have it, did not take it, and that the wife did have access to the family safe.

The Marriage Agreement 36 The wife argues that the background to the execution of the Marriage Agreement was as follows: 1. The husband lied to her in Kiev, deliberately leaving her with the impression that he was a wealthy man, and that he had earned and now owned certain properties, including what was to become the matrimonial home. 2. The issue is not whether, if he had told her the truth, would she be entitled to a greater reapportionment of property. Rather, the issue is that if she had known the truth, would she have decided to sign the Marriage Agreement? Would she even have decided to marry him? 3. Schedule A in the Marriage Agreement is unclear. It mixes, inextricably, what the husband may or may not own, legally, beneficially and/or jointly, with what his parents may or may not own legally, beneficially and/or jointly. It is impossible to determine precisely what he owns. 4. At the time of signing, it is true that she spoke to a lawyer, in Russian, and that she understood what he told her about what the Agreement said. However, that is insufficient. She testified, and I accept, that she was not told that she had certain rights, at that time, as a married woman, which she was giving up. She was also 450 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

not given any advice about whether or not signing the Agreement was a wise thing to do. 37 The husband argues that the background to the execution of the Mar- riage Agreement was as follows: 1. He advised the wife of his desire and need for her to sign a Mar- riage Agreement, while they were still in Kiev and before they were married. He told her the truth. She was unaware of the practice, it apparently not having been common in Ukraine. Neverthe- less, she understood it and it seemed fair to her. 2. The reason it seemed fair to her is because it was fair. It left him what was his as well as what he might inherit; it did precisely the same for her. What is unfair about that? 3. He did not trick her into going to a lawyer who would mislead her, and she was not misled. She picked the lawyer on her own. She picked him because he spoke Russian. When they got there, she asked the husband to come in with her; the husband refused, saying that it was not permitted. 4. In her evidence, she acknowledged that she understood everything that the lawyer told her. 5. This Marriage Agreement is more fair than most. It not only discloses the husband’s assets at the time of execution, it discloses assets that he will potentially inherit from his parents. 38 The husband argues that the Marriage Agreement is fair and should be enforced. It does nothing more than assign to each of the parties what they owned at the time of the marriage, and what they might inherit at a later time. 39 The wife does not argue that the Agreement was or is unconscionable. Rather, she argues that it is unfair when considered in the context of s. 65 of the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA], factors which are required to be considered. She argues that it was unfair at the time it was executed, and it is unfair now. Consequently, she argues that it should not be enforced in accordance with its terms. Rather, assets should be reapportioned. 40 The Marriage Agreement is silent on the question of spousal support. Trifonas v. Trifonas Silverman J. 451

41 The leading case on point is Hartshorne v. Hartshorne, 2004 SCC 22 (S.C.C.), where Bastarache J., speaking for the majority states the following: 34 The primary policy objective guiding the courts’ role in a division of property on marital breakdown in British Columbia is fairness. 35 The FRA explicitly recognizes marriage agreements as a mechanism to govern a division of property upon the dissolution of marriage. To be enforceable, however, any such agreement must operate fairly at the time of distribution. If it does not, judicial reapportionment of property will be available to achieve fairness. ... 37 It is important to note at this point that while both the parties and the courts speak of the contract being fair or unfair, it is really the apportionment under the contract that is under scrutiny...... 43 ... The court must determine whether the marriage agreement is substantively fair when the application for reapportionment is made. The essence of this inquiry is whether the circumstances of the parties at the time of separation were within the reasonable contempla- tion of the parties at the time the agreement was formed, and, if so, whether at that time the parties made adequate arrangements in response to these anticipated circumstances...... 46 Where, as in the present case, the parties have anticipated with accuracy their personal and financial circumstances at the time of distribution, and where they have truly considered the impact of their choices, then, without more, a finding that their Agreement operates unfairly should not be made lightly. ... 47 The ultimate point then is this: in determining whether a marriage agreement operates unfairly, a court must first apply the agreement. In particular, the court must assess and award those financial entitlements provided to each spouse under the agreement, and other entitlements from all other sources, including spousal and child support...... 65 Moreover, by signing the Agreement, the appellant and the respondent entered their marriage with certain expectations on which they were reasonably entitled to rely. If the respondent truly believed that the Agreement was unacceptable at that time, she should not have signed it. In this case, the intention of the parties, as expressed 452 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

in the Agreement, was to leave with each party that which he or she had before the marriage. The question is not whether there is something fundamentally unfair about that, but whether the operation of the Agreement will prove to be unfair in the circumstances present at the time of distribution. ... 42 Both parties agree that it is unnecessary, in the circumstances of this case, to determine if the Marriage Agreement was fair at the time of execution. This decision turns on the question of fairness at the time of distribution.

The Section 65 Factors 43 Section 65: (a) The duration of marriage - six years. (b) The duration of the period during which the spouses have lived separate and apart - Three years since the separation. During this time period, the husband left the wife with no income whatsoever. Shortly after the separation (and after her release from hospital), he cut off all her funds and credit cards. Three years during which she has had the resourcefulness to go out and get herself a job, while he appears to have not done the same for himself. (c) The date when property was acquired or disposed of - All of the properties in question were acquired, if at all, significantly before the marriage. (d) The extent to which property was acquired through inheritance or gift - if the husband is considered to own E. 20th or E. 16th, he acquired them by gift originally in 1982. If he is considered to own half interests in E. 20th or E. 16th, he acquired them by inheritance in 2007. The wife acquired one-quarter of the interest in her property, and the entirety of her (unknown) interest in the other property by inheritance. (e) The needs of each spouse to become or remain economically independent and self sufficient - Each party has a need to remain economically independent and self sufficient. The wife seeks and may require training. The husband already has training which enables him to earn a much larger income than the wife, although he has chosen not to do so. (f) Any other circumstances - the wife left her country of birth, the country of her original language, her employment as a credit man- Trifonas v. Trifonas Silverman J. 453

ager of six years standing, and her mother, father and brother, in order to come to Canada to be a part of this family. 44 The wife argues that: 1. The husband holds one-half of each of E. 20th and E. 16th in trust for himself, and that these are family assets. She bases this argument on the following factors: (a) These were bequeathed to him in his father’s will. (b) The husband was concerned about the father making a new will. His father was not concerned at all and the wife never heard him mention it. (c) It is unbelievable that the husband signed the Disclaimer in order to give effect to what he says was his father’s intention to bequeath to the father’s mother (already a landlady with numerous properties) interests in two additional properties which she already owned half of. (d) It is much more believable that he signed this disclaimer of inheritance in order to specifically deny the wife any interest in these family assets. The Court should find that it was the husband’s intention in disclaiming his inheritance to cut the wife out of her interest. (e) If the husband inherited the two half-interests (E. 16th and E. 20th), then he is not entitled to simply give them away in order to deny his wife her right to a share of the matrimonial property. (f) E. 20th is clearly a family asset and was used for ordinary family purposes. (g) E. 16th is a family asset because of the contributions that the wife made towards it in assisting to find tenants, collect rent and things of that nature. (h) She did not sign the May 1, 2007 letter or the May 14, 2007 letter. She did sign several pages blank, at her husband’s request, and these letters may be those pages. In any event, even if she did sign the letters, having read them and not recalled doing so, she would have signed them at her husband’s request, and with no understanding of what they meant. 454 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

2. The two Fullerton properties are also family assets for the same reasons. 3. All four of these properties should therefore be considered family assets. The wife agrees that, in view of the length of the marriage, she should not receive 50 percent. Rather, she believes that the reapportionment should be in favour of the husband, and that he should receive 65 percent; she should receive 35 percent. 45 The husband’s evidence disputes the notion that his position as trustee of E. 20th and E. 16th is some sort of sham: 1. The husband’s father had indicated before his death that he wished to change his will to ensure that his mother would receive his estate. He had even made an appointment with a lawyer (name unknown by the husband) to see a week later, however, his death intervened. 2. The husband signed the disclaimer because he wanted to effect his father’s intention and ensure that his mother received the value of the properties. 3. The husband did not even know that he would be the beneficiary of these two half-interests from the father. 4. He denies that the wife was asked to sign any papers in blank. She signed them knowing full well what was on them. They were completed before they were signed. 5. The trust documents of July 5, 2007, were part of a tax plan for his mother, and prepared by her lawyer. 46 On a consideration of all the evidence, I am unable to conclude that the husband holds E. 20th and E. 16th in trust for himself, for the following reasons: 1. The trust documents of July 5, 2007, appear on their face to be valid. They appear on their face to have been drawn by lawyers. There has been no evidence or submissions suggesting that for some reason they are invalid. 2. Even if the husband had not signed the disclaimer, and instead had accepted the inheritance from his father, the wife would not be entitled to any portion of it. This would mean that the property was a family asset for apparently one year before the date of separation. Prior to that, while the family undoubtedly lived in the premises, they were rental premises (with no rent payable) owned by the parents since 1989. Trifonas v. Trifonas Silverman J. 455

3. His mother is not a party to these proceedings, nor was she invited to make any submissions. The half interests in dispute are presently held in trust for the mother. How can the Court rule on that without the mother being heard? 47 I am satisfied that there are no family assets to distribute, or to reapportion, for the following reasons: 1. He owns the two Fullerton properties, but they have never been used for a family purpose, and he has owned them since 1993. I am satisfied that they are not family assets. 2. It is true that they lived in the E. 20th property, but his parents owned it until his father’s death, and now the husband’s only interest in it is as a trustee. 3. The E. 16th property is also only “owned” as trustee. It has also never been used for a family purpose. I am satisfied that it is not a family asset. 4. The husband acknowledges that his parents gave his wife jewellery. He believes she has it, and she can keep it. It is not a family asset. 48 Therefore, there is simply nothing to reapportion. Even if it could be argued that the Marriage Agreement was unfair, it must be assessed as circumstances exist at the time of distribution. Although the s. 65 FRA factors would favour the wife if there were family assets to reapportion, the section cannot be used to create family assets where there are none. 49 With respect to the Kiev assets, one-half of the first apartment is a family asset. I am satisfied on the evidence and the s. 65 factors that fairness requires it to be reapportioned 100 percent in favour of the wife. I come to the same conclusion with respect to the Lada. 50 The other Kiev apartment is not a family asset.

Spousal Support 51 The Marriage Agreement is silent on the issue of spousal support. 52 The governing considerations and objectives are those found in s. 15.2(4) and 15.2(6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [Divorce Act].

The Wife’s Income 53 She works part-time in a retail clothing store. Her 2011 financial statement prepared for these proceedings shows annual employment in- 456 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

come of $11,956.53 and rental income (from Kiev) of $420.36 for a total of $12,376.89. 54 She claims expenses of $14,861.40.

The Husband’s Income 55 The husband testified that he had worked as a qualified real estate sales person for approximately 16 years, although he had not worked (except as a “landlord”) for several years before these proceedings. 56 In his 2008 income tax return, the husband declared gross rental income of $16,145, and net rental income of $8,249.75. Instead of business income, he declared a loss of $9,634.88. He declared a childcare benefit of $500. His total income was minus $885.13. His taxable income was $0. In his evidence, he was unable to explain why the figures were as they were except to say that his accountant had taken into account certain business (real estate) losses. He also stated that “I am not a tax man.” 57 In his 2009 tax return, he declared gross rental income of $17,120, with net rental income of $8,870.99. He declared a childcare benefit of $1,200. His total income was $10,070.99. His taxable income was $9,672.71. 58 In his 2010 tax return, he declared gross rental income of $16,620, with net rental income of $13,107.18. His total income was $14,307.18. His taxable income was $14,099.54. 59 In his 2011 financial statement prepared for these proceedings, he declared rental income in the amount of $14,307. After including childcare benefits and other income tax benefits he declared $17,739 as his “total income to be used for a spousal or parental support claim”. 60 At his examination for discovery, the husband was asked the following questions and gave the following answers: Q What would you to your recollection consider to be your best earning year, in all of the last, whatever, 15, 16 years you worked as a real estate agent? A I would have to look back to $40,000 income years in total. Q Including your rental revenue? A Including rental. $50,000 I believe on one, approximately. I don’t have the documents in front of me. 61 There was no evidence before me with respect to the average, or expected, income of a real estate agent in British Columbia in relevant years in metro Vancouver (or any other area). Trifonas v. Trifonas Silverman J. 457

62 His 2011 tax return shows expenses of $27,570. He gave evidence that he makes up the difference by borrowing money. 63 The husband also lives rent-free in the home owned by his mother at E. 20th; he values the rent, which he does not pay, at $18,000 per year. His evidence of the value is not contradicted.

