2012 NBCA 47, 2012 NBCA 47

COURT OF APPEAL OF NEW BRUNSWICK 100-11-CA CHRISTIAN CALVY (Respondent) APPELLANT - and - DANIELLE CALVY (Applicant) RESPONDENT CHRISTIAN CALVY (Intimé) APPELANT - et – DANIELLE CALVY (Requérante) INTIMÉE Calvy v. Calvy, 2012 NBCA 47 Calvy c.

Calvy, 2012 NBCA 47 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Quigg Appeal from an Order of the Court of Queen’s Bench: July 14, 2011 Appel d’une ordonnance de la Cour du Banc de la Reine : Le 14 juillet 2011 History of the Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: January 12, 2012 Appel entendu : Le 12 janvier 2012 Judgment rendered May 31, 2012 Jugement rendu : Le 31 mai 2012

Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Bell Counsel at the hearing: For the appellant: Monique Veillette For the respondent: Marie-Claude Bélanger-Richard, Q.C. Avocats à l’audience : Pour l’appelant : Monique Veillette Pour l’intimée : Marie-Claude Bélanger-Richard, c.r. THE COURT The appeal is dismissed with costs of $3,000. LA COUR L’appel est rejeté avec dépens de 3 000 $.

English version of the decision of the Court delivered by QUIGG J.A. I. Introduction [ 1 ] The appellant contests a Court of Queen’s Bench decision requiring him to cooperate in facilitating his ex- wife’s purchase of insurance upon his life. The coverage’s intended purpose is to secure her spousal support pursuant to s. 15.2(1) of the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.). II. Background

[ 2 ] The parties had been married for 33 years when they separated in 2007. The husband is 64 years of age and the wife is 70. There were three children of the marriage, one of whom was considered to be a child of the marriage at the time of separation due to his continuing education costs. The husband is a medical doctor and his income was determined to be approximately $300,000 per year. The wife’s yearly income was determined to be approximately $13,000.

At the time of the marriage, the wife was employed as an educator, but suspended her career to move with the husband from France to Canada and raise their family. An interim order signed April 13, 2007, but effective March 22, 2007, ordered the husband to pay spousal support to the wife in the amount of $11,958 per month and to maintain the wife as beneficiary of a life insurance policy, which he held with the Ontario Medical Association. III.

Motion [ 3 ] As a result of information obtained during the interim motion in March of 2007, the wife learned the amount of the husband’s existing life insurance policy, which was expected to secure her spousal support, would be decreasing in value over time. The current amount of $400,000 in insurance will drop to $240,000 when the husband reaches 66 years of age, and will then reduce to only $40,000 when he attains 74 years of age. As such, the insurance that would be payable to the wife in the event of the husband predeceasing her may be insufficient to secure her spousal support payments.

In June of 2011, after numerous unsuccessful attempts at securing the husband’s cooperation, the wife filed a motion requesting, among other things, that she be allowed to secure her spousal support by acquiring an insurance policy on the husband’s life from Familysure and that the husband be ordered to cooperate with and make himself available to the company in order for the wife to obtain the insurance. The insurance the wife sought to obtain through Familysure would guarantee a monthly payment of $9,000 for her lifetime, rather than a lump sum payout. The wife was to pay the premiums.

The wife also stated that, once the Familysure insurance was put in place, she would agree to her removal as beneficiary of the husband’s current life insurance. [ 4 ] The husband did not wish to assist in his wife’s acquisition of this insurance and he opposed the motion, albeit without articulating reasons for his lack of cooperation. After a day of oral argument, the motion judge ordered the following: [TRANSLATION] THE COURT: [...] I will now turn to the main issue here, which is para. 1(b). Paragraph 1(

b) provides that Christian Calvy be ordered to cooperate with and make himself available to Familysure as per their requests so that Danielle Calvy may obtain the life insurance coverage being sought prior to August 2, 2011. The Court thus orders Mr. Christian Calvy to cooperate with and make himself available to the Familysure insurance company, as per their requests, for the purpose of allowing Danielle Calvy to obtain the insurance coverage she is seeking prior to August 2, 2011. Now, as for the second part of the order, made in response to para. 1(

