2021 NLCA 29, 2021 NLCA 29

Barry Gerard Hynes (appellant/respondent by cross-appeal) v. Sharon Ann Snook (respondent/appellant by cross-appeal) (19/69 and 19/78) Indexed As: Hynes v. Snook 2021 NLCA 29 6 C.A.N.L.R. 590 Court of Appeal of Newfoundland and Labrador Welsh, Goodridge and Butler JJ.A. May 25, 2021

Summary: Upon the breakdown of their common law relationship, Ms. Snook filed an originating application in which she sought partner support and property division as a common-law partner. Mr. Hynes responded seeking a declaration that Ms. Snook was never his partner as defined by the Family Law Act , that the claim for partner support was statute barred pursuant to the Limitations Act , and in the alternative, that Ms. Snook was not entitled to partner support. Mr. Hynes further sought an order for Ms. Snook to return to him two vehicles, an order requiring Ms.

Snook to execute a Deed of Conveyance in relation to a property located in St. Philips, and an order for compensation from Ms. Snook for contributions he had made to a property located on Pearce Avenue in St. John’s. The judge found that Ms. Snook was entitled to partner support on a non-compensatory basis and awarded her $8,285 per month for 17 years. The judge found that Ms. Snook had established a common law claim to a property located in St. Philip’s, and awarded her a one- half interest in the property. The judge denied Mr.

Hynes’ common law claim for contributions he had made to the property located on Pearce Avenue, and further ordered Mr. Hynes to transfer two of the vehicles in question to Ms. Snook and to pay her an additional $15,000 for her loss of use of one of the vehicles. Mr. Hynes appealed, arguing that the judge made errors in his determination of Ms. Snook’s claim for partner support and in the common law relief granted respecting the parties’ claims to the two properties and two vehicles. Ms.

Snook cross-appealed, arguing that the judge erred in not finding a compensatory basis for her partner support claim, in the quantum of income imputed to her, and in the calculation of the amount due to Ms. Snook for the one-half interest in the St. Philip’s property. Held: Appeal and cross-appeal allowed, in part.

Butler J.A. (Welsh and Goodridge JJ.A. concurring): After assessing the relevant factors and applying the proper principles, the judge concluded that ___________________________________ Leave to appeal to SCC refused, 39814 (February 10, 2022) the parties became “partners” as defined under the Family Law Act when the parties moved in together in 1996. No error was established regarding the judge’s conclusion (paragraphs 13-25). The judge concluded on the evidence as a whole that despite various problems between the parties, they did not separate until July 4, 2014.

Implicit from the judge’s reasons was that even if one of the parties had formed an intention to leave the relationship, neither had acted upon such an intention until July 4, 2014. There was no error established regarding the judge’s conclusion. Accordingly, Ms. Snook’s originating application issued in March 2015 was filed within the two year limitation period (paragraphs 26-32).

The judge found that Ms. Snook was not entitled to partner support on a compensatory basis because her role in the relationship did notenhance Mr. Hynes’ earnings. This finding was supported by his review of the evidence and is entitled to deference from this Court. Noerror was identified in the judge’s conclusion (paragraphs 35-38). In concluding that Ms. Snook was entitled to partner support on a non-compensatory basis, the judge addressed the relevant factors as setout in the Family Law Act including Ms. Snook’s relationships with other men.

No error was identified in the judge’s conclusion that Ms.Snook was entitled to partner support on a compensatory basis (paragraphs 39-44). No error was established in the judge’s conclusion that Ms. Snook was entitled to a one-half interest in the St. Philip’s property. Underboth the resulting trust approach and the unjust enrichment approach, the evidence established that Mr. Hynes intended to gift to Ms.Snook a one-half interest in the property. However, the judge did err in the calculation of the equity in the St. Philip’s property, whichaffected the remedy (paragraphs 63-85).

The judge erred in finding that Mr. Hynes was not entitled to a remedy for his contributions to the property located on Pearce Avenue.Under either the unjust enrichment approach or the resulting trust approach, the evidence did not support a finding that Mr. Hynesintended to gift the contributions to Ms. Snook. Applying the joint family venture approach to the remedy, Mr. Hynes was entitled to amonetary remedy for his contributions to the Pearce Avenue property (paragraphs 86-113). The judge erred with respect to the quantum and duration for partner support.

Based on the corrected incomes, the reassessed means andneeds of Ms. Snook, and the guidance of the Spousal Support Advisory Guidelines, Mr. Hynes was ordered to pay partner support of$5,000 a month for a period of ten years (paragraphs 114-204). The judge erred with respect to his conclusions regarding the two vehicles. Ms. Snook was to reimburse the cost paid for the purchase ofthe Cadillac at the end of its lease, as the evidence disclosed that the vehicle had been only gifted to her for the term of the lease. Mr. Hynes was to transfer the Saturn Sky to Ms.

Snook, as the evidence supported the conclusionthat Mr. Hynes had gifted Ms. Snook the vehicle. However, the judge erred, due to lack of any evidentiary foundation, in awarding Ms.Snook damages for her alleged loss of use of the Saturn Sky (paragraphs 205-216). There was no error disclosed in the judge’s award of costs to Ms. Snook. The award of costs is a discretionary exercise entitled todeference from a reviewing court (paragraphs 217-218). Cases cited: Bowes v. Bowes, 2021 NLCA 10 Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518 (S.C.C.) M. v. H., (SCC), [1999] 2 S.C.R. 3 (S.C.C.) Kerr v.

Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795 Quigley-McKay v. McKay, 2020 NLCA 26 Garland v. Consumers’ Gas Co., (SCC), [1998] 3 S.C.R. 112 (S.C.C.) Bath v. Bath, 2002 NLCA 21 , 2002 NFCA 21, 226 Nfld. & P.E.I.R. 78 Ibbotson v. Fung, 2013 BCCA 171 Hausmann v. Klukas, 2009 BCCA 32 Gosse v. Sorensen-Gosse, 2011 NLCA 58, 311 Nfld. & P.E.I.R. 76 Duffy v. Duffy, 2009 NLCA 48, 289 Nfld. & P.E.I.R. 132

Hynes v. Snook , 2016 NLCA 4 Kohan v. Kohan , 2016 ABCA 125 Zacharias v. Zacharias , 2015 BCCA 376 Fisher v. Fisher , 2008 ONCA 11 Statues considered: Family Law Act , RSNL 1990, c. F-2, sections 31 , 35 (c), 36 , 39 , 41 , 60(1) Divorce Act , R.S.C. 1985, c. 3 (2nd Supp .) Corporations Act , RSNL 1990, c. C-36,

section 9 Regulations considered: Federal Child Support Guidelines , S.O.R./97-175, sections 18 - 19 ,

Schedule III. Rules considered: Supreme Court Family Rules , being

Part IV of the Rules of the Supreme Court, 1986 . Texts considered: Julien Payne & Marilyn Payne, Canadian Family Law , 7th ed. (Toronto: Irwin Law Inc., 2017). Other: Spousal Support Advisory Guidelines (July 2008) CPA Canada Handbook ,

Part II, sections 1591 and 1601 Counsel: Jean V. Dawe Q.C., for the appellant/respondent by cross-appeal; Nicholas J.G. Avis Q.C., for the respondent/appellant by cross-appeal. The appeal was heard on October 13, 2020 before Welsh, Goodridge and Butler JJ.A. The following judgment was filed on May 25, 2021 by Butler J.A. for the Court. ______________________________________________________________ Butler J.A.: INTRODUCTION [ 1 ] This appeal engages issues respecting partner support and unjust enrichment claims following the breakdown of a common-law relationship. [ 2 ] On this appeal Mr.

Hynes asserts that the judge made errors: • in his determination of Ms. Snook’s claim for partner support under the Family Law Act, R.S.N.L. 1990, c. F-2 ; • in the common law relief granted respecting the parties’ property claims; and • in his costs order.

[3] Ms. Snook cross-appeals alleging that the judge made errors: • in not finding a compensatory basis for her partner support claim; • in the quantum of income imputed to her; and • in the calculation of the amount due to her for a one-half interest in the property at St. Philip’s. FACTS [4] The parties met in 1987 and started dating in 1988 when Mr. Hynes was approximately 24 years of age and Ms. Snookapproximately 20 years of age. At this time each of them was residing with and in the homes of their respective parents. [5] By 1996 Ms. Snook had become the owner of her parents’ home at 52 Pearce Avenue, St.

John’s. After an attempted break-inat her home, she became nervous about living alone, asked Mr. Hynes to move in with her for security and he agreed. By this date Mr.Hynes had started his own commercial diving business (Sea-Force Diving Ltd., hereinafter “SFDL”) and Ms. Snook was a customerservice representative at the Bank of Montreal. Mr. Hynes contributed to capital improvements made and operating costs associatedwith, the Pearce Avenue property. [6] In September 2006 Mr. Hynes purchased 2 Cayman Drive, St. Philip’s from his brother James who resided at 4 Cayman Drive. At Ms. Snook’s request Mr.

