O'Kane v Lillqvist-O'Kane, 2024 ABCA 32

In the Court of Appeal of Alberta Citation: O'Kane v Lillqvist-O'Kane, 2024 ABCA 32 Date: 20240126 Docket: 2201-0256AC Registry: Calgary Between: Brian George Patrick O'Kane Appellant/Cross-Respondent - and - Petra Marja Karita Lillqvist-O'Kane Respondent/Cross-Appellant _______________________________________________________ The Court: The Honourable Justice Michelle Crighton The Honourable Justice Bernette Ho The Honourable Justice William T. de Wit _______________________________________________________ Memorandum of Judgment Appeal from the Order by The Honourable Justice C.C.J. Feasby Dated the 8th day of March, 2023 ( 2022 ABKB 661 , Docket: 4801-156228)

_______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [1] The parties were married in March 1988 and ceased cohabiting in approximately August 2011. There are two adult childrenof the marriage. [2] Acrimonious litigation proceedings ensued, culminating in a 16-day trial addressing division of matrimonial property andspousal support. Following trial, the trial judge issued a written decision and three endorsements dated November 2022, December 2022and January 2023 respectively.

Judgment was filed March 8, 2023. [3] Both parties appealed. The husband, Mr. O’Kane, appeals several of the court’s determinations related to the value ofmatrimonial property, exemptions, retroactive and ongoing spousal support, and the parties’ guideline incomes. The wife, Dr. Lillqvist,cross-appeals on a single issue arising from the November 2022 endorsement relating to her withdrawal of funds from an RRSP. [4] Dealing first with the husband’s appeal, Mr.

O’Kane asserts that this Court is in as good a position as the trial judge to assessthe evidence that was adduced at trial and arrive at new factual findings because credibility was not at issue below. He relies on apassage from Tat v Ellis, 1999 ABCA 12 at paragraph 6 that states: The high standard of review applicable to fact findings is not disputed. Where credibility of witnesses is not in issue, it is nonethelessopen to this Court to review findings of fact if they are based on a failure to consider relevant evidence or on a misapprehension of theevidence: Schreiber Brothers Ltd. v.

Currie Products Ltd. (1980), (SCC), 108 D.L.R. (3d) 1 (S.C.C.). [5] We do not accept Mr. O’Kane’s submission regarding the standard of review. While the trial judge’s reasons for decisionand endorsements do not expressly address the credibility of each witness, he undoubtedly was required to assess credibility amongstother factors when deciding whether to accept each witness’s evidence. Indeed, the trial judge expressed reservations he had with theopinion evidence advanced by both parties’ experts and wrote that he had to work with what he was provided.

In any event, the standardof review for findings of fact is palpable and overriding error: Housen v Nikolaisen, 2002 SCC 33 at paras 10, 26-37. “The samedeferential standard of review applies to a trial judge’s decision to accept or reject expert evidence”: Alberta v ENMAX EnergyCorporation, 2018 ABCA 147 at para 67, leave to appeal to SCC refused, 38181 (28 February 2019). [6] In our view, each of the alleged grounds of appeal advanced by Mr. O’Kane seeks to challenge findings of fact made by thetrial judge. Mr.

O’Kane concedes as much at paragraph 26 of his factum when he submits that the trial judge’s assessment of theevidence was fundamentally flawed. Mr. O’Kane does not assert any errors of law. [7] We are not satisfied that the trial judge made any factual errors warranting appellate intervention as all his findings wereavailable to him on the record. Moreover, we do not accept that the trial judge failed to consider relevant evidence or misapprehendedthe evidence at trial.

Rather, his reasons for decision and each of the endorsements clearly address why the trial judge accepted orrejected certain evidence, including the evidence of the valuation experts, Mr. Doran and Mr. Lawritsen, which related to several issuesat trial. [8] Relative to the issue of exemptions, Mr. O’Kane submits there was ample evidence to show that funds advanced by Mr.O’Kane’s father were loans, not gifts, repayable at 6% interest per annum and were intended to benefit only Mr. O’Kane, not Mr.O’Kane and Dr. Lillqvist jointly. While the trial judge’s reasons do not review the same evidence outlined by Mr.

O’Kane in his factum,the trial judge nevertheless clearly addressed why he did not accept Mr. O’Kane’s position in regards to the amount of the claimedexemption. In particular, the trial judge did not accept Mr. O’Kane’s contention that when completing the Statement of Income, Assetsand Liabilities in 2013, Mr. O’Kane simply overlooked or forgot the $1.2 million that was allegedly owing on the First Loan from Mr.O’Kane’s father. There is simply no basis for us to disturb the trial judge’s determination of the value of Mr. O’Kane’s inheritanceexemption. [9] Mr.

O’Kane also argues that the trial judge misapprehended or ignored relevant evidence when he failed to impute income toDr. Lillqvist for the period between 2012 and 2020. In his factum, Mr. O’Kane asserts their marriage was a “modern rather than atraditional marriage” [para 99] and submits that “[o]n the facts before the court, for the purpose of his spousal support analysis the trialjudge should have imputed income to [Dr. Lillqvist] that was equivalent to what she could/would have earned working as a full-timephysician in Finland.” [para 114]. [10] When addressing Dr.

