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REPORTS OFFAMILY LAWSeventh Series/Septieme serie

Recueil de jurisprudence en droit de la famille

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REPORTS OFFAMILY LAW

Seventh Series/Septieme serieRecueil de jurisprudence en droit de la famille

[Indexed as: Dirom v. Furgeson]

Jesse John Pasley Dirom, Respondent (Appellant) and AmandaRosetta Furgeson, Appellant (Respondent)

Alberta Court of Appeal

Docket: Calgary Appeal 1401-0138-AC

2014 ABCA 433

J.D. Bruce McDonald, Russell Brown JJ.A., Elizabeth Hughes J.(ad hoc)

Heard: December 1, 2014

Judgment: December 15, 2014

Family law –––– Custody and access — Factors to be considered in custodyaward — Best interests of child generally — Miscellaneous –––– Parties weremarried in April 2007, and separated in October 2010 — Parties had one child,born in October 2009 — At trial, mother was granted sole decision-making au-thority and primary parenting of child — Father successfully appealed, and pre-vious shared parenting arrangement was reinstated — Mother appealed — Ap-peal allowed — Appeal judge did not apply correct standard of review —Appeal judge erred when he embarked upon re-evaluation of issues on merits —Appeal judge erred in allowing appeal about final decision-making and referringmatter back to parties.

Cases considered:

Alberta (Minister of Municipal Affairs) v. Alberta (Municipal GovernmentBoard) (2002), 31 M.P.L.R. (3d) 153, 2002 ABCA 199, 2002 CarswellAlta1083, (sub nom. Alberta (Minister of Municipal Affairs) v. TelusCommunications Inc.) 218 D.L.R. (4th) 61, [2002] 11 W.W.R. 418, 45 Ad-min. L.R. (3d) 1, 6 Alta. L.R. (4th) 199, 312 A.R. 40, 281 W.A.C. 40, (subnom. Alberta (Minister of Municipal Affairs) v. Telus Communications Inc.)[2002] A.J. No. 1068 (Alta. C.A.) — referred to

Caufield v. Wong (2007), 47 R.F.L. (6th) 144, 2007 CarswellAlta 1662, 2007ABQB 732 (Alta. Q.B.) — considered

Q. v. College of Physicians & Surgeons (British Columbia) (2003), 2003 SCC19, 2003 CarswellBC 713, 2003 CarswellBC 743, 11 B.C.L.R. (4th) 1, 2003

REPORTS OF FAMILY LAW 53 R.F.L. (7th)2

CSC 19, 223 D.L.R. (4th) 599, 48 Admin. L.R. (3d) 1, (sub nom. Dr. Q., Re)302 N.R. 34, [2003] 5 W.W.R. 1, (sub nom. Dr. Q. v. College of Physicians& Surgeons of British Columbia) [2003] 1 S.C.R. 226, (sub nom. Dr. Q., Re)179 B.C.A.C. 170, (sub nom. Dr. Q., Re) 295 W.A.C. 170, [2003] S.C.J. No.18, REJB 2003-39403 (S.C.C.) — referred to

Van de Perre v. Edwards (2001), 2001 SCC 60, 19 R.F.L. (5th) 396, [2001] 11W.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.) 255W.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.) — considered

Statutes considered:

Family Law Act, S.A. 2003, c. F-4.5Generally — referred tos. 89 — considered

Rules considered:

Alberta Rules of Court, Alta. Reg. 124/2010R. 1.4(2)(h) — considered

APPEAL by mother from judgment allowing father’s appeal from decisiongranting mother sole decision-making authority and primary parenting of child.

C. Thompson, for AppellantD. Harms, I.T. Libin, for Respondent

Per curiam:

Introduction1 This is an appeal of a decision of the Court of Queen’s Bench sitting

as an appeal court under the Family Law Act, SA, c F-4.5. A ProvincialCourt decision had previously granted sole decision-making authorityand primary parenting to the mother with specified access to the father.The father appealed that decision to the Court of Queen’s Bench and thatcourt’s decision was rendered orally on May 23, 2014. It overturned thetrial judge’s decision, reinstated the previous shared parenting arrange-ment, and left the decision-making to the parties to decide within 30days.

Dirom v. Furgeson Per curiam 3

2 Leave was granted to appeal the Court of Queen’s Bench decision onthe following two questions:

(a) Whether the applicable standard of review was applied bythe appeal judge; and

(b) Whether the appeal judge had jurisdiction to refer the deci-sion-making back to the parties to determine themselves.

Background Facts3 The parties married on April 7, 2007. There is one child of the mar-

riage, RJD, born in October 2009. The parties separated in October 2010.For about a year following their separation, the parties had a nesting ar-rangement; RJD remained in the matrimonial home and the parties alter-nated weeks living there. In 2011, the father bought a new home close byand the parties continued alternating weeks, with RJD moving betweenthe houses. There were four altercations between the parties during thistime and they often disagreed on parenting decisions.

4 Due to conflict between the parties, the mother filed a claim in 2012under the Family Law Act seeking primary care of RJD and sole deci-sion-making authority, save RJD’s place of residence. The trial judgeheard from seven witnesses: the two parties, a parenting expert, and fourwitnesses called on behalf of the father. The parenting expert, MsWotherspoon, prepared a report and was questioned at trial. It was heropinion that if the conflict between the parents continued, it would dam-age RJD.

5 Ms Wotherspoon’s evidence included the following observations andrecommendations:

(a) RJD had adapted well to the shared parenting arrangementand she would not recommend changing it;

(b) shared parenting is not normally recommended for pre-school children; and

(c) a parenting co-ordinator was recommended to arbitrate de-cision-making or final decision-making should rest withone parent or the other.

6 The trial judge rendered a verdict on January 29, 2014, granting pri-mary care of RJD and sole decision-making to the mother with specifiedaccess to his father. The father’s time with RJD was reduced from alter-nating weeks to every second weekend paired with an alternating week-night. The holiday parenting schedule remained unchanged.


7 The father appealed this decision to the Court of Queen’s Benchunder section 89 of the Family Law Act.

Decision of the Appeal Judge8 The appeal judge took particular issue with the trial judge’s decision

regarding parenting time. With respect to the recommendation for themother as sole decision-making because of a terrible record of poor com-munication and poor cooperation, the appeal judge noted, “there was am-ple evidence to support such a conclusion, notably the evidence of theparties as well as the report and trial testimony of Ms. Wotherspoon.”

9 However, the appeal judge agreed with the father’s contention thatthe trial judge failed to consider that the parties could continue a sharedparenting arrangement. In her recommendations, Ms Wotherspoon con-cluded that changing the arrangement would be unlikely to reduce con-flict. The appeal judge stated that while the trial judge was not requiredto accept Ms Wotherspoon’s evidence, to reject her evidence on this keyissue should have come with a clear explanation and analysis. In the ap-peal judge’s view, it was a failure on the part of the trial judge to havereduced the father’s parenting time by roughly half without evaluatingthe impact on RJD. The appeal judge concluded that the trial judge “ei-ther forgot, ignored, or misconceived the evidence.”

10 The finding at trial that an unpleasant, ugly incident was bound tooccur also troubled the appeal judge. He stated the parties both concededthat issues with transitions had been resolved. He agreed largely with theconclusion of the parenting report that changing parenting time is un-likely to reduce conflict. The appeal judge cited Caufield v. Wong, 2007ABQB 732, 47 R.F.L. (6th) 144 (Alta. Q.B.), where a parallel parentingorder was made in a high conflict family. The high level of conflict inthis case should, in his opinion, not prevent the father from playing avery active role in parenting RJD. The appeal judge was concerned that itwas not in RJD’s best interests to reduce the parenting time in thismanner.

11 The appeal judge set aside the Provincial Court judgment and made anew order to reduce disruption to RJD. He ordered as follows:

(a) Both parents were confirmed as the guardians of [RJD].

(b) [RJD] shall live with his mother and father on a week-on/week-off basis commencing immediately. The parentwith whom [RJD] is living during any given week willhave sole decision-making responsibility for day-to-day de-


cisions that arise while [RJD] is in his or her care, includingemergency medical treatment.

(c) Unless the parties indicate otherwise, the agreement theyhave already reached regarding the sharing of Christmasand other holidays will stand.

(d) The appeal judge gave the parties 30 days to come up witha proposed list of responsibilities in relation to which thenamed parent will be sole decision-maker.

Grounds of Appeal12 The grounds of appeal as listed in the appellant mother’s factum are

as follows:

(a) did the appeal justice err in overturning the decision of thetrial judge on the two components of parenting (parentingtime and decision-making) as the applicable standard of re-view had not been met; and

(b) did the appeal justice have the jurisdiction to refer the issueof decision-making back to the parties.

Standard of Review13 The question of whether an appeal justice has both identified and ap-

plied the correct standard of review is a question of law reviewable on astandard of correctness: Q. v. College of Physicians & Surgeons (BritishColumbia), 2003 SCC 19, [2003] 1 S.C.R. 226 (S.C.C.) at para 43;Alberta (Minister of Municipal Affairs) v. Alberta (MunicipalGovernment Board), 2002 ABCA 199, 312 A.R. 40 (Alta. C.A.) at para21.

Analysis and Decision

Did the appeal judge err in overturning the decision of the trialjudge on the two components of parenting (parenting time anddecision-making).

Parenting Time14 The appellant mother submits that the appeal judge interfered with

the trial judge’s decision by re-weighing the factors to be considered.The trial judge did not forget, ignore or misconceive the evidence regard-ing the parenting arrangement or the relationship between the father and


RJD. While the appeal judge provided support for changing the parentingtime, he changed the decision-making order without reasons.

15 The respondent father submits the appeal judge thoroughly reviewedthe appropriate standard of review that governed and was mindful andalert to his need to afford a high standard of deference. He argues that theappeal judge applied the proper standard as he noted the parenting experthad not specifically recommended that parenting time with the father bereduced, but recommended changes to address the parties’ barrier to suc-cessfully share parenting. The father further submits that the appealjudge endorsed the parenting expert’s concern that reducing the father’sparenting time may not have the practical effect of reducing the parties’conflict. The appeal judge accepted the argument that the trial judgefailed to consider the impact on RJD in reducing the father’s parentingtime.

16 The trial judge was well aware that Ms Wotherspoon testified, interalia, that she would not recommend a change in the then current co-parenting 50-50 arrangement notwithstanding that she would not initiallyhave proposed such an arrangement. However the trial judge also ob-served that Ms Wotherspoon had testified that maybe a 50-50 split wasnot ideal and if the high conflict between the parties continued, that itwould impact the mental health of RJD.

17 The trial judge went on to observe it is only a matter of time before another unpleasant, ugly incidentoccurs and I do believe that [RJD’s] health will be affected if theexisting parenting, co-parenting arrangement continues, especially aswe approach the spring and Kindergarten in September. I firmly be-lieve that shared parenting can only really work if we have parentswho can communicate, co-operate and share similar parenting philos-ophies. This is simply not happening in this case.

In the result, the trial judge varied the parenting time as described inparagraph 6 above.

18 The decision of the trial judge, when read as a whole, makes it clearthat the trial judge in weighing the evidence of the potential for ongoingconflict between the parents and its effect upon RJD, found that the like-lihood of continued conflict was not in RJD’s best interest and out-weighed any benefits of the shared parenting regime.

19 The proper role of an appellate court in reviewing a decision withrespect to custody is narrow. Specifically, the Supreme Court of Canada


in Van de Perre v. Edwards, [2001] 2 S.C.R. 1014 (S.C.C.) at para 12stated in part:

The narrow power of appellate review does not allow an appellatecourt to delve into all custody cases in the name of the best interestsof the child where there is no material error as decided in Hickey[Hickey v Hickey, [1999] 2 SCR 518]. The Court of Appeal is not ina position to determine what it considers to be the correct conclu-sions from the evidence. This is the role of the trial judge.

20 In our view, although the appeal judge cited the correct test to befollowed, he did not in fact apply the correct standard of review. Theappeal judge did not restrict his role as delineated in Van de Perre v.Edwards but rather embarked upon a re-examination of the merits as heperceived them to be.

21 In coming to his decision, the appeal judge relied heavily upon thecase of Caufield v. Wong. However, that was not an appeal from a trialdecision but was (as the appeal judge himself clearly acknowledged) atwo-day hearing with viva voce testimony (including an expert witness)to determine whether there ought to be a change in the parenting andaccess regime. The judge in Caufield v. Wong was trying the matter onits merits; such was not the role of the appeal judge herein.

22 In our view, the appeal judge did not restrict his role to that properlyassigned to an appeal judge in cases such as this; rather he embarkedupon a re-evaluation of the issues on the merits. In doing so, he erred.

Decision-Making23 The appellant argues that Ms Wotherspoon had recommended one

party be in charge of final decision-making and the trial judge had vestedthat final decision-making with the mother. Furthermore, on appeal, thefather had conceded that final authority should rest with the mother. Not-withstanding all of this, the appeal judge substituted a completely differ-ent order with little explanation.

24 The father submits that the appeal judge did not make a decisionabout final decision-making but rather adjourned the matter for a 30 dayperiod which he was entitled to do under rule 1.4(2)(h) of the Rules ofCourt.

25 During the course of the hearing before the appeal judge, counsel forthe father did concede that the father was not taking issue with the por-tion of the trial judge’s decision wherein he gave the final decision-mak-


ing power to the mother. Indeed this was expressly acknowledged by theappeal judge during the course of his oral reasons.

26 Obviously, such a concession does not ipso facto bind an appealjudge. However in the case at bar, that concession together with the ab-sence of evidence to suggest that the trial judge made any material errorin coming to his decision, represents in our view an error on the part ofthe appeal judge in allowing the appeal and referring the matter back tothe parties to come up with a proposed list of responsibilities themselves.

Did the appeal justice have jurisdiction to refer the issue of decision-making back to the parties?

27 We have already decided that on the facts of this case the appealjudge erred in making the order he did. The issue as to whether in aproper case an appeal judge would have the jurisdiction to order the mat-ter back to the parties to have them agree to a list of parenting responsi-bilities is moot in this case and therefore will not be addressed.

Conclusion28 In the result, the appeal is allowed, the order of the appeal judge is set

aside and the judgment granted by the Honourable Provincial CourtJudge R. O’Gorman on January 29, 2014 is restored.

Appeal allowed.

Jones v. Jones 9

[Indexed as: Jones v. Jones]

Mark Lewis Jones, Applicant (Respondent in Appeal) andMandy Lee Jones, Respondent (Appellant)

Ontario Court of Appeal

Docket: CA C58784

2014 ONCA 822

E.A. Cronk, E.E. Gillese, Paul Rouleau JJ.A.

Heard: November 13, 2014

Judgment: November 20, 2014

Family law –––– Custody and access — Variation of custody order — Fac-tors to be considered — Miscellaneous –––– Parties were married for six yearsand had two children — After separation, mother moved with children to Lind-say, Ontario to be closer to her family and upgrade her education — Parties en-tered into minutes of settlement that were incorporated into court order in whichthey agreed to joint custody of children, and mother agreed to attempt to secureemployment in Waterloo, Ontario upon completing her studies — After gradua-tion, mother did not attempt to secure employment in Waterloo as contemplated,but found employment in Linsday and continued to reside there — Mother wasfound in contempt of court order and children were ordered to move from Lind-say to Waterloo, failing which their primary residence was to be changed fromthat of mother to that of father — Mother’s motion to change order was dis-missed — Mother appealed order — Appeal allowed — Finding that there hadbeen material change in circumstances warranting review due to mother’s failureto relocate to Waterloo was supported by record — While there would be bene-fit to children if they lived in same area as father, central issue of whetherchange in children’s primary residence would be in their best interests was notaddressed — There was no basis for order under appeal which ordered change inchildren’s primary residence if mother chose not to reside in Waterloo — In ab-sence of fact finding and analysis required to determine whether change in chil-dren’s primary residence was in their best interests, only option was to set asideorders of Superior Court and remit matter for new hearing based on proper evi-dentiary record.

APPEAL by mother from judgment reported at Jones v. Jones (2014), 2014ONSC 2122, 2014 CarswellOnt 5690, 43 R.F.L. (7th) 155 (Ont. S.C.J.), order-ing that children of marriage move from Lindsay, Ontario, to Waterloo, Ontarioand that their primary residence be changed from that of mother to that of fatherunless mother relocated.


Raymond J. Wrubel, for AppellantAnna Towlson, for Respondent

Per curiam:

1 The appellant mother appeals the order of Sloan J. of the SuperiorCourt, dated April 3, 2014 [reported at 43 R.F.L. (7th) 155], made onappeal from the order of Hardman J. of the Ontario Court of Justice,dated June 12, 2013.

2 The Superior Court ordered that the children of the marriage are tomove from Lindsay, Ontario, to Waterloo, Ontario. The order also pro-vides that their primary residence shall be changed from that of the ap-pellant to that of the respondent unless the appellant relocates her resi-dence from Lindsay to Waterloo.

3 Briefly stated, the facts are as follows. The appellant and respondentmarried in October 2004 and separated on October 4, 2010. They havetwo children of the marriage, Megan Isabella Jones, born May 20, 2006,and Evan Luis Joseph Jones, born March 13, 2009. Prior to the separa-tion, the parties resided in the Waterloo region. Upon separation, the ap-pellant moved with the two children of the marriage to Lindsay, to becloser to her extended family and so that she could take further educa-tion. Megan was four years old and Evan was one and a half years old atthe time.

4 The parties entered into minutes of settlement that were incorporatedinto an October 7, 2011 order. They agreed to joint custody of the chil-dren and that the children’s primary residence would be with the appel-lant who then resided in Lindsay where she was attending college. Thesettlement agreement also provided that the appellant would attempt tosecure employment in the Waterloo region upon completion of herschooling. It further provided that the order would be reviewable withinthree months of the appellant completing that schooling.

5 When the appellant completed her studies, she did not seek employ-ment in Waterloo as was contemplated by the minutes of settlement andsubsequent order. Instead, she found employment in Lindsay and contin-ued to reside there.

6 The appellant’s failure to pursue employment in the Waterloo regionled to contempt proceedings and motions to change the terms of the Oc-tober 7, 2011 order. Those and other proceedings culminated in the deci-sion that is now on appeal before us.

Jones v. Jones Per curiam 11

7 The appellant’s appeal is focused on two issues. She maintains thatthere has been no material change in circumstances such as to warrant afresh consideration of the primary residence of the children. She furtherargues that, even if there has been a change in circumstances, the Supe-rior Court judge erred in ordering a change in primary residence of thechildren from her to the respondent.

8 The Superior Court’s decision that there has been a material changein circumstances warranting a review of the order is, in our view, wellsupported in the record. The terms of the settlement provided for reviewof the order after the appellant had completed her schooling. It was alsoanticipated that after completing those studies, the appellant would seekemployment in the Waterloo area and, consequently, relocate with thechildren to Waterloo. It is apparent that the appellant has not done so. Inthese circumstances it was open to the court to find that there had been amaterial change.

9 The difficulty with the decision of the court below, however, is thedetermination that the best interests of the children would be served bychanging their primary residence from that of the appellant to that of therespondent in the event that the appellant did not voluntarily relocate toWaterloo. The reasons in both the Superior Court and the Ontario Courtof Justice contain little discussion of why this would be in the best inter-ests of the children. For example, they contain no analysis of the impacton the children of changing their primary residence.

10 Both courts appear to have given considerable weight to what may ormay not have been in the best interests of the children at the date of theseparation and to what appears to have been agreed to by the partieswhen the minutes of settlement were entered into. Their analysis alsofocuses on the benefit to the children if the appellant and children relo-cate to the Waterloo area. As explained by both judges, this would be inthe best interests of the children as they would be close to both parentsand would no longer have to undertake the significant travel betweenLindsay and Waterloo to maintain contact with both parents.

11 Although there would be benefit to the children if they lived in thesame area as the respondent, this does not address the central issue thecourt had to decide, which is whether a change in the children’s primaryresidence from that of the appellant to that of the respondent is in theirbest interests.

12 We acknowledge that the appellant has indicated that she wouldmove to Waterloo rather than see a change in the children’s primary resi-


dence. This, however, does not provide a basis for the order under appealwhich orders a change in the children’s primary residence if the appellantchooses now or later not to reside in Waterloo.

13 Regrettably, in the absence of the fact finding and analysis required todetermine whether a change in the children’s primary residence is in thebest interests of the children, we are left with no option but to set asidethe orders of the Superior Court and the Ontario Court of Justice andremit the matter to the Ontario Court of Justice for a new hearing. Thedetermination of whether it is in the best interests of the children to ordera change in their primary residence from living with the appellant to therespondent, must be based on a proper and up to date evidentiary record.In addition, it may well be that a trial of that issue will be required. Thecourt may also wish to obtain an updated report from the Office of theChildren’s Lawyer, as the original report is now some three years out ofdate. These, however, are matters to be decided by the parties and theOntario Court of Justice.

14 For these reasons, the appeal is allowed, the orders of the SuperiorCourt and the Ontario Court of Justice are set aside, and the matter isremitted to the Ontario Court of Justice for a new hearing. The appellantis entitled to costs of the appeal fixed at $5,000, all inclusive. The costawards in the Superior Court and the Ontario Court of Justice are setaside and there shall be no order as to costs for those two proceedings.Accordingly, the respondent shall return any monies paid by the appel-lant further to the costs orders in those two matters.

Appeal allowed.

McMorran v. McMorran 13

[Indexed as: McMorran v. McMorran]

Scott Menzies McMorran, Respondent (Plaintiff) and CatherineMcMorran, Respondent (Defendant) and Alberta Pension

Services Corporation, Appellant

Alberta Court of Appeal

Docket: Edmonton Appeal 1403-0120-AC

2014 ABCA 387

Ronald Berger, Frans Slatter, Thomas W. Wakeling JJ.A.

Heard: September 2, 2014


Pensions –––– Public service superannuation — Miscellaneous –––– Policeofficer earned interest in pension plan, as result of his service with city police —Officer was divorced from first wife in 2002 — Upon divorce, first wife wasfound to have one-half interest in officer’s pension, for 15-year period in whichthey were married and officer served — Officer then remarried in 2005, beforeretiring from force in 2011 — Dispute arose as to pension, leading to applicationbeing brought — It was agreed that officer was to elect joint life pension. reduc-ing his pension during his lifetime but not affecting survivors — First wife wasallowed to take interest in monthly payments — Officer was required to namefirst wife as pension partner — Upon review of pension, chambers judge al-lowed second wife to become pension partner — This was to prevent risk ofpension expiring if second wife outlived officer and first wife — Provincial pen-sion administrator claimed that this was misinterpretation of pension — Provin-cial pension administrator appealed from chambers judgment — Appeal al-lowed — It was improper interpretation of pension to allow pension to providegreatest number of benefits to most possible people — Pensions had to be basedon actuarial calculations, so that rights and benefits were properly defined —Second wife ought to have known that first wife had property interest in pen-sion — There was no legal basis to have two pension partners. based on estab-lished definitions — Past decisions of pension administration had followed thatinterpretation — There was no legislative change or modification that createdunfairness for second wife.

Family law –––– Division of family property — Order for division of pro-perty — Order for payment — Order regarding pensions — Miscellane-ous –––– Police officer earned interest in pension plan, as result of his servicewith city police — Officer was divorced from first wife in 2002 — Upon di-vorce, first wife was found to have one-half interest in officer’s pension, for 15-year period in which they were married and officer served — Officer then re-


married in 2005, before retiring from force in 2011 — Dispute arose as to pen-sion, leading to application being brought — It was agreed that officer was toelect joint life pension. reducing his pension during his lifetime but not affectingsurvivors — First wife was allowed to take interest in monthly payments — Of-ficer was required to name first wife as pension partner — Upon review of pen-sion, chambers judge allowed second wife to become pension partner — Thiswas to prevent risk of pension expiring if second wife outlived officer and firstwife — Provincial pension administrator claimed that this was misinterpretationof pension — Provincial pension administrator appealed from chambers judg-ment — Appeal allowed — It was improper interpretation of pension to allowpension to provide greatest number of benefits to most possible people — Pen-sions had to be based on actuarial calculations, so that rights and benefits wereproperly defined — Second wife ought to have known that first wife had pro-perty interest in pension — There was no legal basis to have two pension part-ners. based on established definitions — Past decisions of pension administra-tion had followed that interpretation — There was no legislative change ormodification that created unfairness for second wife.

The plaintiff was a police officer who earned an interest in a pension plan, as aresult of his service. The officer divorced his first wife in 2002, after which thewife was found to have a one-half interest in the officer’s plan for the 15-yearduration of their marriage. The officer remarried in 2006 and retired from thepolice force in 2011, after which a dispute arose as to who would benefit fromhis pension. The first wife was to be named as a pension partner so that shecould take an interest in monthly payments. On review of the pension, the sec-ond wife was also found to be a partner in the pension by the chambers judge.The provincial pension administrator claimed that there could only be one pen-sion partner, namely the first wife, and appealed from the chambers judgmentaccordingly.

Held: The appeal was allowed.

Per Berger J.A. (Slatter J.A concurring): The chambers judge’s interpretation ofthe pension was incorrect, as it was not the role of the pension to provide thegreatest number of benefits to the greatest number of people. It was well estab-lished that there should be only one pension partner in a pension, and the firstwife had established her right to this status. The second wife should have knownthat the first wife had a property interest in the pension, and should not haveexpected to benefit from the officer’s pension. Policy and prior caselaw sup-ported the decision that there should only be one pension partner.

Per Wakeling J.A. (concurring in the result): The pension under review was anindivisible whole. The analysis by the concurring judge was based more heavilyon the governing statute and the actions of the pensions administrators, but ledto the same conclusion that there could only be one pension partner. The gov-erning statute was unequivocal as to this conclusion.


Cases considered by Ronald Berger, Frans Slatter JJ.A.:

Amherst (Town) v. Nova Scotia (Superintendent of Pensions) (2008), 2008NSCA 74, 2008 CarswellNS 431, 70 C.C.P.B. 157, 301 D.L.R. (4th) 696,857 A.P.R. 339, 268 N.S.R. (2d) 339, (sub nom. Trustees of the PoliceAssociation of Nova Scotia Pension Plan v. Amherst (Town)) 2008 C.E.B. &P.G.R. 8306, 91 Admin. L.R. (4th) 256, [2008] N.S.J. No. 344 (N.S.C.A.) — followed

Boardwalk Reit LLP v. Edmonton (City) (2008), 2008 CarswellAlta 772, 2008ABCA 220, 91 Alta. L.R. (4th) 1, 47 M.P.L.R. (4th) 22, 75 Admin. L.R.(4th) 19, 437 A.R. 347, 433 W.A.C. 347, [2008] 10 W.W.R. 241, 299 D.L.R.(4th) 332, [2008] A.J. No. 635 (Alta. C.A.) — followed

Housen v. Nikolaisen (2002), 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, 286N.R. 1, [2002] 7 W.W.R. 1, 2002 CarswellSask 178, 2002 CarswellSask179, 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 CSC 33, [2002] S.C.J. No. 31, REJB 2002-29758(S.C.C.) — followed

Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services) (2009),2009 CarswellOnt 4494, 2009 CarswellOnt 4495, 2009 SCC 39, (sub nom.Nolan v. Ontario (Superintendent of Financial Services)) 253 O.A.C. 256,103 O.R. (3d) 319 (note), 49 E.T.R. (3d) 159, 76 C.C.E.L. (3d) 55, 76C.C.P.B. 1, (sub nom. Kerry (Canada) Inc. v. DCA Employees PensionCommittee) 102 O.R. (3d) 319, (sub nom. Nolan v. Kerry (Canada) Inc.)[2009] 2 S.C.R. 678, (sub nom. Nolan v. Ontario (Superintendent ofFinancial Services)) 391 N.R. 234, 92 Admin. L.R. (4th) 203, (sub nom.DCA Employees Pension Committee v. Ontario (Superintendent of FinancialServices)) 309 D.L.R. (4th) 513, [2009] S.C.J. No. 39 (S.C.C.) — followed

McAlister v. McAlister (1982), [1983] 2 W.W.R. 8, 1982 CarswellAlta 225, 23Alta. L.R. (2d) 141, 41 A.R. 277, [1982] A.J. No. 686 (Alta. Q.B.) —followed

Cases considered by Thomas W. Wakeling J.A.:

Alberta v. McGeady (2014), 2014 ABQB 104, 2014 CarswellAlta 257, 97 Alta.L.R. (5th) 231, [2014] 7 W.W.R. 559 (Alta. Q.B.) — considered in a minor-ity or dissenting opinion

Alberta (Minister of Justice) v. Cardinal (2013), 2013 CarswellAlta 1245, 2013ABQB 407, 565 A.R. 271, [2013] A.J. No. 778 (Alta. Q.B.) — considered ina minority or dissenting opinion

Anderson v. Wilson (1933), 289 U.S. 20 (U.S. Sup. Ct.) — considered in a mi-nority or dissenting opinion

Bizon v. Bizon (2014), 96 Alta. L.R. (5th) 337, [2014] 7 W.W.R. 713, 71 Admin.L.R. (5th) 133, 572 A.R. 49, 609 W.A.C. 49, 2014 CarswellAlta 812, 2014ABCA 174 (Alta. C.A.) — considered in a minority or dissenting opinion


Carrigan v. Quinn (2012), 2 C.C.P.B. (2nd) 227, 24 R.F.L. (7th) 199, 298O.A.C. 281, 356 D.L.R. (4th) 686, (sub nom. Carrigan v. Carrigan Estate)2012 C.E.B. & P.G.R. 8007, 2012 CarswellOnt 13522, 2012 ONCA 736,(sub nom. Carrigan v. Carrigan Estate) 112 O.R. (3d) 161 (Ont. C.A.) —considered in a minority or dissenting opinion

Cassell & Co. v. Broome (1972), [1972] A.C. 1027, [1972] 2 W.L.R. 645, 116Sol. Jo. 199, [1972] 1 All E.R. 801 (U.K. H.L.) — referred to in a minorityor dissenting opinion

Chalifoux v. Driftpile First Nation (2002), 299 N.R. 259, 2002 FCA 521, 2002CarswellNat 3769, 2002 CarswellNat 4306, 2002 CAF 521, 237 F.T.R. 142(note), [2002] F.C.J. No. 1826 (Fed. C.A.) — referred to in a minority ordissenting opinion

Dreco Energy Services Ltd. v. Wenzel (2008), 2008 CarswellAlta 131, 2008ABCA 36, 421 W.A.C. 51, 429 A.R. 51 (Alta. C.A.) — considered in a mi-nority or dissenting opinion

Hamilton Street Railway v. A.T.U., Local 107 (2008), 2008 CarswellOnt 6460,178 L.A.C. (4th) 97, (sub nom. Hamilton Street Railway v. AmalgamatedTransit Union, Local 107) 243 O.A.C. 51, 2008 C.L.L.C. 220-068, [2008]O.J. No. 4340 (Ont. Div. Ct.) — referred to in a minority or dissentingopinion

Henry v. Saskatchewan (Workers’ Compensation Board) (1999), 1999 Carswell-Sask 131, 172 D.L.R. (4th) 73, 177 Sask. R. 35, 199 W.A.C. 35, [1999] S.J.No. 114 (Sask. C.A.) — considered in a minority or dissenting opinion

Home Office v. Harman (1982), [1982] 2 W.L.R. 338, (sub nom. Harman v.Secretary of State for Home Department) [1983] 1 A.C. 280, [1982] 1 AllE.R. 532 (U.K. H.L.) — considered in a minority or dissenting opinion

I.A.M. & A.W., Local 1579 v. L-3 Communications Spar Aerospace Ltd. (2010),(sub nom. L-3 Communications Spar Aerospace Ltd. & I.A.M.A.W., Re) 201L.A.C. (4th) 85, 2010 CarswellNat 4628, [2010] C.L.A.D. No. 357 (Can.Arb.) — referred to in a minority or dissenting opinion

Isidore Garon ltee v. Syndicat du bois ouvre de la region de Quebec inc. (2006),2006 C.L.L.C. 220-066, 2006 SCC 2, 2006 CarswellQue 199, 2006 Car-swellQue 200, 344 N.R. 1, 262 D.L.R. (4th) 385, 49 C.C.E.L. (3d) 1, 146L.A.C. (4th) 1, (sub nom. Isidore Garon Ltee v. Tremblay) [2006] 1 S.C.R.27, [2006] S.C.J. No. 3 (S.C.C.) — considered in a minority or dissentingopinion

Johnson v. Southern Pacific Co. (1904), 49 L.Ed. 363, 25 S.Ct. 158, 196 U.S. 1(U.S. Sup. Ct.) — considered in a minority or dissenting opinion

Laporte v. Laganiere (1972), (sub nom. Laporte v. Court of Sessions of thePeace) 18 C.R.N.S. 357, (sub nom. Laporte v. R.) 8 C.C.C. (2d) 343, 29D.L.R. (3d) 651, 1972 CarswellQue 4, [1972] Q.J. No. 35 (Que. Q.B.) —considered in a minority or dissenting opinion


May v. Saskatchewan (2013), 2013 C.E.B. & P.G.R. 8020, [2013] 7 W.W.R.656, 405 Sask. R. 308, 563 W.A.C. 308, 2013 SKCA 11, 2013 CarswellSask106, 4 C.C.P.B. (2nd) 17, 7 C.C.E.L. (4th) 157 (Sask. C.A.) — considered ina minority or dissenting opinion

McAlister v. McAlister (1982), [1983] 2 W.W.R. 8, 1982 CarswellAlta 225, 23Alta. L.R. (2d) 141, 41 A.R. 277, [1982] A.J. No. 686 (Alta. Q.B.) — con-sidered in a minority or dissenting opinion

Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services)(2004), 45 B.L.R. (3d) 161, 41 C.C.P.B. 106, 2004 C.E.B. & P.G.R. 8112,242 D.L.R. (4th) 193, 324 N.R. 259, 189 O.A.C. 201, 17 Admin. L.R. (4th)1, [2004] 3 S.C.R. 152, 75 O.R. (3d) 479 (note), 2004 CSC 54, 75 O.R. (3d)479, 2004 CarswellOnt 3172, 2004 CarswellOnt 3173, 2004 SCC 54, [2004]S.C.J. No. 51, REJB 2004-68722 (S.C.C.) — considered in a minority or dis-senting opinion

Montreal (Ville) v. 2952-1366 Quebec inc. (2005), (sub nom. Montreal (City) v.2952-1366 Quebec Inc.) 134 C.R.R. (2d) 196, [2005] 3 S.C.R. 141, 201C.C.C. (3d) 161, 32 Admin. L.R. (4th) 159, 15 M.P.L.R. (4th) 1, 36 C.R.(6th) 78, 2005 CarswellQue 9633, 2005 CarswellQue 9634, 2005 SCC 62,258 D.L.R. (4th) 595, (sub nom. Montreal (City) v. 2952-1366 Quebec Inc.)340 N.R. 305, 18 C.E.L.R. (3d) 1, 33 C.R. (6th) 78, [2005] S.C.J. No. 63(S.C.C.) — considered in a minority or dissenting opinion

Olmstead v. United States (1928), 277 U.S. 438, 66 A.L.R. 376, 72 L.Ed. 944,48 S.Ct. 564 (U.S. Sup. Ct.) — considered in a minority or dissentingopinion

Ontario Teachers’ Pension Plan Board v. Ontario (Superintendent of FinancialServices) (2004), 2004 CarswellOnt 526, 236 D.L.R. (4th) 514, 39 C.C.P.B.72, 6 E.T.R. (3d) 68, (sub nom. Stairs v. Ontario Teachers’ Pension PlanBoard) 2004 C.E.B. & P.G.R. 8089, 182 O.A.C. 339, 70 O.R. (3d) 61, 1R.F.L. (6th) 326, [2004] O.J. No. 331 (Ont. C.A.) — considered in a minor-ity or dissenting opinion

Parry Sound (District) Welfare Administration Board v. O.P.S.E.U., Local 324(2003), 2003 CarswellOnt 3500, 2003 CarswellOnt 3501, 2003 SCC 42, (subnom. Social Services Administration Board (Parry Sound) v. Ontario PublicService Employees Union, Local 324) 308 N.R. 271, (sub nom. SocialServices Administration Board (Parry Sound District) v. Ontario PublicService Employees Union, Local 324) 177 O.A.C. 235, 47 C.H.R.R. D/182,(sub nom. Parry Sound (District) Social Services Administration Board v.O.P.S.E.U., Local 324) [2003] 2 S.C.R. 157, 31 C.C.E.L. (3d) 1, 67 O.R.(3d) 256, 2003 C.L.L.C. 220-062, (sub nom. Parry Sound (District) SocialServices Administration Board v. O.P.S.E.U., Local 324) 230 D.L.R. (4th)257, 7 Admin. L.R. (4th) 177, REJB 2003-47356, [2003] S.C.J. No. 42(S.C.C.) — considered in a minority or dissenting opinion


Prince Albert (City) v. Co-operative Health Centre (1987), 1987 CarswellSask598, 58 Sask. R. 281, 42 D.L.R. (4th) 706 (Sask. C.A.) — considered in aminority or dissenting opinion

R. v. Big M Drug Mart Ltd. (1985), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 58N.R. 81, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18C.C.C. (3d) 385, 85 C.L.L.C. 14,023, 13 C.R.R. 64, 1985 CarswellAlta 316,1985 CarswellAlta 609, [1985] S.C.J. No. 17 (S.C.C.) — considered in a mi-nority or dissenting opinion

R. v. Campbell (1997), (sub nom. Reference re Remuneration of Judges of theProvincial Court (P.E.I.)) 156 Nfld. & P.E.I.R. 1, (sub nom. Reference reRemuneration of Judges of the Provincial Court (P.E.I.)) 121 Man. R. (2d)1, 11 C.P.C. (4th) 1, (sub nom. Reference re Public Sector Pay ReductionAct (P.E.I.), s. 10) 150 D.L.R. (4th) 577, 118 C.C.C. (3d) 193, (sub nom.Provincial Court Judges Assn. (Manitoba) v. Manitoba (Minister of Justice))46 C.R.R. (2d) 1, (sub nom. Reference re Remuneration of Judges of theProvincial Court (P.E.I.)) 206 A.R. 1, (sub nom. Reference re Remunerationof Judges of the Provincial Court (P.E.I.)) 156 W.A.C. 1, 217 N.R. 1, (subnom. Reference re Remuneration of Judges of the Provincial Court (P.E.I.))483 A.P.R. 1, 1997 CarswellNat 3038, 1997 CarswellNat 3039, (sub nom.Reference re Remuneration of Judges of the Provincial Court of PrinceEdward Island) [1997] 3 S.C.R. 3, [1997] 10 W.W.R. 417, 49 Admin. L.R.(2d) 1, [1997] S.C.J. No. 75 (S.C.C.) — referred to in a minority or dissent-ing opinion

R. v. Mian (2014), 13 C.R. (7th) 1, 2 Alta. L.R. (6th) 217, 2014 CarswellAlta1561, 2014 CarswellAlta 1562, 2014 SCC 54, 2014 CSC 54, [2014] S.C.J.No. 54 (S.C.C.) — considered in a minority or dissenting opinion

Rawlins v. Rawlins (2005), 2005 CarswellAlta 985, 2005 ABQB 503 (Alta.Q.B.) — considered in a minority or dissenting opinion

Roschen v. Ward (1929), 279 U.S. 337 (U.S. Sup. Ct.) — considered in a minor-ity or dissenting opinion

Sealy (Western) Ltd. v. U.I.U., Local 34 (1985), 1985 CarswellAlta 913, 20L.A.C. (3d) 45 (Alta. Arb.) — considered in a minority or dissenting opinion

Sydall v. Castings Ltd. (1966), [1966] 3 W.L.R. 1126, [1966] 3 All E.R. 770,[1967] 1 Q.B. 302 (Eng. C.A.) — referred to in a minority or dissentingopinion

Thorson v. Canada (Attorney General) (No. 2) (1974), 1974 CarswellOnt 228,1974 CarswellOnt 228F, [1975] 1 S.C.R. 138, 1 N.R. 225, 43 D.L.R. (3d) 1,[1974] S.C.J. No. 45 (S.C.C.) — considered in a minority or dissentingopinion

W. (J.) v. Alberta (Victims of Crime Financial Benefits Program) (2013), 2013ABQB 212, 2013 CarswellAlta 516, 83 Alta. L.R. (5th) 113, 56 Admin. L.R.(5th) 289, 560 A.R. 114, [2013] A.J. No. 309 (Alta. Q.B.) — considered in aminority or dissenting opinion


Wallis v. Smith (1882), 21 Ch. D. 243 (Eng. C.A.) — considered in a minority ordissenting opinion

Statutes considered by Ronald Berger, Frans Slatter JJ.A.:

Interpretation Act, R.S.A. 2000, c. I-8Generally — referred tos. 26(3) — considered

Public Sector Pension Plans Act, R.S.A. 2000, c. P-41Generally — referred toSched. 4, s. 3(2)(c)(ii) — consideredSched. 4, s. 4(2)-4(5) — referred to

Statutes considered by Thomas W. Wakeling J.A.:

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

s. 11(d) — referred toInterpretation Act, R.S.A. 2000, c. I-8

s. 3(1) — considereds. 3(2) — considereds. 10 — considereds. 12(2) — considereds. 26(3) — considereds. 35(1)(c) — considered

Matrimonial Property Act, R.S.A. 2000, c. M-8Generally — referred tos. 1(d) “matrimonial property order” — referred tos. 7(1) — considered

Public Sector Pension Plans Act, S.A. 1993, c. P-30.7Sched. 4, s. 4(1) — considered

Public Sector Pension Plans Act, R.S.A. 2000, c. P-41Generally — referred to

Special Forces Pension Plan Act, S.A. 1985, c. S-21.1Generally — referred to

Regulations considered by Ronald Berger, Frans Slatter JJ.A.:

Public Sector Pension Plans Act, R.S.A. 2000, c. P-41Public Sector Pension Plans (Legislative Provisions) Regulation, Alta. Reg.365/93

Generally — referred tos. 21(1)(d) “division date” — considereds. 22(3) — considereds. 23 — considereds. 34 — referred to


Special Forces Pension Plan, Alta. Reg. 369/93s. 2(1)(bb) “participant” — considereds. 2(1)(dd.1) “pension partner” [en. Alta. Reg. 100/2002] — considereds. 38 — considereds. 38(2) — considereds. 38(3) — considered

Regulations considered by Thomas W. Wakeling J.A.:

Public Sector Pension Plans Act, R.S.A. 2000, c. P-41Local Authorities Pension Plan, Alta. Reg. 366/93

s. 2(1)(dd.1) “pension partner” [en. Alta. Reg. 100/2002] — consideredManagement Employees Pension Plan, Alta. Reg. 367/93

s. 2(1)(dd.1) “pension partner” [en. Alta. Reg. 100/2002] — consideredPublic Sector Pension Plans (Legislative Provisions) Regulation, Alta. Reg.365/93

Generally — referred tos. 13 — considereds. 13 [rep. & sub. 383/2003] — referred tos. 13(2) — considereds. 21 — considereds. 21(1)(i) “matrimonial property order” — consideredss. 26-30 — referred to

Public Sector Pension Plans (Legislative Provisions) (MatrimonialRelationship Breakdown) Amended Regulation, Alta. Reg. 383/2003

Generally — referred tos. 24 — considered

Public Sector Pension Plans (Pension Partner) Amendment Regulation,Alta. Reg. 100/2002

Generally — referred toss. 26-30 — referred to

Special Forces Pension Plan, Alta. Reg. 369/93Generally — referred toPt. 5 — referred tos. 2(1)(h) “benefit” — considereds. 2(1)(p) “employee” — considereds. 2(1)(bb) “participant” — considereds. 2(1)(cc) “pension” — considereds. 2(1)(dd) “pension commencement” — considereds. 2(1)(dd.1) “pension partner” [en. Alta. Reg. 100/2002] — considereds. 2(1)(dd.1) “pension partner” (i) [en. Alta. Reg. 100/2002] —considereds. 2(1)(ff.1) “police officer” [en. Alta. Reg. 100/2002] — considereds. 2(1)(rr) “termination” — considered


s. 13(2) [en. Alta. Reg. 283/2009] — considereds. 29(1)(c) — referred tos. 30(1)(c) — referred tos. 36 — referred tos. 36(1) — considereds. 36(2) — considereds. 37 — referred tos. 37(1) — considereds. 37(3) — considereds. 38 — referred tos. 38(1) — referred tos. 38(1)(d) — referred tos. 39(2) — considereds. 43(3) — considereds. 45 — considereds. 47 — referred tos. 47(1) — considereds. 47(2) — considereds. 48 — considereds. 49 — referred tos. 57 — considereds. 81 — referred tos. 81(1) — considereds. 94 — referred tos. 106 — considereds. 109(1) — considereds. 109(2) — considered

Words and phrases considered:

pension partner

[Per Wakeling J.A.:] Section 2(1)(dd.1) of the Special Forces Pension Plan[Alta. Reg. 369/93], the definition of “pension partner” introduced by the 2002Pension Partner Regulation, unequivocally reveals that a pensioner may haveonly one pension partner. [footnote omitted] It stipulates that this person haseasily identifiable criteria at a very specific time — “at the relevant time”. As ofJune 23, 2003, a person did not qualify as a pension partner unless, at the spe-cific time, he or she was married to a plan participant who became a pensionerand lived with or was dependent on the pensioner, lived with the pensioner in aconjugal relationship or was married to the pensioner even though no longerliving with or dependent upon the pensioner.

APPEAL by provincial pension administrator from judgment reported at,McMorran v. McMorran (2013), 2013 ABQB 610, 2013 CarswellAlta 2021,


2013 C.E.B. & P.G.R. 8054, 37 R.F.L. (7th) 426, 91 Alta. L.R. (5th) 53, 574A.R. 101, 16 C.C.P.B. (2nd) 37 (Alta. Q.B.), allowing both former and currentspouses of police officer to be officer’s pension partner.

M.L. Pollock, for Respondent, Scott Menzies McMorranJ.R.B. Shortreed, for Respondent, Catherine McMorranD.M. McLaughlin, for Appellant

Ronald Berger, Frans Slatter JJ.A.:

1 The issue on this appeal is the type of pension rights that can begranted under the Special Forces Pension Plan, when the primary pen-sioner has married more than once. Can a matrimonial property ordereffectively make each of the first and second wives “pension partners”under the Special Forces Pension Plan? The appellant pension adminis-trator argues that the Pension Plan contemplates only one “pension part-ner”, contrary to the findings of the chambers judge: McMorran v. Mc-Morran, 2013 ABQB 610, 91 Alta. L.R. (5th) 53, 37 R.F.L. (7th) 426(Alta. Q.B.).

Facts2 The respondent, Scott McMorran, earned an interest in the Special

Forces Pension Plan because he was a member of the Edmonton PoliceService. The relevant chronology is:

(a) July 26, 1986 - Mr. McMorran married his first wife.

(b) April 12, 2002 - Mr. and Mrs. McMorran were divorced.

(c) March 11, 2003 - Under a consent matrimonial property or-der it was declared that Mrs. McMorran had “an ownershipinterest” in the respondent’s Special Forces pension equalto one-half of the pension that accrued during the marriage,which interest would be realized when Mr. McMorranstarted to draw down the pension.

(d) September 6, 2005 - Mr. McMorran remarried.

(e) April 30, 2011 Mr. McMorran retired and commenceddrawing his pension.

The chambers judge concluded (reasons, para. 61) that Mr. McMorranhad 22 years of pensionable service at the time of his retirement. Ap-proximately 15 of those years occurred during the marriage. Accord-ingly, under the consent matrimonial property order Mrs. McMorran was

McMorran v. McMorran Ronald Berger, Frans Slatter JJ.A. 23

entitled to a one-half interest in 15/22nds of the pension. Mr. McMorranhas the other one-half interest in 15/22nds of the pension, together with a100% interest in the remaining 7/22nds.

3 When Mr. McMorran retired, a disagreement arose over the rights ofthe respective parties. An application was brought before the chambersjudge, who decided:

(a) Mr. McMorran was to elect a “joint life not reduced pen-sion”, meaning that his pension during his life would besmaller, but on his death the pension of his survivors wouldnot be reduced (reasons, para. 78).

(b) Mrs. McMorran was entitled to take her interest in monthlypayments, and was not obliged to take a capital lump sumthat would be transferred to an appropriate retirement vehi-cle (reasons, paras. 27, 51).

(c) Mr. McMorran was required to name his first wife as his“pension partner” under the Plan for her share of the pen-sion (reasons, para. 84).

These parts of the order are not appealed.4 The effect of the unchallenged parts of the order is that the pension

will be paid to Mr. McMorran and his first wife (as their interests ap-pear), so long as either one of them is still alive. It is a “joint life” pen-sion. On Mr. McMorran’s death, his second wife may well be entitled toan interest in his portion of the pension, namely the other one-half inter-est of 15/22nds of the pension, together with a 100% interest in the re-maining 7/22nds. The problem is that if both Mr. McMorran and his firstwife predecease his second wife, the pension will end for everyone.Whatever benefits the second wife had would terminate on the death ofthe last of Mr. McMorran and his first wife.

5 The chambers judge was concerned that the second wife appeared tobe exposed to the risk of her surviving Mr. McMorran and his first wife.After argument, he invited counsel to provide further submissions as towhy the second wife could not also be a “pension partner” (reasons, para.68). Counsel for the spouses supported this solution, but the appellantAdministrator opposed it as being an option unavailable under the Spe-cial Forces Pension Plan.

6 The chambers judge recognized at para. 69 that a matrimonial pro-perty order could divide the rights to a pension, but it could neither createnew pension rights, nor amend the terms of the pension plan. He also


recognized at para. 55 that creating new rights, not contemplated by thePlan, would “require a change to the legislation and regulations, and mayhave significant actuarial implications for funding purposes”. Neverthe-less, he concluded that the reference to a “pension partner” in the regula-tions could accommodate the designation of more than one “pensionpartner” because under s. 26(3) of the Interpretation Act, RSA 2000, c. I-8, the singular includes the plural. He noted at paras. 59-60 that multiplemarriages are now more common, and that it would make “little sense”to interpret the regulations to provide benefits to only the first spouse, ifthe contrary interpretation is “neither absurd nor contrary to the intentionof the legislation”.

7 After summarizing the perceived risks faced by the second spouse(paras. 62-5), the chambers judge concluded at para. 66 that permittingtwo pension partners would not do any “injustice” or “mischief” to thePlan:

66. Does this interpretation do any injustice to the plan? I can seenone. Mr. McMorran made pension contributions in the requiredamount while married to Ms. McMorran. He may have made furthercontributions while married to his new wife. Ms. McMorran has adefined and documented interest in his pension; his new wife mayhave an interest in the remainder of his pension. I do not see anymischief in requiring the plan to pay Ms. McMorran her share of Mr.McMorran’s pension for her lifetime, while requiring the plan to payMr. McMorran’s new wife her share of Mr. McMorran’s pension forher lifetime. That does not seem to me to amount to any double pay-ment. Neither spouse should be dependent on the other surviving toreceive her benefits.

His conclusion that a pensioner could have two pension partners is thesubject of this appeal.

8 The Alberta Pension Services Corporation was granted standing toappeal this last portion of the order, pursuant to s. 34 of the Public SectorPension Plans (Legislative Provisions) Regulation, AR 365/93.

Standard of Review9 The interpretation of the relevant statutes and regulations is a ques-

tion of law, and the standard of review of the decision of the chambersjudge is correctness: Housen v. Nikolaisen, 2002 SCC 33, at para. 8,[2002] 2 S.C.R. 235 (S.C.C.).

10 The funding, interpretation, and administration of a pension plan arecomplex. Those charged with administering the plan will develop an ex-


pertise in its interpretation and management: Kerry (Canada) Inc. v.Ontario (Superintendent of Financial Services), 2009 SCC 39 at paras.29-30, [2009] 2 S.C.R. 678 (S.C.C.); Amherst (Town) v. Nova Scotia(Superintendent of Pensions), 2008 NSCA 74 at paras. 55-7, 62, 301D.L.R. (4th) 696 (N.S. C.A.). Significant weight should be placed on theposition of the administrator as to whether particular arrangements areconsistent with the plan. Whether the plan is established by contract orstatute, the administrator is given a mandate to interpret and operate theplan that must be respected by the parties:

(a) Uniformity and consistency in the interpretation of theplan, and its equal application to all the participants, are ofprime importance. The administrator has a role in makingsubmissions on behalf of all of the participants in the planwho are not before the court;

(b) Where the administrator takes the position that a particularagreement or proposed court order would interfere with theactuarial foundations of the plan, the burden is on theclaimants to demonstrate that the administrator’s conclu-sion is unreasonable. Maintaining the long term solvency ofthe plan is of critical importance to all participants, not justthose before the court.

(c) The onus is also on the claimants to prove that any decisionof the administrator on the proper interpretation of the planis unreasonable.

The specialized role of the plan administrators is recognized in the Pub-lic Sector Pensions Plans Act, RSA 2000, c. P-41, Schedule 4 “SpecialForces Pension Plan Provisions”, secs. 3(2)(c)(ii), 4(2-5). The entitle-ment of any particular beneficiary to a specific level of pension benefitsis a mixed question of fact and law. This court should extend deferenceto the decision of the administrator on whether the proposed form of mat-rimonial property order was consistent with the provisions of the SpecialForces Pension Plan.

The Terms of the Plan11 The key provisions of the Special Forces Pension Plan are set out in

the Special Forces Pension Plan Regulation AR 369/93: 2(1) In these plan rules,

(bb) “participant” means a person who is a participant ofthe Plan by virtue of Part 2;


. . .

(dd.1) “pension partner” means

(i) a person who, at the relevant time, wasmarried to a participant or former partici-pant and had not been living separate andapart from him or her for 3 or more con-secutive years, or

(ii) if there is no person to whom subclause (i)applies, a person who, as at and up to therelevant time, had lived with the partici-pant or former participant in a conjugal re-lationship [as defined];

Under these provisions, Mr. McMorran is the “participant”, and his firstwife was declared to be his “pension partner”.

12 The regulations governing the Special Forces Pension Plan haveevolved over the years:

(a) The consent matrimonial property order at issue in this ap-peal was commonly referred to as a “McAlister order”:McAlister v. McAlister (1982), 23 Alta. L.R. (2d) 141, 41A.R. 277 (Alta. Q.B.). Such orders were recognized by theSpecial Forces Pension Plan as an acceptable method of di-viding pensions until June 24, 2003: (Legislative Provi-sions) Regulation, s. 22(3). The matrimonial property orderin question is “grandfathered”.

(b) The concept of a “pension partner” was not introduced intothe Plan until 2002, when it replaced the term “spouse”:Public Service Pension Plan (Pension Partner) AmendmentRegulation, AR 100/2002, s. 13. The definition of “pensionpartner” has been amended over time.

While the substance of the consent matrimonial property order is“grandfathered”, the parties appear to accept that pensions are still to beadministered under the regulations as they stand at the time that any par-ticular pension decision must be made. Thus, the present definition of“pension partner” is the relevant one. In the end, this does not affect theoutcome of this litigation, as the key words “a person who, at the rele-vant time, was married to a participant” have remained unchanged.

13 While the relevant provisions are written in the singular, the cham-bers judge concluded that it was possible to appoint two “pension part-ners”. The reasoning was based on: (a) the perceived desirability and ad-


vantages of providing protection to the second spouse, (b) an argumentthat perhaps the survivor’s interest in the remaining 7/22nds of the pen-sion was being “lost”, which was (c) buttressed by the argument that theInterpretation Act allowed this interpretation.

14 The expression “at the relevant time” in the definition of “pensionpartner” is somewhat enigmatic. Counsel suggested that it meant “at thetime that the pension goes ‘into pay’”. That may generally be true, but atthe time that Mr. McMorran’s pension went into pay his first wife did notqualify under the definition; they had been divorced for nine years, soMrs. McMorran was not “married to a participant” when the pensionwhen into pay. If it had been intended that the “relevant time” was al-ways the “time the pension goes into pay”, the Regulation would un-doubtedly have been so worded. The actual wording reflects the fact thatin cases like the present one, the “relevant time” is more properly consid-ered to be the time that Mrs. McMorran’s interest accrued, as specified inthe terms of the matrimonial property order. The discrete pension benefitis then determined as of the “division date” as defined in s. 21(1)(d) ofthe (Legislative Provisions) Regulation.

15 As counsel for the appellant pointed out, the phrase “a person who, atthe relevant time, was married to a participant”, given its ordinary mean-ing, would contemplate only one “person”. Canadian law contemplatesonly one spouse at any “relevant time”. Interpreting this phrase to con-template multiple pension partners essentially turns the proviso “at therelevant time” into “at any time”. The structure of the definition supportsthis interpretation. If no “person” is identified as being married to thepensioner, the definition then cascades down in search of a potential co-habiting partner in a conjugal relationship. The second part of the defini-tion does not accommodate the concept of there being more than oneperson who could satisfy the first part of the definition.

16 Section 38 of the Special Forces Pension Plan Regulation governsthe election by the pensioner of the form of pension. It is the provisionthat allows the pensioner to select a “joint life not reduced pension”, asthe chambers judge directed Mr. McMorran to do. Sections 38(2) and (3)of the Regulation specify that the resulting “pension is in an amount thatis the actuarial equivalent of the pension in the form of a normal pen-sion”. Pursuant to these provisions, both Mr. and Mrs. McMorran’smonthly pension payments would be determined based on actuarial cal-culations, which would depend in part on their ages. Introducing contin-gencies relating to a third life (that of the second wife) would disrupt


those actuarial assumptions. If the second wife could potentially receivebenefits after the death of both Mr. McMorran and his first wife, the ef-fect of the order under appeal would be to create benefits for which noreserves have been set aside. Contrary to the reasoning of the chambersjudge, there clearly would be “injustice” or “mischief” to the Plan.

17 One could always think of ways to make a pension plan more gener-ous, more beneficial to the participants in the plan, and broader in scope.It will always be conceptually desirable to provide pension benefits to asmany people as possible. Nevertheless, it is axiomatic that pension plansare funded based on actuarial calculations, which require certainty as tothe number of persons who might derive benefits from the plan, togetherwith their life expectancy. As the chambers judge noted, introducing ad-ditional lives into the actuarial equations will undermine the calculations.It was an interpretive error to approach the Regulation with a view tofinding the interpretation that would provide the greatest benefits to thegreatest number of people.

18 A pension plan is a particular asset with defined rights and benefits. Ifthe litigants have an interest in a pension plan, they must take the plan“as is”, just as they must accept the advantages and limitations of anymatrimonial asset. Their rights and options cannot extend beyond thoseinherent in and consistent with the plan. The court has no ability to varythe terms of the plan, or to grant rights or benefits inconsistent with it:(Legislative Provisions) Regulation, s. 23. Likewise, the parties have noability to vary the terms of the plan by private agreement, or to agree thatany of them will have rights or benefits inconsistent with it.

19 It follows that there is little room for any claimant to argue that itwould be desirable, or “fair” in the abstract, that they should receive anybenefit different from, or greater than, those contemplated by the plan.There is also little room for a claimant to argue that he or she is not“getting what was paid for”. Pension plans contemplate a defined bundleof rights for which certain contributions are made. It was not open to thesecond wife to argue that some residual value in the remaining 7/22ndsof the pension was being undervalued or unrecognized. The Plan pro-vided for certain benefits during the joint lives of the pensioner and thepension partner, and nothing more.

20 Any perceived unfairness to Mr. McMorran’s second wife is also un-dermined by the fact that she ought to have known, when she marriedMr. McMorran, that his first wife had property rights in the pension.Where two parties have an established or fixed prior interest in the plan,

McMorran v. McMorran Thomas W. Wakeling J.A. 29

and a third party acquires a right or interest later in time, the rights of thelater third party cannot conflict with those of the original two parties.The later third party must respect the fact that any interest he or she ob-tains in the plan must be subordinate to the previously existing interests.

21 As noted, the Special Forces Pension Plan is funded on actuarial as-sumptions premised on the existence of only two lives: that of the pen-sioner, and of his or her pension partner. Introducing a third life into theequation (i.e., that of the second spouse) will disrupt those funding as-sumptions. The generic provisions of the Interpretation Act, providingthat the singular may include the plural, are inapplicable and inappropri-ate in this context: Boardwalk Reit LLP v. Edmonton (City), 2008 ABCA220, at para. 119, 91 Alta. L.R. (4th) 1 (Alta. C.A.). As the chambersjudge himself noted (reasons, para. 55), it was not open to him to create aseparate pension for Mr. McMorran and Mrs. McMorran. The Plan con-templates only a single “pension”, and the Interpretation Act could notturn that into multiple pensions.

22 The wording of the Regulation does not support an interpretation thata pensioner can have multiple pension partners. The position of the pen-sion administrator was reasonable, and it should have been accepted bythe chambers judge.

Conclusion23 In conclusion, the appeal is allowed, and paragraph 5 of the order

under appeal is struck.