Hynes put title to this property in both parties’ names. They resided in this home from September 2006 toJuly 2014 at which time Ms. Snook vacated. Mr. Hynes paid 100 percent of the costs associated with this property. [7] On the breakdown of their common law relationship, Ms. Snook filed an Originating Application on March 23, 2015 in whichshe sought partner support, property division as a common-law spouse and costs. [8] In his Response on June 25, 2015 Mr. Hynes sought (inter alia):

(1) A declaration that Ms. Snook was never his partner as defined in the Family Law Act;

(2) In the alternative, a declaration that any co-habitation ceased in February 2010 and Ms. Snook’s claim for partner support wastherefore statute barred;

(3) In the alternative to (1) and (2), dismissal of Ms. Snook’s claim to partner support on the grounds of no entitlement;

(4) Dismissal of Ms. Snook’s claims to his personal and business assets;

(5) Orders for Ms. Snook to return two vehicles and to execute a Deed of Conveyance in relation to the St. Philip’s property; and

(6) Compensation from Ms. Snook for his contributions to Pearce Avenue. [9] The judge found Ms. Snook entitled to partner support on a non-compensatory basis and awarded her $8,285 per month for 17years. He found Ms. Snook to have established a common law claim to the house and contents in St. Philip’s and awarded her$170,222.23. He denied Mr. Hynes’ common law claim to the Pearce Avenue property, and required that he transfer two of the vehiclesto Ms. Snook and pay her an additional $15,000. He awarded costs to Ms. Snook on Column 4 of the Scale of Costs (2019 NLSC 110).

STANDARD OF REVIEW [10] The standard of review for questions of law is correctness; for questions of fact it is palpable and overriding (manifest) error. Questions of mixed fact and law attract the palpable and overriding standard unless it is clear that the judge made some error of law orprinciple that can be identified independent of the judge’s application of the law to the facts of the case. In these circumstances, the erroris reviewed on a standard of correctness (Bowes v.

Bowes, 2021 NLCA 10, at para. 22). [11] With respect to support orders, this Court has often emphasized the deference required to be given by appellate courts andrecognized that a reviewing court should not overturn a support order unless the reasons disclose an error in principle, a significantmisapprehension of the evidence, or unless the award is clearly wrong (Bowes, at para. 23, citing Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, at paras. 10-11 (S.C.C.)).

ISSUES [12] The issues raised by the appeal and cross-appeal are whether the judge erred in finding that: (1) the parties were “partners” under the Family Law Act;

(2) Ms. Snook’s Application was commenced within the statutory limitation period;

(3) Ms. Snook had established entitlement to partner support;

(4) Ms. Snook was entitled to a one-half interest in the St. Philip’s property;

(5) Mr. Hynes was not entitled to compensation for contributions he made to the Pearce Avenue property;

(6) Ms. Snook was entitled to support of $8,285 per month for 17 years;

(7) Ms. Snook was entitled to compensation for the Cadillac SRX and Saturn Sky vehicles; and

(8) Ms. Snook was entitled to costs on Column 4. ANALYSIS Issue 1 - Were the Parties “Partners” Under the Family Law Act? [13] Mr. Hynes asserts that the parties were not partners as defined in

section 35(

c) of the Family Law Act: (c) "partner" means either of 2 persons who have cohabited in a conjugal relationship outside of marriage (

i) for a period of at least 2 years, or (ii) for a period of at least one year, where they are, together, the biological or adoptive parents of a child [14] The judge identified two prevalent approaches to the assessment of whether the parties were “partners” under

section 35(

c) of theFamily Law Act. [15] The first approach was the “subjective equivalence” test which the judge concluded had little support outside of the province ofBritish Columbia and the Yukon Territory.

Under this test, the judge concluded that marriage equivalence is found “in the voluntaryassumption of long-term commitments to mutual economic support” and that the “only essential, defining feature of a marital relationshipis the voluntary assumption of mutual support obligations ‘until death do us part’ ” (judge’s reasons, at para. 17). [16] The second approach identified by the judge was the “functional equivalence” test which the judge concluded “finds maritalequivalence in a bundle of factors that together indicate the existence of an emotionally and economically inter-dependent relationship.

The focus of the inquiry is on the objectively observable features of the relationship” (judge’s reasons, at para. 18). [17] The judge summarized the key inquiry of this test as whether the couple had “voluntarily embraced the permanent supportobligations set out in the relevant legislation”.

The judge recognized that “[i]f the couple’s intent is not apparent, the court shouldconsider a number of objective factors with perhaps the most important of all being, did one of them surrender financial independenceand become economically dependent on the other, in accordance with a mutual arrangement?” (judge’s reasons, at paras. 20-21). [18] The judge assessed the parties’ relationship using the functional equivalence test. At paragraphs 23-92, guided by the SupremeCourt of Canada decision in M. v.

H., (SCC), [1999] 2 S.C.R. 3, the judge considered seven factors: (1) shared shelter; (2) sexual and personal behavior; (3) services; (4) social; (5) societal perceptions of the couple; (6) economic; and (7) children. [19] No error is identified either in the judge’s determination that the functional equivalence test should guide his assessment of theparties’ relationship, or in his identification of the relevant factors to be considered. [20] In his consideration of the enumerated factors, the judge made several key conclusions of fact for which he relied heavily uponthe evidence firstly of Ms.

Snook’s sister who (together with her partner) had spent considerable time with the parties and secondly ofMr. Hynes’ brother. He described James Hynes as Mr. Hynes’ business partner and best friend and a person who visited the partiesweekly while they lived on Pearce Avenue and daily while they lived next door to each other in St.

Philip’s. [21] The judge’s decision confirms that he considered: • the frequency of sexual relationships between the parties which he concluded ceased in 2009; • the maintenance of the parties’ careers; • shared expenses; • division of household responsibilities; • how the couple were introduced by others or introduced each other; • how vacations were spent; • the nature of a ring purchased by Mr. Hynes and worn by Ms. Snook; • that Mr. Hynes had named Ms.

Snook as beneficiary, as an insured and as a common-law spouse on a life insurance policy, aManuLife investment account and a Blue Cross benefits policy; • the notable changes that occurred in the parties’ relationship between 2008 and 2012 which reflected that the parties seemed

unhappy, were disrespectful to each other, had poor communication, did not attend the same events together and that Ms. Snook had stopped wearing the ring in question; and • that unbeknownst to Mr. Hynes, Ms. Snook had three sexual relationships with others between 2007 and 2014. [ 22 ] The weight to be ascribed to each of the factors under consideration in the functional equivalence test is a matter of discretion for the judge.

In this case the judge determined that he should not give particular weight to any one of the factors (judge’s reasons, at para. 24). [ 23 ] Credibility assessments of the four witnesses who testified on these factors also guided the judge’s analysis. He preferred Mr. Hynes’ evidence on the alleged engagement ring, assertions of verbal and physical abuse and why Ms. Snook left her employment at the bank (judge’s reasons, at paras. 63-65, 118-121, 125-127 and 149-153).

The judge’s conclusions on credibility are entitled to deference from this Court. [ 24 ] Having assessed the relevant factors and applied the proper principles, the judge concluded that the parties’ became “partners” as defined in

section 35 (

c) in 1996 (when Mr. Hynes moved into Pearce Avenue) and that thereafter their relationship was equivalent to marriage. [ 25 ] Mr. Hynes has not established an error in the judge’s conclusion that the parties were “partners” under

section 35 (

c) of the Family Law Act . I would dismiss this ground of appeal. Issue 2 – Was Ms. Snook’s Application Commenced within the Statutory Limitation Period? [ 26 ] Mr. Hynes asserts that Ms. Snook’s Originating Application was filed outside the statutory limitation period stated in section 60(1) of the Family Law Act : No action or application for an order for the support of a spouse or partner shall first be brought under this Part after 2 years from the day the spouses or partners separate. [ 27 ] Respecting the parties’ date of separation, the judge considered the following factors stated in paragraph 80 of his reasons: (

a) although [Ms. Snook] seemed uninterested and nonchalant about [Mr. Hynes’] 2012 cancer diagnosis, she was with him in Florida during his surgery; (

b) in 2011, 2012, 2013 and 2014, the couple continued to live together and travel together to Florida, where they were in the company of friends; (

c) the couple celebrated [Mr. Hynes’] 50th birthday in later September or early October 2013 at a surprise birthday party at the St. Philip’s house. They then travelled together to celebrate the event in Florida; (

d) the couple celebrated [Ms. Snook’s father’s] 80th birthday in early 2014 at the St. Philip’s house. Shortly after this trip, the couple again travelled together to Florida; (e) [Mr. Hynes] did not revoke designations in his insurance and investment accounts, although he cancelled her health insurance coverage; (

f) the couple continued to spend holidays, including Christmases, with friends and family; (

g) the couple did not physically separate, nor did they try to evict each other from the St. Philip’s house; (h) [Mr. Hynes] continued to split his income with [Ms. Snook]; and (i) [Mr. Hynes] continued to pay all of [Ms.

