2016 NLCA 68, 2016 NLCA 68

Kimberley Best (appellant/respondent by cross-appeal) v. Anthony Best (respondent/appellant by cross-appeal) (15/61 and 15/73) Indexed As: Best v. Best 2016 NLCA 68 1 C.A.N.L.R. 305 Court of Appeal of Newfoundland and Labrador Green C.J.N.L., Welsh and Barry JJ.A. November 29, 2016

Summary While on a trekking trip to Nepal, the parties participated in a blessing ceremony which the appellant, Ms. Best, contended constituted a valid marriage. The parties lived together and had two children. Upon separation, they entered into a separation agreement, drafted by the respondent’s sister, a lawyer, which provided for a set monthly amount of child support. Ms. Best challenged the amount, stating that it was an error and should be based on Mr. Best’s income. The trial judge found the parties were not legally married and upheld the amount of spousal support as set out in the agreement. Ms.

Best appealed. Mr. Best cross-appealed requesting an accounting regarding special expenses related to child support under the Agreement, as well as listing and sale of the parties cabin. Held: Appeal dismissed, cross-appeal allowed Welsh J.A. (Green C.J.N.L. and Barry J.A. concurring): R ule 56A.22(2) of the Rules of the Supreme Court, 1986 provides that the court may accept a document that appears to be proof of marriage in a foreign jurisdiction as proof of the marriage unless the contrary is proved. Whether a document is sufficient to satisfy the rule is a factual determination.

A person attempting to rely on a foreign marriage has the burden of proving its validity by establishing the essential requisites of a valid marriage according to the law of the foreign country on a balance of probabilities. Information as to the law of the foreign country must be provided by someone conversant with the law of that jurisdiction; generally the courts have required expert evidence. Where appropriate, it is possible that reliance may be placed on information obtained from a reliable electronic source where it is provided to the court by means of an explanatory affidavit.

In this case, the marriage law in Nepal was not proven. Further, applying the law in this Province, it could not be said that a blessing ceremony would be sufficient to constitute a legally valid marriage. The judge did not err in concluding there was no valid marriage for the purposes of recognition of the marriage in Canada. The applications judge found that the separation agreement provided for a fixed monthly amount of spousal support, without reference to Mr. Best’s income. In making his decision, the applications judge relied largely on Ms.

Best’s decision to ignore the advice of her counsel, who advised that more financial information should be obtained before the Agreement was finalized and signed. Given the particular quantum of monthly spousal support, it could be inferred that this amount was likely generated from an application of the Spousal Support Guidelines . However, that does not lead to the conclusion that the Agreement should be amended by applying the Guidelines to Mr. Best’s corrected income. The purpose of spousal support may be compensatory, contractual or non-compensatory in nature.

In general, the intention is that the support should promote the economic self-sufficiency of each party within a reasonable period of time, taking account of all the circumstances. In this case, given Ms. Best’s profession as an experienced nurse, in the absence of the separation agreement, it could be expected that spousal support would have been limited in duration to less than ten years. By her conduct, Ms. Best must be taken to have accepted as adequate and appropriate the quantum and duration of spousal support as set out in the separation agreement regardless of any actual level of income Mr.

Best might have been earning. The agreement is affirmed in its entirety. Mr. Best’s cross-appeal was unopposed and therefore granted.

Mr. Best is entitled to costs of the appeal as the successful party, apart from the costs of an application that was filed regarding Mr.Best’s failure to file a factum, since that application would have been unnecessary if Mr. Best had complied with the Rules of Court. Cases cited: L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 R.P. v. R.C., 2011 SCC 65, [2011] 3 S.C.R. 819 Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420 Beck v. Beck, 2012 NLTD(F) 34, 329 Nfld. & P.E.I.R. 287 Counsel: Keith S. Morgan, for the appellant; Jean V. Dawe Q.C., for the respondent.

This appeal was heard on October 11, 2016 before Green C.J.N.L., Welsh and Barry JJ.A. The following judgment was delivered on November 29, 2016 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A. [1] The focus of this appeal is the validity of a provision for spousal support in a separation agreement, and the effect on theseparation agreement as a whole if that provision is set aside. Ms. Best also seeks a declaration that she was legally married as a result of a ceremony conducted in Nepal. BACKGROUND [2] In 1997, the parties were working in Saudi Arabia.

While on a trekking trip to Nepal, they participated in a “blessing ceremony”involving a local Lama and some Buddhist monks. A certificate, apparently provided by the tour operator, was signed by the Lama todocument the ceremony. Ms. Best submits, contrary to the position of Mr. Best, that the ceremony constituted a valid marriage. In 2003,the parties, who are the parents of two children born in Saudi Arabia, took up residence in this Province. In 2006, Mr. Best begancommuting to Alberta for work.