Thomas W. Wakeling J.A. (concurring in the result):

I. Introduction24 This appeal determines the nature of the interests Scott Menzies Mc-

Morran, a former member of the Edmonton Police Service, CatherineMcMorran, to whom Mr. McMorran was married from 1986 to 2002,and Mr. McMorran’s second wife, whom he married in 2005, have with


respect to benefits1 under the Special Forces Pension Plan.2 Its outcomeis important to them because “[p]ension funds are ... an invaluable nestegg for an aging workforce”.3

25 This is also a significant case for others who have an interest in bene-fits under the public sector pension plans listed in the Public Sector Pen-sion Plans (Legislative Provisions) Regulation, Alta. Reg. 365/934 as aresult of matrimonial property orders made before June 24, 2003.

26 Very different rules govern the division and distribution of benefitsunder these public sector pension plans following relationship break-downs depending on whether matrimonial property orders dealing withdivision and distribution of benefits were made before June 24, 2003 orafter June 23, 2003.5 The pension Mr. and Ms. McMorran have an inter-est in is subject to a matrimonial property order Justice Moen made onMarch 11, 2003.

1A benefit may be in the form of a pension, a death benefit or a benefit ontermination before pension eligibility. Special Forces Pension Plan, Alta. Reg.369/93, as amended, s. 2(1)(h). This regulation came into force on January 1,1994. It has been amended several times. This judgment refers to this amendedregulation as the “Special Forces Pension Plan” or the “pension plan”. Section4(1) of Schedule 4 of the Public Sector Pension Plans Act, S.A. 1993, c. P-30.7authorized the Lieutenant Governor in Council to establish the Special ForcesPension Plan.2This is a defined benefit pension plan. “A defined benefit plan is an arrange-ment where an employee accrues (that is earns) benefits by a formula that takesinto account the number of years during which contributions are made to thepension plan on the employee’s behalf and, in most cases, his or her earnings”.A. Kaplan & M. Frazer, Pension Law 88 (2d ed. 2013).3Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services),[2004] 3 S.C.R. 152 (S.C.C.), 177.4This judgment generally refers to this regulation as amended as the “1993 Leg-islative Provisions Regulation”.5Public Sector Pension Plans (Legislative Provisions) (Matrimonial Relation-ship Breakdown) Amended Regulation, Alta. Reg. 383/2003, s. 4. It came intoforce on June 24, 2003. This judgment generally refers to this regulation as the“2003 Matrimonial Relationship Breakdown Regulation”. The 2003 Matrimo-nial Relationship Breakdown Regulation amended the 1993 Legislative Provi-sions Regulation.


27 The post-June 23, 2003 regime introduced by the 2003 MatrimonialRelationship Breakdown Regulation entitled a person who was marriedto a police officer to receive immediately a sum actuarially calculated toreflect the current value of the person’s interest in the benefits to be de-posited into a financial vehicle which the person could only access at afuture date.6 The recipient would be responsible for managing this fund.The pre-June 24, 2003 regime gave a person an ownership interest in ashare of the benefits under the Special Forces Pension Plan to be en-joyed when those benefits were payable, generally at some future time.As the Special Forces Pension Plan is a defined benefit pension plan, theperson who benefits from a pre-June 24, 2003 matrimonial property or-der has no capacity to influence the size of the future income stream.

II. Questions Presented28 May a matrimonial property order made after June 23, 2003 affecting

a pension under the Special Forces Pension Plan, subject to a matrimo-nial property order made before June 24, 2003,7 divide the pension intotwo or more discrete units each of which may have a different pensionpartner and payout scheme?8 Or is a pension subject to a matrimonialproperty order made before June 24, 2003 one indivisible whole and itmay only have one pension partner and one payment scheme?

29 In particular, must this Court set aside the matrimonial property orderunder appeal because it had the effect of making each of Mr. McMor-ran’s first and second wives his pension partner for separate units of hispension and creating a normal pension for the unit in which his secondwife was his pension partner and a joint-life-not-reduced pension for theunit in which his first wife was his pension partner? A normal pension9

entitles the pensioner10 to payments while the pensioner is alive and pro-vides the pension partner with considerably reduced payments after the

61993 Legislative Provisions Regulation, as amended by the 2003 MatrimonialRelationship Breakdown Regulation, ss. 26-30.72003 Matrimonial Relationship Breakdown Regulation, s. 22(3).8This is the effect of the order under appeal. 2013 ABQB 610 (Alta. Q.B.), ¶85.9Special Forces Pension Plan, ss. 29(1)(c) & 30(1)(c).10The Special Forces Pension Plan sometimes refers to a retired police officerreceiving a pension as a “pensioner”. E.g., Special Forces Pension Plan, ss. 36,37, 38 & 47.


death of the pensioner.11 A joint-life-not-reduced pension provides thesame pension payments to the pensioner’s pension partner which arepayable as long as he or she is alive.12

III. Brief Answers30 The contested matrimonial property order cannot declare that Mr.

McMorran’s second wife could be Mr. McMorran’s pension partner afterit had already bestowed that status on Ms. McMorran, the pensioner’sfirst wife. Nor could the matrimonial property order allow Mr. McMor-ran to elect to receive a normal pension with respect to the portion of hispension in which Ms. McMorran had no interest, after it already directedMr. McMorran to elect a joint-life-not-reduced pension.

31 Mr. McMorran’s and Ms. McMorran’s interest in his pension aregoverned by the terms of the orders Justices Moen and Graesser made onMarch 11, 2003 and April 14, 2014 respectively and the provisions of theSpecial Forces Pension Plan in force as of June 23, 2003, the 2003 Mat-rimonial Relationship Breakdown Regulation13 and the Public SectorPension Plans (Pension Partner) Amendment Regulation, Alta. Reg.100/200214 which first introduced a definition of “pension partner” ef-fective May 29, 2002. Specifically, the 2003 Matrimonial RelationshipBreakdown Regulation stipulated that the legal force which attached tomatrimonial property orders made before June 24, 2003 and other facetsof the legal regime which gave legal force to these matrimonial ordersremained in force.

32 The legal regime in force as of June 23, 2003 included a definition ofpension partner — the 2002 Pension Partner Amendment Regulation —which inexorably leads to the conclusion that a pensioner may have only

11Special Forces Pension Plan, ss. 36 & 47.12Special Forces Pension Plan, ss. 38(1)(d) & 49.13The 2003 Matrimonial Relationship Breakdown Regulation amended the 1993Legislative Provisions Regulation. It follows that the 1993 Legislative Provi-sions Regulation as amended by the 2003 Matrimonial Relationship BreakdownRegulation is part of the legislative framework which will influence the outcomeof this appeal.14This judgment refers to this regulation as the “2002 Pension Partner Amend-ment Regulation”. The 2002 Pension Partner Amendment Regulation amendedthe Special Forces Pension Plan effective May 29, 2002.


one pension partner. No other part of the applicable legal framework sug-gests that a contrary conclusion is supportable.

33 Mr. McMorran’s pension is one indivisible whole. Both the terms ofthe Special Forces Pension Plan and the theory on which a pensionunder the Special Forces Pension Plan is based compel this result. Ajustice of the Court of Queen’s Bench cannot superimpose on a pensioncharacteristics not contemplated by the pension plan just because he orshe thinks the novel element makes for a fairer pension.

34 The order under appeal must be set aside.

IV. Statement of Facts35 A Queen’s Bench consent order15 made on March 11, 2003 and en-

tered on April 14, 2003 declared that Ms. McMorran has an “ownershipinterest in ... [Mr. McMorran’s] benefits and pension acquired pursuantto the Special Forces Pension Plan” and stated that her “share of thebenefits and pension shall be determined upon ... [Mr. McMorran’s] re-tirement or commencement of receipt of any benefit from the Plan”. Thisorder also set out the formula that would be used to determine Ms. Mc-Morran’s ownership interest:16

[Ms. McMorran’s] then share of the benefit shall be in the same pro-portion that one half of that period from 26th July 1986 to 12th April2002 expressed in years, including the number of years of past orprior service purchased during that period of time, bears to the num-ber of years of [Mr. McMorran’s] ... pensionable service recognisedby the Plan calculated at the time of ... [Mr. McMorran’s] retirementor commencement of receipt of any benefit from the Plan.

In addition, the order declared that it is a matrimonial property orderunder the Matrimonial Property Act.

36 In 2011 a dispute arose following Mr. McMorran’s retirement fromthe Edmonton Police Service. It was attributable in part to the fact that

15This was a matrimonial property order under the Matrimonial Property Act,R.S.A. 2000, c. M-8, s. 1(d). There is a general prohibition against the assign-ment of an interest in a benefit under the Special Forces Pension Plan. SpecialForces Pension Plan, s. 109(1). But this prohibition does not apply to an assign-ment effected by a matrimonial property order. Special Forces Pension Plan, s.109(2).16This formula was utilized in McAlister v. McAlister (1982), [1983] 2 W.W.R.8 (Alta. Q.B.), 32. Family law practitioners refer to this as a McAlister order.


Mr. McMorran had remarried in 2005 and wanted his second wife tohave an interest in his pension. He named his second wife as his jointannuitant.

37 Ms. McMorran, the first wife, to resolve the nature of her interestunder the Special Forces Pension Plan, applied for an order appointingher as Mr. McMorran’s pension partner and directing Mr. McMorran tochoose a joint-life-not-reduced pension option. Such a pension wouldpay to Ms. McMorran throughout the rest of her life a consistent amountnot affected by the death of her former husband if he predeceased her.

38 The dispute came before Justice Graesser. He described its nature thisway:

[6] Two issues have arisen. Firstly, under the provisions of the pen-sion plan, ... [Mr. McMorran] is required to name a “pension partner”which determines how long the pension will run. All benefits underthe pension will end after he and his pension partner have died. Sec-ondly, he is required to elect the percentage reduction in the pensionfollowing his death. He can elect to have no reduction, although thatwill result in a smaller pension during their joint lives. Or he canhave the pension reduce by up to fifty percent, which will give him amuch larger pension during his lifetime, and a much-reduced pensionfor his widow.

[7] Ms. McMorran is by the terms of the consent matrimonial pro-perty order entitled to her portion of Mr. McMorran’s pension. Mr.McMorran is apparently entitled to have his new wife as a joint annu-itant with his portion of his pension. Where Ms. McMorran fits intothis is if she is not the “pension partner”, her entitlement to receiveher portion of the pension would end on the deaths of Mr. McMorranand his new wife.

. . . . .

[9] Secondly, Ms. McMorran is affected by Mr. McMorran’s choiceof the percentage of reduction in the pension benefits on his death. Ifhe elects to have no reduction on his death, then Ms. McMorran’songoing pension is larger. If he elects to have a significant reductionon his death, Ms. McMorran’s pension would be smaller.

[10] She has thus brought this application to have Mr. McMorranname her as his pension partner, and to have him elect a pension thatdoes not have her pension reduce on his death.

[11] Mr. McMorran opposes the application, stating that he wants totake the largest pension he can while he is alive, and he wants to


protect his new wife. If she is not his pension partner, her entitle-ments would end if both he and Ms. McMorran die before she does.

39 Justice Graesser granted Ms. McMorran’s application. He orderedMr. McMorran to name his former wife as his pension partner and toelect a “joint-non-reducing pension as to this portion of his pension enti-tlements”. 2013 ABQB 610 (Alta. Q.B.), ¶84. See also ¶¶77 & 78.

40 These orders are not under appeal.41 But Mr. McMorran did not come away empty handed. The chambers

judge also determined17 that Mr. McMorran is entitled to name his sec-

17Mr. McMorran did not apply for this relief. The chambers judge put the inter-est of Mr. Morran’s second wife into issue on his own motion. He invited theplaintiff, the defendant and the Alberta Pension Services to respond to his invita-tion to make submissions on this question. This initiative of the motions courtbrings to mind Justice Cardozo’s admonition that a judge “is not a knight-errantroaming at will in pursuit of his own ideal of beauty and goodness”. The Natureof the Judicial Process 141 (1921). Generally speaking, a court should be reluc-tant to raise, on its own motion, a new issue, the resolution of which will notaffect the dispute the parties have asked the court to resolve. There may be goodreasons which account for the failure of the parties to present the question. Inaddition, additional submissions drive up the costs for all parties. As well, acourt must always consider whether by raising a new issue “a reasonable, right-minded and informed person [would] conclude it [was] probable that the adjudi-cator was not impartial”. Bizon v. Bizon, 2014 ABCA 174 (Alta. C.A.), ¶49. SeeR. v. Mian, 2014 SCC 54 (S.C.C.), ¶39 (“When a judge ... intervenes in a caseand departs from the principle of party presentation, the risk is that the interven-tion could create an apprehension of bias”). This concern was not engaged here.The chambers judge had already resolved the dispute between Mr. McMorranand Ms. McMorran. Ms. McMorran, no doubt, must have wholeheartedly ap-proved of the disposition in her favor. And Mr. McMorran was not opposed tothe course of action the chambers judge selected. It gave him an opportunity tosecure an advantageous order. To say more may be inappropriate given that theappellant did not put into issue the propriety of the chambers judge raising anddeciding this new issue. See R. v. Mian, 2014 SCC 54 (S.C.C.), ¶41 (“An appel-late court should only raise a new issue when failing to do so would risk aninjustice”) & District of Parry Sound Social Services Administration Board,[2003] 2 S.C.R. 157 (S.C.C.), 206 (“The Court of Appeal erred in raising thisissue, not chosen by the parties” per Major J.) On the other hand, courts havefrequently adopted different solutions to disputes from those proffered by theparties to resolve disputes the litigants have presented for resolution. E.g., R. v.Campbell, [1997] 3 S.C.R. 3 (S.C.C.), 175 (in determining the nature of the s.


ond wife as his pension partner for that portion of his pension in which,the chambers judge held, his first wife had no interest and to “elect [toreceive] a normal pension for his remaining share of the pension”. Hisreason for this determination are set out below:

[58] Legislation is to be given a purposive interpretation ... . The pur-pose of allowing pension plan members to name a pension partnerand have joint life pensions is to enable the member to protect his orher spouse. ...

[59] In this era, it is not uncommon for a person to have several mar-riages (legal or common law) during his or her lifetime. It is certainlynot beyond the realm of possibility that any employee who partici-pates in a pension plan may, during his or her lifetime, have morethan one spouse. Each spouse may acquire rights to or obtain an in-terest in the employee’s pension.

[60] It makes little sense to interpret the pension regulations to pro-vide protection or benefits to only the first spouse where there maybe interpretations that protect them all, if that interpretation is neitherabsurd nor contrary to the intention of the legislation.

. . . . .

[64] I see no reason why under the legislation Mr. McMorran cannothave two pension partners or why that is outside the spirit and inten-tion of the legislation. He should be able to have Ms. McMorran ashis pension partner as to the 15/22nds of his pension entitlements heagreed to and is required by court order to share with Ms. McMorran.He should also be able to have his new wife as his pension partnerfor his remaining pension entitlements.

[65] Interpreting the legislation in this fashion gives effect to the re-ality that a person may have more than one spouse with interests inhis or her pension. It protects the interests of both spouses and leaves

11(d) Charter values — an independent and impartial tribunal in criminal pro-ceedings — the majority, on its own motion, introduced the concept of judicialcompensation commissions); Chalifoux v. Driftpile First Nation (2002), 299N.R. 259 (Fed. C.A.) (the appeal court, on its own motion, raised the issue of areasonable apprehension of bias, which it rejected after hearing argument) &Cassell & Co. v. Broome, [1972] A.C. 1027 (U.K. H.L.), 1131 (“On matters oflaw no court is restricted in its decision to following the submissions made to itby counsel ... [T]his House was fully entitled to come to a conclusion of law andlegal policy different from that which any individual counsel had propounded”).


neither dependent on the other to survive so that their expected bene-fits will continue to be paid.

[66] Does this interpretation do any injustice to the plan? I can seenone. Mr. McMorran made pension contributions in the requiredamount while married to Ms. McMorran. He may have made furthercontributions while married to his new wife. Ms. McMorran has adefined and documented interest in his pension; his new wife mayhave an interest in the remainder of his pension. I do not see anymischief in requiring the plan to pay Ms. McMorran her share of Mr.McMorran’s pension for her lifetime, while requiring the plan to payMr. McMorran’s new wife her share of Mr. McMorran’s pension forher lifetime. That does not seem to me to amount to any double pay-ment. Neither spouse should be dependent on the other surviving toreceive her benefits.

[67] While the legislation uses the singular, a purposive interpreta-tion allows the plural and is not contrary to any express provision.

42 The part of the Queen’s Bench order which captures this aspect ofJustice Graesser’s judgment is set out below:

5. It is further ordered that the Plaintiff shall be at liberty to elect adifferent pension partner for the portion of the pension that is not theDefendant’s Share, and can elect a normal pension for his remainingshare of the pension.

43 Alberta Pension Services Corporation appeals against this part of theorder.18

V. Applicable Statutory Provisions44 The statutory scheme consists of a constating statute and several reg-

ulations made under authority of the parent statute.45 The Public Sector Pension Plans Act, R.S.A. 2000, c. P-41 is the par-

ent statute.19 It continued the Special Forces Pension Plan created by the

18A June 6, 2014 consent order of this Court gave Alberta Pension ServicesCorporation standing to appeal the chambers judge’s order. Without this order,Alberta Pension Services Corporation would not have had the right to appeal. Aperson has no right to appeal an order just because it may adversely affect his orher interests. Dreco Energy Services Ltd. v. Wenzel (2008), 429 A.R. 51 (Alta.C.A.), 54 (“Generally speaking, non-parties rarely have rights, powers or dutiesin a suit”).19This judgment refers to this enactment as the “2000 Public Sector PensionPlans Act”.


Special Forces Pension Plan Act, S.A. 1985, c. S-21 and authorized theLieutenant Governor in Council to make regulations respecting the pen-sion plan.

46 The Lieutenant Governor in Counsel enacted several regulationsunder s. 4 of the 2000 Public Sector Pension Plans Act and its predeces-sor, enacted in 1993.20

47 The first was the Public Sector Pension Plans (Legislative Provi-sions) Regulation, Alta. Reg. 365/93.21 This regulation contains coreprovisions which apply to all the pension plans that the Public SectorPension Plans Act continued. Section 13 of the 1993 Legislative Provi-sions Regulation recognized the importance of matrimonial property or-ders: “The right of any person to receive a benefit is subject to the rightsof a spouse or former spouse arising under a matrimonial propertyorder.”

48 The Public Sector Pension Plans (Legislative Provisions) (Matrimo-nial Relationship Breakdown) Regulation, Alta. Reg. 383/200322 madeimportant changes to the 1993 Legislative Provisions Regulation. Theyfollow:

3 Section 13 is repealed and the following is substituted:

13(1) Interpretation23 provisions in Part 3 apply in thissection.

20Public Sector Pension Plans Act, S.A. 1993, c. P-30.7.21Referred to in this judgment as the “1993 Legislation Provisions Regulation”.22Referred to in this judgment as the “2003 Matrimonial Relationship Break-down Regulation”.23I assume that “interpretation provisions” means s. 21(1) of the 1993 Legisla-tive Provision Regulation as amended by s. 4 of the 2003 Matrimonial Relation-ship Breakdown Regulation. The marginal note for s. 21 as a whole is “interpre-tation”. See Interpretation Act, R.S.A. 2000, c. I-8, s. 12(2) (a marginal note isnot part of an enactment and is “inserted for convenience of reference only”) &R. Sullivan, Sullivan on the Construction of Statutes 375 (5th ed. 2008) (“itshould be acceptable for interpreters to look to the descriptive components oflegislation in every case ... for help in understanding the meaning and purpose ofan enactment”).


(2) Notwithstanding Part 3, either24 pension partner mayfile a matrimonial property order under this section thatreflects the laws that were applicable with respect to thedivision and distribution of benefits before June 24, 2003,and in that case those laws continue to apply with respectto the division and distribution of the participant pensionpartner’s benefit.

(3) This right of pension partners to file under subsection(2) expires, and this subsection is repealed, at the end ofDecember 2004.

4 The following is added after Part 2:

Part 3

Division and Distribution of Benefits on RelationshipBreakdown

. . . . .

21(1) In this Part,

. . . . .

(i) “matrimonial property order” or “order”means a matrimonial property order within themeaning of the Matrimonial Property Act ...that affects the payment or distribution of apension partner’s benefits and, to avoid doubt,includes a consent order of the Court adoptingan agreement entered into between pensionpartners in proceedings under the MatrimonialProperty Act providing for the division anddistribution of benefits;

24The use of the word “either” is puzzling. A “participant” or “former partici-pant” is not a pension partner under the 2002 Pension Partner Amendment Reg-ulation. This provision assumes that both parties affected by a matrimonial pro-perty order made before June 24, 2003 are pension partners. The definition of“matrimonial property order” in the new Part 3 introduced by the 2003 Matrimo-nial Relationship Breakdown Regulation adds to the confusion. It states that amatrimonial property order “includes a consent order of the Court adopting anagreement entered into between pension partners ... for the division and distribu-tion of benefits”.


. . . . .

24 Subject to this Part, the entitlement of any person to a benefit issubject to entitlements arising under a matrimonial property orderfiled with the Minister.

49 The 2003 Matrimonial Relationship Breakdown Regulation came intoforce on June 24, 2003.

50 The second important regulation is the Public Sector Pension Plans(Pension Partner) Amendment Regulation, Alta. Reg. 100/2002.25 Itamended the Special Forces Pension Plan, as well as three other publicsector pension plans. Noteworthy sections are reproduced below:

Part 3

Special Forces Pension Plan

11 The Special Forces Pension Plan (AR 369/93) is amended by thisPart.

12 The following provisions are amended

(a) by striking out “spouse” and “spousal” wherever theyoccur in those provisions and substituting “pensionpartner”;

. . . . .

13 Section 2(1) is amended

(b) by adding the following after clause (dd):


(i) a person who, at the relevant time, was married toa participant or former participant and

(A) was not judicially, or otherwise separatedfrom him or her, or

(B) if so separated, was wholly or substantiallydependent on him or her

(ii) if there is no person to whom subclause (i) applies,a person who, as at and up to the relevant time,had lived with the participant in a conjugal rela-tionship

(A) for a continuous period of at least 3 yearsor

25Referred to in this judgment as the “2002 Pension Partner AmendmentRegulation”.


(B) of some permanence, if there is a child ofthe relationship by birth or adoption

and was, during that period or that relationship, asthe case may be, held out by the participant or for-mer participant in the community in which theylived as being in that conjugal relationship, or

(iii) if there is no person to whom subclause (i) or (ii)applies, a person who was married to but sepa-rated from the participant or former participantand not wholly or substantially dependent on himor her at the relevant time;

51 The relevant parts of the Special Forces Pension Plan, in force as ofJune 23, 200326, are as follows:

1 This Regulation constitutes the major part of the plan rules for theSpecial Forces Pension Plan (in these plan rules referred to as “thePlan”).

2(1) In these plan rules,

. . . . .

(h) “benefit” means a retirement benefit, a death benefit,or a benefit on termination before pension eligibility,under Part 5

. . . . .

(bb) “participant” means a person who is a participant byvirtue of Part 2;

(cc) “pension” means a pension under the Plan;

(dd) “pension commencement” means the time estab-lished by section 81 or 94 that constitutes the effectivedate for the commencement of the relevant pension;


26I use this version of the Special Forces Pension Plan because s. 3 of the 2003Matrimonial Relationship Breakdown Regulation introduced a new s. 13(2) forthe Special Forces Pension Plan. Part of this subsection stated that a pensionpartner “may file a matrimonial property order under this section that reflects thelaws that were applicable with respect to the division and distribution of benefitsbefore June 23, 2003, and in that case those laws continue to apply with respectto the division and distribution of the participant pension partner’s benefit”.


(i) a person who, at the relevant time, was married toa participant or former participant

(A) was not judicially or otherwise separatedfrom him or her, or

(B) if so separated, was wholly or substantiallydependent on him or her.

(ii) if there is no person to whom subclause (i) applies,a person who, as at and up to the relevant time,had lived with the participant or former participantin a conjugal relationship

(A) for a continuous period of at least 3 years,or

(B) of some permanence, if there is a child ofthe relationship by birth or adoption, andwas, during that period or that relationship,

as the case may be, held out by the participant orformer participant in the community in which theylived as being in that conjugal relationship, or

(iii) if there is no person to whom subclause (i) or (ii)applies, a person who was married to but sepa-rated from the participant or former participantand not wholly or substantially dependent on himor her at the relevant time;

. . . . .

(rr) “termination”, used in relation to a person, means thatperson’s ceasing to be an employee, under any circum-stances other than death;

. . . . .

Part 5

Benefits

. . . . .

Division 1 Retirement Benefits

Subdivision A

For Service Before 1992


. . . . .

Normal pension based on age or service

36(1) A person who terminates and has either

(a) attained the age of 55 years with at least 5years’ pensionable service accumulated, or

(b) has accumulated at least 25 years’ pension-able service,

is entitled to receive a pension in the annual amount thatis equal to 2% of his highest average salary multiplied bythe number of years of his pensionable service and re-duced in accordance with subsection (4).

(2) A pension under subsection (1) is payable for the lifeof the pensioner or the term of 5 years, whichever islonger.

...

Pension Partner Protection

37(1) Notwithstanding anything in the Plan except subsection (3) andsection 34(3), a pensioner who has a pension partner at pension com-mencement is deemed for the purposes of the Plan to choose a pen-sion in the form of a normal pension.

. . . . .

(3) Subsection (1) does not apply if the person selects a joint lifepension ... or where there was filed with the Minister

. . . . .

(c) a matrimonial property order

38(1) A person who is entitled to receive a pension in the form speci-fied in section 36(2) is entitled, as an alternative, to select a form ofpension from one of the following:

(a) a guaranteed term pension, payable for

(i) whichever term, being 10 years or 15 years, isselected by the pensioner, or

(ii) his life,

whichever is the longer;

(b) a single life pension payable only for the life of thepensioner;

(c) a joint life pension, payable during the joint lives ofthe pensioner and a nominee designated by him and


which, after the death of either, continues to be paya-ble

(i) in the same amount as the amount payablebefore the death, or

(ii) in the amount of 2/3 of it

to the survivor for his life;

(d) a joint life pension described in clause (c) that is paya-ble, in the event the survivor dies within 5 years ofpension commencement, for the remainder of theguaranteed term of 5 years from pension commence-ment in the amount that was payable to the survivorimmediately before the survivor’s death.

(2) Where an alternative form of pension is selected under subsection(1), the pension is in an amount that is the actuarial equivalent of thepension in the form of a normal pension.

. . . . .

Death after entitlement to section 36 pension

45 Where the deceased had terminated, had become entitled to a pen-sion under section 36 or had become so entitled but only for postpon-ing it, and died without having made a valid choice as to the form ofpension to be taken, the deceased is deemed for the purposes of thePlan to have chosen,

(a.1) if there is a surviving pension partner and no validstatutory declaration under section 37(3) had been filed inrespect of his pension, a normal pension.

. . . . .

(b) if there is no surviving pension partner or if there isbut a valid statutory declaration under section 37(3) hadbeen filed in respect of his pension, a guaranteed termpension in the form specified in section 38(1)(a) on a 10-year basis.

. . . . .

Subdivision B

For Service After 1991

. . . . .

Normal pension based on age or age and service

47(1) A person referred to in section 36(1) is entitled to receive apension in the annual amount that is equal to 2% of his highest aver-


age salary multiplied by the number of years of his pensionable ser-vice and reduced in accordance with subsection (4).

(2) A pension under subsection (1) is payable for life of the pensioneror the term of 5 years, whichever is longer.

. . . . .

48 Section 37 applies.

. . . . .

Division 2

Death Benefits

57(1) This Division applies with respect to a person, other than apensioner, who dies with employee contributions referred to in sec-tion 29(1) or 30(1) in the Plan.

(2) In this Division, “surviving pension partner” means the person (ifany) who was the pension partner of the person referred to in subsec-tion (1) immediately before the death occurred, and who survived thedeceased.

. . . . .

81(1) Where a person becomes entitled to receive a pension undersection 36 and does not postpone commencement of that pension, theeffective date of the commencement of the pension is the day aftertermination.

. . . . .

106 Where there is a delay in processing a pension beyond 30 daysfrom pension commencement, the Minister of Finance may advancemoney from the plan fund to the pensioner against the pension.

52 A “matrimonial property order” is defined this way under the Matri-monial Property Act, R.S.A. 2000, c. M-8, s. 1(d): “a distribution by theCourt order under section 7 and an order under section 927”. Section 7(1)provides that “[t]he Court may, in accordance with this section, make adistribution between the spouses of all the property owned by bothspouses and by each of them”. Section 9 stipulates that “[i]f part of theproperty of the spouses is situated in Alberta and part elsewhere, theCourt may distribute the property situated in Alberta in such a way as togive effect to the distribution under section 7 of all the property whereverit is situated”.

27This version was in effect as of June 23, 2003.


VI. Analysis

A. Consistency in the Administration of the Special Forces PensionPlan Is Important

53 The Special Forces Pension Plan contains provisions which deter-mine the benefits payable to police officer participants28 and the natureof the interest which others may have in the benefits payable under theSpecial Forces Pension Plan as well as other important topics, such asthe identity and obligations of fund contributors.

54 Comprehensive and precise rules promote a high degree of predict-ability to the decisions made by those who administer the Special ForcesPension Plan. This feature increases the likelihood that the reasonableexpectations of participants and others who may derive a benefit fromthe pension plan will be met. As well, predictability and consistency as-sure, as much as possible, that decisions made by the Special ForcesPension Plan administrators, will have the consequences the administra-tors predicted.29

55 In short, consistency in the administration of the Special Forces Pen-sion Plan is important. A court interpreting the pension plan provisionsmust be mindful of these related values.30

28A “participant” is an “employee”. Special Forces Pension Plan, s. 2(1)(bb).An “employee” is a “police officer”. Special Forces Pension Plan, s. (2)(1)(p).A police officer is a “peace officer who is a member of a police service withauthority to enforce federal and provincial statutes in force in Alberta generally,excluding a person acting solely as a special constable”. Special Forces PensionPlan, s. 2(1)(ff.1). Mr. McMorran was a participant in the Special Forces Pen-sion Plan until he retired when he ceased to be an employee.29Wallis v. Smith (1882), 21 Ch. D. 243 (Eng. C.A.), 266 (“Courts of law should... not overrule any clearly expressed intention on the ground that Judges knowthe business better than the people know it themselves”).30See generally Sydall v. Castings Ltd. (1966), [1967] 1 Q.B. 302 (Eng. C.A.),318 (“it is always to be borne in mind that the ... trusts upon which the policymoneys are to be held by the company apply to all employees who participate inthe scheme”).


B. Administrators of the Special Forces Pension Plan Have Allowed aParticipant To Have Only One Pension Partner

56 Mr. McLaughlin, counsel for Alberta Pension Services Corporation,the entity responsible for administering the Special Forces Pension Plan,stated that the administrators of the Special Forces Pension Plan, his cli-ent, have consistently informed participants in Mr. McMorran’s positionthat they may have only one pension partner.31 The fact that somethinghas never been done before is not sufficient reason to not do it if thelanguage of the Special Forces Pension Plan allows it and the outcome isnot inconsistent with the general structure of the pension plan.32 Our taskis to determine whether there is a legal basis to justify the ground theAlberta Pension Service has staked out.

57 Alberta Pension Service Corporation’s message was attributable tothe underlying assumption that a Special Forces Pension Plan pensionsubject to a matrimonial property order made before June 24, 2003 is anindivisible whole and does not consist of stand-alone units each of whichmay display different features.

58 Mr. McLaughlin asserted that the Special Forces Pension Plan as-sumes that a pensioner is entitled to a pension with specific elementsthat, in part, are determined by facts unique to the pensioner and the pen-sion partner. A pensioner’s entitlement is a function of his or her incomewhile discharging his or her duties as a peace officer, his or her life spanwhether or not the pensioner has a pension partner and, if the pensionerhas a pension partner, the life span of the pension partner. For example,

31The definition of “pension partner” used in the Special Forces Pension Plan isalso a feature of the Local Authorities Pension Plan, Alta. Reg. 366/93, asamended, the Public Sector Pension Plan, Alta. Reg. 368/93, as amended, andthe Management Employees Pension Plan, Alta. Reg. 367/93, as amended.32Laporte v. Laganiere (1972), 29 D.L.R. (3d) 651 (Que. Q.B.), 655 (“Simplybecause something has never been done before is no good reason to say that itshould not be done now”); Thorson v. Canada (Attorney General) (No. 2)(1974), [1975] 1 S.C.R. 138 (S.C.C.), 152 (1974) (“want of authority is not ananswer if principle supports the submission”); Home Office v. Harman, [1982] 1All E.R. 532 (U.K. H.L.), 550 (courts must not reject submissions just becausethey are novel) & O. Holmes, Speeches 68 (1896) (“we rely upon ... the fact thatwe never thought of any other way of doing things, as our only warrant for ruleswhich we enforce with as much confidence as if they were embodied revealedwisdom”).


payments to a pensioner with a pension partner under a joint life scenariocontinue until the death of both the pensioner and his or her pensionpartner.

59 In support of his client’s theory, Mr. McLaughlin relied on the cur-rent33 definition of “pension partner” in the Special Forces PensionPlan. He also argued that a pension divided into more than one part withdifferent pension partners and payment options introduces different fac-tors that may oblige the pension plan to make payments for different pe-riods and different amounts dependent on the life span of different pen-sion partners and the payment options selected by the pensioner and hisor her pension partners. A pension with these features, he asserted, is nolonger one pension.

C. The Administrator’s Interpretation of the Meaning of PensionPartner Is Correct

60 In order to evaluate the merits of Mr. McLaughlin’s basic argument,the Court must have a sound understanding of the norms governing apension payable under the Special Forces Pension Plan.

1. Historical Review of the Governing Norms61 Effective June 24, 2003, the 2003 Matrimonial Relationship Break-

down Regulation introduced a new regime to regulate the division anddistribution of benefits on relationship breakdown. The new order con-templates immediate payout of the spouse’s interest in the future pensionthe police officer plan participant may receive. As Messrs. Kaplan andFrazer explain in Pension Law 294 (2d ed. 2013), this immediate payoutis dramatically different from the older order, of which the pre-June 24,2003 Alberta regime was an example:

Spouses who separate before the employee’s retirement and who ful-fil certain criteria may apply to the administrator for an immediatelump sum transfer ... of the pension benefits or deferred pension insatisfaction of an equalization obligation. The spouse will be able totransfer his or her share to ... a prescribed retirement savings arrange-ment. ... This method differs from the historical rule in the ... [On-

33Section 2(1)(dd.1) of the Special Forces Pension Plan reads, in part, as fol-lows: “‘pension partner’ means (i) a person who, at the relevant time, was mar-ried to a participant or former participant and had not been living separate andapart from him or her for 3 or more consecutive years”.


tario’s Pension Benefits Act, R.S.O. 1990, c. P.8], which did not pro-vide for an immediate settlement of the spouse’s interest in thepension plan and instead, provided for an “if and when” approachthat allowed spouses to receive their share of the pension when itbecame payable upon the employee’s retirement, termination ordeath.

See McMorran v. McMorran, 2013 ABQB 610 (Alta. Q.B.), ¶18 (“Thespouse in whose favour the division is being made does not receive apension, but rather receives the value of the pension division by way of atransfer into a new plan under the control of a spouse).

62 To fully appreciate the magnitude of the change, some historical ma-terial must be reviewed and understood.

63 The starting point is s. 13 of the 1993 Legislative Provisions Regula-tion, as it read prior to June 24, 2003, the date the 2003 MatrimonialRelationship Breakdown Regulation came into force34: “The right of anyperson to receive a benefit is subject to the rights of a spouse or formerspouse of his arising under a matrimonial property order”. This provisiongave to a matrimonial property order made before June 24, 2003 norma-tive effect. The terms of a matrimonial property order could alter the re-spective interests of the police officer participant and his or her spouse.But a matrimonial property order could only assign a plan participant’sexisting interest in his or her benefits under the pension plan to his or herspouse. It did not authorize a superior court judge to reduce the plan par-ticipant’s contribution rate or increase the participant’s benefits under thepension plan.

64 Section 3 of the 2003 Matrimonial Relationship Breakdown Regula-tion repealed s. 13 of the 1993 Legislative Provisions Regulation effec-tive June 24, 2003. But it grandfathered the legal force of matrimonial

34Section 3 of the 2003 Matrimonial Relationship Breakdown Regulation pro-vided that s. 13 of the 1993 Legislative Provisions Regulation was to be replacedby a new s. 13, part of which reads as follows: “Notwithstanding Part 3, eitherpension partner may file a matrimonial property order under this section thatreflects the laws that were applicable with respect to the division and distribu-tion of benefits before June 24, 2003, and in that case those laws continue toapply with respect to the division and distribution of the participant pensionpartner’s benefit” (emphasis added). Justice Graesser concluded that Ms. Mc-Morran filed Justice Moen’s March 11, 2003 order so as to trigger this provi-sion. 2013 ABQB 610 (Alta. Q.B.), ¶51.


property orders made before June 24, 2003. This is the effect of s. 13(2)of the 1993 Legislative Provisions Regulation as amended by the 2003Matrimonial Relationship Breakdown Regulation:

13(2) ... [A] pension partner may file a matrimonial property orderunder this section that reflects the laws that were applicable with re-spect to the division and distribution of benefits before June 24, 2003and in that case those laws continue to apply with respect to the divi-sion and distribution of the participant pension partner’s benefit (em-phasis added).

65 This means that pre-June 24, 2003 matrimonial property orders con-tinue to have effect and ensure that the old order of division and distribu-tion in force before June 24, 2003 remains in effect.35 Matrimonial pro-perty orders made before June 24, 2003 did not result in an immediatepayout to a spouse. A spouse had to wait for the pension to “go into pay”before an interest identified in a pre-June 24, 2003 matrimonial propertyorder crystallized.

66 The “pension partner” concept was introduced into the Special ForcesPension Plan effective May 29, 2002, with the filing of the 2002 PensionPartner Amendment Regulation.36 This meant that it was an integral partof the legal framework preserved by the 2003 Matrimonial RelationshipBreakdown Regulation when it came into force effective June 24, 2003.

67 It is against this legislative backdrop which, what is known to familylaw practitioners as a McAlister order, emerged and became a useful de-vice to apportion and protect a spouse’s interest in the other spouse’spension benefits under the Special Forces Pension Plan and other like

35Interpretation Act, R.S.A. 2000, c. I-8, s. 35(1)(c) (“When an enactment isrepealed in whole or in part, the repeal does not ... (c) affect any right [or] privi-lege ... acquired ... under the enactment so repealed”) & R. Sullivan, Sullivan onthe Construction of Statutes 708 (5th ed. 2008) (“In short, the repealed law con-tinues to apply to pre-repeal facts for most purposes as if it were still goodlaw”).36The 2002 Pension Partner Amendment Regulation amended the SpecialForces Pension Plan. The Special Forces Pension Plan, as enacted in 1993,bestowed an interest on a “spouse” of a police officer participant. The definitionof “spouse” in the Special Forces Pension Plan, effective May 28, 2002, thedate before the 2002 Pension Partner Amendment Regulation came into force,also allowed a participant to have only one spouse. It used the same criterion —“at the relevant time”.


plans. This order has the features first adopted in McAlister v. McAlister(1982), [1983] 2 W.W.R. 8 (Alta. Q.B.) — it identifies the spouse’s in-terest in the benefits the plan participant may receive in the future underthe Special Forces Pension Plan and directs the plan participant to holdthe spouse’s share of future benefits — pension payments, for exam-ple — in trust and to take the steps necessary to ensure that the spouse’sinterests are protected.

2. A Police Officer Participant Who Is Entitled to a Pension May HaveOnly One Pension Partner

68 This Court must base its decision on the legal framework which ex-isted as of June 23, 2003, the day before the 2003 Matrimonial Relation-ships Breakdown Regulation came into force — which includes the 2002Pension Partner Amendment Regulation — to ascertain whether Mr. Mc-Morran and other pensioners whose pensions are affected by a matrimo-nial property order made before June 24, 2003 may have more than onepension partner. It is the legal framework within which this statutory in-terpretation issue arises.

69 A court skilled in statutory interpretation gives a contested passage aninterpretation which “best ensures the attainment of its objects”37 and ameaning its words may reasonably bear. An interpretation faithful tothese complementary principles reduces the risk that two equally unde-sirable consequences may occur. A court must guard against attachingundue weight to the purpose which accounts for the text’s existence lestthe court adopt a meaning which a reader competent in the use of thelanguage could not reasonably attach to it.38 While the ascertainment of

37Interpretation Act, R.S.A. 2000, c. I-8, s. 10 (“An enactment shall be inter-preted as being remedial, and shall be given a fair, large and liberal constructionand interpretation that best ensures the attainment of its objects”); R. v. Big MDrug Mart Ltd., [1985] 1 S.C.R. 295 (S.C.C.), 331 (“all legislation is animatedby an object the legislature intends to achieve”) & Montreal (Ville) v. 2952-1366Quebec inc., [2005] 3 S.C.R. 141 (S.C.C.), 156 (“Identifying the purpose of aregulation can be helpful in determining the meaning of a given word orexpression”).38A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 31(2012) (“A fundamental rule of textual interpretation is that neither a word nor asentence may be given a meaning that it cannot bear”) & F. Frankfurter, “SomeReflections on the Reading of Statutes”, 47 Colum. L. Rev. 527, 543 (1947)


an enactment’s purpose is an essential part of the statutory interpretationprocess, this phase of the inquiry process is misused if it promotes sup-port for a meaning the words cannot reasonably bear. Justice Frankfurter,writing extra-judicially, captured this concern in the following passage:“In matters of statutory construction, it makes a great deal of differencewhether you start with an answer or with a problem”. “Some Reflectionson the Reading of Statutes”, 47 Colum. L. Rev. 527, 529 (1947). As well,failure to be mindful of the purpose may cause a court to select fromseveral permissible meanings one that does not best promote the attain-ment of the text’s object.39

(“violence must not be done to the words chosen by the legislature”). See Henryv. Saskatchewan (Workers’ Compensation Board) (1999), 172 D.L.R. (4th) 73(Sask. C.A.), 110 (the dissent lamented the majority’s focus on the purpose ofworkers’ compensation legislation — “To protect workers and their dependentsfrom the hardship of economic loss sustained through injuries suffered by theworker in the cause of his employment”: “It is inconceivable to me ... that thelegislature ... provide[d] coverage for suicides [in its workers’ compensation leg-islation] but drafted this enactment so that only the most perceptive [judges]would recognize their intention”); Prince Albert (City) v. Co-operative HealthCentre (1987), 42 D.L.R. (4th) 706 (Sask. C.A.), 709 (the dissent rejected theassertion that a medical clinic was a hospital: “[Legislation] could say black iswhite for certain purposes and it would be so. However, I do not think it isunreasonable to require the legislators to use clear and unequivocal language ifthey intend to produce a result contrary to that which is the product of reasona-ble expectation”) & Roschen v. Ward, 279 U.S. 337 (U.S. Sup. Ct. 1929), 339(“There is no canon against using common sense in construing laws as sayingwhat they obviously mean”).39Olmstead v. United States, 277 U.S. 438 (U.S. Sup. Ct. 1928), 470 (1928)(Justice Holmes, dissenting from the Court’s opinion that a telephone wiretapintercept is not a search under the Fourth Amendment, observed that “Courts areapt to err by sticking too closely to the words of a law where those words importa policy that goes beyond them”) & Johnson v. Southern Pacific Co. (1904), 196U.S. 1 (U.S. Sup. Ct. 1904) (in holding that a statutory ban against a railroadusing “any car ... not equipped with couplers coupling automatically by impactand which can be uncoupled without necessity of men going between the endsof cars” included locomotives, the Court declared that the contrary conclusion“appears to us to be inconsistent with the plain intention of Congress, to defeatthe object of the legislation, and to be arrived at by an inadmissible narrownessof construction”).


70 A review of the text is a necessary step to glean its purpose.40 This isseldom a challenging task. Problems may arise if a court settles on apurpose which is too abstract and brings into question whether this ab-straction is unfaithful to the text. Abstract formulations, even thosegrounded in the text, may be of minimal use because they provide littleassistance to the court. For example, the determination that a labour rela-tions statute exists to promote collective bargaining by government em-ployees does not assist much in determining whether a worker is em-ployed by government or is an independent contractor. Alberta Union ofProvincial Employees v. Alberta 92 C.L.L.C. 14,390 at 14,392 (“an ab-stract statement of purpose will as a rule be less helpful to the adjudicatorthan one that is specific”). Sometimes legitimate concerns arise if a spe-cific declaration of purpose is unsupported by the text and is used as asubstitute for a careful study of the text itself.41

71 A fair reading of the Special Forces Pension Plan and the otherframework enactments — 2000 Public Sector Pension Plans Act and the1993 Legislative Provisions Regulation — leads to the conclusion thattheir purpose is to provide a plan participant and those persons who havehad or have a conjugal relationship with the plan participant a degree ofincome security after the plan participant retires.

72 Unfortunately, this purpose provides little assistance to a court whichmust interpret comprehensive plan rules that govern the consequences ofrelationship breakdowns. The positions both sides advance recognize, tosome degree, the need to provide income security to spouses of a planparticipant.

73 In the end, the outcome of this appeal turns on the meaning whichmay fairly and reasonably be attributed to the words “pension partner”,within the entire legislative framework. For ease of reference, I set out s.

40Alberta (Minister of Justice) v. Cardinal, 2013 ABQB 407 (Alta. Q.B.), ¶52(“The best source of the goal the legislature pursues is the text itself. A part ofthe legislation devoted to the legislative purpose is usually an indisputablemarker of the true intention of the legislature”).41A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 57(2012) (“To find such a purpose in the absence of a clear indication in the text isto provide the judge’s answer rather than the text’s answer to the question”).


2(1)(dd.1) of the Special Forces Pension Plan which was in force onJune 23, 2003:


(i) a person who, at the relevant time, was married to aparticipant or former participant and

(A) was not judicially, or otherwise separated fromhim or her, or

(B) if so separated, was wholly or substantially de-pendent on him or her

(ii) if there is no person to whom subclause (i) applies, aperson who, as at and up to the relevant time, hadlived with the participant in a conjugal relationship

(A) for a continuous period of at least 3 years or

(B) of some permanence, if there is a child of therelationship by birth or adoption

and was, during that period or that relationship, as thecase may be, held out by the participant or former par-ticipant in the community in which they lived as beingin that conjugal relationship, or

(iii) if there is no person to whom subclause (i) or (ii) ap-plies, a person who was married to but separated fromthe participant or former participant and not wholly orsubstantially dependent on him or her at the relevanttime;

74 Before commencing a detailed assessment of this provision, it is nec-essary to comment generally on s. 26(3) of the Interpretation Act: “In anenactment, words in the singular include the plural and words in the plu-ral include the singular”. Justice Graesser relied on this provision to con-clude that a pensioner may have more than one pension partner. As Jus-tice Graesser expressly acknowledged,42 s 26(3) is deprived of its force,on account of s. 3(2) of the Interpretation Act, if “a contrary intentionappears in ... the enactment”.

75 A reference to the singular does not necessarily exclude the plural. A.Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 130(2012) (“The rule is simply a matter of common sense and everyday lin-guistic experience”). This proposition is easy to illustrate. Suppose that a

422013 ABQB 610 (Alta. Q.B.), ¶41.


collective agreement granted an employee bereavement leave “in theevent of a death in the immediate family”. If both of an employee’s par-ents died at the same time in an automobile accident, would an adjudica-tor conclude that the employee had no right to bereavement leave be-cause there were two deaths? Not likely.43 Or suppose that an employerpromised not to introduce technological change if it resulted in the layoffof a permanent employee. Could an employer legitimately argue that thisprovision does not preclude it from introducing technological change ifthe consequence was that ten permanent bargaining unit employeeswould lose their jobs? Probably not.

76 But sometimes a word importing the singular does preclude the plu-ral. Here are a couple of examples. Suppose that an arbitration provisionin a commercial agreement authorizes each party to appoint a person toan arbitration board and the appointed persons to select a third arbitrationboard member. In this case, each party may only appoint one arbitratorand the appointees may select only a single additional board member. Orsuppose that a statute allows the executive branch of government to ap-point a chief justice of a designated court. There can only be one chiefjustice.

77 Frequently, a reference to the plural includes the singular. Sometimesthe opposite is the case. “[T]he proposition that many includes one is notas logically inevitable as the proposition that one includes multiple ones,so its application is much more subject to context and to contradiction byother canons”. A. Scalia & B. Garner, Reading Law: The Interpretationof Legal Text 130 (2012). See 1 W. Blackstone, Commentaries on theLaws of England 88 (1765-69) (“a statute ... having enacted that thosewho are convicted of stealing horses should not have the benefit ofclergy, the judges conceived that this did not extend to him that shouldsteal but one horse”). Suppose that a statute provides that the executivebranch of government must appoint two associate chief justices if thenumber of judges in at least two judicial centers exceeds fifty judges.The text makes it clear that the legislators concluded that when the judi-cial complement reached a certain level, two, not one, administrativejudges were required.

43Why would an employer insist that bereavement not be available if two par-ents died in a common accident? An employee, most likely, would be awayfrom work the same amount of time whether he or she was mourning the deathof one or two parents.


78 An adjudicator must read the entire text to ascertain the meaningwhich is most consistent with the attainment of the objective embodiedin the text, and whether the text reveals particular attention to the use ofsingular and plural forms and be aware of any relevant common law orother principles. Sealy (Western) Ltd. v. U.I.U., Local 34 (1985), 20L.A.C. (3d) 45 (Alta. Arb.), 47-51 (Wakeling 1985) (a collective agree-ment provision that required “the least senior employee” to work over-time did not preclude an employer operating a production line from or-dering more than one of the least junior employees to work overtime).The subject matter and context are of utmost importance. F. Frankfurter,“Some Reflections on the Reading of Statutes”, 47 Colum. L. Rev. 527,537-38 (1947).

79 I conclude that the Special Forces Pension Plan allows a pensioner tohave only one pension partner.44

80 Section 2(1)(dd.1) of the Special Forces Pension Plan, the definitionof “pension partner” introduced by the 2002 Pension Partner Regulation,unequivocally reveals that a pensioner may have only one pension part-ner.45 It stipulates that this person has easily identifiable criteria at a veryspecific time — “at the relevant time”. As of June 23, 2003, a person didnot qualify as a pension partner unless, at the specific time, he or she wasmarried to a plan participant who became a pensioner and lived with orwas dependent on the pensioner, lived with the pensioner in a conjugalrelationship or was married to the pensioner even though no longer livingwith or dependent upon the pensioner.

81 There was no disagreement as to what “at the relevant time” means.46

Both counsel informed us that “at the relevant time” means when the“pension goes into pay”.47 I assume that Mr. McMorran’s pension went

44A. Kaplan & M. Frazer, Pension Law 15 (2d e. 2013) (“Pension plans createdby statute are interpreted using normal principles of statutory interpretation”).45Carrigan v. Quinn (2012), 112 O.R. (3d) 161 (Ont. C.A.) (determiningwhether a plan member’s legally married spouse or his common-law spouse areentitled to a pre-retirement death benefit is “entirely an exercise in statutory in-terpretation that begins with the statutory definition of ‘spouse’”).46Surprisingly, this important phrase is not a defined term in the Special ForcesPension Plan.47A careful review of the Special Forces Pension Plan in force as of June 23,2003 supports this interpretation.


“into pay” when Mr. McMorran, having terminated his employment withthe Edmonton Police Service, became eligible to receive a pension andelected to receive a pension.48 The terminology in the Special ForcesPension Plan which best captures this concept may be “pension com-mencement”. This term, according to s. 2(1)(dd) of the Special ForcesPension Plan, means “the time established by section 81 [for servicebefore 1992] or 94 [for service after 1991] that constitutes the effectivedate for the commencement of the relevant pension”.49 Section 81(1)provides that “[w]here a person becomes entitled to receive a pensionunder section 36 and does not postpone commencement of that pension,the effective date of the commencement of the pension is the day aftertermination”. Section 94 says the same thing for service after 1991.

82 A pension only goes into pay once. This is so whether a plan partici-pant dies before he or she is eligible to receive a pension and a deathbenefit is payable to a person other than the plan participant or the pen-sioner has retired and is eligible to receive a pension and elects to receivea pension.

83 Other provisions in the Special Forces Pension Plan provide no rea-son whatsoever to doubt the correctness of my conclusion based on thedefinition of “pension partner” in the Special Forces Pension Plan. Justthe opposite is the case. Some other provisions reinforce the conclusionbased on the definition of “pension partner”. Part 5 of the Special ForcesPension Plan, in the form it was on June 23, 2003, expressly declaresthat a pensioner is entitled to select one form of pension. This is the ef-fect of ss. 36(2), 38(1) and 49 of the Special Forces Pension Plan. Theexistence of one form of pension confirms the soundness of the conclu-sion that there can only be one pension partner. The two concepts areinextricably linked.

84 I disagree with Justice Graesser’s conclusion that “a purposive inter-pretation allows the plural and is not contrary to any express provision”.2013 ABQB 610 (Alta. Q.B.), ¶67. First, the chambers judge’s determi-nation that “[t]he purpose of allowing pension plan members to name apension partner and have joint life pensions is to enable the member to

48Special Forces Pension Plan, ss. 2(1)(rr), 36(1), 47, 81 & 94.49This is the language of the definition in force as of June 23, 2003. It wasintroduced by the Special Forces Pension Plan, Alta. Reg. 369/93 and has notbeen amended.


protect his spouse” is not very helpful.50 While it is agreed that the pen-sion partner concept discharges this function, this fact provides no assis-tance in determining whether more than one spouse may be a pensionpartner. The interpretation favoured by the Alberta Pension Services Cor-poration does not prohibit a pensioner in Mr. McMorran’s position fromtaking steps to provide a second wife with some income following hisdeath. Second, there are express provisions in the Special Forces PensionPlan that unequivocally declare that a pensioner may have only one pen-sion partner. This is the effect of the definition of “pension partner” inthe 2002 Pension Partner Amendment Regulation. The Special ForcesPension Plan is built on the assumption that a pensioner may have onlyone pension partner when the pension goes into pay. The life span of thepension partner may determine the temporal obligation of the plan tomake payments to any nonpensioner beneficiary. Second, the provisionin the Interpretation Act, R.S.A. 2000, c. I-8, s. 26(3) which states that“words in the singular include the plural” is subject to the general re-minder in s. 3(1) of the Interpretation Act that a contrary intention mayappear in the enactment. For the reasons set out above, the definition of“pension partner” in the 2002 Pension Partner Amendment Regulationconstitutes an unequivocal contrary statement.

85 Not only does the language of the Special Forces Pension Plan sup-port this Court’s interpretation, so does the practical operation of the Spe-cial Forces Pension Plan require that there may be no more than onepension partner.

86 Both counsel confirmed that the interpretation favored by the AlbertaPension Services Corporation means that the fact Ms. McMorran, thefirst wife, is Mr. McMorran’s pension partner, has very important conse-quences for both the first and second wives in several scenarios.

87 If the pensioner, Mr. McMorran, predeceases both his first and sec-ond wives, pension payments will continue to each woman so long as thefirst wife is alive. Each of the first and second wives will receive theirproportionate share of the payment stream as determined by court orders.

88 This means that if the first wife predeceases the second wife, the sec-ond wife’s entitlement to receive any benefit will end.51 This represents

502013 ABQB 610 (Alta. Q.B.), ¶58.51Suppose that pensioner X and A, X’s first wife, die shortly after X retires.Section 36(2) of the Special Forces Pension Plan states that “[a] pension paya-


a significant detriment to the second wife. This adverse consequence willbe avoided only if the second wife predeceases the first wife.

89 The position advanced by Mr. Pollock for the second wife means thatthe entitlement of both the first and second wives to receive benefitsunder the pension plan if Mr. McMorran predeceases them is affectedonly by the duration of their lives. This result completely defeats the pur-pose of having a pension partner. The life of the pension partner signalsthe end of the pension plan’s obligation to pay any benefits earned by thedeceased former participant.52

3. A Determination That Mr. McMorran May Have Only One PensionPartner Is Not Unfair

90 The second wife cannot legitimately complain53 that her interestsmay be adversely affected if both Mr. McMorran and Ms. McMorran

ble under subsection (1) is payable for the life of the pensioner or the term of 5years, whichever is longer”. B, X’s second wife, will not be entitled to receiveany benefit because both X and A are dead. But X’s estate will receive the pen-sion payments until the end of the five year period. Assuming that B is a benefi-ciary, in some manner, under X’s estate, she may derive an advantage from thepension payouts to X’s estate.52Section 39(2) of the Special Forces Pension Plan reads as follows: “Where analternative form of pension is selected under subsection (1), the pension is anamount that is the actuarial equivalent of the pension in the form of a normalpension”. The size of the pie is determined when the pension “goes into pay”and a single pension partner is identified. The life span of the single pensionpartner may, in most scenarios, be the determining factor for pie size. Allowinga pensioner to name two pension partners is totally inconsistent with this featureof a pension under the Special Forces Pension Plan. Section 43(3) of the SpecialForces Pension Plan also supports this conclusion: “When a pension that waspostponed becomes payable, it is to be in the form of a normal pension and inthe amount that is the actuarial equivalent of the normal pension that the personwould have been entitled to receive had the postponement not been made”.53Rawlins v. Rawlins, 2005 ABQB 503 (Alta. Q.B.), ¶13 (“Mrs. Rawlins has apriority to the benefits of the Pension Plan which cannot be supplanted by theinterests of a subsequent spouse”); Ontario Teachers’ Pension Plan Board v.Ontario (Superintendent of Financial Services) (2004), 236 D.L.R. (4th) 514(Ont. C.A.), 531 (“a subsequent spouse who marries after a valid assignment ofa ... [pension] benefit to a former spouse should not reasonably expect to receivethe already-assigned interest”) & Anderson v. Wilson, 289 U.S. 20 (U.S. Sup. Ct.


predecease her. She married Mr. McMorran in 2005. The legislative re-gime and the matrimonial property order which produce this result werein effect at that time and have not changed since then. An inquiry of theadministrator would have alerted her to the risks that she would endure ifa court subsequently bestowed on Ms. McMorran the status of Mr. Mc-Morran’s pension partner, an outcome that was almost certain to occur.

91 The second wife’s interests in benefits payable under the SpecialForces Pension Plan is determined not only by facts unique to Mr. Mc-Morran — his income while discharging his duties as a police officeremployed by the Edmonton Police Service and a plan participant,54 theduration of his service and the payment option he selects — but alsothose unique to her husband’s pension partner — the life span of the firstwife. This is not unfair. It reflects the structure of a pension, as of June23, 2003, under the Special Forces Pension Plan and the 2003 Matrimo-nial Relationship Breakdown Regulation, as affected by the orders ofJustices Moen and Graesser.55

1933), 27 (1933) (“We do not pause to consider whether a statute differentlyconceived and framed would yield results more consistent with fairness and rea-son. We take the statute as we find it”).54A court could not order an enhanced payout scheme for the second wife justbecause she might need more money to help her cope with a foreseeable incomeshortfall. Isidore Garon ltee v. Syndicat du bois ouvre de la region de Quebecinc., [2006] 1 S.C.R. 27 (S.C.C.), 41 (“A desire to achieve a favourable outcometo the employees in a particular case cannot dictate which principles apply”);Alberta v. McGeady, 2014 ABQB 104 (Alta. Q.B.), ¶23 (“No ... decision makercan ignore substantive statutory provisions because it believes [it] ... producesunfair results and adopt another norm which it is satisfied produces a more satis-factory result”); W. (J.) v. Alberta (Victims of Crime Financial Benefits Pro-gram), 2013 ABQB 212 (Alta. Q.B.), ¶35 (a “statutory delegate ... cannot ignore... legislative direction”); Hamilton Street Railway v. A.T.U., Local 107 (2008),243 O.A.C. 51 (Ont. Div. Ct.), 54-55 (an arbitrator cannot alter a dismissalclause by inserting “flagrant” and changing the criterion) & I.A.M. & A.W.,Local 1579 v. L-3 Communications Spar Aerospace Ltd. (2010), 201 L.A.C.(4th) 85 (Can. Arb.), 153 (Wakeling 2010) (an adjudicator cannot ignore legisla-tion and a collective agreement to assist workers who lost their jobs on accountof a plant closure and received no termination or severance pay).55See May v. Saskatchewan, [2013] 7 W.W.R. 656 (Sask. C.A.), ¶35 (“whenentitlements are specifically and precisely defined in legislation, an invitation toexpand those entitlements by way of judicial fiat is difficult to accept”).


4. Two Pension Partners May Increase Costs92 Justice Graesser stated that there is “no mischief in requiring the plan

to pay Ms. McMorran her share of Mr. McMorran’s pension for her life-time, while requiring the plan to pay Mr. McMorran’s new wife her shareof Mr. McMorran’s pension for her lifetime”. I disagree. This conclusionfails to appreciate that the proposed pension structure — two pensionpartners and two different payout schemes — introduce the potential toincrease pension payouts. Suppose that A, pensioner X’s first wife, istwo years younger than X and that B, X’s second wife, is thirty yearsyounger than X. In most scenarios, assuming that A and B are entitled toreceive payments following X’s death so long as they are alive and thatB outlives A, the extra burden to the Special Forces Pension Plan fund isobvious.