Snook’s] living and travel expenses. [ 28 ] In his consideration of these factors, the judge referenced jurisprudence of assistance in determining when a couple (married or otherwise) reaches the point of living separate and apart; the judge correctly identified that the intention of one party may be sufficient if there is evidence that the intention is acted upon (judge’s reasons, at paras. 82-85). [ 29 ] The judge concluded on the evidence as a whole that despite various problems, the parties did not separate until July 4, 2014.

He held: [89] … They continued to travel, spend holidays and celebrate significant family milestones together. They did not live separate lives. They, like many couples, stayed together in spite of these problems. … [90] … Whatever their reasons, their actions are insufficient to trigger a separation and an end to the relationship as partners under the Act . [91] … Both parties lived through these changes and stayed together in spite of them.

In that sense, they acquiesced to this living arrangement. [ 30 ] It is implicit from the judge’s reasons that (even if one of them had formed the intention to leave the relationship) neither party had acted upon such an intention until July 4, 2014 when Ms. Snook left the St. Philip’s property. [ 31 ] The judge applied the correct test to this question; Mr. Hynes has not established an error in his conclusion that the separation occurred on July 4, 2014.

[ 32 ] As a result, Ms. Snook’s originating application issued in March 2015 was filed within the prescribed two year limitation period. I would dismiss this ground of appeal. Issue 3 – Was Ms. Snook Entitled to Partner Support and if so, on What Basis? The Relevant Family Law Act Provisions [ 33 ] Common-law partner support is addressed in sections 36 , 39 and 41 of the Family Law Act . These provisions make several references to “need” and “dependant” which Mr. Hynes interprets narrowly. He asserts that they effectively limit a common-law partner’s right to support to a non-compensatory (need) basis. Mr.

Hynes denies Ms. Snook’s entitlement and suggests that she did not establish that she is a dependant and is in need. [ 34 ] While the judge concluded that Ms. Snook was entitled to support on the non-compensatory basis which Mr. Hynes agrees is available under these sections, Ms. Snook’s cross-appeal alleges error in the judge’s conclusion that she did not establish a claim on a compensatory basis. Thus, it is necessary for this Court to address the judge’s conclusions on both bases of entitlement. Compensatory Support [ 35 ] In assessing whether Ms.

Snook was entitled to support on a compensatory basis, the judge appropriately considered subsections 39(9) (

j) and (

l) of the Family Law Act (whether Ms. Snook had made a contribution to the realization of Mr. Hynes’ career potential and/or earning capacity and the effect on her own earning capacity of the responsibilities assumed during cohabitation). [ 36 ] In the course of this analysis, the judge reviewed the evidence and made factual conclusions respecting Ms. Snook’s departure from her employment at the bank and the role she played in Mr. Hynes’ career (judge’s reasons, at paras. 145-156). These conclusions were based in part upon his assessment of the credibility of each party. At paragraph 153 he stated “I find [Mr.

Hynes’] version of events more credible”. [ 37 ] The judge’s finding that Ms. Snook’s role in the relationship did not enhance Mr. Hynes’ earnings is supported by his review of the evidence and is entitled to deference from this Court. Ms. Snook has not identified an error in the judge’s conclusion that she had not established entitlement to partner support on a compensatory basis. I would dismiss this ground of cross-appeal. [ 38 ] As a result of this conclusion, it is unnecessary for this Court to address Mr.

Hynes’ assertion that non-compensatory support is the only basis for entitlement to partner support under the Family Law Act . Non-Compensatory Support [ 39 ] The judge concluded that Ms. Snook was “entitled to spousal support analogous to entitlement on a non-compensatory basis under the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp )” (judge’s reasons, at para. 36). [ 40 ] At paragraphs 96-158 of his reasons, the judge comprehensively addressed each of the relevant factors stated in section 39(9) of the Family Law Act . These included the parties’ respective assets and means, the length of cohabitation, Ms.

Snook’s needs with regard to the accustomed standard of living while they resided together, the change in her standard of living after separation, the relative roles each took during the relationship, Ms. Snook’s capacity to provide for her own support, and the parties’ ages and health. [ 41 ] Mr. Hynes asserts that the judge erred in failing to consider Ms.

Snook’s relationships with other men as “a course of conduct so unconscionable as to constitute an obvious and gross repudiation of the relationship” (section 39(10)). [ 42 ] Although the judge did not reference section 39(10) he had addressed the relationships and Mr. Hynes’ lack of knowledge of them in an earlier portion of his decision respecting when the parties had separated. [ 43 ] The judge’s conclusion was based upon a consideration of the relevant factors and application of proper principles. Mr. Hynes has not established an error in the judge’s conclusion that Ms.

Snook was entitled to partner support on a non-compensatory basis. [ 44 ] I would dismiss this ground of appeal. Introduction to Issues 4 and 5 The Legal Context [ 45 ] Issues 4 and 5 require this Court to address the two approaches to resolution of property disputes between unmarried domestic partners discussed in Kerr v.

Baranow , 2011 SCC 10 , [2011] 1 S.C.R. 269 , being traditional resulting trust principles and unjust enrichment principles. [ 46 ] As will be addressed below, while both were available to the judge in this case, unjust enrichment principles have been endorsed by the Supreme Court as the preferred approach. Resulting Trust Principles [ 47 ] The presumption of a resulting trust rests on the principle that equity presumes bargains and not gifts ( Kerr , at para. 19 , citing Pecore v.

Pecore , 2007 SCC 17 , [2007] 1 S.C.R. 795 , at para. 24 ). [ 48 ] In Kerr , the Court discussed the historical reliance upon the law of resulting trusts arising from gratuitous transfers relevant to domestic situations. It explained the traditional view that “they arose in two types of situations: the gratuitous transfer of property from one partner to the other, and the joint contribution by two partners to the acquisition of property, title to which is in the name of only one of them” ( Kerr , at para. 17 ).

[49] Adding Ms. Snook’s name to the title of the property in St. Philip’s (to which she allegedly made no contribution) was anexample of the first situation. Mr. Hynes’ alleged contribution to the property at Pearce Avenue (title to which was in Ms.

Snook’s nameonly) was an example of the second. [50] As the Court acknowledged in Kerr, in “either case, the transfer is gratuitous, in the first case because there was no considerationfor the transfer of the property, and in the second case because there was no consideration for the contribution to … the property” (Kerr,at para. 17). [51] I acknowledge that in Kerr the Court concluded that what was referred to as the “common intention” resulting trust no longer hada role to play in the resolution of property disputes between unmarried domestic partners.

However, it recognized that “traditionalresulting trust principles may well have a role to play” in such cases (at para. 15) [52] On the facts of this case, traditional resulting trust principles were available to the judge to determine the challenge made toownership of or an interest in, both the St. Philip’s and Pearce Avenue properties.

Application of Traditional Resulting Trust Principles [53] In the application of these principles, once a gratuitous transfer is established, the beneficial interest “ ‘results’ (jumps back) tothe true owner” and the onus shifts to the person challenging this to rebut the presumption by establishing that the transferor’s actualintention was a gift (Kerr, at paras. 16-17). [54] A judge will commence the necessary inquiry “with the applicable presumption and will weigh all of the evidence in an attemptto ascertain, on the balance of probabilities, the transferor’s actual intention” (Kerr, at para. 18, citing Pecore, at para. 44). [55] In certain relationships, the presumption of a resulting trust has been displaced with a presumption of advancement (gift);specifically, this presumption arises on the gratuitous transfer from a parent to a minor child (Pecore, paras. 27-41). [56] In this province, the presumption of advancement on the ownership of property between spouses was specifically abolished bysection 31(1) of the Family Law Act.

Thus, in Newfoundland and Labrador, the presumption of resulting trust applies to ownership of property as between both spouses and unmarried persons (see Quigley-McKay v. McKay, 2020 NLCA 26, at paras. 53-57). Property heldin the name of both spouses is, however, in the absence of evidence to the contrary, proof that each spouse is intended to have a one-halfbeneficial interest in the property on its severance (Family Law Act, section 31(2)). Since Mr. Hynes and Ms.

Snook were not spouses,section 31(2) has no application in this instance. [57] It follows that the applicable presumption to the facts of this case was that of a resulting trust. Unjust Enrichment [58] The Court in Kerr suggested that a claim to the assets accumulated in a common law relationship could also be approached onunjust enrichment principles and that this provided “a much less artificial, more comprehensive and more principled basis to address thewide variety of circumstances that lead to claims arising out of domestic partnerships” (para. 28).