Lillqvist’s entitlement to spousal support, the trial judge referenced his finding that Dr. Lillqvist had

sacrificed her career to support Mr. O’Kane, at paragraph 46: The parties started with no meaningful assets. Mr. O’Kane built up a successful real estate business that owns many rental and condominium properties in Calgary. He could not have done this without Dr. Lillqvist taking on the role of primary caregiver to the couple’s two children. Dr. Lillqvist sacrificed her career as a medical doctor in Finland to live in Australia and Canada to support Mr. O’Kane and raise their children. … [ 11 ] The trial judge rejected Mr. O’Kane’s argument that Dr.

Lillqvist was underemployed between 2012 and 2020 and declined to impute income for the following reason, at paragraph 158: The argument that a person who lived most of her adult life as a homemaker and split her life between two countries on either side of the Atlantic Ocean is, upon separation, supposed to commence full-time work in only one of those countries is unreasonable. Her two- country life is a consequence of the parties’ lengthy marriage, and she cannot be expected upon separation to assume a one-country life leaving behind a lifetime of relationships in the other country.

She works in Finland and neighbouring countries where she is qualified to do so, she does not work in Canada where she is not qualified to do so. She is not underemployed or, if she is, it is a consequence of or disadvantage resulting from the marriage. [ 12 ] In advancing this position, Mr. O’Kane is asking us to re-try the case. We reach the same conclusion in regard to other issues raised by the appellant, including alleged questions regarding the determination of the fair market value of the Greenview units, treatment of the Greenview litigation and the determination of Mr.

O’Kane’s guideline income, particularly as to the treatment of amortization expenses where the trial judge reviewed the cases he considered to be persuasive. This Court has repeatedly indicated that appeals are not “do-overs”: FDM v EGM ¸ 2023 ABCA 100 at para 33 citing McClelland v Harrison , 2021 ABCA 89 at para 35 ; Fleming v Fleming , 2016 ABCA 88 at para 18 . We see no basis for appellate intervention. Mr. O’Kane’s appeal is dismissed in its entirety. [ 13 ] In relation to the cross-appeal, Dr.

Lillqvist submits that the trial judge made a palpable and overriding error in failing to account for the tax liability or tax impacting the value of her RRSPs that she redeemed to pay for legal fees for trial. [ 14 ] The trial judge's November 2022 endorsement addresses the issue that Dr. Lillqvist raises in her cross-appeal. The trial judge held that he did not consider the RRSP withdrawal to give rise to a matrimonial property issue but should be an issue considered in the context of costs. In this respect, the trial judge erred. Having included Dr.

Lillqvist’s RRSP in the distribution of matrimonial property, the withdrawal of funds from this RRSP was a matrimonial property issue and should have been considered as such. However, the trial judge continued to conclude at paragraph 15: Even if I did not consider the financial consequences of withdrawal of RRSP funds to be a costs issue, I would be unable to decide the matter. Evidence concerning the withdrawals and the tax actually paid are necessary to decide the issue and none of that is before the Court. [ 15 ] Regarding the evidentiary issue, Dr.

Lillqvist submits that the trial judge ought to have taken judicial notice of the fact that any redemption of RRSPs by her would result in a corresponding tax consequence. Alternatively, Dr. Lillqvist points to the trial judge’s requests for further submissions following trial under Rule 9.13 of the Alberta Rules of Court , Alta Reg 124/2010 . Dr Lillqvist asserts that the trial judge was inconsistent in his treatment of post-trial submissions, having accepted post-trial submissions from Mr. O’Kane on amortization calculations but not accepting post-trial submissions from Dr.

Lillqvist on the RRSP redemption issue. [ 16 ] It was ultimately up to Dr. Lillqvist to ensure the evidentiary record adequately addressed the issue for the trial judge’s consideration. The trial judge cannot be faulted for refusing to take judicial notice of Dr. Lillqvist’s personal tax rate. As for the trial judge’s use of Rule 9.13 , we note that Rule 9.13 should be used “sparingly”: CZ v RB , 2019 ABCA 445 at paras 26 .

Rule 9.13 is “not an occasion for the losing party to advance new argument which he or she simply did not think of before” ( Alberta (Child, Youth and Family Enhancement, Director) v BM , 2009 ABCA 258 at para 11 ) nor is it “intended as a vehicle to shore up evidential gaps” ( CZ v RB at para 27 ). Reliance on Rule 9.13 to invite further submissions and issue subsequent endorsements may introduce questions around what properly forms part of the evidentiary record and trial judges open themselves up to criticism as to the proper use of post-trial submissions.

Regardless, we are of the view that the trial judge did not make a palpable and overriding error in concluding that he had insufficient evidence to reach a determination on the amount of RRSPs redeemed by Dr. Lillqvist, when such redemptions occurred, and the associated tax rate. [ 17 ] Dr. Lillqvist’s cross-appeal is accordingly dismissed. [ 18 ] Given the number and nature of Mr. O’Kane’s arguments on appeal, which we determined to be entirely without merit, we award costs of the appeal to Dr. Lillqvist as though she were entirely successful, notwithstanding the dismissal of the cross-appeal.

Appeal heard on January 19, 2024 Memorandum filed at Calgary, Alberta this 26th day of January, 2024

Authorized to sign for: Crighton J.A. Ho J.A. de Wit J.A. Appearances: V.A. MacDonald, KC for the Appellant/Cross-Respondent P.G. Wells for the Respondent/Cross-Appellant