The Husband’s Argument 64 His income should not be imputed at higher than what the evidence indicates for the following reasons: 1. He had to stop working as the result of: (a) computer seizures based upon his wife’s complaint to the police about him; (b) he had to stay home in 2006 because his wife was pregnant; (c) after his wife left, he had to stay home to care for his son; (d) he had to stay home when his mother had a hip replacement, because she was no longer able to care for his son. 2. The fact that his mother may give him gifts is not an appropriate basis for imputing income. In Kahn v. Kahn, 2009 BCSC 1186 (B.C. S.C.), McEwan J. states the following at para. 35: The fact that the defendant can draw upon his mother for what appears, in effect, to be an advance on inheritance, does not, however, alter the fact that it is not his money. This Court cannot make an order that amounts effectively to an order that the defendant’s mother pay the plaintiff. 3. Before one can impute income, one must consider his debt situation. The documentary evidence confirms that he has lines of credit in the amount of $240,000, currently owing $230,000. 65 If the Court does decide to impute income, surely it should not be based on a guess that the husband once made $50,000, and perhaps $40,000. Rather, it should be based on tax return income for the last several years, which are before the Court and which all indicate income in approximately the $10,000 range. One should average those in order to 458 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

impute income, and it is conceded that $18,000 in free rent should also be included as income. 66 He argues that his wife makes more money than he does. In considering the objectives of spousal support, and particularly relieving economic hardship, and promoting the economic self-sufficiency of the wife, the Court should consider that she only works part-time, and could work full-time. It should also consider that she has not taken reasonable steps to alleviate her own economic hardship by selling her Kiev apartment and her car in Kiev.

Divorce Act 67 1. Section 15.2(4) Factors: (a) Length of time - six years. (b) Functions performed by each spouse - the wife took care of the house, the child and her husband. She also assisted with rental properties in terms of renovations, cleaning, advertis- ing vacancies, and similar matters. The husband apparently collected rent, and undoubtedly had regular involvement with the rental properties. He also seems to have spent time assisting his parents with their various properties. (c) Any order, agreement or arrangement relating to support - There is no agreement relating to spousal support. The Marriage Agreement is silent on the subject. 2. Section 15.2(6) Objectives of Spousal Support Order: (a) Recognition of any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown - the wife is disadvantaged from the marriage and its breakdown in the following ways: i. She left her home country with her home language, her family, and her job of some six years standing in order to be married and come to Canada. ii. She did this, in part, because her husband told her that he was wealthy. Would she have moved half- way around the world, if she had thought otherwise? iii. While in Canada she was discouraged from working during the marriage. She was told she would always be looked after, and she was looked after as long as the marriage lasted. She was told that if she worked, Trifonas v. Trifonas Silverman J. 459

her income would be “chicken shit”. The husband testified that the wife had her day to day financial needs met in every way. iv. She was given money, credit cards and “money was never an issue in our house”. The arrangement has since ended as a result of the marriage 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 - Financial consequences arising from the care of the child are as follows: The wife is working towards having shared custody with her child, or at least expanded access. This is going to require her to have an apartment closer to where the child lives, and with two bedrooms. She cannot afford it on what she earns. He can. (c) Relieve any economic hardship arising from the breakdown of the marriage - The wife no longer has a job in the Ukraine. As a result of the breakdown of the marriage, she also no longer has all of her financial needs attended to. (d) Promote economic self-sufficiency - the wife wishes to re- train to be a teacher. She is not certain what kind of credit she will get for her Ukrainian education or experience. She is not certain how many years of schooling she will need to attend. She has looked up prices. The evidence suggests that it will cost in excess of $10,000 to re-train, perhaps considerably more than that.

Conclusion 68 I am satisfied that the husband’s income should be imputed beyond what he declares as his income. It should be imputed for the following reasons: 1. The evidence indicates that he has additional sources of income, that are not ascertainable in traditional ways, from either: (a) his mother, and/or (b) receiving rental incomes directly in the form of cash. 460 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

2. He lives in a manner which is consistent with having far greater financial means than he declares. When the wife lived with him, she benefitted from this as well. 3. He pays no rent for the home in which he lives, and never has. He estimates the value of that at $18,000 per year. 4. I am satisfied that either his mother gives him money to live on or she allows him to keep rent that he collects. Whichever it is, these are not mere gifts which are given to him. He testified that he “assisted” his mother in “exchange” for his rent. I am satisfied that the “exchange” involves more than free rent. For example, he testified that his son will be commencing private school kindergarten next year, and his mother will be paying for it, because he cannot afford it. 5. Even if he is receiving “gifts” from his mother, this does not entitle him to not work, where the effect is that the wife is denied spousal support. Without his mother’s assistance, he would be working. He would have to be. 6. He describes his occupation as a “landlord”, but he is ada- mant that he only has the two Fullerton properties in that capacity. If this is his occupation, he has a lot of spare time where he should be working to earn more money. 69 His excuses for not continuing to work as a real estate agent are unacceptable. Rather than staying home and taking care of his mother and his child, he could be and should be out working, either as a real estate agent, or in some other equally remunerative capacity. The loss of his computer for a period of time is not a sufficient excuse for him to have not returned to work more than two years later. 70 The wife suggests that income should be imputed in the amount of $40,000 per year, plus $18,000 free rent for a total of $58,000 per year. I am inclined to think that he is capable of earning more than that, however, the evidence does not permit me to make that finding. Conse- quently, I accept the wife’s submission in this regard. I impute his income at $58,000 per year. 71 In determining the appropriate amount of spousal support to be awarded in this case, I consider it appropriate to rely upon the assistance of the Spousal Support Advisory Guidelines (Ottawa: Department of Jus- tice Canada, July 2008) [SSAG]. Trifonas v. Trifonas Silverman J. 461

72 Although the child is living with the husband, and he is not paying child support, his income amount for the purposes of spousal support is to be reduced by the grossed-up notional table amount for child support. This approach represents a modified “without child support formula”, referred to as the “custodial payor formula”, and is designed to better reflect the available income after child support obligations are fulfilled: SSAG at 33 and 95. 73 Using this formula, the husband’s income of $58,000 will be reduced by notional child support. The wife’s income of $12,377 will be applied to the calculations. As a result, the SSAG provide for a range of spousal support in the monthly amounts of $279 (low) to $326 (mid) to $372 (high). 74 The same formula also provides for a duration of support lasting from three to six years. 75 Where in the available range should an award for spousal support fall, both in terms of amount and duration? Professors Rogerson and Thomp- son, the authors of the SSAG, recognize that the mid-range is often a default position, a practice to be avoided: Too often, the lawyer for the recipient asks for the high end, the lawyer for the payor offers the low end, and then the court opts for the mid-range, all with little in the way of reasons. [The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version (Ottawa: Dept. of Justice Canada, March 2010) at 31.] 76 The SSAG suggest that regard should be had to the following considerations in determining where in the range the spousal support should lie, both for amount and duration, in any particular case: • Strength of any compensatory claim • Recipient’s needs • Age, number, needs and standard of living of children • Needs and ability to pay of payor • Work incentive for payor • Property division and debts • Self-sufficiency incentives 77 I consider all of the foregoing as well as the following consideration: the wife does not pay child support, nor has the husband sought an order 462 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

that she do so. If the Child Support Guidelines were applied, she would be paying based on her income, the amount of $74. 78 Considering all of the foregoing in the circumstances of this case, I am satisfied that the appropriate amount of spousal support should be $350 per month. 79 Considering the same SSAG factors, I am satisfied that the appropriate duration of support is six years and I so order. 80 I also order that either party may have the spousal support reviewed after three years, at which time either party may set the matter down before a judge of this Court for a hearing of that review. Further, either party may bring the matter on for a review at an earlier time if there is a material change in circumstances, or a change in income. Finally, the parties may vary the amount of spousal support where they have agreed, in writing, to do so.

Summary of Findings 81 I am satisfied from the evidence that the pre-conditions to the granting of a divorce are present, and I hereby do order the parties divorced, effective after the statutory period has expired. 82 The Marriage Agreement is fair in the context of the family assets to be divided. 83 There are no family assets in Canada. If that decision is wrong, then to the extent there are family assets in Canada, they will be reapportioned 100 percent in favour of the husband. 84 With respect to the assets in Kiev, one-half of the property in which both parties lived for a brief time is a family asset, as is the Lada. The family assets in Kiev will be reapportioned 100 percent in favour of the wife. 85 The jewellery is not a family asset. It is exclusively the property of the wife. If the husband is, or becomes, aware of its whereabouts, he shall return it to her forthwith. He will also convey to his mother that if she is or becomes aware of its whereabouts, it is to be returned to the wife. 86 The wife’s income is $12,377. 87 The husband’s income is imputed at $58,000. 88 Spousal support is ordered payable by the husband in the amount of $350 on the first of each month commencing August 1, 2011 for a period of six years, subject to the reviews previously noted in this judgment. Trifonas v. Trifonas Silverman J. 463

89 Each party shall present to the other relevant financial information on an annual basis, by July 1 of each year, including, but not limited to: 1. Income tax returns for themselves or companies of which they hold a legal or beneficial ownership. 2. Specifics of rental income received, directly or indirectly, in their own names, beneficially, or through some company or other person, including monthly amounts and addresses. 3. All relevant information with respect to benefits they have received “in kind”, such as free rent or similar benefits which ordinarily would be paid for with income. 90 If the parties wish to address me on the question of costs, they may set the matter down for a convenient time. Application granted. 464 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