VII. Conclusion93 The appeal is allowed. Paragraph 5 is deleted from the order under

appeal.94 Each party is responsible for its own costs.

Appeal allowed.


[Indexed as: Campbell v. Hine]

Brittinea Campbell, (Respondent) Appellant and Jade SkylarHine and Kathleen Gail Hine, (Petitioner) Respondent

Saskatchewan Court of Appeal

Docket: CACV2567

2014 SKCA 132

Jackson, Klebuc, Ryan-Froslie JJ.A.



Written reasons: December 16, 2014

Family law –––– Custody and access — Enforcement of order –––– Partieshad one child and at no time had resided together — In proceedings related tocustody, parents reached settlement whereby parties had joint custody and pri-mary residence was with mother — Father was concerned with child’s absencesfrom school, and settlement included clause that if absences continued primaryresidence would switch to father — Father took child to his residence withoutinforming mother, who took child back — Father’s application to change pri-mary residence of child was granted — Mother appealed — Appeal allowed —Trial judge erred in relying too heavily on enforcement provisions of consentjudgment to trigger fundamental alteration of parenting regime — Trial judgedid not properly consider best interests of child — Trial judge relied on datedcustody/access assessment which was not properly admitted as evidence —Conditions imposed including imposing terms of consent agreement relating toschool attendance and education of child.

Cases considered by Ryan-Froslie J.A.:

Van de Perre v. Edwards (2001), 2001 SCC 60, 19 R.F.L. (5th) 396, [2001] 11W.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.) 255W.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


Children’s Law Act, 1997, S.S. 1997, c. C-8.2Generally — referred to

Campbell v. Hine Ryan-Froslie J.A. 63

s. 8 — considered

APPEAL by mother from judgment granting father’s application to alter custodyorder.

Gregory M. Kuse, for AppellantMary Lou Senko, for Respondent

Ryan-Froslie J.A.:

1 Brittinea Campbell appeals a custody order made in Chambers whichchanged her daughter’s primary residence from Ms. Campbell’s home tothe home of the child’s father, Jade Hine. This Court gave an oral deci-sion allowing the appeal. What follows are our written reasons.

2 Ms. Campbell and Mr. Hine never lived together. They had a datingrelationship which resulted in the birth of a child, Kylah born October29, 2003. Kylah, who is 11 years of age, has always resided with hermother at Prince Albert, Saskatchewan. Mr. Hine resides at ReginaBeach, which is a three and a half hour drive from Prince Albert. It isuncontroverted that Kylah had very little contact with her father duringthe first two years of her life. It is unclear how much time he spent withher from 2005 until 2008. In December 2008 Mr. Hine filed a petitionpursuant to The Children’s Law Act, 1997, SS 1997, c 8.2, requestingaccess to Kylah.

3 On May 12, 2009 an interim order was granted giving him accessevery other weekend from Friday to Sunday at Regina Beach, as well asChristmas and Easter access and one week during the summer. Mr.Hine’s access was problematic and other interim orders followed, but forthe most part, the access regime created by the May 12, 2009 order re-mained in place.

4 On October 26, 2010, a custody/access assessment was ordered. Thatassessment was completed and a report was rendered on June 10, 2011.The assessment set out two options with respect to a parenting regime.Option one provided Kylah’s primary residence would remain with Ms.Campbell, while option two provided her primary residence would bewith Mr. Hine. There were positive and negative implications associatedwith both options.

5 In March 2012, Mr. Hine amended his petition to include a requestfor joint custody, with Kylah’s primary residence to be with him. Trialdates were set for September 2012.


6 On the eve of trial, the parties entered into a written agreement set-tling the issue of Kylah’s custody. The agreement provided that Ms.Campbell and Mr. Hine would have joint custody of Kylah, with Kylah’sprimary residence to be with Ms. Campbell. Mr. Hine was to have accessto Kylah every second weekend from Friday at 6:00 p.m. to Sunday at6:00 p.m., to be extended by one day when the weekend was a statutoryholiday. He was also to receive one-half of the Christmas, Easter andFebruary school breaks and four weeks during the summer (two consecu-tive weeks and two non-consecutive weeks). An option for additional ac-cess was available dependent upon the agreement of both Ms. Campbelland Mr. Hine.

7 From the material filed by Ms. Campbell and Mr. Hine it is obviousthat when the agreement was entered into, Mr. Hine was deeply con-cerned by the fact Kylah was absent from and/or late for school a signifi-cant amount of time. According to Mr. Hine, Kylah was absent and/orlate for school prior to the agreement as follows:

Kindergarten 2008/09 — absent 47 days and late 11 times;

Grade 1 2009/2010 — absent 51 days and late 40 times;

Grade 2 2010/2011 — absent 51.5 days and late 27 times;

Grade 3 2011/2012 — absent 50 days and late 14 times.

Mr. Hine was also concerned that he actually receive the access agreedupon. To deal with these concerns, the agreement provided for compen-satory access and a decrease in child support if access visits were missed.It also provided, at para. 4, that Kylah’s attendance at school was of “ut-most importance” and that she was to attend school each and every dayunless ill. Illness was to be verified by either a physician’s note, or if theillness did not require attendance at a physician’s office, then by Mr.Hine consenting to the absence. If Kylah was absent from school morethan once without “authorization”, then her primary residence would beautomatically changed from Ms. Campbell’s home to Mr. Hine’s home.

8 The terms of the agreement were incorporated into a consent judg-ment dated September 17, 2012.

9 Kylah’s absences from school again became problematic during the2013/2014 school year and eventually led Mr. Hine in May 2014 to ap-ply to enforce and/or vary the consent judgment, so that Kylah’s primaryresidence would be with him. Some aspects of the circumstances leadingup to that particular application are in dispute.


10 Based on the school calendar attached as Exhibit H to Mr. Hines’May 9, 2014 affidavit, Kylah was absent from school during the2013/2014 school year as follows:

Term 1 (September-October) 2 days

Term 2 (November-February) 15 days

Term 3 (March to April 4, 2014) 8 days

Total days absent from school: 27 days

According to Mr. Hine, 12 of those days were “unauthorized”, while Ms.Campbell attests the absences were due to illness.

11 As a result of Kylah’s absences from school Mr. Hine felt Ms. Camp-bell had contravened the agreement and the September 17, 2012 consentorder. As a result, he determined Kylah’s primary residence should bechanged to his home.

12 On April 19, 2014, Mr. Hine picked Kylah up for his Easter accesswith the intention she would not be returned to Ms. Campbell’s primarycare. He did not mention Kylah’s change of residence to Ms. Campbellor discuss it with her prior to him informing Kylah of the change. Ms.Campbell received notification of Mr. Hine’s plan through text messagesfrom Kylah.

13 There is some dispute as to exactly what Mr. Hine told Kylah and herreaction to it. It is clear however, that Kylah was distraught by the turn ofevents as was Ms. Campbell. Ms. Campbell and her mother travelled toRegina under the pretext of wanting to give Kylah “hugs and kisses” andtell her everything would be all right. They were able to get Kylah intotheir car and to return to Prince Albert with her. Thereafter, Ms. Camp-bell refused to allow Mr. Hine any contact with Kylah. Fearing Mr. Hinewould take Kylah from school, Ms. Campbell kept her home and insteadsent her to Sylvan Learning Centre, which up to that point had been in-volved with Kylah due to problems she was having with her schoolwork.

14 As indicated earlier, on May 15, 2014 Mr. Hine initiated his applica-tion to enforce and/or vary the September 17, 2012 consent judgment.The Chambers judge, who heard the application in July 2014, relied onthe June 10, 2011 custody/access report to find it was in Kylah’s bestinterest that her residence be changed from that of her mother’s home toher father’s home effective August 30, 2014. Ms. Campbell was to haveaccess alternating weekends from Friday to Sunday (extended by one dayto include statutory holidays) and half of the school vacations, including


summer, Christmas, Easter and the February break. The Chambers judgemade a number of ancillary orders/recommendations, including an orderthat Kylah attend counselling. He also ordered an updated custody/accessassessment upon receipt of which either Ms. Campbell or Mr. Hine couldreturn the matter to the Chambers list.

15 Ms. Campbell appealed the Chambers judge’s decision arguing hefailed to consider Kylah’s best interests. Her appeal “stayed” the Cham-bers judge’s order so that Kylah remained in her care. Mr. Hine thenapplied to this Court to lift the stay. On September 24, 2014 Justice Lane,in Chambers, ordered Kylah’s primary residence would continue withMs. Campbell pending the hearing of the appeal. He specified access toMr. Hine consisting of every second weekend from Friday to Sundaywith the exchange (when she travelled to Regina Beach) to occur at Wa-trous. He also provided an enforcement provision and ordered the stay belifted with respect to the updated custody/access assessment so it couldbe completed.

16 The order from which Ms. Campbell appeals relates to custody and isdiscretionary in nature. While the standard of review with respect to suchorders is highly deferential, an appellate court will intervene where therehas been a material error, a serious misapprehension of the evidence, oran error in law (see: Van de Perre v. Edwards, 2001 SCC 60 (S.C.C.) atpara 11, [2001] 2 S.C.R. 1014 (S.C.C.)).

17 In this case, the Chambers judge erred in three respects. First, he re-lied too heavily on the enforcement provisions of the consent judgmentto trigger a fundamental alteration of Kylah’s parenting regime, whichincluded both changing her primary parent and relocating her to anothercentre. Second, he made those changes without appropriate evidence ofKylah’s best interests. Third, he relied on a dated custody/access assess-ment which was not properly admitted as evidence before him.

18 With respect to the first error, the consent judgment while agreed toby the parties, contained provisions that should not have been endorsedby a court. In particular an “automatic” change of custody, primary resi-dence or access, if a parent does or fails to do certain things, is not appro-priate. The problem with such provisions is that they do not take intoaccount the best interests of the child at the time an alleged breach oc-curs; nor do they contemplate any “reasonable excuse” for the breach. Itis the best interests of the child that must govern custody and access mat-ters. Those interests should never be sacrificed in the interests of expedi-ence or enforcement. Provisions of a consent judgment, such as the one


before this Court, can lead parents to engage in self-help measures, suchas refusing to return children following access visits, which is exactlywhat occurred in this case. As a result of what Mr. Hine perceived as“unauthorized” absences from school, he kept Kylah in his care therebyeffectively changing her primary residence. Ms. Campbell’s responsewas to “rescue” her daughter by spiriting her away. None of this was inKylah’s best interests.

19 With respect to the second error, the evidence before the Chambersjudge was solely in the form of affidavits and accordingly, he had no wayto resolve the contradictory evidence on critical issues including:whether Kylah’s absences from school following the making of the con-sent judgment were “authorized” or acceptable; the state of Kylah’sphysical and/or mental health, particularly in light of Ms. Campbell’s ev-idence (denied by Mr. Hine) that Kylah had contemplated suicide whenin her father’s care, after being told of the change of residence; and theeffect a change in Kylah’s primary residence might have upon her.

20 To determine what was in Kylah’s best interests, the Chambers judgeneeded to evaluate the considerations set out in s. 8 of The Children’sLaw Act, 1997, namely: her physical, psychological, social and economicneeds, the capacity of both her parents to act as legal custodians, thehome environment provided by each parent, the plans of both Ms. Camp-bell and Mr. Hine for Kylah’s future and Kylah’s wishes to the extentthose were considered appropriate. Sufficient evidence relating to thoseconsiderations was not before the Chambers judge.

21 Finally, in making his decision, the Chambers judge relied on a cus-tody/access assessment that was completed in June 2011 — three yearsprior to the Chambers application. While the assessor may very wellhave been accurate in her conclusions, it was not appropriate to rely onthat assessment without allowing the parties an opportunity to cross-ex-amine or challenge its contents.

22 Ms. Campbell’s appeal is allowed. The July 10, 2014 order is setaside except for the provision ordering an updated custody/accessassessment.

23 It is important that custody and access matters proceed as quickly aspossible to a final determination. Rather than returning this matter to theChambers judge, this Court finds itself in the position, after reviewing allof the material, of being able to make the order the Chambers judge


should have made. Accordingly, there shall be an interim order varyingthe September 17, 2012 consent judgment as follows:

1. Mr. Hine shall have specified access to Kylah::

(i) Friday, December 5, 2014 at 6:00 p.m. to Sunday,December 7, 2014 at 6:00 p.m.;

(ii) Friday, December 19, 2014 at 6:00 p.m. to Sunday,December 21, 2014 at 6:00 p.m.;

(iii) Saturday, December 27, 2014 at 4:00 p.m. to Sun-day, January 4, 2015 at 4:00 p.m.;

(iv) Commencing Friday, January 16, 2015, every sec-ond weekend from Friday at 6:00 to Sunday at 6:00p.m. to be extended to Thursday at 6:00 p.m. orMonday at 6:00 p.m. if Kylah has no school on theFriday or the Monday;

(v) One-half of the Easter and February school breaks asset out in the consent judgment;

(vi) For the 2015 summer school vacation, Mr. Hineshall have Kylah from Friday, June 26, 2015 at 6:00p.m. to Sunday, July 12, 2015 at 6:00 p.m. and fromFriday, August 1, 2015 at 6:00 p.m. to Sunday, Au-gust 16, 2015 at 6:00 p.m.;

(vii) If this matter is not resolved by the end of August2015, Mr. Hine’s regular weekend access shallrecommence with the Labour Day weekend beingFriday, September 4, 2015;

2. Exchanges for access visits shall occur at Watrous, Sas-katchewan or such other place as mutually agreed in writ-ing by Ms. Campbell and Mr. Hine.

3. Neither Ms. Campbell, nor her mother Tania Campbell,shall contact Kylah while she is in her father’s care.

4. Mr. Hine shall ensure that Kylah contacts her mother bytelephone once during weekend access visits and twice dur-ing any seven day access period at the number provided byMs. Campbell’s counsel to this Court.

5. Ms. Campbell shall ensure that Kylah phones her fatherevery Sunday evening (other than the Sundays she is in herfather’s care) between the hours of 7:00 p.m. and 10:00


p.m. at the number provided by Mr. Hine’s legal counsel tothis Court.

6. If Mr. Hine is denied parenting time, he shall be entitled toenforcement of this order and a sheriff or peace officer mayenter and search any place where they have reasonablegrounds to believe Kylah may be. They are entitled to doall things reasonably necessary to locate, apprehend and de-liver Kylah to her father, Jade Skylar Hine for the purposeof exercising his access.

7. Neither Ms. Campbell, nor Mr. Hine shall discuss the issueof Kylah’s custody or the court action with her, and theyshall ensure that no one else does so in their presence.

8. Kylah shall continue her counselling with Ms. Sherwin-Rohler. Ms. Campbell and Mr. Hine are to be included inthose counselling sessions in such manner as the counsellordeems necessary. Ms. Campbell is to arrange service of acopy of this judgment on Ms. Sherwin-Rohler within sevendays and file proof of service with the Court of Queen’sBench.

9. Kylah shall continue to see Dr. Denis as needed.

10. Ms. Campbell is to advise Mr. Hine of all medical andcounselling appointments Kylah attends within seven daysof her attending.

12. Mr. Hine shall be entitled to receive information from Ky-lah’s counsellor and medical practitioners so long as disclo-sure of such information does not breach Kylah’s right toconfidentiality.

13. Should Ms. Campbell attempt to thwart or undermine theterms of this order, Mr. Hine may apply to a judge of theCourt of Queen’s Bench in Chambers for an enforcementorder on three days’ notice.

14. Kylah’s attendance at school and the completion of home-work on a regular and consistent basis is of the utmost im-portance. Accordingly, the terms of the consent judgmentwith respect to those issues shall continue in full force andeffect except paragraph 12.

15. Ms. Campbell and Mr. Hine are to co-operate fully with thecustody/access assessor. If there are any problems with re-


spect to the completion of the updated report, the assessorshall notify the Registrar of the Court of Queen’s Benchwho will ensure the matter is brought to the attention of ajudge of that Court.

16. Once the updated custody/access assessment is received,this matter is to be set for an expedited viva voce hearing.No pre-trial settlement conference shall be held unless bothparties consent or a judge of the Court of Queen’s Bench soorders.

17. With the consent of Ms. Campbell and Mr. Hine, theQueen’s Bench Family Law file shall be transferred fromthe Judicial Centre of Prince Albert to the Judicial Centreof Saskatoon (Family Law Division).

24 Other than as varied by this order, the September 17, 2012 consentjudgment remains in full force and effect.

25 There shall be no order as to costs.

Appeal allowed.

W. (A.C.) v. P. (T.M.) 71

[Indexed as: W. (A.C.) v. P. (T.M.)]

A.C.W, Appellant and T.M.P., Respondent

Ontario Superior Court of Justice (Divisional Court)

Docket: Hamilton DC-14-0543

2014 ONSC 6275

Matlow, Mew, Myers JJ.

Heard: October 3, 2014

Judgment: December 22, 2014*

Family law –––– Custody and access — Variation of custody order — Prac-tice and procedure — Appeals –––– Parties resided in Grimsby, Ontario andhad one child, who lived with mother after parties separated in 2008 — In No-vember 2009, order was made granting parties joint custody of child; primaryresidence was with mother, and father was to have extensive access — In 2010,mother started relationship with H, who lived in Ajax, Ontario — H had jointcustody of two children from his previous marriage, and custody arrangementsprecluded him from moving out of Ajax area — In August 2013, mother ob-tained higher-paying job in Scarborough, however she testified that if court didnot allow child to move to Ajax, she would find other employment and remainin Grimsby — Trial judge dismissed mother’s application to change primaryresidence of child to Ajax and held that child’s primary residence should be inGrimsby with father, who had not sought this outcome — Mother appealed trialjudge’s decision — Appeal allowed — There were reasonable grounds to be-lieve judge had ignored, misapprehended or misdirected himself with respect torelevant evidence — Trial judge relied on evidence of child’s paternal aunt, whohad never in fact testified — Moreover, trial judge did not canvass option ofdeclining mother’s request to move child to Ajax, but directing that child con-tinue to live with mother in Grimsby — Even if these two material errors did notjustify appellate interference, cumulative effect of judge’s many errors, togetherwith lopsided weighing of evidence leading to conclusion father did not request,undermined confidence that trial judge had considered all evidence.

Cases considered by Mew J.:

Berry v. Berry (2011), 2011 ONCA 705, 2011 CarswellOnt 12190, 285 O.A.C.366, 7 R.F.L. (7th) 1, 343 D.L.R. (4th) 501, [2011] O.J. No. 5006 (Ont.C.A.) — considered

*Corrigenda issued by the court on December 23, 2014 and January 20, 2015respectively have been incorporated herein.


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

Copeland v. Perreault (2007), 2007 CarswellOnt 3043, 2007 ONCJ 217, [2007]O.J. No. 1889 (Ont. C.J.) — considered

Deblois v. Lavigne (2012), 27 R.F.L. (7th) 427, 2012 ONSC 3949, 2012 Cars-wellOnt 9707 (Ont. S.C.J.) — referred to

Gordon v. Goertz (1996), 1996 CarswellSask 199, [1996] 5 W.W.R. 457, 19R.F.L. (4th) 177, 196 N.R. 321, 134 D.L.R. (4th) 321, 141 Sask. R. 241, 114W.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

Jones v. Jones (2014), 2014 ONCA 822, 2014 CarswellOnt 16443 (Ont.C.A.) — considered

Rushinko v. Rushinko (2002), 2002 CarswellOnt 1997, 27 R.F.L. (5th) 173, 161O.A.C. 85, [2002] O.J. No. 2477 (Ont. C.A.) — referred to

Templeman v. Templeman (1990), 1990 CarswellOnt 302, 29 R.F.L. (3d) 71,[1990] O.J. No. 1776 (Ont. Dist. Ct.) — referred to

Van de Perre v. Edwards (2001), 2001 SCC 60, 19 R.F.L. (5th) 396, [2001] 11W.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.) 255W.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.) — considered

Van Mol (Guardian ad litem of) v. Ashmore (1999), 168 D.L.R. (4th) 637, 58B.C.L.R. (3d) 305, (sub nom. Van Mol v. Ashmore) 116 B.C.A.C. 161, (subnom. Van Mol v. Ashmore) 190 W.A.C. 161, 1999 BCCA 6, [1999] 6W.W.R. 501, 44 C.C.L.T. (2d) 228, 1999 CarswellBC 43, [1999] B.C.J. No.31 (B.C. C.A.) — considered

Young v. Young (2003), 223 D.L.R. (4th) 113, 168 O.A.C. 186, 34 R.F.L. (5th)214, 2003 CarswellOnt 63, 63 O.R. (3d) 112, [2003] O.J. No. 67 (Ont.C.A.) — distinguished


Children’s Law Reform Act, R.S.O. 1990, c. C.12s. 24 — considereds. 24(2) — considereds. 29 — referred to

Courts of Justice Act, R.S.O. 1990, c. C.43s. 21.9.1 [en. 1996, c. 25, s. 1(4)] — pursuant to

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)s. 17(5) — considered

W. (A.C.) v. P. (T.M.) Mew J. 73

s. 17(9) — considered

APPEAL by mother from decision of trial judge denying her request to changeprimary residence of child.

Veena Pohani, for AppellantT.M.P., for himself

Mew J.:

1 This appeal, pursuant to section 21.9.1 of the Courts of Justice ActR.S.O. 1990, c. C.43, arises out of a mother’s request to change the pri-mary residence of her daughter, so that mother and daughter may movefrom Grimsby, Ontario, to Ajax, Ontario. The trial judge denied that re-quest and ordered that the child’s primary residence should remain inGrimsby, but with her father. Prior to this order, the child had her pri-mary residence in Grimsby with her mother.

Overview2 The child was born on 26 May 2006. At the time she was born, the

mother (A.C.W.) and the father (T.M.P.) lived with the mother’s parentsat their house in Grimsby. The following year the mother and fathermoved to a house that they had purchased together in Smithville. How-ever, after a year the parents separated and mother and child moved to arented apartment.

3 Both parents have had a close and loving relationship with the childthroughout her life. On 9 November 2009, Quinn J., with the consent ofthe mother and the father, ordered that the mother and the father wouldhave joint custody of the child, with the primary residence at the home ofthe mother. The father was to have extensive access, including Tuesdayand Thursday evenings each week, and alternating weekends. There werealso provisions with respect to access on special occasions.

4 By a notice of motion dated 7 January 2013, the mother applied to thecourt to change the order of Quinn J. to:

1. Permit her to move, with the child, to Ajax;

2. Stop the father’s mid-week access; and

3. Put in place a new residential schedule with the child resid-ing with the mother from Monday to Friday during theschool year, rotating weekends with each parent. Summer


holidays would be split evenly between the parents, withthe child residing with each parent one week at a time.

The mother made a request for an interim order permitting the child tomove with her to Ajax pending the hearing of the motion to change. On 3October 2013, that motion was dismissed, the motions judge noting thatthe matter was set for trial on 25 November 2013, at which time all is-sues would be canvassed and determined by the trial judge.

5 The father opposed the mother’s motion.6 The trial was heard on 25 and 26 November 2013. In reasons for

judgment dated 10 April 2014, the trial judge found that the proposedmove to Ajax was not in the child’s best interests, but that the proposed“even split” arrangement for the summer holidays would be appropriate.He ordered that the child’s residence during the week should be inGrimsby with the father.

7 Counsel for the mother submits that the trial judge made one or morepalpable and overriding errors:

a. He made a number of factual errors which were sufficientlymaterial to render his decision unsound; and

b. Although he correctly identified the criteria for assessing amobility application by a custodial parent as set out inGordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.), he did notproperly weigh the evidence that was before the court orcorrectly apply the law.

8 The mother also advances as a ground of appeal that the trial judgeshould have adjourned the trial when it became apparent that themother’s trial counsel (not her counsel on this appeal) was unpreparedand had multiple conflicts in other courtrooms during the course of thetrial.

Background9 From the time of her parents’ separation until the decision of the trial

judge, the child had always, except for access weekends, lived with hermother (or, in the months immediately before the trial, her maternalgrandparents) in Grimsby.

10 The purchase of the house in which the mother and father lived fromMay 2007 until their separation in June 2008 had been facilitated by themother’s parents who co-signed a loan to fund the down payment. Unfor-tunately, that loan remained outstanding after the relationship dissolved,

W. (A.C.) v. P. (T.M.) Mew J. 75

and after the house was sold. It became the subject of ill feelings betweenthe child’s maternal grandfather and the father.

11 Since the time of their separation, the mother and father have bothbeen involved in all major parenting decisions.

12 The father is Catholic and the mother is Anglican. However, theyagreed that the child would be baptised as a Catholic and, when shestarted school, she was enrolled at a local Catholic school.

13 In 2010, the mother started a relationship with her current partner,I.H. He lives in Ajax and has joint custody of his two children from hisfirst marriage. I.H.’s custody arrangements for his own children precludehim from moving away from the Ajax area.

14 As the relationship between the mother and I.H. developed, themother would take the child to Ajax on some weekends when she had thechild.

15 In December 2011, the mother and I.H. bought a property inGrimsby. The mother and the child lived in the property full time. I.H.and his children spent some weekends in Grimsby and others in Ajax.Although the new house was outside the school district for the child’sschool, she did not change schools.

16 In August 2013, the couple sold the Grimsby house. I.H. had recentlyset up a new business and cash flow pressures made it difficult for him tofund his share of the mortgage payments on the Grimsby house.

17 At around the same time, the mother obtained a job in Scarborough.This new position was with an employer for whom the mother hasworked, at locations closer to Grimsby, since before her separation fromthe father. The new position offered more hours of work, higher pay andbetter prospects.

18 Until the determination of the motion for an order permitting a moveby the child to Ajax, the child moved to her maternal grandparents’ homein Grimsby. If the mother was starting work at 9:00 a.m. in Scarborough,she would often come back to Grimsby the evening before, put the childto bed and then return to sleep overnight in Ajax. On days when she wasnot starting work until 10:00 in the morning, she would stay in Grimsbyand get the child up and ready for school. The child would then be takento school by her grandmother. On Thursdays, one of the father’s accessevenings, the mother worked in Scarborough from 11:00 a.m. until 8:00p.m. This was the routine which was in place at the time of the trial.


19 During the course of giving evidence at trial, the mother said that ifthe court did not allow the child to move to Ajax, she would have to findother employment and remain in Grimsby.

20 The relationship between the father and the child’s maternal grand-parents (the grandfather in particular) has deteriorated over time. On 3October 2013, the day that the mother’s motion for an interim order per-mitting the move was denied, this deterioration reached the point that thematernal grandfather yelled at the father during an access exchange. Thegrandfather acknowledges telling the father that he was no longer wel-come on the grandparents’ property. There were different perspectivesregarding the degree to which the child may have heard the yelling.However, the trial judge found that the child must have been aware of thediscontent the grandfather expressed.

21 Although the father continued to pick the child up and drop her off atthe grandparents’ house after this incident, the relationship between thefather and the maternal grandparents has been a strained one.

22 The father also has a new partner, R.D. They have a son together, thechild’s half-brother, born on 12 March 2013.

23 The father has three siblings living in Grimsby, Stoney Creek andLondon respectively. His parents live in the Grimsby area as does hisgrandmother. All of them feature in the child’s life to varying degrees.

24 The father had not ruled out the possibility that, at the time of theconsent order, either he or the mother would move residence, but said:

... I don’t think either one of us had planned on moving anywhere atall outside of Grimsby or at least within about a 30 kilometre range.

25 In written submissions made after the evidentiary stage of the trial,the father asked that, if the court decided that the child’s primary resi-dence should remain in Grimsby, the court should change the access ar-rangement to rotating weekly access for each parent. More particularly,the father suggested that he have access for the week leading up to hisusual weekend from Monday after school, until dropping her off the fol-lowing Monday morning, and vice versa for the mother.

Applicable Legal Principles in “Mobility” Cases26 A court shall not make an order under that varies an order in respect

of custody or access made by a court in Ontario unless there has been amaterial change in circumstances that affects or is likely to affect the best

W. (A.C.) v. P. (T.M.) Mew J. 77

interests of the child: Children’s Law Reform Act, R.S.O. 1990, c. C.12(“CLRA”), s. 29.

27 Section 24 of the CLRA requires issues of child custody or access tobe determined in accordance with the best interests of the child, de-scribed by subsection (2) in the following terms:

(2) The court shall consider all the child’s needs and circumstances,including,

(a) the love, affection and emotional ties between thechild and,

(i) each person entitled to or claiming custody ofor access to the child,

(ii) other members of the child’s family who re-side with the child, and

(iii) persons involved in the child’s care andupbringing;

(b) the child’s views and preferences, if they can reasona-bly be ascertained;

(c) the length of time the child has lived in a stable homeenvironment;

(d) the ability and willingness of each person applying forcustody of the child to provide the child with guidanceand education, the necessaries of life and any specialneeds of the child;

(e) the plan proposed by each person applying for custodyof or access to the child for the child’s care andupbringing;

(f) the permanence and stability of the family unit withwhich it is proposed that the child will live;

(g) the ability of each person applying for custody of oraccess to the child to act as a parent; and

(h) the relationship by blood or through an adoption orderbetween the child and each person who is a party tothe application.

28 The principles applicable to mobility cases are summarized by theSupreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27,[1996] S.C.J. No. 52 (S.C.C.) at para. 49:

1. The parent applying for a change in the custody or access or-der must meet the threshold requirement of demonstrating amaterial change in the circumstances affecting the child.


2. If the threshold is met, the judge on the application must em-bark on a fresh inquiry into what is in the best interests of thechild, having regard to all the relevant circumstances relatingto the child’s needs and the ability of the respective parents tosatisfy them.

3. This inquiry is based on the findings of the judge who madethe previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favourof the custodial parent, although the custodial parent’s viewsare entitled to great respect.

5. Each case turns on its own unique circumstances. The onlyissue is the best interest of the child in the particular circum-stances of the case.

6. The focus is on the best interests of the child, not the interestsand rights of the parents.

7. More particularly, the judge should consider, inter alia:

(a) The existing custody arrangement and relationship be-tween the child and the custodial parent;

(b) The existing access arrangement and the relationshipbetween the child and the access parent;

(c) The desirability of maximizing contact between thechild and both parents;

(d) The views of the child;

(e) The custodial parent’s reason for moving, only in theexceptional case where it is relevant to that parent’sability to meet the needs of the child;

(f) Disruption to the child of a change in custody;

(g) Disruption to the child consequent and on removalfrom family, schools, and the community he or shehas come to know.

29 The legislation applied in Gordon v. Goertz was the Divorce Act,R.S.C. 1985, c.3 (2nd Supp), ss. 17(5) and (9). Although the present casefalls to be decided under s. 24 of the CLRA, Gordon v. Goertz is equallyapplicable in cases under corresponding provincial legislation: Bjornsonv. Creighton (2002), 62 O.R. (3d) 236, [2002] O.J. No. 4364 (Ont. C.A.);(“Bjornson v. Creighton”) at para. 32. Both provisions enshrine the guid-ing principle in cases of custody and access, which is the best interests ofthe child.

W. (A.C.) v. P. (T.M.) Mew J. 79

30 The CLRA does not contain an equivalent of section 17(9) of the Di-vorce Act, which articulates the “maximum contact” principle (i.e. thatthe child should have as much contact with each parent as is consistentwith the best interests of the child and should take into account the will-ingness of a parent assuming custody of a child to facilitate such contactwith the other parent). However, the maximum contact principle has nev-ertheless been held to be applicable to the assessment of a child’s bestinterests under the CLRA: Bjornson v. Creighton, supra, at para 34.

31 Although the views of a custodial parent must be considered(Rushinko v. Rushinko, [2002] O.J. No. 2477, [2002] W.D.F.L. 323 (Ont.C.A.) at para. 5), where joint custody exists, the parent with whom thechild resides should not be treated as the de facto sole custodial parent(Young v. Young, [2003] O.J. No. 67, 168 O.A.C. 186 (Ont. C.A.), atpara. 23). To treat one parent as a sole custodial parent would be contraryto the essence of joint custody, which is shared decision making.

Standard of Appellate Review32 Custody and access cases inevitably involve the exercise of judicial

discretion. The decisions of trial judges, who have seen and heard all ofthe evidence, are entitled to great deference. Only in exceptional casesshould appellate courts intervene.

33 L’Heureux-Dube J. in Gordon, concurring with the majority in theresult, but for different reasons, stated (at para. 90 of her reasons, citationremoved):

... [T]his Court has always made clear that caution should be exer-cised by appellate courts before interfering with the exercise of dis-cretion by a trial judge in custody matters, the applicable standardbeing that decisions should not be interfered with unless there is agross distortion of the evidence or misapprehension of the relevantlegal principles. Furthermore, in light of the considerable expertisetrial judges develop in the area of family law and the restricted timeallotted to write long and detailed reasons in all cases, brief reasonswill often be sufficient, particularly in cases which do not present anyexceptional feature.

34 More recently, in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2S.C.R. 1014 (S.C.C.), Bastarache J. for the Supreme Court stated, atpara. 13:

First, finality is not merely a social interest; rather, it is particularlyimportant for the parties and children involved in custodial disputes.A child should not be unsure of his or her home for four years, as in


this case. Finality is a significant consideration in child custodycases, maybe more so than in support cases, and reinforces deferenceto the trial judge’s decision. Second, an appellate court may only in-tervene in the decision of a trial judge if he or she erred in law ormade a material error in the appreciation of the facts. Custody andaccess decisions are inherently exercises in discretion. Case-by-caseconsideration of the unique circumstances of each child is the hall-mark of the process. This discretion vested in the trial judge enablesa balanced evaluation of the best interests of the child and permitscourts to respond to the spectrum of factors which can both posi-tively and negatively affect a child.

35 As to what constitutes a “material error”, Bastarache J. offers this gui-dance (at para 15):

If there is an indication that the trial judge did not consider relevantfactors or evidence, this might indicate that he did not properly weighall of the factors. In such a case, an appellate court may review theevidence proffered at trial to determine if the trial judge ignored ormisdirected himself with respect to relevant evidence. This beingsaid, I repeat that omissions in the reasons will not necessarily meanthat the appellate court has jurisdiction to review the evidence heardat trial. As stated in Van Mol (Guardian ad Litem of) v. Ashmore,1999 BCCA 6, (1999), 168 D.L.R. (4th) 637 (B.C.C.A.), leave toappeal refused [2000] 1 S.C.R. vi, an omission is only a material er-ror if it gives rise to the reasoned belief that the trial judge must haveforgotten, ignored or misconceived the evidence in a way that af-fected his conclusion. Without this reasoned belief, the appellatecourt cannot reconsider the evidence.

Trial Judge’s Findings and Decision36 At paragraph 43 of his reasons, the trial judge said:

The paternal aunt also testified, and I was impressed by her sincerityand her willingness to assist with [the child] now that she is livingback in the Grimsby area.

37 In fact, the paternal aunt did not testify at trial. The judge erred instating that she had.

38 The trial judge wrongly identified the gender of child’s new half sib-ling (referring on three occasions to the child’s new sister — in fact abrother).

39 The trial judge incorrectly identified one of the child’s best friends.

W. (A.C.) v. P. (T.M.) Mew J. 81

40 The trial judge formed an unfavourable view of I.H. It was his opin-ion that I.H.’s desire to stay in Ajax was selfish:

I was not impressed with the testimony of [I.H.]. In my view his ded-ication was to his own circumstances and he put his own interestsfirst.

41 The reasons of the trial judge do not disclose whether, in forming hisviews about I.H., he took into account that I.H. was constrained frommoving away from Ajax because of the terms of the custody arrange-ments for his own children. Nor was there any mention of I.H.’s evi-dence that he had sold the Grimsby house to facilitate cash flow for hisnewly established business.

42 The trial judge incorrectly recited the terms of Quinn J’s order con-cerning mid-week access by saying that the original access arrangementsapproved by Quinn J. had been varied by agreement when in fact theyhad not.

43 Noting that the child had spent “much of her seven years under thecare of her maternal grandmother”, the trial judge expressed concern thatthe relationship between the father and the maternal grandparents hadbecome increasingly strained. The maternal grandmother had stated thatshe never thought to ask the child to call her father when she was withher. She also acknowledged that her relationship with the father was “notthe greatest. I’m civil, I don’t argue with him but...”

44 The judge found that: ... this obvious tension is not in the best interests of [the child], andcomplicates the potential continued involvement of the maternalgrandparents as consistent care givers. I do not feel that the maternalgrandparents will actively support maximum contact between [thechild] and her father.

45 The judge was critical too of the mother’s proposal that the childwould go to a public school if she moved to Ajax. The mother reasonedthat because I.H.’s children already attended that school, it would makethe transition easier. The judge felt that not considering possible enroll-ment for the child in the Ajax Catholic system demonstrated a lack ofinsight into the needs of the child.

46 In the judge’s view, another example of the mother’s failure to con-sider the child’s best interests was the mother’s assertion that if the courtdecided to allow the child to live primarily with her in Ajax, but the ex-isting mid-week access was to continue, she would ensure that the childwas driven to and from Ajax twice per week for such access. This raised


the possibility of placing the child in the position of being driven for fourto six hours two nights per week, a prospect which the trial judge feltwould completely disregard the child.

47 It was the mother’s evidence that the child is “very close” to the fa-ther’s partner, R.D., and that they both love each other. R.D. did not,however, testify at trial.

48 Ultimately, while there was no finding that the mother’s move toAjax was motivated by a desire to limit access to the father, the trialjudge formed the view that she had made choices that placed her owninterests above those of her daughter. He concluded (at paragraph 28 ofhis reasons) that “[ACW] has chosen to primarily live and work inAjax”.

Appellant’s Submissions49 Counsel for the mother submits that the trial judge’s factual errors,

both individually and cumulatively, undermine confidence in hisdecision.

50 Numerous examples are cited by counsel for the mother of the trialjudge ignoring or misapprehending the evidence or giving certain evi-dence unwarranted weight.

a. He placed “an inordinate emphasis on an isolated incident”(the driveway altercation on 3 October 2013).

b. He placed undue emphasis on the tension between the fa-ther and the maternal grandfather as a result of the unpaidloan but made no reference to the maternal grandmother’sevidence that she would not allow the strained relationshipbetween her husband and the child’s father to interfere withthe father’s access. There was in any event no evidence thatthe father’s access had been impeded by the maternalgrandparents.

c. In concluding that the maternal grandparents would notpromote the principle of maximum contact between the fa-ther (and his extended family) and the child, the trial judgefailed to consider whether the father would promote maxi-mum access to the maternal grandparents (an importantconsideration given the decision that the child should re-main in Grimsby and reside with the father).

W. (A.C.) v. P. (T.M.) Mew J. 83

d. He treated the tension between the maternal grandparentsand the father as if it was something new when, in fact, itwas an historical issue. Furthermore, placing the child withthe father in Grimsby rather than the mother in Ajax wouldnot resolve the issue of tension between the maternalgrandparents and the father — a matter that could havebeen more appropriately resolved by a non-denigration orcivility order.

e. While the trial judge determined that the maternal grand-parents would not promote the principle of maximum con-tact between the father and the child, his reasons do not dis-close any consideration of whether the father wouldpromote contact between the child and her maternalgrandparents.

f. Although the judge accepted the mother’s evidence that thechild had a loving relationship with R.D., he seemingly ig-nored the mother’s evidence that the child also has a lovingrelationship with I.H. Nor did he make reference to the evi-dence that the child has a close relationship with I.H.’s chil-dren. There was no reason on the evidence to prefer the re-lationship between the child and R.D. or I.H. or betweenthe child and her half-brother or I.H.’s children.

g. The evidence at trial was that the father had only recentlyresumed his Catholic faith. The child had attended a fewSunday school sessions. There was no evidence that theCatholic religion was an important part of her life. Anyconcerns about the mother’s choice of school for the childcould easily have been resolved by ordering that the childattend a Catholic school in Ajax.

h. The trial judge’s reasons gave little or no weight to the factthat the child had been principally resident with the mothersince the parents separated and that trips to Ajax have beenan integral part of her life since 2009.

i. The trial judge had no evidence about the child’s views incircumstances where there was no custody or accessassessment.

j. It should have been apparent to the trial judge that themother’s lawyer had multiple scheduling conflicts and wasnot fully focused on his representation of the mother.


Respondent’s Submissions51 The father acknowledged that the trial judge “made a few mistakes”.

He submits, however, that they were not material. He points out thateven though his sister (the paternal aunt referred to by the trial judge)had not given evidence, there was testimony about her involvement withthe child.

Analysis

Material Change in Circumstances52 The threshold question of whether there has been a material change in

circumstances affecting the child involves more than just a considerationof the distance involved in the proposed move. A material change of cir-cumstances will be one that was either not foreseen or could not reasona-bly have been contemplated by the judge who made the original order (inthis case, Quinn J.): Young v. Young, supra, at para 16.

53 Relocation to pursue an employment opportunity or to cohabit with anew partner is a typical material change in circumstances that is wellrecognised by the courts. In the present case, the mother’s evidence sug-gested moving to Ajax would fulfill the dual objectives of enabling her tobetter provide for the child (because of a better job and the ability toshare living expenses with I.H.) and live with I.H.

54 I do not accept the submission advanced on appeal that the motherdid not need permission to move out of the Grimsby region with thechild. Her move to Ajax was a material change which profoundly af-fected the child.

55 Furthermore, although the order of Quinn J. placed no conditions onthe mother’s place of residence, as joint custodial parents, a change ofplace of residence would have required a joint decision by the parents:Templeman v. Templeman, [1990] O.J. No. 1776, 29 R.F.L. (3d) 71 (Ont.Dist. Ct.). A move from Grimsby to Ajax, a distance of approximately130km, is sufficient to engage shared decision making of joint custodialparents. In the absence of such consent, such a move amounts to a mate-rial change.

Material Error56 Errors which do not give rise to a reasoned belief that the trial judge

must have forgotten, ignored or misconceived the evidence in a way that

W. (A.C.) v. P. (T.M.) Mew J. 85

affected his or her conclusion will not be “material”: Van Mol (Guardianad litem of) v. Ashmore [1999 CarswellBC 43 (B.C. C.A.)], supra.

57 In the present case, of the errors made by the trial judge, the mostserious was his reliance on a witness who never testified. The other er-rors were more of form than substance and would not, individually, beregarded as material.

58 The judge clearly took a negative view of the mother, I.H. and thematernal grandparents. Evidence that might be expected to improve thisview was not referenced.

59 It is appropriate to bear in mind L’Heureux-Dube J.’s admonition inGordon that a lack of comprehensive reasons in all cases should not be abasis for appellate interference. The trial judge recited the Gordon crite-ria. While his analysis in applying the criteria to the evidence was notcomprehensive, lack of comprehensiveness alone should not form the ba-sis for appellate intervention.

60 I also reject many of the grounds of appeal that are based on the trialjudge’s alleged legal errors. For the reasons already averted to, the judgewas not in error to consider the maximum contact principle. Nor shouldhe have treated the mother as the de facto sole custodial parent, as coun-sel for the mother argued.

61 As for the assertion that the judge should have ascertained the child’swishes, it appears that at trial the mother particularly wanted to spare thechild what might well have been a bewildering or upsetting experience.

62 The conclusion reached by the judge was that the child’s primary res-idence should be changed to the father. This was not an outcome soughtby the father, and in deciding that course, the judge made no reference tothe mother’s evidence that she would move back to Grimsby if the childwas not allowed to move to Ajax. On its face, that was a seriousomission.

63 In Berry v. Berry, 2011 ONCA 705, [2011] O.J. No. 5006 (Ont.C.A.), a case in which both parents were custodial parents (but with noformal order granting joint custody) the mother moved from Toronto toKingston and sought a mobility order from the court to move the child’sprimary residence. The trial judge found that it was in the child’s bestinterests to reside primarily with the mother in Kingston. In allowing thefather’s appeal, Juriansz J.A. for the Court of Appeal, noted that the trialjudge’s finding that the mother had moved permanently to Kingston was


an error in fact because the mother had testified that if the court refusedher application she would live in Toronto.

64 The trial judge’s reasons appear to have been predicated on his im-pression that the mother had moved permanently to Ajax. There is goodreason to believe that this would have coloured his assessment of whatliving arrangement would be in the child’s best interests. Accordingly,the trial judge did not canvass the option of declining the mother’s re-quest to move the child to Ajax but directing that the child could con-tinue to live with the mother in Grimsby.

65 The trial judge’s decision and his reasons should be considered in thewhole. In my view, the judge’s reliance on a witness who did not testifywould be sufficient to be a material error. The apparent failure to takeaccount of the mother’s evidence that she would move back to Grimsbyif the child was not allowed to move to Ajax was also a material error.

66 Even if I am wrong that these errors individually justify appellate in-terference, the cumulative effect of the errors made by the trial judge,together with a lopsided weighing of the evidence (at least as it appearson the surface), leading to a conclusion that the father did not request,surely undermines confidence that the judge considered all of theevidence.

67 If, as I find to be the case here, there are reasonable grounds to be-lieve the judge ignored, misapprehended or misdirected himself with re-spect to relevant evidence, it follows that there cannot be confidence thatthe trial judge properly weighed all of the factors necessary to render ajust decision. It would therefore be contrary to the interests of justice toallow the trial judge’s decision to stand.

68 Since this appeal was argued, the Court of Appeal released its deci-sion in Jones v. Jones, 2014 ONCA 822 (Ont. C.A.), which deals withanalogous issues. This matter commenced before the Ontario Court ofJustice. On appeal the Superior Court judge ordered that the children ofthe marriage were to move from Lindsay, where they had been livingwith the mother, to Waterloo, where the father resided. The order alsoprovided that their primary residence was to change from that of themother to that of the father unless the mother relocated her residencefrom Lindsay to Waterloo. The Court of Appeal, allowing the mother’sappeal, stated (at paragraph 9):

The difficulty with the decision of the court below, however, is thedetermination that the best interests of the children would be servedby changing their primary residence from that of the appellant to that

W. (A.C.) v. P. (T.M.) Mew J. 87

of the respondent in the event that the appellant did not voluntarilyrelocate to Waterloo. The reasons in both the Superior Court and theOntario Court of Justice contain little discussion of why this wouldbe in the best interests of the children. For example, they contain noanalysis of the impact on the children of changing their primaryresidence.

69 In the present case, the trial judge has provided no analysis of why achange of primary residence from the mother to the father would be war-ranted if the mother moved back to Grimsby, as she testified she would.The Court of Appeal’s approach in Jones therefore reinforces my viewthat the decision of the trial judge should not stand.

70 This is, accordingly, one of the very rare cases of a custody or accessmatter where appellate intervention is warranted.

The Appellant’s Legal Representation at Trial71 I am not persuaded that there is merit to the grounds of appeal relat-

ing to inadequate representation by the mother’s lawyer at trial. Whilethe mother may well have cause for feeling that she did not have optimalservice or representation, there was no basis for the court, of its ownmotion, to intervene or to adjourn the trial.

Disposition72 The appeal is allowed.73 In Bjornson v. Creighton, supra, Austin J.A. stated (at para. 46):

In the best of all worlds, the appropriate disposition of this appealwould be to send it back to be retried and to retry, in particular, thequestion of the child’s best interest. But that is impractical. Neitherparent has unlimited resources and the child’s biological clock movesinexorably on. His childhood should not be spent in court or in a stateof doubt. In any event, neither counsel invited us to send the matterback for rehearing. In Gordon, the Supreme Court of Canada choseto proceed notwithstanding an incomplete record below. Our obliga-tion is to do the best that we can.

74 By contrast, in Young v. Young, supra, the Court of Appeal concludedthat the trial judge had failed to take into account many important consid-erations bearing on the ultimate question of whether it was in the chil-dren’s best interests to move from Ottawa to Cornwall with their mother.The Court declined to dismiss the mother’s application outright but, in-stead, ordered a new hearing. The Court did so because assessingwhether the move was in the children’s best interests required factual


findings that had not been made. Similarly, in Jones v. Jones, supra, theCourt of Appeal directed that a determination of whether it was in thebest interests of the children to order a change in their primary residencefrom living with the mother to the father must be based on a proper andup to date evidentiary record.

75 During the argument of the appeal we were advised that the childnow has primary residence with the father, pending the outcome of thisappeal. A new school year is well underway. The record upon which wemight substitute our view for that of the trial judge is less than ideal.

76 It would be better if the parents, who have acted collaboratively in thepast, could reach agreement on what would be in the child’s best inter-ests, subject to the approval of the court. Failing that, the mother’s mo-tion should be remitted to a judge of the Superior Court for a newhearing.

77 In the meantime it would be wrong to disrupt the child’s residence.This comment should not be taken as indicative of how we think theissue of residence should ultimately be resolved. It simply recognisesthat the status quo, as it presently exists, should be maintained in theabsence of compelling reasons to do otherwise. The principle that “theusual rule maintaining the status quo pending trial should be adhered to,in the best interests of the child” (see Deblois v. Lavigne, 2012 ONSC3949, [2012] W.D.F.L. 4009 (Ont. S.C.J.) at para 13) is no less applica-ble in a primary residence case than it is in a custody matter. As MurrayJ. stated in Copeland v. Perreault, 2007 ONCJ 217, [2007] O.J. No. 1889(Ont. C.J.) at para. 49:

Generally, it is not in a child’s best interests to be subjected to achange in her residential arrangements if the possibility of yet an-other change is right around the corner because of an impending trial.

78 Accordingly it is ordered that, on an interim basis pending furtherorder of the Superior Court as directed in paragraph 76 of these reasons,the child’s residence during the week should be in Grimsby with the fa-ther. As part of the interim arrangement, the mother should have week-day access according with the weekday access originally granted to thefather by Quinn J.’s order, provided that this access takes place inGrimsby. In all other respects the order of Quinn J. should remain inforce until the Superior Court orders otherwise.

79 If the parties cannot agree on the costs of the appeal, the parties mayfile a costs summary and written submissions of not more than three

W. (A.C.) v. P. (T.M.) Mew J. 89

pages in length by 31 December 2014 (appellant) and 12 January 2015(respondent) respectively.

Appeal allowed.


[Indexed as: von Hahn v. von Hahn]

Barbara Simpson von Hahn, Claimant and Chadwick Penwillvon Hahn, Respondent

British Columbia Supreme Court

Docket: Vancouver E131608

2014 BCSC 2157

H.C. Hyslop J.



Public law –––– Vital statistics — Change of name — Children — Upon di-vorce — Miscellaneous –––– Parties were married in July 2005, separated inNovember 2011, and divorced in July 2014 — Parties had two children, CG,born in June 2008, and CB, born in September 2010 — Mother brought applica-tion for order changing children’s surname — Application dismissed — It wasnot in children’s best interests that their surname be changed — Changing chil-dren’s surname so as to identify their relationship with mother’s family was notreason to change it — Children’s relationship with mother’s family would notchange — Emotional need of mother was not determining factor.

Cases considered by H.C. Hyslop J.:

Bromley v. Furlong (2012), 2012 NLCA 56, 2012 CarswellNfld 292, 1012A.P.R. 170, 326 Nfld. & P.E.I.R. 170, 21 R.F.L. (7th) 346 (N.L. C.A.) —referred to

Landa-McAuliffe v. Boland (2012), 2012 BCSC 1354, 2012 CarswellBC 2774(B.C. S.C.) — referred to

Pulkinen v. Munden (2013), 558 A.R. 126, 2013 CarswellAlta 2128, 2013ABQB 139 (Alta. Q.B.) — considered

Thornhill v. Henderson (2010), 83 R.F.L. (6th) 412, (sub nom. T.T. v. J.H.) 911A.P.R. 1, (sub nom. T.T. v. J.H.) 295 Nfld. & P.E.I.R. 1, 2010 CarswellNfld59, 2010 NLUFC 4, [2010] N.J. No. 72 (N.L. U.F.C.) — referred to

Trociuk v. British Columbia (Attorney General) (2003), [2003] 7 W.W.R. 391,(sub nom. D.W.T. v. British Columbia (Attorney General)) 304 N.R. 201,107 C.R.R. (2d) 277, 2003 CSC 34, 2003 SCC 34, 2003 CarswellBC 1350,2003 CarswellBC 1351, (sub nom. D.W.T. v. British Columbia (AttorneyGeneral)) 183 B.C.A.C. 1, (sub nom. D.W.T. v. British Columbia (AttorneyGeneral)) 301 W.A.C. 1, 36 R.F.L. (5th) 429, 226 D.L.R. (4th) 1, 14B.C.L.R. (4th) 12, [2003] 1 S.C.R. 835, REJB 2003-42847, [2003] S.C.J.No. 32 (S.C.C.) — referred to

von Hahn v. von Hahn H.C. Hyslop J. 91

Rules considered:

Supreme Court Family Rules, B.C. Reg. 169/2009App. B — referred to

APPLICATION by mother for order changing children’s surname.

A. Prkacin, for ClaimantJ.M. Reid, for Respondent

H.C. Hyslop J.:

Introduction1 The claimant seeks an order that the surnames of the claimant and

respondent’s children, Conor George von Hahn, born June 3, 2008 andCaitlin Barbara Simone von Hahn, born September 9, 2010 (the “chil-dren”) be changed from von Hahn to Kerr-von Hahn.

2 The respondent opposes the change.3 The claimant and the respondent acknowledge that the court has juris-

diction to change the names of the children under its parens patriae juris-diction. That is the basis on which this application is brought.

The Law4 Any change of name must be made in the best interests of the chil-

dren: Landa-McAuliffe v. Boland, 2012 BCSC 1354 (B.C. S.C.); Trociukv. British Columbia (Attorney General), 2003 SCC 34 (S.C.C.) andThornhill v. Henderson, [2010] N.J. No. 72 (N.L. U.F.C.).

5 Caselaw sets out many factors to consider when changing the name ofa child when the parents cannot agree. However, the principles of law arenot to be substituted for the best interests of those children that are beforethe court.

6 In considering a change of name, the fallback position is not the sta-tus quo: Bromley v. Furlong, 2012 NLCA 56 (N.L. C.A.).

7 There is a distinction in the caselaw where parentage is the issue andthere is no agreement as to the name versus those cases where the parentsconsider the best interests of the children at the time of their birth, butcircumstances have changed since the naming of the children. Mostoften, that occurs when there is separation and divorce. This appears tohave caused the claimant to bring this application after she and her hus-


band divorced and she changed her name, reverting back to her maidenname of Kerr.

Background8 The claimant and the respondent were married July 8, 2005 and sepa-

rated in November of 2011.9 Upon the claimant and respondent’s marriage, the claimant’s maiden

name was Kerr and, at the time of marriage, she assumed the respon-dent’s surname of von Hahn and chose not to continue using her maidenname.

10 The claimant and respondent were divorced on July 4, 2014, and inthe order for divorce, amongst other matters, the claimant and the re-spondent entered into a consent order to share guardianship and parent-ing time of the children almost equally.

11 The claimant and respondent live close to each other and the scheduleset out in the order works well for the children and meets their needs.The parents cooperate with each other.

12 The claimant moved to Langley, British Columbia, where she hadgrown up and where her family has a long history in the community.

13 As she was entitled to do, the claimant changed her surname to hermaiden name of Kerr after divorce.

14 The respondent has remarried and he and his wife have a daughternamed Madison, born February 24, 2014.

15 The change of the children’s surname was first raised by the claimantwith the respondent in June of 2014.

Positions16 The claimant’s position is that she assumed her husband’s surname

without thought to their marriage ending in divorce. After separation, theclaimant stated she wanted to have her own identity. Her position as tochanging the children’s surname is so the children will have the benefitof being identified with her family and the claimant will be identified asthe children’s mother.

17 The respondent’s position for opposing the change of the children’ssurname is that their present surname is the same as that of their half-sister, and the length of the children’s name in completing documenta-tion and confusion administratively. He also refers to Conor’s difficultywith change.


18 Both the claimant and respondent speculate on events involving thechildren which have yet to occur and may never occur. Those items areborder crossings, emergencies and matters relating to the identification ofthe children in sports and other events in their life.

Discussion19 I find it puzzling that “[a]fter we had resolved all of the issues in our

litigation after a long arduous negotiation” (para. 15 of the respondent’saffidavit #2) that the claimant did not raise this change of name duringtheir negotiations.

20 I can only conclude that when the claimant changed her name, that itdid not take away from the best interests of the children.

21 At the time the children were born, I conclude that both the claimantand the respondent considered the best interest of each child when deter-mining their names. I gather, as a result of a lack of evidence, that theparties did not consider hyphenating the children’s surname at the timeof their birth as it is now being proposed.

22 At the time of the birth of the children, the respondent encouraged theclaimant to use her maiden name as a middle name for the children, butthe respondent stated that she was not interested.

23 Shortly after Caitlin’s birth, the name Barbara was added to her nameas Barbara was the claimant’s mother’s first name. Conor’s middle nameis that of his paternal grandfather.

24 The parents agreed that the children would be educated in a Catholicschool despite the respondent not sharing that religious belief.

25 The claimant’s reasons for changing the children’s middle name isbased on the following:

7. ... Because I was no longer part of the von Hahn family, I startedusing my family name, Barbara Simpson Kerr shortly after separa-tion. After the breakdown of our marriage I felt that it was importantfor me to have my identity as an individual, single person.

. . .

11. I wish for the children’s surname to include Kerr, as well as vonHahn. I believe it would benefit the children to be able to identifywith my family name, and share in that identify. I now live in ruralLangley, where I was born and raised and where my family has beenin business for over forty years. We are a very close family, and wefrequently travel overseas to visit each other. Having my familyname as part of the children’s names would facilitate border cross-


ings, travel and identification in many circumstances but most espe-cially in the event of an emergency.

12. It is evident to me that as a result of our divorce the children havesuffered and need extra attention and support. My parents and mythree siblings are very involved in all aspects of their lives. I believesharing my family name would enhance this close relationship for thechildren. My parents frequently see the children, both at my home,and their home. My parents assist with their homework and sportingactivities. My brother lives down the street, and frequently interactswith the children. My two sisters, similarly, although living abroadengage in visits with the children. They are both very supportive ofevery aspect of their development including regular Skype conversa-tions and the provision of lessons in various sport disciplines.

(Paragraphs 7, 11 and 12 of the claimant’s affidavit #4)26 The claimant’s parents retired in the 1980s and have residences at

Pender Island and Bermuda. When in Langley, they stay with either theclaimant or her brother who lives close by. The claimant’s sisters arepermanent residents of Bermuda.

27 Given the parenting arrangements, the time spent with the claimant’sparents and sisters occurs when the children are in the care of the claim-ant or she is travelling with the children.

28 The discussions that took place between the claimant and the respon-dent involved the claimant’s father as to the change of the children’s sur-names. The claimant’s father supported the children’s change of nameand his reasons communicated for changing the children’s names do notrelate to the best interests of the children.

29 I think it is necessary for me to examine what has changed since theparents chose names for their children.

30 The significant change in the children’s lives is that their parents sep-arated and divorced. They have changed homes and communities andspend about 50/50 time between their parents.

31 The birth of Madison to the respondent is another important person inthe children’s lives. Madison is a half-sibling and is family with whomthe children will have a life-lasting relationship. Madison, Conor andCaitlin are being raised together, though part-time. The children’s rela-tionship with their sister is a relationship that is fostered, and part of itsstrength will lie in their surnames.

32 Despite the claimant no longer considering herself part of the vonHahn family is no reason to change the children’s name. The children,


together with their sister Madison, are members of the von Hahn family.The change of the children’s surname should not be used as a method ofdifferentiating the children’s relationship with family members.

33 As I have stated, both the claimant and the respondent have referredto events that may occur as it relates to the children’s surname. However,many of these events have not occurred, and the only event of some sig-nificance is that Conor does not react to change well and when hemoved, this upset him and it required his parents to obtain counsellingfor him. As the claimant suggests, the separation was also part ofConor’s problem.

34 In our society, travel which results in border crossings require identi-fication. This can be resolved by the children obtaining passports. Medi-cal treatment requires Care cards and other cards linking the childrenwith a parent.

35 I conclude that changing the children’s name so as to identify thechildren’s relationship with the claimant’s family is not a reason tochange the children’s surname. These reasons are solely related to theclaimant and her family and not linked to the best interests of the chil-dren. The claimant states that the children have a close relationship withthe members of her family. There is nothing to suggest that this haschanged and would change if the children’s surname did not contain“Kerr”.

36 Further, the children are being brought up in not only their mother’shome, but also in their father’s home where there are new relationships,in particular a sister with whom they share the same surname.

37 In Pulkinen v. Munden, 2013 ABQB 139 (Alta. Q.B.), the court heldthat the emotional need of a parent is not to be a determining factor.

38 The claimant has not discharged the burden that it is in the children’sbest interests that their surname be changed. I dismiss the claimant’sapplication.

39 The respondent will have his costs pursuant to Appendix B, Scale Bof the Supreme Court Family Rules, B.C. Reg. 169/2009.

Application dismissed.


[Indexed as: Wright v. Lavoie]

Cheryl Wright, Applicant and Gary Lavoie, Respondent

Ontario Superior Court of Justice

Docket: 12266-11

2014 ONSC 6690

Louise L. Gauthier J.

