2015 NBCA 31, 2015 NBCA 31

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 61-14-CA THOMAS WILLS APPELLANT THOMAS WILLS APPELANT - and - - et - SHERRY KENNEDY RESPONDENT SHERRY KENNEDY INTIMÉE Wills v. Kennedy, 2015 NBCA 31 Wills c.

Kennedy, 2015 NBCA 31 CORAM: The Honourable Justice Larlee The Honourable Justice Quigg The Honourable Justice Baird CORAM : l’honorable juge Larlee l’honorable juge Quigg l’honorable juge Baird Appeal from a decision of the Court of Queen’s Bench: April 30, 2014 Appel d’une décision de la Cour du Banc de la Reine : le 30 avril 2014 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: March 20, 2015 Appel entendu : le 20 mars 2015 Judgment rendered: May 21, 2015 Jugement rendu : le 21 mai 2015

Reasons for judgment: The Honourable Justice Larlee Motifs de jugement : l’honorable juge Larlee Concurred in by: The Honourable Justice Quigg The Honourable Justice Baird Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Baird Counsel at hearing: Thomas Wills appeared in person For the respondent: J. Nathalie Thibault Jones Avocats à l’audience : Thomas Wills a comparu en personne Pour l’intimée : J. Nathalie Thibault Jones THE COURT The appeal is allowed in part with no order as to costs. LA COUR L’appel est accueilli en partie; aucuns dépens ne sont adjugés.

The judgment of the Court was delivered by LARLEE, J.A. [ 1 ] Thomas Wills appeals a decision by a judge of the Court of Queen’s Bench with respect to awards of spousal and child support made in accordance with the Family Services Act , S.N.B. 1980, c. F-2.2, the Federal Child Support Guidelines, SOR/97-175 and the Spousal Support Advisory Guidelines . He also appeals the division of the parties’ real property, which is governed by the common law relating to unjust enrichment, and the valuation the application judge attributed to his pensions.

For the following reasons I would allow the appeal in part. [ 2 ] The parties lived in a 20 year common law relationship from December 1991 to December 2011. They have one biological daughter, T.W., born in December 1994. The respondent also has a son, R.M., born in July 1991, to whom the appellant is not the biological father. However, R.M.’s biological father has never been a part of R.M.’s life, nor been subject to any application to pay support, and the appellant has stood in his place.

The appellant earned the primary income for the family while the respondent remained home to care for the children. [ 3 ] The respondent commenced proceedings by way of a Notice of Application and a judge of the Court of Queen’s Bench rendered an interim order with respect to support, possession of the parties’ home, and disposal of property. The issues at the subsequent application hearing were child support, spousal support, and division of property.

Both children were of the age of majority at the hearing, though it was alleged that R.M. was unable to function on his own and that T.W. would have been still attending university at the time of the hearing had the appellant provided proper support for her to do so.

Issues of property division centered on the property owned by the parties on Shore Road (which had been split into two lots – a five acre lot with the house that was subject to a mortgage, and a 40 acre lot to be used for farming), farm equipment, a boat, a four-wheeler, scaffolding, a generator, various tools, and the appellant’s pension. [ 4 ] The application judge found the respondent’s income potential to be limited by her age, health, experience, and education, and that the appellant has an obligation to provide her with support.

No individual amount of child support was awarded for R.M., but the table amount under the Federal Child Support Guidelines was considered for T.W., with that obligation to end on June 30, 2014. The resulting judgment sets out amounts for child and spousal support both retroactive and going forward (including credits given to the appellant toward arrears), and specific directions for the division of the parties’ property and the future exchange of income information. The appellant seeks a reversal of several aspects of that decision.

[5] The appellant is self-represented and lists a number of grounds of appeal attacking theapplication judge’s decision to award spousal and child support (amount and duration) because: (1) the children are of legal age; (2) the respondent has no interest in securing meaningful employment to support herself; (3) the judge erred in finding he is intentionally underemployed; (4) both he and the respondent are in new common law relationships and the appellant argues he should not have to support therespondent while she lives with another partner; (5) the respondent was unable to prove the actual income of her business venture due to her failure to submit sales receipts or cashregister receipts; and (6) the parties were in a common law relationship with no vows or promises made.