[Indexed as: Stein v. Stein] Malka Stein (Claimant) and Wayne Stein (Respondent) British Columbia Supreme Court Docket: Vancouver E031966 2011 BCSC 1477 Kelleher J. Heard: February 11, April 28, July 20-21, 2011 Judgment: November 3, 2011 Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Interim support — Quantum –––– Parties married on Decem- ber 15, 1991, and separated on April 1, 2003 — Parties had two children, S, who was 18 years old, and J, who was 15 years old — Children lived with wife since separation — Wife had not worked outside home since 1993 — Wife’s only income was her spousal support — At trial, husband was ordered to pay wife spousal support of $2,500 per month for 42 months — Wife successfully appealed and husband was ordered to pay spousal support of $4,200 per month until December 2008 — Wife was diagnosed with bipolar spectrum disorder and her financial position deteriorated — Wife brought application for review of spousal support — Application granted — Spousal support was reduced to $3,000, effective September 1, 2011 — Parties had traditional marriage — Wife had responsibility of caring for children since separation — Wife’s mental health issues prevented her from working — Wife’s needs were not based on improvidence — Litigation expenses were likely wife’s most significant expense beyond basic living costs — Husband’s income had remained relatively constant since trial — However, wife’s parenting responsibilities had likely lessened since S graduated from high school, and wife was actively dealing with her health concerns with plan for future employment. Family law –––– Support — Spousal support under Divorce Act and provincial statutes — Interim support — Purpose and distinction from final award –––– Parties married on December 15, 1991, and separated on April 1, 2003 — Parties had two children, S, who was 18 years old, and J, who was 15 years old — Children lived with wife since separation — Wife had not worked outside home since 1993 — Wife’s only income was her spousal support — At trial, husband was ordered to pay wife spousal support of $2,500 per month for 42 months — Wife successfully appealed and husband was ordered to pay spousal support of $4,200 per month until December 2008 — Wife was diagnosed with bipolar spectrum disorder and her financial position deteriorated — Wife brought application for review of spousal support — Application Stein v. Stein 465 granted — Spousal support was reduced to $3,000, effective September 1, 2011 — This was not appropriate occasion to make final support order — There remained genuine and material uncertainty as to wife’s ability to become self- sufficient, given her health concerns and care required for J. Cases considered by Kelleher J.: Aspe v. Aspe (2010), 11 B.C.L.R. (5th) 309, 498 W.A.C. 290, 327 D.L.R. (4th) 231, 294 B.C.A.C. 290, 2010 BCCA 508, 2010 CarswellBC 3077, 89 R.F.L. (6th) 245 (B.C. C.A.) — considered Bracklow v. Bracklow (1999), 1999 CarswellBC 532, 1999 CarswellBC 533, 169 D.L.R. (4th) 577, 236 N.R. 79, 44 R.F.L. (4th) 1, 120 B.C.A.C. 211, 196 W.A.C. 211, [1999] 1 S.C.R. 420, [1999] 8 W.W.R. 740, 63 B.C.L.R. (3d) 77, [1999] S.C.J. No. 14 (S.C.C.) — considered Bryant v. Gordon (2007), 2007 BCSC 946, 2007 CarswellBC 1613, 45 R.F.L. (6th) 99, [2007] B.C.J. No. 1460 (B.C. S.C. [In Chambers]) — referred to Emery v. Emery (2007), 47 R.F.L. (6th) 72, 2007 BCSC 1747, 2007 CarswellBC 2889 (B.C. S.C.) — referred to Judd v. Judd (2010), 83 R.F.L. (6th) 314, 2010 CarswellBC 246, 2010 BCSC 153, [2010] B.C.J. No. 177 (B.C. S.C.) — referred to Leskun v. Leskun (2006), 2006 SCC 25, 2006 CarswellBC 1492, 2006 Car- swellBC 1493, 349 N.R. 158, [2006] 1 S.C.R. 920, 34 R.F.L. (6th) 1, 226 B.C.A.C. 1, 268 D.L.R. (4th) 577, 373 W.A.C. 1, 62 B.C.L.R. (4th) 197, [2006] S.C.J. No. 25 (S.C.C.) — considered M. (J.) v. M. (L.D.) (2008), 2008 BCSC 1235, 2008 CarswellBC 1930 (B.C. S.C. [In Chambers]) — considered Moge v. Moge (1992), [1993] R.D.F. 168, [1993] 1 W.W.R. 481, 99 D.L.R. (4th) 456, [1992] 3 S.C.R. 813, 81 Man. R. (2d) 161, 30 W.A.C. 161, 43 R.F.L. (3d) 345, 145 N.R. 1, 1992 CarswellMan 143, 1992 CarswellMan 222, [1992] S.C.J. No. 107, EYB 1992-67141 (S.C.C.) — considered S. (M.) v. S. (W.) (2005), 2005 BCSC 939, 2005 CarswellBC 1535, [2005] B.C.J. No. 1447 (B.C. S.C.) — considered S. (M.) v. S. (W.) (2006), 2006 CarswellBC 2214, 36 R.F.L. (6th) 13, 56 B.C.L.R. (4th) 245, 2006 BCCA 391, [2006] 11 W.W.R. 119, 230 B.C.A.C. 100, 380 W.A.C. 100, [2006] B.C.J. No. 2020 (B.C. C.A.) — considered Tedham v. Tedham (2005), [2006] 3 W.W.R. 212, 261 D.L.R. (4th) 332, 2005 BCCA 502, 2005 CarswellBC 2346, 47 B.C.L.R. (4th) 254, 20 R.F.L. (6th) 217, [2005] B.C.J. No. 2186 (B.C. C.A.) — considered Statutes considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Generally — referred to s. 15.2(4) [en. 1997, c. 1, s. 2] — considered s. 15.2(6) [en. 1997, c. 1, s. 2] — considered 466 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Regulations considered: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Federal Child Support Guidelines, SOR/97-175 Generally — referred to s. 7 — referred to

APPLICATION by wife for review of spousal support.

S.G. Label, for Claimant G. Lang, for Respondent

Kelleher J.:

1 This application concerns spousal support. The Court of Appeal ordered spousal support for the claimant of $4,200 per month until Decem- ber 2008. This order was made subject to review on application by Ms. Stein before that time. Such an application was made and this is a hearing of the application.

Background 2 The parties began living together in 1988 and were married on De- cember 15, 1991. They separated on April 1, 2003. Mr. Stein moved out of the matrimonial home in August of 2003. 3 There are two children of the marriage. They live with the claimant in North Vancouver. Shimmon is 18 and has just completed grade 12 at Handsworth School. Joe is 15 and is in grade 9 at Fraser Academy in Kitsilano. He is challenged by dyslexia and ADHD. 4 The claimant has limited education. She obtained a drafting certificate before the marriage, but has never used the certificate. She is dyslexic. 5 At the time of the marriage, Ms. Stein was working in a clerical position at National Trust. Her position was eliminated in 1992. She became a mother in 1993 and has not worked outside the home since that time. 6 After the parties separated, Ms. Stein took a course at the Vancouver Film School in animation. Mr. Stein paid some $16,000 in tuition for this training. Ms. Stein testified at the trial that she was expecting to become self-sufficient as an animator. 7 Ms. Stein has not become self-sufficient. She learned after the trial, in the fall of 2005, that animation work involves long irregular hours and Stein v. Stein Kelleher J. 467

includes nights and weekends. Such work, she concluded, was inconsistent with her duties as a parent. 8 Ms. Stein earned both her 2D and 3D certificates. She deposed that she considered setting up her own studio and bid on some 50 freelance jobs in the year following her graduation. None of these bids was successful. She has since learned that one must have experience, and a reputation based on experience, before one could hope for freelance work. Ms. Stein said she was not warned of this by her instructors. She thought the future was bright for someone with her animation skills. She also applied for employment at studios but did not receive responses. 9 In September 2008, Ms. Stein started a business with her sister. The objective was to sell cosmetics in people’s homes. The undertaking was not a success. 10 Ms. Stein’s only income is her spousal support. 11 Mr. Stein operates a family-owned business, Shy’s Forest Products Ltd. He is the sole shareholder of Mayne Enterprises Ltd. Shy’s Forest Products pays him through the latter company. In 2004, his Guideline income was $207,432. 12 The issues of division of family assets and spousal and child maintenance were adjudicated in the original trial in 2005: see S. (M.) v. S. (W.), 2005 BCSC 939 (B.C. S.C.). 13 Ms. Stein sought indefinite spousal support. The trial judge concluded that was not appropriate. Instead he ordered spousal support for 42 months at $2,500 per month. The trial judge reasoned as follows: The plaintiff testified that she has a diploma in animation from the Vancouver Film School and that the animation industry is booming in Vancouver. She now has a studio in her home with the requisite equipment and has joined the relevant professional associations. She agreed on cross-examination that one of Vancouver’s leading em- ployers in this sector, Electronic Arts, is seeking 250 new employees and testified that in addition there were at least five other animation studios in Vancouver. The plaintiff has, to her credit, positioned herself to become self-sufficient in the near future. After reading all of the authorities that were brought to my attention and applying the law to the facts in the case at bar, I order that the defendant pay to the plaintiff spousal support of $2,500.00 per month to be paid commencing July 1, 2005 and to be terminated on Decem- ber 31, 2008. All payments for spousal and child maintenance are to 468 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

be made by electronic transfer to the plaintiff’s bank account promptly on the 1st day of every month. (at paras. 56 and 57) 14 This decision was appealed. The Court of Appeal concluded in S. (M.) v. S. (W.), 2006 BCCA 391 (B.C. C.A.), that the award of spousal support was inadequate. The court noted that it was below the amounts recommended in the Spousal Support Advisory Guidelines. It did not meet the objectives of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), or reflect the factors a court is required to consider. 15 Specifically, the Court of Appeal found that the trial judge’s reasons did not demonstrate consideration of (1) the financial limitation inherent in Ms. Stein providing the primary residence for the children; (2) the standard of living of the parties before separation; or (3) the spread in income available to the two households. 16 The Court of Appeal raised the sum from $2,500 to $4,200. 17 The other ground of appeal concerned duration. The trial judge’s decision was that spousal support would terminate December 31, 2008. The claimant argued it should be indefinite. 18 The court considered the “clean break” approach adopted by the trial judge to be too severe and that between the two extremes of a clean break and indefinite support is a “time-limited order subject to review” (para. 59). 19 In Leskun v. Leskun, [2006] 1 S.C.R. 920, 2006 SCC 25 (S.C.C.), para. 37, the Supreme Court of Canada stated that subjecting a time-limited order to review can be justified where there is “genuine and material uncertainty at the time of the original trial” on a specific aspect of the original order. This avoids the need for a party to demonstrate a material change in circumstances in order to bring a motion to alter support awards. 20 Here, the Court of Appeal said the uncertainty was the ability of Ms. Stein to find remunerative employment. The Court felt that this uncertainty would be resolved within the time limitation of the support order and that the issue could be properly decided by application to this Court prior to the expiration of the order in December, 2008. That is what is before me now. 21 This application was originally served on counsel for the respondent in November 2008. It was scheduled to be heard in December of that year, but adjourned to January 2009 and then generally, at the request of Stein v. Stein Kelleher J. 469

the respondent, on the agreement that he would continue to meet his spousal support obligation of $4,200. 22 That continued until January 1, 2010, when the respondent stopped making spousal support payments. The matter came before Mr. Justice Pitfield, who ordered the respondent to pay $4,200 a month in spousal support pending the outcome of the November 13, 2008 application. 23 Both parties have been cross-examined on their affidavits. 24 The claimant’s financial position has deteriorated. Her 50% share of the family assets was $870,000. This included clear title to the former family home in North Vancouver. After the trial she sold the home in North Vancouver for $460,000. She purchased another home for $549,000. She and the children lived there until September 2010. That home was sold for $640,000. From the net sale proceeds of $614,000 she paid off the first mortgage ($178,599), a second mortgage ($50,758), and court costs for the Supreme Court of Canada proceedings to her husband ($31,386). She also paid outstanding legal fees and provided a further retainer. She received $324,385. 25 The claimant currently pays 20% of the expenses under s.7 of the Federal Child Support Guidelines, SOR/97-175. That includes substantial tuition expenses at Fraser Academy. 26 The claimant’s position is that she cannot work. She still has responsibility for the children. This will continue for some time: Joe will not complete high school until June 2015. 27 The respondent does not accept that the claimant’s health prevents her from working. The respondent argues the evidence shows the claimant spends the income that she does receive in improvident ways. The claimant has been an active player in an internet activity called “Second Life”. This entails expenditure of both time and money. 28 I am satisfied that Ms. Stein is unable to work. Dr. Joanne Irwin has been Ms. Stein’s family physician since May 1993. She wrote to Ms. Stein’s counsel on October 23, 2008: In summary, Malka Stein has been a patient at my office for 15 years. As documented above, she has a long history of mental illness. During her years at this office, she has been treated with medication on two separate occasions. It appears that both of these occasions were precipitated by stressful situations in her life. During such times, it is very difficult for her to manage on a day-to-day basis. In the past, Paxil seemed to have been helpful for some time but then was no longer effective/necessary and she was able to stop this medi- 470 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

cation. She was able to actively job-hunt and planned to start her own business. At the present time, however, she has a recurrence of her symptoms of low mood, poor interest, poor concentration and an increase in anxiety. Again, she feels that she has an increase in her stressors and is having difficulty coping day-to-day. At the present time, she is on Cipralex and Seroquel. On this occasion, despite the medication, she is still having difficulty with daily tasks. In particular, she is needing to push herself to cook/clean but is able to do it. She is medically unable to work at this time. It is my hope that with ongoing psychiatric treatment and resolution of some of her daily stressors that she will continue to improve and be much better able to manage day-to-day ... and able to enjoy her family life and a return to employment. [Emphasis added] 29 Ms. Stein has been diagnosed with bipolar spectrum disorder. She has been treated by Dr. Allan Young, a psychiatrist who is the director of the Institute of Mental Health at the University of British Columbia’s De- partment of Psychiatry. He has seen her on many occasions. He wrote on February 10, 2010 that he had seen her on 10 occasions over the previous 16 months. He went on: ... Ms. Stein has continued on the recommended course of medication for bipolar spectrum, and is tolerating this well. However, she has had rather extreme stress from the ongoing disputes with her ex-husband with regard to maintenance and other issues, and this has had to go to court. The stress of this, and the problems with payments from her ex-husband have significantly effected [sic] her mental health. My own view is that although Malka’s long-term outlook is good, I feel that she will be likely to have decompensations whilst this stres- sor remains, and that at present she is not sufficiently stabilized to be gainfully employed. I have recommend [sic] that she continue on her therapy, and will continue to review her regularly. We are also looking into whether there are community-based options for her to get further psychotherapeutic support. [Emphasis added] 30 The evidence of Ms. Stein and the reports of her family physician and treating psychiatrist satisfy me that she suffers from mental illness and is not presently capable of working. The respondent did not seek to obtain an independent medical examination or to examine her physicians under oath. Stein v. Stein Kelleher J. 471