Heard: November 10, 12, 13, 2014

Judgment: November 19, 2014*

Family law –––– Support — Spousal support under Divorce Act and provin-cial statutes — Entitlement — Economic disadvantage of marriage —Caused by breakdown –––– Parties lived in common law relationship from Au-gust 1988 until October 2010 — In December 2011, parties consented to orderwhich provided that man would pay woman temporary spousal support of$1,000 per month — Man unilaterally ceased paying spousal support from May2013 to October 2013 — Woman brought application for spousal support —Application granted — Man was ordered to pay woman ongoing spousal supportin amount of $1,597 per month — There was always income differential andparties both benefited from their combined incomes — Woman’s income did notpermit her to approximate lifestyle to which she was accustomed — Womansuffered financial hardship as result of termination of parties’ long-standing rela-tionship — Man had capacity to provide support to woman.

Family law –––– Support — Spousal support under Divorce Act and provin-cial statutes — Retroactivity of order.

Cases considered by Louise L. Gauthier J.:

Favero v. Favero (2013), 2013 CarswellOnt 8414, 2013 ONSC 4216, [2013]O.J. No. 2882 (Ont. S.C.J.) — referred to

Lynk v. Lynk (1989), 21 R.F.L. (3d) 337, 92 N.S.R. (2d) 1, 237 A.P.R. 1, 1989CarswellNS 60, [1989] N.S.J. No. 265 (N.S. C.A.) — followed

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, 43R.F.L. (3d) 345, 145 N.R. 1, 1992 CarswellMan 143, 1992 CarswellMan222, [1992] S.C.J. No. 107, EYB 1992-67141 (S.C.C.) — referred to

*Additional reasons at Wright v. Lavoie (2014), 2014 ONSC 7450, 2014 Cars-wellOnt 18139 (Ont. S.C.J.), respecting costs.

Wright v. Lavoie Louise L. Gauthier J. 97


Family Law Act, R.S.O. 1990, c. F.3Generally — referred tos. 30 — considereds. 33(8) — considereds. 33(9) — considereds. 33(9)(c) — considered

Regulations considered:

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)Federal Child Support Guidelines, SOR/97-175

Generally — referred toss. 15-20 — referred tos. 17 — referred to

APPLICATION by woman for spousal support.

Applicant, for herselfRespondent, for himself

Louise L. Gauthier J.:

Overview:1 The Applicant (“Wright”) seeks spousal support from the Respondent

(“Lavoie”), from September 1, 2011, and onward, based on the SpousalSupport Advisory Guidelines. The Respondent opposes the claim forspousal support on the basis of entitlement.

Facts:2 The parties who are aged 58 and 56 years, respectively, lived together

in a common law relationship for a 22 year period from August 1988until October 2010, when Lavoie advised Wright that he no longerwanted to be in the relationship. There are no children from the parties’union, although Wright’s two children from a prior marriage did residewith the parties while they were dependents.

3 At the time of the separation, Wright changed the lock on the parties’residence. Lavoie resorted to residing with his sister for a period of time.

4 It is agreed that, during their cohabitation, the parties had a joint bankaccount into which their paycheques were deposited and from whichhousehold expenses were paid. Each of them had their own pension plan


and sick time plan. They co-owned real property being a residence whichthey occupied and a rental property.

5 At the time of the separation, Wright was employed by the GreaterSudbury Police Service (“G.S.P.S.”) as a Communications Supervisorearning $75,000 per year, including overtime. She had been employed bythe G.S.P.S. since February 1986, some two years before the partiescommenced their cohabitation.

6 Lavoie held the rank of Sergeant with the G.S.P.S. At the time of theseparation, he was earning approximately $100,000 per year.

7 After the separation, the parties sold the real property that they jointlyowned and they shared the net profit equally, after having paid out all oftheir joint debts. According to the parties’ respective financial state-ments, sworn early in the proceedings, Wright had credit card debt in theamount of $2,600 and an outstanding debt relating to the purchase of hervehicle (amount unknown) as of the date of separation. Lavoie had debtin the amount of $12,841, inclusive of credit card charges, and a personalloan in the amount of $11,000.

8 Wright had some emotional issues, relating to the breakdown of therelationship, which resulted in her being off work and in receipt of disa-bility payments for two periods of time, late fall of 2010 and again inJanuary 2011 until June of 2011.

9 In August 2011, Wright’s employment with the G.S.P.S. was termi-nated for cause. Wright had conducted a number of unauthorizedNICHE/CPIC queries for personal reasons and had falsified policerecords in the course of the search or searches.

10 The Application for spousal support was issued on September 29,2011, almost one year following the separation.

11 On December 12, 2011, the parties consented to a Temporary Order,the terms of which follow:

1. On a without prejudice basis, the Respondent shall providethe Applicant with spousal support in the amount of$1,000.00 a month, commencing on January 1, 2012 and con-tinuing on the first day of each month thereafter.

2. In the event that the Applicant receives a monetary awardthrough arbitration the amount of the award will be dividedon a per month calculation pro-rated to her pre terminationincome in order to determine the number of months compen-sation from the Greater Sudbury Police Services was received


for. For example, should the Applicant receive $35,000.00 asan award, it is the equivalent of 6 months income.

3. The Applicant will indemnify the Respondent with a lumpsum payment, the equivalent of $800.00 for each month thatcompensation was received by her from the employer as cal-culated above and for which time spousal support wasreceived.

4. The indemnity set out in paragraph 3 will be paid by the Ap-plicant to the Respondent in one lump sum payment. Thislump sum payment will not be included in the Applicant’sincome nor be deducted from the Respondent’s income asspousal support. If the CRA reassesses this payment with in-come tax consequences then the parties will indemnify eachother as a result of any additional income tax paid by theparty, including related interest and penalties.

5. Terms of the within Order are without prejudice to the Appli-cant’s claim for retroactive spousal support and the Respon-dent’s denial of the Applicant’s entitlement.

6. Either party is at liberty to return the matter to Court for adetermination of the issue of spouse support, retroactivespousal support, and entitlement.

12 Following her termination, Wright secured work with Health Sci-ences North as a housekeeper, working casual hours. She continuedworking there until she was reinstated by the G.S.P.S. in May 2013, al-beit at a lower paying position, being that of a property clerk earning$57,357 per year. Wright did not receive any arbitration award from heremployer in connection with her dismissal. It was Wright’s evidencethat, because of her dire financial circumstances, she was forced to aban-don the arbitration process and accept re-employment at a lower leveljob.

13 On September 7, 2011, Lavoie was suspended from his employmentfor alleged misconduct. It is Lavoie’s position that his suspension was adirect result of allegations made by Wright against him to the G.S.P.S.

14 In August 2012, Lavoie suffered an emotional breakdown and washospitalized for a brief period. He had had suicidal ideation and he re-ceived counselling.

15 Lavoie was once again hospitalized for stress and anxiety in October2012.

16 Lavoie testified that he had been receiving numerous abusive anony-mous texts, and that someone had set up a Facebook account, purport-


edly in his name, on which insulting and abusive messages about himwere posted. The suggestion is that Wright was behind the abusive textsand Facebook messages. She denies any involvement in such conduct.

17 In January 2013, Lavoie purchased the home he now occupies withhis wife. They moved in together in January 2013, and married in June ofthat year.

18 Wright had been residing alone in rented premises after the sale of thejointly-owned residence the parties had occupied until the separation, butin November 2013 she moved out of that residence and into her mother’shome. She testified that by November 2013 she could no longer afford topay rent; she had incurred much debt as a result of Lavoie unilaterallyceasing to pay the court-ordered spousal support from May 2013 untilOctober of 2013, when the F.R.O. began enforcing the December 2011Order.

19 Lavoie admitted having failed to make the support payments in accor-dance with the Order, but explained that he believed his obligation to paythe support had been terminated when Wright resumed employment withthe G.S.P.S.

20 In any event, he did enter into a repayment agreement with the F.R.O.in October 2013, and has been paying the court ordered support, plus$300 per month, toward the arrears since that date.

21 On November 7, 2013, he was found guilty of the misconduct andimmediately terminated as an employee of the G.S.P.S., although he con-tinued to (and still does) receive his employment income.

22 Lavoie appealed his dismissal. The appeal has been heard, but to dateno decision has been rendered.

23 In March 2014, Wright consolidated and paid out her debts by way ofa $28,786 loan from the Sudbury Credit Union. The following debtswere retired:

(a) Legal fees to Wright’s lawyer $ 2,500(b) American Express $ 6,832(c) President’s Choice MasterCard $ 5,642(d) Nissan $ 9,896(e) Loan #30 Lively Branch $ 3,266

24 As of October 31, 2014, Wright has the following indebtedness:

(a) Sudbury Credit Union $ 29,427(b) Revenue Canada for capital gains owing $ 12,222


(c) Revenue Canada for income tax owing for $ 9722012

(d) G.S.P.S. Pension buy-back $ 10,000

25 Wright’s Financial Statement sworn October 31, 2014, discloses as-sets valued at $29,000, consisting of the Nissan vehicle and a 2007Prowler Trailer.

26 Lavoie’s Financial Statement sworn October 28, 2014, lists assets to-talling some $316,000, consisting of his residence, a 2012 Ford F-150truck, a 2013 Puma Travel Trailer, and bank accounts in the amount of$1,743. His debts exceed his asset value by approximately $61,000, andare the following:

(a) Sudbury Credit Union $ 263,802.01(b) Sudbury Credit Union $ 18,360.76(c) Sudbury Credit Union $ 36,496.52(d) Royal Visa $ 8,031.06(e) Canadian Tire $ 3,374.72(f) CIBC Visa $ 2,540.73(g) Cheryl Wright $ 5,000.00(h) Trailer Payment $ 33,000.00(i) Clayton Ruby $ 2,260.62(j) Joe Lavoie $ 16,000.00

27 The parties’ respective incomes since separation, based on the incometax documentation, is as follows:

Wright:

28 2010: Employment income including overtime $ 75,0002011: Employment income (to August) $ 59,168

Disability Benefit payments $ 25,516Vacation payout $ 20,000Capital Gains (from sale of the properties) $ 33,723

Total income: $ 138,4072012: Employment income $ 31,736

Spousal support $ 12,000

Total income: $ 43,7362013: Employment income $ 45,713


Spousal support $ 5,281

Total income: $ 50,994

29 Wright projects that her 2014 income will be $57,000. This wouldaccord with the information from her October 31, 2014, pay stub.

Lavoie:

30 2010: Employment Income $102,0002011: Employment Income $101,7352012: Employment Income $104,1172013: Employment Income $106,782

31 Wright lives in her mother’s home and indicates that she cannot af-ford to get a place of her own without receiving spousal support.

32 As indicated above, Lavoie has married and his spouse has two youngchildren for whom she receives child support; she also receives spousalsupport from her former spouse. The evidence about the quantum of sup-port received by Leanne Lavoie is contradictory. According to Wright,Leanne Lavoie receives some $1,200 per month in spousal and child sup-port. Lavoie maintains that his wife receives $600 per month for the chil-dren, and $400 per month in spousal support.

Wright’s Position:33 Wright is seeking spousal support, based on the low end range of the

Spousal Support Advisory Guidelines, for the years 2011, 2012, and2013 as follows:

2011 $1,630 per month ($6,520);2012 $1,990 per month ($23,880); and2013 $1,678 per month ($20,148).

34 She has calculated the above based on her earnings for those years:$59,168 for 2011, $31,737 for 2012, and $45,714 for 2013.

35 Wright further seeks ongoing spousal support from January 1, 2014,based on the Guidelines, however she has not specified what that amountwould be.

36 Wright relies on the long duration of the spousal relationship and in-dicates that she and Lavoie had been planning their retirement and werefinancially secure. They had planned to live in the cottage at the FrenchRiver, which Wright referred to as “our retirement home”.


37 While the parties cohabited, they enjoyed a comfortable lifestyle, inkeeping with their combined income of some $175,000.

38 Lavoie chose to end the relationship and this caused financial hard-ship to Wright, in particular after her employment was terminated.

39 She had to take casual work as a housekeeper for Health SciencesNorth in order to survive after her termination. This was low payingwork with irregular hours.

40 Lavoie’s unilateral withholding of the spousal support for the periodfrom May to October 2013 was financially devastating to Wright. Sherelied heavily on her credit cards and depleted the funds received fromthe sale of the co-owned properties.

41 At the age of 59, there is little chance of significant career advance-ment for Wright. She will not ever be able to earn enough from employ-ment to replicate the lifestyle she enjoyed with Lavoie.

42 Wright maintains that she is entitled to continue the lifestyle the par-ties enjoyed while together. She requires spousal support to permit her toleave her mother’s home, secure her own accommodation, and start herlife anew, just as Lavoie has done.

43 She further maintains that the litigation has been dragged out by Lav-oie and he should be responsible for her legal fees in the amount of ap-proximately $18,000.

44 Wright points out that, since the separation, Lavoie has been able topurchase a new home, a new vehicle, a new trailer, as well as havingbeen able to take trips with his new wife, who is employed on a full-timebasis and who also receives spousal and child support from her formerhusband.

Lavoie’s Position:45 While Lavoie recognizes that if Wright truly required financial assis-

tance, it would be his legal as well as his moral duty to provide same, hesubmits that Wright is self-sufficient, earning close to $60,000 per year.She does not require, nor is she entitled to spousal support.

46 Lavoie disputes Wright’s claim that she has suffered economic hard-ship as a result of the breakdown of the relationship.

47 Lavoie acknowledges that the parties lived well when they were to-gether, but points out that they were heavily indebted while maintainingthat lifestyle. Retirement was neither discussed, nor likely possible in theforeseeable future.


48 Lavoie’s position is that Wright is solely responsible for having losther employment and having to subsequently accept lower paying em-ployment. She is the “author of her own misfortune”. He had nothing todo with her termination.

49 If Wright had not conducted unauthorized NICHE and CPICsearches, she would now be earning $80,000 in accordance with the Col-lective Agreement between the Greater Sudbury Police Services Boardand the Sudbury Police Association.

50 In any event, according to Lavoie, Wright should be earning $59,591,effective July 1, 2014. No explanation was provided regarding the differ-ence between what she earns ($57,000 according to her pay stub) andwhat the Collective Agreement provides for, for her category of civilianemployee ($59,591).

51 Wright explained that, although her agreement with the GreaterSudbury Police Services Board was that she was being rehired as a pro-perty clerk, she was subsequently re-assigned as a Transcriber.

52 According to the Collective Agreement, a Transcriber is a lower paidcategory than a Property Clerk. For the year 2013, a Transcriber wouldhave earned, according to Exhibit 10, a yearly income of $53, 724, andnot $58,046, being the income of a Property Clerk.

53 According to Lavoie, Wright was instrumental in having him sus-pended from his employment. His suspension and the legal proceedingsrelating to her complaints and his suspension caused him to incur some$70,000 of legal fees, plus a further $30,000 expense in office suppliesfor his defence, without counsel, at the first instance.

54 Lavoie points out that by November 2013, when Wright alleges shehad to move in with her mother for financial reasons, she had alreadybeen back at work at the G.S.P.S. since May of 2013 and had received inexcess of $84,000 from the sale of their jointly-owned realty.

55 Lavoie submits that Wright is motivated not by need, but rather byrevenge. He described the proceedings as her “pay back”.

56 Lavoie requests that spousal support be terminated. In the event thatthis request is not granted, he requests that whatever support is orderedautomatically terminate if he is dismissed from his employment, or if heretires.

57 Lavoie accuses Wright of living beyond her means and of spendingfoolishly since the separation. He points out that although Wright re-


ceived just over $84,000 between May and December of 2011, by Juneof 2013 there was nothing left.

Obligation of spouses for support58 Section 30 of the Family Law Act sets out the above obligation:

Every spouse has an obligation to provide support for himself or her-self and for the other spouse, in accordance with need, to the extentthat he or she is capable of doing so.

Objectives and determination of entitlement to and quantum ofspousal support pursuant to the Family Law Act

59 Subsection 33(8) of the Family Law Act sets out the purposes of anOrder for spousal support:

(a) recognize the spouse’s contribution to the relationship and theeconomic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able tocontribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by ordersunder Parts I (Family Property) and II (Matrimonial Home).

60 Subsection (9) goes on to provide guidance to the court in the deter-mination and duration, if any, of a spousal support order:

In determining the amount and duration, if any, of support for aspouse or parent in relation to need, the court shall consider all thecircumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent arelikely to have in the future;

(c) the dependant’s capacity to contribute to his or her ownsupport;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical andmental health;

(f) the dependant’s needs, in determining which the court shallhave regard to the accustomed standard of living while theparties resided together;

(g) the measures available for the dependant to become able toprovide for his or her own support and the length of time andcost involved to enable the dependant to take those measures;


(h) any legal obligation of the respondent or dependant to pro-vide support for another person;

(i) the desirability of the dependant or respondent remaining athome to care for a child;

(j) a contribution by the dependant to the realization of the re-spondent’s career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondentcohabited,

(ii) the effect on the spouse’s earning capacity of the re-sponsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a childwho is of the age of eighteen years or over and unableby reason of illness, disability or other cause to with-draw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in thecontinuation of a program of education for a childeighteen years of age or over who is unable for thatreason to withdraw from the charge of his or herparents,

(v) any housekeeping, child care or other domestic ser-vice performed by the spouse for the family, as if thespouse were devoting the time spent in performingthat service in remunerative employment and werecontributing the earnings to the family’s support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse’s earnings and career devel-opment of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other thanout of public money.

Applicable Principles:61 The circumstances to be considered in determining the entitlement to

and quantum of spousal support, pursuant to subsection 33(9) of the Act,are to be considered in the context of the objectives of the Family LawAct and the purposes of a spousal support order. No objective or purposeis paramount.


62 The preamble to the Family Law Act sets out its objective, that is, “toprovide, in law, for the orderly and equitable settlement of the affairs ofthe spouses upon the breakup of the partnership, and to provide for othermutual obligations in family relationships...”

63 The statutory objectives are to be examined with a view to achievingequitable sharing of the economic consequences of the relationship, or ofits breakdown: see Moge v. Moge, [1992] 3 S.C.R. 813 (S.C.C.).

64 Marriage and also common-law spousal relationships are to be re-garded as joint endeavours; the longer the duration of the relationship,the greater the presumptive claim to equal standards of living upon itsdissolution. (Moge).

65 The Court of Appeal in Lynk v. Lynk (1989), 92 N.S.R. (2d) 1 (N.S.C.A.) outlined the principle that the standard of living that a recipientspouse is entitled to is a standard equal to that which he or she wouldhave enjoyed had the relationship continued through to the payor’sretirement.

66 The parties’ accustomed standard of living is specifically referred to,in subsection 33(9) as a circumstance to be considered.

67 Even where a spouse has the capacity to be self-sufficient, if thespouse’s ability to enjoy the same standard of living as during the rela-tionship has been adversely affected as a result of the breakdown of therelationship then support, compensatory support, is appropriate to ensurethat the economic impact of the breakdown is equitably shared.

68 One final principle, before I embark upon the analysis of this case,relates to the applicability of the provisions set out in sections 15 to 20 ofthe Federal Child Support Guidelines, to matters involving spousalsupport.

69 The starting point in determining whether one spouse requires sup-port, and whether the other spouse has the ability to pay such support, isthe determination of the income of each of the parties.

70 The Spousal Support Advisory Guidelines state clearly, at Chapter 6,that the starting point for the determination of income under those Guide-lines is the definition of income under the Federal Child SupportGuidelines.

71 Income, for spousal support purposes is determined using the sourcesof income set out under the heading “Total Income” in the T1 Generalform issued by the Canada Revenue Agency.


72 The Guidelines go on to provide that, in considering the fairest deter-mination of a spouse’s income, the court may consider patterns of in-come, fluctuation in income, or receipt of a non-recurring amount of in-come. See section 17.

73 The court may also impute income to a spouse, in appropriate circum-stances, including where a spouse’s underemployment is self-induced,for example, where the spouse is terminated for cause. See Favero v.Favero, 2013 ONSC 4216, [2013] O.J. No. 2882 (Ont. S.C.J.) .

74 The principles that apply in determining whether to impute incomeare the same in both child support and spousal support cases. Favero,para. #94.

75 Although that case dealt with a payor spouse in the context of childsupport, the principle is applicable in the case before me as it relates tothe determination of whether or not a spouse requires spousal support.Put another way, the principles applicable in determining a spouse’s abil-ity to provide support to a dependent, are equally applicable to determin-ing what, if any, support is required by the dependent.

76 Whether or not a spouse requires support is related directly to “thedependent’s capacity to contribute to his or her own support”, (s.33(9)(c)of the F.L.A.) which, in turn, is relevant when considering the spouse’s“obligation to provide support for himself or herself...to the extent that heor she is capable of doing so.” (s. 30 of the F.L.A.).

Analysis:77 Lavoie’s argument that Wright was not and is not entitled to spousal

support fails. This was a long term relationship in which there alwayswas an income differential. Both parties benefited from their combinedincomes. They enjoyed the lifestyle that such combined income couldprovide. Wright cannot now, nor is it reasonable to predict that she mayever be able to replicate that lifestyle on her income.

78 As mentioned earlier in these Reasons, the longer the duration of therelationship, the more compelling the claim to equal standards of livingfor both spouses.

79 Wright’s income does not permit her, without spousal support, to ap-proximate the lifestyle to which she was accustomed.

80 Lavoie, on the other hand, continues to benefit from his higher in-come and from the approximately $40,000 that his wife earns from heremployment as the Executive Director of a local charity, and some


$3,900 from the two businesses she is involved in. There is also the mat-ter of the spousal support being received by Leanne Lavoie.

81 Wright did suffer financial hardship as a result of the termination ofthe long-standing relationship when she was in her mid-fifties. Her pre-sent earning capacity is not likely to increase significantly in the remain-ing years she has to be employed.

82 Lavoie has the capacity to provide support to Wright. His wife is em-ployed on a full-time basis, and her former spouse is providing supportboth for herself and the children. Lavoie has no present legal obligationto provide support to his wife’s children.

83 A spousal support order is required to recognize the economic conse-quences to Wright of the termination of this long standing common lawrelationship.

84 In her opening statement, Wright advised the court that she was seek-ing retroactive support from September 1, 2011, onward.

85 As of September 1, 2011, Wright was without employment, havingbeen terminated in August of 2011. She could no longer rely on her$75,000 income to meet her needs. Thus the Application for spousal sup-port issued on September 29, 2011

86 While she no longer had employment income for the balance of 2011that, on its own, does not provide an adequate picture of Wright’s actualcircumstances. A review of her income tax return shows that, excludingthe capital gains income attributed to her by virtue of the sale of thejointly-held property, Wright did in fact receive $104,684 in actual mon-ies during the year 2011. This figure is made up of the employment in-come, disability benefit payments, and the vacation payout. Her incomewould have exceeded that of Lavoie.

87 That income would have permitted her to continue to live in the stylein which she had been living while cohabiting with Lavoie. Given thatincome, together with the $16,523 Wright received from the sale of realproperty in May 2011, and (to a lesser extent given the timing) the$67,561 also from the sale of real property received in December 2011,Wright would not have suffered any financial hardship as a result of thebreakdown of the relationship, at least for the year 2011.

88 Wright would not have been entitled to any spousal support for theyear 2011.

89 The situation changed drastically for Wright in 2012. Her employ-ment yielded modest income of $31,736. Such a sum would not allow


her to even approximate her earlier lifestyle while living with Lavoie.She would have been entitled to continue to enjoy that lifestyle, given thelong duration of the relationship.

90 And, while Lavoie points out that the parties were heavily indebtedwhile enjoying that lifestyle, the reality nonetheless is that the partieswere living well on a combined income of some $175,000. They maywell have been heavily financed however there is no suggestion thatthere were bankruptcy or insolvency concerns during the latter years ofthe cohabitation.

91 Wright no longer had the benefit of Lavoie’s income. And, while it istrue that she did receive, as Lavoie did, a significant amount of moneyfrom the sale of their properties, and perhaps could and should havemanaged those funds in a better way than she did, that is not a completeanswer to the claim for compensatory support based on accustomed lifes-tyle, or needs based support, given her modest income from employment.

92 Wright would have been entitled to spousal support, based on theGuidelines, in the amount of $2,322 per month. This amount is arrived atafter taking into account only the parties’ actual respective incomes forthe year 2012, that is Wright’s employment income of $31,736 and Lav-oie’s income of $104,117.

93 The consideration of entitlement to and quantum of spousal supportdoes not end there however. On the facts of this case, it is fair and appro-priate to impute income to Wright given her termination for cause; shewas, according to the law, voluntarily under employed, and this shouldimpact on the assessment of spousal support.

94 Lavoie suggests that the amount that Wright would have been earn-ing, but for her termination, should be attributed to her in the determina-tion of entitlement to and quantum of spousal support.

95 I find that suggestion to be reasonable. The larger issue is the durationof the period during which such income should be imputed to Wright.

96 There is no pre-set formula to determine the appropriate number ofmonths for which such higher income should be imputed to a spouse inthese circumstances.

97 I have concluded that it would be fair to impute the higher income toWright for a period of time equal to that period which would representthe period of notice that her employer would have had to provide to her ifshe had been terminated without cause.


98 I do not have evidence of Wright’s career path with the G.S.P.S., butdo know that she had been in its employ for 25 years before her termina-tion and that, at the time of the dismissal, she occupied a supervisoryposition at the higher end of the civilian pay scale.

99 In those circumstances, it is not unreasonable to presume that, had shebeen terminated without cause, her employer would have had to eitherprovide somewhere around eighteen months’ notice, or eighteen months’pay in lieu of notice.

100 Applying that presumption to the facts of the case results in Wright’sentitlement to and quantum of support being based for 2012 on Lavoiehaving income of $104,117, and Wright being presumed to have had in-come in the approximate amount of $79,000 (being an amount halfwaybetween what Wright would have been earning in 2011 and in 2013, ac-cording to the civilian pay scale set out in the Collective Agreement, plusan additional $5,000 for overtime. According to the S.S.A.G., the mid-range amount of support based on those figures would be $806 permonth, for the entirety of 2012.

101 The eighteen month time period during which Wright should have thehigher income imputed to her ends as of March 1, 2013. For the monthsof January and February 2013 then, the amount of spousal support towhich Wright was entitled would be based on her imputed income of$77,276 (Exhibit 10) plus overtime of $5,000, for a total income of$82,776 per year. For a two month period, the income would be $13,712.Therefore, for the first two months of 2013, Wright’s income, for pur-poses of determining quantum of spousal support, would be $70,712 peryear. The mid-range spousal support for those two months would be$1,157 per month.

102 From that date forward, Wright’s actual income is the figure that is tobe used in determining the quantum of spousal support to which she isentitled.

103 Based on her income of $45,713, and Lavoie’s income of $106,782,the mid-range amount of support payable, according to the S.S.A.G.,would be $1,959 monthly.

104 Using the parties’ respective estimated 2014 incomes, i.e. Wright$57,000 and Lavoie $106,782, the ongoing spousal support effective Jan-uary 1, 2014, would be $1,597, being the mid-range amount according tothe S.S.A.G.


105 I decline to make it a provision of the spousal support order that therebe an automatic termination of the order, on Lavoie’s retirement or dis-missal. Given that I have attributed income to Wright for her dismissalfor cause, it would be inappropriate to provide for an automatic termina-tion of the obligation to provide spousal support if, ultimately, Lavoiehimself is found to have been dismissed for cause.

Conclusion and Order:

1. Lavoie shall pay to Wright spousal support as follows on the firstday of every month:

(a) The sum of $806 per month, for the months of January toand including December 2012;

(b) The sum of $1,157 per month for the months of Januaryand February 2013;

(c) The sum of $1,959 per month for the months of Marchthrough to and including December 2013; and

(d) The sum of $1,597 per month commencing January 1,2014, and continuing on the first day of every monththereafter.

2. IT IS DECLARED THAT Wright was not entitled to receive, andLavoie was not obligated to pay, any spousal support for year2011.

3. The balance of the claims made in the Application issued on Sep-tember 29, 2011, is dismissed.

106 If the parties cannot agree on costs, Wright may make written sub-missions as to costs within 15 days of the release of these reasons fordecision. Lavoie will have 10 days after receipt of Wright’s submissionsto respond. The written submissions of both parties are to be delivered atthe Sudbury courthouse, 155 Elm Street. If no submissions are receivedwithin this timeframe, the parties will be deemed to have resolved theissue as between themselves.

Application granted.

Wildeman v. Wildeman 113

[Indexed as: Wildeman v. Wildeman]

Kim Wayne Wildeman, Applicant and Twylla Lee Wildeman,Respondent

Alberta Court of Queen’s Bench

Docket: Wetaskiwin 4812-006479

2014 ABQB 732

F.L. Schutz J.


Judgment: December 15, 2014

Family law –––– Support — Child support under federal and provincialguidelines — Determination of spouse’s annual income — Imputed in-come — Expenses and benefits –––– Corporate vehicles — Parties had threechildren together and separated after 12 years of marriage — After separation,father started P Ltd., which provided bottled water to retail customers — P Ltd.provided vehicles to father and to father’s common-law partner, C (corporatevehicles) — Father took position that C did unpaid work for P Ltd. and there-fore, she was entitled to her personal use of corporate vehicle in lieu of receivingpaid wages or salary — Total taxable benefit from having employer-providedvehicle as calculated by Canada Revenue Agency was $38,279.52 (CRAamount) — Father commenced application seeking child support, and questionarose as to what amount, if any, should be attributed to father’s income withrespect to corporate vehicles — Parties made submissions on this question —Ruling issued — Personal benefit attributed to father from his corporate vehiclewas one-half of CRA amount, or $19,139.76 — Personal benefit attributed to Cfrom her corporate vehicle was 85 per cent of CRA amount, or $32,537.15 —Corporation’s payment for C’s corporate vehicle was not reasonable in circum-stances — Value of personal benefit to C from use of corporate vehicle signifi-cantly exceeded any contribution she might make to P Ltd. — Remaining 15 percent of benefit from C’s corporate vehicle was found to be reasonable benefitearned by C in lieu of remuneration — Father and C were persons with whom PLtd. did not deal at arm’s length — Therefore, s. 18(2) of Federal Child SupportGuidelines required that benefits of P Ltd. be added to pre-tax income if fatherfailed to establish that those benefits were reasonable.

Family law –––– Support — Child support under federal and provincialguidelines — Determination of spouse’s annual income — Pattern of in-come –––– Three-year average pursuant to s. 17 of Federal Child SupportGuidelines.


Family law –––– Support — Child support under federal and provincialguidelines — Determination of spouse’s annual income — Shareholdingspouses.

Family law –––– Support — Child support under federal and provincialguidelines — Retroactive award — Commencement date of retroactivepayments.

Cases considered by F.L. Schutz J.:

Baum v. Baum (1999), 1999 CarswellBC 2980, 7 R.F.L. (5th) 231, 182 D.L.R.(4th) 715, 27 B.C.T.C. 219, [1999] B.C.J. No. 3025 (B.C. S.C.) — referredto

Charles v. Young (2014), 2014 CarswellAlta 957, 2014 ABCA 200, 97 E.T.R.(3d) 1 (Alta. C.A.) — referred to

Combined Air Mechanical Services Inc. v. Flesch (2014), 2014 CarswellOnt640, 2014 CarswellOnt 641, 2014 SCC 7, 95 E.T.R. (3d) 1, (sub nom.Hryniak v. Mauldin) [2014] 1 S.C.R. 87, 27 C.L.R. (4th) 1, 37 R.P.R. (5th)1, 46 C.P.C. (7th) 217, 2014 CSC 7, (sub nom. Hryniak v. Mauldin) 314O.A.C. 1, (sub nom. Hryniak v. Mauldin) 453 N.R. 51, 12 C.C.E.L. (4th) 1,(sub nom. Hryniak v. Mauldin) 366 D.L.R. (4th) 641, 21 B.L.R. (5th) 248,[2014] S.C.J. No. 7, [2014] A.C.S. No. 7 (S.C.C.) — followed

Goett v. Goett (2013), 2013 ABCA 216, 2013 CarswellAlta 987, 553 A.R. 275,583 W.A.C. 275, 85 Alta. L.R. (5th) 190, 33 R.F.L. (7th) 301 (Alta. C.A.) —considered

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, 226B.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

McCaffrey v. Dalla-Longa (2008), 2008 CarswellAlta 408, 441 A.R. 122, 2008ABQB 183, 67 R.F.L. (6th) 12, [2008] A.J. No. 335 (Alta. Q.B.) — followed

Miller v. Joynt (2007), 2007 CarswellAlta 1811, 415 W.A.C. 150, 422 A.R. 150,87 Alta. L.R. (4th) 227, 2007 ABCA 214, 48 R.F.L. (6th) 256, [2007] A.J.No. 959 (Alta. C.A.) — considered

Richardson v. Richardson (1987), 1987 CarswellOnt 315, 1987 CarswellOnt963, 17 C.P.C. (2d) 104, [1987] 1 S.C.R. 857, 38 D.L.R. (4th) 699, 77 N.R.1, 22 O.A.C. 1, 7 R.F.L. (3d) 304, [1987] S.C.J. No. 30, EYB 1987-67464(S.C.C.) — referred to

Rush v. Rush (2002), 211 Nfld. & P.E.I.R. 198, 633 A.P.R. 198, [2002] P.E.I.J.No. 29, 27 R.F.L. (5th) 151, 2002 PESCTD 22, 2002 CarswellPEI 28 (P.E.I.T.D.) — 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, [2006] S.C.R. 37, 270

Wildeman v. Wildeman 115

D.L.R. (4th) 297, [2006] 2 S.C.R. 231, [2006] S.C.J. No. 37, [2005]S.C.C.A. No. 100 (S.C.C.) — referred to

Shaw v. Przybylski (2014), 2014 CarswellAlta 2033, 2014 ABQB 667, [2014]A.J. No. 1239 (Alta. Q.B.) — considered

Strang v. Strang (1992), 3 Alta. L.R. (3d) 1, [1992] 2 S.C.R. 112, 92 D.L.R.(4th) 762, 39 R.F.L. (3d) 233, 125 A.R. 331, 14 W.A.C. 331, 137 N.R. 203,1992 CarswellAlta 70, 1992 CarswellAlta 468, EYB 1992-66872, [1992]S.C.J. No. 55 (S.C.C.) — considered

Windsor v. Canadian Pacific Railway (2014), 2014 ABCA 108, 2014 Carswell-Alta 395, [2014] 5 W.W.R. 733, 94 Alta. L.R. (5th) 301, 371 D.L.R. (4th)339, 56 C.P.C. (7th) 107, (sub nom. Windsor v. Canadian Pacific RailwayLtd.) 572 A.R. 317, (sub nom. Windsor v. Canadian Pacific Railway Ltd.)609 W.A.C. 317, [2014] A.J. No. 256 (Alta. C.A.) — followed


Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)s. 2(1) “child of the marriage” — referred to

Rules considered:

Alberta Rules of Court, Alta. Reg. 124/2010R. 1.2 — considered



Generally — referred tos. 1 — considereds. 5 — considereds. 16 — consideredss. 16-18 — referred toss. 16-20 — referred tos. 17 — consideredss. 17-20 — referred tos. 18 — considereds. 18(1) — considereds. 18(2) — considereds. 19 — considereds. 19(1)(d) — considereds. 19(1)(f) — referred tos. 21 — considereds. 21(1) — considereds. 21(2) — considereds. 21(1)(f)(i) — considereds. 21(1)(f)(ii) — considered


Sched. I, s. 4(i) — referred to

APPLICATION by father for current and retroactive child support.

Margaret Weir Andreassen, for Applicant, Kim WildemanDiane Ridley, for Respondent, Twylla Shier

F.L. Schutz J.:

I. Introduction1 This matter came before me on November 6, 2014 as a special cham-

bers application. Mr. Kim Wildeman sought numerous forms of relieffrom Ms. Twylla Wildeman (hereafter Ms. Shier).

2 This decision about Mr. Wildeman’s guideline income under the Fed-eral Child Support Guidelines SOR 97-175 (“Guidelines”) will answerthe question of the amount to be paid for current or retroactive child sup-port. The issue is this: what amount, if any, ought to be imputed to Mr.Wildeman’s guideline income because either he, or his common-lawpartner, has allegedly received personal benefit from corporations hecontrols?

3 Both parties’ counsel confirmed that their respective client wantedthis matter dealt with now. Each party was aware that other courtprocesses could be engaged, such as a viva voce hearing or a full trial.But, for reasons of timeliness, cost-effectiveness and efficiency, theywere content to have my decision based upon the materials filed for thisspecial chambers hearing.

4 I satisfied myself that I could come to a just and fair result, recogniz-ing that sending the parties away would consign them to another series ofcostly court manoeuvres.

5 In the spirit of moving this litigation along, I also agreed that afterissuance of this decision I would permit further submissions pertaining towhether the son, Alexander Lorne Wildeman, was a child of the marriagebetween July 2013 and June 2014 and also, if necessary, about the char-acterization and amount of extracurricular and other expenses relating tothe children of the marriage.

II. Background6 Ms. Shier is a schoolteacher; thus, her income is as stated on Line 150

in her tax returns and is not in dispute.

Wildeman v. Wildeman F.L. Schutz J. 117

7 The parties were married in July of 1997 and separated in July of2009. They have three children:

• Alexander Lorne Wildeman, born September 1994 (age 20);

• Trisha Lee Wildeman, born April 1998 (age 16);

• McKaylla Dawn Wildeman, born July 2000 (age 14).8 Since June 1, 2014, Trisha Wildeman and McKaylla Wildeman have

had their primary residence with Mr. Wildeman.9 Ms. Shier agreed to pay guideline child support based upon her Line

150 income as of June 2014 in the amount of $1,347.00. Ms. Shier haspaid $1,500.00 per month for August, September and October and, ac-cording to Mr. Wildeman “acknowledges she owes Mr. Wildeman sup-port for June and July of 2013.” [para 3, Affidavit of Kim Wildemansworn 14 October 2014]

10 The disclosure process has been significantly delayed. Speaking gen-erally, it strikes me that the only legacy of delayed disclosure — otherthan added legal costs - is to frustrate the resolution of guideline incomeissues notwithstanding that child support is the right of children.

11 At the time of separation in 2009, Mr. Wildeman worked as a carsalesman. Although his income was somewhat unpredictable, he wasearning approximately $51,000.00 per year at that sales job. Ms. Shiersubmits, first, that inasmuch as her income has steadily risen since sepa-ration, one could reasonably expect the same of Mr. Wildeman’s income.As a general proposition, I respectfully disagree, and it would not be ap-propriate simply to add some arbitrary annual increase to Mr. Wilde-man’s past salary, a component for each year since the parties’ 2009 sep-aration. This is not to say that on other bases and for other reasons,however, Mr. Wildeman’s income has not increased for the purposes ofcalculating guideline income.

12 The amount of guideline income to be attributed to Mr. Wildeman iscomplicated by the fact that in 2010, he started a company called PrairieRose Bottled Water Ltd. (Prairie Rose). Prairie Rose’s financial state-ments for the years ending July 31, 2010, 2011, 2012 and 2013 are inevidence. In addition, Mr. Wildeman and Sherida Carlton, his common-law partner, are shareholders in another company, Shermik Holdings Ltd.(Shermik). Shermik built and owns a commercial building and rents oneof three commercial bays to Prairie Rose. The other two bays are rentedto arm’s length entities.


13 Ms. Shier contends that there are a number of expenses that PrairieRose and Shermik claim as corporate expense deductions that more prop-erly ought to be characterized as personal benefits accruing to Mr. Wild-eman, or personal benefits accruing to Ms. Carlton - his non-arm’s lengthcommon-law partner. This is the essence of Ms. Shier’s case, and towhich analysis I now turn.

III. Discussion and Analysis14 Deciding fair and reasonable guideline income under section 18 of

the Guidelines can be a complex undertaking. Here, in addition to thesworn affidavits and cross-examinations of the parties, I had the benefitof the opinion of Mr. Wildeman’s Chartered Accountant, Ms.Kushnerick.

15 Ms. Kushnerick’s opinion was filed with her affidavit on 5 November2014, one day before the hearing, in response to Ms. Shier’s contentionthat I ought to add back to Mr. Wildeman’s guideline income certaincorporate expense deductions because these were benefits paid by PrairieRose or Shermik to, or on behalf of Mr. Wildeman or Ms. Carlton, per-sons with whom these corporations do not deal at arm’s length.

16 I am aware of the Court of Appeal’s admonition that I risk falling intoreversible error if I decide matters on the basis of conflicting affidavitsand documents that would support either party’s position. See, for exam-ple, Charles v. Young, 2014 ABCA 200 (Alta. C.A.). Therefore, first Iconsidered whether I could make sufficient findings of fact on the recordto fairly determine Mr. Wildeman’s guideline income. Asking this ques-tion inevitably led to the questions of who has the onus in these situa-tions, and whether the onus shifts depending upon what corporate pay-ment or benefit is being scrutinized.

17 Consistent with foundational rule 1.2 of the Alberta Rules of Court,and in the spirit of judicial proportionality urged by the decision of theSupreme Court of Canada in Combined Air Mechanical Services Inc. v.Flesch, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.) and the decision of theAlberta Court of Appeal in Windsor v. Canadian Pacific Railway, 2014ABCA 108, 572 A.R. 317 (Alta. C.A.), I decided that by applying thecorrect onuses I could reach a fair and just result.

18 Now, to the steps in the analysis.


A. What Steps in the Analysis Must I Undertake?19 I first reiterate that child support is the right of the child that cannot

be bargained away. And, courts have no difficulty intervening where aspousal settlement agreement adversely affects the financial interests ofthe children: see Richardson v. Richardson, [1987] 1 S.C.R. 857(S.C.C.); and S. (D.B.) v. G. (S.R.), [2006] S.C.J. No. 37 (S.C.C.). Here,there was an agreement between the parties to deviate from the Guide-lines. I have no difficulty intervening in the parties’ agreement.

20 And, it must be top of mind that section 1 of the Guidelines works toensure that children continue to benefit from the financial means of bothspouses following separation. The term “means” was given a broad inter-pretation in Strang v. Strang, [1992] 2 S.C.R. 112 (S.C.C.) at para 119,where the Court held the term “means” should include “all pecuniaryresources, capital assets, income from employment or earning capacity,and other sources from which the person receives gains or benefits.” Thisdefinition was later adopted in Leskun v. Leskun, [2006] 1 S.C.R. 920,2006 SCC 25 (S.C.C.) at para 29.

21 Section 1 of the Guidelines is the screen through which all judicialdiscretion must be filtered. Section 1 of the Guidelines tells us that thebalance of the provisions in the Guidelines are designed to achieve theobjectives set out in section 1.

22 It is through the prism of these legislated objectives, then, that allspecific provisions of the Guidelines must be viewed, interpreted, andapplied. The objectives are four-fold, no one objective having priorityover, or more weight than, any other. These four objectives reflect valuedcommunity standards, and fundamental public policy principles:

Objectives

1. The objectives of these Guidelines are

(a) to establish a fair standard of support for children thatensures that they continue to benefit from the financialmeans of both spouses after separation;

(b) to reduce conflict and tension between spouses bymaking the calculation of child support orders moreobjective;

(c) to improve the efficiency of the legal process by giv-ing courts and spouses guidance in setting the levelsof child support orders and encouraging settlement;and


(d) to ensure consistent treatment of spouses and childrenwho are in similar circumstances.

23 The starting point is always the legislated objectives found in section1 of the Guidelines. Section 21 is the next step, where the court looks atthe mandatory disclosure that supplies necessary financial informationincluding, in the case of persons who control corporations, the financialstatements and a breakdown of all salaries, wages, management fees orother payment or benefits, paid to, or on behalf of, persons or corpora-tions with whom the corporation, and every related corporation, does notdeal at arm’s length. After looking at the information disclosed undersection 21, the court then applies section 16, or sections 17 to 20, as thecase may be.

24 Section 21 of the Guidelines provides a specific, mandatory disclo-sure mechanism to facilitate and meet these legislated objectives. Sub-section 21(1) speaks to the obligation of the applicant seeking child sup-port — in this case Mr. Wildeman - to make mandatory disclosure. Inturn, subsection 21(2) speaks to the obligation of a spouse who is servedwith an application for child support, to produce the mandatory disclo-sure set out in subsection (1).

25 The obligation goes both ways: Obligation of Applicant

21. (1) A spouse who is applying for a child support order and whoseincome information is necessary to determine the amount of the ordermust include the following with the application:

(a) a copy of every personal income tax return filed bythe spouse for each of the three most recent taxationyears;

(b) a copy of every notice of assessment and reassessmentissued to the spouse for each of the three most recenttaxation years;

(c) where the spouse is an employee, the most recentstatement of earnings indicating the total earningspaid in the year to date, including overtime or, wheresuch a statement is not provided by the employer, aletter from the spouse’s employer setting out that in-formation including the spouse’s rate of annual salaryor remuneration;


(d) where the spouse is self-employed, for the three mostrecent taxation years

(i) the financial statements of the spouse’s busi-ness or professional practice, other than a part-nership, and

(ii) a statement showing a breakdown of all sala-ries, wages, management fees or other pay-ments or benefits paid to, or on behalf of, per-sons or corporations with whom the spousedoes not deal at arm’s length;

(e) where the spouse is a partner in a partnership, confir-mation of the spouse’s income and draw from, andcapital in, the partnership for its three most recent tax-ation years;

(f) where the spouse controls a corporation, for its threemost recent taxation years

(i) the financial statements of the corporation andits subsidiaries, and

(ii) a statement showing a breakdown of all sala-ries, wages, management fees or other pay-ments or benefits paid to, or on behalf of, per-sons or corporations with whom thecorporation, and every related corporation,does not deal at arm’s length;

(g) where the spouse is a beneficiary under a trust, a copyof the trust settlement agreement and copies of thetrust’s three most recent financial statements; and

(h) in addition to any income information that must be in-cluded under paragraphs (c) to (g), where the spousereceives income from employment insurance, socialassistance, a pension, workers compensation, disabil-ity payments or any other source, the most recentstatement of income indicating the total amount of in-come from the applicable source during the currentyear, or if such a statement is not provided, a letterfrom the appropriate authority stating the requiredinformation.

Obligation of Respondent

(2) A spouse who is served with an application for a child supportorder and whose income information is necessary to determine theamount of the order must, within 30 days after the application is


served...provide the court, as well as the other spouse, or other as-signee, as the case may be, with the documents referred to in subsec-tion (1).

26 It is for good reason that section 21 makes disclosure obligationsmandatory. It is the primary, mandatory disclosure obligations under sec-tion 21 of the Guidelines that supply necessary information, if a courtdetermines that the amount of a spouse’s annual income under section 16would not provide the fairest determination of annual income.

27 The reciprocal obligations of the applicant and respondent are to eachother, to the assignee of the order if any, and to the court.

28 Section 21 disclosure, then, is absolutely necessary before a court cancommence its analysis under sections 16 to 20. In this case, section 21disclosure was absolutely necessary before I could commence the analy-sis that engages subsection 18(2). Subsection 18(2) dictates what must beadded to pre-tax income as benefits paid to, or on behalf of, non-arm’slength persons.

29 The language of section 21 tracks the language of section 18. Thestatutory language of subsection 18(2), too, is mandatory. Subsection18(2) stipulates that all amounts paid by the corporation as salaries,wages, or management fees, or other payments or benefits, to or on be-half of persons with whom the corporation does not deal at arm’s length”must be added to the pre-tax income, unless the spouse establishes thatthe payments were reasonable in the circumstances. [Underlining added]

30 For the sake of clarity, the precise statutory language in sections 16 to18 bears repeating:

16. Subject to sections 17 to 20, a spouse’s annual income is deter-mined using the sources of income set out under the heading “Totalincome” in the T1 General form issue by the Canada RevenueAgency and is adjusted in accordance with Schedule III.

17. (1) If the court is of the opinion that the determination of aspouse’s annual income under section 16 would not be the fairestdetermination of that income, the court may have regard to thespouse’s income over the last three years and determine an amountthat is fair and reasonable in light of any pattern of income, fluctua-tion in income or receipt of a non-recurring amount during thoseyears.

(2) Where a spouse has incurred a non-recurring capital or businessinvestment loss, the court may, if it is of the opinion that the determi-nation of the spouse’s annual income under section 16 would notprovide the fairest determination of the annual income, choose not to


apply sections 6 and 7 of Schedule III, and adjust the amount of theloss, including related expenses and carrying charges and interest ex-penses, to arrive at such amount as the court considers appropriate.

18. (1) Where a spouse is a shareholder, director or officer of a cor-poration and the court is of the opinion that the amount of thespouse’s annual income as determined under section 16 does notfairly reflect all the money available to the spouse for the payment ofchild support, the court may consider the situations described in sec-tion 17 and determine the spouse’s annual income to include

(a) all or part of the pre-tax income of the corporation,and of any corporation that is related to that corpora-tion, for the most recent taxation year; or

(b) an amount commensurate with the services that thespouse provides to the corporation, provided that theamount does not exceed the corporation’s pre-taxincome.

18(2) In determining the pre-tax income of a corporation for the pur-poses of subsection (1), all amounts paid by the corporation as sala-ries, wages or management fees, or other payments or benefits, to oron behalf of persons with whom the corporation does not deal atarm’s length must be added to the pre-tax income, unless the spouseestablishes that the payments were reasonable in the circumstances.

31 Also germane, says Ms. Shier, is section 19 which permits me to im-pute income as I consider appropriate, in several stipulated circum-stances, including “where the spouse has failed to provide income infor-mation when under a legal obligation to do so,” [Subsection 19(f))] or“where it appears that income has been diverted which would affect thelevel of child support to be determined under these Guidelines.” [Subsec-tion 19(d)]

32 Miller v. Joynt, 2007 ABCA 214, at para 21, 422 A.R. 150 (Alta.C.A.) notes that “there has been little uniform jurisprudence about thetreatment of corporate income when the corporation is owned and con-trolled by a payor parent. There are few appellate cases [citations omit-ted] and trial courts have taken different approaches....” While the dis-cussion there centered around the error in using the annual net change inretained earnings as the starting point, rather than correctly using the cor-poration’s pre-tax income, the same may be said about the different ap-proaches taken to amounts paid by a corporation under subsection 18(2),in the computation of pre-tax income.


33 Of significant assistance, though, is McIntyre J’s review of judicialthinking found in McCaffrey v. Dalla-Longa, 2008 ABQB 183, at paras240-242, 441 A.R. 122 (Alta. Q.B.), which I summarize as follows:

1. In adopting and applying the principles set out in Rush v.Rush [(2002), 211 Nfld. & P.E.I.R. 198 (P.E.I. T.D.)], itfalls first to the party making the assertion to adduce someevidence showing that the expense deductions shown in theshareholding spouse’s financial statements were improperfor the purposes of determining the shareholding spouse’sguideline income.

2. If the one asserting impropriety makes out a prima faciecase that such deductions were unreasonable, the onus willthen switch to the responding party to rebut thispresumption.

3. To establish a prima facie case that the corporate expensesclaimed by the respondent were improper under the Guide-lines, the assertion must have more substance than a mereallegation of impropriety about the expense claims.

4. Evidence ought to be introduced as to why, for example,claimed travel, or entertainment or other expenses were un-reasonable given the nature of the business.

5. If the presumption of impropriety is established, it wouldfall to the shareholding spouse to prove the legitimacy ofsuch expense claims.

6. This shifting evidential burden may be modified by statute.In the case of non- arm’s length payments, the evidentialburden has been modified by the Guidelines.

7. In respect of the onus of proving that amounts paid by acorporation to non-arm’s length persons were legitimatepayments, this shifting evidential burden is modified.

8. Where amounts paid by the corporation are to non-arm’slength persons, subsection 18(2) of the Guidelines clearlyplaces the onus on the shareholding spouse. In determiningthe pre-tax income of a corporation for the purposes of sub-section (1), all amounts paid by the corporation as salaries,wages or management fees, or other payments or benefits,to or on behalf of persons with whom the corporation doesnot deal at arm’s length must be added to the pre-tax in-


come, unless the shareholding spouse establishes that thepayments were reasonable in the circumstances.

9. Section 18 does not place the onus upon the shareholdingspouse, however, to show the reasonableness of all corpo-rate expenses; rather, it places an onus upon the sharehold-ing spouse to prove the reasonableness of any paymentsmade to non-arm’s length parties.

10. For all other expenses, the shifting burdens explained inMcCaffrey apply.

34 The McCaffrey analysis is very useful, providing the disclosure obli-gations under section 21 have been fully met. If the disclosure obliga-tions under section 21 are not met, then the Guidelines are very clear:unless the shareholding spouse establishes that the non-arm’s length pay-ments were reasonable in the circumstances, all amounts paid by the cor-poration as salaries, wages or management fees, or other payments orbenefits, to or on behalf of those non-arm’s length persons must be addedto the pre-tax income.

35 The plain reading of section 21 imposes an initial, mandatory disclo-sure obligation upon Mr. Wildeman, and upon any spouse who controls acorporation. This mandatory disclosure must necessarily and logicallyoccur first, before a court can address any of the situations set out insections 16 through 20.

36 To me, this is self-evident, yet section 21 mandatory disclosure obli-gations often seem to be overlooked, ignored, or there is only partialcompliance.

37 As a general proposition, I suggest that given the incontestable evi-dentiary burden imposed by subsection 18(2) of the Guidelines upon thespouse who controls a corporation, to establish that salaries, wages ormanagement fees, or other payments or benefits, to or on behalf of per-sons with whom the corporation does not deal at arm’s length personswere reasonable in the circumstances, persons who control corporationswho fail to fully and honestly comply with section 21 disclosure obliga-tions do so at their peril.

38 I find that in respect of both Prairie Rose and Shermik, Mr. Wildemanand Ms. Carlton are “persons with whom the corporation does not deal atarm’s length.”

39 I find that Mr. Wildeman is a spouse (the definition includes formerspouse) who controls corporations. Thus, it was Mr. Wildeman’s initial,


mandatory obligation under subsections 21(f)(i) and (ii) to include withhis application for child support, for the corporations’ three most recenttaxation years, the financial statements of the corporations and a “state-ment showing a breakdown of all salaries, wages, management fees orother payments or benefits paid to, or on behalf of, persons or corpora-tions with whom the corporation, and every related corporation, does notdeal at arm’s length.”

40 I find that only part of this mandatory breakdown was provided byMr. Wildeman, on the eve of the special chambers hearing. Yet, Mr.Wildeman admitted during cross-examination that the only cellphone hehas is a cellphone paid for by Prairie Rose, that the vehicle he uses forhis own personal use is owned and paid for by Prairie Rose, and Mr.Wildeman’s own accountant offers the opinion that some portion of themeals and travel paid for by Prairie Rose, and other expenses paid byPrairie Rose include some component for Mr. Wildeman’s personal ben-efit, although the amounts are not specifically broken down.

41 I read subsection 18(2) to require, for the purposes of subsection18(1), that if the shareholding spouse fails to establish that non-arm’slength payments were reasonable in the circumstances, all amounts paidby the corporation as salaries, wages or management fees, or other pay-ments or benefits, to or on behalf of persons with whom the corporationdoes not deal at arm’s length must be added to the pre-tax income.

42 I am aware that valid corporate objectives may differ from valid childsupport objectives. The purpose of section 16 of the Guidelines is to al-low the corporate veil to be lifted to ensure that money received as in-come fairly reflects all the money available for the payment of child sup-port: Baum v. Baum (1999), 182 D.L.R. (4th) 715, at para 28, 7 R.F.L.(5th) 231 (B.C. S.C.). And, there seems to be broad judicial discretionengaged in determining what is fair and reasonable, an exercise in discre-tion that is almost entirely fact driven.

43 In Goett v. Goett, 2013 ABCA 216, 553 A.R. 275 (Alta. C.A.), theCourt of Appeal was dealing with a situation where there had been atransfer of a corporation previously owned by the payor, for the purposeof avoiding child support obligations, and the parties were not dealing atarm’s length. Echoing Baum, at para 15 the Court of Appeal says that“the purpose of the exercise is to ensure that the money available to thepayor for the payment of child support is actually available for itspayment.”


44 Miller reminds me, at para 26, that “[e]ach case must be determinedon its own facts.”

B. Applying the Facts of this Case to the Analysis Above45 I understood Mr. Wildeman’s position to be that all of his pecuniary

resources, capital assets, income from employment or earning capacity,and other sources from which he receives gains or benefits, were re-flected in the amount declared as his Line 150 income.

46 Once Ms. Shier challenged this position, Chartered AccountantKushnerick, who is familiar with the corporate accounting of PrairieRose and Shermik, produced an opinion about possible values of per-sonal benefits paid by the corporations to, or on behalf of, Mr.Wildeman.

47 Ms. Kushnerick deposes that the calculations set out in her letter of29 October 2014 are accurate and are “in accordance with generally ac-ceptable accounting principles.”

48 Prairie Rose provides bottled water to small and larger retail custom-ers, including some oilfield supply and servicing companies. IncludingMr. Wildeman, Prairie Rose currently employs four people full-time.

49 During submissions, counsel for Mr. Wildeman said that Ms. Carltondoes unpaid work for the company and therefore, Ms. Carlton ought tobe entitled to her personal use of Prairie Rose’s 2011 Buick Enclave ve-hicle, in lieu of receiving paid wages or salary.

50 First, counsel submissions are not evidence. Second, I searched theevidence for any information about the type or quantity of work Ms.Carlton does for Prairie Rose. The only evidence I found was informa-tion supplied by Ms. Shier, who swears that Ms. Carlton uses PrairieRose’s 2011 Buick Enclave as her personal vehicle, plus the evidence ofMr. Wildeman who swears that Ms. Carlton works elsewhere as an LPN,a licensed practical nurse.

51 Third, even if I give some credence to the assertion that Ms. Carltoncontributes some value to Prairie Rose, I find that the value of the per-sonal benefit to Ms. Carlton of the use of the 2011 Buick Enclave signifi-cantly exceeds, in the circumstances, any contribution Ms. Carlton maymake to Prairie Rose. Therefore, the corporation’s payment for this 2011Buick Enclave, or on behalf of non-arm’s length Ms. Carlton, is not rea-sonable in the circumstances.


52 I am satisfied that Ms. Carlton’s personal vehicle, the 2011 Buick En-clave, is expensed through Prairie Rose because Ms. Shier swore in herOctober 23, 2014 affidavit at para 21 that this is Ms. Carlton’s personaluse vehicle and also attaches Exhibit J. Exhibit J is Prairie Rose’s CapitalAssets Permanent Working paper and includes as an asset the 2011 Bu-ick Enclave at an original cost of $51,234.25.

53 I accept Ms. Shier’s evidence. I also accept Prairie Rose’s evidencethat the 2011 Buick Enclave is an asset since Prairie Rose’s PermanentWorking paper was a document prepared in the ordinary course of Prai-rie Rose’s business; therefore, I admit Prairie Rose’s business documentfor the truth of its contents, in the absence of any evidence to thecontrary.

54 I conclude that Ms. Shier has established a prima facie case that the2011 Buick Enclave is a vehicle that is used for the personal benefit ofMs. Carlton, Mr. Wildeman’s non-arm’s length common-law partner.Mr. Wildeman bears the burden under subsection 18(2) to establish thatthis benefits paid by the corporation to, or on behalf of, Ms. Carlton wasreasonable in the circumstances. Mr. Wildeman has not met this burdenso I must apply subsection 18(2) and add the value of this benefit toPrairie Rose’s pre-tax income.

55 Mr. Wildeman says that although he works five or six days per weekdoing Prairie Rose business, he enjoys running his own business and dueto increased flexibility as compared to his former sales job, he is availa-ble as a parent “as needed.” He says that although Prairie Rose is notlosing money, “it is not overly profitable.” Mr. Wildeman says that hehas tried to make enough money to start paying himself a monthly wage.In 2013, he deposes he was paid wages of $26,910.00.

56 During cross-examination on his affidavit, which is evidence at large,Mr. Wildeman testified that he is now paid an hourly wage of $22.00 perhour. Extrapolated to an annual salary, this amounts to an income of ap-proximately $45,760.00 per year. Mr. Wildeman says that this paymentof an hourly wage is a relatively recent development. Since this cross-examination occurred in September 2014, I have taken that temporal fac-tor into account.

57 I find that in 2013, Mr. Wildeman’s was paid wages of $26,910.00and that is reasonably commensurate with his contributions to the dailyoperations and management of Prairie Rose and, accordingly, reasonablein the circumstances.


58 I accept that during cross-examination, Mr. Wildeman concedes thatthe vehicle he uses as his personal vehicle is also owned and expensedthrough Prairie Rose. Although there was some suggestion in argumentthat Mr. Wildeman uses a truck he bought for one of his daughters as hispersonal vehicle, I do not accept this suggestion. Rather, I accept Mr.Wildeman’s testimony that he uses Prairie Rose’s vehicle, currently aGMC 1500 vehicle, as his personal use vehicle.

