Werenka v Werenka, 2021 ABQB 1023

Court of Queen’s Bench of Alberta Citation: Werenka v Werenka, 2021 ABQB 1023 Date: 20211223 Docket: 4803 151704 Registry: Edmonton Between: Cheryll Shelley Werenka Plaintiff (Respondent) - and - Billy Steven Werenka Defendant (Applicant) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] Following the decision in 2021 ABQB 789 , Mr. Werenka seeks solicitor-client costs, asserting various instances of non- compliance by Ms.

Werenka with a separation agreement and invoking the agreement's internal costs provision: If either [Mr. Werenka] or [Ms. Werenka] has to enforce any term of this Agreement, then the party who has not complied with any term of this [agreement] must pay all costs arising from such enforcement on a solicitor/client basis.

[ 2 ] I am not satisfied that any of the material issues addressed represented or arose from "non-compliance" with the agreement by Ms. Werenka or otherwise involved “enforcement” by Mr. Werenka. Accordingly, the solicitor-client costs provision does not apply; regular party-and-party (Schedule

C) costs are instead awarded to Mr. Werenka. [ 3 ] On the s .7 expenses front, the university-attending son is not obliged to contribute financially to education-related expenses (beyond his current coverage of miscellaneous expenses). [ 4 ] My reasoning on each aspect is outlined below. B. Costs – impact of separation agreement’s “solicitor-client costs” provision [ 5 ] The threshold issue here is whether, on a given issue, the father should be regarded as having “enforced” the agreement in the face of “non-compliance” by the mother. [ 6 ] This calls for an x-ray of the precise issues raised.

Parenting aspects [ 7 ] On parenting , Mr. Werenka's application was for continuation of the every-third-week parenting agreed to in the February 10, 2021 consent order, largely because that frequency squares with his current work schedule. This contrasts to the every-second-week parenting contemplated in the agreement: para 2 (first bullet). [ 8 ] On reviewing Ms. Werenka's cross-application, concise letter, and two affidavits (March 17, 2021 and April 8, 2021), I note that her fundamental position, parenting-wise, was not that Mr.

Werenka should not have weekend access or that is should not occur every third week. See, for instance, her cross-application's requests that Mr. Werenka "provide [her] with proper notice of his vacation

schedule and intention as to whether he will be exercising his regularly scheduled parenting time with Brandon" (echoed in her concise letter's "relief sought"), and one of the cross-application's cited grounds being that "[she] is best able to continue as Brandon Werenka's primary [caregiver] ...." [ 9 ] I recognize that some of the elements in the cross-application were not, or may not have, been green-lighted in the Docket Court endorsement. However, I find useful illumination of Ms. Werenka's core position on parenting there. [ 10 ] As for Ms. Werenka's submissions and evidence bearing on the calibre of Mr.

Werenka's care for Brandon , I did not read them, nor could I (in light of the core nature of her parenting position), as aimed at precluding all access by him or even at reducing it below every second, or even every third, weekend. Instead, I understood them to be her attempts at advocating on Brandon's behalf and (effectively) at ensuring that Mr.

Werenka was made aware of her concerns and how (in her view) he might better care for, or at least be more attentive to, Brandon's needs. [ 11 ] As my judgment confirms (para 8), I was unable, in our chambers setting, to resolve various material conflicts in the evidence of Mr. Werenka's care of Brandon. Ultimately, I found that, even if Ms. Werenka's concerns were all borne out, none of them individually, or even collectively, showed materially deficient care, such that access should be denied or limited to less than what Mr. Werenka was seeking. [ 12 ] Even so, it remains that Ms.

Werenka's core position on parenting did not represent non-compliance with the agreement. AISH funding [ 13 ] As for the impact of the onset of AISH funding on Mr. Werenka's child support for Brandon, the separation agreement is silent on AISH or similar support and how it would or might affect Mr. Werenka's child-support obligations.

Section 12 calls for child support "until the children are no longer considered to be ‘children of the marriage’ within the meaning of the Divorce Act , until further Order of the Court, or the agreement of the parties, or the adjustments set out in paragraph 13 ...." (Paragraph 13 does not actually contemplate adjustments to child support, but paras 12, 16, 18, and 21 do; I will treat the closing element of that part of s. 12 as referring to all those provisions.) [ 14 ] As found in the earlier judgment (paras 32-42), Brandon continues to be a "child of the marriage", albeit one with "means" (via his AISH funding) and, in fact, sufficient means to meet his current expenses, with the result that Mr.