It was therefore open to the judge todetermine the challenges made to ownership of or an interest in both the St. Philip’s and Pearce Avenue properties using the unjustenrichment framework endorsed in Kerr and described below. Application of the Unjust Enrichment Principles [59] The framework within which to address unjust enrichment claims and the principles applicable thereto were endorsed in Kerr.

Whenever the claimant can establish: • an enrichment of or benefit to the other, • a corresponding deprivation to the claimant, and • the absence of a juristic reason for the enrichment, the claimant is entitled to either a proprietary or monetary remedy (Kerr, at paras. 31-32). [60] The third element of the unjust enrichment framework involves a two-step analysis. [61] At the first step, the claimant “must show that no juristic reason from an established category exists to deny recovery”.

Theestablished categories that can reconstitute juristic reasons include a contract, a disposition of law, a donative intent and other validcommon law, equitable or statutory obligations. If there is no juristic reason from an established category, a prima facie case has beenmade under the juristic reason component (Kerr, at paras. 40-41 and 43). [62] “The prima facie case is rebuttable, however, where” the other party “can show that there is another reason to deny recovery”.

At this step, courts can look to all of the circumstances and should have regard to the reasonable expectations of the parties and publicpolicy considerations (Kerr, at para. 43, citing Garland v. Consumers’ Gas Co., (SCC), [1998] 3 S.C.R. 112 (S.C.C.)). Issue 4 – Did the Judge err in Finding that Ms. Snook had established an interest in the St. Philip’s Property? The Judge’s Reasons [63] The judge gave a

summary of the resulting trust and unjust enrichment approaches to the parties’ claims (judge’s reasons, atparas. 177-188) but his reasons confirm that he approached the challenge made to ownership of the St. Philip’s house on resulting trustprinciples (judge’s reasons, at paras. 198-207).

[64] As previously explained, under this approach, since a gratuitous transfer was established, a resulting trust was presumed in favorof Mr. Hynes as transferor. The onus shifted to Ms. Snook to rebut this presumption on a balance of probabilities. [65] However, at paragraph 184, the judge referenced the presumption of advancement and at paragraph 206 the judge held “that [Mr.Hynes] has not rebutted the presumption of advancement to [Ms. Snook] but if the presumption does not apply to partners, that [Mr.Hynes] actually intended to gift to her a one-half interest in the St.

Philip’s house”. [66] Since the judge misstated the applicable presumption and onus of proof for rebuttal, this Court must assess whether the judge’sultimate conclusion was supported by the evidence. I conclude that it was. Application of the Resulting Trust Approach [67] When the St. Philip’s property was purchased the parties had been together ten years in a relationship that was functionallyequivalent to a marriage. The evidence supported the conclusion that Ms. Snook’s departure from her employment at the bank wassupported (if not encouraged) by Mr. Hynes and that Mr.

Hynes made the decision to split his income with her thereafter. [68] The parties were largely in agreement respecting how Ms. Snook’s name was placed on the title. Mr. Hynes had testified thatMs. Snook had expressed to him that “she would never feel part of the home unless her name was on the deed”; Ms. Snook had testifiedthat Mr.

Hynes agreed to put her name on the deed to make it their home. [69] In the context of rebutting a presumption (in that case, of a gift respecting a joint savings account of married persons), this Courtin Quigley-McKay noted that Pecore suggests examples of evidence which may be considered.

These include, but are not limited to, thecontrol and use of the asset, any power of attorney and the tax treatment of income from the property (Quigley-McKay, at para. 82, citingPecore, at paras. 56-70). [70] Adjusted to account for the facts of this case, the parties occupied the property together as their home from 2006-2014; there wasno relevant evidence on tax issues because the home was a primary residence and had no rental income. Mr. Hynes paid 100 percent ofthe expenses associated with the property. Ms. Snook had signed the $280,000.00 mortgage that was secured by the St.

Philip’s propertyand she was therefore liable to the bank but she did not contribute to the mortgage payments. [71] Mr. Hynes had testified that he considered the St. Philip’s home and contents to be his own because it was his money that wasused for their purchase (Transcript, February 26, 2018, at 78, and Transcript, February 28, 2018, at 75) however, the judge found nosupport in Mr.

Hynes’ testimony to suggest that: • he did not understand the legal consequences of joint ownership; • he only intended a gift of survivorship; or that • he only intended to gift any increase in the equity. (judge’s reasons, at paras. 202-204) [72] The judge rejected Mr. Hynes’ evidence that he had always intended to claim a resulting trust if the parties separated. In drawingthis conclusion, the judge had the benefit of hearing the parties’ testimony and assessing their credibility; a reviewing court must bedeferential to such a finding. [73] Relying upon this Court in Bath v.

Bath, 2002 NLCA 21 , 2002 NFCA 21, 226 Nfld. & P.E.I.R. 78, at para. 13, Mr.Hynes asserts that the onus on Ms. Snook is “heavy”. However, the debate “amongst courts and commentators over what amount ofevidence is required to rebut a presumption” was resolved subsequent to Bath. It is now well established “that the civil standard, thebalance of probabilities, is applicable to rebut the presumptions” (Pecore, at paras. 42-43). [74] On a correct application of the resulting trust approach, the presumption of a resulting trust in Mr. Hynes’ favour wassuccessfully rebutted by Ms. Snook.

On the balance of probabilities standard applicable to the rebuttal, there was evidence supportingthe conclusion that Mr. Hynes’ actual intention in placing Ms. Snook’s name on the deed was a gift of a one-half interest. Application of the Unjust Enrichment Approach [75] Mr. Hynes’ challenge to ownership of the St. Philip’s property could also be addressed under the preferred unjust enrichmentframework (see para. 59) with the same result. [76] On the first element, (enrichment or benefit) the evidence established that Ms.

Snook made no contribution to the purchase priceof the property, or to any improvements to it. She did not pay any household expenses. On this basis, Mr. Hynes established that byplacing Ms. Snook’s name on the property, Ms. Snook received a tangible benefit. [77] On the second element, (corresponding deprivation) the effect of placing Ms. Snook’s name on the title was to give her a one halflegal interest and deprive Mr.

Hynes of half of the equity in the property. [78] Respecting step one of the third element of an unjust enrichment (absence of a juristic reason for the deprivation from anestablished category), I have previously summarized the evidence which supported “donative intent” in my discussion of the resultingtrust approach above.

[ 79 ] In the language of the Kerr framework, a juristic reason (a gift) was established to deny Mr. Hynes’ claim to recover the one-half interest from Ms. Snook. [ 80 ] As to remedy, a monetary award requiring Mr. Hynes to pay Ms. Snook for her one-half interest, was appropriate. Conclusion on Issue 4 [ 81 ] Mr. Hynes has not established an error in the judge’s conclusion that Mr. Hynes intended to gift Ms. Snook a one-half interest in the St. Philip’s home and contents (judge’s reasons, at paras. 205-207). I would dismiss this ground of appeal.

However, as is addressed below, an error was made in the judge’s calculation of the equity in the property. [ 82 ] At paragraph 199, the judge stated that “the parties acquired the St. Philip’s house in 2006. The purchase price for the home was $480,000. [Mr. Hynes] financed the house with [a] $10,000 down payment and mortgages. The parties agree that the equity in the St. Philip’s house is $332,234.46 and the value of the furnishings is $8,210”. [ 83 ] Mr. Hynes’ down payment was $200,000. The property had been purchased for $480,000, with a $280,000 mortgage.

Its value at the time of trial was agreed by counsel to be $870,800 and it was the balance owing on the mortgage at the time of separation that counsel agreed would determine the equity ($205,580.31). Ms. Snook was therefore seeking one-half of the equity of $665,219.69, one- half the furnishings of $8,210, plus judgment interest (Transcript, February 28, 2018, at 69-71). [ 84 ] The judge mistakenly referenced the value of one-half of the equity instead of the full equity in paragraph 199 of his reasons. His conclusion that Ms. Snook had established a gift of one-half of the equity in the St.

Philip’s property, which I have upheld, therefore entitled Ms. Snook to receive $332,609.85 for her one-half interest of the home, and $4,105 for the contents. [ 85 ] I would allow this ground of cross-appeal and substitute for the amount due by Mr. Hynes to Ms. Snook for her one-half interest in the St. Philip’s property and contents, the sum of $336,714.85, plus pre judgment interest (from the date of valuation relied upon at trial) and post judgment interest. On receipt, of the funds, Ms. Snook shall transfer her one-half interest in the property to Mr. Hynes. Issue 5 – Was Mr.