b) of the Notice of Motion, the Court orders Mr. Calvy to meet all of the requirements of the Familysure insurance company as soon as reasonably possible so that the life insurance coverage may become effective prior to August 2, 2011, which, in turn, would ensure that Mrs. Danielle Calvy obtain this insurance coverage on the life of Mr. Calvy at a lower premium than that which would be payable after August 2, 2011. Again, in response to paragraph 1(

b) of the Notice of Motion, the Court orders Mrs. Danielle Calvy to pay, once the life insurance coverage is in place, all premiums necessary to maintain the insurance policy. Accordingly, the premiums will be her responsibility, as she requested. Now, I am going to address the insurance coverage referred to in Justice Lavigne’s order. The order set out in para. A of the interim order made by Madam Justice Lucie A. Lavigne on March 22, 2007, remains in effect until the Court orders otherwise. [...] [Transcript – Hearing, July 14, 2011, pages 13-15] IV.

Issue [ 5 ] The husband lists four grounds of appeal in his Notice of Appeal. He contends the motion judge: [TRANSLATION] a) [...] erred in law in making a final order in the absence of evidence in support of an application to secure payment of spousal support; b) [...] erred in principle in failing to provide reasons in support of paragraph 1 of his Order made on July 14, 2011; c) [...] erred in law by exceeding his jurisdiction in ordering the appellant to cooperate so that the respondent could obtain life insurance coverage on the appellant; and

d) [...] erred in law by granting the remedy requested by the respondent in the context of an interlocutory proceeding in the absence ofany formal demand by the respondent in her Answer and Counter-Petition. V. Standard of Review [6] In family matters, decisions in first instance are given considerable deference. In MacDonald v. MacDonald,2011 NBCA 25, 372 N.B.R. (2d) 179, Larlee J.A. describes the applicable standard of review in the following manner: The standard of review that applies to family matters generally is that the judge's decision must be given considerable deference.

Anappellate court is empowered to set aside or vary a decision or order where it is the product of an error of law, an error in principle, asignificant misapprehension of the evidence or if it is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2 S.C.R.518, [1999] S.C.J. No. 9 (QL) para. 11; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Savoie v. Levesque, 2009 NBCA47, [2009] N.B.J. No. 282 (QL); Ms. P.H. v. Mr. P.H., 2008 NBCA 17, [2008] N.B.J. No. 52 (QL); Milton v. Milton, 2008 NBCA 87,338 N.B.R. (2d) 300, para. 14.; J.E.J. v. S.L.M., 2007 NBCA 33, [2007] N.B.J. No. 249 (QL), para. 35; S.H. v.

V.B., 2007 NBCA 69,321 N.B.R. (2d) 314, para. 2). [para. 7] [7] The standard of review in spousal support cases is also discussed in Milton v. Milton, 2008 NBCA 87, 338N.B.R. (2d) 300, where Larlee J.A. states: [...] In addition we will only interfere with a support order where there has been an error in principle, a significant misapprehension ofthe evidence, or the award is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9(QL), at para. 11 and Pollock v. Rioux (2004), 278 N.B.R. (2d) 351, [2004] N.B.J. No. 467 (QL), 2004 NBCA 98, para. 27). [para. 14] VI. Analysis A.

Applicable Legislation [8] The Divorce Act and the Family Services Act, S.N.B. 1980, c. F-2.2, provide for judicial discretion in thefashioning of spousal support and related security of payment orders:

Spousal support order 15.2

(1) A court of competent jurisdiction may, on application by either or both spouses , make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses , make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1). [Emphasis added.] Ordonnance alimentaire au profit d’un époux 15.2

(1) Sur demande des époux ou de l’un d’eux , le tribunal compétent peut rendre une ordonnance enjoignant à un époux de garantir ou de verser, ou de garantir et de verser, la prestation, sous forme de capital, de pension ou des deux, qu’il estime raisonnable pour les aliments de l’autre époux. Ordonnance provisoire