Werenka does not currently have any child-support obligation for Brandon. [ 15 ] None of paras 12, 16 or 18 bears on that change; however, para 21 does. It reads: The parties acknowledge and agree that, as a result of a change of circumstances, including but not limited to a change in the existing custody regime, a change in their respective guideline income, or if one child moves out of the home prior to turning 18, a variation of child support may be required . [ 16 ] Brandon turning 18 and starting to receive AISH benefits was unquestionably a change of circumstances within the meaning of this provision.

[ 17 ] The parties had differing views of the impact of those changes on Mr. Werenka's child-support obligations. As the earlier judgment reflects, I accepted Mr. Werenka's position. [ 18 ] However, that does not mean he was seeking to "enforce" the agreement or that Ms. Werenka was "non-compliant" under it.

The impact of AISH benefits on pre-existing child support obligations required a review of Alberta and other-jurisdiction decisions on the point, a ruling on how such benefits may affect such support, and then the application of that law to the facts here. [ 19 ] All to say: the AISH-funding aspect ends up being a change of circumstance found to warrant a variation to child support -- in other words, a kind of change captured by s. 21 of the agreement and requiring (at least in the circumstances here) a court decision to determine its impact. [ 20 ] Again, not a question of "enforcing" the agreement in the face of "non-compliance" with it.

Child moving out before age 18 [ 21 ] As for the impact of Sheldon moving away from home (shortly) before turning 18 , this change was explicitly addressed in the agreement. Both paragraphs 12 and 21 stated that, if a child moved away from home before turning 18, child support would be reduced by half. [ 22 ] Ms. Werenka argued that the provision did not apply, which position I rejected (see paras 49-55). [ 23 ] However, the bottom-line impact on child support ended up being relatively minimal, as discussed in paras 56-63.

In brief, Sheldon moved out mere weeks before his 18th birthday, and the end of s. 3 child support triggered by that move simultaneously represented the start of expanded s. 7 support i.e. covering (I found) all of Sheldon's expenses associated with his post-secondary- education-related move from the family's home town to Edmonton. [ 24 ] I discuss below some possible fine-tuning of that support i.e. how scholarships and similar assistance, as well as Sheldon's own earnings, should be factored into the parents' s. 7 obligations. [ 25 ] But the key point here is that, even if this issue effectively involved Mr.

Werenka seeking to "enforce" the "move-out cut-off" of child support and Ms. Werenka's ostensible non-compliance (i.e. in insisting ongoing s. 3 support), both parties overlooked or at least under-emphasized the agreement provision (part of para 12) preserving Mr. Werenka's s. 7 obligations towards even a moved-out- before-18 child and the section-7 provision (para 14) including "post-secondary education" (and all related expenses) as an approved s. 7 expense. [ 26 ] I do not see Mr.

Werenka as having gained any material ground on this point, with his s. 3 "win" being effectively neutralized by the onset of post-secondary-expense obligations under s. 7. [ 27 ] In all these circumstances, the solicitor-client costs provision does not apply: see the similar arguments and results in McAulay v McAulay , 2021 ABQB 574 (Kubik J.): Clause 31 is about enforcement of the Agreement. The objective intention of the parties is specifically set out in the Agreement.

Each party had, at the time of the signing the Agreement, an expectation that it would be enforced by the court, such that a penalty, in this case solicitor client full indemnity costs, would result from non-compliance with or default of a term of the Agreement. But what is enforcement, and is it distinct from asking the court to interpret a particular provision of a contract?

In this case, the parties required the court to determine whether the reconciliation clause in the Agreement was binding with respect to both spousal support and matrimonial property, as a result of facts alleged to have occurred subsequent to their reconciliation . This is distinct from non-compliance with or default of a term of the Agreement (for example: payment of support, or transfer of an asset) for which a party must sue to obtain performance. I am unwilling to read the enforcement clause to include

interpretation of the Agreement for the purposes of determining the parties’ rights and remedies in relation to the matrimonial property action. Enforcement implies something different than

interpretation, particularly where the language of the Agreement specifies that enforcement relates to acts of non-compliance or breach. [paras 5-8] [emphasis added] [ 28 ] Same here. [ 29 ] See also Harrison v Harrison , 2014 ABQB 246 (Lee J.) (paras 4-16 ), AL v CC , 2012 ABQB 165 (Lee J.) (paras 35-43 ), and Lawson v Lawson , 2004 ABQB 922 (reversed in part on other aspects 2005 ABCA 253 ) (Coutu J.) (paras 3, 4 and 17) for a similar analysis and outcome. [ 30 ] For examples of per-family-law-agreement solicitor-client costs being awarded in true "enforcement" scenarios, see Trevors v Lachance , 2018 ABQB 442 (E.