Hynes Entitled to Compensation for Contributions He Made to the Pearce Avenue property? The Judge’s Reasons [ 86 ] With respect to Pearce Avenue, Mr. Hynes had claimed both in resulting trust and unjust enrichment and was seeking a monetary remedy for contributions he had made to this property. The judge’s reasons reference both the resulting trust and unjust enrichment analyses (judge’s reasons, at paras. 187-197) but he chose to apply the unjust enrichment framework which has been endorsed as the preferred approach. [ 87 ] On the unjust enrichment approach, although the evidence established that Mr.

Hynes had made both capital contributions and payments on operating expenses, the judge found benefit and corresponding deprivation for the capital improvements only and he found a juristic reason for the benefit: [195] [Mr. Hynes] enjoyed the benefit of these capital improvements and he did not provide any evidence that he wanted repayment of these expenses. Had he done so, [Ms. Snook] may not have renovated. He made his claim for repayment only in response to [Ms. Snook’s] claims in this action.

At trial, he confirmed that he seeks no repayment of these amounts but he seeks to set them off set-off against any amount he owes. [ 88 ] Errors are identified in this portion of the judge’s reasons. First, respecting capital contributions, the judge referenced only the “new kitchen and extension to the house” and noted that “[Mr. Hynes] paid costs of the extension in excess of $10,000. However, the parties did not give me detailed evidence of these costs” (judge’s reasons, at para. 191). [ 89 ] In addition to what Mr.

Hynes had paid towards the kitchen renovations, he paid for a new oil tank, sump pump system, hot tub, gazebo and fencing, interior painting, garage door, replacement roof on the garage, interior casings and doors, new front door, new floor in the garage, replacement appliances and sink. These contributions totaled $42,739.29 and were supported by Mr. Hynes’ exhibits, testimony and a Reply to Demand for Particulars. [ 90 ] Secondly, regarding operational expenses, Ms. Snook had made the mortgage payments but Mr.

Hynes had paid almost 100 percent of the expenses associated with maintenance of the home and occupancy of the property by both parties. These included furnace insurance, propane tank rental, property insurance, house cleaning, furnace oil, electricity, internet, cable, food and alcohol, snow clearing and lawn care. This contribution was characterized by the judge as Mr. Hynes’ share of living expenses (judge’s reasons, at paras. 187-197). [ 91 ] The judge did not recognize that Mr.

Hynes continued to pay most of the operational expenses (to the extent that they continued to apply) after the parties vacated Pearce Avenue and that Mr. Hynes was seeking an unjust enrichment remedy for these expenses (Transcript, February 28, 2018, at 61-62). These payments could not be characterized as a share of living expenses since the parties were living in St. Philip’s at that time. They therefore represented a second significant contribution required to be considered in the unjust enrichment analysis. [ 92 ] Finally, as to the judge’s conclusion that, had Mr. Hynes stated he wanted repayment, Ms.

Snook may not have renovated, this Court was not referred to any evidence to support this finding of fact which Ms. Snook asserts was speculation. [ 93 ] The judge’s misapprehension of the facts materially affected the unjust enrichment framework that he applied. In light of this palpable and overriding error, this Court must address whether the judge’s conclusion on this issue is nevertheless sustainable on the evidence. I conclude that it is not and I would allow this ground of appeal for the reasons discussed below.

Unjust Enrichment versus Resulting Trust Approaches [ 94 ] Mr. Hynes had established a sufficiently substantial and direct contribution to the Pearce Avenue property by capital contributions and payment of operational expenses. Since his name was not on the title, he had also established a corresponding deprivation. The primary question was whether Mr. Hynes had established that there was no juristic reason from an established category to deprive his recovery (including contract, disposition of law or donative intent). If so, Mr. Hynes had established a prima facie case of unjust enrichment which Ms.

Snook would be required to rebut. [ 95 ] On the resulting trust approach, there was a gratuitous contribution to the costs of improving and maintaining the Pearce Avenue property. Mr. Hynes was therefore entitled to a presumption of a resulting trust unless Ms. Snook could rebut the presumption by establishing on a balance of probabilities, that Mr. Hynes intended a gift of the contributions. [ 96 ] The same evidence applies to both approaches and is reviewed below. The Evidence [ 97 ] The parties contributed to Pearce Avenue in a manner that was acceptable to them both.

It was not equal but more proportionate to their respective incomes. Their cohabitation in Pearce Avenue was in the first 10 years of their relationship when the evidence supports that there was far less animosity and minimal discussion of obtaining another home. In this period, Mr. Hynes and Ms. Snook were domestic and financial partners with respect to the Pearce Avenue property and the parties’ contributions to Pearce Avenue reflect the elements of the joint family venture endorsed in Kerr .

There was mutual effort and economic integration reflected in the manner in which the property was maintained and improved both while they lived in it and after they vacated it. [ 98 ] Both parties had the benefit of these improvements while they resided there but when they vacated, Ms. Snook was the sole beneficiary of the benefits. The rent was paid to her. Mr. Hynes’ contributions to operational expenses after they vacated Pearce Avenue reduced the expenses Ms. Snook had to cover from the rent she received. There was no evidence to support that the benefit to Mr.

Hynes (from temporarily residing in a home that had been improved) outweighed the capital contribution and operational expenses he had paid in the longer period. [ 99 ] There was no evidence that Mr. Hynes expected repayment of his capital contribution but there was also no evidence that his contribution had been described as a gift for which repayment was not being sought.

The absence of evidence either way did not assist the required analysis. [ 100 ] Unlike the situation in Quigley-McKay (where bank account records and the financial advisor’s correspondence were available), there was no documentary evidence that could assist the court in assessing the intended purpose of Mr. Hynes’ contributions. [ 101 ] Applying the unjust enrichment approach, since the evidence summarized above did not support “donative intent”, Mr. Hynes had established that there was no juristic reason from an established category to deny his recovery. [ 102 ] Mr.

Hynes had made out a prima facie case under the third element of the unjust enrichment framework; Ms. Snook was required to establish another reason to deny recovery and show that her enrichment should be retained ( Kerr , at para. 43 ). She failed to do so and Mr. Hynes was entitled to recovery. [ 103 ] On the resulting trust approach, Ms. Snook had not rebutted the presumption of a resulting trust. She had failed to establish, on a balance of probabilities, that Mr. Hynes’ actual intention was a gift of his contributions. [ 104 ] I would allow this ground of appeal. Mr.

Hynes was entitled to a remedy for his contributions to Pearce Avenue. I turn now to consider what remedy is appropriate. The Joint Family Venture Approach to Remedy [ 105 ] The reference to a “joint family venture” appeared in Kerr within the Court’s assessment of available remedies for unjust enrichment.

Traditionally these had been either the declaration of a constructive trust (where the plaintiff could establish a sufficiently substantial and direct link) or a monetary remedy addressed on a fee for service basis ( Kerr , at para. 46 ). [ 106 ] However, in Kerr the Court determined that “not all unjust enrichments arising between domestic partners fit comfortably into either a ‘fee-for-services’ or ‘a share of specific property’ mold” ( Kerr , at para. 80 ).

Sometimes “the unjust enrichment is best characterized as an unjust retention of a disproportionate share of assets accumulated during the course of … a ‘joint family venture’ to which both partners have contributed…” ( Kerr , at para. 80 ). [ 107 ] Mr. Hynes’ capital and operational contributions to Pearce Avenue were substantial and direct. In such circumstances, a proprietary award may be appropriate; however, on this appeal Mr.

Hynes does not seek any remedy for the operational expenses and he seeks a monetary award only for the capital contributions. [ 108 ] The facts of this case represent an example of what the Court recognized in Kerr as unjust enrichment arising from Ms. Snook’s retention of an asset, the value of which was improved by a joint family venture and which resulted in a disproportionate share of the enhanced asset in the hands of Ms. Snook ( Kerr , at para. 80 ). [ 109 ] “There is nothing in Kerr that precludes a joint family venture over part of the assets of an estate” ( Ibbotson v.

Fung , 2013 BCCA 171 , at para. 56 ). [ 110 ] Where monetary relief is granted it will not necessarily represent an equal share because it “should be assessed by determining the proportionate contribution of the claimant to the accumulation of wealth” (Julien Payne & Marilyn Payne, Canadian Family Law , 7th ed. (Toronto: Irwin Law Inc., 2017), at 54, citing Kerr , at para. 81 ).

[ 111 ] In this respect, a court must make a general approximation based on the evidence of the balance of equities on both sides ( Ibbotson , at para. 83 , citing Kerr , at para. 102 ). [ 112 ] A monetary remedy (on a value received basis) requiring Ms. Snook to reimburse Mr. Hynes for the $42,739.29 in capital contributions described in paragraph 89 herein, is appropriate. [ 113 ] I would allow this ground of appeal and substitute an order entitling Mr.