Analysis 31 This hearing is a review, and therefore is a hearing de novo: Judd v. Judd, 2010 BCSC 153 (B.C. S.C.) at para. 14. 32 Section 15.2(6) of the Divorce Act sets out the objectives of a spousal support order; it 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. 33 Section 15.2(4) of the Divorce Act provides: (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. 34 In this case, the parties cohabited for some 14 years. It was a traditional marriage. 35 The claimant has had the responsibility of caring for the children since separation. Joe’s special needs are relevant in this regard. 36 As the Supreme Court of Canada stated in Bracklow v. Bracklow, [1999] 1 S.C.R. 420 (S.C.C.) at para. 35, in determining a support dispute, one must begin with the objectives of the Divorce Act. No single objective is paramount. 37 In Bracklow, Chief Justice McLachlin cited with approval the principle that where self-sufficiency is not possible, a support obligation may flow from the marriage relationship itself. As she said at para. 43, “[n]eed alone may be enough.” 38 Moreover, the Court of Appeal in Tedham v. Tedham, 2005 BCCA 502 (B.C. C.A.) at para. 49, underlined the Supreme Court of Canada’s 472 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

statement in Moge v. Moge, [1992] 3 S.C.R. 813 (S.C.C.) that self-sufficiency is not to be given overriding significance. In Tedham, after a 16 year traditional marriage there was a 65/35 reapportionment of assets in favour of the wife and spousal support was indefinite, despite the fact that the children were grown up and there was no illness interfering with the ability of Ms. Tedham to work. 39 Both parties referred me to the relatively recent decision of the Court of Appeal in Aspe v. Aspe, 2010 BCCA 508 (B.C. C.A.). 40 The facts bear some resemblance to the circumstances of the matter before me. The parties in Aspe separated in 1993, after 12 years of cohabitation or marriage. The parties were 36 and 37. There were three children. They agreed on a split of assets. Each party received assets with an after-tax value of $475,000. They agreed to joint custody and joint guardianship, and the children lived with Ms. Aspe. 41 In 1998, when the three children were in school, Mr. Aspe offered to pay for after-school care to permit Ms. Aspe to work. She turned down this offer. Her only employment was an unsuccessful venture selling vi- tamin supplements and on-line trading, where she lost some $43,000. 42 In 2006, the children moved in with Mr. Aspe. 43 Ms. Aspe claimed that she was suffering from a medical condition which prevented her from being employed. The Chambers judge did not accept that, and concluded that the alleged disability was not a basis for Ms. Aspe’s failure to work or seek retraining. 44 The Chambers judge noted that support had been paid since 1993. After 16 years of support payments following 12 years of marriage and cohabitation, it was appropriate to set a time limit for payment. She decided on a further two years of spousal support with review to consider the extent that Ms. Aspe had become self-employed. The Chambers judge also decided on an increase in spousal support to $2,750 per month, retroactive to April 1, 2008. 45 The Court of Appeal noted that while the cost of living had risen 23.5% in the period, the $2,750 award increased spousal support by 134%. This was not justifiable in light of the fact that the children were living with Mr. Aspe. 46 The Court also noted that it was Ms. Aspe’s improvident choices which led to her unfortunate circumstances, not her marriage or its breakdown. The two year period of continued support was upheld as “reasonable to provide her with support over a transitional period” (para. 36). Stein v. Stein Kelleher J. 473

47 The facts are not analogous to those here. In Aspe, spousal support will have been paid for 18 years, after a 12-year marriage. There was no illness on the part of the wife, and the children lived with the husband since 2006. 48 In this case, Ms. Stein’s mental health issues prevent her from working and the children have lived with her since the separation. 49 I have considered the fact that Ms. Stein has spent money on Second Life. On the evidence it amounts to hundreds, not thousands, of dollars. While many would regard this expenditure as improvident, it seems to me to be a form of entertainment expense. Many people spend as much or more on tobacco or liquor. Ms. Stein’s needs, I conclude, are not based on improvidence. Litigation expenses are likely the most significant expense beyond basic living costs. 50 The Spousal Support Advisory Guidelines were not designed for determining quantum on a review application: Bryant v. Gordon, 2007 BCSC 946 (B.C. S.C. [In Chambers]). However, they continue to have some applicability. As Powers J. stated in Emery v. Emery, 2007 BCSC 1747 (B.C. S.C.) at para. 32, they do provide a form of checklist. L. Smith J. observed in M. (J.) v. M. (L.D.), 2008 BCSC 1235 (B.C. S.C. [In Chambers]), that on a review the Guidelines should be used with “caution and advertence to the context” (para. 73). 51 The context of this case shows that Mr. Stein’s income has remained relatively constant since trial. His Line 150 income has ranged between $217,000 and $232,000. Ms. Stein provides the primary care for the two children, and she is unable to work at this time. I am mindful of the fact that Ms. Stein’s parenting responsibilities have likely lessened since Shimmon, now 18, has graduated from high school. Furthermore, Ms. Stein is actively dealing with her current health concerns with a plan for future employment. In assessing the context of this case, I am heedful of the Court of Appeal’s caution in Aspe of the danger of looking at a review “as an opportunity to present a more convincing case for ongoing support, rather than an assessment of [a spouse’s] steps toward self-sufficiency” (para. 52). 52 Given the contextual considerations noted above and the indications from the Guidelines, it is appropriate to reduce the amount of support payable by Mr. Stein. However, with the Supreme Court of Canada’s comments in Bracklow and Leskun in mind, this is not an appropriate occasion to make a final support order. There remains a genuine and ma- 474 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

terial uncertainty as to Ms. Stein’s ability to become self-sufficient, given her health concerns and the care required for the youngest child, Joe. 53 I conclude that spousal maintenance should be reduced to $3,000, effective September 1, 2011. This amount is near the mid range of the Guidelines, and reflects the means and needs of both parties. 54 This adjustment is effective September 1, 2011. Spousal support will be reviewed on July 15, 2015, when Joe will have completed his secondary education. 55 Ms. Stein is entitled to costs of this application. Application granted. Pohlig-Ainslie v. Ainslie 475

[Indexed as: Pohlig-Ainslie v. Ainslie] Patricia A. Pohlig-Ainslie (Applicant) and Stuart W. Ainslie (Respondent) Ontario Superior Court of Justice Docket: D22706/10 2011 ONSC 5141 J.R. Henderson J. Heard: August 24, 2011 Judgment: August 30, 2011 Family law –––– Custody and access — Terms of custody order — Mobil- ity –––– Parties married in 2001 and separated in August 2010 — Parties had one child, L, born April 2, 2005 — Parties lived in Buffalo, New York, prior to their marriage, and moved to Niagara Falls, Ontario, in 2001 or 2002 — Mother had been steadily employed in Buffalo since 1999 — In 2004, father was diagnosed with multiple sclerosis — Since separation, L resided primarily with mother — Mother brought motion for temporary sole custody of L, permission to have L reside with her in Buffalo, and permission to enrol L in private school — Motion granted in part — Mother was permitted to move to Buffalo with L, on condition that she assisted with transportation of L for access visits and resided within short distance of border — Mother’s decision to relocate to Buffalo was sensible and made in good faith — If mother lived in Buffalo she would be closer to work, would not face daily delays of border crossings, her commuting time would be reduced, and she would have more time to spend with L and her family — There might have been subtle career disadvantage if mother were to continue to live in Canada and work for American corporation — This was not situation where mother proposed to move to country to which she and L had no connection. Family law –––– Custody and access — Joint custody — Factors to be considered — Parenting abilities –––– Parties married in 2001 and separated in August 2010 — Parties had one child, L, born April 2, 2005 — Parties lived in Buffalo, New York, prior to their marriage, and moved to Niagara Falls, On- tario, in 2001 or 2002 — Mother had been steadily employed in Buffalo since 1999 — In 2004, father was diagnosed with multiple sclerosis — Since separation, L resided primarily with mother — Mother brought motion for temporary sole custody of L, permission to have L reside with her in Buffalo, and permission to enrol L in private school — Motion granted in part — Parties were granted joint custody of L — Father was committed, involved parent — Father was strong advocate for L — Although father had health issues, he was able to 476 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

care for L on day-to-day basis — Fact that father would possibly need assistance because of his physical limitations did not affect his ability to parent L. Cases considered by J.R. Henderson J.: Bjornson v. Creighton (2002), 2002 CarswellOnt 3866, 221 D.L.R. (4th) 489, (sub nom. C.B. v. E.C.C.) 166 O.A.C. 44, 31 R.F.L. (5th) 242, 62 O.R. (3d) 236, [2002] O.J. No. 4364 (Ont. C.A.) — referred to Gordon v. Goertz (1996), 1996 CarswellSask 199, [1996] 5 W.W.R. 457, 19 R.F.L. (4th) 177, 196 N.R. 321, 134 D.L.R. (4th) 321, 141 Sask. R. 241, 114 W.A.C. 241, [1996] 2 S.C.R. 27, (sub nom. Goertz c. Gordon) [1996] R.D.F. 209, 1996 CarswellSask 199F, [1996] S.C.J. No. 52 (S.C.C.) — followed

MOTION by mother for temporary sole custody of child, permission to have child reside with her in Buffalo, and permission to enrol child in private school.

James Rocca, for Applicant Paula Ferre, for Respondent

J.R. Henderson J.:

1 This motion involves the custody, mobility, and education of Liam Stuart Ainslie, born April 2, 2005, the only child of the applicant (hereinafter called “the wife”) and the respondent (hereinafter called “the husband”). 2 The wife brings this motion for temporary sole custody of Liam; for permission to have Liam reside with the wife in Buffalo, New York; and for permission to enroll Liam in a private school in Buffalo. 3 The husband agrees that Liam’s primary residence should be with the wife, but he opposes the wife’s request for sole custody and her proposal that Liam reside in Buffalo. The husband requests joint custody and an order that would compel Liam to reside in the Regional Municipality of Niagara in Ontario.