Wilson J.) (paras 1-11 ), SJF v DMK , 2018 ABQB 559 (Graesser J.) (paras 8, and 89-97), and Park v Park , 2016 ABQB 603 (Shelley J.) (paras 56-59 ). No other reason for solicitor-client costs here [ 31 ] Mr. Werenka did not argue in the alternative that Ms. Werenka engaged in any reprehensible, scandalous or otherwise egregious litigation conduct i.e. such that solicitor-client costs might be warranted even without s. 55. In any case, I do not see any such behaviour here: see the helpful review (when such costs are warranted) by Hopkins J. in JSV v CGR , 2018 ABQB 247 (paras 22-32 ).

Schedule C costs [32] That leaves what I understand is the alternative (party-and-party,

Schedule C, column 1) bill of costs prepared by Mr. Demasand attached to Ms. Tymafichuk's October 18, 2021 letter, claiming overall costs (including disbursements) of $6,017.10 (i.e. comparedto the claimed solicitor-client-level costs, with disbursements, of $27,021.83). [33] Ms.

Tymafichuk described the alternative costs claim itself as "a significant amount" that "will affect her immediate ability tocontinue supporting her two children", citing Miller v Miller, 2000 ABQB 671. [34] She did not offer any other argument against the alternative bill of costs. [35] I do not believe that the "qualified approach to costs" of that decision survived the Alberta Court of Appeal's decision in Metzv Weisgerber, 2004 ABCA 151: see paras 16-47 of the latter decision. [36] In all the circumstances, I see the alternative bill of costs as representing the appropriate outcome here. C.

Section 7 – “other sources of funding” and child’s own contributions [37] In the earlier judgment, I also offered to provide directions if the parties were unable to agree on the share of post-secondaryand associated expenses to be borne by Sheldon, if any. [38] The parties were unable to agree. Cases on “contributions by student” [39] I first reproduce guidance from a number of cases, starting with Stephan v Cunningham, 2016 ABCA 177: We do make one comment, and that is with respect to the order that each child bear responsibility for repayment of one third of herstudent loan.

In making that order, the chambers judge appeared to be of the view that he was required in law to order that thechildren share in the payment of those student loans. No such absolute requirement exists in law. Although many courts havestated that adult children should make a reasonable contribution to their education, the question of what is reasonable is verymuch a matter in the discretion of the trial judge and will vary with the circumstances of the child and of the parents.

Withrespect to student loan debt, in particular, courts are often reluctant to require children to incur debt to fund their education where parentshave the means to assist: see, e.g., Montalto v Montalto, 2011 ABQB 574 at paras 27-28; Rebenchuk v Rebenchuk, 2007 MBCA 22, 279 DLR (4th) 448; WPN v BJN, 2005 BCCA 7, 249 DLR (4th) 352. In the circumstances of this case, however, we are satisfied that a direction to split the payment of existing student loans two thirdsbetween the parents and one third to the children was not inappropriate.

Accordingly, we would not interfere. [paras 6 and 7] [emphasisadded] [40] In Taggart v Taggart, 2019 ABCA 78, the Court of Appeal commented again on the student-loan aspect: We agree with the appellant’s argument that dependent children of parents who can afford it are not necessarily required to financetheir education with student loans. ... [para 9] [emphasis added] [41] A student is not necessarily required to exhaust his or her earnings before parents are asked to contribute: Comtois-Theriault vTheriault, 2010 ABCA 178 (para 19). [42] In Williams v Wallace, 2017 ABQB 421, Graesser J. offered this helpful synopsis: That leaves the issue as to what Haley’s contribution has been.