(2) Sur demande des époux ou de l’un d’eux , le tribunal peut rendre une ordonnance provisoire enjoignant à un époux de garantir ou de verser, ou de garantir et de verser, dans l’attente d’une décision sur la demande visée au paragraphe (1), la prestation, sous forme de capital, de pension ou des deux, qu’il estime raisonnable pour les aliments de l’autre époux. [C’est moi qui souligne.] Security of support payments is provided for under both federal and provincial law. Although it does not apply in the divorce context, s. 116(1) of the Family Services Act provides the court with equivalent authority:

(1) In an application under

section 115, the court may order, (

a) an amount payable periodically, whether monthly or otherwise and whether for an indefinite or limited period, or until the happening of a specified event; (

b) a lump sum to be paid or held in trust; […] (

m) that a spouse who has a policy of life insurance as defined in the Insurance Act designate the other spouse or a child as the beneficiary; (

n) the securing of payment under the order, by a charge on property or otherwise; […] [Emphasis added.] 116

(1) La cour, saisie d’une demande en application de l’article 115, peut ordonner

a) qu’une somme soit versée périodiquement, tous les mois ou à tout autre intervalle, pendant un laps de temps indéterminé ou limité, ou jusqu’à ce qu’un événement donné se produise;

b) le paiement d’une somme forfaitaire ou sa mise en fiducie; […]

m) que le conjoint détenteur d’une police d’assurance sur la vie telle que définie dans la

Loi sur les assurances désigne l’autre conjoint ou un enfant comme bénéficiaire;

n) que le paiement des sommes prévues dans l’ordonnance soit garanti par une charge grevant des biens ou de toute autre façon ; […] [C’est moi qui souligne.] B. Alleged Inadequacy of Evidence / Requirements Dictated by Milton v. Milton [ 9 ] Before this Court, the husband took the position that sufficient security was in place, as a previous interim order for spousal support was in full force and effect, and an insurance policy existed to secure the support. The husband submitted the criteria required to order security (as set out in Milton ) should have been taken into consideration.

According to the husband, the motion judge did not adequately consider the evidentiary foundation which is necessary to order security of spousal support. In Milton , Larlee J.A. proposed the following analytical framework: Trial judges should pay close attention to the evidentiary foundation in support of this type of order securing payment of spousal support. They should consider the following: is the amount of the policy sufficient to secure the support order or is it excessive? In relation to the amount of the spousal support payment, is the amount of the premium reasonable or excessive?

If the support order is time limited, then the period of security should be limited "for as long as support continues to be paid" or "while the appellant has an obligation to contribute to his or her [spouse's] support". Another consideration is whether the policy should be apportioned for the benefit of the former spouse and the children of the marriage. [para. 36] [ 10 ] Counsel for the wife maintains that whether there is enough evidence is a question of fact, and the motion judge had more than enough evidence before him to make the contested order.

She submits the husband was aware he had an obligation to pay spousal support, as it was specifically recognized in his Petition for Divorce. [ 11 ] Counsel for the wife contends s. 15.2(1) of the Divorce Act provides for the securing of spousal support payments, and pursuant to s. 140 (

b) of the Insurance Act , R.S.N.B. 1973, c. I-12, the wife has an insurable interest in the husband’s life. The wife further argues Milton can be distinguished as it involved a final order where a life insurance policy in the amount of $750,000

was already in existence and its premiums were being paid by the insured spouse rather than the beneficiary. [ 12 ] In this case, the wife wishes to obtain a new policy, on which she will pay the premiums, and more than enough evidence was provided to the motion judge to make the determination he did. Insurable interest is another important consideration, due to the amount of spousal support to which the wife is entitled.

In Milton , the amount of insurance ordered might have been considered excessive; yet, after careful consideration of other factors, this Court upheld the trial judge’s order requiring the husband to maintain life insurance in the amount of $750,000 and to name the wife as beneficiary. [ 13 ] However, t he Milton criteria mostly reflect concern with the additional financial burden imposed by the premiums on the party responsible for spousal support payments. In this case, considerations tied to the sufficiency of the policy, the amount of the premium, and the duration of the security must be applied differently.