59 The Chartered Accountant for Prairie Rose provided a Canada Reve-nue Agency (CRA) benefits calculator for Mr. Wildeman’s personal ve-hicle use benefit. No calculations were provided for Ms. Carlton’s per-sonal use benefit of the 2011 Buick Enclave, although Ms. Shier madesome suggestions about how that value ought to be calculated.

60 I find that using the CRA benefits calculator provided by Mr. Wilde-man’s accountant is the fairest method by which to extrapolate the valueof the personal vehicle benefit paid by the corporation on behalf to Ms.Carlton.

61 Based on Ms. Kushnerick’s opinion, I attribute 50% of Mr. Wilde-man’s use of Prairie Rose’s vehicle to personal use.

62 I attribute a greater percentage to Ms. Carlton’s personal use benefitof the 2011 Buick Enclave. A greater attribution is made to Ms. Carltonbecause she is employed full-time elsewhere. I settled on 85% of the2011 Buick Enclave’s annual mileage as Ms. Carlton’s personal usecomponent and give Ms. Carlton the remaining 15% value of the benefitas earned by her and reasonably commensurate with her contributions toPrairie Rose for which she is not paid. This may be a generous calcula-tion, it may be parsimonious. But, in the absence of evidence from Mr.Wildeman or Ms. Carlton that would have assisted in the determinationof what is reasonable, this is necessarily my fair estimate.

63 In reviewing the evidence, I initially found it difficult to discern whatother Prairie Rose or Shermik expenses may carry a component of per-sonal benefit, such as in the categories of vehicle maintenance and fuel,marketing, travel, meals and telephone costs. I was assisted in my delib-erations by the late-filed opinion of Chartered Accountant Kushnerickand her calculation worksheets, which calculations I accept.

64 Before I go to these other expenses, however, I note that in the years2012 and 2013, Prairie Rose showed retained earnings: $17,138.00 in2012 and $4,987.00 in 2013. From this, I infer that any wage or salarytaken by Mr. Wildeman did not put the corporate balance sheet in a defi-cit position. I also infer that Prairie Rose is a going concern, because


unless Mr. Wildeman intended to bleed Prairie Rose dry, he would nothave extracted any more money than that which the corporation’s ongo-ing daily operational requirements could reasonably withstand. Similarly,when Prairie Rose paid dividends to Mr. Wildeman, there was still valuesitting on the balance sheet, presumably enough value to cover day-to-day operating expenses and to pay debt.

65 In my view, the balance sheets of Prairie Rose reflect a corporationthat is growing its customer base and revenue stream. The retained earn-ings are modest and amount to a holdback of undistributed cash for un-foreseen contingencies. It is not fair to add back undistributed cash in ayear where it is not actually paid out, unless the holdback of retainedearnings is unreasonable. In this case, I cannot conclude that the hold-backs in 2012 or 2013 are unreasonable. If and when dividends are paidby the corporation to Mr. Wildeman from these retained earnings, thosepayments must be brought into account.

66 Section 18 and Schedule III dictate, however, that Prairie Rose’s pastpayment of corporate dividends to Mr. Wildeman in 2010 and 2013, asreported in his personal tax filings, must be brought into account as andwhen paid.

67 As for corporate dividends, Section 5 of Schedule III provides: Dividends from taxable Canadian corporations

5. Replace the taxable amount of dividends from taxable Canadiancorporations received by the spouse by the actual amount of thosedividends received by the spouse.

68 This provision must be taken into account, as I am bound by it.69 In the absence of any tax calculations concerning the treatment of Mr.

Wildeman’s receipt of corporate dividends, however, I decline to makeany adjustment.

70 In addition to the personal use of Prairie Rose’s vehicles by non-arm’s length Mr. Wildeman and Ms. Carlton, as previously discussed, Ifind that Ms. Shier also established a prima facie case that in respect ofother corporate expenses paid by Prairie Rose to arm’s length persons orentities, in the categories of travel, meals, cellphone use and vehicle re-pair, embedded in these deductions are payments by the corporation to,or on behalf of, Mr. Wildeman and Ms. Carlton because they receivedpersonal benefit from portions of these corporate expense deductions. Ifind, too, that Mr. Wildeman has satisfied the onus upon him to provethat a portion of these expenses were reasonable, in the circumstances.


71 To the extent that Chartered Accountant Kushnerick offers opinionsabout what may be reasonable percentage attributions for personal bene-fit, I accept her expert accounting opinion and set those attributions.

72 It is axiomatic that attributing additional income for child supportpurposes does not lead to the conclusion that there was anything wrongor untoward in what Mr. Wildeman or his accountant did in terms ofdeducting expenses and reporting of income for CRA purposes. AsGraesser J notes, “[m]any expenses are legitimately deductible from acompany’s income for tax purposes while providing a non-taxable bene-fit to the shareholders”: Shaw v. Przybylski, 2014 ABQB 667, at para 34,[2014] A.J. No. 1239 (Alta. Q.B.). That is not the problem.

73 Failing to disclose mandatory, necessary information is a problem,because failing to diligently comply with Guidelines processes under-mines the court’s ability to fairly determine guideline income. And, fail-ing to disclose required Guidelines information potentially cheats chil-dren of their lawful entitlement to proper child support: this must not becountenanced.

74 In summary, I have taken into account:

• Mr. Wildeman’s personal vehicle use is based on CRA calcula-tions of personal benefit as provided by Chartered AccountantKushnerick. The total taxable benefit that could be imputed byCRA in calculating 100% personal benefit of having an employerprovided vehicle is $38,279.52. I attribute Mr. Wildeman’s per-sonal benefit to be one-half the total, at 50%, or $19,139.76.

• Mr. Wildeman’s personal cellphone expense is estimated at 30%of total (as calculated by Ms. Kushnerick); therefore, his personalbenefit is calculated to be $1,300.00. Ms. Shier has not establisheda prima facie case that Ms. Carlton’s cellphone is also paid byPrairie Rose.

• Mr. Wildeman failed to provide the mandatory breakdown of Ms.Carlton’s non-arm’s length personal benefit from her use of the2011 Buick Enclave, so I have adjusted the CRA personal usebenefit calculations, by attributing 85% of the vehicle’s use to herpersonal use; that is: $38,279.52 × 85% = $32,537.15. As for theremaining 15%, I find this amount to be a reasonable benefitearned by Ms. Carlton, in lieu of remuneration, and commensurateto her contribution to Prairie Rose. In light of the evidentiary bur-den of Mr. Wildeman, I acknowledge this allowance may be gen-erous. In my view, however, I am entitled to exercise my discre-


tion and make this allowance, recognizing that the success of anew company usually requires more than merely the principal’scontribution. I balance giving this allowance with the recognitionthat the number of kilometers Ms. Carlton drives for personal ben-efit may be an over-estimate, as it is based on the CRA calcula-tor’s use of 50,000 kilometers per year. When I determine that Ms.Carlton drives 85% of 50,000 kilometers, or 42,500 kilometers peryear, that may be high. Because Mr. Wildeman adduced no evi-dence on either aspect of Ms. Carlton’s vehicle use, I added backwhat I think is fair.

• As for repair and maintenance of vehicles, although this is a sepa-rate line item expense on the 2010 and 2011 financial statementsof Prairie Rose, it is combined on the other financial statements.At any given time, Prairie Rose owns at least four vehicles, two ofwhich are partially used for personal use. I infer from the nature ofPrairie Rose’s business that its delivery vehicles and hauling vehi-cles travel farther, traverse worse road conditions, suffer moreoverall wear and tear, and probably break down and require partsand repair more often than the personal use vehicles driven by Mr.Wildeman and Ms. Carlton. Therefore, I have attributed roughly2/3rds of the vehicle repair and maintenance charges for one outof four vehicles; that is: 2/3rds of 25% of the total vehicle repairexpense deduction, to personal use benefits for vehicle repairs andmaintenance. Since Prairie Rose did not separate vehicle repairand maintenance in its 2012 and 2013 financial statements, I haveaveraged the first two years of expenses in this category and ap-plied that average to the last two years. Again, there is a paucity ofevidence on this point so I selected an amount I think is fair, in allthe circumstances.

• I have taken into account taxable dividends paid by Prairie Roseto Mr. Wildeman and included these dividend payments in hisLine 150 income.

• Property taxes and utilities paid by Prairie Rose were adjusted bythe tax and utilities authorities and were no longer an issue at thehearing.

• Insurance payments were questioned by Ms. Shier, but I am notpersuaded that these are unreasonable expenses given that Mr.Wildeman is Prairie Rose’s principal, he physically works in Prai-


rie Rose’s operations and his health is important to the company’ssuccess.

• Shermik showed a loss one year, and retained earnings the next;therefore, it is fair to look at those years collectively and balancelosses against gains.

• Finally, as it is my understanding that the CRA calculator lineitem “operating expense benefit” does include fuel costs and fuelis reflected in the total vehicle benefits calculation, to add an addi-tional component for personal use fuel would be double- counting.

75 One possibly fair method of determining Mr. Wildeman’s annualguideline income might involve taking his self-reported, self-declaredLine 150 income and then adding back the personal use benefits that heand Ms. Carlton take from Prairie Rose and Shermik, as follows:

2010 2011 2012 2013

Mr. Wildeman’s personal use of vehicle 19,139.76 19,139.76 19,139.76 19,139.76

Mr. Wildeman’s personal cellphone ex- 1,975.37 1,804.12 1,804.12 1,312.70pense

Ms. Carlton’s personal use of Buick En- 32,537.15 32,527.15 32,527.15 32,527.15clave, attributing 85%

Repairs and maintenance of personal use 1,640.60 1,315.50 1,477.83 1,477.83of two vehicles 2/3rds of 25%

50% of travel/meals costs 1,680.00 1,507.50 1,314.00 3,791.00

Mr. Wildeman’s declared total Line 150 24,062.50 2,500.00 11,970.40 40,659.76income

50% of retained earnings of Shermik, af- N/A N/A N/A 8.50ter adjusting loss with gains

TOTALS: 81,035.38 58,794.03 68,233.26 98,916.70

76 In this case, I find that a fairer method of determining Mr. Wilde-man’s annual guideline income is to use the Prairie Rose and ShermikChartered Accountant’s calculations of “total income available for childsupport”- a phrase that I find to be synonymous with guideline income -and then add back the additional personal benefits not brought into ac-count by Ms. Kushnerick. The additional personal benefits are Ms. Carl-ton’s use of the 2011 Buick Enclave, that portion of the vehicle repairsand maintenance deduction I have calculated to be a personal benefit,and the payment of dividends to Mr. Wildeman. Using this method, thecalculations are:


2010 2011 2012 2013

Total income available for child support 30,012.37 31,535.62 57,052.88 49,669.46including some expense add backs, ascalculated by Ms. Kushnerick, includingcellphone use, and travel and meals:

Ms. Carlton’s personal use of Buick En- 32,537.15 32,527.15 32,527.15 32,527.15clave, attributing 85% of CRA’s calcula-tor to personal use:

Repairs and maintenance of personal use 1,640.60 1,315.50 1,477.83 1,477.83of two vehicles, that is 2/3rds of onevehicle:

Total income available for child support (5,110.00) 7,981.00from Shermik, as calculated by Ms.Kushnerick:

Dividends paid by Prairie Rose to Mr. 24,062.50 13,750.00Wildeman:

TOTALS: 88,252.62 65,378.27 85,947.86 105,405.44

77 Over the last three years, there has been a fluctuation in Mr. Wilde-man’s income, so I am entitled to consider section 17 of the Guidelines. Ihave determined that in light of Mr. Wildeman’s pattern of income overthe last three years, the fair and reasonable determination would be to setthe average of the last three years as Mr. Wildeman’s total income avail-able for child support. Accordingly, I set Mr. Wildeman’s guideline in-come for child support purposes — for each of the calendar years 2011,2012 and 2013 - at $85,577.00 per year

78 I now turn to Ms. Shier’s income.

C. What Is Ms. Shier’s Income for 2010 and Following?79 Ms. Shier’s total Line 150 income is reliable and I set Ms. Shier’s

guideline income as follows:2010 2011 2012 2013

Total Line 150 income 87,153.36 98,697.88 94,645.56 91,868.00

D. From What Date Should I Set Retroactive Child Support?80 Ms. Shier objects to retroactive recalculation of child support largely

because of an agreement between the parties under which agreement theparties shared custody of the three children of the marriage, and underwhich neither party would pay child support. There was also an agree-ment that the parties would share the costs of the children’s extra-curric-ular expenses.


81 In March of 2011, Alexander began living primarily with Ms. Shierwhile the parties continued shared parenting of Trisha and McKaylla.Ms. Shier remarried in July of 2012 but delayed moving to Edmontonuntil 2013 to allow the children time to transition.

82 In June 2014, the parties agreed that Trisha and McKaylla would re-side primarily with Mr. Wildeman. The parties entered into a ConsentOrder dated 16 September 2014.

83 Ms. Shier also objects to a retroactive recalculation of child supportbecause there was no actual application for retroactive child support untilits returnable date on 19 November 2013. This 2013 application was ad-journed by consent as the parties needed to concentrate on urgent parent-ing issues.

84 Mr. Wildeman says that income has been a live issue since 2009when Mr. Wildeman served a Notice to Disclose and Notice of Motion.

85 During this hearing, Mr. Wildeman maintained that for some yearsMs. Shier has made substantially more income than him, and sought asection 3 child support order retroactive to 2010.

86 Mr. Wildeman asks that the extra-curricular expenses continue to beshared. Ms. Shier, on the other hand, says that the agreed extracurricularexpenses may not properly be section 7 expenses; rather, they may wellbe expenses more properly included in the table amount of any supportpayable.

87 At the time of this hearing, there was a relatively modest “equaliza-tion payment” due from one party to the other; therefore, once the partieshave this decision, it may serve their interests to simply equalize thesharing of these expenses and then reach agreement on what expensesgoing forward will qualify for their equal sharing agreement. This wouldavoid the further expense of a section 7 argument.

88 The authority that gives me discretion as to the appropriate date touse for retroactive awards is found in S. (D.B.) v. G. (S.R.).

89 In this case, it seems clear that both parties began the process of ob-taining disclosure well before the filing date of Mr. Wildeman’s applica-tion in or about November 2013. Mr. Wildeman’s income for 2010, 2011and 2012, plus the amount of corporately-deducted expenses for his per-sonal benefit, would have been well known to him before fall 2013. Thesame can be said respecting Ms. Shier’s disclosure of her Line 150income.


90 Both parties were obliged by court order dated September 12, 2006 toprovide annual disclosure of income information, the purpose of which,presumably, was to ensure that the children of this marriage were prop-erly supported by the payment of child support as determined by theGuidelines. It may be that the parties’ ongoing acrimony clouded theirperception or recollection of their respective legal obligations to theirchildren: see section 1 of the Guidelines.

91 Mr. Wildeman provided some breakdown of personal benefits paidby Prairie Rose but Ms. Kushnerick’s affidavit was filed only one daybefore the special chambers hearing on November 6, 2014.

92 Alexander has lived with Ms. Shier since March of 2011. Sharedparenting had been the norm for the two daughters, until the summer of2014.

93 In the end result, however, since at least two the three children areundoubtedly children of the marriage, and Alexander may have been achild of the marriage until June of 2014, I will set the date for com-mencement of retroactive child support at 1 January 2010. The childrenare entitled to the benefit of adequate child support, in the past, at pre-sent, and in the future.

IV. Conclusion and Costs94 Arrears accruing since 1 January, 2010, if any, shall be paid in incre-

ments of $200.00 per month to be paid in addition to the correct section 3table amount of child support.

95 If costs cannot be agreed, I invite brief written submissions at the ear-liest convenience of counsel, but no later than 60 days from today’s date.

96 In the meantime, I encourage the parties to access any form of media-tion or counselling, or other non-adversarial processes as may be availa-ble that may assist in extinguishing, or at least limiting, the bitter conflictthat seems to pervade the parties’ relationship.


Murphy v. Spinney 137

[Indexed as: Murphy v. Spinney]

Patrick Murphy, Applicant and Sharon Marlene Spinney,Respondent

New Brunswick Court of Queen’s Bench

Docket: FDM 711-13

2014 NBBR 234, 2014 NBQB 234

John J. Walsh J.


Judgment: October 24, 2014

Family law –––– Division of family property — Determination of ownershipof property — Application of trust principles — Resulting and constructivetrusts — Constructive trusts generally –––– Parties began cohabiting in Au-gust 2009 and separated in March 2013 — While cohabiting, parties purchasedproperty and recorded it in woman’s name only — Parties agreed that upon saleof property, they would split any profits after getting return on their originalinvestment — Man brought application for sale of property and distribution ofproceeds in accordance with interests described in agreement — Applicationgranted — Man was entitled to declaration that woman held title to property forhis benefit under constructive trust — Parties’ respective interests were as setout in their agreement — Man had made very substantial financial contributionto property — That benefit had enriched woman, given that she became sole le-gal title holder despite having contributed only 12.5 per cent of total cost —Enrichment corresponded to deprivation which man had suffered — There wasabsence of juristic reason to deny man recovery.

Cases considered by John J. Walsh J.:

Bartlett v. Murphy (2011), 2011 CarswellNB 275, 2011 NBQB 139, 965 A.P.R.270, 374 N.B.R. (2d) 270 (N.B. Q.B.) — referred to

Bartlett v. Murphy (2012), 1006 A.P.R. 388, 388 N.B.R. (2d) 388, 2012 NBCA44, 2012 CarswellNB 279, 2012 CarswellNB 280, [2012] N.B.J. No. 170(N.B. C.A.) — referred to

Kerr v. Baranow (2011), 14 B.C.L.R. (5th) 203, [2011] 3 W.W.R. 575, 64E.T.R. (3d) 1, 93 R.F.L. (6th) 1, 300 B.C.A.C. 1, 509 W.A.C. 1, 274 O.A.C.1, [2011] 1 S.C.R. 269, 108 O.R. (3d) 399 (note), 2011 SCC 10, 2011 Car-swellBC 240, 2011 CarswellBC 241, 328 D.L.R. (4th) 577, 411 N.R. 200,(sub nom. Vanasse v. Seguin) 108 O.R. (3d) 399, [2011] S.C.J. No. 10,[2011] A.C.S. No. 10 (S.C.C.) — considered

Peter v. Beblow (1993), [1993] 3 W.W.R. 337, 23 B.C.A.C. 81, 39 W.A.C. 81,101 D.L.R. (4th) 621, [1993] 1 S.C.R. 980, 150 N.R. 1, 48 E.T.R. 1, 77


B.C.L.R. (2d) 1, 44 R.F.L. (3d) 329, [1993] R.D.F. 369, 1993 CarswellBC44, 1993 CarswellBC 1258, EYB 1993-67100, [1993] S.C.J. No. 36(S.C.C.) — considered


Judicature Act, R.S.N.B. 1973, c. J-2s. 26(9) — considereds. 37 — considered

Land Titles Act, S.N.B. 1981, c. L-1.1Generally — referred to

Rules considered:

Rules of Court, N.B. Reg. 82-73R. 42.01 — consideredR. 67 — consideredR. 67.02 — referred toR. 67.02(c) — consideredR. 67.02(d) — referred toR. 67.04 — consideredR. 67.05 — consideredR. 67.06 — considered

APPLICATION by man for sale of property and distribution of proceeds in ac-cordance with interests described in parties’ agreement.

Kenneth W. Martin, for ApplicantRespondent, per se

John J. Walsh J.:

I. Introduction and Issues1 In my view, this should not have been a difficult case, except the

parties through their actions and interactions tried to make it so.2 The applicant is now 75 years old; the respondent is 58. The parties

began cohabitating in August 2009. The cohabitation was short lived.They separated in March 2013. The animosity is very high.

3 While cohabitating they purchased a cottage on Downing Street inGrande-Digue, N.B., which they subsequently rented during the monthsof July and August of each year, including this year. The property is re-corded in the respondent’s name only, subject to a collateral mortgage,also in her name only. The applicant has applied under Rule 67 of theRules of Court (Proceedings for Partitions or Sale) to have the cottage

Murphy v. Spinney John J. Walsh J. 139

sold and the proceeds distributed in accordance with the interests andpriorities of the parties (See: Rule 67.02) described in a written agree-ment made between them at the time of the purchase.

4 The applicant argues that the effect of the agreement is the creation ofa ‘common intention resulting trust’ in which the respondent holds titlefor both of them, with his being the greater interest. The respondent, al-though strictly speaking not objecting to the sale of the property and notdenying that the applicant does have some interest remaining in the pro-perty, denies that the applicant now has the greater interest.

5 Implicitly, the applicant’s interest claim is an equitable one, groundedon the concept of “unjust enrichment” (See: Kerr v. Baranow, 2011 SCC10 (S.C.C.)).

II. Facts6 The applicant owns a home and an “old family cottage” at 409 and

407 Chemin de la Cote, respectively, in Grand-Digue, N.B. When theparties cohabitated the applicant rented out his home and they lived inthis cottage in the spring, summer and fall and then wintered in Florida.In April 2011 the applicant became aware that a cottage at 30 DowningStreet, also in Grand-Digue, was up for sale by the owner for $89,500.The applicant testified that he offered $75,000, and he and the ownerthen agreed on $80,000. His original intention was to purchase it withcash by himself as an investment. However, he said the respondent“wanted in” on the investment. As a result, they agreed that he wouldpay $70,000 and she would pay $10,000 on the purchase price and thatwhen they sold the property they would split any profits over and abovetheir return on their original investment. As to the split in any profitsdespite the unequal investment, the applicant said he wanted to be fair tothe respondent.

7 The applicant paid his share (and an additional $493.50 for legal fees)from the proceeds of sale of stocks and it appears the respondent paid hershare out of proceeds from an earlier sale of her home in Nova Scotia.However, the respondent was named the only transferee under the Trans-fer document recorded under the Land Titles Act. The reason the propertywas put in the respondent’s name only was twofold: since the respondenthad no other real property in New Brunswick, they hoped to benefit fromthe residential tax credit against property taxes and to avoid any capitalgains tax on any later disposition.


8 This Transfer was recorded in the Land Titles system on June 13,2011. The applicant testified that to protect his interest he concurrentlywrote up a “side agreement”, which the respondent signed. The agree-ment, written entirely in the applicant’s handwriting except for the re-spondent’s signature and two apparent witness signatures, is as follows:

Pg. 1 of 1

This agreement dated June 8, 2011 is between Patrick Murphy andSharon Spinney whereas the parties have purchased a cottage at 30Downing Street, Caissie Cape, N.B. PID # 25092073. Patrick Mur-phy contributed $70,000 and Sharon Spinney contributed $10,000Towards the purchase price of $80,000. The Deed is in Mrs. Spinneyname.

It is agreed Patrick Murphy has total control over the sale of the cot-tage and Sharon Spinney will sell the cottage if at any time requestedby Patrick Murphy.

The proceeds of sale will be as follows:

$70,000 to Mr. Murphy

$10,000 to Mrs. Spinney

Any balance to be divided equally.

Should Mrs. Spinney die before Mr. Murphy the cottage ownershipwill immediately transfer to Mr. Murphy.

9 For the summer months of July and August of 2011 and 2012, theapplicant collected the rentals of $800.00 a week and paid the associatedexpenses (property taxes, insurance, satellite service, electricity, etc.).Beginning in the summer of 2012 these expenses included the interest ona line of credit of $34,500 obtained in May of 2012. This loan is securedby a collateral mortgage over the Downing Street cottage given in therespondent’s name only to the Bank of Nova Scotia. The mortgagesecures not just the initial proceeds disbursed but “all debts and liabili-ties, present and future ...” The relevance of this mortgage security re-quires explanation.

10 Recall the parties resided in Florida from November through April.While there in 2012 the parties purchased a condo for $80,000 in circum-stances that required immediate cash purchase in exchange for an appar-ently very favourable price. The applicant testified that he contributed$55,000 towards the purchase price and the respondent contributed$25,000. In order to fund his contribution he had to put $25,000 on hiscredit card, subject to later arranging a line of credit secured by a collat-eral mortgage on the Downing Street cottage with the Bank, which ar-


rangement could not be accomplished while in Florida. I am told that theCondo that was purchased in Florida is now the subject of legal actionbetween the parties in that State.

11 Upon their return to New Brunswick in May of 2012 the line of creditwas obtained. It too was in the respondent’s name only, although the ap-plicant testified he would have been prepared to have it in his name aswell, except the Bank did not require it. In any event, a collateral mort-gage was registered against the Downing Street cottage with the respon-dent shown as the mortgagor. The evidence is that the respondent contin-ues to access the line of credit; to what extent she has done so over andabove the initial monies advanced is not known, or, at least, she reportednot to know.

12 As for the initial monies advanced, on May 15, 2012 the proceeds ofthat loan were put into the applicant’s account, out of which he paid offthe $25,000 owing on his credit card and gave the respondent a chequefor $5,000.

13 In the fall of 2012 the Downing Street cottage was listed for sale.There were two buyers interested at a price of $105,000. However, inone case the prospective buyer was turned away when he obtained theresults of a home inspection report and the other declined when the appli-cant would not empty the septic system at the prospective buyers requestso as to see if the septic tank would hold up. The applicant had beenprepared, though, to put certain monies in trust for a year in the event thebuyer experienced problems.

14 The parties’ relationship began to turn sour around November 2012.It was over money. Generally, the respondent was upset that the appli-cant was estate planning to leave his assets to his children. Particularly,the respondent was upset that she was not seeing a return on her invest-ment in the Downing Street cottage property, the applicant having re-ceived the rents in the two previous summers. And, as was pointed out tothe applicant by the respondent, the so-called “side agreement” was si-lent as to the sharing of rental income.

15 The respondent took two unilateral steps in November 2012 whenthey began to argue over money. She surreptitiously recovered the origi-nal “side agreement” regarding the Downing Street cottage property andwrote over the top of it the words: “VOID Mortgage now on propertyNov 14/2012” followed by her signature, beneath which she wrote: “notapplicable”. That document with those later notations is exhibited beforethe Court as follows:


16 The evidence is that the applicant was not aware of the respondent’snotations written over the “side agreement” until approximately Februaryof 2013.

17 The other step the respondent took was to write out an invoice to theapplicant for the amount of $5,291.66 for “cleaning, painting, crack fill-ing windows” in 16 rooms in his home at 409 Chemin de la Cote and a


receipt of payment dated November 15, 2012, unsigned, purportedlyfrom the applicant for the same amount. The evidence is that the appli-cant was not aware of these documents until the respondent producedthem in advance of this hearing. The evidence is also that the respondentcreated the invoice and receipt to offset or, more accurately, counteractthe $5,000 he had given her out of the collateral mortgage proceeds backin May of 2012. Apparently she had performed this work in the appli-cant’s home in the summer of 2012 on her own initiative, but to the ap-plicant’s knowledge, at a time when the applicant was apparently havingmedical treatment.

18 The relationship ended while they were in Florida in March 2013,although they remained under the same roof there until the end of April.Matters degenerated further. The applicant sent the respondent a regis-tered letter dated March 25, 2013 (even though they were living in thesame household at the time). By that letter the applicant sought to triggerthe “side agreement” regarding the Downing Street cottage:

1. Rental of Property

The Agreement states I have control of the property. As a result youwill refrain from renting the property and/or collecting rent moneyfrom the property. Should you contravene this agreement I will havemy lawyer prosecute you to the full extent of the law.

2. Sale of Property

The agreement states that if I request you to sell the property you willlist it for sale. By receipt of this letter I want you to list the propertyfor sale ASAP. You can choose the real estate company but I wouldlike a copy of the listing. Should you wish to save real estate com-mission I would buy you out at your current net investment plus halfof the profit on sale based on appraisal. You will be charged withtrespassing if you enter the property.

Sincerely yours,

PATRICK J. MURPHY

(Emphasis added)

19 It appears the respondent got back to New Brunswick first, went tothe “old family cottage” at 407 Chemin de la Cote, removed what shesays is her personal property and put it in the Downing Street cottage. Hesays she took his personal property and so he went and recovered it.

20 In any event, the respondent decided she was going to rent the Down-ing Street cottage for July and August 2013. The applicant says that be-cause the respondent was not going to share the rentals he disabled the


septic system to make the cottage uninhabitable. She relented and he putthe system back in. He testified that she kept the deposits of $400.00from each renter and he collected the other half when the renter movedin. She testified that since it was her first year renting the property herselfshe did not think to obtain half the rent from each renter in advance andonly received a total of $500.00, $250.00 each from two renters. She alsodeposed to having received an additional $500.00 from the applicant atsome point. Apparently the applicant paid the expenses associated withthe cottage in 2013 up to the end of August of that year. At that time theapplicant agreed to let the respondent reside there, provided she pay theexpenses associated. She remained in the cottage until early December2013.

21 I pause again to note that in July 2013 the cottage was listed for salethrough a realtor by the respondent at the request of the applicant. Aseries of e-mails was entered into evidence by the respondent. They re-flect that in mid-August of that year the sale price was reduced to$99,500 and that on at least a couple of occasions thereafter the realtorwas not able to show clients when he made a request of the respondent.The respondent asked for a different agent, professing that she did notfeel comfortable allowing the realtor into the cottage as he was a friendof the applicant. The realtor gave up in apparent frustration.

22 The respondent returned to the Downing Street cottage sometime inthe month of May 2014. Insight into the respondent’s intentions, motiva-tions and subsequent actions regarding the Downing Street cottage isfound in an earlier e-mail she sent on May 5, 2014 to the applicant’s sonwho was acting as a go between for the parties:

Tell him I spoke to Jean Guy ... I told Jean Guy to cancel all rentalsfor 30 Downing Street ... your father has no business renting out thecottage ... the police told him last year,,, not to go onto the property,,if he does he can be arrested .... He is not supposed to have any con-tact with me .... When I get back to Canada I will be listing ... he hasnothing to do with the rental of the cottage, I have rented out already,so he better give back his deposit money or he will loose it ... [ad-dresses Florida condo property]

.... As per agreement at 30 Downing Street... the agreement states“Patrick Murphy has full control of the sale of the cottage” period...nothing said about renting it out,, or splitting the money... so he cango pound sand... where the sun doesn’t shine...I will see him incourt,,,unless he want to settle with my terms...tell him I have con-tacted the RCMP in Shediac,,,,he is not allowed near the cottage,,,,if


he goes near the cottage he will be charged....and see he is playinggames... he is saying now he doesn’t have my stuff... re-ally...uhmmm.... what a liar.... I have pictures to prove he has mystuff...I took pictures through his window...so now what is he goingto say ????? plus I have old pictures from years ago when I had thesame stuff in my house in Nova Scotia,,,now what will he tell a judgethen when I show he/she the pictures...judges don’t like liars andthieves... and that is what your father is ...

I laid out my terms...he can settle June 15 or end of September or thejudge will decide in October....

I am prepared to go to court,,, I don’t have a problem with that atall...actually I am looking forward getting on the stand...with my pic-tures,, my recorded phone message....and the agreement that states hehas control over the sale of the cottage...I will put the cottage up forsale...when I get back to New Brunswick as requested by your father... [addresses Florida condo property]

23 The respondent resided in the Downing Street cottage from sometimein May 2014 until the end of June and then rented it out for the months ofJuly and August at $800.00 per week for seven weeks and paid the asso-ciated expenses. She moved back into the cottage for the month of Sep-tember but was living elsewhere at the time of trial. The respondent alsolisted the property through a different realtor in July 2014 for $126,500.That listing was to expire at the end of October 2014 but has been nowrenewed until the end of June 2015. I see in the evidence that she hastaken to calling it her cottage.

24 The Court declines to further wade into the allegations and counterallegations of who did and said what to whom since separation. There isevidence that locks have been changed a number of times, hurtful wordshave been spoken, there have been allegations that threats have beenmade, allegations of mischief done to property and, apparently, there is atrial scheduled in the criminal courts next year because of the respon-dent’s allegation that the applicant “pushed her” this past summer, anallegation which the applicant strenuously denies. None of this has anyrelevance to the issues before this Court on the present Application. In-deed, that kind of evidence only obfuscates the real legal questions to bedecided here.


III. Legal Analysis

A. Assessment of the Equitable Interests and Priorities in the DowningStreet Cottage

25 Obviously, the nature of the unjust enrichment claim in this case istied to contributions to a specific property, the Downing Street cottage:

In recent decades, Canadian courts have adopted the equitable con-cept of unjust enrichment inter alia as the basis for remedying theinjustice that occurs where one person makes a substantial contribu-tion to the property of another person without compensation.

(Peter v. Beblow, [1993] 1 S.C.R. 980 (S.C.C.) at para. 2)26 The legal framework for assessing any unjust enrichment claim has

three main elements: first, an enrichment of or a benefit to the respon-dent; second, a corresponding deprivation of the applicant; third, absenceof a juristic reason for the enrichment (Kerr v. Baranow, supra at para.32). There is a fourth, the nature of the remedy should an unjust enrich-ment be established, whether proprietary (i.e. by declaration of a trust) ormonetary (e.g. on a quantum meruit basis) (See: Kerr v. Baranow, supraat paras. 46-53).

27 The Court will address each in turn.

i.) Has there been an enrichment of or a benefit to the respondent arisingfrom a substantial contribution made by the applicant to theacquisition, improvement, maintenance or preservation of theDowning Street cottage?

28 The so-called “link” between the contribution and the specific pro-perty has been established. (See: Kerr v. Baranow, supra at para. 51)Clearly, the applicant has made a very substantial financial contributionto the acquisition of the Downing Street cottage and the benefit from thatcontribution has enriched the respondent given she became the sole legaltitle holder despite having contributed only 12.5% of the total cost to theacquisition of the property.

ii.) Has there been a corresponding deprivation of the applicant becauseof his contributions to the Downing Street cottage?

29 Just as clearly, this “enrichment corresponds to a deprivation whichthe [applicant] has suffered” (Kerr v. Baranow, supra at para. 39). Therelevance of the equitable notion of what is called “mutual benefit con-ferral” will be addressed later.


iii.) Is there a juristic reason to deny the applicant recovery?30 The concept of “juristic reason” has been explained by the Supreme

Court: The third element of an unjust enrichment claim is that the benefitand corresponding detriment must have occurred without a juristicreason. To put it simply, this means that there is no reason in law orjustice for the [respondent’s] retention of the benefit conferred by the[applicant], making it “unjust” in the circumstances of the case ...

(Kerr v. Baranow, supra, at para. 40)31 Actually, the contract or the so-called “side agreement” the parties

entered into at the time of the purchase of the Downing Street cottageevidences an opposite juristic reason, i.e. there is every reason here forthe law to honour the bargain of the parties, otherwise the respondent’sretention of the benefit conferred on her would be “unjust”. This waspurely and simply an investment decision in which the applicant was tocontrol the later sale of the property and recover his initial investment(and the respondent’s) along with half of any profit made (with the re-spondent). And, the Court is satisfied that that agreement is a valid one,despite its homemade style and despite the lackadaisical or haphazardmanner in which it was apparently witnessed. It also reflects the intentionof the parties at the time they entered into it, although imperfectly since itdid not specifically address the question of entitlement to the rental in-come and responsibility for expenses. But, then again, gaps would not beunexpected given it was not drafted by a legal professional. And, as hasbeen seen in the respondent’s e-mail of May 5, 2014 set out earlier, shepurported to act under that very agreement. Furthermore, during her testi-mony, at least at the end, the respondent did not dispute she entered intoit, nor did she dispute its terms.

32 Nor is there any evidence of oppressiveness or unconscionablenesssurrounding the making and signing of that agreement or in the veryterms of the agreement. The respondent suggested in her evidence that ifshe had not signed it she “would not have had a place to live”. I rejectthat suggestion as it is not at all consistent with inherent probabilitygiven the circumstances. After all, it was she who wanted to put her owninvestment in and who would stand to benefit from any profits on re-saledisproportionate to her initial investment. And, the parties’ relationshiphad not yet started to deteriorate. Moreover, the existence of the concur-rent agreement was understandable given the relatively short time theparties had been together and the disproportionate investment made as


between the parties and the fact that the respondent would become thesole legal title holder.

33 As for the later collateral mortgage, the respondent’s argument ap-pears to be that it somehow transformed the validity of the initial so-called “side agreement”. Indeed, as has been seen, she acted on that pur-ported belief by the notations she made on top of that agreement muchlater. As for that stance, first of all, the respondent provided no evidencethat the collateral mortgage was involuntarily entered into by her (andthe evidence is that she continues to access the underlying line of creditthat was obtained). Secondly, the loan was simply a vehicle by whichanother investment was facilitated, the applicant’s share of the purchaseof the condo property in Florida. Thirdly, the manner in which the pro-ceeds of that mortgage were disbursed is entirely consistent with the ben-eficial interests of the parties reflected in the “side agreement”. Put dif-ferently, the mortgage did not impact on the respondent’s initialinvestment in the Downing Street cottage or on her right to share equallyin any profits upon its sale given the position the applicant took. I willexplain.

34 The applicant’s argument is that proportionately he received $29,500from those mortgage proceeds and the respondent received $5,000, bothamounts in obvious partial repayments of their respective initial invest-ments in the Downing Street cottage. What they did with those monies isirrelevant. This is because the applicant seeks on any sale of the Down-ing Street cottage (which by the terms of the agreement he was to con-trol) the amount of $40,000 to reflect the balance of his initial investment(which, in fact, is $500 less than he would otherwise be entitled) andsays that the respondent is entitled to the amount of $5,000 as repaymentof the balance owed to her on her initial investment. The parties wouldthen share equally in any profit over and above. In the Court’s view thatposition is a sound one, a position that not only remains consistent withthe terms of their original agreement but also exposes the respondent’sargument regarding the collateral mortgage as but a ‘red herring’.

35 The Court is satisfied that the applicant has made out a strong primafacie case of the absence of juristic reason to deny him recovery, whichcase has not been rebutted by the respondent. Before their relationshipimploded, the parties’ reasonable expectations were as expressed in theiragreement, subject to the proportionate reduction arising from the laterloan from the Bank.


iv.) Remedy36 As mentioned at the outset, the remedy the applicant seeks so as to

enforce his unjust enrichment claim and to reflect his beneficial interestin the Downing Street cottage is that of a declaration of a “common in-tention resulting trust”. However, even should a proprietary remedy beappropriate the law of equity does not support the imposition of that kindof trust, at least in the resolution of a domestic context case. Again, anexplanation is necessary.

37 The historic concept of a “resulting trust” was described in Kerr v.Baranow:

Resulting trusts arising from gratuitous transfers are the ones relevantto domestic situations. The traditional view was they arose in twotypes of situations: the gratuitous transfer of property from one part-ner to the other, and the joint contribution by two partners to the ac-quisition of property, title to which is in the name of only one ofthem ...

(Supra at para. 17)

38 Instead, the Supreme Court went on in that same case to endorse the“constructive trust” as the more appropriate legal vehicle when a proprie-tary remedy is warranted in circumstances such as here:

... The import of Pettkus [v. Becker, [1980] 2 S.C.R. 834] was thatthe law of unjust enrichment, coupled with the remedial constructivetrust, became the more flexible and appropriate lens through which toview property and financial disputes in domestic situations.

. . . . .

Imposed without reference to intention to create a trust, the construc-tive trust is a broad and flexible equitable tool used to determine ben-eficial entitlement to property ... Where [the applicant] can demon-strate a link or causal connection between his or her contributionsand the acquisition, preservation, maintenance or improvement of thedisputed property, a share of the property proportionate to the unjustenrichment can be impressed with a constructive trust in his or herfavour ... Pettkus made clear that these principles apply equally tounmarried cohabitants, since ‘[t]he equitable principle on which theremedy of constructive trusts rests is broad and general; its purpose isto prevent unjust enrichment in whatever circumstances it occurs” ...

(Kerr v. Baranow, supra at paras. 23 and 50)39 However, to avoid putting the proverbial cart before the horse it is

first necessary to determine if the proprietary remedy of a “constructive


trust” is appropriate in the circumstances here. In this regard, I en-deavoured to explain in another case:

..., it does not automatically flow that because an unjust enrichmenthas been found vis a vis a specific property that the proprietary rem-edy of a declaration of constructive trust will be made. There is anadditional analytical step beyond the finding of a link between theapplicant’s sufficiently substantial contribution and the property. Adeclaration can only be made if a “monetary award is inappropriateor insufficient” in the circumstances (See: Kerr v. Baranow, supra atpara. 50; Peter v. Beblow, supra, at para. 3; and see: Ellis v. Jones(2008) 336 N.B.R. (2nd 395 (Q.B.)).

A monetary award may be inappropriate or insufficient:

... if there is reason to grant to the plaintiff [applicant] theadditional rights that flow from recognition of a right ofproperty. Or to quote Dickson J., as he then was, inPettkus v. Baker ... where there is a “contribution [to theproperty] sufficiently substantial and direct as to entitle[the applicant] to a portion of the profits realized upon thesale of [the property].

(Peter v. Beblow, supra at para. 3, citing Lac MineralsLtd. v. International Corona Resources Ltd., [1989] 2S.C.R. 574, at p. 687 and Pettkus v. Becker, [1980] 2S.C.R. 834, at p. 852; see e.g. McCormick v. Doiron Es-tate, 2009 NBCA 19).

(Bartlett v. Murphy, 2011 NBQB 139 (N.B. Q.B.) at paras. 80-81;affirmed 2012 NBCA 44 (N.B. C.A.))

40 In this case there is no doubt a “sufficiently substantial and direct”contribution by the applicant to the acquisition of the Downing Streetcottage that entitles the applicant to a portion of any profits realized uponthe sale of the property. Indeed, the agreement the parties made evi-dences this right. In other words, there is a very strong link between the“value received” from the applicant’s contribution to the acquisition ofthe property and the “value surviving” in the property (See: Kerr v.Baranow, supra at para. 78). Actually, the strength of that claim couldnot be any greater than if he purchased the property entirely with his ownmonies. A monetary award is therefore not appropriate.

41 Having said that, the Court has not overlooked the concept of “mutualbenefit conferral” alluded to earlier, which is generally required to beaddressed at the defence and remedy stage of an unjust enrichment anal-ysis (See: Kerr v. Baranow, ibid. at para. 105). This concept encapsulates


the “common sense proposition” that: “a claimant cannot expect both toget back something given to the defendant and retain something receivedfrom him or her” (Kerr v. Baranow, at para. 101). To put it differently, acourt is required to determine if the applicant actually suffered a depriva-tion because of his contribution to the acquisition of the property or suf-fered a lesser deprivation than appears - because of unrecognized contri-butions made by the respondent, i.e., in this case over and above heroriginal financial investment of $10,000?

42 The respondent points to a number of areas where she says she madeunrecognized contributions that need to be accounted for in the determi-nation of their respective interests in the Downing Street cottage pro-perty. She generally points to domestic services she performed for theapplicant, but without assigning a monetary value, and particularly thelabour involved in cleaning, painting and crack-filling the applicant’shome, which she seems to have arbitrarily assigned a monetary value of$5,291.66 as evidenced by her ex post facto creation of an invoice andreceipt. The applicant counters that they shared domestic work and thathe financially provided for her across the spectrum, including paying forgroceries, trips, holidays and providing a vehicle for her in Florida(which he subsequently sold). The respondent replied that she had herown monies and paid her own way as evidenced by her bank statementsshe entered into evidence for the years 2009-2013. For reasons to beseen, I need not assess the credibility of these competing or off settingclaims made by the parties.

43 Although “cohabitation does not, in itself, under the common law ofunjust enrichment entitle one party to a share of the other’s property orany other relief” (Kerr v. Baranow, supra at para. 85), the law does, incertain circumstances, recognize like contributions as claimed and coun-terclaimed by the parties here:

...A spouse or domestic partner generally has no duty, at commonlaw, equity, or by statute, to perform work or services for the other. Itfollows, on a straightforward economic approach, that there is no rea-son to distinguish domestic services from other contributions ... Theyconstitute enrichment because such services are of great value to thefamily and to the other spouse; and any other conclusion devaluescontributions, mostly by women, to the family economy ... The un-paid provision of services (including domestic services) or labourmay also constitute a deprivation because the full-time devotion ofone’s labour and earnings without compensation may be readilyviewed as such. The Court rejected the view that such services could


not found an unjust enrichment claim because they are performed outof ‘natural love and affection’.

(Kerr v. Baranow, supra at para. 42)44 However, the nature of the unjust enrichment claim is tied to contri-

butions to a specific property (as opposed to an enrichment based on thewider concept of “joint family venture”, which this case is not (See: Kerrv. Baranow, supra at para. 87)). Ipso facto, the unrecognized contribu-tions to support a defence or counterclaim of “mutual benefit conferral”must, in my opinion, also relate to that specific property, i.e. the Down-ing Street cottage. I refer here for support to two decisions of the Su-preme Court:

Moreover, the notion that one can dispense with a link between theservices rendered and the property which is claimed to be subject tothe trust is inconsistent with the proprietary nature of the notion ofconstructive trust.

(Kerr v. Baranow, supra at para. 2)As to the nature of the link between the contribution and the pro-perty, the Court has consistently held that the plaintiff must demon-strate a “sufficiently substantial connection and direct” link, a “causalconnection” or a “nexus” between the plaintiff’s contributions andthe property which is the subject matter of the trust .... As DicksonC.J. put it in Sorochan, the primary focus is on whether the contribu-tions have a ‘clear proprietary relationship” ... In direct contributionsof money and direct contributions of labour may suffice, providedthat a connection is established between the plaintiff’s deprivationand the acquisition, preservation, maintenance, or improvement ofthe property ...

(Kerr v. Baranow, supra at para. 51)45 Stated differently, beyond financial what other contributions did the

respondent make to the Downing Street property that would counteract,in whole or part, the presumptive deprivation the applicant would sufferif his financial investment towards the acquisition of the property and hisbargained right to share half of the profits on any sale of the propertywere not recognized by the law of equity? On my view of the evidencethe respondent has failed to establish that any other contributions she didmake to that property (over and above her initial financial investment)through labour, material or services were greater than those made by theapplicant (over and above his initial financial investment). To the extentthe applicant financially benefited from summer rental income, so nowhas the respondent, partially in 2013 and fully this past summer. From a


proportionality stand point given the relative sums invested by each,those rental receipts at the very least cancel each other. Moreover, therespondent benefited in a way from the Downing Street property that theapplicant did not — she occupied the property for most of May and forthe month of June 2013 and from September to the end of November2013 and for the months of May and June and September 2014.

46 This is all to say that the application of the concept of “mutual bene-fits conferral” in the circumstances of this case does not mitigate the dep-rivation suffered by the applicant as earlier determined.

47 I will go further with the analysis, however, in the event the Court isin error in its assessment of the scope of “mutual benefits conferral”when it comes to an unjust enrichment claim tied to a specific property.In other words, what if the respondent was entitled to rely, in support of a“mutual benefits conferral” argument, on her claimed wider provision ofdomestic services to the applicant over their few years together and torely on the specific work she says she performed on another property asreflected in the documents she created? The short answer is that theCourt would also have to take into consideration a particular unrecog-nized and significant contribution made by the applicant to the respon-dent over which no credibility assessment would be required - duringtheir relationship she lived in the applicant’s own “old family cottage”during approximately 6 months of each of the years they resided togetherin New Brunswick.

48 Put another way, whatever otherwise unrecognized contributions oneconferred on the other during the time they lived together, whether inregard to the Downing Street cottage or more generally, the respondenthas failed to prove that her contributions to him were greater than hiswere to her.

B. Declaration of Interests and Priorities48 The result is that the applicant is entitled to a declaration that the re-

spondent also holds title to the Downing Street cottage for the benefit ofthe applicant under a constructive trust. Further, the applicant is entitledto a declaration that the parties’ respective interests in that property areas set out in their contract or so-called “side agreement” dated June 8,2011, subject to a liability as between them to the Bank of Nova Scotiafor the amount of $34,500.

49 The consequence is that the applicant’s entitlement upon sale of thesubject property is to recover the sum of $40,000 and the respondent’s


entitlement is to recover the sum of $5,000 and both shall thereaftershare equally in the profits of any sale - all after payment of the firstcharge liability to the Bank of Nova Scotia to the extent of $34,500 andafter payment of the typical costs associated with the sale, including realestate commissions and legal fees and disbursements.

50 Further, in the event that the subject property does not sell before theend of June 2015 and the applicant decides to rent the cottage for thesummer months, then the net rental income received shall be shared on apro rata basis as determined by the remaining amounts of the initial fi-nancial investment they are entitled to recover on a sale, i.e. the appli-cant’s share of the net rental income shall be 89% (based on $40,000)and the respondent’s share shall be 11% (based on $5,000). To the extentnecessary, the Court relies on Section 26 (9) of the Judicature Act for theauthority to make this determination with respect to entitlement to anyfuture rental incomes so as to ensure finality of proceedings.

C. The Exercise of the Powers of the Court under Rule 67 of the Rulesof Court

51 Rule 67.02 (c) of the Rules of Court provides that “the court mayorder that the lands or any portion of thereof be sold and direct the dis-tribution of the proceeds of the sale in accordance with the interests andpriorities of persons having an interest in the lands”. Having determinedthe interests and priorities and having directed the disposition of the pro-ceeds on any sale, the next step is to order that property be sold. Quitefrankly, the nature of the property and the level of animosity between theparties are such that an order for sale is the only reasonable solution.

52 The remaining task is to give directions regarding the sale. TheCourt’s directions are as follows:

i.) The applicant, in accordance with the parties’ agreementdated June 8, 2011, shall have the sole authority to controlthe sale of the property, including access to the property,and to negotiate and enter upon a purchase and sale agree-ment, subject to the ensuing terms and conditions;

ii.) The sale shall be brokered through Exit Realty Associatesin accordance with the Listing Agreement presently inplace. Should the listing agreement expire the applicant isat liberty to choose the realtor;

iii.) The parties appear to agree that a reasonable market pricefor the property is $109,000 and therefore, that will be the


listed price, subject, in the applicant’s sole discretion, to re-duce that price to no lower than, as suggested by the appli-cant, $95,000 if the circumstances warrant;

iv.) The respondent shall indemnify the applicant for any liabil-ity under the previously identified line of credit with theBank of Nova Scotia for any amount in excess of $34,500and should the Bank of Nova Scotia refuse to discharge theexisting collateral mortgage upon tender of the amount of$34,500, then any monies the respondent would otherwisebe entitled from the sale shall be paid to the Bank of NovaScotia to the extent necessary to obtain that discharge; Inthe meantime, the applicant shall be responsible for thepayment of interest payments under that line of credit com-mensurate to the loan of $34,500;

v.) Pursuant to Rule 67.04, the proceeds of any sale shall beheld in trust by counsel for the applicant and disbursed inaccordance with the Court’s foregoing determination of in-terests and priorities;

vi.) The respondent shall execute any title transfer documentsor other documents necessary to permit the sale, but shouldshe fail or refuse the Court nominates the Clerk of theCourt to do so on her behalf pursuant to the authority ofSection 37 of the Judicature Act;

vii.) Pursuant to Rule 42.01, the existing Certificate of PendingLitigation dated October 29, 2013 shall remain in effect un-til the property is sold or is at the closing stage of a sale,whereupon the Clerk of the Court shall revoke the Certifi-cate upon the request of the applicant.

53 Finally, the Court reminds the parties of the provisions of Rule 67.05of the Rules of Court:

(1) When an Order for Partition or Sale is made and

(a) no appeal is taken within the time prescribed for ap-peal, or

(b) all appeals and applications for leave to appeal havebeen

(i) dismissed,

(ii) abandoned, or

(iii) refused,


The Clerk shall certify on a copy of the Order for Partition orSale,

(c) that it was made and filed,

(d) that it is final, and

(e) that a conveyance or sale made in accordance with itsterms will convey all the right, title and interest of allparties to the proceedings as directed in the Order forPartition or Sale.

(2) When the Clerk has placed his certificate on a copy of theOrder for Partition or Sale under paragraph (1), he shall

(a) retain and file it, and

(b) provide a copy to the applicant and, on request, to anyother person.

(3) When an order for Partition or Sale is made and endorsedwith the certificate of the clerk under paragraph (1), the landor estate or interest in land described in the Order for Parti-tion or Sale shall be partitioned or sold according to its terms.

(4) A copy of the Order for Partition or Sale endorsed with thecertificate of the clerk under paragraph (1) may be registeredin the Registry Office for the County in which the lands aresituate.

IV. Costs54 Special costs provisions apply to proceedings for Partition and Sale.

Rule 67.06 states: (1) Unless ordered otherwise, the costs of all parties to a proceed-

ing under this rule shall be assessed by the court and shall beshared by the parties in proportion to the value of their re-spective interests in the lands and premises partitioned orsold.

(2) Costs assessed under paragraph (1) shall be a lien upon therespective shares of the parties in the lands partitioned or inthe proceeds of any sale thereof.

(3) If a party has needlessly commenced a proceeding for parti-tion, or has, without sufficient reason, refused to agree to apartition, a sale or other disposition of the property, the courtmay

(a) order the party to pay

(i) all of the costs of the proceeding, or

Murphy v. Spinney John J. Walsh, J. 157

(ii) a larger portion of the costs than he wouldhave paid under paragraph (1), and

(b) deprive the party of all or part of the costs of which hewould be entitled under paragraph (1).

55 I have concluded that in all the circumstances the respondent refused,without sufficient reasons, to agree to the sale of the property in accor-dance with the terms set out in their June 8, 2014 agreement. Her moti-vation for doing so seems largely driven by hurt and anger.

56 As far back as March 25, 2013 she was given the opportunity to re-cover her remaining investment and half the profits of any sale underbetter terms than the law would now permit. Recall that, against thebackdrop of the difficulty in effecting a sale in the summer of 2012,when the applicant sought to trigger the “side agreement” he advised therespondent that: “should you wish to save the real estate commission Iwould buy you out at your current net investment plus half of the profiton sale based on an appraisal”.

57 Furthermore, the respondent’s position regarding the impact of thesubsequent mortgage on the validity of their intial agreement, (i.e. that itwas now her cottage) was not at all a reasonable interpretation. And,even if it is understandable that the respondent wanted to share in therental income, she still had the opportunity to avoid the necessity of thistrial after she had collected the rental income this past summer. Instead, afull day hearing was required.

58 The consequence is that the respondent shall pay costs to the appli-cant, which will be deducted out of her share of the proceeds of the sale(See: Rule 67.02 (d)). The applicant seeks $1,500 in costs, all inclusive.This is more than reasonable, certainly much less than the Court wouldhave otherwise ordered.

V. Order59 A corresponding Order accompanies this Decision.

John J. Walsh, J.:

[TRADUCTION]


I. Introduction et questions en litige1 Il s’agit en l’espece d’une instance qui n’aurait pas du, a mon avis,

etre difficile, sauf que les parties se sont efforcees, par leurs actes et leursinteractions, de la rendre difficile.

2 Le requerant est maintenant age de soixante-quinze ans et l’intimee,de cinquante-huit ans. Les parties ont commence a cohabiter en aout2009. La cohabitation a ete de courte duree. Les parties se sont separeesen mars 2013. L’animosite est tres forte.

3 Pendant qu’elles cohabitaient, les parties ont achete un chalet sis rueDowning a Grande-Digue, au Nouveau-Brunswick, chalet qu’elles ontsubsequemment donne en location pendant les mois de juillet et aout dechaque annee, y compris la presente annee. Le bien-fonds est enregistreau seul nom de l’intimee et est greve d’une hypotheque accessoire aussietablie a son seul nom. Le requerant a presente une demande sous leregime de la regle 67 des Regles de procedure (Procedure de partage ouvente) afin que le chalet soit vendu et le produit de la vente distribueconformement aux droits et au rang des parties (voir la regle 67.02) quisont definis dans une entente ecrite intervenue entre elles au moment del’achat.

4 Le requerant pretend que l’entente en question a pour effet de creerune « fiducie resultoire fondee sur l’intention commune » dans le cadrede laquelle l’intimee detient le titre de propriete pour eux deux, son droitde propriete a lui etant le plus important. L’intimee, bien qu’elle nes’oppose pas, a strictement parler, a la vente du bien-fonds et ne nie pasque le requerant a toujours un certain droit sur celui-ci, nie que le requer-ant ait maintenant le droit de propriete le plus important.

5 Implicitement, la revendication de son droit par le requerant est unerevendication en equity fondee sur la notion d’« enrichissement injus-tifie » (voir l’arret Kerr c. Baranow, 2011 CSC 10).

II. Faits6 Le requerant est proprietaire d’une maison ainsi que d’un [TRADUC-

TION] « vieux chalet familial » sis respectivement au 409 et au 407,chemin de la Cote, a Grande-Digue, au Nouveau-Brunswick. Pendantque les parties cohabitaient, le requerant louait sa maison et les partiesvivaient dans ce chalet au printemps, en ete et en automne et elles pas-saient ensuite l’hiver en Floride. En avril 2011, le requerant a appris quele proprietaire d’un chalet sis au 30, rue Downing, a Grande-Digueegalement, avait mis ce chalet en vente au prix de 89 500 $. Le requerant


a temoigne qu’il lui avait offert 75 000 $ et que le proprietaire et luis’etaient ensuite entendus sur le prix de 80 000 $. Il avait initialement eul’intention de l’acheter au comptant, tout seul, a titre d’investissement.Toutefois, a-t-il dit, l’intimee voulait [TRADUCTION] « prendre part » al’investissement. Il s’en est suivi qu’ils ont convenu qu’il verserait 70000 $ et qu’elle verserait 10 000 $ pour acquitter le prix d’achat et quelorsqu’ils vendraient le bien-fonds, ils se partageraient les profits realisesen sus de leur investissement initial. En ce qui concerne le partage deseventuels profits malgre l’inegalite de leurs investissements respectifs, lerequerant a dit qu’il voulait etre juste envers l’intimee.

7 Le requerant a paye sa part (ainsi qu’un montant additionnel de493,50 $ au titre des honoraires d’avocat) en prelevant la somme neces-saire sur le produit de la vente de certaines actions et il semble quel’intimee a paye la sienne avec le produit de la vente de sa maison enNouvelle-Ecosse qui avait eu lieu anterieurement. Toutefois, l’intimee aete designee unique destinataire du transfert aux termes de l’acte detransfert inscrit en vertu de la Loi sur l’enregistrement foncier. La raisonpour laquelle le bien-fonds a ete inscrit au seul nom de l’intimee estdouble: puisque l’intimee n’avait pas d’autre bien reel au Nouveau-Brunswick, les parties esperaient avoir droit au credit d’impot foncier re-sidentiel et eviter d’avoir a payer l’impot sur les gains en capital au mo-ment d’une vente ulterieure.

8 Ce transfert a ete inscrit au moyen du systeme d’enregistrementfoncier le 13 juin 2011. Le requerant a temoigne que pour proteger sondroit de propriete, il a concurremment redige une [TRADUCTION] « en-tente parallele » que l’intimee a signee. Cette entente, qui est entierementecrite de la main du requerant, sauf pour ce qui concerne la signature del’intimee et celles de deux temoins apparents, est ainsi redigee:

Page 1/1

La presente entente, datee du 8 juin 2011, intervient entre PatrickMurphy et Sharon Spinney et constate l’achat par les parties d’unchalet sis au 30, rue Downing, a Cap-des-Caissie, au Nouveau-Brunswick, et portant le NID 25092073. Patrick Murphy a verse 70000 $ et Sharon Spinney a verse 10 000 $ en paiement du prixd’achat de 80 000 $. L’acte de transport est etabli au nom de Mme

Spinney.

Il est entendu que Patrick Murphy exerce un controle total sur lavente du chalet et que Sharon Spinney vendra le chalet si PatrickMurphy le lui demande a quelque moment que ce soit.


Le produit de la vente sera reparti ainsi:

70 000 $ a M. Murphy;

10 000 $ a Mme Spinney.

Tout excedent sera reparti egalement.

Pour le cas ou Mme Spinney decederait avant M. Murphy, la proprietedu chalet serait immediatement transferee a M. Murphy.

9 Pendant les mois de juillet et aout 2011 et 2012, le requerant a percule loyer de 800 $ par semaine et a paye les frais connexes (impotsfonciers, assurances, service par satellite, electricite, etc.). A compter del’ete 2012, ces frais comprenaient les interets sur une marge de credit de34 500 $ obtenue en mai 2012. Le pret en question est garanti par unehypotheque accessoire grevant le chalet de la rue Downing etablie auseul nom de l’intimee et consentie a La Banque de Nouvelle-Ecosse.L’hypotheque ne garantit pas seulement le produit initial verse mais aussi[TRADUCTION] « toutes creances et tous engagements, presents oufuturs ». La pertinence de cette garantie hypothecaire necessite uneexplication.

10 On se rappellera que les parties habitaient en Floride de novembre aavril. Pendant qu’elles s’y trouvaient, en 2012, les parties ont achete uncondo, qu’elles ont paye 80 000 $, dans des circonstances ou un paie-ment au comptant immediat etait exige en echange d’un prix apparem-ment fort avantageux. Le requerant a temoigne qu’il a verse 55 000 $ etl’intimee, 25 000 $, pour acquitter le prix d’achat. Pour financer sa con-tribution, il a du porter 25 000 $ a sa carte de credit, quitte a prendre plustard un arrangement avec la banque en vue d’une marge de credit garan-tie par une hypotheque accessoire grevant le chalet de la rue Downing,arrangement qui ne pouvait pas etre pris pendant qu’il etait en Floride.On me dit que le condo qui a ete achete en Floride fait maintenant l’objetd’une action en justice opposant les parties dans cet etat.