In April 2008, he incorporated a professional corporation, and was paid a salary by the corporation. [3] The parties separated sometime between December 2008 and May 2009. They executed a separation agreement (the“Agreement”) in December 2009. The Agreement was drafted by Mr. Best’s sister, a lawyer, who advised the parties to obtain separatelegal advice, which both did. [4] Ms. Best initially submitted in her application in the Trial Division that she signed the agreement under duress and threats fromMr. Best.

However, she did not maintain that position at the time of the hearing and, instead, indicated that she accepted the Agreementas valid and enforceable with the exception of the calculation of spousal support. The applications judge noted Ms.

Best’s change ofposition and added (2015 NLTD(F) 23, 369 Nfld. & P.E.I.R. 163: [38] … it is clear to me, having heard all of the evidence and considered all of the affidavits and documentation, that there was in factno fraud, no misrepresentation, no intimidation and certainly no duress. … [5] The applications judge concluded that the ceremony in which the parties participated could not be recognized in Canada as avalid marriage. He accepted that a mistake had been made in stating Mr. Best’s income in the Agreement and ordered that child supportbe adjusted retroactively. The judge denied Ms.

Best’s request to adjust the amount of spousal support, and confirmed the Agreement asvalid and enforceable. ISSUES [6] At issue in this appeal is whether the applications judge erred (1) by failing to conclude that spousal support provided in theAgreement must be recalculated, and (2) by failing to find that the parties were legally married. By means of cross-appeal, Mr. Bestrequests an accounting regarding special expenses related to child support under the Agreement, as well as listing and sale of the cabin.

ANALYSIS Were the Parties Legally Married? [7] The use of a document to establish that parties are legally married where the marriage was conducted in a foreign country isaddressed in rule 56A.22(2) of the Rules of the Supreme Court, 1986, which provides: The court may accept a document that appears to be proof of marriage in a foreign jurisdiction as proof of the marriage unless thecontrary is proved. [8] Whether a document is sufficient to satisfy the rule is a factual determination which depends on the particular document and thecircumstances.

Relevant considerations for the analysis where a document is insufficient on its face are discussed in Lewkowicz v.Korzewich, (SCC), [1956] S.C.R. 170. [9] In short, a person attempting to rely on a foreign marriage has the burden of proving its validity by establishing the essentialrequisites of a valid marriage according to the law of the foreign country. Whether there is sufficient evidence in a particular case is aquestion of fact requiring proof on a balance of probabilities.

Information as to the law of the foreign country must be provided bysomeone conversant with the law of that jurisdiction; generally the courts have required expert evidence. On that point, I refer to thesummary in Halsbury’s Laws of Canada, Ascertaining Foreign Law (2011 Reissue), at paragraph HCF-98: … It is not necessary that the expert be authorized to act as a legal practitioner in the place of the law in question, but he or she should bea person whose occupation makes it necessary to have knowledge of the relevant law.

The competence and qualification of the expertwitness is a matter for the assessment of the court. [Gold v.

Reinblatt, (SCC), [1929] S.C.R. 74.] I would add here that, in this electronic age, where appropriate, it is possible that reliance may be placed on information obtained from areliable electronic source where it is provided to the court by means of an explanatory affidavit. [10] Finally, in Halsbury’s Laws of Canada, Conflict of Laws (2011 Reissue), the issue of the applicable law where the foreign law isnot proven is discussed at paragraph HCF-99: … Where the foreign law is not proved sufficiently so that it may be applied, the court applies its own law as the only law available to it.

This is true for judicially determined legal rules, for statutory provisions and for rules of construction. [See, for example, Pettkus v.Becker, (SCC), [1980] 2 S.C.R. 834.] … [11] In this case, the parties relied on the information provided by a tour operator who assured them that a blessing ceremony wouldconstitute a valid marriage. The parties are sophisticated professionals.

While a certificate apparently provided by the tour operator wassigned by the Lama, there is no indication that the parties ascertained from a reliable source, such as a Canadian embassy or consulate orsomeone conversant in the laws of marriage in Nepal, what the requirements were for a valid marriage in that country. For instance,questions as to such issues as residency requirements and registration of the marriage were not addressed. [12] Further, ordinarily, the focus of a tour guide’s business is to provide a service as requested by the client. In this case, he couldprovide a blessing ceremony.

In the absence of a basis for assessing the reliability of his statement that this constituted a valid marriage,or that he was in a position to make such a statement, the information is of little or no weight. [13] The applications judge concluded that the certificate from the blessing ceremony “lacks the most basic indicia of authority thatonly the most naive of persons would accept as valid” (paragraph 27). In rejecting Ms.

Best’s submission that the Buddhist blessingceremony constituted a valid marriage, the judge explained: [15] … [N]either of the parties made any sufficient or reasonable inquiry as to what was required to obtain the proper documentationfor a Nepalese marriage.