Hynes to a restitutionary monetary remedy of $42,739.29 for his contributions to the Pearce Avenue property (plus pre judgment interest from September 2006 and post judgment interest). This should be set off against the amounts owing by Mr. Hynes to Ms. Snook. Issue 6 - Did the Judge Err in the Quantum and Duration of Partner Support? Calculation of Mr.

Hynes’ Income Reliance Upon the Federal Child Support Guidelines [ 114 ] Although never married, the parties agreed at trial and before this Court that the income determining provisions of the Federal Child Support Guidelines, S.O.R./97-175 (the “ Guidelines ”), could guide the assessment of income and spousal support claims and inform the calculation of Ms.

Snook’s partner support claim, if entitlement was found. [ 115 ] Paragraph 6.1 of the Spousal Support Advisory Guidelines (July 2008) ( SSAG) states: The starting point for the determination of income under the Spousal Support Advisory Guidelines is the definition of income under the Federal Child Support Guidelines . [ 116 ] In the absence of equivalent provisions in

Part III of the Family Law Act , I agree that these sections could guide the judge’s assessment of income, however, the judge was not required to apply them. [ 117 ] Nevertheless, it is implicit from his reasons as a whole that the judge did rely upon the Guidelines . In using these as a guide, he was required to apply the provisions correctly. [ 118 ] Consistent with paragraph 6.1 of the SSAG , the judge calculated Mr. Hynes’ annual incomes for the period 2012-2016 by starting with his line 150 total income and then making the adjustments addressed below.

Income Splitting [ 119 ] The judge relied principally on the testimony of SFDL’s chartered accountant in determining Mr. Hynes’ income for purposes of partner support. This evidence supported the judge’s decision to add to Mr. Hynes’ income the wages paid by SFDL to Ms. Snook (as a form of income splitting). Mr. Hynes does not contest the judge’s conclusion on the income splitting adjustment. Reliance Upon Dividend Income Actually Received in 2013, 2015 and 2016 [ 120 ]

Schedule III, sections 5-6 of the Guidelines direct replacement of “the taxable amount of dividends from taxable Canadian corporations … by the actual amount of those dividends …” and replacement of “the taxable capital gains realized in a year … by the actual amount of capital gains realized … in excess of … actual capital losses in that year”. [ 121 ] The judge did not make this adjustment. Instead, he added taxable (or deemed) dividends to Mr. Hynes’ line 150 income for each of the years 2012-2016 (judge’s reasons, at para. 107). [ 122 ] Mr.

Hynes asserts that the correct figures were the actual amount of dividends and capital gains (in excess of capital losses). These figures were provided in Mr. Hynes’ factum and were supported by Mr. Hynes’ income tax returns and notices of assessment. [ 123 ] By means of example, for the 2013 tax year, the judge added taxable dividends of $187,500 to Mr.

Hynes’ line 150 income whereas actual dividends were $135,963.44. [ 124 ] Since the judge relied upon both the Guidelines and the SSAG to calculate partner support, in order to achieve a reliable result, the judge was required to use the actual amount of dividends and capital gains. Imputing Additional Wages to Mr. Hynes from SFDL [ 125 ] In relation to SFDL, the judge’s reasons confirm that he was aware that Mr. Hynes held 100 percent of the shares, and that the company was operating.

The company’s 2012-2016 financial statements had been disclosed, were entered as exhibits and addressed in the testimony of the chartered accountant. The judge was aware that the Canada Revenue Agency had reassessed SFDL’s income for each of the years 2014-2016 with the result that Mr. Hynes’ line 150 income had increased by $44,194, $49,175 and $53,612, respectively. The judge accepted the chartered accountant’s testimony that all of Mr. Hynes’ employment income was derived from SFDL.

These were all appropriate considerations. [ 126 ] However, despite the chartered accountant’s evidence, the judge concluded that he had “insufficient information to make an informed decision on whether [he] should allocate any of SFDL’s retained earnings to [Mr. Hynes’] income for the purpose of support calculations because no one disclosed SFDL’s banking documentation” (judge’s reasons, at para. 109).

[ 127 ] This conclusion led the judge to impute additional wages and bonuses to Mr. Hynes from SFDL because Mr. Hynes “did not explain why his line 150 income in 2014, the year of separation, was much less than in 2013 and 2015” (judge’s reasons, at para. 110). [ 128 ] The judge’s basis for allocating more income to Mr. Hynes from SFDL reflects reliance upon section 18(1) (

a) of the Guidelines but Ms. Snook alleges errors in their application. [ 129 ] Pursuant to section 18(1) (

a) of the Guidelines “Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under

section 16 does not fairly reflect all the money available for the payment of child support, the court may … determine the spouse’s annual income to include … all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year”. [ 130 ] First, since the judge had SFDL’s financial statements, he had evidence of the company’s pre-tax income which is what section 18(1) (

a) of the Guidelines addresses. The banking documentation was not required to impute all or part of the pre-tax income of SFDL. [ 131 ] Secondly, the chartered accountant had testified that SFDL’s need to support both its own long term debt and its guarantees of the debt of the other three companies in which Mr. Hynes held an interest, determined whether SFDL could pay more to Mr. Hynes in a given year.

As the chartered accountant explained, … those guarantees have conditions on them … and so Sea-Force Diving Limited has to maintain a strong financial position to be able to support those guarantees on an annual basis; and they are reassessed each year when we provide the financial statement to … ACOA and … to the Bank of Montreal. So if he takes out more money and puts this into a loss position, it weakens the positions and, you know, then they call them loans. (Transcript, February 23, 2018, at 194-195) [ 132 ] This was pursued by Ms. Snook on cross-examination of the chartered accountant: Q.

So, I was asking you last day why the retained earnings were in the company, and you gave us an explanation. As I understood it correctly, it was to support the guarantees that the company had signed. Did I understand that correctly? A. That was one reason, yes. Q. Okay, what was the other reason? A. The company itself had its own long-term debt that it had to support as well. The retained earnings, you know, part of it is to support the financing of the property and equipment.

Just looking at, say, 2012, the retained earnings were 2,220,000, but the property and equipment was 1,685,000, so you couldn’t take a dividend out of the equipment. You couldn’t reduce it from that. You have to leave the money in there to support the operations of the company, basically. Q. Okay, thank you. (Transcript, February 26, 2018, at 12) [ 133 ] The judge did not explain why he did not accept the chartered accountant’s evidence (which supported why the pre-tax income of SFDL was not available to Mr. Hynes in 2014) and there was no evidence to the contrary. Section 18(1) (

a) was not a reliable basis for the judge to impute all or part of the pre-tax income of SFDL to Mr. Hynes. Imputing Dividend Income from Three Other Companies for the 2014 year [ 134 ] The judge was aware that Mr. Hynes also held 50 percent of the shares in each of Sea Force Properties Inc. (SFPI) and Sea Force Technologies Inc. (SFTI), as well as 40 percent in Sea Force Hyperbarics Inc. (SFHI). He acknowledged that SFPI and SFTI had been the source of dividend income to Mr. Hynes in 2013, 2015 and 2016 (judge’s reasons, at paras. 98-107). The judge referenced all four companies as the “S.F.

Group”. [ 135 ] Although SFDL’s chartered accountant had provided an appreciation of the accounting matters related to the financial statements of SFDL as well as the Canada Revenue Agency’s audit of SFDL, he did not give evidence on the finances of either SFPI, SFTI, or SFHI. [ 136 ] The judge found it notable that Mr. Hynes’ 2014 income did not include any dividends from the S.F. Group; he determined that, since he had heard no evidence as to whether or not these companies were able to declare a dividend in 2014, and that Mr.

Hynes had received dividends in 2013, 2015 and 2016 but not in the year that he physically separated from Ms. Snook, it was significant that James Hynes (Mr.

Hynes’ business partner) did not provide any explanation for the lack of a dividend in 2014. [ 137 ] The judge also relied upon “the lack of consolidated financial statements” (judge’s reasons, at paras. 105-107). [ 138 ] These factors led the judge to “impute a dividend” (from the three other companies) in “2014 equivalent to the average of the dividends actually paid in 2013, 2015 and 2016, or $203,872” (judge’s reasons, at para. 107). [ 139 ] The judge’s reasons for imputing a dividend from the three other companies reflect reliance upon both sections 18(1) (

a) and 19(1) (

f) of the Guidelines . [ 140 ] Several points are worth noting about section 18(1) (a):

(

a) in order to engage

section 18, the payor need not be the sole or majority shareholder of the corporation; (

b) pre-tax income of any “related” corporation may be included; (

c) the onus was upon Mr. Hynes to establish that none of the pre-tax income of the four companies in which he was a shareholder, was available to him ( Hausmann v. Klukas , 2009 BCCA 32 ); and (

d) the corporate income method of imputing income under section 18(1) (

a) of the Guidelines involves a balance between the needs of the recipient or family against a corporation’s right to make management decisions on the appropriate amount of money to retain in the business. It was the method applied by this Court in Gosse v. Sorensen-Gosse , 2011 NLCA 58 , 311 Nfld. & P.E.I.R. 76 . [ 141 ] The evidence at trial supported the conclusion that: 1. SFDL had guaranteed debts of the other three companies (in which Mr.

