Bradshaw v. Bradshaw, 2011 ABQB 157

Court of Queen ’ s Bench of Alberta Citation: Bradshaw v. Bradshaw, 2011 ABQB 157 Date: 20110311 Docket: 4801 121028 Registry: Calgary Between: Phillip John Bradshaw Applicant/Respondent - and - Janet Lynn Bradshaw Respondent/Applicant _______________________________________________________ Supplemental Memorandum of Decision of the Honourable Mr. Justice P.R. Jeffrey _______________________________________________________ [ 1 ] These are my reasons supplementary to the Memorandum of Decision rendered in this matter December 30, 2010.

These reasons address the post-trial application of the Respondent at trial, Mrs. Bradshaw, that I re-open the trial decision and the resulting Order to reconsider the issue the parties refer to as “balancing the RSPs”. She argues that the Applicant, Mr. Bradshaw, misled the Court on this issue at the outset of the trial. [ 2 ] The following procedure was established to hear this application, by my Order of January 24, 2011:

9. The issue of reopening my trial decision for balancing the RRSPs between the parties is adjourned sine die . Philip John Bradshaw shall provide to my assistant by the close of business on January 28, 2011 a list of RRSP activity during the last 12 months. By January 31 both parties shall provide to my assistant statements of RRSP from July 1, 2006 to December 31, 2010. My assistant shall forward on to the party opposite whatever information is received. 10. By February 14, 2011, Janet Lynn Bradshaw shall provide in written form her reasons why she believes that I should reopen the trial with respect to RRSPs.

Any response from Philip John Bradshaw must be received by February 22, 2011. I will invite the parties to make further submissions orally only if necessary after my review of the written submissions and thereafter render my decision. [ 3 ] Those submissions have now been received and reviewed. Each was clear and raised no uncertainties or additional questions for the Court. I do not need to hear oral submissions from the parties on the point. [ 4 ] Mrs. Bradshaw argues: I would now like to deal with the issue of reopening the trial due to Mr. Bradshaw having misled the court.

Article 47 of the Divorce and Property Agreement provided that Mr. Bradshaw was to transfer to me, by way of tax-free spousal rollover, funds sufficient to equalize Mr. Bradshaw's Raymond James RRSP Account with my Raymond James RRSP account. The amount of equalization based on the respective Raymond James statements for June of 2006 is $31,246.00 in my favor. Copies of these statements are enclosed. Subsequently, I was awarded by

Article 13 of the order of Justice Jeffrey dated December 10, 2010, the entire amounts remaining in all RRSP’s held by Mr. Bradshaw. As you are aware, there are no remaining funds in Mr. Bradshaw’s RRSP account. Mr. Bradshaw misled the court on this issue because he represented to the court on the first day of trial that he was happy to equalize the RRSP accounts. He said this knowing full well that he had no funds in his account. By his own subsequent admission in his letter of January 27, 2010, Mr. Bradshaw withdrew the remaining amount of $22,980.88 and closed his account on or about September 14, 2010.

This statement (Wood Gundy) is also enclosed. Mr. Bradshaw was aware that “balancing the RRSP’s” was an issue before the court during trial and yet he chose not to disclose that he had no remaining funds in his RRSP. The disclosure of this information would most certainly have affected the amounts awarded in the judgment. [ 5 ] Mr. Bradshaw’s response includes the following: My RRSPs were closed on September 14th, 2010, long before your court started hearing our case. This was done out of total necessity for me to live with as I have had no income and more importantly was done to help my children.

Ms Bradshaw in fact started withdrawing her RRSPs long before I ever did yet she paints herself lilywhite all awhile pointing the finger at me. At no time did I say or try and illustrate anything different. ... Ms Bradshaw has requested that you re open the trial in regards to the RRSPs due to my misleading the court. Nothing could be further from the (truth in fact might I suggest that it is Ms Bradshaw herself who is misleading the court with all her bamboozling and her outright lies, exaggerations and misleading assumptions.

She states in her letter to you on February 6th, 2011 that I misled the court by not telling them that I had closed my account, My lord if you recall the issue of RRSPs never came into discussion, it was only at the very end of the long drawn out sessions that it was ever mentioned. The fact is once again everything that went Ms Bradshaws way she has no comment about but anything what so ever that didn’t she is up in arms about.