With respect to division of property, in

summary, the appellant seeks a review of the order because he argues the method used forvaluing the home on Shore Road was incorrect, the amounts used for the division of pension benefits were not accurate, and the propertythat was accumulated during the relationship was not divided fairly or properly. [6] The respondent filed a Notice of Contention under Rule 62.08 of the Rules of Court, but did notoffer in it, or in oral submission, any explanation as to why the decision appealed from should be affirmed on grounds other than thosegiven by the application judge. [7] In MacDonald v.

MacDonald, 2011 NBCA 25, 372 N.B.R. (2d) 179, leave to appeal refused[2011] S.C.C.A. No. 237 (QL), the Court explains the standard of review that applies in this case: The standard of review that applies to family matters generally is that the judge’s decision must be given considerable deference. Anappellate court is empowered to set aside or vary a decision or order where it is the product of an error of law, an error in principle, asignificant misapprehension of the evidence or if it is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518,[1999] S.C.J. No. 9 (QL) para. 11; Van de Perre v.

Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Savoie v. Levesque, 2009 NBCA 47,[2009] N.B.J. No. 282 (QL); Ms. P.H. v. Mr. P.H., 2008 NBCA 17, [2008] N.B.J. No. 52 (QL); Milton v. Milton, 2008 NBCA 87, 338N.B.R. (2d) 300, para. 14.; J.E.J. v. S.L.M., 2007 NBCA 33, [2007] N.B.J. No. 249 (QL), para. 35; S.H. v. V.B., 2007 NBCA 69, 321N.B.R. (2d) 314, para. 2) [para. 7] [8] A similar standard of review applicable to spousal support matters has been reiterated in thecaselaw: Milton v. Milton, 2008 NBCA 87, 338 N.B.R. (2d) 300, at para. 14; Pollock v. Rioux, 2004 NBCA 98, 278 N.B.R. (2d) 351, atpara. 27; and Smith v.

Smith, 2011 NBCA 66, 375 N.B.R. (2d) 208, at paras. 10-12. [9] In Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9 (QL),the Supreme Court adds: When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, andcriteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerablediscretion by trial judges.

They must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with anappreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and

to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. [para. 10] [ 10 ] The application judge, after reviewing the evidence of the parties, made findings of fact with respect to child and spousal support on which he based his conclusions. Respecting spousal support, he found the parties had lived together twenty years in a long term relationship. He found the respondent has the ability to minimally support herself, but not to the standard of living which she enjoyed prior to separation.

She has the ability to eventually become self-sufficient, but only through minimum wage jobs. She was under-employed in a business that makes no substantial amount of money and he imputed a yearly income of $20,000 to her as a result. He established the appellant’s obligation for 2012 support based on an average income for the years 2010- 2012, or $97,696. The obligation to pay spousal support was not time limited.

With respect to child support, the application judge was not satisfied on the evidence presented that R.M. was unable to function independently, and therefore did not order support specifically for R.M. He recognized the appellant’s acceptance of an existing but limited support obligation for T.W. The application judge gave appropriate credits toward arrears in support. [ 11 ] The application judge made the support awards in accordance with the factors enumerated in the Act , the support guidelines, and the jurisprudence of this Court: B.P. v. A.T ., 2014 NBCA 51 , 423 N.B.R. (2d) 99 ; D.E. v.

L.E. , 2014 NBCA 67 , [2014] N.B.J. No. 289 (QL) ; Smith v. Smith ; T.D.L. v. A.-G.L ., 2014 NBCA 57 , 423 N.B.R. (2d) 359 , at para. 36 . I am of the view that there is no error with respect to either child or spousal support, and I would dismiss the appeal insofar as it concerns support with one small exception. [ 12 ] In his reasons for decision the application judge made the observation “[s]upport will be indefinite. However, it is subject to review” (para. 92).