11 A leur retour au Nouveau-Brunswick en mai 2012, la marge de credita ete obtenue. Elle a aussi ete etablie au seul nom de l’intimee, bien quele requerant ait temoigne qu’il aurait ete dispose a ce qu’elle soit etabliea son nom aussi, mais que la banque ne l’a pas exige. Quoi qu’il en soit,une hypotheque accessoire grevant le chalet de la rue Downing a ete en-registree, l’intimee y etant designee comme la debitrice hypothecaire. Lapreuve etablit que l’intimee a toujours acces a la marge de credit; nous nesavons pas dans quelle mesure elle l’a utilisee en sus des sommes ini-tiales avancees, ou du moins elle a dit ne pas le savoir.


12 En ce qui concerne les sommes initiales avancees, le 15 mai 2012, leproduit de ce pret a ete verse au compte du requerant; il s’en est servipour rembourser les 25 000 $ portes a sa carte de credit et a remis al’intimee un cheque de 5 000 $.

13 A l’automne 2012, le chalet de la rue Downing a ete mis en vente.Deux acheteurs se sont montres interesses au prix de 105 000 $.Toutefois, un des acheteurs eventuels a ete dissuade d’acheter lorsqu’il aobtenu un rapport d’inspection du bien immobilier et l’autre s’est desistelorsque le requerant a refuse de vider la fosse septique apres qu’il l’eutdemande pour savoir si la fosse septique resisterait. Le requerant etaittoutefois dispose a mettre certaines sommes en fiducie, pendant un an,pour le cas ou l’acheteur aurait des problemes.

14 La relation entre les parties a commence a s’aigrir vers le mois denovembre 2012. L’argent en etait la cause. Dans l’ensemble, l’intimeeetait contrariee par le fait que le requerant, dans le cadre de sa planifica-tion successorale, prevoyait de laisser son patrimoine a ses enfants. Plusprecisement, l’intimee etait contrariee parce qu’elle n’obtenait aucunrendement sur son investissement dans le chalet de la rue Downing, etantdonne que c’est le requerant qui avait recu les loyers au cours des deuxetes precedents. De plus, comme l’intimee l’a rappele au requerant,l’entente qu’il est convenu d’appeler [TRADUCTION] l’« entente paral-lele » etait muette sur la question du partage des revenus de location.

15 L’intimee a unilateralement pris deux mesures, en novembre 2012,lorsqu’ils ont commence a se quereller au sujet de l’argent. Elle a subrep-ticement mis la main sur [TRADUCTION] l’« entente parallele » relativeau chalet de la rue Downing et a inscrit sur l’entente [TRADUCTION]« NULLE une hypotheque greve maintenant le bien, 14 nov. 2012 » suivide sa signature au-dessous de laquelle elle a ecrit: [TRADUCTION]« non applicable ». Ce document, ensemble ces inscriptions ulterieures,est depose devant la Cour et il est reproduit ci-dessous [dans sa versionoriginale anglaise]:


16 La preuve etablit que ce n’est que vers le mois de fevrier 2013 que lerequerant a pris connaissance de ce que l’intimee avait inscrit sur [TRA-DUCTION] l’« entente parallele ».

17 L’autre mesure prise par l’intimee a consiste a preparer, a l’intentiondu requerant, une facture de 5 291,66 $ pour des travaux [TRADUC-TION] « de nettoyage, de peinture et de remplissage des fentes des fene-tres » dans seize pieces de la maison du requerant sise au 409, chemin de


la Cote et a etablir un recu date du 15 novembre 2012 mais non signe,attestant le paiement de ce montant censement effectue par le requerant.La preuve montre que le requerant n’a appris l’existence de ces docu-ments qu’au moment ou l’intimee les a produits en prevision de lapresente audience. La preuve montre egalement que l’intimee a etablicette facture et ce recu pour compenser ou, plus exactement, pour con-trebalancer les 5 000 $ qu’il avait preleves sur le produit de l’hypothequeaccessoire en mai 2012 et lui avait donnes. Elle aurait effectue cestravaux dans la maison du requerant durant l’ete 2012 et de sa propreinitiative, mais au su du requerant, a un moment ou ce dernier auraitsuivi un traitement medical.

18 La relation a pris fin pendant qu’ils etaient en Floride en mars 2013,mais ils ont continue de vivre sous le meme toit jusqu’a la fin d’avril.Les choses ont degenere davantage. Le requerant a fait parvenir al’intimee une lettre recommandee datee du 25 mars 2013 (malgre le faitqu’ils vivaient sous le meme toit a l’epoque). Par cette lettre, le requeranta voulu faire appliquer [TRADUCTION] l’« entente parallele » in-tervenue relativement au chalet de la rue Downing:

[TRADUCTION]

1. La location du bien-fonds

L’entente precise que j’exerce un controle total sur le bien-fonds.Vous vous abstiendrez donc de donner le bien-fonds en location et depercevoir des loyers en vue de la location de ce dernier. Pour le casou vous contreviendriez a cette entente, je chargerai mon avocatd’engager contre vous toutes les poursuites permises par la loi.

2. La vente du bien-fonds

L’entente precise que si je vous demande de vendre le bien-fonds,vous le mettrez en vente. Lorsque vous recevrez la presente lettre, jeveux que vous mettiez le bien-fonds en vente le plus tot possible. Jevous laisse le choix de la societe immobiliere, mais j’aimerais obtenirune copie de l’inscription. Pour le cas ou vous souhaiteriez vousepargner la commission de la societe immobiliere, je racheterais vo-tre part en vous versant le montant net de votre investissement plus lamoitie du profit que rapportera la vente selon l’evaluation. Vousserez accusee d’intrusion si vous penetrez sur le bien-fonds. Biencordialement.

PATRICK J. MURPHY

[C’est moi qui souligne.]


19 Il semble que l’intimee soit rentree au Nouveau-Brunswick la pre-miere, qu’elle soit allee au [TRADUCTION] « vieux chalet familial » sisau 407, chemin de la Cote, en ait retire ce qu’elle dit etre ses biens per-sonnels et les ait apportes au chalet de la rue Downing. Le requerantaffirme qu’elle a pris des biens personnels qui lui appartenaient a lui etqu’il est donc alle les reprendre.

20 Quoi qu’il en soit, l’intimee a decide qu’elle allait donner le chalet dela rue Downing en location pendant les mois de juillet et d’aout 2013. Lerequerant dit que puisque l’intimee ne voulait pas partager le loyer percu,il a mis les installations septiques hors de service afin de rendre le chaletinhabitable. Elle est revenue sur sa decision et il a remis les installationsen service. Il a temoigne qu’elle gardait le depot de 400 $ verse parchaque locataire et qu’il percevait l’autre moitie du loyer lorsque le lo-cataire emmenageait. Elle a temoigne que puisque c’etait la premiere an-nee ou elle louait elle-meme le bien-fonds, elle n’a pas pense a obtenird’avance la moitie du loyer de chaque locataire et n’a recu que 500 $ autotal, soit 250 $ de deux locataires differents. Elle a egalement temoigneavoir recu une somme additionnelle de 500 $ du requerant a un certainmoment. Il semble que le requerant ait acquitte les frais afferents au cha-let en 2013, jusqu’a la fin d’aout de cette annee-la. A ce moment-la, lerequerant a accepte d’autoriser l’intimee a y habiter, a la conditionqu’elle acquitte les frais connexes. Elle a habite le chalet jusqu’au debutde decembre 2013.

21 Je marque de nouveau une pause pour souligner qu’en juillet 2013,l’intimee a mis le chalet en vente par l’intermediaire d’un courtier enimmeubles a la demande du requerant. L’intimee a depose en preuve uneserie de courriels. Ils montrent qu’a la mi-aout de cette annee-la, le prixde vente a ete ramene a 99 500 $ et que, par la suite, a au moins deuxreprises, le courtier n’a pas pu le faire visiter a des clients apres avoiradresse une demande a l’intimee. L’intimee a demande a avoir un autreagent, faisant valoir qu’elle n’etait pas a l’aise a l’idee de laisser le court-ier entrer dans le chalet parce qu’il etait un ami du requerant. Le courtiera renonce sous le coup d’une frustration evidente.

22 L’intimee est retournee au chalet de la rue Downing pendant le moisde mai 2014. Un courriel anterieur que l’intimee avait envoye, le 5 mai2014, au fils du requerant, qui faisait office de messager entre les parties,nous donne un apercu des intentions, des motivations et des actes ulter-ieurs de l’intimee relativement au chalet de la rue Downing:

[TRADUCTION]


Dis-lui que j’ai parle a Jean Guy... J’ai dit a Jean Guy d’annulertoutes les reservations pour le 30, rue Downing... il n’appartient pas aton pere de louer le chalet... la police lui a dit l’an dernier... de ne pasaller sur le bien-fonds... s’il y va, il peut etre arrete.... Il n’est censeavoir aucun contact avec moi.... Lorsque je rentrerai au Canada, je lemettrai en vente... il n’a rien a voir avec la location du chalet, je l’aideja donne en location, de sorte qu’il vaudrait mieux qu’il rende lemontant des depots ou il le perdra... [passage ou il est question ducondo en Floride].

.... Conformement a l’entente portant sur le 30, rue Downing...l’entente dispose que « Patrick Murphy exerce un controle total sur lavente du chalet » point... elle ne dit rien a propos de sa location, oudu partage de l’argent... il peut aller se faire voir... se le mettre la oule soleil ne brille pas... je le verrai en Cour... sauf s’il veut regler al’amiable et accepter mes conditions... dis-lui que j’ai communiqueavec la GRC a Shediac... il n’a pas le droit de s’approcher du chalet...s’il s’en approche, des accusations seront portees contre lui... et, tuvois, ce sont des manigances de sa part... il dit qu’il n’a pas mesaffaires ... vraiment... uhmmm... quel menteur... j’ai des photos quiprouvent qu’il a mes affaires... j’ai pris des photos par sa fenetre...donc, qu’est-ce qu’il pourra dire maintenant ????? En plus, j’ai devieilles photos prises il y a des annees lorsque ces memes affaires setrouvaient dans ma maison en Nouvelle-Ecosse.... Alors qu’est-cequ’il dira au juge lorsque je lui montrerai ces photos... les jugesn’aiment pas les menteurs et les voleurs... et c’est ce que ton pere est[...].

J’ai expose mes conditions... il peut regler a l’amiable le 15 juin ou ala fin de septembre sans quoi c’est le juge qui tranchera en octobre[...].

Je suis prete a aller en cour.... ca ne me pose aucun probleme... enfait j’ai hate d’aller a la barre... avec mes photos... mon messagetelephonique enregistre et l’entente qui dit qu’il exerce un controletotal sur la vente du chalet... je vais mettre le chalet en vente... lor-sque je rentrerai au Nouveau-Brunswick comme l’a demande tonpere... [passage ou il est question du condo en Floride].

23 L’intimee est allee habiter dans le chalet de la rue Downing un jourde mai 2014 et y est restee jusqu’a la fin de juin puis elle l’a donne enlocation pendant les mois de juillet et aout au prix de 800 $ par semaine,pendant sept semaines, et a acquitte les frais connexes. Elle a reem-menage dans le chalet pendant le mois de septembre, mais elle vivaitailleurs au moment du proces. En juillet 2014, l’intimee a egalement misle bien-fonds en vente, par l’intermediaire d’un autre courtier en im-


meubles, au prix de 126 500 $. Cette inscription devait expirer a la find’octobre 2014, mais elle a maintenant ete reconduite jusqu’a la fin dejuin 2015. Je vois dans la preuve qu’elle s’est mise a l’appeler « son »chalet.

24 La Cour refuse de s’aventurer davantage a essayer de demeler les al-legations et allegations contraires a propos de ce qui a ete fait et dit, parqui et a qui depuis la separation. Il existe des elements de preuve etablis-sant que des serrures ont ete changees un certain nombre de fois et quedes paroles blessantes ont ete prononcees, il y a eu des allegations selonlesquelles des menaces ont ete proferees ainsi que des allegations dedommages aux biens et, semble-t-il, un proces sera tenu au criminel l’anprochain en raison de l’allegation que formule l’intimee voulant que lerequerant l’ait [TRADUCTION] « poussee » l’ete dernier, allegation quele requerant nie energiquement. Rien de tout cela n’est pertinent pour cequi concerne les questions dont la Cour est saisie dans le cadre de lapresente requete. En fait, ce genre d’elements de preuve ne faitqu’obscurcir les veritables questions juridiques qui doivent etre trancheesen l’espece.

III. Analyse juridique

A. Determination du rang et des droits de propriete reconnus en equitypour ce qui concerne le chalet de la rue Downing

25 A l’evidence, la nature de la demande fondee sur l’enrichissement in-justifie, ou enrichissement sans cause, qui est formulee en l’espece estliee aux contributions faites a un bien-fonds precis, le chalet de la rueDowning:

Au cours des dernieres decennies, les tribunaux canadiens ont adoptele concept de l’enrichissement sans cause reconnu en equity, notam-ment comme moyen de remedier a l’injustice qui survient lorsqu’unepersonne apporte, sans recevoir de remuneration, une contributionimportante a l’avoir d’une autre personne.

(Peter c. Beblow, [1993] 1 R.C.S. 980, au par. 2.)26 Le cadre juridique qui permet d’evaluer une demande fondee sur

l’enrichissement injustifie comporte trois principaux elements: premiere-ment un enrichissement ou un avantage pour l’intime, deuxiemementl’appauvrissement correspondant du requerant et troisiemementl’absence de tout motif juridique a l’enrichissement (Kerr c. Baranow,precite, au par. 32). Il en existe un quatrieme, la nature de la reparationpour le cas ou l’enrichissement injustifie serait etabli, qu’elle soit fondee


sur le droit de propriete (c’est-a-dire le recours a une declaration defiducie) ou pecuniaire (par exemple calculee en fonction du quantum me-ruit) (voir Kerr c. Baranow, precite, aux par. 46 a 53).

27 La Cour examinera chacun dans l’ordre.

i.) Y a-t-il eu un enrichissement ou un avantage pour l’intimee par suited’une contribution importante de la part du requerant a l’acquisition,l’amelioration, l’entretien ou la conservation du chalet de la rueDowning?

28 Le « lien », ainsi qu’il est convenu de l’appeler, entre la contributionet le bien-fonds en question a ete etabli. (Voir Kerr c. Baranow, precite,au par. 51.) Il est manifeste que le requerant a apporte une contributionfinanciere tres importante a l’acquisition du chalet de la rue Downing etl’avantage decoulant de cette contribution a enrichi l’intimee etant donnequ’elle est devenue l’unique detentrice du titre juridique malgre le faitque sa contribution ne represente que 12,5 % du cout total del’acquisition du bien.

ii.) Y a-t-il eu appauvrissement correspondant du requerant en raison deses contributions au chalet de la rue Downing?

29 Il est tout aussi manifeste que le requerant « a subi un appauvrisse-ment qui correspond a cet enrichissement » (Kerr c. Baranow, precite, aupar. 39). La pertinence de la notion dite des « avantages reciproques »,reconnue en equity, sera examinee plus loin.

iii.) Existe-t-il un motif juridique de refuser une indemnisation aurequerant?

30 La notion de « motif juridique » a ete expliquee par la Cour supreme: Le troisieme element d’une action pour enrichissement injustifie estqu’il doit y avoir eu un avantage et un appauvrissement cor-respondant sans motif juridique. En somme, ni le droit ni les ex-igences de la justice ne permettent [a l’intimee] de conserverl’avantage confere par le [requerant], rendant la conservation del’avantage « injuste » dans les circonstances de l’affaire[.]

(Kerr c. Baranow, precite, au par. 40.)31 En fait, le contrat ou ce qu’il est convenu d’appeler [TRADUCTION]

l’« entente parallele » intervenue entre les parties au moment de l’achatdu chalet de la rue Downing etablit l’existence d’un motif juridique con-traire, c’est-a-dire que le droit a toutes les raisons d’honorer l’entente


intervenue entre les parties, sans quoi la conservation par l’intimee del’avantage qui lui a ete confere serait « injuste ». Il s’agissait purement etsimplement d’une decision de faire un investissement dans le cadre du-quel le requerant devait avoir la main haute sur la vente ulterieure dubien et recouvrer son investissement initial (et celui de l’intimee) ainsique la moitie du profit realise (conjointement avec l’intimee). De plus, laCour est convaincue que l’entente en question est valide, malgre sonstyle artisanal et malgre la facon improvisee et impromptue dont sapassation a, semble-t-il, ete attestee par des temoins. L’entente refleteegalement l’intention des parties au moment ou elles l’ont passee, bienqu’imparfaitement etant donne qu’elles n’y ont pas expressement abordela question du droit aux revenus locatifs ni celle de savoir qui devait ac-quitter les frais. Toutefois, la encore, des lacunes ne sont pas inattenduesetant donne qu’elle n’a pas ete redigee par un juriste. De plus, commenous l’avons vu dans le courriel de l’intimee du 5 mai 2014, cite plus tot,elle a pretendu agir en vertu de cette meme entente. En outre, pendantson temoignage, du moins a la fin, l’intimee n’a pas conteste le faitqu’elle a passe cette entente et elle n’en a pas non plus conteste lesclauses.

32 Il n’existe non plus aucune preuve d’un abus d’autorite ou d’une ini-quite dans la redaction et la passation de cette entente ou dans les clausesmemes de l’entente. L’intimee a laisse entendre dans son temoignage quesi elle ne l’avait pas signee, elle [TRADUCTION] « n’aurai[t] pas eud’endroit ou vivre ». Je rejette cette insinuation parce qu’elle n’est pas dutout compatible avec la probabilite intrinseque dans les circonstances.Apres tout, c’est elle qui a voulu investir ses propres avoirs et qui devaittirer des profits realises au moment de la revente un avantage sans com-mune mesure avec son investissement initial. Mentionnons egalementque la relation entre les parties n’avait pas encore commence a se deteri-orer. De plus, l’existence de l’entente concomitante etait comprehensibleetant donne que les parties etaient ensemble depuis relativement peu detemps, que leurs investissements respectifs etaient disproportionnes etque l’intimee allait devenir l’unique detentrice du titre juridique.

33 En ce qui concerne l’hypotheque accessoire ulterieure, l’intimee sem-ble pretendre que cette hypotheque a en quelque sorte transforme lavalidite de [TRADUCTION] l’« entente parallele », comme il est con-venu de l’appeler. En effet, comme nous l’avons vu, elle a agi ens’appuyant sur cette conviction d’apres les inscriptions qu’elle a faitessur l’entente beaucoup plus tard. En ce qui concerne cette position, enpremier lieu, l’intimee n’a depose aucune preuve etablissant que c’est


involontairement qu’elle a passe l’hypotheque accessoire (et la preuveetablit qu’elle continue d’acceder a la marge de credit sous-jacente qui aete obtenue). En second lieu, le pret a simplement constitue un mecan-isme qui a permis de faciliter un autre investissement, a savoir la part del’achat du condo en Floride qui incombait au requerant. En troisiemelieu, la facon dont le produit de cette hypotheque a ete depense est tout afait compatible avec l’interet beneficiaire de chaque partie qui est men-tionne dans [TRADUCTION] l’« entente parallele ». Pour dire les chosesdifferemment, l’hypotheque n’a pas eu d’incidence sur l’investissementinitial de l’intimee dans le chalet de la rue Downing ni sur son droit a unepart egale des profits susceptibles d’etre realises au moment de la venteetant donne la position adoptee par le requerant. Je m’explique.

34 Le requerant pretend que, proportionnellement, il a recu 29 500 $ surle produit de l’hypotheque et l’intimee 5 000 $, les deux montants enremboursement partiel evident de leurs investissements initiaux respec-tifs dans le chalet de la rue Downing. Ce que les parties ont fait de cessommes n’est pas pertinent. Il en est ainsi parce que le requerant de-mande, en cas de revente du chalet de la rue Downing (vente sur laquelleil devait, aux termes de l’entente, exercer un controle total), la somme de40 000 $, soit le solde de son investissement initial (qui s’etablit en fait a500 $ de moins que le montant auquel il aurait par ailleurs droit) et ditque l’intimee a droit a la somme de 5 000 $ en remboursement du soldequi lui est du sur son investissement initial. Les parties se partageraientensuite egalement tout profit realise en sus de ces sommes. La Cour es-time que cette position est solide et qu’il s’agit d’une position qui nonseulement demeure compatible avec les clauses de leur entente originale,mais qui montre egalement que l’argument de l’intimee concernantl’hypotheque accessoire n’est qu’un « faux-fuyant ».

35 La Cour est convaincue que le requerant a presente une solide preuvesuffisante a premiere vue de l’absence d’un motif juridique de lui refuserl’indemnisation, preuve que l’intimee n’a pas refutee. Avant que leur re-lation n’implose, les attentes raisonnables des parties etaient celles quisont exprimees dans leur entente, sous reserve de la reduction propor-tionnelle decoulant du pret ulterieur de la banque.

iv.) Reparation36 Comme je l’ai mentionne au debut, la reparation que le requerant sol-

licite afin de justifier sa reclamation pour enrichissement injustifie et defaire valoir son interet beneficiaire sur le chalet de la rue Downing est un


jugement declaratoire constatant l’existence d’une « fiducie resultoirefondee sur l’intention commune ». Toutefois, meme dans le cas ou unereparation fondee sur le droit de propriete serait indiquee, l’equityn’appuie pas l’imposition d’une fiducie de ce genre, du moins pour laresolution d’une instance qui s’inscrit dans un contexte familial. La en-core, une explication s’impose.

37 Le concept historique de la « fiducie resultoire » a ete expose dansl’arret Kerr c. Baranow:

Les fiducies resultoires decoulant de transferts a titre gratuit sont cel-les qui sont pertinentes en matiere familiale. Selon le point de vuetraditionnel, elles decoulaient de deux types de situations: le transferta titre gratuit d’un bien d’un partenaire a l’autre, et la contributiondes deux partenaires a l’acquisition d’un bien, dont le titre est au nomd’un seul des partenaires. [...]

(Kerr c. Baranow, precite, au par. 17.)38 La Cour supreme a plutot, dans ce meme arret, exprime sa preference

pour la « fiducie constructoire » parce qu’elle constitue le mecanismejuridique le plus approprie lorsqu’une reparation fondee sur le droit depropriete est justifiee dans des circonstances comme celles qui nous oc-cupent en l’espece:

[...] Par suite de l’arret Pettkus [c. Becker, [1980] 2 R.C.S. 834], lesregles de l’enrichissement injustifie, conjuguees aux regles de lafiducie constructoire de nature reparatoire, sont devenues le mecan-isme le plus souple et le plus approprie pour resoudre les litiges enmatiere de biens et les differends financiers en matiere familiale.

[...]

Imposee sans qu’il y ait une intention de creer une fiducie, la fiducieconstructoire est un outil general, souple et juste qui permet de deter-miner le droit de propriete veritable [...]. Si le [requerant] peut etablirun lien ou un rapport de causalite entre ses contributions etl’acquisition, la conservation, l’entretien ou l’amelioration du bien encause, une part proportionnelle a l’enrichissement injustifie peut fairel’objet d’une fiducie constructoire en sa faveur [...]. Il ressort claire-ment de l’arret Pettkus que ces principes s’appliquent egalement auxconjoints non maries, puisque « [l]e principe d’equity sur lequel re-pose le recours a la fiducie par interpretation [ou fiducie con-structoire] est large et general; son but est d’empecherl’enrichissement sans cause dans toutes les circonstances ou il sepresente » [...].

(Kerr c. Baranow, precite, aux par. 23 et 50.)


39 Toutefois, pour eviter de mettre la proverbiale charrue devant lesbœufs, il faut d’abord determiner si la reparation fondee sur le droit depropriete qu’est la « fiducie constructoire » est indiquee dans la situationqui nous occupe. A cet egard, voici les explications que je m’etais appli-que a donner dans une autre instance:

[TRADUCTION]

[C]e n’est pas parce que l’on a conclu a un enrichissement injustifierelativement a un bien precis qu’il s’ensuit automatiquement que lareparation fondee sur le droit de propriete qu’est la fiducie con-structoire sera accordee. Il y a une etape analytique supplementaire afranchir apres avoir conclu a l’existence d’un lien entre la contribu-tion suffisamment importante du requerant et le bien en question. Lejugement declaratoire ne peut etre rendu que si une « reparationpecuniaire est inappropriee ou insuffisante » dans les circonstances(voir les arrets Kerr c. Baranow, precite, au par. 50, et Peter c.Beblow, precite, au par. 3; et voir la decision Ellis c. Jones (2008),336 R.N.-B. (2e) 395 (C.B.R.)).

Une reparation pecuniaire peut etre inappropriee ou insuffisante:

« [...] en presence d’un motif pour accorder au demandeurles droits supplementaires decoulant de la reconnaissanced’un droit de propriete ». Ou, selon le juge Dickson (plustard Juge en chef) dans l’arret Pettkus c. Becker, [1980] 2R.C.S. 834, a la p. 852: « sa contribution [a la propriete]etait-elle suffisamment importante et directe pour lui [lerequerant] donner droit a une partie des profits realises surla vente de la propriete ».

(Peter c. Beblow, precite, au par. 3, ou l’on cite LacMinerals Ltd. c. International Corona Resources Ltd.,[1989] 2 R.C.S. 574, a la p. 687, et Pettkus c. Becker,[1980] 2 S.C.R. 834, a la p. 852; voir, par exemple,McCormick c. La succession de Gilles Doiron et HildaPower, 2009 NBCA 19).

(Bartlett c. Murphy, 2011 NBBR 139, aux par. 80 et 81; conf.2012 NBCA 44)

40 En l’espece, il ne fait aucun doute que le requerant a fait une contri-bution « suffisamment importante et directe » a l’acquisition du chalet dela rue Downing, contribution qui lui donne droit a une partie des profitssusceptibles d’etre realises lors de la vente du bien. D’ailleurs, l’ententeque les parties ont passee etablit l’existence de ce droit. Autrement dit, ilexiste un lien tres etroit entre la « valeur recue », qui provient de la con-


tribution du requerant a l’acquisition du bien, et la « valeur accumulee »du bien (voir Kerr c. Baranow, precite, au par. 78). A vrai dire, la soliditede cette pretention ne pourrait pas etre plus grande meme s’il avait achetele bien uniquement avec son propre argent. Une reparation pecuniairen’est donc pas appropriee.

41 Cela dit, la Cour n’a pas oublie la notion des « avantages recipro-ques » a laquelle nous avons fait allusion plus tot, laquelle doit generale-ment etre examinee au stade de la defense et au moment de determiner lareparation a accorder au titre de l’enrichissement injustifie (voir Kerr c.Baranow, precite, au par. 105). Cette notion englobe la « propositionsensee » qui veut que « le demandeur ne [puisse] pas s’attendre tout a lafois a recuperer quelque chose qu’il a donne au defendeur et a conserverune chose que lui a donnee le defendeur » (Kerr c. Baranow, au par.101). Pour exprimer cette notion differemment, la Cour a l’obligation dedeterminer si le requerant a reellement subi un appauvrissement en raisonde sa contribution a l’acquisition du bien ou s’il a subi un appauvrisse-ment moins important que ce qu’il paraıt — en raison d’une contributionnon reconnue qu’aurait faite l’intimee, c’est-a-dire, en l’espece, une con-tribution en sus de son investissement financier initial de 10 000 $.

42 L’intimee mentionne un certain nombre de domaines au titre desquelselle dit avoir fait des contributions non reconnues qui doivent etre prisesen compte aux fins de la determination de leurs droits respectifs sur lechalet de la rue Downing. Elle invoque en general les services domesti-ques qu’elle a rendus au requerant, mais sans leur attribuer une valeurpecuniaire, et en particulier les travaux de nettoyage, de peinture et deremplissage des fentes dans la maison du requerant, travaux auxquelselle semble avoir attribue une valeur monetaire de 5 291,66 $ comme lemontre la creation a posteriori d’une facture et d’un recu. Le requerantreplique qu’ils se partageaient les travaux domestiques et qu’il afinancierement subvenu aux besoins de l’intimee sur tous les plans,notamment en payant l’epicerie, des voyages et des vacances et en luifournissant un vehicule en Floride (vehicule qu’il a par la suite vendu).L’intimee retorque qu’elle disposait de son propre argent et qu’elle ac-quittait ses propres depenses comme le montrent les releves bancairesqu’elle a deposes en preuve pour les annees 2009 a 2013. Pour desraisons que nous verrons, je n’ai pas a evaluer la credibilite de cespretentions formulees par les parties, lesquelles sont concurrentes ous’annulent.


43 Bien que « la cohabitation, en soi, ne confere pas a une personne ledroit a une part des biens de l’autre personne ou a toute autre forme dereparation » (Kerr c. Baranow, precite, au par. 85), le droit reconnaıt,dans certaines circonstances, des contributions semblables a celles quecherchent a faire reconnaıtre, par voie de requete et de demande recon-ventionnelle, les parties en l’espece:

[...] Generalement, un conjoint de fait n’est pas tenu en common law,en equity ou par la loi de travailler pour son conjoint ou de lui fournirdes services. Par consequent, selon une analyse economique simple,il n’y a aucune raison de distinguer les services domestiques des au-tres contributions [...]. Ils constituent un enrichissement parce que detels services sont fort utiles pour la famille et pour l’autre conjoint;toute autre conclusion devalue les contributions apportees,principalement par les femmes, aux finances de la famille [...]. Laprestation non remuneree de services (y compris de services domesti-ques) ou le travail non remunere peuvent aussi constituer un ap-pauvrissement parce qu’il n’y a aucune difficulte a considerercomme un appauvrissement la contribution a plein temps et sanscompensation de son travail et de ses revenus. La Cour a rejetel’argument selon lequel ces services ne peuvent fonder une actionpour enrichissement injustifie parce qu’ils sont offerts par « amour etaffection naturels » [...].

(Kerr c. Baranow, precite, au par. 42.)44 Toutefois, la nature de la demande fondee sur l’enrichissement injus-

tifie est liee aux contributions faites a un bien precis (par opposition a unenrichissement fonde sur le concept plus large de « coentreprise famili-ale », ce qui n’est pas le cas en l’espece (voir Kerr c. Baranow, precite,au par. 87)). Par voie de consequence, les contributions non reconnuesinvoquees a l’appui d’une defense ou d’une demande reconventionnellefondee sur des « avantages reciproques » doivent, a mon avis, etre egale-ment liees a ce bien precis, c’est-a-dire le chalet de la rue Downing. Jem’appuie, a cet egard, sur deux decisions de la Cour supreme:

[...] En outre, la notion voulant qu’il ne soit pas necessaire d’etablirun lien entre les services rendus et le bien revendique est incompati-ble avec la nature proprietale de la fiducie par interpretation. [...]

(Peter c. Beblow, precite, au par. 24 (QL).)Quant a la nature du lien exige entre la contribution et le bien, laCour a toujours juge que le demandeur devait demontrer un lien« suffisamment important et direct », un « lien causal » ou un « lien »entre les contributions du demandeur et le bien vise par la fiducie


[...]. [...] Comme l’a dit le juge en chef Dickson dans Sorochan, laquestion fondamentale est de savoir si les contributions « se rap-portent clairement aux biens » [...]. La contribution indirecte d’argentet la contribution directe de labeur peuvent etre suffisantes, pourvuqu’un lien soit etabli entre l’appauvrissement du demandeur etl’acquisition, la conservation, l’entretien ou l’amelioration du bien[...].

(Kerr c. Baranow, precite, au par. 51.)45 Pour formuler la chose differemment, outre sa contribution

financiere, quelles autres contributions l’intimee a-t-elle faites au bien-fonds de la rue Downing qui sont susceptibles de contrebalancer, en toutou en partie, l’appauvrissement probable que subirait le requerant sil’investissement financier qu’il a fait afin d’acquerir le bien et son droitnegocie a la moitie des profits en cas de vente du bien n’etaient pasreconnus en equity? D’apres mon examen de la preuve, l’intimee n’a pasetabli que d’autres contributions qu’elle a faites a ce bien (en sus de soninvestissement financier initial) sous forme de main-d’œuvre, de mater-iaux ou de services etaient plus importantes que celles faites par le re-querant (en sus de son investissement financier initial a lui). Dans lamesure ou le requerant a tire profit, sur le plan financier, des revenus dela location estivale, l’intimee en a maintenant aussi tire profit, en partieen 2013 et entierement l’ete dernier. Sur le plan de la proportionnalite,etant donne les montants relatifs investis par chacun, les revenus de loca-tion respectifs s’annulent, a tout le moins, l’un l’autre. De plus, l’intimeea tire avantage du bien-fonds de la rue Downing d’une facon dont le re-querant n’en a pas tire avantage — elle a occupe le bien pendant la plusgrande partie du mois de mai et pendant le mois de juin 2013 et deseptembre a la fin de novembre 2013 ainsi que pendant les mois de mai,de juin et de septembre 2014.

46 Tout cela pour dire que le recours au concept des « avantages recipro-ques » dans les circonstances qui nous occupent n’attenue pasl’appauvrissement que le requerant a subi et auquel j’ai conclu plus tot.

47 Je poursuivrai l’analyse toutefois, pour le cas ou la Cour ferait erreurdans son evaluation de la portee de la notion d’« avantages reciproques »lorsqu’il s’agit d’une demande fondee sur un enrichissement injustifie liea un bien precis. Autrement dit, qu’arriverait-il si l’intimee avait le droitd’invoquer, a l’appui d’un argument ressortissant aux « avantagesreciproques », les services domestiques plus importants qu’elle pretendavoir rendus au requerant au fil des quelques annees passees ensemble etd’invoquer les travaux precis qu’elle dit avoir accomplis sur un autre


bien-fonds, lesquels sont mentionnes dans les documents qu’elle a elle-meme crees? La reponse courte est que la Cour devrait aussi prendre enconsideration une contribution particuliere et importante non reconnueque le requerant a faite a l’intimee et a l’egard de laquelle aucune appre-ciation de la credibilite n’est necessaire — pendant leur relation, elle ahabite le [TRADUCTION] « vieux chalet familial » du requerant pen-dant environ six mois, chaque annee ou ils ont vecu ensemble auNouveau-Brunswick.

48 Si je formule la chose differemment — quelles qu’aient pu etre lesautres contributions non reconnues qu’une des parties a apportees al’autre pendant la periode ou elles ont vecu ensemble, que ce soit au titredu chalet de la rue Downing ou plus generalement — , l’intimee n’a pasprouve que les contributions qu’elle a apportees au requerant etaient plusimportantes que celles que le requerant lui a apportees a elle.

B. Jugement declaratoire etablissant les droits de propriete et le rangdes parties

48 Il s’ensuit que le requerant a droit a un jugement declaratoire portantque l’intimee detient egalement le titre de propriete du chalet de la rueDowning au profit du requerant en vertu d’une fiducie constructoire. Deplus, le requerant a droit a un jugement declaratoire portant que les droitsou interets respectifs des parties sur ce bien sont ceux qui sont enoncesdans leur contrat, ou ce qu’il est convenu d’appeler [TRADUCTION]l’« entente parallele », date du 8 juin 2011, sous reserve d’une dette de34 500 $ qu’elles ont envers La Banque de Nouvelle-Ecosse.

49 Il en decoule qu’en cas de vente du bien en question, le requerant seraen droit de recouvrer la somme de 40 000 $ et l’intimee, la somme de 5000 $; ils se partageront ensuite en parts egales les profits susceptiblesd’etre realises au moment de la vente — le tout apres que la charge depremier rang consentie a La Banque de Nouvelle-Ecosse, qui s’etablit a34 500 $, aura ete acquittee et apres que les frais habituellement associesa la vente, notamment la commission de courtage ainsi que les honorairesd’avocat et les debours, auront ete payes.

50 De plus, pour le cas ou le bien en question ne serait pas vendu avantla fin de juin 2015 et ou le requerant deciderait de louer le chalet pendantles mois d’ete, le montant net des revenus de location recus sera partageau prorata, en fonction de la part restante de l’investissement financierinitial que les parties seront en droit de recouvrer en cas de vente. Enl’espece, la part du montant net des revenus de location qui reviendra au


requerant sera de 89 % (selon un investissement de 40 000 $) et celle del’intimee sera de 11 % (selon un investissement de 5 000 $). Dans lamesure necessaire, la Cour s’appuie sur le par. 26(9) de la Loi surl’organisation judiciaire et estime qu’il lui confere le pouvoir de prendrecette decision en ce qui concerne le droit a d’eventuels revenus de loca-tion afin de regler definitivement l’instance.

C. L’exercice des attributions que possede la Cour en vertu de la regle67 des Regles de procedure

51 La regle 67.02c) des Regles de procedure dispose que « la cour peutordonner la vente des biens-fonds en tout ou en partie et prescrire la dis-tribution du produit de la vente conformement aux droits et au rang destitulaires de droits de propriete sur les biens-fonds ». Puisque j’ai deter-mine les droits de propriete et le rang des parties et que j’ai ordonne ladistribution du produit en cas de vente, l’etape suivante consiste a ordon-ner la vente du bien-fonds en question. Pour parler franchement, etantdonne la nature du bien et le degre d’animosite entre les parties, une or-donnance de vente est la seule solution raisonnable.

52 Il reste maintenant a donner des directives concernant la vente. Lesdirectives de la Cour sont les suivantes:

i.) Le requerant, conformement a l’entente intervenue entre lesparties et datee du 8 juin 2011, sera le seul autorise a con-troler la vente du bien, y compris l’acces a ce bien, et anegocier et passer une convention d’achat-vente, sous re-serve des conditions suivantes;

ii.) La vente sera effectuee par l’intermediaire du courtier ExitRealty Associates conformement a la conventiond’inscription actuellement en vigueur. Pour le cas ou laconvention d’inscription viendrait a expiration, le requerantaurait toute latitude pour choisir le courtier en immeubles;

iii.) Les parties semblent s’entendre sur le fait qu’un prix de109 000 $ serait raisonnable compte tenu du marche et parconsequent, ce sera le prix auquel le bien sera inscrit, sousreserve du fait que ce prix pourra etre ramene, a la seulediscretion du requerant, a un prix qui ne sera pas inferieur a95 000 $, comme le propose le requerant, si les circon-stances le justifient;

iv.) L’intimee indemnisera le requerant de toute dette con-tractee dans le cadre de la marge de credit mentionnee


precedemment consentie par La Banque de Nouvelle-Ecosse en sus de la somme de 34 500 $ et pour le cas ou LaBanque de Nouvelle-Ecosse refuserait de leverl’hypotheque accessoire existante au moment du rembour-sement de la somme de 34 500 $, par ailleurs, toute sommea laquelle l’intimee aurait droit par suite de la vente seraversee a La Banque de Nouvelle-Ecosse dans la mesurenecessaire pour obtenir cette mainlevee d’hypotheque; dansl’intervalle, il incombera au requerant de payer les interetsexigibles au titre de cette marge de credit proportionnelle-ment au pret de 34 500 $;

v.) Conformement a la regle 67.04, le produit de la vente seradetenu en fiducie par l’avocat du requerant et verse con-formement a la determination des droits et du rang des par-ties que la Cour a effectuee ci-dessus;

vi.) L’intimee signera les actes de transfert ou autres documentsnecessaires pour permettre la vente, mais pour le cas ou elleomettrait ou refuserait de le faire, la Cour designe la gref-fiere de la Cour afin qu’elle le fasse au nom de l’intimeeconformement au pouvoir confere a l’art. 37 de la Loi surl’organisation judiciaire;

vii.) Conformement a la regle 42.01, le certificat d’affaire en in-stance existant, date du 29 octobre 2013, demeura envigueur jusqu’a ce que le bien soit vendu ou que la ventesoit a l’etape de la cloture, auquel cas la greffiere de laCour revoquera le certificat a la demande du requerant.

53 Finalement, la Cour rappelle aux parties les dispositions de la regle67.05 des Regles de procedure:

(1) Lorsqu’il y a eu ordonnance de partage ou vente et

a) qu’aucun appel n’est interjete dans le delai prescrit ou

b) que les appels et les demandes en autorisation d’appelont tous ete

(i) rejetes,

(ii) abandonnes ou

(iii) refuses,

le greffier doit certifier sur une copie de l’ordonnance departage ou vente

c) qu’elle a ete rendue et deposee,


d) qu’elle est definitive et

e) que tout transfert ou que toute vente effectues con-formement a l’ordonnance auront pour effet de trans-ferer tous les droits et tous les titres de propriete desparties a l’instance conformement aux prescriptions del’ordonnance de partage ou vente.

(2) Apres avoir inscrit son certificat sur une copie del’ordonnance de partage ou vente conformement auparagraphe (1), le greffier

a) conserve et classe la copie et

b) remet une copie au requerant et a quiconque en fait lademande.

(3) Lorsque l’ordonnance de partage ou vente qui a ete rendue estrevetue du certificat du greffier prevu au paragraphe (1), lebien-fonds ou le droit de propriete sur le bien-fonds decritdans l’ordonnance doit etre partage ou vendu comme prescrit.

(4) Toute copie d’ordonnance de partage ou vente revetue du cer-tificat du greffier prevu au paragraphe (1) peut etre enregis-tree au bureau de l’enregistrement du comte dans lequel lesbiens-fonds sont situes.

IV. Depens54 Des dispositions particulieres s’appliquent en matiere de depens dans

une procedure de partage ou vente. Voici le texte de la regle 67.06: (1) Sauf ordonnance contraire, tous les depens qui sont

recouvrables par les parties a toute instance introduite en ap-plication de la presente regle et que la cour a calcules, sontrepartis entre les parties proportionnellement a la valeur deleurs droits respectifs sur les biens-fonds partages ou vendus.

(2) Les depens calcules en application du paragraphe (1) greventd’un privilege les parts respectives de chacune des parties surles biens-fonds partages ou sur le produit de leur vente.

(3) Lorsqu’une partie a introduit inutilement une instance enpartage ou s’est opposee sans motif valable au partage, a lavente ou a toute autre mesure relative au bien-fonds, la courpeut

a) condamner la partie

(i) a tous les depens afferents a l’instance ou


(ii) a un pourcentage des depens plus eleve quecelui qu’elle aurait supporte aux termes duparagraphe (1) et

b) refuser a la partie, en tout ou en partie, les depens aux-quels elle aurait droit en application du paragraphe(1).

55 J’ai conclu que dans les circonstances dans leur ensemble, l’intimees’est opposee sans motif valable a ce que le bien soit vendu conforme-ment aux conditions enoncees dans l’entente intervenue entre les partiesle 8 juin 2014 [sic, lire 2011]. Elle semble avoir ete en grande partiemotivee par le fait qu’elle etait blessee et en colere.

56 Des le 25 mars 2013, elle a eu la possibilite de recouvrer la partrestante de son investissement ainsi que la moitie des profits susceptiblesd’etre realises a la vente du bien a des conditions meilleures que cellesqui seraient maintenant permises en droit. On se rappellera que, apresqu’ils ont eprouve de la difficulte a conclure une vente a l’ete 2012 etlorsque l’appelant a voulu faire appliquer [TRADUCTION] l’« ententeparallele », il a ecrit ceci a l’intimee: [TRADUCTION] « Pour le cas ouvous souhaiteriez vous epargner la commission de la societe im-mobiliere, je racheterais votre part en vous versant le montant net de vo-tre investissement plus la moitie du profit que rapportera la vente selonl’evaluation ».

57 De plus, la position de l’intimee en ce qui concernait l’incidence del’hypotheque subsequente sur la validite de leur entente initiale (a savoirque le chalet etait maintenant a elle) n’etait pas, tant s’en faut, une inter-pretation raisonnable. En outre, meme s’il est comprehensible quel’intimee ait voulu obtenir une part des revenus de location, elle avaitencore la possibilite d’eviter la tenue du present proces apres avoir percules revenus de location l’ete dernier. Au lieu de cela, une audience d’unejournee complete a ete necessaire.

58 La consequence en est que l’intimee paiera au requerant des depensqui seront preleves sur sa part [celle de l’intimee] du produit de la vente(voir la regle 67.02d)). Le requerant sollicite des depens de 1 500 $,somme qui comprend les debours. Ce montant est plus que raisonnable etcertainement tres inferieur a celui que la Cour aurait par ailleurs ordonne.

V. Ordonnance59 Une ordonnance correspondante accompagne la presente decision.



[Indexed as: Taylor v. Sherlow]

Lana Lee-Ann Taylor, Applicant and Daryn Ron Sherlow,Respondent


Docket: 526/13

2014 ONSC 6614

A.C. Trousdale J.

Heard: April 23, June 17, 2014


Family law –––– Support — Child support under federal and provincialguidelines — Determination of spouse’s annual income — Imputed in-come — Tax exempt income –––– Parties married and had two children to-gether, and mother also adopted father’s child from prior relationship — Duringmarriage, father was awarded Veteran’s Affairs pension (VAC pension) for ma-jor depression suffered by him as result of his military service — VAC pensionincluded portion for benefit of three children — Parties divorced, and order wasmade requiring father to pay child support pursuant to Federal Child SupportGuidelines — Federal Court of Canada issued decision in M case, which foundthat VAC pension is not income replacement but is compensation for loss ofamenities of life — Mother brought motion to vary child support — Motiongranted — Full amount of VAC pension was included in father’s income forcalculation of child support, and that amount was grossed up — It was not deter-minative that, because of findings in M decision, non-child portion of father’sVAC pension was non-taxable and was not included in “Total Income” in histax return — Issue in case at bar was different than issue in M decision, whereissue was interpreting contract of insurance, and M decision was distinguishableon that basis — Section 19 of Guidelines gives court discretion to adjust incomewhere “Total income” after Sched. III adjustments does not provide fairest de-termination of income available for child support — In case at bar, this discre-tion should be exercised to impute income to father to fairly reflect his relativeability to contribute to joint obligation to support children of marriage — Deter-mination of father’s income by using “Total income” in his tax return as ad-justed by Sched. III did not fairly reflect money available to him for payment ofchild support — When non-taxable income was grossed up, relative value of fa-ther’s non-taxable income was greater than his taxable income — Father’s fi-nancial statement did not reveal any extraordinary expenses relating to hisdisability.

Taylor v. Sherlow 181

Family law –––– Support — Child support — Duty to contribute — Childwithdrawing from parental control.

Family law –––– Support — Child support under federal and provincialguidelines — Determination of spouse’s annual income — Imputed in-come — Miscellaneous –––– Lump sum settlement from action claiming disa-bility payments.

Family law –––– Support — Child support under federal and provincialguidelines — Determination of award amount — Child care expenses ––––Amounts incurred without payor’s consent.

Family law –––– Support — Child support under federal and provincialguidelines — Determination of award amount — Extraordinary ex-penses — General principles –––– Proportionate sharing ordered.

Cases considered by A.C. Trousdale J.:

Darlington v. Moore (2013), 2013 CarswellNS 265, 2013 NSSC 103, 1046A.P.R. 47, 330 N.S.R. (2d) 47, [2013] N.S.J. No. 205 (N.S. S.C.) — referredto

Manuge v. R. (2012), (sub nom. Manuge v. Canada) 411 F.T.R. 76 (Eng.), 2012FC 499, 2012 CF 499, [2012] I.L.R. I-5279, (sub nom. Manuge v. Canada)[2012] 4 F.C.R. 647, 2012 CarswellNat 1207, 2012 CarswellNat 1208, 99C.C.P.B. 206, 350 D.L.R. (4th) 235, [2012] F.C.J. No. 512, [2012] A.C.F.No. 512 (F.C.) — considered

Ste-Marie v. Ste-Marie (2013), 2013 CarswellNB 701, 2013 CarswellNB 702,1072 A.P.R. 203, 413 N.B.R. (2d) 203, 39 R.F.L. (7th) 190, 2013 NBBR375, 2013 NBQB 375, 13 C.B.R. (6th) 1, [2013] N.B.J. No. 399 (N.B.Q.B.) — referred to

Storey v. Simmons (2013), 30 R.F.L. (7th) 130, 2013 ABQB 168, 2013CarswellAlta 353, 82 Alta. L.R. (5th) 107, 559 A.R. 42, [2013] A.J. No. 271(Alta. Q.B.) — considered

Vaughan v. Vaughan (2014), 1076 A.P.R. 286, 415 N.B.R. (2d) 286, 372 D.L.R.(4th) 579, 2014 NBCA 6, 2014 CarswellNB 41, 2014 CarswellNB 42, 44R.F.L. (7th) 20, [2014] N.B.J. No. 35 (N.B. C.A.) — considered


Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)Generally — referred tos. 2(1) “child of the marriage” — considereds. 17(4) — considereds. 17(6.2) [en. 1997, c. 1, s. 5(2)] — considereds. 26.1 [en. 1997, c. 1, s. 11] — considereds. 26.1(2) [en. 1997, c. 1, s. 11] — considered


Maintenance and Custody Act, R.S.N.S. 1989, c. 160Generally — referred to

Pension Act, R.S.C. 1985, c. P-6Generally — referred to



Generally — referred tos. 1 — considereds. 1(a) — considereds. 1(d) — considereds. 2(1) “income” — considereds. 7 — considereds. 14 — considereds. 14(a) — considereds. 16 — considereds. 17 — considereds. 17(1) — consideredss. 17-20 — referred tos. 18 — considereds. 19 — considereds. 19(1)(a) — considereds. 19(1)(h) — considereds. 20 — consideredSched. III — referred to

MOTION by payee parent to vary child support.

Applicant, for herselfKristin Muzynski, for Respondent

A.C. Trousdale J.:

1 The Applicant, Ms. Taylor commenced a Motion to Change the Orderof Justice Carr of The Queen’s Bench of Manitoba (Family Division)made on April 10, 2012. The eldest child had moved from the Respon-dent’s residence in British Columbia to live with Ms. Taylor and the twoyounger children in Ontario. Ms. Taylor is claiming child support for theeldest child as well as an adjustment of child support for the two youngerchildren in accordance with Mr. Sherlow’s current income. Ms. Taylor isalso claiming special and extraordinary expenses for the children, andcontribution towards certain past special and extraordinary expenses. The

Taylor v. Sherlow A.C. Trousdale J. 183

Respondent, Mr. Sherlow and Ms. Taylor have a dispute between themas to what should be included in Mr. Sherlow’s “income” for the calcula-tion of child support.

Background2 The Applicant, Ms. Taylor is 39 years of age and the Respondent, Mr.

Sherlow is 46 years of age. They were married on April 4, 1998. Mr.Sherlow had a son from a prior relationship, Andrew, born March 20,1996. Ms. Taylor adopted Andrew in 1999.

3 There are two children born of the marriage, namely Leigha, bornAugust 11, 1998, and Liam, born August 25, 1999.

4 During the marriage, in or about 2000 or 2001, Mr. Sherlow wasfound to be entitled to a Veteran’s Affairs pension as a result of sufferingfrom major depression arising from his military service. This monthlypension, which included an amount for Mr. Sherlow, an amount for thethree children of the marriage, and an amount for Ms. Taylor as Mr.Sherlow’s spouse, was used by the parties as part of their income forfamily expenses.

5 The parties separated in Winnipeg on January 1, 2004.6 The parties were divorced on February 3, 2006 and a Final Order was

made that day by Mr. Justice Carr of the Queen’s Bench of Manitobaregarding custody, access and child support.

7 Pursuant to the consent Order dated February 3, 2006, Ms. Taylorreceived sole custody of Liam and Leigha, while Mr. Sherlow receivedsole custody of Andrew. Mr. Sherlow was ordered to pay set-off childsupport to Ms. Taylor in the sum of $289.00 per month, based on Mr.Sherlow’s annual income of $53,000.00 and Ms. Taylor’s annual incomeof $50,900.00.

8 Subsequent to the separation, Mr. Sherlow and Andrew moved toBritish Columbia.

9 In 2009, Mr. Sherlow, who was a member of the Canadian ArmedForces was released for a medical disability. He began to receive his Ca-nadian Forces retirement pension and has not been employed since thattime. Mr. Sherlow was diagnosed with post-traumatic stress disorderwhich was determined to be related to his prior diagnosis of major de-pression. Accordingly, his prior VAC pension was increased rather thanbeing satisfied by a lump sum payment which would have been the caseunder the current legislation which came into force in or about 2006.


10 The Final Order of Mr. Justice Carr of the Queen’s Bench of Mani-toba was varied by Mr. Justice Carr on consent of both parties on April10, 2012.

11 Pursuant to the Order made on April 10, 2012, Mr. Sherlow was topay child support to Ms. Taylor for the two children in her custody in thesum of $461.00 per month based on an annual income of Mr. Sherlow of$62,779.55 and an annual income of Ms. Taylor of $56,796.00, plus aproportionate sharing of reasonable medical, dental, and education ex-penses and extra-curricular expenses under $500.00 and all extracurricu-lar sports activities that cost $500.00 annually or more that are agreed toby the parties prior to enrollment.

12 Ms. Taylor is a member of the Canadian Armed Forces. In 2012 Ms.Taylor and Liam and Leigha moved to Kingston, Ontario where theyhave continued to reside.

13 In 2013, Mr. Sherlow received a lump sum settlement as a member ofa class action by former members and current members of the CanadianForces against the Federal Government regarding disability insurance.

14 In February, 2013, Andrew moved out of the home of Mr. Sherlow inSooke, B.C. and lived with friends for several months.

15 In July, 2013, Andrew moved to Kingston, Ontario and began resid-ing with Ms. Taylor and the other two children.

16 In September, 2013, Ms. Taylor commenced this Motion to Changeto seek a variation of the Order dated April 10, 2012 to claim child sup-port for Andrew and increased child support and child support arrears, aswell as special and extraordinary expenses, including arrears for the threechildren of the marriage.

17 On January 14, 2014 Andrew moved out of the residence of Ms. Tay-lor and is residing on his own. It is agreed that at this time, Andrew haswithdrawn from parental control and that he is not entitled to child sup-port from either party.

Issues

(1) Should any or all of Mr. Sherlow’s income from his Veterans Af-fairs Canada Pension be included in the calculation of Mr.Sherlow’s income for purposes of calculating child support?

(2) How should the situation of the oldest child be dealt with?


(3) Should the lump sum settlement received by Mr. Sherlow in Octo-ber, 2012 be taken into account for child support purposes, and ifso, how should it be dealt with?

(4) What is Mr. Sherlow’s income for the purpose of calculating childsupport? What is the income of Ms. Taylor for the purpose of cal-culating child support?

(5) What should the ongoing amount of child support payable by Mr.Sherlow to Ms. Taylor for two children be?

(6) Are there any arrears of child support owing to Ms. Taylor?

(7) What should the special and extraordinary expenses of the twoyounger children of the marriage be and what is the proportionateshare payable by either party? Should any of those expenses bepaid on a regular monthly basis by Mr. Sherlow through FRO?Should driver’s lessons for each of the children be recognized asan extraordinary expense?

(8) Are there any arrears of special and extraordinary expenses owingto Ms. Taylor by Mr. Sherlow?

(9) Costs.

Analysis

Mr. Sherlow’s Veterans Affairs Pension18 Mr. Sherlow was a member of the Canadian Forces during the mar-

riage and subsequent to the separation of the parties until he was releasedfrom the Canadian Forces on December 3, 2009 for a medical disability.

19 In or about 2000 or 2001, Mr. Sherlow was awarded a Veteran’s Af-fairs pension (“VAC pension”) for major depression suffered by him as aresult of his military service. During the marriage, Mr. Sherlow received,pursuant to this VAC pension, a monthly benefit for himself, a monthlybenefit for Ms. Taylor as his spouse, and a monthly benefit for the threechildren of the marriage. These monthly benefits were used by Mr.Sherlow and Ms. Taylor during the marriage towards their ongoing liv-ing expenses for the family.

20 The main dispute between the parties is whether or not some or all ofthe VAC pension should be included in Mr. Sherlow’s income for thepurpose of calculation of child support.

21 This has become an issue because of the decision in the case ofManuge v. R., 2012 FC 499, 2012 CF 499 (F.C.) which was a class ac-


tion brought on behalf of former members and members of the CanadianForces as to the legality of the Federal Government’s policy of reducinglong-term disability benefits payable to disabled members under its in-surance plan by monthly VAC pension amounts payable to those dis-abled members under the Pension Act. This decision of the Federal Courtwas released on May 1, 2012. Justice R.L. Barnes at page 27 stated:

What is clear from the Pension Act and the Minister’s Table is thatthe monthly benefit payable to disabled members of the CF is notintended to be a form of income replacement. Instead, it is designedto compensate for the loss of amenities of life and for the personallimitations and sacrifices that arise from disabling injuries. This isnot entirely lost on the Defendant. According to a 2004 ReferencePaper prepared by Veterans Affairs Canada, the purpose of PensionAct disability benefits is to “provide compensation for reductions inthe quality, and sometimes the quantity, of life experienced by thedisabled” and not, as is commonly believed, to provide a formof income replacement: Affidavit of Sergeant John G.Bartlett (22 September 2011), Exhibit “B” at p 8 (ReferencePaper: The Origins and Evolution of Veterans Benefits in Canada,1914-2004” (March 2004) at p 5, also available online:http://www.veterans.gc.ca/eng/forces/nvc/reference).

22 Justice Barnes found that the SISIP policy which provided that theLTD benefit was to be reduced by the deduction of “monthly incomebenefits” did not catch the VAC pensions payable to the disabled veter-ans pursuant to the Pension Act as those benefits were not income re-placement. As a result those members and former members like Mr.Sherlow who had had their monthly VAC pension deducted from theirLTD pension with Manulife, resulting in their benefits being substan-tially cut or being zero, started receiving a monthly LTD benefit in Octo-ber, 2012, and they also received a lump sum retroactive award for themonths prior to October, 2012 when they should have been receiving thebenefits.

23 Prior to the Manuge decision, the VAC disability benefits received bya spouse were generally included in a spouse’s income for the purpose ofcalculation of child and spousal support. Since this decision, there havebeen conflicting decisions across the country on this point.

24 Based on the case of Storey v. Simmons, 2013 ABQB 168 (Alta.Q.B.), which relied on the Manuge case, it is Mr. Sherlow’s position thatonly the amount that he receives for the support of the children from hisVAC pension should be included in his income for the purpose of calcu-


lation of ongoing child support. He does agree that the amount he re-ceives for the children should be grossed up as it is non-taxable in hishands.

25 Mr. Sherlow argues that the amount he personally receives from hisVAC pension for his own support and for the support of his currentspouse should not be included in his income for the purpose of calculat-ing ongoing child support, on the basis that these amounts are not re-placement of income to him, but rather are amounts paid to him that areintensely personal to compensate him for loss of quality of life due to theinjuries suffered by him as a result of his military service, as was foundin the Manuge case.

26 Ms. Taylor’s position is that all of the VAC pension received by Mr.Sherlow should be grossed up and included in Mr. Sherlow’s income forthe purpose of calculation of child support. She argues that the VAC pen-sion received by Mr. Sherlow was used by the parties prior to their sepa-ration towards their ongoing living expenses. She also points to the Orderof Justice Carr in this matter made on April 10, 2012 which provided thatMr. Sherlow was to provide annual disclosure to Ms. Taylor by way of acopy of his Veterans Affairs Pension Statement each year and the grossamount received by him from his Veterans Affairs pension, as well as acopy of his income tax return and Notice of Assessment for each year.Ms. Taylor states that the parties have always previously included Mr.Sherlow’s VAC pension in his income for calculation of child supportand that Justice Carr intended that it should be so included in the future.

27 Ms. Taylor relies on the cases of Darlington v. Moore, 2013 NSSC103 (N.S. S.C.) and the decision of Ste-Marie v. Ste-Marie, 2013 NBBR375, 2013 NBQB 375 (N.B. Q.B.).

28 I would note that in the case at bar, only child support is at issue.There is no spousal support being paid or claimed.

29 The decision in the case of Storey v. Simmons, was released on March15, 2013. In that case, Justice Veit of the Alberta Court of Queen’sBench relied on the reasoning in Manuge in determining that the VACpension is properly characterized as “property” even though it is paid ona monthly basis. She found that the VAC pension should not be includedin Mr. Storey’s income as it is not income replacement, but rather com-pensation for loss of the amenities of life. The exception to this findingwas that Justice Veit determined that because Mr. Storey received an ad-ditional monthly amount of VAC pension from Veteran’s Affairs be-cause he was maintaining two children through the payment of child sup-


port, the monthly amount received by him for the children should beincluded in his income for the purpose of calculation of child supportpayments and that it should be grossed up to recognize its tax-exemptstatus.