The wife already considered the amount of premiums she could afford to ensure her financial security. Should she overpay for the premiums, this would have immediate consequences on her present well-being. In the circumstances of this case, it is doubtful whether the premiums should be taken into consideration as part of the wife’s expenses if an application is brought for variation of spousal support. This is because she consistently offered to pay the premiums herself, and this request was reflected in the motion judge’s order. [ 14 ] In my view, the wife’s request meets the criteria in Milton .

The amount of insurance is not excessive, nor is the premium. This case concerns a long-term marriage (33 years), parties who are 64 and 70 years of age respectively, with the payor spouse earning in excess of $300,000 annually. There is little chance of the support being time-limited. Therefore, the interlocutory nature of these proceedings is inconsequential. The amount of insurance and the premium, which will be paid by the wife, have been disclosed. As the evidence required by Milton has been adduced, I would reject this ground of appeal. C.

Sufficiency of Reasons [ 15 ] The husband contends the motion judge erred in principle by not providing sufficient reasons for the following order: [TRANSLATION] The respondent, Christian Calvy, shall cooperate with and make himself available to Familysure, as per their requests, in order for the appellant, Danielle Calvy, to obtain life insurance coverage on the life of Christian Calvy prior to August 2, 2011.

The respondent, Christian Calvy, shall meet all of the requirements of Familysure as soon as reasonably possible so that the applicant, Danielle Calvy, may obtain the insurance coverage prior to August 2, 2011, and thus take advantage of the lower premium available before that date.

Once such insurance coverage is in place, the applicant, Danielle Calvy, shall pay the premium for this insurance coverage on the life of Christian Calvy. [Formal order, p.2] According to the husband, Rules 1.03(2) and 2.02 of the Rules of Court were the sole legal basis for this order, and he argues the supporting reasons are deficient. [ 16 ] In N.E.R. v. J.D.M. , 2011 NBCA 57 , 377 N.B.R. (2d) 147 , the Court discussed the sufficiency of reasons in a family law context. In doing so, it quoted from P.R.H. v. M.E.L. , 2009 NBCA 18 , 343 N.B.R. (2d) 100 : In R. v. Walker , [2008] S.C.J.

No. 34 (QL) , 2008 SCC 34 , the Court emphasized that the parties are entitled to know why the judge reached his or her decision, and that reasons must be sufficient to allow for appellate review. However, an appellate court is not to intervene merely because a trial court did a poor job in expressing itself. The Court held that reasons are sufficient if they are responsive to the live issues of the case and the parties' key arguments. Sufficiency of reasons must be measured by the degree to which they respond to the substance of what was in issue.

The live issues of the case must be dealt with, and the basis for the ruling must be clear. The Supreme Court's most recent pronouncement concerning the issue of adequate reasons for judgment is found in the decision of R. v. R.E.M. , [2008] 3 S.C.R. 3 , [2008] S.C.J. No. 52 (QL) , 2008 SCC 51 , in which McLachlin C.J.C. advocates a functional context-specific approach to the consideration of adequacy of reasons.

Courts of Appeal which are considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered. The function of the reasons is to tell the affected parties why the decision was made, to provide public accountability and to permit effective appellate review. The reasons need to show the path the judge followed from the evidence to the factual findings to the legal conclusions.

This approach was followed by this Court in New Brunswick (Minister of Family and Community Services) v.

T.L.M. (Litigation guardian of), [2009] N.B.J.

No. 19 (QL) , 2009 NBCA 8 , in which Richard J.A. discusses the question of sufficiency of reasons to be applied in child protection matters. [paras.12-13] [Emphasis is mine.] [ 17 ] Considering the first paragraph of the formal order in the context of the reasons in their entirety, as well as the evidence and arguments at the hearing of the motion, I am of the opinion that the motion judge applied the correct legal principles and made no error of law in his determination that the husband must cooperate with the wife in her acquisition of life insurance to secure her spousal support. [ 18 ] Although s. 15.2(1) of the Divorce Act was cited neither in the transcript of the July 14 decision nor in the formal order, the motion judge’s reasons as a whole demonstrate he was aware of his discretionary power to craft an order securing spousal support payments.