The final order reads: (iv) Spousal and /or child support for 2014 and every year thereafter is reviewable based on the [parties’] actual income once declared. [ 13 ] In Leskun v. Leskun , 2006 SCC 25 , [2006] 1 S.C.R. 920 , the Supreme Court points out “genuine and material uncertainty” at the time of the original hearing may justify a review order being put in place by a judge to permit a party “to bring a motion to alter support awards without having to demonstrate a material change in circumstances” (para. 37). However, trial judges should resist making review orders.

They should resolve the controversies before them and make permanent orders when possible, because on a “review” nobody bears an onus to show changed circumstances.

If the judge fails to “tightly circumscribe the issue [it] will inevitably be seen by one or other of the parties as an invitation simply to reargue their case” (para. 39). [ 14 ] Since the application judge gave no reason for concluding the support awards should be subject to yearly review and there is no apparent genuine and material uncertainty on the record to justify such a direction, I would correct the order by removing paragraph (iv), relying on Rules 1.02.1 and 62.21(1): Leger v. G & G Carnival Amusements Inc. et al. , 2015 NBCA 20 , [2015] N.B.J.

No. 79 (QL) , at para. 20 . [ 15 ] With respect to the division of real property, the respondent sought in her application an unequal division of the assets held jointly between the parties in her favour based on the common-law principles of unjust enrichment, and a declaration with respect to her interest in any property held solely by the appellant. The appellant opposed an unequal division and relied on “the presumption of constructive and resulting trust and unjust enrichment considerations”.

At the appeal hearing he argued for an equal division. [ 16 ] While in his reasons for decision the application judge considered the evidentiary background that could have led to a consideration of elements of an unjust enrichment analysis, he did not address the issue. After considering the evidence he concluded: The evidence was, and I find as a fact, that regardless of whose name was on title to any of the properties they were family assets subject to an equal division… This is an error of law. There are no family assets in a common law relationship and no automatic equal division.

This error allows us to interfere with the decision on this issue.

[17] The leading case on the doctrine of unjust enrichment claims is Kerr v. Baranow, 2011 SCC 10,[2011] 1 S.C.R. 269, in which Cromwell J. characterizes it “as one party leaving the relationship with a disproportionate share of wealththat accumulated as a result of the parties’ joint efforts” (para. 142).

The case essentially sounds the death knell for the use of resultingtrust arising solely from the common intention of the parties in resolving property and financial disputes in domestic cases (para. 29).Cromwell J. reaffirms the doctrine of unjust enrichment is the primary vehicle to address claims of inequitable distribution of assets onthe breakdown of a domestic relationship (para. 30). [18] He reiterates that the first and second elements in the unjust enrichment analysis are that oneparty has been enriched by the other, and the one who did the enriching suffered a corresponding deprivation.

The third element of anunjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason. In this case, if theapplication judge had found those three elements of the analysis had been satisfied, he should have gone on to consider an appropriateremedy. [19] Monetary rewards have priority to remedy an unjust enrichment, and if not sufficient orappropriate then a proprietary remedy may be required. For recent applications of Kerr v. Baranow and an unjust enrichment analysis,see Murphy v. Spinney, 2014 NBQB 234, [2014] N.B.J. No. 312 (QL), per Walsh J.; J.V. v.

V.M., 2013 NBQB 171, 405 N.B.R. (2d) 127,per B.M. Robichaud J.; Tatlock v. Cosman, 2014 NBQB 29, [2013] N.B.J. No. 456 (QL), per Tuck J.; Muise v. Fox, 2013 NSSC 349,[2013] N.S.J. No. 571 (QL), per Jollimore J; Dunn v. Murphy, 2013 NSSC 444, [2013] N.S.J. No. 759 (QL), per M.C. MacLellan J.;C.L. v. M.R., 2013 QCCS 1590, [2013] J.Q. No. 3600 (QL), per Mongeau J.C.S.; Bellows v. Davis, 2012 NLTD(F) 39, [2012] N.J. No.451 (QL), per Paquette J; and Bartlett v.