30 The decision in the case of Darlington v. Moore was also released onMarch 15, 2013. The husband in this case was working full time as amember of the RCMP and was also receiving a disability pension fromVeterans Affairs. Associate Chief Justice O’Neill of the Nova Scotia Su-preme Court found that Mr. Moore’s VAC pension should be included asincome for child support and spousal/partner maintenance purposes, andthat the disability income should be grossed up. In coming to this conclu-sion, A.C. Justice O’Neill distinguished the Manuge case. He found thatthe decision to exclude the disability benefits from the definition of in-come in the Manuge case was based on an interpretation of the governingcontract of insurance, whereas the calculation of child support andspousal support requires the Court to interpret statutory instruments thataddress broad policy objectives. He found that both the Divorce Act andthe Maintenance and Custody Act, R.S.N.S. 1989, c. 160 direct that in-come for child support and spousal/partner maintenance purposes in-cludes tax free disability income and that the disability income should begrossed up.

31 The decision in the case of Ste-Marie by Justice B.L. Baird of theNew Brunswick Court of Queen’s Bench was released on November 22,2013. It was a motion brought by the husband for variation of interimspousal support. Justice Baird found that the husband’s veteran’s pensionwas income to be considered for the purposes of a spousal support order.She particularly referred to the fact that the husband had shared the vet-eran’s pension with the wife prior to separation and that it contributed tothe quality of their life together. Justice Baird also distinguished the deci-sion in Storey on the basis that the Justice in that case was not asked tomake an order for spousal support.

32 The decision of the New Brunswick Court of Appeal in the case ofVaughan v. Vaughan, 2014 NBCA 6 (N.B. C.A.) was released on Febru-ary 20, 2014. Justice Quigg, speaking for the Court, stated at paragraph26:

I am persuaded by the ratio in Darlington. This is not a situationwhere benefits should be excluded because of the interpretation of acontract of insurance. Rather, trial judges should endeavour to deter-mine support payments based on the broad policy objectives con-


tained in the Divorce Act. When fashioning a spousal or child supportorder, the court is obligated to consider the “condition, means, needsand other circumstances of each spouse”. This includes the tax-freedisability payments, and, in future, these payments should be takeninto consideration in the calculation of child and spousal support.(The same conclusion was reached in Ste-Marie v. Ste-Marie, 2013NBQB 375, [2013] N.B.J. No. 399 (N.B.Q.B.)).

33 Turning now to the case before me, Section 17(4) of the Divorce Act,provides that before the court makes a variation order in respect of achild support order, the court shall satisfy itself that a change of circum-stances as provided for in the applicable guidelines has occurred sincethe making of the child support order or the last variation order made inrespect of that order.

34 Section 17(6.2) of the Divorce Act, provides that in making an orderfor variation of child support, the court shall do so in accordance with theapplicable guidelines.

35 Section 14 of the Federal Child Support Guidelines, SOR/97-175, asam (“the Guidelines”) sets out what constitutes a change of circum-stances that gives rise to the making of a variation order in respect of achild support order.

36 Upon reviewing Section 14 of the Guidelines, I find that in the casebefore me there was a material change in circumstances in accordancewith Section 14(a) of the Guidelines as the move of Andrew’s residencefrom Mr. Sherlow’s home in British Columbia to Ms. Taylor’s home inOntario would result in a different child support order than was alreadyin place. The parties were operating under an order that provided for set-off child support as Mr. Sherlow had one child residing with him andMs. Taylor had two children residing with her. Further, since January 14,2014, there has been a further material change in circumstances as bothparties agree that Andrew has withdrawn from parental control whichwould result in yet a different support order from the one that is now inplace.

37 It is now necessary to determine what Mr. Sherlow’s income is forthe purpose of determining what the variation of child support should be.This variation is to be determined in accordance with the Federal ChildSupport Guidelines as the original child support order in this matter wasmade pursuant to the Divorce Act.

38 Section 1 of the Guidelines states: The objectives of these Guidelines are,


(a) to establish a fair standard of support of children that ensuresthat they continue to benefit from the financial means of bothspouses after separation;

(b) to reduce conflict and tension between spouses by making thecalculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courtsand spouses guidance in setting the levels of child support or-ders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children whoare in similar circumstances.

39 Section 2 of the Guidelines defines “income” as the annual incomedetermined under sections 15 to 20.

40 Pursuant to Section 16 of the Guidelines, the annual income for pur-poses of child support is determined using the sources of income set outunder the heading “Total income” in the T1 General form issued by theCanada Revenue Agency and is adjusted in accordance with Schedule IIIof the Guidelines.

41 In the majority of child support cases, the income of the person pay-ing child support is determined using the Line 150 “Total income” of thespouse’s annual income tax return with any adjustments as per ScheduleIII. The types of income included in Total income include employmentincome, old age security pension, CPP benefits, disability benefits, pen-sion income, universal child care benefit, dividends, interest income, netrental income, taxable capital gains, RRSP income, net self-employmentincome, worker’s compensation benefits, and social assistance payments.

42 The adjustments to “Total income” prescribed by Schedule III of theGuidelines include deducting spousal support received from the otherspouse, deducting any universal child care benefits received, and replac-ing taxable amount of dividends received from taxable Canadian corpo-rations by the actual amount of dividends received.

43 Section 17 of the Guidelines states that where the court is of the opin-ion that the determination of a spouse’s annual income under Section 16of the Guidelines would not provide the fairest determination of the an-nual income from that source, the court may determine the annual in-come by looking at the last three years of income in determining income,by averaging income over the last three years, or by including some, allor none of a non-recurring amount as the court considers appropriate.This section is permissive rather than mandatory.


44 Section 18 of the Guidelines allows the court to adjust the income ofthe spouse determined under Section 16 in a situation where the spouse isa shareholder, director or officer of a corporation, and the court is of theopinion that the amount of the spouse’s annual income as determinedunder section 16 does not fairly reflect all the money available to thespouse for the payment of child support. The court may, for example,decide to include all or part of the pre-tax income of the corporation.

45 Section 19 of the Guidelines permits the court to impute income to aspouse as it considers appropriate in the circumstances. This section ispermissive rather than mandatory. Some of those circumstances includethe situation of a spouse being intentionally under-employed or unem-ployed, being exempt from paying federal or provincial income tax, orwhere the spouse derives a significant portion of income from dividends,capital gains or other sources that are taxed at a lower rate than employ-ment or business income or that are exempt from tax. The list is notexhaustive.

46 Section 20 of the Guidelines deals with the situation of calculatingincome of a non-resident spouse and gives the court the discretion to de-termine an appropriate amount for the non-resident spouse’s incomewhere the non-resident spouse resides in a country where the effectiverates of income tax are significantly higher than those applicable in theprovince in which the other spouse ordinarily resides.

47 Prior to the Manuge case, it was common practice that the VAC pen-sion would be included in the spouse’s income for the purposes of calcu-lation of child support. It was also commonly accepted that the VACpension would be grossed-up to reflect the fact that this pension is nottaxable to the spouse as the Guideline Tables are calculated on gross in-come prior to income tax.

48 As was pointed out, the Order made by Justice Carr on April 10, 2012required Mr. Sherlow to provide annual proof to Ms. Taylor of the grossamount of his Veteran’s Affairs pension. It is my understanding fromboth parties that the VAC pension was included in Mr. Sherlow’s incomefor the purpose of determining the amount of set-off child support thatMr. Sherlow should pay to Ms. Taylor pursuant to the April 10, 2012Order of Justice Carr.

49 Mr. Sherlow argues that the fact that his VAC pension was previouslyincluded in his income for calculating child support, does not mean thatit should continue to be incorrectly included in his income, now that the


Manuge decision has determined that the Veteran’s Affairs pension is notincome.

50 On reviewing the aforesaid provisions of the Guidelines dealing withthe determination of income for the purposes of calculation of child sup-port, I find that the court has discretion to make adjustments to income inaccordance with the Guidelines where the court finds that the “Total in-come” after Schedule III adjustments does not provide the fairest deter-mination of the spouse’s income available for payment of child support.

51 I find that this is consistent with the objectives of the Guidelines setout in subparagraphs 1(a) and 1(d) of the Guidelines to which I havepreviously referred. I find that it is also consistent with paragraph 26.1 ofthe Divorce Act which permits the establishment of Guidelines respect-ing the making of orders for child support. Paragraph 26.1(2) states thatthe guidelines shall be based on the principle that spouses have a jointfinancial obligation to maintain the children of the marriage in accor-dance with their relative abilities to contribute to the performance of thatobligation.

52 Both parties provided information to me put out by the Governmentof Canada from the Veterans Affairs Canada website, which informationwas noted to be last modified on February 2, 2014. The information pro-vided about the “Disability Pension” states as follows:

The disability pension is a tax-free monthly payment determinedbased on the extent of the Veteran’s disability, as determined by theTable of Disabilities. The assessment of the extent of a disability isbased on the instructions and a Table of Disabilities made by theMinister for the guidance of persons making such assessments. Theunderlying rationale of the disability pension is to provide some com-pensation for the severity of the particular disability endured and itsrelative impact on earning capacity.

[Emphasis added]

53 Accordingly, there does appear to be in the Veterans’ Affairs disabil-ity pension some component of the effect of the disability on the earningcapacity of the disabled veteran.

54 Should I exercise the discretion given to the court pursuant to Section19 of the Guidelines to impute income to Mr. Sherlow for the purposesof calculating child support? Possible subsections of Section 19 whichmay apply in this situation are:

(a) The spouse is intentionally under-employed or unemployed,other than where the under-employment or unemployment is


required by the needs of a child of the marriage or any childunder the age of majority or by the reasonable educational orhealth needs of the spouse;

(h) the spouse derives a significant portion of income from divi-dends, capital gains or other sources that are taxed at a lowerrate than employment or business income or that are exemptfrom tax;

55 In addition to those possibilities, I find that the wording of Section 19indicates that the list of possible circumstances set out in that paragraphis non-exhaustive, and therefore other circumstances in a particular casemay be taken into account when the court is deciding whether or not it isappropriate to impute income.

56 Ms. Taylor argues that Mr. Sherlow is intentionally under-employedor unemployed and that income should be imputed to him. She relies onemail correspondence between the parties to support that argument. Ifind, however, that Mr. Sherlow is in receipt of Canada Pension Plandisability and disability income from Manufacturer’s Life through SISIP.Mr. Sherlow has obviously been found for the purpose of those plans tobe disabled. Given those findings, I am unable on the evidence before meto find that Mr. Sherlow is intentionally unemployed or under-employed.I would also point out that if Mr. Sherlow were able to become em-ployed, he would likely lose some or all of those two sources of disabil-ity income.

57 Mr. Sherlow’s taxable Manulife disability income, his taxable CPPincome, and his taxable military pension income for 2014 are expected tobe a total of $51,706.00 prior to tax. Mr. Sherlow’s non-taxable VACpension for 2014 including both his own VAC pension, the VAC pensionhe receives for his current spouse, and the VAC pension he receives forthe two children (assuming Andrew’s share was cut off after January,2014) will be approximately $39,534.00 which is non-taxable in hishands. The break-down of the pension amounts is $2,224.16 per monthfor Mr. Sherlow, plus a spousal portion for Mr. Sherlow’s current spouseof $556.04 per month, and $289.14 per month for the first child and$211.30 per month for the second child. If those VAC benefits were tobe grossed up by using the Divorcemate program with the other sourcesof Mr. Sherlow’s income and an auto gross-up of the VAC pension, theVAC pension would be the equivalent of $59,911.00 prior to tax.

58 From reviewing Mr. Sherlow’s sworn Financial Statements filed inthis matter, it is clear that Mr. Sherlow uses both his taxable income and


the non-taxable sums he receives from VAC to support his ongoing dailyliving expenses. On the evidence before me, I find that this is no differ-ent from the situation which existed during the marriage when the VACpension was used by the parties towards their day to day living expenses.I find that a significant portion of the funds that come into Mr. Sherlow’shousehold are exempt from income tax.

59 In the Manuge case Justice Barnes found that the VAC pension wasnot “income” for the purposes of interpreting the insurance contract inquestion. In coming to that conclusion, Justice Barnes found that theVAC pension was not “replacement income”. However, I find that theissue before me is a different issue than was before Justice Barnes in theManuge case, where Justice Barnes was interpreting a contract of insur-ance and I distinguish the Manuge case on that basis.

60 The issue before me is to determine Mr. Sherlow’s income for thepurposes of his satisfying his joint financial obligation together with Ms.Taylor to maintain the children of the marriage in accordance with theirrelative abilities to contribute to the performance of that obligation,which is to be the principle upon which the Guidelines are to be based inaccordance with Section 26.2 of the Divorce Act. The Guidelines pro-vides certain tools in Section 17 to 20 for calculating income for the pur-poses of the Guidelines Tables where “Total Income” in the T1 GeneralForm as adjusted in accordance with Schedule III is not appropriate inthe circumstances.

61 Mr. Sherlow argues that because of the findings in the Manuge case,his VAC pension, except for the portion received by him for the children,is not “income”. Because the VAC pension is non-taxable, it is also not“income” for the purpose of Mr. Sherlow’s income tax return and is notincluded in “Total Income”. However, paragraph 19 of the Guidelinesallows the court to impute such amount of income to a spouse as it con-siders appropriate in the circumstances including the non-exhaustive listof circumstances set out therein.

62 In reading the email correspondence between Mr. Sherlow and Ms.Taylor, which has been filed with the Court, Mr. Sherlow has his disabil-ity under good control with proper diagnosis and medication. His Finan-cial Statement does not reveal any extraordinary expenses relating to hisdisability, but rather covers ordinary day to day living expenses.

63 I find that the determination of Mr. Sherlow’s income by using thefigure “Total income” in his annual income tax return as adjusted bySchedule III does not fairly reflect the money available to him for the


payment of child support. Forty-three percent of the income coming intoMr. Sherlow’s home is non-taxable income. When the non-taxable in-come is grossed-up, the relative value of Mr. Sherlow’s non-taxable in-come is greater than his taxable income.

64 I find that I should exercise my discretion and impute income to Mr.Sherlow pursuant to Section 19 of the Guidelines to fairly reflect his rela-tive ability to contribute to the joint obligation to support the children ofthe marriage. I find that the full amount of Mr. Sherlow’s VAC pension,including the amount paid to him personally, the spousal amount, and theamount paid for the children, should be included in Mr. Sherlow’s in-come for calculation of child support, and that the full amount of theVAC pension should be grossed-up.

The Oldest Child65 The oldest child, Andrew was residing in the sole custody of Mr.

Sherlow in British Columbia pursuant to the current Court Order.66 At the beginning of February, 2013, Andrew moved out of Mr.

Sherlow’s home and was residing with friends in British Columbia whileworking. He did not return to Mr. Sherlow’s home. In July, 2013 hemoved to Ontario to reside with Ms. Taylor. Mr. Sherlow continued todeduct set-off child support for Andrew from February, 2013 to in orabout September, 2013.

67 Mr. Sherlow’s position is that Andrew was struggling with variousproblems and acting out. Mr. Sherlow argues that he was maintaining ahome for Andrew and that he let Andrew know he could return at anytime. Mr. Sherlow accepts that as of September, 2013, Andrew was reg-istered for school in Kingston, Ontario and was residing with Ms. Taylor.Mr. Sherlow submits that he was entitled to set off child support for An-drew until September, 2013 and that his child support payable for An-drew to Ms. Taylor should start as of September 1, 2013.

68 Ms. Taylor’s position is that Mr. Sherlow should cease receivingchild support from her for Andrew as of February 1, 2013 and that heshould be paying full child support to her for the two younger children ofthe marriage commencing February 1, 2013. She also submits that Mr.Sherlow should pay her full child support for the three children of themarriage commencing July 1, 2013 when Andrew moved in with her.Ms. Taylor is also seeking reimbursement from Mr. Sherlow for the sumof $421.77 which she paid for rent and expenses for Andrew when hewas living away from Mr. Sherlow’s home in British Columbia.


69 Both parties agree that Andrew has removed himself from parentalcontrol as of January 14, 2014 and that at this time neither of them isobligated to pay child support for Andrew.

70 I find that Andrew moved out of Mr. Sherlow’s home in January,2013. From the correspondence between Mr. Sherlow and Ms. Taylor,and the correspondence between Mr. Sherlow and Andrew, I find thatMr. Sherlow did not provide funds to Andrew after Andrew moved outof Mr. Sherlow’s home, nor was he continuing to incur expense for An-drew in his home. Accordingly, I find that Mr. Sherlow should pay fullchild support to Ms. Taylor for the two younger children of the marriagewith no set-off for Andrew, commencing February 1, 2013 to June 1,2013 inclusive, with credit being given to Mr. Sherlow for the base childsupport he has paid for those months.

71 I find that Andrew had removed himself from parental control whenhe moved out of Mr. Sherlow’s home at the end of January, 2013. Ms.Taylor did provide $421.77 to assist Andrew with living expenses whilehe was living away from Mr. Sherlow’s home in British Columbia, but Ifind that she did so on a voluntary basis. I find that Mr. Sherlow shouldnot be responsible to reimburse Ms. Taylor for that sum.

72 I find that Andrew began living with Ms. Taylor in July, 2013 andcontinued living with her while attending school until January 14, 2014. Ifind that Mr. Sherlow should pay child support to Ms. Taylor for thethree children of the marriage from July 1, 2013 to January 1, 2014inclusive.

Class Action Lump sum Settlement73 Mr. Sherlow was awarded a lump sum settlement in 2013 as a mem-

ber of the class action suit (Manuge case) for unpaid Long Term Disabil-ity Benefits from Manulife Financial for a period of 34 months from De-cember, 2009 to September, 2012 inclusive in the gross sum of$65,592.61 less income taxes, and less legal fees in the sum of$5,935.14, for a net amount of $41,899.99. This total lump sum settle-ment was included in Mr. Sherlow’s 2013 tax return as the funds aretaxable.

74 As a result of this class action suit, Mr. Sherlow started receiving amonthly disability amount from Manulife Financial Ltd Benefits in Octo-ber, 2012.

75 The aforesaid lump sum payment was the monthly disability amounthe should have received from Manulife from December, 2009 to Septem-


ber, 2012 inclusive, plus interest on those funds. Mr. Sherlow does notdispute that the monthly disability amount received by him from Manu-life should be included in his income for the purpose of calculating childsupport from October, 2012 forward. Mr. Sherlow argues, however, thatthe lump sum payment should not be included in his income for 2013 orfor prior years because it is a one-time, non-recurring payment. He relieson Section 17(1) of the Guidelines.

76 Ms. Taylor’s position is that this lump sum payment should be in-cluded in Mr. Sherlow’s income for calculation of child support as it istaxable disability income he should have received over several years,which would have been included in his income for child support pur-poses if he had received that disability income when he should have re-ceived it. The inclusion of that income in Mr. Sherlow’s income at thetime he should have received it would have resulted in a greater childsupport payment being paid to her during those years. Ms. Taylor claimsthat the whole of the gross lump sum payment should be included in Mr.Sherlow’s income for 2013 for the purpose of calculating child support,or alternatively that Mr. Sherlow’s income for 2009, 2010, 2011 and2012 should be re-calculated adding in the amounts he should have re-ceived in those years.

77 I find that Mr. Sherlow’s lump sum settlement should be taken intoaccount with respect to calculation of child support as it is disability in-come which was part of his “Total income” for 2013. I find that if Mr.Sherlow had been receiving the monthly disability income payment fromManulife from December, 2009 to September, 2012 inclusive as heshould have, it would have been taxable income in his hands and itwould have been included in his income for each of those years for thepurpose of calculating child support.

78 The fact that Mr. Sherlow has received those disability payments as alump sum does not change the nature of the payment. I see no justifica-tion for Mr. Sherlow receiving the sole benefit of those funds whichwould have been included in his income for the relevant years if he hadreceived them during those years. In fact, Mr. Sherlow in several emailsto Ms. Taylor prior to the award of the lump sum told Ms. Taylor repeat-edly that when he found out the retroactive amount, he would provideher with 2010, 2011, and 2012 retroactive child support equal to theamount he would have given her if he had received the money in the firstplace. However, Mr. Sherlow never did do the re-calculation, and he hasnot paid any of the arrears that would be found to be owing out of that


settlement. Contrary to those emails to Ms. Taylor, Mr. Sherlow is nowtaking the position that Ms. Taylor should receive nothing from thatlump sum.

79 The difficulty here, however, is that during 2009, 2010, 2011, and2012 there was set-off child support being paid because one child livedwith Mr. Sherlow in B.C. and two children lived with Ms. Taylor inManitoba, and then in Ontario. In my view, it would be unfair to includethe whole of the lump sum settlement received by Mr. Sherlow in hisincome for child support purposes in 2013 as Mr. Sherlow would be re-quired to pay child support for three children from July, 2013 to Decem-ber, 2013 because of Andrew’s change of residence, at a higher rate be-cause of the inclusion of income that he really ought to have received in2009, 2010, 2011, and 2012.

80 I find that Mr. Sherlow’s income for child support purposes for thoseyears must be re-calculated to take into account the greater child supportthat would have been due and owing if Mr. Sherlow had received thosefunds at the appropriate time.

81 The re-calcuation has the potential of being extremely complicateddue to two different Court Orders covering that period. The first CourtOrder covered the period from January 1, 2006 to September 30, 2011.The second Court Order commenced on October 1, 2011. To make mat-ters more complicated, each party changed province at some point duringthose periods, with Mr. Sherlow moving to British Columbia and Ms.Taylor moving to Ontario. Further, the Federal Child Support GuidelinesTables changed twice during the period of the two Orders. In addition,there are taxable amounts received by each party, non-taxable amountsreceived by each party, and I do not have all the income tax returns andback-up documentation for each of the years in question. Mr. Sherlowvoluntarily increased his child support in some years based on what hesaid his income was. However, Justice Carr in the April 10, 2012 orderfound that there were arrears owing by Mr. Sherlow to Ms. Taylor in thesum of $3,597.00. I am advised those arrears have been paid in full atthis time.

82 The reason the parties are in the midst of litigation for the third timeis because they have been unable to agree. I have no confidence whatso-ever that if I instructed the parties to go back and recalculate the supportfor those years that they would be able to do so. In my view it wouldrequire another lengthy court battle which neither party nor the childrencan afford.


83 I find that the re-calculation must be done in an efficient and cost-effective manner without the necessity of another costly hearing. I havedone the recalculation as follows.

84 I find that Mr. Sherlow received a lump sum in 2013 in the grossamount of $65,592.61. I allow the deduction of Mr. Sherlow’s share ofthe class action legal fees in the sum of $5,935.14. I do not allow thededuction for income tax as the Federal Child Support Guidelines calcu-lates child support on gross income before income taxes. This leaves anet amount of $59,657.47. I find that this net lump sum payment shouldbe divided by 34 months. This results in Mr. Sherlow having receivedadditional income of $1,754.63 per month from December, 2009 to Sep-tember, 2012 inclusive.

85 Accordingly, I find that Mr. Sherlow’s income for 2009 should beincreased by $1,754.63, by $21,055.56 for 2010, by $21,055.56 for 2011,and by $15,791.67 for 2012 to account for his receipt of the lump sumsettlement in 2013. I find that none of that lump sum settlement shouldbe included in Mr. Sherlow’s income for 2013.

86 In 2009, Mr. Sherlow’s annual income pursuant to the Court Orderexisting at that time was $53,000.00. Adding on additional income of$1,754.63 results in an income of $54,754.63. Using the British Colum-bia tables for two children, that would result in an increase of $27.00 permonth child support in 2009 for a total of $324.00 owing for 2009.

87 In 2010, Mr. Sherlow’s annual income pursuant to the Court Orderexisting at that time was $53,000.00. Adding on additional income of$21,055.56 results in an income of $74,055.00. Using the British Colum-bia tables for two children, that would result in an increase of $306.00per month in the child support for a total of $3,672.00 owing for 2010.

88 In 2011, Mr. Sherlow’s annual income pursuant to the Court Orderexisting at the time was $53,000.00 for the first 9 months of the year.Pursuant to the April 10, 2012 Order, his annual income changed to$62,779.55 and the new payment began on October 1, 2011.

89 For the purpose of my calculations, I have taken Mr. Sherlow’s an-nual income to be $53,000.00 for the first 9 months of the year. Addingon additional income of $21,055.56 results in an income of $74,055.56.As previously calculated for 2011 this would result in an increase of$306.00 per month in the child support for 9 months, resulting in Mr.Sherlow owing $2,754.00 for those 9 months.


90 Commencing October 1, 2011, I have taken Mr. Sherlow’s annual in-come to be $62,779.55 for the last three months of the year. Adding anadditional income of $21,055.56 results in an income of $83,835.11. Us-ing the British Columbia tables for two children, that would result in anincrease of $286.00 per month in the child support for 3 months, result-ing in Mr. Sherlow owing $858.00 for those 3 months.

91 Ms. Taylor is seeking that Mr. Sherlow’s income be re-adjusted for2012. In looking at this issue, I will also need to take into account theimpact of the additional 9 months of the lump sum settlement I haveallocated to 2012 of $15,791.67. Accordingly, I will deal with 2012 as aseparate issue.

92 In summary, I find that Mr. Sherlow owes to Ms. Taylor child supportarrears in relation to the Manulife lump sum settlement received by himfor the years 2009 to 20011 inclusive, the sum of $7,608.00 which shallbe forthwith paid by Mr. Sherlow to Ms. Taylor. As previously stated, Iwill deal with the 2012 portion of the lump sum settlement separately.

Income for 2012 and calculation of 2012 child support93 Ms. Taylor seeks to include in Mr. Sherlow’s income for 2012 a reas-

sessment of income for Mr. Sherlow for the 2010 taxation year, whichreassessment was dated March 8, 2012. Ms. Taylor states that she wasnot made aware of this reassessment until Mr. Sherlow filed his FinancialStatement in this matter in October, 2013. Ms. Taylor states that this in-formation was not known to her or Justice Carr when Justice Carr madethe existing order on April 10, 2012. The reassessment amounted to anincrease in Mr. Sherlow’s Line 150 income for 2010 from $20,547.00 to$35,465.00

94 Unfortunately, I do not know the figures on which Justice Carr calcu-lated the arrears in the April 10, 2012 Order. I do not know what Mr.Sherlow’s other non-taxable income was in 2010. This income seems torelate to some sort of employment income. Ms. Taylor suggests that itmay have been severance income but I have no evidence of that beforeme. I find on the evidence before me I am unable to include this reas-sessed 2010 income for Mr. Sherlow in his income for 2012, and I havenot done so.

95 On the evidence before me, including Mr. Sherlow’s 2012 Notice ofAssessment, and Mr. Sherlow’s note to Ms. Taylor dated December 24,2012, and including the lump sum settlement income of $15,791.67 allo-


cated to 2012, I find that Mr. Sherlow’s imputed income for 2012 is asfollows:

Canadian Forces Pension (taxable) $21,418.80VAC pension (33,168.12 non-taxable, grossed 48,066.12up)Manulife LTD 6,010.05Additional income from lump sum 15,791.67

Total Income $91,286.59

I find that Mr. Sherlow’s income for 2012 is $91,286.59.96 I find that Ms. Taylor’s income for 2012 is as follows:

Employment income $65,582.00


I find that Ms. Taylor’s income for 2012 is $65,582.00.97 Based on the aforesaid incomes, and based on Mr. Sherlow having

one child living with him, and Ms. Taylor having two children livingwith her, I find that Mr. Sherlow shall pay set-off child support to Ms.Taylor in the sum of $763.00 per month ($1,362.00 - $599.00) com-mencing January 1, 2012 to and including December 1, 2012 inclusive,with credit given to Mr. Sherlow for the amounts already paid by himtowards that base monthly child support for 2012.

Income for 2013 and calculation of 2013 child support98 In 2013, Mr. Sherlow received $228.66 from CPP disability for An-

drew from January, 2013 to and including September, 2013.99 Ms. Sherlow received $228.66 per month from CPP disability for

each of Leigha and Liam throughout 2013 and she began to receive CPPdisability for Andrew in November, 2013.

100 As both parties have agreed that the CPP disability income receivedby each of them for the children should be included in the income of theother for calculation of child support purposes for 2013, I have left thoseamounts in each party’s income. I have also not grossed-up thosemonthly CPP disability amounts for the children for either party as theparties did not do so in their calculations and submissions.


101 On the evidence before me, I find that Mr. Sherlow’s income for2013 is as follows:

Manulife Financial disability (taxable) $23,170.34CPP disability (taxable) 4,432.64Canadian Forces Pension ($1,818.81 / month × 21,821.7512 - taxable)VAC pension (2,813.75 /month × 12 = 53,038.3333,765.00 + $1,886.63 = 35,651.63 — non-tax-able, grossed up)CPP disability — Andrew $228.66 per month ×9 — non-taxable not grossed-up) 2,057.94


I find that Mr. Sherlow’s imputed income for 2013 for child support pur-poses is $104,521.00.

102 In 2013, Ms. Taylor withdrew the sum of $17,781.89 from her RRSPwhich was a one-time withdrawal to cover the expenses of obtaininglarger accommodation for the family now that Andrew was residing withthe family.

103 Mr. Sherlow’s position was that Ms. Taylor’s RRSP withdrawalshould be included in her income for purposes of calculating her incomefor child support purposes.

104 Although Ms. Taylor was aware that she could attempt to make anargument that the withdrawal from her RRSP was a non-recurringamount and should be excluded from her income, she advised that shewas not seeking an exclusion and that she wanted that RRSP withdrawalincluded in her income for purposes of calculating child support.

105 As the parties were agreed that Ms. Taylor’s RRSP withdrawalshould be included in Ms. Taylor’s 2013 income, I have included thatfigure. I have also included the amounts received by her from CPP disa-bility for the two children residing with her as previously discussed.

106 On the evidence before me, I find that Ms. Taylor’s income for 2013is as follows:

Income from employment (taxable) $64,434.47RRSP withdrawal (taxable) 17,781.89CPP disability — Leigha and Liam 5,487.84($228.66/month × 2 × 12 months =$5,487.84 — not grossed-up)


CPP disability — Andrew ($228.66/month × 2months (Nov.& Dec.) = $457.32 — non-taxa-ble — not grossed-up 457.32


I find that Ms. Taylor’s imputed income for 2013 for child support pur-poses is $88,161.52.

107 Based on Mr. Sherlow’s imputed gross income of $104,521.00 for2013 and Ms. Taylor’s imputed gross income of $88,161.52 for 2013,Mr. Sherlow shall pay to Ms. Taylor set-off child support for two chil-dren in January, 2013 in the sum of $750.00 (1,536.00-$786), with creditfor the base amount of child support he has already paid in that month.

108 Commencing February 1, 2013 to and including June 1, 2013, Mr.Sherlow shall pay to Ms. Taylor child support for two children in thesum of $1,536.00 per month. Neither party shall pay support to the otherfor Andrew during those months.

109 Commencing July 1, 2013 to and including December 1, 2013, Mr.Sherlow shall pay child support to Ms. Taylor for all three children in thesum of $1,998.00 per month.

Calculation of 2014 ongoing child support110 Mr. Sherlow’s income for 2014 is expected to be as follows:

CPP disability (taxable) $13,296.00Manulife Financial disability (taxable) 16,582.00Canadian Forces Pension (taxable) 21,828.00Veteran’s Affairs Pension ($39,534.00 non taxable -grossed up) 59,911.00


I find that Mr. Sherlow’s total imputed income for 2014 for child supportpurposes is $111,617.00.

111 I note that in calculating Mr. Sherlow’s income for 2014 from hisCanadian Forces Pension, I have used the figure of what he should havereceived if he had repaid his CPP overpayment of $8,694.92 in 2013 withthe funds which were sent directly to him in 2013 to do so. Mr. Sherlowkept those funds personally and did not use those funds for that purpose.Accordingly, the overpayment is being deducted from his CanadianForces pension. For the purpose of Mr. Sherlow’s 2013 income, I havenot included the $8,694.92 in his income as I have treated it as a “wash”


as money which was received but which was cancelled out by moneythat was owed.

112 Similarly, in future years for calculation of Mr. Sherlow’s income forchild support purposes, the amount of his Canadian Forces pensionshould be shown as the amount he should be receiving as opposed to theactual amount he is receiving because of the repayment by him of theCPP overpayment from his Canadian Forces pension.

113 In calculating Mr. Sherlow’s VAC pension, I have only included re-ceipt of a payment for Andrew for January, 2014 as the evidence wasthat it stopped after that time.

114 Ms. Taylor’s income for 2014 for child support purposes is expectedto be as follows:

Employment income (taxable) $62,232.00CPP disability (Leigha and Liam - $228.66/month × 5,487.842 = $457.32 × 12 non-taxable, not grossed-up)CPP disability — (Andrew $228.66 × 1 month (Jan.2014) — non-taxable — not grossed-up) 228.66

Total income $67,948.50

I find that Ms. Taylor’s imputed income for child support purposes for2014 is $67,948.50.

115 I find that Mr. Sherlow shall pay child support to Ms. Taylor in thesum of $2,114.00 for three children for January, 2014 based on his im-puted gross annual income of $111,617.00 for 2014. Thereafter, as An-drew has withdrawn from parental control, Mr. Sherlow shall pay thesum of $1,627.00 per month to Ms. Taylor for the support of two chil-dren commencing February 1, 2014 and on the first of each and everymonth thereafter based on his imputed gross annual income of$111,617.00 for 2014.

116 The child support for Leigha Sherlow, born August 11, 1998 andLiam Sherlow, born August 25, 1999 shall continue so long as each childis as a “child of the marriage” within the meaning of the Divorce Act,although a child living away from home to attend a post-secondary insti-tution may constitute a material change in circumstances for the purposesof a review of the child support.

117 As soon as Mr. Sherlow has received notice of what his income fromhis retirement pension, his disability pensions and his Veteran’s Affairspension will be for the following year, he shall forthwith provide proof


of that to Ms. Taylor and the parties shall calculate the base monthlychild support which Mr. Sherlow shall commence paying on January 1 ofeach year, commencing January 1, 2015. For the purposes of calculatingthe base monthly child support, Mr. Sherlow’s Veteran’s Affairs pensionshall be included as income and be grossed-up as it is non-taxable in Mr.Sherlow’s hands. Further, Mr. Sherlow’s Canadian Forces Pension shallbe the amount he should have received if he did not have a repayment toCPP being deducted.

118 Each party shall also provide to the other in May 1 of each year com-mencing May 1, 2015 a copy of his and her complete income tax returnfor the prior year including all schedules and attachments thereto, and acopy of his or her Notice of Assessment and any Notice of Re-Assess-ment within 15 days of his and her receipt thereof.

119 Ms. Taylor is seeking that there be an annual cost of living increase inthe child support. I find that the child support will need to be calculatedon an annual basis in accordance with the income of the parties. I havenot included a cost of living clause.

Ongoing Section 7 Expenses120 Based on Mr. Sherlow’s imputed income for 2014 of $111,617.00

and Ms. Taylor’s imputed income for 2014 of $67,948.50, Mr. Sherlowshall be responsible for 62 percent and Ms. Taylor shall be responsiblefor 38 percent of the special and extra-ordinary expenses of the two chil-dren pursuant to Section 7 of the Guidelines.

121 Ms. Taylor is seeking that the section of the current Order dealingwith Section 7 expenses be varied to provide that Mr. Sherlow be re-quired to pay a monthly amount of $250.00 per month through FRO to-wards the special and extraordinary expenses of the two younger chil-dren. Ms. Taylor is also seeking that driver’s education for the twoyounger children of the marriage be deemed to be special and extraordi-nary expenses for the two younger children of the marriage. In that re-gard, Ms. Taylor relies on email correspondence from Mr. Sherlow toMs. Taylor on November 17, 2012 where he indicates that he considersdriver’s lessons to be essential for Drew (Andrew) and that Mr. Sherlowis seeking contribution from Ms. Taylor for same. Mr. Sherlow goes onto say that driver’s lessons will also be essential for the two youngerchildren when the time comes.


122 Mr. Sherlow takes the position that it is premature to consider a re-quest for a contribution towards driver’s lessons for the children at thistime as those expenses are not being incurred at this time.

123 Leigha turned 16 years of age in August, 2014 and Liam will turn 16years of age in August, 2015. Accordingly, I do not find it premature todeal with the issue of driver’s lessons. I find that the cost of driver’slessons shall qualify as a special and extraordinary expense for each ofthe two children residing with Ms. Taylor. I also find that Mr. Sherlowand Ms. Taylor shall each contribute to the reasonable cost of driver’slessons in accordance with his and her proportionate share of the chil-dren’s special and extraordinary expenses in the year in which the ex-pense for the driver’s lessons is incurred. Ms. Taylor shall provide asmuch prior notice to Mr. Sherlow as possible of the date at which thechild intends to commence lessons and the expected cost of same.

124 Ms. Taylor’s evidence is that both children are quite involved in ex-tracurricular activities. Leigha does Tai Kwon Do at a cost of $570.00per year, and yoga at a cost of $795.00 per year. She has also been in-volved in horseback riding. Liam played rugby and did judo at a cost of$200.00 per year and rowing at a cost of $508.50 for the year.

125 I find that it is reasonable that the current order be varied to providethat Mr. Sherlow pay the sum of $150.00 per month towards the specialand extraordinary expenses of the two children, which in more recenttimes Mr. Sherlow had been doing voluntarily. Ms. Taylor shall providereceipts for the special and extraordinary expenses to Mr. Sherlow andMs. Taylor shall continue to obtain consent from Mr. Sherlow for anyextracurricular activities for the children exceeding $500.00 per year,with such consent not to be unreasonably withheld. If the annual specialand extraordinary expenses exceed the total monthly amount paid by Mr.Sherlow each year, Mr. Sherlow shall provide to Ms. Taylor his addi-tional share of such expenses upon production of supporting receipts byMs. Taylor, subject to his prior consent having been obtained, if re-quired. If Mr. Sherlow’s proportionate share of the annual expenses (ver-ified by receipts provided by Ms. Taylor to Mr. Sherlow) is less than Mr.Sherlow has paid for the year, Ms. Taylor shall forthwith reimburse Mr.Sherlow the difference.

Arrears of Section 7 Expenses126 The current support order made on April 10, 2012 provides that the

parties shall share the special and extraordinary expenses for the three


children with Mr. Sherlow paying 53 percent and Ms. Taylor paying 47percent of the net costs for all reasonable medical, dental, and educationexpenses, and extra-curricular expenses under $500.00 and all extracur-ricular sports activities that cost $500.00 annually or more that are agreedto by the parties prior to enrolment.

127 One of the issues in dispute regarding past Section 7 expenses is thecost of childcare incurred by Ms. Taylor when she was deployed inApril, 2013 for 2 months. Ms. Taylor’s position is that she had very littlenotice of the deployment and that as a single person solely responsiblefor two children in her household, she was required to file a childcareplan with the military almost immediately. Her evidence is that she wroteMr. Sherlow several emails advising him of the deployment and advisinghim that she was arranging for child care to which she would be lookingto him to contribute. She was assuming that he would not be able to lookafter the children as she understood that his common law spouse wasundergoing treatments for cancer and as Mr. Sherlow had numerous ap-pointments himself. When she did not hear back from Mr. Sherlow, shefinalized her plans for her boyfriend’s daughter to fly to Kingston to carefor the children.

128 When Mr. Sherlow offered to come to Kingston to reside in Ms. Tay-lor’s home to care for the two children while Ms. Taylor was away, shetold him that she had already made her plans and that she did not feelcomfortable having him stay in her home while she was away. Mr.Sherlow’s alternate plan was that the younger child could leave hisschool and come out to B.C. to go to school there for the rest of theschool year. Ms. Taylor was not in agreement with this for a number ofreasonable reasons.

129 The total cost of the childcare including the return flight of thecaregiver was $5,195.80. Ms. Taylor was reimbursed the sum of$1,960.00 from the military. She seeks that Mr. Sherlow be responsiblefor his proportionate share of the net cost of childcare in the sum of$3,235.80.

130 Mr. Sherlow’s position is that the childcare expense could have beenavoided if Ms. Taylor had accepted his offer to care for the childrenwhile she was away on deployment. Accordingly, he argues that Ms.Taylor should be totally responsible for the expenses that she incurred,and particularly as she incurred the expenses without his consent. Hecomplains that Ms. Sherlow sent him an email at an email address he hadnot used for some time. He contends that for such an important, time-


sensitive issue, it would have been far more reasonable for Ms. Taylor tohave picked up the telephone and called him about the issue.

131 Although Ms. Taylor probably should have called Mr. Sherlow bytelephone when she did not hear from him immediately by email, I findthat Ms. Taylor made reasonable arrangements for the care of the chil-dren in the short time she had available to her to do so. Given the diffi-cult history between the parties, I do not find it unreasonable that Ms.Taylor was unwilling to have Mr. Sherlow move into her home to carefor the children while she was deployed. Ms. Taylor had reasonable edu-cational and social reasons why it was not in the youngest child’s interestto leave his Ontario school and go to B.C. for the term. Ms. Sherlow hasa court order for sole custody of the two children in question and I findthat she was entitled to make the arrangements for child care that shebelieved were in the best interests of the children.

132 I find that Mr. Sherlow owes to Ms. Taylor his proportionate share ofthe net childcare costs of $3,235.80. As I have determined that Mr.Sherlow’s income for 2013 is $104,522.00 and Ms. Taylor’s income for2013 is $88,161.00, I find that Mr. Sherlow is responsible for 54.2 per-cent of the cost and Ms. Taylor is responsible for 45.8 percent of thecost. I find that Mr. Sherlow shall forthwith pay the sum of $1,753.80 toMs. Taylor for the childcare costs incurred by her during her deploymentin 2013.

133 For the 2012 year, there shall be no further adjustment of the specialand extraordinary expenses of the children pursuant to Section 7 of theFederal Child Support Guidelines and it shall be deemed that neitherparty owes any amount to the other for Section 7 expenses.

134 For the 2013 year, Mr. Sherlow shall be responsible for 54.2 percentand Ms. Taylor shall be responsible for 45.8 percent of the special andextraordinary expenses of the children pursuant to Section 7 of the Fed-eral Child Support Guidelines, with credit given to Mr. Sherlow for anyamounts he has already paid for the special and extraordinary expensesof the children. As I do not have the necessary information before me tocalculate what, if any, arrears are owing, the parties shall make this cal-culation themselves.

135 For the 2014 year, Mr. Sherlow shall be responsible for 62 percentand Ms. Sherlow responsible for 38 percent of the special and extraordi-nary expenses of the children pursuant to Section 7 of the Federal ChildSupport Guidelines, with credit given to Mr. Sherlow for any amounts he


has already paid for the special and extraordinary expenses of thechildren.

Costs136 If the parties are unable to agree on the issue of costs, the parties, may

serve and file written submissions on costs of no more than three type-written pages each plus a copy of any Offers to Settle, and a Bill ofCosts. The Applicant, Ms. Taylor shall serve and file any written submis-sions as to costs by December 12, 2014. The Respondent, Mr. Sherlowshall serve and file any written submissions as to costs by January 16,2015. The Applicant, Ms. Taylor shall serve and file any Reply by Janu-ary 30, 2015. If neither party files written submissions as to costs withinthe aforesaid timelines, there shall be deemed to be no order as to costs.

137 If I have made any mathematical errors, I shall remain seized of thismatter to correct such mathematical errors. The parties may contact theTrial Co-ordinator to set up a time to review and correct any such errors,or the parties may file a consent to such correction.

Order138 Final Order to go varying the order of Mr. Justice Carr of the Queen’s

Bench of Manitoba (Family Division) made on April 10, 2012 in accor-dance with these Reasons for Decision.

Motion granted.


[Indexed as: Tillmanns v. Tillmanns]

Cheryl Ann Tillmanns, Applicant and Frank Joseph TillmannsJr., Respondent


Docket: F1865/11

2014 ONSC 6773

Pazaratz J.

Heard: November 12-14, 2014

Judgment: November 21, 2014*

Family law –––– Support — Child support under federal and provincialguidelines — Determination of award amount — Extraordinary ex-penses — Necessity and reasonableness –––– Parties separated in 2005, andtheir child remained in custody of mother — At time motion at bar was heard inNovember 2014, child was 11 years old — In 2006, order was issued requiringfather to pay 43 per cent of child care and expenses under s. 7 of Federal ChildSupport Guidelines (s. 7 expenses) — Over years, child care came to includepaying woman who provided child care to drive child back and forth to school,which was distance of 2.5 kilometers — Father was laid off in 2013 and re-ceived severance pay until March 2014 — After March 2014, father ceasedmaking contributions to child care and s. 7 expenses — Father brought motionto change child support — Motion granted — Father was ordered to pay 25 percent of ongoing child care and s. 7 expenses commencing November 1, 2014 —This percentage was based on mother having annual income of $107,000, andfather having annual income of $35,000 from his new job — Child care wasdeemed to include transportation to and from school until at least end of currentschool year — Cost of $200 per month for both transportation and child carewas reasonable — Child was well settled in his current school — As child gotbit older, issue of walking to school could be revisited, but it was too early todetermine that this expense could or should be eliminated — Father was alsoordered to pay $1,000 for arrears of child care and s. 7 expenses for period up toOctober 31, 2014, which represented reduced percentage reflecting father’s ac-tual earnings.

Family law –––– Support — Child support under federal and provincialguidelines — Determination of spouse’s annual income — Imputed in-

*Additional reasons at Tillmanns v. Tillmanns (2015), 53 R.F.L. (7th) 247, 2015ONSC 616, 2015 CarswellOnt 949 (Ont. S.C.J.).

Tillmanns v. Tillmanns 211

come — Deliberately unemployed or under-employed –––– Parties separatedin 2005, their child remained in custody of mother, and order was issued requir-ing father to pay monthly child support of $519 — In 2013, father was laid offfrom longstanding employment in plastics plant, and he received severance payuntil March 2014 — Father took eight-month plumbing course starting in Janu-ary 2014, and he obtained plumbing apprentice job starting in November2014 — Father brought motion to change child support — Motion granted —Father was ordered to pay monthly child support of $325 per month commenc-ing November 1, 2014 — This amount was based on mother having annual in-come of $107,000, and father having annual income of $35,000 from his newjob — Father’s layoff constituted material change in circumstances, which wasprerequisite for motion to change child support — No income was imputed tofather for any period — Father’s decision to accept severance package in Janu-ary 2014 was reasonable — Father was reasonable in concluding that his re-callrights were essentially meaningless, because there was no possibility plasticsplant would open again — It was reasonable for father to consider upgrading hisskills and learning trade — In this regard, consideration was given to numerousplant closures across province and to fact that competition for dwindling numberof well-paying factory jobs was intense — It was reasonable for father to learnplumbing trade, both because of relatively short school component, and also be-cause of duration and wage growth potential of apprenticeship — While eightmonths father spent in plumbing course might constitute intentional unemploy-ment, it was justified by virtue of reasonable educational needs — Father did nothave ability to pay full monthly child support between April 1 and November 1,2014, and he paid reduced monthly amounts based upon accurate assessment ofhis income during that period.

Family law –––– Support — Child support under federal and provincialguidelines — Variation or termination of award — Change in circum-stances — Change in means –––– Parties separated in 2005, their child re-mained in custody of mother, and order was issued requiring father to paymonthly child support of $519 — In 2013, father was laid off from longstandingemployment in plastics plant, and he received severance pay until March2014 — Father took eight-month plumbing course starting in January 2014, andhe obtained plumbing apprentice job starting in November 2014 — Fatherbrought motion to change child support — Motion granted — Father was or-dered to pay monthly child support of $325 per month commencing November1, 2014 — This amount was based on mother having annual income of$107,000, and father having annual income of $35,000 from his new job — Fa-ther’s layoff constituted material change in circumstances, which was prerequi-site for motion to change child support — No income was imputed to father forany period — Father’s decision to accept severance package in January 2014was reasonable — Father was reasonable in concluding that his re-call rightswere essentially meaningless, because there was no possibility plastics plant


would open again — It was reasonable for father to consider upgrading his skillsand learning trade — In this regard, consideration was given to numerous plantclosures across province and to fact that competition for dwindling number ofwell-paying factory jobs was intense — It was reasonable for father to learnplumbing trade, both because of relatively short school component, and also be-cause of duration and wage growth potential of apprenticeship — While eightmonths father spent in plumbing course might constitute intentional unemploy-ment, it was justified by virtue of reasonable educational needs — Father did nothave ability to pay full monthly child support between April 1 and November 1,2014, and he paid reduced monthly amounts based upon accurate assessment ofhis income during that period.

Family law –––– Support — Child support under federal and provincialguidelines — Variation or termination of award — Evidence and burden ofproof –––– Articles downloaded from internet held to be inadmissible.

Cases considered by Pazaratz J.:

A. (G.) v. B. (K.) (2014), 46 R.F.L. (7th) 351, 2014 CarswellOnt 8838, 2014ONSC 3913 (Ont. S.C.J.) — referred to

Aboagye v. Sakyi (2012), 2012 CarswellOnt 1371, 2012 ONCJ 56, [2012] O.J.No. 575 (Ont. C.J.) — referred to

Aitken v. Aitken (2003), [2003] O.T.C. 633, 2003 CarswellOnt 2561, 42 R.F.L.(5th) 1, [2003] O.J. No. 2780 (Ont. S.C.J.) — referred to

Ascento v. Davies (2012), 2012 ONCJ 491, 2012 CarswellOnt 9224 (Ont.C.J.) — referred to

B. (G.T.) v. B. (Z.B.) (2014), 2014 ONCJ 382, 2014 CarswellOnt 11486 (Ont.C.J.) — referred to

Bak v. Dobell (2007), 281 D.L.R. (4th) 494, 2007 CarswellOnt 2324, 2007ONCA 304, 86 O.R. (3d) 196, 38 R.F.L. (6th) 7, 224 O.A.C. 10, [2007] O.J.No. 1489 (Ont. C.A.) — referred to

Banning v. Bobrowski (2007), 2007 CarswellOnt 6569, [2007] O.J. No. 3927(Ont. S.C.J.) — referred to

Beck v. Beckett (2011), 2011 ONCA 559, 2011 CarswellOnt 8467, 4 R.F.L.(7th) 48, 341 D.L.R. (4th) 69, 283 O.A.C. 109, [2011] O.J. No. 3752 (Ont.C.A.) — referred to

Bekkers v. Bekkers (2008), 2008 CarswellOnt 173, 49 R.F.L. (6th) 119, [2008]O.J. No. 140 (Ont. S.C.J.) — referred to

Bensadoun v. Bensadoun (2002), 2002 CarswellOnt 1638, [2002] O.J. No. 2023(Ont. S.C.J.) — referred to

Blake v. Blake (2000), 8 R.F.L. (5th) 233, 2000 CarswellOnt 2477, [2000] O.J.No. 2670 (Ont. S.C.J.) — referred to

Children’s Aid Society of Waterloo (Regional Municipality) v. S. (L.S.) (2010),2010 ONCA 630, 2010 CarswellOnt 7307 (Ont. C.A.) — referred to


Costello v. Costello (2012), 2012 CarswellOnt 8253, 2012 ONCJ 399 (Ont.C.J.) — referred to

Drygala v. Pauli (2002), 29 R.F.L. (5th) 293, 2002 CarswellOnt 3228, 61 O.R.(3d) 711, 219 D.L.R. (4th) 319, 164 O.A.C. 241, (sub nom. A.M.D. v. A.J.P.)[2002] O.J. No. 3731 (Ont. C.A.) — followed

Evans v. Gravely (2000), 2000 CarswellOnt 4781, 14 R.F.L. (5th) 74, [2000]O.J. No. 4748 (Ont. S.C.J.) — referred to

Filippetto v. Timpano (2008), 2008 CarswellOnt 544, [2008] O.J. No. 417 (Ont.S.C.J.) — referred to

G. (W.) v. G. (S.) (2014), 2014 CarswellOnt 7312, 2014 ONSC 3258 (Ont.S.C.J.) — referred to

Gee v. McGraw (2014), 2014 ONCJ 87, 2014 CarswellOnt 2022 (Ont. C.J.) —referred to

Hagner v. Hawkins (2005), 2005 CarswellOnt 6701, 21 R.F.L. (6th) 315, [2005]O.J. No. 4975 (Ont. S.C.J.) — referred to

Hanson v. Hanson (1999), 1999 CarswellBC 2545, [1999] B.C.J. No. 2532(B.C. S.C.) — referred to

Homsi v. Zaya (2009), 2009 ONCA 322, 65 R.F.L. (6th) 17, 2009 CarswellOnt2068, 248 O.A.C. 168, [2009] O.J. No. 1552 (Ont. C.A.) — referred to

Jonas v. Jonas (2002), 2002 CarswellOnt 1780, [2002] O.J. No. 2117 (Ont.S.C.J.) — referred to

Kerr v. Erland (2014), 2014 ONSC 3555, 2014 CarswellOnt 8569 (Ont.S.C.J.) — referred to

Kramer v. Kramer (2014), 2014 CarswellOnt 14209, 2014 ONSC 5952 (Ont.S.C.J.) — referred to

L. (N.) v. P. (B.) (2000), 7 R.F.L. (5th) 335, 2000 CarswellOnt 2487, [2000] O.J.No. 2574 (Ont. S.C.J.) — referred to

Laing v. Mahmoud (2011), 2011 CarswellOnt 5807, 2011 ONSC 4047, [2011]O.J. No. 3060 (Ont. S.C.J.) — referred to

Lalonde v. Lalonde (2005), 2005 CarswellOnt 1969, [2005] O.J. No. 2008 (Ont.S.C.J.) — referred to

Lamoureux v. Lamoureux (2010), 2010 ONSC 4488, 2010 CarswellOnt 6176(Ont. S.C.J.) — referred to

Lavrinenko v. Lavrinenko (2014), 2014 ONSC 4097, 2014 CarswellOnt 9314(Ont. S.C.J.) — referred to

Lawson v. Lawson (2006), 214 O.A.C. 94, 29 R.F.L. (6th) 8, 2006 CarswellOnt4789, 81 O.R. (3d) 321, [2006] O.J. No. 3179 (Ont. C.A.) — referred to

Lebouthillier v. Manning (2014), 2014 ONSC 4081, 2014 CarswellOnt 9426(Ont. S.C.J.) — referred to

Lee v. Lee (1998), 165 D.L.R. (4th) 619, 43 R.F.L. (4th) 339, 167 Nfld. &P.E.I.R. 176, 513 A.P.R. 176, 1998 CarswellNfld 222, [1998] N.J. No. 247(Nfld. C.A.) — referred to


Menegaldo v. Menegaldo (2012), 2012 ONSC 2915, 2012 CarswellOnt 6030,[2012] O.J. No. 2186 (Ont. S.C.J.) — referred to

Milford v. Catherwood (2014), 2014 CarswellOnt 7879, 2014 ONCJ 276 (Ont.C.J.) — referred to

Miller v. Volk (2009), 2009 CarswellOnt 4586, 74 R.F.L. (6th) 61, [2009] O.J.No. 3297 (Ont. S.C.J.) — referred to

Obodoechina v. Ayetor (2013), 2013 CarswellOnt 18556, 2013 ONCJ 738,[2013] O.J. No. 6066 (Ont. C.J.) — referred to

Olah v. Olah (2000), 7 R.F.L. (5th) 173, 2000 CarswellOnt 1691, [2000] O.T.C.344, [2000] O.J. No. 1720 (Ont. S.C.J.) — referred to

Price v. Reid (2013), 2013 ONCJ 373, 2013 CarswellOnt 9440 (Ont. C.J.) —referred to

Reyes v. Brunhuber (2008), 2008 CarswellOnt 4829 (Ont. S.C.J.) — referred toRiel v. Holland (2003), 177 O.A.C. 162, 2003 CarswellOnt 3828, 232 D.L.R.

(4th) 264, 42 R.F.L. (5th) 120, 67 O.R. (3d) 417, [2003] O.J. No. 3901 (Ont.C.A.) — referred to

Rilli v. Rilli (2006), 2006 CarswellOnt 6335, [2006] O.J. No. 4142 (Ont.S.C.J.) — referred to

Rogers v. Rogers (2013), 2013 CarswellOnt 4068, 30 R.F.L. (7th) 330, 2013ONSC 1997, [2013] O.J. No. 1616 (Ont. S.C.J.) — referred to

Scott v. Blake (2008), 2008 CarswellOnt 3222, [2008] O.J. No. 2195 (Ont.S.C.J.) — referred to

Smith v. Smith (2012), 2012 CarswellOnt 3113, 2012 ONSC 1116, [2012] O.J.No. 800 (Ont. S.C.J.) — referred to

Stewart v. Turner (2014), 2014 CarswellOnt 12519, 2014 ONCJ 464 (Ont.C.J.) — referred to

Thompson v. Gilchrist (2012), 27 R.F.L. (7th) 83, 2012 CarswellOnt 8996, 2012ONSC 4137, [2012] O.J. No. 3313 (Ont. S.C.J.) — referred to

Thompson v. Thompson (2013), 2013 ONSC 5500, 2013 CarswellOnt 12392,[2013] O.J. No. 4001 (Ont. S.C.J.) — referred to

Trottier v. Prud’homme (2012), 2012 ONCJ 641, 2012 CarswellOnt 12800 (Ont.C.J.) — referred to

Vitagliano v. Di Stavolo (2001), 17 R.F.L. (5th) 194, 2001 CarswellOnt 1065,[2001] O.J. No. 1138 (Ont. S.C.J.) — referred to

Weir v. Therrien (2001), 20 R.F.L. (5th) 199, 2001 CarswellOnt 2327, [2001]O.J. No. 2612 (Ont. S.C.J.) — referred to

Willick v. Willick (1994), 6 R.F.L. (4th) 161, 119 D.L.R. (4th) 405, 173 N.R.321, 125 Sask. R. 81, 81 W.A.C. 81, [1994] 3 S.C.R. 670, [1994] R.D.F.617, 1994 CarswellSask 48, 1994 CarswellSask 450, [1994] S.C.J. No. 94,EYB 1994-67936 (S.C.C.) — referred to

Zagar v. Zagar (2006), 2006 CarswellOnt 4991, 2006 ONCJ 296 (Ont. C.J.) —referred to

Tillmanns v. Tillmanns Pazaratz J. 215

Zarzycki v. Zarzycki (1993), 47 R.F.L. (3d) 200, 1993 CarswellOnt 335 (Ont.Gen. Div.) — referred to


Employment Standards Act, 2000, S.O. 2000, c. 41Generally — referred to



Generally — referred tos. 7 — considereds. 19(1) — considereds. 19(1)(a) — considered

MOTION by payor parent to change child support.

Alisa P. Williams, for ApplicantKanata J. Cowan, for Respondent

Pazaratz J.:

1 With thousands of well-paying jobs being lost through plant closuresin Ontario, it’s easier to speculate about things a displaced worker couldhave done to meet child support obligations — but harder to be sure ex-actly what he or she should have done.

2 Sometimes imputing income can be relatively straightforward —where for example the laid off worker makes little or no sincere or prac-tical effort toward income replacement.

3 But in an uncertain and restructuring economy, often the suddenly-unemployed face no “good” options. Certainly, none of them guaranteed.

4 We may be able to distinguish between “reasonable” and “unreasona-ble” efforts to mitigate job loss. But can we rely on hindsight to narrow itdown to a single best career choice which should have been followed —and impute income accordingly?

5 That was the fundamental question on this motion to change whichproceeded as a three day trial in which only the parties testified.

Family Background6 The family background:

a. The Applicant mother is 42.


b. The Respondent father is 39.

c. The parties were married on October 20, 2000.

d. They separated on November 28, 2005.

e. They have an 11 year old son Matthew who has remainedin the Applicant’s custody since separation. The father hasregular access.

f. The Applicant now resides with her second husband.

g. The Respondent now resides with his second wife and theirtwo children ages three and one.

Separation Agreement7 On July 19, 2006 the parties signed a separation agreement which

included the following provisions:

a. Sole custody to the Applicant.

b. Respondent to have liberal and generous access.

c. Respondent to pay $519.00 per month as table support, and43 per cent of childcare and section 7 expenses.

d. Child support based on Applicant earning $73,441.00 in2005 and Respondent’s estimated income (in a new job)being $56,000.00.

e. Until support is formally adjusted by further agreement ororder, Respondent to keep making existing support and sec-tion 7 payments.

f. Annual income disclosure, including annual child supportadjustments by June 1st.

g. Spousal releases.

h. Applicant to buy-out matrimonial home for $42,000.00.

Final Order8 On September 5, 2012 Justice Brown granted a final order based

upon minutes of settlement. The order included the following variationof the separation agreement:

a. Respondent’s access specified to include Wednesdays fromafter school or 3:30 p.m. to 8 p.m., depending on what shifthe is working.

b. Respondent also to have access alternate weekends.


c. Numerous other details for timesharing during vacations,special occasions, etc.

d. Respondent’s contribution to special or extraordinary ex-penses to include the child’s Rep Hockey Fees and SpecialRep Hockey Equipment and other related expenses.

e. Respondent to maintain $100,000.00 life insurance to se-cure support.

Motion to Change9 On February 11, 2014 the Respondent brought this motion to change

the child support provisions of the July 19, 2006 Separation Agreement.10 Although there was some confusion on this point, ultimately counsel

agreed there was no request to change the September 5, 2012 order (ex-cept that any income redeterminations would affect the percentages bywhich section 7 expenses would be shared).