Case law varies as to whether the Court should deduct all of thechild’s earnings during the summer months and from part- time employment, or only a portion of it. Case law also varies as tothe extent a child should be expected to take out student loans to help pay for the cost of post-secondary education. There is no hard and fast rule regarding the student loans. Selig v Smith [2008 NSCA 54] reviewed various authorities and cited withapproval Rebenchuk v Rebenchuk, 2007 MBCA 22.

There, Scott CJ stated at paragraphs 53 and 54: 53 Most courts seem to accept that it is reasonable for a child to be able to obtain one degree with the support of a non-custodial parent …. I agree with the view that, ordinarily, student loans ought to be required only when the means of the childcombined with the means of the parents leave a shortfall. It is to be remembered that student debt delays the cost of education. Itis not a reduction. In his annotation to Mabey v.

Mabey, 2005 NSCA 35 , 12 R.F.L. (6th) 403, Professor McLeod notes (at p.407): Most courts are reluctant to allow a payor to avoid child support by insisting the child maximize his or her contribution bystudent loans, since student loans are just cost deferrals. When the child is finished school, the loans must be paid. 54 Most courts assume a child will earn income during the summer and this is usually taken into account one way or anotherin determining the amount of the child’s contribution.

While the authorities are not consistent on the subject, I much prefer asimple requirement that adult children contribute a “reasonable amount” of their total earnings to their education rather thanplacing a more onerous burden upon them, leaving the precise determination to the exercise of the trial judge’s discretion. The Nova Scotia Court of Appeal concluded at paragraph 20:

[20] However, there is no hard and fast rule that student loans should be the last resort . … Each case depends on its own particular facts and … the trend seems to be leaning towards determining the parents’ ability to contribute before resorting to student loans … The higher the parents’ income, the less the student should be required to contribute. There is no exact right answer in these cases. So long as the amount ordered is reasonable in the circumstances, this court should be slow to intervene . Here the trial judge deducted one-half of the loans.

If the trial judge had deducted one-quarter of the student loans or none of them, that would likely have been seen as reasonable as well. The same can be said of the income from employment of the student.

There is a wide range of possibilities that fit within the reasonable standard . … [paras 55-57] [emphasis added] [ 43 ] In Fraser v Airhart , 2016 ABQB 136 , Veit J. distilled the contribution-by-student point this way: With respect to s. 7 expenses for an adult child attending a post-secondary educational institution, after having determined that the course of study is a reasonable one, the court must typically make an assessment of what proportion of the s. 7 expenses must be borne by the adult in question.

This assessment is fact-specific, focussing on the means of the parents, the culture of the family in relation to post-secondary education, the adult child’s abilities to earn income as well as to succeed in the educational program . Set out at the beginning of this decision under the heading “On the issue of an adult child’s contribution to the cost of their post- secondary education” are some decisions with which the parents may want to become familiar before addressing this issue in court.

The Winstanley decision may be of particular interest to these parties because it deals with a relatively unusual 5-year program, as is the situation here. [para 64] [emphasis added] [ 44 ] In LS v DS , 2017 ABQB 584 , Graesser J. observed: ... support is not necessarily table amount

section 3 support for 12 months a year with the parents splitting other costs on a proportionate basis. Individual and family circumstances must be considered. For some young adults, they may be required to make substantial contributions to all costs surrounding their post-secondary education . Support may only be ordered for the actual months in class, with an expectation that non-school months require the child to work and pay his or her own living expenses.

It is rare when children are not expected to contribute to the cost of their post-secondary education through student loans (when available), scholarships ( when the child is capable of achieving scholarships) and part-time work during the school months and full-time work during the summer months . [para 39] [ emphasis added] [ 45 ] In TDM v JDM , 2020 ABQB 353 (Mandziuk J.), a combination of ongoing s. 3 child support and the child’s own earnings (between $9,000 to $12,000 per year) were seen as sufficient i.e. with no additional s. 7 obligation imposed on the non-custodial parent (paras 133 and 134). [ 46 ] In Nyereyogona v Schofield , 2021 ABQB 662 , Manderscheid J. examined the contributions-by-student factor: In regard to the second and fourth Farden factors, an adult child is expected to contribute towards their education to the fullest extent possible through bursaries, scholarships, student loans, part-time or summer employment: Wahl at para 40 and Mraz at para 58 .

The Court in Wahl advised “It is very rare when a Court will not require a student to contribute, through his or her own earnings, to the cost of his or her maintenance”: para 43.