Background 4 The wife was born in Buffalo, New York and is a U.S. citizen, whereas the husband was born in Ontario and is a Canadian citizen. The parties both lived in Buffalo prior to their marriage, and they were married to each other in New York State in 2001. They moved to Niagara Falls, Ontario in approximately 2001 or 2002. Liam was born in Buffalo in 2005 and is a U.S. citizen. Pohlig-Ainslie v. Ainslie J.R. Henderson J. 477

5 The wife has been steadily employed in the Buffalo area since approximately 1999. She currently has a good job as a customer representa- tive at a corporation known as Well Care Health Plan. The wife has commuted to her work in Buffalo from her home in Niagara Falls, Ontario for approximately the past nine years. 6 The husband has been employed as a high school teacher in Niagara Falls, Ontario since approximately the year 2000. For the past several years he has worked part-time because of his health issues. 7 The parties were living in Niagara Falls, Ontario when they separated in August 2010. Thereafter, both parties continued to live in Niagara Falls, Ontario. Since the separation Liam has primarily resided with the wife, and the husband has had liberal and generous parenting time with Liam. 8 The husband has some health issues. In 2004 he was diagnosed with multiple sclerosis, which limits his ability to stand or walk. Currently, he walks with the assistance of two braces, and he drives a vehicle that is modified with hand controls. I accept that the husband is generally capable of caring for Liam on a day-to-day basis, but because of his physical limitations he requires some assistance with some parenting tasks. 9 The husband’s father, William Ainslie, and stepmother, Alice Ainslie (hereinafter called “Alice”), reside in Niagara Falls, Ontario, but the relationship between the husband and his father is strained at the present time. Alice swore an affidavit in this proceeding in favour of the wife’s motion. In that affidavit Alice deposed that the wife has always been the primary caregiver for Liam; that Alice has assisted in the care of Liam since Liam was born; and that the husband’s multiple sclerosis limits his ability to care for Liam. Further, Alice deposed that prior to the separation the husband had never cared for Liam without the assistance of herself, or the wife, or the wife’s mother. 10 The husband’s mother, Constance Ainslie, and other members of the Ainslie family, live in the Niagara area and the husband maintains a good relationship with them. Thus, even though his father and stepmother are not supportive, I accept that the husband has some extended family in the Niagara Region in Ontario who will support and assist him. 11 The wife’s family and extended family live in New York State in the Buffalo area, although not precisely in Buffalo, New York. In particular, the wife’s mother has been very involved in caring for Liam since Liam was born. 478 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

Mobility 12 The leading case with respect to the mobility of children is the case of Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.). At para. 49 the Supreme Court of Canada summarized the law of mobility in seven concise points. Immediately thereafter, at para. 50, the Court wrote, “The ultimate question in every case is this: what is in the best interests of the child in all circumstances, old as well as new?” Thus, the paramount concern in any mobility case is the best interests of the child. 13 The custodial parent, acting reasonably, may move with the child to another jurisdiction, but there is no presumption that such a move is in the child’s best interests. Rather, the benefit of the child remaining with the accustomed custodial parent must be weighed against the possible reduction of contact with the non-custodial parent and the child’s famil- iar community. See the Gordon decision and the decision in Bjornson v. Creighton (2002), 62 O.R. (3d) 236 (Ont. C.A.). 14 In the present case, I find that the wife’s decision to relocate to Buf- falo, New York, is sensible and is one that is made in good faith. Cur- rently, the wife crosses the international border 10 times per week in order to work in Buffalo. The delays associated with crossing the border increase her travel time each day, occasionally cause her to be late for work, and probably cause some frustration. If she lived in Buffalo she would be closer to work, she would not face the daily delays of border crossings, her commuting time would be reduced, and she would have more time to spend with her child and family. 15 Further, although there is no direct evidence to support the wife’s suggestion that her career advancement has been limited, I accept that there may be a subtle career disadvantage if she were to continue to live in Canada and work for an American corporation in Buffalo. 16 In my opinion, if the wife were permitted to relocate to Buffalo, New York she would probably have more time to spend with Liam, she would probably be happier, and she could possibly advance more readily in her career. All of these benefits to the wife would consequently benefit Liam. 17 Regarding potential negative effects on Liam because of the possible reduction of contact between Liam and the husband, it is important to recognize that mobility issues that involve short moves across an international border, from one border town to another, are much different than mobility issues that involve a substantial trek across the continent. In border towns, such as the ones located in the Niagara Region, both in Pohlig-Ainslie v. Ainslie J.R. Henderson J. 479

Ontario and New York, crossing the international border is a way of life. It is very common for citizens to cross the border for work, commerce, social activities, extracurricular activities, and shopping. Therefore, generally where both parents live in border towns, the international border should not be a significant impediment to the maintenance of a healthy relationship between the child and the non-custodial parent. 18 Here, the drive from Niagara Falls, Ontario to Buffalo, New York takes approximately 30 minutes. The only difficulty will be the occasional delay and frustration inherent in crossing the international border. In my view that slight impediment to the husband’s right to exercise access to Liam can be offset by certain accommodations that the wife must make if she chooses to make this move. 19 Specifically, because the wife has decided to move to Buffalo, it is appropriate for the wife to assist with the transportation of Liam for access visits, and it is appropriate for the wife to commit to residing within a short distance of the border. The husband is entitled to a court order that ensures that the wife will make these accommodations. 20 Furthermore, this is not a situation in which the wife proposes to move to a country to which she and Liam have no connection. Both the wife and Liam are U.S. citizens, both were born in the United States, the wife and the husband both lived in Buffalo for a period of time, the wife has family in New York State, the wife has commuted to Buffalo for several years, and the wife has access to a vacation property in El- licottville, New York, which Liam has enjoyed regularly during his young life. 21 Overall, I find that the wife has sensible reasons for wishing to move with Liam to Buffalo. I find that such a move would be beneficial to the wife, and would have consequent benefits for Liam. Moreover, any re- sultant impediment to access can be overcome by court ordered accommodations by the wife regarding transportation and residence. 22 Therefore, the child Liam will have his primary residence with the wife, and the wife will be permitted to reside with Liam in Buffalo, New York.

Custody 23 All of the evidence suggests the husband is a committed, involved parent. He is a teacher by profession and I perceive him to be a strong advocate for Liam. Therefore, in my view the husband intends to be, and should be, actively involved in the decision-making process for Liam. 480 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

24 Although the husband has health issues, I accept that he is able to care for Liam on a day-to-day basis. He may need some assistance because of his physical limitations, but this should not affect his ability to parent Liam. 25 For these reasons I will accede to the husband’s request for an order for joint custody.

Access 26 It is reasonable for the husband to have parenting time with Liam on alternate weekends and on one evening per week. I will not allow three evenings per week as requested by the husband as in my view this would be far too much time given that Liam will be in school fulltime in Buf- falo. I will, however, slightly expand the parenting time for the husband on alternate weekends. 27 Therefore, it is ordered that the husband shall have access to Liam on alternate weekends from Friday at 4:00 p.m. until Sunday at 6:00 p.m. and every Tuesday from 4:00 p.m. to 7:00 p.m. 28 As discussed earlier, I also order that the parties arrange the pickups and drop-offs of Liam so that each of the parties will provide approximately one half of the access transportation. I will not make a more specific order on this point unless the parties are unable to make arrangements between themselves. 29 I also order that for as long as Liam primarily resides with the wife, the wife will reside within 80 kilometers of Niagara Falls, Ontario, subject to further order of the court.

Liam’s School 30 The wife proposes that Liam attend Nardin Academy in Buffalo commencing September 2011 as the wife deposes that Nardin Academy is an excellent school and it is her school of choice in Buffalo. The difficulty is that Nardin Academy charges tuition of approximately $10,000.00 per year, whereas if Liam had remained in Ontario there would be no tuition fee. 31 In my view, if Liam has his primary residence in Buffalo with the wife, the wife should have the first right of determining Liam’s school, but not at any price. It may well be that Nardin Academy is a wonderful school, but the wife cannot unilaterally determine that Liam will attend Nardin Academy, and then make a claim for contribution for the tuition from the husband. Pohlig-Ainslie v. Ainslie J.R. Henderson J. 481

32 In order to solve this difficulty, I order that the wife is entitled to choose Liam’s school for the upcoming school year, and that the wife is entitled to choose Nardin Academy. I also order that the tuition for Liam’s school for the upcoming school year will be shared pro rata by the husband and the wife in accordance with their incomes, but the husband’s pro rata share shall not exceed the sum of $2,000.00. If the amount of the tuition is such that the husband’s pro rata share exceeds $2,000.00, then any amount over $2,000.00 will be paid by the wife.

Conclusion 33 In summary, I make the following orders: 1. The husband and the wife shall have joint custody of the child Liam, with the primary residence of Liam to be with the wife. 2. The wife is permitted to have Liam reside with her in Buffalo, New York. 3. The husband shall have access to Liam on alternate weekends from Friday at 4:00 p.m. until Sunday at 6:00 p.m. and every Tuesday from 4:00 p.m. to 7:00 p.m. 4. The parties shall arrange the pickups and drop-offs of Liam so that each of the husband and the wife will provide approximately one half of the access transportation. 5. For as long as Liam primarily resides with the wife, the wife will reside within 80 kilometers of Niagara Falls, Ontario, subject to further order of the court. 6. The wife is entitled to choose Liam’s school for the upcoming school year, and the wife is entitled to choose Nardin Academy. 7. The tuition for Liam’s school for the upcoming school year will be shared pro rata by the husband and the wife in accordance with their incomes, but the husband’s pro rata share shall not exceed the sum of $2,000.00. If the amount of the tuition is such that the husband’s pro rata share exceeds $2,000.00, then any amount over $2,000.00 will be paid by the wife. Motion granted in part. 482 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

[Indexed as: Hsiung v. Tsioutsioulas] LAHAINA NG HSIUNG (Applicant) AND LOUIS TSIOUTSIOULAS (Respondent) Ontario Court of Justice Docket: Toronto D40110/07 2011 ONCJ 517 Harvey P. Brownstone J. Heard: September 22, 2011 Judgment: September 26, 2011 Family law –––– Custody and access — Variation of custody order — Fac- tors to be considered — Material change in circumstances –––– Parties were involved in matrimonial litigation — Parties had one child, A, born August 27, 2003 — On June 4, 2008, mother was granted sole custody of A — Order also required mother to consult with father prior to making any major decisions regarding A, and granted father right to receive same information regarding A as mother received — On September 24, 2008, final order was made, which primarily addressed holiday access — Provisions regarding consultation and right to information were inadvertently omitted from final order — On November 24, 2010, A was admitted to hospital with life-threatening inflammatory brain disease — A recovered and was discharged on June 24, 2011 — Father brought motion for sole custody of A, or in alternative, joint custody of A, among other relief — Motion granted — Parties were awarded joint custody of A — There was material change in circumstances — Mother did everything within her power to exclude father from medical appointments, to isolate him from access to medical staff, and to deprive him of access to medical information — This was so especially in face of order regarding consultation obligations and information-sharing entitlements. Family law –––– Custody and access — Variation of custody order — Fac- tors to be considered — Best interests of child –––– Parties were involved in matrimonial litigation — Parties had one child, A, born August 27, 2003 — On June 4, 2008, mother was granted sole custody of A — Order also required mother to consult with father prior to making any major decisions regarding A, and granted father right to receive same information regarding A as mother received — On September 24, 2008, final order was made, which primarily addressed holiday access — Provisions regarding consultation and right to information were inadvertently omitted from final order — On November 24, 2010, A was admitted to hospital with life-threatening inflammatory brain disease — A recovered and was discharged on June 24, 2011 — Father brought motion for Hsiung v. Tsioutsioulas 483 sole custody of A, or in alternative, joint custody of A, among other relief — Motion granted — Parties were awarded joint custody of A — It was time to convey to parties that they were equally important in A’s life, regardless of hostility and acrimony they felt towards one another — Parents had been sharing A’s time on equal basis with little difficulty prior to when A became ill — There was no evidence that any explosive confrontations occurred during eight months that A was in hospital — Parties had recently been able to communicate better with use of communications book — A’s health had greatly improved — Struc- tured order would alleviate stress by stipulating procedure to be followed in event that parties disagreed on any issue. Family law –––– Custody and access — Joint custody — Factors to be considered — Parenting abilities –––– Parties were involved in matrimonial litigation — Parties had one child, A, born August 27, 2003 — On June 4, 2008, mother was granted sole custody of A — Order also required mother to consult with father prior to making any major decisions regarding A, and granted father right to receive same information regarding A as mother received — On Sep- tember 24, 2008, final order was made, which primarily addressed holiday access — Provisions regarding consultation and right to information were inadvertently omitted from final order — On November 24, 2010, A was admitted to hospital with life-threatening inflammatory brain disease — A recovered and was discharged on June 24, 2011 — Father brought motion for sole custody of A, or in alternative, joint custody of A, among other relief — Motion granted — Parties were awarded joint custody of A — It was time to convey to parties that they were equally important in A’s life, regardless of hostility and acrimony they felt towards one another — Parents had been sharing A’s time on equal basis with little difficulty prior to when A became ill — There was no evidence that any explosive confrontations occurred during eight months that A was in hospital — Parties had recently been able to communicate better with use of communications book — A’s health had greatly improved — Structured order would alleviate stress by stipulating procedure to be followed in event that parties disagreed on any issue. Family law –––– Custody and access — Terms of custody order — Restric- tion on change of name –––– Parties were involved in matrimonial litigation — Parties had one child, A, born August 27, 2003 — On June 4, 2008, mother was granted sole custody of A — Order also required mother to consult with father prior to making any major decisions regarding A, and granted father right to receive same information regarding A as mother received — On September 24, 2008, final order was made, which primarily addressed holiday access — Provi- sions regarding consultation and right to information were inadvertently omitted from final order — On November 24, 2010, A was admitted to hospital with life-threatening inflammatory brain disease — A recovered and was discharged on June 24, 2011 — Father brought motion for order prohibiting mother from 484 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