I closed my RRSPs from necessity long before the court trial began period and I have also stated this several times. [ 6 ] In addition he earlier argued as follows: In contrast Ms Bradshaw over roughly the same period withdrew a total of $31,500 and still had a balance of over $8000 when we came to Court on the 22 nd of November 2010.

[ 7 ] On this point Mrs. Bradshaw replied, in part, as follows: I would also like to address Mr. Bradshaw’s statement regarding the amount of money that I withdrew from my RRSP accounts. This information is irrelevant to the issue at hand. The funds that I withdrew from my RRSP account belonged to me. The funds that Mr. Bradshaw withdrew from his RRSP accounts did not all belong to him. [ 8 ] I agree with Mrs. Bradshaw’s reply comment. Whether or not she withdrew funds from her own RSP account(

s) is irrelevant to the issue of whether Mr. Bradshaw misled the Court as to the amount in his own RSP accounts at the outset of trial. [ 9 ] The background to this matter is as follows. The parties agreed in December 2005 that, among other things, Mr. Bradshaw would rollover 50% of the difference between the balances of their respective Raymond James RSP accounts, Mr. Bradshaw then having the greater amount invested in RSPs. [ 10 ] The relevant portions of that agreement are: 47.

The parties acknowledge and agree that the Husband shall transfer to the Wife by way of tax-free spousal rollover pursuant to Section 146(16) of the Income Tax Act, funds sufficient to equalize the Husband's Raymond James RRSP Account #4EO-220R-0 and the Wife's Raymond James RRSP Account #409700R ... 23. The parties acknowledge and agree that they have determined that the amount of child support that should be paid pursuant to

Section 9 of the Child Support Guidelines, taking into account the amounts payable under the applicable tables, the fact that the Husband shall be responsible for payment of the

Section 7 expenses for the children, and the increased cost of shared custody arrangements, and the condition, means, needs and other circumstances of each party of the children, is 70% of the offset amount calculated based upon the child support payable by the Husband to the Wife and the child support payable by the Wife to the Husband in accordance with their Guideline incomes as determined from time to time. ... 29. The parties acknowledge and agree that the Husband shall be responsible for the

Section 7 expenses for the children, including post-secondary education costs. He will pay these expenses directly and shall be in control of them. [ 11 ] That rollover has not happened. Mr Bradshaw ceased performing that Agreement, believing it to have been repudiated. The trial dealt with the issue of whether or not the Agreement had been repudiated. [ 12 ] In September 2006 Mr. Bradshaw commenced an application by Notice of Motion seeking a determination of four matters including, among other things, “dividing the RSPs”.

That application led to the trial and to the decision that is the subject of this application by Mrs. Bradshaw. [ 13 ] On the first day of the trial Mr. Bradshaw clarified that his application was for a retroactive adjustment of all matters back 60 days, believing that accorded with the terms of an earlier interim order of the Court, therefore back to approximately July 1, 2006. [ 14 ] The Court inquired of both parties as to the issues the parties understood were to be tried. The Court proceeded through each of the four items listed in Mr. Bradshaw’s Notice of Motion.

When reaching the item of “dividing the RSPs”, Mr. Bradshaw stated: Honestly, I do not even know why they are in there. I think [my lawyer at the time] put them in there. I am not sure. I do not have a problem with splitting them. He then stated a second time that he had no problem with splitting them. Upon the Court’s request for clarification of whether by splitting them he meant an equal splitting, he responded without hesitation that he had no objection to an equal splitting of them.

[ 15 ] Mrs. Bradshaw then indicated that an equal splitting was all she ever was waiting for and wanted. [ 16 ] On the basis of these representations there seemed not to be any issue between the parties on the point. The parties were informed there was no need to deal with it further within the evidentiary portion of the trial and that if they wanted included in any resulting order a clause to that effect (equal splitting of RSPs) then they could raise the matter again in final argument. [ 17 ] In saying he was prepared for the RSPs to be equalized the implication was that he still owned RSP monies to equalize.