At a minimum, adult children should seek out summer employment to help contribute to the cost of their post-secondary education. [para 133] [emphasis added] [ 47 ] In CLD v RJB , 2019 ABQB 852 , Labrenz J. reviewed the circumstances, noted the student’s “obligation to contribute financially to her own education”, and directed one-third load-sharing for the student and each of the parents (paras 25-27). [ 48 ] Noting that decision, Bercov J. found the following in TH v KM , 2020 ABQB 596 (no discussion of this point in appeal judgment ( 2021 ABCA 103 )): With respect to AH, she will turn 18 next February and will conclude her first year at post-secondary school at the end of April.

A child who attends post-secondary is entitled to support but the level of support depends on the circumstances of the parties. In cases where a parent has limited means, children are expected to contribute to their expenses : CLD v RJB , 2019 ABQB 852 . During the year, A contributes through her scholarship.

In the period May to August, if A is not required to participate in soccer full time to maintain her scholarship, it is appropriate for her to work and contribute to her expenses. [para 71] [emphasis added] [ 49 ] For a detailed review of what are legitimate questions about the student’s ability to contribute financially towards his or her post-secondary education, see CJT v GAT , 2019 ABQB 851 (Devlin J.) (paras 12-61 ). [ 50 ] In Omonova v Omonov , 2021 ABQB 265 , after a detailed review of the so-called Farden factors, Loparco J. concluded that, in light of the student’s “good employment prospects, [receipt of] a substantial amount of money [$24,000] in 2020, and ... access to student loans”, no further s. 7 support was required of a father (paras 41-101). [ 51 ] In SLF v JWF , 2016 ABQB 635 , Erb J. gauged as sufficient a student’s contribution to living expenses via part-time earnings i.e. without requiring further load-sharing form her (paras 50-53). [ 52 ] In Park v Park , 2016 ABQB 603 , Shelley J. found that a student’s learning difficulties had precluded pursuit of part-time work (i.e. on top of regular and additional school work), directing that any one-half of any future earnings be applied towards tuition-and- books expenses i.e. as the student’s share (paras 49-51). [ 53 ] In O’Neil v Yaskowich , 2018 ABQB 599 , Shelley J. commented on the absence of evidence of the student’s earnings and also distinguished between material earnings (triggering an obligation to contribute to tuition and basic living expenses) and “pocket money” earnings (para 92) [ 54 ] In LRP v BJP , 2012 ABQB 552 , Graesser J. found that, with one parent having “limited income” (around $50,000) and the other “less income” (between $9,000 and $26,000), “their combined incomes do not warrant them paying for the majority of post- secondary expenses for [their] two children.” Instead, he directed a 25 per cent contribution from each party and a 50 per cent

contribution by the student, for each child (paras 89 and 90). [ 55 ] In Buchner v Long , 2016 ABQB 523 (affirmed 2017 ABCA 382 ), Phillips J. ruled “RESPs first”: I find that neither party shall be required to make any contribution to post-secondary educational expenses for the children until such time as the joint funds standing in the RESP as of September 30, 2013, in the amount of $16,422 is fully spent on allowable post-secondary educational expenses , namely tuition, books and other post-secondary educational fees. When the joint RESP funds of $16,422 are expended, each party shall be required to contribute their proportionate share of

section 7 expenses for post-secondary education. [paras 201 and 202] [emphasis added] [ 56 ] See also NR v SR , 2019 ABQB 776 (Grosse J.): “Each [parent] will try to use RESP funds for [full-time post-secondary] expenses before incurring the expense.” [ 57 ] In Lewis v Correia , 2014 ABQB 314 , Veit J. emphasized the following factors in tagging the student with a 40 per cent contribution rate: - the relatively light work load of the winter term in which the daughter has 2 days and 5 afternoons off every week, which days and afternoons can presumably be used for studying while still keeping up her part-time employment ; and, - since the daughter lives at home and attends university in the same city, and because the debtor parent already pays $1,000.00 per month for her room and board, clothes, toiletries, etc., and because her registration at university provides her with transportation and wellness activities, the adult daughter has relatively few necessary expenses.