changing A’s name, among other relief — Motion granted — Mother’s request to change A’s name was denied — A had quite enough disruption in his life — A knew his name and was used to it — Mother presented no good reason why A’s name should be changed at this point in his life — Mother’s reasons for making this request related only to her needs and convenience, not A’s. Cases considered by Harvey P. Brownstone J.: Andrade v. Kennelly (2007), 2007 CarswellOnt 8271, 2007 ONCA 898, 46 R.F.L. (6th) 235, [2007] O.J. No. 5004 (Ont. C.A.) — referred to Bilopavlovic v. Bilopavlovic (2008), 2008 ONCA 380, 2008 CarswellOnt 2649, [2008] O.J. No. 1854 (Ont. C.A.) — referred to Bromley v. Bromley (2009), 2009 CarswellOnt 2210, 2009 ONCA 355, [2009] O.J. No. 1733 (Ont. C.A.) — referred to Cook v. Sacco (2006), 2006 CarswellOnt 6736, 32 R.F.L. (6th) 1, 217 O.A.C. 90, [2006] O.J. No. 4379 (Ont. C.A.) — referred to Garrow v. Woycheshen (2008), 64 R.F.L. (6th) 459, 2008 CarswellOnt 8193, 2008 ONCJ 686, [2008] O.J. No. 5422 (Ont. C.J.) — referred to Graham v. Bruto (2008), 2008 CarswellOnt 1906, 2008 ONCA 260, [2008] O.J. No. 1306 (Ont. C.A.) — referred to Hunter v. Hunter (2008), 52 R.F.L. (6th) 109, 2008 BCSC 403, 2008 Car- swellBC 656, [2008] B.C.J. No. 587 (B.C. S.C.) — referred to K. (R.K.) v. M. (B.M.) (2009), 2009 CarswellYukon 38, 2009 YKSC 33, 66 R.F.L. (6th) 281, [2009] Y.J. No. 54 (Y.T. S.C.) — referred to Kaplanis v. Kaplanis (2005), 2005 CarswellOnt 266, 10 R.F.L. (6th) 373, 194 O.A.C. 106, 249 D.L.R. (4th) 620, [2005] O.J. No. 275 (Ont. C.A.) — referred to Lawson v. Lawson (2006), 214 O.A.C. 94, 29 R.F.L. (6th) 8, 2006 CarswellOnt 4789, 81 O.R. (3d) 321, [2006] O.J. No. 3179 (Ont. C.A.) — referred to Ursic v. Ursic (2006), 2006 CarswellOnt 3335, 32 R.F.L. (6th) 23, [2006] O.J. No. 2178 (Ont. C.A.) — referred to Statutes considered: Children’s Law Reform Act, R.S.O. 1990, c. C.12 s. 24(2) — considered s. 29 — considered Rules considered: Family Law Rules, O. Reg. 114/99 R. 24(1) — referred to R. 24(8) — referred to R. 24(11) — referred to

MOTION by father for sole custody of child, or in alternative, joint custody of child, and for order prohibiting mother from changing child’s name. Hsiung v. Tsioutsioulas Harvey P. Brownstone J. 485

Lahaina Ng Hsiung, for herself Esther L. Lenkinski, for Respondent

Harvey P. Brownstone J.:

1 These are my reasons for decision in a custody change motion brought by the respondent father relating to the parties’ son, Anthony Chin-Liang Tsioutsioulas, born on 27 August 2003. He seeks sole custody of the child, or in the alternative, a joint custody order containing a detailed parenting plan. He also seeks an order prohibiting the mother from changing the child’s name.

1 Background Facts 2 On 4 June 2008, the court made an order granting sole custody to the mother, with access to the father from Wednesday at 9:00 a.m. to Satur- day at 6:00 p.m. The order contained a provision requiring the mother to consult with the father in writing prior to making any major decisions regarding the child. The father was also granted to right to receive the same information regarding the child as the mother received, from the child’s school, doctors, and any other service providers. 3 On 24 September 2008, a final order was made which primarily addressed holiday access. The two provisions from the order of 4 June 2008 referred to above (consultation and right to information), which were clearly intended to form part of the final order, were inadvertently omitted from the formal issued order dated 24 September 2008.1 This inadvertent but crucial error by the parties’ counsel at the time (neither of which was involved in this motion) fuelled the mother’s belief that she could exercise her custodial rights without any regard for the father’s role in the child’s life, in terms of pre-decision-making consultation and access to information. 4 In April 2009, the mother brought a change motion, seeking to reduce the child’s time in the father’s care, arguing that the shared parenting regime was detrimental to the child’s well-being. The Office of the Chil-

1This error was rectified on 26 May 2011 when I ordered that the order of 24 September 2008 be amended to include ALL custody and access provisions from the order of 4 June 2008 order. The amended order (improperly dated 26 May 2011 but corrected by me on the court’s copy, to be dated 24 September 2008) was issued on 22 June 2011. 486 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

dren’s Lawyer conducted an investigation and provided a report dated 16 November 2009, which recommended no change to the parenting schedule. A number of very good recommendations were made, intended to assist the parents to overcome their rage toward each other, which was blocking any possibility for effective communication and co-operation as co-parents. Unfortunately, those recommendations were not properly implemented by either parent. The result of the mother’s change motion was that no change was made to the parenting schedule and the shared parenting arrangement has continued to this day. 5 On 24 November 2010, the child became extremely ill and was admitted to the Hospital for Sick Children (“HSC”) with life-threatening inflammatory brain disease. He received intensive medical treatment and, on 24 January 2011, he was transferred to Holland Bloorview Kids Reha- bilitation Hospital (Bloorview). He was discharged as a daily outpatient on 20 May 2011 and was finally discharged from that facility on 24 June 2011. By all accounts, this child, who was at one point in a coma and near death, has had a remarkable recovery and is now doing well. How- ever, he still has occasional follow-up medical appointments to monitor his recovery and progress. 6 For many high-conflict couples faced with such an overwhelming medical crisis for their child, they are able to recognize the importance and necessity of putting aside their differences and working co-opera- tively to focus on their child’s health issues. Unfortunately, for the mother and father in this case (hereinafter referred to as Lahaina and Louis), their high-conflict relationship reached an all-time high, and culminated in this litigation.

2 The Evidence in This Case 7 The evidence filed by the parties in this motion was voluminous, fill- ing three large volumes of the continuing record. Each party provided lengthy affidavits offering a litany of accusations against the other and offering numerous self-serving denials, excuses and justifications for his or her conduct. Fortunately, the court had the benefit of sworn testimony from five independent professional witnesses: four hospital employees and the parties’ family service worker at the Catholic Children’s Aid So- ciety of Toronto (“CCAS”). The observations of the professional witnesses relating to the conduct of the parents were remarkably consistent and provided the court with a compelling picture of each parent’s person- ality, parenting style and level of co-operation vis-`a-vis the other parent. Hsiung v. Tsioutsioulas Harvey P. Brownstone J. 487

Wherever either parent’s evidence contradicted that of a professional witness, I preferred the evidence of the professional witness, as I found these witnesses to be neutral, fair and child-focussed. In her submissions, the mother urged me to give great weight to the numerous letters that she filed from professionals attesting to her good character and excellent parenting skills. It is certainly questionable whether those professionals would today have the same opinion of her if they had the opportunity to read the transcripts of the testimony of the five professionals who gave evidence in this case.

3 Mother’s Abuse of Her Custodial Role 8 Throughout Anthony’s hospitalization, Lahaina exercised her custodial powers with a fiercely arrogant sense of exclusivity and entitlement and with a total lack of sensitivity and appreciation for Louis’ role in the child’s life and for his right to be kept informed of all medical decisions and appointments so that he could be present for his son, who was critically ill for a prolonged period of time. This is completely unacceptable and reflective of a parent who failed to understand that one of the most important roles of a custodial parent is to appreciate and support the role of the non-custodial parent in the child’s life. Furthermore, when taken in the context of Lahaina’s failure to comply with the explicit consultation and information-sharing provisions in the custody order (referred to in paragraph [2] above), her relentlessly selfish and immature behaviour escalated to the level of a contempt of court worthy of serious sanction. Here are some examples that emerged from the testimony of hospital personnel: (a) Lorna Campbell, clinical leader at Bloorview, testified that Lahaina shouted at Louis when he interrupted a meeting she was having with a manager in order to say goodbye to his son. She further testified that Lahaina gave her explicit instructions not to give Louis any information about the child because she had sole custody. She described Lahaina as “aggressive” and “challenging” and “rude” when dealing with hospital personnel. (b) Paul Gregoroff, a highly experienced social worker in the Pediatric Intensive Care Unit at the HSC, testified that Lahaina was “selfish”, “entitled” and “immature”. He formed these conclusions because Lahaina had told him in front of the child that she deserved more time with her son 488 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

than Louis did, because she had given birth to the child and had breastfed him. When Mr. Gregoroff reminded Lahaina that their court order provided for a 50-50 shared parenting arrangement, she responded that the court order actually gave her one day more per month than the father got, so she should have more time with Anthony while he was hospitalized. With the help of hospital personnel, a 5-hour rotation schedule was implemented for each parent to spend time with Anthony.2 On one occasion, Lahaina decided to give Anthony a bath right before her allotted time with him was about to end. She continued to bathe the child without any concern for the fact that she was intruding on the father’s time with the child. Mr. Gregoroff described Lahaina as a person who did not care what anyone said; she was going to do what she wanted. In his interactions with her, he described her as “stern”, “demanding”, “rigid” and “controlling”. (c) Jennifer Schram, a registered practical nurse at Bloorview, testified about a conversation that she had with Lahaina in front of the child. When she told Lahaina that she was a single mother with an absent father, Lahaina said that her own life would be easier if the child’s father were not involved. Clearly, this is reflective of how Lahaina really feels: she would prefer that Anthony have no father, than to have to deal with someone she dislikes. This is not an ap- propriately child-focussed attitude that the court expects of custodial parents. (d) Patricia Morrow, a registered nurse at the HSC, related two disturbing incidents. One day, Louis was holding the child during a consultation and Lahaina was making notes. When the consultation was over, Louis wanted to make his own notes and took Lahaina’s notebook so that he could copy from her notes. Lahaina angrily told Louis in front of the child not to touch her things. She should have had no problem with allowing Louis to borrow her notebook for a few

2How sad that the parents could not manage to put aside their own emotional baggage long enough to spend even short periods of time together with their critically ill child, who loved and needed them both. Hsiung v. Tsioutsioulas Harvey P. Brownstone J. 489

minutes while he made his notes, even if he failed to ask permission before doing so. These people are not strangers to each other and there was no risk that Louis was going to permanently keep the notebook; they both love the child and they both wanted to make notes of what the medical professional had said, and there was absolutely no reason in those circumstances for Lahaina to admonish Louis in front of the child, or at all. In a second, even more disturbing incident, Louis showed up for one of Anthony’s medical treatments and Lahaina became visibly upset and repeat- edly insisted that he be ejected by hospital staff, saying “I don’t want him here. This is my day.” I cannot see how Louis’ presence during a medical procedure, even though it was not “his day” to be with the child, should have both- ered Lahaina at all. In her submissions, she attempted to justify her behaviour by stating that she was trying to avoid parental conflict being witnessed by Anthony. However, there is not one shred of evidence to support her allegation that Louis did anything at any time during Anthony’s lengthy hospitalization, to create conflict or to upset Anthony. In fact, Louis demonstrated remarkable maturity during this latter incident: he spent a little time with Anthony and then departed, to accommodate Lahaina’s selfish feelings. This is a very telling example of how, when faced with a potentially conflictual situation, it is Louis and not Lahaina who is prepared to back down in order to protect the child. 9 When asked to explain her conduct during her submissions, Lahaina stated that she was mostly motivated by fear and discomfort. She believed that, if Louis were given copies of Anthony’s medical records, he might take the child to a different doctor. There was no reasonable basis for this fear. 10 Lahaina also stated that Louis made her feel abused and uncomforta- ble, because he blamed her for the child’s illness. She is justified in feeling this way. Louis is of the view that Lahaina did not realize how sick Anthony was becoming and that she should have taken him to the hospital sooner. It was Louis who took the child to the hospital when the child was delivered to him in a very sick condition. There is no question that, with 20-20 hindsight, Anthony should have been taken to the hospital sooner than he was. Lahaina readily acknowledged this in her submis- 490 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

sions and stated that she told this to Louis on at least one prior occasion. Louis has had great difficulty letting go of his resentment and blaming of Lahaina and this has contributed to his inability to communicate with her in a civil way. He made a complaint against the mother to the CCAS, alleging that she had been neglectful. The CCAS conducted an investigation and found no wrongdoing by Lahaina and I accept this finding. The fact is that neither parent could have realized how sick the child was becoming and that there is no way to know whether Anthony’s illness would in any way have been different if he had been taken to the hospital sooner than he was. The point that Louis must truly accept once and for all is that it is absolutely futile to speculate in this way and, moreover, the essential fact on which to focus is that Anthony has made a remarkable recovery. Louis must learn to let go of this issue once and for all and he must tell Lahaina in no uncertain terms that he has done so. Everyone makes mistakes, but there is much to celebrate when one considers how sick Anthony was and how healthy he is now. 11 It must be stated at this juncture that the court recognizes that the mother cannot be faulted for any medical decisions that she made — and there were many — throughout the child’s illness.3 Her deficits as a custodial parent do NOT relate to her ability to provide instrumental care or follow medical instructions and make good decisions relating to Anthony’s health care. However, she has failed in the vitally important court-ordered obligation to consult with the non-custodial parent and to share information with him. She wilfully and defiantly did all within her power to exclude him — even going so far as to reschedule Anthony’s medical appointments so that they would fall on “her days” and not the father’s.