By Mr. Bradshaw allowing the matter to come off the trial agenda Mrs. Bradshaw lost her opportunity to test or adduce evidence on the issue. [ 18 ] During the trial Mr. Bradshaw testified that he had, from time to time in the years between filing his application and its hearing at trial, withdrawn some of his RSP monies to meet his ongoing personal and

section 7 expenses. He did so to explain the apparent discrepancy between his employment income and his lifestyle expenses plus his ability to fund at least some of the children’s tuition and related costs. At no time did he reveal that he had withdrawn all of his RSP funds before trial. [ 19 ] The trial decision, in respect of RSPs, said: [54] Mr. Bradshaw was responsible for all

section 7 expenses of the children until each was no longer a child of the marriage, including post secondary costs. He fulfilled that obligation though apparently at times by use of Mrs. Bradshaw’s [share of Mr. Bradshaw’s] retirement savings plan (“RSP”) monies. ... [56] For the periods beyond December of 2006, I set the [child support] amount based not upon the 70 percent of the differential, but 100 percent of the differential. The evidence at trial was clear that Mr. Bradshaw was using RSP funds to pay the

section 7 expenses, yet the Agreement required that the RSP monies be divided equally between the parties. So, in effect, Mr. Bradshaw has used some of Mrs. Bradshaw’s funds to pay the

section 7 expenses. Therefore, I find no reason to continue discounting the child support obligations. ... [61] Further, the rest of the RSPs in entirety as at their value at the close of business on the first day of trial, November 8, 2010, not 50 percent of them but all remaining RSPs, are to be rolled over by Mr. Bradshaw to Mrs. Bradshaw, to at least partially compensate Mrs. Bradshaw for Mr. Bradshaw’s dissipation of her interest therein. That is also to be done forthwith. ... [86] In

summary, the rest of the money in Court from the $150,000 is to paid out forthwith to Mrs. Bradshaw. The amounts in the RSPs in the control of Mr. Bradshaw as at the close of business November 8, 2010, are to be rolled over or otherwise transferred forthwith to Mrs. Bradshaw. [ 20 ] Mrs. Bradshaw referred the Court to Rick v. Brandsema , 2009 SCC 10 , [2009] 1 S.C.R. 295 . That case deals with an occasion of one party misleading the other following a marriage breakdown. However the defective disclosure justifying judicial intervention in that case occurred in the context of negotiating a separation agreement.

Thus, the findings of the husband’s defective disclosure (and exploitation of his wife’s known mental vulnerabilities) were in a very different context than here. There they were also more pronounced and egregious than demonstrated here. For those reasons, I find little assistance from Rick v. Brandsema . [ 21 ] Of greater assistance is the 1999 decision of this Court in Berube v. Wingrowich , 1999 ABQB 698 , [1999] A.J. No. 1057 , in which Veit, J. wrote at para. 28: [...] A court can be misled either by a deliberate mis-statement, or, as in this case, by the omission to state a material fact. The fact that Mr.

Goldenberg never explicitly asserted that the royalty monies were still in his trust account does not relieve him of responsibility for

misleading the court. It was clear, from the arguments relating to the “topping up” of the royalty fund, that the stay application wasproceeding on the basis that the royalty funds remained in trust. Mr. Goldenberg’s omission, in these circumstances, is as weighty as thecommission of a lie. [22] In referring to that decision with approval, a single member of the Alberta Court of Appeal stated in Alberta (Director, Child, Youth & Family Enhancement Act) v. M.(B.), 2009 ABCA 258, 460 A.R. 188, 9 Alta. L.R. (5th) 225[1]: [ 92] Along the same lines, I again cite Berube v. Wingrowich, supra.

In that case, someone who had been given money to hold in trustwent quietly all through a hearing about staying an order to turn the money over. Only after he lost did he reveal that he had parted withthe money before the hearing even started.

The Court properly said that that in itself was contempt by misleading the Court. [93] In several contexts, the Alberta Court of Appeal has said that a party’s position or objections in court are not . . . a game of linguistic hide-and-seek, the object of which is to conceal the real meaning of the spoken word from the judge and seewhether the judge can find it before counsel leaves the courtroom. A presiding justice is entitled to treat a statement by counsel ashaving that meaning which a reasonable person would infer from the statement.

The presiding justice is not there to cross-examinecounsel concerning the subtleties or nuances of a statement to the court . . . R. v. Heikel (1992) 1992 ABCA 142 , 125 A.R. 298, 305 (para. 24) (C.A.); R. v. deKock, 2009 ABCA 225 (June 16) [23] Parties to this action were not represented by counsel. That does not relieve them of their obligation to the Court of fulldisclosure, of candour and of the utmost good faith. [24] Just as the circumstances in this case were not as extreme as the defective disclosure in Rick v. Brandsema, they were not asextreme as encountered by Veit, J. in Berube v. Wingrowich.