The support order was made by another judge in a previous motion, however the wife’s concern on the second motion was to secure these payments.

On this issue, the motion judge found the parties [TRANSLATION] ....“were not at all taken by surprise and the circumstances were such that they were sufficiently prepared to deal with this issue [during the hearing that took place the previous day]”... , thereby indicating the parties were both aware of the issue they were to litigate. [ 19 ] In addition to demonstrating the motion judge’s awareness of the live issues in the case, the transcript contains many passages where he directly responded to the parties’ key arguments: [TRANSLATION] THE COURT: [...] The argument appears to be that a motion to amend should have been made instead of instigating the proceedings presently before the Court.

I would make the following remarks in this regard.

The Notice of Motion in this case does not seek to set aside, decrease or change anything with respect to paragraph A of the order [...]. [...] The [husband] is being asked to cooperate with and make himself available to the Familysure insurance company so that the [wife] may obtain life insurance coverage that is different from that [described] in [paragraph A] of the order, and this is due to the fact that Danielle was concerned because she discovered [...] that the insurance would be decreasing in value over time [...]. [...] She does not seek to change what is already in place in the order. [...] Rules 1.03(1) and 2.02 [provide that] even if the procedure [is] being followed is not exactly as prescribed, this should not impede [...] the authority from deciding the issue on its merits. [...] This was a very simple issue, the issue of making oneself available to help [his wife] set up and establish life insurance coverage. [...] A further argument was raised on this issue to the effect that the Court lacked jurisdiction to do what was being asked on the ground that it had no specific statutory or legislative authority to entertain the claim.

However, the issue of life insurance on the life of a support payor, whether it be child support or spousal support, is an issue routinely dealt with by our courts. [ 20 ] Both findings on the part of the motion judge were responsive to the husband’s arguments at the hearing, and to the wife’s request in her notice of motion that the husband [TRANSLATION] ...“be ordered to cooperate with and make himself available to Familysure, as per their requests, for the purpose of allowing Danielle Calvy to obtain the life insurance coverage she is seeking prior to August 2, 2011”. [ 21 ] Rules 1.03(2) and 2.02 were not the only legal basis for the motion judge’s order, and his reasons meet the test enunciated in P.R.H. v.

M.E.L. Those rules were relied upon solely to dismiss the argument that an additional motion was required. Moreover, there is an express finding to the effect the wife requested something which the previous order did not provide for, in light of new information regarding the husband’s existing life insurance policy, thereby precluding the need for another motion. I find no error in this finding of mixed fact and law. [ 22 ] In brief, the ground of appeal with respect to the sufficiency of reasons is without merit because the motion judge addressed the key issues and arguments. D.

Motion Judge’s Jurisdiction / Incomplete Motion [ 23 ] The husband has divided this argument into two parts. First, he contends the motion judge did not have jurisdiction to determine the issues. Second, he submits the evidence before the judge was incomplete. I disagree with both propositions.

(1) Jurisdiction [24] As discussed, the motion judge relied upon s. 15.2(1) of the Divorce Act, which authorizes the imposition ofterms and conditions upon spousal support payments. This provision has often been applied by the courts, usually to order themaintenance of an insurance policy on the life of the payor. On most occasions, the payor is responsible for the premiums. As indicated,these were the facts in Milton. [25] In Thurrott v. Thurrott, 2011 NBQB 125, [2011] N.B.J.

No. 143 (QL), a judge of the Family Divisiondetermined a wife could purchase life insurance insuring the life of her former spouse in order to secure spousal support payments. Theparties had been married for 30 years. The husband was 58 years of age and the wife was 54. The judge stated: Mrs. Thurrott seeks an order securing her spousal support payments through life insurance.