Summary of Positions11 The Respondent’s position may be summarized as follows:

a. He was laid off as a result of a plant closure.

b. His income was unavoidably reduced.

c. He has commenced an apprenticeship in a new field whichwill entail several years before he gets back up to his for-mer income level.

d. He wants to pay reduced child support (commensurate tohis annual income each year) as he slowly gets back on hisfeet.

e. He also feels some section 7 expenses claimed by the Ap-plicant are no longer appropriate or affordable.

12 The Applicant’s position:

a. She admits the Respondent involuntarily lost his job.

b. But she feels he’s made poor and self-serving choices inselecting replacement work.

c. She wants income imputed at his former level.

d. She wants the Respondent to pay 33 per cent of all section7 expenses, including arrears and certain ongoing items theRespondent doesn’t agree with.


Respondent’s Employment History13 As stated, there is no dispute about the Respondent’s employment

background or the circumstances under which he lost his job:

a. The Respondent finished high school with a 55% academicaverage.

b. He then entered the workforce as a labourer.

c. For a number of years he worked at a firm known as Spec-trum, where he was involved with printing labels.

d. Between February 16, 2004 and December 13, 2013 he wasemployed in the plastics printing facility of Hood Packag-ing in Burlington, Ontario.

e. During that time he was laid off on eight or nine occasionstotalling about a year.

f. On July 31, 2013 the Respondent received notice that hewould be permanently laid off because Hood Packagingwas closing its Canadian plastics division (shipping all thejobs and machinery to the company’s American plant).

g. His last day of employment was supposed to be September27, 2013, but as union grievance chair he was able to ex-tend work to December 13, 2013.

Severance Pay14 There was disagreement as to what legal options the Respondent had

with his former employer — and whether he selected the right option.15 The Respondent testified that after his employment ended he received

an eight week severance package which effectively covered his incomeuntil March 1, 2014. He disputed the Applicant’s suggestion that heshould have selected a different option offered by the company. Heexplained:

a. Hood Packaging is an American firm which operated twoplants here in Ontario — the plastics plant where the Re-spondent worked; and also a completely separate paperplant.

b. Each plant has its own union and its own collectiveagreement.

c. The Respondent testified that his understanding of the col-lective agreement was that upon permanent lay-off, the em-


ployee had the option of taking either a severance packageor maintaining a two year re-call right — if that plasticsplant re-opened.

d. He testified that he thought he was entitled to take one ofthe two options: The severance package, or the re-callrights.

e. Under cross-examination he acknowledged that he neverobtained any legal advice as to his rights and options; hetook no formal steps to educate himself; he was unaware ofany provisions in the Employment Standards Act whichmight have given him the option of deferring a severancepayment; he discussed the matter with many similarly af-fected workers; and ultimately every one of the 65 perma-nently laid off workers elected to take an immediate sever-ance package in favour of re-call rights.

f. The Applicant testified she subsequently investigated la-bour legislation (in preparation for this trial) and confirmedthat the Respondent would have had the option to delay hisseverance package to see if he was going to be re-called —or until he found another job. She criticized him for beingtoo quick to take the severance package and abandon anypossibility of being recalled.

g. The Respondent testified he relied on a “Notice of Termi-nation” letter from the employer which specifically de-scribed an election between a severance package or re-callrights. The only “deferral” of severance payment referredto in the letter was the option of taking the money either inlate 2013 or early 2014. He took the January 2014 option,which result in his receiving eight weeks wages.

16 The Respondent candidly acknowledged that even if he had known hecould have deferred the severance package to preserve his re-call rights,he still would have taken the severance package immediately:

a. He had financial obligations toward his first and secondfamilies. He needed the money.

b. The size of the severance package would have been thesame, whether he took it immediately or waited.

c. He said it was obvious there was no possibility that theHood Packaging plastics plant would ever re-open in On-


tario. All remaining 65 employees had been laid off. All ofthe plastics plant machinery had been permanently shippedto the company’s Texas facility. All employees were optingfor the severance package in favour of a two year re-callright, because it was overwhelmingly clear that the com-pany’s plastics plant had left Canada forever. There wouldnever be a plastics plant for him to be recalled to. As hislawyer summarized it, they were “leaving a sinking ship.”

d. The re-call right had nothing to do with Hood Packaging’sseparate paper plant. But the company was not offering anyprospect of plastics workers being relocated to the paperplant. There was no indication of any employment open-ings or opportunities in the paper plant. In any event, theRespondent said his employment history and qualificationswould not have been suitable for the Hood Packaging paperplant.

e. During cross-examination the Applicant admitted she hadno information to contradict the Respondent’s evidence thatthere was no possibility he would ever be re-called to theplastics plant.

f. She did not dispute the Respondent’s evidence that it’sbeen 15 months since the July 2013 layoff notice was is-sued, and there’s still no sign the Hood Packaging plasticsplant will ever re-open.

g. Nonetheless, the Applicant felt the Respondent made a mis-take accepting the severance package and abandoning re-call rights. This was one component of her argument thatincome should be imputed to the Respondent.

Improper Evidence17 Both parties attempted to introduce unhelpful and inadmissible evi-

dence on this issue.18 As had been previously ordered, the trial proceeded on the basis of

evidence in chief being presented through affidavits. The parties gaveupdating testimony, and were cross-examined.


19 Both parties attached to their affidavits numerous exhibits whichamounted to little more than scattered downloads from the internet:

a. The Applicant filed articles suggesting the printing industryis healthy, with the implication the Respondent could easilyhave found a job. Under even rudimentary questioning itbecame obvious the Applicant knew very little about theauthors or the accuracy of the information. Most of the in-ternet print-outs didn’t even purport to relate to a job-seeker’s situation in Hamilton, Ontario.

b. The Respondent attempted to rely on an equally unhelpfulcollection of unsworn print-outs from various websites,newspaper articles, etc, in support of his contention thatemployment options in the printing industry are bleak, andthat plumbing is a good trade to learn.

c. During submissions one of the counsel admitted all of thesematerials were either inadmissible or to be given littleweight. She said she only attached internet downloads asexhibits because the other side did the same thing.

20 Internet articles are not admissible by themselves because the authorof the opinion has to be present to be examined and cross-examined.They must be adopted by an expert so that they can become, in effect, theevidence of the expert. Absent such evidence, they are of no evidentiaryvalue and are inadmissible. Children’s Aid Society of Waterloo (RegionalMunicipality) v. S. (L.S.), 2010 ONCA 630 (Ont. C.A.).

Finding Re Severance21 I accept the Respondent’s evidence in relation to the decisions he

made concerning the severance package:

a. The Applicant is likely correct that the Respondent hadmore options than he was aware of. He likely could havedeferred a severance package while he preserved his re-callrights — and while at the same time he sought replacementemployment.

b. Without question, the Respondent — and all of the otherworkers laid off from Hood Packaging — would have beenwise to get proper legal advice rather than rely on the com-pany’s brief summary of options as set out in its Notice ofTermination.


c. But the Respondent’s “either/or” interpretation of the com-pany’s letter is certainly understandable from a layman’sperspective.

d. The Respondent is not a terribly sophisticated person. He’sbeen a labourer all his life, and to his credit he has an excel-lent work history.

e. He is one of a growing number of displaced Ontario pro-duction workers suddenly — simultaneously — throwninto a panicked competition for a shrinking number of fre-quently lower-paying jobs.

f. The Respondent testified in a clear and consistent manner.None of his evidence was undermined during intensivecross-examination. He told a compelling and entirely be-lievable story of what it’s like to have your plant shutdown, in an economy where many other plants are alsoshutting down.

g. In contrast, the Applicant’s evidence was far more eloquentand articulate — but also strategic and evasive under cross-examination. She appeared conspicuously detached fromthe anxiety of someone losing a job which pays about halfthe $100,000.00 she earns in the public sector.

h. He says he was there on the shop floor when all of the ma-chinery was shipped to another country and they closed thedoors for good.

i. She says she doesn’t believe him. But she offers no mean-ingful evidence...other than the fact that she doesn’t believehim.

j. This is a scenario tragically playing out across Ontario —across Canada. Thousands of production workers suddenlyfacing the loss of excellent jobs. Employers permanentlymoving to other countries for cheaper labour. A vanishingmiddle class.

k. While scrutiny in child support cases is necessary and im-portant, at a certain point it becomes cruel for people whostill have well-paying jobs to taunt laid off workers withbald allegations that they are exaggerating their plight.

l. I find that the Respondent acted in good faith. He quite un-derstandably (and accurately) concluded that re-call rights


were meaningless once Hood Packaging’s plastics opera-tion had been permanently relocated out of Canada.

m. I accept the Respondent’s evidence on this topic. I find thatit was reasonable and prudent for the Respondent to elect totake a severance package, rather than hold out for two yearre-call rights at a plant which had permanently closed.

n. And even if I were to find that the Respondent took theseverance package too soon, the timing of his severancepayment would ultimately make no difference to the Appli-cant. The amount remains the same. Either way, the incomeis taken into account in calculating child support.

Plumbing Apprenticeship22 Almost immediately after receiving the employer’s layoff notice on

July 31, 2013, the Respondent decided to pursue an apprenticeship inplumbing.

23 The Applicant criticized this decision:

a. She said foregoing reliable traditional employment forspeculative apprenticeship was irresponsible and selfish.

b. She criticized the Respondent for not consulting with herabout the impact on child support payments if he opted topursue a lengthy apprenticeship.

c. She suggested the haste with which he decided on a careerchange reflects the fact that the Respondent really had nointerest in trying to continue his previous income level —or his previous child support payments.

d. She found it suspicious that the Respondent suddenlywanted to return to school, when he never expressed anysuch interest in the past.

24 The Respondent explained his decision:

a. When he received the layoff notice, he had to worry notonly about his own future, but also providing for all of hisdependent children.

b. He was 38 years old, with a 10 year old child of this rela-tionship; and two children (a two year old and a new born)of his second marriage.


c. He had a high school education and had only worked inphysically demanding labour positions.

d. He did well at Hood Packaging during his ten years, but hehad already experienced numerous layoffs and financial un-certainty. Now his job was gone for good.

e. Most of his skills were in plastics printing, but the printingindustry was in decline, with two major companies havingrecently closed in southern Ontario.

f. With no jobs available in printing, and with so many pro-duction workers being displaced through numerous well-publicized plant closures in Ontario, he felt job opportuni-ties for a labourer would be limited, and subject to lowwages and no security.

g. He also expressed concern about the long-term viability ofdoing a physically demanding labour job, as he gets older.The Applicant’s counsel correctly noted that he offered nomedical evidence in this respect.

h. The Respondent said if he could have found replacementemployment paying the $28.00 per hour he had been earn-ing at Hood Packaging, he would have taken it. But helooked and there didn’t appear to be many jobs he wasqualified for (let alone jobs paying $28.00 per hour).

i. Even prior to the final layoff, he had considered that learn-ing a trade might be a sensible option.

j. When he unexpectedly received the final layoff notice atthe end of July 2013 he quickly had to make some toughdecisions with his current wife (who was still on maternityleave). They agreed he should investigate an apprenticeshipas a plumber, and he filed applications within days.

k. He admitted he hadn’t engaged in much analysis of em-ployment or income prospects as a plumber. But he said hewas influenced by advertisements and government pro-grams encouraging apprenticeships and retraining.

l. And since he felt his job had been the victim of globaliza-tion, he hoped plumbers would remain in demand becausetheir job could not be “outsourced” to another country.


25 The Applicant countered:

a. The Respondent had ulterior motives for choosing a trade.

b. He knew becoming a plumber would mean having to attenda trade school, during which time his income would begreatly reduced.

c. He knew there would be uncertainty as to whether hewould even secure a position as an apprentice plumber.

d. He knew that as an apprentice plumber he would be work-ing at reduced wages — for years — and that as a result hewould be paying inadequate child support for their sonMatthew.

e. He should have thought about the impact of reduced childsupport payments on Matthew and his primary residence.

f. She speculated about his real motive: He wants to be aplumber because he knows plumbers can often earn signifi-cant undeclared income doing “cash” jobs, so they canavoid paying taxes (and child support). She thinks that’swhat he’ll ultimately do, and she’ll never receive properchild support.

g. She said he could have applied for many other positionswith his current qualifications. He likely could have founda job earning wages equivalent to Hood Packaging plasticsdivision. But instead he narrowly focussed only on aplumbing apprenticeship — knowing it would be good forhim, but bad for their child.

26 The Respondent denied the Applicant’s suggestions about motive orincome prospects:

a. He prolonged his employment at Hood Packaging earning$28.00 per hour for as long as he could, because he knewhe’d have difficulty finding anything that paid nearly asmuch.

b. He applied for three printing jobs in December 2013 anddidn’t even get responses.

c. His recently widowed mother-in-law gifted him the$4,500.00 tuition to take an eight month plumbing course atSheridan College, which commenced in January 2014. Theplumbing course was attractive because it was only eight


months long, which would minimize the amount of time hewas earning no income.

d. For the first few months of the course he was still payingfull support because his severance package covered himthrough to March 1, 2014.

e. While apprenticeships for plumbers may be hard to find, hegraduated at the very top of his class and found an appren-ticeship within a month and a half of graduation.

f. Prior to commencing that apprenticeship on October 20,2014 — and while he was taking the plumbing course —the Respondent also worked part-time at Lowes and an-other firm. He investigated full-time employment at Lowes,but wasn’t offered anything.

g. In any event, even a full time position at Lowes wouldlikely have paid about $15.00 per hour, which is the Re-spondent’s starting wage in his apprenticeship.

h. He says the apprenticeship looks promising. He is doingwell, and believes he will be successful because his em-ployer is satisfied with him.

i. He anticipates receiving a $1.00 per hour wage increase af-ter six months. At the one year mark (and annually thereaf-ter) he anticipates further salary reviews and increases.

j. The apprenticeship will take four to five years. But afterabout three years he hopes to be earning as much as he wasbeing paid at his old job. And once he completes the ap-prenticeship he anticipates earning significantly more thanhe was earning at Hood Packaging. Support payments willbe reduced in the short-run, but hopefully higher in thelong-run.

k. He denied any interest in self-employment as a plumber.

l. He denied any intention to hide income in order to avoidsupport obligations.

m. He said he was hoping to eventually find employment as aplumber working for a firm or government institution, sohis income would be easily established through T4 slips.

n. He noted he had always made annual tax disclosure andwould continue to do so. The Applicant would know what


he had earned each year, and child support would alwaysbe adjusted accordingly.

Job Opportunities27 The Applicant accused the Respondent of ignoring immediate oppor-

tunities to find a replacement job at comparable wages:

a. She produced approximately 71 advertisements or job post-ings she felt the Respondent should and could have appliedfor.

b. She said it was irresponsible for the Respondent to abandonsecure income opportunities, in favour of a multi-yearplumbing apprenticeship during which he would have pre-dictably limited ability to support his child.

28 The Respondent countered that finding a secure replacement job atcomparable income isn’t nearly as easy as the Applicant suggests:

a. He said he applied to more than 100 jobs, with very fewresponses and no successful leads.

b. He discounted many of the job postings referred to by theApplicant. He applied to about ten of them, without suc-cess. He said he wasn’t qualified for most of the others, orgeographically they were too far away to consider.

29 The Applicant insisted the Respondent was only pretending to lookfor work. She said the resume the Respondent sent to potential employersbetrayed the fact that he wasn’t seriously trying to find a job because:

a. It included a typographical error, and

b. He highlighted his experience as a union grievance chair.30 She alleged the Respondent was deliberately trying to scare off poten-

tial employers by emphasizing his union involvement on his resume. Inher view this would cause potential employers to perceive him as a “trou-blemaker” and reject his application from the very outset.

31 Under cross-examination she admitted:

a. Being a union grievance chair might also reflect valuableskills including leadership, which might be attractive to anemployer.

b. She didn’t tell the Respondent about the typographical errorwhen she noticed it. She said there was no point because he


had already made a commitment to the plumbingapprenticeship.

32 The Respondent testified about his resume:

a. He admitted there was a single typographical error whichhe described as nothing more than a mistake.

b. He said at Sheridan College he attended a class on how toprepare a resume, and he followed those instructions.

c. He said he actually prepared two different resumes, onespecifically customized for plumbing positions.

d. He said the people helping him prepare a resume never sug-gested he shouldn’t mention his union grievanceinvolvement.

e. He didn’t think being active in the union would be a hin-drance to finding another job.

f. He felt his successful union involvement demonstratedleadership skills, and that employers would be impressedwith his ability to deal with employee issues.

33 I accept the Respondent’s explanation that he acted in good faith inpreparing and submitting his resumes to potential employers.

a. The unfortunate typographical error was nothing more thana mistake.

b. The Applicant may be correct that some potential employ-ers might be dissuaded by a job candidate’s previous unioninvolvement.

c. But I agree with the Respondent that from a different per-spective, his job skills and experience as a union represen-tative might reflect strengths and abilities attractive to someemployers.

d. I accept the Respondent’s explanation that with his limitededucation he was simply trying to list all of his accomplish-ments on his resume; to distinguish himself. And being aunion grievance chair was an important and impressivecredential.


34 More generally, I am unable to conclude that there were promisingjob opportunities which the Respondent should have pursued in favour ofan apprenticeship.

a. I find that the Respondent had good reason to be concernedabout employment opportunities and security as a labourer(or working in a declining and uncertain printing industry).

b. The Applicant provided a somewhat random list of othertypes of jobs which “might” have been suitable. But theRespondent gave very specific explanations about jobsearch efforts and a realistic analysis of the employmentmarketplace, from an insider’s perspective.

c. I accept the Respondent’s evidence that he considered theemployment landscape and all of his options.

d. I accept his evidence that he tried to engage in long-termplanning, with a view to his obligations toward twofamilies.

e. I accept his evidence that he applied for a number of suita-ble positions and was not successful.

f. It is to his credit that he successfully sought out part-timework while attending the plumbing course and while wait-ing for an apprenticeship to start.

g. I find that the Respondent has always been a diligent, hard-worker.

h. At every stage he has kept busy: Extending his employmentas long as he could. Lining up alternative plans within daysof the layoff notice. Excelling at the plumbers’ coursewhile working part- time. Finding an apprenticeshipquickly against the odds. And now working nine hours aday, five days a week — and taking what little overtimemight be available.

i. I accept the Respondent’s evidence that he acted in goodfaith. He canvassed the marketplace. He couldn’t find an-other job with comparable wages or job security. He con-sidered all the options. He did what he thought was best.

Disclosure35 The Respondent testified that he has always produced annual disclo-

sure pursuant to the terms of the July 19, 2006 separation agreement, and


that in the future he will continue to make full annual income disclosure,which will allow the Applicant to monitor his finances and ensure hemakes the appropriate child support contribution.

36 The Applicant expressed doubt the Respondent could be counted onto make reliable and truthful financial disclosure:

a. She admitted he has previously made all disclosure asrequired.

b. But she said his evasiveness and selfishness after he re-ceived the layoff notice caused her to worry that he is nolonger prepared to be forthright.

c. She said her fears are compounded by the fact that the Re-spondent hid but eventually acknowledged that he earnedsome undeclared income helping his wife with herfledgling handi-man business. To put things in perspective,the amount appears to have been about $40.00.

d. Under cross-examination the Applicant acknowledged thatshe and her current husband are also involved in a fledglingbusiness which she says has never generated any profit.

e. I find that none of these “secondary incomes” are signifi-cant or relevant.

f. The Applicant accused the Respondent of not reporting in-come from a previous part-time lawn cutting business, butoffered no evidence to contradict the Respondent’s testi-mony that it was a very small business, generating not verymuch income, and all of the money was properly reportedon his personal tax return. The Applicant had always beenaware of the business because it was referred to in theirseparation agreement.

g. She criticized the Respondent for failing to allow her law-yer to speak directly to his former employer. The Respon-dent countered that he provided disclosure of all informa-tion from his former employer, and offered to get moreinformation if requested. But he was reluctant to have any-one contact his previous supervisors directly, because hedidn’t want to jeopardize their offers to give him a goodreference.

h. The Applicant said he previously failed to maintain a lifeinsurance policy as required by the separation and that was


one of the reasons the parties went to court and obtained aconsent order in September 2012. The other issues duringthat court case related to section 7 expenses and the Re-spondent’s request for additional access. These were not is-sues relating to honesty.

37 The Applicant suggested the Respondent has shown other indicatorsthat he is acting in bad faith, and enjoying a lifestyle inconsistent with hisalleged financial hardship and insecurity:

a. She criticized the Respondent for losing a week’s wages to-ward the end of 2013, when he took an unpaid week totravel to Florida (at his mother-in-law’s request, and at herexpense) to scatter the ashes of his father-in-law. I do notfind it unreasonable for someone — even an employee whoknows they only have a few weeks of paid employmentleft — to take a brief period off in relation to bereavement.

b. She questioned why the Respondent kept his three year oldchild in a daycare program when his wife was on maternityleave and he was attending plumbing school. I accept theRespondent’s explanation that they kept the boy in daycareto keep the spot open, because eventually both parentswould be back to work.

c. The Applicant questioned why the Respondent had a fancyApply TV and why he had purchased a big screen TV. Iaccept the Respondent’s explanation that both purchaseswere made before he was laid off; neither was extravagant;and he hasn’t purchased a new large screen TV in fiveyears.

d. The Applicant questioned why the Respondent was buyingfancy wine gifts at Christmas 2013 if he was losing his job.I accept the Respondent’s explanation that he converted afree beer-making certificate into wine-making certificate,so he could make some home-made wine as personalized(and inexpensive) Christmas gifts.

e. The Applicant even questioned why the Respondent spent$60.00 taking their son to Canada’s Wonderland this pastsummer. She suggested he could have given her that moneyas a contribution toward his underpayment of support. Sixtydollars? Canada’s Wonderland? Surely we haven’treached the stage where access parents are to be stripped of


their basic dignity, just because they have unavoidably losttheir jobs.

38 I reject the Applicant’s suggestion that the Respondent has embarkedon a plan to hide income and avoid paying child support.

a. He should have kept her better informed as he consideredhis options after receiving his layoff notice.

b. He should have given her more forewarning that he wasgoing to be reducing child support payments.

c. But apart from inadequate discussion after losing his job, inevery other respect the Respondent has always made fullannual disclosure since the date of separation.

d. Without question, he has now been thrust into a period ofsignificant financial uncertainty.

e. But he has never lied. He has never hidden relevantinformation.

f. Just because he’s going to be experiencing tough times —and ongoing financial changes — does not justify a pre-sumption that he’s going to lie in the future.

39 The Applicant suggests the Respondent is spending money recklesslybecause:

a. He has his priorities wrong.

b. He’s unconcerned about the hardship his career choiceshave created for their son Matthew.

c. He knows he’s going to be generating undeclared incomewhich he’ll never have to share.

40 I see no basis for these criticisms and speculations. There is nothingsuspicious or inappropriate about the Respondent’s lifestyle orexpenditures.

41 The Applicant’s suggestion that the Respondent has been indifferentto the devastating impact of reduced child support on her householdneeds to be put in perspective:

a. When the parties signed their separation agreement in2006, the Applicant was earning $73,441.00 and the Re-spondent was earning $56,000.00.

b. By 2013 the Applicant’s income had gone up to$107,000.00. But the Respondent’s income had never in-creased. In 2013 he earned $55,000.00.


c. In the recent past the Respondent’s current wife had an in-come of $86,000.00; the Applicant’s current husband hadan income of $110,000.00.

d. The Applicant is correct that the Respondent has a nicehome with significant equity. But she also has a nice homewith significant equity.

e. In 2013 the Respondent spent an expense-paid week inFlorida to scatter his father-in-law’s ashes. That same year,the Applicant spent seven days in Mexico and later 10 daysin Hawaii.

f. Apart from the Applicant’s evidence that she recently hadto consolidate some debts and lower mortgage payments byextending her amortization schedule, I received no evi-dence to suggest the child’s relatively comfortable lifestylehas been significantly impacted by the Respondent’s em-ployment difficulties.

Respondent’s Reliability42 I reject the Applicant’s claim that the Respondent is not a trustworthy

person, or that he cannot be counted on to make regular and candiddisclosure:

a. The obvious starting point: The Respondent has alwaysmade full disclosure.

b. We cannot presume that getting laid off makes someoneuntrustworthy.

c. The Applicant asks us to conclude that because someplumbers become self-employed; and because some self-employed plumbers do “cash deals” and fail to declare theirincome — that we should presume the Respondent intendsto engage in such deceitful behaviour in the years to come.

d. There is no factual basis for the Applicant’s cynicalsuspicion.

Child Care Expense43 In the motion before me, there is no request to change the identified

list of section 7 expenses set out in paragraph 21 of the September 5,2012 order. Counsel agreed the main issue herein is whether the Respon-


dent’s percentage of responsibility toward those expenses should change,depending on the court’s income determinations.

44 But one section 7 expense now requires interpretation:

a. The Respondent was to contribute toward “child care ex-penses” incurred by the Applicant.

b. Over the years those child-care expenses have come to in-clude transportation expenses.

c. Matthew is in grade six. He has always attended a school2.5 kilometers from the former matrimonial home where heand the Applicant reside. He used to be bussed to schoolbut after catchment areas were changed bussing waseliminated.

d. However, Matthew now has the option of going to a closerschool in which case a school bus would be available.

e. The Applicant says Matthew is well settled in his currentschool and wants to continue there. She says it’s too far forthe 11 year old to walk to school regularly, especially witha busy intersection on the route. She now pays the womanwho provided before and after-school child care to alsodrive Matthew back and forth to school.

f. The Respondent says Matthew is old enough to walk to andfrom school. He suggests if the Applicant insists the boyneeds a ride, he should be transferred to the closer schoolwhich offers free bus service.

g. The Applicant says the cost involved — $200.00 per monthfor both transportation and child care — is reasonable.

h. I agree with the Applicant. The child is well settled in hiscurrent school. The costs involved are not unreasonable. Asthe 11 year old gets a bit older, the issue of walking toschool can be revisited. But it is too early to determine thatthis expense can or should be eliminated.

The Law45 The purpose of the Child Support Guidelines is to establish a fair

standard of support that ensures that children continue to benefit from thefinancial means of both spouses after separation, using a methodologythat strives to achieve objectivity, efficiency and consistency.Obodoechina v. Ayetor, [2013] O.J. No. 6066 (Ont. C.J.); Lee v. Lee


[1998 CarswellNfld 222 (Nfld. C.A.)], 1998 CanLII 18000 (Nfld. C.A.);Milford v. Catherwood, 2014 ONCJ 276 (Ont. C.J.).

46 Both parents have an absolute responsibility to support their childrento the extent that they are able to do so. There can be no doubt that evenbefore he was laid off, the Respondent was paying less than half the costof raising Matthew. He was paying 43 per cent of section 7 expenses.

47 If there is a material — and unavoidable — change in circumstancesthose relative contributions may have to change from time to time.Willick v. Willick, [1994] 3 S.C.R. 670 (S.C.C.); G. (W.) v. G. (S.), 2014ONSC 3258 (Ont. S.C.J.). Support levels may have to be adjusted peri-odically to reflect current ability to pay.

48 Section 19(1)(a) of the Child Support Guidelines permits the court toimpute income:

19(1) Imputing income

The court may impute such amount of income to a parent or spouseas it considers appropriate in the circumstances, which circumstancesinclude,

(a) the parent or spouse is intentionally underemployed or unem-ployed, other than where the underemployment or unem-ployment is required by the needs of any child or by the rea-sonable educational or health needs of the parent or spouse;

(b) the parent or spouse is exempt from paying federal or provin-cial income tax;

(c) the parent or spouse lives in a country that has effective ratesof income tax that are significantly lower than those inCanada;

(d) it appears that income has been diverted which would affectthe level of child support to be determined under theseguidelines;

(e) the parent’s or spouse’s property is not reasonably utilized togenerate income;

(f) the parent or spouse has failed to provide income informationwhen under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses fromincome;

(h) the parent or spouse derives a significant portion of incomefrom dividends, capital gains or other sources that are taxed ata lower rate than employment or business income or that areexempt from tax; and


(i) the parent or spouse is a beneficiary under a trust and is orwill be in receipt of income or other benefits from the trust.

49 Imputing income is one method by which the court gives effect to thejoint and ongoing obligation of parents to support their children. Drygalav. Pauli, [2002] O.J. No. 3731 (Ont. C.A.); Stewart v. Turner, 2014ONCJ 464 (Ont. C.J.); B. (G.T.) v. B. (Z.B.), 2014 ONCJ 382 (Ont. C.J.).

50 The court can impute such amount of income to a parent as it consid-ers appropriate in the circumstances. The list of circumstances in section19(1) is by way of example only and is not a closed list. Bak v. Dobell,[2007] O.J. No. 1489 (Ont. C.A.); A. (G.) v. B. (K.), 2014 ONSC 3913(Ont. S.C.J.).

51 In Drygala v. Pauli (supra) the Ontario Court of Appeal set out thefollowing three-part test to be applied in considering a request to imputeincome:

1. Is the spouse intentionally underemployed or unemployed?

2. If so, is this required by virtue of his or her reasonable educa-tional needs, or the needs of the child of the marriage, or aris-ing from reasonable medical needs?

3. If the answer to #2 is “no”, then the court must decidewhether to exercise its discretion to impute income and, if so,in what amount.

52 “Intentionally” means a voluntary act. It does not apply to situationsbeyond one’s control. Drygala (supra); Stewart (supra).

53 A parent is intentionally underemployed if that parent chooses to earnless than he or she is capable of earning having regard to all of the cir-cumstances. Drygala (supra); Smith v. Smith, 2012 ONSC 1116 (Ont.S.C.J.).

54 There is a duty on the part of the payor to actively seek out reasona-ble employment opportunities that will maximize their income potentialso as to meet the needs of their dependants. Thompson v. Thompson,2013 ONSC 5500 (Ont. S.C.J.); Smith (supra).

55 A parent cannot avoid child support obligations by a self-induced re-duction of income. Weir v. Therrien, [2001] O.J. No. 2612, 20 R.F.L.(5th) 199 (Ont. S.C.J.); Kerr v. Erland, 2014 ONSC 3555 (Ont. S.C.J.);L. (N.) v. P. (B.), [2000] O.J. No. 2574 (Ont. S.C.J.); Hanson v. Hanson(1999), [2000] W.D.F.L. 119, [1999] B.C.J. No. 2532 (B.C. S.C.);Trottier v. Prud’homme, 2012 ONCJ 641 (Ont. C.J.); Thompson v. Gil-


christ, 2012 ONSC 4137 (Ont. S.C.J.); Aboagye v. Sakyi, 2012 ONCJ 56(Ont. C.J.).

56 Reckless behaviour which diminishes income earning capacity mayalso result in income being imputed. Rogers v. Rogers, 2013 ONSC 1997(Ont. S.C.J.); Costello v. Costello, 2012 ONCJ 399 (Ont. C.J.); Aboagye(supra).

57 The court does not need to find a specific intent to evade child sup-port obligations or bad faith in order to impute income. Drygala (supra);Smith (supra); B. (G.T.) (supra).

58 The onus is on the party seeking to impute income to establish thatthe other party is intentionally underemployed or unemployed. The per-son requesting an imputation of income must establish an evidentiary ba-sis upon which this finding can be made. Homsi v. Zaya, [2009] O.J. No.1552 (Ont. C.A.); Banning v. Bobrowski, [2007] O.J. No. 3927 (Ont.S.C.J.).

59 If the court is not satisfied that the support payer is intentionally un-deremployed, the inquiry ends there. But once intentional underemploy-ment is established the onus shifts to the payor to show one of the excep-tions of reasonableness. Drygala (supra); Rilli v. Rilli, [2006] O.J. No.4142 (Ont. S.C.J.); Bekkers v. Bekkers, 2008 CarswellOnt 173 (Ont.S.C.J.); Milford (supra).

60 Parents can take jobs which generate less money as long as the deci-sion is reasonable. But a support payor cannot select a job merely be-cause it suits his or her purposes. When an employment decision resultsin a significant reduction of child support, it needs to be justified in acompelling way. Riel v. Holland, [2003] O.J. No. 3901 (Ont. C.A.); B.(G.T.) (supra); Rilli (supra).

61 The court will not excuse a payor from their support obligations orreduce those obligations where the party has persisted in un-remunera-tive employment, or where they have pursued unrealistic or unproductivecareer aspirations. A self-induced reduction induced reduction

62 A parent cannot pursue an improvident career path at the expense ofthe child. Evans v. Gravely, [2000] O.J. No. 4748 (Ont. S.C.J.).

63 As a practical matter, it is not always easy to determine when a parentis a victim of unfortunate financial circumstances, or the author of them.And even where a parent may be found to be underemployed, the Courtmay still exercise its discretion not to impute income where that parentestablishes the reasonableness of the decision. Stewart (supra).


64 Courts have a significant degree of discretion when imputing income.Menegaldo v. Menegaldo, 2012 ONSC 2915 (Ont. S.C.J.).

65 While section 19(a) of the Guidelines applies to spousal support casesas well (Rilli, supra), caselaw suggests in child support cases there is asomewhat higher threshold as to whether a spouse is justified in notworking.

66 If a court finds a payor is intentionally underemployed or unem-ployed, a court cannot arbitrarily allocate an imputed income. There mustbe an evidentiary basis for the income level to be imputed. Drygala(supra).

67 The court must consider many factors including the age, education,experience, skills and health of the party; his or her past earning history;the standard of living during the parties’ relationship; and the amount ofincome the payor could reasonably earn if they worked to capacity. TheCourt can also consider the pattern of income — usually during the threeyears leading up to termination of employment — to determine anamount that is fair and reasonable. Beck v. Beckett, 2011 ONCA 559(Ont. C.A.); Drygala (supra); Lawson v. Lawson, 2006 CarswellOnt4789 (Ont. C.A.), Kramer v. Kramer, 2014 ONSC 5952 (Ont. S.C.J.);Smith (supra).

68 A common situation arises where one of the parents involuntarilyloses his or her job though a layoff followed by a lengthy period of un-employment. Where the recipient alleges the payor should have beenable to find substitute employment if they had looked hard enough, acontextual analysis is required. The payor’s situation, options, and oppor-tunities must be considered in the context of other individuals — or inthe case of mass plant closures, groups of individuals — facing similarcircumstances. The court must be mindful of employment rates andtrends, and economic conditions as a whole. The analysis cannot be donein the abstract. Gee v. McGraw, 2014 ONCJ 87 (Ont. C.J.); Miller v.Volk (2009), 74 R.F.L. (6th) 61 (Ont. S.C.J.).

69 An involuntarily laid off employee may require a reasonable periodof time to investigate and pursue reasonable income-producing options.Lavrinenko v. Lavrinenko, 2014 ONSC 4097 (Ont. S.C.J.).

70 Where the payor claims they have simply been unable to find em-ployment, the absence of evidence of reasonable job search efforts willusually cause the court to conclude the payor is intentionally underem-ployed or unemployed. Ascento v. Davies, 2012 ONCJ 491 (Ont. C.J.);Filippetto v. Timpano, [2008] O.J. No. 417 (Ont. S.C.J.).


71 Where a payor elects to return to school to retrain for a new type ofemployment or career, the court must consider whether the educationalplan is reasonable; whether it relates to realistic and productive careeraspirations; the extent to which ongoing support will have to be inter-rupted or reduced; and the ultimate impact retraining will have on in-come prospects and long-term ability to pay. Lebouthillier v. Manning,2014 ONSC 4081 (Ont. S.C.J.); Scott v. Blake, [2008] O.J. No. 2195(Ont. S.C.J.).

72 Merely being enrolled in an educational program is not sufficient todischarge the onus, once intentional underemployment has been estab-lished. There must be a clear and realistic plan for re-entering theworkforce. Lamoureux v. Lamoureux, 2010 CarswellOnt 6176 (Ont.S.C.J.); Lalonde v. Lalonde, [2005] O.J. No. 2008 (Ont. S.C.J.).

73 Quitting secure employment to pursue a career change is harder tojustify and more likely to lead to income being imputed. Hagner v. Haw-kins [2005 CarswellOnt 6701 (Ont. S.C.J.)] 2005 CanLII 43294. Reyes v.Brunhuber, 2008 CarswellOnt 4829 (Ont. S.C.J.). Retraining after an in-voluntary job loss may be more reasonable, particularly if employmentprospects in the previous field of employment are uncertain or bleak.

74 Where the court concludes there was simply no justification for thepayor to voluntarily terminate ongoing, secure employment, the courtmay impute income based on the amount the payor would have earned ifthey had remained on the job. Thompson v. Gilchrist (supra); Olah v.Olah (2000), 7 R.F.L. (5th) 173 (Ont. S.C.J.); Weir (supra); Vitagliano v.Di Stavolo (2001), 17 R.F.L. (5th) 194 (Ont. S.C.J.); Zagar v. Zagar,2006 ONCJ 296 (Ont. C.J.); Laing v. Mahmoud, 2011 ONSC 4047 (Ont.S.C.J.). Voluntary termination of employment will not constitute a mate-rial change in circumstances justifying any variation. Zarzycki v.Zarzycki (1993), 47 R.F.L. (3d) 200 (Ont. Gen. Div.).

75 Income may be imputed where there is an obvious motive to avoidsupport; where a parent is simply lazy or self-centred; where a parent iscontent or resigned to continue to receive minimal income because he orshe has been able to reduce living expenses; and where a parent elects tolanguish in underemployment because his or her needs are being other-wise met by receiving support from another family member or a newpartner. Stewart (supra).

76 A person’s lifestyle can provide the criteria for imputing income. Bak(supra); Aitken v. Aitken, [2003] O.J. No. 2780 (Ont. S.C.J.); Jonas v.


Jonas, [2002] O.J. No. 2117 (Ont. S.C.J.); Price v. Reid, 2013 ONCJ 373(Ont. C.J.)); B. (G.T.) (supra).

77 If a party chooses to pursue self-employment as an alternative incomeearning path the court will examine whether this choice was reasonablein all of the circumstances, and may impute an income if it determinesthat the decision was not appropriate having regard to the parent’s childsupport obligations. Lawson (supra); Blake v. Blake, 2000 CarswellOnt2477 (Ont. S.C.J.); Smith (supra).

78 Persistence in unremunerative employment or self-employment mayentitle the court to impute income. Kerr (supra); L. (N.) v. P. (B.) (supra);Hanson (supra).

79 Where a party fails to provide full financial disclosure relating to theirincome, the court is entitled to draw an adverse inference and to imputeincome to them. Smith (supra). A history of deceptive behaviour or unre-ported income will increase the likelihood of income being imputed.Bensadoun v. Bensadoun, [2002] O.J. No. 2023 (Ont. S.C.J.).

80 But an adverse inference should not, in and of itself, support imputingany amount income that one party requests. There should be a propor-tionate connection between the extent of the adverse inference that theCourt is being asked to draw and the evidence provided. Stewart (supra).

81 All of these principles have a common theme: reasonableness. Par-ents are required to act responsibly when making financial decisions thatmay affect the level of child support available. They must not arrangetheir financial affairs so as to prefer their own interests over those oftheir children. Stewart (supra).

Analysis82 I make the following additional findings:

a. The Respondent’s layoff from long-standing employmentwith Hood Packaging does not constitute intentional unem-ployment. He lost his job through no fault of his own. Thisconstitutes a material change in circumstances, which is theprerequisite in any motion to change child support.

b. The Respondent was reasonable in concluding re-call rightsto the Hood Packaging plastics plant were essentiallymeaningless, because there was no possibility the plantwould open again. There was no possibility he would everbe re-called to the plastics plant, and the re-call rights had


nothing to do with Hood Packaging’s separate paper divi-sion which continued operation.

c. The Respondent was reasonable in concluding there was nolikelihood of finding employment with Hood Packaging’spaper plant.

d. The Respondent’s decision to accept a severance packagein January 2014 was reasonable.

e. After 10 years of employment with Hood Packaging plas-tics division — including numerous layoffs totalling ap-proximately one year — the Respondent was in a good po-sition (certainly better than the Applicant) to assess jobsecurity in the industry.

f. The Applicant’s speculation about the job market and thecollection of job advertisements she submitted are not per-suasive as to the actual employment prospects of this laidoff worker. I accept the Respondent’s explanation that heapplied for some of these (and other) jobs; and that many ofApplicant’s randomly selected job postings were simplyunsuitable for a variety of reasons.

g. I find there is no basis to conclude the Respondent actedirresponsibly, recklessly or maliciously in assessing his op-tions after receiving the layoff notice.

h. As a labourer with limited education and narrow work ex-perience, it was reasonable for the Respondent to be veryconcerned about his employment prospects — both shortand long-term. With numerous well-publicized plant clo-sures across Ontario displacing thousands of similar pro-duction workers, the competition for the dwindling numberof well-paying factory jobs is intense.

i. It was reasonable for the Respondent to consider upgradinghis skills. That’s what the government frequently urgespeople to do.

j. It was reasonable to consider learning a trade.

k. It was reasonable to select plumbing, both because of therelatively short school component, and also because of theduration and wage growth potential of the apprentice-ship — and the long term income and security prospects asa plumber.


l. While the eight months the Respondent spent in the plumb-ing course at Sheridan College might constitute intentionalunemployment, I certainly conclude that it was justified byvirtual of reasonable educational needs.

m. In any event, I find that the Respondent’s approach to em-ployment was reasonable. He worked as long as he could atHood Packaging. He sought out part-time employmentwhile attending Sheridan, and during the brief period whileawaiting an apprenticeship. He also applied for full-timeemployment, without success. I accept his evidence that ifhe had been able to find another job paying the $28.00 perhour he was earning at Hood Packaging, he would havetaken it.

n. Having selected a reasonable trade, the Respondent appliedhimself diligently and with a commitment to pursue a sen-sible and financially viable career plan. He graduated at thetop of his class at Sheridan. He found an apprenticeshipquickly — against the odds. He is applying himself fully,working 45 hours per week, with some modest potential forovertime.

o. His apprenticeship currently pays $35,000.00 per year. Ob-viously that’s not as good as the $55,000.00 he earned lastyear at his old job. But within six months he’ll get a smallraise. He expects to get raises annually thereafter. Withinthree to four years he’ll be back to at least his old rate ofpay — and at least his old rate of child support. In all thecircumstances, I find that to be a reasonable plan that willstill benefit Matthew during many future years ofdependency.

p. Had the Respondent not pursued an apprenticeship andsimply remained actively seeking another printing or labourposition, it is uncertain what type of job he might havefound; how long it would have taken; how much he wouldhave earned; and how much job security he might haveattained.

q. There is no evidence to suggest the Respondent has disre-garded his family responsibilities — toward Matthew of hisfirst relationship; and toward his two children of his currentrelationship.


r. There is certainly no evidence to support the Applicant’scontention that the Respondent is pursuing a trade with thespecific intent of becoming a self-employed plumber sothat he will be able to hide income from cash deals, in adeliberate effort to pay less child support. That’s really avery serious allegation to make about a payor who has al-ways held a steady job; always made his annual disclosure;and always made his full child support payments — untilhis job and an eight week severance payment finally ranout.

s. I agree with the Applicant that the Respondent should havekept her informed of his layoff and uncertain financial situ-ation in a more timely way.

t. But for the most part he met his financial obligations to hisson even after he lost his job.

u. Up to the end of March 2014, there was no change in hisincome. Between April 1 and November 1, 2014 his earn-ings were reduced and quite uncertain. He paid reducedmonthly table amounts based upon an accurate assessmentof a fluctuating monthly income in a range equivalent to anannual salary of $20,000.00. I am satisfied that he did nothave the ability to continue to pay the full table amountbased on his former salary.

v. He should however have continued to make a contributionto section 7 expenses, even in a reduced percentage reflect-ing his actual earnings. And I agree with the Applicant thatthose expenses include the $200.00 per month child careexpense, which also incorporates transportation expenses toand from school. Based on fluctuations in both the Respon-dent’s income and the Applicant’s section 7 expenses dur-ing those seven months, I quantify his retroactive obliga-tion as of October 31, 2014 at $1,000.00.

w. For the period commencing November 1, 2014 I accept theRespondent’s evidence that he will be earning an incomeequivalent to $35,000.00 per year. This is based upon theRespondent’s evidence that in his recently commenced ap-prenticeship he works 9 hours per day, earning $15.00 perhour. I have not factored in any adjustment for potentialovertime, which the Respondent described as minimal. Any


overtime or future pay increases will become evident whenannual disclosure is produced, and support can be adjustedaccordingly.

x. I decline to impute income to the Respondent for anyperiod.

y. Commencing November 1, 2014 the Respondent shouldpay base guideline support in the sum of $325.00 permonth, based upon an income of $35,000.00.

z. He should also contribute 25% toward the section 7 ex-penses set out in Justice Brown’s order of September 5,2012 (including $200.00 per month childcare/transportation).

Summary83 While I preferred the specific evidence of the Respondent over the

speculative and at times needlessly critical evidence of the Applicant,there are no villains herein. Both of these parties have worked diligentlyto build lives for themselves and to provide for their child Matthew. Nowthey are both victims of globalization and likely a permanently changingeconomy.

84 The Respondent’s livelihood is uncertain. The Applicant’s child sup-port payments are also uncertain. They both have good reason to worryabout their finances. They both now face the same challenges thousandsof Canadian families are facing as manufacturing plants close and many“good jobs” disappear forever.

85 But as affected families — and entire communities — struggle withharsh new financial realities, it’s important not to compound this collec-tive tragedy through an insensitive and unrealistic approach to imputingincome.

86 Laid off plant workers cannot be presumed to be “deadbeat dads”.There are no easy answers for any of them individually; and there appearto be few encouraging answers for them collectively.

87 Should the Respondent have gone back to school? Should he havekept searching for a job that pays $28.00 per hour? How can anyone becertain that either option was absolutely correct?

88 Imputing income in child support cases is relatively easy wherepayors make obviously irresponsible choices, or deliberately try to evadetheir obligations.


89 But where parents work hard their entire lives and then suddenly theyare thrust into unemployment — all we can expect is that they will makereasonable choices in extremely difficult circumstances.

90 There will rarely be a single “best” answer. And it will rarely makesense to pay trial lawyers thousands of dollars to try to find one.

The Order93 My order:

a. The Respondent shall pay to the Applicant $1,000.00 repre-senting arrears of section 7 and extraordinary expenses forthe period up to October 31, 2014.

b. The Respondent shall pay to the Applicant base guidelinesupport for Matthew in the sum of $325.00 per month com-mencing November 1, 2014, based upon an income of$35,000.00 per year.

c. In addition, commencing November 1, 2014 the Respon-dent shall pay 25% of the ongoing section 7 expenses setout in paragraph 21 of the order of Justice Brown datedSeptember 5, 2014. This is based upon the Applicant hav-ing an income of $107,000.00. Child care expenses shall bedeemed to include transportation expenses (to and fromschool) until at least the end of the 2014-2016 school year.

d. In anticipation of the aforementioned extraordinary andsection 7 expenses totalling approximately $6,000.00 peryear, for budgeting purposes the Respondent’s monthlycontribution shall be $125.00 to be paid to the Applicant,commencing November 1, 2014. The Applicant shall pro-vide the Respondent with written corroboration of expensesactually incurred every 60 days.

e. Both parties shall provide one another with copies of theirtax returns and notices of assessment annually by June 30th.Both parties shall also notify one another immediately inwriting if they come to experience any changes in their em-ployment or income.

f. Adjustments to ongoing base guideline support and section7 contributions (including any retroactive adjustment basedon the aforementioned $125.00 monthly contribution) shallbe made after the annual disclosure on June 30aforemen-


tioned $125.00 monthly contribution) shall be made afterthe annual disclosure on June 30aforementioned $125.00monthly contribution) shall be made after the annual disclo-sure on June 30

g. Support Deduction Order to Issue.94 If counsel wish to address any clarifications or residual issues —

other than costs — they may arrange a time through the trial co-ordinatorto appear before me.

95 If only costs remain to be addressed, written submissions should befiled on the following terms:

a. The party seeking costs shall serve and file their submis-sions within 21 days. If both parties are seeking costs, theApplicant shall file materials first.

b. The responding party shall serve and file their submissionswithin 14 days of receiving the initial submissions.

c. Any reply submissions shall be served and filed within 7days thereafter.

Motion granted.


[Indexed as: Tillmanns v. Tillmanns]

Cheryl Ann Tillmanns, Applicant and Frank Joseph TillmannsJr., Respondent


Docket: F-1865/11

2015 ONSC 616

Pazaratz J.

Judgment: January 28, 2015

Family law –––– Costs — Support –––– Parties separated in 2005 and motherhad custody of child — Father was ordered to pay 43 per cent of child care andexpenses under s. 7 of Federal Child Support Guidelines — Father was laid offin 2013 and ceased making contributions to child care and s. 7 expenses inMarch 2014, after his severance pay expired — Father’s motion to change childsupport was granted due to material change in circumstances — Father was or-dered to pay 25 per cent of ongoing child care and s. 7 expenses commencingNovember 2014, as well as $1,000 for arrears of child care and s. 7 expenses upto October 2014 on reduced basis — It was accepted that father had made rea-sonable efforts to replace his income after layoff, and that his decision to pursueplumbing apprenticeship was appropriate — Parties made submissions oncosts — Father awarded costs of $17,000 all inclusive — Rule 24(1) of FamilyLaw Rules creates presumption of costs in favour of successful party — Fatherwas predominantly successful, but his costs entitlement should be reduced dueto divided success in relation to s. 7 and extraordinary expenses — Issue of childsupport was important to both parties — While legal analysis relating to imputa-tion of income was complex, factual analysis overwhelmingly favoured fa-ther — Both parties could have acted more reasonably — Hourly rates chargedby both lawyers were reasonable, but time claimed in each case exceeded whatwas required — Mother earned $102,000 per year, almost three times as muchas income ultimately attributed to father — Costs must be proportional toamount in issue and outcome — Balancing all relevant considerations, motherwas ordered to pay father costs fixed in sum of $17,000 inclusive of HST anddisbursements.

Civil practice and procedure –––– Disposition without trial — Settlement —General principles –––– Settlement discussions at case management shouldnever be disclosed to trial judge.


Cases considered by Pazaratz J.:

Boucher v. Public Accountants Council (Ontario) (2004), 48 C.P.C. (5th) 56,2004 CarswellOnt 2521, 188 O.A.C. 201, 71 O.R. (3d) 291, [2004] O.J. No.2634 (Ont. C.A.) — referred to

Coe v. Tope (2014), 2014 ONSC 4707, 2014 CarswellOnt 11056 (Ont.S.C.J.) — referred to

Lawson v. Lawson (2008), 2008 CarswellOnt 2819, [2008] O.J. No. 1978 (Ont.S.C.J.) — referred to

Serra v. Serra (2009), 2009 CarswellOnt 2475, 2009 ONCA 395, 66 R.F.L.(6th) 40, [2009] O.J. No. 1905 (Ont. C.A.) — followed

Sims-Howarth v. Bilcliffe (2000), 2000 CarswellOnt 299, 6 R.F.L. (5th) 430,[2000] O.J. No. 330 (Ont. S.C.J.) — referred to

Rules considered:

Family Law Rules, O. Reg. 114/99R. 17(23) — consideredR. 18 — referred toR. 18(14) — referred toR. 18(16) — consideredR. 24 — referred toR. 24(1) — consideredR. 24(6) — referred toR. 24(10) — referred toR. 24(11)(a) — consideredR. 24(11)(e) — referred to



s. 7 — referred tos. 19 — referred to

ADDITIONAL REASONS on costs to judgment reported at Tillmanns v.Tillmanns (2014), 53 R.F.L. (7th) 210, 2014 ONSC 6773, 2014 CarswellOnt16487 (Ont. S.C.J.), ordering father to pay reduced child care and expensesunder s. 7 of Federal Child Support Guidelines.

Alisa Williams, for ApplicantKanata J. Cowan, for Respondent


Pazaratz J.:

1 I have reviewed written submissions regarding costs relating to a twoand a half day oral hearing of a motion to change.

2 Child support for the parties’ 11 year old son was the only issue:

a. A July 19, 2006 separation agreement required the Respon-dent father to pay $519.00 per month as table support, and43 per cent of childcare and section 7 expenses based uponan income of $56,000.00.

b. A September 5, 2012 order specified the Respondent was tocontribute to Rep Hockey Fees and Special Rep HockeyEquipment (and related expenses).

c. The Respondent brought this motion to change his obliga-tions under the separation agreement after he was perma-nently laid off as a result of a plant closure. He said hecouldn’t find comparable employment based on his existingskills. So he commenced a plumbing apprenticeship whichwill entail a short-term reduction of income (and ability topay), but with the benefit of long-term financial security(and eventual ability to resume child support at his formerincome level).

d. The Applicant admitted the Respondent involuntarily losthis job. But she wanted income imputed to the Respondentat his former level. She alleged he didn’t look hard enoughto find replacement employment, and his choice of an ap-prenticeship was ill-advised and self-serving.

e. During the period between the Respondent’s job loss andtrial, he unilaterally lowered child support payments andeventually discontinued s.7 contributions entirely. As a re-sult, each party claimed certain retroactive adjustments.

f. But the main issue was whether the Respondent had estab-lished a material change in circumstances justifying a re-duction in income, or whether his pre-layoff income shouldcontinue to be imputed to him pursuant to s.19 of the ChildSupport Guidelines.

3 The result at trial:

a. I accepted the Respondent’s evidence that he had made rea-sonable efforts to replace his income after his layoff, and


that his decision to pursue a plumbing apprenticeship wasappropriate in all the circumstances.

b. I rejected the Applicant’s fundamental position: that in-come should be imputed to the Respondent as if he hadn’tbeen laid off.

c. Child support was determined based upon an income of$35,000.00, with ongoing disclosure in anticipation of con-tinuous increases in his income as his four to five year ap-prenticeship unfolds.

d. The Respondent was ordered to pay $1,000.00 as retroac-tive s.7 and extraordinary expenses, and 25% of ongoingexpenses (including school transportation expenses whichthe Respondent objected to until the end of the 2015-2016school year).

4 Costs must be determined pursuant to Rules 18 and 24 of the FamilyLaw Rules.

5 Consideration of success is the starting point in determining costs.Sims-Howarth v. Bilcliffe, [2000] O.J. No. 330 (Ont. S.C.J.).

6 Rule 24(1) creates a presumption of costs in favour of a successfulparty.

7 To determine whether a party has been successful the court shouldtake into account how the order compares to any settlement offers thatwere made. Lawson v. Lawson, [2008] O.J. No. 1978 (Ont. S.C.J.).

8 The costs consequences of offers to settle are set out in Rule 18(14).9 The Respondent filed a series of formal offers pursuant to Rule 18:

a. His offer dated April 10, 2014 proposed child supportbased on an income of $20,000.00 - less than the incomelevel determined at trial. The offer is irrelevant to this costsdetermination.

b. Similarly the Respondent’s July 30, 2014 offer does nottrigger costs consequences, because its eventual increase toan income level of $30,000.00 is still below the amount de-termined at trial.

10 The Respondent’s September 5, 2014 offer is more relevant to costs:

a. On the primary issue, he proposed child support from Sep-tember 1, 2014 onward based on an income of $40,000.00 -more than the $35,000.00 determined at trial.


b. He also proposed his ongoing proportion of section 7 ex-penses should be 29% — more than the 25% determined attrial.

c. However there are minor ambiguities and deficiencies inrelation to section 7 and extraordinary expenses, leavingopen the interpretation that the Respondent was offering topay a higher percentage of fewer expenses.

d. The offer does not clearly specify that all special or ex-traordinary expenses set out in Justice Brown’s September5, 2012 order continue to be eligible for contribution. In-deed, after some confusion, at the outset of trial counselagreed that there was no formal request to change the Sep-tember 5, 2012 order.

e. As well, this offer did not match the specific determinationat trial that child care expenses would be deemed to includetransportation expenses (to and from school) until at leastthe end of the 2015-2016 school year.

f. The non-severable offer exceeds the trial result on the mainissue (determination of income), but does not preciselymatch residual child support obligations. Accordingly itdoes not trigger the full recovery cost consequences of Rule18(14). (As judges frequently comment in costs endorse-ments, a severable offer would have been much moreeffective.)

g. Nonetheless, I consider this “close” offer to be highly relevantpursuant to Rule 18(16).

11 The Applicant filed an offer dated August 18, 2014 which includedthe requirement that the Respondent’s income “shall always be imputedto be at least $55,000.00 [even] if his income is lower than this.” Boththe imputed amount and the predetermination of future income renderthis offer irrelevant and unhelpful to settlement.

12 The Respondent seeks costs in the sum of $27,465.77 representingfull recovery for the period after the September 5, 2014 offer. The Appli-cant claims that amount is excessive, and her real position appears to bethat either no costs or modest costs should be awarded.

13 Notably, as an alternate position, the Applicant seeks full recoverycosts in the sum of $23,331.42 in relation to the relatively minor areas in


which she was more successful (extended school transportation ex-penses, for example). The Respondent’s counsel offers two comments:

a. The Applicant improperly claims costs for past steps atwhich costs should have been dealt with [Rule 24(10)].

b. More to the point, if a $23,331.42 claim is reasonable forsuccess on relatively minor issues, the Respondent’s claimfor $27,465.77 for winning on the main issue looks com-paratively good.

14 I find that the Respondent was predominantly successful, although hiscosts entitlement should be reduced somewhat by the divided success inrelation to section 7 and extraordinary expenses [Rule 24(6)].

15 The issue of child support was important to both parties [Rule24(11)(a)]. I agree with Applicant’s counsel that the legal analysis in re-lation to imputation of income was complex. But the factual analysisoverwhelmingly favoured the Respondent.

16 Both parties - particularly the Applicant - could have acted morereasonably:

a. The Respondent unilaterally reduced table support pay-ments and completely stopped making section 7 contribu-tions, despite specific terms in the separation agreement re-quiring that he maintain payments until a variation wasdetermined. As evidenced by the retroactive award, heelected to pay less than he should have paid.

b. The Respondent should have kept the Applicant better in-formed as to his unfolding financial situation (and antici-pated ability to pay) both before and after he received hislayoff notice.

c. The Respondent took an unreasonable position in propos-ing that his son transfer from a school where he was wellsettled, for the sole purpose of reducing some child-care/transportation expenses.

d. Both parties attempted to rely on dubious (and ultimatelyinadmissible) internet materials to bolster their case.

e. The Applicant made a series of unsubstantiated attacks onthe Respondent: that he improvidently accepted a severancepackage; that he didn’t really want to find regular employ-ment after his layoff; that he strategically selected a plumb-ing apprenticeship so that eventually he would be able to


hide “cash” income, or get write-offs through self-employ-ment; that he was living a lavish lifestyle in disregard of hisfinancial obligations toward their son. The Applicant’smulti-pronged attack on the Respondent’s credibility wastime-consuming - and completely unsuccessful.

f. Each party complains disclosure was incomplete and theother party’s position on certain issues was unclear until thecommencement of trial. I find that both parties should havemade more complete disclosure. They should have betterclarified their positions on all issues prior to trial.

17 I find the hourly rates charged by both lawyers are reasonable. But inboth cases the time claimed exceeds what would have been required ifthe parties had elected to take less of a “shotgun” approach to advancingarguments. Particularly given the fact that evidence in chief was presen-ted by affidavits, this trial should have taken no more than a day.

18 I agree with Applicant’s counsel that the claim for $538.00 for photo-copies is somewhat excessive [Rule 24(11)(e)]. I do not take issue withthe charge of 35 cents per page. But the volume of materials producedand photocopied was completely unnecessary.

19 I have considered the financial circumstances of both parties, in as-sessing costs.

a. Courts must always be mindful that a costs claim against acustodial parent may have the undesirable consequence ofimpacting on the child’s primary household.

b. But here the Respondent also has access-related expenses(not to mention two children of his current relationship).

c. The Applicant earns $102,000.00 per year. That’s almosttwice as much as the income she sought to impute to theRespondent, and almost three times as much as the incomeI ultimately attributed to him.

d. The Applicant’s aggressive approach to litigation waslargely unsuccessful. She cannot use “ability to pay” as thebasis for significantly reducing a potential costs exposurewhich should have been considered at the outset.

20 Regrettably, in their written submissions, both counsel elected to referto recommendations by either a case management judge or a dispute res-olution officer. Settlement discussions at case management should never


be disclosed to the trial judge. Coe v. Tope, 2014 ONSC 4707 (Ont.S.C.J.); [Rule 17(23)].

21 The Ontario Court of Appeal in Serra v. Serra, [2009] O.J. No. 1905(Ont. C.A.) stated that modern costs rules are designed to foster threefundamental purposes:

a. To partially indemnify successful litigants for the cost oflitigation.

b. To encourage settlement.

c. To discourage and sanction inappropriate behaviour bylitigants.

22 Determining the amount of costs is not simply a mechanical exercise.Costs must be proportional to the amount in issue and the outcome. Theoverriding principle is reasonableness. The overall objective is to fix anamount that is fair and reasonable for the unsuccessful party to pay in theparticular circumstances of the case. Boucher v. Public AccountantsCouncil (Ontario), [2004] O.J. No. 2634 (Ont. C.A.).

23 In balancing all of these considerations, I order the Applicant shallpay to the Respondent costs fixed in the sum of $17,000.00 inclusive ofH.S.T. and disbursements.

Order accordingly.

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