4 The Law 12 Section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended (“the Act”), provides that a custody order cannot be varied

3The court received evidence that, in 2009, the mother failed to follow the recommendations of a urologist regarding a course of medication proposed for Anthony’s bladder problem. Although this is somewhat concerning, I am satisfied that, if there were true neglect by the mother in this case, the doctor would have requested the CCAS to intervene. ,To date, this has not happened. With this one exception, there is absolutely no suggestion in the evidence that the mother has made any bad medical decisions for Anthony. Hsiung v. Tsioutsioulas Harvey P. Brownstone J. 491

“unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child”. Subsection 24(2) sets out the factors to be considered by the court in considering the “best interests of the child”. 13 I have concluded that the mother’s relentless conduct in doing all within her power to exclude the father from medical appointments, to isolate him from access to medical staff, and to deprive him of access to medical information — particularly in the face of court-ordered pre-decision-making consultation obligations and information-sharing entitlements — constitutes a material change in circumstances that affected the child’s best interests. This conclusion is in part in reliance on the very helpful testimony of the parents’ CCAS family service worker, Alana Miller, who testified in this case. I agree with her findings and recommendations and urge the parents to work very closely with this experienced and insightful social worker and to utilize the resources and refer- rals offered by the CCAS to work towards a healthy, business-like, civilized co-parenting relationship for Anthony’s sake.

5 What Order Is in Anthony’s Best Interests? 14 Louis has asked the court to grant him sole custody, because he believes that he is the better parent. His counsel submitted that he is the better parent because he would never treat Lahaina tn the way that she treated him where Anthony’s well-being is concerned. I note that there is some support for granting custody to Louis. His bedside parenting skills while Anthony was hospitalized were noticeably better than Lahaina’s.4 And his display of maturity in departing the scene during one of Anthony’s medical treatments, because Lahaina was insisting that it was “her day” (see paragraph [8](d) above) is most admirable. However, at this time, I am not persuaded on a balance of probabilities that the appro- priately child-focussed solution to the pathology being demonstrated by the parents in this case would be to shift the power from one parent to the other, especially given the concerns set out in paragraph [10] above regarding Louis’ as yet unresolved resentful attitude towards Lahaina. Also, an order transferring custody from the mother to the father would fail to sufficiently acknowledge the excellent parenting that BOTH parents provided to Anthony, albeit separately, during his prolonged and very serious illness.

4Jennifer Schram and Lorna Campbell testified to this effect. 492 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

15 In my view, the time has come for the court to convey to both parents in the strongest possible terms that they are EQUALLY IMPORTANT in Anthony’s life, regardless of the hostility and acrimony they feel towards one another. The father has asked the court, in the alternative, to make an order of joint custody and I agree that this is the appropriate disposition that would meet Anthony’s best interests. 16 This being said, Lahaina should consider herself sternly warned that, if she continues to undermine Louis’ parental authority, the next step will be to grant sole custody to Louis and deprive Lahaina of any decision- making authority. I sincerely hope that this will not be necessary. 17 I am acutely aware that an order for joint custody should not be made in cases where the parents have been unable or unwilling to demonstrate the capacity and willingness to communicate and to co-operate with each other and make decisions together in a civilized, child-focussed way: see Kaplanis v. Kaplanis, 2005 CanLII 1625, Kaplanis v. Kaplanis (2005), 194 O.A.C. 106, 10 R.F.L. (6th) 373, 2005 CarswellOnt 266, 249 D.L.R. (4th) 620, [2005] O.J. No. 275 (Ont. C.A.); Lawson v. Lawson, 2006 CanLII 26573, 81 O.R. (3d) 321, 214 O.A.C. 94, 29 R.F.L. (6th) 8, [2006] O.J. No. 3179, 2006 CarswellOnt 478 (Ont. C.A.); Graham v. Bruto, 2008 ONCA 260, 165 A.C.W.S. (3d) 103, [2008] O.J. No. 1306, 2008 CarswellOnt 1906 (Ont. C.A.). However, courts are increasingly prepared to order joint custody, even in high conflict cases, where satisfied that the parents have insulated the children from the conflict and sufficient protective factors are in place to ensure that the joint parental authority will be workable: see Ursic v. Ursic, 2006 CanLII 18349, 32 R.F.L. (6th) 23, [2006] O.J. No. 2178, 2006 CarswellOnt 3335 (Ont. C.A.); Cook v. Sacco, 2006 CanLII 37116, Cook v. Sacco (2006), 217 O.A.C. 90, 2006 CarswellOnt 6736, [2006] O.J. No. 4379, 32 R.F.L. (6th) 1 (Ont. C.A.); Andrade v. Kennelly (2007), 2007 ONCA 898, 46 R.F.L. (6th) 235, [2007] O.J. No. 5004, 2007 CarswellOnt 8271 (Ont. C.A.); Bilopavlovic v. Bilopavlovic, 2008 ONCA 380, 167 A.C.W.S. (3d) 931, [2008] O.J. No. 1854, 2008 CarswellOnt 2649 (Ont. C.A.). Moreo- ver, in recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: see Garrow v. Woycheshen (2008), 2008 ONCJ 686, 64 R.F.L. (6th) 459, [2008] O.J. No. 5422, 2008 CarswellOnt 8193 (Ont. C.J.); Bromley v. Bromley, 2009 ONCA 355, 176 A.C.W.S. (3d) 747, [2009] O.J. No. 1733, 2009 CarswellOnt 2210 (Ont. C.A.); K. (R.K.) v. M. (B.M.) (2009), 2009 YKSC 33, 66 R.F.L. Hsiung v. Tsioutsioulas Harvey P. Brownstone J. 493

(6th) 281, [2009] Y.J. No. 54, 2009 CarswellYukon 38 (Y.T. S.C.). I consider this to be such a case. 18 Accordingly, I have concluded that joint custody is appropriate in this case for the following reasons: (a) The parents have for the past 3 years been sharing Anthony’s time on a 50-50 basis, with little difficulty prior to January 2011 when the child became ill. (b) Despite repeated opportunities for explosive confrontations during the nightmarish 8 months that this family endured throughout Anthony’s illness, there is absolutely no evidence that any such confrontations occurred. It is true that Lahaina behaved poorly in terms of dismissing Louis’ important parental role and I have made reference to several occasions when she behaved inappropri- ately in front of Anthony, but for the most part Anthony was insulated from the parental conflict. (c) According to CCAS worker Alana Miller, the parents have recently been able to communicate better with the use of a communications book and they were even able to enjoy a get-together with Anthony at Louis’ home. Both parents are to be applauded for taking that very important first step towards healing their emotional wounds and moving on for Anthony’s sake. (d) Anthony’s health has greatly improved and there is no reason to think that these parents will in the future have to endure the stress and anxiety of such a painfully protracted life-threatening crisis. (e) I intend to provide a detailed, structured court order that should alleviate stress by stipulating a procedure to be followed in the event that the parents are unable to agree on any issue. 19 I have carefully considered and rejected the father’s rather appealing request for an order requiring the parties to engage the services of a parenting co-ordinator to resolve any future disputes. I am generally very supportive of this method of dispute resolution. However, in this case, given the involvement of the CCAS and the real and substantial risk of emotional harm to Anthony if the parental conflict does not subside, I have chosen to empower the CCAS to assist the parents to resolve non- medical disputes. Medical disputes should ideally be resolved by the child’s family doctor or, in the event that the medical issue in question is being attended to by a specialist, then the specialist should resolve it. It should be noted that I am not empowering any third party to actually 494 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

make decisions, because courts are not permitted to delegate decision- making powers in this way: see Hunter v. Hunter (2008), 2008 BCSC 403, 52 R.F.L. (6th) 109, [2008] B.C.J. No. 587, 2008 CarswellBC 656 (B.C. S.C.). However, it is hoped that the third parties mentioned above will assist the parties to resolve their disputes and, if this does not succeed, then either party may bring a motion to the court and the judge will decide. In addition, neither parent shall be authorized to change the child’s family doctor or specialist without the other parent’s written notarized consent or the consent of the CCAS. 20 The father has proposed an order requiring both parents to communicate using Our Family Wizard. The court agrees with this suggestion if both parties agree, with the stipulation that, if at any time, this software is no longer available or if the parents find another more suitable communications tool, they shall be free to use a different method of communication, provided they agree in writing to do so. If both parents do not want to communicate through Our Family Wizard, the current method of communication through a communication book is acceptable.

6 Mother’s Requests 21 Lahaina’s request to change Anthony’s name is denied. Anthony is now 8 years old and has had quite enough disruption in his life. He knows his name and is used to it. The time has long passed for this child to have his name changed. In 10 years, he will be an adult and can decide for himself whether he wants to change his name. Lahaina has presented no good reason why Anthony’s name should be changed at this point in his life. Her reasons for making this request relate only to her needs and convenience, not the child’s. There shall be an order prohibiting any change to the child’s name. 22 Lahaina made some additional requests in her response to Louis’ change motion, including a request to change the exchange time on Wednesdays. She did not address any of these issues in her submissions and, in any event, her materials do not disclose any child-focussed reasons to grant any of her requests.