Section 15 of the Divorce Act gives the court authority to make such an order. The New Brunswick Court of Appeal in Milton v. Milton, 2008 NBCA 87 found that such orders should not be arbitrary. Inother words, the court should not simply assign an insurance policy as security for a spousal support order, or an order for child support.There should be some evidence to support the amount of insurance needed to fund a support order, properly invested. In this case, none of that evidence was presented. I have no idea what Mr. Thurrott has in life insurance either privately or throughemployment.

I do not know what amount should be required to life insure the spousal support order. I do however, believe that support orders should be secured, where, and if possible, so as to avoid problems in the future, should thepayor die during the time that he/she has an obligation to pay support. In this case, Mrs. Thurrott shall have the right to seek out and purchase a life insurance policy, insuring the life of Mr. Thurrott in anamount of her choosing and at her expense. Mr.

Thurrott shall execute any documents reasonably required for this purpose, and shallcooperate with the insurer for this purpose. [paras. 219-224] [26] In Beattie v. Ladouceur, [2002] O.J. No. 5501 (S.C.J.) (QL), the respondent owed the applicant $517,757.46 inretroactive child support. The Court had no hesitation in ordering the respondent to submit to medical testing and to cooperate with theapplicant in her acquisition of an insurance policy on his life to secure the amount owed.

The Court stated: It is not unusual for Judges of this court to require payor spouses to secure spousal or child support payments by ordering the payor toobtain a policy of life insurance. These Orders are frequently made. Mr. Greenberg did not question this Court's jurisdiction to make suchOrders. Rather, he questions whether the Court has jurisdiction to order medical tests. He did not raise any concern with respect to thefact that Ms. Beattie would be paying the premiums. This is also not an unusual provision.

When a Judge makes an order that a payor obtain life insurance, it is implicit in that Order that the payor will do what is required toobtain same. The payor must contact an insurer, complete a questionnaire and undergo whatever medical testing is required. Theapplication for life insurance attached to the Applicant's Affidavit and referred to above illustrates these requirements.

While theseOrders are commonplace, I was provided with no case law from Counsel for the Respondent that in any way questioned the Court'sjurisdiction to make such Orders and more specifically, the requirement of the payor to undergo medical testing. Mr. Hunter asked a verytelling question. If the Order for obtaining a policy of life insurance is a worthy one, how can that be achieved without the usualparamedic/nurse testing required by insurance companies? I am in no doubt that such Orders, which serve to secure child and spousalsupport fulfill necessary and worthy objectives both legal and societal.

In the case at hand, Ms. Beattie seeks to secure the child supportordered by the courts and costs associated with collecting same for many years. It is Mr. Ladouceur's refusal to honour his court orderedobligations that has resulted in these costs. I am in no doubt that the Order requested in this case is fair, appropriate and worthy. [paras.17-18]

[ 27 ] In my view, the motion judge possessed the requisite jurisdiction to make the order under appeal. This is not a case where the payor spouse adduced evidence in support of valid reasons for opposing the payee spouse’s acquisition of life insurance to secure spousal support payments. The appellant did not offer any reason why he should not be compelled to cooperate, and counsel for the wife submitted as follows: [TRANSLATION] MS. BÉLANGER-RICHARD: Really, Your Honour, an invasion of privacy? Again, there is nothing in the pleadings in this regard. Let’s look at this. Let us have a look at his affidavit.

That is exactly what he is pleading. It’s not – as I have already stated, I think my client – Ms. Veillette did this because I said that there is nothing in the affidavit that says that this man is afraid of needles, that it would inconvenience him to have to go to the hospital, etc., etc. There is nothing in there about that. We’re talking about a psychiatrist who is used to going to the hospital, Your Honour. Therefore, as I’ve said, there is no valid reason and he (inaudible) there is nothing about an invasion of privacy in the pleadings, Your Honour. Ok. This isn’t – this isn’t the issue.