Nevertheless a material fact was omitted. Specifically, Mr. Bradshaw neverdisclosed that in fact there was nothing left in his RSPs to balance or equalize with those owned by Mrs. Bradshaw. [25] If when Mr. Bradshaw said that he had no problem splitting equally the total RSPs the two held, he then disclosed that hiswere all gone, the discussion would have continued not ended. Mr. Bradshaw would have been asked if he therefore was agreeing to theCourt awarding Mrs.

Bradshaw the equalizing amount based on the December 5, 2005, values of their RSPs – the date the Agreementwas formed – or was he saying the current balances should be equalized, in effect saying he would take half of whatever Mrs. Bradshawhad left. Obviously that would not have been agreed to by Mrs. Bradshaw. Whatever was Mr. Bradshaw’s intent was not discovered. Byremaining silent on a material fact the matter was prematurely curtailed. [26] Had Mr.

Bradshaw disclosed that he had nothing left in his RSP investments, I would not have included in my decision, as Idid, that the entirety of his remaining RSPs be rolled-over to Mrs. Bradshaw. I would not have done that had I known there was nothingleft to roll-over. [27] The implication of Mr. Bradshaw’s statements about agreeing to equally divide their remaining combined RSPs and hissilence as to having nothing left to equalize was a material omission, the effect of which was to mislead the Court and Mrs.

Bradshaw. [28] In consequence of the foregoing I therefore grant the application to reopen the Order I rendered and to reconsider the result inrespect of the RSPs. [29] The Court already received additional RSP information in documentary form and in the form of the further submissions of theparties. Also, pursuant to Rule 8.19 of the Alberta Rules of Court, Alta.Reg. 124/2010, I have considered the evidence adduced at trial onthis point.

[ 30 ] The original application brought by Mr. Bradshaw invited consideration as far back as July 2006. I have information now as to the value of the RSPs at that time and since. I am aware that some of those funds had been drawn down prior to trial. This fact, and the fact some of those funds withdrawn were used to cover

section 7 expenses (under the Federal Child Support Guidelines , SOR197-175) became a determinative fact in my earlier decision on the amount of retroactive child support payable. In reaching my initial decision I accepted that the RSP investments had performed poorly since July 2006, outside the control of Mr. Bradshaw, consistent with performance of the capital markets in Canada more generally over that period of time. By the close of trial I was of the view that somewhere between as low as $5,000 and as high as $15,000 was the true amount likely remaining in Mr.

Bradshaw’s RSPs on the first day of trial. [ 31 ] I have also considered the additional information that has been provided by the parties in respect of their respective RSP values at various dates prior to trial (including at the time the Agreement was formed), the use for the children of the marriage of some portion of those RSP monies drawn down, the adjustment to child support pursuant to the Agreement as a consequence of this use of RSP monies and the other considerations described in my December 30, 2010 Memorandum of Decision, the approximate amount the Court had inferred existed in Mr.

Bradshaw’s RSP investments on November 8, 2010, and the submissions of the parties. [ 32 ] I am cognizant of the fact that any RSP dollars now to be received will be not in the form of a spousal rollover, the growth of which going forward could have been tax sheltered but the withdrawals from which would be subject to income tax, albeit at relatively lower tax rates given Mrs. Bradshaw’s employment prospects and potential retirement income. Finally, I am cognizant that the original Agreement would have resulted in half of the difference between the RSP values each party held would be transferred from Mr. to Mrs.

Bradshaw. [ 33 ] In result the Decision and Order I rendered at the conclusion of trial did not reflect my intentions on what would achieve a just and equitable resolution between the parties overall. I therefore now award Mrs. Bradshaw an additional $10,000, payable forthwith by Mr. Bradshaw. In my view this decision will restore the parties to the position I intended they be in following conclusion of the trial. [ 34 ] Both parties represented themselves; each party shall bear their own costs. Heard on the 24 th day of January, 2011. Written Submissions by the 22 nd day of February, 2011.

Dated at the City of Calgary, Alberta this 10 th day of March, 2011. P.R. Jeffrey J.C.Q.B.A. Appearances: Philip John Bradshaw Self-represented Janet Lynn Bradshaw

Self-represented [1] Decision overturned on appeal to a full panel of the Alberta Court of Appeal, on different grounds and without comment on this point: Ouellet v. B.M. , 2010 ABCA 240 , 30 Alta L.R. (5th) 42, 482 A.R. 273, 8 Admin.L.R. (5th) 1.