The marriage certificate was a complete fabrication for the sole purpose of obtaining married couples’ housingin Saudi Arabia. [The parties] are two professional and intelligent people who knew, or ought to have known, that some reasonableinquiry had to have been made to determine if the form of ceremony in which they had engaged would constitute conformity with thelaws of Nepal and then be recognized as a valid marriage by Canada. … [14] In this case it is clear that the marriage law in Nepal was not proven.

Further, applying the law in this Province, it could not besaid that a blessing ceremony would be sufficient to constitute a legally valid marriage. (See qualification to perform a marriage andlicence and registration requirements in the Marriage Act, SNL 2009, c. M-1.02.) In the result, there is no basis on which to concludethat the applications judge erred in determining that the parties had not been legally married for purposes of recognition of the marriagein Canada. The Separation Agreement [15] The parties’ separation agreement deals with, among other things, child and spousal support.

Clause 7 addresses the calculationof income for purposes of determining child support. The Agreement provides for payment of support in accordance with the FederalChild Support Guidelines with a “straight setoff of the respective basic child support obligations of each” party. The Agreementprovides for annual review of the amount of child support. Mr. Best’s income to be used for calculating the quantum of the initialpayments was incorrectly stated to be $178,932. Both parties concede that this was a significant but innocent error, and that his incomeshould have been assessed at approximately twice that amount.

The applications judge ordered an appropriate adjustment to Mr. Best’schild support payments. For purposes of this appeal, there is no issue between the parties regarding child support unless the Agreementis set aside in its entirety. As discussed below, the outcome of this appeal is to confirm the Agreement.

[16] Regarding spousal support, Ms. Best submits that the trial judge erred when he determined that the amount payable by Mr. Bestis limited to the quantum and duration as set out in the Agreement. Under clause 12: (

a) The Husband covenants and agrees that he shall pay to the Wife as periodic spousal support the sum of Three Thousand ThreeHundred and Seventy-four Dollars ($3,374.00) per month commencing on June 01, 2009 and continuing on a monthly basis thereafteruntil the earliest happening of one (1) of the following events, at which time periodic spousal support shall immediately terminate: (

i) the youngest child … reaching the age of Eighteen (18) years [approximately ten years’ time]; (ii) the annual income of the Wife … exceeding One Hundred Thousand Dollars ($100,000.00) per annum; (iii) the Wife cohabiting with another in a common law relationship; (iv) the marriage of the Wife. (

b) Prior to entering into this Separation Agreement, the Wife has considered her present financial circumstances and her prospects forthe future as well as those of the Husband. The Wife acknowledges that the financial situation of the Husband and/or the Wife maychange in the future. … [17] In confirming the spousal support as set out in the Agreement, the judge explained: [35] There was no reference [in the Agreement] whatsoever that the amount of spousal support was being made on the basis of Mr.Best’s income as was clearly the case stated in relation to child support … .

The wording in relation to spousal support is clear andunambiguous and sets a fixed amount for a fixed period. Ms. Best had the draft of this separation agreement in her possession for overthree months during which time she had sound legal advice from competent and respected legal counsel who advised her not to sign theagreement. Ms. Best, who is a professionally educated person, with full knowledge of the contents of the document insisted on signingthe agreement and told her lawyer, Marina Whitten, Q.C., that she no longer wanted her advice. [36] It is not believable that Ms.

Best would not have read those provisions before she signed on to the agreement and accepted theamount of spousal support as part of the whole settlement package. I am satisfied from the evidence before me, especially that of MarinaWhitten, that on having sought her advice, Ms. Best then refused to accept that advice and signed the separation agreement. Ms.Whitten, according to her evidence, advised Ms. Best that she would need further financial information from Mr. Best before she couldfully advise Ms. Best on the settlement agreement. On that basis, she advised Ms. Best not to sign the agreement. Ms.

Whitten testifiedthat she had a meeting at her office with Ms. Best and stated, “We went through the document paragraph by paragraph and Ms. Bestunderstood what it said.” Ms. Whitten added that, “We agreed to get more financial information before the next meeting. The mainthing being the financial statements.” However, on December 1, 2009, according to the evidence of Ms. Whitten, Ms. Best telephonedMs. Whitten and informed her that she did not want any further advice from her and that she intended to sign the agreement. Ms.Whitten testified that she advised Ms. Best not to sign the separation agreement but Ms.

Best did sign it in Ms. Whitten’s office and tookthe originals with her “against my advice”, according to Ms. Whitten. [18] In making his decision, the applications judge relied largely on Ms. Best’s decision to ignore the advice of her counsel, Ms.Whitten, who advised that more financial information should be obtained before the Agreement was finalized and signed. The judgealso concluded that the amount of spousal support was not based on Mr. Best’s income.