Hynes’ held either a 40 percent or 50 percent interest); and 2. this fact, coupled with the need to support SFDL’s own long-term debt, was explained by SFDL’s chartered accountant as the reason why more income could not be paid by SFDL to Mr. Hynes in 2014. [ 142 ] It follows from these facts that the three companies in which Mr. Hynes held a 40 or 50 percent interest (SFPI, SFTI and SFHI) were “related” to SFDL and their pre-tax income could be relied upon by the judge as another source of income to Mr. Hynes.

However, without the financial statements, the judge did not know the pre-tax income of either SFPI, SPTI or SFHI. [ 143 ] I turn now to section 19(1) (

f) of the Guidelines which provides an alternate basis for imputing income and was the method applied by this Court in Duffy v. Duffy , 2009 NLCA 48 , 289 Nfld. & P.E.I.R. 132 . [ 144 ] Section 19(1)(

f) states: 19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which include the following: … (

f) the spouse has failed to provide income information when under a legal obligation to do so; … [ 145 ] I will address first the judge’s reliance upon the fact that consolidated financial statements for what he characterized as the S.F. Group of companies were not disclosed (judge’s reasons, at para. 107). [ 146 ] Mr. Hynes asserts that because SFPI, SFTI and SFHI were not “subsidiary” companies, there was no requirement for consolidated financial statements and they did not exist. This position is supported by the Corporations Act , R.S.N.L. 1990, c.

C-36, s. 9 , and CPA Canada Handbook , sections 1591 and 1601. [ 147 ] Further, neither the Family Law Act , the Supreme Court Family Rules , being

Part IV of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42,

Schedule D , nor the Guidelines require disclosure of consolidated financial statements. [ 148 ] Failure to provide consolidated financial statements was not an appropriate basis for imputing income from these three companies to Mr. Hynes. [ 149 ] However, Mr. Hynes was obliged to disclose all financial information relevant to his income and his failure to do so was the second basis stated by the judge for imputing a dividend from the three companies in 2014. [ 150 ] Mr.

Hynes asserts that the judge had “full information regarding [his] income and personal assets and also the income and assets of the only company in which [he] has a majority interest”. [ 151 ] The judge found otherwise and for the reasons stated below, I agree that failure to either disclose the financial statements of three related companies or present evidence to explain the lack of a dividend from either of them in 2014 was a sufficient basis for the judge to impute dividend income to Mr. Hynes in 2014. [ 152 ] Mr. Hynes acknowledges that Ms.

Snook’s assertion of his “willful and deliberate refusal to disclose” was the “focal point” of her arguments at trial. A review of the record explains why. [ 153 ] Ms. Snook served Mr. Hynes on or about May 29, 2015 with a Notice to Disclose requesting, inter alia , a financial statement. [ 154 ] Mr. Hynes’ June 3, 2015 financial statement was largely blank but had the following reference at page 2: 2. I have attached to or served with this form: No financial information because the Applicant and I were not “partners” as that term is defined in the Family Law Act, R.S.N.L. c-F-2.

Alternatively if we were “partners” as defined it the Family Law Act we had ceased to be such prior to February 2010 and thus the Applicant’s claim to “partner support” is statute barred by the limitation period in s. 60 of the Family Law Act.

Therefore the Applicant has no entitlement to my financial information and asking for it is a breach of my privacy rights. As such, no Schedules are filed herewith. (Appeal Book of the Appellant/Respondent by Cross-Appeal,

Part I, Tab 13) [ 155 ] Mr. Hynes’ first property statement was also filed on June 3, 2015. For each category of asset he gave values of either “N/A”, “TBD” or in the single case of the BMO Mortgage “(est)”. [ 156 ] On August 19, 2015 during a case management conference, a judge of the Family Division ordered Mr. Hynes to provide a financial statement and financial information. Mr. Hynes appealed and applied for a stay pending appeal ( see Hynes v. Snook , 2016 NLCA 4 ).

In denying the appeal (and awarding costs on Column 5), this Court stated: [12] Disclosure at the beginning stages of an FLA claim is required by the statute (section 48) and the Rules. Adequate document disclosure is essential to enable the court to fulfill its truth-seeking function. Rule 56A.21(5)(

a) expressly provides the case management judge with the authority to make an order for document disclosure as necessary and the relevance of particular documents is to be determined by the court, not by the position of any one party. Fry J. considered the situations of the parties before her and made an order she thought was appropriate to move the matter forward. She was fully authorized to do so by rule 56A.21(5)(a). [ 157 ] On December 23, 2015, Ms. Snook filed a Notice of Application for leave to file an interlocutory application inter partes for contempt against Mr. Hynes.

Leave was granted and the matter was set to be heard on January 19, 2016 but was postponed. [ 158 ] On January 7, 2016 Ms. Snook filed an Interim Application for partner support. [ 159 ] Mr. Hynes’ next financial statement (amended as of February 2016) disclosed that he was also a shareholder in SFTI, SFPI and SFHI. This financial statement had attached Mr. Hynes’ personal income tax returns for 2011 – 2014 and a

Schedule B showing employment income of $208,000 and dividends of $204,000 for the 2015 tax year. Although his 2015 tax return was not prepared at this time, as sole owner of SFDL, Mr. Hynes was aware in February 2016 that his wages and bonus from SFDL were $422,240, his taxable dividends from SFTI and Manulife were $241,010 and that he would have other income from his rental property and interest (ultimately he reported $6,846.76) for a total line 150 income of $670,096.93. [ 160 ] By the time the contempt hearing was completed in May 2016, the financial statement had been filed. As a result, while Mr.

Hynes was found to have been in contempt, his contempt was purged. [ 161 ] On July 12, 2016 Mr. Hynes was ordered to provide within 15 days, additional disclosure including the financial statements of SFDL from 2012 to 2015. They were filed in a sealed envelope on September 16, 2016. [ 162 ] Mr. Hynes was also ordered to file an Amended Property Statement and he did so on July 12, 2016. It provided values for most assets but not for any of the four companies in which he held an interest. [ 163 ] Ms.

Snook asserts that her frustration with the lack of disclosure led her to abandon the requests and instead rely upon the presumptions applicable to failure to disclose. [ 164 ] Mr. Hynes held 50 percent of the shares in two of the three related companies and 40 percent in the third. He was not in control of the declaration of dividends but, he had the right to receive copies of the financial statements and the right to disclose them. He had the obligation to disclose all his income and all his assets regardless of source. [ 165 ] Mr.

Hynes’ income tax returns disclosed that he had received dividends from two of these companies in 2013, 2015 and 2016. Without the financial statements or relevant evidence from James Hynes or the chartered accountant, the judge did not have evidence of either company’s pre-tax income, retained earnings, or debt and no explanation for whether the pre-tax income of either company was available to pay a dividend to Mr. Hynes. [ 166 ] Mr. Hynes’ failure to disclose all relevant income information provided a reliable basis for the imputation of dividend income to Mr.

Hynes from these three companies. [ 167 ] There was reliable evidence to support the judge’s conclusion that the appropriate amount of dividends to impute to Mr. Hynes from these three companies in 2014 was the average of Mr. Hynes’ 2013, 2015 and 2016 dividends from the same source. Mr. Hynes has failed to establish an error in the judge’s imputation of dividend income to him in 2014. Post-Separation Increases in Mr. Hynes’ Income [ 168 ] Mr. Hynes asserts that in the judge’s calculation of his income, he placed reliance upon post-separation increases. [ 169 ] Mr.

Hynes’ Notices of Assessment for the 2013, 2015 and 2016 tax years reflected total incomes of $569,175, $670,095 and $601,340 respectively. The 2014 year represented an anomaly with total income of only $223,945 in large part because no dividend income was reported. [ 170 ] There is no fixed rule that post-separation increases in income cannot be considered; depending upon the circumstances, such increases can be part of the “condition, means, needs and other circumstances of each spouse” ( Kohan v.

Kohan , 2016 ABCA 125 , at para. 37 ). [ 171 ] Consideration of the evidence as a whole and the relevant factors will inform the question of whether all or part of the payor’s post-separation increase in income should be included in determining appropriate spousal or partner support. [ 172 ] The judge acknowledged that he had discretion to include or exclude post separation increases in Mr. Hynes’ income. The judge had determined that Ms. Snook was entitled to support only on a non-compensatory basis because there was no evidence to support that

Ms. Snook’s role had impacted Mr. Hynes’ income capacity. [ 173 ] In the exercise of his discretion, the judge’s reasons confirm that he also considered the eighteen years that the parties were ‘partners’ (1996-2014), the roles played, that there were no children and that the parties’ financial affairs were not completely integrated. [ 174 ] No error is established in the judge’s exercise of discretion in concluding that none of Mr.