7 Order 23 An order shall issue in the following terms: (a) The parents shall have joint custody of the child. (b) Anthony shall be in his father’s care from Wednesday at 9 a.m. to Saturday at 6 p.m. He shall be in his mother’s care from Saturday Hsiung v. Tsioutsioulas Harvey P. Brownstone J. 495

at 6 p.m. to Wednesday at 9 a.m. This schedule shall continue during school holiday times except as provided in paragraph (j) of this order, unless the parents agree to alter the schedule by way of a written, notarized agreement. All exchanges of the child shall occur at the child’s school (or camp if the child attends summer camp) but. if the child is not attending school or camp on an exchange day, each parent shall be responsible for delivering Anthony to the other parent’s residence at the end of his or her parenting time. (c) Each parent will attend all parent education programs, therapy and counsel-ling as directed by the CCAS in writing, and shall file proof of successful completion of each program with the CCAS and the court within 30 days of completion. (d) If the parents are unable to agree on any medical issue regarding Anthony, they shall first attend together at least one meeting with the doctor attending to the medical issue in question in an attempt to resolve the dispute. If a disagreement between the parents cannot be resolved, either parent may bring a motion to have the issue determined by the court, but the notice of motion must be accompanied by a letter from the applicable doctor setting out his or her recommendations for resolution of the issue. The parents shall share equally the cost of any such letter, subject to reapportionment by the court when the motion is adjudicated. (e) If the parents are unable to agree on any non-medical issue regarding Anthony, they shall first attend together at least one meeting with their CCAS family service worker in an attempt to resolve the dispute. If a disagreement between the parents cannot be resolved, either parent may bring a motion to have the issue determined by the court, but the notice of motion must be accompanied by a letter from the family service worker setting out his or her recommendations for resolution of the issue. The parents shall share equally the cost of any such letter, subject to reapportionment by the court when the motion is adjudicated. (f) Anthony’s OHIP card shall travel with him between the parties’ residences. Each parent is entitled to obtain an original birth certificate for Anthony in accordance with the procedures established by the Registrar of Vital Statistics. If the parents cannot agree who shall keep Anthony’s social insurance card and passport, they will 496 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

be kept in a safety deposit box at a bank and the parents will share equally the cost of any fees charged by the bank. (g) Both parents shall be required to attend every medical and dental appointment for Anthony and every school event where parents are welcome to attend, including parent-teacher interviews. The parent having physical custody of Anthony on an appointment day will be responsible for transporting Anthony to and from the appointment. Any parent making a medical or dental appointment for Anthony or an appointment to meet with any teacher, school official, counsellor, therapist, tutor or other service provider for Anthony must notify the other parent in writing at least seven days before such appointment, except in an emergency, in which case notification shall be provided immediately. The parent making any appointment shall maintain documentary proof of the written notification given to the other parent. A copy of this order shall be provided to the CCAS family service worker and to Anthony’s school principal, as well as to all of Anthony’s doctors, counsel- lors, therapists, tutors and other service providers. (h) Neither parent shall have the authority to change the child’s family doctor, specialist, dentist, therapist, counsellor, school, tutor or other service provider without the other parent’s written notarized consent or the written consent of the CCAS or court order. (i) Each parent shall be entitled to make decisions concerning Anthony’s extracurricular activities that occur during his or her time with Anthony, and each parent shall bear the full costs of all activities in which he or she has enrolled the child. (j) Paragraph 3 of the order dated 24 September 2008 (as reissued on 22 June 2011), which deals with holiday access, shall be incorporated into this final order. (k) Regardless of the regular parenting schedule, Anthony shall spend Father’s Day with his father from 10:00 a.m. until 6:00 p.m.5 (l) There shall be no alteration of the parenting schedule for Hal- lowe’en or for Anthony’s birthday or for P.A. days unless the parents agree to such alteration by way of a written, notarized agreement.

5There is no need to specify Mother’s Day, as Anthony is normally with his mother on Sundays. Hsiung v. Tsioutsioulas Harvey P. Brownstone J. 497

(m) Neither parent may cause Anthony to be removed from Canada without the other parent’s written notarized consent or court order. (n) Neither parent may obtain a passport for Anthony without the other parent’s signature on the passport application or a court order dispensing with that parent’s consent to the obtaining of a passport. (o) Neither parent shall have authority to change the child’s name. His name shall continue to be Anthony Chin-Liang Tsioutsioulas until he reaches the age of majority. (p) The parents shall communicate primarily through a communications book. If they agree in writing to use a co-parenting communication software such as Our Family Wizard, this is acceptable. (q) Each parent shall keep the other apprised in writing at all times of his or her residential address and all telephone numbers at which he or she may be reached at work, at home, and by mobile telephone. 24 If the respondent wishes to claim costs, he shall serve and file his submissions by 4:30 p.m. on 28 October 2011. The applicant shall serve and file her responding submissions by 4:30 p.m. on 18 November 2011. The applicant would be well advised to consult legal counsel to assist her in this regard, given the principles set out in subrules 24(1), (8) and (11) of the Family Law Rules, O. Reg. 114/99, as amended, as they relate to the findings of fact made in relation to her conduct as a custodial parent during Anthony’s illness. Motion granted. 498 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

[Indexed as: W. (E.), Re] In the Matter of an Application under the Child, Youth and Family Enhancement Act Regarding the children EW, WMW and AAW Alberta Provincial Court Docket: Grande Prairie 111046918W1 2011 ABPC 345 B.R. Hougestol Prov. J. Heard: November 4, 2011 Judgment: November 22, 2011 Family law –––– Children in need of protection — Application for temporary custody — Grounds for temporary order — Child abuse –––– Children were apprehended from mother’s care on protection concerns including mother’s drug abuse, domestic abuse, issues with housekeeping and cleanliness, and problems associated with father being in contact with children without fully complying with Director requirements — Children were aged between 1.5 years and 5.5 years — Director commenced application for Permanent Guardianship Order — Director brought application for order for initial custody, pursuant to s. 21.1 of Child, Youth and Family Enhancement Act — Application granted — Director made out reasonable suspicion that child was in need of intervention — Director made prima facie case for Permanent Guardianship Order — There was reasonable suspicion that there had been conscious breach of supervision order by way of father’s contacts with family unit — Director’s concerns that father was violent and drug abuser had validity — Because of weaknesses in Director’s case, considerably broader access was directed in interim — Mother’s progress mitigated her long drug abuse history significantly. Cases considered by B.R. Hougestol Prov. J.: B. (C.) v. Alberta (Director of Child Welfare) (2007), 77 Alta. L.R. (4th) 38, 415 A.R. 166, 2007 ABQB 234, 2007 CarswellAlta 493, [2007] A.J. No. 429 (Alta. Q.B.) — referred to Statutes considered: Child, Youth and Family Enhancement Act, R.S.A. 2000, c. C-12 Generally — referred to s. 19(1) — referred to s. 21.1 [en. 2003, c. 16, s. 23] — considered

APPLICATION by Director for order for initial custody. W. (E.), Re B.R. Hougestol Prov. J. 499

M. Robinson, for Director A. Howey, for Mother S. Channan, for Children Father, for himself

B.R. Hougestol Prov. J.: Parties: 1 Mother: Is a 33 years old with three young children who are the subject matter of the director’s application for a Permanent Guardianship Order. Historically the mother has been a drug addict and has been long involved in a relationship with abuse issues. In the past year or so she has been “clean”. She has worked with the director’s personnel. Credible friends and relatives say that she is a loving and caring parent. 2 Father: Is 37 years of age. He works as a driller on service rigs. He lives primarily with his mother and brother at his mother’s residence. His work takes him out of town for extended periods of time. He has had issues with drugs but says that he has been “clean” for a number of months apparently with confirmatory tests, although none were produced in court. Formerly both parents were active and willing participants in the drug lifestyle. He acknowledges that he has anger management issues. There had been admitted relationship discord with violence going both ways. The father has also evidently served 18 months in jail for assaulting a peace officer, being released in the fall of 2010. 3 Children: The Director’s application covers three children aged 1.5 years to 5.5 years. Apart from the 1.5 year old the children appear to have no special needs and appear to be developmentally normal. The 1.5 year old however has serious behavioural and potty training issues. This being said the mother seems aware and focussed on working on these issues. The Director’s personnel frankly had little to say about this as a major problem and my conclusion is that the mother is more in tune with it than the Director’s personnel.

Evidential Standard at Initial Custody Hearings: 4 Section 21.1 of the Act dictates the need for initial custody hearing to decide whether the child remains in the home or in the Director’s care pending the ultimate hearing. The ultimate hearing usually occurs months later and involves more witnesses and considerably more detail than is expected at an initial hearing. After an initial hearing the court has 500 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

only two options: 1) leave the child in the Director’s care, or 2) return the child to the guardians pending the ultimate hearing. 5 No where in the Act is a test set out for what the amount of evidence necessary for the Director to succeed at the initial hearing might be. We know that at a final hearing the court must be satisfied on balance of probabilities that the relief sought in all of the circumstances is in the best interests of the children: B. (C.) v. Alberta (Director of Child Wel- fare) (2007), 77 Alta. L.R. (4th) 38 (Alta. Q.B.). 6 Given that the onus of proof at the ultimate hearing is proof on a balance of probabilities it follows that the level of proof at an initial hearing is less. I can find no authority discussing exactly what constitutes the amount of proof necessary. At preliminary inquiries in a criminal court context the level of proof for committal is low. The preliminary inquiry judge will commit for trial if there is “any evidence” which a reasonable jury could convict upon. Hand-in-hand with this test at preliminary is the requirement that a judge not “weigh” the evidence. That keeps the judge from deciding what version of contradictory facts he might believe and requires acceptance of the Crown’s case as believed. This threshold is painfully low and if applied to an initial custody hearing it would largely render them useless to oversee week cases. 7 The Act permits apprehension on reasonable and probable grounds.(s. 19(1)) I am satisfied that the appropriate test for an initial custody hearing should be whether the director has made out a “reasonable suspicion” that the child “is in need of intervention”. Secondly, the court must assess whether a prima facie case for the relief is made out, here a PGO. Again, drawing on analogy from the criminal courts a “reasonable suspicion” is a higher standard than “any evidence” but less than proof of a balance of probabilities and smewhat less than “reasonable and probable” grounds.. Such a standard allows for some weighing of credibility and holds the evidence up to objective scrutiny. That is the standard against which I will weigh the evidence in this case. This standard is much more important where the evidence hinges on a single incident which on some views this case does.

Director’s Case: 8 The Director’s case has four factual components: 1) a long history of interventions and drug and abuse problems 2) ongoing issues with housekeeping and cleanliness W. (E.), Re B.R. Hougestol Prov. J. 501

3) problems associated with father being in contact with the children without fully complying with director requirements concerning his anger/abuse issues and drug use. 4) the director says that the contact in component 3 in and of itself breaches the supervision order 9 Counsel for the director conceded that the second issue by itself did not constitute sufficient cause for an intervention. 10 The first issue speaks for itself historically. Against the history however is recent steady progress by the mother. She is clean and largely cooperative. This progress mitigates the long history significantly. 11 The real issue surrounds involvement of the father in the family unit. The Director says that he is violent and a drug abuser. The Director’s concerns may have validity. Having said that however he too says that he is recently clean, and somewhere, at the Director’s disposal, supposedly drug tests confirm this. Additionally he has taken some anger management therapy. He may in fact be closer to compliance with the Director’s wishes than the Director knows.

Walmart/McDonalds Restaurant: 12 The father had picked up the 1.5 year old and with his mother went to Walmart and McDonalds restaurant. In doing so he knowingly breached the supervision order. He says he “snuck” the child briefly from the babysitter, albeit with the babysitter’s acquiescence, and should bear sole responsibility. The Director says that he is really much more involved with the family and that the babysitter naturally gave the father his daughter when asked since hearsay evidently indicates that he was in the home all the time in any case. 13 As an alternate position, if the Walmart/MacDonalds version of events as related by the father was accepted, the Director argues that simply having a babysitter in place that would allow him to remove the 1.5 year old is a breach of the supervisory duties of the mother. I can say that even if I fully accepted the father’s version of “sneaking” the 1.5 year old that I would still find this argument the last bastion of the desperate. Be- cause of my other findings I need say nothing further on this point. 14 I am satisfied from the evidence of the mother and from the father himself that he has had contact with the family unit contrary to the supervision order. On the father’s own evidence he “slipped” on several occasions and admitted more regular contact than the single trip to Walmart. 502 REPORTS OF FAMILY LAW 9 R.F.L. (7th)

By the same token however I am satisfied that the contact does not mean that he lives in the home nor enjoys an open invitation to be there from the mother. Clearly the mother knows the consequences of him being present contrary to the Directors wishes and is concerned about it. 15 I am therefore satisfied that there is a reasonable suspicion that there has been a conscious breach of the supervision order by way of the father’s contacts. At a full hearing the Director will be obliged to provide fuller proof that this was regular contact and constituted some type of risk to the children. The Director, one would think, would be obliged to call the babysitter, her boyfriend and whatever other witnesses might pertain to this point. 16 The evidence as heard at the initial custody hearing were it a full final PGO hearing would not justify that dramatic consequence. However given that this is an initial hearing there may be more evidence available to the director which would fully flesh out their case to show that something as drastic as a PGO is justified. I am satisfied that a prima facie case for it has been made out on the evidence presented at the initial custody hearing. 17 Because of the weaknesses in the Directors case I have directed considerably broader access in the interim than one usually sees in these situations. Application granted.