The lawyer who prepared the Agreementtestified: I thought, my recollection was [the figure] came from the Spousal Support Guidelines but I can’t tell you definitively because I haven’tlooked at the Spousal Support Guidelines to confirm that that’s the amount. [19] I note that the applications judge did not address this equivocal testimony, but relied on the omission of reference to Mr. Best’sincome in the clauses of the Agreement regarding spousal support.

However, given the particular quantum of monthly spousal support,$3,374, it could be inferred that this amount was likely generated from an application of the Spousal Support Guidelines. However, thatdoes not lead to the conclusion that the Agreement should be amended by applying the Guidelines to Mr. Best’s corrected income. [20] Under the Agreement, Ms. Best would continue to receive spousal support for approximately ten years unless she married, livedin a common law relationship, or earned more than $100,000 per year. If Ms.

Best had taken her lawyer’s advice and awaited furtherfinancial information, and if spousal support was determined applying the Guidelines to the correct income figure, it could not beassumed that the ten-year duration of support would have been offered. Ms. Best submits that, based on Mr. Best’s corrected incomeover a ten-year period, under the Agreement, she lost approximately $700,000. Considering the applicable law, there is no basis onwhich to draw such an inference. [21] The purpose of spousal support may be compensatory, contractual or non-compensatory in nature.

In general, the intention isthat the support should promote the economic self-sufficiency of each party within a reasonable period of time, taking account of all thecircumstances. For example, economic self-sufficiency may not be a viable goal in cases of debilitating illness or a long-term marriagewhere the spouse is of an age, education and experience that employment options are limited at best (L.M.P. v. L.S., 2011 SCC 64,[2011] 3 S.C.R. 775; R.P. v. R.C., 2011 SCC 65, [2011] 3 S.C.R. 819).

In addition, spousal support is intended to compensate therecipient for losses and hardships caused by the marriage such as forgone careers and missed opportunities (Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420, at paragraph 49; Beck v. Beck, 2012 NLTD(F) 34, 329 Nfld. & P.E.I.R. 287, at paragraph 42). [22] In this case, given Ms. Best’s profession as an experienced nurse, in the absence of the Agreement, it could be expected thatspousal support, including compensatory and non-compensatory, would have been limited in duration to less than ten years. [23] By her conduct, Ms.

Best must be taken to have accepted as adequate and appropriate the quantum and duration of spousalsupport as set out in the Agreement regardless of any actual level of income Mr. Best might have been earning. It cannot be said that theapplications judge erred in denying her request to order increased spousal support or in confirming the Agreement.

[ 24 ] In the result, I would confirm the Agreement in its entirety. It is unnecessary to address submissions by the parties dealing with amending other clauses of the Agreement since those submissions were made on the basis that they would be engaged only if the Agreement was set aside. Other Issues – The Cross-Appeal [ 25 ] Nonetheless, Mr. Best requested an accounting regarding special expenses related to child support under the Agreement and an order that the clause regarding the cabin be enforced. At the hearing, counsel for Ms.

Best indicated that she did not contest these requests, and that she agrees to the accounting and to the listing and sale of the cabin. Costs [ 26 ] Ms. Best shall have her costs of the application that was filed on May 26, 2016 regarding Mr. Best’s failure to file a factum since that application would have been unnecessary if Mr. Best had complied with the rules of court. [ 27 ] Regarding costs in the court appealed from, the applications judge gave reasons for ordering the parties to bear their own costs.

The outcome of this appeal has not affected those reasons or conclusion and the judge’s decision is to be accorded deference. Accordingly, there is no basis on which to amend the order, with the result that the parties bear their own costs in the court appealed from. [ 28 ] Being the successful party, Mr. Best is entitled to his costs of the appeal on column 3 of the scale of costs, with the exception of the May 26 th application.

SUMMARY AND DISPOSITION [ 29 ] In

summary, the applications judge did not err in determining that the parties had not been legally married for purposes of recognition of the marriage in Canada. [ 30 ] The Agreement is confirmed. The applications judge did not err in concluding that spousal support is payable in accordance with the terms of the Agreement.

The parties agreed that there shall be an accounting regarding special expenses related to child support and that the cabin shall be listed and sold. [ 31 ] Accordingly, I would allow the cross-appeal to the extent that (1) there shall be an accounting as between the parties regarding special expenses related to child support, and (2) that the cabin shall be listed for sale and sold. This order shall not affect the order as to costs set out below regarding the appeal. [ 32 ] I would dismiss the appeal, with costs of the appeal on column 3 of the scale of costs to Mr.

Best, with the exception of the application filed on May 26, 2016. I would order costs on column 3 of the scale of costs to Ms. Best for the May 26 th application. I would make no change to the order for costs in the court appealed from. Appeal dismissed. Cross-appeal allowed.