Hynes’ post separation salary and bonus should be considered in the calculation of support (judge’s reasons, at para. 160(b)). [ 175 ] What the judge did respecting dividends was a different exercise. The judge relied upon 2013, 2015 and 2016 dividends to impute a dividend for the 2014 year and include that in Mr. Hynes’ 2014 income. I have already addressed the appropriateness of this. Calculation of Ms. Snook’s Income [ 176 ] At the time of separation Ms. Snook’s sole source of income was her $52,000 annual salary from SFDL. The judge was required therefore to consider Ms.

Snook’s capacity to provide for her own support ( Family Law Act, s. 39(9)(b)) and the measures available, length of time and cost for her to become financially independent ( Family Law Act, s. 39(9)(g)). [ 177 ] The enumerated circumstance of relevance to imputation of income to Ms. Snook was that of being intentionally unemployed or under-employed ( Guidelines, s. 19(1) (a)). When reliance is placed on this subsection there is no necessity to establish bad faith. A three step process to section 19(1) (

a) of the Guidelines has been judicially endorsed ( Bowes , at paras. 38 and 39 ). Where unemployment or under-employment is established, the onus shifts to the other party to establish the reasonableness of his/her position. Even if this is met, the court still faces the difficult task of determining whether income should be imputed and if so, in what amount. [ 178 ] The judge appropriately addressed these considerations at paragraphs 112-134 of his reasons. His review reflects the appropriate factors, the application of proper principles and relevant evidence. [ 179 ] The judge concluded that Ms.

Snook “had not established on the balance of probabilities an inability to work” (judge’s reasons, at para. 134). He considered the evidence she presented on her job search but noted that she did not present evidence that the applications were sent. He characterized her efforts to obtain employment as not “meaningful” (judge’s reasons, at para. 114). [ 180 ] The judge concluded that Ms. Snook could earn $50,000.00 per year from employment and would continue to receive $10,000.00 a year in rental income from Pearce Avenue. Since Ms.

Snook was not reporting this on her income tax returns, it would be treated as non-taxable income. No error is established in these conclusions. Consideration of Ms. Snook’s New Partner’s Income [ 181 ] At paragraph 160(c), citing Zacharias v. Zacharias , 2015 BCCA 376 , the judge “combined” Ms. Snook’s new partner’s income with the $60,000 in combined taxable and non-taxable income he imputed to Ms. Snook. [ 182 ] The judge’s inclusion of $128,000 in income from Ms. Snook’s partner, Mr. McCall, is reflected in the judge’s calculation at Table 2, para. 166, of his reasons.

While neither counsel could provide a foundation for the calculations reflected in this Table, both suggest that the judge was attempting to calculate the lump sum equivalent of the $8,285/month in partner support he ordered for a term of 17 years, 9 months. [ 183 ] Respectfully, neither Zacharias,

section 39 of the Family Law Act nor the income determining provisions of the Guidelines supports the principle of combining a claimant’s income with a new partner’s income in the calculation of partner support. This is an error requiring this Court to recalculate Ms. Snook’s support. Correct Calculation of the Parties’ Incomes [ 184 ] The judge relied on $564,593 in income for Mr. Hynes and $188,000 for Ms. Snook (judge’s reasons, at para. 160(

b) and (c)). [ 185 ] The errors that I have identified earlier herein support that the correct calculation of Mr. Hynes’ income for purposes of calculation of partner support is: Line 150 from SFDL $268,141 ($223,947 plus CRA Reassessment of $44,194) Plus Ms. Snook’s salary/income splitting $ 52,000 = Employment Income $320,141 Plus Dividends imputed $165,488 (actual before tax SFTI, SFHI and/or SFPI dividends averaged for 2013, 2015 & 2016 $135,963, $204,000 &

$156,500 = 496,463 ÷ 3) Add Extra Capital Gains $ 5,279 $490,908 [ 186 ] The correct calculation of Ms. Snook’s income is $50,000 taxable and $10,000 non-taxable (rental income). Amount of Partner Support [ 187 ] The parties’ respective incomes are only one of many considerations for the exercise of discretion on the amount of partner support. Where the parties are not spouses, section 39(9) of the Family Law Act sets out a non-exhaustive list of considerations for the “amount of support in relation to need”.

The “amount” ordered will depend on the quantum and duration of the order as they are interrelated parts of the formula under the SSAG. The judge’s errors on the parties’ incomes therefore impacted the exercise of his discretion on both quantum and duration. [ 188 ] This is an appropriate point to address the Ontario Court of Appeal decision in Fisher v. Fisher , 2008 ONCA 11 , which had been cited by the judge at paragraph 166 of his reasons. While Fisher was decided under the provisions of the Divorce Act , it provides guidance to the assessment of Ms.

Snook’s partner support award. [ 189 ] The duration of a spousal support award under the without child support formula is discussed at

section 7.5 of the SSAG. The formula generates ranges for duration with the ends of the ranges determined as follows: • a minimum duration of half the length of the marriage; and • a maximum duration of the length of the marriage. [ 190 ] This range was acknowledged by the Court in Fisher , at para. 104 .

As Fisher explained, the without child support formula of the SSAG “purports to incorporate both compensatory and non-compensatory support objectives by focusing on a combination of the difference in the gross incomes and the length of their cohabitation” with “duration ranges from .5 to 1 year for each year of the marriage” (para. 104). [ 191 ] The Court in Fisher also recognized that “a medium-term cohabitation is from five to nineteen years …” (para. 105) and that the SSAG “specifically do not apply at all … where spouses earn above $350,000” (para. 96). [ 192 ] The parties in this case had a medium term relationship and the judge acknowledged that Mr.

Hynes’ income exceeded the threshold. The judge did not reference the range of .5 to 1 year of support for each year of cohabitation. [ 193 ] At issue on appeal in Fisher was the trial judge’s time limited award of spousal support following a 19-year childless marriage. The husband’s income did not exceed $350,000. The appellate wife had received $2,000 in monthly support as a result of an interim order which was in effect until the end of trial (approximately 17 months).

The primary issue on appeal was whether an indefinite spousal support award was warranted. [ 194 ] The Court of Appeal identified errors of fact by the trial judge regarding the wife’s employment and potential new relationship as well as the husband’s obligation to his second family. These errors required that the award be set aside and an assessment of the appropriate quantum of spousal support by the Court of Appeal ( Fisher , at para. 32 ).

I have reached the same conclusion in this case. [ 195 ] The Court of Appeal in Fisher upheld the judge’s determination of a time limited award but substituted an order of $3,000 monthly from the date of the interim order (October 1, 2004) until March 1, 2008 and thereafter support of $1,500 a month from April 1, 2008 to a final payment of September 1, 2011 for a total duration of approximately 7 years.

The Court concluded that “this termination order is designed to provide the appellant with support to enable her to become financially independent, or adjust to a lower standard of living within seven years” ( Fisher , at para. 115 ). [ 196 ] In the within case, the trial judge considered the parties’ assets and means which would affect Ms. Snook’s capacity to provide for her own support and Mr. Hynes’ capacity to provide it. Although he expressed caution in the application of the SSAG (because Mr.

Hynes’ income exceeded $350,000), nevertheless, he relied upon the quantum and duration generated by the SSAG to establish the amount of Ms. Snook’s support. In doing so, as previously stated, the judge used incorrect incomes for the parties. [ 197 ] I turn now to consider the facts established on the evidence before the judge in this case. [ 198 ] Ms. Snook was 47 years old on the day of separation; she immediately moved into a new relationship with shared accommodation; she had no health issues. Mr. Hynes was 54 years old.

There was no evidence that he had re-partnered and he had numerous health issues. [ 199 ] Ms. Snook’s post separation standard of living differed somewhat from that she enjoyed as Mr. Hynes’ partner. Mr. McCall earns only $128,000 a year in comparison to Mr. Hynes’ four-year annual (2013-2016) average of +/- $500,000. Ms. Snook and Mr. McCall do not own a property in Florida but have access to Mr. McCall’s mother’s home there; Mr. McCall also has a seasonal property in Ontario. [ 200 ] Ms. Snook is entitled to receive an award almost twice the amount calculated by the judge for her interest in the St.

Philip’s property ($336,714.85 versus $170,222.23). However, she owes Mr. Hynes $42,739.29 for Pearce Avenue and (as will be apparent from

Issue 7) Ms. Snook is not entitled to the $15,000 award for loss of use of the vehicles. Once Ms. Snook receives the net funds, she has several options avai

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