Murphy, 2011 NBQB 139, 374 N.B.R. (2d) 270, per Walsh J., affirmed 2012 NBCA 44, 388N.B.R. (2d) 388. [20] In this case, the issue relating to the division of real property must be reheard so an applicationjudge can do an unjust enrichment analysis and, if necessary, explain to the parties why a monetary judgment is satisfactory, or, if not,why a proprietary division is equitable in the circumstances. [21] I would make one observation regarding the valuation of the real property. The appellantcomplains about the figures that were used. He had been asked to have a property evaluation done. He did not.

Since there were nocurrent market value appraisals of the properties, the application judge used the best evidence he had before him, the tax assessments, infixing the values, and there was some evidence that the parties agreed to use them. He made no error in so doing. In several cases beforethis Court in which the parties did not provide appraisals of properties, we have allowed the New Brunswick Real Estate Assessment andTax Notice to be used to indicate the value of property: LeBouthillier v. LeBouthillier (1982), (NB CA), 39 N.B.R.(2d) 20, [1982] N.B.J.

No. 130 (C.A.) (QL), per Richard J.A., applied in Graves v. Graves, 2007 NBQB 273, [2007] N.B.J. No. 297(QL), per Quigg J., as she then was, at paras. 28-29; and MacQueen v. MacQueen (1998), (NB KB), 201 N.B.R. (2d)175, [1998] N.B.J. No. 237 (Q.B.) (QL), per Graser J. [22] Notwithstanding the error in the division of real property, with respect to the pensions, theparties agreed before the application judge (para. 23) to divide the appellant’s pensions equally during the 20 year period of cohabitation.At the appeal hearing, the parties confirmed this agreement was made.

The appellant also confirmed he accumulated no pension fundsbefore his cohabitation with the respondent commenced. There are two pensions at issue. The appellant worked in New Brunswick andthat pension is administered by New Brunswick Local 1386 Carpenters and Joiners. He presently works in Alberta and his pension thereis administered by Alberta Carpenters & Allied Workers Trust Funds.

The appellant contests the valuation the application judgeattributed to the pensions. [23] A letter the judge received from the Alberta Carpenters & Allied Workers Trust Funds after thehearing was completed evidences a problem with the pension valuations. He mentioned the letter in his reasons for decision but did notconsider it because it was not an exhibit at the hearing. The application judge arrived at an amount of $96,000 for the Alberta pensionbased on an account statement the respondent had seen “some time ago”.

The appellant had undertaken to produce a copy of an updatedpension statement and did not do so. The application judge arrived at a figure of $47,265.06 for the New Brunswick pension (paras. 22-23). [24] In my view, there was no need for the application judge to fix an amount to be divided. Oncethe parties consented to an equal division, he should have made a generic order to the pension plan administrators to do the division inaccordance with the pertinent legislative provisions.

I would, therefore, substitute his order for pension division with the order thatshould have been made (relying on Rules 1.02.1 and 62.21(1)). I would order the administrators of the pension plans held for theappellant by New Brunswick Local 1386 Carpenters and Joiners and the Alberta Carpenters & Allied Workers Trust Funds to divide thepension funds equally between the parties in accordance with the pertinent legislation. The period during which the pensions are subjectto division begins at the commencement of the couple’s cohabitation in December 1991, and ends with their separation on December 16,2011.

[ 25 ] Finally, the appellant seeks a review of the interim order. Since no appeal was commenced against this order it cannot be reviewed by us. [ 26 ] For the above mentioned reasons, I would allow the appeal in part and make the following order: • The award of spousal support and child support is confirmed. • Paragraph (iv) of the formal order regarding the review of support is removed. • Paragraph (

x) of the formal order is amended to read: There shall be an equal division of the appellant’s two pension plans for the 20 year cohabitation period, December 1991 to December 16, 2011. • The issue of the division of real property owned by the parties is remitted to the Court of Queens’s Bench for adjudication according to the doctrine of unjust enrichment. [ 27 ] Since there was mixed success on the appeal, and the appellant is unrepresented, I would make no order as to costs. ____________________________________ M.E.L. LARLEE, J.A. WE CONCUR: _________________________________ KATHLEEN A. QUIGG, J.A. _________________________________ BARBARA L. BAIRD, J.A.