This is not the fact. It’s all the other things, that it is too expensive, that this is a hare-brained idea, that she might die at the same time as him, that she is in no better health than he is, that she has spent as much as he has, and that the parties’ financial situation is – is not pretty, but both are responsible for that. Your Honour, these are the grounds he is relying upon. Nothing more. These are not new arguments that are to be raised, all of a sudden. There is nothing – that is really – I mean – a physical or personal problem that would prevent him from cooperating to obtain this life insurance.

At the appeal hearing, counsel for the husband was asked why her client resisted cooperating and she declined to shed light on the subject. As the wife pointed out, the husband’s affidavit does not disclose his reasons for declining to cooperate.

(2) Sufficiency of the Notice of Motion [ 28 ] The husband submits the motion is lacking particulars, yet he does not identify what is missing. A review of the Notice of Motion reveals the wife indicated she was invoking Rules 3.02(1), 37, 39, and 59. She further requested an order that the husband [TRANSLATION] “be ordered to cooperate with and make himself available to Familysure, as per their requests, allowing Danielle Calvy to obtain the life insurance coverage she is seeking prior to August 2, 2011”. It is apparent the husband was aware of the case he had to meet.

The judge was provided with a statement of the issues to be argued before him, and although s. 15.2(1) of the Divorce Act was not pleaded, he noted orders securing support payments through life insurance policies were routine matters. In addition, the wife had previously requested the husband cooperate in her acquisition of the Familysure policy. As noted, the husband was certainly not taken by surprise at the hearing of the motion. He and his counsel both knew why they were there. E.

Failure to Enunciate Relief Sought in Answer and Counter-Petition [ 29 ] Counsel for the husband states the motion judge erred in granting the wife the interlocutory relief she sought when she had not framed the relief properly in her Answer and Counter-Petition. Again I must disagree. The issue of whether obtaining an insurance policy on the husband’s life was necessary to secure the spousal support payments was referred to by both parties in documentation filed with the Court of Queen’s Bench, Family Division. In the Petition for Divorce, the husband requested, among other things: [TRANSLATION] 99.

The appellant, in his Petition for Divorce, is seeking the following, among other things:

b) under the Divorce Act :

[...] (ii) pursuant to s. 15.2(1), that the Court determine the amount of spousal support and that this amount be paid as a monthly payment or as a lump sum, or to secure the payment as a lump sum, or both . [Respondent’s brief, para. 99] [Emphasis added.] [ 30 ] In the Answer and Counter-Petition, the wife requested: [TRANSLATION] 100. In the respondent’s Answer and Counter-Petition, she stated as follows, among other things: In the Answer : 6. The respondent would also like to be heard on the matter of life insurance policies held by the petitioner . In the Counter-Petition : (

b) under the Divorce Act : That a life insurance policy on the life of the petitioner for the benefit of the respondent be maintained for so long as the petitioner has an obligation to pay support to the respondent. [Respondent’s brief, para. 100] [Emphasis added.] [ 31 ] Securing spousal support payments is an issue that arises regularly in family law cases. In many instances, when a party requests spousal support to be paid pursuant to s. 15.2(1) of the Divorce Act and the relief is granted, judges also order the support be secured in some manner.

A review of the Petition for Divorce and the Reply reveal the relief sought was well framed and, as such, the motion judge could grant the relief sought by the wife on the motion. I would therefore reject this ground of appeal. VII. Disposition [ 32 ] In conclusion, I would dismiss the appeal and confirm the order of the motion judge. I would add, perhaps unnecessarily, that one would expect the wife would be heard at trial regarding the damages she will incur as a result of the husband not respecting the July 22, 2011 order.

The record reveals the premiums for the Familysure policy have increased from $1,679.66 per month to $1,814, as the wife was unable to obtain the policy prior to August 2, 2011, when the husband attained the age of 64. This increase in premium should be addressed at trial. I would award costs of $3,000 against the appellant.

_________________________________ Kathleen A. Quigg, j.c.a. NOUS SOUSCRIVONS À L’AVIS : _________________________________ J.C. Marc Richard, j.c.a. _________________________________ B. Richard Bell, j.c.a.