In those circumstances, it is therefore entirely appropriate for the daughter to spend some of the money which she earns through part-time employment on her education, which is, itself, a money-earning investment . [paras 26 and 27] [emphasis added] [ 58 ] In Damphouse v Damphouse , 2020 ABQB 101 , Loparco J. declined to oblige the children to self-fund, even in part and despite a $125,000 gift to each from grandparents, emphasizing the support payor’s sizeable income ($180,000 range), a track record of parental financial support for the children’s post-secondary education, and RESPs in place (paras 121-124).

Application of those principles here [ 59 ] The key factors here are: • per their separation agreement (ss 12, 14, 15, 16 and 18), the parties agreed to a mutual sharing , proportionate to their incomes, of s. 7 expenses, including post-secondary-education expenses, with no contemplation of contribution by or from one or both children. Per s 55, the agreement “contains the whole agreement between the [parties].” Per s 59, the parties contemplated amendments to the agreement if certain formalities were followed.

Nothing in the record reflects any amendment squaring with those requirements, or otherwise, about a child’s contribution (e.g. through earnings) to post-secondary expenses. The father offered no reason why their agreement should not be followed here, and I cannot discern any reason: see Goulding v Keck , 2014 ABCA 138 on the enforceability of domestic agreements, including provisions to fund or co-fund s. 7 expenses (paras 26-34 and 74-76).

I conclude that the agreement governs on this aspect: Sheldon is not obliged to contribute to any of his post-secondary expenses i.e. beyond the current extent i.e. using some or all of his part-time-job earnings to cover miscellaneous personal expenses; • as for whether he should be expected to apply for student loans (or at least any further student loans), the answer is no or at least not for the foreseeable future, in light of the scale of the father’s income (approximately $207,000 in 2020) and the apparent availability of RESP monies (per the mother, $30,000 earmarked for each child).

In his follow-up submissions, the father acknowledged that he “is using the RESP account” and “is also investigating transferring Brandon’s share to Sheldon”; • I believe it is common ground here that any available scholarships, bursaries and grants should be pursued and applied as a first credit or credits against post-secondary expenses. (The mother shall supply the father with copies of all documents associated with any such credits or possible credits); • on the RESP aspect, I follow the above case-law guidance and direct that the next credit against such expenses shall be withdrawals from any standing-to-Sheldon’s-credit RESP funds.

I also direct that the parties attempt to agree on whether it is preferable to transfer Brandon’s credits to Sheldon’s account (if possible), versus to a registered disability savings plan account for Brandon. (The father shall provide a statement reflecting the current RESP credits to the mother, no later than January 14 th .) If they are unable to agree, I will settle the point; • I also direct that any such credits (scholarships, etc. and RESP monies) be applied first to lump-sum expenses (e.g. tuition and books); • as for the proposed post-secondary expenses budget on page 2 of the father’s October 12, 2021 letter, I accept the mother’s suggested revisions i.e. $600 for food and $700 for vehicle costs; and • the parties shall share any remaining post-secondary expenses proportionately i.e. to their tax-assessed incomes from time to time.

D. Settling the terms of the order reflecting the earlier

judgment [ 60 ] The parties offered different versions of the order reflecting my earlier decision.

I approve the following: • the order shall be styled “Variation Order; • after “IT IS HEREBY ORDERED THAT”, the order shall read: “The Divorce Judgment granted December 5, 2012 and the Consent Order granted February 10, 2021 remain in full force and effect except as varied herein:” • pick-up and drop-off times shall be 5 pm and 8 pm, respectively (squaring with the Consent Order, as directed in para 72 (first bullet) of the decision); • the post-secondary-expense provision in the father’s draft order (paras 8 and 9) shall be modified to reflect the above directions; • paragraph 10 of the father’s proposed draft (his ability to obtain certain information from third parties) is approved; • the costs provision shall be amended to square with the above direction; and • per the mother’s request, the standard “MEP clauses” shall be added.

E. Closing note [ 61 ] The above costs direction embraces the follow-up issues decided here i.e. no further costs are awarded for the follow-up submissions or anything related. Heard by way of written submissions received October 12 th and 18 th , 2021 Dated at the City of Edmonton, Alberta this 23 rd day of December, 2021 . M. J. Lema J.C.Q.B.A. Submissions received by: Mark H. Demas Demas Schaefer LLP for the Plaintiff (Respondent) Joanne Tymafichuk Barrister & Solicitor for the Defendant (Applicant)